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 KF 570.R33 
 '■^ A treatise on the law of real P'oPf ^y / 
 
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Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018814644 
 
TREATISE ON THE LAW 
 
 OP 
 
 REAL PROPERTY 
 
 BY 
 
 ALFRED G^'RE^VES, A.M., LL.B. 
 
 professor of law in the new york law school; author of 
 
 "a treatise on special subjects op the law of real 
 
 property," and editor of "reeves* 
 
 leading cases on wills " 
 
 IN TWO VOLUMES 
 
 Vol. I 
 
 BOSTON 
 
 LITTLE, BEOWN, AND COMPANY 
 
 1909 
 
Copyright, ^904, 1909, 
 Bx Alfbbd G. Besveb. 
 
 S. J. Faskhill <fc Co., Boston, U. 8. A> 
 
PREFACE. 
 
 A large part of this book wajS published, five years ago, as a 
 treatise on "Special Subje^s\.'''ofg,the law of real property. 
 The author then stated, in the preface, that he hoped to finish, 
 within three or four years, a work on all the topics ordinarily 
 comprised within that department of law. These two volumes 
 embody the results of his efforts to realize that hope. The 
 former portions of the treatise have been carefully revised, and 
 their citations brought down to date; and the plan and outline 
 contained in the fourth chapter have been closely followed in 
 this the completed work. 
 
 Arising from experience with the difficulties encountered by 
 students of the law of real property, three ideals have prompted 
 and controlled the writing of these pages. They are the pres- 
 entation of that law, first, in the perfect light of its own history ; 
 second, divested as far as possible of technicalities ; and third, 
 practically complete within the sphere which the discussion 
 purports to include. The book itself must fall far short of such 
 ideals. But a few words as to each of them may briefly explain 
 what has been attempted. 
 
 The philosophy of English and American history is mani- 
 fested in few concrete forms or systems in which it is so thor- 
 oughly legible as in the common law of real property. There 
 is a clear reason, in the development of the Anglo-Saxon race, 
 for every important principle of that splendid, logical system. 
 Therefore, the so-called modern law of real property can be 
 appreciated only superficially when studied alone. And an 
 attempt to learn it, without taking note of the civil and juristic 
 struggles through which it has been evolved, is as unfortunate 
 for the student as would be a mere study of those struggles, 
 regardless of the resulting rules and theories that are control- 
 ling the practical men of to-day. The latest adjudications of 
 the best courts, and the reasons for them, drawn from the 
 profound, though sometimes technical, arguments of the ages, 
 
IV PREFACE. 
 
 are what constitute the common law of realty for the thorough 
 practitioner. An humble effort is made to present in this book 
 both of those components of that law, and to insist that they 
 shall not be separated in the labors of the learner. 
 
 Simplicity and terse clearness of illustration are primary 
 desiderata in dealing with a subject which has been much 
 affected by scholastic logic and methods of reasoning now dis- 
 carded and obsolete. The doctrine of scintilla juris, for exam- 
 ple, the principle of descent-cast, or the practice of fines and 
 common recoveries, can not be wholly brushed aside and ig- 
 nored; but they call for brief explanations in the forms of 
 language and modes of thought of the present time. Without 
 anticipating any knowledge yet to be acquired by the reader, 
 it is earnestly sought in this work so to state these and the 
 more important principles of the subject, and so to illustrate 
 them, with recent authorities whenever possible, that an ordi^ 
 narily careful readjng can not fail to make them understood. 
 The illustrations of each point or rule are not numerous, in 
 most instances only one is given, and much care has been be- 
 stowed on all of them to make them as lucid as possible. 
 
 ifTothing short of a voluminous digest can state all the modi- 
 fications which recent English and American statutes have 
 engrafted on the common law of real property. But that com- 
 mon law, as it is to-day, developed with the aid of the old land- 
 marks of legislation into a system of rounded symmetry and 
 logical beauty, together with the accompanying typical code 
 of one important State, may be set forth in a work of convenient 
 size for students and lawyers. Such a work is one of the ideals 
 that have caused the writing of these pages. New York's codi- 
 fication has been selected as the local system, both because of 
 its I own importance, and because it has been a model for so 
 much legislation of other States. The special statutes of that 
 one State and their constructions are added, in separate full- 
 measure notes, at the proper places throughout the book. And 
 thus it is sought to make a practically complete treatise on New 
 York real-property law, yet without materially encumbering 
 the text or other notes with anything that is purely local or 
 special. It is hoped, moreover, that the text and general anno- 
 tations, aiming as they do to explain the past and present 
 common law of the land, may be found sufficiently clear and 
 comprehensive to be of practical service to students and the 
 
PREFACE. V 
 
 profession, even where New York's code has had little or no 
 influence. 
 
 In referring to authorities, care has been taken to cite more 
 on doubtful points than on those that may be regarded as settled. 
 Recent cases have been preferred to older ones, wherever they 
 were otherwise equally valuable. The book is not to be adver- 
 tised for its citation of many cases. It must rather embody, 
 in this particular, the results of careful selection from the pon- 
 derous masses of adjudications. And reference to a standard 
 text-book, on the special topic of the page, often closes a note 
 containing citations of only two or three illustrative and decis- 
 ive cases. Mr. Digby's scholarly treatise on the " History of 
 the Law of , Real Property " and the profound work of Profes- 
 sors Pollock and Maitland on the " History of English Law " 
 are very often cited and quoted. The names of standard writers 
 on the subject, such as Cruise, Williams, Leake, Washburn, and 
 Challis, adorn many pages. And, throughout the book, care 
 has been taken to refer to special treatises, such as " Ewell on 
 Fixtures," " Jones on Easements," " Bispham's Principles of 
 ■ Equity," " Perry on Trusts," " Thomas on Mortgages," " Tay- 
 lor's Landlord and Tenant," " McAdam on Landlord and 
 Tenant," Gray's " Rule against Perpetuities," " Chaplin on 
 Suspension of the Power of Alienation," " Rawle on Cove- 
 nants for Title," Fowler's " Real Property Law of the State 
 of Xew York," and many others, to which the author is grate- 
 fully indebted. 
 
 If what is here written prove in some degree a help to those 
 who are endeavoring to master all or some portion of this sub- 
 ject, which is too often spoken of as dry and technical, or an 
 aid in causing students to look on the study of real-property 
 law as neither irksome nor unpleasant, at least one of its chief 
 objects will have been accomplished. 
 
 A. a. R. 
 
 New York, March, 1909. 
 
CONTENTS. 
 
 Volume I. 
 
 Table of Cases xiii 
 
 INTRODUCTION AND OUTLINE. 
 
 Chaptib 
 
 I. Property Explained and Classified 1 
 
 II. Fixtures 11 
 
 III. Property, Other than Fixtures, that is Sometimes Real and 
 
 Sometimes Personal 49 
 
 IV. Outline of Real Property Law 72 
 
 Table of Real Property Law 110 
 
 BOOK I. 
 
 KINDS OF REAL PROPERTY. 
 
 PART I — Lands. PART II. — Tenements. 
 
 V. Lands and Tenements 113 
 
 PART III. — Hereditaments. 
 
 1. CORFOBEAL. 2. INCORPOREAL. 
 
 VI. 1. Hereditaments Explained and Classified — Corporeal 
 
 Hereditaments 115 
 
 2. Incorporeal Hereditaments. 
 
 VII. (1) Rents 117 
 
 VIII. (2) Franchises 142 
 
 (3) Easements and Servitudes. 
 
 IX. Easements. Kinds. How Created 149 
 
 X. Servitudes that are not Common-Law Easements 213 
 
 XI. Incidents of Easements and Servitudes — Their Termina- 
 tion and Suspension — Remedies 241 
 
 XII. Special Features of Important Kinds of Easements and Ser- 
 vitudes 270 
 
 XIII. (4) Profit a Prendre 307 
 
 XIV. Licenses 320 
 
VIU CONTENTS. 
 
 BOOK II. 
 
 HOLDINGS OF REAL PROPERTY. 
 
 PART I. — Alodial Holding. 
 
 PART II. — Tenure — Feudal System. 
 
 Chattib Fase 
 
 XV. Outline of Book II. — Anglo-Saxon Holdings 333 
 
 XVL The Feudal System and its Finiits 338 
 
 XVII. Holdings of Real Property in the United States 386 
 
 BOOK III. 
 
 ESTATES IN REAL PROPERTY. 
 XVIII. Estates — Explained and Classified 399 
 
 PART I. 
 
 estates classified with repeeencb to the courts that 
 recognize them. 
 
 1. Legal. 2. Equitable. 
 
 2. Equitable Estates. 
 
 XIX. (1) Uses 402 
 
 (2) Trusts. 
 
 XX. Kinds of Trusts 427 
 
 XXI. a. Express Trusts — Their Creation, Revocation, Requi- 
 sites and Forms — Powers in Trust 434 
 
 6. Implied Trusts. 
 
 XXII. (a) Resulting Trusts 504 
 
 XXIII. (b) Constructive Trusts 529 
 
 XXIV. (3) Eqviity of Redemption 583 
 
 PART II. 
 
 ESTATES CLASSIFIED AS TO THEIR QUANTITY. 
 
 1. Fheehold. 2. Less than Freehold. 
 
 1. Freehold Estates. 
 (1) Freehold Estates of Inheritance — Fees. 
 
 XXV. Quantities of Estates 585 
 
 XXVI. a. Estates in Fee Simple 589 
 
 XXVII. b. Qualified Fees 603 
 
 (a) Estates in Fee Tail 604 
 
 (b) Estates in Fee on Condition 619 
 
 (c) Estates in Fee on Limitation 620 
 
 (d) Estates in Fee on Conditional Limitation 621 
 
CONTENTS. 
 
 IX 
 
 Chakcbb 
 
 XXVIII. 
 XXIX. 
 
 XXX. 
 
 XXXI. 
 
 XXXII. 
 XXXIII. 
 XXXIV. 
 
 XXXV. 
 
 XXXVI. 
 
 XXXVII, 
 
 Fase 
 
 (2) Freehold Estates not of Inheritance — Life 
 
 Estates. 
 
 Nature and Kinds of Life Estates 624 
 
 a. Conventional Life Estates 627 
 
 b. Legal Life Estates. 
 
 (a) Curtesy 365 
 
 (b) Dower. 
 
 History, Nature, Forms and Requisites of Dower — 
 
 Quarantine 656 
 
 Property of which a Widow is Dowable 674 
 
 Assignment of !^wer . . 686 
 
 How Dower ma^be Lost or Barred 702 
 
 (c) Jointure — Provisions in Lieu of Dower 731 
 
 (d) Estates duringlMarriage — Homestead 747 
 
 Bights and Duties offljife Tenants — Estovers — Emblements 
 
 — Waste 761 
 
 Volume II. 
 
 2. Estates Less than Freehold. 
 
 (1) For Years — Chattels Real. f Hhattel 
 
 (2) From Year to Year, Month to Month, etc. ^ Interests 
 
 (3) At Will. J 
 
 (4) At Sufferance. 
 
 THE LAW OF LANDI^RD AND TENANT. 
 
 XXXVIII. History «^Kind=W Estates Less than Freehold. ... 789 
 (1) Estates >c«S Years. 
 
 XXXIX. Nature, Requisftes and Duration of Estates for Years -- - — 
 
 Parties and Subject Matter 793 
 
 XL. Creation of Estates for Years — Leases — Conditions i-i 
 
 Leases — Covenants in Leases 804 
 
 XLI. Rights of Tenants for Years — Reciprocal Duties of Land- 
 lords » 841 
 
 XLII. Duties of Tenants for Yen — Reciprocal Rights of 
 
 Landlords — Liability to C^side Parties 878 
 
 XLIII. Termination of Estates for Yedrs 909 
 
 XLIV. (2) Estates from Year ^o Year, and from Quarter to 
 Quarter, from Month tt> Month, etc. — From Period to 
 
 Period . . . 922 
 
 XLV. (3) Estates at Will 931 
 
 XL VI. (4) Estates at S^erance — Hold-Over Tenants ... 941 
 
CONTENTS. 
 
 PART III. 
 
 ESTATES CLASSIFIED WITH REFERENCE TO THE NUMBER AND 
 CONNECTION OP THEIR OWNERS. 
 
 1. Estates in Severalty. 2. Joint Estates. 
 
 Chaftes Pagb 
 
 XLVII. 2. Joint Estates — Co-Tenancy 952 
 
 XLVIII. (1) Estates in Joint Tenancy 956 
 
 XLIX. (2) Estates, or Tenancies, in Co-Parcenary 967 
 
 L. (3) Estates, or Tenancies, in Common 969 
 
 LI. (4) Estates, qr Tenancies, by the Entirety — Com- 
 munity Property and Interests 975 
 
 LII. (5) Partnership Estates 983 
 
 LIII. (6) Joint Mortgages 987 
 
 LIV. Rights and Duties of Co-Owners — Partition 989 
 
 PART IV. 
 
 ESTATES CLASSIFIED WITH REFERENCE TO THEIR CONDITIONAL 
 OR QUALIFIED NATURE. 
 
 1. Absolute. 2. Qualified. 
 
 I 
 
 LV. 2. Qualified Estates 1007 
 
 (1) Estates on Condition . 1009 
 
 • (2) Estates on Limitation 1020 
 
 (3) Estates on Conditional Limitation 1024 
 
 (4) Mortgages. 
 
 LVI. History, General Nature, and Kinds of Mortgages . . . 1028 
 LVII. Mortgages — Interests, Rights, and Duties of the Parties 1053 
 LVIII. Mortgages — Special Equities Associated with them — 
 Priorit'e^ and Record — Discharging and Extinguishing 
 
 Mortgages . . . .... J.083 
 
 liXIX. MoTt"2gbts- — iaitorcing Satisfaction of Mortgage Debt 
 
 — ^recloBure of Mortgages 1111 
 
 PART V. 
 
 ESTATES CLASSIFIED WITH REFERENCE TO THE TIME FOR T JEIE, 
 ENJOYMENT TO BEGIN. 
 
 1. Present. 2. Future. ' 
 
 LX. Estates Present and Future — Classes of Future Estates 1134 
 
 LXI. (1) Reversions 1139 
 
 (2) Remainders. 
 
 LXII. Rmiainders — Explained and Classified 1148 
 
 LXIII. a. Vested Remainders 1159 
 
 LXIV. b. Contingent RemaiAders 1166 
 
 f 
 
CONTENTS. 
 
 XI 
 
 Cbaptbb Page 
 LXV. How Remainders may be made — Successive Remain- 
 ders — Their Acceleration , . . 1191 
 
 (3) Executory Estates 
 
 LXVI. Kinds of Executory Estates — How Created 1198 
 
 LXVII. o. Springing Uses — 6. Shifting Uses 1202 
 
 LXVIII. c. Powers 1208 
 
 LXIX. d. Executory Devises 1246 
 
 LXX. The Rules against Perpetuities and Accumulations . . 1260 
 
 BOOK IV. 
 
 TITLES TO REAL PROPERTY. 
 
 PART I. — Title by Descent. 
 
 PART II. — Title by Purchase. 
 
 LXXI. Title — Explained and Classified 1295 
 
 PART I. 
 
 TITLE BY descent. 
 LXXIL Descent — Intestate Succession. . 
 
 1299 
 
 PART 11. 
 
 TITLE BY PURCHASE. 
 
 1. Other than by Alienation. 2. By ^ienation. 
 
 LXXIII. Purchase ' 1322 
 
 1. Purchase Other Than by Alienation. 
 
 LXXIV. (1) Title by Escheat 1324 
 
 LXXV. (2) Title by Occupancy 1328 
 
 LXXVI. (3) Title by Accretion 1329 
 
 LXXVII. (4) Title by Forfeiture . 1333 
 
 LXXVIII. (5) Title by Prerogative — Eminent Domain .... 1335 
 
 LXXIX. (6) Title by Abandonment 1337 
 
 LXXX. (7) Title by Estoppel 1338 
 
 LXXXI. (8) Title by Prescription — Custom 1352 
 
 LXXXII. (9) Title by Adverse Possess^n 1354 
 
 (2) Title by Alienation. 
 
 (1) Alienation by Deed or Grant. 
 
 LXXXIII. Alienation — Deeds 1379 
 
 LXXXIV. Kinds of Deeds 1381 
 
 LXXXV. (a) PubUc Grant 1405 
 
 LXXXVI. (b) Office Grant 1418 
 
Xll 
 
 CONTENTS. 
 
 CHAFm Fasb 
 
 (c) Private Grant-Deeds. 
 
 LXXXVII. Requisites of Deeds 1435 
 
 LXXXVIII. Execution of Deeds 1461 
 
 LXXXEX. Record of Deeds 1485 
 
 XC. Orderly Component Parts of a Deed 1494 
 
 XCI. Alienation by Devise, or Will 1544 
 
 XCII. Alienation, (3) By Matter of Record, (4) By Special 
 
 Custom 1565 
 
 XCIII. Liens on Real Property 1569 
 
 XCIV. Registration of Titles to Real Property 1581 
 
 INDEX. . . 1591 
 
TABLE OF CASES CITED. 
 
 [Befennces are to pages. YoL I. has pp. 1-788 j Vol. II. pp. 789-1588.] 
 
 Aaron v. Bayne 
 Abbey v. McPherson 
 
 V. Wheeler 
 Abbiss V. Bumey 
 Abbot V. Weekly 
 
 667 
 1513 
 
 791 
 1192 
 
 220 
 
 Abbott V. Abbott 1500, 1502, 1514 
 
 V. Butler 245 
 
 V. Holway 1402 
 
 V. Stewartstown 180, 182 
 
 V. Wetherby 981 
 
 Abby H. Assoc, v. Willard 899 
 
 Abend v. End Fund Commission 492 
 
 Abendroth v. Manhattan R. C!o. 231 
 
 Abom V. Searles 559 
 
 V. Smith 1513 
 
 Abraham v. Bubb 780 
 
 Abrahams v. Tappe 873 
 
 Absalon v. SicMnger 1548 
 
 Absecon Co. v. McCullough 1504 
 
 Acker v. Phoenix 446 
 
 Ackerman v. Gorton 1218 
 
 V. Hunsicker 1491 
 
 V. Shelp 221 
 
 V. True 1527, 1528 
 
 Ackerman's Adm'r v. Vreeland's 
 
 Ex'rs 1189 
 
 Ackers v. Phipps 1251 
 
 Acklin V. McCahnont Oil Co. 897 
 
 Ackroyd v. Smith 215, 242, 243, 244 
 
 271 
 V. Smitbson 523 
 
 Acquackanonck Water Co. v. 
 
 Watson 214, 240, 298, 299 
 
 Acton V. Blundell 240, 302 
 
 V. Waddington 1039, 1040, 1041 
 
 V. Woodgate 449 
 
 Adair v. Lott 640, 641, 655 
 
 Adams v. Adams 445, 533, 
 
 1177, 1474 
 
 V. Anderson 1313, 1315 
 
 V. Beadle 65 
 
 V. Betz 1515 
 
 V. Bigelow 1069 
 
 V. Bristol 962 
 
 V. Butts 665 
 
 V. City of Cohoes 923, 925, 928, 
 
 929, 938 
 
 Adams v. Collier 513 
 
 V. Conover 1523, 1537 
 
 V. Cowen 431, 530, 537, 546, 
 
 547, 548, 549 
 V. Dunklee 1516 
 
 V. Fassett 1427 
 
 V. Field 1549 
 
 V. Fletchfer 903, 905 
 
 V. Freeman 321 
 
 V. Frothingham 1600 
 
 V. Goddard 915, 916 
 
 V. Irving Nat. Bk. 545 
 
 V. Jenkins 758 
 
 V. Kensington Vestry 452, 453 
 V. Knowlton 981, 982 
 
 V. Lopdell 452 
 
 V. Marshall 282, 286 
 
 V. McKesson 795, 936 
 
 V. Medsker 1455 
 
 V. Norris 1552 
 
 V. Pahner 1429 
 
 V. Perry ' 494 
 
 V. Rockwell 1340 
 
 V. Ross 591, 613 
 
 V. Savage 1205 
 
 V. Sayre 1066 
 
 V. Smith 1308 
 
 V. Tenants of Savage 1192 
 
 V. Van Alstyne 295 
 
 Adams' Estate, In re 556 
 
 Adams Female Academy v. 
 
 Adams 488, 490 
 
 Addis V. Campbell 539 
 
 Addison v. 'Ha.ek 330 
 
 V. Shepherd 124 
 
 Addyston Pipe & Steel Co. v. 
 
 United States 541 
 
 Adee v. HaUett 1457 
 
 Adlington v. Cann 435, 439, 441 
 
 Adsit V. Adsit 741 
 
 iEtna Life Ins. Co. v. Middleport 1085 
 Agar V. Fairfax 994 
 
 Agate V. Lowenbein 778-783 
 
 AgUilar v. Aguilar 1085 
 
 Aheams v. Hogan 557 
 
 Ahem v. McCarthy 1042 
 
 V. Steele 902, 905, 906, 907 
 
 Ahrend v. Odiorne 1038 
 
 Ahrens v. Jones 530, 531, 532 
 
[References 
 
 1074 
 
 462, 795 
 
 664 
 
 643 
 
 855 
 
 1555, 1556 
 
 XIV 
 
 Aiken v. Gale 
 
 Aikin v. Smith 
 
 Aikman v. Harsell 
 
 Aiman v. Stout 
 
 Ainsworth v. Ritt 
 
 Akers, Matter of 
 
 Akl V. Bosler 596, 735, 743, 744, 745 
 
 Albanesius v. Peerless Rubber 
 
 Mfg. Co. 1515 
 
 Albany's Case 1213, 1243 
 
 Albany Co. Sav. Bk. v. McCarthy 563, 
 
 651, 655, 1464, 1483 
 
 Albany Fire Ins. Co. v. Bay 714, 
 
 1446 
 
 Albert v. Albert 1284 
 
 V. State 858, 905 
 
 V. Uhrich 34, 45 
 
 Albin V. Riegel 61 
 
 Albrecht, Matter of 975, 988 
 
 V. Long 1575 
 
 Albright V. Oyster 505 
 
 Albro V. Blume 1126 
 
 Alden v. St. Peter's Parish 478, 492 
 
 Aldin V. Latimer Clark 274 
 
 Aldine Mfg. Co. v. Barnard 16, 17, 
 
 22 
 Aldous V. Comwell 1439 
 
 Aldred's Case 278 
 
 Aldrich v. Aldrich 451, 452, 453, 
 
 454 
 
 V. Husband 20, 30 
 
 V. Muirhead 751 
 
 Alexander, In re 661 
 
 V. Alexander 1016, 1228 
 
 V. Hodges 1016 
 
 V. Jackson 757 
 
 V. Loeb 948 
 
 V. ToUeston Club 243 
 
 V. Warrance 513 
 
 Aleyn v. Belchier 668, 569 
 
 Alford V. Earle 1560 
 
 Alger V. Kennedy 848 
 
 Alkire v. Alkire 566 
 
 Allaire v. Allaire 532 
 
 Allan V. Gomme 163 
 
 Alleard v. Skinner 547 
 
 Alleghany v. Morehead 1330 
 
 Allen, In re 33 
 
 V. Allen 498, 615, 957, 959, 
 
 960, 1274, 1280, 1283, 1523 
 
 V. Carpenter 943 
 
 V. Caylor 509 
 
 V. Culver 836, 837 
 
 V. Fiske 329 
 
 V. Gillett 551 
 
 V. Hawley 757 
 
 V. Hirlinger 1217 
 
 V. Hooper 748 
 
 V. Howe 1014 
 
 V. Jackson 1013 
 
 V. Jaquish 915, 938 
 
 V. Joy 228 
 
 TABLE OF CASES CITED. 
 
 are to pages.] 
 
 AUen V. Keily 945 
 
 V. Kelly 950, 1425 
 
 V. Kersey 1514 
 
 V. Leominster Sav. Bk 1099 
 
 V. Mansfield 1363 
 
 V. Mayfield 1153 
 
 V. McCoy 685, 697 
 
 V. McPherson 352 
 
 V. Mooney 23 
 
 V. Pegram 61 
 
 V. Pray • 744 
 
 V. Reynolds 714 
 
 V. San Jose L. &. W. Co. 250, 251 
 
 V. Sayward 1348 
 
 V. Scott 1498 
 
 V. Smith 906 
 
 V. Stevens 482, 483, 486, 602, 
 
 1183, 1274 
 
 V. Sullivan R. Co. 1465, 1466 
 
 V. Taylor 274 
 
 V. Weber 57 
 
 V. Welch 1377 
 
 V. Withrow 1438 
 
 rv. Wood 1121 
 
 AUerton v. Johnson 1505 
 
 Alles V. Lyon 980 
 
 Alley V. Carleton 179, 180 
 
 Ailing V. Chatfield 741 
 
 AUis V. BiUings 1445 
 
 V. Moore 1371 
 
 Allore V. Jewell 539, 544 
 
 Almand v. Scott 797 
 
 Almstardt v. Bendick 1284 
 
 Almy V. Church 1358 
 
 V. Hunt 1528 
 
 V. Jones 477, 479, 493 
 
 Alshire, Lessee of v. Hulse 1603 
 
 Alsop V. Riker 1369 
 
 Alspaugh V. Adams 518 
 
 Althause, Matter of 792, 798 
 
 Althof V. Conheim 981 
 
 Alvord V. Collin 1431 
 
 Ambrose v. Ambrose 437 
 
 Ambs V. Hill 40 
 
 Amerden v. Deane 191, 1619 
 
 Amer. Bank Note Co. v. N. Y. 
 
 El. R. Co. 199, 230, 246, 1359, 
 
 1375 
 American Bible Society^. Amer- 
 ican Tract Soc. 603 
 American Guild Co. v. Damon 1061 
 American Ice Co. v. Catskill 
 
 Cement Co. 69 
 
 V. Eastern Trust Co. . 1079 
 
 American Life & F. Ins. Co. v. 
 
 Ryerson 1121 
 
 American Mortgage Co. v. Hop- 
 per 1412, 1413 
 American Note to Chesterfield 
 
 V. Jansen 540 
 
 American Press Ass'n v. Blant- 
 ingham I04>i 
 
TABLE OP CASES CITED. 
 [Beferences are to pajfes.] 
 
 XV 
 
 American Sugar Re&|iing Co. 
 
 V. Pancher 517, 619, 578 
 
 Amer. Surety Co. v. Pauly 573 
 
 Ames V. Blunt 561 
 
 V. Hilton 1509 
 
 V. Nonnan 978 
 
 V. San Diego 1358 
 
 Ames Iron Works v. Kalama- 
 
 . zoo Pulley Co 578 
 
 Amherst v. Lj-tton 1193 
 
 Amherst College v. Rich 483, 536, 
 
 548 
 Amidon v. Harris 216 
 
 Amory v. Kannoffsky 917 
 
 v. Atty.-Gen. 487 
 
 Amphlett v. Hibbard 759 
 
 Amsterdam Knitting Co. v. 
 
 Dean 303 
 
 Ancaster (Duke of) v. Mayer 1101 
 
 Ancott V. Catherich 673 
 
 Andersen, Matter of 229 
 
 Anderson ■;;. Anderson 533, 599, 692 
 
 V. Blood 521, 522, 559, 574, 575, 
 
 1090 
 
 V. Bock 1363 
 
 V. Harold 1463 
 
 V. Hayes 858 
 
 V. Henderson 301 
 
 V. Mather 465 
 
 V. Messinger 762 
 
 V. Prindle 923, 924, 926, 928, 
 
 929 
 
 V. Sharp 1058 
 
 V. Taylor 1575 
 
 V. TydingB 1572 
 
 V. Winton 849, 850 
 
 Anderton, In re 813 
 
 Anding v. Davis 440 
 
 Andrar v. Haseltine 292 
 
 Andrews, Matter of 1550 
 
 V. Andrews 429, 492, 710 
 
 V. Appel 1539 
 
 V. Day Button Co. 18, 19, 20, 
 
 27 39 
 
 V. Gillespie 1536, 1538 
 
 V. Hailes 208 
 
 V. Lincoln 1264, 1269 
 
 V. Matthews 1343 
 
 V. Nat. Sugar Ref. Co. 164 
 
 V. Royce 1253 
 
 V. Rue 1505 
 
 V. Senter 1016 
 
 V. Stelle 679 
 
 V. Williamson 861 
 
 Andrus v. Vreeland 913, 1107 
 
 Angier v. Stannard 462 
 
 Angus V. Clifford 530, 533, 534 
 
 V. Daltou 194, 202, 206, 209, 
 
 210, 211, 239, 247, 280, 281 
 
 Ankeney v. Hannon 472 
 
 Annis ii. Davis 1578 
 
 Ansteej Goods of 1550 
 
 An^tice v. Brown 
 
 512 
 
 Anthony v. Gifford, 
 V. Hutchins 
 
 1329 
 
 1475 
 
 V. Lapham 
 
 299 
 
 Antisdel v. Williamson 
 
 1104 
 
 Antomarohi v. Russell 
 
 293 
 
 Appell V. Appell 
 Apple V. Al en 
 
 963 
 473 
 
 Appleton V. Boyd 
 V. Campbell 
 
 986, 987 
 
 864 
 
 V. FuUerton 
 
 245 
 
 V. Marx 
 
 905 
 
 V. Rowley 
 
 642 
 
 Apreece v. Apreece 
 
 457 
 
 Arbens v. Wheeling & H. R. Co. 232 
 Arbenz v. Exley 925 
 
 Arbuckle v. Ward 193, 204, 205 
 
 Ard V. Brandon 1409 
 
 Archer's Case 558, 64^, 1178, 1186 
 Archer v. Archer 214 
 
 V. Eckerson 1383, 1396 
 
 V. Hudson 567 
 
 Archibald v. N. Y. C. & H. R. R. 
 
 Co. 382, 1376 
 
 Ards V. Watkins 128, 131, 876 
 
 Arents v. L. I. R. Co. 382, 1364, 
 
 1375, 1376 
 
 Argotsinger v. Vines 786, 1364 
 
 Arkwright v. Cell 306 
 
 Armfield v. Walker 1492 
 
 Armistead v. Kirby 1120 
 
 Armorj' v. Kannonsky 918 
 
 Armstrong's Estate, In re 758 
 
 Armstrong v. Armstrong 1475 
 
 V. Ashley 574 
 
 V. Combs 1488 
 
 V. Cummings 888 
 
 V. Keams 821 
 
 V. Ross 1446, 1478 
 
 V. Union College 699, 700, 701 
 
 V. Wilson 768, 787 
 
 Amison v. Smith 534 
 
 Arnold v. Arnold 453 
 
 V. Fee 245 
 
 V. Grimes 1412 
 
 V. Jack 954 
 
 V. Lincoln 594 
 
 V. Mimdy 1611 
 
 V. Ruggles 61 
 
 V. Smith 1045 
 
 V. Stevens 203 
 
 Amot V. Union Salt Co. 1058 
 
 Amoux V. Phyfe 1226 
 
 Amsby v. Woodward 911 
 
 Arrowsmith v. Burlingim 1419 
 
 Arthur v. Cole 1013, 1023 
 
 V. Weston 1454 
 
 Asbury v. Fair 1362, 1363 
 
 Asche V. Asche 740 
 
 Ascough's Case 129 
 
 Ashcroft V. Eastern R. Co. 166 
 
 Asheville Land Co. v. Lang 1513 
 
XVI 
 
 TABLE OP CASES CITED. 
 
 [Beferences 
 
 Asheville Woodworking Co. v. 
 
 Southwick 38 
 
 Ashford v. Ashford 960, 962, 1367 
 
 Ashley v. Ashley 205, 1170 
 
 V. Ryan 142 
 
 V. Warner 1022 
 
 Ashurst V. Potter 50 
 
 Ashwell V. Ayres 1467 
 
 Assay v. Hoover 1241 
 
 Astley V. Micklethwait 1192 
 
 Aston V. Nolan 282 
 
 Astor V. Hoyt 873 
 
 V. Mayor 1429 
 
 V. Miller ' 840 
 
 V. Wells 573 
 
 Atherton v. Atherton 709, 710 
 
 Athey v. Knotts 562 
 
 Atldns V. Boardman 245 
 
 V. Bordman 247 
 
 V. Chilson 787 
 
 V. Tomlinson 1524 
 
 V. Yeomans 700, 701 
 
 Atkinson v. Atkinson 452 
 
 V. Baker 631 
 
 V. Bordman 246 
 
 V. Brady 996 
 
 V. Dowlmg 1243 
 
 V. Walton 1079 
 
 Atlanta K. & M. Ry. Co. v. 
 
 McKinney 1467 
 
 Atlanta Mills v. Mason 263, 264 
 Atlantic Dock Co. v. Leavitt 1403, 
 1463, 1518 
 
 Atlas Refining Co. v. Smith 1671 
 
 AttersoU v. Stevens 778 
 
 Atty.-Gen. v. Abbott 225 
 
 V. Baliol Coll. 476, 488 
 
 V. Baxter 478 
 
 V. Bishop 245 
 
 V. Bowyer 479 
 
 V. Brereton 475 
 V. Briggs 487, 488, 490 
 
 V. Bushby 480 
 
 V. C. R. Co. 145 
 
 V. Chambers 1331 
 
 II. Cock 478 
 
 V. Comber 479 
 
 V. Dean of Windsor /■ 491 
 
 V. Doughty 278 
 
 V. Downing 492 
 
 V. Garrison 485 
 
 V. Gladstone 478 
 
 V. Glasgow Coll. 488 
 
 V. Glyn 476, 488 
 
 V. Haberdashers' Co. 481 
 
 V. Heelis 480 
 
 V. Hickman 478 
 
 V. Hurst 488 
 
 V. Ironmongers' Co. 476, 488 
 
 V. Jacobs-Smith 567 
 
 V. Kell 479 
 
 V. Moore 474 
 
 are to pages.] 
 
 Atty.-Gen. v. Moore's Ex'rs 491 
 
 V. Morris 223 
 
 V. Morris, etc. R. Co. 225 
 
 V. Newman 475 
 
 V. Pearson 478 
 
 V. Revere Rubber Co. 195 
 
 V. St.' John's Hospital 414 
 
 V. Sands 408 
 
 V. Soule 481 
 
 V. Stepney 478 
 
 V. Vint 479 
 
 V. Wax Chandlers' Co. 491 
 
 V. William and Mary's Coll. 478 
 
 V. Williams 239 
 
 V. Windsor 523 
 
 Atwater v. Perkins 1226 
 
 V. Russell 439 
 
 Atwood ■y.'Amold 661 
 
 V. Atwood 668, 729 
 
 V. Fricot 316 
 
 V. Moore 1050 
 
 V. Small 533, 534, 635 
 
 Attwater v. Attwater 598 
 
 Auer V. Hoffman 947 
 
 V. Penn 919 
 
 V. Wahl 857 
 
 Augusta Mfg. Co. v. Vertrees 1377 
 
 Aultman & Taylor Co. v. Syme 1671 
 
 Aurora v. Fox 280 
 
 Austen v. Taylor 429, 430, 460 
 
 Austerberry v. Corporation of 
 
 Oldham 1542 
 
 Austin V. Austin 692 
 
 V. Aheame 385, 897, 1068 
 
 V. Cambridgeport 1016, 1018 
 V. Fendall 1470 
 
 V. Field 865 
 
 V. Hall 990 
 
 V. Hatch 580 
 
 V. H. R. R. Co. 280, 778 
 
 V. Cakes 1230, 1234, 1240, 1557 
 V. Rutland R. Co. 1330, 1512 
 V. Strong 849 
 
 V. Thompson 927, 935 
 
 V. Trustee 1444 
 
 Auworth V. Johnson 1830 
 
 Aveline and Another v. Whis- 
 
 son 1462 
 
 Aveling v. Knipe 508 
 
 Avelyn v. WarJ 812, 1019 
 
 Averill v. Taylor 812, 1072 
 
 Avern v. Lloyd 1266 
 
 Avery v. Everett 650 
 
 Avery v. Pixley 1556 
 
 Avon Mfg. Co. V. Andrews 1499 
 
 Axtel V. Chase 1532 
 
 Aycock V. Emmbrough 996 
 
 Ayer v. Hawkes 933 
 
 Ayers v. Harris 1505 
 
 V. Watson 1513 
 
 V. Reidel 1367 
 
 Aylesford v. Morris 640 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 XVll 
 
 Ayling v. Kramer 
 Aylward v. O'Brien 
 Aynsley v. Glover 
 Ayray's, Dr., Case 
 Ayres v. Ayres 
 
 V. M. E. Church 
 
 B. 
 
 161 
 
 Baker v. Frick 
 
 245, 246 
 
 68, 69, 578 
 
 V. Georgi 
 
 1032 
 
 275 
 
 tf. Griffin 
 
 1492 
 
 1454 
 
 V. Hart 
 
 794, 795 
 
 1458, 1551 
 
 V. Johnston 
 
 224 
 
 498 
 
 V. Leathers 
 
 512 
 
 'hurch 449 
 
 V. Mott 
 
 166 
 
 Babb V. Reed 
 
 
 
 484 
 
 Babbage v. Powers 
 
 
 
 902 
 
 Babbitt v. Day 
 
 
 
 675 
 
 Babcock v. Scoville 
 
 
 
 870 
 
 V. Utter 
 
 159, 
 
 324 
 
 326 
 
 Bach V. Kidansky 
 
 
 
 1038 
 
 Backhaus v. Backhaus 
 
 
 461 
 
 468 
 
 Backhouse v. Bonomi 280, 282, 284, 
 
 286 
 
 Bacon's Appeal 461 
 
 Bacon v. Bowdoin 812 
 
 tf. Bronson 531, 532 
 
 V. Fay 1004 
 
 V. Ransom 453, 481 
 
 Baden v. Pembroke 622 
 
 Badger v. Holmes 962 
 
 Badgley v. Bruce 689, 698 
 
 Baer, Matter of 465, 1164, 1190 
 
 V. McCullough 1432, 1334 
 
 Baetty v. Gregory 158 
 
 Bagley v. Freeman 870 
 
 V. Ward 1575 
 
 Bagott V. Orr 1329 
 
 Bailey v. Bailey 432, 1031, 1281 
 
 V. Burges 1510 
 
 ■V. Carleton 1362 
 
 V. Ekins 1044 
 
 V. Galpin 574 
 
 ■V. Hoppin 1160, 1188 
 
 V. Stephens 244, 308 
 
 V. Warners 1574 
 
 V. Wells 914 
 
 V. Winn 1058 
 
 Bailey & Co. v. Clark 300 
 
 Bailie v. Plant 947 
 
 BaiUie v. Trehame 976 
 
 Bainbrigge v. Browne 556 
 
 Bainway v. Cobb 25, 27, 29 
 
 Baird v. Baird 1399, 1458 
 
 V. Jackson 972 
 
 Bakeman v. Talbot 245, 247 
 
 Baker v. Atchison & T. R. Co. 702, 
 
 722 
 
 V. Baker 682, 1142 
 
 V. BariT 652, 1509 
 
 V. Bartlett 1490 
 
 V. Bliss 579 
 
 V. Bradley 556 
 
 V. Crosby 186 
 
 V. Fawcett 858 
 
 V. Oakwood 101, 1355, 1359, 
 1361, 1364, 1373 
 V. Potts 1104, 1459 
 
 V. Sebright L. R. 780 
 
 V. Sutton 480 
 
 V. Talbot 1513 
 
 V. Updike 1038-1040 
 
 V. Vming 509, 510 
 
 V. Whiting 551 
 
 V. Woman's Christian Tem. 
 
 Union 592 
 
 Baldwin v. Baldwin 1552 
 
 V. Boston & M. R. Co. 245 
 
 u. Breed 30 
 
 V. Calkins 199 
 
 V. Howell 1051 
 
 V. Humphrey 446 
 
 V. Root 1348 
 
 V. Thompson 1491 
 
 V. Van Vorst 1079 
 
 Baley v. Umatilla Co. 479 
 
 Ball V. CuUimore 934 
 
 ■B. Dunsterville ' 1467 
 
 V. Shatter 1042 
 
 V. Woolfolk 595, 637, 650, 651 
 Ballacorkisk Mining Co. v. Har- 
 rison 303 
 Ballard v. Child 1522 
 V. Demmon 180, 308, 209, 
 1370 
 V. Dyson 199 
 Ballentyne v. Smith 1424 
 Ballou V. Baxter 916 
 V. Hale 991 
 Bally V. Wells 838, 874 
 Baltimore Dental Ass. v. Fuller 924 
 Baltimore & Ohio R. R. Co. v. 
 
 West 946 
 
 Bancroft v. Consen 518 
 
 V. Otis 547, 548, 553, 556 
 
 V. Wardwell 933 
 
 Banghart v. Flummerfelt 157 
 
 Bank v. Foster 554 
 
 V. Gale 758 
 
 V. James 472 
 
 V. King 518 
 
 V. Looney 580 
 
 V. Miller 216 
 
 V. O. E. Merrill Co. 44 
 
 V. Read 565 
 
 V. Root 440 
 
 Bank for Savings v. Frank 1042 
 
 Bank of Amer. v. Pollock 519 
 
 Bank of Augusta v. Earle 142 
 
 Bank of Utica v. Mersereau 1350 
 
XVUl 
 
 TABLE OF CASES CITED. 
 [References are to pages,} 
 
 Bank of TJ. S. v. Housman 1346, 
 
 1402 
 Bank cJf Versailles v. Guthrey 757 
 Bankhead v. Brown 228, 229 
 
 Banks v. Amer. Tract Soc. 275 
 
 V. Ogden 226, 1508 
 
 V. School Directors 178 
 
 Banning v. Edes 1496 
 
 Bannon v. Brandon 1368 
 
 Banta v. Merchant 61 
 
 Banzer v. Banzer 976 
 
 Baptist Ass'n v. Hart's Ex'rs 490 
 Bapt. Church v. Wetherell 69 
 
 Barb Wire Co. v. C. B. &. Q. R. 
 
 Co. 232 
 
 Barber v. Bowen 550 
 
 V. Brundage 1140, 1157, 1313 
 
 V. Gary 1224, 1230 
 
 V. Harris 977 
 
 V. Pittsburgh', etc. Railway 593, 
 
 694, 1266, 1258 
 
 V. Robinson 1363 
 
 V. Root 748 
 
 Barber's Settled Est. In re 1253 
 
 Barbour v. Barbour 663 
 
 V. De Forest 1288 
 
 V. Nichols 1491 
 
 V. Tompkins 1514 
 
 Barclay v. Abraham 306 
 
 V. Pickles 920 
 
 Barden v. Hartley 659 
 
 Bardon v. Land & River I. Co. 1432, 
 
 1489 
 
 Bardswell v. Bardswell 456 
 
 Bare v. Hoffman 268 
 
 Barford v. Street 694 
 
 Barker, In re 50 
 
 V. Barker 642 
 
 D. Hill 571 
 
 V. Pearce 1185, 1317 
 
 V. Richardson 207 
 
 Barkley v. Donnelly 479 
 
 V. Wilcox 240, 298, 301 
 
 Barksdale v. Garrett 723 
 
 Barkshire v. Grubb 174 
 
 Barkworth v. Young 439 
 
 Barlow v. Wainwright 925, 928 
 
 Barnaby v. Johnston 926 
 
 Barnard v. Adams 488 
 
 V. Campbell 678 
 
 V. Edwards 723 
 
 V. Gautz 450, 547, 553, 556 
 
 V. Godscall 871 
 
 V. Lloyd 181 
 
 V. Whipple 68 
 
 Barnard's Lessee v. Bailey 598 
 
 Barnes v. Barnes 327, 1468, 1470, 
 
 1474 
 V. Bartlett 1498 
 
 V. Boardman 1067, 1058 
 
 V. Hosmer 53 
 
 V. Light 1361, 1362, 1363 
 
 Barnes v. Lynch 971 
 
 V. Midland R. T. Co. 297 
 
 V. Munro 514 
 
 V. Raper 668, 669 
 
 V. Thuet 506, 517 
 
 Bamet's Appeal 461 
 
 Barnet v. Proskauer 1483 
 
 Barnett v. Barnett 1182 
 
 V. Shackleford 1481 
 
 Barney v. Bolt 997 
 
 V. Keokuk 58, 242, 297 
 
 V. Pike 985, 986, 
 
 Bamhart v. Campbell 971 
 
 Barnitz's Lessee v. Casey 1252 
 
 Bams V. Wilson 823 
 
 Bamsdall v. Boley 662 
 
 Bamum v. Bamum 1273 
 
 V. Fitz Patrick 845 
 
 V. Phenix 1062 
 
 Barr v. Galloway 640 
 
 V. Gratz 381, 963 
 
 V. Schroeder 1388, 1475 
 
 Barraclough v. Johnson 223 
 
 Barren v. Joy 436, 439 
 
 Barrett v. Boddie 860, 855 
 
 V. Cox 933 
 
 V. Failing 662 
 
 V. Greenwood Cem. Ass'n 299 
 
 V. Hinckley 1060, 1058, 1069 
 
 V. Marsh 457 
 
 V. Rockport Ice Co. 59 
 
 V. Stradl 776 
 
 Barroilhet v. Hathaway 1671 
 
 Barron v. Barron 472, 518, 748, 749 
 
 Barrow v. Greenbough 636 
 
 1). Isaacs 868 
 
 V. Rhinelander 640 
 
 V. Richard 160, 185, 186 
 
 Barrs v. Fewkes 526 
 
 Barry v. Adams 1374, 1376 
 
 V. Colville 961 
 
 V. Coombe 1463 
 
 V. Edlavitch 288, 289, 292 
 
 V. Hamburg-Bremen Fire 
 
 Ins. Co. 1048 
 
 V. Merchants' Exchange 
 
 Co. 1461 
 
 Barson v. Mulligan 896, 900, 911, 
 
 948, 949, 971, 1032, 1063 
 
 Bartholf V. Bensley 1061 
 
 Bartholomew v. West 757 
 
 Bartlett, Petitioner 480 
 
 V. Bangor 224 
 
 V. Drake 1463 
 
 V. King 478 
 
 V. La Rochelle 1500 
 
 V. Pickersgill 507, 508, 510 
 
 V. Remington 426 
 
 V. Sanborn 1033 
 
 V. Tinsley 642, 669 
 
 V. Van Zandt 662 
 
 Barton v. McGrader 669 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 XIX 
 
 Barwiok v. Moyse 565 
 
 V. Thompson 895 
 
 Bascom v. Albertson 477, 491, 498, 
 
 499, 500 
 
 V. Cannon 178 
 
 Basford v. Pearson 1438 
 
 Basket v. Mass. 541, 1551 
 
 Baskin v. Baskin 1551 
 
 V. Huntington 1571 
 
 Bass V. Edwards 177, 181 
 
 V. Gregory 194, 277 
 
 Bassett ■». Bassett 1440 
 
 V. Messner 758 
 
 V. Nosworthy 412, 559, 561, 576, 
 
 577, 579 
 
 V. Shoemaker 548, 549 
 
 V. Spofford 519 
 
 Bassler v. Rewodlinski 956, 957, 978 
 
 Batavia v. Wallace 564, 574 
 
 Batavia M. Co. v. Newton W. 
 
 Co. 1519 
 
 Batchelder v. ffibbard 321, 324, 328 
 
 V. Sturgis 1528 
 
 V. Brereton 1142, 1227, 1456 
 
 Bates V. Bates 683 
 
 V. Conrow 611 
 
 V. Donaldson 816 
 
 V. Holbrook 601 
 
 V. Norcross 1491, 1492 
 
 17. Salt Springs Nat. Bank 1576 
 
 V. Shroeder 786 
 
 V. Lidgerwood Mfg. Co. 438, 495 
 
 V. Virolet 1516, 1517 
 
 V. Westborough 302 
 
 Bath Gas L. Co. v. Claffy 125 
 
 Bath's Case, Earl of 532 
 
 Batstone v. Salter 512 
 
 Batt V. Kelly 289 
 
 Batterman v. Albright 29, 61, 62, 
 
 63, 65 
 
 Baum V. Grigsby 1039, 1040 
 
 V. Raley 1078 
 
 V. Tomkin 1049 
 
 Bauman v. Boeckeler 223, 225 
 
 Baumann v. Guion 975 
 
 Baumer v. Antiau 916 
 
 Baxter v. Bradbury 1348 
 
 V. Taylor 268 
 
 V. Wilson 1514 
 
 Bay V. Coddington 578 
 
 Bayley v. Bailey 1076 
 
 V. Greenleaf 578 
 
 ■ Baylor 1). Decker 308 
 
 Baynes & Co. v. Lloyd & Sons 827 
 
 Bazille v. Murray, 1360-1362 
 
 Beach Avenue, Matter of 225 
 
 Beach v. Cooke 1100 
 
 V. Grain 830 
 
 V. Nixon 814, 819, 885, 886, 887, 
 
 910, 1024 
 
 V. W. & W. R. Co. 231 
 
 V. Whittlesey 1500 
 
 Beadles v. Smyser 1339 
 
 Beahan v. Stapleton 1504 
 
 Beal V. Boston Spring Car Co. 
 
 128, 915 
 
 V. Harrington 1039 
 
 V. Stevens 1100 
 
 V. Warren 763 
 
 Beale v. Case 186 
 
 Beaman v. Russell 1441 
 
 Bean v. Coleman 247 
 
 V. French 164, 166 
 
 V. Mayo 1528 
 
 Bear v. Snyder 690 
 
 Beard v. Knox 703 
 
 V. Murphy 301 
 
 V. Rowan 826 
 
 Beardslee v. Beardslee 717 
 
 Beardsley D. Hotchkiss 751,1181, 
 
 1235, 1252, 1280 
 
 Bearss v. Ford 1047 
 
 Beasley v. Bray 663, 564 
 
 Beatie v. Butler 1078 
 
 Beattie v. Hulse 45 
 
 Beatty v. Clark 1229 
 
 V. Gregory 329 
 
 V. Mason 1432 
 
 Beaty v. Bordwell 972, 990 
 
 Beaudely v. Brooks 414 
 
 Beaufort v. Collier 473 
 
 Beauman v. Whitney 1454 
 
 Beaumont v. Oliveira 480 
 
 Beavan v. Went 1448 
 
 Beaver v. Beaver 442 
 
 V. Slanker 1085 
 
 Beaver Brook Reservoir Co. v. 
 
 St. Vrain Reservoir Co. 258 
 
 Beavers v. Smith 694, 698 
 
 Becar v. Flues 800, 840, 844, 845, 920 
 Bechtel v. Barton 715 
 
 Beck, Matter of 1553 
 
 V. L. N. O. & T. R. Co. 324 
 
 V. Rebow 39 
 
 Becker v. Becker 1282 
 
 V. Chester 1264, 1265, 1277 
 
 V. St. Charles 223 
 
 Beckett v. Allison 620 
 
 Beckford v. Beckford 612 
 
 V. Pamecott 920, 1560 
 
 Beckham v. Drake 920 
 
 Beckley v. Schla^ 643 
 
 Beckman v. Davidson 1603 
 
 Beckwell v. Lancaster Ins. Co. 661 
 Beddoe v. Wadsworth 835, 1523 
 
 Bedell v. Village of Sea CUff 302 
 
 Bedford v. Terhune 832, 837, 868, 
 870, 881, 913, 918 
 Bedlow V. New York Float- 
 ing Dry Dock Co. 832, 886, 
 901 
 V. Stillwell 683 
 
 Beebe v. Coleman 808, 871 
 
 V. Estabrook 1321 
 
XX 
 
 TABLE OP CASES CITED. 
 
 
 [References 
 
 Beebee v. Griffing 
 
 1312 
 
 Beech v. Keep 
 
 443 
 
 Beecher v. Baldy 
 
 760 
 
 V. Ferris 
 
 1342 
 
 V. Wilson & Co. 
 
 508 
 
 Beedle v. Crane 
 
 554 
 
 Beekman v. Bonson 
 
 465, 498 
 
 V. Frost 
 
 1472, 1489 
 
 V. Saratoga, etc. R. Co. 228, 
 
 229 
 
 Beeler v. Cordwell 889 
 
 Beers v. Beers 666, 1142 
 
 V. St. John 784 
 
 Beetson v. Stoops 739 
 
 Begole V. Hazzard 437 
 
 Beidler v. Crane 563 
 
 Beinstein v. Neales 1051 
 
 Belcher v. Burnett 1189, 1190 
 
 Belden v. Seymour 1530, 1636 
 
 1639 
 
 V. Union Warehouse Co. 837 
 
 Belding v. Frankland 578 
 
 Belford D. Crane 513 
 
 Belfour v. Weston 821, 855 
 
 Belk V. Gillespie 1257 
 
 V. Hamilton 237 
 
 V. Meagher 314, 318 
 
 Belknap v. Trimble 199, 200, 305 
 
 Bell V. Adams 1356 
 
 V. American Protective 
 
 League 870 
 
 V. Burlington 224 
 
 V. Campbell 544 
 
 V. Farmers' Bank 1474 
 
 V. Hayes 1340, 1342 
 
 V. Kennedy 1438 
 
 V. Marsh 1341 
 
 V. Mayor 717 
 
 V. Midland R. Co. 268 
 
 V. Scammon 1392 
 
 V. Twilight 1237 
 
 V. Wardwell 220 
 
 V. Woodward 1512 
 
 Bell Mining Co. v. Butte Bank 1077 
 
 Bella's Estate, In re 596 
 
 Bellasis v. Burbrick 843 
 
 V. Compton 436 
 
 Bellefontaine Imp. Co. v. Nied- 
 
 ringhaus 1332 
 
 Bellew V. Russell 553 
 
 Bellinger, In re 1227 
 
 BelUs V. Bellis 1367 
 
 Bellows V. McGinnis 767 
 
 Belmont v. O'Brien 466, 581 
 
 Belt V. Simkins 780 
 
 Bemis v. Wilder 866, 867 
 
 Benbow v. Townsend 436 
 
 Benedict v. Amoux 673, 581 
 
 V. Barling 183 
 
 V. Luckenbach 50 
 
 V. Morse 941 
 
 V. Pincus 812 
 
 are to pages.] 
 
 Benedict v. Torrent 971 
 Bender v. Terwilliger 649, 998, 1006 
 
 Benfey v. Congdon 945 
 
 Benham v. Minor 248 
 
 V. Potter 273 
 
 Benjamin v. American Tele- 
 phone & Telegraph Co. 971 
 
 V. Benjamin 932 
 
 Benner v. Bailey 1468 
 
 .Beimeson v. Aiken 1350 
 
 V. Savage ■ 1221 
 
 Bennet v. Davis 458, 472, 642 
 
 Bennett v. Aburrow 1237 
 
 V. Austin 876 
 
 V. Bates 1102 
 
 V. Child 977, 979 
 
 V. Culver 1389 
 
 V. Garlock 496, 497 
 
 V. Gray 883 
 
 V. Harper 50 
 
 V. Hibbert 1448 
 
 V. Holbech 957 
 
 V. Jenkins 1533 
 
 V. Judson 534 
 
 V. Long Is. R. Co. 229 
 
 V. Pierce 963 
 
 V. Stevenson 1079 
 
 Bennock v. Whipple 946 
 
 Benscotter v. Green 446 
 Benson v. Corbin 1170, 1194, 1195 
 1259, 1332 
 
 V. Morrow 69 
 
 V. Scot 702 
 
 V. Whittam 457 
 
 Bentham v. Smith 1229 
 
 Bentley v. Callaghan 963 
 
 Berberet v. Berberet 547 
 Bergen v. Bennett 1211, 1212, 1213, 
 1216, 1240 
 
 Berger v. Hoemer 38, 42 
 Bergh v. Herring-Hall-Marvin 
 
 S. Co. 43 
 
 Bergland v. Frawley 845 
 
 Bergman v. Klein 1527 
 
 Bennger v. Lutz 507, 610 
 
 Bernard v. Bougard 610 
 
 V. Jersey 1073 
 
 Bernhardt v. Lymbumer 1088 
 
 Bemheimer v. Adams 43 
 
 Bemier v. Bemier 1408, 1413 
 
 Bernstein v. Hiunes 1374, 1514 
 
 V. Meech 828 
 
 u. Nealis 1343 
 
 Berrey v. Lindley 925 
 
 Berridge v. Glassey 1617 
 
 Berridge v. Ward 1608 
 
 Berriman v. Peacock 782 
 
 Berrington v. Casey 844 
 
 Berry v. Billings 1516 
 
 V. Mutual Ins. Co. 873, 874 
 
 V. Todd 283 
 
 Bertie v. Flagg 857 
 
TABLE OP CASES CITED. 
 [Beleiences are to pages.] 
 
 XXI 
 
 Bertles v. Nunan 749, 751, 753, 955, 
 975, 976, 977, 978, 979, 1446, 1447 
 
 Bertram v. Curtis 294 
 Bessemer L. & I. Co. v. Jenkins 70 
 
 Best V. Jenks 663 
 
 V. Zeh 997, 1006 
 Betjemann v. Brooklyn Union 
 
 El. R. Co. 246 
 
 Betts V. Badger 251 
 
 V. Betts 1107 
 
 Beuerlien v. O'Leaiy 563 
 
 Beurhaus v. Cole 480 
 
 Beveridge v. Schultz 238 
 
 Beverlin v. Casto 1516 
 
 Beverly v. Burke 1361 
 
 Beyer v. Le Fevre 1458 
 
 Bibb V. Thomas 1555 
 
 Bickel's Appeal 507 
 
 Bickett V. Morris 58 
 
 Bickford v. Page 1525 
 
 Bickmore v. Dimmer 862 
 
 Biddle v. Hussman 854 
 
 Bidwell V. Greenshield 722 
 
 V. Whitaker 1569 
 
 Bigelow V. Bush 1123 
 
 V. Cady 1273 
 
 V. Cassidy 565 
 
 V. Hoover 1331 
 
 V. Hubbard 1528 
 
 V. Shaw 57, 58, 59 
 
 V. Stilphens 1439 
 
 V. Wilson 1050 
 
 Biglow V. Biglow 881, 901, 997, 998 
 
 1375 
 V. Gillott 1556 
 Bill V. Cureton 449 
 Billings V. McDermott 1431 
 V. Russell 563 
 V. Taylor 684, 693, 781 
 Billingslea v. Ward 440 
 Bimson v. Bultman 190 
 Bindrim v. Ullrich 1284 
 Bingham, Matter of 1044, 1427 
 V. Bingham 536 
 V. Kirkland 1339, 1350 
 V. Saleme 308 
 Bingham's Appeal 1235 
 Binkley v. Forkner 33, 35 
 Birch V. Linton ' 1444 
 Birch- Wolfe v. Birch 787 
 Bircher v. Parker 42, 1568 
 Birckhead v. Cimimins 800, 807 
 Bird V. Decker 1465 
 V. Higginson 1385 
 V. Merklee 499, 500 
 Birdsall v. Grant 594 
 V. Russel 1490 
 Birke v. Abbott 1104 
 Birmingham v. Allen 285 
 V. Kirwan 739, 741 
 Birmingham Canal Co. v. Cart- 
 wright 1262, 1266 
 
 Birmingham, etc. R. Co. v. 
 
 Bessemer 222 
 
 Bishop II. Bishop 1562 
 
 ■0. Elliott 22, 39 
 
 V. Howarth 1044 
 
 Bissell V. Grant 247 
 
 V. N. Y. C. R. Co. 222, 272 
 
 Bissing v. Smith 1375 
 
 Bisson V. West Shore R. Co. 592, 
 
 593, 1308 
 
 Bitter v. Jones 516 
 
 Bittinger v. Baker 771 
 
 Bixler v. Saylor 1386 
 
 Bjmerland v. Eley 1474 
 
 Black w.Botts 1514 
 
 V. Elkhom M. Co. 318, 319, 684 
 
 V. Shreve 1471 
 
 Blackburn v. Blackburn 1163 
 
 V. Stables 431 
 
 V. Vigors 573 
 
 Blackbume v. Hope-Edwardes 136, 
 
 137 
 
 Blackman v. Fysh 1168 
 
 V. Halves 237 
 
 V. Reilly 273 
 
 V. RUey 1507, 1508 
 
 Blackmore v. Boardman 837 
 
 Blacksmith v. Fellows 1387 
 
 Blackstone Bank v. Davis 425 
 
 Blackwell v. Blackwell 1475 
 
 V. Broughton 757 
 
 Blagge V. Miles 1237, 1238 
 
 Blagrave v. Hancock 432 
 
 Blaine v. Ray 250 
 
 Blair v. Chicago 230, 1452 
 
 V. Claxton 129, 853 
 
 V. McDonell 1475 
 
 V. Osborne 1516 
 
 V. White 636, 1058, 1455 
 
 Blaisdell v. Leach 1475, 1498 
 
 Blake v. State Sav. Bk. 521 
 
 V. Traders' Bank 1084 
 
 V. Tucker 1344, 1346, 1351 
 
 Blakely v. Sharp 171 
 
 Blakeslee v. Sincepaugh 1340 
 
 Blakslee v. Com'rs of Land 
 
 Office . 1330 
 
 Blanchard v. Baker 250 
 
 V. Blanchard 1163 
 
 V. Bridges 207, 266 
 
 V. Brooks 1164, 1350 
 
 V. ElUs 1339, 1348 
 
 V. Moulton 203 
 
 V. Potter 297 
 
 V. Savarese 283 
 
 Blanchet v. Foster 567 
 
 Blanck v. Sadlier 1081 
 
 Blancy v. Bearce 1050 
 
 Bland v. Lipscombe 220 
 
 Blandford v. Fackerell 483 
 
 Blane, Ex parte 520 
 
 Blass V. Terry 1103 
 
xxu 
 
 Blatchford v. Newberry 1194 
 
 Blauvelt v. Gallagher 1255 
 
 Blazy V. McLean 1042 
 
 Bleakley v. Sullivan 882 
 
 Blenkinsopp v. Blenkinsopp 562, 
 
 567 
 
 Blessing v. House's Lessee 1497 
 
 Blewitt V. Boonim 1462, 1471 
 
 Blickley v. Luce 908 
 
 Blight V. Rochester 345, 895 
 
 Blinkhom v. Feast 522 
 
 Blinn v. Schwartz, 801, 1388, 1445 
 
 Bliss V. Amer. Bible Soc. 478 
 
 V. Collins 131 
 
 V. Gardner 880 
 
 V. Greeley 302, 303 
 
 V. Johnson 889, 950, 1366 
 
 V. West 567, 1470 
 
 Blodgett V. Hildreth 437, 511, 960 
 
 V. Moore 1558 
 
 Blomstrom v. Dux 1040 
 
 Blood V. Blood 669 
 
 V. Goodrich 1464 
 
 V. Light 1575 
 
 Bloodgood ■«. Ayers 240, 302 
 
 V. Mohawk & H. R. Co. 232 
 
 Bloomer v. Waldron 1226, 1239 
 
 Blum V. Keyser 1571 
 
 V. Robertson 937 
 
 1). Weston 17 
 
 Blumberg v. Beekman 1035 
 
 Blumenburg v. Myres 946 
 
 Blumenthal v. Blumingdale 806, 
 
 807 
 Blumenthal Bros. v. Culver 959, 
 
 960 
 Bly V. Edison Electric Ilium. Co. 214 
 Blydenburgh v. Northrop 680, 718 
 Blygh V. Samson 535 
 
 Blystone v. Blystone 565 
 
 Board of Street Opening, Matter 
 
 of - 978 
 
 Board of Comm'rs of Town of 
 
 Tarboro v. Micks 1091 
 
 Board of Comm's v. Babcock 1490 
 Board of Education v. Franklin 1133 
 Board of Health v. Valentine 905 
 Board of Trade Tel. Co. v. Bar- 
 
 nett 233 
 
 Board of Trustees, etc. v. Camp- 
 bell 1464 
 Boardman v. Larrabee 1104 
 V. Reed 1512, 1514 
 V. Willard 443 
 Boatman v. Lasley 215, 242, 243 
 Bobb V. Bamum 1455 
 V. Bobb 526 
 V. Wolff 1035 
 Bockover v. Post 883 
 Bodfish V. Bodfish 197 
 Boerum v. Schenck 548 
 Boese v. King 495 
 
 TABLE OP CASES CITED. 
 ^ [References are to pages.] 
 
 Bogan V. Swearingen 
 
 1471 
 V. Mortgage do. 1408 
 
 Bogardus v. Trinity Church 669 
 
 Bogart V. Perry 1572 
 
 Bogert V. Bliss 1099 
 
 Boggs V. Anderson 574 
 
 Bogk V. Gassert 1034, 1036 
 
 Bohn V. Hatch 54, 55, 776, 1340 
 
 V. Met. El. R. Co. 231 
 
 Bohannon v. Combs 712 
 
 V. Hough 1468 
 
 Boies V. Benham 643, 678, 679, 680, 
 1038, 1058, 1070 
 Boist V. Empie 165 
 
 Bokee v. Walker 530 
 
 Boland v. St. John's Schools 244, 269 
 Bolden v. Sherman 1512 
 
 Boling V. Clark 663 
 
 Bolivar Mfg. Co. v. Neponset 
 
 Mfg.Co. ■ 206 
 
 BoUes V. Duff 611, 693, 695, 1033, 
 
 1115, 1117 
 
 V. State Trust Co. 412 
 
 Bolton V. Bolton 173, 174, 177, 181 
 
 Boltz V. Stotz 664 
 
 Bond V. Fay 1514 
 
 V. Godsey 776 
 
 V. Moore 523 
 
 V. Wilson 1486 
 
 Bonelli v. Blakemore 176 
 
 Bonetti v. Treat 871 
 
 Bonfoey v. Bonfoey 660, 663 
 
 Bonne v. Lynde 1087 
 
 Bonnett v. Sadler 778, 882 
 
 Boimer v. Peterson 687 
 
 Bonney v. Foss 54 
 
 V. Greenwood 262, 294 
 
 Bonsteel v. Sullivan 565 
 
 Boody V. McKenney 1445 
 
 Booker v. Anderson 538 
 
 V. Tarwater 1456 
 
 Bookman v. N. Y. El. R. Co. 231 
 
 Bool V. Mix 554, 801, 1442, 1443, 
 
 1444 
 
 Boone v. Clark 820, 1018 
 
 V. Stover 809 
 
 Boordem v. Morris 856 
 
 Boorum v. Tucker 679, 711, 1070 
 
 Booth V. Baptist Church 1183 
 
 V. Booth 452 
 
 V. Fordham 1006 
 
 V. R. W. & O. T. R. Co. 601 
 
 V. Starr 1539 
 
 Boraston's Case 812, 1115, 1160,' 
 
 1172 
 Borchard v. Eastwood 1498 
 
 Borcherling v. Katz 125, 882 
 
 Borden v. Jenks 745 
 
 V. Vincent 206 
 
 V. White 544 
 
 Boreel v. Lawton 826, 846, 850, 896 
 Borie V. Satterthwaite 571 
 
TABLE OF CASES CITED. 
 [Beferences are to pages.} 
 
 XXIU 
 
 Bork V. Martin 436, 515, 558 
 
 Borland v. Nichols 745 
 
 Borland's Lessee v. Marshall 639, 
 
 641 
 Borough of Verona v. A. R. R. 
 
 Co. , 218, 223 
 
 Borst 11. Empie 308 
 
 V. Empire 244 
 
 Borup, Matter of 229 
 
 Bosley v. Bosley 29 
 
 Boss V. Ewing 1040 
 
 Bostick V. Blades 1012, 1013 
 
 Bostleman v. Bostleman 506 
 
 Boston V. Richardson 1503, 1506, 
 
 1509 
 
 V. Solberg 947 
 
 V. Worthington 1536 
 
 Boston Bank v. Chamberlin 1442 
 
 Boston B. S. U. v. Trustees of 
 
 Boston Univ. 186 
 
 Boston C. & M. R. Co. v. Gil- 
 more 57 
 Boston Water Power v. B. & 
 
 W. R. Co. 228 
 
 Boston Water Power Co. v. Bos- 
 ton 1501 
 Bostsford V. Burr 507 
 Bostwick V. Atkins 555, 1444 
 V. Beach 712, 1226, 1230 
 V. Frankfield 912, 913, 918 
 V. Leach 64 
 V. McEvoy 1471 
 V. Williams 1532 
 Boswell V. Coaks 550 
 V. Goodwin 1097 
 Bosworth V. Hopkins 511, 514 
 Botsford V. Beers 562 
 V. Burr 610, 526 
 Boulton V. Crowther 280 
 Boults V. Mitchell 1499 
 Bouquet v. Heyman 563, 564 
 Boutelle v. City Sav. Bk. 1180, 
 1212 1222 
 Bouton V. Thomas 787, 846 
 V. Welch 1372 
 Bouvier v. Bait. & O. R. Co. 995, 
 
 1018 
 
 Bovey V. Smith 576 
 
 Bowden v. Lewis 278 
 
 Bowditch V. Andrews 463 
 
 Bowen, In re 1273 
 
 V. Anderson 923, 929, 930, 946 
 
 V. Bowen 593, 620 
 
 V. Beck 1403, 1463 
 
 V. Brogan 773, 774 
 
 V. Clarke 919 
 
 V. Conner 167, 216, 242, 272 
 
 V. Haskell 918 
 
 V. Lingle 671 
 
 V. Phinney 1578 
 
 V. Prout 1497 
 
 V. Swander 965 
 
 Bowen v. Sweeney 
 
 
 997 
 
 Bower v. Hodges 
 
 
 822 
 
 V. Peate 
 
 
 294 
 
 Bowers v. Johnson 
 
 
 1038 
 
 V. Suffold Mfg. 
 
 Co. 
 
 268 
 
 Bowler v. Curler 
 
 
 527 
 
 Bowles' Case 
 
 628, 779, 
 
 1187 
 
 Bowles, In re 
 
 1264, 
 
 1281 
 
 Bowling 1). Crook 
 
 
 912 
 
 Bowlsby V. Speer 
 
 240, 301 
 
 ,302 
 
 Bowman v. Wettig 
 
 
 1431 
 
 Bowne v. Deacon 
 
 
 306 
 
 Boyce v. Brown 
 
 
 203 
 
 V. Fisk 
 
 
 538 
 
 V. Grandy 
 
 631 
 
 ,533 
 
 V. Mis. Pac. R. Co. 193, 196, 209 
 
 Boyd V. Carlton ' 698 
 
 V. Fire Patrol 475 
 
 V. Hunter 683 
 
 V. McLean 507, 510, 511 
 
 V. Schlesinger 1042, 1488 
 
 13. Shaw 1117 
 
 V. Shorrock 27 
 
 Boyer v. Berryman 1446 
 
 V. East 554, 555 
 
 Boyers v. Newbanks 687 
 
 Boykin v. Rain 650 
 
 Boyle V. Boyle 451, 452, 453 
 
 V. Edwards 1538 
 
 V. Tamlyn 295 
 
 Boylston v. Wheeler 639, 640 
 
 Boynton v. Hubbard 540 
 
 Bozarth v. Largent 650, 652 
 
 Brace v. Duchess of Marlborough 1570 
 
 Brackett v. Baum 643, 678, 680, 716, 
 
 718, 1069, 1070 
 
 V. Goddard 63, 65 
 
 Bradbury v. Davenport 1076 
 
 V. Dumond 1361 
 
 ■u. Grimsel 207 
 
 V. Wright 123 
 
 Bradford v. Cressy 1502, 1506 
 
 V. Ferrand 303 
 
 V. Monks 1222 
 
 V. Pickles 240, 303 
 
 V. Randall 1465 
 
 Bradford Corp. v. Ferrand 300 
 
 Bradford E. & C. R. Co. v. N. Y. 
 
 L. E. & W. R. Co. 190 
 
 Bradfords v. Kents 744 
 
 Bradley v. Bailey 769 ^ 
 
 V. Covel 929 
 
 V. DeGoicouria ^ 856 
 
 V. Holdsworth 51 
 
 V. Lightcap 1060 
 
 V. Northern Bank of Ala- 
 bama 1465 
 V. Walker 1388, 1446, 1488 
 V. Wescott 1217 
 Bradley Fish Co. v. Dudley 206, 264 
 Bradner v. Howard 1343 
 V. Faulkner 61 
 
XXIV 
 
 TABLE OP CASES CITED. 
 [Bef erenceB are to pages.] 
 
 Bradstreet v. Clark 
 
 1010 
 
 V. Huntington 
 
 382, 1356 
 
 Bradt v. Church 
 
 126, 137 
 
 Brady v. McCosker 
 
 533 
 
 V. Smith 
 
 309 
 
 V. Waldron 
 
 1064 
 
 Bragdon v. Hatch 
 
 1120 
 
 Brahn v. Jersey City Forge Co. 810 
 Brainard v. Cooper 1072, 1073, 1123 
 V. Hudson 888 
 
 Brakley v. Sharp 157, 160, 243 
 
 Braman v. Bingham 1471 
 
 Bramberry's Estate 975 
 
 Bramblet v. Davis 1513 
 
 Bramblette v. Howard 1511 
 
 Bramhall v. Ferris 764, 766 
 
 Bramley v. Chesterton 948 
 
 Branch v. Doane 198 
 
 Brand v. McMahon 33 
 
 Brande v. Grace 275 
 
 Brandies v. Cochrane, 1572 
 
 Brandon v. Robinson 470, 1013, 1272 
 Brandt v. Church 901 
 
 V. Ogden 1367 
 
 Branham v. Record 534 
 
 Brannin v. Shirley 450 
 
 Brannon v. Brannon 1488 
 
 V. Vaughan 28 
 
 Brantingham v. Huff 1317, 1318 
 
 Branton v. Griffits 61 
 
 Brassington, Goods of 1023, 1025, 
 1265, 1266, 1277, 1281 
 Brattle Sq. Church v. Grant 587, 622 
 Bray v. Neill 745 
 
 Brayton v. Jordan 685 
 
 Brazier v. Glasspool 159, 169, 170, 
 
 174 
 Breakey v. Woolsey 1515 
 
 Brecknock Canal Co. v. Pritchard 855 
 Breed v. Gorham 1570 
 
 V. Ruoff lll7 
 
 Breeding v. Davis 650, 654, 651 
 
 Breese v. Bange 24 
 
 Breit v. Yeaton 1220 
 
 Bremer v. Manhattan R. Co. 203, 209 
 211, 246, 266 
 Brendle v. German Reformed 
 
 Cong. 482 
 
 Brennan v. City of N. Y. 925, 949 
 
 Brett V. Cumberland 871 
 
 Brevoort v. Brevoort 998, 1124 
 
 Brewer v. Brewer 1280 
 
 V. Browne 985 
 
 V. Hamor 1315, 1316 
 
 V. Marshall 1540, 1541 
 
 V. National Bldg. Ass. 914, 915 
 
 V. Stevens 800, 845 
 
 Brewster v. Bull 1254 
 
 V. Games , 1063 
 
 V. Hatch 558 
 
 V. Hill 265, 794 
 
 V. Kidgill 138 
 
 Brewster v. Kitchin 138 
 
 V. Rogers Co. 247, 298 
 
 V. Striker 495, 792 
 
 Brice V. Brice 544, 1475 
 
 Brick Pres. Church, Matter of 69 
 
 Bride V. Watt 1360 
 
 Bridge V. Os^om 51 
 
 V. Ward 766, 1572 
 
 V. Yates 958 
 
 Bridgeman v. Johnson 1121 
 
 Bridgeport v. N. Y. & N. H. R. 
 
 Co. 142, 145 
 
 Bridgeport Elec. & Ice Co. v. 
 
 Meader 50, 1043 
 
 Bridger v. Eierson 166, 1389 
 
 Bridges V. Pleasants 478 
 
 V. Purcell 327 
 
 V. Wyckoffv 222, 223 
 
 Bridgewater v. Bolton 594 
 
 Briggs V. Davis 496 
 
 V. Hannowald 1058 
 
 V. Hartley 478 
 
 V. Light-Boats 414 
 
 V. Penny 452, 454 
 
 V. Thompson 847 
 
 Brigham v. Overstreet 780 
 
 V. Shattuck 524 
 
 Bright V. Bright 448 
 
 V. Walker 194, 208 
 
 Bringlow V. Goodson 1243, 1244 
 
 Brinkham v. Jones 1063 
 
 Bristol V. Carroll Co. 1331, 1362 
 
 V. Hull 563, 564 
 
 Bristor V. Burr 889, 951 
 
 Bristow V. Boothby 1278 
 
 V. Warde 1279 
 
 Brittain v. McKay 60 
 
 Brittin V. Handy 990 
 
 Broadbent v. Ramsbotham 301, 303 
 
 Broadway Nat. Bk. v. Adams 470 
 
 Brock V. Brock 515 
 
 Broder v. Conklin 548 
 
 Broderick v. Broderick 633 
 
 Broiestedt v. South Side R. 
 
 Co. 1375 
 
 Brokaw v. Hudson's Ex'rs 1562, 1563 
 
 Brolasky v. Ferguson 831 
 
 Broman v. Young 792 
 
 Bromfield v. Crowder 739 
 
 Brondage v. Warner 294 
 
 Bronson v. Coffin 248, 295, 600, 
 
 1519, 1541 
 
 V. Rodes 1081 
 
 V. Strouse 482 
 
 Brook, Ex parte 45 
 
 V. Warde 1554 
 
 Brookes v. Drysdale 815 
 
 Brookfield, Matter of 159 
 
 Brookline v. Mackintosh 300 
 
 Brooklyn, etc. R. Co., Matter of 235 
 
 Brooklyn City Ry. Co. v. New 
 
 York 146 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 XXV 
 
 Brooklyn, Matter of City of 235 
 
 Brooks V. Belfast 1662 
 
 V. Berry 539 
 
 V. Brooks 638, 1516 
 
 V. Cedar Brook Imp. Co. 269 
 
 V. aty of Belfast 477 
 
 V. Curtis 288, 289, 290, 291, 292 
 
 V. Fowle 508 
 
 V. Galster 40, 65 
 
 V. Kip 1252 
 
 Brookville & M. H. Co. v. Butler 59 
 
 Brotherston v. Weathersby 508 
 
 Brough V. Higgins 776 
 
 Broughton v. Randall 675 
 
 Brouwer v. Jones 186 
 
 Brown's Estate, In re 519 
 
 Brown's Trust, In re 1228 
 
 Brown, Matter of 465, 496, 1161, 
 
 1162 
 V. Alabaster ' 175 
 
 V. Baker 471 
 
 V. Baraboo 976 
 
 V. Baron 679 
 
 V. Bates 988 
 
 V. Berry 180 
 
 V. Betts 889 
 
 V. Boquin 1362 
 
 V. Bowen 240, 268, 298, 1339, 
 1341 
 V. Bronson 682, 719 
 
 V. Brown 441, 1268, 1470, 1475. 
 1561 
 V. Burlingham 1315 
 
 V. Cairns 125, 816, 918, 919 
 
 V. Cherry 515 
 
 V. Chubb 1492, 1560 
 
 V. Clark 1558 
 
 V. Cole 1073 
 
 V. Concord 490 
 
 V. Cooper 973 
 
 V. Crump 781 
 
 V. Dickerson 1533 
 
 V. Doherty 1222 
 
 V. Fishel 1502, 1512 
 
 V. Freed 1445 
 
 V. Fulkerson 1189 
 
 V. Gumey 1411 
 
 V. Hager 1510 
 
 V. Hall 538 
 
 V. Heard 1508 
 
 V. Hobson 1513 
 
 V. Hodgdon 742 
 
 V. Hogle 959 
 
 V. Holyoke W. P. Co. 129, 826, 
 848, 849 
 V. Huger 1504 
 
 V. Jackson 1346 
 
 V. Jones 522 
 
 V. Keller 896, 899 
 
 V. King 382 
 
 V. Leach 534 
 
 V. Mason 1099 
 
 Brown v. Mayer 892, 1055 
 
 V. McCormick 927, 1477 
 V. McKee 291, 834, 1542 
 V. Meeting St. Baptist Soc. 492 
 
 V. Nickle 1042 
 
 V. Peck 541 
 V. Perry 452, 453, 456 
 
 V. Quintard 1268 
 
 V. Raindle 965 
 
 V. Reno Electric Co. 39 
 
 V. Richards 685 
 
 V. Richter 496 
 
 V. Roland 56 
 
 V. Samuels 808, 947 
 
 u. Simons 1084 
 
 V. Smith 941, 1073 
 
 V. South Boston Sav. Bk. 1064 
 
 V. Staples 1538 
 
 V. Starin 214 
 
 V. Thomdike 1555 
 
 V. Thurston 769, 935 
 
 V. Wadsworth 1177, 1180, 1181 
 
 V. Warren 1498 
 
 V. Webster 1537 
 
 V. Wellington 961, 962 
 
 V. Werner 292 
 
 V. Whitney 905 
 V. Williams 682, 719, 726 
 
 V. Windsor 282 
 
 Brown Oil Co. v. Caldwell 1511 
 
 Browne v. Warner 813 
 Brownell v. Old Col. R. R. Co. 148, 
 
 588 
 
 V. Palmer 217 
 
 Browning v. Sire 1081 
 
 Brownlie v. Campbell 533, 534 
 
 Brownlow v. Wollard 1475 
 
 Browns v. Combs 441 
 
 Brownson v. Henry 1042 
 
 V. Hull 975, 978 
 
 Brownsville v. Basse 1413 
 
 Broyles v. Waddel 776 
 
 Bruce v. Nicholson 1570 
 
 V. Osgood 993 
 
 V. Slemp 513 
 
 Brudin v. Inglis 1512 
 
 Brugman v. Noyes 862 
 
 Brumagim v. Bradshaw 1361, 1363 
 
 Brumback v. Brumback 962, 963 
 
 Brumfitt V. Roberts 67, 68 
 
 Brummel v. Macpherson 1016 
 
 Brundred v. Walker 1348, 1350 
 
 Brundy v. Mayfield 518 
 
 Bruner v. Briggs 649 
 
 V. Finley 551 
 
 Brunton v. Hall 245 
 
 Brush V. Wilkins 1559 
 
 Brustman v. Motrie 764 
 
 Bryan v. Batcheller 705 
 
 V. Brasius 1063 
 
 V. Uland 1387 
 
 V. Wash 1474 
 
XXVI 
 
 TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Bryan v. Winbum 
 
 897 
 
 Bryce v. Cayce 
 
 1365 
 
 V. McCaig 
 
 316 
 
 V. McNaughton 
 
 508, 559 
 
 Bryant v. Allen 
 
 509, 559 
 
 V. Hancock 
 
 862, 869 
 
 V. Lefever 
 
 274, 277 
 
 V. Peck & Co. 
 
 544 
 
 Biydges v. Brydges 
 
 441 
 
 Brydon v. Campbell 
 
 1489 
 
 Bubier v. Roberts 
 
 739, 753 
 
 Buchan v. Sumner 
 
 1571 
 
 Buchanan v. Ashdown 
 
 1340 
 
 V. Curtis 
 
 225 
 
 V. Logansport 
 
 158 
 
 V. Moore 
 
 1051 
 
 Buck V. Binninger 
 
 886 
 
 V. Lantz 
 
 738, 1160 
 
 V. Pickwell 
 
 63 
 
 V. Squires 
 
 1510, 1511 
 
 V. Swazey 
 
 510 
 
 V. Uhrich 
 
 518 
 
 V. Warren 
 
 509 
 
 Buckelew v. Snedeker 
 
 961 
 
 Buckingham v. Coming 540, 542, 
 
 1110 
 
 V. Jacques 1311 
 
 Buckland v. Pocknell 1040 
 
 Buckle V. Mitchell 561 
 
 Buckley v. Buckley 30, 45, 1174, 
 
 1297 1321 
 
 V. Doig 984, 985, 986 
 
 V. Duff 564 
 
 V. Frazier 1317 
 
 V. Kenyon 118 
 
 Bucklin v. Bucklin 1396 
 
 Buckworth V. Thirkell 646, 647, 1246 
 
 Bud C. & I. Co. V. Humes 557 
 
 Buddington v. Bradley 250 
 
 Budlong's Will, In re 556 
 
 Buehler v. McCormick 1061 
 
 V. Pierce 106Q 
 
 Buel V. Southwick 618 
 
 Buffalo V. N. Y. El. R. Co. 231 
 
 Buffalo Z. & C. Co. V. Crump 316, 
 
 318 
 
 Buffalo, etc. R. R. Co. v. Stigeler 1504 
 
 Buffinton v. Fall River 744 
 
 Buffners v. Lewis 961 
 
 Buffum V. Buffum 985 
 
 V. Harris 243, 302 
 
 Buford's Heirs v. McKee 448 
 
 Bughman v. Central Bk. 578 
 
 Building L. & W. Co. v. Fray 1531 
 
 Bulger V. Coyne 127, 818, 884 
 
 Bulkley v. Chapman 1059 
 
 Bulkley v. Wilford 534 
 
 Bull V. Bull 467, 1232 
 
 V. Oris wold 61 
 
 BuUard v. Briggs 662 
 
 V. Chandler 483 
 
 V. Harrison 178, 249 
 
 BuUen v. Runnels 20O 
 
 Bullene v. Haitt 1574 
 
 BuUenkamp v. Bullenkamp 516 
 
 BuUerdick v. Wright • 1237 
 
 Bullock V. Finch 692 
 
 V. Sadlier 577 
 
 Bultmann v. Kindelon 864 
 
 Bumpus V. Platner 576 
 
 Bunce v. Bunce 1316 
 
 V. Reed 1078 
 
 Bundy v. Bundy 458 
 
 Bunker v. Barron 1040 
 
 V. Locke 758 
 
 Bunn V. Winthrop 445, 448 
 
 Bunting v. Foy 671 
 
 Burbank v. Fay 203, 212 
 
 V. Pillsburyr 1528 
 
 Burbridge v. Marcy 1577 
 
 Burden v. Burden 1452 
 
 V. Sheridan 559 
 
 Burdett v. May 1371 
 
 V. Spilsbury 1225 
 
 Burdick v. Cheadle 906 
 
 Burdis v. Burdis 1012 
 
 Burfenning v. Chicago & St. 
 
 P. R. Co. 1413 
 
 Purge V. Smith 712, 713, 714, 1455 
 Burgess v. Muldoon 652 
 
 V. Wheate 408, 410, 413, 414 
 425, 1041 
 Burgner v. Humphrey 283 
 
 Burhans v. Vanzandt 773 
 
 Burhaus v. Hutcheson 639, 1061 
 
 Burk V. HoUis 42, 54 
 
 Burkam v. O. & M. R. Co. 232 
 
 Burkard v. Crouch 1340 
 
 Burke v. Callanan 509 
 
 V. Ireland 902 
 
 V. Roper 483 
 
 V. Tindale 845 
 
 V. Valentine 457 
 
 Burkhardt v. McClellan 1574 
 
 Burleigh v. Clough 833, 1255 
 
 Burlew v. Hunter 179, 181 
 
 Burlington & M. R. Co. v. Rein- 
 hackle 233 
 Bum V. Phelps 847 
 Burvaby v. Equitable, etc. 957, 965 
 Bumell V. Maloney 1368 
 Burnet v. Bumet 617, 681 
 Burnett v. Bealmear 578 
 V. Lynch 1404, 1463 
 V. Pratt 988 
 V. Rich 897 
 V. Scribner . 886, 888, 918 
 V. Wright 94, 1034, 1042, 1048, 
 1513 
 Bumette v. Young 1467 
 Bumham v. O'Grady 914 
 Burnhard & Son v. Curtis 801 
 Bums V. Bryant 931, 932, 937, 938, 
 
 946 
 
TABLE OP CASES CITED. 
 [References are to pages,] 
 
 Bums V. Gallagher 169, 175 
 
 V. Keas 758 
 
 V. Lynde 663, 1356, 1438, 1440 
 
 V. Thompson 
 
 V. Travis 
 Bumside v. Terry 
 
 V. Twitchell 
 Burr V. Leicester 
 
 V. Palmer 
 
 V. Smith 
 Burrage, In re 
 Burrall v. Bender 
 Burrell v. Bull 
 Burrill v. Boardman 
 
 980, 981 
 
 1557 
 
 760 
 
 31 
 
 279 
 
 1429 
 
 490, 1515, 1532 
 
 467 
 
 718, 1052 
 
 960 
 
 485 
 
 V. S. N. Wilcox Lumber Co. 1933 
 
 Burris v. People's Ditch Co. 250 
 
 Burrows, In re 1185 
 
 V. Gallup 1367 
 
 V. Richards 1539 
 
 Burrowes v. Gradin 927 
 
 Burt V. Devery 1061 
 
 V. Herron 457 
 
 Burton v. Barclay 914 
 
 V. Marx 226 
 
 1). Le Roy 1468 
 
 V. Reeds 1348 
 
 V. Smith 875, 1423 
 
 Burwell v. Hobson 160, 171 
 
 Bury V. Young 1471, 1472 
 
 Buschman v. St. Louis 223 
 
 Bush V. Bradley 641 
 
 V. Golden 574 
 
 V. Roberts 575 
 
 V. Stanley 511, 513 
 
 Bush's Appeal 461 
 
 Bushfield v. Meyer 1079 
 
 Bustard's Case 728 
 
 Buszard v. Capel 151 
 
 Butcher v. Butcher 942, 1233 
 
 Butler & Baker's Case 1472, 1473 
 
 V. Drake 1361 
 
 V. Duncan 539 
 
 V. Fitzgerald 719, 1423 
 
 V. Frontier Tel. Co. 113 
 
 V. Kidder 857 
 
 V. Manny 821 
 
 V. Rutledge 608 
 
 V. Trustees 502 
 
 Butt V. EUett 128, 877 
 
 V. Imperial Gas Co. 278 
 
 V. Napier 158 
 
 Buttenuth v. St. Louis Bridge 
 
 Co. 1330 
 
 Butterfield v. Beall 1464, 1465 
 
 V. Reed 258 
 
 Butterworth v. Crawford 172 
 Buttlar V. Rosenblath 749, 975, 978 
 
 Button V. Ely 863 
 
 Buttrick v. Tilton 1497 
 
 Butts V. Dean 1040 
 
 V. Trice 736 
 
 Buzard v. Houston 532 
 
 Buzby's Appeal 
 Buzzell V. Cummings 
 
 V. Gallagher 
 
 V. Still 
 Byers v. Byers 
 
 V. Femer 
 
 V. France 
 
 V. Locke 
 
 V. Surget 
 Bynum v. Hewlett 
 Byrne v. Farmington 
 Byrnes v. Stilwell 1157, 
 
 V. Volz 
 
 \ 
 
 XXVU 
 
 1172 
 
 36 
 
 993 
 
 1107 
 
 993 
 
 511 
 
 739, 1161 
 
 1458 
 
 537, 538 
 
 1361 
 
 301 
 
 1170, 1190, 
 
 1195 
 
 565 
 
 Cabell V. Grubbs 1482 
 
 Cabot V. Kingman 279, 284 
 
 Cadell V. Pahner 627, 1261, 1265, 
 
 1267 
 
 V. Wilcocks 1557 
 
 Cadmus v. Fagan 1528 
 
 Cadogan v. Kennett 562 
 
 Cadwalader v. Bailey 216, 242, 243, 
 
 309 
 Cady V. Purser 1490 
 
 V. Springfield Waterworks 
 
 Co. 243 
 
 Cager, Matter of 1188 
 
 Cagger v. Lansing 394 
 
 Cagle V. Parker 1466 
 
 Cahen v. Brewster 1580 
 
 Cahill V. Russell 1215 
 
 u. Wilson 759 
 
 Cahoon v. Bayard 159 
 
 V. Coe 1431 
 
 Cain V. Cain 962 
 
 Cairns v. Chabert 775 
 
 Calatro v. Chabut 1513 
 
 Calder v. Chapman 1339, 1350 
 
 Caldwell v. Center 1500 
 
 V. Fulton 311, 312, 1499 
 
 V. Slade 903, 1501 
 
 V. Williams 447, 448 
 
 Calhoun v. Faraldo 1507 
 
 V. McLendon 757 
 
 V. Williams 756 
 
 Calhoun Gold M. Co. v. Ajax 
 
 Gold M. Co. 318 
 
 Callahan v. O'Brien 1449 
 
 V. Nelson 712 
 
 Callaway Co. v. NoUey 226 
 
 Callender v. Marsh 280 
 
 Calvert v. Aldrich 973 
 
 V. Rice, 91 Ky. 781 
 
 Calvo V. Da vies 1103 
 
 Camardella v. Schwartz 442 
 
 Cambridge Valley Bk. v. Delano 575 
 Cameron v. Crowley 1233 
 
xxvm 
 
 TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Cameron v. Gray 1469 
 
 Cameron Tobin Baking Go. v. 
 
 Tobin 867 
 
 Camden & Atlantic Land Go. v. 
 
 Lippincott 1330, 1331 
 
 Camp V. Bates 787 
 
 V. Whitman 183 
 
 Campau v. Detroit 217 
 
 Campbell's Case 131 
 
 Campbell's Estate, In re 1281 
 
 Campbell, Matter of 1560 
 
 V. Beaimiont 773, 1195 
 
 V. Brown 458 
 
 V. CaUfomia ■ 1580 
 
 V. Campbell 676, 894, 896, 899, 
 
 1050, 1101 
 
 V. Garrath 1497 
 
 V. City of Kansas 1502 
 
 V. Dearborn 1035 
 
 V. EUwanger 661, 662, 725, 
 
 1070, 1075, 1110 
 
 V. Foster Howe Ass'n 1226 
 
 V. Hart 895, 896 
 
 V. Holt 101 
 
 V. Kansas City 488 
 
 V. Leach 1213, 1228 
 
 V. Lewis 837 
 
 V. Loder 37 
 
 V. McBee 652 
 
 V. McCoy 1\58 
 
 V. Mesier 287, 292, 293, 972, 990 
 
 V. Murphy 696, 698 
 
 V. Proctor 935, 936 
 
 V. Rawdon 1185 
 
 V. Roddy 19, 35, 36, 55 
 
 V. Seaman 42 
 
 V. Stokes 997, 1157, 1163 
 
 V. Walker 548, 649 
 
 V. Wilson ' 209 
 
 Canabeer v. N. Y. C. & H. R. 
 
 R. Co. ' 258 
 
 Canal Appraisers, The 297 
 
 Canby's Leasee v. Porter 650 
 
 Candee v. Hayward 1378 
 
 Canfield v. Andrews 299 
 
 Canning v. Pinkham 1475 
 
 Cannon v. Barry 787 
 
 V. Hare 45 
 
 V. Ryan 947 
 
 V. Stockmon 1355 
 
 Gapen v. Peckham 12, 23 
 
 Gapers v. McKee 249 
 
 u. Wilson 177, 181 
 
 Gaperton v. Stege 42 
 
 Capital aty Ins. Go. i;. Caldwell 12 
 Carbonic Acid Gas Go. v. Gey- 
 sers Gas Co. 180 
 Carbrey v. Willis 175, 1506 
 Care v. Keller 723 
 Carey v. Rae 179 
 V. Rawson 1037 
 Cargar v. Fee 202 
 
 Carin v. Gleason 
 Carleton v. Darcy 
 
 V. Redington 
 Carley v. Graves 
 Garli V. V. D. Go. 
 Carlin v. Chappel 
 
 V. Ritter 
 Carlisle v. Cooper 
 Carllee v. EUsberry 
 Carlton v. Blake 
 
 V. Carlton 
 
 V. Jackson 
 Carlyon v. Lovering 
 Carmine v. Bowen 
 Gamall v. Wilson 
 Carney v. Gain 
 
 519 
 
 884 
 
 323 
 
 518, 519, 520 
 
 233 
 
 284 
 
 44 
 
 197, 266, 269 
 
 1517 
 
 291, 292 
 
 1552 
 
 681 
 
 211 
 
 769 
 
 464, 660 
 
 430 
 
 Carolina R. Co. v. Steiner 
 CaroU V. Ballance 
 
 232 
 130 
 
 Garoon v. Cooper 671 
 
 Carpentaria School District v. 
 
 Heath 226 
 
 Carpenter's Estate 537 
 
 Garpenter, Matter of 238, 468 
 
 V. Carpenter 557, 960 
 
 V. Cushman 441 
 
 V. Dexter 673, 1478, 1482 
 
 V. Garrett 640 
 
 V. Gwynn 223 
 
 V. Lewis 1047 
 
 V. Longan 1068, 1600 
 
 V. Mendenhall 963 
 
 V. Pocasset Mfg. Co. 28 
 
 V. Thompson 895 
 
 V. Van Olinder 1180 
 
 V. Anderson 639, 640 
 
 V. Briggs 563 
 
 V. Foster 197, 198, 258 
 
 V. Georgia R. Go. 38 
 
 IV. Richardson 412, 1383 
 
 V. Smith 1163 
 
 Carrel v. Read 854 
 
 Carijck v. Errington 523 
 
 Carrington v. Roots 63 
 
 Carroher v. Bell 912 
 
 Carroll v. Ballance 912 
 
 V. Collins 1317 
 
 V. Safford 756 
 
 V. Tomlinson 1036 
 
 Carrow v. Headley 1106, 1107 
 
 Carson v. Broady 973 
 
 V. Godley 904 
 
 Carter v. Balfour 488 
 
 V. Burr 825 
 
 V. Challen 507 
 
 V. Ghaudron 1468, 1475 
 
 V. Doe ex dem. Ghaudron 1465 
 
 V. Chesapeake, etc. R. Co. 1512 
 
 V. Chevalier 1361, 1365 
 
 V. Conner 980, 982 
 
 V. Demnan 1525, 1528 
 
 V. Denman's Executors 661 
 
 V, Harlan 324 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 XXIX 
 
 Carter v. Holahan 1104 
 
 V. Holmon 1043 
 
 V. Madgwick 1517 
 
 V. Murcot N 308 
 
 V. Ruddy 1412 
 
 V. Warne 870 
 
 V. Williams 641 
 
 Cartwright, In re, L. R. 775, 778 
 
 Cartwright v. Gardner 816 
 
 Carver v. Gough 41 
 
 V. Jackson 1344 
 
 Caruthers v. Caruthers 735, 736 
 
 Carwardine v. Carwardine 1025, 1205 
 
 Cary Library v. Bliss 490 
 
 Casborne v. Scarfe 1032, 1071 
 
 Case V. Case 538 
 
 V. Codding 510 
 
 V. Dexter 1503 
 
 V. Edgeworth 1412 
 
 V. Green 472, 599 
 
 V. Minot 170, 275 
 
 Casey v. Davis 564 
 
 V. Inloes 1327 
 
 Cason V. Hubbard 713 
 
 Cass V. Dicks 301 
 
 V. Thompson 677 
 
 Cassada v. Stabel 1532, 1533 
 
 Cassagne v. Marvin 495 
 
 Casserly v. Morrow 1438, 1439 
 
 Cassidy v. Old Colony R. Co. 240, 301 
 
 V. Wallace 576 
 
 Cassity v. Pound 664, 1377 
 
 Casson v. Dade 1552 
 
 Casteel v. Potter 660 
 
 Castle V. Dod 527 
 
 Castro V. Geil 1371 
 
 Catasauqua Nat. Bk. v. North 16 
 
 Catham v. State 1325 
 
 Cathcart v. Bowman 1528 
 
 V. Nelson 439 
 
 V. Robmson 560, 561, 1089 
 
 CatUn V. Hurlburt 1522 
 
 V. Ware 695, 696, 697, 1456 
 
 Catt V. Catt 503 
 
 Cattley v. Arnold 922, 923, 928 
 
 Caulk's Leasee v. Caulk 617 
 
 Cavanaugh v. Clinch 924 
 
 Cave V. Holford 1005 
 
 Cayuga R. Co. v. Niles 19 
 
 C. & R. R. Co., Matter of 235 
 
 Cecconi v. Rodden 294, 1534, 1537 
 
 Cecil V. Salisbury 1444 
 
 Cecil Bank v. Snively 507 
 
 Cecil Nat. Bk. v. Thurber 521 
 
 Cent. Bk. v. Heydom 136, 137 
 
 Central Branch R. Co. v. Fritz 55 
 
 Central Bridge Co. v. Lowell 146 
 
 Central Park Extension, In re 661 
 
 Central Trust Co. v. Egleston 428 
 
 V. West India Ins. Co. 1061 
 
 Central Trust & Safe Dep. Co. v. 
 
 Cinn. Grand Hotel 52 
 
 Central Wharf v. India Wharf 262 
 
 Cesar v. Karutz 535, 858 
 
 Chace v. Gregg 993 
 
 Chadbourne v. Rackliff 1444 
 
 Chadwick v. Haverhill Bridge 148 
 
 Chaffee v. Maker 1161, 1162 
 
 V. Mcintosh 982 
 
 Chalefoux v. Potter 42 
 
 Chalker v. Dickinson 308 
 
 Chalmers v. Smith 783, 830, 935 
 
 Chamber Collier Co. v. Hopwood 204 
 
 Chamberlain, Matter of 60, 61, 63 
 
 V. Chamberlain 536, 743, 744 
 
 V. Dunlop 917 
 
 V. Meeder 1339 
 
 ■u. Runkle 618, 1516 
 
 1).. Stearns 481 
 
 V. Taylor 901, 1217, 1376, 1377 
 
 V. Thompson 596, 1050, 1071 
 
 Chamberlin v. Donahue 933, 935, 
 
 936 
 V. Elizabethport S. C. Co. 231 
 Chambers v. Chambers 539, 540 
 
 V. Crabbe 566 
 
 V. Stewart 1469 
 
 Chamblee v. Broughton 1181 
 
 Champ V. MarshalTsay 439 
 
 Champlain, etc. R. Co. v. Valen- 
 tine 1512 
 Champlin v. Baldwin 1303 
 V. Champlin 508 
 V. Haight 581 
 V. Parish 810, 814, 1463 
 Chance v. McWorter 578 
 Chandler v. Brown 1536 
 V. Chandler 1486 
 0. Cheney 975, 978, 980 
 V. Jamaica Pond Aqueduct 
 
 Co. 261 
 
 V. McCard 1504 
 
 V. Rider 1222 
 
 V. Simmons 1443, 1444 
 
 V. Temple 1475 
 
 V. Thompson 266 
 
 V. Thurston 62 
 
 Chapin v. Crow 1174 
 
 V. Hill 739, 744 
 
 V. Mott 1162, 1171 
 
 V. Shafer 1443 
 
 Chaplin v. Chaplin 683 
 
 Chapman v. Chapman's Trustees 668 
 V. Cheney 1264, 1284 
 
 V. Gray 265 
 
 V. Hamblet 1512 
 
 V. Harney 818 
 
 V. Holding 1374 
 
 V. Holmes 1524 
 
 V. Laggett 1039 
 
 V. Lee 1039 
 
 V. Moulton 1259 
 
 V. Price 642 
 
 V. Sault Ste. Marie 1347 
 
XXI 
 
 TABLE OP CASES CITED. 
 [Beferences are to pages.] 
 
 Chapman v. Schroeder 685 
 
 V. Tanner 578, 1038 
 
 Charity Com'rs v. Green ^ 136 
 
 Charles v. Charles 653 
 
 Charles River Bridge v. Warren 
 
 Bridge 146 
 
 Charless v. Rankin 280 
 
 Charlestown v. Tufts 1502 
 
 Charlotte Furnace Co. v. Stouffer 19 
 Chartiers Block Coal Co. v. 
 
 Mellon 113 
 
 Chase v. Bennett 1490 
 
 V. Chase 459 
 
 V. Cheney 69 
 
 V. Hall 181 
 
 V. Hazelton 782, 786 
 
 V. Hubbord 1459 
 
 V. Palmer 1456 
 
 V. Peck 1041 
 
 V. Stockett 439, 440 
 
 V. Tacoma Box Co. 24 
 
 V. Van Meter 1106 
 
 V. Wemple 1434 
 
 V. Wingate 66 
 
 V. Woodbury 1087 
 
 Chase Nat. Bk. v. Security Sav. 
 
 Bk. 1108 
 
 Chasemore v. Richards 300, 302 
 
 Chastain v. Smith 507 
 
 Chastey v. Ackland 275, 277 
 
 Chatfield v. Wilson 299, 303, 304 
 Chaumont v.Forsythe 1536 
 
 Chauncey v. Arnold 1438, 1439 
 
 Chauvin v. Wagner 1348 
 
 Chaytor, In re 780 
 
 Cheairs v. Coats 129 
 
 Cheatham v. Jones 757 
 
 Cheek v. Aurora 1358 
 
 Cheetham v. Hampon 902, 903 
 
 Cheever v. North 1561 
 
 «. Pearson 931 
 
 Cheney v. O'Brien 177 
 
 V. Straube 1531 
 
 Cherokee Nation v. Hitchcock 801 
 Cherrington v. Abney Mill 266 
 
 Cherry v. Greene 1227 
 
 V. Heming and Neehham 1462 
 Chesapeake & O. R. Co. v. Miller 144 
 Cheshire v. Payne 566, 567 
 
 Chesley v. King 303 
 
 V. Welch 769 
 
 Chessman v. Whittemore 1440 
 
 Chester v. Dickerson 516 
 
 V. Willan 992 
 
 Chesterfield v. Janssen 530, 537, 541, 
 
 542 
 Chestnut v. Shane 1429 
 
 Chetham v. Williamson 307 
 
 Chetwood v. Allen 1107 
 
 Chew V. Cook 257 
 
 V. Farmers' Bk. 724 
 
 V. Kellar 591 
 
 Chew's Appeal 1160 
 
 Chicago V. Drexel 223 
 
 V. Middlebrook 1358 
 
 V. Rumsey 1507 
 
 Chicago Dock Co. v. Kinzie 662, 712, 
 
 1329 
 
 Chicago & N. W. R. Co. v. Bor. 
 
 of Ft. Howard 57 
 
 V. Hoag 202 
 
 Chicago, etc. R. Co. v. Belliwith 544 
 
 V. Kelley 1508 
 
 Chicago Gas L. Co. v. People's 
 
 Gas L. Co. 541 
 
 Chicago, K. & W. R. Co. v. 
 
 Woodward 232 
 
 Chicago, K. & N. W. R. Co. v. 
 
 Steck 301 
 
 Chicago Lumber Co. v. Osborn 1576 
 Chicago, N. & S. W. R. Co. v. 
 
 Mayor 232 
 
 Chicago, Rook Isl. & P. R. Co. 
 
 V. D. & R. G. R. Co. 165 
 
 Chicago, St. F. & C. R. Co. v. 
 
 Ward 243 
 
 Child V. BayKe 1261 
 
 V. Chappell 268 
 
 V. Starr 1506 
 
 Childers v. Loudin 995, 1005 
 
 Childs V. Clark 128, 876 
 
 V. Kansas City, etc. ^ 973 
 
 Chiles'i). Calk 1357 
 
 Chilton V. Brooks 1078 
 
 Chilvers v. Race 445, 577 
 
 Chipman v. Emeric 784 
 
 Cholmonderley v. Clinton 1369 
 
 Choteau v. Jones 1489 
 
 Chouteau v. -M. P. R. Co. 684 
 
 Chrisman v. Linderman 703 
 
 V. Miller 316 
 
 Christ Church v. Lavezzolo 275, 277 
 
 V. Trustees 478 
 
 Christ's Hospital v. Budgin 522 
 
 Christian v. AUee 1576 
 
 V. Dripp 24, 27 
 
 Christie v. Gage 1375, 1377, 
 
 1378 
 
 Christopher v. Austin 129, 852, 853 
 
 Christy V. Courtenay 511 
 
 V. Spring V. W. Works 1360 
 
 Chudleigh's Case 1192, 1205, 1206, 
 
 1265 
 Church V. Church 671, 997 
 
 V. Hinton 478 
 
 V. Hubbard 1509 
 
 V. Meeker 308, 1330 
 
 V. Ruland 531, 533, 535, 576 
 V. Schoonmaker 901, 1375 
 
 , V. Seeley 131, 139, 884 
 
 V. Sterling 507, 518 
 
 V. Wells' Executors 68 
 
 V. Wood 518 
 
 V. Wright 884, 1368 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 XXXI 
 
 Church of St. Stanislaus v. Alge- 
 
 meine Verein 514, 516 
 
 Churchill v. Monroe 713 
 
 V. Onderdonk 639 
 
 V. Scott 544 
 
 Chute V. New York C. & H. 
 
 R. R. Co. 1378 
 
 Chwatal v. Schreiner 1269 
 
 Cihak V. Klekr 174 
 
 Cincinnati, etc. R. Co. v. Cum- 
 
 minsville 233 
 
 Citizens' National Bank v. Wil- 
 liams 1441 
 Citizens' Savings Bank v. Mooney 
 
 662, 723 
 Citron v. Bayley 860, 902, 907, 908 
 City of Austin v. Hall 208 
 
 City of Bedford v. Willard 1358 
 
 City of Brookhaven v. Baggett 827 
 City of Brooklyn, In re 228 
 
 V. Bklyn. C. R. R. Co. 906 
 
 aty of Buffalo v. D. L. & W. R. 
 
 Co. 296 
 
 City of Canton v. Shock 300 
 
 City of De Kalb v. Luney 1358 
 
 aty of Hastings v. Gillitt 1358 
 
 City of London v. Vanacre 148 
 
 City of Lowell v. Spalding 906 
 
 City of New York, Matter of 23 
 
 V. Law 215, 216 
 
 City of Portsmouth v. Shackford 
 
 1234 
 City of Providence v. Bullock 984 
 City of St. Louis v. Hill 4 
 
 V. Rutz 1510 
 
 City of Quincy v. Jones 282 
 
 City R. Co. V. atizens' St. R. Co. 
 
 577 
 
 Claassen v. United States 1412 
 
 Clad V. Paist 459 
 
 Claflin V. B. & A. R. Co. . 166 
 
 V. Carpenter 63 
 
 V. Claflin 598 
 
 Clancarty v. Clancarty 456 
 
 Clapp V. Byrnes 494 
 
 V. Ing'raham 1217 
 
 V. Inhabitants of Stoughton 749 
 
 V. Nichols 973 
 
 V. Moble 947 
 
 V. Pawtucket, etc. 964, 974 
 
 V. Stoughton 524 
 
 Clark V. Baker 1344, 1347 
 
 V. Barnes 137, 798 
 
 V. Bayley 755 
 
 V. Bumham 512 
 
 V. Burt 1513 
 
 V. Cammann 431 
 
 V. Cogge 177 
 
 V. Condit 1078 
 
 V. Clark 510, 976 
 
 V. Conroe 1537 
 
 V. Devoe 1540, 1541 
 
 Clark V. Durland 
 
 1375 
 
 V. Duval 
 
 316 
 
 V. Elizabeth 
 
 222 
 
 V. Everhart 
 
 534, 535 
 
 V. Gilbert 
 
 1369 
 
 V. Glidden 
 
 325, 329 
 
 V. Glos 
 
 1108 
 
 V. Gordon 
 
 809 
 
 V. Graham 
 
 1464 
 
 V. Greenfield 
 
 595, 817 
 
 V. Hills 
 
 1502 
 
 V. Homthal 
 
 1545 
 
 V. Lindsey 
 
 972 
 
 V. Mackin 
 
 1093 
 
 V. Martin 
 
 188, 189, 190 
 
 V. McMahon 
 
 567 
 
 V. McNeal 
 
 576 
 
 V. Nash 
 
 228 
 
 V. Pa. R. Co. 
 
 298, 300 
 
 V. Parker 
 
 970, 971 
 
 •y. Parr 
 
 1523 
 
 V. Regbum 
 
 1071 
 
 V. Reybum 
 
 998, 1115, 1124 
 
 V. Smith 
 
 927, 1523 
 
 V. Wheelock 
 
 936, 939 
 
 V. Williams 
 
 368 
 
 Clarke v. Byne 
 
 882 
 
 V. Cammann 
 
 1160, 1161 
 
 V. Courtney 
 
 1362 
 
 V. Gibbons 
 
 1372 
 
 V. Leupp 
 
 456 
 
 V. Long Is. R. Co 
 V. McClure 
 
 572 
 
 1367 
 
 V. Sawyer 
 
 533 
 
 V. Smith 
 
 1248 
 
 V. White 
 
 534 
 
 Clarkson v. Clarkson 
 
 1181 
 
 V. Hanway 
 
 539 
 
 Clary v. Owen 
 
 34, 35 
 
 Clason V. Baldwin 1431, 1434 
 
 Claussen v. LeFranz 518 
 
 Clavering v. Clavering 445, 527, 781 
 
 Clawson v. Primrose 274, 276 
 
 Clay V. Freeman 676 
 
 V. Hammond 1388, 1445 
 
 V. Mayr 652, 653 
 
 V. Wood 433, 451, 452, 453, 454 
 
 Claycomb v. Munger 1537 
 
 Clayton v. Blakey 925 
 
 V. Corby 206 
 
 Clearwater v. Rose 591 
 
 Cleaver v. Mutual Res. F. L. 
 
 Ass'n 537 
 
 Clee V. Seaman 1339 
 
 Cleghorn v. Burrows 649 
 
 V. Obemalte 513 
 
 Clemenoe v. Steere 777, 782, 784 
 
 Clemens v. Clemens 998 
 
 V. Moore 565 
 
 V. Speed 281, 282 
 
 Clement v. Burtis 588, 1519 
 
 V. Hyde 479 
 
xxxu 
 
 TABLE OP CASES CITED. 
 [Beferencea are to pages.] 
 
 Clement v. Wheeler 780 
 
 V. Youngman 312, 1499 
 
 Clements v. Moore 562, 564 
 
 Clendenning v. Lindner 919 
 
 V. Wyatt 540 
 
 Clere'sCase^ 1237,1245 
 
 Cleris v. Tieman 274 
 
 Clerk V. Clerk 957, 965 
 
 Clerkson v. Bowyer 1055 
 
 Cleveland v. Obenchain 1508 
 
 V. Ware 196 
 
 Cleveland Trust Co. v. Lander 51 
 
 Cleves V. Willoughby 814 
 
 Clifford V. Atlantic Cotton Mills 903, 
 
 905 
 V. Kampfe 660, 661, 663, 704, 
 
 723 
 
 V. Morrell 1221 
 
 V. O'Neill 1427 
 
 Clift V. Clift 684 
 
 Clinan v. Cooke 810, 814 
 
 Clinton v. Myers 304 
 
 V. Westbrook 1056 
 
 Clipper M. Co. v. Eli M. & L. 
 
 Co. 317, 318 
 
 Cloos V. aoos 978 
 
 Close V. Samm 1365 
 
 Closs V. Eldert 739, 740 
 
 Closuit V. John Aspin Lumber 
 
 Co. 1567 
 
 Clowes V. Dickenson 1087 
 
 Clyde V. Simpson 580 
 
 ayne v. Helmes 857, ,902, 906 
 
 Coats V. Taft 1497 
 
 Coates V. Cheever 684, 693, 780 
 
 Coatsworth v. Thompson 886 
 
 Cobb V. Arnold 895 
 
 V. Davenport 309 
 
 V. Lavalle 1332 
 
 Coburn v. Anderson 523 
 
 V. Goodall 837 
 
 Cochran v. Goodell 955 
 
 V. Pascault 1530, 1531 
 
 V. O'Hern- 426 
 
 V. Stewart 1466 
 
 Cochrane v. Schell 1289 
 
 Cockell V. Taylor 638, 539 
 
 Cookies V. Foley 125 
 
 Cockrell v. Proctor 1523 
 
 Cockrill V. Armstrong 675 
 
 Cockrum v. West 1085 
 
 Cocks V. Simmons 972 
 
 Cockson V. Cock 839 
 
 Codman v. Jenkins , 125, 831 
 
 V. Winslow 51 
 
 Cody V. Quarterman 927 
 
 Coe V. C. P. & I. R. Co. 57 
 
 V. Hobby 914, 915, 916, 917 
 
 V. McBrown 56 
 
 V. Mills 491, 525 
 
 V. Persons Unknown 1399 
 
 V. Washington Mills 484 
 
 Coe V. Winnipiseogee Mfg. Co. 269 
 V. Wolcottville Mfg. Co. 651 
 
 Coffee t>.,Smith 812, 813 
 
 Coffey V. Sullivan 526 
 
 CoflSn V. Parker 1074 
 
 V. Tahnan 837, 874 
 
 Coffman v. Hack 933 
 
 Cogan V. Cogan 1186 
 
 Coggeshall v. Pelton 475, 480, 498 
 Coggins' Appeal 1270 
 
 Cogswell V. Cogswell 773, 774 
 
 Cohen v. Berlin & Jones Envel- 
 ope Co. 541 
 V. Ratkowski 1126 
 V. Simmons 283 
 Cohn V. Hill 830 
 V. Norton 844 
 Cohoes V. D. & H. Canal Co. 217 
 Coit V. Planer 881 
 V. Starkweather 1439 
 Coke V. Gutkese Cav. 858 
 Colberg, Re 1556 
 Colbert v. Rings 735 
 Colbum V. Marsh 1362, 1364 
 Colby V. Duncan 1160 
 V. Osgood 1530 
 Colchester v. Roberts 246 
 Cole's Case 837 
 Cole et al v. Bickelhaupt 901 
 Cole V. Bowne 1363 
 v. Bradbury 200, 202, 243 
 V. Cole 618, 521 
 V. Getzinger 673 
 V. Gilson 641 
 V. Haynes 1498 
 V. Hills 1441 
 V. Hinck 1079 
 V. Hughes 1542, 1543 
 V. Kimball 1626, 1536 
 V. Lake Co. 592 
 V. Littlefield 454 
 V. O'Neil 566 
 V. Sewell 1182, 1262, 1263, 1265, 
 1266, 1277 
 V. Stokes 646 
 V. Van Riper 752 
 Colegrave v. Dias Santos 31 
 Coleman v. Beach 1231 
 V. Chadwick 303 
 V. Holmes 1371 
 V. Lewis 54 
 V. Manhattan Beach I. Co. 
 
 1378, 1497 
 
 V. Parran 509 
 
 V. Sanderlin 1458 
 
 V. Van Rensselaer 1049 
 
 Coleman & B. Co. v. Rice 1108 
 
 Coles V. Coles 678, 679, 1069 
 
 V. Trecothiek 530, 538, 646, 1549 
 
 Colgan V. Pellens 752, 1366 
 
 Colgate's Executor v. Colgate 560 
 
 740 
 
TABLE OF CASES CITED, 
 [References are to pages.] 
 
 XXXUl 
 
 CoUagan v. Bums 
 
 1556 
 
 CoUamer v. Langdon 
 CoUamore v. CoUamore 
 
 1059 
 
 613, 617 
 
 Collier V. Jenks- 
 
 67 
 
 V. Miller 
 
 1093 
 
 ■0. Pierce 
 
 265, 275 
 
 Collins V. Aaron 
 
 1492, 1493 
 
 V. Carson ^ 
 
 508, 659 
 
 V. Carsons 
 
 559 
 
 V. Case 
 
 558 
 
 V. CoUeran 
 
 1367 
 
 V. Collins 
 
 1163, 1475 
 
 V. Ewing 
 
 144 
 
 V. Hasbrouck 
 
 866, 867 
 
 V. Lynch 
 
 1367, 1368 
 
 V. Moore 
 
 1068 
 
 V. Pratt 
 
 871, 872 
 
 V. Prentice 
 
 177 
 
 V. Riggs 
 
 1074 
 
 V. Russell 
 
 640, 641, 682 
 
 V. St. Peter's 
 
 256, 268 
 
 V. Smith 
 
 1252 
 
 y. Wickwire 
 
 1211, 1217 
 
 Collins Co. V. Marcy 324 
 
 Collinson v. Jeffery 1073 
 
 V. Patrick 443 
 
 Collister v. Fassitt 451, 452, 453 
 
 V. Hayman 323 
 
 CoUner v. Greig 984 
 
 CoUumb V. Read 984 
 
 CoUyer v. CoUyer 125, 831 
 
 Colonial City Traction Co. v. 
 
 Kingston City R. Co. 235 
 
 Colorado C. & I, Co. v. United 
 
 States 1413 
 
 Colrick V. Swinburne 298 
 
 Colson V. Colson 644, 1179 
 
 Colthirst V. Bejushin 1150 
 
 Coltness Iron Co. v. Black 118 
 
 Colton V. Colton 433, 452, 454 
 
 V. Gorham 872 
 
 V. Ross 533 
 
 Columbia Bank v. Jacobs 1574 
 
 Colville V. Miles 796, 809 
 
 Colvin V. Burnet 204 
 
 V. Warford 1561 
 
 Combes's Case 1465 
 
 Comer v. Chamberlain 637, 654 
 
 V. Sheehan 1068 
 
 Comesky v. Village of Suffem 229 
 Commercial Bk. v. Sherwood 563, 
 564, 953, 955 
 Commissioners v. Clark 802 
 
 Commissioners, etc. v. Directors 
 
 of Poor 654 
 
 V. Jackson 921 
 
 Commissioners v. Pemsel 474,476, 480 
 
 V. Walker 414 
 
 Com. V. Roxbury 1500 
 
 Commonwealth v. Alger 387 
 
 V. Allen 231 
 
 V. Andre 1326 
 
 Commonwealth v. Barhight 1462 
 V. Beaver Borough 222 
 
 V. Charleston 387 
 
 V. Cheney 864 
 
 V. Contner 124 
 
 V. Contor 119 
 
 V. Coupe 222, 225 
 
 V. Cutler 1475 
 
 V. Franklin Ins. Co. 870 
 
 V. Kite 1325, 1326 
 
 V. Kelly 218 
 
 V. Matthews 225 
 
 V. McAllister 520 
 
 V. N. Y. L. E. & W. R. Co. 1334 
 V. Naile 1327 
 
 V. Newbury 223 
 
 V. Railroad Co. 217, 222, 225 
 V. Upton 212, 300 
 
 Commonwealth Bk. of Pa. v. 
 
 Armstrong 517, 519 
 
 Commonwealth Title Ins. Co. v. 
 
 Ellis 1038 
 
 Company of Pewterers v. Christ's 
 
 Hospital 492 
 
 Comstock V. Comstock 1523 
 
 V. McEvoy 1576 
 
 V. Sharp 252 
 
 Conabeer v. N. Y. C. & H. R. Co. 256 
 Conant v. Brackett 1576 
 
 Conard v. Atlantic Ins. Co. 1570 
 
 Concord Bank v. BelHs 1346, 1446 
 Concord R. R. v. Greeley 228 
 
 Condon v. Maynard 1080 
 
 Conduitt V. Ross 1540, 1542, 1543 
 Coney v. Laird 1437 
 
 Conger v. Duryee 817, 883, 1016 
 
 V. Weaver 852 
 
 Congleton ■!). Pattison 837, 838 
 
 Congregational Soc. of Dubuque 
 
 V. Fleming 17, 22 
 
 Congregational Unitarian Soc. 
 
 V. Hale 503 
 
 Conklifi V. Egerton 1223 
 
 V. Parsons 17 
 
 Conkling v. Davies 450 
 
 V. Weatherwax 1044, 1102 
 
 Conlan v. Grace 1465 
 
 Conley v. Schiller 825 
 
 Connecticut Mut. L. Ins. Co. v. 
 
 Talbot 1058 
 
 Connecticut Trust and Safe De- 
 posit Co. V. HoUister 1267 
 Connel v. Kibbe 285 
 Connelly i;. O'Brien 1160 
 Conner, Matter of 1234 
 V. Coffin 39 
 V. Shepherd 685 
 V. Watson 740 
 V. Whitmore 635 
 Connery v. Brooke 1057 
 V. Brooks 247, 1500 
 Connolly in Keating 514 
 
XXXIV 
 
 [BeferenceB 
 
 Connolly v. Smith 706 
 
 Connor v. Bell 1360 
 
 V. Bradley 818 
 
 V. Gardner 1180 
 
 V. State 786 
 
 V. Sullivan 202, 206 
 
 V. Watson 1234 
 
 Conover v. Hoffman 1239, 1240 
 
 V. Porter 1437 
 
 V. Smith 838 
 
 V. Stothoff 580 
 
 V. Wright 723 
 
 Conrad v. Saginaw Mining Co. 39 
 
 Conroe v. Birdsall 1443 
 
 Consolidated Ice Co. v. Mayor, 
 
 etc. of N. Y. 1361 
 Consolidated Nat. Bk. of San 
 
 Diego V. Hayes 964, 1122 
 Constant v. Univ. of Roches- 
 ter 573 
 Consumers' Ice Co. v. Bixler 872 
 Converse v. Converse 1548 
 V. Ferre 964, 972 
 V. Sickles 517, 519 
 Conway v. Alexander 1034 
 V. Cable 1429 
 V. Carpenter 919 
 V. Taylor 144 
 Conway's Will 1550 
 Cooch V. Gerry 1057 
 V. Goodman 1462 
 Coogler V. Rogers 1340, 1376 
 Cook V. Barr 438, 439 
 V. Brightly 138, 140 
 V. Chiqago, B. & Q. R. Co. 321 
 V. Cook 558 
 V. Dillon 662 
 V. Harris 870 
 V. Duckenfield 1235 
 V. Eaton 626 
 V. Hammond 380, 1141, 1143 
 V. Harris 224 
 V. Hutchinson 522 
 V. Johnson 562 
 V. Lowry 498, 1289 
 V. Mancius 574 
 V. McClure 1331 
 V. Paul 1542 
 V. Prigden 326 
 V. Soule 821, 823 
 V. Steams 324, 327, 328 
 V. Walker 675 
 V. Walling 752 
 V. Whellock 896 
 V. Whiting 16, 17, 65 
 V. Winchester 1552 
 Cooke, Ex parte 132 
 V. Bremond 981 
 V. Bucklin 1257 
 V. County of Kings 1221 
 ■V. Crawford 1078 
 V. Lamotte 450 
 
 TABLE OP CASES CITED. 
 
 are to pages.] 
 
 Cooke V. Piatt 495, 497 
 
 V. Stationers' Co. 525 
 
 Cookson V. Richardson 539 
 
 Cool V. B. & L. Co. 64 
 
 V. Peters B. & L. Co. 322 
 
 Coolbaugh v. Roenier 1672 
 
 Cooley, Matter of 1580 
 
 V. Harris 1060 
 
 Coolidge, Matter of 1194 
 
 t). Hagar 243 
 
 V. Learned 193 
 
 Coombe's Ex'r v. Carthew 546 
 
 Coombs, Goods of 1550 
 
 Coombs V. Anderson 617 
 
 Coomler v. Heffner 924 
 
 Coon V. Rigden 1462 
 
 V. Smith 1342 
 
 Coons V. Coons 508 
 
 Cooper V. Adams 934 
 
 V. Cooper 613, 976 
 
 V. Fretnoransky 917 
 
 V. Heatherton 1268 
 
 V. McDonald 642 
 
 V. Louanstein 167 
 
 V. Reilly 538 
 
 V. Reynolds 1574 
 
 V. Watson 1536 
 
 V. Whitney 675 
 
 Coorsen v. Ziehl 1576 
 
 Cope V. Cope 1315, 1316 
 
 V. Wheeler 1110 
 
 Copehart v. Foster , 52 
 
 Copeland v. Manton , 1578 
 
 V. Stephens 800 
 
 Copp V. Swift 16 
 
 Coppage V. Bamett 510 
 
 Corbet v. Corbet 736 
 
 V. Stone 1184 
 
 Corbett v. Norcross 993, 1478 
 
 V. Spencer 1444 
 
 Corbin v. Baker 543, 550 
 
 Corey v. Schuster 759 
 
 Corker v. Corker 1559 
 
 Corle V. Monkhouse 577 
 
 Corley v. McElmeel 532, 996 
 
 Coriies V. Howland 1038 
 
 V. Vannote 1466 
 
 Corliss V. McLagin 31 
 
 Com V. Bass 294 
 
 Cornelius v. Giberson 1360, 1362 
 
 Cornell V. Hall 1036 
 
 V. Lamb 118, 124, 134, 135, 393, 
 
 394 
 
 V. Maltby 621, 674, 575 
 
 Corner v. Mackey 1425 
 
 Comfeld v. Tenenbaum 521 
 
 Comingi;. Gould 256, 258, 260 
 
 v. Head 217 
 
 V. Troy I. & N. Factory 269, 
 
 1377, 1505, 1515 
 
 V. Woolner 1507 
 
 Comog V. Cornog 1052, 1057 
 
TABLE OP CASES CITED. 
 [Beferences are to pages.] 
 
 XXXV 
 
 Comwell V. Orton 425 
 
 V. Wulff 1254 
 
 Corpman v. Baccastow 1047 
 
 Correll v. Lauterbach 1224 
 
 Corrigan>i;. CSty of Chicago 921 
 
 V. Trenton Delaware Falls 
 
 Co. 1465 
 
 Corse V. Chapman 1160, 1283 
 
 Cortelyou v. Van Brunt 211 
 
 Corwin v. Corwin 1392, 1393 
 
 Cory V. Cory 543 
 
 V. Sant a Ynez L. & T. Co. 1063 
 
 Cory Universalist Soc. v. Beatty 478 
 
 Cosgriff V. Dewey 962, 974 
 
 V. Foss 957, 973, 990 
 
 Costello V. Grand Trunk R. Co. 650 
 
 Coster V. Clarke 676 
 
 V. Lorillard 1389 
 
 V. Mayor of Albany 229 
 
 Costigan v. Pennsylvania R. Co. 1542 
 
 Coten. V. Parti. 961, 969 
 
 Cotter V. Layer 1229 
 
 Cottman v. Grace 485, 499, 500 
 
 Cotton V. McKee 1047 
 
 Cottrell, Matter of 1553 
 
 C. B. Cottrell, etc. Co. v. Carter 1491 
 
 Couch V. Harp , 511 
 
 Coudert v. Cohn 881, 925, 938, 943 
 
 V. Huerstel 1430 
 
 V. Sayre 160, 161, 167 
 
 Cougham v. King 840 
 
 Coulson V. Alpaugh 456 
 
 Coulter V. Norton 848 
 
 Countryman v. Deck 815 
 
 Coupe V. Piatt 859, 904, 906 
 
 Couman v. Harrison 456 
 
 Courter v. Stagg 1013 
 
 Covert V. Cranford 299 
 
 Covington v. Geyler 294 
 
 Cowen V. Radford Iron Co. 932 
 
 V. Sunderland 858 
 
 Cowdrey v. Cowdrey 1467 
 
 Cowee V. Cornell 547 
 
 Cowell V. Colorado Springs Co. 1015 
 
 V. Springs Co. 698, 600, 601, 
 
 1280 
 
 V. Thayer 199, 251 
 
 Cowles V. Kidder 321 
 
 V. Marble 1105 
 
 V. Reaves 1513 
 
 Cowling V. Higginson 246 
 
 Cowperthwaite v. Bank 535 
 
 Cox V. Arnold 1329 
 
 V. Boyce 641 
 
 V. Foley 882 
 
 V. Forrest 197 
 
 V. Freedley 1503 
 
 V. Garst 678 
 
 V. James 1344 
 
 V. Miller 675 
 
 V. Sammis 938 
 
 V. Stafford 757 
 
 Coxe V. State of New York 
 
 Cozine v. Graham 
 Crabb v. Crabb 
 Craft V. Latourette 
 
 V. Schlag 
 Crafts V. Hibbard 
 Craig V. Butler 
 
 1415, 
 
 1417 
 
 440 
 
 441 
 
 1041 
 
 565 
 
 1514 
 
 133, 856, 
 
 857 
 
 V. First Presby. Church 70 
 
 V. Pinson 1476, 1477 
 
 V. Summers 867, 868 
 
 V. Van Bebbar 1444 
 
 Craige v. Morris 660 
 
 Crain v. Wright 596, 597, 1474 
 
 Cramer, Matter of 1157, 1160 
 
 Crane, Matter of 465, 1158, 1164, 
 
 1171 
 V. BoUes 595 
 
 V. Brigham 23 
 
 V. Edwards 917 
 
 V. Hardman 861 
 
 V. McMurtrie 1340 
 
 V. Morris 1345 
 
 V. O'Connor 1572 
 
 V. Powell 436, 438, 806, 807, 
 1372, 1378 
 V. Reeder 1325, 1376 
 
 Crane's Gulch M. Co. v. Scherrer 317 
 Cranston, In re 480 
 
 V. Crane 1120 
 
 Cranvell v. Sanders 1554 
 
 Crapo V. Pierce 1661 
 
 Crary v. Goodman 1367, 1375 
 
 Crawford v. Atlantic Coast Lum- 
 ber Corp. 780 
 V. Lockwood .766 
 V. Scovell 1446, 1446 
 V. Simon 1100 
 V. Thompson TOl 
 V. Witherbee 836 
 Crawley v. MuUins 938 
 Crawson v. Primrose 193 
 Creeden v. Mahoney 1474 
 Creel v. Kirkham 795 
 Creesy v. Willis 1101 
 Cregier, In re 728 
 Cressee v. Security Land L Co. 1492 
 Crest V. Jack 30, 55 
 Cribben v. Deal 1438 
 Crippen V. Morss 166, 971 
 Crisfield V. Storr 1317 
 Crispen v. Hannavan 1366 
 Criswell V. Grumbling , 764 
 Croan v. Phelps 1316 
 Crocheron v. Jaques 458 
 Crocker v. Cotting 159, 245, 246, 
 1505, 1509, 1514 
 V. Lowenthal 1470 
 V. Mann 124 
 V. Pierce 1350 
 Crockett v. Boston 224 
 
XXXVl 
 
 TABLE OP CASES CITED. 
 
 [Beferencea 
 
 Croft V. Bunster 1060 
 
 Croley v. Murphy 1455 
 
 Cromie v. Hoover 43, 47 
 
 Crommelin v. Thiess 807, 945 
 
 Cromwell v. Tate's Bx'r 1465 
 
 Cronfe V. Crone 651, 562 
 
 Croner v. Cowdrey 1325, 1326 
 
 Cronkhite v. Cronkhite 157, 158, 
 
 321, 324, 326 
 Cronon v. Cottiiig 432 
 
 Crook V. Van Devoort 971 
 
 Crooke v. County of Kings 473 
 
 Crooked Lake Nav. Co. v. Kenka 
 
 Nav. Co. 632 
 
 Crop V. Norton 508, 510 
 
 Crosby v. Bessey 198 
 
 V. Loop 128 
 
 V. Parker 1498 
 
 Crosdale v. Lanigan 159, 253, 324, 
 
 325, 326, 327, 328, 329 
 
 Crosland v. Rogers 174, 176 
 
 Cross V. State Bank 1438 
 
 V. Taylor 1430 
 
 V. Tome 119 
 
 V. United States 125 
 
 V. U. S. Trust Co. 458, 283, 1285 
 
 V. Weare Com. Co. 1492 
 
 CroBsley v. Lightowler 258 
 
 Crossman v. Wycoff 1001 
 
 Crothers v. Croth^s 556 
 
 Crouche v. Foule 828 
 
 Crouse v. Wemple 203 
 
 Crousque v. Quinn 735 
 
 Crow V. Kightlinger 663 
 
 Crowe V. Wilson 780 
 
 Crowley v. Gormley ■ 872 
 
 Croxall V. Shererd 1 422, 426, 461, 
 
 606, 613, 1160, 1567 
 
 Crozier v. Bray 1188, 1557 
 
 Crozier's Appeal 742 
 
 Cruger v. McLaury 140, 392, 394, 
 
 820 
 Cruikshank v. Home for the 
 
 Friendless 524, 1280 
 
 Cruize v. Billmire 704, 720 
 
 Crum V. Bliss 1662 
 
 V. Hill 16 
 
 V. Sawyer 760, 1658 
 
 Crumrine v. Crumrine 619 
 
 Crusoe v. Bugby 866, 867 
 
 Cruwys v. Colman 457 
 
 Cubbms V. Ayres 38 
 
 Cubitt V. Mapse 224 
 
 V. Porter 286, 287, 292 
 
 Cudworth V. Bostwick 1578 
 
 Cuffee V. Milk 613 
 
 Culbertson v. Witbeck 444 
 
 Culbertson's Appeal 463 
 
 Culberson v. Culberson 737 
 
 CuUen V. Carey 1042 
 
 Culrose v. Gibbons 460 
 
 Culver V. Elwell 1578 
 
 are to pagea.] 
 
 Culver V. Rhodis 963, 989 
 
 Cumberland (Duke of) v. Cod- 
 ington 1101 
 Cumming's Appeal 538 
 Cummings v. Dearborn 1399 
 V. Newell ' 61 
 Cunningham v. Cunningham 1552 
 
 V. Cureton 
 
 16,] 
 
 18,20 
 
 1). Davenport 
 
 
 442 
 
 V. Freeborn 
 
 449, 
 
 1396 
 
 V. Horton 
 
 934, 936 
 
 V. Parker 815, 
 
 1010, 
 
 1016 
 
 V. Pattee 
 
 
 811 
 
 Cunynghame v. Thurlow 
 
 
 1243 
 
 Curl V. Lowell 
 
 
 942 
 
 Curran v. Houston 
 
 
 1079 
 
 Currant v. Jago 
 
 
 612 
 
 Currie v. Misa 
 
 
 577 
 
 V. Page 
 Currier tJ.Perley 
 
 
 713 
 
 
 928 
 
 Currin v. Finn 
 
 
 706 
 
 Curry v. Bott 
 Curtis V. Angler 
 
 
 651 
 
 20£ 
 
 ), 206 
 
 V. Galvin 
 
 
 936 
 
 V. Gardner 
 
 
 166 
 
 V. Hobart 
 
 
 687 
 
 V. Hojrt 
 
 
 55 
 
 V. Keisler 
 
 
 211 
 
 V. Kiley 
 
 902 
 
 ,904 
 
 V. Leavitt 
 
 
 1466 
 
 V. Moore 1062, 
 
 1063, 
 
 1107 
 
 Curtiss V. Ayraiilt 
 
 16£ 
 
 , 172 
 
 V. Leavitt 
 
 
 142 
 
 V. Miller 
 
 
 914 
 
 Curtner v. United States 
 
 
 1410 
 
 Cuschner v. Westlake 
 
 
 915 
 
 Gushing V. Ayer 
 
 V. Blake 424, il 
 
 
 1087 
 
 !0, 63£ 
 
 >, 642 
 
 V. Danforth 
 
 
 669 
 
 V. Edwards 
 
 
 1671 
 
 V. Spalding 
 Cushman v. Coleman 
 
 
 597 
 
 
 429 
 
 V. Cushman 
 
 
 1167 
 
 Cushney v. Henry 
 
 
 468 
 
 Cuthbert v. Chauvet 
 
 
 463 
 
 Cuthbertson v. Irving 
 
 
 1346 
 
 Cutler V. Cutler 
 
 
 1556 
 
 V. Tuttle 
 
 50C 
 
 , 512 
 
 Cutting V. Carter 
 
 
 787 
 
 V. Cutting 1214, 
 
 1218, 
 
 1219 
 
 Cutts V. York 
 
 
 1496 
 
 Czermak v. Wetzel 
 
 
 814 
 
 D. 
 
 Dabney v. Bailey 
 
 
 741 
 
 Daily v. Burke 
 Da Coste v. De Pas 
 
 
 1575 
 
 
 478 
 
 Dacus V. Streety 
 
 
 1057 
 
 Dagett V. Champney 
 
 
 919 
 
 Daggett V. Daggett 
 
 1471, 
 
 1472 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 XXXVU 
 
 Daily v. State 
 
 233 
 
 Dalay v. Savage 
 
 903, 904 
 
 Dale, Ex parte 
 
 520 
 
 V. Hartley 
 
 1195 
 
 V. Hamilton 
 
 439 
 
 V. Hunneman 
 
 1412 
 
 Dalton V. Angus 
 
 194, 196, 273, 
 
 
 278, 285 
 
 Daly, Matter of 
 
 921 
 
 V. Wise 535, 824, 856, 858, 862 
 
 Dame v. Dame 
 
 54, 55, 931 
 
 Dammert v. Osbom 
 
 483, 486, 500, 
 
 
 502, 1285 
 
 Damper v. Bassett 
 
 263 
 
 Damren v. Amer. L. 
 
 & P. Co. 128 
 
 Dana v. Burke 
 
 29 
 
 V. Dana 
 
 505, 519, 521 
 
 V. Murray 953, 
 
 955, 1169, 1170, 
 
 1195, ] 
 
 1214, 1227, 1270, 
 
 
 1272, 1278, 1280 
 
 V. Valentine 
 
 197 
 
 Dance v. Dance 
 
 1039 
 
 Dand v. Kingscote 
 
 249 
 
 Danforth v. Sargent 
 
 945 
 
 Danglarde v. Elias 
 
 713 
 
 Daniel v. Felt 
 
 1237 
 
 V. Leitch 
 
 678 
 
 V. North 
 
 207 
 
 V-. Whartenly 
 
 755, 1180 
 
 V. Wood 
 
 67 
 
 Daniels v. Eldredge 
 
 1190 
 
 V. Mowry 
 
 1117 
 
 V. Pond 
 
 936 
 
 Daniher v. Daniher 
 
 703 
 
 Danville Seminary v 
 
 Motte 990 
 
 Danziger v. Boyd 
 
 901, 1359, 1375, 
 
 
 1376, 1377 
 
 V. Silberthan 
 
 720, 786 
 
 Daper v. Mann 
 
 1112 
 
 Darby v. Callaghan 
 
 ;809 
 
 V. Darby 
 
 984 
 
 Darcey v. Bayne 
 
 959 
 
 V. Steger 
 
 828 
 
 D'Arcy v. Blake 
 
 426 
 
 Darcy v. Kelley 
 
 481, 488, 490 
 
 Dark v. Johnston 
 
 321, 323, 325 
 
 Darling v. Potts 
 
 550 
 
 V. Rogers 
 
 497 
 
 Darlington v. Painter 250 
 
 Darnell v. Columbus S. C. Co. 275 
 
 Darrah v. Baird 
 
 44 
 
 Darrow v. Calkins 
 
 984, 985, 986, 
 
 
 1372 
 
 Dart V. Dart 
 
 1349 
 
 Dartmouth College 
 
 V. Wood- 
 
 ward 
 
 145, 212 
 
 Dashiel v. Harshman 
 
 1510 
 
 Dashwood v. Magniac 767, 782 
 
 Dassori v. Zarek 
 
 872 
 
 Dastervignes v. United States 1357 
 
 Datesman's Appeal 
 
 776 
 
 Dauenhauer v. Devine 
 
 289, 292 
 
 Daugherty v. Daugherty 741 
 
 D'Augiban, In re 1212, 1220 
 
 Dauler v. Hartley 541 
 
 Dauiy V. Inhab. of Natick, 479 
 
 Dausman v. Rankin 1548 
 
 Daveis v. Collins 1365-1366 
 
 Davenport, Matter of 916, 1309 
 
 t). Lacon 1574 
 
 V. Lamson 184, 245 
 
 V. Magoon 783 
 
 V. Reg. 911, 1016 
 
 V. Ruckman 905 
 
 Davidson, Matter of 1290 
 
 V. Cooper 1438 
 
 V. EUmaker 895, 898 
 
 V. Little 540 
 
 Davies v. Daviea 778, 927 
 
 V. Humphries 1084 
 
 V. Sear . 183 
 
 V. Speed 1258 
 
 V. Thomas 1038 
 
 V. Williams 267 
 
 Davis, Matter of 50, 570, 571 
 
 V. Andrews 759 
 
 V. Bigler 560 
 
 V. Bliss 33 
 
 V. Brigham 199, 206 
 
 V. Clark 767, 768, 829, 1471, 
 
 1472 
 V. Coblens 101, 1359, 1370 
 
 V. Commonwealth 1512, 1513 
 V. Compton 981 
 
 V. Davis 559, 618, 1038 
 
 V. Denny 1548 
 
 V. Dudley 1442, 1444 
 
 V. Eastham 41 
 
 V. Eyton 771 
 
 V. Freeland 1412 
 
 V. Fuller 298 
 
 V. George 857 
 
 V. Gilliam 782 
 
 V. Gray 1017 
 
 V. Green 670 
 
 V. Handy 1499 
 
 V. Inhabitants 480 
 
 V. Jenkins 713 
 
 V. Jones 24 
 
 V. Judd 1468 
 
 V. Lansdale 1133 
 
 V. Marlborough 539 
 
 V. Mason 640, 641, 644, 830, 
 
 1252 
 V. Morris 873 
 
 V. Moss 43 
 
 V. Murphy 937, 938 
 
 V. Nash 935 
 
 ^. New York 1577 
 
 V. Pacific Power Co. 859, 861, 
 904, 906 
 V. Page 742 
 
 V. Ripley 596 
 
 V. Rosenzweig Realty Co. 1041 
 
XXXVIU 
 
 TABLE OP CASES CITED. 
 
 [References are to pages.] 
 
 
 Davis V. Sshwartz 562 
 
 Decker, Ex parte 
 
 1438 
 
 B. Shields' 1463 
 
 V. Decker 
 
 622, 1044 
 
 V. Spaulding 240 
 
 V. Hartshorn 
 
 917 
 
 V. Stambaugh 439, 440 
 
 V. Livingston 
 
 749, 964 
 
 V. Strange 547 
 
 V. Morton 
 
 133, 857 
 
 V. Stroud 1361 
 
 Decoster v. Wing 
 
 1303 
 
 V. Thomas 1034 
 
 Dee V. King 
 Deegan v. Wade 
 
 196 
 
 V. Titusville, etc. Ry. Co. 1486 
 
 1218, 1219, 1268, 
 
 V. Town Proprietors, etc. 826 
 
 V. Tyler 895 
 
 V. Waddington 931 
 
 V. Ward 579 
 
 V. Williams 896, 1470 
 
 Davis, Adm'r v. Garrett 1474 
 
 Davock V. Nealon 1366 
 
 Davoue v. Fanning 530, 542, 546, 
 
 648, 549, 1215 
 
 Dawley v. Ayers 756 
 
 v. Brown 901, 1375, 1377 
 
 Dawson V. Clarke 523,525 
 
 V. Coffman 782 
 
 V. Edwards 651 
 
 V. Kemper 289 
 
 V. Massey 554, 555 
 
 V. Shirley 714, 1447 
 
 V. Quinnerly 1178 
 
 V. Waltemeyer 564 
 
 Day V. Adams 1476, 1500 
 
 V. AUender 225 
 
 V. Cochran 640, 648, 660 
 
 V. Perkins 25 
 
 V. Roth 618 
 
 V. Savadge 157 
 
 V. Solomon 669 
 
 V. Walden 263 
 
 V. Watson 853 
 
 V. West 710 
 
 Dayton v. Donart 758 
 
 V. Drainage Comm'rs 302 
 
 Deal V. Cooper 1514 
 
 Dean v. Ann Arbor St. Ry. Co. 233 
 
 V. Dean 440, 1249 
 
 V. Phillips 662 
 
 V. Walker 1102 
 
 Dean of Windsor's Case 837 
 
 Deane v. Caldwell 913 
 
 V. Hutchinson 64, 873 
 
 Dearborn v. Taylor 712 
 
 Dearing v. McKinnon, etc. Co. 562, 
 
 663 
 
 Deaver v. Jones 1600 
 
 Deavitt v. Ring 971 
 
 De Barante v. Gqtt 445 
 
 De Baun v. Moore 289 
 
 Debow V. Colfax 62, 770, 771 
 
 De Camp, Matter of 237 
 
 V. Crane 641 
 
 V. Dix 239 
 
 V. Thompson 179 
 
 De Caters v. Le Ray De Chau- 
 
 mont 648 
 
 De Cells v. Porter 648 
 
 1274 
 
 Deeker v. Boies 1093 
 
 Deen v. Millikin 537 
 
 Deerfield v. Arms 1329, 1330, 1332 
 V. Conn. Riv. R. Co. 196 
 
 Deering v. Reilly 382, 1359, 1364 
 Deery v. Cray 1481, 1501 
 
 Deeves v. Constable 191, 192 
 
 De Forest v. Byrne 862 
 
 V. Walters 900, 901 
 
 De Frieze v. Quint 1365 
 
 De Garmo v. Phelps 1070, 1377, 
 
 1378 
 Degary and Roe's Case 1473 
 
 Degman v. Degman 1234 
 
 De Graw v. Classon 496 
 
 De Gray v. Monmouth B. C. H. 
 
 Co. 187 
 
 De Grey v. Richardson 641 
 
 De Haro v. United States 320 
 
 De Hierapolis v. Reilly 564 
 
 Dehority v. Wright 1623 
 
 Dehring v. Beck 42 
 
 Deigleman v. N. Y. L. E. & W. 
 
 R. Co. 302 
 
 Delafield v. Parish 1648 
 
 V. Shipman 1291 
 
 De Lancey v. Finnegan 1077 
 
 Delancey v. Ganong 126, 899, 900 
 
 V. Piepgras 78, 123, 134, 136, 
 
 146, 298, 386, 387, 391, 
 
 394, 395, 396, 1359, 1406, 
 
 1415, 1416, 1417, 1429, 
 
 1432, 1449, 1510 
 
 Delaney ■!). Boston 305 
 
 V. Fox 123, 762, 773, 
 
 1144 
 
 V. McCormack 1214 
 
 V. McCormick 1233 ' 
 
 V. Valentine 666 
 
 Delannay v. Burnett 1408 
 
 Delaplaine v. Chicago, etc. R. 
 
 Co. 807, 942, 1512 
 
 Delavergne v. Nonis 1529 
 
 Delaware, etc. R. Co. v. Oxford 
 
 Iron Co. 21 
 
 Del. & Rar. Canal Co. v. Wright 52 
 
 Dellett V. Kemble 1340 
 
 Dfemarest v. Berry 1064 
 
 V. Williard 128, 837, 877 
 
 V. Wynkoop 576, 1033, 1066, 
 
 1370 
 
 Demars v. Koehler 1628 
 
 Demartini v. Anderson 863 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 XXXIX 
 
 De Mathas v. Gibson 
 
 1539 
 
 Demby v. Parse 
 
 45 
 
 Deming v. Bullitt 
 V. Miles 
 
 1468 
 
 652 
 
 Dempsey v. Kipp 
 
 158 
 
 V. Tayler 
 V. Tylee 
 
 1236 
 
 1280 
 
 Dempster v. Cleghom 
 
 220 
 
 Demuth v. Amweg 
 
 202, 268 
 
 Den V. Adams 
 
 940, 945 
 
 V. Ashmore 
 
 897 
 
 V. Drake 
 
 928 
 
 V. Helmes 
 
 1516 
 
 V. Jersey Co. 
 
 1510 
 
 Den d. Camp v. Quinby 
 
 652 
 
 Den d. Fagan v. Walker 
 
 651 
 
 Den d. Hadley v. Geiger 
 
 1376 
 
 Den d. Hopper v. Demarest 640 
 
 Den d. Micheau v. Crawford 1172 
 Den d. Read v. Richman 1488 
 
 Den d. Southerland v. Cox 1253 
 
 Den d. Van Kleek v. O'Hanlon 1325 
 Den d. Wilson v. Small 1256 
 
 Denham v. County Comm'rs 228 
 
 Dening v. Ware 447 
 
 Denis' Estate 473 
 
 Denison v. Denison 465, 494 
 
 Denn v. Cornell 1344 
 
 V. Slater 613 
 
 Dennett v. Hopkinson 61 
 
 V. Pass 139 
 
 Dennis v. Wilson 216, 244 
 
 Dennison v. Foster 971 
 
 V. Goehring 447 
 
 Dent V. Auction Mort. Co. 277 
 
 Denton v. Davis 439 
 
 V. Jackson 1415 
 
 V. Leddell 264 
 
 V. Nanny 680 
 
 V. Ontario Co. Nat. Bk. 573, 
 
 1117 
 
 V. Taylor 911 
 
 Denver, etc. R. Co. J). Harris 951 
 Denwan v. Prince 972 
 
 Denzler v. O'Keefe 1108 
 
 De Peyster v. Michael 389, 390, 391, 
 394, 395, 598, 599, 766 
 De Puy V. Strong 974 
 
 Deraismes v. Deraismes 773 
 
 Derby v. Ailing 224 
 
 V. Derby 485 
 
 Derrick v. Luddy 896 
 
 Derry v. Peek 530, 533, 535 
 
 Deseret Salt Co. v. Tarpey 1412 
 
 Deshler v. Beery 720 
 
 Deshong v. City of New York 212 
 
 V. Deshong 996 
 
 Desloge v. Pearce 315, 325 
 
 Des Moines v. Hall 226 
 
 De SoUar v. Hansome 1343 
 
 Despard v. Churchill 792 
 
 V. Wallridge 897, 924, 947 
 
 Dester v. Manley 827 
 
 De Themmines v. De Bonneval 478 
 Detroit v. Detroit M. R. Co. 225 
 
 Detroit City Railway v. Mills 229, 
 
 230 
 Detwiler's Appeal 870 
 
 De Vaughn v. Hutchinson 593, 1178, 
 
 1180 
 Dever v. Hagerty 1360, 1376, 1377 
 Devereaux V. Fairbanks 1115,1116 
 Devereux v. McMahon 1463, 1476, 
 
 1477 
 
 Devin v. Dougherty 38 
 
 Devinel v. Barnard 223 
 
 Devinney v. Norris 554 
 
 Devlin v. Collier 1059, 1523 
 
 Devoy v. Devoy 513 
 
 Dewey v. Bellows 250 
 
 V. Campau 1481 
 
 V. Lamlaier 964 
 
 De Witt V. De Witt 677 
 
 V. Pierson 846, 850 
 
 V. San Francisco 957 
 
 De Wolf V. Murphy 662, 680 
 
 Dexter v. Arnold 1073 
 
 V. Beard 161, 1540 
 
 V. Evans 452, 453 
 
 V. Stewart 570 
 
 Dexter L. Co. v. Dexter 971 
 
 Dey V. Dunham 1047 
 
 V. Greenebaum 867, 868 
 
 V. Prentice 1540 
 
 D'Eyncourt v. Gregory 15, 45 
 
 Diamond Match Co. v. Ontonagon 
 
 223 
 V. Roeber 541 
 
 Dick V. Harby 467 
 
 Dickens v. Barnes 1498 
 
 Dickenson v. Codwise 518 
 
 Dickerson v. Colgrove 1340 
 
 V. Grand Junction Canal Co. 250 
 V. Northern R. Co. 1058 
 
 Dickey v. Thompson 1087 
 
 Dickinson v. Blake 764 
 
 V. Hoomes 1536, 1541 
 
 V. Williams 972, 990 
 
 Dickson v. Desire 1533 
 
 Diederich v. Rose 21 
 
 Diefendorf v. Diefendorf 1399 
 
 Diehl V. Watson 857 
 
 Diers v. Ward 1367 
 
 Dietrich v. Hutchinson 750, 752 
 
 Dietz V. Mission Transfer Co. 1365 
 Diggles, In re 452 
 
 Dikeman v. Taylor 1499 
 
 Dikes V. Miller 1330 
 
 Dill V. Camden Board of Educa- 
 tion 162, 230, 268, 261 
 Dillaye v. Greenough 446 
 Dillin V. Coppin 447 
 Dillon V. Barnard 36 
 V. Coppin 448 
 
xl 
 
 TABLE OP CASES CITED. 
 [Bef ei'enceB are to pages.] 
 
 Dillon V. Dillon 
 
 
 615 
 
 Doe V. Clarke 
 
 
 1316 
 
 Dillman v. Will Co. Nat 
 
 Bk. 
 
 718 
 
 ■B. Cook 
 
 
 463 
 
 Dilts V. Kinney 
 
 
 1464 
 
 V. Courtenay 
 
 
 917 
 
 Dimmiek v. Lockwood 
 
 1524 
 
 1526 
 
 V. Cox 
 
 931 
 
 , 932, 937 
 
 Dingley v. Bank of Ventura 
 
 1039 
 
 V. Davies 
 
 
 931, 932 
 
 V. Bon 
 
 575 
 
 1491 
 
 V. Day 
 
 
 844, 845 
 
 V. Buffum 
 
 
 934 
 
 V. Durden 
 
 
 1357 
 
 V. Dingley 
 
 
 1160 
 
 V. Edlin 
 
 
 1559 
 
 Dinn v. Grant 
 
 
 571 
 
 V. Evans 
 
 
 899 
 
 Directors of Poor, etc. v. 
 
 Royer 
 
 682 
 
 V. Green 
 
 
 923 
 
 District of Col. V. Robinson '195, 217 
 
 V. Gregory 
 
 
 1368 
 
 Diver v. Diver 
 
 
 975 
 
 V. Gwinnell 
 
 
 696, 697 
 
 Dix V. Jaquay 
 
 778, 787 
 
 V. Harris 
 
 
 1555 
 
 Dixon V. Bristol Sav. Bank 
 
 1471 
 
 V. Hawthorn 
 
 
 478 
 
 V. Dixon 
 
 
 1421 
 
 V. Hazell 
 
 
 926 
 
 V. Monroe 
 
 
 1345 
 
 V. Hogg 
 
 
 867, 872 
 
 V. NiccoUs ■ 
 
 62, 128 
 
 ,796, 
 
 V. James 
 
 
 561 
 
 
 
 877 
 
 V. Kennedy 
 
 
 1514 
 
 V. Saville \ 
 
 
 669 
 
 V. Maberly 
 
 
 875 
 
 Doak V. Wiswell 
 
 
 45 
 
 V. McKaeg 
 
 
 936 
 
 Doane v. Badger 
 
 248, 249 
 
 v: Perkes 
 
 
 1556 
 
 V. Doane 
 
 
 757 
 
 V. Porter 
 
 
 928 
 
 V. Hutchinson 
 
 
 53 
 
 V. Price 
 
 
 937 
 
 V. Mercantile 
 
 
 996 
 
 V. Pyke 
 
 
 915, 916 
 
 V. Willcutt 
 
 
 1348 
 
 V. Raffan 
 
 
 926 
 
 Dobberstein v. Murphy 
 
 
 664 
 
 ■u. Reed 
 
 
 1387 
 
 Dobbins v. Brown 
 
 
 1536 
 
 V. Rees 
 
 
 912 
 
 V. Duqmd 
 
 
 827 
 
 V. Richards 
 
 
 594 
 
 V. Stevens 
 
 
 554 
 
 V. Ries 
 
 
 809, 812 
 
 Dobie V. Armstrong 
 
 
 532 
 
 ■u. Rivers 
 
 
 641 
 
 Dobson V. Dobson 
 
 
 698 
 
 V. Rock 
 
 
 932 
 
 V. Finley 
 
 
 1513 
 
 V. Routlidge 
 
 
 577 
 
 V. Hohenadel 
 
 
 1508 
 
 V. Sherman 
 
 
 897 
 
 Docter v. Darling 
 
 
 1528 
 
 V. Skirrow 
 
 
 '895 
 
 Dodd V. Acklom 
 
 91( 
 
 ), 917 
 
 V. Smeddle 
 
 
 613 
 
 V. Burchell 
 
 172 
 
 , 179 
 
 V. Smith 
 
 
 816 
 
 V. Holme 
 
 281 
 
 ,282 
 
 V. Smythe 
 
 
 900 
 
 Dodds V. Hakes 
 
 
 845 
 
 V. Stennett 
 
 
 942 
 
 Dodge V. Cole 
 
 
 518 
 
 V. Stratton 
 
 
 909, 925 
 
 V. Cornelius 
 
 
 1550 
 
 V. Syboum 
 
 
 462 
 
 V. Davis 
 
 
 973 
 
 V. Thompson 
 
 
 900 
 
 V. Dodge 
 
 
 1469 
 
 V. Turner 
 
 
 936, 942 
 
 V. Emerson 
 
 
 1040 
 
 V. Walker 
 
 
 343, 1560 
 
 V. Findlay 
 
 
 1550 
 
 V. Wells 
 
 
 899 
 
 V. McClintock 
 
 323 
 
 ,327 
 
 V. Wood 
 
 
 927, 934 
 
 V. McKeolinie 
 
 
 564 
 
 V. Wrighte 
 
 
 463 
 
 V. Stevens 548 
 
 , 1021, 
 
 1425 
 
 Doe d. AUender v 
 
 Sussan 
 
 1256 
 
 Dodin v. Dodin 
 
 
 1318 
 
 Doe d. Bennett v. 
 
 Turner 
 
 769 
 
 Dodkin v. Brunt 
 
 
 458 
 
 Doe d. Childers v. 
 
 Bumgamer 640 
 
 Dodson V. Ball 
 
 
 1177 
 
 Doe d. Christmas 
 
 V. Ohver 
 
 1343 
 
 V. Sevars 
 
 
 1254 
 
 Doe d. Comberbach v. Perryn 1160 
 
 Doe V. Barford 
 
 
 1559 
 
 Doe d. Cook v. Webb 
 
 660 
 
 V. Baytup 
 
 894 
 
 , 899 
 
 Doe d. Daniel v. Woodroffe 
 
 10, 1392 
 
 V. Bell 
 
 
 925 
 
 Doe d. Douglas v. 
 
 Lock 
 
 165 
 
 V. Bingham 
 
 
 1440 
 
 Doe d. Foley v. Wilson 
 
 767 
 
 V. Birch 
 
 
 911 
 
 Doe d. Georges v. 
 
 Webb 
 
 1170 
 
 V. Bluck 
 
 
 911 
 
 Doe d. Goldm v. Lakeman 
 
 1499 
 
 V. Browne 
 
 
 1382 
 
 Doe d. Herbert v. 
 
 Selby 
 
 1172 
 
 V. Cafe 
 
 
 430 
 
 Doe d. Huggens v 
 
 Ketcham 
 
 1575 
 
 V. Campbell 
 
 
 1365 
 
 Doe d. Long v. Prigg 1160. 1162 
 
 V. Carter 866, 870, 927, 933 
 
 ,935 
 
 Doe d. Morris v. Underdown 
 
 1161 
 
 V. Catomore 
 
 
 1441 
 
 Doe d. Mussell v. '. 
 
 Morgan 
 
 1249 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 xll 
 
 Doe d. Springs v. Hanks 1383, 1384 
 Doe d. Tanner v. Dowell 1170 
 
 Doe d. Thomas Tenant et cd. v. 
 
 Roe and Stephen Blacker 1465 
 Doheny v. Lacy 1377 
 
 Doherty v. AUman 777, 783 
 
 V. MatseU 382, 1360, 1364, 1366, 
 
 1377 
 
 Dohoney v. Wonack 1497 
 
 Dolan V. N. Y. & H. R. Co. 231, 232, 
 
 269 
 Dole V. Thurlow 1476 
 
 DoUard v. Roberts 859, 861, 906 
 
 DoUiff V. Boston & M. R. Co. 172 
 DoUiver v. Dolliver 544 
 
 V. Ela 28 
 
 V. St. Joseph Ins. Co. 794 
 
 Dolph V. Hand 1444 
 
 V. White 838, 839, 1541 
 
 Dolton V. Sickel 129 
 
 Domainville v. Mann 870 
 
 Domestic Missionary Society v. 
 
 PeU 1563 
 
 Dominick v. Michael 1223 
 
 V. Sayre' 1231, 1232 
 
 Donahue's Estate, In re 1298 
 
 Donald v. EUiott 974 
 
 •Donalds v. Plumb \ 466 
 
 Donaldson v. Donaldson 444 
 
 V. Farwell 578 
 
 V. Strong 872 
 
 Donason v. Barbers 962 
 
 Donegan v. Donegan 976, 979 
 
 V. Mentz 1040 
 
 Doneson v. Barbero 1439 
 
 Donkersly v^ Levy 917 
 
 Donnell v. Humphreys 164 
 
 Donnelly v. Eastes 1011 
 
 Donner v. Donner . 558 
 
 Donnica v. Coy 527 
 
 Donnor v. Quartermas 973 
 
 Donohoe v. Chicago Cricket Club 
 
 553 
 Donohue v. Keystone Gas Co. 228, 
 
 1508 
 
 V. Whitney 1361 
 
 Donovan v. Twist 1347, 1351 
 
 V. Ward 1443 
 
 Dooley v. Greening 712 
 
 V. Potter 1074 
 
 Doolittle V. Lewis 1221, 1235 
 
 Dooly Block v. Rapid Tr. Co. 233 
 
 V. Stringham 783 
 
 Doran v. Central R. R. Co. 1357 
 
 V. McConlogue 450 
 
 Dority V. Dunning 163, 243, 244, 
 
 264 
 Dorman v. Bates Mfg. Co. 224 
 
 Dorr V. Clapp 595 
 
 V. Johnson 1258 
 
 Dorrance v. Bonesteel 919 
 
 V. Raynsford 1427 
 
 Dorrell v. Johnson 879, 945 
 
 Dorrity v. Rapp 280, 281, 283, 285, 
 
 294 
 
 Dorsett v. Gray 865 
 
 Dorsey v. Habersack 289 
 
 Doty V. Burdick 899, 900 
 
 V. Gorham 56 
 
 V. Hendrix 742 
 
 V. Teller 613 
 
 Dougal V. McCarthy 924, 933 
 
 Dougan v. McPherson 546, 548 
 
 Dougherty v. Duvall 1537 
 
 V. Matthews 816, 817 
 
 V. Thomson 1157 
 
 V. Wellinger 596 
 
 Douglas, In re 480 
 
 V. Coonley ** 183, 262, 263 
 
 V. Cruger 463 
 
 V. Scott 1345 
 
 V. West 1469 
 
 Douglass V. Anderson 900 
 
 V. Fulda 898 
 
 V. Kendal 308 
 
 V. McKeever 1430 
 
 V. Seiferd 924, 926 
 
 0. Thomas 1524 
 
 Douglaston Realty Co. v. Hess 836, 
 
 837 
 
 Dougrey v. Topping 720 
 
 Doupe V. Genin 855 
 
 Dovey's Appeal 1045 
 
 Dow V. Doyle 1169, 1170 
 
 V. Jewell 513 
 
 Dowe, In re 617, 618 
 
 Downer v. Church 523, 525 
 
 Downes v. D. & F. Co. 162 
 
 ■V. Grazebrook 548 
 
 V. Jennings 567 
 
 Downey v. Tharp 1060 
 
 Downing v. Marshall 460, 494, 495, 
 
 499, 500, 503, 1210, 1231 
 
 V. Mayes 1366 
 
 V. Townsend 448 
 
 Dowse V. Gorton 1085 
 
 Doyle V. Am. Co. 651 
 
 V. Gibbs 938 
 
 V. Lord 274, 275, 276, 1498 
 
 ■V. Rolwing 652 
 
 V. Sleeper 511 
 
 V. Union Pacific R. Co. 857, 858 
 
 V. Whalen 428, 488, 490 
 
 Doyley v. Atty.-Gen. 467 
 
 Dozier v. Gregory 785 
 
 Drake v. Baker 1537 
 
 V. Brown 1163 
 
 V. Cunningham 897 
 
 V. Drake 1097, 1234, 1364 
 
 V. Lacoe ' 831, 867, 872 
 
 V. Moore 757 
 
 V. Paige 1090 
 
 V. Reggel 1489, 1492 
 
 V. Root 759 
 
xlii 
 
 TABLE OP CASES CITED. 
 [References ore to pages.] 
 
 Drake v. Wilhelm 
 
 924 
 
 Drane v. Gregory 
 Draper v. Safisbury 
 
 993 
 
 1455 
 
 Drennen v. Walker 
 
 973 
 
 Dresser v. Norwood 
 
 573 
 
 Drew V. Swift 
 
 1504 
 
 Drewett v. Sheard 
 
 261 
 
 Driggs V. Brown 
 
 983, 985 
 
 V. Dwight 
 
 V. Philups 
 
 Droste v. Hall 
 
 844 
 
 205 
 
 693 
 
 Drown v. Smith 
 
 777, 782 
 
 Drucker v. Manhattan R. Co. 230, 
 
 231 
 
 Druley v. Adam 240 
 
 Drum V. Drum 1439, 1441 
 
 Dniry v. Bachelder 759 
 
 V. Drury 733, 734, 735, 736, 
 
 738 
 
 V. Foster 1438, 1439 
 
 Drybutter v. Bartholomew 51 
 
 Dubois V. Beaver 66, 199 
 
 ■y.HuU 1039 
 
 V. Kelley 55 
 
 V. Kelly 42 
 
 Du Bois V. Ray 1163 
 
 Dubs V. Dubs 649 
 
 Dubuque Nat. Bk. v. Weed 1047 
 
 Ducker v. DeGenovese 830, 902 
 
 Dudley v. Bachelder 509 
 
 V. Congregation of St. Francis 
 
 1113 
 V. Dudley 509, 559 
 
 V. Hurst 22, 55 
 
 V. Sumner 1463 
 
 V. Warde 45 
 
 Duff V. Hart 849 
 
 V. Hoffman 1577 
 
 Duffers v. Bangs 18 
 
 Duffield's Appeal 472 
 
 Duffy V. McGuiness 1108 
 
 V. N. Y. & H. R. Co. 295 
 
 Dugdale, In re 598 
 
 Duggan V. Slocum 492 
 
 Duguid V. Fraser 1558 
 
 DuEe of Marlborough, In re 527 
 
 V. Earl Godolphin 1279 
 
 Duke of Norfolk's Case 627, 1183, 
 1261, 1265, 1277 
 Duke of Norfolk v. Arbuthnot 601 
 Duke of Portland v. Topham 568, 569 
 Duke of Somerset, The v. Fog- 
 well 1466 
 Duke of Sutherland v. Heathcote 324 
 Dukes V. Spangler 1469 
 Dulton V. Warschauer 1050 
 Duluth, etc. R. Co. 1). Roy 1412,1413 
 Dumpor's Case 470, 816, 820, 1016 
 Duncan v. City of Terre Haute 661, 
 718, 722 
 V. Louch 249 
 V. Navassa Phosphate Co. 684 
 
 Duncan v. Rodecker 257, 290 
 
 Duncklee v. Butler 1272 
 
 V. Webber 809, 823 
 
 Duncomb v. Duncomb 682 
 
 Duncombe v. Felt 781 
 
 Dundas v. Hitchcock 714 
 
 Dundee Chem. Works v. Connor 544 
 
 Dundy v. Chambers 1476 
 
 Dunham v. Osbom 668, 727, 729 
 
 V. Pitkin 181 
 
 V. Presby 427 
 
 V. Reilly 9 
 
 V. Townsend 933 
 
 V. Williams 1507, 150S 
 
 Dunklee v. Wilton R. Co. 174, 265, 
 
 1498 
 
 Dunlap V. BuUard 867, 868 
 
 V. Reardon 1512 
 
 V. Stetson 1511 
 
 Dunlop V. James 871, 872, 873 
 
 Dunn, Matter of 713 
 
 ■ V. Flood 1280 
 
 V. Mellon , 845 
 
 V. Rothermel 925 
 
 V. Snell 773 
 
 V. Wheeler 462, 1369 
 
 V. Youmans 253 
 
 Dunne's Trust 1243 
 
 Dunne v. Trustees, etc. 924, 933 
 
 Dunnica v. Sharp 1525 
 
 Dunning v. Finson 886 
 
 V. Ocean Nat. Bk. 50 
 
 Dunscomb v. Randolph 289 
 
 Dunton v. Outhouse 1040 
 
 Duppa V. Mayo 818 
 
 DuPrat V. James 318 
 
 Dupree v. Dupree 786 
 
 Durand v. Curtis 814, 872 
 
 V. Higgins 1517 
 
 V. Marcks 629, 1051 
 
 Durando v. Durando 668, 682, 727, 
 
 728, 1142^ 
 
 V. Wyman 872 
 
 Durant v. Palmer 903, 904, 905 
 
 V. Smith 463, 456 
 
 Durel V. Boisblanc 155 
 
 Duren v. Presberry 1504 
 
 Duret V. Charriere 745 
 
 Durfee, Petitioner ' 739 
 
 V. Garvey 1482 
 
 V. Pavitt 515 
 
 Durgin v. Lowell ' 227 
 
 Durham v. Angier 663, 723, 724 
 
 Durham & S. R. Co. v. Walker 166 
 
 Durling v. Hammar 518 
 
 Dumherr v. Raw 1070 
 
 Durrence v. Nat. Bank 1488 
 
 V. Northern Nat. Bank 1490 
 
 Duryea v. Maekey 1427 
 
 Dusie V. Ford 608 
 
 Dutcher u Culver Hi) 
 
 Dutra 1). Pereira 1514 
 
TABLE OF CASES CITED. 
 [Keferences are to pages,] 
 
 Button V. Poole 536 
 
 V. Warsohauer 1464 
 
 Duval V. Becker 265 
 
 V. Wellman 541 
 
 Duvall V. Craig 1532, 1533 
 
 Dwenger v. Geary 70 
 
 Dwight V. E. C. & N. R. R. Co. 786 
 
 Dwight Printing Co. v. Boston 299 
 
 Dyer v. Bank 1430 
 
 V. Clark 676, 983, 984 
 
 V. Cranston Print-Works Co. 300 
 
 V. Dyer 507, 508, 511, 513, 526 
 
 V. Eldridge 1368 
 
 V. Sandford 166 
 
 . V. Sanford 252, 253, 256, 1463 
 
 V. St. Paul 279 
 
 V. Wightman 855 
 
 V. Wittier 651 
 
 Dyett V. Central Trust Co . 472, 496, 
 
 581, 1210 
 
 V. Pendleton 129, 848, 849 
 
 Dyke v. Rendall 737 
 
 V. Walford 1300 
 
 D3rnfevor v. Tennant 263 
 
 E. 
 
 Eadie v. Slimmon 544, 545, 1459 
 
 Eads V. Rutherford 972, 990 
 
 Eager v. Fumivall 639 
 
 Eagle Fire Ins. Co. v. Cammet 1124 
 Earl De La Warr v. Miles 197 
 
 Earl of Aylesford v. Morris 539 
 
 Earl of Darlington v. Pulteney 1224 
 Earle v. Arbogast 778, 829 
 
 V. Earle 1447 
 
 Earley's Appeal 268 
 
 East Central Eureka M. Co. v. 
 
 Central Eureka M. Co. 319 
 
 East Haven v. Hemingway 1415 
 
 East Jersey Iron Co. v. Wright 312, 
 
 330 
 Easterly v. Keney 425, 470 
 
 Eastham v. Anderson 802 
 
 V. Powell 1474 
 
 V. Roundtree 518 
 
 Eastis V. Montgomery 547 
 
 Eastman v. Anderson 118, 119, 120, 
 
 242 
 Easton v. Isted 203 
 
 Eaton V. Chesebrough 1528 
 
 V. Eaton 801, 1388, 1446, 1476 
 V. Green 1034 
 
 V. Hall 794 
 
 V. Lyman 1529 
 
 V. McCall 1116, 1127 
 
 V. Simonds 1108 
 
 V. Straw 837, 1259 
 
 V. Swansea Water Works 
 
 Co. 201, 206 
 
 Eaton V. Tallmadge 
 V. Watts 
 V. Whitaker 
 V. Whiting 
 
 Eaves v. Estis 
 
 xliii 
 
 971 
 
 451 
 
 748 
 
 1078 
 
 18 33 
 
 Eberhardt v. Perolin 451, 452, 453 
 Ebling V. Dreyer 1419, 1425 
 
 Ebner v. Stickter 326 
 
 Ebrand v. Dancer 512 
 
 Eccles V. Treemer 800 
 
 Eckerson v. Crippen 325 
 
 V. Village of Haverstraw 222, 
 
 974 
 Eckleman v. Miller 291 
 
 Eckman v. Eckman 666, 1342, 1392, 
 
 1393 
 Eddowes, In re 467 
 
 Eddy V. Chace 258, 259 
 
 Eden v. Burtiss 1257 
 
 Edesheimer v. Quackenbush 844, 888 
 Edge V. Worthington 1037 
 
 Edgerly v. Barker 862, 1284 
 
 Edgerton v. Brownlaw 429 
 
 V. Page 129, 800, 844, 849, 850, 
 
 852 
 
 Edgett V. Douglas 248, 249 
 
 Edington v. Fitzmaurice 534 
 
 Edlich V. Gminder 1474 
 
 Edmands v. Boston 921 
 
 Edmison v. Lowry 849 
 
 Edmonson v. Kite 831 
 
 Edsall V. Merrill 962 
 
 Edson V. Bartow 483, 523, 536 
 
 V. Munsell 218 
 
 V. Parsons 536 
 
 Edwards, In re 1256, 1258 
 
 V. Bibb 1259 
 
 V. Culbertson 527 
 
 V. Dickinson 1469 
 
 V. Edwards 510, 511 
 
 V. Farmers' F. I. & L. Co. 1075 
 
 V. Hale 917, 941 
 
 V. Jenkins 219 
 
 V. Jones 443 
 
 V. McLean 800, 856, 857, 862 
 
 V. Meyrick 553 
 
 V. N. Y. & H. R. R. Co. 905 
 
 V. Sleater 1211, 1212 
 
 V. Trumbull 1038 
 
 V. Woodruff 1511 
 
 Edwardsville R. Co. v. Sawyer 1459 
 
 Eels V. American T. & T. Co. 233 
 
 Egbert v. De Solms 471 
 
 Ege V. Ege 127 
 
 V. Medlar 642, 1363 
 
 Egerton v. Brownlow 1203 
 
 V. Eari Brownlow 1202 
 
 Ehmen v. Guthenberg 226 
 
 Ehrenreich v. Froment 1603, 1506 
 
 Ehrman v. Mayer 131, 139 
 
 Eidlitz V. Lancaster 659, 1081 
 
 Eidmiller Co. v. Guthrie 58 
 
xliv 
 
 TABLE OP CASE8 CITED. 
 
 
 [Beferencee 
 
 Einstein v. Levi 
 
 824 
 
 Eipper v. Benner 
 
 439 
 
 Eister v. Paul 
 
 895 
 
 Elden v. Schumacher 
 
 1446 
 
 Elder V. Rouse 
 
 1051 
 
 V. True 1529, 1537 
 
 Eldred v. Meek 1261 
 
 Electro-Magnetic Co. v. Van 
 
 Auken 316 
 
 Eleventh Ave., Matter of 222 
 
 Eldredge v. Forrestal 683, 727 
 
 Eldridge v. City of Binghamton 1359 
 D. Post 1572 
 
 Elfeit V. Stillwater R. Co. 218 
 
 Elgin V. Eaton 280 
 
 Ehbank v. Montolieu 749 
 
 Elizabethtown & P. R. Co. v. 
 
 Thompson 232 
 
 Ellcock V. Mapp 525 
 
 Ellerson v. Wescott 636, 995, 996, 
 
 1006 
 
 EUesmere Brewery Co. v. Cooper 1084 
 
 EUicott V. Mosier 688 
 
 Ellington v. Ellington 1361 
 
 Elliot V. Merryman 580 
 
 V. Smith 898 
 
 V. Stone 932 
 
 V. Swartwout 544 
 
 V. Wood 1077 
 
 Elliott V. Bishop 12 
 
 V. Fessenden 1563 
 
 V. Ince 1446 
 
 V. Jefferson 1512 
 
 u. N. E. R. Co. 284 
 
 V. Parker 1431 
 
 V. Piersoll 1427 
 
 V. Rhett 253 
 
 V. Sleeper 1455 
 
 Ellis V. Bassett 160, 171, 178, 181 
 
 V. Cole 558 
 
 V. Davis 533, 758 
 
 u. Ellis 688 
 
 V. Kyger 669 
 
 V. Maxwell 1286 
 
 V. Nimmo 447 
 
 V. Page 1297 
 
 V. Paige 43, 769, 909, 923, 937 
 
 V. Rowbotham 125 
 
 V. Selby 481 
 
 V. Tone 268 
 
 V. White 757 
 
 Ellison V. Daniels 1050, 1056, 1059 
 
 V. ElUson 444, 447, 560 
 
 V. Westcott 1003 
 
 Ellsworth V. Central R. R. Co. 1496 
 
 V. Janssen 1242 
 
 Elmendorf v. Lockwood 661, 664, 
 
 703, 711 
 
 Elmore v. Marks 1474 
 
 Elms V. Ehns 1556 
 
 Elson V. Comstock 226 
 
 Elsworth V. Grand Rapids 223 
 
 are to pages.] 
 
 Elterman v. Hyman 1041 
 
 Elting V. Palen 66 
 
 Elwell V. Bumside 973, 974 
 
 V. Shaw 1465 
 
 Elwes V. Maw 23, 27, 29, 37, 38, 39, 
 
 40,47 
 
 Elwood V. Hock 729 
 
 V. Northrup 1425, 1426 
 
 Ely V. Edison Elec. Ilium. Co. 153 
 
 V. Ely 855 
 
 V. Dix 955 
 
 V. Scofield 808 
 
 Ely's Adm. v. United States 1505 
 
 Emans v. Trumbull 308, 1329 
 
 Emanuel v. Ennis 1312 
 
 Emanuel College v. Evans 1021 
 
 Embrey v. Jemison 541 
 
 V. Owen 298 
 
 Embury v. Sheldon 623, 1027 
 
 Emeric v. Alvarado 960, 972, 1498 
 
 Emerick v. Hackett 1399 
 
 Ememecker's Estate, In re 1558 
 
 Emerson v. Fisk , 321 
 
 V. Galloupe 439, 559 
 
 V. Harris 717, 725 
 
 V. McWhirter 317 
 
 V. Mooney 166 
 
 V. Shores 328 
 
 V. Simpson 838 
 
 Emmerson v. Heelis 62 
 
 Emmett v. Penoyer 1042 
 
 Emmons v. Scudder 901, 932, 941, 
 
 946 
 
 Eneminger v. The People 297 
 
 Enfield v. Jordan 574 
 
 Engel V. Ayer 216 
 
 England v. Downs 566, 567 
 
 V. Reynolds 449 
 
 V. Slade 462, 897 
 
 English V. McClure 1038 
 
 V. Yates 816 
 
 Ennor v. Hodson 519, 520 
 
 Eno V. Del Vecchio 286, 291, 292, 
 
 293 
 Ensign v. Patterson 1491 
 
 Ensley v. Ballentine 519 
 
 Ensminger v. The People 239 
 
 Enterprise O. & G. Co. v. Na- 
 tional Transit Co. 961 
 Entleman v. Hagood 950 
 Enyeart v. Davis . 809 
 V. Kepler 979 
 Episcopal Academy •!). Phila. 479 
 Eppstein v. Kuhn 943, 944, 945 
 Equitable Life Assurance Soci- 
 ety of U. S. V. Brennan 155, 161, 
 184, 187, 189, 600 
 Equitable Loan Security Co. v. 
 
 Waring 954 
 
 E. R. Darlington Lumber Co. v. 
 
 Harris 1579 
 
 Erb V. Brown 266 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 xlv 
 
 Erdman v. Moore 16 
 
 Erhardt v. Boaro 316 
 
 Erickson v. Mich. L. & T. Co. 283 
 V. Smith 1039 
 
 Erie Co. Sav. Bk. v. Schuster 1125 
 Erlangerw. New Sombrero Phos- 
 phate Co. 558 
 Ermentrout v. Stitzel 256 
 Emst V. Crosby 864 
 V. Straus 849, 850 
 Erskine v. Davis 1454 
 V. Townsend 1029, 1030, 1050 
 Ervin v. Morris 1342 
 Erwin v. Cent. U. Tel. Co. 233 
 y. Erie R. Co. 298 
 V. Hard 68 
 V. Parham 538 
 Eschbach v. Collins 1656 
 Esham v. Lamar 539 
 Esling V. WiUiams 196, 204 
 Espencheid v. Bauer 248 
 Essex V. Essex 984 
 Essex Co. Bank v. Harrison 574 
 Estate of Ensign, Matter of 710 
 Estate of Edward Walsh 1464 
 Esty V. Baker 936, 1499 
 Esty V. Currier 1499 
 Eten V. Luyster 865, 915, 916 
 Etheridge v. Osbom 800 
 Eureka Mowing Co., Matter of 19 
 Evangelical Lutheran St. J. & O. 
 Home V. Buffalo Hydraulic 
 Ass'n 144 250 
 Evans' Estate, In re 1157, 1163 
 Evans, Matter of 1555 
 V. Bagshaw 995 
 V. Bicknell 531, 532 
 V. Bidwell 897 
 V. Brady - 596 
 V. Evans 647, 1178, 1180 
 V. Hamrick 877 
 V. Jayne 290 
 V. Keystone Gas Co. 786 
 V. McLucas 1536 
 V. Ogsbury 743, 744 
 V. Roberts 770 
 r.,Saunders 819, 1241 
 V, Smith 832, 1254 
 V. Weatherhead 1177 
 V. Webb 741 
 V. Welch 1045 
 Evansville v. Page 226 
 Evelyn v. Templar 447, 448, 561 
 Everett v. Carr 485, 486 
 V. Edwards 291, 292 
 V. Everett 515 
 V. Peyton 471 
 V. Remington 186, 188 
 V. Whitfield 1371 
 Everitt V. Everitt 955 
 Everly i;. Harrison 559 
 Evers v. Challis 848, 862, 1270, 1284 
 
 Evers v. Weil 861 
 
 Everson v. McMuUen 681, 690 
 
 Everts V. Beach 961 
 
 Evertson v. Booth 1086 
 
 Ewell V. Hubbard 913, 1108 
 
 Ewing V. Barnes 1257 
 
 V. Burnett 382, 1367 
 
 V. Shropshire 618 
 
 V. Wilson 450 
 
 Excelsior Brewing Co. v. Smith 34 
 
 Excelsior Steam Power Co. v. 
 
 Halstead 945 
 Ex. Mission Land & Water Co. v. 
 
 Flash 558 
 Ex'or of Condict v. Kmg 836, 1258 
 
 Eyck V. Witbeck 1378 
 
 Eyre v. Jordan 903 
 
 V. Potter 538 
 
 V. Shaftesbury 475 
 
 Eyton V. Eyton 536 
 
 Ezell V. Dodson 981 
 
 F. 
 
 Factor's, etc. Ins. Co. v. Murphy 913, 
 
 1108 
 Fagan v. McDonnell 515 
 
 Fahn v. Bleckley 1090 
 
 Fairbanks v. Lamson 478 
 
 V. Metcalf 1471 
 
 V. Snow 544 
 
 Fairchild v. Edson 500, 536 
 
 V. Fairchild 515, 516, 676, 983, 
 985, 986 
 
 V. Marshall 744 
 
 Fairis v. Walker 24 
 
 Fairweather v. Burling 1005 
 
 Falaenan v. Reliance S. F. Co. 35 
 Fall V. Sutter Co. 146 
 
 Falmouth v. Thomas 61 
 
 Falis Village Water Power Co. v. 
 
 Tibbets 1508 
 
 Falvey v. Bridges 1358 
 
 Fanning v. Gregoire 146 
 
 Farabee v. McKerrihan 1490 
 
 Farabow v. Green 615 
 
 Fargis v. Walton 1458 
 
 Fargo V. Squiers 1218, 1235, 1270, 
 
 1280 
 Faris v. Phelan 1514 
 
 Farleigh v. Cadmann 450 
 
 Fariey v. Craig 123, 128, 134, 139, 
 
 
 140, 876 
 
 V. Farley 
 
 1469 
 
 V. Lea 
 
 1553, 1570 
 
 V. Parker 
 
 1571 
 
 Farmer v. Dean 
 
 550 
 
 V. Farmer 
 
 554 
 
 V. Pitt 
 
 1076 
 
 Farmer's Bank of Md. «. Heighe 1571 
 Farmers' Bank v. Stockdale 1489 
 
xlvi 
 
 TABLE OF CASES CITED. 
 [Beferencea are to pages.] 
 
 Farmers' and Mechanics' Bk. v. 
 
 King 517, 519 
 
 Farmers' L. & T. Co. v. Kip 1218, 
 
 1219, 1235 
 
 Farmers' Loan & Trust Co. v, 
 
 Penn. Plate Glass Co. 1081 
 
 V. People 1327 
 
 Farnham v. Clements 508 
 
 Famum v. Hefner 866, 870 
 
 V. Peterson 1376 
 
 Farquhar v. Darling 476, 478, 480, 
 
 481, 482 
 
 Farrand v. Gleason 973 
 
 Parrar v. Bernheim 1375 
 
 V. Eastman 1362 
 
 V. Farrar 548, 1469 
 
 V. Fessenden 1376 
 
 FarreU v. Lockhart 153, 319, 1337 
 
 V. Lloyd 513 
 
 u. Noel 1132 
 
 V. O'Brien 533 
 
 y. Parlier ^ 1033 
 
 Farrington v. American Loan 
 
 and Trust Co. 1455 
 
 V. Forrester 1087 
 
 V. Kimball 871 
 
 V. Putnam 523, 1451 
 
 Farwell v. Kloman 521 
 
 V. Rogers 669, 1369 
 
 V. Warren 955 
 
 Faeh v. Blake 1459 
 
 Faukboner v. Corder 218 
 
 Faulcon v. Johnston 62 
 
 Faulks V. Bums 1469 
 
 Fauntleroy v. Dunn 1388 
 
 Faust's Adm'r v. Bimer 1258 
 
 Fawcett v. City of New York 1571 
 
 Fay V. Brewer 778 
 
 Fayette L. Co. v. Railroad Co. 1334 
 
 Featherstonhaugh v. Bradshaw 832 
 
 V. Fenwick 552 
 
 Feder v. Van Winkle 12 
 
 Feeder v. Van Winkle 23, 25 
 
 Feit V. Richards 596 
 
 Felker v. Richardson 917, 918 
 
 Fellows V. Greenleaf 449 
 
 V. Lee 386 
 
 V. Loomis 552 
 
 V. New Haven 280 
 
 Felton V. Deall 905 
 
 V. Simpson 203 
 
 Felts V. Martin 1132 
 
 Fennell v. Guffey 870 
 
 Fentiman v. Smith 327 
 
 Fenton v. Miller 962, 973 
 
 V. Reed 638 
 
 V. Steere 1004 
 
 Ferchen v. Aradt 521 
 
 Ferebee v. Pritchard] 566 
 
 Ferguson ■;;. Kumler 759 
 
 V. Tweedy 637, 640, 641 
 
 V. Witsell 265 
 
 Fern v. Osterhout 
 Femie v. Scott 
 Ferrel v. Woodward 
 Ferrer's Case 
 Ferris v. Montgomery 
 Person v. Sanger 
 
 718 
 931 
 148 
 1004 
 973 
 535 
 
 Festorazzi v. St. Joseph's Catho- 
 Hc Church 479, 484, 
 
 490 
 
 Fetrow v. Merriwether 1399 
 
 Fetters v. Humphreys 174 
 
 Fettretch v. Leamy 288, 289 
 
 Fidler v. John 563 
 
 V. Lash 1242 
 
 Field V. Brown 202 
 
 ■V. Columbet 1514 
 
 V. Lang 664 
 
 V. Manchester 224 
 
 V. Mills 866, 868 
 
 V. Pierce 51 
 
 V. Snell 1538 
 
 Fields V. Brown 864 
 
 V. Dremen 1038 
 
 Fiet«am v. Hay 142 
 
 Fife V. Miller 1182 
 
 Fifer v. Allen 780, 1268 
 
 Fifty Associates v. Grace 872 
 
 Fillebrown v. Hoar 129, 853 
 
 Fillmore v. Jennings 1329 
 
 Fincke v. Fincke 466 
 
 Findlay v. Smith 782 
 
 Finegan v. Eckerson 280 
 
 Finelete v. Sinnot 1501 
 
 Finkelmeier v. Bates 909 
 
 Finlay v. King 1014 
 
 V. King's Lessee 1012 
 
 Finlayson v. Crooks 1090 
 
 Finley v. Hunter 478 
 
 V. Isett 439 
 
 V. Simpson 1403, 1463 
 
 Finn v. Lally 1361 
 
 Firebaugh v. Ward 1571 
 
 First Baptist Church of Hartford 
 
 V. Wetherell 68 
 
 First Bapt. Soc. v. Grant 68 
 
 First National Bank v. Bruce 759 
 V. Connecticut M. Life Ins. 
 
 Co. 1090 
 
 V. Michigan Trust Co. 1227 
 
 V. Miller 563, 564 
 
 V. National Broadway Bank 410, \ 
 
 581,1027 
 
 V. Sohuler 998 
 
 V. Villegra 281 
 
 First Nat. Ins. Co. v. SaUsbury 1055 
 
 First Parish v. Jones 19 
 
 First Univ. Soc. of N. Adams v. 
 
 Boland 604, 621, 1021, 1022, 
 
 ' 1023, 1068 
 
 Firth V. Rowe 38 
 
 Fischbeok v. Gross 531, 536 
 
 Fish V. Dodge 905 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 xlvii 
 
 Fish V. Fowlie 
 
 1574 
 
 V. French 
 
 1060 
 
 V. Howland 
 
 1040 
 
 Fishback v. Laxie 
 
 760 
 
 Fisher v. Dixon 
 
 29 
 
 V. Fair 
 
 242 
 
 V. Fiege 
 V. Fields 
 
 300 
 
 441, 595 
 
 «. HaU 
 
 491, 1470 
 
 V. Hershey 
 
 1003 
 
 V. Lighthall 
 
 862 
 
 V. Milliken 
 
 872 
 
 V. New Jersey Banls 954, 955 
 
 V. N. Y. &. N. E. R. Co. 205 
 
 V. Provin 975 
 
 V. Reach 1103 
 
 V. Smith 1509 
 
 V. Thiskell 903, 905 
 
 V. Wigg -970 
 V. Wister 1251, 1253, 1254 
 
 Fisk V. Fisk 1054 
 
 V. Sarber 551 
 
 V. Stewart 1048 
 
 V. Stubbs 1482 
 
 Fiske V. Fiske's Heirs 1194 
 
 V. Tolman 1102 
 
 Fitch V. Fitch 540 
 
 V. McDowell 1158 
 
 V. MiUer 1471 
 
 V. Rawling 157, 192, 219 
 
 Fitzgerald v. Anderson 47 
 
 V. Beckwith 1058 
 
 V. Fitzgerald 527 
 
 V. Goff 1469 
 
 V. Libby 1497 
 
 V. Shfelton 1445 
 
 Fitzgibbons Boiler Co. o. Man- 
 
 hasset Realty 34 
 
 Fitzpatrick v. B. &. M. R. Co. 251 
 
 V. Fitzpatrick 1440 
 
 Flack V. Gosnell 961 
 
 V. Graham 1468 
 
 V. Green Island 222 
 
 V. March 776 
 
 Flagg V. Dow 917, 918 
 
 V. Eames 1517 
 
 V. Mann 575, 1047 
 
 Flaherty v. Moran 277 
 
 Flamm v. Perry 1000 
 
 Fleenor v. Driskill 1005 
 
 Fleetwood v. Lord 757 
 
 Flegg V. Mann 1036 
 
 Fleischman v. Toplitz 133, 856, 857 
 
 Fleming v. Baker 1515 
 
 V. Bumham 1223 
 
 V. Cohen 1463, 1506 
 
 V. Griswold 1371 
 
 V. Morrison 1552 
 
 Flemington Nat. Bk. v. Jones 1058 
 
 Fletcher v. Ashbumer 50 
 
 V. Ashley 567 
 
 V. Barber 1125 
 
 Fletcher v. Bartlett 548 
 
 V. Bass Riv. Sav. Bk. 1066 
 
 V. Hansur 1454 
 
 V. Herring 66 
 
 V. Holmes , 1050, 1056 
 
 V. McKeon 1068 
 
 V. McMillan 38 
 
 V. Peck 576 
 
 V. Shepherd 711, 712, 714 
 
 V. Smith 299 
 
 Flickinger v. Shaw 325 
 
 Flight V. Bentley 873 
 
 Flint V. Bacon 173 
 
 Flora V. Carbean 196, 203 
 
 Florala Sawmill Co. v. Parrbh 770 
 
 Florence v. Zeigler 579 
 
 Florida S. R. Co. v. Brown 232 
 
 Flowers v. Flowers 703 
 
 Floyd V. Barker 524 
 
 V. Carow 1140, 1144, 1563 
 
 V. Ricks 1466 
 
 Fluck V. Rea 543 
 
 Flureau v. Thomhill 851 
 
 Flye V. Berry 1050, 1055, 1099 
 
 Flynn v. aty of Detroit 1368 
 
 V. Flynn 50, 660, 661 
 
 V. McDermott 740, 742, 745 
 
 Fobes V. Rome, W. & O. R. Co. 232, 
 
 272 
 Fogal V. Pirro 1074 
 
 Foley V. Godchaux 301 
 
 V. Kirk 773 
 
 V. McCarthy 1507, 1508 
 
 Folger V. Mitchell 993 
 
 FoUansbe v. ICilbreth 507 
 
 Folmsbee v. City of Amsterdam 230, 
 
 280 
 Folsom V. Rhodes 680 
 
 Folts V. Huntley 854, 920 
 
 Folwell's Case 654, 752 
 
 Folz V. Shalow 938 
 
 Fonda v. Sage 620, 1015 
 
 Fontain v. Ravenel 477, 488, 490 
 Foose V. Whitmore 453, 456 
 
 Foot V. Dickinson 786 
 
 V. New Haven & North Co. 324, 
 
 327 
 
 515 
 
 921 
 
 V. Elevated Railroad 255, 256 
 
 V. New Haven & North Co. 330 
 
 Forbell v. City of New York 284 
 
 Forbes v. Balenseifer 321 
 
 V. Gracey 314, 315, 319 
 
 V. Moffatt 681, 1107, 1108 
 
 v. Shattuck 60 
 
 V. Sweesy 650 
 
 Force v. City of Elizabeth 532 
 
 Ford V. Cobb 19, 30 
 
 V. Erskine 685, 782 
 
 V. Ford 482 
 
 V. James 1472 
 
 Foote V. Biyan 
 V. Cincinnati 
 
xlviii 
 
 TABLE OP CASES CITED. 
 
 [References 
 
 Ford V. Knapp 973, 990 
 
 V. Lewis 512 
 
 V. Livingston 1425, 1426 
 
 V. Met. R. Co. 175 
 
 V. New Haven & North Co. 253 
 
 V. Tynte 70 
 
 V. Unity Church See. 1339 
 
 Fordyce v. Willis 435 
 
 Forrest v. Forrest 738 
 
 Forsaith v. Clark 594 
 
 Forster v. Hale 436, 439 
 
 V. Moore 1439 
 
 V. Scott 1525, 1527 
 
 V. Winfield 495 
 
 Forsythe v. Ballance 1412 
 
 V. Price 768 
 
 Fort Plain Bridge Co. v. Smith 146 
 
 Fortescue v. Bamett 443 
 
 V. Bowler 787 
 
 Forth V. Chapman 1256 
 
 V. Norfolk 1071 
 
 Fortmann v. Wheeler 1432 
 
 Fortune v. Watkins 670 
 
 Forwood V. Forwood 737 
 
 Fosdick V. Schall 36 
 
 V. Town of Hempstead 477, 480 
 
 499, 500 
 
 Fobs v. Crisp 653, 1448 
 
 V. Van Driele 851, 897, 898 
 
 Foster v. Bowles 1102 
 
 V. Browning 324 
 
 V. Bussey 1511 
 
 V. Carson 1062 
 
 V. Cook 740 
 
 V. Day 580 
 
 V. Durant 514 
 
 V. Dwinel 643, 678, 1054 
 
 V. Foster 470 
 
 V. Hackett 1348 
 
 V. Leland 759 
 
 V. Mansfield 1472 
 
 V. Marshall 650, 651 
 
 V. Pearson 1532 
 
 V. Perkins 1055 
 
 V. Reeves 904 
 
 V. Robinson 769, 865 
 
 V. Wright, L. R. 1329 
 
 Foster's Appeal 985, 1572 
 
 Fothergill vi Fothergill 1229 
 
 Fotterall v. Armour 921 
 
 Foulke V. Bond 1366, 1367, 1368 
 
 Fourth Presbyterian Church v. 
 
 Steiner 190, 192 
 
 Foveaux Cross, In re 480 
 
 Fowle V. N. H. & N. R. Co. 52 
 
 Fowler, In re 228 
 
 V. Bott 855 
 
 V. Chadima 712 
 
 V. Depau 1270 
 
 V. Fowler 973 
 
 V. Shearer 1465 
 
 V. Wood 1048 
 
 are to pages.] 
 
 
 Fox V. Buffalo Park 
 
 861 
 
 V. Clarke 
 
 281 
 
 V. Fox 
 
 1272 
 
 «. Hall 
 
 1398 
 
 V. Mackreth 
 
 548, 559 
 
 V. Macreth 
 
 643, 546 
 
 V. Nathans 
 
 928 
 
 V. Peoples 
 
 607, 569 
 
 V. Rumery 
 
 1194 
 
 V. Swan 
 
 875 
 
 V. Wharton 
 
 1057 
 
 Foxworth V. Brown 
 
 574 
 
 Fralick v. Lyford 
 
 603 
 
 France v. Hamilton 
 
 1571 
 
 Francis v. Francis 
 
 1361, 1355 
 
 V. Sandin 
 
 664 
 
 V. Schoellkopt 
 
 786 
 
 V. Wilkinson 
 
 566 
 
 Francks v. Whitaker 
 
 1172 
 
 Frank v. Conradi 
 
 859 
 
 V. Davis 
 
 1113 
 
 V. Mandel 
 
 905 
 
 V. New York, L. E. & W. 
 
 R. Co. 868,871,872 
 
 V. Tuozzo 1491 
 
 Frank's Appeal 507, 553 
 
 Franke, In re 741 
 
 V. Hewitt 813 
 
 V. Youmans 856 
 
 Frankel, Matter of 1340 
 
 FrankUn v. Brown 857, 858, 
 
 862 
 
 V. Merida 896, 924 
 
 V. Talmadge 1454, 1464 
 
 V. Tracy 857 
 
 Franklin Sav. Bk. v. Cochrane 
 
 1103, 1104 
 Franklin Savings Inst. v. Peo- 
 ple's Savings Bank 965 
 Franz v. Mendonca 207 
 Fratt V. Whittier 62 
 Frazier v. Brown 299 
 V. Caruthers 912 
 V. Frazier 1232 
 Frear v. Sweet 1063, 1093 
 Fredickar v. East 1497 
 Freeland v. Freeland 737 
 Freeman v. Aheam 690 
 V. Bellegarde 1606, 1511 
 V. Headley 933 
 V. Laing , 1094 
 V. Oppenheim 1366 
 V. Schroeder 1060 
 V. Wilson 945, 960 
 Freemont v. Dedire 1044 
 Freer v. Stotenbur 786, 787, 846 
 Freiberg v. Stoddard 621 
 Freidlander v. Ryder 24, 47 
 Freiot v. Fountame 712 
 Freligh v. Piatt 68, 69 
 Frewen v. Law Life As. Soc. 773 
 French v. Allen 1675 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 French v. Carhart 1389 
 
 V. Crosby 688 
 
 V. Freeman 66, 67 
 
 V. Lord 661, 711, 712, 722 
 
 V. Mahan 978 
 
 V. Marstin 184, 204, 245, 
 
 246 
 
 V. Morris 242 
 
 V. Pearce 1367 
 
 V. Peters 712 
 
 V. Pittsburg Vehicle Co. 548 
 
 V. Pratt 692 
 
 V. Quincv 862 
 
 V. Rollins 653 
 
 V. Spencer 1399 
 
 V. The Old South Society 67, 
 
 68, 69, 598 
 
 Freshour ti. Hihn 218 
 
 Frick V. Fiscus 1344 
 
 Frick Coal Co. v. Laughead 1297 
 
 Friedland v. Myers 844 
 
 Fries V. N. Y. & H. R. Co. 230, 232 
 
 Frink V. Adams 1047 
 
 Frisbie v. Frisbie 1072 
 
 Frith V. Cartland 520 
 
 Fritsch V. Klausing 1241 
 
 Fritz V. Pusey 1528 
 
 V. Seeley 180 
 
 V. Tompkins 180, 244, 265 
 
 Frommer v. Roessler 847 
 
 Frontin v. Small 1465 
 
 Frost, In re 1275 
 
 V. Akron Iron Co. 945 
 
 V. Cloutman 613 
 
 V. Courtis 1366 
 
 D.'Deering ^ 810 
 
 V. Rainbow 758 
 
 V. Yonkers Sav. Bk. 1060 
 
 Frout V. Hardin 796 
 
 Fruit Co. V. Buck 566 
 
 Fry V. Lane 536, 539, 540, 544 
 
 V. Miller 62 
 
 Fryer v. Rockefeller 1057, 1377 
 
 Fugate V. Pierce 1365 
 
 Fullam V. Foster 1505 
 
 FuUer, Goods of 1550 
 
 V. CaiT 1502, 1513 
 
 V. Chamier 1178 
 
 V. Conrad's Admr. 695 
 
 V. Fletcher 1366 
 
 V. Jenkins 1042 
 
 V. Tabor 20 
 
 V. Watson 685 
 
 V. Wilbur 633 
 
 FuUerton v. McCurdy 612, 1034 
 
 Fullmer v. Poust 1577 
 
 Fulmer's Appeal 989 
 
 Fulmer «. Williams 1511 
 
 Fulper V. Fulper 976 
 
 Fulton V. Andrews 547 
 
 ' V. Jansen 510 
 
 V. Mehrenfield 226 
 
 Fulton V. S. R. T. Co. 
 
 V. Stuart 
 
 V. Whitney 548, 
 
 Funk V. Eggleston 
 
 V. Voneida 
 Funston v. Hoffman 
 Furber v. Page 
 Furnas v. Durgin 
 Furner v. Seabury 
 Furnish v. Rogers 
 Fumiss V. Ferguson 
 Furnold v. Bank of Missouri 
 Fursaker v. Robinson 
 Fusselman v. Worthington 
 Fyffe V. Beers 
 
 xlix 
 
 232 
 
 868 
 
 549, 550 
 
 594 
 
 1530 
 
 857 
 
 507 
 
 1118 
 
 245 
 
 1171 
 
 1061 
 
 1086 
 
 448 
 
 126 
 
 757 
 
 Gaar v. Lockridge 1572 
 
 Gabbert v. Schwartze 1056 
 
 Gable v. Columbus Cigar Co. 563 
 
 I: Wetherbolt 897 
 
 Gadberry v. Sheppard 1015 
 
 Gaertner v. Bues 892 
 
 GafBeld v. Hapgood, 39, 47 
 
 Gaffney v. Jefferies 675 
 
 Gage V. Bissell 1004 
 
 V. Consumers' E. L. Co. 1582 
 
 V. Gage 516 
 
 V. Sanborn 1399 
 
 Gaines v. Green Pond Iron 
 
 Min. Co. 684, 781 
 
 V. Hennen 536 
 
 Gainsford v. Dunn 1234 
 
 Galbraith v. McLaughlin 538 
 
 V. Tracy 985 
 
 Gale V. Edwards 1528 
 
 V. Harby 517 
 
 V. Morris 1037 
 
 Gale's Ex'rs v. Morris 1043 
 
 Galin v. Neimcewicz's Ex'rs 1085 
 Gallagher v. Rahm 1498 
 
 V. Shipley 67 
 
 Gallatian v. Cunningham 1388 
 
 Galle V. Tode 563, 564, 565 
 
 Gallego's Ex'rs v. Atty.-Gen. 490 
 Galpin v. Page 1424 
 
 Gait V. Chicago & N. W. R. Co. 231, 
 
 232 
 G. C. & S. F. R. Co. V. Eddins 232 
 Galway v. Met. Elec. R. Co. 1 142 
 Gammon v. Bunnell 1471 
 
 Gandy v. Jubber 905, 923 
 
 Gann v. Whitstable Free Fishers 
 
 1509 
 Gannon v. Peterson 781, 1027 
 
 Ganson v. Baldwin 924 
 
 V. Tifft 866, 867, 869 
 
 Gautert, Matter of 1215, 1230 
 
 Ganz V. Lancaster 1110 
 
 Garand v. Towne 601 
 
TABLE OP CASES CITED. 
 
 
 [References 
 
 Garbut v. Bowling 
 
 736 
 
 Gardiner v. Deering 
 
 782 
 
 V. Guild 
 
 1164 
 
 V. Tisdale 
 
 220 
 
 Gardner, In re 
 
 452 
 
 Matter of 1224, 1226 
 
 V. Gardner 1465 
 
 V. Greene 1351 
 
 V. Keteltas 800, 826, 844, 887, 
 
 1531 
 
 V. McGlure 1038 
 
 V. Watson 1045 
 
 Garforth v. Bradley 1112 
 
 Garland v. Smith 533 
 
 Garmire v. Willy 290 
 
 Gamer v. Anderson 1431 
 
 Gamhart *. Finney 912 
 
 Gamons v. Knight 1473 
 
 Garnsey v. Mundy 449, 450 
 
 V. Rogers 1103 
 
 Garrard v. Garrard - 738 
 
 V. Lord Lauderdale 449 
 
 Garrett v. Christopher 1398 
 
 V. Jackson 210 
 
 V. Kan. City Coal Min. Co. 538 
 
 V. Ramsey 1362 
 
 V. Wagner 1423 
 
 V. Weinberg 1365 
 
 Garrison v. Hutton 826, 844 
 
 ■ V. Rudd 215 
 
 Garritt v. Sharp 266, 267 
 
 Garth v. Arnold 618 
 
 V. Sir Johi Cotton 787 
 
 Gartside v. Outley 1068, 1169 
 
 Garver ■«. Clouser 1180 
 
 Garvey v. McDevitt 1214, 1215, 
 
 1244, 1279 
 
 Garvin v. Williams 555 
 
 Gary v. Newton 1319 
 
 Garzot V. Rubio 980 
 
 Gaskill V. King 1461 
 
 V. Trainer 913, 1085 
 
 Gates V. Dudgeon 1221 
 
 V. Paul 1497 
 
 V. Salmon 969 
 
 Gatewood v. Gatewood 641, 1071 
 
 Gawne, Matter of 494 
 
 Gawtry v. Leland 161 
 
 Gayetty v. Bethume 179, 180, 211 
 
 Gayford v. Moffatt 177, 182, 203, 
 
 1367 
 
 Gaylord v. Cincinnati G. B. Ass'n 873 
 
 V. Knapp 1040 
 
 V. La Fayette 429 
 
 Gazlay v. Williams 1424 
 
 Gazzolo V. Chambers 826, 844 
 
 Gebb V. Rose 753 
 
 Gedney v. Gedney 961, 962, 989 
 
 Gee V. Thrailkill 514 
 
 V. Young 771 
 
 Geible v. Smith 174 
 
 Geiger v. Braun 947 
 
 are to pages.] 
 
 Geiszler v. De Graaf 1522, 1523, 
 
 1524, 1626, 1527, 1528, 
 
 1532, 1533 
 
 Gelleri). Hoyt 1464 
 
 Gen. Electric Co. v. Transit 
 
 Equip. Co. 36 
 
 General Finance M. & D. Co. v. 
 Liberator P. B. B. Soc. L. R. 1344, 
 
 1346 
 
 Genet v. .Hunt 1275 
 
 Genter v. Morrison 1496 
 
 George v. Baker 637, 1059 
 
 V. Bates 1498 
 
 V. Braddock 479, 480 
 
 V. Cox 163, 245 
 
 V. Grose 525 
 
 V. Putney 851, 897, 1533 
 
 1). Wood 1087, 1088 
 
 George Bauemschmidt B. Co. v. 
 
 McColgan 44 
 
 George's Creek Co. v. Detmold 788 
 Georgia R. Co. v. Haas 56 
 
 Gerard v. Cooke 160 
 
 Gerber's Estate 1267 
 
 Gerbert v. Sons of Abraham 44 
 
 Germain v. Orchard 1517 
 
 German Land Ass'n v. SchoUer 1455 
 German Mut. Ins. Co. v. Grim 1376 
 German Ref . Church v. Seibert 69 
 German Sav. & Loan Soc. v. 
 
 Weber 35 
 
 Germond v. Jones 670 
 
 Gerrard v. Cooke 248, 249 
 
 Gerrish v. Clough 1330, 1331 
 
 V. Shattuck 245 
 
 Gest V. Flock 1497 
 
 Getchell v. Benedict 223 
 
 Ghormley v. Smith 471 
 
 Gibbons v. Gibbons 741, 1163 
 
 'v. Hoag 1051 
 
 Gibbs V. Estey 20 
 
 V. N. Y. L. Ins. Co. 547 
 
 V. Thayer 1351 
 
 Gibert v. Peteler 166, 278, 1017 
 
 Gibson v. Bailey 1055 
 
 V. Barbour 548 
 
 V. Brockway 1499 
 
 V. Chouteau 1357 
 
 V. Crehore 1066, 1073 
 
 V. Foote 508 
 
 V. Hammersmith Railway Co. 37 
 
 V. Holden 288, 290, 838 
 
 V. .Teyes 539 
 
 V. Kirk 125, 831, 880 
 
 V. Needham 813 
 
 V. Rees 449 
 
 v. Thomas 574, 808, 1492 
 
 V. Toole 508 
 
 V. United States 297 
 
 Giddings v. Giddings 1558 
 
 Giffen v. Olathe 226 
 
 V. Taylor 527 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 u 
 
 Gifford V. Corrigan 1476 
 
 V. Dyer 1568 
 
 V. First Presby. Soo. of 
 
 Syracuse 69 
 
 V. Thorn 637, 538 
 
 V. Yarborough 1329 
 
 Gilbert v. Chapin 453, 466 
 
 V. Cowan 760 
 
 V. Gilbert 516, 1319 
 
 V. N. American F. Ins. Co. 1471 
 
 V. Overton 443 
 
 V. Peteler 160, 1010, 
 
 1491 
 
 V. Reynolds 720, 723 
 
 V. Sprague 1344, 1345 
 
 V. Witty 1170 
 
 Gilbertson v. Richards ■ 1266 
 
 Gildersleeve v. Hammond 280, 281 
 
 Giles V. Anslow 455 
 
 V. Comstock 854, 921 
 
 V. Dugro 294 
 
 V. Little 691, 1013 
 
 V. Pratt 1463 
 
 V. Simonds 322, 323 
 
 Gilford V. Winnipiseogee Lake 
 
 Co. 196 
 
 Gilfoyle v. Cahill 947 
 
 Gilhooley v. Washington 849, 864 
 
 Gill V. Middleton 906 
 
 Gillan v. Dixon 976 
 
 Gillenwaters v. Campbell 1444 
 
 Gillespie v. Allison 1160 
 
 V. Brooks 1465 
 
 V. Nabors 998 
 
 V. Thomas 921 
 
 V. Weinberg 246 
 
 V. Worford 662 
 
 Gilliam v. Guaranty Trust Co. 496, 
 
 1317, 1318 
 
 Gillig V. Maass 1490 
 
 Gillilan v. Swift 714 
 
 Gillis V. Brown 632 
 
 v: Gillis 1464 
 
 Gilman v. Bell 1211 
 
 V. Brown 1361 
 
 V. Dolan 1375 
 
 V. Reddington 1291 
 
 Gilmore v. Armstrong 326 
 
 V. Driscoll 239, 268, 279, 280, 
 
 282, 286 
 
 Gilpatrick v. GUdden 633 
 
 Gilpin V. Hollingsworth 1174 
 
 Girard Trust Co. v. Mellor 442, 443 
 
 Girard v. Philadelphia 491, 1545 
 
 Girard Will Case 475 
 
 Girardy v. Richardson 863 
 
 Givan v. Doe 1486 
 
 Glacier Mt. S. M. Co. v. Willis 315 
 
 Glacius V. Fogel 1102 
 
 Gladwell v. Holcomb 928, 929 
 
 Glass V. Ellison 1056 
 
 V. Hulbert 674 
 
 Glaze V. The Three Rivers 
 Farmers Mutual Ins. 
 Co. 1470 
 
 V. Western, etc. R. Co. 205 
 
 V. Western & Atlantic R. 
 
 Co. 212 
 
 Gleason v. Hamilton 1439 
 
 Gleeson v. Martin White M. Co. 316 
 Glenorchy v. Bosville 429, 696 
 
 Glickauf v. Maurer 906 
 
 GUdden v. Bennett 28, 45 
 
 V. Blodgett 1165 
 
 GUdewell v. Spaugh 614, 615 
 
 Globe Co. V. Quinn 39 
 
 Globe Marble Mills Co. v. Quinn 33 
 Glos V. Gerrity 717, 726 
 
 V. Hallowell 1682 
 
 V. Wheeler 1360 
 
 Gloucester v. Wood 622 
 
 Gloucester G. & Q. Co. v. Russia 
 
 Co. 572 
 
 Glover v. Condell • 467, 810 
 
 V. Stillson 1169, 1222 
 
 Gluck -u. Mayor 920 
 
 Goddard v. Bolster 22 
 
 V. Hall 126, 831, 881 
 
 V. Snow 667 
 
 Goddard's Case 1345, 1496 
 
 Godman v. Simmons 1 189 
 
 Godolphin v. Abingdon 1298 
 
 Godsey v. Standifer 963 
 
 Goe's Estate 598 
 
 Goebel v. Wolf 1164, 1288 
 
 Goelet V. Asseler 8 
 
 V. Roe 888 
 
 Goff V. Anderson 649 
 
 V. Congle , 118, 1507 
 
 Goggin V. Manhattan R. Co. 1372 
 Going V. Emery 478 
 
 Goldman v. Smith 664 
 
 Goldschmid v. Mayor 786 
 
 Goldsmith v. Goldsmith 527, 646 
 
 Goldthwaite v. Janney 984, 986 
 
 Golob V. Pisinsky 860, 904, 906, 906 
 Gombault v. Public Adm'r 643 
 
 Gomez v. Gomez 1190 
 
 Gooch V. Atkins 664 
 
 Gooch's Case 561 
 
 Good V. Fichthom 463, 598 
 
 Goodale v. Mooney 481 
 
 Goodall V. Godfrey 160, 169, 171 
 
 179, 180 
 
 Goode V. Gaines 762, 773, 894, 896, 
 
 899, 900, 1144 
 
 V. Riley 636 
 
 Goodenow v. Ewer 973 
 
 Goodhart v. Hyett 268 
 
 Goodheart v. Goodheart 670 
 
 Goodkind v. Bartlett 1492 
 
 Goodlet V. Smithson 1357, 1412 
 
 'Goodman v. City of Saltash 219 
 
 V. Hannibal & St. J. R. Co. 42 
 
Hi 
 
 TABLE OP CASES CITED. 
 [References are to pagea.] 
 
 Goodman v. Randall 1462 
 
 V. White 1050, 1123 
 
 Goodrich V. Burbank 308, 309 
 
 V. Jones 17, 22, 66 
 
 V. Tenney 541 
 
 V. Milwaukee 461 
 
 V. Pratt 1519, 1530 
 
 V. Russell 1325 
 
 Goodright V. Cornish 1184, 1194, 
 
 1195 
 
 V. Davids 1016 
 
 V. Wells 412 
 
 Goodspeed v. Fuller 134S, 1458 
 
 Goodtitle V. Kibbe 1192, 1205, 1510 
 
 V. Tombs 37 
 
 Goodwin v. Coddingtou 29 
 
 V. Gilbert 1346, 1403, 1518, 
 
 1519 
 
 V. Goodwin - 794 
 
 V. Keney 1106 
 
 V. Mass. Loan Co. 678 
 
 V. Mass. L. &, T. Co. 678 
 
 V. Perkins 28 
 
 V. White 1475 
 
 Gorden, Matter of 739, 740, 988 
 
 V. Gorden 700 
 
 Gordon, Matter of 1580 
 
 V. Constantine Hydraulic 
 
 Co. 1490 
 
 V. Cummings 907 
 
 V. Dickison 669 
 
 V. George 839 
 
 V. Johnson 617; 1041 
 
 Gore V. Brazier 1072, 1534 
 
 V. Gibson 543, 544 
 
 V. Gore 1248 
 
 Gorges v. Stanfield 864 
 
 Gorham v. Daniels 1201 
 
 V. Eastchester Elec. Co. 1498 
 
 Goring V. Bickerstaffe 1261 
 
 Gosling V. Warburton 736, 739 
 
 Goss V. Singleton 1369 
 
 V. Tracy 633 
 
 Gott V. Cook 498, 1194, 1288, 1291 
 
 V. Gandy 927 
 
 V. Powell 1424 
 
 Gotzian's Estate, In re 739 
 
 Gough V. Wood 36 
 
 Gould Coupling Co., Matter of 1113 
 
 (Jould, Matter of 1561, 1580 
 
 V. Boston Duck Co. 300 
 
 V. Day 1470, 1475 
 
 V. Eastern R. Co. 1509 
 
 V. Glass 225 
 
 V. Kemp 965 
 
 V. Lynde 1457 
 
 V. Ma,TBh 1058 
 
 V. Murch 672 
 
 V. Newman 1057 
 
 V. Petit 410 
 
 V. Thompson 933, 934 
 
 V. Wagner 161, 1508, 1509 
 
 Gould V. Winthrop 1101 
 
 V. Wise 1469 
 
 Gouverneur v. Nat. Ice Co. 58, 113, 
 
 1512 
 Governeur v. Robertson 1448 
 
 Govin V. De Miranda 444, 445, 466, 
 
 1369 
 Gowen v. Philadelphia Exchange 
 
 Co. 221, 227, 32? 
 
 Gower v. Mainwaring 467, 1232 
 
 Gowland v. De Faria 539 
 
 Goyette v. Keenan 1504 
 
 Grace v. Wade 1091 
 
 Grace M. E. Church v. Dobbins 171, 
 
 203, 306 
 
 Grady v. McCorkle 679, 703 
 
 V. Moulton 144 
 
 Graeff v. De Turk 1234 
 
 Graff V. Rohrer 527 
 
 Gragam v. Buchanan 1371 
 
 Graham v. Anderspn 1482 
 
 V. Connellsville R. Co. 55 
 
 V. Graham 567, 735, 737, 738 
 
 V. Hawkins _ 1398 
 
 V. Houghtalin 1160 
 
 V. Larmer 1505 
 
 V. Long 439 
 
 V. Newman 1058 
 
 V. Selbie 515 
 
 V. Stem 1607, 1508, 151 1 
 
 V. Way 933 
 
 G. C. &. S. F. R. Co. V. Eddins 233 
 
 Grand R. &. I. R. Co. v. Butler 113 
 
 V. Heisel 232 
 
 Grand Rapids St. R. Co. v. West 
 
 Side St. R. Co. 230 
 
 Grand Tower, etc. v. Gill 963 
 
 Grandona v. Lovdal 65 
 
 Grandville v. Jenison 224 
 
 Granger v. Crouch 1068 
 
 Granite Building Ass'n v. Greene 816 
 
 Grannis «.■ Clark 828 
 
 Grant v. Chase 265 
 
 V. Doane 1072, 1073 
 
 V. Fowler 1363 
 
 V. OUver 1478 
 
 V. Strong 1579 
 
 V. White 946 
 
 Grassi, In re 805 
 
 Grattan v. Wiggins 1056 
 
 Gratz V. Gratz 991 
 
 V. Land & River Imp. Co. 1488 
 
 Graves v. Berdan 286, 855 
 
 V. Braden 1050 
 
 V. Cochran 660 
 
 'v. Conant 1039 
 
 V. Deterling 1010 
 
 V. Graves 457, 526, 1489 
 
 V. Mattison 1514 
 
 V. Smith 288, 292 
 
 V. Trueblood 642 
 
 V. Waterman 646 
 

 TABLE OF CASES CITED. 
 
 liii 
 
 
 [Ueferences are to pages.] 
 
 
 Graves v. Weld 
 
 768, 769 
 
 Greenwood v. Greenwood 
 
 703 
 
 Gray v. Bailey 
 
 980 
 
 V. Maddox 
 
 757 
 
 V. Bartlett 
 
 1341 
 
 V. Marvin 516, 676. 983. 984. 
 
 u. Barton 
 
 1457 
 
 
 985 
 
 V. Deluce 
 
 1513 
 
 Greenwood, etc. Ass'n v. 
 
 Childs 1489 
 
 I). GafE 
 
 849 
 
 Greenwood Lake & Port Jervis 
 
 V. Gillespie 
 
 1055, 1063 
 
 R. Co. V. N. Y. & G. L. R. Co. 321 
 
 V. Holmes 
 
 1317 
 
 Greer v. Blancher 
 
 954 
 
 V. Johnson 
 
 123 
 
 V. Van Meter 
 
 274 
 
 V. Kaufman Dairy & Ice Co. 
 
 V. Wintersmith 
 
 1377 
 
 
 917, 919, 920 
 
 Gregg V. Bostwick 
 
 759 
 
 V. Reynolds 
 
 795 
 
 Gregor v. Cady 
 
 859 
 
 Graydon's Ex'rs v. Graydon 1013 
 
 Gregory, Matter of 
 
 1318 
 
 Greason v. Keteltas 
 
 497 
 
 Greidar's Appeal 
 Greiner v. Klein 
 
 914 
 
 Great Fails Mfg. Co. v. 
 
 Worster 459 
 
 662, 675 
 
 Greatrex v. Hay ward 
 
 306 
 
 Gresham v. Chambers 
 
 1498 
 
 Green v. Allen 
 
 484 
 
 V. King 
 Greville v. Tylee 
 
 976 
 
 V. Armstrong 
 
 63 
 
 1557 
 
 V. Arnold 
 
 971, 1003 
 
 Grey v. Grey 
 
 511, 512 
 
 V. Berge 
 
 279 
 
 V. Mannock 
 
 . 615 
 
 V. Canaan 
 
 224, 225 
 
 Greybeal v. Powers 
 Gridley v. Bloomington 
 
 1502 
 
 V. Cannady 
 
 976 
 
 903, 905 
 
 V. Causey 
 
 726 
 
 Grier v. Penna. Coal Co. 
 
 1502 
 
 V. Clark 
 
 1345 
 
 Grieves v. Case 
 
 478 
 
 V. Geiger , 
 
 889, 1115 
 
 Griffeth v. Beecher 
 
 1144 
 
 V. Goodall 
 
 567 
 
 Griffin, Matter of 
 
 502 
 
 V. Green 554, 1178, 1443, 1444 
 
 V. Bixby 
 
 66 
 
 V. Harvey 
 
 705 
 
 V. Diffendorfer 
 
 547 
 
 V. James 
 
 1050 
 
 V. Marine Co. 
 
 1120 
 
 u. King 
 
 977 
 
 V. Ransdell 
 
 42 
 
 V. Liter 
 
 668, 669, 1136 
 
 V. Shepard 1138 
 
 1157, 1252 
 
 V. Pettingill 
 
 620, 1015 
 
 V. Treutlen 
 
 759 
 
 V. Putnam 
 
 973 
 
 Griffith V. Godey 
 
 539 
 
 V. Reddihg 
 
 133 
 
 V. Gody 
 
 544 
 
 V. Rennington 
 
 1357 
 
 Griffiths V. Griffiths 
 
 596 
 
 V. Roworth 
 
 547 
 
 V. Morrison 
 
 164, 172 
 
 V. Smith 530 
 
 , 569, 570, 571 
 
 V. Vere 
 
 1286 
 
 V. Stone 
 
 1103 
 
 Grigg V. Banks 
 
 1050 
 
 Greenaway v. Adams 
 
 817,865 
 
 V. Landis 
 
 1017 
 
 Green Bay &M.C. Co. 11 
 
 .Hewett 
 
 Griggs V. Smith 
 
 669 
 
 
 1399 
 
 Grigsby V. Hair 
 
 1039 
 
 Greenblatt v. Hermann 
 
 1427 
 
 Grim V. Murphy 
 
 1368 
 
 Greenby v. Wilcocks 
 
 1522 
 
 Grimball v. Patton 
 
 642 
 
 Greene v. Anglemire 
 
 1368 
 
 Grimes v. Harmon 
 
 459 
 
 V. Barnard 
 
 1038 
 
 V. Harmond 
 
 484 
 
 V. Canny 
 
 184, 245 
 
 V. Shirk 
 
 758 
 
 V. Cole 
 
 785 
 
 Grimley ■;;. Davidson 
 
 289 
 
 V. Couse 
 
 897, 1351 
 
 Grimmer v. Friederich 
 
 1160 
 
 V. Greene 412, 
 
 457, 500, 676, 
 
 Grimstead v. Marlowe 
 
 211, 309 
 
 726, 996, 1226, 1284 
 
 Grimstone v. Carter 
 
 1047, 1048 
 
 V. O'Connor 
 
 1010 
 
 Grisfield V. StoTr 
 
 1185, 1187 
 
 Greenfield v. Miller 
 
 1527 
 
 Grissom V. Moore 676, 679, 702 
 
 U.Mills 
 
 1496, 1529 
 
 Griswold V. Butler 
 
 1445 
 
 Greenhaus v. Alter 
 
 1580 
 
 V. Johnson 
 
 970 
 
 Greenland v. WaddeU 50, 1221, 1223, 
 
 V. Met. Elec. R. Co. 
 
 51 
 
 
 1032, 1033 
 
 V. Town of Bradford 
 
 922 
 
 Greenleaf v. AUen 
 
 125, 874 
 
 Gritten v. Dickerson 
 
 643 
 
 V. Francis 
 
 303 
 
 Groce v. Ponder 
 
 679 
 
 V. Grounder 
 
 1423 
 
 Grommes v. St. Paul Trust Co. 819, 
 
 V. R. Co. 994, 1002, 1005 | 
 
 
 872, 912 
 
 Greenvault v. Davis 
 
 1532 
 
 Gross V. Lamposas 
 
 301 
 
 Greenwald v. Wales 
 
 563 
 
 Grosser v. City of Rochester 978 
 
liv 
 
 TABLE OF CASES CITED. 
 [Beferences are to pages.] 
 
 Grouch V. Hazlehurst L. Co. 
 
 536 
 
 Had% V. Taylor 
 
 
 905 
 
 Groustra v. Bourges 
 
 
 936 
 
 Hadman v. Ringwood 
 
 
 17 
 
 Grout V. Tow^isend 
 
 766 
 
 1346 
 
 Hads V. Tierman 
 
 
 1517 
 
 Grove v. Jennings 
 
 
 1472 
 
 Haeussler v. Missouri Iron Co. 
 
 995, 
 
 V. Kane 
 
 
 530 
 
 
 
 1004 
 
 V. Todd 
 
 
 713 
 
 Haffick V. Stober 
 
 
 45 
 
 V. Youell 
 
 
 827 
 
 Haffnes v. Irwin 
 
 1516 
 
 , 1563 
 
 Groves v. Groves 
 
 
 512 
 
 Hafner v. Hafner 
 
 1288 
 
 , 1290 
 
 V. Sentell 
 
 1086 
 
 1088 
 
 Hagan v. Vamey 
 
 773, 776 
 
 Groynn v. Schwartz 
 
 
 1505 
 
 Hagar v. Brainerd 
 
 
 873 
 
 Grubb V. Bayard 
 
 
 312 
 
 V. Walker 
 
 
 1125 
 
 V. Burlington 
 
 
 777 
 
 Hager v. Brainerd 
 
 
 1064 
 
 V. Grubb 
 
 307, 308 
 
 Hagerty v. Hagerty 
 
 V. Lee 165, 166, 167 
 
 
 468 
 
 Grumley v. Webb 
 
 
 558 
 
 273, 
 
 1403, 
 
 Grymes v. Boweren 
 
 
 39 
 
 
 
 1463 
 
 Guaranty Sav. Bk. v. 
 
 Sladon 
 
 1412 
 
 Haggerty v. Harkenberry 
 
 
 1163 
 
 Gucker v. Met. Elec. R. Co. 
 
 51' 
 
 Hahn v. Baker Lodge 
 
 
 252 
 
 Guernsey v. Guernsey 
 
 
 597 
 
 V. Dawson 
 
 
 1331 
 
 V. Lazear 
 
 
 642 
 
 V. Hutchinson 
 
 598, 766 
 
 V. Wilson 
 
 54 
 
 1064 
 
 Hahnken Co. v. Pelletreau 
 
 
 1057 
 
 Guess V. South Bound B,y. Co. 
 
 1470 
 
 Haiber v. Evans 
 
 
 292 
 
 Guest V. Farley 
 
 
 461 
 
 Haigh V. Kaye 
 
 
 527 
 
 V. Opdyke 
 
 
 795 
 
 Haight V. Littlefield 
 
 
 222 
 
 Guffey V. O'Reiley 
 
 
 1340 
 
 Hailey v. Ano 
 
 
 1045 
 
 Gugel V. Isaacs 
 
 854, 921 
 
 Haines v. Allen 
 
 
 480 
 
 Guggenheimer v. Lockridge 
 
 1474 
 
 V. Beach 
 
 
 1072 
 
 Guidet V. Brown 
 
 
 715 
 
 V. Fllis 
 
 
 652 
 
 Guilleaume v. Rowe 
 
 
 544 
 
 V. Thompson 
 
 
 1047 
 
 Guild V. Allen 
 
 463, 503, 
 
 1308 
 
 V. Thomson ' 
 
 
 1035 
 
 Guion V. Anderson 
 
 
 651 
 
 Hair v. Downing 
 
 172, 174 
 
 Gulf, C. & S. P. R. Co 
 
 V. Cusen- 
 
 
 Hairston v. Danville & Western 
 
 
 berry 
 
 
 1356 
 
 Railway 
 
 
 1419 
 
 Gulf, C. & S. Ry. Co. v 
 
 Settegast 
 
 Halbert v. Turner 
 
 
 1076 
 
 
 
 1017 
 
 Haldane v. Sweet 
 
 
 717 
 
 Gulick V. Griswold 
 
 
 1224 
 
 Haldeman v. Bruckhart 
 
 302, 303 
 
 Gumbert's Appeal 
 
 
 523 
 
 Halderman v. Woodward 
 
 
 1049 
 
 Gunn V. Brown 
 
 
 598 
 
 Hale V. Hale 
 
 
 1215 
 
 V. Sinclair 
 
 
 929 
 
 V. HoUon 
 
 
 540 
 
 Gunster v. Scranton I. 
 
 H. &P. 
 
 
 V. Home 
 
 
 525 
 
 Co. 
 
 
 573 
 
 V. James 
 
 
 695 
 
 Gustavson v. Hamm 
 
 
 232 
 
 V. Lamb 
 
 
 447 
 
 Guthrie v. Jones 
 
 23, 38, 39 1 
 
 V. Morgan 
 
 
 1500 
 
 V. New Haven 
 
 
 224 
 
 V. Plummer 
 
 
 677 
 
 V. Russell 
 
 
 1529 
 
 V. Tokelove 
 
 
 1560 
 
 Guy V. Craighead 
 
 
 565 
 
 V. Woods 
 
 
 1465 
 
 Gwillim V. Donnellan 
 
 
 314 
 
 Haley v. Amestoy 
 
 
 1497 
 
 Gwinnell v. Earner 
 
 
 905 
 
 V. Bannister 
 
 
 1268 
 
 Gwynn v. Thoma,R 
 
 
 1497 
 
 V. Sheridan 1325, 
 
 1448, 
 
 1450 
 
 Gwynne v. Heaton 
 
 
 538 
 
 Halferty v. Scearce 
 Hall V. Armstrong 
 V. Augsbury 
 
 
 739 
 242 
 197 
 
 H. 
 
 
 
 V. Ba lentine 
 V. Baltimore 
 
 
 949 
 223 
 
 Haak Lumber Co. v. Crothers 
 
 976 
 
 V. Bliss 
 
 551, 
 
 1235 
 
 Haaven v. Hoass 
 
 
 515 
 
 V. Butterfield 
 
 
 1444 
 
 Haberman v. Baker 
 
 1509, 
 
 1511 
 
 V. Chaffee 
 
 
 1252 
 
 Habershon v. Vardon 
 
 
 481 
 
 V. Congdon 
 
 
 508 
 
 Hackett v. Reynolds 
 
 
 1037 
 
 V. Dean 
 
 
 1528 
 
 Hackney v. Tracy 
 
 
 1258 
 
 V. Dewey 
 
 
 126 
 
 Hadcock v. Osmer 
 
 534 
 
 ,535 
 
 V. Dennerlein 
 
 
 1578 
 
 Haddock v. Haddock 
 
 
 710 
 
 V. Fields 
 
 
 757 
 
 Hadfield's Case 
 
 
 1387 
 
 V. Fisher 
 
 
 974 
 
TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Iv 
 
 V. French 
 
 762 
 
 V. Germain 
 
 864 
 
 V. Gould 
 
 862, 912 
 
 V. Hall 
 
 1449 
 
 V. Irvin, Matter of 
 
 852, -853 
 
 V. Kary 1439, 1474 
 V. La France F. E. Co. 1157,1174 
 
 V. Lance 1056 
 
 V. Leonard 1455, 1456 
 
 V. Linn 1542 
 
 V. McCaughey 258 
 
 V. McDuff 1038 
 
 V. Meriden ^ 224 
 
 V. Otherson 654 
 
 V. JPiddock 973 
 
 V. Priest 1170, 1256 
 
 V. Savage 713 
 
 V. Stephens 977, 979 
 
 V. Tunnel 1052 
 
 V. Wadsworth 926, 928 
 
 V. Wallace 933 
 
 V. West 933 
 
 V. Western T. Co. 881 
 V. Whiteall Water Power 
 
 Co. 1511 
 
 V. Young 510 
 
 Hallen v. Runder 13 
 
 Hallenback v. Rogers 511 
 
 Hallenbeck v. Dewitt 1476 
 
 Halleran v. Bell 1364 
 
 Hallett's Estate, In re 517, 519, 520 
 
 Hallett V. Thompson 425, 470, 766 
 
 V. Wylie 809, 821, 855 
 
 HaUiday v. Gass 1470 
 
 V. Manton 974 
 
 Halligan v. Wade 853 
 
 HaUock V. Smith 1039 
 
 Halm I). Bealor 710 
 
 Halpin v. Phoenix Ins. Co. 1100 
 
 Halsey v. Brown 951 
 
 V. Convention of Prot. Epis. 
 
 Church 475, 479, 490 
 
 V. Rapid Transit R. Co. 230 
 
 Halsted v. Halsted 998 
 
 Ham V. Van Orden 446 
 
 Hambro v. Hambro 882 
 
 Hamden v. Rice 480 
 
 Hamero v. Hamero 125 
 
 Hameston v. Stead 917, 933 
 
 Hamet v. Dundass 538 
 
 Hamilton, In re 452 
 
 V. Brown 1325, 1326, 1327 
 
 V. Chicago, B. & C. R. Co. 224 
 
 V. Cutts 1534 
 
 V. Dennison 268 
 
 V. Graybill 853 
 
 V. Mohun 700 
 
 V. Nutt 1491 
 
 V. Smith 1044 
 
 V. State 1464 
 
 V. White 205, 249 
 
 V. Wright 827, 1375, 1376, 1377 
 
 Hamilton Trust Co. v. Clemes 1043 
 Hamlin v. Attorney-General 1507 
 
 V. HamUn 426, 670, 1475 
 
 Hammann v. Jordan 289 
 
 Hammell v. Hammell 1474 
 
 V. Hyatt 546 
 
 Hammett's Appeal 518 
 
 Hammock v. Loan & Trust Co. 56 
 Hammond v. Hopkins 548, 549, 550 
 
 V. Pennock 703 
 
 V. Sohiff 291 
 
 V. Zehner 210 
 
 Hampson v. Taylor 217 
 
 Hampton v. Commonwealth 101 
 
 V. Spencer 440 
 
 Hamwood v. Oglander 412 
 
 Hanbury v. Fisher 452 
 
 Hancock v. Elmer 564 
 
 V. McAvoy 268 
 
 Hand v. Marcy 1562 
 
 Handhan v. McManus 282 
 
 Haney v. Marshall 1371, 1475 
 
 Hank ■!>. McComas 993 
 
 Hankey v. Qark 216, 242, 243, 272 
 Hanldnson v. Riker 1576 
 
 Hanley v. Kansas & T. Coal Co. 
 
 1269 
 
 V. Wood 311 
 
 Hanna v. Pahner 1360, 1498 
 
 Hannah v. Carver 973 
 
 V. CoUins 1342 
 
 V. Davis 1075 
 
 Hannan v. Osbom 1310 
 
 Hannem v. Pence 904 
 
 Hanneman v. Richter 994, 1004 
 
 Hannen v. Ewalt 138 
 
 i;. Hillyer 487 
 
 Hanning v. Mueller 439 
 
 Hanover Water Co. v. Ashland 
 
 Iron Co. 268 
 
 Hanrahan v. O'Reilly 38, 40 
 
 Hanrick v. Patrick 1350 
 
 Hansen v. Meyer 837 
 
 Hanson v. Township of Red 
 
 Rock 1504 
 
 Haog V. Delorme 197 
 
 Hapgood V. Brown 305 
 
 Harbeck, Matter of 1235 
 
 Harber v. Evans 289, 293 
 
 Hard v. Ashley 1557 
 
 Hardaker v. Moorhouse 1243 
 
 Hardaway v. .Tones 1489 
 
 Hardee v. Weathington 962 
 
 Hardenberg v. Hardenberg 955, 976, 
 
 977 
 Hardenburgh v. Lakin 714 
 
 Harder, Matter of 1302 
 
 Hardin v. Jordan 1512 
 
 V. Shedd 239, 297 
 
 Harding v. Crethom 918 
 
 V. Glyn 454 
 
 Hardison v. Lewis 919 
 
Ivi 
 
 TABLE OP CASES CITED. 
 
 [References 
 
 Hardisty v. Richardson 55 
 
 Hardy v. Dyas 539 
 
 V. Nelson 852, 1633 
 
 Hare v. Celey Cro. Eliz. 795 
 
 V. Horton 19, 28 
 
 Harford v. Taylor 826, 847 
 
 Hargrave v. Cook 248 
 
 V. Reed 1546 
 
 Hargreaves, In re 1262, 1264 
 
 Barker v. Reilly 523 
 
 Harkness v. Burton 325 
 
 V. Devine 1498 
 
 V. Sears 41, 45 
 
 Harlan v. Langham 1005 
 
 V. Logansport Co. 158 
 
 Harland v. Binks 449 
 
 V. Trigg 455 
 
 Harlow v. Coffin 295 
 
 V. Lake Superior Co. 781 
 
 V. Stinson 295 
 
 Harman v. Oberdorfer 1497 
 
 Harmann v. Jordan 293 
 
 Harmon, Matter of 1571 
 
 V. Brown 1021 
 
 V. Smith 1242 
 
 Harmony v. Berger 12, 1051 
 
 V. Bingham 1014 
 
 Harnett v. Maitland 778, 935, 942 
 
 Harp V. Parr 547 
 
 Harper v. Archer 518, 701 
 
 V. Clayton 664 
 
 V. Ely 572, 1065 
 
 V. Perry 1458 
 
 V. Phelps 455, 457 
 
 Harrell v. Butler 1498 
 
 Harrer v. Wallner 662, 955, 979, 
 
 980 
 
 Harriman v. Harriman 1174 
 
 Harrington v. Douglas 858 
 
 V. Erie Co. Savings Bk. 549 
 
 ■u. Fish 1478 
 
 V. Fortner 1043 
 
 V. Murphy 661 
 
 Harriot v. Harriot 618, 1517 
 
 Harris v. Arnold 574 
 
 V. Barnes 1248 
 
 V. Boardman 859 
 
 V. Carson 769 
 
 V. Cohen 905 
 
 V. De Pinna 274, 277 
 
 V. Dougherty 515 
 
 V. Elliott 164, 272 
 
 V. Frink 62, 769, 931, 933, 935, 
 
 941, 1369 
 
 V. Gillingham 55 
 
 ~ V. Hiscock 915, 1389 
 
 V. Hooper 1123 
 
 V. Howard 962, 1361 
 
 V. Mackintosh 269 
 
 V. McGovern 1370, 1371 
 
 V. Oakley 1342 
 
 V. Ryding 284, 285 
 
 are to pages.] 
 
 Harris v. Saunders 1470 
 
 V. Scovel 17 
 
 V. Shirley's Ex'rs 1475 
 
 V. Taylor 1081 
 
 V. Thomas 787 
 
 Harrisburg Bk. «. Tyler 518 
 Harrisburg Electric Light Co. v. 
 
 Goodman 16, 53 
 Harrison v. Boyd 659, 671 
 V. Brophy 479, 484 
 V. Fite 1510, 1511 
 V. Foreman 1163 
 V. Glucose Co. 541 
 V. Guest 538 
 V. Harrison 453, 473 
 V. Manson 550 
 V. Piatt 1363 
 V. Ray 955, 975 
 V. Ricks 124 
 V. Simons 1456 
 V. Trustees of Phillips Acad- 
 emy 1077, 1474 
 Harrison County v. Seal 225 
 Harrison's Executors v. Payne 694 
 Harrisson v. Middleton 932 
 Harrod v. Myers 1443 
 Harrold v. Lane 508 
 Harsha v. Reid 1540, 1541 
 Hart V. Chase 641, 649, 1071 
 V. Cole 861, 906 
 V. Connor , 181 
 V. Farmer's Bk. 573^ 
 V. Hart ' 828 
 V. Lindsey 1453, 1464 
 V. Lyon 1542 
 V. Sampson 110, 994 
 V. Sansom 459 
 V. Seymour 421 
 V. Windsor 821, §57 
 Hartigan v. Smith 1081 
 Hartley v. Lord 1548 
 Hartopp V. Hartopp 556 
 Hartshorn v. Chaddock 299 
 V. Cleveland 1529 
 Hartung v. Witte 1513 
 Harty v. Doyle 12 
 Harvey v. Brydges 950 
 V. Brisbin 653, 654, 655 
 V. Byrnes 1514 
 V. Gunzberg 923 
 V. Harvey 776, 778 
 V. Hobray 1107 
 V. Merrill 541 
 V. Mount 557 
 D. Vamey 565 
 V. Walters 306 
 Harwood v. Benton 174 
 V. Goodright 1561 
 V. Tompkins 278 
 Hasbrouck v. Bunce 1377 
 V. New Paltz, etc. Traction 
 
 Co. 838, 1540, 1541 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Ivii 
 
 Hascall v. King 497, 498, 1288, 1289, 
 
 1290, 1291 
 
 Haskell v. Putnam 896 
 
 Haskins v. Hawkes 1055 
 
 V. Kendall 523 
 
 Haslem v. Lockwood 67 
 
 Saslett V. Shepard 261 
 
 Hassam v. Barrett 1048 
 
 V. Hazen 1238 
 
 Hastings v. Clifford 745 
 
 V. Livermore 268 
 
 Hatch, In re 741 
 
 V. Hatch 555, 1472 
 
 V. McCloud River Lumber 
 
 Ck). 857 
 
 V. Pahner 681 
 
 Hatchett v. Hatchett 812, 1234 
 
 Hatfield v. Sneden 587, 599, 604, 621, 
 622, 623, 646, 647, 655, 753, 
 1009, 102.1, 1023, 1025, 1027, 
 1151, 1168, 1201, 1203, 1248, 
 1446, 1447 
 Hathaway v. Evans 1515 
 
 V. National Bk. 518 
 
 V. Hathaway 745 
 
 V. Payne 1471 
 
 Haug V. Schimiacher 1 162, 1276, 
 
 1277, 1283, 1284 
 Haugh V. Peirce 691 
 
 Haughwout V. Murphy 572, 579 
 
 Hauptmann v. Hauptmann 676 
 
 Hauselt v. Patterson 1102 
 
 Hauxhurst v. Lobree 910, 940 
 
 Haven v. Emery 56 
 
 Havens v. Seashore L. Co. 1402 
 
 V. Van Den Burgh 1559 
 
 V. West Side Elec. L. Co. 53 
 
 Haverstick's Appeal 1174, 1189 
 
 Havey v. Germania Fire Ins. Co. 20 
 i;. Gr. Junction R. R. 1055 
 
 V. Kelleher 996 
 
 V. Mehlgarten 972 
 
 Hawes v. Hawes 954 
 
 V. Shaw 895, 898 
 
 V. Williams 1035 
 
 Hawkes v. Pike 1474 
 
 Hawkins v. Chapman 595 
 
 V. Files 1675 
 
 V. Hersey 34 
 
 V. Kemp 1224 
 
 V. Skegg 769 
 
 Hawley v. Bradford 662, 718 
 
 V. Clowes 780 
 
 V. Diller 1412, 1413 
 
 V. Inhabitants of North- 
 ampton 613, 1567 
 V. James 137, 426, 495, 497, 
 670, 672, 676, 703, 1269, 
 1272, 1278, 1279, 1281 
 V. Wolverton 781 
 Hawlins v. Shippam 1466 
 Hay, In re 1526, 1557 
 
 Hay V. Cohoes Co. 239, 279 
 
 V. Earl of Coventry 1183 
 
 V. Knauth 162 
 
 Hayden v. Conn. Hospital 488, 490 
 
 V. Dutcher 274, 275, 276 
 
 V. Easter 1472 
 
 V. Huff 1570 
 
 V. Peirce 652, 1490 
 
 V. Stone 222, 224 
 
 V. Stoughton 524, 1563 
 
 Haydock v. Haydock 547 
 
 Hayes v. Foorde 1177 
 
 V. Kershow 446, 448, 1393 
 
 V. Kingdome 622, 526 
 
 V. Parker 1443 
 
 V. People 666 
 
 V. Pratt 480, 485 
 
 V. Ward 1085 
 
 Hayes Adm. v. Miller 933 
 
 Hayford v. Spokesfield 257 
 
 Hayne v. Cummings 821 
 
 V. Maltby 1387 
 
 Hayner v. Smith 848 
 
 Haynes v. Aldrich 881, 924, 929, 
 
 945, 946 
 
 V. Bourn 591, 642, 666 
 
 V. King 275 
 
 V. Powers 690 
 
 V. Sherman 1263, 1269, 1270, 
 
 1280 
 
 Hays V. Doane 29 
 
 V. McNealy 1427, 1428 
 
 V. Quay 442 
 
 Hayward v. Kinney 625, 633 
 
 V. MiUer 188 
 
 Haywood v. Logan 858 
 
 Hazard v. Birdsall 997 
 
 V. Robinson 195, 259 
 
 Hazen v. Thurber 689 
 
 Hazle u. Bondy 1061 
 
 Hazleton v. Putnam 323, 330 
 
 Hazlett V. Powell 858 
 
 Head v. Phillips 1004 
 
 Heald v. Builder's Ins. Co. 781 
 
 Healey v. Babbitt 273 
 
 Heaps V. Dunham 544 
 
 Heard v. Read 1227, 1242 
 
 Heartt v. Kruger 262, 291, 294 
 
 Heath v. Barmore 597, 666 
 
 V. Chealock ^ 1530 
 
 V. Heath 84 
 
 V. Hewitt 1388, 1389, 1402, 
 
 1455 
 
 V. Page 665 
 
 V. White 648 
 
 Heaton v. Horr 1456, 1877 
 
 Heavenridge v. Nelson 742 
 
 Hebbard v. Haughian 1345, 1458 
 
 Heckman's Est. 810 
 
 Hedderich v. Smith 44 
 
 Hedges v. Dixon Co. 426 
 
 V. West Shore R. Co. 240, 296 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 [References 
 
 Heeney v. St. Peter's Church 69 
 
 Heermans v. Burt 495, 497 
 
 V. Robertson 494, 495 
 
 Heffner v. Lewis 39 
 
 Hegan v. Pendennis Club 1398 
 
 Hegeman v. Stem's Realty Co. 1425, 
 
 1426 
 Hegnoy v. Head 547 
 
 Heidenheimer v. Bauman 491, 523 
 Heilman v. Kroh 1483 
 
 Heimberger v. Boyd 651, 1073 
 
 Heirkamp v. La Motte Granite 
 
 Co. 27 
 
 Heischler v. McKendrick 318 
 
 Heise v. Heise 1557 
 
 Heisen v. Heisen 663, 687 
 
 Heiskell v. Trout 519, 521, 523 
 
 Heister v. Green 1038 
 
 Heith V. Horner 1039 
 
 Heitzfeld v. Bailey 678 
 
 Helbrey v. Schumann 544 
 
 Helck V. Reinheimer 1152 
 
 Held V. New York 1577 
 
 Heller v. Cohen 1364, 1373, 1529 
 
 ' Helme v. Guy 1498 
 
 Helps V. Hereford 1343 
 
 Hemenway, Ex parte 45 
 
 Hemingway v. Coleman 538 
 
 Hemphill v. Boston 227 
 
 V. Giles 927 
 
 Henck v. Barnes 838 
 
 Henderson v. Carbondale C. & 
 
 C. Co. 819 
 
 V. Central Park R. Co. 257 
 
 V. Connelly 1577 
 
 V. Davenport 1236 
 
 V. Eason 961 
 
 V. Henderson 497, 1268 
 
 V. Hunter 621, 1022, 1151 
 
 V. N. Y. Cent. R. Co. 231, 235 
 V. Ownby 54 
 
 Hendricks v. Isaacs 715 
 
 J). Rasson 1475 
 
 V. Robinson 562 
 
 V. Stark 294, 1529 
 
 V. State 797 
 
 Hennessey v. Old Colony R. Co. 
 
 1344, 1345 
 
 V. Patterson 751, 753, 757, 772, 
 
 789, 790, 1151, 1153, 
 
 1157, 1172, 1189, 1190 
 
 Hennessy v. Murdock 258, 1508 
 
 Henniges v. Johnson 1454 
 
 Henning v. Burnet . 163 
 
 V. Warner 897 
 
 Henricus v. Englert 1466 
 
 Henry v. Allen 573 
 
 V. Brown 776 
 
 V. Fine 1446 
 
 V. Huff 1362 
 
 V. Koch 172, 291 
 
 V. Raiman 554 
 
 Henry v. Root 
 Henry Pigot's Case 
 Henschel v. Mamero 
 Hensey v. Hensey 
 Henshaw v. Clark 
 Henson v. Moore 
 Hentig v. Pipher 
 Hentzel v. Barber 
 
 are to pages.] 
 
 1444, 1445 
 
 1444, 1445 
 
 532 
 
 759 
 
 315 
 
 75§ 
 
 895 
 
 898, 901, 1492, 
 
 1493 
 
 V. Lincoln 978 
 
 Herbert v. Wren 684, 694, 739, 741 
 Herbst v. Merrifield 1362 
 
 Hercules Powder Co. v. Knox- 
 
 ville R. Co. 1577 
 
 Herd v. Catron 1013 
 
 Herhold v'. Chicago 223 
 
 Herman v. Roberts 248, 249 
 
 Herr v. Payson 553 
 
 Herrell v. Sizeland 924, 932, 937 
 
 Herrick v. Graves \ 759 
 
 V. Hopkins 1512 
 
 V. Malin 1440 
 
 V. Marshall 161 
 
 V, Teachout 1042 
 
 Herring v. Richards 1464, 1474 
 
 Herriott v. Prime 1222 
 
 Hersberg v. Metzgar 61, 62 
 
 Herse v. Questa 1512 
 
 Hersee v. Simpson 1160 
 
 Hersey v. Chapin 845, 934 
 
 Hershey v. Meeker County Bank 
 
 1244 
 Hertell v. Bogert 1059 
 
 Herter v. Mullen 925, 949 
 
 Hervey v. Hervey 735 
 
 Herzig v. Blumenkrohn 867 
 
 Herzog ■». Title Guarantee & 
 
 Trust Co. 1229 
 
 Hesnard v. Plunkett 755 
 
 Hesperia Land & Water Co. v. 
 
 Rogers 197 
 
 Hessel v. Johnson 916, 916 
 
 Hester v. Hunnicutt • 1533 
 
 Hestonville, M. & F. Pass. R. 
 
 Co. T). Phila. 258 
 
 Hetfield v. Cent. R. Co. 327 
 
 V. Lawton 770, 927, 928, 929, 
 
 935 
 Heth V. Cocke 680, 1051 
 
 Hethrington v. Graham 704 
 
 Hetzel V. Barber 1227, 1241, 1245 
 Hewett V. Hewett 1232 
 
 Hewitt V. Crane 557 ' 
 
 V. Gen. Electric Co. 39 
 
 Hewline v. Shippam 329, 626, 633, 
 
 996 
 Hewlins v. Shippam 1461 
 
 Hext V. Gill 787 
 
 Hey V. Coleman 210 
 
 V. McGarth 922 , 
 
 Heyn v. New York L. Ins. Co. 72, 
 "• 1437 
 
TABLE OF CASES CITED. 
 [References are to pages.] 
 
 lix 
 
 Hibberd v. Smith 1438 
 
 Hibbert v. Trask 1474 
 
 Hibble white v. McMorine 1558 
 
 Hickey v. Lake Shore & M. R. 
 
 Co. 1438 
 
 V. Morrell 534, 535, 1543 
 
 Hickley v. Lake Shore & M. S. 
 
 R. Co. 1403 
 
 Hickman v. Link 1366 
 
 Hickox V. Chicago & C. S. Ry. 
 
 Co. 257 
 
 Hicks, Matter of 519 
 
 V. Cochran 977 
 
 V. Gildersleeve 1321 
 
 V. Silliman 269 
 
 V. Stebbins 670 
 
 V. Swift Creek Mill Co. 328 
 
 Hidden v. Jordan 508 
 
 Hide V. Whistler 1499 
 
 Hieatt v. Morris 291 
 
 Hier v. Mill Haven Co. 325 
 
 Higbie v. Westlake 694 
 
 Higby V. Rice 960, 961 
 
 Higginbotham v. Comwell 745 
 
 Higgins, Matter of 1551 
 
 V. Downs 1171 
 
 V. Eagleton 571 
 
 V. Flemmgton W. Co. 300 
 
 V. Kingsley 1342 
 
 V. Kusterer 58 
 
 V. McConnell 664 
 
 V. Ormsby 661 
 
 V. Reynolds 272 
 
 Highberger v. Stiffler 544 
 
 Hfflnbotham v. Stoddard 1375, 1504 
 
 Higman v. Humes 1347 
 
 V. Stewart 1474 
 
 Higueras v. U. S. 1512 
 
 HUboury v. Fogg 894 
 
 Hildebrand v. Fogle 1514 
 
 V. Wilhg 1468, 1470 
 
 Hildreth v. Thompson 663, 700 
 
 Hiles V. Fisher 955, 978, 979, 1447 
 
 Hill V. Bartholomew 1475 
 
 V. Bishop of Exeter 561 
 
 V. Bishop of London 522, 525 
 
 V. Chicago, St. L. & N. O. 
 
 R. Co. 232 
 
 V. Cornwall 676 
 
 V. De Rochemont 66 
 
 V. Epley 1341 
 
 V. Gray 535 
 
 V. Hayes 905 
 
 V. Hill 70, 322, 323, 327, 433 
 452, 454, 551, 1259 
 V. Lord 151, 166, 211, 221, 
 
 308, 309 
 V. Mundy 24 
 
 V. Nye 1318 
 
 V. Ressegieu 1535 
 
 V. Sewald 18 
 
 V. Wentworth 22, 23 
 
 Hillary v. Gay 950 
 
 V. Waller 254, 258, 462 
 
 Hillen v. Iselin 500, 1227, 1228, 
 
 1230, 1233, 1236, 1272, 1280 
 
 Hiller v. Jones 565 
 
 Hilliard v. Gal. Coal Co. 275 
 
 V. Scoville 996 
 
 Hills V. EUot 1049 
 
 V. Simonds 1284 
 
 Hilsenbeck v. Guthring 861, 906 
 
 Hilton V. Bender 1432 
 
 V. Hilton 1320 
 
 V. Milburn's Ex'rs 1189 
 
 Himmelmann v. Fitzpatrick 1105 
 Hinchliffe v. Shea 703, 712 
 
 Hinchman v. Stiles 694, 718 
 
 Hinckel v. Stevens 309 
 
 Hinckley v. Fields B. & C. Co. 1577 
 Hindley v. Manhattan R. Co. 203 
 Hinds V. Allen 1538 
 
 V. Ballon 679, 681, 1070 
 
 Hindson v. Ashby 1329, 1330 
 
 V. Weatherill 553 
 
 Hines v. Hamburgher 182 
 
 V. Trantham , 964 
 
 Hinkle v. Landis 566 
 
 Hinkson v. Lees 1163, 1164 
 
 Hinsdalev. Humphrey 1403,1518, 1519 
 
 V. Thornton 1467 
 
 Hirsh V. Auer 436, 468 
 
 Hiss V. Hiss 440 
 
 Hitchcock V. Harrington 681, 690 
 
 V. Libby 1515 
 
 Hitner's Appeal 736 
 
 Hitner v. Ege 775 
 
 Hitz V. National Met. Bk. 650 
 
 Hoag V. Hoag 465, 901 
 
 V Place 159 
 
 Hobart v. Hobart 1000, 1551 
 
 Hobbs V. King ■ 1538 
 
 Hoblyn v. Hoblyn 556 
 
 Hoboken v. Pa. R. Co. 296 
 
 Hoboken Land Co. v. Hoboken 224, 
 
 225 
 Hoboken Land Imp. Co. v. 
 
 Kerrigan 1507 
 
 Hobson V. Gorringe 15, 19, 35, 36 
 
 V. Phila. 1507 
 
 V. Roles 1057 
 
 Hockenbury v. Carlisle 554 
 
 Hockman v. Hockman 1570 
 
 Hodge V. Amerman 574 
 
 V. Sloan 188 
 
 Hodgens v. Powell 1498 
 
 Hodges V. Colcord 1409 
 
 V. S. R. Co. 232 
 
 V. Verner 508 
 
 V. Winston 758 
 
 Hodgkins v. Farrington 202, 287, 
 
 292, 321. 330 
 
 Hodgkinson v. Enner 305 
 
 V. Fletcher 1365 
 
Ix 
 
 TABLE OP CASES CITED. 
 
 Hodgsoij V. Farrell 538 
 
 Hodson V. Coppard 882 
 
 Hoeffer v. Clogan 478, 484 
 
 Hoepfner v. Sevestre 1372 
 
 Hoeveler v. Flenaming 129, 848 
 
 Hoey V. Jarman 1441 
 
 H6£f V. Tobey 1512 
 
 HoEfar v. Dement 967, 968 
 
 Hofferberth v. Meyers 904, 905 
 
 Hoffman v. Armstrong 65, 199 
 
 V. Carrow 519 
 
 V. Delihanty 881 
 
 V. Hoffman 901 
 
 V. Kuhn 263, 288, 294 
 
 V. Savage 262 
 
 V. Stigers ' 955, 976 
 
 Hogan V. Barry 161, 273 
 
 V. Cent. Pac. R. Co. 232 
 
 V. Curtin 1023 
 
 V. Grosvenor 1551 
 
 V. Kavanogh 463 
 
 Hogdon II. Shannon 989 
 
 Hoge V. Hogfe 636 
 
 Hoghton V. Hoghton 542, 547 
 
 Hogsett V. Ellis 941, 942, 1069 
 
 Hoitt V. Hoitt 1555 
 
 Holbrook v. Chamberlin 
 
 V. Young 
 
 Holcomb V. Coryell 
 
 Holden v. Chandler 
 
 V. Garrett 
 
 V. Wells 
 
 Holdfast V. Dowsing 
 
 V. Marten 
 Holdom V. Ancient Order of U. 
 
 W. 
 
 Holford V. Hatch 869, 870, 874 
 
 Holland v. Alcock 475, 478, 479, 
 
 483, 484, 498, 499, 
 
 500, 1231 
 
 V. Brown 
 
 V. Keyes 
 
 V. Loi^ 
 
 V. Peck 
 
 HoUenback v. Rogers 
 
 Hollenbeck v. McDonald 
 
 Holley V. Glover 
 
 HoUiday v. Marshall 
 
 V. Overton 
 HoUingsworth v. Flint 
 HoUis V. Bums 923, 926, 929, 946 
 V. Drew Theological Semin- 
 ary 483 
 V. Pool 911, 938, 943 
 HoUmann v. Platteville 70 
 Holloway v. Headington 448 
 V. Hill 838 
 V. Holloway 1004 
 Holly V. Gibbons 1231 
 V. Hirsch 495 
 Holman v. Creagmiles 1528 
 V. Holman 1345 
 
 [Reteiences are to pages.] 
 
 Holman v. Loynes 
 V. Wesner 
 
 Holmes, Matter of 
 V. Bellingham 
 V. Best 
 V. Buckner 
 V. Danforth 
 V. Oilman 
 V. Goring 
 V. Loynes 
 V. Mead 
 V. Penney 
 V. Railroad 
 
 1463 
 847 
 971 
 
 1512 
 
 1575 
 642 
 
 1553 
 593 
 
 537 
 
 674, 1364 
 591 
 208 
 484 
 513 
 265 
 675 
 870 
 430 
 713 
 
 553 
 
 617 
 
 1421, 1671 
 
 1509 
 
 961 
 
 1492 
 
 1527 
 
 ~ 4, 517, 620 
 
 178, 180 
 
 543 
 
 491, 499, 500 
 
 563 
 
 1337 
 
 «. Seashore Electric Ry. Co. 1112 
 
 V. Seely 180, 181 
 
 V. Seh' 984 
 
 V. Seller 160, 166 
 
 V. Tremper 39, 40 
 
 V. Trout 1514 
 
 Holt V. Fleischman 190 
 
 V. Murphy 1411 
 
 V. Wilson 976 
 
 Holt Mfg. Co. V. Thornton 796 
 
 Holt's Will 1662 
 
 Holtzman v. Douglas 1366 
 
 Holyoke v. Jackson 982 
 
 Home Life Ins. Co. u. Sherman 
 
 846, 849 
 Home Mut. L. Ins. Co. v. 
 
 Marshall 472 
 
 Hone V. Van Schaick 745 
 
 Honywood v. Honywood 767, 782 
 
 Hoo'd V. Oglander 455, 466, 457 
 
 Hood-Barrs v. Heriot 472 
 
 Hoogland w. Watt 711 
 
 Hooker v. Cummings 308, 1018 
 
 V. Hooker 646, 1187 
 
 V. Utica, etc. Turnpike Co. 912, 
 
 1145 
 
 Hoole V. Atty.-Gen. 225 
 
 Hooper v. Feigner 462 
 
 V. Scheimer 1412 
 
 Hoopes V. Bailey 1036 
 
 Hoosier Stone Co. v. Malatt 215, 
 
 ' 242, 271 
 
 Hooven, etc. Co. v. Featherstone 
 
 1577 
 
 Hope V. Blair 1575 
 
 V. Brewer 483, 1286 
 
 V. Hope 652, 654 
 
 Hopewell Mills v. Taunton Sav. 
 
 Bk. 16 
 
 Hopkins v. Grimshaw 428, 429, 
 
 477, 482, 487, 490, 492, 
 
 526, 695, 1266, 1273, 
 
 1281 
 
 II. Hopkins 423, 424, 829, 998 
 
 V. Kent 461, 462, 465, 494 
 
 V. Paxton 1504 
 
 V. Randolph 564 
 
 Hoppe V. Fountain 757, 758 
 
 Hopson V. Fowlkea ' 979 
 
TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Ixi 
 
 Hopper V. Barnes 
 
 216 
 
 V. Hopper 
 Hoppes V. Cheek 
 
 550 
 846 
 
 Horan v. Thomas 
 
 818 
 
 Horgan v. Bickerton 
 
 993 
 
 Horn V. Baker 
 
 23,47 
 
 V. Horn 
 
 1361 
 
 V. Indianapolis Nat. Bk. 1066 
 V. Miller 1540, 1542 
 
 Hornbeck v. Westbrook 166 
 
 Hornbeck's Ex'r v. American 
 
 Bible Soo. 498 
 
 Horndorf v. Homdorf 1282 
 
 Home V. Ingraham 437 
 
 V. Smith 1407, 1503, 1505 
 
 Homer v. Bellinger 139 
 
 V. Ellis 961 
 
 V. Leeds 809, 911 
 
 V. Stillwell 199, 258, 261 
 
 Horsey v. Hough 538 
 
 Horsley v. Riish 810 
 
 Horstmann v. Flege 739, 740, 741 
 
 Horton v. Bauer 1531, 1533 
 
 V. Murden i 1459 
 
 ». N. Y. C. & H. R. R. Co. 911 
 
 V. Sledge 666 
 
 Horwitz V. Norris 1227, 1228 
 
 Hosford V. Ballard 127, 394 
 
 Hostetter v. Los Angeles Ter. 
 
 R. Co. 1504 
 
 Hotchkin v. Third Nat. Bk. of 
 
 Malone 534 
 
 Hotehkys, In re 776, 778 
 
 Hotel Co. V. Marsh 765 
 
 Hothom V. Louis 1079 
 
 Hotz's Estate 1013 
 
 Houghton V. Chicago R. Co. 59 
 
 V. Mendenhall 291 
 
 V. Pierce 1369 
 
 V. Richardson 535 
 
 Houlton V. Dunn 541 
 
 Houpes V. Alderson 247 
 
 Hourmelin v. Sheldon 414 
 
 House ■«. Carr 1120 
 
 V. Fowle 715, 736 
 
 V. House 29, 30 
 
 V. Jackson 679, 683, 702, 717, 
 
 1157, 1181, 1190, 1252 
 
 V. Lockwood 694, 1116 
 
 V. McCormick 1344, 1348, 1350 
 
 V. Metcalf 903, 905 
 
 Houseman v. Grossman 565 
 
 Houston V. Laffee 323 
 
 V. Randolph 1481 
 
 V. Thomton 534 
 
 Hout V. Hout 1478 
 
 Hovey v. Blanchard 573 
 
 V. Hobson 1445, 1446 
 
 How V. Weldon 539 
 
 Howard v. Amer. Peace Soc. 490 
 
 V. Edgell 538 
 
 V. Fanshawe 819 
 
 Howard v. Haley 
 
 1088 
 
 V. Howard 
 
 460, 538 
 
 V. Hunter 
 
 1556 
 
 V. Merriam 
 
 927 
 
 V. Moffatt 
 
 750 
 
 V. Reedy 
 
 1367 
 
 V. Robbins 
 
 1085 
 
 V. State 
 
 217 
 
 Howard Ins. Co. ■». Halsey 575, 1091 
 
 Howe V. Bachelder 61, 62, 63 
 
 V. Bell 1502 
 
 V. Hodge 1054 
 
 V. Howe 544, 1445 
 
 V. Stevens 69 
 
 V. West End St. R. Co. 230 
 
 Howe's Ex'rs v. Van Schaick 1279 
 
 Howell V. Estes 172, 264 
 
 V. Jones 757, 758 
 
 V. King 184, 245 
 
 V. Leavitt 209, 1372 
 
 V. Newman 700 
 
 V. Schenck 61, 769, 865 
 
 V. Western R. Co. 1079 
 
 Howells V. Hettrick 1048, 1090 
 
 V. McGraw 727 
 
 Howgate, In re 1438 
 
 Howie V. Kasnowitz 1458, 1467 
 
 Howland v. Blake 510 
 
 V. Coffin 124, 880 
 
 Howse V. Chapman 480 
 
 Howton V. Freason 177 
 
 Howze V. Dew 1051 
 
 Hoxie V. Carr 510 
 
 Hoxsie V. Ellis 664, 997 
 
 Hoyle V. N. Y. &. N. E. R. Co. 204 
 
 V. Plattsburgh & M. R. Co. 21, 
 
 22 57 
 
 Hoyt V. Hoyt 1055, 1224 
 
 V. Ketcham 1018 
 
 V. KimbaU 1010, 1015 
 
 V. Latham 649 
 
 V. McLagan 1472 
 
 V. Swift 1099 
 
 Hrouska v. Janke 1455 
 
 Hubbard v. Barry 1362 
 
 V. Gilbert 616 
 
 V. Goodwin 512 
 
 V. Greeley 1470 
 
 V. Housley 1217 
 
 V. Hubbard 1016 
 
 V. Norton 1343, 1624, 1530 
 
 V. Shaw 864, 927 
 
 V. Town 276 
 
 Hubbell V. Hendrickson 1038, 1039, 
 
 1040 
 V. Moulson 1049,1064 
 
 V. Warren 188 
 
 Hubble V. Cole 781 
 
 Huber v. Ryan 849 
 
 Hubschman v. McHenry 54 
 
 Buck V. Flentye 291, 293, 294 
 
 Huckins v. Straw 1050 
 
Ixii 
 
 TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Huddersfield Banking Co. v. 
 
 Lister 31 
 
 Hudson V. Steere 1628 
 
 V. WMte 795 
 
 V. Wright 511 
 
 Hudson R. Tel. Co. v. Watervliet 
 
 Turn. & R. Co. 230 
 
 Huff V. McAuley 158 
 
 V. McCauley 151, 307, 324, 802 
 
 V. McDonald 961, 962, 989 
 
 Huffman v. Hall 223 
 
 Huggins V. Ketchum 1575 
 
 V. Yates 522 
 
 Hughes V. Allen 676 
 
 V. Edwards 1014 
 
 V. Harlan 1021, 1076 
 
 V. Mackin 1231 
 
 V. Tabb 580 
 
 V. White 510, 518 
 
 V. WiUiamson's Lessee 1486 
 
 Hughes Lumber Co. ■;;. Valentine 
 
 1515 
 Hugnly Mfg. Co. v. Galeton Mills 
 
 1065 
 
 Huguenin v. Baeeley 564, 567 
 
 V. Beasley 536 
 
 Hulbert v. Clark 1048 
 
 Hulick V. Scovil 1474 
 
 Hull V. Cronk 1107 
 
 V. Glover 1475 
 
 V. Hull 1288 
 
 V. Lund 1500 
 
 V. McCall 1073 
 
 V. Woods 1362 
 
 HuUey v. Security Trust Co. 276 
 
 Huhne v. Tenant 472 
 
 Hulse V. Bacon 714, 753 
 
 Humbertson v. Humbertson 432 
 
 Humble v. Curtis 1060 
 
 Hume V. Randall 1214 
 
 V. United States 538 
 
 Humes v. Bernstein 1377 
 
 V. Gardner 850 
 
 Hummelman v. Mounts 1469 
 
 Humphrey v. Phinney 695, 697 
 
 Humphreys v. Blaisingame 261 
 
 V. Eastlock 1508 
 
 V. McKissock 1498, 1499 
 
 Humphries v. Brogden 279, 283, 
 
 284 285 
 
 Hunford v. Thayer ' 238 
 
 Hungerford v. Wagoner 929 
 
 Hunkins v. Hunkins 703 
 
 Hunnicutt v. Peyton 1362 
 
 Hunt V. Bailey 947 
 
 V. Bay State Iron Co. 31, 34, 56 
 
 V. Blackburn 976 
 
 V. Gray 1439 
 
 V. Hall 786 
 
 V. Johnson 753 
 
 V. Kingston 1312, 1315 
 
 V. Matthews 566 
 
 Hunt V. Moore 
 
 612 
 
 V. Raplee 
 V. Reilly 
 
 1523 
 
 721 
 
 V. Rousmanier 
 
 322, 656, 
 
 
 817, 1078 
 
 V. Suayze 
 
 1091 
 
 Hunter, Matter of 
 
 224, 478 
 
 V. Anderson 
 
 1223 
 
 V. Dermis 
 
 1073, 1505 
 
 V. Himie 
 
 1614 
 
 V. Himter 
 
 136, 137, 1471 
 
 V. Law 
 
 758 
 
 V. Osterhaudt 
 
 1016 
 
 V. Truckee Lodge 1578 
 
 V. Whitworth ~ 649 
 
 Hunter's Appeal 751 
 
 Hxmtington v. Asher 58, 151, 163, 
 
 248, 249, 308 
 
 V. Huntington 678 
 
 V. Parkhurst 925, 933, 937 
 
 V. Whaley 1368 
 
 Huntley v. Huntley 446 
 
 V. Kingman 664 
 
 Huntress v. Portwood 1498 
 
 Hurd V. Curtis 1541 
 
 V. Cushing 765 
 
 Hurdman v. Nor. East R. Co. 302 
 
 Husband v. Aldrich 973, 990 
 
 Huse V. Den 70 
 
 Huson V. Yoimg / 247 
 
 Huss V. Stephens 1455, 1456, 1457 
 
 Hussey v. Castle 667 
 
 V. Hufferman 53 
 
 V. Ryan 903 
 
 Hussman v. Durham 1410, 1412 
 
 Huston V. Steele 663 
 
 Hutchings v. Huggins 759 
 
 Hutchins v. Carleton 1455, 1459 
 
 V. Heywood 411 
 
 V. King 63, 1029 
 
 V. Lee 436 
 
 V. Van Vechten 436, 438, 439 
 
 Hutchinson & Tenant, In re 452 
 
 V. Alberding 671 
 
 V. Copestake 266 
 
 V. Cummings 869 
 
 V. Hutchinson 627 
 
 Hutchinson Investment Co. v. 
 
 Caldwell ^ 1297, 1316 
 
 Huttemeier v. Albro 160, 171, 265 
 Hutto V. Tindall 225 
 
 Hutton V. Benkard 1239 
 
 Huyck V. Andrews 162, 1526, 1627, 
 
 1530 
 
 Hyatt V. Griffiths 946 
 
 V. Pugsley 1303 
 
 V. Wood 944 
 
 Hyer v. Little 543 
 
 Hyman v,. Boston C. M. 1532 
 
 V. Haufif 675 
 
 Hyndman v. Hyndman 552, 664 
 
TABLE OF CASES CITED. 
 [BefereuceB are to pages.] 
 
 I. 
 
 Ibbetson, In re 
 Ibbs V. Richardson 
 Ide V. Ide 
 Idle V. Cooke 
 Ilchester, Ex parte 
 
 1556 
 
 942 
 
 1256 
 
 604, 861 
 
 1554 
 
 Illinois Cent. R. Co. v. Illinois 59, 
 
 147, 240, 297, 298 
 V. Miller 302 
 
 Illinois Starch Co. v. Ottawa Hy- 
 draulic Co. 1117 
 Illinois Steel Co. v. Budsisz 1366 
 Imhoff V. Witmer 1445 
 Imlajr V. Union B. R. Co. 232 
 Inchiquin v. French 441 
 Incledon v. Northcote 740 
 Ind. School Dist. of West Point 
 
 ii. Werner 1570 
 
 Indian Head Bank v. Clark 573 
 
 Indiana, etc. R. Co. v. Swannell 
 
 580 
 Indianapolis Abattoir Co. v. 
 
 Temperly 
 Ingalls V. Hobbs 
 V. Morgan 
 V. Newhall 
 V. Plamondon 
 Ingersoll, Matter of 
 V. Sergeant 
 
 860 
 
 861 
 
 1086 
 
 962, 963 
 
 170, 172, 291 
 
 452, 453, 500 
 
 „ 123, 130, 134, 388 
 
 Inglis V. Sailors' Snug Harbor 485, 
 
 492 
 
 895, 897, 936 
 
 456 
 
 1438 
 
 905 
 
 County 
 
 228 
 
 146 
 
 1546 
 
 53 
 
 548 
 
 881 
 
 794 
 
 Ingraham v. Baldwin 
 Ingram v. Fraley 
 
 V. Little 
 Ingwersen ■;;. Rankin 
 Inhabitants, etc. v. 
 
 Comm'rs 
 Inhab. of Palmyra v. Pa. R. Co. 
 
 Inhabitants of Phillipsburgh v. 
 
 Bruch's Exec'rs 
 Inhab. of Sudbury v. Jones 
 Inlow V. Christy 
 Innan v. Morris 
 Insurance Co. v. Haven 
 International Trust Co. v. 
 
 Weekes 911, 912, 920 
 
 Inter-State Bldg. Ass'n v. Ayers 
 
 1577 
 Investment Co. u. O. & N. R. 
 
 Co. 164 
 
 Iowa L. & T. Co. V. King 702, 1124 
 
 Ireland v. Gerahty 485 
 
 V. Nichols 816 
 
 Irey v. Markey 1360, 1361 
 
 Iron S. M. Co. v. Chusman 316 
 
 Ironmongers' Co. v. Atty.-Gen. 490 
 
 Irvine v. Irvine 1348, 1349, 1443 
 
 V. Sullivan 523, 525 
 
 i;. Tarbat 1413 
 
 V. Wood 905 
 
 Irving V. Campbell 
 Irving V. DeKay 
 Irvings v. Thomas 
 Irwin V. Brown 
 
 V. Dixon 
 Iseham v. Morrice 
 IseUn V. Starin 
 Iseman v. Mayers 
 Isenhart v. Brown 
 Isett V. Lucas 
 Isham V. Bennington Iron 
 Issitt V. Dewey 
 Ithaca Church v. Bigelow 
 Ive V. Sams 
 Iverson v. Swan 
 Ives V. Ashley 
 
 V. Williams 
 Ivory V. Bums 
 
 V. Klein 
 Izod V. Izod 
 Izon V. Gorton 
 
 J. 
 
 Ixiii 
 
 1488 
 
 497 
 
 535 
 
 974, 990 
 
 218 
 
 1385 
 
 214, 1342 
 
 499 
 
 745 
 
 636, 1058 
 
 Co. 1488 
 
 1474 
 
 68 
 
 917 
 
 1342 
 
 548, 549 
 
 947 
 
 439, 441 
 
 773 
 
 467 
 
 927 
 
 Jackman v. Arlington Mills 299 
 
 Jackson v. Aldrich 
 
 
 936 
 
 V. Allen T 
 
 
 912, 1016 
 
 V. Alsop 
 
 1297, 
 
 1321, 1563 
 
 V. Andrew 
 
 
 784 
 
 V. Babcock 
 
 
 323 
 
 V. Bard 
 
 
 1345 
 
 V. Blodgett 
 
 
 1058 
 
 V. Bodle 
 
 
 809 
 
 V. Bryan 
 
 ( 
 
 937, 1349 
 
 V. Brownson 
 
 
 767, 782 
 
 V. Buel 
 
 
 883 
 
 V. Bull 
 
 
 594 
 
 V. Burgott 
 
 
 1580 
 
 11. Cadwell 661 
 
 1393, 
 
 1399, 1424 
 
 V. Cary 
 
 
 461 
 
 V. Catlin 
 
 
 1471 
 
 V. Collins 
 
 
 126 
 
 V. Cory 
 
 
 1454 
 
 V. Croy 
 
 
 1475, 1476 
 
 V. Crysler 
 
 
 1016 
 
 V. Davis 
 
 
 897 
 
 V. Delacroix 
 
 
 809 
 
 V. Dillon 
 
 
 1399 
 
 V. Douglass 
 
 
 1417 
 
 V. Dubois 
 
 
 1090 
 
 V. Dunsbagh 
 
 1384, 
 
 1393, 1395, 
 1396, 1466 
 
 V. Edwards 661, 662 
 
 , 675, 1215, 
 
 
 
 1218 
 
 V. Farmer 
 
 
 951 
 
 V. Feller 
 
 
 512 
 
 V. Gardner 
 
 
 913 
 
 V. Garnsey 
 
 
 561 
 
 V. Gilchrist 
 
 
 1388 
 
 11. Green 
 
 
 1448 
 
 V. Gumaer 
 
 
 1378 
 
Ixiv 
 
 Jackson v. Harrison 
 V. Harsen 
 V. Hart 
 V. Hartwell 
 V. Hathaway 
 V. Hayner 
 V. Holloway 
 V. Huntington 
 V. Hurlock 
 
 TABLE OP CASES CITED. 
 [BeferenceB are to pages.] 
 
 818, 867 
 
 901, 1368 
 
 1413 
 
 414 
 
 164, 243 
 
 1476 
 
 1545 
 
 900 
 
 1560 
 
 V. Jackson 650, 653, 655, 1464, 
 1550 
 
 V. Jacoby 1440 
 
 V. Johnson 637, 640, 651 
 
 V. Kingsley 933 
 
 1). Kisselbrack 812 
 
 V. Kniffen 1174 
 
 V. Lawton 1413 
 
 V. Leonard 1365 
 
 V. Littell 1351 
 
 V. Livingston 970 
 
 V. Limn 1325, 1414 
 
 V. Lynch 1076 
 
 V. Mancius 765, 766 
 
 V. Marsh 1538 
 
 V. Matsdorf 513 
 
 V. McClellan 126 
 
 V. McConnell 1505 
 
 V. McKenny 810 
 
 V. McLeod 943 
 
 V. Merrill 594 
 
 V. Middleton 1190, 1423 
 V. Moore 463, 510, 974, 1370 
 
 V. O'Donaghy 659, 699 
 
 V. Parkhurst 940, 941, 942 
 
 V. Perrine 1500. 1508 
 
 V. Phillips 428, 474, 475, 477, 
 479, 480, 481, 487, 490, 1477, 
 1478 
 
 V. Pierce 933 
 
 r. Roby 316 
 
 1!. Root 1455, 1459 
 
 •». Rounseville 68 
 
 1). Rowland 897, 1472 
 
 1). Schoonmaker 1345, 1363 
 
 'v. Schutz 912 
 
 V. Sebring 1392, 1393 
 
 V. Sellick 685 
 
 V. Seward 565 
 
 V. Sheldon 912 
 V. Silvemail 766, 867, 870, 872 
 
 V. Smith 989, 1567 
 
 ■». Stackhouse 1387 
 
 V. Sternberg 828 
 
 V. Stevens 753, 1348 
 
 V. Stiles 901 
 
 V. Topping 595 
 
 V. Turrell 1064 
 
 V. Vanderheyden 664, 721 
 
 V. Van Hoesen ' 764 
 
 V. Van Zandt 690, 618 
 
 V. Vermilyea 1362 
 
 V. Walsh 559 
 
 Jackson v. Waltermire 
 
 669 
 
 V. Wells 
 
 593 
 
 V. Widger 
 
 1502 
 
 V. Wilcox 
 
 1412 
 
 V. Willard 
 
 678, 1071 
 
 V. Wilsey 
 
 922 
 
 V. Woodruff 
 
 1360 
 
 V. Wright 
 
 1346 
 
 Jackson Lumber Co. v. McCreary 1366 
 Jackson & S. Co. v. Phila. W. & 
 
 B. R. Co. 324 
 
 Jackson Co. v. Phila. W. & R. Co. 158 
 
 Jackson d. Gratz v. Catlin 417 
 
 NichoU V. Brown 1182, 1183 
 
 Van Buren v. Meyers 565 
 
 Varick V. Waldron 1252 
 
 Jackson ex dem. Trowbridge v. 
 
 Dunsbagh 1203 
 
 Jackson ex dem. Wadsworth 
 
 V. Wendell 1466 
 
 Jackson's Will, In re 1224 
 
 Jacksonville Bank v. Beesley 507, 
 
 508, 510 
 
 Jacksonville, etc. Co. v. Hooper 1466 
 
 Jacobs, Matter of 561 
 
 V. Ludemann 557 
 
 V. Mickle 1124 
 
 V. Morrison 563, 575, 621 
 
 Jacobson, Matter of 1550 
 
 Jacoby's Estate 1550 
 
 Jaffe V. Harteau 857 
 
 Jamaica Pond Aqueduct Co. v. 
 
 Chandler 166, 216, 257 
 
 James, Matter of 446, 562 
 
 V. Cohen 1561 
 
 V. Du Bois 617, 618 
 
 V. Kerr 539, 540 
 
 V. Lewis 1512, 1561 
 
 V. Morey 466, 681, 1297 
 
 V. Morgan 538 
 
 ■V. Patten 1462, 1463 
 
 V. Plant 263 
 
 V. Smith ■ 507, 559 
 
 V. Stevenson 261 
 
 James White Memorial Home v. 
 
 Haeg 1548 
 
 Jameson v. Hayward 995 
 
 V. Rixley 1003 
 
 Jamieson v. Millemann 323, 330 
 
 Jamison v. McWhorter 1178 
 
 V. Miller 1574 
 
 Janes v. Falk 444 
 
 V. Jenkins 170, 274 
 
 Jangraw v. Mee 1365 
 
 Jansen v. McCahill 1465 
 
 Jaques v. Gould 855 
 
 V. Hall 437 
 
 Jaqui V. Johnson 250 
 
 Jaquith v. Mass. Bap. Convention 513 
 
 Jarboe v. Hey 470 
 
 Jarman v. Wiswall 1125 
 
 Jarnigan v. Jarnigan 710 
 
TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Jarrah T. & W. P. Corp. v. 
 
 Samuel 1031, 1076 
 
 Jarvis v. Aikens 1339 
 
 V. Brooks 983 
 
 V. Dean 225 
 
 V. Driggs 886, 888 
 
 V. Honman 755 
 
 V. Lynch 1510 
 
 Jay V. Michael 179 
 
 Jaycox w. Smith 1133 
 
 Jefferies v. Allen 720 
 
 Jefferis v. East Omaha L. Co. 1329 
 
 Jefierson Co. Bldg. Ass'n v. Heil 1474 
 
 Jeffery v. Hursh 1047 
 
 Jeffrey v. Moran 1570 
 
 Jeffries v. Jeffries 187 
 
 Jeffrys v. Jefferys 448 
 
 Jemison v. Bell Telephone Co. 113 
 
 Jemmit v. Varrel 480 
 
 Jemmott v. Cooley 137 
 
 Jenkins v. Collard 1333, 1344, 1348, 
 
 1350 
 
 V. Eldridge 437, 535 
 
 V. Fahey 996 
 
 V. Good C. & M. Co. 563 
 
 V. Holt 737 
 
 V. Jenkins 523, 818, 1443, 1454 
 
 V. Keymes 615 
 
 V. Pye 556 
 
 Jenkinson v. Auditor General 1432 
 
 V. Winans 897 
 
 Jenks V. Horton 773 
 
 V. Quinn 1538 
 
 Jenkyn v. Vaughan 564 
 
 Jenner v. Morgan 131, 132 
 
 Jennings v. Broughton 535 
 
 V. Conboy 1218, 1245 
 
 V. Moore 1058 
 
 V. Selleck 522 
 
 V. Tisbury 217 
 
 V. Van Schaick 907 
 
 Jennison v. Walker 250 
 
 Jeremiah v. Pitcher 614, 516 
 
 Jermyn v. Hunter 34 
 
 Jerome v. Ortman 1467 
 
 Jervis v. Bruton 615 
 
 Jessup V. Bamford B. Co. 301 
 
 Jewell V. Porter 763 
 
 Jewett V. Feldheiser 703, 726 
 
 V. Hussey 204, 205 
 
 Jewitt V. Brooks 852 
 
 Jillson V. Wilcox 613 
 
 Jimeson v. Pierce 1001 
 
 Jobling V. Tuttle 204 
 
 Johanson v. Atlantic City R. Co. 1367 
 
 John Hancock Mut. L. Ins. Co. 
 
 V. Patterson 173 
 
 Johns V. French 1571 
 
 V. James 449 
 
 V. McKibben 1361, 1363 
 
 V. Wilson 1103 
 
 Johnson v. Albertson 925 
 
 Johnson v. Barg 
 V. Brasington 
 V. Camp 
 V. Chely 
 V. Clarkson 
 V. Cole 
 V. Collins 
 V. Corbett 
 V. Farley 
 V. Farrell 
 V. Fesemeyer 
 V. Girtman 
 V. Grenell 
 V. Hoffman 
 V. Hunt 
 V. Johnson 
 V. Jordan 
 
 V. Kinnicut 
 V. Mcintosh 
 V. Mehaffey 
 V. Mellicott 
 V. Montgomery 
 V. Moore 
 
 Ixv 
 
 129, 854 
 1181 
 62 
 897 
 623 
 1321 
 1529 
 67, 659 
 1474 
 1548 
 553 
 1360 
 1609, 1511 
 797 
 16 
 490, 737, 933, 1468 
 160, 170, 171, 265, 
 1498 
 
 247 
 
 386, 1405 
 
 16 
 
 544 
 
 713, 714, 1455 
 
 1441 
 
 V. Nat. Exch. Bank 1571 
 
 V. Oppenheim 283, 846, 857 
 
 V. Preston 1268 
 V. Prosperity Loan Ass'n 1042 
 V. Shelter Island Grove Ass'n 
 
 1502 
 V. Shelter Island G. & C. M. 
 
 Assoc. 162, 188 
 
 V. Sherman 872 
 
 V. Shields 663, 664 
 
 V. Skilhnan 326 
 
 V. Smith 445, 712, 1670 
 
 V. Stagg 873, 874 
 
 V. Thomas 698, 700, 701 
 
 V. Thrower 896, 896 
 
 V. Toulmin 961 
 
 V. Van Velsor 711 
 
 V. Webster 913 
 
 V. Whiton 1174 
 
 V. Wilson 991 
 
 V. Zink 1066 
 
 Johnston's Estate 1264, 1273 
 
 Johnston v. Case 962, 1361, 1366 
 
 V. Dahlgren 662 
 
 V. Fumier 1444 
 
 V. Hargrove 818 
 
 V. Houston 1052 
 
 V. Hughes 602 
 
 V. Hyde 260' 
 
 V. Johnston 975, 977 
 
 V. Jones 1332 
 
 V. King 910 
 
 V. Knight 1238 
 
 V. Muzzay 1403 
 
 V. Smith 118 
 
 V. Spicer 425, 445, 1327 
 
 V. Swann 480 
 
 V. Van Dyke 660, 698 
 
Ixvi 
 
 TABLE OP CASES CITED. 
 [References are to pagea.] 
 
 Johnstone v. Haddlestone 926 
 
 Jokinisky v. Miller 1488 
 
 Joliet First Nat. Bk. v. Adams 31 
 
 Joliffe V. Baker 530 
 
 Jones, Matter of 51, 1453 
 
 V. A. & V. R. Co. 544 
 
 V. Adams 243, 268 
 
 V. Bragg 678 
 
 V. Brewer 694 
 
 V. Bnmime 903, 905 
 
 V. Caffey 651 
 
 V. Carter 593 
 
 V. City of Des Moines 714 
 
 V. Clark 
 V. Clifton 
 V. Davies 
 V. Devore 
 V. Dougherty 
 V. Durrer 
 V. Elkins 
 V. Fleming 
 V. Gardner 
 V. Gilbert 
 V. Habersham 
 i;. Hill 
 V. Holstein 
 V. Jones 
 
 897, 898, 1068, 1069 
 763 
 637 
 722 
 1552 
 797, 816, 1017 
 518, 620 
 743, 1447 
 661 
 758 
 1451, 1545 
 787 
 1504 
 101, 616, 753, 980, 
 981, 1013 
 V. Kelly 483 
 
 V. Leath 1504 
 
 V. Light 566 
 
 V. McNarrin 1045 
 
 V. Mitchell 1574 
 
 V. Moores 1579 
 
 V. Morgan _ 430 
 
 V. Obenchain 753 
 
 V. Palmer 481 
 
 V. Parker 679, 876, 1070 
 
 V. Percival 246, 249 
 
 V. Philipps 218 
 
 V. Pound Stone 1504 
 
 V. Powell 723 
 
 V. Pritchard 292 
 
 V. Reilly 126 
 
 V. Robbins 1477, 1478 
 
 V. Roe 1141, 1246, 1646 
 
 V. Rush 1038 
 
 V. Simpson 564 
 
 ■». Spartenburg Herald Co. 929 
 
 Joos V. Fey 
 
 JopUn V. Light Co. 
 
 Jordan v. Adams 
 V. Cheney 
 V. Roach 
 V. Sayre 
 V. Sullivan 
 V. Van Epps 
 
 977 
 
 146 
 1180 
 1058 
 
 617 
 1050 
 
 907 
 662, 675 
 
 Jordeson v. S. S. & D. Gas Co. 208, 
 
 1370 
 Jorgensen v. Squires 905 
 
 Joseph V. Ager 248 
 
 Joslin V. Rockwell 1431 
 
 Jourdan v. Dean 472 
 
 Joy V. St. Louis 160, 1518 
 
 Joyce V. Conlin 267 
 
 Judy V. Thompson 1100 
 
 JuUan V. Central Trust 143 
 
 JuU V. Jacobs 1194 
 
 Junction Mining Co. v. Spring- 
 field J. C. Co. 829 
 Jupiter M. Co. v. Bodie Const.. 
 M. Co. 316, 317, 318 
 
 Jupp V. Buckwell L. R. 
 Jutte V. Hughes 
 Juvenal v. Jackson 
 
 K. 
 
 Kabley v. Worcester Gas L. Co. 
 Kaes V. Gross 
 Kahn v. Chapin 
 Kain v. Fisher 
 Kaler v. Beaman 
 
 V. Campbell 
 Kalish V. Kalish 
 Kamena v. Huebig 
 Kamphouse v. Gaffner 
 Kane, Matter of 
 
 V. Bolton 
 
 V. N. Y. El. R. Co. 
 
 977 
 786 
 579 
 
 V. Swayze 
 V. TapUng 
 V. Thomas 
 V. Thompson 
 V. Towne 
 V. Van Bochove 
 V. Van Doren 
 V. Van Dosen 
 V. Varick 
 V. Wagner 
 V. Westcomb 
 V. Williams 
 V. Windwood 
 
 1473, 1474 
 
 266 
 
 61 
 
 544 
 
 69 
 
 267 
 
 1090 
 
 572 
 
 498 
 
 284 
 
 1194 
 
 475, 480 
 
 1243 
 
 813 
 759 
 548, 549 
 61, 685 
 249 
 299 
 533 
 635 
 322, 326 
 1464 
 206 
 231, 232, 
 272 
 1537 
 787 
 1511, 1612 
 300 
 
 V. Sanger 
 V. Vanderburgh 
 Kanouse v. Slockbower 
 Kansas v. Colorado 
 Kansas City M. & B. R. Co. v. 
 
 Lackey 302 
 
 Kansas City Milling Co. v. Riley 225 
 Kansas N. & D. R. Co. v. Cuy- 
 
 kendall 
 Kaplan v. Bergman 
 Kappell V, Bauey 
 KarmuUer v. Krotz 
 Katz V. Elaiser 
 Kaufman's Will, In re 
 
 Kaufman v. Clark 
 
 V. Peacock 
 Kay V. Pa. R. Co. 
 
 V. Scates 
 
 232 
 
 1527, 1629 
 
 1540 
 
 167, 1500 
 
 170 
 
 1527, 1528, 
 
 1658 
 
 845 
 
 662, 718 
 
 322 
 
 421 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Ixvii 
 
 Kea V. Robeson 1497 
 
 Kean v. Calumet Canal Co. 297 
 
 Keany v. Morse 471 
 
 Kearines v. CuUen 829, 903 
 
 Kearney v. Taylor 1429 
 
 Keates v. Cadogan 535 
 
 Keating v. Cincinnati 279 
 
 874 
 
 V. Condon 
 
 V. Springer 
 Keating I. & M. Co. i 
 
 Elec. L. & P. Co. 
 Keats V. Hugo 
 Keay v. Goodwin 
 Keays v. Blinn 
 Keech v. Hall 
 
 ■V. Sandford 
 Keegan's Estate, In re 
 Keeler v. Eastman 
 
 V. Keeler 
 Keeling v. Hoyt 
 Keely v. Moore 
 Keen v. Coleman 
 Kegerreis v. Lutz 
 Kehr v. Snyder 
 Keil V. Healey 
 Kein's Estate, In re 
 Keiper v. Klein 
 Keith V. Miller 
 Kekewich v. Manning 
 Keleman, Matter of 
 Kelland v. Fulford 
 Keller v. Nutz 
 Kelley v. Goodwin 
 
 V. Saltmarsh 
 
 V. Whitney 
 Kellogg V. Ames 
 
 V. Malin 
 
 V. Piatt 
 
 V. Smith 
 Kells V. Helm 
 Kelly V. Bloomingdale 
 
 V. Dunning 
 
 V. Dutch Church 
 
 V. Harrison 
 
 V. Kelly 
 
 V. McGrath 
 
 V. Meins 
 
 V. Nichols 
 
 V. Owen 
 
 V. Riunmerfield 
 
 V. Sheehy 
 
 V. Vames 
 
 V. Waite 
 Kelsey's Appeal 
 Kelsey v. Abbott 
 
 V. King 
 Kemp V. Bradford 
 
 V. New York Produce Ex- 
 change 
 Kempe v. Goodall 
 Kempshall ■». Stone 
 Kendall v. Case 
 
 273, 275, 276 
 Marshall 
 
 . 53 
 
 276, 277, 306 
 
 993 
 
 769 
 
 1050, 1068 
 
 551, 552 
 
 1548 
 
 767, 782 
 
 52 
 
 561 
 
 1548 
 
 1443 
 
 508 
 
 1332 
 
 1370 
 
 50 
 
 275, 1498 
 
 440 
 
 443 
 
 453, 456 
 
 50 
 
 1492 
 
 62 
 
 251 
 
 1061 
 
 1057 
 
 1524 
 
 1532, 1533 
 
 1505 
 
 291 
 
 1578 
 
 174, 302 
 
 851 
 
 1414 
 
 510 
 
 663 
 
 594 
 
 ,490 
 
 706 
 
 795 
 
 889 
 
 947 
 
 925 
 
 973 
 
 1432 
 
 231 
 
 1163 
 
 1318 
 894 
 787 
 
 1255 
 
 476, 482, 488; 
 
 Kendall v. Fader 
 
 1579 
 
 V. Mann 
 
 507 
 
 Keneage v. Elliott 
 
 118 
 
 Keneda v. Gardner 
 
 1376 
 
 Keniston v. Gorrell 
 
 . 774 
 
 Kenna, Matter of 
 
 1489 
 
 Kennard v. Miller's Ex'rs 
 
 477 
 
 Kennedy v. De Tafford 
 
 551, 552, 
 
 
 1065 
 
 V. De Trafford 
 
 960, 973 
 
 V. Fury 
 
 413 
 
 V. Hoy 
 
 1284 
 
 V. Kennedy 
 
 557, 647 
 
 V McCWskey 
 
 610, 518 
 
 V. Mineola, etc. Co. 
 
 1507 
 
 V. Owen 
 
 1403 
 
 Kennell v. Abbott 
 
 533 
 
 Kenner v. Amer. Contract Co. 1018, 
 
 
 1147 
 
 Kennett v. Plummer 
 
 1050 
 
 Kenney v. Collier 
 
 852 
 
 V. Parks 
 
 1468, 1470 
 
 V. Tucker 
 
 540 
 
 Kenny v. Udall 
 
 749 
 
 V. Seu Si Lun 
 
 817 
 
 Kensit v. Gt. Eastern R. Co, 299 
 
 Kent V. Dean 558 
 
 V. Gerhard 1040 
 
 V. Hopkins 1320, 1321 
 
 V. Kent 1557 
 
 V. Morrison 1226, 1255 
 
 V. Riley 564 
 
 V. Waite 163, 206 
 
 V. Welch 1532, 1537 
 
 V. Williams 1487 
 
 Kenyon, 7n re 1164 
 
 V. Kenyon 682, 1142 
 
 V. See 1188, 1189,-1190 
 
 V. Segar 1477 
 
 Keogh V. Daniell 43 
 
 Kepler v. Larson 1516 
 
 Keppell V. Bailey 839 
 
 Kerfoot v. Cronin 1492 
 
 Kerley v. Kerley 1758 
 
 Kerlin v. Campbell 522 
 
 Kern v. Howell 511 
 
 Kemochan v. N. Y. E. R. R. 
 
 Co. 845, 846, 925 
 
 Kerr, Matter of 146 
 
 V. Day 458 
 
 V. Freeman 1398 
 
 V. Kingsbury 44, 56 
 
 V. Vemer 1170 
 
 Kerrick v. Ruggles 1577 
 
 Kerrigan v. Tabb 484 
 
 Kerwin v. Post 1576 
 
 Kessler v. Letts 277 
 
 V. Pearson 863 
 
 Ketohem v. Bell 1067 
 
 Ketchum v. Newman 283 
 
 Keteltas v. Pentold 290, 1543 
 
 Kettle well v. Watson 573, 574 
 
IxYiii 
 
 Keuren v. Corkins 
 Kew V. Trainor 
 Keyes v. Wood 
 Keys V. Test 
 Kibler v. Miller 
 Kidd, Matter of 
 Kidder v. Bixford 
 
 TABLE OP CASES CITED. 
 [BeferenceB are to pages.] 
 
 1062 
 816, 1016 
 
 1061 
 
 1340 
 
 1239 
 
 566 
 
 972, 973, 990 
 
 Kiersted v. Orange & A. R. Co. 
 
 125, 831, 832, 881 
 
 Kiester v. Miller 
 Kilbum V. Adams 
 Kilford V. Blaney 
 Kilgour V. Ashcom 
 
 V. Gockley 
 Killmer v. Wuchner 
 KiUmore v. Hewlett 
 Kilpatrick v. Barron 
 
 V. Johnson 
 
 V. Peshine 
 Kimball v. Blaisdell 
 
 V. Blanchard 
 
 V. Cross 
 
 V. Eaton 
 
 V. Ladd 
 
 V. Lockwood 
 
 V. Rowland 
 
 V. Sattley 
 
 V. Walker 
 Kimbel v. Kimbel 
 Kimber's Est., In re 
 Kimberly, Matter of 
 Kimmel v. McRight 
 
 V. Shaffer 
 Kincaid's Appeal 
 BSncaid v. Kincaid 
 Kine v. Farrell 
 King T. Brigham 
 
 V. Carmichael 
 
 i;. Cole 
 
 V. Dennison 
 
 V. Donnelly 
 
 i;. Gilson 
 
 V. Grafton 
 
 V. Hamlet 
 
 V. Jones 
 
 v. King 
 
 V. Leake 
 
 V. Miller 
 
 V. Mitchell 
 
 V. Mullins 
 
 V. Newman 
 
 V. Pedly 
 
 V. Reynolds 
 
 V. Smith 
 
 V. Thompson 
 
 V. Tiffany 
 
 V. Townshend 
 
 V. Wlialey 
 
 V. Whiton 
 
 V. Wight 
 Kingdon v. Bridges 
 
 V. Nottle 
 
 914 
 205 
 
 1044 
 160 
 
 1058 
 
 776, 973 
 
 64 
 
 1227, 1279 
 
 1288 
 
 161 
 
 1346, 1361 
 
 463 
 
 812 
 
 1475 
 
 202 
 
 1068 
 
 818 
 
 60 
 
 1458 
 
 740 
 
 1608 
 
 953, 956, 1162 
 
 612 
 
 618 
 
 69, 70 
 
 1445 
 
 536 
 
 1367 
 
 989 
 
 594 
 
 522, 523, 526 
 
 458 
 
 1524 
 
 910 
 
 540 
 
 1623, 1531 
 
 50 
 
 224, 225 
 
 777, 782 
 622, 623 
 
 1333 
 
 1034 
 904 
 826 
 
 1365 
 
 65, 776 
 
 251 
 
 465 
 
 465 
 
 1227 
 
 290 
 
 512 
 
 1523, 1531 
 
 1100 
 
 Kingman v. Sinclair 
 
 Kingman & Co. v. Cornell, etc. 
 
 Co. 1474 
 
 Kingsbury v. Burnside 608 
 
 V. Collins 769 
 
 Kings Co. Fire Ins. Co. v. Stevens 1607 
 Kingsland v. Chittenden 1513 
 
 V. Clark 921 
 
 V. Murray 1427, 1428 
 
 Kingsley v. Goldsborough Land 
 Imp. Co. 
 
 V. Holbrook 
 
 V. Kingsley 
 
 V. McFarland 
 
 V. Siebrecht 
 
 V. Smith 
 Kingston-upon-HuU v. Homer 
 Kimmel v. Smith 
 
 Kinna v. Smith 
 Kinne v. Webb 
 Kinney v. Watts 
 
 V. Wells 
 Kinports v. Boynton 
 Kinsell v. Billings 
 Kinsey v. Bailey 
 
 V. Feller 
 Kinsley v. Abbott 
 
 V. Ames 
 Kinsolving v. Pierce 
 Kintner v. Jones 
 Kip V. Hirsh 
 Kippner v. Ijaverty 
 Kirby v. Potter 
 
 V. Talmadge 
 Kircher v. Sohalk 
 Kirk V. Crystal 
 
 V. Hamilton 
 
 V. Kirk 
 
 V. Turner 
 Kirkham v. Sharp 
 Kirkwood v. Finegan 
 Kirkpatrick v. Kirkpatrick 
 
 V. Yates Ice Co. 
 
 179 
 
 63 
 
 767 
 
 28 
 
 870 
 
 654 
 
 248 
 
 507 
 
 1054 
 
 567 
 
 825, 1343, 1346, 
 
 1347 
 
 1475 
 
 1672 
 
 27,29 
 
 36 
 
 666 
 
 988 
 
 940, 944 
 
 1376 
 
 518 
 
 465 
 
 1256 
 
 1511 
 
 674, 808 
 
 1057 
 
 33 
 
 1339, 1340 
 
 458, 500, 997 
 
 1468 
 
 244 
 
 277 
 
 682, 709 
 
 1512 
 
 Kirsch v. Tozier 550, 674, 581 
 
 Kirsheedy v. Union Dime Sav. 
 
 Inst. 1123 
 
 Kirtland v. Pounsett 933 
 
 Kirwan's Trust, In re 467, 668 
 
 Kischman v. Scott 647 
 
 Kiser v. Heuston 1490 
 
 Kissam v. Barclay 38, 41 
 
 V. Dierkes 1223, 1224, 1226, 
 
 1242 
 Kitchell V. Burgwin 757 
 
 Kitching v. Brown 191 
 
 Kites V. Church 119 
 
 Kittanning Academy v. Brown 
 
 1358, 1368 
 Ettle V. St. John 914 
 
 Kittredge v. Proprietors of 
 
 Locks & Canals 667 
 
TABLE OP CASES CITED. 
 [Ru'erenceB are to pages.] 
 
 Ixix 
 
 Kittredge v. "Woods 61, 63, 65, 66, 769 
 
 Kleeman v. Frisbie 1061 
 
 Klie V. Van Broock 783, 787 
 
 Kline v. Beebe 641 
 
 V. Jacobs 125 
 
 V. Kline 566 
 
 V. McDonnell "508 
 
 V. McGuckin 1071 
 
 V. Ragland 511, 513 
 
 Kling V. Dress 830 
 
 Klutts V. Klutts 671 
 
 KnSbe v. Sevelle 274 
 
 Knapp V. Burton 1375, 1378 
 
 V. Crane 1109 
 
 V. Hungerford 997 
 
 V. Marlboro 1632 
 
 V. St. L. T. R. Co. 232 
 
 V. Windsor 976 
 
 Knecken v. Voltz 244 
 
 Kneeland v. Van Valkenburgh 1508 
 
 Kneettle v. Newcomb 756 
 
 Kneller v. Lang 1360, 1367, 1368, 
 
 1375 
 Knickerbocker Ice Co. v. 42d 
 
 St. R. Co. 1508 
 
 Knight V. Bennett 925 
 
 V. Boughton 451, 452, 456, 
 
 457 
 
 V. Heaton 222 
 
 V. Knight 433, 451, 452, 1254 
 
 V. Land Ass'n 1413 
 
 V. Maroney 1013 
 
 V. Thayer 1348 
 
 V. Weatherwax 494 
 
 Knights V. Quarles 874 
 
 V. Simmons 161 
 
 Knoch V. Van Bermuth 581 
 
 KnoUenberg v. Nixon 1105 
 
 Knolls V. Banhart 959 
 
 Knoth V. Manhattan R. Co. 153 
 
 Knowles v. Hull 941 
 
 V. Dow 219, 221 
 
 V. Toothaker 1503, 1505 
 
 Knowlton v. Atkins 439, 496 
 
 Knox's Estate 1437 
 
 Knox V. Jones 495 
 
 Koch V. Roth 578, 1039 
 
 V. West 1489 
 
 Kocher v. Kocher 774 
 
 Koehle v. N. Y. El. R. Co. 269 
 
 Koehler v. Hughes 1469, 1473 
 
 Koehler & Co. v. Brady 817, 1017 
 
 Kolasky v. Michels 811 
 
 KoUock V. Scribner 811 
 
 Konvalinka v. Schlegel 741, 1217 
 
 Koplitz V. Gustavus 925 
 
 Kopp V. Gimther 440 
 
 Korbe v. Barbour 55, 56 
 
 Korn V. Campbell 186 
 
 Kortright V. Cady 678, 1029, 1030, 
 
 1063, 1071, 1105 
 
 Kountze v. Kennedy 533, 534 
 
 Kraemer v. Adelsberger 1047, 1048, 
 
 1049, 1077 
 
 Kraft V. Welch 882 
 
 Kramer v. Amberg 819 
 
 V. Carter 187, 1537 
 
 Kranz v. Oedelhofen 1050 
 
 Kratemayer v. Brink 933 
 
 Krausi v. Fife 848 
 
 Kreuger v. Schultz 1376 
 
 Krider v. Ramsay 869 
 
 Krier's Private Road 195 
 Kripp V. Curtis 177, 179, 181 
 
 Kruger v. Le Blanc 31 
 
 Krupp V. SchoU 567 
 
 Kruschke v. Stefan 985 
 
 Kruse v. Scripps 1514 
 
 Kuecken v. Voltz 167 
 
 Kuhn V. Newman 461 
 
 KuUman v. Cox 549, 550 
 
 Kulp V. March 445 
 
 Kunes v. McCloskey 1430 
 Kursheedy v. Union Dime Sav. 
 
 Inst. 679, 1069, 1070 
 
 Kurtz V. Hoke 246 
 
 V. Wirchmann 1006 
 
 Kutter V. Smith 43 
 
 Kutz V. McCune 1528 
 
 Kyle V. Hamilton 1047 
 
 V. Kavanagh 1398, 1399 
 
 V. Kyle 700, 724 
 
 Kyte V. Kyte 954 
 
 La Barron v. Babcock 
 
 960, 961 
 
 Lacey v. Arnett 
 
 158 
 
 V. Dobbs 
 
 1551 
 
 V. Woodward 
 
 318 
 
 Lachman v. Deisch 
 
 845 
 
 Lackey v. Holbrook 
 
 1050, 1063 
 
 V. Seibert 
 
 1574 
 
 Lacy V. Pixler 
 
 1444 
 
 Ladd V. Boston 
 
 160, 273 
 
 V. Chase 
 
 1237 
 
 V. Ladd 1220, 1225 
 
 V. Putnam 1118 
 
 V. Stevenson 1045 
 
 Lade v. Shepherd 221 
 
 Ladue v. Detroit & M. R. Co. 1097 
 
 Ladyman v. Grave 206, 208 
 
 Ladywell Mining Co. v. Brookes 558 
 
 La Farge v. Mansfield 843, 854 
 
 Lafferty v. Milligan 1525 
 
 La Grave v. Bellinger 1113 
 
 Lahey v. Kortright 998, 1124, 1221 
 
 Lahr v. Met. El. R. Co. 229, 231, 273 
 
 V. Met. R. Co. 230 
 
 Laidlaw v. Organ 535 
 
 Laird v. Moonan 1578 
 
 Lake, In re 1089 
 
 V. Gray 713 
 
Ixx 
 
 TABLE OP CASES CITED. 
 [Bef erenceB are to pages.] 
 
 Lake Erie R. Co. v. Kennedy 159, 
 
 324 
 Lake Erie & W. R. Co. v. Priest 600 
 Lake Superior, etc. Co. v. Cun- 
 ningham 588, 589, 619, il62 
 Lakey v. Scott 1144 
 Lamar v. McNamee 917 
 Lamb's Estate, In re 757 
 Lamb v. Danforth 1523, 1637 
 V. Lamb 831, 832, 881, 1439 
 V. Jeffrey 1060 
 V. Montague 1074 
 V. Shays ^ 760 
 V. Sherman J.572 
 Lambden v. Sharp 1468 
 Lambe v. Reaston 1505 
 Lambert v. Huber 1376, 1377 
 V. Robinson 950 
 Lamberton v. Dunham 534 
 Lambes v. Eames 452 
 Lamm v. Chicago, St. P. M. & O. 
 
 R. Co. 229, 231 
 
 L'Amoreaux v. Van RenssSlaer 498 
 Lampet's Case 1199, 1204, 1252 
 
 Lamplugh v. Lamplugh 512 
 
 Lampman v. Milks 155, 169, 170, 
 174, 175, 281, 291 
 Lamson v. Clarkson 897 
 
 V. Sutherland 1096 
 
 Lancaster v. Amsterdam Imp. 
 
 Co. 1451, 1453 
 
 V. Dolan 561 
 
 V. Eve 8 
 
 Lancaster Co. Bk. v. Stauffer 650, 
 
 1572 
 Lancaster Trust Co. v. Long 559 
 
 Landell v. Hamilton 1543 
 
 Landell's Appeal 1133 
 
 Landon v. Button 448, 562 
 
 V. Townshend 639, 641, 644, 
 
 935 
 Landraro v. Jordan 1284 
 
 Lane v. Capsey 267 
 
 V. Cox 857 
 
 V. Duchac 1058 
 
 V, Eaton 480 
 
 V. Ewing 444 
 
 V. Hill 1557 
 
 V. King 1068 
 
 V. Lamke 272 
 
 V. Lane 1551 
 
 V. Nelson 1429 
 
 V. Page 568 
 
 V. Philips 757 
 
 V. Ruhl 923, 926, 929, 
 
 930 
 V. Shears 1047 
 
 V. Thompson 1500 
 
 Lanfers v. Henke 693 
 
 Lanford v. Poppe 201 
 
 Lang's Will, Matter of 1557 
 
 Langdon v. Blackburn 533 
 
 Langdon v. Sherwood 1412 
 
 V. Simson 1269 
 
 V. Templeton 1362, 1363 
 
 Langenour v. Shanklin 1413 
 
 Langford v. Selmes 134 
 
 Langley v. Chapin 620, 1010, 1430 
 
 V. Langley 1239, 1545 
 
 V. Sneyd 462 
 
 Langton v. Marshall 1481 
 
 Lanier v. Booth 210 
 
 Lani^an v. Kille 828, 852 
 
 Lanning v. Carpenter 1570 
 
 Lansing v. Capron 1121 
 
 V. Goelet ' 1033, 1115 
 
 V. Thompson 856 
 
 Lansing L &. E. Works v. Walker 33 
 
 Lansingburgh Bk. v. Crary 63 
 
 Lapere v. Luckey 275 
 
 Lapham v. Norton 28, 55 
 
 Lariverre D. Rains 1163 
 
 Larkin v. Avery 705, 807, 925, 937 
 
 V. McMuUin 1578 
 
 Lamed v. Donovan 1059 
 
 V. Hudson 932, 933, 938, 939 
 
 Lamon v. Knight 527 
 
 Larrabee v. Hascall 439 
 
 V. Larrabee 539 
 
 Larsen v. Peterson 173, 175 
 
 Larson v. Met. St. R. Co. 281 
 
 Lasala v. Holbrook 239, 279, 280, 
 
 282, 285 
 
 Lash V. Lash 955 
 
 Lassiter v. Dawson 750 
 
 Late Corp. of the Church of 
 
 Jesus Christ of Latter Day 
 
 Saints, The v. United States 486, 
 
 487, 488, 489, 490 
 
 Latham v. Atwood Cro. Car. 60 
 
 Lathers v. Coates 856 
 
 Lathrop v. Elsmer 215 
 
 V. Eisner 160, 215, 244, 258 
 
 V. Gilbert 518 
 
 V. Singer 756 
 
 Latourette v. Latourette 664 
 
 Lattimer v. Livermore 186 
 
 Lauderdale Peerage Claim 17 
 
 Laudy, Matter of 1551 
 
 Laughran v. Smith 806, 810, 879, 
 
 923 
 
 Laumier v. Francis 157 
 
 Lavagnino v. Uhlig 255 
 
 Lavalle v. Strobel 993 
 
 Lavis V. Sturgeon 592 
 
 Law V. Douglas 1254 
 
 V. Pemberton 813 
 
 Lawes v. Lumpkin Estate 748 
 
 Lawrence v. Brown 666, 720, 721 
 
 V. Burrell 856 
 
 V. Cooke 453, 456 
 
 V. Farley 1475 
 
 ■0. Fox 1103 
 
 11. French 129, 853 
 
TABLE OP CASES CITED. 
 [BeferenceB are to pages.] 
 
 Ixxi 
 
 Lawrence v. Kemp 39 
 
 V. Lawrence 562, 613, 741 
 
 V. Miller 851 
 
 V. Norton 1004, 1006 
 
 V. Springer 159, 253, 324, 325, 
 
 327, 328 
 
 V. Stratton 1057 
 
 V. Taylor 810 
 
 V. Town of Hempstead 1359, 
 
 1375 
 
 V. Webster 960 
 
 Lawrence R. Co. v. Williams 232 
 
 Lawson v. Morton 672, 693 
 
 Lawton v. City of Roehelle 229 
 
 V. Lawton 27, 39, 45 
 
 V. Rivers 179, 250 
 
 V. Salmon 18, 24, 25, 27, 45 
 
 V. Ward 184, 245 
 
 Law Union, etc. Ins. Co. v. Hill 1561 
 
 Laybourn v. Gridley 113 
 
 Lazear v. Porter 682 
 
 Leach v. Hastings 243 
 
 v. Leach 682 
 
 V. Thomas 778 
 
 Leake v. Leake 413 
 
 V. Robinson 623 
 
 Learned v. Cutler 703, 714 
 
 Learoyd v. Godfrey 904 
 
 Leary v. Corvin 509 
 
 V. Leary 1312 
 
 Leask v. Horton 1467 
 
 Leavenworth Lodge v. Byers 281 
 
 Leavitt v. Fletcher 821, 857 
 
 V. Lamprey 664, 727 
 
 V. Leavitt 922, 925, 931, 935, 
 
 937 
 
 V. Pell 751 
 
 V. Thornton 1429 
 
 Leavitte v. Beime 470 
 
 V. Pell 1220 
 
 Leazure v. Hillegas 1451 
 
 Le Barron v. Babcock 989 
 
 Le Boeuf v. Gary 1571 
 
 Ledoux V. Samuels 1364 
 
 Ledyard v. Phillips 61 
 
 Lee V. Fernie 568 
 
 V. Kirby 538 
 
 V. Lake 223 
 
 V. LindeU 661, 662, 675 
 
 V. Massachusetts F. &. M. 
 
 Ins. Co. 1496 
 
 V. McLeod 158, 325, 329 
 
 V. Sandy Hill 223 
 
 V. Simpson 1237 
 
 r. "Stone 674, 1096, 1572 
 
 V. Timken 743 
 
 V. Tower 735, 739, 740, 745 
 
 Leech v. Schwedar 273 
 
 Leeds v. Cheetham 855 
 
 Leeper v. Taylor 447, 448 
 
 Lees V. Fisher 1033 
 
 Le Fevre v. Le Fevre 325, 326, 741 
 
 Legg V. Horn 
 
 158, 195, 204 
 
 V. Strudwick 
 
 928 
 
 Leggett V. Doremus 
 
 1243 
 
 V. Firth 
 
 1188, 1255 
 
 V. Hunter 
 
 1223 
 
 V. Mut. Life Ins. Co. 1347, 
 
 1399 
 
 V. Perkins 495, 498 
 
 V. Stevens 1255 
 
 Lehigh Val. R. Co. v. McFarlan 201, 
 
 202, 209, 210, 211 
 
 Lehigh Zinc & Iron Co. v. Bamford 
 
 534, 802 
 
 Lehmeyer v. Moses 857 
 
 Lehnen v. Dickens 897 
 
 Leidlein v. Meyer 306 
 
 Leiferman v. Osten 850 
 
 Leigh V. Dickerson 964, 973 
 
 V. Green 1430, 1432 
 
 V. Hewitt 66 
 
 V. Taylor 39, 45 
 
 Leighton v. Leighton 778, 787 
 
 V. Perldns 1538 
 
 Leinen v. Elter 998 
 
 Leiter v. Day 844 
 
 V. Pike 837, 840 
 
 Leland v. Gassett 31, 54 
 
 Le Lievre v. Gould 533 
 
 Lemage v. Goodban 1557 
 
 Lemaitre v. Davis 281, 282, 286 
 
 Leman v. Best 44 
 
 V. Whitley 527 
 
 Lemayne v. Stanley 1549 
 
 Leming v. Stephens 1579 
 
 Lemmon v. Webt 65, 113, 199 
 
 Lemmons v. Reynolds 955 
 
 Lemon v. Graham 596 
 
 Le Neve v. Le Neve 572, 573, 574, 
 
 1090, 1486, 1492 
 
 Lenfers v. Henke 684 
 
 Lennen v. Lennen 915 
 
 Lennig's Ex'rs v. White 1497 
 
 Lenox v. Lenox 1193 
 
 Lent V. Howard . 463 
 
 Lentilhon v. City of New York 1571 
 
 Lentz V. Eimermann 1576 
 
 V. Martin 1047 
 
 V. Victor 316 
 
 Lenz V. Aldrich 861, 907 
 
 I/eonard v. Burr 604, 621, 1021, 
 
 1022, 1162, 1281 
 
 V. Clough 28, 63, 54 
 
 V. Gunther 907 
 
 V. Leonard 179, 200, 695 
 
 V. Medford 64 
 
 V. Quinlan 1503 
 
 V. White 164 
 
 Iieonard's Lessee v. Diamond 462 
 
 Leopold V. Hallheimer 1080 
 
 V. Judson 852 
 
 Lerned v. Morrill 1503 
 
 Xeslie V. Leslie 439, 440 
 
Ixxii 
 
 TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Leslie v. Marshall 826 
 
 V. Pounds 906 
 
 Lessard v. Stram 301 
 
 Lesse of Village of Putlas v. 
 
 Merenfeld 1502 
 
 Lesser v. Lesser 1226 
 
 Lester J). Young 1182 
 
 L^thieuUier v. Tracy 1194 
 
 Letts v. Kessler 277 
 
 \ Levering v. Bimel 1451 
 
 Levi V. Earl 751 
 
 Levick v. Brotherline 534 
 
 Levine v. Baldwin 859 
 
 V. Goldsmith 961, 1000, 1001 
 
 Levit V. Witherington 1530 
 
 Levitsky v. Canning 847 
 
 Levy V. Brothers 277 
 
 V. Brush 507, 516, 559, 983 
 
 V. Evan^ 508 
 
 V. Levy 498, 499, 500, 997, 
 
 1155 
 
 V. Long Island Brewery " 873 
 
 V. McCartee 1448 
 
 V. McCarter 498 
 
 Lewis V. Angermiller 918 
 
 V. Beall 1396 
 
 V. Carstairs 163 
 
 V. Coxe 714 
 
 V. Doane 1119 
 
 V. Farrell 1058 
 
 V. Ford 1044 
 
 V. GoUner 188, 292 
 
 V. Henderson 1039 
 
 V. Herrere, 1478 
 
 V. Hinman 1490 
 
 V. Howe 1376, 1377, 1393 
 
 V. Jones 67, 781 
 
 V. Kinnaird 1498 
 
 V. Lewis 599, 1524 
 
 V. Lyman 66 
 
 V. McGee 1456 
 
 V. McNatt 60, 770 
 
 V. Monson 1431 
 
 V. N. Y. & H. R. Co. 52, 196, 
 
 246, 382, 1365 
 
 V. N. Y. L. E. & W. R. Co. 218, 
 
 1364 
 
 V. Ocean Nav. & P. Co. 38, 42, 
 
 43,47 
 
 V. Barrett 720 
 
 V. Payne 1440 
 
 V. Portland 218 
 
 V. Prather 1472 
 
 V. Shearer ' 1038, 1388, 1398 
 
 V. Small 1048 
 
 V. Smith 741, 742 
 
 V. Waters 1192 
 
 V. Watson 1464 
 
 Lewis Adm'r v. Watson 1465 
 
 Lewis' Appeal 980 
 
 Lewisohn -y. Henry 1158 
 
 Ley V. Peter 932 
 
 Leydecker v. Brintnall 861 
 
 Leyman v. Abeel 864 
 
 Liabstadter v. Federgreen 951 
 
 Libby v. Chase 751 
 
 V. Tufts 1087 
 
 Liddard v. Liddard 451 
 
 Liefe v. Saltingstone 1217 
 
 Liford's Case 64, 70, 248 
 
 Light V. Light 741 
 
 Lightioot and Butler's Case 1465 
 
 Liggins V. Inge " . 253 
 
 Liles V. Terry 553 
 
 Lilly V. Dunn . 1071 
 
 V. Fifty Associates 819 
 
 Lincoln v. Burrage 1640, 1543 
 
 ■u. Chadbourne 300 
 
 V. Davis 59, 239, 297, 1512 
 
 V. Emerson 1344, 1348 
 
 V. Lincoln 594 
 
 Lincoln & K. Bk. v. Drum- 
 
 mond 1016 
 
 Lincoln Rapid Transit Co. v. 
 
 Rundle 230 
 
 Lincoln Trust Co. v. Nathan 856 
 
 Lindeman v. Lindsay 158 
 Linden Steel Co. v. Rough Run 
 
 Mfg Co. 1578 
 
 Lindley v. O'Reilly 459 
 
 Lindsay v. Lindsay 1469 
 
 Lindsey v. Brewer 758 
 
 V. Leighton 859, 907 
 
 Lindslay v. Fry 1360, 1361 
 
 Lindwall v. May 849 
 
 Lines v. Darden 454, 1234 
 
 Lingen v. Lingen 1316 
 
 Linn v. Davis 471 
 
 Lins V. Seefeld 1507 
 
 Linsley v. Sinclair 516 
 
 Linton v. Crosby 757 
 
 V. Hart 131 
 
 Lion V. Burtiss 618 
 
 Lippencott v. Allander 143 
 
 V. Davis 1181 
 
 V. Mitchell 472 
 
 Lippett V. Kelley 1501 
 
 Lipphard v. Humphrey 1548 
 
 Lippincott v. Wikoff 1222 
 
 Lippitt V. Huston 617 
 
 Lipsky V. Heller 275 
 
 Liptrot V. Hoklies ' 462 
 
 Liquid Carbonic Co. v. Wallace 174 
 
 List V. Hombrook 286, 293 
 
 Little V. Birdwell 1013 
 
 V. Chadwick 618, 519, 521 
 
 V. Downing 1365 
 
 V. Martin 880, 881 
 
 V. White 1478 
 
 V. Wright 938 
 
 Little Ex'or v. Bennett 1228 
 
 Little M. R. Co. v. Hambleton 233 
 
 Littlefield v. Crocker 711, 712 
 
 V. Maxwell 309 
 
TABLE OF CASES CITED. 
 [Beferences are to pageB.] 
 
 Ixxiii 
 
 Littlefield v. Paul 705 
 
 Littlejohn v. Egerton 760 
 
 V. Leffingwell 961 
 
 Lively v. Paschal 736 
 
 Livesey v. Jones 481, 485, 491 
 
 Livett V. Wilson 201, 202, 210 
 
 Livingston v. Arnoux 1421, 1422 
 
 V. Haywood 1142 
 
 V. Livingston 446, 882 
 
 V. McDonald 301 
 
 V. Miller 394 
 
 V. Moingona Coal Co. 284 
 
 V. Peru L Co. 1362, 1464 
 
 V. Potts 917 
 
 V. Reynolds 767, 787 
 
 V. Stickles 817, 874, 875 
 
 Livingstone v. Tanner 909, 935, 941 
 
 V. Ten Broeck 307 
 
 Llewellyn v. Jersey 1512 
 
 Lloyd V. Conover 675 
 
 V. Cozens 867 
 
 V. Gould 447 
 
 V. Hart 50 
 
 V. Hough 125, 831, 880, 881, 
 
 942 
 
 V. Johnson 702 
 
 V. Lloyd 1050 
 
 V. Lynch 959 
 
 V. Passingham 422 
 
 V. Planters' Mut. Ins. Co. 651 
 
 V. Rosbee 949 
 
 V. Spillett 606 
 
 Lloyds Bk. Limited v. Bullock 560 
 
 Lobdell V. Hayes 426, 670 
 
 Lock V. Furze 827, 851, 852 
 
 Locke V. F. L. & T. Co. 450 
 
 V. Hale 1528 
 
 V. Moulton 620 
 
 V. Rowell 759, 765 
 
 V. Whitney 1366 
 
 Lockhart v. Van Dyke 954 
 
 Lockman v. Reilly 50 
 
 Lockrow V. Horgan 857 
 
 Lockwood V. Gehlert 1430, 1431, 
 
 1434 
 
 V. Mildeberger 1238, 1239 
 
 V. Wood 157, 211 
 
 Lockwood Co. v. Lawrence 299 
 
 Lockyer v. Savage 766 
 
 Loder v. Whelpley 547 
 
 Lodge V. Lee 1605 
 
 V. Martin 921 
 
 V. White 872 
 
 Loebenthal v. Raleigh 1227 
 
 Loeser's Estate, In re 1548 
 
 Logan V. Eva 576 
 
 V. Gardner 1442 
 
 V. Green 912 
 
 V. Rose 1342 
 
 V. Simmons 667 
 
 V. Smith 1058 
 
 V. Stogsdale 178, 237 
 
 Lomax v. Bird 
 
 107a 
 
 London v. Curtis 
 
 923 
 
 V. Garway 
 
 523 
 
 V. Richmond 
 
 840 
 
 V. Riggs 
 
 182, 184 
 
 London Loan Co. v. Drake 45 
 
 London & S. W. R. Co. v. 
 
 Gomm 842, 1540, 1542 
 
 Long V. Aldred 1560 
 
 V. Fuller 1385 
 
 V. Kansas City Stock Yds. 
 
 Co. 723 
 
 V. King 511 
 
 V. Poth 810 
 
 Long Island R. Co. v. Conklin 1348, 
 
 1384, 1514 
 
 V. Garvey 235 
 
 Longdate Iron Co. v. Swift's Iron 
 
 Works 578 
 
 Longendyke v. Anderson 156 
 
 Longfellow v. Longfellow 123, 894, 
 
 895, 900 
 
 Longmore v. Broom 1232 
 
 Look V. Norton 381 
 
 Loomis V. Bedel ' 1532 
 
 V. O'Neal 795 
 
 V. Wilbur 782 
 
 Looney v. McLean 858 
 
 Lorah v. Nissley 1466 
 
 Loranger v. Carpenter 962 
 
 Lord V. Crowell 1071 
 
 V. Lord 745 
 
 V. Meadville Water Co. 240, 298 
 
 V. Wardle 70 
 
 V. Wilcox 1040, 1041 
 
 Lord Abergavenny's Case 947 
 
 Lord Batterson v. Comm'rs, etc. 
 
 of London 276 
 
 Lord Braybrooke v. Atty.-Gen. 1236 
 Lord Chesham, In re 70 
 
 Lord Derby's Case 1173 
 
 Lord Dudley v. Lord Warde 45 
 
 Lord Say and Seal's Case 1456 
 
 Lord Stratheden, In re 480 
 
 Lord Thurlow of Gwynne v. 
 
 Heaton 638 
 
 Lore's Heirs v. Truman 1467 
 
 Lorie V. North Chicago City R. 
 
 Co. 230 
 
 Loring v. Brodie , 1227 
 
 V. Eliot 1174 
 
 Lorings v. Marsh 477, 488, 490 
 
 Los Angeles Cemetery Co. v. Los 
 
 Angeles 226 
 
 Losee v. Stanley 596, 1416, 1426 
 
 Losey v. Stanley 412, 496, 1157, 
 
 1201 
 
 Lothrop V. Foster 690, 713, 1456 
 
 V. Thayer 778, 936 
 
 Lott V. Wykoff 590, 591, 618 
 
 Lougheed v. The Dykeman's 
 
 Baptist Church 1161 
 
Ixxiv 
 
 TABLE OP CASES CITED. 
 [BeferenceB are to pages.] 
 
 Loughran v. Lemmon 975 
 
 V. Ross 43 
 
 V. Smith 925 
 
 Louis V. Hancock Co. 932 
 
 Louisiana Nat. Bank v. Knapp 1039 
 Louisville Bk. v. Hall 984, 985 
 
 Louisville Ferry Co. v. Kentucky 142 
 Louisville & N. R. Co. v. Koelle 242 
 
 Lounsbery v. Snyder 
 
 850, 925 
 
 Lounsbuiy v. Norton 
 
 1034 
 
 V. Purdy 
 
 508, 515 
 
 Love V. Bell 
 
 283 
 
 V. Flahive 
 
 1411 
 
 V. Harbin 
 
 1402 
 
 Lovejoy v. Lovett 
 V. Lunt 
 
 1500 
 
 1430 
 
 V. Richardson 
 
 1465 
 
 Loveless v. Thomas 
 
 759 
 
 Lovell V. Quitman 1655, 
 
 1556, 1557 
 
 Lovering v. Lovering 
 
 822, 823 
 
 Lovesey v. Smith 
 
 567 
 
 Lovett V. Gillender 
 
 1013 
 
 V. Tayloi 
 
 527 
 
 Low V. Elwell 
 
 935, 950 
 
 V. Holmes 
 
 997 
 
 Lowe V. Emerson 772 
 
 , 898, 1144 
 
 V. Lowe 
 
 676 
 
 Lowell V. Boston 
 
 300 
 
 0. Cragin 
 
 1058 
 
 Lowenberg v. Brown 
 
 161 
 
 Lowenhaupt v. Stanisics 
 
 1290 
 
 Lowery v. Rowland 
 
 964 
 
 Lowman v. Lowman 
 
 1108 
 
 Lowndes v. Lane 
 
 535 
 
 Lowry's Lessee v. Steele 
 
 641 
 
 Lozear v. Shields 
 
 543 
 
 Lucas V. Brandeth 
 
 430, 595 
 
 Luce V. Burchard 
 
 1559, 1560 
 
 V. Cariey 
 
 1368 
 
 V. Stubbs 
 
 690 
 
 Luco V. De Tofo 
 
 441 
 
 Luddineton v. Gardock 
 
 929, 938 
 
 V. Kime 593, 
 
 1171, 1178 
 
 Luddy, rn re 
 
 1257, 1258 
 
 Ludlow V. Ludlow 
 
 1651 
 
 Ludwell V. Newtuan 
 
 1532 
 
 Lufkih V. Curtis 
 
 713 
 
 V. Zane 902, 904, 905 
 
 Luger V. Goerke 
 
 925 
 
 Luhez V. Eimer 
 
 1449 
 
 Luhrs V. Eimer 
 
 1325 
 
 Luhrz V. Hancock 387, 755, 801, 
 
 1445 
 Lukens v. Lasker 292 
 
 Lulus V. Hancock 1388 
 
 Lum V. McEwen 541 
 
 Lumberville D. B. Co. v. Asses- 
 sors 142 
 Lumley v. Haggerty 1368 
 Lumsden v. Manson 1060 
 Lund V. Lund 1047 
 V. Parker 1359 
 
 Lundy v. Lundy 637 
 
 Lunn V. Oshn 777 
 
 Lunsford v. La Motte Lead Co. 1468 
 
 Lunt V. Lunt 1059 
 
 Luntz V. Greve 642, 753 
 
 Lurman v. Hubner 1258 
 
 Lusk V. Lewis 623 
 
 Lutien v. Lutjen 1559 
 
 Lutrel's Case 211, 250, 266 
 
 Luttrell V. Boggs 653 
 
 V. Reynolds 640 
 
 Lutwich V. Mitton 1394 
 
 Lutz, Matter of 1316 
 
 Lyle V. Palmer 25 
 
 V. Richards 613, 1567 
 
 Lyman v. Arnold 245, 1600 
 
 V. Gedney 913, 1107, 1453, 1454 
 
 V. Hale 65 
 
 Lynch «. Livingston' 1402,1483 
 
 V. Rosenthal 541 
 
 V. Sauer 826 
 
 V. Swan 861, 906 
 
 V. Versailles Gas Co. , 818, 911 
 
 Ljmde v. Hough 867 
 
 Lynn v. Turner 248 
 
 Lynn's Appeal 782 
 
 Lyon V. Burtis 613, 1567 
 
 V. Cunningham 933 
 
 V. McDonald 278 
 
 V. McLaughlin 269, 299 
 
 V. Morgan 1342 
 
 V. Parker 1540, 1641 
 
 V. Reed 918 
 
 V. Sanford 1574 
 
 Lyons v. McCurdy 986 
 
 V. Ostrander 1164 
 
 Lyons Nat. Bank v. Shuler 1671 
 
 Lytle V. Beveridge 618, 1181 
 
 M. 
 
 Maatta v. Kippola 
 
 767 
 
 Maberly v. Lorton 
 
 467 
 
 Macauley v. Smith 
 
 1042, 1049 
 
 Maccubbin v. Cromwell 
 
 440 
 
 MacDonald v. Bach 
 
 1527 
 
 Macdonough v. Starbird 
 
 38, 53 
 
 Macduff, In re 
 
 481 
 
 MacGreal v. Taylor 554 
 
 801, 1388, 
 
 
 1442, 1443 
 
 Machir V. FimV 
 
 1238 
 
 Mack V. Anderson 
 
 1109 
 
 V. Austin 
 
 1049 
 
 V. Patchin 
 
 823, 852 
 
 V. Prang 
 
 1061 
 
 Mack's Appeal 
 
 478 
 
 Maokall v. Mackall 
 
 647 
 
 Mackay v. Kookreth 
 
 927 
 
 V. Martin 
 
 558 
 
 Mackay's Will 
 
 1551 
 
 MacKellar v. Sigler 
 
 920 
 
TABLE OP CASES CITED. 
 [ReferenceB are to pages.] 
 
 Ixxv 
 
 Macksnna v. Fidelity Trust Co. 725 
 
 MacKenzie v. Trustees of Pres- 
 bytery of Jersey Qty 488, 490, 503 
 
 Mackey v. Harmon 294 
 
 Mackin v. Haven 1543 
 
 MacKinnon v. Sewell 1194 
 
 Macknet v. Maoknet 741 
 
 Mackreth v. Symmons 1038 
 
 Macomber i;. Godfrey 214 
 
 V. Nichols 232 
 
 Macon v. MuUahy 574 
 
 MacRae, Matter of 1318 
 
 Mactier v. Osborn 1017 
 
 Macy V. Met. El. R. Co. 787 
 
 Madden v. Madden 1223 
 
 Maddison v. Alderson 558 
 
 V. Andrews 511 
 
 Maddox v. Bumham 1409 
 
 V. Goddard 1499 
 
 Madigan v. McCarthy 19, 41, 54 
 
 V. Walsh 663 
 Madison v. Larmon 1262, 1264, 1275 
 Madison Female Inst. v. United 
 
 States 795 
 
 Madson v. Madson 721 
 
 Magaw V. Lambert 855 
 
 Magee v. Magee 1367 
 
 V. Mellon 721 
 
 Maggini v. Pezzoni 544 
 
 Magie v. Reynolds 1058 
 
 Magill V. Brown 477, 479 
 
 V. Hinsdale 897, 898, 1465 
 
 Magniac v. Thomson 425 
 
 Magnolia v. Marshall 297 
 
 Magoon v. Harris 1500 
 Magoun v. Illinois Trust and Sav. 
 
 Bk. 1580 
 
 Mahan v. Mahan 447, 448 
 
 Maher v. Hanley Brewing Co. 932 
 
 Mahoning County v. Young 588 
 
 Main v. Davis 394 
 
 V. Schwartzwelder 25 
 
 Maitland v. Irving 557 
 
 Majestic Hotel v. Byre 133 
 
 Major V. Todd 1468 
 
 Major, Admr. v. Bukley 1517 
 
 Maker v. Lazell 1497 
 
 Malarin v. United States 1440, 1441 
 
 Malcohn v. Allen 1079 
 
 V. Benford-Hancock 1241 
 
 Malin v. Malin 458 
 
 Mallery v. Facer 1087 
 
 Mallett V. Foxcroft 1005 
 
 Malloney v. Horan 712 
 
 Mallory v. Hitchcock 681, 1108 
 
 V. Russell 676 
 
 Malloy V. Malloy 507, 510 
 
 Malone v. McLawrin 641 
 
 V. Roy 1066 
 
 Malroy v. Sloans 528 
 
 Manchester v. Point St. Iron 
 
 Works 1513 
 
 Manchester Bld'ng. & L. Ass'n 
 
 V. Beardsley 1099, 1100 
 
 Manchester B. W. Co. v. Carr 778 
 Manchester H. B. L. Ass'n v. 
 
 Porter 124 
 
 Mandel v. McClave 662, 718 
 
 Manderback v. Orphan's Home 243 
 Mandigo v. Conway 1526 
 
 Manhattan Co. v. Evertson 670 
 
 Manhattan Real Estate Ass'n v. 
 
 Cudlipp 735, 1157 
 
 Manice v. Manice 428, 432, 496, 498, 
 
 1266, 1267, 1284, 1285, 1287, 
 
 1288, 1291 
 
 Mann v. Betterley 539, 543 
 
 V. Edson 668, 669 
 
 V. Lacoma Land Co. 296 
 
 V. Mann 1360 
 
 Mannel v. Wulff 319 
 
 Manning's Case 1204, 1248 
 
 Manning v. Beck 563 
 
 V. Laboree 678 
 
 V. Smith 265, 1516 
 
 V. Wasdale 220, 300, 307, 308 
 
 Mansfield v. Mansfield 625, 1022 
 
 V. Mayor, etc. of New York 1085 
 
 Mansur v. Blake 1512 
 
 Mantz V. Buchanan 692 
 
 Manuel y. Wulff 314, 319, 1448 
 
 Manwaring v. Jenison 36 
 
 Maples V. Millon 65 
 
 Harden v. Dorthy 574, 808 
 
 Marion v. Johnson 288 
 
 Mark v. Village of West Troy 223, 
 
 227 
 
 Markham v. Markham 920 
 
 Markillie v. Ragland 594 
 
 Markoe v. Wakeman 971, 993 
 
 Marks v. Dellaglio 857 
 
 V. Halligan 1157 
 
 V. Marks 1248 
 
 ■u. Ryan 44 
 
 Maroney v. Boyle 1040, 1421, 1422, 
 
 1423 
 Marquess of Northampton v. Pol- 
 lock 1076 
 Marr's Appeal 534 
 Marr v. Gillian 462 
 Marsden's Trust 568, 569 
 Marsellis v. Thalhimer 649, 1185, 
 1316, 1317 
 Marsh, Matter of 235 
 V. Brace 872 
 V. Butterworth 847 
 V. Fairbury 226 
 V. Lazenby 757 
 V. Lee 1094 
 V. McNider 58 
 V. Ne-Ha-Sa-Ne-Park Assoc. 
 
 1376, 1514 
 V. Village of Fairbury 1502 
 
 V. Wheeler 523 
 
Ixxvi 
 
 [Beferences 
 
 Marshall v. Carson 550 
 
 V. Crehore 1004 
 
 V. Green 64, 322 
 
 V. Grosse Clothing Co. 919 
 
 V. Mellon 781 
 
 V. Moseley 132 
 
 V. Palmer 964 
 
 V. Peters 57 
 
 V. Roll 566 
 
 Marston's Appeal 1552 
 
 Marston v. Hobbs 1521, 1523, 1559 
 V. Roe 1560 
 
 Martin v. Abbott 703, 726 
 
 V. Baird 436, 439, 510 
 
 V. Baker 840 
 
 V. Ballou 1013 
 
 V. Bower 1090 
 
 V. Funk 445, 446 
 
 V. Houghton 321 
 
 V. Jacl^on 1368 
 
 V. Jones 1516 
 
 V. Martin 515, 699, 720, 756, 
 847, 875 
 V. McReynolds 988 
 
 V. Rector 818, 1363 
 
 V. Remington 751 
 
 V. Roe 43 
 
 V. Rowe 47 
 
 V. Smith 925 
 
 V. Swift 1579 
 
 V. Tobin 130 
 
 V. Trail 640 
 
 V. Tumbaugh 1106 
 
 V. Waddell 386, 1405 
 
 V. Walker 1004 
 
 Martineau v. Simonson 1553 
 
 Martins v. Gardiner 1556 
 
 Martling v. Martling 424, 429, 461, 
 
 1180 
 
 Marvin v. Brewster 314 
 
 V. Brewster I. M. Co. 283 
 
 V. Brooks 508 
 
 V. Marvin 515 
 
 V. Smith 496, 712, 721, 1242 
 
 Marx V. McGlynn 414, 496 
 
 Masch V. Graner 563 
 
 Mason v. Chicago 226 
 
 V. Davison 201 
 
 V. Deese 642 
 
 V. Fenn 42 
 
 V. Horton 160, 171, 261, 262 
 
 V. Jones 1317 
 
 V. Limbuiy 451 
 
 V. Mason 661, 712 
 
 V. Mason's Ex'rs 1288 
 
 V. Shrewsbury & S. R. Co. 153 
 
 V. Wierengo 946 
 
 Massachusetts H. L. Ins. Co. v. 
 
 Wilson 1069 
 
 Mass. Nat. Bk. v. Shinn 43, 137, 798 
 Mass. Soc. for Prevention of 
 Cruelty to Animals v. Boston 481 
 
 TABLE OP CASES CITED, 
 are to pages.] 
 
 Massey v. Goyder 
 
 
 281 
 
 V. Huntington 
 
 
 443 
 
 Massingill v. Downs 
 
 
 1570 
 
 Masten v. Olcott 
 
 
 1502 
 
 Masters v. PoUie 
 
 
 65 
 
 Masterson v. Munro 
 
 
 1501 
 
 Masury v. Southworth 
 
 
 838 
 
 Mather v. Chapman 
 
 
 1329 
 
 Mathews v. Mathews 
 
 703, 997 
 
 Mathewson's Case 
 
 
 144 
 
 Mathewson v. Fitch 
 
 
 1376 
 
 Matt V. Hawkins 
 
 
 292 
 
 Matteson v. Palser 
 
 
 563 
 
 Matthews v. Bliss 
 
 
 990 
 
 V. DeGroff 
 
 
 905 
 
 V. Dixey 
 
 
 292 
 
 V. Duryee 
 
 680, 717, 718 
 
 V. Hipp 
 
 
 925 
 
 ■u. Hoagland 
 
 
 446 
 
 V. HucGon 
 
 
 615 
 
 V. Sheehan 
 
 
 1135 
 
 V. Ward 388, 425 
 
 1327 
 
 Mattison v. Ausmuss 
 
 
 1369 
 
 V. Mattison 
 
 
 617 
 
 Mattocks V. Farringfron 
 
 
 1574 
 
 ■u. steams 
 
 
 749 
 
 Matzon v. Griffin 
 
 
 1051 
 
 Maul V. Rider 
 
 
 993 
 
 Maule V. Ashmead 
 
 
 828 
 
 V. Weaver 
 
 1403, 
 
 1519 
 
 Maundrell v. Maundrell 
 
 1212, 
 
 1217, 
 
 1246 
 
 Maundy v. Maundy 533 
 
 Maus V. Worthing 1464 
 
 Mausert v. Christian Feigenspan 867 
 
 Maxon v. Gray 703 
 
 V. Lane 1342 
 
 Maxwell v. Vaught 1572 
 
 May V. Gillis 133, 856 
 
 V. LeClaire 1398 
 
 V. Traphagen 1431, 1434 
 
 Mayberry v. Beck 1514 
 
 Mayburry v. Brien 426, 669, 675 
 
 Mayer v. McCreery 812, 813 
 
 V. Mutchler 1578 
 
 V. Watts 642, 759 
 
 Mayho v. Buckhurst 838 
 
 V. Cotton 758 
 
 Maynard v. Hill 710 
 
 V. Moore 1403 
 
 Mayo V. Newhoff 19, 20, 164, 183 
 
 V. Woods 1431 
 
 Mayor, Matter of 50, 162 
 
 V. Cashman 828 
 
 V. Chadwick 306 
 
 V. Mabie 822, 825, 1533 
 
 V. Sheffield 227 
 
 V. Sonnebom 125 
 
 V. Twenty-third St. R. Co. 146 
 
 V. Williams 561, 572 
 
 Mayor of Beverly v. Atty.-Gen. 491 
 
 Mayor of Bradford v. Pickles 303 
 
TABLE OF CASES CITED. 
 [References are to pages,] 
 
 Ixxvii 
 
 Mayor of Hull v. Homer 193 
 
 Mayor of Lyons v. Advocate 
 
 General of Bengal 490 
 
 Mayor of N. Y. v. Huntington 895 
 Mayor, etc. of N. Y., Matter of 235, 
 
 921 
 Maywood v. Logan 857 
 
 McAdams v. Bailey 1345 
 
 McAlester v. Landers 826, 847 
 
 McAlister v. Burgess 478 
 
 McAUaster v. Niagara Fire Ins. 
 
 Co. 54, 55 
 
 McAlpine v. Resch 574 
 
 McAnulty v. McAnulty 1559 
 
 McArthur v. Franklin 661, 663 
 
 V. Gordon 438, 516 
 
 1). Robinson 518, 580 
 
 V. Scott 625, 633, 1163, 1266, 
 
 126^ 
 
 McAteer v. McMuUen 1491 
 
 MoBreen v. McBreen 642, 653 
 
 McBryde v. Patterson 632 
 
 McCabe v. Bruere 1377 
 
 V. Kastens 905 
 
 V. Swap 681 
 
 McCaffrey, Matter of 497 
 
 McCahill'T. McCahill 515 
 
 McCamant Ex'or v. NickoUs 1234 
 
 McCandless' Appeal 1003 
 
 McCandless v. Engle 544 
 
 McCarren v. Coogan 1115, 1117 
 
 McCarron v. O'Connell 319 
 
 lilcCartee v. Orphan Asy. Soc. 458 
 
 V. Orphan Asylum 498 
 
 V. Teller 734, 735, 736 
 
 McCarthy v. Marsh 1311 
 
 McCartney v. Bostwick 413, 513, 515 
 
 V. McCartney 1474 
 
 V. Titsworth 515 
 
 McCarty v. Kitchenman 265 
 
 McCaslall v. McCormac ^ 650 
 
 McChesney's Lessee v. Wainright 1501 
 
 McQanahan v. Porter 690, 695, 696, 
 
 697 
 McClanhan v. Western Lunatic 
 
 Asy. 1358 
 
 Mcaean v. Wade 482 
 
 McCleary v. Boston & M. R. Co. 218 
 
 McClellan v. Coffin 1105 
 
 V. Grant 557 
 
 V. Whitney 796, 809 
 
 McClenahan v. Stevenson 1367 
 
 McOintic v. Wise 1039 
 
 McClintock's Appeal 63 
 
 McClintock v. Rogers 1514 
 
 M'Clowry v. Croghan 827 
 
 McClung V. Missouri Trust Co. 1105 
 
 V. Ross 962, 989 
 
 McClure V. Fairchild 726 
 
 V. Fairfield 643, 703, 717 
 
 V. Herring 1467 
 
 V. Leaycraft 191 
 
 McClure v. Raben 539, 540 
 
 McComb V. Wright 810 
 
 McConaughey v. Bennett 1537, 1541 
 McConneU v. Blood 24, 31 
 
 V. Brillhart 1463 
 
 V. Downs 1463, 1532 
 
 McCord i;. Oakland, etc. Co. 961 
 
 McCormacku. Coddington 1325, 1448, 
 
 1449 
 
 McCormick v. Grogan 452 
 
 V. Knox 1069 
 
 V. Taylor 687 
 
 McCormick H. M. Co. v. Griffin 436 
 
 McCoy V. McCoy 1319 
 
 V. Rhodes 1091 
 
 McCoy, Lessee of v. Galloway 1504 
 
 McCracken v. Flanagan 1039 
 
 V. McCracken 782 
 
 McCreary v. Bomberger 1237 
 
 V. McCreary 514 
 
 McCulIough V. Absecum Land 
 
 and Improvement Co. 1503 
 
 V. Broad Exchange Co. 266 
 
 V. Irvine 45, 783, 785 
 
 V. Irvine's Executors 41 
 
 V. Maryland 1429 
 
 V. Valentine 642 
 
 McCune v. Baker 459 
 
 McCurdy v. Canning 955, 978, 979 
 
 McCusker v. McEvey 1339, 1348 
 
 McCutchen v. Dittman 573 
 
 McDaniel v. Walker 216 
 
 McDermott v. French 976, 977 
 
 McDevitt V. Lambert 928 
 
 McDonald iJ. Bear River Co. 266, 1468 
 
 V. Eggleston 1438, 1439 
 
 V. Mass. Hospital 479 
 
 V. O'Hara 1242 
 
 V. Woodward 764 
 
 M'Donald v. Drew 1361 
 
 V. Lindall 179 
 
 McDonogh's Ex'rs v. Murdock 405, 
 
 492 
 McDowell V. Little 713 
 
 McDuffee v. Sinnott 1355 
 
 McElroy v. McElroy 523, 525, 695 
 V. McLeary 172 
 
 McElwain's Will, In re 1464 
 
 McEntire v. Brown ' 1366 
 
 McFadden v. Allen 27, 28, 33, 1051 
 V. Blocker 1573 
 
 McFadin v. Rippey 848 
 
 McFariand v. McFarland 983, 1044 
 McFarlane v. Williams 119 
 
 McFarlin v. Essex Co. 200 
 
 McGahan v. Bank of Rondout 960, 
 
 962, 963 
 McGarrahan v. Mining Co. 1412, 1413 
 McGary v. Hastings 1532, 1537 
 
 McGee v. Walker 61 
 
 McGettigan v. Potts 239, 279, 280 
 McGillis V. McGillis 1157, 1174, 1317 
 
Ixxviii 
 
 TABLE OF CASES CITED. 
 [References are to pages.] 
 
 McGinnis v. Egbert 318 
 
 V. Jacobs 510 
 
 McGoon V. Scales 1422 
 
 McGoun V. McGoun 710 
 
 McGourkey v. Toledo & Ohio 
 
 Cent. R. Co. 558 
 
 McGowan u McGowan 509, 536, 1281 
 
 McGraw, Matter ot 1334, 1451, 1452 
 
 McGregor v. Brown 63, 777, 781 
 
 V. Cbmstock 384, 613, 1312, 1382, 
 
 1383, 1567 
 
 V. The Board of Education 1068 
 
 V. Wait 208 
 
 McGrew v. Harmon 1532, 1533 
 
 McGuckin v. Milbank 1124, 1527, 1529 
 
 McGuire v. Devlin 551 
 
 ' V. Grant 239, 279, 280 
 
 V. Ramsey 510 
 
 McHan v. Ordway 467, 552 
 
 McHugh V. McCole 479, 484, 491 
 
 V. O'Connor 448 
 
 Mcllhinny v. McIIhinny 618 
 
 Mclllister v. Devane 264 
 
 Mcllvain v. Scheibley 638 
 
 Mcllvaine v. Coxe 1414 
 
 Mcllver v. Estabrook 42 
 
 Mcllwain v. Karstens 1421 
 
 Mclnemey v. Beck 1399 
 
 Mclntire v. Barnes 1578 
 
 V. Hughes 448 
 
 V. Pryor 573 
 
 Mclntyre, Matter of 71, 1434 
 
 V. Costello 669 
 
 ■0. Sandford 1421, 1422 
 
 V. Sanford 1575 
 
 Mclver v. Walker 1504 
 
 M'lver V. Walker 1512 
 
 Mclver's Lessee v. Walker 1503 
 
 McKay, Matter of 670, 794 
 
 V. Hyde Park 222 
 
 McKeage v. Hanover F. Ins. Co. 23, 
 
 52 
 
 McKee v. Angelrodt 873 
 
 V. Del. & H. Canal'Co. 240, 302 
 
 V. Gayle 1571 
 
 ■u. Griggs 557 
 
 V. Lamon 405 
 
 V. Pfout 765 
 
 V. Wilcox 757 
 
 McKeeby v. Webster 795, 865, 927 
 
 McKelway v. Seymour 620, 814, 
 
 1016 
 McKenna v. Brooklyn Union 
 
 El. R. Co. 52, 231, 244 
 
 V. Fidelity Trust Co. 1110 
 
 McKenzie v. Gleason 1507, 1508, 
 
 1512 
 
 V. McKenzie 283 
 
 McKeon v. Bisbee 319 
 
 D.Whitney 124,831,880 
 
 McKibbe v. Darracott 1017 
 
 McKieman v. Hesse 23 
 
 McKinley Creek M. Co. v. Alaska 
 
 U. M. Co. 317, 318 
 
 McKinney v. Holt 887 
 
 V. Pinkard 539 
 
 V. Rhoads 1496 
 
 V. Settles 1459 
 
 V. Street 1341 
 
 McKinnon v. Thompson 1545 
 
 McKinny v. Browning 850 
 
 McKircher v. Hawley 1069 
 
 McKonkey v. Cockey 555 
 
 McLane v. Bovee 1412 
 
 McLaren v. Spalding 921 
 
 McLamey, Matter of 1558 
 
 McLarren v. Brewer 518, 520 
 
 McLauchlin v. C. & S. C. R. Co. 232 
 
 McLaughlin v. Durr 1113 
 
 V. Randall 1467 
 
 McLean v. Caldwell 872, 873 
 
 V. Towle 1060 
 
 McLeeiy v. McLeery 726, 727 
 
 McLennan v. McDonnell 1470 
 
 McLeod V. Tarrant 1516 
 
 McLeran v. Benton 936 
 
 McMahon v. Gray 664, 1377 
 
 V. Russell ' 703 
 
 McManus v. McManus 1044 
 
 McMasters «. Negley 647, 654 
 
 McMath V. Levy 40 
 
 McMillan, Matter of 1313, 1425, 
 
 1426 
 
 V. Cheeney 753 
 
 V. Cronin 248, 249 
 
 V. Fish 596, 1458 
 
 V. Richards ' 1056 
 
 V. Solomon 855 
 
 McMonegal v. Wilson 759 
 
 McMuUen v. Hoffman 541 
 
 McMurphy v. Minot 138, 873 
 
 McMurtry v. Btown 1461 
 
 McNabb v. Pond 67 
 
 McNeeley v. South Pa. Oil Co. ^55, 976 
 
 McNeely v. Langan 1366 
 
 McNeil V. Ames 870 
 
 V. Kendall 868 
 
 McNeilledge v. Galbrath 1232 
 
 McPherson v. McPherson , 962 
 
 V. Rallins 1491 
 
 V. Reese 1468 
 
 V. Sohade 1529 
 
 M'Pugh Co. V. Wallace 1577 
 
 McQuade v. Emmons 886 
 
 McRea v. Cent. Nat. Bk. 12 
 
 McRee's Adm'rs v. Means 454 
 
 McSorley v. Larissa 1066 
 
 M'Tavish v. Carroll 182 
 
 McTigue V. McTigue 641 
 
 McVay v. McVay ■ 440 
 
 McVey v. Durkin 288, 289, 292 
 
 Meacham v. Blaess 1516, 1517 
 
 V. Bunting 642, 652, 709, 1369 
 
 V. Steele 1074 
 
TABLE OP CASES CITED. 
 [References are to pages. ] 
 
 Ixxix 
 
 Mead v. Brockner 
 
 1127 
 
 V. Mitchell 
 
 994, 998 
 
 V. Owen 
 
 795 
 
 V. Portland 
 
 229 
 
 Meagher v. Hayes 
 
 34 
 
 Means v. Dowd 
 
 537 
 
 v.WeOs 
 
 381 
 
 Meason's Estate 
 
 61 
 
 Mebane v. Patrick 
 
 203 
 
 Mechanics' Bank v. Weill 1057, 1060 
 Mechanics' Nat. Bk. v. Stanton 56 
 Mecklen v. Blake 1523 
 
 Mecum v. Peoria & O. R. Co. 821 
 Medara v. DuBois 1503, 1506 
 
 Medical College Laboratory v. 
 
 New York University 538 
 
 Medinah T. Co. v. Currey 818, 1016 
 Mee V. Gordon 441, 1282 
 
 Meek v. Breckenridge 158 
 
 V. Kettlewell 443, 447 
 
 Meeker v. Meeker 1457 
 
 V. Puyallup 480 
 
 V. Wright 976 
 
 Meeks v. Ring 800 
 
 V. Willard 1505 
 
 Meiggs V. Hoagland 1364, 1372 
 
 Meigs 1). Dexter 1474 
 
 Meikel v. Borders 1398 
 
 Meiners v. St. Louis 225 
 
 Meldon v. Devlin 811, 812 
 
 Melick V. Dayton 1505 
 
 Mellen v. Mellen 805 
 
 Mellor V. Walmesley 1510 
 
 Melms V. Pabst Brewing Co. 774, 
 
 777, 783 
 
 Melvin v. Proprietors, etc. 651, 748, 
 
 749, 1369 
 
 «. Whiting 200,208 
 
 Memmert v. McKeen 1527, 1528 
 
 Memphis R. Co."'!;. R. R. Com'rs 144 
 Mence v. Mence 523, 1555, 1556 
 
 Mendel v. Hall 946 
 
 Mendell v. Delano 167, 266 
 
 Mendenhall v. Klinck 321 
 
 Menger v. Carrothers 1368 
 
 Mem V. Rathbone 911 
 
 Meno V. Hoeffel 879 
 
 Menzies v. Breadalbane 1330 
 
 Merced M. Co. v. Fremont 319 
 
 Mercer's Lessee v. Selden 640 
 
 Merchant's Bank v. Thomson 712, 718 
 Merchants' & Manuf. Bk. v. 
 
 Cummings 1085 
 
 Mercier v. Chace 758 
 
 Meredith v. Heneage 455, 522 
 
 Merges 'i). Ringler 1528 
 
 Menam v. Brown 54 
 
 Merithew ■;;. Andrews 1042 
 
 Merkle v. Beidelman 1060 
 
 Merrell v. Bishoff 1122 
 
 Merrifield v. Cobleigh 1015 
 
 Merrifield v. Worcester 240, 298 
 
 Merrigan v. English 1578 
 
 Merrill v. Bischoff 964 
 
 «. Bullock 941 
 
 V. Hayden 412, 624, 1563 
 
 V. Nelson 1456 
 
 0. Peaslee 446 
 
 V. Willis 920 
 
 Merritt v. Bartholick 1059 
 
 V. Clason 1437 
 
 V. Harris 1018 
 
 V. Judd 39 
 
 V. Lambert 1031 
 
 V. Parker 250 
 
 Merritt's Lessee v. Home 641 
 
 Merselis v. Van Riper 1074 
 
 Mersereau, Matter of 659 
 
 Mershon v. Duer 426 
 
 Mervine v. Vanlier 1422 
 
 Merwin v. Backer 1360 
 
 V. Camp 1476 
 
 ■V. Wheeler 309 
 
 Meserole v. Sinn 856 
 
 Messer v. Rhodes 1498 
 
 Messing v. Messing 961, 976 
 
 Messman v. Eeenberger 1320, 1321 
 
 Mestaer v. Gillespie 531, 535 
 
 Metcalf V. Central Brook Park 
 
 Ass'n 156 
 
 V. Crystal Brook Park Ass'n 216 
 
 V. Hart 322 
 
 V. Moses 563, 564 
 
 Metcalfe v. Pluvertoft 577 
 
 V. Union Trust Co. 496 
 
 Methodist Church v. Jaques 518 
 
 V. Young 1547 
 
 Metropolitan Ass'n v. Petch 268 
 
 Metropolitan Bk. v. St. Louis 
 
 Dispatch Co. 1121 
 
 Metropolitan St. R. Co. v. New 
 
 York ' 146 
 
 Mettart v. Allen 1491 
 
 Mettler v. Miller 640, 641, 644, 1481 
 
 Meuley v. Zeigler 1476 
 
 Mexid, V. Oliver 1446 
 
 Meyer v. Graham 1358 
 
 V. Johnston 57 
 
 V. Kinzer 980, 981 
 
 V. Whitaker 57 
 
 Meyers v. Becker 292 
 
 V. Gemmel 274 
 
 V. Schemp 56 
 
 Michael v. Foil 1345 
 
 Michigan Life Ins. Co. v. Cronk 28 
 
 Michigan Trust Co. v. Lansing 
 
 Lumber Co. 1051 
 
 Mickey v. Barton 1361, 1439 
 
 Mickle V. Douglas 283 
 
 V. Miles 118, 120, 802 
 
 Mickles v. Dillaye 1066 
 
 Mirkus v. Townsend 1349 
 
 Middlebrook v. Corwin 66 
 
 Middlebury Bank v. Edgerton 143 
 
Ixxx 
 
 TABLE OP CASES CITED. 
 [ReferenceB are to pages.] 
 
 Middleford v. Church Mills Knit- 
 ting Co. 248 
 Middleton v. Dougherty 765 
 V. Findla 1454 
 V. Middleton 531, 535, 536 
 V. Steward 752 
 JWiddletown r. Newport Hospital 161 
 Mddleworth v. Ordway 1317 
 Midland F. Co. v. Wilson 144 
 Midland Gt. West R. Co. v. 
 
 Johnson 536 
 
 Midland R. Co. v. Fisher 1403 
 
 Miesen v. Canfield 1361 
 
 Milbank v. Vane 616 
 
 Mildmay's Case 610, 642 
 
 Miles' Appeal 1555, 1556 
 
 Miles's Will 1549 
 
 Mies V. Harford 1283 
 
 V. Janvrin 849, 859, 906 
 
 ■D. Miles 768 
 
 ■V. Sherwood 1513 
 
 Mil River W. Mfg. Co. v. 
 
 Smith 59, 1506, 1512 
 
 Millard v. Hathaway 528 
 
 V. McMuUin 960 
 
 V. Truax 1066 
 
 Miller's Estate, In re 1042 
 
 Miller v. Albright 1039 
 
 V. Atkinson 479, 485 
 
 V. Baker 65 
 
 V. Bingham 1369 
 
 V. Black Rock Spring Co. 302 
 V. Brown 291 
 
 V. Bumgardner 1366 
 
 V. Cheney 769, 942 
 
 V. Cook 1086 
 
 V. Coudert 1321 
 
 V. Cramer 1514 
 
 ■V. Eames 1188 
 
 V. Edison Elec. Ilium. Co. 845. 
 
 846 
 V. Emans 1147, 1252, 1398 
 
 V. Finegan 757 
 
 V. Fox 1513 
 
 -». Gilbert 633 
 
 V. Hancock - 906 
 
 V. Lapham 265, 305 
 
 ■V. Laubach 301 
 
 V. Levi 819, 886, 910' 
 
 V. Little 755 
 
 •v. Maguire 864 
 
 V. Mann 1497 
 
 D. McAUster 591 
 
 V. Meers •, 1474 
 
 V. Miller 741, 1316, 1141, 
 
 1143 
 V. Mowers 1437 
 
 V. Pearce 536 
 
 V. Pence 663, 723 
 
 V. Prescott 912, 1016 
 
 V. Quick 1047 
 
 V. Rowan 481 
 
 Miller v. Rutland, etc. R. Co. 1053 
 
 V. Shields 767, 776 
 
 ■V. Smith 1579 
 
 V. The State 322 
 
 V. Topeka Land Co. 1501 
 
 V. Wright 466 
 
 Miller's Ex'rs v. Commonwealth 479 
 
 Millett V. Ford 1178 
 
 V. Fowle 1606 
 
 MiUioan v. Millican 556 
 
 Millikan ■;;. Patterson 1431 
 
 Milliken v. Graham 575 
 
 V. Ham 508 
 
 Milling V. Becker 918 
 
 Mills V. Bliss 617, 1039 
 
 V. Catlin 1523 
 
 ■u. TJavison 429, 492 
 
 V. Gore 1470 
 
 V. Husson 468, 471, 1241 
 
 V. Johnston 459 
 
 V. Mills 678, 1064, 1274 
 
 V. Penny 1367 / 
 
 V. Ruridlett 16 
 
 V. Van Voorhies 661, 663, 672, 
 
 680, 1270, 1123 
 
 Millspaugh v. Mitchell 1595 
 
 Milne's Appeal 293 
 
 Milner v. Nelson 1482 
 
 Milnes v. Branch 138 
 
 Milroy v. Lord 444 
 
 Milwaukee Cold Storage Co. v. 
 
 Decker 558 
 
 Miner, Matter of 1563 
 
 V. Beekman 1033 
 
 V. Brown 955, 976 
 
 Mineral Development Co. v. 
 
 Tuggle Land 1514 
 
 Mingay v. Lackey 700, 1000, 1001 
 Mining Co. v. Tunnel Co. 317 
 
 Minneapolis Mill Co. v. Minn. & St. 
 
 Louis R. Co. 324, 325 
 
 Minnesota Co. v. St. Paul Co. 56 
 
 Minor v. Hill 1058 
 
 V. Natchez 1432 
 
 Minot, Matter of 1559 
 
 V. Baker 487 
 
 V. Minot 1157 
 
 V. Mitchell 559 
 
 V. Tappan 1190 
 
 Minshall v. Lloyd 24, 39, 47, 53 
 
 MinshuU v. Oakes 836 
 
 Minter v. Crommelin 1413 
 
 Mintum v. Seymour 446 
 
 Mirick v. Hoppin 1068 
 
 Mission of the Immaculate Virgin 
 
 V. Cronin 1360, 1362, 1364^ 
 
 1365 
 Missionary Society v. Humphreys 
 
 1273 
 
 Mississippi Mills Co. v. Smith 299 
 
 Missoun V. Illinois 193 
 
 V. Nebraska 1330 
 
TABLE OF CASES CITED. 
 [Beferences are to pages.] 
 
 Ixxxi 
 
 Missouri K. &. T. Co. v. Union 
 
 Trust Co. • 1073 
 
 Missouri K. &. T. Trust Co. v. 
 
 Krumseig 540 
 
 Missouri V. L. Co. v. Borwick 62 
 
 Mistier v. O'Grady 906 
 
 Mitchel V. Reynolds 541 
 
 V. Seipel 175 
 
 Mitchell V. Bain 298 
 
 V. Bunch 459 
 
 V. Einstein 1507 
 
 V. Farrish 704 
 
 V. Franklin 124 
 
 V. Hazen 1524 
 
 V. Mayor 282 
 
 V. Met. El. R. Co. 52 
 
 V. Mitchell 726, 742 
 
 V. Parham 1468 
 
 V. Reed 275, 551 
 
 V. Seipel 160, 171 
 
 V. Smith 1580 
 
 V. Stetson 53 
 
 V. Warner 1522, 1526 
 
 V. Young 915 
 
 Mitchell, Lessee of v. Ryan 1474 
 
 Mitford V. Mitford 578 
 
 V. Reynolds 475 
 
 Mittnacht v. Slevin 292, 293 
 
 Mixter v. Woodcock 1367 
 
 Moakes & Co. v. Rice 609 
 
 Mobile Bldg. Ass'n v. Robertson 
 
 1569 
 Mobile Transportation Co. v. 
 
 Mobile 297, 1358 
 
 Mochon V. SuUivan 1576 
 
 Moehring, Matter of 1214, 1218, 
 
 1219 
 Moelle V. Sherwood 1390, 1398, 
 
 1439, 1440 
 Moellering v. Evans 279 
 
 MofFatt V. Smith 128, 1144 
 
 V. Strong 847 
 
 Moffet V. Ebnendorf 817, 955, 1239, 
 
 1545 
 Moggridge V. Thackwell 486, 489, 
 
 524 
 Mohr V. Parmelee 294 
 
 Molineaux v. Reynolds 524, 1563 
 Moll V. McCauley 156 
 
 MoUan v. Griffith 1101 
 
 Molton V. Camroux 801 
 
 Monarch C. & M. Co. v. Hand 1088 
 Monarque v. Monarque 998, 1124, 
 
 1428 
 
 Moncrief v. Ross 1216 
 
 Mondey v. Mondey 1033 
 
 Mong V. Roush 490 
 
 Monroe u. Bowen 1011 
 
 V. Hall 1013 
 
 V. Luke 381 
 
 V. West 1577 
 
 Monroe Cattle Co. v. Becker 518 
 
 Montague v. Selb 990 
 Montana Mining Co. v. St. Louis 
 
 Mining Co. 113 
 
 Montefiore v. Browne 1220 
 
 Montello, The 297 
 
 Montesquieu v. Sandys 553 
 
 Montgomery v. Craig 900 
 
 V. Gunther 1362 
 
 V. Reed 1521, 1523 
 
 V. S. A. W. R. Co. 232 
 
 Montignani v. Blade 1268 
 
 Moodle V. Gamance 131 
 
 Moody V. Gamon 131 
 
 V. King 647 
 
 V. Matthews 748 
 
 V. McClelland 279, 281 
 
 V. Moody 976 
 
 V. Smith 814 
 
 Mooers v. Wait 782, 997 
 
 Moon V. Jennings 990 
 
 Mooney v. Byrne 1034, 1035, 1075 
 
 1076 
 
 Moor V. Gary 309 
 
 Moore, Matter of 628, 1113, 1152, 
 1201, 1258, 1259, 1272 
 
 V. Alden 745 
 
 V. Am. L. &. T. Co. 581 
 
 V. Appleby 1163 
 
 V. Banking Co. 23 
 V. Boyd 935, 936, 937 
 
 V. Cable 1065 
 
 V. City of New York 772 
 
 V. Cleghom 430 
 
 V. Cornell 753 
 
 V. Crawford 571 
 
 V. Crofton 447, 448 
 
 V. Grouse 215, 243 
 
 V. Darbey 654 
 
 V. Esty 643, 1045 
 
 V. Flynn 1474 
 
 V. Frost 724 
 
 V. Guar. Tr. Co. 866 
 
 V. Hamerstay 518 
 
 V. Harmon 1505 
 
 V. Hazleton 1461 
 
 1). Hegeman 498 
 
 ■u. Holcombe 578 
 
 V. Hopkins 1482 
 
 V. Kerr 993 
 
 V. Levert 295 
 
 V. Littel 766, 1156, 1157, 1163, 
 1181, 1383 
 
 v. Lyons 1160, 1282 
 
 V. McClain 1512 
 
 V. Mayor 660, 661 
 V. Moore 446, 485, 508, 511, 
 542, 548, 549 
 
 V. Morrow 943 
 
 V. JMurphy 192 
 
 V. Page 753 
 
 V. Parker 1177 
 
 V. Pitts 620, 1016 
 
Ixxxii 
 
 TABLE OP CASES CITED. 
 [ReferenceB are to pages.} 
 
 Moore v. Hake 
 
 1141, 1548 
 
 V. Rawson 
 
 259; ,329 
 
 V. Raynor 
 
 287, 292 
 
 V. Rollins 
 
 684, 781 
 
 V. Scruggs 
 
 518 
 
 V. Simonson 
 
 776 
 
 V. Smith 
 
 39 
 
 V. Stinson 
 
 473 
 
 V. Townshend 
 
 778, 784, 785, 
 
 
 829, 935 
 
 V. Weber 
 
 857 
 
 V. Williams 
 
 516, 1362, 1363 
 
 D.'Wingfield 
 
 1264, 1266, 1281 
 
 Moores v. Townshend ' 997 
 
 Moorman v. Gibbs 
 
 1090 
 
 Moran v. Hayes 
 
 437 
 
 V. Moran 
 
 479, 484 
 
 V. Munhall 
 
 1042 
 
 V. Stewart 
 
 735, 737, 738 
 
 Mordant v. Thorold 
 
 700 
 
 Morehouse v. Cothea 
 
 782, 1256 
 
 Morey v. Herrick 
 
 510 
 
 V. Hoyt 
 
 47 
 
 Morgan, Matter of 
 
 1320, 1321 
 
 V. Boyes 
 
 267 
 
 V. Gronow 
 
 1278 
 
 V. Hudwell 
 
 964 
 
 V. Malleson 
 
 443, 447 
 
 V. McGoUister 
 
 918 
 
 V. Minot 
 
 543, 553 
 
 V. Morgan 426, 
 
 641, 1064, 1252, 
 
 
 1287 
 
 V. Powers 
 
 938 
 
 V. Short 
 
 847 
 
 V. Smith 
 
 662, 671 
 
 Moriarta v. McRea 
 
 684 
 
 Morice v. Bishop of Durham 455, 
 
 458, 476, 480, 481, 522 
 
 Morley v. Loughman 
 
 547 
 
 Morrill v. Mackman 
 
 809 
 
 V. Morrill 
 
 1043 
 
 Morris's Appeal 
 
 24 
 
 Morris v. Bacon 
 
 1058 
 
 V. Clare 
 
 512 
 
 V. Commander 
 
 199 
 
 V. Edgington 
 
 179, 180, 181 
 
 V. French 
 
 20, 54 
 
 V. Hastings 
 
 981 
 
 V. Jansen 
 
 1348 
 
 V. McCarty 
 
 975 
 
 V. McClary 
 
 1362 
 
 V. Phelps 
 
 852 
 
 V. Potter, 
 
 1311 
 
 V. Rowan 
 
 1506 
 
 V. Sargent 
 
 1482 
 
 V. Stuart 
 
 1514 
 
 V. Tillson 
 
 802 
 
 V. Ward 
 
 1303, 1312, 1389 
 
 Morris C. &. B. Co. T. Brown 621. 
 
 1022 
 Morris Canal & B. Co. v. Diamond 
 Mills P. Co. 202 
 
 Morris Canal Co. v. R 
 
 yerson 
 
 1345, 
 1458 
 
 Morrison v. Bowman 
 
 
 1465 
 
 V. Chadwick 
 
 
 853 
 
 V. Clark 
 
 
 970, 971 
 
 V. Keen 
 
 
 1512 
 
 V. King 
 
 
 183 
 
 V. Marquardt 
 
 
 273, 274 
 
 V. Mornson 
 
 
 1475 
 
 V. Schorr 
 
 
 691, 629 
 
 V. Skowhegan Bank 
 
 1511 
 
 Morse v. Benson 
 
 
 184 
 
 V. Carpenter 
 
 
 1454 
 
 V. Copeland 
 
 253, 
 
 324, 329 
 
 V. Goddard 
 
 
 847 
 
 V. Hill 
 
 530, 
 
 548, 549 
 
 V. Salisbury 
 
 1229, 1467 
 
 V. Williams 
 
 
 203 
 
 Mortimer v. Manhattan R. Co. 51 
 
 Mortland v. Mortland 1459, 1475 
 
 Morton v. Funk 1261 
 
 V. Noble 711 
 
 V. Onion 1558 
 
 V. Weir 819 
 
 Morund v. McClintock 218 
 
 Moseley v. Virgin 882 
 
 Mosely v. Reily 1432 
 
 Moses V. Loomis 1016 
 
 V. Pittsburg, etc. R. Co. 226 
 
 V. Sanford 325 
 
 Mosher v. Funk 622 
 
 V. Mosher 675, 677 
 
 Moshier v. Meek 1041 
 
 V. Norton 1066 
 
 Mosley v. Mosley 561 
 
 Moss V. Dowman 1409 
 
 V. Gallimore 1067, 1068 
 
 V. Moss 507 
 
 V. Shear 1513 
 
 V. Sheldon 1517 
 
 Mosseller v. Deaver 950 
 
 Moster v. Miller 1438 
 
 Moston V. Stout 912 
 
 Motes V. Bates 321 
 
 Motley V. Sawyer 662 
 
 Mott V. Ackerman 494, 1201, 1223, 
 
 1239, 1278 
 
 V. Clayton 1608 
 
 V. Harrington 553 
 
 V. Mott 546 
 
 V. Newark German Hospital 1488 
 
 V. Oppenheimer 1523, 1542 
 
 V. Palmer 40, 53 
 
 V. Uiiderwopd 961, 962 
 
 Mottley V. Blake 997 
 
 Motz V. Mitchell 544 
 
 Moulton V. Cornish 1033, 1063, 1117, 
 
 1123, 1127 
 
 V. Newburyport W. Co. 300 
 
 V. Robinson 118 
 
 Mounsey v. Ismay 157, 220 
 
 Mount V. Tuttle 603, 1334, 1462 
 
TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 Mowry v. Bradley 
 
 V. City of Providence 
 V. Sanborn 
 Moxon V. Wilkinson 
 Moyer v. Dnimmond 
 
 V. Hinman 
 Muckleroy v. Bethany 1466, 1468 
 Mudge V. Haramill 1178 
 
 V. Salisbury 159 
 
 Mueller v. C. M. & St. P. R. Co. 42 
 Mulilker v. Harlem R. Co. 230, 231, 
 
 232, 269 
 
 V. Ruppert 1503 
 
 Muldoon V. Deline 1514 
 
 V. Devlin 1503 
 
 MuUany v. MuUany 642 
 
 Mullen V. Doyle 551 
 
 V. Strieker 275, 276 
 
 Muller V. Manhattan R. Co. 1372 
 
 V. "Wadlington 1058 
 
 MuUoy V. Ingalls 1477 
 
 Mulock V. Byrnes 432 
 
 Mulry V. Norton 1329, 1331, 1332 
 
 Mulvane v. Rude Ex'or 1255 
 
 Mumford v. Brown 973 
 
 V. Whitney 320, 328 
 
 Mundy v. Duke of Rutland 284 
 
 V. Mundy 1551, 1553 
 
 V. Munson 735 
 
 V. Warner 796 
 
 Munford v. McVeigh 540 
 
 Munger v. Curtis 1^77 
 
 V. Perkins 699 
 
 Munn V. Burges 1120 
 
 Mxmox V. Wilson 1473 
 
 Munro v. Merchant 1325 
 
 Munshower v. Patton 1357 
 
 Munsion v. Reid 172 
 
 Munson v. Carter 1475 
 
 Murdock v. Bridges 481 
 
 V. Clarke 1064 
 
 u. Gifford 24, 30 
 
 V. Murdock 648 
 
 V. Waterman 1109 
 
 Murless v. Franklin 511 
 
 Murley v. Ennis 316 
 
 Murly V. McDennott 292 
 
 Murphy's Estate 453, 481, 1222 
 
 Murphy, Matter of 1160, 1560 
 
 V. Briggs 563 
 
 V. Carlin 452, 453 
 
 V. Century Bld'g Co. 828 
 
 V. Cook 461, 468 
 
 V. Kelley 240, 301 
 
 V. Lincoln 178 
 
 V. McKeon 1562 
 
 V. Portrum 1315 
 
 V. Price 1532 
 
 Murray v. Albertson 133, 855, 862 
 
 V. Ballou 574, 577, 579, 1045 
 
 V. Harway 817, 912 
 
 V. Marshall 1104 
 
 [Beferenoea are to pages.] 
 
 676 
 
 480 
 
 1120 
 
 317 
 
 757 
 1572 
 
 Murray v. Miller 
 
 603 
 
 V. Murray 
 
 566 
 
 V. Pannaci 
 
 1366 
 
 V. Porter 
 
 1057 
 
 V. Quigley 
 
 963 
 
 V. Shave 
 
 918 
 
 V. Wilson 
 
 1059 
 
 V. Zeller 
 
 1488 
 
 Musham v. Musham 
 
 1366 
 
 Muskett V. TTill 
 
 321 
 
 Muskgrave v. Sherwood 
 
 293 
 
 Muskingum Val. T. Co. v. Ward 84 
 
 Muskingum Val. Turnpike v. 
 Ward 1455, 1456 
 
 Mussey v. Holt 1469 
 
 V. Union Wharf 244, 262 
 
 Mussoorie Bank v. Raynor 452, 455 
 
 Mustard v. Wohlford 1443 
 
 Mutual Benefit Loan Co. v. 
 Jaeger 1402 
 
 Mutual Ben. Life Ins. Co. v. 
 
 Brown 1462, 1464, 1465 
 
 V. Grace Church 597 
 
 Mutual Life Ins. Co. v. Arm- 
 strong 536, 537 
 V. Corey 1339, 1482, 1483 
 V. Dake 1488, 1489, 1490 
 V. Everett 467, 1229 
 V. Kirchoff 1074 
 V. Shipman 664, 668, 1237, 
 1238, 1239 
 
 Myers, Matter of 1557 
 
 V. Bell Telephone Co. 165 
 
 V. Bolton 961, 962, 990 
 
 V. Brodbeek 1529 
 
 V. Bums 859 
 
 V. City of St. Louis 1504 
 
 V. Dunn 182, 183 
 
 V. Gemmel 275 
 
 V. Hansbrough 651 
 
 V. Jackson 527 
 
 V. Kingston Coal Co. 932 
 
 V. Mutual Life Ins. Co. 1455 
 
 V. MyeiB 440 
 
 V. Safe Dep. & Trust Co. 1228 
 
 Mygatt V. Coe 751, 834, 838, 839, 
 
 1522, 1523, 1524, 1536, 1540, 
 
 1541, 1542 
 
 N. 
 
 Nab V. Nab 
 Nackhour v. Wiener 
 Nagee's Appeal 
 NaiU V. Maurer 
 Nairn v. Prowse 
 Nalle V. Thompson 
 Nance v. Nance 
 Napper v. Sanders 
 
 Nash V. Minneapolis Co. 
 
 440 
 
 917 
 
 461 
 
 737 
 
 1040 
 
 970 
 
 667 
 
 1156, 1173, 
 
 1192, 1194 
 
 903 
 
Ixxxiv 
 
 TABLE OP CASES CITED. 
 
 [Beferencea 
 
 Nash V. Minnesota Title Co. 534 
 
 V. Morley 480 
 
 V. N. E. Ins. Co. 247, 269 
 
 Nashville Trust Co. v. Lammon 527 
 
 Nason V. Grant 1469, 1574 
 
 Nat. Bank v. Bonnell 1474 
 
 V. Ins. Co. 617 
 
 V. Levy 31, 1051, 1068 
 
 V. Matthews 1334 
 
 V. North 20 
 
 National Bank of Catasauqua 
 
 V. North 52 
 
 National Bk. of Commerce v. 
 
 National Bk. of N. Y. 1393 
 
 National Bk. of Com. v. Smith 580 
 National Com. Bank v. Gray 288, 
 
 289 
 National Com. Bk. & Loan Co. v. 
 
 Spencer 564 
 
 National Exch. Bk. v. Cunning- 
 ham 183 
 National Life Ins. Co. v. Lee 1543 
 National Oil Ref. Co. v. Bush 125, 
 
 942 
 
 National Revere Bk. v. Morse 578 
 
 National U. Bk. v. Natl. M. Bk. 984 
 
 Nattingly v. Nye 564 
 
 Naul V. Naul 996 
 
 Nauman v. Weidman 482 
 
 Naumberg v. Young 862 
 
 Nave V. Berry 778 
 
 V. Smith 993 
 
 Naylor v. Cox 1331 
 
 V. Field 753 
 
 Neal V. Black 450 
 
 V. Brandon , 796 
 
 V. City of Rochester 59 
 
 V. Clark 432 
 
 V. Hopkins 1507 
 
 Neale v. Seeley 306 
 
 Neas V. Lowell 903 
 
 Nebraska v. Iowa 1327, 1330 
 
 Nebraska Nat. Bk. v. Johnson 536 
 
 Needham v. Branson 978 
 
 Neel V. Beach 1221 
 
 Neelly v. Lancaster 654 
 
 Neely v. Butler 640 
 
 V. Phila. 212, 1508 
 
 Negus V. Becker 288, 292, 
 
 294 
 Nehasane Park Ass'n v. Lloyd 1431, 
 
 1434 
 
 Neilson v. I. E. R. Co. 57 
 
 V. McDonald 543 
 
 Nellis V. Lathrop 898 
 
 V. Nellis 618, 1153 
 
 Nelson V. Bamett 660 
 
 V. Brown 679, 740, 741, 1070, 
 
 1123, 1125 
 
 V. Butterfield 1502 
 
 V. Davidson 1360 
 
 V. Davis 430 
 
 are to pages.] 
 
 Nelson V. Loder 1105 
 
 V. Pomeroy 740, 1161 
 
 V. Potter 1545 
 
 V. Rogers 1102 
 
 ' V. Russell 1160 
 
 V. Thompson 919 
 
 Nepean v. Doe 942 
 
 Neresheimer v. Smith 566 
 
 Nesbit V. Lockman 647, 553 
 
 Nestal V. Schmidt 559 
 
 Nettleton v. Siker 322 
 
 V. Sykes 64 
 
 Neuberger v. Keim 563, 565 
 
 Neubert v. Colwell 1256 
 
 Neves v. Scott 429 
 
 Neville v. Wilkinson 532 
 
 Nevins v. Gourley 619, 
 
 1011 
 New V. Hunting 449, 450 
 
 Newall V. Wright 1055 
 
 Newbrough v. Walker 852 
 
 Newby v. Cox 736 
 
 Newcomb v. Bonham 1031, 1076 
 
 V. Boston Protect. Dep't 476 
 V. Ramer 796 
 
 Newcomen v. Coulson 249 
 
 Newell V. Wigham 884 
 
 New England L. & T. Co. v. 
 
 Spitler 1446, 1489 
 
 New Eng. Nat. Bank v. N. 
 
 Western Nat. Bank 661, 662, 680 
 Newhall v. Lynn Sav. Bk. 718, 
 
 1120 
 V. Wheeler 1359 
 
 Newham v. May 532 
 
 N. H. Land Co. v. Tilton 1501 
 
 Newhoff V. Mayo 167 
 
 New Ipswich Factory-D. Batch- 
 elder 167, 1498 
 New Jersey Zinc Co. v. N. J. 
 
 FrankUnite Co. 283 
 
 Newkerk v. Newkerk 593, 594 
 
 Newman v. Anderton 120 
 
 V. Holdmyfast, Stra. 883 
 
 V. Nellis 163, 243 
 
 V. Newman 741 
 
 V. Payne 543, 553 
 
 Newsom v. Luster 1476 
 
 Newson v. Smythies 821 
 
 Newstead v. Searles 567 
 
 Newton v. Emerson 1463 
 
 V. Harland 950 
 
 V. Porter 519 
 
 Newwan v. Bank of Cal. 990 
 
 New York, Matter of City of 296, 
 
 1510 
 New York & Brooklyn Bridge, 
 In re 50, 662, 722, 
 
 723 
 N. Y. Cable Co., Matter of 23o 
 
 New York C. & H. R. R. Co. v. 
 Aldridge 240, 296 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Ixxxv 
 
 New York Cent. & H. R. R. R. 
 Co. V. The Brockway Brick Co. 
 
 1417 
 New York Co. Nat. Bk. v. Amer. 
 
 Surety Co. 563 
 
 New York Dry Dock Co. v. Still- 
 man 465 
 New York El. R. Co. v. Fifth 
 
 Av. Nat. Bk. 52 
 
 V. Fifth Nat. Bk. 231, 269 
 
 New York H. & N. R. Co. v. 
 
 Boston & Maine R. Co. 146 
 
 New York Life Ins. Co. v. Mayer 715 
 
 V. Milnor 180 
 
 V. Viele 1317, 1318 
 
 New York Life Ins. & T. Co. v. 
 
 Livingston 817, 1239 
 
 V. Milnor 184 
 
 N. Y. L. & W. R. Co., Matter of 886, 
 
 1282 
 N. Y. & Charleston S. S. Co. v. 
 
 Harbison 1465 
 
 New York & O. R. Co. v. Van 
 
 Horn 1429 
 
 New York R. E. & B. I. Co. v. 
 
 Motley 133, 856, 857 
 
 New York Rubber Co. v. Roth- 
 ery 299, 300, 
 
 1341 
 N. Y. Speedway, Matter of 1415 
 
 New York Steam Co. v. Stem 465 
 New York University v. Loomis 
 
 Laboratory 573 
 
 Ney V. Mumme 990 
 
 Neyland v. Benby 511 
 
 Niantic Bank v. Dennis 1572 
 
 Nichol V. Henry 1446, 1489 
 
 V. Thomas 1524 
 
 Nicholas v. Chamberlain 172, 248 
 
 NichoUs V. Butcher 4 
 
 V. O'Neill 748, 749 
 
 Nichols V. Aylor 202 
 
 V. Baxter 865 
 
 V. Chamberlain 171, 264 
 
 V. Council 1357 
 
 V. Disner 1422 
 
 V. Eaton 470, 766 
 
 V. Gladden 1180 
 
 V. Levy 425, 1190 
 
 V. Luce 178, 180, 181 
 
 V. Nichols 566, 995 
 
 V. Park 426, 670, 672, 703. 
 
 710 
 
 V. Reynolds 1488, 1490 
 
 V. Ridley 1094 
 
 V. Wentworth 204 
 
 V. Williams 929 
 
 Nicholson v. Halsey 466, 1145 
 
 Nickells v. Atherstone 918 
 
 Nickerson v. Buck 1552 
 
 V. Swett 1439 
 
 NicoU V. Mumford 449 
 
 NicoU V. N. Y. & E. R. Co. 1011, 
 
 1018, 1020, 1147, 1189, 
 
 1452 
 
 V. Ogden 983 
 
 Nidever y. Ayers 1398 
 
 Nightmgalei;. Burrell 613, 1249, 1257, 
 
 1258 
 
 V. Hidden 1516 
 
 V. Sheldon 1561 
 
 Niles V. Stevens 1222 
 
 Nimmo v. Davis 540 
 
 Niland v. Murphy 1475 
 
 Nims V. Bigelow 662 
 
 V. Sherman 897 
 
 Nineteenth & Jefferson St. 
 
 Presby. Ch. ■;;. Fithian 776 
 
 Niver v. Crane 515 
 
 Nix V. Bradley 472 
 
 Noakes v. Rice 1076 
 
 Noble V. Bosworth 53 
 
 ■u. Sylvester 18 
 
 V. Teeple 954 
 
 NobUtt V. Beebee 975 
 
 Noel V. Gamett 742 
 
 Nolan V. Rockaway Park Imp. 
 
 Co. 1331, 1332 
 
 Nonotuck Silk Co. v. Flanders 521 
 
 Noon's Will, In re 1560, 1561 
 
 Noonan v. Ilsley 1339 
 
 V. Lee 1531 
 
 Norcross v. Griffiths 1510 
 
 V. Norcross 1050, 1540, 1541 
 
 Nordenfelt v. The Maxim, etc. 541 
 
 Norfleet v. Cromwell 160 
 
 Norman v. Wells 836, 838, 839 
 
 Normille v. Gill 288, 289, 293 
 
 Norrell v. Augusta, etc. R. Co. 1358 
 
 Norris v. Baker 199 
 
 V. Beyea 613 
 
 V. Marshall 1060 
 
 V. Morrison 681, 758 
 
 V. Thompson 481 
 
 Noiiiss V. Morrill ^ 925 
 
 North V. Bamum ' 899 
 
 V. Graham 604, 1018 
 
 V. Henneberry 1441 
 
 V. Strafford 882 
 
 Nor. Cent. R. Co. v. Canton Co. 43 
 
 North Eastern R. Co. v. Elliott 281 
 
 North End Sav. Bk. v. Snow 1104 
 
 North Noonday M. Co. v. Orient 
 
 M. Co. 315, 316, 318 
 
 North Salem v. Eagle Co. 300 
 
 Northcut V. Whipp 673 
 
 Northern Co. Ins. Co. v. Whipp 1037 
 Northern Pacific Ry. v. Townsend 
 
 1058 
 Northport R. E. & I. Co. v. Hen- 
 
 drickson 1360, 1361, 1364, 1377 
 Northrup's Lessee v. Brehmer 1493 
 Northwestern Nat. Bank v. Free- 
 man 1091 
 
Ixxxvi 
 
 Norton v. Craig 
 V. Babcock 
 V. Dashwood 
 V. McDevit 
 V. Palmer 
 V. Weir 
 
 Norwood V. DeHart 
 V. Kirby 
 
 Nostrand ». Knight 
 
 TABLE OF CASES CITBD. 
 [References are to pages.] 
 
 66 
 
 1529 
 
 23, 27, 29 
 
 642 
 
 1058, 1116 
 
 909 
 
 1104 
 
 895 
 
 1498, 1499 
 
 Note to Chesterfield v. Janssen 540 
 
 Nottingham v. Calvert 717 
 
 Nowlin Lumber Co. v. Wilson 795 
 
 Noyes Will 1557 
 
 Noyes v. Anderson 1017, 1079 
 
 V. Collins 1512 
 
 V. Dyer 1361, 1513 
 
 V. Hemphill 268 
 
 V. Mantle 314 
 
 Nudd V. Hobbs 221 
 
 Nugent V. Riley 1047 
 
 N\U1 V. Howell 728 
 
 Nunri V. O'Brien 453, 456 
 
 Nunnelly v. Southern Iron Co. 321 
 
 Nutt V. Cuming 1073, 1133 
 
 V. Norton 1558 
 
 Nutter V. Fouch 682, 719 
 
 Nycum v. McAllister 755 
 
 Nye V. Hoyle 1519, 1541 
 
 V. Lowry 1464, 1465 
 
 V. Taunton Branch R. Co. 718 
 
 O. 
 
 Oak V. Dustin 543 
 
 Oakes v. Chalfont 1204 
 
 V. Delancey 1503, 1510 
 
 Oakland Cem. Co. v. Bancroft 25 
 
 Oakley v. Monck 947 
 
 V. Oakley 660 
 
 V. Schoonmaker 885, 886 
 
 Oastler v. Henderson 917, 918, 919 
 
 Oates V. Beckworth 1371 
 
 O'Beime v. Allegheny, etc. R. 
 
 Co. 1058 
 
 Oberly v. Lerch 50 
 
 Obermeyer v. Behn 70, 1430 
 
 V. Liebman 1090 
 
 Obert V. Bordine 462 
 
 V. Dunn 281 
 
 O'Brien, Appeal of 1548 
 
 V. Ball 921 
 
 V. Clark 1514 
 
 V. Elliot 735 
 
 V. Fleckenstein 1492 
 
 V. Goodrich 196 
 
 V. Lewis 653 
 
 V. Philadelphia 280 
 
 V. Smith 129, 854 
 
 Ocean Grove Camp M. Ass'n v. 
 
 Com'rs of Asbury Park 304 
 
 V. Sanders 119, 815 
 
 O'Connor v. Felix 571 
 
 V. Giftord 522, 623 
 
 V. Irvine 507 
 
 V. Pittsburgh 280 
 
 Odd Fellows v. Hegele 288, 293 
 
 Oddie V. Brown 1287 
 
 Odell V. Montross 1032, 1077 
 
 V. Solomon 902, 903, 904, 906 
 
 Odes V. Woodward 1670 
 
 Odom V. Beverly 646 
 
 V. Riddick 1446 
 
 O'Donald v. Maclntyre 889, 896, 951 
 
 O'Donnel v. Penny 1505 
 
 O'Donnell v. Kelliher 1464 
 
 V. Kelsey 1513 
 
 V. Mclntyre 385, 834, 1068 
 
 V. White 509 
 
 O'Donoghue v. Boies 654, 665 
 
 O'Flynn v. Powers 1427 
 
 Ogden's Appeal 461 
 
 Ogden V. Grove 177 
 
 V. Jennmgs 178, 1498 
 
 V. Ogden 1471 
 
 V. Stock 28 
 
 Ogilvie V. Hull 849 
 
 O'Halloran v. Fitzgerald 896 
 
 O'Hara, Matter of Will of 533, 536 
 
 O'Hear v. De Goesbriand 68 
 
 Ohlfield V. Curtis 604 
 
 Oil Creek R. Co. ■;;. Great Western 
 
 R. Co. 815 
 
 Okeson v. Patterson 193, 200 
 
 Gland's Case ' 62, 771 
 
 Oland V. Burdwick 771, 865, 927 
 
 Olcott V. Bynum 509 
 
 V. Thompson 250, 251 
 
 Old South Soc. V. Wainwright 1366 
 
 Olden V. Mather 124, 795 
 
 Oldewurtel v. Wiesenfeld 919 
 
 Oldham v. Litchford 635 
 
 OUffe V. WeUs 536 
 
 Oliphant v. Leversidge 511 
 
 V. Burns 1051, 1350, 1491, 1492 
 
 Oliver v. Bush 1536 
 
 V. Davy 1579 
 
 V. Hook 203 
 
 V. Moore 806 
 
 V. Piatt 518, 1536 
 
 V. Pitman 179 
 
 Olmstead v. Camp 228 
 
 V. Latimer 1099, 1102 
 
 V. Rawson 1637, 1538 
 
 Olmsted v. Ohnsted 667, 1316 
 
 Olney v. Fenner 204, 209 
 
 V. Gardiner 206 
 
 V. Wharf 232 
 
 Olson V. Schultz 906 
 
 Olwine V. Holman 1369 
 
 Omaha & N. P. R. Co. v. 
 
 Janeoek 232 
 
 Omaha & R. V. R. Co. v. 
 Rickards 246 
 
TABLE OF CASES CITED. 
 [References are to pages.] 
 
 IxXxvii 
 
 Ombotiy v. Jones 38, 41 
 
 Ommanney v. Butcher 481 
 
 Onderdonk v. Onderdonk 524, 1564 
 .160th Street, Matter of 222 
 
 O'Neil V. Van Tassel 262, 294, 1527, 
 
 1529 
 
 O'Neill's Will 1550 
 
 O'Neill V. Breese 275 
 
 V. Webster 1482 
 
 Onset R. Co. v. County Comm'ra 
 
 230, 231 
 Onslow V. Corrie 831 
 
 Onthank v. L. S. & M. C. R. Co. 250 
 Onward Bldng. Soc. v. Smithson 1344, 
 
 1345 
 Orcutt V. Moore 796 
 
 Orecny v. Goetz 1560 
 
 Orlando v. Gooding 1441 
 
 Orlebar v. Fletcher 993 
 
 Orman v. Day 294 
 
 Ormond's Case 1203 
 
 Ormsby v. Pinkerton 174 
 
 O'Rorke v. BoUngbroke ' 539, 540 
 O'Rourke v. Henry Prouse 
 
 Cooper Co. 792 
 
 V. O'Connor 1575 
 
 V. Sherwin 1222 
 
 V. Smith 169, 172, 173, 179 
 
 Orr V. Oilman 1580 
 
 V. Hadley 1342 
 
 Orr Ewing v. Colquhoun 58 
 
 Orth V. Orth 453 
 
 Ortmayer v. Elcock 1398, 1530 
 
 Osbom V. Cook 1551 
 
 V. Horine 712 
 
 V. Kistler 1466, 1537 
 
 V. Robbins 545 
 
 Osborne v. Auburn Telephone 
 
 Co. 231, 232, 233 
 
 V. Butcher 
 
 268 
 
 V. Endicott 
 
 1345 
 
 V. Gordon 
 
 467 
 
 Oschinsky v. Greenbery 
 
 916 
 
 Osgood V. Abbott 
 
 593, 620 
 
 V. Dewey 
 
 125, 932 
 
 V. Eaton 
 
 508 
 
 i;. Franklin 537 
 
 538, 1221 
 
 V. Osgood 
 
 1035 
 
 Oshey v. Sir Baptist Hick£ 
 
 1496 
 
 Osmond v. Fitzroy 
 
 543 
 
 Osmun V. Porter 
 
 745 
 
 Osten V. Jerome 
 
 302 
 
 Ostheimer v. Single 
 
 559, 703 
 
 Oswald V. Caldwell 
 
 1468, 1470 
 
 V. Gilfert 
 
 828 
 
 V. Wolf 
 
 216 
 
 Otis, Matter of 
 
 870 
 
 V. McMillan 
 
 917 
 
 V. Smith 
 
 1498 
 
 V. Otis 
 
 410, 413 
 
 V. Spencer 
 
 1469, 1470 
 
 Ottawa V. Yentzer 
 
 223 
 
 Ottinger v. N. Y. El. R. Co. 
 
 787, 1142, 1252 
 Ottumwa Lodge v. Lewis 285 
 
 Otway V. Hudson 671 
 
 Ould V. Washington Hospital 474, 
 
 475 
 
 Oursler v. B. & O. R. Co. 268 
 
 Ousby V. Jones 1 502 
 
 Outcalt V. Appleby 774 
 
 Outerbridge v. Phelps 167, 174 
 
 Outhank v. L. S. & M. S. R. Co. 159 
 
 Overbagh v. Patrie 599 
 
 Overfield v. Christie 1365 
 
 Overman v. Sasser 16, 45, 62 
 
 Overseers of Poor v. Sears 594 
 
 Owen, Matter of 1553 
 
 V. Baker 1482 
 
 V. Brookport 1507 
 
 V. Evans 1061 
 
 V. Field 242,258,307,621, 
 
 1022 
 
 V. Gibbons 967, 1297, 1321 
 
 V. Morton 961 
 
 V. Slatter 681, 720, 721 
 
 Owpns V. Lewis 62 
 
 V. Miss. Soc. M. E. Church 500 
 
 V. Owens 537 
 
 V. WilUams 436 
 
 Owings V. Emery 781 
 
 V. Jones 905 
 
 Ownes V. Ownes 446 
 
 Oxford Township v. Columbia 1358 
 
 Oxley V. James 923, 927, 928 
 
 Oyster v. Albright - 510 
 
 V. Knull 591 
 
 Pace V. Bartles 1035 
 
 V. Goodson 795 
 
 Pacific Bank v. Hannah 664 
 
 Pacific Nat. Bk. v. Windram 471 
 
 Pacific P. Tel. Co. v. Irvine 233 
 
 Pacific Sheet Metal Works v. 
 
 Boeder 1510 
 
 Pack V. Shanklin 480 
 
 Packard v. Ames 1203 
 
 V. Johnson 963 
 
 V. Old Colony R. R. 441 
 
 Packer v. Bird 1510 
 
 V. Rochester, etc. R. Co. 1056 
 
 Paddock v. Strobridge 534 
 
 Padelford v. Padelford 767 
 
 Page V. Edwards 35 
 
 V. Estes 749, 750 
 
 V. Kinsman 895 
 
 V. Parr 853 
 
 V. Thomas 983, 985, 986 
 
 V. Waring 1493 
 
 •Paget V. Melcher 465, 1157, 1164 
 
 V. Page 611 
 
Ixxxviii 
 
 TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Paget V. Palmer 1015 
 
 Paice V. Canterbury 486 
 
 Paige V. Paige 676 
 
 V. Schenectady R. Co. 230, 1508 
 
 V. Waring 1364 
 
 Paine's Case 637, 642 
 
 Paine v. Barnes 1215 
 
 V. Chandler 169, 172, 175, 179, 
 
 289, 306 
 
 V. Jones 1104 
 
 V. McDowell 35 
 
 V. Meller 572 
 
 V. Rector 909 
 
 ' V. Woods 57, 58, 59 
 
 Paisley's Appeal 453 
 
 Palk V. CUnton 1074 
 
 Palmer v. Bowker 934 
 
 V. Culbertson 1319, 1320, 1321 
 
 V. Des Couriers 1038 
 
 V. Fletcher 273 
 
 V. Forbes 56 
 
 V. Garland 1425 
 
 V. Horton 706 
 
 V. Larchmont Elec. Co. 233 
 
 v: Monison 50 
 
 V. Palmer 177, 178, 180, 181, 
 
 182, 702, 964, 971, 1474 
 
 V. Wetmore 274 
 
 V. Young 552 
 
 Palmer's Adm'rs v. Mead 1116 
 
 Palmer's Private Road 237 
 
 Palmetto Lumber Co. v. Risley 518 
 
 Pancoast v. Pancoast 981 
 
 Pangbum v. Miles 1515 
 
 Papillon V. Voice 1178 
 
 Paradine v. Jane 133, 855, 1014 
 
 Pardee v. Aldridge 1058 
 
 Paris V. Hulett ' 1116 
 
 Parish V. Baird 156 
 
 V. Kaspare 202, 243, 321, 324 
 
 V. Rogers 137, 798 
 
 Park V. Bates 851 
 
 V. Castle 929 
 
 V. Pratt 1376 
 
 Parke v. Mears 1478 
 
 Parker v. Barker 594, 1341 
 
 V. Beasley 1105 
 
 V. Brooke 472 
 
 V. Brown 1522 
 
 V. Chancellor 1478 
 
 V. Conner 575, 576 
 
 V. Foote 194, 204, 211, 274, 275, 
 
 276, 277, 278 
 
 V. Framingham 207 
 
 V. Hayes 634, 535 
 
 V. Kane 1469 
 
 V. May 485 
 
 0. Murphy 690 
 
 V. Nightingale 188, 189, 1539 
 
 V. Parker 686, 696, 1013, 1253 
 
 V. Proprietors, etc. 989 
 
 ■u. Strickland 61 
 
 Parker Adm'r v. Ross 
 
 1194 
 
 Parkes v. White 
 
 548, 599 
 
 Parkist v. Alexander 
 
 551 
 
 Parkman v. Welch 
 
 1088 
 
 Parks V. Bishop 
 
 245, 246 
 
 V. Boston 
 
 854, 921 
 
 V. Hardey 
 V. McClellan 
 
 688 
 
 700 
 
 V. Morris Ax & T. Co. 
 
 1061 
 
 Parmelee v. Oswego S. R. Co. 936 
 
 V. Simpson 1474 
 
 Pamall v. Parnall 452 
 
 Parret v. Shaubhut 1489 
 
 Parrett v. Avery 70 
 
 Parrish v. Parrish 676 
 
 Parry v. Clark 1523 
 
 Parsell v. Stiyker 137, 798 
 
 Parsons v. Camp 322 
 
 V. Copeland 30 
 
 V. Johnson 173, 174, 244, 264, 
 
 265 
 
 V. Meller 1445 
 
 V. Parsons 750 
 
 V. Phelan 519 
 
 V. Winslow 776 
 
 Parsons, The Robert W. 297 
 
 Partridge v. Gibert 256, 262 
 
 0. Gilbert 288, 291, 292, 293, 
 
 294 
 
 V. Havens 511 
 
 V. Lyon 294 
 
 V. Scott 280 
 
 Paschal v. Acklin 479 
 
 Paterson R. Co. v. Grundy 230 
 
 Paton V. Murray 1122 
 
 Patten v. Fitz 1527 
 
 V. Scott 1357 
 
 V. Talbnan 1552 
 
 Patterson v. Ellis's Ex'or 1266, 1258 
 
 V. Hewitt ' 319 
 
 V. Hitchcock 316 
 
 V. Leming 650 
 
 V. Mills 1108 
 
 V. Nixon 1374 
 
 V. Northern Trust Co. 816 
 
 V. Pease 1348 
 
 V. Stoddard 933 
 
 Patteson's Appeal 61, 62 
 
 Pattison v. Gilford 268 
 
 V. Hull 1058 
 
 Patton V. Chamberlain 440 
 
 V. Moore 679 
 
 Paul, In re 946 
 
 V. Fulton 579 
 
 V. Mockley 216 
 
 Paulsen v. Manske 1576, 1577 
 
 Pavkovich v. Southern Pac. R. 
 
 Co. 780 
 
 Pawlett V. Atty.-Gen. 414 
 
 Pay's Case 1250 
 
 Payne v. Becker 664 
 
 V. Burnham 1062 
 
TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Ixxxix 
 
 Payne v. Dotson 705, 710 
 
 V. Johnson's Executors 1238 
 
 V. Parker 748 
 
 V. Rogers 903, 905, 906 
 
 V. Wilson 617, 621, 1039, 
 
 1043 
 
 Payton v. Bums 318 
 
 V. McPhaul 1497 
 
 Peabody v. Brown 1454 
 
 V. Hewitt 145G 
 
 V. Long Acre Square Bldng. 
 
 Co. 885, 892 
 
 V. Minot 969 
 
 V. Sadtler 1507 
 
 V. Tarbell 511 
 
 Peacock v. RaSen 924 
 
 Pearce v. Gamble 549 
 
 V. McClenaghan 264 
 
 V. Moore 1375 
 
 V. Savage 988, 1153 
 
 V. Warren 1057 
 
 Peame v. Cold Creek M. & M. Co. 177 
 
 Pearsall v. Post 220 
 
 V. Westcott 287, 288, 289 
 
 Pearson v. Carlton 1317 
 
 V. Collins 482 
 
 V. Hartman 242, 271 
 
 V. King 1376 
 
 V. Spencer 177, 182 
 
 Pease v. Egan 1085 
 
 V. Inhabitants of Whitman 955, 
 
 976 
 
 V. Lawson 1465 
 
 Peasley v. Drisco 1497 
 
 Peavey v. Tilton 1494 
 
 Peck V. Batchelder 16 
 
 V. Carpenter 961 
 
 V. Conway 160, 167, 187 
 
 V. Goodberlett 240, 301 
 
 V. Herrington 301 
 
 V. Hiler 845, 848 
 
 V. Ingersoll 869 
 
 V. Mallains 1514 
 
 V. Ormsby 756 
 
 V. Peck 558 
 
 V. Roe 277 
 
 V. Schenectady R. Co. 232 
 
 V. Walton 1385 
 
 V. Young 1414 
 
 Peele v. Chever 1365 
 
 Peers v. Lucy 308 
 
 Pegram v. N. Y. El. R. Co. 51, 269 
 
 Peil V. Reinhart 859, 906 
 
 Peiree v. Hubbard 1178 
 
 Peirs V. Peirs 780 
 
 Pelham-CUnton v. Newcastle 614 
 
 Pell V. Mercer 475 
 
 Pells V. BroWn 883, 1261 
 
 Pelton V. Place 867, 882, 919 
 
 Pemberton v. Barnes 1023 
 
 Pendill v. Marquette Co. A. Soc. 
 
 1344 
 
 Penfold V. Warner 712 
 
 Penhallow v. Dwight 61 
 
 Penn's Hospital v^ Delaware 479 
 
 Penne v. Peacock 1243 
 
 Pennington v. Brinsop Hall Coal 
 
 Co. 299 
 
 V. Flock 1497 
 
 V. Martin 1039 
 
 Pennock's Estate 453, 456 
 
 Pennock v. Lyons 817, 1017 
 
 Pennsylvania v. Lord Baltimore 459 
 Penna. Canal Co. v. Harris 1502 
 
 Pennsylvania Coal Co. v. Sander- 
 son 299, 306 
 Pennsylvania R. Co. v. Borough 
 
 of Freeport 212, 258 
 
 V. Duncan 231, 269 
 
 V. Montgomery County P. 
 
 R. Co. 
 V. St. L. A. & T. H. R. Co. 
 
 227 
 
 125, 
 
 882 
 
 1437 
 
 Penny v. Corwithe 
 
 Penrhyn Slate Co. v. Granville 
 
 Elec. Light & P. Co. 199 
 
 Penrod v. Bruce 1511 
 
 Penry v. Richards 1501 
 
 Pentland v. Keep 1146 
 
 Penton v. Robart 42 
 
 V. Roberts 60 
 
 People V. Adirondack Park Ass'n 235 
 
 V. Alberty 781 
 
 V. Angel 901 
 
 V. Bennett 864, 888 
 
 V. Botsford 926 
 
 V. Brooklyn 1429 
 
 V. Campbell 1430 
 
 V. Canal Appraisers 59 
 
 V. Chase 1582, 1583 
 
 V. City Bk. of Rochester 520 
 
 V. Cogswell 
 
 478, 479 
 
 V. Conklin 
 
 1327 
 
 V. Crissman 
 
 1583 
 
 V. Culver 
 
 918 
 
 V. Cutting 
 
 1325 
 
 V. Darling 
 
 925, 929, 930, 946, 
 
 
 947 
 
 V. Deehan 
 
 1417 
 
 V. Dreher 
 
 223 
 
 V. Folsom 
 
 1325 
 
 V. Foss 
 
 272 
 
 V. GiUis 
 
 625, 633, 812 
 
 V. Guthrie 
 
 1503 
 
 V. Howlett 
 
 901 
 
 V. Kellogg 
 
 223 
 
 V. Kelsey 
 
 913, 943 
 
 V. Kerr 
 
 231, 232 
 
 V. Keyser 
 
 987 
 
 V. Ladew 
 
 1360, 1432, 1434 
 
 V. Lambier 
 
 1331, 1332 
 
 V. Lewis 
 
 1432, 1434 
 
 V. Lichtman 
 
 996 
 
 V. Mauran 
 
 1416 
 
xc 
 
 TABLE OP CASES CITED. 
 [Referencea are to pages.] 
 
 People V. McAdam 792, 886 
 
 V. McCarty 864, 888 
 
 V. North Riv. Sug. Ref. Co. 541 
 V. O'Brien 140 
 
 V. Open Board of Stock 
 
 Brokers' Building Co. 543, 
 
 648, 549 
 
 V. Peckens 533 
 
 V. Powers 481, 499, 500, 502, 
 
 1231 
 
 V. Simon 1682, 1583 
 
 V. Simonson 1183 
 
 V. Simpson 886 
 
 V. Smith 229 
 
 V. Snyder 1345, 1497 
 
 V. Supervisors 961, 1429 
 
 V. Sutherland 1464 
 
 V. Trinity Church 1416 
 
 V. Turner 1430, 1432 
 
 V. Underbill 218, 222, 224 
 
 V. Van Rensselaer 389, 394, 
 
 1357 
 
 V. Voorhis 1427 
 
 V. Wieboldt 1340 
 
 V. Woodruff 1043 
 
 V. Zundel 1364 
 
 People, etc. v. Com. of Taxes 57 
 
 People ex rel. Astor 229 
 
 People ex rel. Cassavoy v. 
 
 Dimond 1092 
 
 People ex rel. Cross v. Aheam 906 
 People ex rel. Cunningham v. 
 
 Osbom 204 
 
 People ex rel. Elec. R. Co. v. 
 
 Com. of Texas 56 
 
 People ex rel. Frost v. N. Y. C. 
 
 & H. R. Co 192, 1519 
 
 People ex rel. Int. Nav. Co. v. 
 
 Barker 38 
 
 People ex rd. Met. St. R. Co. 
 
 V. Tax Com'rs 143, 144 
 
 People ex rel. Stewart v. R. 
 
 Com'rs 236 
 
 People ex rel. W. G. Co. v. 
 
 Deehan 146, 1413 
 
 People's Bk. v. Loeffert 562 
 
 People's Gas Co. v. Tyne 57, 240 
 
 V. Tyner 303 
 
 People's Ice Co. v. Davenport 59 
 
 People's Sav. Bk. v. Alexander 871 
 Peoria V. Central Nat. Bank 1511 
 Peoria G. & E. Co. v. Dunbar 1601 
 Pequawkett Bridge v. Mathes 1468 
 PercifuU v. Piatt 983 
 
 Percival v. Chase 1367 
 
 V. Hughes 294 
 
 Perdue v. Bell 1036 
 
 Pere Marquette R. Co. v. Baertz 1677 
 Pereles v. Magoon 1601 
 
 Perin V. Carey 476 
 
 V. Megibben 677 
 
 Perkins, In re ' 668, 1227 
 
 Perkins v. Davis 
 
 1577 
 
 V. Swank 
 
 40 
 
 Perley v. Langley 211, 219, 309 
 
 Pernam v. Wead 
 
 178 
 
 Perrin v. Blake 
 
 1175 
 
 V. Leverett 
 
 1574 
 
 Perrine v. Cheeseman 
 
 1465 
 
 Perrior v. Peck 
 
 1502 
 
 Perrot v. Perrot 
 
 782 
 
 Perry's Appeal 
 
 1058 
 
 Perry v. Carr 66, 781, 927, 935 
 
 V. Clark 
 
 1521 
 
 V. Tynen 
 
 1224 
 
 Perry-Herrick v. Attwood 
 
 560 
 
 Perryman's Case 
 
 1472 
 
 Pertwee v. Townsend 
 
 136 
 
 Peter v. Beverly ' 
 
 1221, 1222 
 
 V. Kendal 
 
 143, 144 
 
 Peters v. Barnes 
 
 914 
 
 V. Cartier 
 
 1398 
 
 V. Ham 
 
 1489 
 
 V. Little 
 
 201 
 
 V. McKeon 
 
 1533 
 
 V. Mortimer 
 
 641 
 
 V. Stone 
 
 829 
 
 Peterson v. Boswell 
 
 519 
 
 V. De Baun 
 
 1167 
 
 V. Jackson 
 
 617 
 
 V. Kinkhead 
 
 900 
 
 V. Laik 
 
 1444 
 
 V. Mayer 
 
 , 920 
 
 Petne.v. Badenoch 
 
 661 
 
 Pettee v. Hawes 
 
 164 
 
 Pettigrew v. Evansville 
 
 269 
 
 Pettingill v. Porter 
 
 163, 179 
 
 Petty V. Styward 
 
 987 
 
 Peugh V. Davis ] 
 
 1064, 1076 ' 
 
 Peyser v. Mayor 
 
 645 
 
 Peyton v. London 
 
 286 
 
 Pfaff V. Golden 
 
 128, 876 
 
 Pfanner v. Sturmer 
 
 935 
 
 Pfeiffer v. Rheinfrank 
 
 83, 1455 
 
 Pfluger V. Carmichael 
 
 18, 19 
 
 Pflum V. Spencer 
 
 811 
 
 Pharis V. Gere 
 
 889, 1426 
 
 V. Muldoon 
 
 318 
 
 Phelan v. Brady 
 
 574, 808 
 
 V. Olney 
 
 1058 
 
 Phelps, Matter of 
 
 1464 
 
 V. Nolen 
 
 304 
 
 V. Phelps 426, 615, 
 
 516, 663, 
 
 668 
 
 , 669, 671 
 
 Phelps' Executor v. Pond 
 
 457 
 
 Pheysey v. Vicanr 
 Philadelphia v. Fox 
 
 179 
 
 428 
 
 V. Girard's Heirs 
 
 477 
 
 V. Keystone Battery A 
 
 480 
 
 V. Overseers 
 
 479 
 
 V. Spring Garden 
 
 298 
 
 Philbrick V. Ewing 
 
 244 
 
 Philbrook v. Delano 526,^616, 1346, 
 
 
 1457 
 

 TABLE OF CASES CITED. 
 
 XCl 
 
 
 [References are to pages.] 
 
 
 Phillips, Matter of 
 
 1550 
 
 Pierce v. Tregg 
 
 985 
 
 Phillips V. Brown 
 
 1237 
 
 V. Waring 
 
 555 
 
 V. Covert 927, 
 
 935, 936, 942, 
 
 V. William 
 
 692 
 
 
 943 
 
 Pierre v. Femald 
 
 276, 724 
 
 V. Farley 
 
 637, 64S 
 
 Pierrepont v. Barnard 
 
 322 
 
 V. Ferg:uson 
 
 1012, 1013 
 
 Pierson v. Armstrong 
 
 467 
 
 V. Haliday 
 
 67 
 
 V. Lane 
 
 617 
 
 V. Herron 
 
 617 
 
 V. Speyer 
 
 299 
 
 V. Homfray 
 
 927 
 
 Piggott V. Mason 
 
 839 
 
 V. La Forge 
 V. Overfield 
 
 642 
 
 Pigot's Case 
 
 1439, 1476 
 
 518 
 
 Pike V. Wassell 
 
 706 
 
 V. Phillips 172, 
 
 203, 452, 453, 
 
 Pile V. Pedrick 
 
 291 
 
 
 457, 1089 
 
 Pillars V. McConnell 
 
 510 
 
 V. PuUen 
 
 538 
 
 Pillot V. Landon 
 
 426, 430 
 
 V. Ritter 
 
 1342, 1375 
 
 Pillow V. Roberts 
 
 1465 
 
 V. Roquemore 
 
 1575 
 
 V. Southwest Imp. 
 
 Co. 1004 
 
 V. Smith 
 
 781 
 
 V. Wade 
 
 715 
 
 V. Stevens 
 
 830 
 
 Pillsbury v. Alexander 
 
 226, 1502 
 
 V. Swank 
 
 595 
 
 Pinckney v. Burrage 
 
 1367 
 
 V. Thompson 
 
 787 
 
 Pinero v. Judson 
 
 933 
 
 V. Winslow 
 
 56 
 
 Ping'ree v. Comstock 
 
 449 
 
 Phinizy v. Guernsey 
 
 572 
 
 Pinhorn v. Souster 
 
 936 
 
 Phipps V. Phipps 957 
 
 964, 972, 973 
 
 Pinkum v. Eau Claire 
 
 216 
 
 V. State 
 
 308 
 
 Pinney v. Fellows 
 
 439, 511, 526 
 
 V. Tarpley 
 
 1505 
 
 Pinnock v. Clough 
 
 437 
 
 V. West Md. R. Co 
 
 232 
 
 Pistol V. Piccardson 
 
 1545 
 
 Phoenix Ins. Co. v. Continental 
 
 Pitcher v. Livingston 
 
 1524, 1525 
 
 Ins. Co. 
 
 164 
 
 Pitman v. Hill 
 
 1355 
 
 Phoenix I. W. Co. v. N 
 
 . Y. Se- 
 
 V. Pitman 
 
 430 
 
 curity Co. 
 Pickard v. Sears 
 
 36 
 
 V. Poor 
 
 326 
 
 1339 
 
 Pitney v. Huested 
 
 1506, 1509 
 
 Pickens v. Davis 
 
 1561 
 
 Pittman v. Weeks 
 
 1365 
 
 V. Ryner 
 
 1468 
 
 Pitts V. Aldrich 
 
 717 
 
 Pickerell v. Carson 
 
 13 
 
 V. Hendrix 
 
 61 
 
 Pickering v. Moore 
 
 67 
 
 V. Maier 
 
 1034 
 
 V. Rudd 
 
 199 
 
 V. Parker 
 
 1039 
 
 V. Shotwell 
 
 478 
 
 Pittsburgh Amusement Co. «. 
 
 Pickett V. Bartlett 
 
 947 
 
 Ferguson 
 
 812 
 
 u. Ferguson 
 
 898 
 
 Pitzzman v. Boyce 
 
 324 
 
 V. Jones 
 
 1039, 1078 
 
 Pizzala v. Campbell 
 
 659 
 
 V. Loggon 
 
 539 
 
 Place V. Dudley 
 
 1529 
 
 Pidcock V. Bishop 
 
 534 
 
 V. Hayward 
 
 554 
 
 Pierce v. Brew 
 
 1458 
 
 Planter's Bank v. Davis 641 
 
 V. Brown 
 
 1014 
 
 Piatt V. Elias 
 
 1458 
 
 V. Chace 
 
 978 
 
 V. Finck , 
 
 714, 715, 1447 
 
 V. Cleland 
 
 183 
 
 V. Kline 
 
 '863 
 
 V. Cloud 
 
 209 
 
 V. Squire 
 
 1072 
 
 V. Dyer 
 
 262, 285, 294 
 
 V. Vattier 
 
 458 
 
 V. Emery 
 
 56 
 
 V. Vermillion 
 
 1513 
 
 V. Femald 
 
 207, 1368 
 
 Pleasant v. Benson 
 
 927 
 
 V. Frace 
 
 1412 
 
 Pleasants v. Blodgett 
 
 1492 
 
 V. George 
 
 25, 34 
 
 Pledge V. Carr 
 
 1095 
 
 V. Georger 
 
 1482 
 
 V. White 
 
 1096 
 
 V. Hakes 
 
 1464 
 
 Plessy V. Ferguson 
 
 4 
 
 V. Hower 
 
 513 
 
 Plet V. Willson 
 
 1359 
 
 V. Keator 
 
 243, 244, 309 
 
 Pleydell v. Pleydell 
 
 1256 
 
 V. Knight 
 
 1545 
 
 Plimpton V. Converse 
 
 201, 209, 264 
 
 V. Kusic 
 
 757 
 
 V. Plimpton 
 Pluoker v. Teller 
 
 776 
 
 V. Oliver 
 
 1004 
 
 549 
 
 V, Pierce 647, 
 
 657, 735, 737 
 
 Plumb V. Tubbs 
 
 394, 601, 1015 
 
 V. Selleck 
 
 180 
 
 Plumer v. Plumer 
 
 30, 896 
 
 V. Spear 
 
 1090 
 
 Plunket V. Holmes 
 
 645 
 
sen 
 
 TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Plymouth v. Hickman 439 
 
 Plympton v. Boston 773, 774, 775 
 
 Podleck V. Phelan 42 
 
 Podmore v. Gunning 636 
 
 Poignard v. Smith 900 
 
 PoiUon V. Poillon 669, 670, 672 
 
 Poland V. Vesper 760 
 
 Polhemus v. Emson 1572 
 
 V. Trainer 873 
 
 Polk V. Daly 920 
 
 Pollard V. Bames 197, 198, 201 
 
 V. Dwight 1522 
 
 V. Gare 175, 273 
 
 V. Maddox 1500 
 
 PoUey V. Johnson 62 
 
 PoUitt V. Kerr 701 
 
 Pollock V. Farmers' L. & T. Co. 118 
 
 Polly V. Bessey 198 
 
 V. M'Call 198 
 
 Polyblank v. Hawkins 748, 749 
 
 Pomeroy v. Mills . 217 
 
 Pomfret v. Ricroft 177, 249, 845 
 
 V. Windsor 933 
 
 Pond V. Bergh 640, 1308 
 
 Pool V. Alger 295 
 
 V. Blackie 642 
 
 V. Harrison 523 
 
 V. Lamb 895 
 
 V. Morris 616 
 
 Poole V. Bentley 813 
 
 V. Engelke 940, 941 
 
 V. Huskinson 223 
 
 V. Needham 599 
 
 Poor V. Hazelton 540 
 
 V. Oakman 28, 54 
 
 V. Sears 861, 904 
 
 V. Woodbum 578 
 
 Pope V. Dapray 514, 516 
 
 V. Devereux 201, 256 
 
 V. Durant 658 
 
 V. Jackson 24 
 
 V. O'Hara 253, 329 
 
 V. Shinkle 19 
 
 Popplewell V. ModMnson 284, 300 
 
 Porch V. Fries 651, 652 
 
 Porche v. Bodin 61 
 
 Port V. Jackson 871 
 
 Porter's Will, Matter of 1464 
 
 Porter v. Bk. of Rutland 441 
 
 V. Bleiler 810 
 
 V. Bradley 834, 1528 
 
 V. Hill 990 
 
 V. Hubbard 649, 942 
 
 V. Lazear 682, 719 
 
 V. Merrill 595, 817 
 
 V. Pittsburg Bessemer Steel 
 
 Co. 35 
 
 V. Spencer 882 
 
 V. Turner 807 
 
 Porter Hardware Co. v. Lee 1577 
 
 Portington's Case 620, 621, 911, 
 
 1010, 1022 
 
 Portland v. Keep 207 
 
 Posner Bros. v. Bayless, Trustee 1465 
 
 Post V. Campan 1526 
 
 V. Kearney 837, 867 
 
 V. Martens 810, 814 
 
 V. Moore 452 
 
 V. Pearsall 220, 221, 225, 242, 
 
 243, 271, 307, 308, 309 
 
 V. Rohrbach 492 
 
 Post Hill Imp. Co. V. Brandegee 1500 
 
 Postlethwaite v. Payne 201, 210 
 
 Potomac Dredging Co. v. Smoot 780 
 
 Potter V. Adams 1440 
 
 V. Couch 470, 597, 598, 1273 
 
 V. Cromwell 12, 16, 18, 19, 23, 
 
 1051 
 
 V. Everitt 664 
 
 V. Jacobs 530 
 
 V. Mercer 812 
 
 V. North 211 
 
 V. Pittsburg Bessemer Steel 
 
 Co. 45 
 
 V. White 291 
 
 Pottkamp V. Buss 1499 
 
 Pottle V. Lowe 1227 
 
 PouU V. Mockley 242, 272 
 
 Powell V. Bagg 201, 202 
 
 V. Clark 1514 
 
 V. Crow 1042 
 
 ■u. Gossom 640 
 
 V. McAshan 39 
 
 V. Monson Mfg. Co. 24, 665, 695, 
 
 696, 697, 711, 712 
 
 V. Sims 274 
 
 Power V. Cassidy 500, 501 
 
 Powers' Appeal 539 
 
 Powers, Matter of 1044 
 
 V. Dennison 1523 
 
 V. Golden Lumber Co. 1072 
 
 V. Heffeman 176 
 
 V. Jackson 683 
 
 V. Sample 757 
 
 Powerscourt v. Powerscourt 478 
 
 Powley V. Walker 781 
 
 Powys V. Blagrave 787 
 
 Prahar v. Tousey 857 
 
 Prairie State Bk. v. United States 
 
 1085 
 
 Pratt V. Baker 31 
 
 V. Ogden 327 
 
 V. Paine 910, 1021 
 
 V. Philbrook 534, 535 
 
 V. Pratt 1051 
 
 V. Sladden 523 
 
 V. Sweetser 259 
 
 V. Trustees 453 
 
 Pratt, Hurst & Co. v. Tailer 905, 906 
 
 Pray v. Hegeman 498, 1286, 1288, 
 
 1289 
 
 r. Pierce 1402 
 
 V. Stebbins 978 
 
 Preble v. Reed 172 
 
TABLE OF CASES CITED. 
 [BeferenceB are to pages.] 
 
 XCIU 
 
 Precht V. Howard 
 Preiser v. Wielandt 
 Prentice v. Geiger 
 
 V. Janssen 
 Prentis v. Bates 
 Prentiss v. Bowden 
 
 V. Wame 
 / / Presby v. Benjamin 
 
 43 
 
 949 
 
 299 
 
 1236 
 
 1548 
 
 1571 
 
 919 
 
 129, 826, 847 
 
 Presby. Ch. in Newark v. Andruss 68 
 
 Prescott V. Nevers 963 
 
 V. Phillips 258 
 
 V. Tnieman 1626 
 
 V. Williams 1529 
 
 V. WiUs 13 
 
 Preston v. Bosworth 1016 
 
 V. Briggs 42 
 
 V. Hall 240 
 
 V. Hawley 125, 795, 831, 832, 
 
 881, 942, 944, 1368 
 
 V. Hull 301 
 
 V. Preston 439, 505, 517 
 
 V. Ryan 60 
 
 Prevatt v. Harrelson 1361 
 
 Prevot V. Ijawrence 895 
 
 Prey v. Stanley 597 
 
 Price, Matter of 1425 
 
 V. Brayton 60, 65 
 
 V. Breckinridge 224 
 
 V. Brown 619, 1364 
 
 V. Fenn 1427, 1428 
 
 V. Hobbs 696 
 
 V. King 1398, 1399 
 
 V. Lafayette Co. Bk. 1343 
 
 V. Maxwell 1563 
 
 V. Pestka 975 
 
 V. Pickett 771 
 
 V. Plainfield 222 
 
 V. Price • 51, 143, 448, 638, 666, 
 
 709 
 
 V. P. F. W. & C. R. R. Co. 1472 
 
 V. Reeves 610 
 
 V. Sisson 425, 430, 461 
 
 V. Weehawken Ferry Co. 53 
 
 V. Williams 812 
 
 Prickard v. Sears 1341 
 
 Prickett V. Ritter 926, 928 
 
 Priddy V. Griffith 684 
 
 Pride, In re 1107, 1108 
 
 Priest V. Cummings 713 
 
 V. Nichols 861, 907 
 
 Priester v. Hohloch 118 
 
 Prime V. City of Yonkers 302 
 
 Primm v. Walker 1332 
 
 Prince V. Case 321, 323, 327 
 
 Prindle v. Anderson 814, 926. 938 
 
 Pringle v. Vesta Coal Co. 283, 284, 
 
 285 
 Prior V. Prior 997 
 
 Pritchard v. Bailey 472 
 
 Pritts V. Ritchey 672 
 
 Probst V. Rochester Steam Laun- 
 dry Co. 808, 811 
 
 Proctor V. Bishop of Bath 1283 
 
 V. Gilson 67 
 
 V. Hodgson 178 
 
 V. Pool 1497 
 
 Proffitt V. Henderson 777 
 
 Proprietors, etc. v. Springer 1362, 
 
 1363 
 Proprietors of Mills v. Braintree 
 
 Water Supply Co. 269 
 
 Proseus v. Mclntyre 612 
 
 Proud V. HolUs 845 
 
 Providence v. Bullock 986 
 
 Providence Co. Savs. Bk. v. Hall 946 
 Providence Ins. for Savings v. 
 
 Carpenter 442 
 
 Providence Telegram Pub. Co. 
 
 V. Craham Engraving Co. 1466 
 
 Providence Tool Co. v. Corliss 
 
 Steam Engine Co. 172 
 
 Province v. Crow 1500 
 
 Provost V. Calder 901 
 
 Provost of Beverly's Case 1175 
 
 Provost of Dumfries v. Aber- 
 
 crombie 490 
 
 Pniden v. Paxton 970 
 
 Prutsman v. Baker 1472, 1473 
 
 Pryor v. Foster 894, 897, 899 
 
 Pugh V. Acton 43 
 
 V. Hayes 421 
 
 V. Pugh 518 
 
 Pugsley V. Aikin 874, 923, 927, 928, 
 
 929 
 
 Pulitzer v. Livingston 1273 
 
 PuUen V. Pullen 652 
 
 Pullian V. Sells 929 
 
 Pulpress V. African Church 485 
 
 Pulsford V. Richards 534 
 
 Purdy V. Coar 1070, 1102 
 
 V. Hayt 628, 954, 955, 957, 1152, 
 
 1169, 1170, 1183, 1194, 
 
 1196, 1272, 1389, 1402 
 
 V. Huntington 1047, 1107 
 
 V. Purdy 510 
 
 Purefoy v. Rogers 1186 
 
 Purtle V. Bell 1367 
 
 Pusey V. Desbouvrie 636 
 
 V. Pusey 70 
 
 Putnam v. Ritchie 960, 972 
 
 V. Story • 1174, 1189 
 
 V. Westcott 792 
 
 V. Wise 795 
 
 Putney i\ Dresser 956 
 
 Putzel V. Drovers & Mec. Nat. 
 
 Bk. 294 
 
 V. Van Brunt 1500 
 
 Pyatt V. Waldo 1297 
 
 Pybus V. Smith 599 
 
 Pye V. Daubuz 1531 
 
 Pyer v. Carter 172, 174 
 
 Pyke V. Crouch 1553 
 
 Pylant v. Reeves 1039 
 
 Pynchon v. Steams 777 
 
XCIV 
 
 TABLE OF CASES CITED. 
 [Befeiences are to pages.] 
 
 Q- 
 
 Quackenbush v. Leonard 510 
 
 V. Mapes, No. 1 84, 1109, 1468 
 
 Quade v. Bertsch 1167, 1164 
 
 Quicksall v. Philadelphia 222 
 
 Quigley v. Gridley 531, 669 
 
 V. Johns Mfg. Co. 907 
 
 Quimby v. Dill 766 
 
 V. Manhattan Cloth Co. 25 
 
 V. Straw 178 
 
 Quincy v. Jones 280 
 
 Quinn's Estate 473 
 
 Quinn v. McDole 1120 
 
 V. Morse 286, 293 
 
 Quintard v. Bishop 267 
 
 Quivey v. Baker 1350 
 
 R. 
 
 Raby v. Reeves 120 
 
 Race V. Gilbert 662 
 
 Radam M. C. Co., In re 412 
 Radcliff V. Mayor 229, 279, 280 
 Radcliff 's Executors v. Mayor of 
 
 Brookljm 229 
 
 Radey v. McCurdy 43 
 
 Radley v. Kuhn 1289 
 
 Rafferty v. Central Traction Co. 230 
 
 •Railroad Co. v. Bingham 232 
 
 V. Georgia 146 
 
 V. Maine 146 
 
 V. Malott 166 
 
 V. Robinson 236 
 
 V. Schurmeier 226 
 
 Railsback v. Walke. 807, 925 
 
 Raines v. Walker 1496, 1497 
 
 Ralston v. Field 1572 
 
 V. Truesdell 617 
 
 V. Turpin 543, 544 
 
 Ramherg v. Wahlstrom 960 
 
 Ramsdill, Matter of 1580 
 
 Ramsey v. Wilkie 828 
 
 Ramthim v. Halfman 226 
 
 Randall, In re 1273 
 
 V. Beatty -1561 
 
 V. Bookey 522 
 
 V. Cleaveland 785 
 
 V. Jaques 1466 
 
 V. Josselyn 1263 
 
 V. Kreiger 661 
 
 V. Latham 166 
 
 V. Lower 1349 
 
 V. Marble 1012, 1013 
 
 V. McLaughlin 160 
 
 V. Morgan 436 
 
 V. Phillips 987 
 
 V. Rigby 138 
 
 V. Sanderson 275 
 
 Eandell, In re 1648 
 
 Rands v. Kendall 672 
 
 Ranken v. James 
 
 771, 
 
 1193 
 
 Rapps V. Gottleib 
 
 1061, 
 
 1062 
 
 Ratcliffe v. Mason 
 
 
 676 
 
 Rathbone v. Dyekman 
 
 
 1266 
 
 Rausch V. Moore 
 
 
 664 
 
 Ravenel v. Ingram 
 
 
 1638 
 
 Raw V. Von Zedlitz 
 
 
 544 
 
 Rawden v. Shadwell 
 
 
 641 
 
 Rawley v. Brown 
 
 
 796 
 
 V. Holland 
 
 
 1205 
 
 Rawlins v. Buttel 
 
 
 706 
 
 Rawson v. Fox 
 
 92, 
 
 1470 
 
 V. Rawson 
 
 
 638 
 
 Rawstron v. Taylor 
 
 
 303 
 
 Ray V. Long 
 
 975, 978 
 
 V. Pung 
 
 
 726 
 
 Raymond v. Holbom 
 
 
 1126 
 
 V. Nash 
 
 
 1505 
 
 V. Smith 
 
 
 1470 
 
 V. Wagner 
 
 
 1562 
 
 Raynor v'. Raynor 
 
 
 693 
 
 V. Selmes 
 
 1123, 
 
 1127 
 
 Rea V. Algren 
 
 
 869 
 
 V. Eagle Transfer Co. 
 
 
 816 
 
 Read v. Erie R. Co. 
 
 
 1347 
 
 V. Robinson 
 
 449, 
 
 1472 
 
 V. Williams 
 
 495, 
 
 1233 
 
 Readdy v. Pendergast 
 
 
 656 
 
 Reade v. I jvingston 
 
 
 565 
 
 Reading v. Althouse 
 
 
 306 
 
 V. Waterman 
 
 
 1060 
 
 Readman v. Conway 
 
 
 903 
 
 Ready v. Kearsley 
 
 461 
 
 ,468 
 
 Reagle v. Reagle 
 
 574 
 
 1,762 
 
 Ream v. Hamish 
 
 
 796 
 
 Reck V. P. Ins. Co. 
 
 
 1372 
 
 Reckhow i;. Schenck 934,936,938,942 
 Rector v. Gibbon 618, 620 
 
 V. Waugh 969, 992 
 
 Rector of Chedington's Case 799 
 
 Rector, etc. Christ P. E. Church 
 
 V. Mack 1133 
 
 Reddick v. Long 1361 
 
 Redemptorist Fathers v. Lawler 954 
 Redfield v. Parks 1360 
 
 V. Reid ' 1073 
 
 Redgrave v. Hurd 534, 535 
 
 Redman v. Forman 303 
 
 Redmond v. Excelsior S. F. & L. 
 
 Assn. 1340 
 
 Red River v. Caddo ' 1511 
 
 Redstrake v. Townsend 618 
 
 Reech v. Kennegal 636 
 
 Reed v. Dickerman 742 
 
 V. Farr 1342 
 
 V. Gannon 575 
 
 V. Locks and Canals 1502, 1612 
 
 V. Lukens 630, 671, 672 
 
 V. Morrison 720 
 
 V. Painter 510 
 
 V. Reed 609, 780, 936, 943, 
 
 1002, 1065 
 
TABLE OF CASES CITED. 
 ^[Beferencea are to pages.] 
 
 xcv 
 
 Reed v. B.eynolds 853 
 
 V. Shepley 897 
 
 V. Whitney 426, 670 
 
 Reeder v. Sayre 63, 769, 771, 806, 
 
 810, 925, 926, 927, 928, 938 
 
 Reedy v. Camfield 1361 
 
 Reel V. Elder 704, 705, 720 
 
 Reese v. De Bemardy 640, 544 
 
 V. Zinn 931 
 
 Reeve, Matter of 1312 
 
 V. Atty.-Gen. 485 
 
 V. Lisle 1077 
 
 V. Long 1185 
 
 Reeves v. Abercrombie 1042 
 
 V. Baker 452, 456 
 
 V. Evans 412 
 
 V. McComeskey 919 
 
 V. Sebem 1575 
 
 Reformed Dutch Church, Matter of 69 
 
 V. Ten Eyck 1437 
 
 Regan v. Fosdick 946, 949 
 
 V. Lutky 935 
 
 Regina v. Chorley 257 
 
 V. County Court Judge 142 
 
 V. Davenport 910 
 
 V. Inhabitants of St. Paul 1467 
 
 V. Pratt 245 
 
 V. Westbrook 118 
 
 Reich V. Dyer 1034 
 
 Reichenbach v. Quin 478 
 
 Reichert v. St. L. & S. F. R. Co. 232 
 
 V. Stilwell 1113, 1121 
 
 Raid V. Board of Education 226 
 
 V. Fitch 518 
 
 V. Gordon 422 
 
 V. Kirk 54 
 
 V. Klein 1508 
 
 V. McGowan 1571 
 
 V. Rhodes 1497 
 
 V. State 1325 
 
 V. Weissner Brewing Co. 1017 
 
 Reidy v. Small 450 
 
 Reiff V. Horst 660, 661 
 
 V. Reiff 768, 770 
 
 Reilly II. Man. El. R. Co. 231 
 
 V. Ringland 769 
 
 Reimer v. Stuber 208, 218 
 
 Reinders v. Koppelman 998 
 
 Reining v. R. Co. 230 
 
 D.N.Y.L.E.&W.R.Co. 232, 
 
 272 
 Reis V. McDevitt 1079 
 
 Reisert v. City of New York 284, 304 
 Reitz V. Reitz 615 
 
 Reitzel v. Eckard 727, 728 
 
 Remington v. Higgins 1043 
 
 Rennyson's Appeal 274, 276 
 
 Renshaw v. Bean 266 
 
 Renton v. Conley 1578 
 
 Renz V. Stoll 439 
 
 Reorganized Church v. Church 
 of Christ 559 
 
 Rep. Chemical Co. v. Victor Co. 664 
 Rerick v. Kern 158, 326 
 
 Resurrection Gold Mining Co. v. 
 
 Fortune Gold Mining Co. 1512 
 
 Reybum v. Wallace 774, 775 
 
 Reyman v. Henderson Nat. Bk. 24 
 
 Reynard v. Spence 
 
 675 
 
 Reynolds, Ex parte 
 
 559 
 
 V. Bristow 
 
 482 
 
 V. City Nat. Bank 
 
 1469 
 
 V. Cook 
 
 1344 
 
 V. Denslow 
 
 495 
 
 V. Fargo 
 
 293 
 
 V. Harris 
 
 1424 
 
 V. Hennessy 
 
 1120 
 
 V. Hull 
 
 758 
 
 V. I. S. M. Co. 
 
 317 
 
 V. Morris 
 
 509 
 
 u. Reynolds 
 
 704, 705, 727 
 
 V. Schuler 
 
 39,43 
 
 V. Van Beuren 
 
 906 
 
 Rex V. Hudson 
 
 221 
 
 V. Newman 
 
 479 
 
 Rhea v. Rawle 
 
 679 
 
 Rheinelander v. Farmers' L. & 
 
 T. Co. 
 
 1369 
 
 Rhoads v. Davidheiser 
 
 301 
 
 Rhodes v. McCormick 
 
 285 
 
 V. School Dist. 
 
 1468 
 
 Ricard v. Williams 
 
 193, 195 
 
 Rice V. Barrett 
 
 428 
 
 V. Bernard 
 
 985 
 
 0. Boston & W. R. 
 
 Corp. 820, 
 
 
 1018 
 
 V. Bunce 
 
 1341 
 
 V. Culver 
 
 856, 1676 
 
 V. Norfolk • 
 
 302 
 
 V. Parkman 
 
 1426 
 
 V. Peet 
 
 1386 
 
 V. Roberts 
 
 291 
 
 V. WaUnszius 
 
 1574 
 
 Rich V. Black 
 
 543, 548 
 
 V. Bolton 
 
 924, 932, 937 
 
 V. Braxton 
 
 1430 
 
 V. Doyenn 
 
 920 
 
 V. Keyser 
 
 943 
 
 V. Rich 
 
 710 
 
 Richard v. Bent 
 
 1523 
 
 Richards v. Attleborough Branch 
 
 R. R. 180, 253 
 
 V. Bellingham Bay Land Co. 
 
 660, 661 
 V. County Commissioners 225 
 V. Rose 176, 281, 285, 286, 291 
 V. Torbert 776, 778 
 
 Richardson v. Bigelow 268 
 
 V. Clements 250 
 
 V. Crandall 541 
 
 V. Day 1438, 1439 
 
 V. Gifford 925 
 
 V. Green 557 
 
 V. Langridge 933 
 
XCVl 
 
 TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Richardson v. Linney 555 
 
 V. McNulty 258 
 
 V. Palmer 1500 
 
 V. Pangridge 923 
 
 V. Pond 245, 246, 247 
 
 V. Pulver 714 
 
 V. Seevers 512 
 
 V. Stodder 472, 642 
 
 V. Tobey 160, 834, 1542, 
 
 1543 
 
 V. Vermont Cent. R. Co. 279 
 
 V. Watts 1514 
 
 V. Wyman 712 
 
 Richart v. Scott 282 
 
 Richmond v. Lee 857 
 
 Richmond R. Co. v. Durham & 
 
 N. R. Co. 322 
 
 Rickard v. Dana 843, 865 
 
 V. Rickard 995 
 
 Ricker v. Lee 499 
 
 Ricketts v. Salwey 1343 
 
 Ricks V. Pope 597, 962 
 
 Riddell v. Riddell 676 
 
 Riddick v. Walsh 680 
 
 Riddle v. Whitehill 985 
 
 V. Whitehouse 517 
 
 Rider v. Smith 248 
 
 V. Thompson 1500 
 
 Ridgely v. Cross 764, 1237 
 
 Ridgeway Stone Co. v. Way 34 
 
 Ridgway v. Ludlow 1512 
 
 V. Masting 712 
 
 Ridout V. Dowding 522 
 
 Rifener v. Bowman 1441 
 
 Rigden v. Vallier 954 
 
 V. Walker 510 
 
 Riggan v. Green 1445 
 
 Riggs, In re 866, 1552 
 
 V. Pahner 537 
 
 V. Pursell 815, 817, 866, 873, 
 
 1015, 1151 
 
 V. Riley 1355 
 
 Right V. Beard 933 
 
 V. Bucknell 1344, 1346 
 
 V. Darby 922, 924, 929 
 
 V. Price 1549, 1552 
 
 Righter v. Forrester 1575 
 
 V. Ludwig 1303 
 
 Rightsell V. Hale 265 
 
 Rigler v. Cloud 426, 642 
 
 Riland v. Eckert 1575 
 
 Riley v. Lissner 859 
 
 V. Riley 526, 748 
 
 Rindge v. Baker 291 
 
 Rine v. Wagner 503 
 
 Rines v. Mansfield 1517 
 
 Ring V. Lawless 1548 
 
 V. McCoun 465 
 
 Ringgold V. Bryan 578 
 
 Rinkenberger v. Meyer 1237 
 
 Riordan v. Biitton 1574 
 
 Ripley v. Cross 895, 896 
 
 Ripley v. Gelston 
 
 544 
 
 V. Page 
 
 16 
 
 V. Waterworth 
 
 631 
 
 V. Yale 
 
 935 
 
 Rippetoe v. Dwyer 
 
 990 
 
 Ripple V. Gilbom 
 
 997 
 
 Rising V. Stannard 
 
 936, 941, 942 
 
 Ritch V. Talbot 
 
 50 
 
 Ritger v. Parker 
 
 307 
 
 Ritt V. Dodge 
 
 664 
 
 Ritter v. Stevenson 
 
 1676 
 
 Ritzier v. Raether 
 
 916 
 
 Rivis V. Watson 
 
 131, 140 
 
 Rix V. Johnson 
 
 1603 
 
 Roake v. American Tel. Co. '233 
 
 Roan V. Holmes 682, 701, 719 
 
 Roanoke Investment Co. v. 
 
 Kansas Gty S. E. R. Co. 257 
 
 Roath V. DriscoU 302, 303 
 
 Robarts v. Haley 518 
 
 Robb's Appeal 607 
 
 Robb V. Washington & Jefferson 
 
 College 483, 1284 
 
 Robbins v. Austin 1465 
 
 V. Bates 559 
 
 V. Corvell 1550 
 
 V. Kimball 508, 569 
 
 V. Robbins 515, 682 
 
 Robert's Appeal 512 
 
 Robert v. Coming 1272, 1274, 1275, 
 
 1280 
 Roberts v. Anderson 561 
 
 V. Baumgarten 1368 
 
 V. Birks 1515 
 
 V. Brett 821 
 
 V. Carr 223 
 
 V. Gary 1244 
 
 V. Clemens 1548 
 
 V. Cone 796 
 
 V. Cooper 1376 
 
 V. Decker 1611 
 
 V. Dixwell 426 
 
 V. Lewis 1214, 1215, 1218, 
 
 1219, 1254 
 V. Lloyd 443 
 
 V. Morgan 989 
 
 V. Mulhnder 444 
 
 V. Nor. Pac. R. Co. 530, 570, 
 671, 1340, 1341 
 V. Phillips 1662 
 
 V. Richards 1048 
 
 V. Roberts 249, 250, 261, 1393, 
 1500 
 V. Round 1566 
 
 V. Stevens 470 
 
 V. Washbume 144, 146 
 
 V. Whiting 768 
 
 V. Wynne 532 
 
 Robertson v. Brulatour 412 
 
 u. Coal Co. 283, 284 
 
 V. Hayes 798 
 
 V. Norris 748 
 
TABLE OP CASES CITED. 
 [References are to pages,] 
 
 XCVU 
 
 Robertson v. Pickrell 
 V. Robertson 
 V. Sully 
 V. Wilson 
 Robie V. Smith 
 Robins v. Coryell 
 
 1347, 1351 
 
 763 
 
 1099 
 
 1189 
 
 936 
 
 1464 
 
 Robinson v. Adams 495 
 
 V. Allison 1226-1366 
 
 V. Appleton 1039 
 
 V. Bates 711 
 
 V. Clapp 66, 199, 274 
 
 V. Deermg 936 
 
 V. Covers 690, 694, 700 
 
 V. Kerrigan 1582 
 
 V. Kime 768 
 
 V. Lehman 869 
 
 V. Litton 1252 
 
 V. Miller 670, 728, 984 
 
 V. N. Y. El. R. Co. 231, 269 
 
 V. Palmer 1160, 1164 
 
 V. Payne 1517 
 
 V. Queen 751 
 
 V. Randolph 593 
 
 V. Roberts 990 
 
 V. Robinson 518, 1548 
 
 V. Ryan 1063 
 
 V. Sherman 990 
 
 V. Wheeler 779, 786, 787 
 
 V. White 1511 
 
 V. Wiley 756 
 
 RobisoD V. Codman 965 
 
 Robles V. Clark 512 
 
 Roby V. Colehour 553 
 
 V. N. Y. C. & H. R. R. Co. 257, 
 
 259 
 Roca V. Byrne 518, 519 
 
 Roche V. Mason 1548 
 
 Rochefoucauld v. Boustead 510, 527, 
 
 1369 
 Rochester, Matter of 1511 
 
 Rochester Water Comm'rs, 
 
 Matter of 235 
 
 Rochester & C. Turnpike Co. v. 
 
 Parriour 410 
 
 Rockland Canal Co. v. Radcliffe 212 
 
 Rockland W. Co. v. Tillson 249 
 
 Rockwell V. Bradley 1050 
 
 V. Hobby 1037 
 
 Rodgers v. Bonner 578 
 
 V. Peckham 1062 
 
 Rodwell V. Phillips 60 
 
 Roe V. Archbishop of York 913, 914 
 
 V. Baldmere 616 
 
 V. Lees 922 
 
 V. Londsdale ■ 964 
 
 II. Strong 1510 
 
 V. Vingut 431, 1284 
 
 Roe d. Perry v. Jones 1188 
 
 Roe d. Willanson v. Tranmarr 1495 
 
 Roffey V. Henderson 39 
 
 Rogan V. Beck 1571 
 
 Rogers, Matter of 1235 
 
 Rogers v. Abbott 1090 
 
 V. Blackwell 1446 
 
 V. Boynton 894, 896, 899 
 
 V. Brokaw 16, 20, 24, 31, 36 
 
 V. Colt 1475 
 
 V. Crow 52 
 
 V. Eagle Fire Ins. Co. 1392, 
 
 1393, 1396 
 V. Higgins 534, 543 
 
 V. Hillhouse 1457 
 
 V. Humphreys 1068 
 
 V. Hurd 1444 
 
 V. Marshall 653 
 
 V. New York & Texas Land 
 
 Co. 627 
 
 V. Potter 664 
 
 V. Rawlings 1408 
 
 V. Rogers 522, 1546 
 
 V. Sinsheimer ^ 172, 287, 291 
 
 V. Smith 1087 
 
 Roll V. Rea 1090 
 
 RoUin V. Cross 1676 
 
 Rollins V. Mooers 1603 
 
 Romain v. Lewis 1413 
 
 Roman v. Taylor 857 
 
 Rome Exchange Bk. v. Eames 1157 
 
 Romer v. Conter . 1482 
 
 Romig V. Gillett 1063 
 
 Roof V. Stafford 1442 
 
 Roosa V. Harrington 1153, 1157, 
 
 1167, 1188, 1190 
 
 Roosevelt v. Hopkins 817 
 
 V. Smith 880 
 
 Root V. Bryant 1579 
 
 V. Commonwealth 217, 322 
 
 V. Wadhams 324 
 
 Rootes V. HoUiday 1470 
 
 Roper V. Lloyd 848 
 
 Rorbach v. Crossett 929 
 
 Rorke v. Abraham 467 
 
 Rosche V. Kosmowski 1079 
 
 Rose V. Bunn 221, 306, 307 
 
 V. City of Farmingham 203 
 
 V. Clark 666 
 
 V. Davis 894, 896, 896 
 
 V. Hatch 457, 500 
 
 V. Hawley 1015, 1162 
 
 V. Rose 702 
 
 Roseboom v. Van Vechten 612, 613, 
 
 1567 
 
 Rosenan v. Childress 1368 
 
 Rosenberg v. Lustgarten 924 
 
 Rosenfiel v. Arrol 903 
 
 Rosenthal v. Ives 315 
 
 V. Mayhugh 721 
 
 V. Renick 1428 
 
 Rosevelt v. Fulton 537 
 
 Rosewell v. Pryor 273 
 
 Rosf's Charity 478 
 
 Rosher, In re 597, 598 
 
 Ross V. Adams 1385 
 
 V. Conway 647 
 
1536 
 
 205, 224 
 
 619 
 
 1474 
 
 626, 627 
 
 59 
 
 481 
 
 1254 
 
 1577 
 
 XCVUl 
 
 Ross V. Perry 
 
 ■u. Thompson 
 
 V. Watson 
 
 Rosseau v. Bleau 
 
 Rosse's Case 
 
 Rossmiller v. State 
 
 Rotch V. Emerson 
 
 Roth V. Rauschenbusch 
 
 Rothe V. Bellingrath 
 
 Rothschild v. Schiff 486, 502 
 
 V. Williamson 926 
 
 Rothwell V. Dewees 990 
 
 Round Lake Ass'n v. Kellogg 1518 
 
 Roundel v. Currier 592 
 
 Rowan v. Lytle 123, 639, 641, 914, 
 
 915, 938, 942, 943 
 
 V. Sharps' Rifle Mfg. Co. 1096 
 
 Rowbotham v. Wilson 283 
 
 Rowe V. Becket 1369, 1398 
 
 V. Hamilton 715 
 
 V. Johnson 701 
 
 V. St. P. M. & M. R. Co. 301 
 
 Rowell V. Doggett 180 
 
 Rowland v. Miller 187, 192 
 
 V. Rowland 954 
 
 Rowley v. Rowley ■ 569 
 
 Royce v. Adams 1223 
 
 V. Guggenheim 848, 849, 850, 
 
 852 
 Royston v. Royston 661 
 
 Rozier v. Griffith 996 
 
 Ruch V. Rock Island lOlS 
 
 Ruckman v. Cutwater 66" 
 
 Rudd V. Cornell 1006, 1164, 1171 
 
 Ruddiman v. Taylor 222, 226, 1502 
 Rudy's Estate 523 
 
 Ruess V. Ewen 1360 
 
 Ruffner v. Hill 1513 
 
 Rugby V. Merryweather 221 
 
 Ruggies V. First Nat. Bk. of 
 
 Centreville 1133 
 
 V. Lawson 1472 
 
 Rumill V. Robbins 181, 182 
 
 Rumph V. Abercrombie 639 
 
 Rumsey v. N. Y. & N. E. R. Co. 231, 
 
 240, 296 
 
 Runnels v. Webber 1528 
 
 Runyan v. Mersereau 1063 
 
 Rush V. Vough 535 
 
 Rush County v. Stubbs 28 
 
 Rushin v. Shields 1470 
 
 Russ V. Alpaugh 1535 
 
 V. Perry 661, 721 
 
 Russel V. Fuel Gas Co. 558 
 
 V. Hayner 1577 
 
 V. Lode 1513 
 
 V. Russel 1037, 1038 
 
 Russell, Matter of 954, 955, 1160 
 
 V. Allen 515 
 
 ■0. Erwin 895, 896 
 
 r Fabyan 943 
 
 V. Farley 532 
 
 TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Russell V. Heublein 216 
 
 V. Hilton 468, 497 
 
 V. Jackson 523 
 
 V. Maloney 1342 
 
 V. Maxwell L. G. Co. 1407 
 
 V. Russell 1214 
 
 V. Southard 1077 
 
 V. Watts 160, 169, 171, 175, 
 
 273 
 
 Rust V. Low 295 
 
 Rutgers i;. Kingsland 576, 1489 
 
 Rutherford v. Greene's Heirs 596 
 
 Rutherfurd Realty Co. v. Cook 1061 
 
 Rutz V. Kehn 1342 
 
 Ruyter v. Reid 1125 
 
 Ryan v. Brown 59, 297 
 
 V. Carter 1416, 1417 
 
 V. Qark 800 
 
 V. Dox 558 
 
 V. Freeman 649 
 
 V. Growney 1443 
 
 V. N. V. & S. I. R. Co. 246 
 
 V. Wilson 905, 1459 
 
 Ryder v. Cobb 1579 
 
 V. Loomis 508 
 
 V. Robinson 811 
 
 Rye V. George 572 
 
 Ryer v. Gass 1108 
 
 Ryerson v. Eldred 896 
 
 V. Quackenbush 124, 127, 831 
 
 Ryle V. Ryle 530, 546 
 
 S. 
 
 Sackett v. Sackett 785 
 
 Sackville-West v. Holmesdale 431 
 Saddler v. Lee 303 
 
 Sadler v. Pratt ' 1228 
 
 Safford v. Safford 726, 729 
 
 V. Stubbs 1368 
 
 Saffyn's Case 800 
 
 Sage V. City of New York 1330, 
 
 1510 
 
 V. Jones 1526 
 
 V. Mayor 1415 
 
 V. Sherman 676 
 
 Sager v. Galloway 786 
 
 V. Tupper 1105 
 
 Sainsbury v. Matthews 62 
 
 Sanford v. Travers 1347 
 
 V. Sanford 1348 
 
 St. Andrew's Church's Appeal 882 
 St. Anthony F. W. Co. v. Mnne- 
 
 apolis 248 
 
 St. Anthony F. W. P. v. Minne- 
 apolis 299 
 St. George v. Wake 567 
 St. John V. Andrews Institute 483, 
 492, 502, 1290 
 
 V. Dann 617 
 
 St. Louis V. Rutz 1511 
 
TABLE OF CASES CITED. 
 [References are to pages.] 
 
 XCIX 
 
 St. Louis & A. R. Co., Matter 
 
 of 235 
 
 St. Louis B. Co. V. Curtis 1498 
 
 St. Louis Mining Co. v. Montana 
 
 Mining Co. 317 
 
 St. Louis Nat. Stock Yards v. 
 
 Wiggins Ferry Co. 324, 328 
 
 St. Louis Radiator Mfg. Co. v. 
 
 Carroll 52 
 
 St. Louis Transfer Co. v. L. M. 
 
 B. Co. 232 
 
 St. Louis V. & D. H. R. Co. v. 
 
 Terre Haute & I R. Co. 810 
 
 St. Paul V. Northern Pac. 1412 
 
 St. Paul, etc. R. Co. v. Schur- 
 
 meir 1510, 1511 
 
 St. Paul M. & M. R. Co. v. 
 
 Donohue 1409 
 
 St. Paul S. & Y. F. R. Co. v. 
 
 Div. St. P., etc. R. Co. 1510 
 
 St. Paul's Church v. Atty.-Gen. 492, 
 
 523 
 St. Paul's Ch. V. Ford 68 
 
 St. Regis Paper Co. v. Santa 
 
 Clara Lumber Co. 63, 64, 308 
 
 St. Stephens, In re 488 
 
 St. Vincent Asylum v. Troy 203, 
 
 1357, 1358 
 Sale V. Prat 308 
 
 V. Thomberry 453 
 
 Salisbury v. Andrews 1503 
 
 V. Clarke 439, 511, 513 
 
 V. Shirley 837 
 
 Salisbury Savings Soc. v. Cut- 
 ting 1339, 1350 
 Salley v. Robinson 55 
 Salmon, In re 1095 
 V. Stuyvesant 123^ 
 Saltmarsh v. Barrett 525 
 Saltonstall v. Sanders 473, 480, 481, 
 
 485 
 
 Salusbury v. Denton 467, 1232 
 
 Sammes Case 958, 1516 
 
 Sampson v. Bumside 324, 327 
 
 V. Camperdown Cotton Mills 42 
 
 V. Camperdown Mills 63 
 
 V. Easterby 837 
 
 V. Grogan 778 
 
 V. Hoddinott 306 
 
 V. Schaeffer 935 
 
 Samson v. Rose 769 
 
 Samuels v. Borrowscale 1365 
 
 San Antonio Brewing Assn. v. 
 
 Ice Co. 19, 33 
 
 Sanborn v. Rice 1503 
 
 Sand V. Church 126, 207, 832, 1146, 
 
 1366 
 
 Sanderlin v. Baxter 172 
 
 Sanders v. Cassidy 1057 
 
 V. Godding 1505 
 
 V. Martin 293 
 
 V. McMillan 692, 696, 697 
 
 Sanders v. Partridge 870 
 
 V. Ransom 1498, 1501 
 
 V. Riedinger 1361 
 
 V. Semcicn 1559 
 
 Sanderson v. Pa. Coal Co. 299 
 
 V. Price ' 1069 
 
 V. White 492 
 
 Sandford v. Bulkley 1122 
 
 «.■ McLean 682, 719, 726 
 
 San Diego Gas Co. v. Frame 1468 
 
 Sands v. Hughes 901, 1377 
 
 D. Old Colony T. Co. 1181 
 
 Sanford, In re 629 
 
 V. Bennett 1429 
 
 V. Ellithorp 712 
 
 V. Hill 1087 
 
 V. Kane 1078 
 
 V. Safford 963 
 
 V. Sanford 1350, 1413 
 
 Sanfoss v. Jones 507, 510 
 
 San Francisco v. Lawton 1399 
 
 San Francisco, etc. R. Co. v. 
 
 Oakland 1459 
 
 Sanger v. Bancroft 1059 
 
 Sanguinetti v. Peck 801 
 
 Samtary District v. Allen 1368 
 
 Sanitary Dist. v. Cook 44 
 
 Sappington v. Oeschli 1090, 1575 
 
 Sarah Jane Sandilands, In re 1462 
 Saranac L. Co. v. Comptroller of 
 
 N. Y. 1432 
 
 Sargent v. Baldwin 450 
 
 V. Ballard 200 
 
 V. Courrier 796 
 
 V. Eureka S. P. Co. 579 
 
 V. Hubbard 245, 267 
 
 V. Roberts 737 
 
 V. Smith 837 
 
 V. Towne 10, 594 
 
 Sarles v. -Saries 767, 781 
 
 Sarson v. Roberts 861 
 
 Sarter v. Clarkson 1099 
 
 Sarver v. Clarkson 679, 719 
 
 Satterly v. Kobbe 995, 998, 999, 
 
 1003, 1004, 1006 
 
 Sauer v. Bilton 778, 783 
 
 V. City of New York 229 
 
 Saulet V. Shepherd 1331 
 
 Saunders' Case 781, 1500 
 
 Saunders v. Bennett 1577 
 
 V. Blythe 664, 1496 
 
 i>. Flauniken 1538 
 
 V. Hanes 832 
 
 V. N. Y. C. & H. R. R. Co. 147, 
 
 1329, 1330, 1415, 1416 
 
 V. Newman 250 
 
 V. Reilly 9 
 
 V. Schmaelzle 1501 
 
 V. Simpson 209, 1371 
 
 Saundress v. Gaynesford 410 
 
 Savage v. Crill 712 
 
 V. Dooley 1071 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Savage v. Jackson 535 
 
 V. Lee 1201 
 
 V. Mason 294 
 
 V. Savage 753 
 
 Savannah, etc. R. Co. v. Shields 227 
 
 Savery v. Browning 1497 
 
 V. King 539 
 
 Savings Bank v. Holt 1057 
 
 Sawyer, In re 532 
 
 V. Cubby 1153, 1160, 1263, 1266, 
 1275, 1276, 1277, 1278, 1285 
 V. KendaU 1365, 1366, 1512 
 
 V. McGillicuddy 859, 904, 906 
 V. Peters 1469 
 
 V. Prickett 535 
 
 Sawyer-Austin Liunber Co. v. 
 Qark 1577 
 
 Sayer v. Sayer 807 
 
 Sayeis v. Hoskinson 684, 767, 781, 
 
 782 
 
 Sayles v. Best 1571 
 
 Sayre v. Townsend 507, 509, 515 
 
 Sayre Newton Lumber Co. v. 
 Park 
 
 Says V. Barnes 
 
 Scallon V. Manhattan R. Co. 
 
 Scanlan v. Wright 
 
 Scates V. Henderson 
 
 Scattergood v. Kirk 
 
 Scatterwood u. Edge 1194, 1262, 1265, 
 
 1277 
 
 Schaefer v. Blumenthal 
 V. Thompson 
 
 Schafer v. Hauser 
 V. Reilly 
 
 Scheffermeyer v. Schaper 
 
 Scheick v. Donohue 
 
 Schenck v. Barnes 
 
 Schenk v. EUingwood 
 
 Schenley v. Commonwealth 207, 208 
 
 Schermerhom v. Getting 1274, 1281, 
 
 Schmitt V. Willis 
 Schmitzins v. Bailey 
 Schmucker's Est. v. Reed 
 Schnebly i;. Schnebly 
 Schneider v. Norris 
 SchoUe V. Scholle 
 Schdol Committee v. Kesler 
 School District V. Batshe 
 
 V. Lindsay 
 
 V. Lynch 
 Schoonmaker v. Michaels 
 
 680 
 
 269 
 
 622, 523 
 
 685 
 
 1437 
 
 1007 
 
 1475 
 
 941 
 
 158 
 
 202 
 
 231, 521, 
 
 541 
 
 1577 
 
 555 
 
 208, 209 
 
 1448 
 
 1502 
 
 547 
 
 294, 1368 
 
 167 
 
 1369 
 
 1399 
 
 536 
 
 1105 
 
 471, 766 
 
 1229 
 
 Schettler v. Smith 
 Scheurer v. Brown 
 Schieffelin v. Carpenter 
 Schierloh v. Schierloh 
 
 Schile V. Brokhahus 
 
 1284, 1291 
 
 1172, 1195 
 
 1061 
 
 914, 917 
 
 509, 515, 520, 
 
 559 
 
 268, 287, 292, 
 
 294, 828 
 
 518 
 
 1360 
 
 41 
 
 1269, 1284 
 
 Schlagfer v. Corson 
 
 Schlageter v. Gude 
 
 Schlemmer v. North 
 
 Schlereth v. Schlereth 
 
 Schlesinger v. Kansas City R, 
 Co. 1015 
 
 Schlicher v. Keeler 1473, 1474 
 
 Schloss V. Feltus 578 
 
 Schmidt, Matter of 1316 
 
 V. Brown 243 
 
 V. Lewis 291 
 
 V. Quinn 177, 178, 179, 181 
 
 Schmitt V. Traphagen 1347, 1351 
 
 Schouler, Petitioner 480 
 
 Schouton V. Kilmer 756 
 
 Schrier v. Shaffer 961 
 
 Schrimpscher v. Stockton 598 
 
 Schroeder v. Bozarth 1146 
 
 V. Gumey 1090 
 
 Schulenberg v. Harriman 1410 
 
 V. Zimmerman 195 
 
 Schulte V. Warren 1511 
 
 Schulting V. Schulting 776, 778 
 
 Schultz V. Amot 1362 
 
 'J. Byers 279, 280, 281 
 
 Schultz's Appeal 636 
 
 Schultze V. Mayor 615, 516 
 
 Schumaker v. Mather 533 
 
 Schurmeir v. St. P. & P. R. Co. 233 
 Schutt V. Large 1493 
 
 Schuvler v. Broughton 981 
 
 i. Smith 901, 943, 945, 947 
 
 Schwallback v. Chicago M. & S. 
 
 P. R. Co. 1369 
 
 Schwalm v. Beardsley 1506 
 
 Schwartz v. Ballou 1438 
 
 Schwerdth v. Placer Co. 217, 218 
 
 S. V. R. Co. V. Lawrence 233 
 
 Scobell V. Block 16 
 
 Scobey v. Kiningham 1048 
 
 Scoones v. Morrell 1608 
 
 Scott, In re 1319 
 
 V. Ashlin 698 
 
 V. Beecher 1101 
 
 V. Bentel 175 
 
 V. Brown 541 
 
 V. Bryon 1237 
 
 ■u. Edgar 1040 
 
 V. Gallagher 574 
 
 V. Guernsey 957, 973, 996, 998 
 V. Haverstraw Clay & Brick 
 
 Co. 830 
 
 V. Lane. 703 
 
 V. Lunt 138 
 
 V. Manchester Print 1574 
 
 V. McMillan 1641, 1642, 1543 
 V. Simons 903 
 
 V. Tyler 541, 1012, 1013, 1022 
 
 V. Umbarger 
 
 V. West 
 Scovill V. McMahon 
 Scowcruft, In re 
 Scranton v. Booth 
 
 648 
 1167 
 1010 
 
 478 
 1627, 1528, 1632 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 CI 
 
 Scranton v. Stewart 1444 
 
 V. Wheeler 297 
 
 Scriver v. Smith 162, 214, 240 
 
 Scully B. Murray 831, 925 
 
 V. Sanders 1501 
 
 Seaboard Realty Co. ■». Puller 857 
 
 Seagram v. Rnight 787 
 
 Seaman, Matter of 1163 
 
 V. Hogeboom 1504 
 
 V. Smith 1512 
 
 Searcy v. Hunter 1444 
 
 Searle v. Powell 923 
 
 Sears v. Ackerman 696 
 
 V. Chapman 485 
 
 V. Choate 598 
 
 V. Putnam 1663 
 
 V. Russell 1270 
 
 V. Shafer 557 
 
 Seatoff V. Anderson 28 
 
 Seaver, Matter ot 1235 
 
 V. Fitzgerald 1271 
 
 Seavey v. Cloudman 939 
 
 Sebald v. MulhoUand 293, 1642, 
 
 1543 
 Second, etc. Church v. Desbrow 457, 
 
 594 
 
 Security Bank v. Holmes 1523 
 
 Security Co. v. Bryant 746 
 
 ■». "Snow 1231 
 
 Security Co. of Hartford v. 
 
 Cone 1163 
 
 Security Land and Exploration 
 
 Co. V. Bums 1604 
 
 Security Trust Co. v. Temple 
 
 Trust Co. 62 
 
 Seddon v. Senate 860 
 
 Sedgwick v. Hollenback 1523, 1524, 
 1531, 1533 
 V. Laflin 591 
 
 Seeger v. Pettit 39 
 
 Seeley v. Bishop 180 
 
 Seevers v. Gabel 830 
 
 Seidelbach v. Knaggs 465 
 
 Seidensparger v. Spear 324 
 
 Seitz V. Messerschmitt 1326 
 
 Seitzinger's Estate 470, 1273 
 
 Selah V. Selah 543, 544 
 
 Selb V. Montague 681 
 
 Selden v. Del. Canal Co. 327 
 
 V. Keen 1013 
 
 V. Vermilya 1215 
 
 Sell V. West 512 
 
 Sellers v. Union L. Co. 142 
 
 Sellman v. Bowen 698 
 
 Selman v. Lee 577 
 
 Selons, In re _ 960 
 
 Selover v. Commercial Co. 1478 
 
 Semple v. Cook 1362 
 
 Seneca Nation v. Christie 1415 
 
 V. Knight 1511 
 
 Senhouee v. Christian 249 
 
 Serff V. Acton Local Board 182 
 
 Sergeanf v. Nash, Field & Co. 817, 867 
 
 Sergeson v. Sealey 1229 
 
 Serry v. Curry 664 
 
 Servis v. Nelson 427 
 
 Seton V. Slade 1076 
 
 Sevier v. Greenway 1042 
 
 Sewall V. Lee 706 
 
 V. Wilmer 1235 
 
 Sewell V. Augerstein 52 
 
 V. Underhill 672 
 
 Sewing Machine Co. v. Dakin 1439 
 
 Seymour v. Creswell 1361 
 
 V. Delancy 638 
 
 V. Freer 60, 1369 
 
 V. Lewis 169, 177 
 
 V. McDonald 186 
 
 V. McKinstry 1038 
 
 V. Page 1609 
 
 V. Sanders Iho 
 
 V. Warren 806, 813, 814 
 
 V. Wilson 563 
 
 Sexton V. Breese 62, 1050, 
 
 1056 
 
 V. Chicago Storage Co. 867, 868 
 
 Shaber v. St. Paul W Co. 1541 
 
 V. Wheaton 664 
 
 Shacklett's Appeal 1674 
 
 Shaeffer's Appeal 625 
 
 Shaeffer v. Chambers 1066 
 
 Shafer v. Wilson 268, 281 
 
 Shaffer v. Hahn 993 
 
 Shaffstall v. McDaniel 1099 
 
 Shallcross's Estate 1264 
 
 Shampless v. Welch 441 
 
 Shaner v. Wilson 628 
 
 Shanks v. Klein 983 
 
 Shannon v. Pentz 1161 
 
 Sharon v. Davidson 990 
 
 V. Tucker 1355 
 
 Sharon Iron Co. v. City of Erie 1017 
 
 Shaip V. Cheatham 1541, 1642 
 
 V. Robertson 1376 
 
 V. Ropes 186 
 
 V. Sharp 4 
 
 Sharpe v. Hancock 266 
 
 Shattuck, Matter of 479, 482, 
 
 485, 486, 602 
 
 V. Lamb 1376, 1532, 1533 
 
 Shaw V. Beveridge 67, 68 
 
 V. Bowman 768, 769, 866 
 
 V. Hill 935, 981 
 
 V. Hoffman 1021 
 
 V. Loud 1455 
 
 V. McCarty 864, 888 
 
 V. Norfolk Co. 1065 
 
 V. Partridge 872 
 
 V. Poor 1490 
 
 V. Spencer 523 
 
 Shawmut Bank v. Boston 855 
 
 Sheafe v. O'Neil 688 
 
 Shearer v. Ranger 661, 1628 
 
 V. Shearer 670, 984, 985 
 
Cll 
 
 TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Shedlinsky v. Budweiser Brew- 
 ing Co. 864 
 Sheetz V. Sweeney 1505 
 ShefEey v. Gardiner 1626 
 V. Gardner 1532 
 Sheffield v. Parker 442 
 Sheffield Society v. Aixlewood 557 
 Sheldon v. Bliss 736, 737 
 V. Edwards 16, 19, 54 
 V. Stockbridge 479 
 Shell V. Duncan 1430 
 V. West 894 
 Shellar v. Shivers 38, 42 
 Shelley's Case 1176, 1176, 1177, 
 1179, 1180, 1181 
 Shelley v. Shelley 70 
 Shelton's Case 1461 
 Shenk i;. Shenk 1066 
 Shepard v. Briggs 862 
 V. Man. El. R. Co. 231 
 V. Manhattan R. Co. 51, 664 
 V. Shepard 763 
 V. Spaul^ing 915, 1389, 1402 
 Shepardson v. Perkins 306 
 Shepherd v. Jeringon 973 
 V. May 1102 
 V. Nave 1603 
 V. White 613 
 Sheppard v. Wardell 713 
 Sheridan v. Briggs 573 
 V. House 1456 
 Sherk v. Endress 445 
 Sherman v. Baker 478, 484 
 V. Ballou 964 
 V. Buick 1413 
 ■v. Chaniplain Tr. Co. 899 
 V. Dodge 462 
 V. Engel 915 
 V. Foster 1491 
 V. Hayward 660, 662, 712 
 V. Ludin 867 
 V. Newton 742 
 V. Skuse 471 
 V. Wilder 863 
 V. Willett 61 
 V. Williams 826 
 Sherras v. Craig 1097 
 Sherred v. Cisco 291, 293 
 Sherwood v. Amer. Bible Soc. 467 
 V. Burr 196 
 V. Cent. Mich. Sav. Bk. .520 
 V. Seaman 283 
 Shick V. Carroll Co. Comm'rs 217 
 Shields V. Arndt 261 
 V. Hunt 698 
 V. Lozear 1031, 1052, 1066, 
 1057, 1063, 1099, 1105 
 ■ V. Russell 1034 
 V. Titus 243 
 Shinn v. Shinn 978 
 Shipley v. Bunn 1442 
 V. Fifty Assoc. 907 
 
 Shipley v. Leidig 1475 
 
 Shipman v. Beers 274 
 
 V. Rollins 603 
 
 Shipp V. Miller 1613 
 
 Shire v. Plimpton 1537 
 
 Shires v. Glascock 1662 
 
 Shirk V. City of Chicago 1358 
 
 V. Thomas 1574 
 
 Shirley v. Crabb 252, 262, 263 
 
 0. Shirley 472, 473 
 
 Shively v. Bowlby 68, 59, 239, 240, 
 
 297, 298, 1,330, 1331, 
 
 1405, 1415 
 
 Shneider v. Mahl 832 
 
 Shoemaker v. Smith 610 
 
 V. Walker 426 
 
 Shoonmaker v. Sheely 1178 
 
 Shope V. Schaffner 717 
 
 Shores v. Carley 641, 748 
 
 Short v.- Bacon 496 
 
 V. Currier 636 
 
 V. Moore 750 
 
 Shortall v. Hinckley 650, 651, 653 
 Shorthill v. Ferguson 1524 
 
 Shotwell Executor v. Mott 498 
 
 Shoup V. De Long 1181 
 
 Shriver v. Shriver 578, 1063, 1075 
 Shrunk v. Schuylkill Nav. Co. 59 
 
 Shufeldt V. Spaulding 1504 
 
 Shuur '0. Rodenback 1471 
 
 Sibley v. Ellis 211 
 
 V. Ross ' 1042 
 
 Siddall's Estate 1271 
 
 Siddons v. Short 2^1 
 
 Sidebotham v. Holland 928 
 
 Sidney v. Shelley 523 
 
 Siedler v. Syms 1273 
 
 Siemon v. Schurck 515, 579 
 
 Siggers v. Evans 449 
 
 Siglar V. Van Riper 669 
 
 Sigmund v. Howard Bank 826, 844 
 Silberman v. Uhrlaub 190 
 
 Sill V. White 654 
 
 Silliman vl Paine 1364 
 
 Silsby V. Trotter 312 
 
 Silva V. Garcia 781 
 
 V. Hopkinson 1177 
 
 Silver v. Summer 895 
 
 Silver Spring B. & D. Co. v. 
 
 Wanscuck 299 
 
 Silvers v. Potter 619, 521 
 
 Silvester «. Wilson 1177 
 
 Simar v. Canaday 662, 1109 
 
 Simis V. McElroy 101, 901, 1366, 
 
 1366, 1373 
 Simmons v. Cloonan 169, 172, 306 
 
 V. Leonard 1551 
 
 II. Norton 768, 777 
 
 V. Spratt 1456 
 
 Simmons CreekCoalCo. i). Doran 
 
 1513 
 Simonds v. Cudmore 912 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 cm 
 
 Simonds v. Simonds 670 
 
 V. Turner 870 
 
 Simonson v. Hutchinson 1044 
 
 V. Lauck 1060 
 
 Simonton v. Houston 724, 741 
 
 V. Thompson 1504 
 
 Simpson v. Ammons 965 
 
 V. Boston & M. R. Co. 195 
 
 V. Dix 1055 
 
 V. First Nat. Bk. 1035 
 
 V. Reed 617 
 
 V. Savage 845 
 
 Simpson Brick Press Co. v. 
 
 Wormley 35 
 
 Sims V. Bardoner 1443 
 
 V. Gay 625, 1022 
 
 V. Jones 797 
 
 V. Smith 1443 
 
 Sinclair?). Huntley 1344, 1347 
 
 V. Jackson 1222, 1228, 1346 
 
 V. I-eamed 1073 
 
 Singer v. New York 1508 
 
 Singer Mfg. Co. v. Lamb 1444 
 
 Singerland v. International 
 
 Const. Co. 297 
 
 Singleton's Heirs v. Singleton's 
 
 Executors 692 
 
 Sioux aty, etc. v. Griffey 1410 
 
 Sioux City, etc. Co. v. Wilson 1471 
 Sip V. Lkwback 721 
 
 Sipley V. Wass 1572 
 
 Sir Moyle Finch's Case 1455 
 
 Sisson V. Donnelly 1459 
 
 V. Hibbard 19, 20, 33 
 
 Sites V. Eldridge 1221, 1231, 1245 
 Sizor V. Logansport 1511 
 
 Skaggs V. Elkus 926 
 
 Skally V. Shute 848 
 
 Skellenberger v. Ransom 537 
 
 Skett V. Whitmore 436 
 
 Skinkel's Assignees v. Bristow 712 
 Skinner v. Fletcher 1481 
 
 V. Wilder 65, 66 
 
 Skipwith'sEx'rv. Cunningham 1474 
 Skirm v. Rubber Co. 564 
 
 Skolfield u.Skolfield 692, 695 
 
 Skiymsher v. Northcote 523 
 
 Skull V. Glenister 163, 184 
 
 Slater v. Maxwell 538 
 
 V. Oriental Mills 521 
 
 V. Rawson 381 
 
 Slatter v. Meek 698 
 
 Slatterly v. Winne 238 
 
 Slattery v. Schwannecke 573 
 
 Slee V. Manhattan Co. 643 
 
 Sleeper v. Laconia 1506, 1510 
 
 Slegel V. Lauer 1023 
 
 Slicer v. ■ Bank of Pittsburg 1032 
 
 Slide & Spur Gold Mines v. 
 
 Seymour 1022, 1038 
 
 Slingerland v. Inter. C. Co. 1357, 
 
 1358 
 
 Slingluff V. Gainer 
 
 1464 
 
 Sloan V. Biemiller 
 
 151?. 
 
 V. Campbell 
 
 1039 
 
 Sloane v. Stevens 
 
 1177 
 
 Sloat V. McDougall 
 
 172, 175 
 
 Slocombe v. Glubb 
 
 567 
 
 Slockbower v. Canousse 
 
 1004 
 
 Slocum V. Seymour 
 
 63 
 
 Sloniger v. Sloniger 
 Small V. CUfford 
 
 664, 1377 
 
 960, 961 
 
 V. Procter 
 
 1351 
 
 Smalley v. Isaacson 
 
 996 
 
 Smiles v. Hastings 
 
 181 
 
 Smiley v. Fries 
 
 1497 
 
 Smith, Matter of 
 
 556 
 
 Smith, Matter of Will of 553 
 
 V. Abbott 525 
 
 V. Allen 1317, 1318, 1457 
 
 V. Agawam Canal Co. 300 
 
 V. Ashton 1229 
 
 V. AttersoU 441 
 
 V. Balcom 515, 516 
 
 V. Bank 1421 
 
 V. Barrie 601 
 
 V. Bartlett 1510, 1511 
 
 V. Bell 946, 1248, 1561 
 
 V. Benson 18 
 
 V. Blood 68 
 
 V. Boston & Albany R. Co. 229 
 V. Bowen 1215 
 
 V. Bowes 1229 
 
 V. Brotheriine 553 
 
 V. Burtis 1356 
 
 V. Chamberlin 1478 
 
 V. Chapin 1366 
 
 V. Chapman 1478 
 
 V. Church 1368 
 
 V. Chesebrough 1268 
 
 V. City of Brooklyn 300 
 
 ■u. aty of Buffalo 1502 
 
 V. City of Rochester 58, 59, 
 
 297, 1415, 1511 
 V. Clark 1012, 1126 
 
 V. Cole 1475 
 
 V. Cooke 523 
 
 V. Cooper 765 
 
 V. Death 1243 
 
 V. Derr's Adm'r 1316 
 
 V. Devlin 915 
 
 V. Drake 546 
 
 V. Dyer 1054, 1055 
 
 V. Edgewood Casino Club 816 
 V. Edwards 1171 
 
 V. Evans 1505 
 
 V. Fleischman 1113 
 
 V. Flora 225 
 
 V. Floyd 307, 466, 467, 1232, 
 1233 
 V. Fyler 119 
 
 V. Gaines 996 
 
 V. Gale 999, 1360, 1361 
 
 V. Gardner 1069 
 
CIV 
 
 Smith 1 
 
 TABLE OP CASES CITED. 
 [References are to pages.] 
 
 th V. Gatewood 
 
 157, 211 
 
 Smith V. Smith 692, 782, 
 
 1003, 1039, 
 
 V. GouldiTig 
 
 327, 328 
 
 
 
 1512, 1559 
 
 V. Griffin 
 
 179 
 
 V. Somes 568, 
 
 1212, 1243 
 
 V. Gromow 
 
 817 
 
 V. Sprague 
 
 
 1528, 1538 
 
 V. Handy 
 
 714 
 
 V. Stacey 
 
 
 1515 
 
 V. Hastings 
 
 1080 
 
 V. State 
 
 
 217, 225, 
 
 V. Havens Relief Fund So- 
 
 
 
 1507 
 
 ciety 
 
 482 
 
 V. Tarbox 
 
 
 178 
 
 V. Hiles-Carver 
 
 1038 
 
 V. Thackerah 
 
 
 280 
 
 V. Hodsdon 
 
 1045 
 
 V. Townsend 
 
 
 1411 
 
 V. Hogg 
 
 1575 
 
 V. Townshend 
 
 
 546 
 
 V. Hollenbeck 
 
 1367 
 
 ' V. Trustees 
 
 
 1003 
 
 V. Howell 
 
 660, 1463 
 
 V. United States 
 
 
 1441 
 
 V. Hughes 
 
 205 
 
 V. Wheeler 
 
 
 918 
 
 V. Hunter 
 
 1253 
 
 V. Whitney 
 
 
 38,39 
 
 V. Jefts 
 
 1529 
 
 V. Willard 
 
 
 513 
 
 V. Jewett 
 
 767 
 
 V. Woodworth 
 
 
 705 
 
 V. Kay 
 
 534, 556 
 
 V. Worn 
 
 
 159 
 
 V. Kelley 
 
 636, 1058 
 
 V. Wunderlick 
 
 
 852 
 
 V. Kerr 479, 
 
 856, 857, 917 
 
 Smith ad. Perry & Howell 
 
 1464 
 
 V. Kimbell 
 
 1256, 1258 
 
 Smithsonian Institution v. 
 
 Meech 
 
 V. Ladd 
 
 165 
 
 
 
 511, 513 
 
 V. Langewald 
 
 261 
 
 Smithwick v. Ellison 
 
 
 -i66 
 
 V. Lee 
 
 181, 182 
 
 Smock V. Smock 
 
 
 1556 
 
 V. Littlefield 
 
 938, 940, 941, 
 
 Smyles v. Hastings 
 
 258, 259, 261 
 
 
 942, 943 
 
 Smyth, Ex parte 
 
 
 132 
 
 ■u. Lockwood 
 
 170 
 
 Smythe v. Smythe 
 
 
 541, 1012 
 
 V. Malings 
 V. Maplebaek 
 
 129 
 
 Sneathen v. Sneathen 
 
 
 1474 
 
 915 
 
 Snedeker v. Waring 
 
 16, 
 
 20, 25, 27, 
 
 V. Marrable 
 
 861 
 
 
 
 31, 36 
 
 V. Mason 
 
 515 
 
 Sneed v. Osbom 
 
 
 1340, 1342 
 
 V. McCarty 
 
 643 
 
 Snell V. Dwight 
 
 
 • 427, 541 
 
 V. McChesney 
 
 1557 
 
 V. Levitt 
 
 
 256 
 
 V. McCorkle 
 
 1357 
 
 Snelling, Matter of 
 
 
 1548 
 
 V. McEnany 
 
 853, 854 
 
 Snerigan v. St. Louis 
 
 
 59 
 
 V. McGregor 
 
 70 
 
 Snideman v. Snideman 
 
 
 910 
 
 V. Miller 202 
 
 203, 204, 210 
 
 Snively v. Hitechew 
 
 
 674 
 
 V. Monmouth Mut. 
 
 F. Ins. 1047 
 
 Snodgrass v. Reynolds 
 
 
 852 
 
 V. Morse 
 
 1465 
 
 Snoo c & Austin Co. v. 
 
 Steiner 850 
 
 V. Mundy 
 V. New York 
 
 898 
 
 Snow V. Boycott 
 
 
 1108 
 
 142 
 
 V. Inhabitants of Orleans 1499 
 
 V. Osage 
 
 223 
 
 V. Orleans 
 
 
 1376 
 
 V. Owen 
 
 278 
 
 V. Perkins 
 
 
 67 
 
 V. Packard 
 
 1118 
 
 V. Pressey 
 
 
 1047 
 
 V. Packhurst 
 
 1187 
 
 V. Pulitzer 170, 
 
 172, 176, 281, 
 
 V. Parsons 
 
 498, 1288, 
 
 826, 828, 848 
 
 849, 851, 852 
 
 
 1290 
 
 V. Stevens 
 
 
 678 
 
 V. Precht 
 
 896 
 
 Snowbill V. Read 
 
 
 913 
 
 V. Price 
 
 61 
 
 Snyder v. Jennings 
 
 
 1533 
 
 ■u. Putnam 
 
 872, 873 
 
 V. Lane 
 
 
 1530 
 
 V. Raleigh 
 
 129, 853 
 
 V. Murdock 
 
 
 572 
 
 V. Rector 
 
 817, 912 
 
 V. Parmalee 
 
 
 1058 
 
 V. Rector, etc. St. 
 
 P. Ch. 1017 
 
 V. The People 
 
 
 752, 760 
 
 V. Reich 
 
 1364 
 
 Soar V. Foster 
 
 
 512 
 
 V. Reid 
 
 574 
 
 Sobey v. Brisbee 
 
 
 807 
 
 13. Roberts 
 
 1106, 1125 
 
 Soberanes v. Soberanes 
 
 
 547 
 
 ■V. Ryan 
 
 1445, 1446 
 
 Sohier v. Eldredge 
 
 
 132, 776 
 
 V. Scholtz 
 
 613, 741 
 
 V. Massachusetts Gen. 
 
 Hosp. 
 
 V. Scott 
 
 1574 
 
 
 
 1429 
 
 V. Secor 
 
 498, 1275 
 
 V. Trinity Church 
 
 
 68, 69, 70 
 
 V. Sheltering Arms 
 
 1579 
 
 Sohier v. Sohier 
 
 
 532, 559 
 
 V. Slocomb 
 
 1507 
 
 Solinger v. Earle 
 
 
 1302 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 CV 
 
 Solomon v. Vintner's Co. 206, 282, 
 
 286, 291 
 Somers v. Schmidt 1538 
 
 Somerset C. Co. v. John 1060 
 
 Somes V. Skinner 555 
 
 Sonnemann v. Mertz 1515 
 
 Soper V. Lawrence 1356, 1366, 1373 
 Sopwith V. Maughan 741 
 
 Sorrell v. Carpenter 574 
 
 Soulsby ?;. Neving 949 
 
 South Berwick v. Huntress 1438, 
 
 1439 
 South Branch R. Co. v. Parker 246 
 South Carolina R. Co. v. Steiner 232 
 South Cong. Meeting House v. 
 
 Hilton 807 
 
 South Metr. Cemetery v. Eden 163 
 S. W. Mo. Light Co. v. Joplin 146 
 Southard v. Benner 566 
 
 V. Cent. R. Co. 1018 
 
 11. Sutton 1342 
 
 Southbridge Sav. Bk. v. Mason 16 
 Southern CaUfomia L. Co. o. 
 
 McDowell 1421 
 
 Southern Construction Co. v. 
 
 Silva 535 
 
 Southern Iron Works v. Central 
 
 of Ga. R. R. Co. 1508 
 
 Southern Pac. R. Co. v. Burr 1412 
 Southport Banking Co. v. Thomp- 
 son 31 
 Southwestern R. Co. v. Thoma- 
 
 son 
 Southworth v. Parker 
 
 V. Southworth 
 Souverbye v. Arden 
 Sowden v. Craig 
 Sowerby v. Coleman 
 Sowles V. Butler 
 
 V. Lewis 
 Spafford v. Hedges 
 Spangler v. Stanler 
 Spannocchia v. Loew 
 Sparks v. Hess 
 Sparman v. Keim 
 Sparrow v. Kingman 
 
 51 
 
 964 
 
 1550 
 
 445 
 
 20,36 
 
 220 
 
 1047 
 
 1057 
 
 897 
 
 673 
 
 738 
 
 1499 
 
 554, 1444 
 
 384, 714, 766 
 
 1351, 1383, 1475 
 
 V. Pond 60, 63, 770 
 
 Spaulding v. Abbot 244 
 
 Speed V. St. Louis M. B. T. Co. 1389 
 
 Speidel v. Henrici 1369 
 
 Speir V. Utrecht 218 
 
 V. Town of New Utrech 204 
 
 Spencer's Case 833, 835, 836, 837, 
 
 838, 839, 845, 1540, 1542 
 
 Spencer v. Austin 969, 970 
 
 V. Carr 1474 
 
 ,v. Kilmer 170, 172, 243, 265 
 
 V. McDougal 
 V. Reese 
 V. Spencer 
 V. Spruell 
 
 1407 
 
 1481 
 
 1049 
 
 617 
 
 Spencer v. Weston 724 
 
 Spensley v. Valentine 244, 308 
 
 Spero V. Shultz 287, 292, 1373 
 
 Spernr v. Seidel 950 
 
 Spicer v. Ayers 527 
 
 Spielman v. Kliest 873, 1491 
 
 Spiller V. Scribner 1340 
 
 Spindler v. Gibson 655 
 
 Spinning v. Spinning 660 
 
 Spirett V. Willows 527 
 
 Sporrer v. Eifler 540 
 
 Sporza V. German Sav. Bk. 1425 
 
 Spradbery, In re 1059 
 
 Sprague v. Baker 1532 
 
 V. Cochran 60, 1043 
 
 V. Quinn 946 
 
 Spread v. Morgan 741 
 
 Spreckels v. Spreckels 982 
 
 Spring V. Randall 471 
 
 V. Short 1089 
 
 Springer v. Chicago R. E. L. & 
 
 T. Co. 866, 871 
 
 V. De Wolf 871 
 
 V. Kroeschell 1577 
 
 Springfield Water Works v. 
 
 Jenkins 303 
 
 Spring Val. W. Works v. Schott- 
 
 ler 142 
 
 Spring's Estate, In re 1280 
 
 Sproul V. McCoy 756 
 
 Sprow V. B. & A. R. Co. 217 
 
 Spruck V. McRoberts 54, 55 
 
 Squire v. Learned 818 
 
 V. Whitton 535 
 
 Staats V. Ten Eyck 1520 
 
 Stachelberg v. Stachelberg 1524 
 
 Stack V. Pepper 1503 
 
 Stackpole v. Beaumont 541 
 
 V. Curtis 199 
 
 V. Healy 272 
 
 V. Schmucker 1475 
 
 Stafford v. Coyney 227 
 
 Stafford, etc. Canal v. Birming- 
 ham Canal 212 
 Stafford Nat. Bank v. Sprague 1498 
 Stagg V. Eureka Co. 896 
 Staggers v. Matthews 473 
 Stahl V. Stahl • 727, 728 
 Staines v. Morris 872 
 Stall V. Wilbur 61, 62 
 Stambaugh v. Lung 509 
 Stamm v. Bostwick 1449 
 Standard Bank v. Stokes 292, 294 
 Standish v. Babcock 517, 518, 520 
 Stanley v. Bonham 652 
 V. Colt 620, 1010 
 V. Green 1500, 1514 
 V. Kempton 1057, 1058 
 V. Schwalby 1359, 1361, 1398 
 Stanton v. Miller 1472 
 Staple V. Heydon 243 
 Staples V. Brown 650, 651 
 
CVl 
 
 TABLE OP CASES CITED. 
 [References are to pages.] 
 
 Staples V. Emery 66 
 
 Starbuck v. Starbuck 670, 672, 710 
 
 Stark V. Huber M. Co. 1061 
 
 V. Starrs 1413 
 
 Starkey v. Brooks 522 
 
 Starr v. Jackson 935 
 
 V. Stevenson 678 
 
 State V. Birmingham 202 
 
 V. Elliott 22 
 
 V. Fisher 224 
 
 V. Ga. Med. Soc. 143 
 
 V. Green 223 
 
 V. Griffith 480, 483 
 
 V. Guilbert 1582, 1583 
 
 V. Howard 1499 
 
 V. Klein 971 
 
 V. Leveriek 227 
 
 V. Massey 905 
 
 V. McGonigle 1440 
 
 V. Milk 1511, 1512 
 
 ■y. Minn. Threshing Mfg. Co. 143, 
 
 144 
 
 V. Minneapolis & M. R. Co. 226 
 
 V. Mitchell 225 
 
 V. Moore 60, 319, 770 
 
 V. Nor. R. Co. 56 
 
 V. Pottmeyer 58 
 
 V. Probate Court 1428 
 
 V. Rondebush 436 
 
 V. South Amboy 224 
 
 V. Suttle 261, 262 
 
 V. Thatcher 1471 
 
 V. Trask 227 
 
 V. Trinity Church 68 
 
 State ex rel. West v. Thompson 1465 
 
 V. Westfall 1582 
 
 V. WilUamson 929 
 
 V. Wilson 220 
 
 V. Young 1461 
 
 State Bank v. Evans 1471 
 
 State Nat. Bk. v. Smith 18 
 
 State Treas. v. S. & E. R. Co. 57 
 
 Staton V. MuUis 1495 
 
 Stead V. Mellor 454 
 
 Steams v. Gage 575 
 
 V. Harris 1018, 1147 
 
 V. Janes y 204 
 
 V. Richmond 279 
 
 Stedfast v. NicoU 1319 
 
 Stedfast ex dem. Nicoll v. Nicoll 
 
 1186 
 
 Stedman v. Gassett 898, 1068 
 
 V. Southbridge 217 
 
 Steed V. Hinson 128 
 
 Steeds v. Steeds 954 
 
 Steefel v. Rothschild 829, 903 
 
 Steel V. Mill6r ' 1469 
 
 V. Payne 814 
 
 V. Steel 577, 1042 
 
 V. Walter 1 108 
 
 Steele, In re 778 
 
 V. Steele 745 
 
 Steele v. Fisher 744 
 
 V. La Frambois 728 
 
 V. Sioux Vallev Bank 1398 
 
 Steere v. S^eere 436, 439 
 
 V. Tiffany 258 
 
 Stees V. Kranz 839 
 
 Steffins V. Earl 923, 924. 926, 
 
 929, 930 
 Steigers' Adm. v. Hillen 701 
 
 Stein V. McGrath 994, 1005 
 
 V. Rice 854 
 
 Steinback v. Krone 886 
 
 Steinbuchel v. Lane 1511 
 
 Steiner v. Emery 857 
 
 V. McDaniel 758 
 
 Steinhardt v. Cunningham 496, 
 
 497 
 Steinke v. Bentley 174 
 
 Stein way v. Steinway 955, 1160, 
 
 1268, 1281 
 Stelz V. Skreck 979 
 
 Stephens v. Bridges 130, 632, 912, 
 
 1145 
 
 V. Ely 43 
 
 V. Hockemeyer 160 
 
 V. Reynolds 137, 798 
 
 V. Rinehart 1472 
 
 V. Stephens 1266 
 
 V. Taprell 1555 
 
 V. Waldron 1091 
 
 V. Weldon 1090 
 
 Stephenson v. Boody 1360 
 
 V. McClintock • 609 
 
 V. Short 482 
 
 Stepp V. Frampton 544 
 
 Sterger v. Van Sicklen 906 
 
 SterUng i;. Peet 1634 
 
 V. Warden 321, 950 
 
 Stembach i;. Friedman/ 664 
 
 Sternberg v. O'Brien 541, 1012 
 
 Sterry v. Arden 661, 666 
 
 Stetson V. Curtis 161 
 
 V. Stetson 1655, 1561 
 
 Stevens v. City of N. Y. 932, 938,' 
 
 960 
 1). Cooper 1088 
 
 V. Hatch 1470 
 
 V. Hauser 1375 
 
 V. Martin 960 
 
 V. Melcher 31, 773, 964, 972, 973, 
 
 990 
 V. Nashua 217 
 
 V. N. Y. EL R. Co. 152, 217 
 
 V. Ogden 1678 
 
 V. Orr 176 
 
 V. Patterson & Newark R. 
 
 Co. 240, 296 
 
 V. Reynolds 652 
 
 V. Rose 776, 778, 780 
 
 V. Shippen 479 
 
 V. Smith 677 
 
 V. Stevens 693 
 
TABLE OF CASES CITED. 
 [Beferences are to pages.] 
 
 evil 
 
 Stevens v. Theatres 
 
 1133 
 
 V. Underhill 
 
 1044 
 
 V. Wait 
 
 962, 1497 
 
 V. Winship 
 
 765 
 
 Stevenson v. Black 
 
 1058, 1367 
 
 V. Cofferin 
 
 964, 990 
 
 V. Crapnell 
 
 527 
 
 V. Lambard 
 
 853 
 
 V. Lesley 
 
 1163 
 
 V. Texas 
 
 1575 
 
 V. Wallace 
 
 282 
 
 V. Wiggin 
 
 216, 243 
 
 Stevenson Brewing Co. v. Iba 1061 
 
 Steward v. Winters 862, 882 
 
 Stewart, Matter of 1236 
 
 V. Apel 925 
 
 V. Allegheny 997 
 
 V. Barrow 1070 
 
 V. Brown 756 
 
 V. Doughty 62, 768, 770, 771, 
 
 865, 927 
 
 V. Duffy 1369 
 
 V. Exch. Bank 563 
 
 V. Fellows 550 
 
 V. Forst 849 
 
 V. Frink 218 
 
 V. Hartman 177, 178, 237 
 
 V. Keener 896, 897 
 
 V. Long Island R. Co. 831, 837, 
 
 867, 868, 869, 911, 913 
 
 V. McSweeney 1432 
 
 V. Miles 896 
 
 V. Neely 683 
 
 V. Patrick 1503, 1506 
 
 V. Ross 650, 651 
 
 V. Smith 832 
 
 V. Stevens 324 
 
 V. Thomas 976 
 
 V. Weed 1474, 1475, 
 
 1532, 1533, 1537 
 
 V. White 204 
 
 Stickland v. Aldridge 439 
 
 Stickney, Matter of 1560 
 
 Stickney's Will, In re 1012, 1281 
 
 Stidham v. Matthews 713 
 
 Stillman v. Burfeind 1510 
 
 V. White Rock Mfg. Co. 201, 202 
 
 StillwaterWaterCo.w. Farmer 300,305 
 
 Stillwell V. Carpenter 1421, 1455 
 
 V. Foster . 160 
 
 V. Swarthout 1425, 1426 
 
 Stilwell V. Knapper 1279, 1321 
 
 V. Melrose 1021 
 
 Stimmel v. Brown 282 
 
 Stiner v. Stiner 543 
 
 Stinson v. Anderson 1472 
 
 V. Simmer 712 
 
 Stirling v. Vaughan 1473 
 
 Stitt V. Smith 660 
 
 Stivers v. Gardner 453 
 
 Stockbridge Iron Co. v. Cone 
 
 Iron Works 1018 
 
 Stockbridge Iron Co. v. Hudson 
 
 Iron Co. 312 
 
 Stocker v. Planet Bldng. Soc. 844 
 
 Stockton V. Dundee Mfg. Co. 1133 
 
 Stockwell V. Fitzgerald 1509 
 
 V. Phelps 62 
 
 Stoddard v. Gibbs 641 
 
 V. Hart 1038, 1050 
 
 V. Rotton 1048 
 
 Stokes V. Singers 239 
 
 V. Weston 1160 
 
 Stokoe V. Singers 239, 257, 275 
 
 Stolts V. Tuska 808 
 
 Stoltz V. Doehreng 1316 
 
 Stone V. Ashley 1476 
 
 V. Clark 1505 
 
 V. Hackett 444 
 
 V. Hooker 1533 
 
 V. Marvel 1462 
 
 V. State 299 
 
 V. Stone 513, 1430 
 
 V. United States 1412 
 
 V. Vandermark 741 
 
 V. Wood 1465 
 
 Stoolfoos V. Jenkins 641 
 
 Storrs' Agr. School v. Whitney 493 
 
 Story V. N. Y. El. R. Co. 4, 153, 160, 
 
 222, 230, 231, 232, 269 
 
 Stott V. Rutherford 828 
 
 Stoughton V. Leigh 684 
 
 V. Lynch 1345 
 
 Stout V. Stout 1264 
 
 Stover V. Chasse 128, 876, 1244 
 
 V. Evcleshimer 1189 
 
 i;.. Stover 984 
 
 Stow V. Tifft 679, 1070 
 
 Stowell V. Bennett 1529 
 
 V. Lincoln 299 
 
 Stowers v. Postal T. C. Co. 233 
 
 Strain v. Sweeny 781 
 
 Strathmore v. Bowes 566, 1560 
 
 Stratton v. Bailey 751 
 
 V. Dialogue 507 
 
 V. Physio-Medical College 484 
 
 Strasburger, Matter of 827, 852 
 
 Strauss v. Bendheim 655 
 
 Strayer v. Long 698 
 
 Streatfield v. Streatfield 742 
 
 Street v. Central Brewing Co. 902 
 
 Streit V. Fay 929 
 
 Strickland v. Parker 25, 56 
 
 Strickler v. Todd 158, 195, 211 
 
 Stringer v. Barker 1157 
 
 V. Young 1154, 1412 
 
 Stringfellow v. Tennessee C. I. 
 
 & R. Co. 1357 
 
 Strobe v. Downer 1125 
 
 Strobel v. Kerr Salt Co. 298- 
 
 Strong's Appeal 480 
 
 Strong, Matter of 482 
 
 V. Clem 663, 664 
 
 V. Doyle 66, 67 
 
CVIU 
 
 strong V. Gordon 
 
 V. Lord 
 
 V. Strong 
 Stronghill v. Anstey 
 Strough V. Wilder 
 Stroup V. Stroup 
 Stuart V. Easton 
 
 TABLE OP CASES CITED. 
 
 [References 
 
 514 
 985 
 534 
 580 
 1477, 1478 
 426, 672 
 
 474, 475, 480, 
 
 1010, 1021 
 
 V. Kissam 472 
 
 V. Palmer 235 
 
 Stubbings v. Village of Evanston 854, 
 
 921 
 
 Stuckey v. Keefe 976, 977 
 
 StuU V. Rich P. I. Co. 1362 
 
 Stults V. Brown 1041 
 
 V. Sale 757 
 
 Sturgeon v. Wingfield 1343 
 
 Sturges V. Bridgman 194, 212 
 
 Sturr V. Beck 298 
 
 Sturtevant v. Jaques 523 
 
 Stutphen V. Therpelson 274, 276 
 
 Stuyvesant v. Davis 819, 911 
 
 V. Mayor 187, 815 
 
 V. Woodruff 178, 179 
 
 Styles V. Wardle 1496 
 
 Sucy V. Pigot 264 
 
 Sudbuiy Parish v. Jones 54 
 
 Sudenberg v. Ely 1081 
 
 Suffeld V. Brown 172, 175 
 
 Sullivan v. Carberry 42, 47 
 
 V. Graffort 289, 293 
 
 V. Iron, Silver Mining Go. 4 
 
 V. I. S. M. Co. 314, 319 
 
 V. Ringler 924 
 
 V. Schmitt 801, 826, 844 
 
 V. Sullivan 995, 996, 1552 
 
 V. Ryan 169, 173, 175 
 
 V. Zeirier 261, 282 
 
 Sully V. Schmitt 129, 848, 849 
 
 Summer v. Child 1428 
 
 Summers v. Babb 698 
 
 Summet v. City Realty & B. Co. 618 
 
 Sumner v. Conant 714, 1447 
 
 V. Darnell 1010, 1015 
 
 V. Partridge 642 
 
 V. Skinner 1571 
 
 V. Stevens 205 
 
 V. Williams 1516 
 
 Surdam v. Cornell 1157 
 
 Surplice v. Famsworth 849, 850 
 
 Susman v. Whyard 1035 
 
 Susquehanna & W. V. R. & C. 
 
 Co. V. Quick 962, 1361, 1363 
 
 Sutherland v. Sutherland 679, 702 
 Sutliff V. Atwood 802 
 
 V. Forgey 706, 1448 
 
 Sutphen V. Therkelson 277 
 
 Sutton V. Askew 703 
 
 752 
 617 
 675 
 638 
 
 V. Miles 
 I). Rolfe 
 V. Warren 
 
 are to pages.] 
 
 Suydam v. Jackson 778, 779, 829, 
 
 830, 844, 856 
 
 V. Jones 837, 1531, 1533, 1539 
 
 V. Voorhees 1044 
 
 Swaine v. Ferine 681, 1084 
 
 Swan V. Hammond 1558 
 
 V. Inderlied 811 
 
 V. Wiswall 679, 701, 1123 
 
 V. Yaple 1059 
 
 Swansborough v. Coventry 160, 273 
 
 Swarthout«. Ranier 1188, 1218, 
 
 1245, 1255 
 
 Swartz V. Swartz 158, 1499 
 
 Swasey v. Emerson 574 
 
 Swazey v. Brooks 1616 
 
 Sweaney v. Mallory 720 
 
 Swedish E. L. Church v. 
 
 Jackson 161, 262 
 
 Sweeney v. Warren 1210, 1227 
 
 Sweet V. Henry 575, 1491 
 
 V. Parker 1076 
 
 V. Perkins 272 
 
 V. Sweet 1002 
 
 Sweetapple v. Bindon 431, 641 
 
 Sweetman v. Prince 846 
 
 Sweetzer v. Jones 1088 
 
 Swerigen v. St. Louis 297, 1405, 
 
 1415 
 Swift's Appeal 1242 
 
 Swift V. Beneficial Soc. 482 
 
 V. Goodrich 299 
 
 Swinburne v. Swinburne 511 
 
 Swindon Water Works v. Wilts 
 
 Canal 299 
 
 Swink V. Thompson 1465 
 
 Swinton v. Bailey 1556 
 
 Sword V. Low * 16 
 
 Swords V. Edgar 903, 906 
 
 Symmes v. Drew 180 
 
 Symonds v. Hall 796 
 
 Synge v. Synge 567 
 
 Synnott v. Simpson 449 
 
 Syracuse Sav. Bk. v. Holden 466, 
 
 494 
 Szathmary v. Adams 906 
 
 Tabatt v. Grant 
 
 
 164 
 
 Taber v. Willetts 
 
 
 1221 
 
 Tabernacle Church v. 
 
 Fifth Av. 
 
 
 Church 
 
 
 468 
 
 Tabor v. Bradley 
 
 
 173 
 
 V. Fox 
 
 
 1061 
 
 V. Robinson 
 
 
 38 
 
 Tadman v. Henman 
 
 
 897 
 
 Taffts V. Manlove 
 
 
 1674 
 
 Taft V. Dimond 
 
 
 439 
 
 \ V. Stekin 
 
 
 18 
 
 V. Taft 
 
 
 1472 
 
 Taggart v. Murray 
 
 594 
 
 1218 
 
TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Tainter v. Cole 971 
 
 Talamo v. Spitzmiller 814, 933, 
 
 937, 938 
 
 Talbot's Case 131 
 
 Talbot V. Cruger 38, 42, 43 
 
 V. Hudson 228, 229 
 
 V. Whipple 916 
 
 Talk V. Moxbuiy 1539 
 
 Tallmadge v. East River Bank 155, 
 
 161, 185, 188, 189 
 
 Tallman v. Coffin 837, 888 
 
 V. Bresler 817 
 
 V. Earle 915, 919 
 
 V. Franklin 814 
 
 V. Murphy 826, 848, 856, 859 
 
 Taltarum's Case 610, 611 
 
 Tameling v. Emigration Co. 1413 
 
 Tanner v. Valentine 326 
 
 Tanney v. Tanney 552 
 
 Tapling v. Jones 250, 266, 275 
 
 Tappan v. Boston Water Power 
 
 Co. 1513 
 
 V. Deblois 474, 477 
 
 V. Redfield 1464 
 
 Taraldsoni;. Incorporated Town, 
 
 etc. 1358 
 
 V. Lime Springs 237 
 
 TarbeU v. West 1068, 1492 
 
 Tarbox v. Grant 448, 562 
 
 Tardy v. Creasy 1542 
 
 Tarpey v. Madsen 1408, 1409 
 
 Tarplee v. Sonn 961, 963 
 
 Tarry v. Ashton 902 
 
 Tate V. Blackbume 16, 20 
 
 V. Fratt 288, 289, 292 
 
 V. Lawrence 1478 
 
 Tatge V. Tatge 439 
 
 Tatham v. Vernon 1272 
 
 Taub V. Spector 1342, 1505, 1515 
 
 Taunton v. Costar 950 
 
 Taussig V. Reel 1227 
 
 Taw V. Bury 1473 
 
 Taylor's Estate 745 
 
 Taylor v. Atwood 538 
 
 V. Bay City St. R. Co. 232 
 
 V. Benham ' 50 
 
 V. Boardman 559 
 
 V. Boulware 167 
 
 V. Bradley 843 
 
 V. Brodhead 1553 
 
 V. Biyn Mawr 479 
 
 V. Calvert 543, 548 
 
 V. Chicago, M. & St. P. R. 
 
 Co. 232 
 
 V. Cooper ' 852 
 
 V. Fomby 1512 
 
 V. Fowler 719 
 
 V. Garrish 204 
 
 V. Gerrish 157 
 
 V. Glasar 1466, 1468 
 
 V. Guest 534 
 
 V. Hampton 255 
 
 CIX 
 
 Taylor v. Hart 856 
 
 V. Hartwell 425 
 V. Harwell 470, 598 
 
 V. Horde 1356 
 
 V. Kemp 776 
 
 V. Lawrence 663 
 
 V. Mason 1013 
 
 V. McClure 1474 
 
 V. Millard 199, 308, 309, 992, 
 
 993 
 
 u. Mitchell 482 
 
 V. Morris 1223 
 
 V. Murphy 981 
 
 V. Needham 895 
 
 V. Newcomb 781 
 
 V. O'Brien 941 
 
 V. Russell 576 
 
 V. Short's Adm'r 1088 
 
 V. Sutton 1014 
 
 V. Taylor 542, 547, 556, 710, 
 
 1171, 1253, 1258 
 
 V. Wainman 1346 
 
 V. Wamaky 178 
 
 V. Waters 327 
 
 V. Wliitehead 671, 830 
 
 V. Wynne 1572 
 
 Taylor d. Smith v. Biddal 1261 
 
 Teal V. Walker 1047, 1049 
 
 Teass v. City of St. Albans 1505 
 
 Teele v. Bishop of Derby 478, 484, 
 
 488, 490 
 
 Tefft V. Munson 1051, 1339 
 
 Teller v. Boyle 133, 800, 855 
 
 Temple v. Hawley 1220 
 
 Templeman v. Biddle 769 
 
 Tenant v. Goldwin 273 
 
 V. Stoney 449 
 
 Teneick v. Flagg 569 
 
 Ten Eick v. Simpson 571 
 
 Tenement House Dept. v. 
 
 Moeschen 860 
 
 Ten Eyck v. Craig 1064 
 
 V. Whitbeck 547, 1399, 1468, 
 
 1475, 1492 
 
 V. Witbeck 561, 572, 576, 576, 
 
 1089, 1385, 1457, 1469 
 
 Tenn. Coal Co. ■;;. Gardner 1492 
 
 Tenn. Coal & L "R. v. Hamilton 299 
 
 Terrell v. Allison 1123 
 
 Territory v. Lee 315 
 
 Territt v. Cowenhoven 851, 896 
 
 Terry v. Johnson 1464 
 
 V. Rodahan 1237 
 
 V. Rosell 1050 
 
 V. Wiggins 594 
 
 Terwilliger v. Brown 1427 
 
 V. Ontario C. & S. R. Co. 
 
 1239 
 Tewart v. Lawson 1287 
 
 Texas Loan Agency v. Fleming 918 
 Texas & P. R. Co. v. Smith 1413 
 
ex 
 
 TABLE OF CASES CITED. 
 
 Thackery ■». Eldigan 
 
 V. Wood 
 Thackrah v. Haas 
 Thalheimer v. Lempert 
 Thalls V. Smith 
 Thames v. Caldwell 
 Thatcher v. Eowland 
 
 V. Matthews 
 
 V. Omans 
 
 V. Powell 
 
 V. St. Andrew's Church 
 
 Thaxter v. Turner 
 Thayer v. Bacon 
 
 V. Finnegau 
 
 V. Finton 
 
 V. McGee 
 
 V. McLellan 
 
 V. Torrey 
 
 V. United Bro. See. 
 
 V. Wellington 
 The Daniel Ball 
 The W. B. Cole 
 Thebaud v. Hollister 
 
 Thellusson v. Woodford 1246, 1267, 
 
 1286 
 Theological Seminary v. Wall 615 
 Thiel V. Bull's Ferry Land 950 
 
 Third Ave. R. R. Co., Matter 
 
 of 230 
 
 Thirty-fourth Street R. Co., 
 
 Matter of 235 
 
 Thoenike v. Fiedler 321, 324 
 
 Thomas v. Davis 12, 16 
 
 V. Evans 581, 774 
 
 V. Ford 217 
 
 V. Frost 947 
 
 V. Hayward 838 
 
 V. Inglis 18 
 
 V. Junction City Irrigation 
 
 Co. 325 
 
 ■V. Marshfield 205 
 
 V. McCormick 526 
 
 V. Miller 1297, 1321 
 
 V. Nelson 810 
 
 ■0. PuUis 1340 
 
 V. Sanford S. Co. 925 
 
 V. Scutt 620, 1042 
 
 V. SorreU 321, 322 
 
 V. Stickle 1348 
 
 V. Sylvester 880 
 
 V. Thomas 264, 773, 774 
 
 V. Taggart 72, 1437 
 
 V. Wyatt 84, 1455, 1456 
 
 V. Young 897, 899 
 
 Thomason v. Lewis 33 
 
 Thompson v. Bird 1088 
 
 V. Bowman 984 
 
 V. Burhans 1362, 1364, 1375 
 
 V. Carmichael 1320 
 
 V. Cochran 671 
 
 V. Dearborn 1475 
 
 [Beferences are to pages.] 
 
 785 
 1524 
 
 544 
 
 849 
 1339 
 1041 
 1502 
 1512 
 
 461 
 1431 
 1280, 
 1470 
 
 222 
 1342 
 1044 
 1504 
 1281 
 1360 
 1514 
 
 895 
 
 439 
 
 297 
 1489 
 1106 
 
 Thompson v. Ela 
 
 1117, 1118 
 
 V. Gould 
 
 572 
 
 V. Gregory 
 
 323, 324 
 
 V. Hart 
 
 50 
 
 V. Hartline 
 
 550 
 
 V. Hoop 
 
 681, 744 
 
 V. Kenyon 
 
 1117 
 
 V. Leach 
 
 1461 
 
 V. Maddux 
 
 1161 
 
 V. Man. R. Co. 
 
 269, 787, 845, 
 
 
 846 
 
 V. Marshall 
 
 1056 
 
 V. McElamey 
 
 158, 328 
 
 V. Miner 
 
 179, 183 
 
 V. Morrow 
 
 696, 697 
 
 V. Owen 
 
 1553 
 
 V. Simpson 
 
 765, 766, 1340 
 
 V. Shattuck 
 
 1539 
 
 V. Thompson 
 
 669, 1496 
 
 V. Webster 
 
 564 
 
 Thompson's Ex'rs v. Norris 491 
 
 Thomsen v. McCoimick 273 
 
 Thomson v. Chick ,929 
 
 V. Ludington 1164, 1167 
 
 V. Waterlow 174 
 
 Thomson-Houston Elec. Co. v. 
 
 Durant Land Imp. Co. 859 
 
 Thorg V. Seibrecht 565 
 
 Thorington v. Hall 1227 
 
 V. Thorington 1160 
 
 Thorn v. De Breteuil 1290 
 
 V. Sutherland 42 
 
 V. Wilson 252 
 
 V. Wollcombe 868 
 
 Thomborough v. Baker 1055 
 
 Thomburg v. Wiggins 957, 976 
 
 Thomdike v. Burrage 947 
 
 Thome, Matter of 1317, 1318 
 
 V. Cann 1106 
 
 V. Newby 1125 
 
 Thomley v. Thomley 749, 980 
 
 Thornton v. Burch 768 
 
 V. Grant 1332 
 
 Thoroughgood's Case 1471, 1475, 
 
 1476 
 
 Thorp V. Keokuk Coal Co. 1390, 
 
 1398, 1399, 1461 
 
 V. Thorp 667 
 
 Thorpe v. Hanscom 1445 
 
 Thousand Is. Pk. Ass'n v. Tucker 
 
 221, 222 
 Thousand Island Steamboat 
 
 Co. V. Visger 297 
 
 Thrasher v. Everhart 1466 
 
 Thresher v. East London Water 
 
 Works 44 
 
 Throckmorton v. Holt 1556 
 
 Thropp's Appeal 45, 47 
 
 Thropp V. Field 1016 
 
 Thunder v. Belcher 1068 
 
 Thurber v. Dwyer 925, 929, 938 
 
 Thurlough v. Dresser 1489 
 
TABLE OF CASES CITED. 
 [References are to pages,] 
 
 CXI 
 
 Thursby v. Plant 
 
 
 125 
 
 Toilet V. Toilet 
 
 
 
 1229 
 
 Thurston v. Hancock 
 
 
 280 
 
 Tolman v. Sparhawk 
 
 
 
 1367 
 
 Thynn v. Thynn 
 
 
 536 
 
 Tolteo Branch Co. v. 
 
 Babcock 
 
 1355 
 
 Tibbals v. Jacobs 
 
 
 1474 
 
 V. Cook 
 
 
 
 1355 
 
 Tibbets v. Home 
 
 19, 35, 36 
 
 Tomkins v. Sandys 
 
 
 
 1231 
 
 Tice V. Annin 
 
 
 1032 
 
 Tomie V. Hampton 
 
 
 902. 904 
 
 Tiddiken v. Cantrell 
 
 
 1439 
 
 Tomlin v. Hilyard 
 
 
 
 993 
 
 Tierman v. Poor 
 
 
 1043 
 
 Tomlinson v. Stile? 
 
 
 
 1574 
 
 Tiemey v. Wood 
 
 
 443 
 
 Tompkins, Matter of 
 
 
 465. 496 
 
 Tietjen v. Palmer 
 
 
 1507 
 
 V. Fonda 
 
 
 664, 
 
 1377 
 
 Tiffany v. Tiffany 
 
 
 514 
 
 V. Snow 
 
 
 
 901 
 
 Tifft V. Horton 
 
 19, 33, 34 
 
 V. Verplanck 
 
 
 
 955 
 
 Tilden Will 
 
 
 502 
 
 V. Vintroux 
 
 
 
 1613 
 
 Tilden v. Green 467, 
 
 477, 485 
 
 486, 
 
 V. Wiltberger 
 
 
 
 1087 
 
 500, 501, 1210, 1231, 
 
 1236, 
 
 Toms V. Williams 
 
 
 
 1269 
 
 
 1252, 
 
 1281 
 
 Tone V. Brace 
 
 
 
 825 
 
 Tilghman v. Little 
 
 
 896 
 
 Toney v. Wondling 
 
 
 
 515 
 
 Tillaux V. Tillaux 
 
 
 527 
 
 Tonnele v. Wetmore 
 
 
 
 633 
 
 Tillinghast, In re 
 
 
 617 
 
 Took V. Glascock 
 
 
 
 749 
 
 V. Champlin 
 
 
 985 
 
 Toole V. Beckett 
 
 
 
 907 
 
 V. Coggeshall 
 
 429, 641 
 
 Toombs V. Spratlin 
 
 
 
 1194 
 
 Tillotson V. Prichard 
 
 
 1477 
 
 Toothe V. Bryce 
 
 169 
 
 170 
 
 172, 
 
 Tilon V. Reynolds 
 
 345, 896 
 
 
 
 m 
 
 .,248 
 
 Tilton V. Cofield 
 
 
 1045 
 
 Torrey v. Bank of Orleans 
 
 
 550 
 
 V. Vail 
 
 
 1001 
 
 V. Burnett 
 
 
 
 42 
 
 Tilyou V. Reynolds 
 
 898, 901 
 
 V. Minor 
 
 
 
 721 
 
 Timberlake v. Parish Ex'rs 
 
 1194 
 
 V. Torrey 
 
 
 
 941 
 
 Timlin v. Standard Oil 
 
 903, 904, 905 
 
 Torriano v. Young 
 
 
 
 927 
 
 Timpson v. Mayor 
 Tindall v. Miller 
 
 
 1358 
 
 Torry v. Black 
 Totel V. Bonnefoy 
 
 
 
 782 
 
 
 1180 
 
 
 
 201 
 
 Tingley v. Harris 
 
 
 1180 
 
 Totten V. Stuyvesant 
 
 
 
 675 
 
 Tinicum Fishing Co. v. 
 
 Carter 
 
 211, 
 
 Toulumme C. M. Co. 
 
 V. Maier 
 
 316 
 
 215, 242 
 
 , 243, 308, 309 
 
 Tourville v. Naish 
 
 
 
 579 
 
 Tink V. Walker 
 
 
 671 
 
 Towerson v. Jackson 
 
 
 
 1069 
 
 Tinker v. Forbes 
 
 16] 
 
 ,277 
 
 Towery v. Henderson 
 
 
 
 1470 
 
 V. Met. El. R. R. Co. 
 
 1508 
 
 Towle V. Nesmith 
 
 
 
 479 
 
 Tinsman v. Belvidere, etc. R. Co 
 
 268 
 
 V. Remsen 
 
 
 
 1376 
 
 Tippets V. Walker 
 Tisher v. Beckworth 
 
 
 51 
 
 Towler v. Towler 
 
 467, ] 
 
 L210, 
 
 1231 
 
 
 1469 
 
 Towles V. Fischer 
 
 
 
 1237 
 
 Titcomb v. Fonda J. & G. R. Co. 
 
 1377 
 
 Town V. Hazen 
 
 
 
 322 
 
 V. Wood 
 
 
 578 
 
 V. Needham 
 
 
 
 963 
 
 Title, etc. Restoration Co. v. 
 
 
 Town of Brighton v. 
 Town of Connth v. E 
 
 Doyle 
 
 
 1066 
 
 Kerrigan 
 
 
 1582 
 
 mery 
 
 
 978 
 
 Titman v. Moore 
 
 
 759 
 
 Town of Freedom v. Norris 
 
 
 1332 
 
 Titsworth V. Stout 
 
 
 972 
 
 Town of Shapleigh v. 
 
 Pilsbury 
 
 1203 
 
 Titus V. Warren 
 
 
 758 
 
 Town of Solon v. Williamsburg 
 
 
 Tobey v. Moore 
 
 184, 
 
 1281 
 
 Savings Bank 
 
 
 
 1465 
 
 V. Webster 
 
 
 845 
 
 Town of SufBeld v. Hathaway' 
 
 272 
 
 Tobias v. Ketcham 
 
 
 495 
 
 Towne v. Butterfield 
 
 
 896, 935 
 
 Tod V. Baylor 
 
 
 698 
 
 V. Fiske 
 
 
 
 5i 
 
 Todd V. Eighmie 
 V. Flight 
 V. Nelson 
 
 
 1492 
 
 Townley v. Bedwell 
 
 
 
 480 
 
 902 
 
 ,904 
 
 V Watson 
 
 
 
 1556 
 
 
 564 
 
 Townsend, Matter of 
 
 
 22S 
 
 !, 229 
 
 V. Oviatt 
 
 
 641 
 
 V. Bogert 
 
 
 
 999 
 
 V. Sawyer 
 
 
 766 
 
 V. Boyd 
 
 
 
 1355 
 
 V. U. D. S. Institution 
 
 1488 
 
 V. Hubbard 
 
 
 
 1465 
 
 Todhunter v. D. M. I. 
 
 &M. R. 
 
 
 V. McDonald 
 
 
 
 261 
 
 Co. 
 
 
 1271 
 
 V. Morris 
 
 ] 
 
 LS35, 
 
 1536 
 
 Toll Bridge v. Osbom 
 
 
 51 
 
 V. Nickerson 
 
 
 84S 
 
 ,844 
 
 ToUe V. Orth 
 
 
 946 
 
 V. Westcott 
 
 
 
 564 
 
 ToUemaehe v. Earl of Coventry 
 
 70 
 
 Townshend v. Frommer 
 
 460 
 
 461, 
 
 ToUes V. Winton 
 
 24,25 
 
 494, 496, 1124, 1210 
 
cxu 
 
 TABLE OP CASES CITED. 
 [References are to pages.J 
 
 Townshendw. Howard 1556, 1556, 1558 
 Townson v. Tickell 1473 
 
 TowBon V. Moore 556 
 
 Tracy v. Albany Exchange Co. 811, 
 
 947 
 
 V. Atherton 178, 200, 208, 
 
 211, 1366 
 
 V. Murray 745 
 
 Trafton v. Hawes 1392, 1466 
 
 Trambly v. Ricard 1476 
 Transportation Co. v. Chicago 279, 
 
 280 
 
 Traphageni). Burt 516, 558, 983, 984 
 
 Trapnall v. Merrick 880 
 
 Trask v. Little 42 
 
 V. Sturges 1227 
 
 Traute v. White 288, 289, 290 
 
 Travers v. McElvain 1362 
 
 Treackle v. Coke 831 
 
 Treadwell v. Inslee 196 
 
 'Treat's Appeal 458, 480, 485 
 
 'Trees v. Savage 929 
 
 Treewan v. Barnes 933 
 
 'Trentman v. Neff 1497 
 
 Trenton Potteries v. Oliphant 541 
 
 Treton v. Treton 897 
 
 Trevivan v. Lawrance 1343 
 
 Trimble v. Hunter 1572 
 
 Trimm v. Marsh 678, 1050, 1051, 
 
 1056, 1065, 1071 
 
 Trimmier v. Darden 776 
 
 Tripe v. Marcy 1050 
 
 Tripp V. Annitage 16 
 
 V. Hasseig 61 
 
 V. Ide 1120 
 
 "Tritt V. Crotzer 468 
 
 Trolan v. Rogers 1535 
 
 Trope V. Kerns 1339 
 
 Trotter v. Smith 553 
 
 Trout V. McDonald 303 
 
 Trowbridge v. Cross 676 
 
 V. Ehrich 1507, 1508 
 
 Troxell v. Johnson 1537 
 
 V. Silverhom 553 
 
 Truax v. Gregory 159 
 
 True V. Morrill 758 
 
 Truesdale v. Ford 1363 
 
 Trull V. Eastman 1351 
 
 V. Granger 827, 843, 844 
 
 Truman v. Lore 1464 
 
 ■0. Love 1476 
 
 Trumbull v. Rivers 179 
 
 V. Trumbull 1180, 1181 
 
 Trusdell v. Lehman 591 
 
 Trustees v. Brett 861 
 
 V. Hoboken 223 
 
 V. Jackson Square Church 490 
 
 V. Kirk 1364 
 
 V. Lynch 600 
 
 V. Venable 1547 
 
 Trustees, etc. v. Haven 226 
 
 Trustees, etc., v. Meriyweather 222 
 Trustees of Baptist Church v. 
 
 Hart's Executors 475 
 
 Trustees of Canandaigua v. 
 
 Foster 903 
 
 Trustees of Columbia College v. 
 
 Lynch 160, 161, 187, 
 
 189, 190 
 
 V. Lynch & Thacher 190, 191/ 
 
 1519 
 
 V. Thacher 187 
 
 V. Thacher & Lynch 161 
 
 Trustees of HoUis' Hospital, In 
 
 re 1280 
 
 Trustees of Hopkins Academy 
 
 V. Dickinson 1331 
 
 Trustees of N. Y. & Bklyn. 
 
 Bridge, Matter of 235 
 
 Trustees of N. Y. Protestant 
 
 Episcopal School v. Davis 499 
 
 Trustees of Phillips Academy 
 
 V. King 414 
 
 Trustees of Smith Charities v. 
 
 Connolly 90 
 
 Trustees of Union College v. 
 
 City of New York 601, 619, 
 
 1011, 1014, 1015, 1061 
 
 Tuck V. Fitts 701 
 
 Tuckahoe Canal Co. v. Tucka- 
 
 hoe R. R. Co. 146 
 
 Tucker's Appeal 461 
 
 Tucker, In re 1044 
 
 V. Allen 1440 
 
 V. Andrews 566, 750 
 
 V. Bennett 450 
 
 V. Burrow 512 
 
 V. Clark 1339 
 
 V. Cooney 1532, 1533 
 
 V. Howard 245, 247 
 
 V. Linger 781 
 
 V. McArthur 1526 
 
 V. Moreland 1444 
 
 V. Phipps 536 
 
 V. Satterthwaite 1500 
 
 V. Shaw 573 
 
 Tuffree v. Polhemus 993 
 
 TuUett V. Armstrong 473 
 
 TuUy V. Dunn 843 
 
 V. TuUy 955 
 
 Tunstall v. Christian 276, 277, 
 
 280, 281, 282 
 
 V. Trappes i 1571 
 
 Tureaud v. Gex 1672 
 
 Turner, Appeal of 1548 
 
 Turner's Estate 569 
 
 Turner v. Baker 1366 
 
 V. Haupt 574, 1045 
 
 V. Hebron 308 
 
 V. Howard 190, 1458 
 
 V. Hoyle 580 
 
 V. Kuehnle 695 
 
 V. Meyers figs 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 CXlH 
 
 Turner v. Meymott 879 
 
 i;. Moore 1362 
 
 V. New York 101, 1360, 1431, 
 
 1432 
 
 V. Petigrew 618 
 
 V. Sawyer 517, 519, 520, 552 
 
 V. Shaw 753 
 
 V. Smith 1108 
 
 V. Stephenson 1362 
 
 V. Thompson 274, 275 
 
 V. Wentworth 16 
 
 V. Wright 780 
 
 Tumey, In re 1264 
 
 V. Smith 701 
 
 Turpie v. Lowe 1076 
 
 Turpin v. Dennis 1343 
 
 V. Lemon 1431, 1434 
 
 Tusch V. German Sav. Bk. 439 
 
 Tustin V. Faught 1455 
 
 Tuten V. Gazan 1482 
 
 Tuthill V. Davis 1255 
 
 V. Morris 1100, 1105 
 
 Tuttle V. Hobinson 29 
 
 V. Tompkms 821 
 
 V. Turner 1474 
 
 Tuxedo Park Ass'n v. Sterling 
 
 Iron & R. Go. 1504 
 
 Twining v. Burlington 1357 
 
 Twort V. Twort 973 
 
 Twynam v. Pickard 840 
 
 Twyne's Case 537, 562, 563, 564, 
 
 565 
 
 Tyler v. Beacher 228 
 
 V. Black 531, 532, 535 
 
 V. Cooper 199 
 
 V. Hammond 264 
 
 V. Heidom 394 
 
 V. Jewett 757 
 
 V. Moore 1516, 1582, 1583 
 
 V. Tyler 566 
 
 V. Wilkinson 193, 204 
 
 Tyndall v. Flemmg 1160 
 
 Tyrell v. Painton 547 
 
 Tj-rrel's Case 422, 424, 460, 1394, 
 
 1395 
 
 Tyrrell v. The Bank of London 553 
 
 Tyson v. Hardesty 1505 
 
 V. Smith 219 
 
 U. 
 
 Udell V. Steams 1560 
 
 Uggla V. Brokaw 904, 907 
 
 Uhl •». Ohio River R. Co. 1499 
 Uhlefelder v. City of Mt. Vernon 221 
 
 Uhler V. Cowen 854, 921 
 
 V. Seniple 983 
 
 Ullman v. Cameron 471, 473 
 
 Ulp V. Campbell 712 
 
 Underhill v. ColUns 917, 919 
 
 V. Horwood 538 
 
 Underhill v. Saratoga R. Co. 1012 
 
 Underwood v. Bircnard 826, 844 
 
 V. Campbell 1466. 
 
 V. Carney 163 
 
 V. Curtis 1279 
 
 Unger v. Leiter 680 
 
 V. Mooney 962 
 
 Unglish V. Marvin 795 
 
 Union Brewing Co. v. Meier 664 
 
 Union College v. Wheeler 510 
 
 Union El. R. R. Co., Matter of 228 
 
 Union L. Co. v. London 178 
 
 Union M. & M. Co. v. Leitch 317 
 
 Union Mut. L. Ins. Co. v. Hanford 
 
 1104 
 
 Union Nat. Bk. v. Goetz 518 
 
 Union Pac. R. Co. v. Artist 475, 484 
 
 V. C. R. I. & P. R. Co. 125 
 
 V. Chicago, etc. R. R. Co. 570, 
 
 571 
 V. Harris 542 
 
 Union Stock Yards Bk. v. Gilles- 
 pie 517 
 Union T. Co. v. W. & S. F. R. 
 
 Co. 39 
 
 Union Water Co. v. Craiy 210 
 
 United N. J. R. & C. Co. v. Con- 
 solidated Fruit Jar Co. 959 
 United States v. Am. Tel. Co. 1415 
 V. Anderson 1472 
 ■o. Appleton 172, 243, 1498 
 V. Bait. & Ohio R. Co. 158, 322 
 V. Bostwick 778, 783, 829, 857 
 V. CaUfomia L. Co. 1387, 1399 
 V. Cameron 1504 
 V. Chandler-Dunbar Co. 1355, 
 1405 
 V. Chase 1379 
 V. Chavez 101, 1352, 1359, 1373 
 V. Chicago, etc. R. Co. 1411 
 0. Coffin 553 
 V. Commonwealth, etc. Trust 
 
 Co. 815, 818, 1051 
 
 V. Dalles Military Rd. 1398 
 
 V. Freel 1099 
 
 V. Freight Ass'n 541, 1012 
 
 V. Grande Irrigation Co. 298 
 
 V. Illinois Cent. R. Co. 226 
 
 V. Ingram 1411 
 
 V. I. S. M. Co. 317 
 
 V. Joint Traffic Ass'n 541 
 
 V. Le Baron 1345 
 
 V. Loughrey 620, 1015 
 
 V. Minor 1413 
 
 V. Murray 1504 
 
 V. New Orleans R. Co. 35 
 
 V. Repentigny 387 
 
 V. Rio Grande Irrigation Co. 
 
 298, 300 
 
 V. Spalding 1440 
 
 V. Tenn. & C. R. Co. 620, 815, 
 
 1010, 1011, 1015. 
 
 h 
 
CXIV 
 
 TABLE OP CASES CITED. 
 [Befsrencea are to pages.] 
 
 United States Security Co, v. 
 
 Cent. Nat. Bk. 573 
 
 United States Trust Co. v. 
 
 Hogencamp 1194 
 
 V. Maxwell 1316 
 
 V. Sober 1287 
 
 United Trust Co. v. Stanton 1455 
 
 V. Wabash W. R. Co. 870 
 
 Univ. of London v. Yarrow 480 
 
 Uphan V. Hammill 1422 
 
 Upington v. Corrigan 74, 392, 394, 
 
 396, 593, 596, 697, 598, 620, 
 
 927, 1147, 1188, 1253, 1281, 
 
 1547 
 
 Upton V. Archer 1020, 1438 
 
 V. Larkin 316 
 
 V. Townend 848, 849, 852 
 
 Uridias v. Morrell 941, 943 
 
 Usher v. Richardson 721 
 
 Usticke V. Bawden 1561 
 
 Utterton v. Robins 1560 
 
 Vail V. Foster 1040 
 
 V. Long I. R. Co. 1018 
 
 V. Vail 1001, 1321 
 
 Valentine, Matter of 1426 
 
 V. Healey 925, 970, 971 
 
 V. Hutchinson 655 
 
 V. Schreiber 156, 211\ 216 
 
 V. Wetherill 1143, 1303, 1311, 
 
 1312 
 
 Vallette v. Tedens 508 
 
 Valley Falls Co. v. Dolan 178 
 
 Valliant v. Dodemede 872 
 
 Valpey v. Rea 1445 
 
 Vanatta v. Brewer 910 
 
 V. Carr 520 
 
 V. Jones 222 
 
 Vanarsdall v. Fauntleroy 640 
 
 Van Arsdale v. Van Arsdale 739 
 
 Van Axte v. Fisher 1167, 1220 
 
 Van Baalte v. Harrington 564 
 
 Van Beurey v. Wotherspoon 811, 
 
 886 
 Vanblaricum v. Yeo 1466 
 
 Van Brunt v. Van Brunt 1283 
 
 Van Buskirk v. Van Buskirk 559 
 
 Van Camp v. Searle 1574 
 
 Vance v. Nogle 472 
 
 V. Vance 733, 734 
 
 Van Cleaf v. Burns 706, 709 
 
 Van Cortland v. Kip 1560 
 
 Van Cortlandt v. Tozer 1483 
 
 Van Cott V. P^rentice 450, 496 
 
 Vanderbilt -y. Schreyer 1113 
 
 Vanderheyden 1). Crandall 1141, 
 
 1187 
 
 Vanderpoel ?J. Loew 1283 
 
 V. Van Allen 24 
 
 Vanderpool v. Smith 850 
 
 Vander Volgen v. Yates 503, 526 
 
 Vanderzee v. Slingerland 1157 
 
 Van Deusen v. Young 729, 767 
 
 Vandevort, Matter of 1233 
 
 Van Doren v. Everitt 768, 769 
 
 Van Dorn v. Van Dorn 697 
 
 Van Duyne v. Thayre 1054 
 
 V. Van Duyne 457 
 
 Van Duzer v. Van Duzer 650 
 
 Vane v. Lord Barnard 779 
 
 Van Grutten v. Foxwell 1177, 1179 
 
 Van Hattan v. SchoU 1123 
 
 Van Home v. Campbell 1172, 1188, 
 
 1261, 1262, 1253, 12S'4 
 
 V. Grain 840 
 
 V. Dorrance 689 
 
 V. Fonda 959, 990 
 
 Van Houten v. First Ref . Dutch 
 
 Church 69 
 
 Van Joel ». Homvey 276 
 
 Van Kleech v. Dutch Reformed 
 
 Church 524 
 
 Van Loan v. City of New York 1671 
 
 Van Maren v. Johnson 981 
 
 Van Name v. Van Name 663 
 
 Van Ness v. Gardiner 613, 1567 
 
 ■0. Hyatt 1071 
 
 V. Pacard 39, 40, 41 
 
 V. Packard 12 
 
 Van Note v. Downey 748 
 
 Vanorden v. Johnson 1491 
 
 Van Orman v. Phelps 1002 
 
 VanOsdell v. Champion 698 
 
 Van Pelt v. McGraw 1064 
 
 Van Rensselaer v. Albany & S. R. 
 
 Co. 160 
 
 V. Ball 393, 394, 820, 1017 
 
 V. Barringer 394 
 
 V. Bonesteel 394 
 
 V. Bouton 394 
 
 V. Bradley 840 
 
 V. Brice 864 
 
 V. Chadwick 123, 134, 139, 140 
 V. Dennison 137, 138, 394, 798 
 V. Gallup 128, 394 
 
 V. Hays 123, 136, 138, 390, 392, 
 393, 394, 395, 697, 699, 1386, 
 1453 
 V. Jewett 394, 883 
 
 V. Jones 394 
 
 V. Kearney 618, 1344, 1347, 
 
 1348 
 V. Mould 58 
 
 V. Penniman 914 
 
 V. Platner 137, 874 
 
 V. RadcUff 307, 312, 864 
 
 V. Read 118, 136, 138, 392, 394, 
 
 874 
 V. Slingerland 394 
 
 V. Synder • 394 
 
 V. Wright 884 
 
TABLE OP CASES CITED. 
 [Beferenoes are to pages.] 
 
 CXV 
 
 Van Rensselaer's Executors v. 
 
 Gallup 394 
 
 Vansciver v. Bryan 1576 
 
 Van Solingen v. Town of Harri- 
 son 1477 
 Vanstory v. Thornton 758 
 Van Vechten v. Kealor 1102 
 Van Voorhis v. Brintnall 667, 709 
 Van Vronker v. Eastman 1066 
 Van Wagner v. Brown 1057 
 V. Van Nostrand _ 1536 
 Van Winkle v. Constantino 714 
 V. Van Winkle 1507, 1506, 1522 
 Van Wyck, In re. 1223 
 Varick v. Edwards 539 
 u. Jackson 384, 1383 
 V. Smith 1419, 1562 
 Vamey v. Stevens 773 
 Vartie v. Underwood 662, 680, 718 
 Vaugh, In re 1258 
 Vaughan v. Barclay 459 
 V. Dowden 1073 
 V. Godman 1475 
 V Hancock 61 
 1). Swayzie 1497 
 Veasey v. Doton 535 
 Veghte V. B^ritan, etc. Co. 158, 253, 
 254, 258, 330 
 Veit V. Dill 1390 
 V. Schwob 1464, 1455 
 Venable v. W. W. R. Co. 661, 702, 
 
 718, 722 
 Verdin v. Slocvim 1572 
 
 Vermont Village v. Miller 224, 226 
 Vernam v. Smith 894, 895, 896 
 
 Vernon's Case 627, 722, 733, 734, 
 
 736, 739 
 Vernon v. Smith 838 
 
 V. Vernon 451, 740 
 
 Ver-Planck v. Godfrey 1080 
 
 Verplank v. Starry 561 
 
 V. Wright 815, 835, 839 
 
 Verrier v. Loris 982 
 
 Verzier v. Convard 451 
 
 Vetter's Appeal 120 
 
 Viall V. Carpenter 178, 180 
 
 Vick V. Ayres 933 
 
 Vickers v. Leigh 596 
 
 Vidal V. Girard's Executors 474, 475, 
 
 477, 479 
 Vielie v. Osgood 1463 
 
 Vihleim v. Mathews 1538 
 
 Village of Haverstraw v. Ecker- 
 
 son 152, 280 
 
 Village of St. Johnsville v. 
 
 Smith 54 
 
 Village of West Springs v. Collins 
 
 1541 
 Villers- Wilkes, In re 488 
 
 Vinton v. Greene 251, 257 
 
 Virgin V. Virgin 660, 661, 679 
 
 Virginia Coal Co. v. Kelly 518 
 
 Viser v. Rice 1438 
 
 Vivian v. Moat 900 
 
 Voege V. Ronalds 947 
 
 Voelckner v. Hudson 659 
 Vogel V. Lehritter 805, 1545, 1552 
 
 V. Webber 311 
 
 Vogelsmeier v. Prendergast 1330 
 
 Voeler v. Geiss 256 
 
 Vollmer's Appeal 289 
 
 Volz V. Steiner 1527 
 
 Von Arb v. Thomas 682 
 
 Von Beck v. Thomsen 1318 
 
 Von Hesse v. MacKaye 450 
 
 Voorhees v. McGinnis 16, 23 
 
 V. Presby. Church 68, 69, 753 
 
 Voorhies v. Burchard 1499 
 
 Voorhis, Matter of 1551 
 
 V. Freeman 21, 25 
 
 Vosburgh v. Teator 1342 
 
 Vose V. Dolaii 1438 
 
 Vosseller v. Slater 1526 
 
 Vossen v. Dautel 179 
 
 Vought V. Vought 7^ 
 
 Vreeland v. Jacobus 662, 680 
 Vreeland's Executors v. Ryno's 
 
 Executor 752 
 
 Vyvyan v. Arthur 837 
 
 W. 
 
 W. B. Cole, The 1489 
 
 Wachter, Matter of 659 
 Wadd V. Hazleton 442, 444, 445, 
 447, 448, 562 
 
 Waddington v. Buzby 1548 
 
 Wade V. Miller 663, 678 
 
 V. Paget 412, 466 
 Wadhams v. Amer. Home, etc. 
 
 Soc. 751 
 
 Wadsworth v. Tillotson 299 
 
 V. Wadsworth 1325 
 
 Wafer v. Mocato 595 
 
 Wager v. Link 1103 
 
 V. Wager 1516 
 
 Wagner v. Hanna 242 
 
 V. Mallory 303, 791, 794 
 
 Wagoner v. Silva 974 
 
 Wagstaff V. Read 577, 1457 
 
 Wainford v. Heyl 472 
 
 Wainwright v. Low 1449 
 
 V. Sawyer 1189 
 
 V. Talcott 658 
 
 Wait V. Baldwin 62 
 
 V. Belding 1546 
 
 V. Bovee 975 
 
 V. Wait 652, 709 
 
 Wake V. Hall 23, 39, 53 
 
 Wakefield v. Newell 240, 301 
 
 Wakeman v. Glover 1499 
 
 Walden v. Conn 845 
 
 Waldorf v. Simpson 1439 
 
CXVl 
 
 TABLE OF CASES CITED. 
 [References are to pages.] 
 
 Wales V. Bogue 
 Walker's Case 
 
 1570 
 
 124, 128, 786, 876, 
 
 880 
 
 Walker's Estate, In re 1464 
 
 Walker v. Boynton 1508, 1509 
 
 V. CUfford 175 
 
 V. Cronin 304 
 
 V. Dalt 542 
 
 V. Deaver 1536 
 
 V. Farmer's Bank 1052 
 
 V. Fletcher 208 
 
 V. Furbush 937 
 
 «. Long 651, 753 
 
 V. Pierce 249 
 
 V. Reeves 870 
 
 V. Schuyler 685, 697 
 
 V. Sherman 22, 30 
 
 V. Shoemaker 845, 850 
 
 V. So. Pac. R. Co. 240, 301, 302 
 
 V. Stetson 293 
 
 V. Townsend 223 
 
 V. Wilson 1523 
 
 Walkerly's Estate, In re 1161 
 
 Wall V. Bissell 987 
 
 V. Hinds 55 
 
 V. Lee 68 
 
 V. Pittsburgh Harbor Co. 296 
 
 t). Wall ■ , 1511 
 
 Wallace v. Berdell 1475 
 
 V. Fletcher 207, 218 
 
 V. Hamstad 134, 388, 1440 
 
 V. Insurance Co. 760 
 
 V. Johnstone 1034 
 
 V. Jones 1425 
 
 V. Kennelly 918 
 
 V. McEchron 994, 1004, 1006 
 
 V. Miller 970 
 
 V. Silsby 1470 
 
 V. Smith 598 
 
 V. Walsh 1364, 1365 
 
 Wallach v. Van Riswick 381, 706, 
 
 1136, 1325, 1333, 1334 
 
 Wallack v. Galton 1033 
 
 Waller v. Armistead 555 
 
 Wallgrave v. Tebbs 536 
 
 WalUs V. Hands 800, 916, 917, 918 
 
 V. WalUs 1393 
 
 Walls V. Acheson 919 
 
 Walsh V. Breman 1042 
 
 V. Erwin 317 
 
 V. Foster 1486 
 
 V. Frey 861 
 
 V. Fiy 906 
 
 V. Lonsdale 119 
 
 V. McBride 508 
 
 V. Powers 1445 
 
 V. Sichles 42 
 
 V. Wilson 718 
 
 Walsh's Adm'x v. Vermont 
 
 Mut. Fire Ins. Co. 475 
 
 Walston V. Smith 511 
 
 Walter v. Greenwood 973 
 
 Walter v. Post 
 
 327 
 
 V. Tompkins 
 Walters v. Bredin 
 
 1227 
 
 1517 
 
 V. Denfenbaugh 
 
 1050 
 
 V. Hutchins 
 
 767, 864 
 
 V. Jordan 
 
 705 
 
 V. Walters 
 
 671 
 
 Walton V. Cronly 
 
 870, 873 
 
 V. FoUansbee 
 
 1348 
 
 V. Lowry 
 
 63 
 
 V. Walton 
 
 522 
 
 V. Waterhouse 
 
 1350 
 
 Walwyn v. Coutts 
 
 449 
 
 Walz V. Walz 
 
 166 
 
 Wanser v. De Nyse 
 
 1424 
 
 Warburton v. White 
 
 980, 981, 982 
 
 Ward V. Bartholomew 1378 
 V. Cochran 1360, 1366, 1367 
 
 V. Cooke 1097 
 
 V. Fagin 857 
 
 V. Hasbrotick 806, 814 
 
 V. Ives 642 
 
 V. Lenthal 1241 
 
 V. Lumley 914 
 
 V. Met. Elec. R. Co. 51, 52, 
 
 256 
 
 V. People 58 
 
 V. Stanard 1389 
 
 V. Ward 512, 515, 641, 961, 
 
 967, 973 
 
 V. Warren 196, 204 
 
 V. Webber 536 
 
 V. Wooten 666, 
 
 Warden v. Adams 1057 
 
 Warder v. Henry 779 
 
 Wardle v. Brocklehurst 172 
 
 Wardwell v. Hale 1161 
 
 Ware v. Chew 275 
 
 ■V. Lithgow 826 
 
 V. Owens 677, 984 
 
 Warfel v. Knott 291 
 
 Warfield v. Lindell 963 
 
 V. Ross 539 
 
 Waring v. Crow 258 
 
 V. King 946 
 
 Warn u. Bickford 1530 
 
 Warner v. Abbey 795 
 
 V. Beach 1559 
 
 V. Conp. Mut. L. Ins. Co. 1237 
 
 V. Fleetwood 24 
 
 V. Grayson 12 
 
 V. Kenning 19 
 
 V. McMulhn 411 
 
 V. Rice 470 
 
 V. Snyder 470 
 
 V. Southworth 287, 292, 1506 
 
 V. Tanner 1021 
 
 V. Van Alstyne 703 
 
 Wamock v. De Witt 317 
 
 V. Harlow 1090 
 
 Warren v. Blake 160, 169, 171, 175, 
 
 177 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 CXVll 
 
 Warren v. Chambers 
 
 1331 
 
 V. Leland 
 
 63 
 
 V. Lynch 
 
 1437 
 
 V. Parkhurst 
 
 299 
 
 V. Twilley 
 
 662 
 
 V. Tynan 
 
 440, 510 
 
 V. Union Bank 517, 519, 1425 
 V. Wagner 129, 830 
 
 V. Westbrook Mfg. Co. 298 
 
 V. Wilder 579 
 
 Warriner v. Rogers 447 
 
 Warrington v. Warrington 977 
 
 Warthen v. Siefert 969 
 
 Washbon v. Cope 1259 
 
 Washburn v. Bumham 1041, 1042, 
 
 1488 
 
 V. Bums 977, 979 
 
 V. White , 933 
 
 Washington Ice Co. v. Shortall 57, 
 
 58, 59 
 Washington Natural Gas Co. v. 
 
 Johnson 871 
 
 Wash. Trust Co. i;. Morse Iron 
 
 Works 33 
 
 Wason V. Davis 1040 
 
 Wass V. Buckman 640 
 
 Water Co. v. Eiioxville 146 
 
 Water Power Co. v. Water 
 
 Comm'rs 59, 239, 297, 1415 
 
 Waterman v. Andrews 1503 
 
 V. Morgan 448 
 
 V. Smith 1412 
 
 V. Soper 66 
 
 V. Webster 1078 
 
 Waters v. Hubbard 1116 
 
 V. Lilley 221, 308, 309 
 
 V. Margerum 615 
 
 V. RandaU 1035 
 
 V. Tazewell 472 
 
 Watertown Steam Engine Co. v. 
 
 Davis 34 
 
 Watkins, Matter of 688 
 
 V. Eaton 972 
 
 V. Goessler 1061 
 
 V. Green 773 
 
 V. Migen 1469 
 
 V. Peck 200, 203, 208, 210, 218 
 V. Thornton 641 
 
 V. Weston 430 
 
 Watriss V. Cambridge First Nat. 
 
 Bk. 43, 44 
 
 Watson V. Almirall 857, 862 
 
 V. Bioren 163 
 
 V. Bryan 796 
 
 V. Gray 286, 292 
 
 I). Hilbnan 1474 
 
 V. Hunter 787, 882 
 
 V. Mercer 1429 
 
 V. New York 1507 
 
 V. Penn 132 
 
 V. Pipes 1464 
 
 V. Smith 613 
 
 Watson V. Watson 637^, 650, 651, 690 
 
 V. Wyman 1061 
 
 Watt V. Trapp 197 
 
 V. Watt 515 
 
 Watters v. Bredin 1011, 1504 
 
 V. Cummins 535 
 
 Wattles V. South Omaha I. & 
 
 C. Co. 830 
 
 Watts, Ex parte 598, 655 
 
 Watts, Matter of 1157 
 
 V. Ball 641 
 
 V. Julian 679 
 
 II. Julien 1123, 1126 
 
 V. Kelson 172, 173, 179 
 
 V. Welman 1527, 1528 
 
 Watuppa Reservoir Co. v. City 
 
 of Fall River 147, 298, 1405, 
 1415 
 Waverly v. Page 301 
 
 Waverly Water Front, etc. Co. 
 
 V. White 1510 
 
 Way V. Hooton 1355 
 
 Weale v. Lower 1173, 1203 
 
 Weart v. Cruser 618 
 
 Weatherall v. Thomburgh 1286 
 
 Weatherby v. St. Giorgio 580 
 
 Weaver v. Barden 579 
 
 V. Gregg 661, 662 
 
 V. Jones 125 
 
 V. Rush 664 
 
 V. Sturtevant 663 
 
 Webb V. Bird 277 
 
 V. Haeffer 1120 
 
 V. Hoselton 1061 
 
 V. Jones 1558 
 
 V. MuUins 1439, 1440 
 
 V. Plummer 66 
 
 V. Russell 831, 915 
 
 V. Sweet 1181 
 
 V. Townsend 685 
 
 V. Trustees, etc. 647 
 
 V. Wools 456 
 
 Webber v. Chapman 209, 218 
 
 V. Gage 269 
 
 Weber v. Bridgman 1210 
 
 V. Rogers 949 
 
 V. Tanner 750, 752 
 
 Webster v. Calden 1055 
 
 V. Clear 1413 
 
 V. Ellsworth 647 
 
 V. Harris 1511 
 
 V. Kmgs Co. Trust Co. 1472 
 
 V. Luther 1409 
 
 V. Morris ■ 492 
 
 V. Nichols 837 
 
 V. Potter 1499 
 
 V. Stevens 163, 286 
 
 V. Trust Co. 759, 1527, 1528 
 
 V. Van Deventer 955, 964, 
 
 987 990 
 
 V. Webster 767^ 782 
 
 V. Wiggins 480 
 
CXVIU 
 
 TABLE OP CASES CITED. 
 
 [References are to pages.] 
 
 Wedge V. Moore 
 Weed V. Pierce 
 Weeke's Settlement, In re 
 Weekley v. Weekley 
 Weeton v. Woodcock 
 Wegge V. Madler 
 
 681 
 
 562 
 
 467 
 
 51 
 
 42 
 
 1508 
 
 Weiant v. Rockland Lake Trap 
 
 Rock Co. 1502 
 
 Weigmaim v. Jones 273, 289 
 
 Weil V. Abrahams 863 
 
 Weill V. Baker 287, 292 
 
 Weimar v. Fath 1222 
 
 Weinstein v. Weber 1238 
 
 Weir V. Tate 683, 684, 726 
 
 Weis V. Meyer 262 
 
 Weisinger v. Murphy 651 
 
 Weiss V. Heitcamp 526 
 
 V. I/evy 941 
 
 V. Mendelson 916 
 
 V. South Bethlehem 217, 1342 
 
 Weissenfels v. Cable 1457 
 
 Welby V. Thomagh 533 
 
 Welch V. Brimmer 647 
 
 V. Chandler 643 
 
 V. Button 1399 
 
 V. McGrath 550 
 
 V. PoUey 519 
 
 V. Wadsworth 101 
 
 Welcome v. Hess 919 
 
 Weld V. Nichols 294 
 
 V. Sabin 1069 
 
 Well's Trust, In re 1240 
 
 Weller v. Weller 1475 
 
 Welles V. Bailey 1329 
 
 V. Castles 462 
 
 V. Garbutt _ 1051 
 
 Wellesley v. Momington 568 
 
 Wellford v. Chancellor 551 
 
 Welling V. Ryerson 1060 
 
 Wells, Matter of 1562, 1563 
 
 Wells V. Batts 751 
 
 V. Beall 699 
 
 V. Betts 655 
 
 V. Cowles 51 
 
 V. Garbutt 169, 175, 289 
 
 i;. Jackson Iron Mfg. Co. 1505 
 
 V. Miller 1084, 1503 
 
 V. Seeley 1303 
 
 V. Tohnan 247 
 
 V. Van Dyke 1066, 1422 
 
 V. Waterhouse 534 
 
 V. Wells 1122 
 
 Welsh V. Phillips 1059 
 
 V. Taylor 211, 258, 261, 262 
 
 Wendell v. People 1415 
 
 Wendt V. Walsh 424, 460, 461, 
 
 465, 494 
 
 Wentworth v. Abbetts 1376 
 
 V. Poor 251 
 
 V. Portsmouth & D. R. Co. 797 
 
 Werians v. Peebles 1457 
 
 Werner v. Padula 133, 824 
 
 Werner v. Tuch 
 
 V. Zierfuss 
 Wertheimer v. Hosmer 
 Wescott V. Binford 
 Wessel V. Rathjohn 
 West V. Berney 
 
 V. Fitz 
 
 V. Freude 
 
 V. Knight 
 
 V. Lassels 
 
 V. Moore 
 
 1105 
 
 563 
 
 817, 1177 
 
 1180 
 
 1475 
 
 1242, 1243 
 
 595 
 
 935 
 
 475 
 
 131 
 
 62 
 
 V. Stewart 54. 55, 1523 
 
 V. Walker ' 735, 737 
 
 West Cemetery v. P. P. & C. R. 
 
 Co. 235 
 
 West Chicago Ass. v. Cohn 903, 
 
 905 
 West Chicago R. Co. v. Chicago 297, 
 
 298 
 West Co. V. Lea 56 
 
 West Point Iron Co. v. Reymert 166 
 West Seattle L. & I. Co. v. 
 
 Novelty Mill Co. 1344 
 
 West Shore R. Co. v. Wenner 53, 
 
 818 
 West Union Tel. Co. v. Shepard 52, 
 
 231 
 
 V. Williams 233 
 
 Westbrook v. Vanderburgh 745 
 
 Westcoat v. Wilson 993 
 
 Westcott V. Cady 954, 970 
 
 V. Campbell 697 
 
 V. Middleton 601 
 
 Westerly Sav. Bk. v. Stillman 
 
 Mfg. Co. 1043 
 
 Western v. McDermott 1539 
 
 Western R. Co. v. Ala. G. T. R. 
 
 Co. 232 
 
 Westgate v. Wixon 28 
 
 Westinghouse v. German Nat. 
 
 Bk. 574 
 
 Westlake v. De Graw 857 
 
 V. Wheat 443, 445 
 
 Westmoreland & C. Nat. Gas 
 
 Co. V. De Witt 57, 240, 303, 787, 
 
 882 
 
 Weston V. Arnold 293 
 
 V. Foster 619, 1011 
 
 V. Sampson 308 
 
 V. Stoddard 994, 996, 1002, 
 
 1004, 1005, 1006 
 
 V. Weston 17, 947 
 
 Westphal v. City of New York 305 
 
 Wetherbee v. Ellison 66 
 
 Wetmore v. Brace 160, 1527, 1528 
 
 V. Carryl 1557 
 
 V. Fisk 248 
 
 V. Parker 499, 1546 
 
 V. Wetmore 471 
 
 Wetyen v. Fick 724 
 
 Weyaud v. Tipton 1432 
 
 Weyh V. Boylan 1062 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 CXIX 
 
 Weyl V. S. V. R. Co. 232 
 
 Weyman v. Ringold 287, 292 
 
 Whalen v. Cadman 757 
 
 V. Manchester Land Co. 170 
 
 Whaley v. Roehrich 25 
 
 V. Stevens 215 
 
 Whalin v. White 889 
 
 Whan V. Steingotter 1500 
 
 Wharf V. Howell 1035 
 
 Wharton v. Garvin 1513 
 
 V. Masterman 1287 
 
 V. Wharton 615 
 
 Wheatfield v. Gnindmann 217, 222 
 
 Wheatley v. Calhoun 677 
 
 V. Chrisman 158 
 
 Wheaton v. Maple 207 
 
 Wheeldon v. Burrows 170 
 
 Wheeler v. Clark 205 
 
 V. Glutterbuck 1311, 1312 
 
 V. Frankenthal 807 
 
 V. Hotchkiss 652 
 
 V. Kirkland 50 
 
 V. Kirtland 508, 509, 660, 
 
 661, 718, 723 
 
 V. Reynolds 158 
 
 V. Spinola 1358, 1502, 1512 
 
 V. West 321 
 
 V. Young 1339, 1350 
 
 Wheelook v. Cavitt 1483 
 
 V. Warschauer 897 
 
 Wheelwright v. Wheelwright 1472 
 
 Whelen v. Phillips 540 
 
 Whelock V. Thayer 1526 
 
 Whetstone v. Hunt 1516 
 
 Whicker v. Hume 477, 479 
 
 Whipple V. Fairchild 1189 
 
 V. Foote 62 
 
 Whitaker v. Brown 165 
 
 V. Greer 699 
 
 V. Hawley 120 
 
 V. McBride 297, 1511 
 
 V. Whitaker 1474 
 
 Whitbeck v. Cook 1524 
 
 Whitcomb v. Starkey 874 
 
 White's Will 1555 
 
 White, Matter of 1548 
 
 V. Amdt 45 
 
 V. Berry 919 
 
 V. Bradley 227, 274, 275, 276 
 
 V. Brooks 990 
 
 V. Burnley 1362 
 
 V. Carpenter 508 
 
 V. Chapin 306 
 
 V. Clarke 660 
 
 V. Cutler 767, 768, 782 
 
 V. Ditson 480 
 
 V. Dresser 239, 247, 268 
 
 V. Fish 484 
 
 V. Foster 63, 64, 149^ 
 
 V. Godfrey 1507 
 
 V. Hicks 1237, 1239 
 
 V. Howard 500. 603 
 
 White V. Hunt 870 
 
 V. Kauffman 1044 
 
 V. Luning 1504 
 
 V. Manhattan R. Co. 253, 256, 
 258, 324, 328 
 V. Miller 1578 
 
 V. Nassau Trust Co. 214, 247, 
 280, 281 
 V. N. Y. & N. E. R. Co. 165 
 
 V. Nuptial Benefit Union 541 
 V. Patten 1339, 1349 
 
 V. Rittenmeyer 1049, 1071 
 
 V. Ross 440 
 
 V. Stellwagon 892 
 
 V. Story 178, 695 
 
 V. Trustees British Museum 
 
 1551 
 V. Wager 753 
 
 V. White 414, 477, 488, 490, 
 
 653, 740, 741 
 V. Whitney 1536 
 
 V. Wiley 216 
 
 V. Willard 1201 
 
 V. Williams 1039, 1503 
 
 V. Willis 685 
 
 V. Y. M. C. A. 8,59 
 
 White's Bank v. Nichols 256, 257, 
 
 259, 273 
 
 Whitehead v. Kennedy 553 
 
 V. Nickelson 757 
 
 V. Woodruff 1575 
 
 Whitehouse v. Bolster 536 
 
 V. Cunmiings 180, 181 
 
 V. Whitehouse 446 
 
 Whiteside v. Cooper 1164, 1249 
 
 Whitfield V. Garnss 596 
 
 V. Harris 1472 
 
 Whiting V. Brastow 45 
 
 V. Burke 1084 
 
 V. Dyer 507 
 
 V. Edmonds 123, 897, 899, 900, 
 901, 1368 
 V. Gaylord 286, 287 
 
 V. Wliiting 1369 
 
 Whitley v. Davis' Lessee 1466 
 
 V. Johnson 1347, 1350 
 
 "V^itlock V. Washburn 1210 
 
 WJiitman v. Lex 477 
 
 Whitmarsh v. Cutting 63, 769 
 
 V. Walker 63, 322 
 
 Whitmore v. Pulp Co. 858 
 
 Whitney v. Allaire 843 
 
 V. Brown 950 
 
 V. Buekman 1494 
 
 V. Foster 1043 
 
 V. Lee 163 
 
 V. Olney 1499 
 
 V. Taylor 1408 
 
 V. Union R. Co. 167 
 
 V. Whitney 675 
 
 Whittaker v. Pendola 1412 
 
 V. Whittaker 617 
 
cxx 
 
 TABLE OP CASES CITED. 
 [Befereoces are to pagee.} 
 
 Whitten r. Whitten 995, 1004 1 
 
 Whittenton Mfg. Co. v. Staples 248 
 Whittder v. Cocheco Mfg. Co. 199, 
 
 250 
 
 V. Winkfey lg2, 183 
 
 WMtton V. Whitton 971 
 
 Whitworth V. McComb 222 
 
 Wholey v. Cavanaugh 1388, 1398 
 
 Whyddon's Case 1471 
 
 Whyte V. Binldeis' League 171 
 
 Wick V. Bredm 16, 18 
 
 r. McGinnis 16 
 
 Wicke's Estate, In re 1548 
 
 Wickeriiam v. Oix 1543 
 
 Wickeisham v. Crittenden 557 
 
 V. Orr 158, 291. 329 
 
 v. Savage 1228 
 
 Anckham v. Bawker 308, 309 
 
 "Wicklund v. lindquist 1468 
 
 Wieland v. Kobick 1443 
 
 Wigg V. Vaiers 1206 
 
 Wiggin V. Heywood 1071 
 
 r. Wiggin 897 
 
 Wiggins Feny Co. v. Ohio & 
 
 M. R. R. Co. 15, 20, 39, 56 
 
 Wigglesworth v. Dallison 768, 769 
 
 Wightman v. CatUn 849 
 
 V. Reynolds 1348 
 
 r. Schliefer 715 
 
 WUber v. Wilber 715, 1160, 1271, 
 
 1276 
 
 Wilcocks V. Hannyngton 443 
 
 Wilcox V. Bread 1512, 1514 
 
 V. Hines 858 
 
 V. Jackson 1412 
 
 V. McCIellan 799 
 
 t>. Musche 1529 
 
 V. Randall 677, 678 
 
 r. Wheeler 594 
 
 Wilcosson V. Idler 1091 
 
 WUd V. Ddg 237 
 
 Wilde V. Smith 456 
 
 Wilder, Matter of 1511 
 
 V. Brooks 753 
 
 r. Ranney 1221 
 
 u. St. Paul 221, 223, 258 
 
 V. Wheeler 242 
 
 WUes V. Peck 714, 1447 
 
 Wiley r. Hunter 300 
 
 r. Wiley 780 
 
 Wilgus V. Lewis 950 
 
 Wilhelm v. Federgreen 1373 
 
 V. Lee 1055 
 
 r. Wilken 1390, 1398, 1399, 
 
 1459 
 
 Wilkesbarre v. Wyoming Eist. 
 
 Soc. 594 
 
 Wilkin, Matter of 468 
 
 WilHns r. McGehee 1078 
 
 r. Wingate 880, 884, 896 
 
 r. Young 957, 965 
 
 Wilkinson v. Buist 1221 
 
 
 229 
 
 r. Paddock 
 
 712 
 
 V. Parish 
 
 675, 997 
 
 V. Scott 
 
 145S 
 
 V. Wilkinson 
 
 541. 782 
 
 Wilks V. Bums 
 
 1224 
 
 Willaidr. Denise 
 
 573 
 
 r. Willard 
 
 991, 1572 
 
 Willcox v. Hines 
 
 907 
 
 Willet V. Brown 
 
 676 
 
 Willets r. Willets 
 
 453,456 
 
 Willetts V. Brown 
 
 1039 
 
 Willey V. Greenfield 
 
 1375 
 
 William & Anthony Streets, 
 
 Matter of 921 
 
 William Deering & Co. v. Beard 759 
 
 WiUiams' App^ 24, 569 
 
 Williams, Matter of 471 
 
 V. AngeU 1186 
 
 r. Baker 651 
 
 V. Bayley 544 
 
 V. Bolton 787 
 
 17. Carle 566 
 
 V. Council 1376 
 
 V. Cowden 1013 
 
 V. Cox 684 
 
 V. Dakin 1016 
 
 V. Day 780 
 
 V. Deiiar 924 
 
 V. Downing 843, 1385 
 
 V. Eaile 837 
 
 V. Fitzbough 540 
 
 V. Haddock 50, 530, 569, 
 570, 571 
 
 17. Hay 283, 284 
 
 V. Hilton 987, 1116 
 
 V. James 246 
 
 V. Jewett 290 
 V. Jones 522, 1193, 1194 
 
 V. Kershaw 481, 523 
 
 V. Eiemey 671 
 
 17. Eimball 1315 
 
 V. Knight 1180 
 
 V. Laden 940, 945, 946 
 
 V. Lambe 704 
 
 17. Magee 1467 
 
 V. Morris 322 
 
 17. Xelson 200 
 
 17. X. Y. Cent. R. Co. 231 
 
 17. Paine 1446 
 
 V. Pearson 485 
 
 17. Sheldon 1417 
 
 17. Short 836 
 
 17. Teachey 1059 
 
 17. Thome 471 
 
 17. Vanderbilt 818, 917 
 
 17. Van Geison 1104 
 
 17. Vreeland 532 
 17. Williams 456, 474, 475, 477, 
 
 49S, 512, 576, 663, 710, 1291, 
 1470, 1474 
 
 17. Wingo 146, 147, 1413 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 CXXl 
 
 Williamsburgh Savings Bk. v. 
 
 Town of Solon 1441 
 
 Williamson v. Brown 574, 575 
 
 V. N. J. So. R. Co. 21, 57, 1051 
 V. WilUamson 1533, 1534 
 
 Williamston, etc. R. Co. v. Battle 158 
 Willington v. Gale 1071 
 
 Willion V. Berkley 604, 606, 608 
 
 Willis V. Eastern Trust & Bank- 
 ing Co. 886, 1054 
 V. Erie T. & T. Co. 233 
 II. Gottman 1483 
 V. McKinnon 901 
 V. Moore 61 
 V. Willis 513 
 WilUson V. Watkins 126, 899, 900, 
 
 936 
 
 Willoughby V. Horridge 148 
 
 Wills V. Cooper 466 
 
 Wilmot V. Lathrop 972 
 
 Wilmurt V. McGrane 274, 1541 
 
 Wilson's Appeal 1575 
 
 Wilson V. Allen 462 
 
 V. Alston 1344, 1347 
 
 V. Anderson 450 
 
 V. Blake 1362 
 
 V. Branch 1443 
 
 V. Cluer 1065 
 
 V. Cochran 1529, 1537, 1541 
 
 V. Craig 705 
 
 V. Edmonds 776, 778 
 
 rJlnch 861 
 
 V. Fisher 1344, 1347 
 
 V. Forbes • 59 
 
 V. Hildreth 1504 
 
 V. Hunter 1499 
 
 V. Lyon 1038, 1040 
 
 V. Marion 575 
 
 V. New Bedford 302 
 
 V. Odell 1288 
 
 V. ParshaU 1042, 1043 
 
 V. Prescott 947 
 
 V. Proctor 758 
 
 V. Taylor 923, 926 
 
 V. Troup 1119, 1212, 1213 
 
 V. Vanstone 1077, 1108 
 
 V. Waddell 284 
 
 V. Widenham 1521 
 
 V. Wightman 170 
 
 V. Wilson 692, 976, 1014 
 
 Wibton V. Pilkney 914 
 
 Wiltshear v. Cottrell 23 
 
 Wiltshire v. Sidford 286 
 
 Wimbleton & Putney Commons 
 
 Conservators v. Dixon 246 
 
 Wimer v. Simmons 261 
 
 Wimple V. Fonda 1164 
 
 Winant v. Hines 917 
 
 Windham v. Portland 665 
 
 Wmdt V. German Ref. Church 70 
 Winfield v. Hennesy 185, 187 
 
 V. Henning 836 
 
 Wing V. Carr 
 
 1579 
 
 V. Chase 
 
 1468 
 
 V. Cooper 
 
 1042 
 
 V. Gray 
 
 40 
 
 Winham v. McGuire 
 
 325 
 
 Winlock V. Hardy 
 
 1351 
 
 Winn V. Abeles 
 
 280, 1367 
 
 Winne v. Ulster Co. Sav. Inst. 330 
 Winnepesaukee C. M. Ass'n v. 
 
 Gordon 620, 1016 
 
 Winnepiseogee Lake Co. v. 
 
 Young 197 
 
 Winnipisiogee Paper Co. v. N. K. 
 
 Land Co. 1512 
 
 Winniposeokee P. Co. v. Eaton 1533 
 Winona & St. Peter R. Co. v. 
 
 Barney 1410 
 
 Winship v. Pitts 777, 783 
 
 Winslow V. Baltimore 811, 947 
 
 V. Bait. & O. R. Co. 1220 
 
 V. Cooper 1514 
 
 V. Merchants' Ins. Co. 24 
 
 V. Ti^e 552 
 
 Winslow Bros. Co. v. McCully 
 
 Stone Mason Co. 1576 
 
 V. Reed 1509 
 
 Winsor v. Mills 598, 1262, 1264, 1273, 
 
 1275 
 
 Winstell v. Hehl 878 
 
 Winston v. Hodges 1462 
 
 V. Johnson 165 
 
 Winter v. Brockwell 329 
 
 V. N. Y. & N. J. Tel. Co. 233 
 
 V. Peterson 1507 
 
 Winterbottom v. Ingraham 933 
 
 Winterboume v. Morgan 844 
 
 Wintermute v. Light 61 
 
 Winthrop v. Fairbanks 165, 167 
 
 Wisconsin Central R. Co. v. 
 
 Forsythe 1410, 1413 
 
 Wiscot's Case 616, 959, 966, 992 
 
 Wisdom V. Reeves 1467 
 
 Wise V. Hyatt 963 
 
 Wiseman v. Lucksinger 157, 158, 
 
 204, 205, 325, 326 
 
 Wisnall v. Wilkins 960 
 
 Wissell V. Ott 938, 1316 
 
 Wissler v. Hershey 180 
 
 Witbeck v. Van Rensselaer 884 
 
 Witby V. Mumford 1539 
 
 Witham v. Bland 1045 
 
 V. Brooner 1383 
 
 V. Perkins 637, 651 
 
 Withers v. Jenldns 639, 647 
 
 V. Larrabee 923, 930 
 
 V. Yeadon 1232 
 
 Witherspoon v. Duncan 1412 
 
 Withington v. Warren 1476 
 
 Withy V. Mumford 839, 1536" 
 
 Witmark v. N. Y. El. R. R. Co. 916, 
 
 917 918 
 Witthaus V. Schack 711,' 712 
 
cxxu 
 
 TABLE OP CASES CITED. 
 [Beferences are to pages.] 
 
 VPltty V. Acton 886 
 
 Woerz V. Rademacher 494, 497, 515 
 
 516, 1226 
 
 Wolcott V. Johns 1473 
 
 Wolf V. Bollinger 1566, 1557 
 
 V. Dozer 807 
 
 V. Hunter 1490 
 
 V. Kilpatrick 903 
 
 V. Theresa Village Fire Ins. 
 
 Co. 1035 
 Wolfe V. Frost 293, 320, 324, 327 
 
 330 
 
 V. Larison 696 
 
 V. Lynch 1427 
 
 V. Van Nostrand 1185 
 
 Wolfie V. Wolffe 808, 929 
 
 Wolters D. Shraft 511 
 
 Womadc v. McQuarry > 855 
 
 Women's Church Ass'n v. Camp- 
 
 beU 487, 488 
 
 Wonderlin v. Cadogan 1456 
 
 Wood, In re 1270, 1327 
 
 V. Abrey 539 
 
 V. Beach 1394, 1413 
 
 V. Boyd 165 
 
 V. Bumham 426, 429 
 
 V. Chapin 1394, 1399 
 
 V. Copper Miner's Co. 266 
 
 V. Cox 441, 522 
 
 V. Craft 538 
 
 V. Downes 553 
 
 V. Drew 1271 
 
 V. Fleet 993 
 
 V. Fowler 59 
 
 V. Goodwin 1073 
 V. Griffin 778, 1142, 1275 
 
 V. Hammond 1215, 1451 
 
 V. Harper 1088 
 
 V. Hewitt 56 
 
 V. HubbeU 854 
 
 V. Irwin 551 
 
 V. Kelley 197 
 
 V. Keyes 693 
 V. Leadbitter 322, 323, 324, 325 
 327, 330, 1466 
 
 V. Manley 322 
 
 V. M. A. L. R. Co. 324 
 
 V. Mich. Air line 328 
 
 V. Morehouse 1432 
 
 V. Movehouse 1422 
 
 i;. Panie 480 
 
 V. Partridge 132 
 
 V. Phillips 889, 950 
 
 V. PoweU 694 
 
 V. Rabe 515, 516 
 
 V. Robinson 579 
 
 V. Seaver 1562 
 
 V. Seely 720 
 
 V. Sharpies 852 
 
 V. Taylor 1517 
 
 V. Trask 1050 
 
 V. Veal 207 
 
 Wood V. Wand 306 
 
 V. Wentz 920 
 
 V. Wood 709 
 
 Woodbeck v. Wilders 993 
 
 Woodbridge Co. v. Hires Co. 910 
 
 Woodbum's Estate 741 
 
 Woodbury v. Allan 262 
 
 V. Parsley 327 
 
 V. Short 1330 
 
 Woodfill V. Patton 1555 
 
 Woodgate v. Fleet 875, 1141, 1281, 
 
 1421, 1423 
 
 Woodhaven Jiinction Land Co. v. 
 
 Solly 186, 192 
 
 Woodhull V. Little 1001, 1002 
 
 V. Longstreet 991 
 
 V. Rosenthal 1498 
 
 Woodin V. Wentworth 300 
 
 Woodlee v. Burch 1064 
 
 Woodman v. Pease 16 
 
 V. Pitman 59 
 
 V. Spencer 1506 
 
 V. York & C. R. Co. 1465 
 
 Woodruff V. Adair 1037 
 
 V. Cook 628, 1152, 1195 
 
 V. Erie R. R. Co. 896 
 
 V. Morristown Sav. Inst. 1060, 
 
 1061 
 
 V. Oswego Starch Factory 137, 
 
 798, 1385 
 
 V. Paddock 261 
 
 V. Woodruff 1463 
 
 Woods, Goods of 1550 
 
 V. Hildebrand 1440 
 
 V. Hull 1368 
 
 V. Rose 1489 
 
 Woodside v. Adams 1052 
 
 V. Hewell 509, 510 
 
 Woodward v. Dowse 705 
 
 V. James 412, 500 
 
 V. Jewell 580 
 
 V. Sartwell 1398 
 
 V. Seeley 323 
 
 Woodworth v. Payne 68, 588, 593 
 
 V. Raymond 177, 178 
 
 WooUey, Den. d. v. Brewer 1345 
 
 Woolmer's Estate 523 
 
 Woolridge V. Lucas 650 
 
 Woolsey, Matter of 236 
 
 V. Chapman 1410 
 
 V. Funke 19 
 
 V. X. Y. El. R. Co. 231 
 
 Woonsocket Sav. Inst. v. Ballou 1044 
 
 Wooster v. Cooper 1241 
 
 Worcester v. Georgia 386 
 
 V. Green 307 
 
 Workman v. Curran 195, 201, 202, 
 
 206 
 Worrell v. Forsyth 737 
 
 Worrill V. Wright 1258 
 
 Worthing v. Webster 1432 
 
 Worthington v. Cooke 131 
 
TABLE OP CASES CITED. 
 [References are to pages.] 
 
 CXXIU 
 
 Worthington v. Gimson 206 
 Worthley v. Burbanks 1361 
 Wotten V. Shirt 140 
 Wotton, Goods of 1550 
 Wragg V. Comptroller-Gen. 1038 
 Wren v. Wren 981 
 Wright V. Astoria Co. 1471 
 V. Cartwright 799, 1204 
 V. De Groff 720 
 ■u. Denn 1044 
 V. Du Bignon 40 
 V. Dunham 1433 
 V. Holford 1170 
 V. Killiam 318 
 V. Lancaster 1456 
 V. Macdonnell 44 
 V. Manifold 1552 
 V. Methodist Church 1562 
 V. Moore 199 
 V. Nipple 92, 1524 
 V. Page 593, 594 
 V. Pearson 429, 430, 441 
 V. Proud 553, 555 
 V. Roseberry 1413 
 V. Saddler 1325, 1448, 1449 
 V. Smith 546 
 V. Sperry 1523 
 V. Swan 1412 
 V. SyracuseO.&N. Y.R. Co. 1378 
 V. Tallmadge 1220 
 V. Trustees of M. E. Church 632 
 V. Vanderplank 547 
 V. Wakeford 1224, 1225 
 V. White 1160 
 V. Williams 306 
 V. Wright 441, 539, 540 
 Wright ex dem. Plowden v. Cart- 
 wright 1199 
 Wrigley V. Swainson 566 
 Wronkow v. Oakley 715, 1447 
 Wrotesley v. Adams 1140, 1516 
 Wunder v. McLean 903 
 Wusthoff V. Schwartz 848, 849 
 Wyatt V. Harrison 280 
 Wyckoff V. Gardner 978 
 Wylie V. Charlton 444 
 Wyman v. Ballard 1528, 1531 
 V. Brown 1402 
 V. Oliver 684 
 V. Woodbury 456 
 Wynn v. Sarer 518 
 Wynne v. Alexander 1513 
 V. Alston 1038 
 Wyse V. Russell 849 
 Wythes v. Lee 571 
 
 Xenos V. Wickham 
 
 1461 
 
 Yackle v. Wightman 
 Yale V. Dederer 
 Yancey v. Tatlock 
 Yandes v. Wright 
 Yanish v. Tarbox 
 
 1572 
 
 714, 1447 
 
 1530 
 
 283 
 
 1504, 1505 
 
 Yankee Jim's Water Co. v. Crary 261 
 
 Yard's Appeal 503 
 
 Yater v. Mullen 54 
 
 Yates V. Compton 1216 
 
 V. Milwaukee 1510 
 
 V. Paddock 659 
 
 V. Van De Bogert 382 
 
 V. Yates 498 
 
 Yates Co. Nat. Bk. v. Baldwin 1057 
 
 Yeackle v. Litchfield 543, 548, 549 
 
 Yeakle v. Nace 261 
 
 Yearely v. Yearely 1045 
 
 Yelverton v. Yelverton 414 
 
 Yeo V. Mercereau 671 
 
 Yocum V. Siler 696 
 
 Yonge V. Hooper 546 
 
 York V. Stone 965 
 
 York Bank's Appeal 1571 
 
 Yorty V. Paine , 1497 
 
 Youman's WiU, In re 1175, 1177 
 
 Young V. Bankier Distillery Co. 298 
 
 V. Baxter 36 
 
 V. Chandler 39 
 
 V. Commissioners 488 
 
 V. Dake 1184, 1201 
 
 V. Easley 470 
 
 V. Frost 1002 
 
 V. Martin 451 
 
 V. McNeill 1369 
 
 V. MiUer ' 1058 
 
 V. Raincock 1522 
 
 V. Schofield 1575 
 
 V. Steams 1472 
 
 V. Tarbell 687 
 
 V. Wilson 1576 
 
 V. Young 442, 446, 447, 671 
 
 Youiig Women's Christian Home 
 
 V. French 1010 
 
 Youngblood v. Sexton 864 
 
 Youngman v. E. & W. R. Co. 56 
 
 V. Ehnira, etc. R. Co. 1050 
 
 Youngs V. Carten 561 
 
 V. Youngs 524 
 
 Yount V. Yount 544 
 
 Z. 
 
 Zacharie v. Franklin 1464 
 
 Zaclimann v. Zachmann 735, 737 
 
 Zahrt, In re 740, 743 
 
 Zapf V. Carter 1363, 1364 
 Zapp V. Miller 961, 962, 963 
 
 Zeininger v. Sehnetzler 288 
 
 Zeisweiss v. James 479, 488 
 
CXXIV 
 
 TABLE vOP CASES CITED, 
 [Beferences are to pages.] 
 
 Zell V. First Universalist Soc. 163 
 Zeller v. Eckert /• 899 
 
 V. Southern Yacht Club 1331 
 Zerbe v. Miller 563 
 
 Zerbey v. Allan 204, 264 
 
 Zimmerman v. Barber 511, 512 
 
 V. Lebo 442 
 
 Zunmerman v. Streeper 446 
 
 Zipp V. Barker ~ 191 
 
 Zoeller v. Riley 563 
 
 Zorkowski v. Astor 825, 947 
 
 Zorntlein v. Bram 975 
 
 Zouch V. Parsons 801, 1442 
 
 Zundell v. Gess 512 
 
THE 
 
 LAW OF REAL PROPERTY. 
 
 INTRODUCTION AND OUTLINE. 
 
 CHAPTER I. 
 
 PROPERTY EXPLAINED AND CLASSIFIED. 
 
 Plan of this treatise. 
 Property defined. 
 Exelusive appropriation. 
 Divisions of property — Civil 
 
 §1- 
 §2. 
 
 §3. 
 
 §4. 
 law. 
 
 § 5. Divisions of property — 
 Early common law — Movable and 
 immovable. 
 
 § 6. Divisions of property — 
 
 Goods and chattels — Lands, tene- 
 ments, and hereditaments. 
 
 § 7. Divisions of property — Real 
 and personal. 
 
 §8. Leading distinctions be- 
 tween real property and personal 
 property. 
 
 § 9. Property which is sometimes 
 real and sometimes personal. 
 
 § 1. Plan of this Treatise. — The "everlasting hills" are 
 not more ancient than many of the legal princi pies ^ that reg- 
 ulate their ownership and use. The geology of jurisprudence 
 discovers and explains those principles, fixed or operating in 
 human institutions. As any conception of the earth is neces- 
 sarily imperfect, -which ignores the teachings of its strata, 
 rocks, and fossils, so any discussion of law — and especially of 
 the law of real property — which fails to deal with the splen- 
 did history and development of its subject, must be not only 
 incomplete, but also to some extent erroneous. It is for this 
 reason that much space is devoted in the following pages to 
 the unfolding of modern elements of the law of realty from 
 ancient practice, thoughts, and theories. In no other way can 
 they be thoroughly understood. Therefore the simple plan of 
 this treatise, after explaining its general subject-matter and 
 dividing it into its four natural departments, — I. Lands, tene- 
 
2 INTRODUCTION AND ODTLINE. 
 
 ments, and hereditaments ; II. Holdings of these ; III. Estates 
 in them ; and IV. Titles to them, — is to endeavor, as to each 
 of these divisions and its subdivisions, first to make clear its 
 meaning and nature as they appear from history and present 
 usage, and then to unfold and explain the rules and prin- 
 ciples of law that have grown up around it through the 
 centuries. 
 
 § 2. Property defined. — The idea of exclusiveness is the 
 essential feature of all adequate definitions of property that 
 have been formulated by jurists or philosophers. The state- 
 ment, therefore, that property is something which one owns, 
 to the exclusion of every other person, may be sufficient to con- 
 vey a definite and practical conception of its meaning. But 
 since the time when the word came into frequent use in the 
 common law, which was probably not earlier than the begin- 
 ning of the eighteenth century,^ it has been employed by the 
 best writers in many different senses. Among these various 
 meanings there are three most frequent and prominent, which 
 are especially the most important in connection with the sub- 
 ject-matter of this treatise. 
 
 (1) The term " property " is often used to denote the object 
 or thing to which a right of ownership may attach. Such is 
 its signification when it is said that a certain book, or horse, 
 or farm is the property of a designated person; that one's 
 property is situated in a specified county or city ; or that all 
 property has been divided into things movable and things im- 
 movable.2 (2) Again, it is employed to indicate the right or 
 interest which one has in a thing to the exclusion of all other 
 individuals. Thus a man is said to have property in mills, or 
 mines, or land ; and when an article is bailed, the general 
 property in it remains in the bailor, while the possession passes 
 
 1 "As to property, thoagh through- kinde of properties; a general prop- 
 out the middle ages the French and ertie, which erery absolute owner hath ; 
 Latin forms of the word occasionally and a special propertie'), but in the 
 occur, and the use of it is insured by the Year Books it is by no means com- 
 writ de proprietate probanda, we believe men." 2 Pollock & Maitland, Hist. Eng. 
 that until the last century it was far Law (2d ed., 1899), p. 153, 
 less frequent than would be supposed ^ Standard Diet., " Property," 1. 
 by those who have not looked for it in This is the sense in which the word 
 the statute book. Instead of property must be used in the discussion of es- 
 in the Taguer of the two senses which tates in real property. The properti/, or 
 it now bears, men used possessions and object of ownership, is then thought of 
 estate. In a narrower sense properti/ , as one thing, and ths interest or estate 
 was used as an equivalent for best right in it, as another. See Long Is. R. Co. v. 
 (e. g. Co. Lit. 145 b ; ' But there be two Garvey, 159 N. Y. 334, 337 ; § 292, infra. 
 
PROPERTY EXPLAINED AND CLASSIFIED. 3 
 
 to the bailee.^ (3) The word is very frequeiitlj uaed to em- 
 brace anything and everything that may be owned by one per- 
 son to the exclusion of others, — the external objects themselves 
 and the rights and interests which may exist in connection 
 with them. This last sense includes the other two, and is the 
 broadest and loosest, though perhaps at the present time the 
 most commonly employed, meaning of the term. When a man 
 speaks of all his property, he is usually employing the word 
 with this sweeping signification. He may thus include, for 
 example, a house and lot which he owns absolutely and all his 
 right and interest in the same, a life estate in an adjoining 
 acre of land the residue of which is owned by some other per- 
 son, a perpetual right to cross a neighbor's field, the furniture 
 in his dwelling-house, the cattle upon his farm, shares of stock 
 in a corporation, and a chose in action arising from contract or 
 tort.2 
 
 The second of these three classes of definitions is logically 
 and theoretically correct. There is, of course, an ownership, 
 an exclusive appropriation Qproprietas) of a thing, a dominion 
 over it, as distinguished from the thing itself. It would have 
 conduced to clearness and precision, of thought if legislators, 
 judges, and jurists had always agreed in confining their use of 
 the word property to this etymologically and philosophically 
 correct meaning, and in employing some other term or expres- 
 sion to denote the external objects to which such right, interest, 
 ownership, or dominion might attach. But the history of the 
 common law shows that they have been far from agreeing upon 
 any such limitations.^ Therefore, in treating of one of its most 
 important divisions, the term " property " must frequently be 
 employed in the broadest and most general sense here stated ; 
 while in many instances, as the context will ordinarily make 
 clear, it must be so restricted as to embrace only the objects or 
 things that may be owned, as distinguished from the interests 
 or estates which may exist in them. Care will be taken in 
 this work to explain the sense in which the word is em- 
 ployed, in all instances in which ambiguity might otherwise 
 result. 
 
 1 Bbuvier's Law Diet., "Property;" (4th ed.) 371, 804; N. Y. L. 1909, eh. 
 
 Standard Diet., "Property," 2; Co. 52, § 2. 
 
 Lit. 145 b; 2 Blackst. Com. pp. *452, » " The word ' property ' is used in so 
 
 • 453. many senses as to be nearly useless for 
 
 ' See Wms. R. P. (17th ed.) p. 4; juristic purposes." Digby, Hist. Law 
 
 2 Blackat. Com. p. *2 ; Austin's Juris. K. P. (5th ed.) p. 302. 
 
4 INTRODUCTION AND OUTLINE. 
 
 § 3. Exclusive Appropriation. — But, whatever may be the 
 signification of the word in the context in which it is found, it 
 must always be borne in mind that nothing can be property 
 which is not exclusively appropriated to individual ownership.^ 
 An undiscovered pearl at the bottom of the deep sea is not 
 property, nor is there in it any property right in any sense of 
 the word ; and the same is true of any unknown island or 
 other land outside of the geographical limits of governmental 
 ownership.^ The emancipation proclamation of 18,63 took 
 away all property in slaves, by forbidding exclusive appropria- 
 tion of the labor of negroes.^ The right of a wife to take out 
 insurance upon the life of her husband, since other persons 
 may have the same right and their exercise of it does not 
 •affect hers, is not property, but at most a status.^ So, we have 
 no property in the air or sunlight, as we ordinarily enjoy 
 them, since they are not thus appropriated to our own exclu- 
 sive use or control.^ 
 
 § 4. Divisions of Property — Civil Law. — Starting with the 
 generic word res, as denoting objects of ownership, the Romans 
 divided the things thereby indicated into res mancipi and res 
 nee mancipi. While the former of these classes doubtless 
 included at first all things which could be touched and 
 handled, it was subsequently restricted to tangible articles in 
 the sale of which certain formalities were prescribed ; and the 
 latter class then embraced all other tangible things and all 
 those that were intangible and incorporeal. Articles that 
 could be touched and handled were also divided into things 
 movable and things immovable ; and this distinction is still 
 preserved in some civil-law jurisdictions.® 
 
 § 5. Divisions of Property — Early Common Law — Movable 
 and Immovable. — In the early and cruder stages of the com- 
 mon law, the division, which the civilians applied to tangible 
 
 ^ Definitions above quoted ; Brae- these may become so appropriated as to 
 
 ton, ch. xii. § 5. become valuable property. Such are 
 
 2 Com. Dig., Biens ; Rntherforth, the rights to light and air which the 
 
 Inst. 20 ; NichoUs v. Butcher, 1 8 Ves. owner of land may have over streets, 
 
 193 ; Sharp v. Sharp, 6 Bing. 630. squares, or other open places. Story «. 
 
 s 2 Nicolay & Hay, Lincoln, p. 73 ; N. Y. El. R. Co., 90 N. Y. 122. See 
 
 3 Morse's Lincoln, p. 130. i Sullivan v. Iron, Silver Mining Co., 143 
 
 * Holmes v. Oilman, 138 N. Y. 369, U. S. 431 ; Pothier, des Choses; 18 
 
 379 ; Plessy v. Ferguson, J 63 U. S. 537, Viner, Abr. 63. 
 
 549; City of St. Louis «. Hill, 116 Mo. * Maine, Anc. L. ch. viii.; Mac- 
 
 527. kenzie's Roman Law, 166-1 90; Hadley'l 
 
 ^ But, of course, a right to enjoy Lectures, 86. 
 
PROPERTY EXPLAINED AND CLASSIFIED. 5 
 
 objects only, into things movable and things immovable, was 
 adopted and extended roughly to all kinds of property.^ The 
 method of holding and enjoying the soil of the earth, houses, 
 trees, and other things, which could not ordinarily be carried 
 from place to place, gave emphasis and durability to this classi- 
 fication.2 Soon after the conquest of England by William the 
 Conqueror (probably about the twentieth year of his reign 
 there), all absolute ownership of such things by private indi- 
 viduals was done away with by the introduction of the feudal 
 system. ^ The theory upon which that system was established 
 and maintained was that all property of a permanent and 
 immovable character belonged primarily and ultimately to the 
 king; that he, as such absolute owner, had distributed it in 
 large parcels amongst his chief followers, vassals, or tenants 
 to hold of himself ; that they, in turn, had in like manner sub- 
 parcelled it out to their own vassals or tenants ; that these 
 latter had done the same as to the portions which they them- 
 selves received ; and so on, down to those who took actual 
 possession of the property, enjoyed it and made the avail 
 or proceeds therefrom. Such holding one of another, under 
 that system, is called tenure. He who thus holds is called 
 a vassal or tenant; he of whom the property is held is the 
 lord. The king, being the chief lord, above all others, is 
 denominated lord paramount, and the others mesne lords ; 
 while he who is tenant or vassal only, and has no one holding 
 of himself, but by his own labor enjoys the property and 
 obtains the proceeds from it, is tenant paravail. Tims, each 
 holder of the property between the king and the tenants para- 
 vail is the vassal or tenant of the one above liimself, from 
 whom he has received it and of whom he holds it, and the 
 mesne lord of those to whom he in turn has parcelled it out. 
 The purposes for which the system was invented and employed 
 were chiefly military. As a condition to his right to hold his 
 property, each vassal was compelled to serve in the wars with 
 his lord, and also to render to him cei'tain services and pecu- 
 niary returns. These duties and burdens became more and 
 more oppressive with the growth and spread of the system, 
 
 1 Glanvill, x. 6; Bracton, f. 61b; with an ease which their successors may 
 Maine, Anc. L. ch. viii. envy." 2 Poll. & Mait. Hist. Eng. L. 
 
 2 "Glanvill and Bracton — at the (2d ed.) p. 2. 
 
 suggestion, it may be, of foreign juris- ^ See fuller discussion of that ays- 
 
 prudence — can pass from movables to tern, Book II. ch. ii., infra. 
 immovables and then back to movables 
 
6 INTRODUCTION AND OUTLINE. 
 
 until the legislative power intervened (in the twelfth year of 
 Charles 11.^) and swept most of them away by statute.^ 
 
 It is manifest at a glance that such a system, cumbersome 
 and technical as it was, could not well be applied to articles 
 that are temporary, movable, and easily destroyed. Cattle, 
 carriages, household furniture, and the like are too perishable 
 and insignificant to be subject to any feudal rights or duties. 
 Absolute ownership by private individuals was accordingly 
 recognized in such articles; and thus the distinction became 
 very emphatic and important between those things which are 
 movable and wliich one might own absolutely and those that 
 are immovable, the only way of holding which by any one 
 except the king was by tenure, under a superior lord and 
 subject to all the burdens and incidents of feudal tenancy 
 or vassalage.^ 
 
 § 6. Divisions of Property — Goods and Chattels — Lands, 
 Tenements, and Hereditaments. — Property of a tangible and 
 movable character readily came also to be designated as ffoods 
 or chattels, or, by the combination of the two words, goods and 
 chattels.* Comparatively little is said of such articles by the 
 law records and reports of feudal times.^ But upon immov- 
 able things the skill and subtlety of the legal profession were' 
 energetically bestowed ; and statutes, reports, and learned 
 ' treatises have preserved the results. In process of time such 
 things were spoken of as tenements,^ because they were subject 
 to tenure, i. e. were holden one of another ; and as hereditaments,'' 
 because on the death of the tenant or vassal they might pass 
 to his heir, to be held by him of the lord in the same manner 
 in which they had been held by the ancestor and subject to 
 the same feudal rights and obligations. The word lands^ also, 
 
 1 12 Car. II. ch. 24. 56 & 57 Vict. ch. 71 ; also cases in 
 
 ' 2 Blackst. Com. ch. iv. English probate reports ; Rouvier's Law 
 
 " Doubtless movable articles were Diet., " Goods and Chattels." 
 much associated with things of a per- * This is not so much because they 
 
 manent nature, so as to pass with them ; were few and valueless, as because the 
 
 and in this "manner they came under procedure affecting them was ordinarily 
 
 the operation of the feudal system. in the lower courts, and being simple 
 
 See 2 Poll. & Mail. Hist. Eng. L. and expeditious, was not brought to 
 
 (2d ed.) p. 149. the attention of jurists as forcibly as that 
 
 < These words are constantly used concerning realty. See 2 Poll. & Mait. 
 
 interchangeably, or together, to include Hist. Eng. L. (2d ed.) p. 150 e( seq. 
 all forms of property that we now call 6 Digby, Hist. Law R. P. (5th ed.) 
 
 personalty. The etymological distinc- p. 72, n. 5 ; § 98, infra. 
 tion between them is probably more ^ 2 Poll. & Mait. Hist. Eng. L. (2d 
 
 commonly observed in England than in ed.) p. 181 ; § 99, infra. 
 this country. See Sale of Goods Act, » See § 60, infra. 
 
PROPERTY EXPLAINED AND CLASSIFIED. 7 
 
 as denoting those tangible, substantial things which have per- 
 manency as to time and fixedness as to space, came readily into 
 use ; and so, during the vigorous sway of the feudal system, 
 the property with which it dealt was constantly referred to as 
 embracing lands, tenements, and hereditaments. This division 
 of property into goods and chattels on the one hand, and lands, 
 tenements, and hereditaments on the other, still retains its hold 
 upon the common law ; but it is not so generally employed, 
 in this country at least, as the more familiar classification 
 into real property and personal property, which is to be next 
 considered.^ 
 
 § 7. Divisions of Property — Real and Personal. — The 
 statute 12 Car. 11. ch. 24, wliich was regarded by Blackstone 
 as a greater acquisition to the civil liberty of England than 
 even Magna Gharta itself, took away most of the burdensome 
 incidents of feudal tenure ; and, while it left the theory of the 
 feudal system still operative there, it l)roke down the chief dis- 
 tinction between different kinds of property, to which distinc- 
 tion that system had given emphasis. Although in England he 
 who has an acre of land still holds it theoretically of the king, 
 yet for most practical purposes he may now own it as fully 
 and absolutely as he may his horse or his watch.^ After the 
 enactment of that statute, therefore, property naturally became 
 classified upon a new basis or principle. An obvious and logi- 
 cal division of actions at law for wrongfully taking or detain- 
 ing property had existed for a long time. When the only 
 remedy was an action against the person who had done the 
 wrong, and the judgment recoverable was simply for pecuniary 
 damages and not for the return of the specific thing abstracted, 
 it was called & personal action; while, if it could result in a 
 judgment for the return of the article taken or detained, — the 
 recovery of the real thing, — it was denominated a real action.^ 
 It was natural that, after the overshadowing influence of the 
 feudal system had been removed, the subject-matter affected 
 by such actions should be divided in the same way as the ac- 
 tions themselves, and that property should be classified as 
 
 (1) Real Property, or such as can be recovered specifically when 
 it has been wrongfully taken or detained from its owner ; and 
 
 (2) Personal Property, or that for the wrongful abstraction or 
 
 1 2 Blackst. Com. ch. ii. » Co. Lit. 118 b, 285 a, 288 b ; Bract. 
 
 2 Co. Lit. 65 a, 93 a; 3 Blackst. Com. 101b; 3 Blackst. Com. p. »117; Ste- 
 p. * 167 et seq. ; Wms. R. P. (17th ed.) 7. phen on Pleading, ch. i. 
 
8 INTRODUCTION AND OUTLINE. 
 
 detention of which the specific common-law action is for dam- 
 ages against the wrongdoer.^ This classification of the kinds 
 of property into real and personal, with its historic foundation 
 upon the different forms of common-law actions, is the most 
 complete and satisfactory and the one universally recognized 
 at the present time. It must be confessed, however, that the 
 abolition in most common-law jurisdictions of those ancient 
 forms of actions,^ together with many of the distinctions which 
 rested upon them, the establishment and use of new kinds of 
 remedies and methods of procedure, the immense increase in 
 the bulk of personalty in very modern times, the invention 
 and production of various new forms of property of both 
 classes and the multitude of novel uses and purposes to which 
 things have been applied have made it difficult, in many in- 
 stances, to determine whether given articles are real property 
 or personalty. Some of the leading distinctions between them, 
 in this respect, may be summarized as follows : — 
 
 § 8. Leading Distinctions between Real Property and Per- 
 sonal Property. — (1) Prom an historical standpoint, as above 
 shown, real property is such as, when wrongfully taken or 
 retained from its owner, could have been recovered by a 
 common-law real action; personal property is that for 'the 
 wrongful abstraction or detention of which the specific com- 
 mon-law action was one for damages against the person of the 
 wrongdoer.^ (2) Generally speaking, real property is fixed 
 and immovable as to space and permanent as to time ; per- 
 sonal property is temporary and perishable as to time and mov- 
 able as to space.* This is simply a general distinction, which 
 in many cases is wholly inapplicable. For example, a door 
 key, though carried around in one's pocket and liable to be 
 lost or destroyed at any time, may be real property ; ^ while 
 a house, though very heavy and difficult to move, may, under 
 some circumstances (as when it is built by a tenant upon 
 leased premises for purposes of trade or manufacture), be 
 taken away from the land as personal property.^ (3) Real prop- 
 erty may descend to the heirs of an owner thereof, who dies 
 
 1 Co. Lit. 118 b; Bract. 101, 102; ^ jbid. ; Digby, Hist. Law R. P. (5th 
 "Wms. R. P. (17th ed.) p. 23;. Digby, ed.) p. 71, n. 2; Wms. R. P. (17th ed.) 
 Hist. Law R. P., Appendix, § 1 ; 4 Law p. 23. 
 
 Quart. ReT. 394. 4 2 Blackst. Com. p. * 16 ; Digby, 
 
 2 See 3 & 4 Wm. IV. ch. 27, §36; Hist. Law R. P. (5th ed.) p. 303. 
 Chase's Blackst. pp. 716-734; Goelet v. * See "Fixtures," § 10, infra. 
 Asseler, 22 N. Y. 225, 228. 6 See §§ 32, 46, infra. 
 
PROPERTY EXPLAINED AND CLASSIFIED. 9 
 
 intestate as to it ; ^ personal property passes to the executors 
 or administrators of its deceased owner, to be used so far 
 as necessary for the payment of his debts, and the residue 
 either to be disposed of according to the provisions of his will, 
 or, if it be not disposed of by a will, to be divided amongst his 
 distributees ^ as ascertained by common-law principles or the 
 ruling statutes of distributions.^ (4) The ancient common 
 law did not permit real property to be taken on execution for 
 the payment of debts ; but it did allow personal property to be 
 so taken.* This distinction has been materially modified by 
 modern statutes, creditors being now generally able to reach 
 their debtors' real property, or some interest therein, for the 
 payment of their debts ; but the prevailing rule requires the 
 personalty to be exhausted before the real property can be 
 taken.^ (a) 
 
 Many other distinguishing features might be mentioned. 
 Thus, the law which affects real property is that of the place 
 where it is located, that which governs personalty is usually 
 the law of the place of its owner's domicil ; a conveyance of 
 real property is now uniformly required to be made by a writ- 
 ing, while personal property may generally be transferred by 
 delivery and acceptance. The two classed of property are 
 governed by different rules as to the levying and collecting of 
 taxes upon them and the methods of making, filing, recording, 
 and satisfying of mortgages and other liens and encumbrances. 
 These distinctions and many others, the knowledge of which is 
 
 (a) Thus, it is required in New York that an execution " must, except 
 in a case where special provision is otherwise made by law, substantially 
 require the sheriff to satisfy the judgment out of the personal property of 
 the judgment debtor; and, if sufficient personal property cannot be found, 
 out of the real property belonging to him at the time when the judgment 
 was docketed in the clerk's office of the county, or at any time thereafter." 
 N. Y. Code Civ. Pro. § 1369 ; Saunders v. Reilly, 105 N. Y. 12, 21 ; Dunham 
 V. Reilly, 110 N. Y. 366. 
 
 1 By the caDons and statutes of de- blood relatives who may so share — 
 scent. N. Y. L. 1909, ch. 18, art. iii.; and a surviving husband or wife. 
 Stimson, Araer. Stat. L. §§ 3100-3169; ^ 22 & 23 Car. II. ch. 10; 29 Car. 
 Title by Descent, § 91, infra. II. ch. 30 ; N. Y. Code Civ. Pro. §§ 2732- 
 
 2 This word is employed as the most 2734 ; Stimson, Amer. Stat. L. ch. iv. 
 convenient and accurate (though it is * 2 Blackst. Com. pp. * IGO, *I61 ; 2 
 not generally used as much as might Woerner, Adm'u, p. 1093. 
 
 be) to describe those per.sons who are ^ l^'gby, Hi.st. Law R. P. (5th ed.) 
 
 entitled by law to share in the person- pp. 2S1-284 ; 2 Woerner, Adm'n, p. 
 
 alty of an intestate decedent. It in- 1093. 
 eludes the " next of kin " — i. e. the 
 
10 INTRODUCTION AND OUTLINE. 
 
 necessary to a clear apprehension of the law of real property, 
 will be explained in the following pages. 
 
 § 9. Property which is sometimes Real and sometimes Per- 
 sonal. — At any particular instant of time every piece of prop- 
 erty in the world is either real or personal. There is no third 
 or intermediate class. Yet some things that are personalty 
 to-day may be realty to-morrow ; and others that are now 
 real in character may be personal a year hence. To articles 
 which readily or frequently change in this manner the term 
 " mixed property " has been occasionally applied.^ It is not 
 a desirable expression, however ; and, when employed, must 
 never be taken as intimating the existence of any distinct 
 class or division. Illustrations of things, which because of 
 their varying conditions may raise important questions regard- 
 ing their nature as realty or personalty at any given time, are 
 ice, crops, trees, buildings, etc., and fixtures. A brief discus- 
 sion of such articles as these is important, in order to ascer- > 
 tain the exact limits of the subject-matter dealt with by the 
 law of real property. Such discussion naturally divides itself 
 into two parts; namely, (1) An investigation of that somewhat 
 extensive class of articles called fixtures; and (2) An inquiry 
 into the nature of such other things as may readily change 
 from the one species of property to the other, but are not 
 embraced by the term " fixtures." 
 
 1 2 Blackst. Com. p. »428 ; Dudley v. Ward, 1 Ambler Ch. 113. 
 
CHAPTER II. 
 
 FIXTUBES. 
 
 §10. Fixtures — History and defi- 
 nitions. 
 
 § 11. Criteria for determining 
 ■whether realty or personalty. 
 
 1. Intent as a Criterion. 
 
 § 12. Reasonably presumable in- 
 tent. 
 
 § 13. Intent directly expressed. 
 
 § 14. Intent shown by contract. 
 
 § 15. Estoppel to deny intent — 
 Fraud — Public policy. 
 
 § 16. Other tests subsidiary to in- 
 tent. 
 
 2. Annexation as a Criterion. 
 
 § 17. Constructive annexation. 
 
 § 18. Actual annexation. 
 
 § 19. Weight, size, etc., of fix- 
 ture. 
 
 § 20. Adaptability to premises. 
 
 § 21. Conclusion as to annexa- 
 tion. 
 
 3. Relation between the Parties as 
 a Criterion. 
 
 § 22. Classes of parties. 
 
 § 23. Affixed by permanent owner 
 of land. 
 
 § 24. Fixtures as between vendor 
 and vendee. 
 
 § 25. Between parties under con- 
 tract to buy and to sell. 
 
 § 26. Between heir or devisee and 
 personal representative of deceased 
 landowner. 
 
 § 27. Between co-owners of the 
 land. 
 
 § 28. Between mortgagor and 
 mortgagee of the land. 
 
 § 29. Between unpaid vendor, 
 etc., of the fixture, and lienor of 
 land. 
 
 § 30. Affixed by temporary owner 
 of land. 
 
 § 31. Fixtures annexed by tenant 
 for years. 
 
 § 32. Trade fixtures. 
 
 § 33. Domestic fixtures. 
 
 § 34. Agricultural fixtures. 
 
 § 35. Summary of exceptions in 
 favor of tenants for years. 
 
 § 36. Time when tenant for years 
 may remove fixtures. 
 
 § 37. Effect of renewal of lease 
 on right to fixtures. 
 
 § 38. Fixtures annexed by life- 
 tenant. 
 
 § 39. Fixtures annexed by other 
 temporary owners. 
 
 § 40. Conclusion, as to fixtures. 
 
 § 10. Fixtures — History and Definitions. — Until times com- 
 paratively recent, the common law as we know it gave but scant 
 attention to personal property. Doubtful questions as to the 
 nature of an article were, before the time of Henry VI., con- 
 
12 INTRODUCTION AND OUTLINE. 
 
 stantly solved by treating it as a part of what is now called 
 realty. It was tlius brought vithin the favored class, and under 
 the operation of the well-known legal principles which had de- 
 veloped with the Anglo-Saxon race.^ In support of this ten- 
 dency, the maxim quicquid plantatur solo, solo cedit — whatever 
 is affixed to the soil (or freehold) is a part of it and passes with 
 it — became of much importance.^ The result was that, when- 
 ever one who had possession of land attached personal articles 
 to it, or used them as things accessory to its enjoyment, they 
 became, in contemplation of law, a part of the land and a por- 
 tion of the real property of its owner. Such things, being thus 
 attached or affixed to the land, either actually, or constructively 
 from the manner of their use in connection with it, were called 
 fixtures. And the definition was accordingly framed, that fix- 
 tures are things in their inherent nature chattels, which have 
 been so' annexed to real property as to be deemed a part of 
 it.2 This meaning still largely adheres to the word. Many 
 judges and text-writers commonly employ it with such a 
 signification.* 
 
 As personal property grew in amount and importance be- 
 fore the law,^ and the spread of commerce and business enter- 
 prise increased and diversified the purposes for which real 
 property could be employed, numerous exceptions were en- 
 
 1 3 Reeves' Hist. Eng. L. 15, 369; * See, for a few illustrations, Potter 
 2 Blaekst. Com. pp. *384, *385; 2 v. Cromwell, 40 N. Y. 287; McRea v. 
 Kent's Com. p. * 341 ; Minshall v. Cent. Nat. Bk., 66 N. Y. 489 ; Feder v. 
 Lloyd, 2 M. & W. 450, 4.59; Elliott Van Winkle, 53 N. J. Eq. 370; Har- 
 V. Bishop, 10 Exch. 496, 507, 508. mouy v. Berger, 99 Pa. St. 320; Capeu 
 
 2 Broom's Legal Maxims, pp. * 401- v. Peckham, 35 Conn. 88, 94; Thomas 
 *431 ; Warner v. Grayson, 200 U. S. v- Davis, 76 Mo. 72; Capital City Ins. 
 257, 269. Co. y. Caldwell, 95 Ala. 77 ; Tyler on 
 
 3 See definitions of this kind in Fixtures, pp. 36, 37. 
 
 Worcester's Diet. ; Webster's Diet. ; 6 it would be incorrect to follow the 
 Swell on Eixtares, p. 6 ; Hill on Fix- writers of a century or more ago and 
 tures, § 1 ; MinahaU v. Lloyd, 2 M. & W. to state that there was very little per- 
 450, 459 ; Story, J., in Van Kess v. Pack- sonal property during feudal times. 2 
 ard, 27 U. S. (2 Pet.) 137, 147. In the Poll. & Mait. Hist. Eng. L. (2d ed.) p. 
 early treatises on the common law the 149 et seq. But it was the growth of 
 term " fixtures " does not appear as a this kind of property in importance 
 distinct heading. The subject is dis- before the law, especially before the 
 cussed, however, frequently under the highercourts whose records and reports 
 topic " waste," and to some extent nn- we have, and in particular for the 
 der that of " executors and administra- tenant for years when his right became 
 tors " in connection with the question as fixed as an estate, that caused a relaxa- 
 to what may be " assets " in their hands. tion of the ancient preference for call- 
 See Brown on Fixtures, §.2; N. Y. ing such things realty. 
 Code Civ. Pro. § 2712, subd. 4. 
 
FIXTURES. 13 
 
 grafted upon the maxim quicquid plantatur solo, solo cedit} In 
 cases in which the relation between the owner of the land and 
 the person who places such things upon it is that of landlord 
 and tenant, those exceptions have now become so important as 
 practically to constitute the rule.^ In most instances, the ten- 
 ant for life or for a term of years may remove from the land, 
 before lie surrenders it back to the landlord, the personal chat- 
 tels wliich he has annexed thereto or used in connection there- 
 with.'^ The existence of so many exceptions to the maxim has 
 caused some modern writers to go to the other exti'eme in fram- 
 ing their definitions of fixtures. They accordingly define them 
 as personal chattels annexed to or used in association with land 
 and removable by the person who so annexed or uses them.* 
 
 Neither of the definitions above given accurately describes 
 fixtures. The bricks in the wall of an ordinary building were 
 at one time personalty ; and they have been annexed to the 
 land in such a manner as to form a part of it. They are in- 
 cluded by the first of these definitions. Yet they are not fix- 
 tures, and are never treated as such by the law. On the other 
 hand, a tenant's tables, chairs, carpets, and other articles of 
 household furniture, used by him in connection with the 
 land, and perhaps to some extent fastened to the dwelling- 
 house, are personal chattels which he may take away. Tliej 
 are fully within the second definition ; and yet they are nevei 
 treated by the law as fixtures. It follows that there are some 
 chattels which, although annexed to or used in association with 
 realty, may unquestionably be removed by their owners. They 
 are not fixtures, but simply personal property. Other things 
 of a personal character, when annexed to the land, become un- 
 questionahly a part of the real property. These likewise are 
 not fixtures ; and this is because they can make no question 
 arise as to whose property they are. There are yet other arti- 
 cles of a personal character wliich have been annexed to real 
 property, or are used in association with or as accessory to it, 
 and they are of such a nature, and such use or enjoyment is 
 had of them in connection with the land, that it can not be de- 
 termined until certain tests are applied and certain questions 
 answered whether they are real or personal. They are so 
 
 1 Broom's Legal Maxims, pp. * 417- Law Diet. ; Burrill's Law Diet. ; Ewell 
 
 • 431. on Fixtures, p. 4 et seq.\ Hallen v. 
 
 ' See §§ 32-34, infra. Runder, 1 C. M. & R. 266 ; Pickerell 
 
 • Ibid. "■ Carson, 8 Iowa, 544; Prescott v. 
 
 * Ferard's Fixtures, p. 1 1 ; Bouvier's Wells, 3 Nev. 82. 
 
14 INTBODDCTION AND OUTLINE. 
 
 situated or used, moreover, that, as the property changes hands 
 and different interests and rights therein succeed one another, 
 the question as to their removability may arise again and again. 
 Such things are fixtures. Hence the following definition, as 
 framed by a careful writer, appears to be substantially accurate 
 and complete; namely, fixtures are " things associated with or 
 more or less incidental to the occupation of lands and houses 
 or either thereof, and with regard to which the question most 
 frequently arising is that of their removability by the person 
 claiming to remove them." ^ 
 
 It is conceived that such a definition as that last quoted is 
 the only one that can give any logical or satisfactory idea of 
 the term under discussion. It is its liability to raise a question 
 between adverse claimants that marks as a fixture an article 
 used in connection with real property.. The question thus 
 raised is to be answered, as above indicated, by the applica- 
 tion of certain tests or criteria, which are deduced from the 
 decisions and will be hereafter explained. By this application 
 of the criteria some fixtures may be shown to be real and 
 others personal ; while an article, which remains all the time 
 in the same position and condition, may turn out to be real 
 property as between some claimants, and, as between others, 
 personalty. While connected or associated with the houses or 
 lands, it remains all the time a fixture. The criteria are ap- 
 plied to determine whether for the purpose in hand the fixture 
 is realty or personalty.* 
 
 The word " fixtures " will be used in this treatise with the 
 meaning indicated by the last definition above stated. The 
 reader must constantly remember, however, that courts and 
 text-writers frequently employ it in some one of the other 
 senses above explained. Quite commonly it is used simply to 
 denote articles that have been so associated with realty as to 
 become a part thereof. In the reading of any statute, text- 
 book, or judicial opinion, which makes use of the word, the 
 context is to be carefully examined to ascertain its meaning 
 as there employed. 
 
 1 Brown's Law of Fixtures (4th ed.), and changes in the circumstances and 
 
 pp. 1-3. When a fixture is thus under- relations of the parties, be realty to-day 
 
 stood — taken at the point at which it between A and B, and personalty to- 
 
 may readily cause disputes — the ex- morrow between C and D. See 32 ' 
 
 pressions " real fixture " and " personal Cent. Law Jour. 202. 
 
 fixture" become intelligible. Eemain- ^ See the excellent discussion in 
 
 ing all the time in the same position, it Brown on Fixtures, (4th ed.), p. 1 et 
 
 may, by virtue of different contracts seq. 
 
FIXTURES. 15 
 
 § 11. Fixtures — Criteria for determining whether Realty or 
 Personalty. — So long as one and the same person remains the 
 absolute and unrestricted owner of land and the things placed 
 upon it, little thought is often given to the question whether 
 such things are real or personal in character. But when the 
 rights of other persons begin to attach to the property, as by 
 the death intestate of its owner, or by his devising, selling, 
 leasing, mortgaging, or otherwise encumbering or disposing 
 of the land, the question as to what shall pass or be retained as 
 part of the realty frequently becomes very material. Back of 
 that question, as applied to any specific article, is the inquiry, 
 what was the nature of that article while it was there upon 
 the land before the question of ownership was mooted ? And 
 this last inquiry naturally suggests the further question, what 
 is the probable or reasonably presumable intent with which it was 
 affixed to or used in connection with the land ? Do the circum- 
 stances of its annexation and use indicate that it was meant 
 to remain personalty or to become a part of the realty ? This 
 is the primary and most important matter for investigation, 
 and that to which the other criteria are largely subsidiary. 
 One of the other tests is the nature of the annexation. This 
 involves also an examination into the effects which the removal 
 of the article in question would have upon the realty. And 
 the third chief inquiry is concerning the parties between whom 
 the question of ownership arises, — their relations to each other 
 and to any other person who may have affixed the article, the 
 part, if any, which each took in its annexation, and their re- 
 spective interests in the land to which it is annexed or with 
 which it is associated. These three criteria will be discussed 
 in the order in which they have been stated. 
 
 1. Intent as a Criterion. 
 
 § 12. Reasonably Presumable Intent. — Assuming that a 
 personal chattel has been attached actually or constructively 
 to realty, or used in association therewith so as to cause a 
 question to arise as to its character, the most important 
 inquiry is as td the probable or reasonably presumable inten- 
 tion with which it was so affixed or used.^ Intention alone 
 
 1 For a few of the many authorities ory, L. R. 3 Eq. 382 ; Hobson u. 
 which properly lay great stress upon Gorringe (1897), 1 Ch. 192; Wiggins 
 this criterion, see D'Eyncourt v. Greg- Ferry Co. v. O. & M. R. Co., 142 U. S. 
 
16 INTRODUCTION AND OUTLINE. 
 
 can not change an article from personalty into realty. There 
 must be also some annexation of the thing to the land, or some 
 use or enjoyment of it in association with the land. Thus, a 
 large stone, brought into a door-yard and intended to be used 
 in the future for a stoop, was held to be personalty before it 
 had been actually so used ; ^ and the rolls purchased for a roll- 
 ing-mill, paid for and brought into it but never adjusted to it 
 nor used with it, do not become a part of the realty, although 
 they are brought there for the purpose of being at some future 
 time fastened to the mill and used in connection therewith. ^ 
 It is equally true that a mere unexpressed intention to treat a 
 fixture as personalty will not, as a rule, change it from realty 
 into a chattel. A vendor of a house and lot, for example, will 
 not be allowed, before the deed passes, to remove valuable 
 fixtures, simply because, after making the contract of sale, he 
 declares that it was his secret intention to remove them.^ 
 The law can not take cognizance of such undisclosed thoughts 
 of him who fastens an article to the land ; but it can and does 
 regard the reasonably presumable intent, to be gathered from 
 all the facts and circumstances of the case.* 
 
 § 13. How Intent may be shown — Directly expressed. — It 
 frequently happens, of course, that such reasonably presum- 
 able intent is the same as the actual purpose with which the 
 chattel was annexed, and that the direct testimony of him 
 who affixed or used it is controlling as to its character.^ In 
 
 ."ige, 415 ; Potter v. Cromwell, 40 K T. v. Batchelder, 40 Vt. 233 ; Tripp v. Ar 
 
 287 ; Voorhees v. McGinnis, 48 N. Y. mitage, 4 M. & W. 687. 
 278 ; Wick v. Bredin, 189 Pa. St. 83 ; ^ Snedeker v. Waring, 12 N. Y. 170 
 
 Aldine Mfg. Co. v. Barnard, 84 Mich. Eogers o. Brokaw, 2.5 N. J. Eq. 496 
 
 632 ; Hopewell Mills v. Taunton Sav. Catasauqua Nat. Bk. v. North, 160 Pa. 
 
 Bk., 150 Mass. 519 ; Eidman v. Moore, St. 303 ; Crum v. Hill, 40 Iowa, 506 
 
 58 N. J. L. 445 ; Sword v. Low, 122 111. Thomas v. Davis, 76 Mo. 72 ; Tate v. 
 
 487 ; Cunningham v. Cureton, 96 Ga. Blackburne, 48 Miss. 1. 
 489; Overman i-. Sasser, 10 Lawyers' * The question is a mixed one of 
 
 Rep. Ann. 723, note ; Tyler on Pix- law and fact, and, when a jury is sit- 
 
 tures, ch. vii. ; Ewell on Fixtures, ch. i. ting, is to be submitted to it under 
 
 §iv. ; 13 Amer. & Eng. Ency. of L.' proper instructions from the court. 
 
 (2d ed.) p. 597. ' Turner t>. Wentworth, 119 Mass. 459; 
 
 1 Woodman u. Pease, 17 N. H. 282 ; Southbridge Sav. Bk. v. Mason, 147 
 
 Cook D. Whiting, 16 111. 480; Ripley i'. Mass. 500; Scobell u. Block, 82 Hun 
 
 Page, 12 Vt. 353. (N. Y.), 223 ; Harrisburg Electric Light 
 
 ■^ Johnson v. Mehaffey, 43 Pa. St. Co. v. Goodman, 129 Pa. St. 206. 
 308 ; Cook V. Whiting, 16 111. 480 ; Ex » Erdman v. Moore, 58 N. J. L. 445 ; 
 
 parte Astbury, L. K. 4 Ch. App. 630; Sheldon v. Edwards, 35 N. Y. 279; 
 
 Mills V. Rnndlett, 23 N. H. 271 ; John- Copp v. Swift, 26 S. W. Rep. 438 (Tex. 
 
 son t'. Hunt, 11 Wend. (N.Y.) 135 ; Peck Civ. App.) ; Tyler on Fixtures, p. 115. 
 
FIXTURES. 17 
 
 one case, a church society had torn down the edifice in which 
 it had formerly worshipped, and removed the bell and its 
 framework. The latter were placed at the front of a lot on 
 which the society was building a new structure. An execu- 
 tion against the church society having been put into the hands 
 of the sheriff, that officer attempted to levy upon the bell, thus 
 located, as personal property. The church society having 
 proved that its intention was to place the bell in the new 
 belfry when completed, it was held that the sheriff's attempted 
 levy was a nullity. The intention to put it back upon the 
 land of the church and into the new building for use Ihere, 
 being clearly shown, caused the bell thus located to remain 
 realty.^ So, where the owner of a farm had taken down a 
 fence and piled the rails in a heap, intending to build with 
 them another fence upon the same farm, it was held that they 
 remained a part of his real property.''' And where .rails were 
 cut from the timber upon a farm and placed along the line of 
 an intended fence upon the same premises, it was decided that 
 they were thus made a part of the realty.^ If the church 
 society had intended to sell or otherwise to dispose of the bell 
 instead of putting it into its new edifice, or if the rails in 
 either of the two cases last cited had been placed in piles for 
 the purpose of being taken to market and sold, the result in 
 each case would have been different and the fixtures involved 
 would have been personalty. Accordingly, where the owner 
 
 1 Congre. Soc. of Dubuque v. Flem- that tliey did not pass under the deed, 
 
 ing, 11 Iowa, 533; Weston v. Weston, but remained the personal property of 
 
 102 Mass. .514, 518, 519; Hadman v. the vendor. The distinction between 
 
 Ringwood, Cro. Eliz. 145 ; Ewell on this case and Conklin v. Parsons [supra) 
 
 Fixtures, p. 354. grows out of the facts that in the latter 
 
 ^ Goodrich v. Jones, 2 Hill (N. Y.), case the trees were cut from the same 
 
 142; Aldine Mfg. Co. v. Barnard, 84 land upon which they were to be used as 
 
 Mich. 632 ; Harris v. Scovel, 85 Mich. rails in building the fence, while in the 
 
 32. former they were cut from other land 
 
 ' Conklin v. Parsons, 1 Chandler than that upon which they were to be used. 
 (Wis.), 240. In Cook v. Whiting, 16 The cutting of them and moving of 
 111. 480, the owner of a farm hauled tliem to another part of ihe same land, 
 upon it hewed timber, to be placed in a with intent to use them there as parts 
 granary, and posts to be built into a of a fence, did not change their nature 
 fence. Both of these came from a from realty to personalty. But when 
 tract of land other than the farm upon they were cut upon one tract and moved 
 which they were designed to be thus unto another they were thus made per- 
 used. Before using either of them for sonalty, and must remain so until they 
 the purpose indicated, he sold the farm, were actually anuexed to or used in 
 nothing being said in the contract as to association with the land upon which 
 whether or not the posts and timber they were thus brought, 
 should pass to the vendee. It was held 
 
18 INTRODUCTION AND OCTLINE. 
 
 of a tract of land had split out a stone and slightly removed 
 it from its original connection with the ledge, intending to 
 carry it from the farm and use it in preparing a tomb on 
 another lot, it was held to have become personal property, and 
 so was not passed by his deed of the land.^ In all of these 
 cases the location and treatment of the things in question 
 were consistent with an intent to regard them either as real 
 property or as personalty, and therefore direct evidence of 
 the actual intent of their owners was controlling. The same 
 result follows when the person who makes the annexation 
 affirmatively declares his mind to other persons interested in 
 the property ; and they either expressly consent, or act upon 
 his statements, or make no objection against his acting ac- 
 cordingly. ^ So, if an owner of land place on it a fixture that 
 can be removed without injury to the freehold, and plainly 
 notify those who subsequently become his heirs and personal 
 representatives that he wishes it to remain either personalty 
 or realty, direct proof of such expressed wish will ordinarily 
 settle any question that may arise between them as to its 
 ownership.^ 
 
 § 14. Intent shown by Contract. — In other instances, such 
 direct evidence of what was actually intended goes for naught, 
 because an investigation of all the facts and circumstances of 
 the case causes the court reasonably to presume to the con- 
 trary. Especially does this result frequently flow from con- 
 tracts made between persons interested in fixtures and those 
 who attach them to the land. Thus, if the vendee of a chattel 
 agree with the vendor that it shall remain personalty and the 
 title to it shall not pass until it is paid for, no amount of 
 annexation of it to realty by the purchaser, and no strength of 
 intention on his part that it shall become his real property, 
 can change its nature as between the parties to such contract.* 
 
 1 Xoble y. Sylvester, 42 Vt. 146. 83; Pfluger v. Carmichael, 54 N. Y. 
 
 - t.ancaster v. Eve, 94 Eng. C. L. App. Div. 153; Tyler on Fixtures, p. 
 
 R. 715, 726 ; DnfEers v. Bangs, 122 N. Y. 691. 
 
 423 ; Potter ». Cromwell, 40 N. Y. 287 ; * Taft v. Stetsin, 117 Mass. 471 
 
 Eaves t;. Estes, 10 Kan. 314 ; Thomas Smith v. Benson, 1 Hill (N. Y.), 176 
 
 r. Inglis, 7 Ont. Rep. 588 ; State Nat. Andrews v. Day Button Co., 132 N. Y. 
 
 Bk. V. Smith, 15 Wash. 160; Tyler on 348; Ewell on Fixtures, p. 66 et seq. 
 
 Fixtures, pp. 127, 128. This is simply a clear instance of intent, 
 
 » Hill V. Sewald, 53 Pa. St. 271, 273, as plainly evinced by contract express 
 
 274; and see Lawton v. Salmon, 1 H. or implied. It has been said in some 
 
 Bl. 259 ; Cunningham t;. Cureton, 96 cases that here it is confusing to speak 
 
 Ga.- 489; Wicks v. Bredin, 189 Pa. St. of any test as to fixtures being ne- 
 
FIXTUREa. 19 
 
 When the owner of a fixture gives a chattel mortgage upon 
 it, or agrees to sell it as personal property, it must remain a 
 chattel, as between him and the mortgagee or prospective 
 vendee, until the mortgage is discharged or the contract satis- 
 fied.^ Such articles are often so fastened to a building as to 
 become realty as to third persons who are not pai'ties or 
 privies to the contract; but the agreements properly made 
 definitely settle the question of intent and the nature of the 
 fixture, as between those by whom they are made.''' Among 
 themselves and their privies the fixture must have the nature 
 and character assigned to it by the parties to the contract; 
 and, in cases of doubtful construction, the practical interpre- 
 tation of the contract by them will be of primary importance.^ 
 The agreement, which thus becomes decisive of the question 
 of intent, need not be expressed, but may be implied from 
 the nature, purposes, and circumstances of the transaction.* 
 Where, for example, land and houses were leased, with an 
 option in the lessee to purchase the same at a price agreed 
 upon, and certain fixtures firmly annexed to one of the houses 
 were designated as intended to go to the lessee in case he 
 purchased the premises, it was held that other fixtures in the 
 buildings were excluded by implication and were not passed, 
 by the deed which the lessee subsequently obtained.^ j 
 
 § 1.5. Estoppel to deny Intent — Fraud — Public Policy. — 
 The owner of land may be estopped to assert an intention to 
 
 cessary; but the rights ef the parties v. Funke, 121 N. Y. 87, 92; Sheldon v. 
 
 shoulil be simply controlled by their Edwards, 35 N. Y. 279 ; Andrews 
 
 agreement. See Hobson v. Gorringe i'. Day Button Co., 132 N. Y. 348. 
 (1897), 1 Ch. 182; Andrews v. Day * Madigan v. McCarthy, 108 Mass. 
 
 Button Co., 132 N. Y. 348, 354. - 376; Pope v. Skinltle, 45 N. J. L. 39; 
 
 1 TifEt V. Horton, 53 N. Y. 377, 380; Mayo v. Newhoff, 47 N. J. Eq. 31 ; 48 
 
 Siason v. Hibbard, 75 N. Y. 545 ; Tibbets N. J. Eq. 619 ; Charlotte Furnace Co. 
 
 V. Home, 65 N. H. 242; Burrill v. v. Stoufeer, 127 Pa. St. 336; Cayuga 
 
 S. N. W. Lumber Co., 65 Mich. 571. E. Co. v. Niles, 13 Hun (N. Y.), 170. 
 
 » Potter o. Cromwell, 40 N. Y. 287 ; 5 " If there be many things of the 
 
 Ford V. Cobb, 20 N. Y. 344 ; Campbell same class or kind, the expression of 
 
 V. Roddy, 44 N. J. Eq. 244 ; Warner v. one or more of them in a conveyance 
 
 Keniiing, 25 Minn. 173; San Antonio implies the exclusion of all not ez- 
 
 Brewing Assn. v. Ice Co., 81 Tex. 99. pressed, although the law would hare 
 
 Of course, after the fixture is firmly implied all if none had been enumer- 
 
 annexed and would otherwise be realty, ated. (2 Pars, on Cont. [8th ed.] 516 ; 
 
 the agreement must be in writing, to Hare ci. Horton, 5 B. & Ad. 715.)" 
 
 comply with the requirements of the Matter of Eureka Mower Co., 86 Hun 
 
 statute of frauds. (N. Y.), 309, 315 ; Andrews v. Day But- 
 
 ' Matter of Eureka Mowing Co., 86 ton Co., 132 N. Y. 348 ; First Parish v. 
 
 Hun (N. Y.), 309; Pfluger 0. Carmi- Jones, 8 Cush. (Mass.) 184; Pope i» 
 
 chael, 54 N. Y. App. Div. 153 ; Woolsey Skinkle, 45 N. J- L. 39. 
 
20 INTRODUCTION AND OUTLINE. 
 
 remove fixtures. A vendor transfers by estoppel the articles 
 which he has placed upon the land, or allowed to remain 
 there, in such a manner as to induce the vendee to believe 
 that they are realty and thus to conclude the purchase. ^ And 
 a landlord who causes his tenant to make valuable annexa- 
 tions to the property by expressly or impliedly representing 
 that they may be removed by the tenant, will not be heard to 
 claim them as his own.^ Under such circumstances the law 
 fixes the reasonably presumable intent, without regard to 
 what may have been the actual intent.^ So, to prevent fraud 
 or the violation of right rules of public policy, articles will 
 often be treated as one kind of property which were secretly 
 intended when annexed to be regarded as the other.* 
 
 § 16. other Teats are largely subsidiary to Question of Intent. 
 — In endeavoring to ascertain the reasonably presumable 
 intention with which a fixture has been annexed to land or 
 used in association with it, it frequently happens that no 
 direct declaration of such intention can be found by the court, 
 or if found it is not conclusive ; also that no contract either 
 express or implied relating to the character of the article as 
 realty or personalty can be proved, and that no estoppel or 
 principle of public policy operates against any of the adverse 
 claimants. It then becomes necessary to apply the other tests 
 or criteria above enumerated. One of these is an inquiry into 
 the nature of the annexation, including an examination of the 
 effects which the removal of the article in question would have 
 upon the realty ; and the other concerns itself with the parties 
 between whom the question of ownership arises, their rela- 
 tions to each other and to any other person who may have 
 affixed the article, the part, if any, which each took in its 
 annexation and their respective interests in the land to which 
 it is fastened or with which it is associated. While these 
 
 1 Snedeker v. Waring, 12 N. Y. 170 ; Gray (Mass.), 587. But, at least as to 
 
 Rogers v. Brokaw, 25 N. J. Eq. 496; fixtures removable without injury to 
 
 Tate V. Blaekburne, 48 Miss. 1; Nat. therealty, the great weight of authority 
 
 Bk. V. Sorth, 160 Pa. St. 303. is the'oF^er way. Fuller v. Tabor, 39 
 
 " Andrews v. Day Button Co., 132 Me. 519, '1522; Morris v. J'rench, 106 
 
 N. T. 348 ; Wiggins Ferry Co. v. Ohio Mass. 326 ; Sowden v. Craig, 26 Iowa, 
 
 & M. n. R. Co., 142 U. S. 396 ; Aldrich 156; Mayo v. Newhoff, 47 N. J. Eq. 
 
 V. Husband, 131 Mass. 480. 31, 48 N. J. Eq. 619. 
 
 ' It h,as been said in some cases that * Hareus i;. Germania Fire Ins. Co., 
 
 the agreement or act, wliich is thus to 123 Mo. 403; Sisson v. Hibbard, 75 
 
 determine the nature of an article, must N. Y. 542. See Nat. Bk. v. North, 160 
 
 be made or done before its annexation Pa. St. 303 ; Cunningham v. Cureton, 
 
 to the realty. See Gibbs i;. Estey, 15 96 Ga. 489. 
 
FIXTURES. 21 
 
 are often dealt with as matters for investigation separate and 
 distinct from that already considered, yet they will ordinarily 
 be found, in the last analysis, to have been used by the courts 
 as subsidiary criteria to arrive at the reasonably presumable 
 intent of the use or annexation. Their great impoi'tance for 
 that purpose is directly or indirectly emphasized by nearly 
 every decision upon the law of fixtures. It will conduce to 
 clearness of thought to regard and treat them in that light. 
 
 2. Annexation as a Criterion. 
 
 § 17. Fixtures — Anaezation, Use, or Enjoyment, aa deter- 
 mining whether they are Realty or Personalty. — Constructive 
 Annexation. — The annexation of a fixture to realty may be 
 either actual or constructive. It is actual when the article is 
 physically attached to or united with the land ; constructive, 
 when no such real annexation exists, but the article is com- 
 monly used as appurtenant to the real property, appropriated . 
 and adapted to it and made accessory or reasonably necessary 
 to its beneficial use and enjoyment.^ The maxim quicquid 
 plantatur solo solo cedit was formulated with primary reference 
 to things firmly attached to the land. Actual, physical an- 
 nexation was at first necessary to convert a chattel into real 
 property. 2 But as soon as the courts began to give more heed 
 to the matter of intent, they discovered many things which, 
 although not actually united to the realty, were to be treated 
 as a part of it, under the law of fixtures. It was accordingly 
 held, as early as the fourteenth year of Henry VIII., that a 
 millstone, which had been removed from the mill to be picked 
 and was intended to be restored to its original position, was 
 passed by a deed conveying the mill.^ Since that time the 
 doctrine of constructive annexation of fixtures has been fully 
 recognized.* Other illustrations of things so annexed are 
 
 1 Wystow's Case, 4 Man. & Ry. 280, ' Broom's Legal Maxims, p. 401 et 
 
 note ig) ; Liford's Case, 11 Coke, 46 b, leq.; Diederich v. Kose, 228 111. 610. 
 
 50 b; Voorhis v. Freeman, 2 Watts & » Wystow's Case, 14 Hen. VIII. 25 b, 
 
 S. (Pa.) 116; Williamson v. N.J. So. which will be found translated in 4 
 
 R. Co., 29 N. J. Eq. 311,. 330. " In re- Man. & Ry. 280, note (j) ; Liford's 
 
 spect to all rases of constructive annex- Case, 1 1 Coke, 46, 50 b. 
 
 ation, there exist both adaptation to the * See Co. Lit. 8 a; Cro. Eliz. 372; 
 
 enjoyment of the land and localization Delaware, etc. R. Co. v. Oxford Iron 
 
 in use as obvious elements of distinction Co., 36 N. J. Eq. 452 ; Amos & Ferrard 
 
 from mere chattels personal." Hoyle on Fixtures, p. 1 68 ; E well on Fixtures, 
 
 V. Pittsburgh & M. R. Co., 54 N. Y. 3 14, pp. 33-39. 
 323. 
 
22 INTRODUCTION AND OUTLINE. 
 
 'door keys, detached door knobs, doors, windows, and window- 
 blinds, which are to be replaced upon the house, fences taken 
 down but to be rebuilt upon the same land, and a church bell 
 taken down and set loosely upon the premises while the church 
 edifice is being repaired or rebuilt.^ A common result of 
 constructive annexation is the making of the article at once a 
 fixture and a part of the real property. ^ And, in order to 
 produce these results, the thing must be appropriated and 
 specially adapted to the real property, used as accessory to its 
 enjoyment, and reasonably necessary to give it completeness.^ 
 Thus, a door key held for sale in the shop of a vendor of such 
 articles is personal property ; but when it has been bought by 
 the owner of a house and fitted to the lock of one of the doors 
 and is used for the purpose of locking and unlocking the 
 same, it has become a part of the realty, though its owner 
 may carry it aroiiad in his pocket.* So a movable window- 
 blind, by being fitted and adjusted to the window of a house, 
 may become and remain a part of the realty, although at the 
 time when the question as to its nature arises it is not actually 
 used at the window to which it belongs.® Sach adaptation of 
 chattels to real property and their use in connection with it 
 point strongly to the conclusion that they have become a part 
 thereof. This is because they indicate an intention on the 
 part of their owner that they should be so treated. The 
 method of using articles, however, and their fitness for and 
 adaptability to the enjoyment of the land, will frequently not 
 be conclusive as to such intention. The application of other 
 criteria, or clear, direct evidence of intent may rebut the pre- 
 sumption which would otherwise arise from this test. Such, 
 for instance, is frequently the result when the parties between 
 whom the question arises are landlord and tenant, or their 
 legal representatives.* 
 
 § 18. Actual Annexation — Effect of Removal. — When the 
 ■fixture is actually fastened or united to the real property, one 
 
 1 Liford's Case, 11 Coke, 46, .50b ; R. Co., 54 N. Y. 314, 323, quoted supra; 
 
 Bishop V. Elliott, 11 Exch. 113; State Tyler on Fixtures, p. 58. 
 -V. Elliott, 11 N. H. 540; Hill v. Went- * Bishop v. Elliott, 11 Exch. 113. 
 
 worth, 28 Vt. 428, 436; Dudley v. « Liford's Case, 11 Coke, 46, 50 b; 
 
 Hurst, 67 Md. 44 ; Goodrich v. Jones, 2 Walker v. Sherman, 20 Wend. (N. Y.) 
 
 Hill (N. Y.), 142; Aldine Mfg. Co. v. 636; Goddardr. Bolster, 6 Greenl. (Me.) 
 
 Barnard, 84 Mich. 632; Congr. Soc. 427; State v. Elliott, 11 N. H. 540. 
 of Dubuque v. Eleming, 11 Iowa, 533. « See discussion of this relationship 
 
 ^ Ibid. as affecting rights in fixtures, §§ 31-37, 
 
 ' Ibid. ; Hoyle v. Plattsbnrgh & M. infra. 
 
FIXTURES. 23 
 
 of the chief matters to be investigated is whether or not its 
 removal would leave the premises in a worse condition than 
 they were before it was taken away.* This test is to be 
 applied by considering what would be the condition of the 
 realty immediately after the article in question should be 
 removed and before any repairs were made. He who claims 
 the right to take the fixture from the land can not maintain 
 his position merely by showing a readiness on his part to 
 make any repairs which might become necessary because of 
 its removal. If it can not be removed without thereby mate- 
 rially injuring the real property from which it is sought to be 
 taken, it is usually a part of that real property ; and that fact 
 alone determines the rights of the parties by whom it is 
 claimed.^ Thus, in an early English case, the question at 
 issue was as to the nature of articles composing the stock of 
 a distiller. They consisted of certain stills firmly set in 
 brickwork and let into the ground, vats supported by and 
 resting on brickwork and timber, but not let into the ground, 
 and other vats standing on frames of wood, which likewise 
 were not let into the ground but stood upon the floor. It was 
 decided that the stills were a part of the realty, but that all 
 of the vats were personal property. ^ Where a portable grist- 
 mill was fastened to a building by bolts and rods, which 
 passed through the frame timbers and floor joists, and the 
 rods and bolts were secured by nuts firmly fastened upon the 
 ends, the mill being designed for a permanent grist-mill 
 for the neighborhood, it was held to be a part of the realty.* 
 
 1 Elwes V. Maw, 3 East, 38 ; Norton that to remove would be to injure the 
 V. Dashwood (1896), 2 Ch. 497 ; Mc- realty was not absolutely conclusiye as 
 Keage v. Hanover F. Ins. Co., 81 N. Y. to the nature of the fixtures. Ex parte 
 38 ; Feeder v. Van Winkle, 53 N. J. Moore v. Banking Co., L. R. 14 Ch. Div. 
 Eq. 370 ; Capeu v Peckham, 35 Conn. 379 ; HiU o. Wentworth, 28 Vt. 428 ; 
 88 ; Ewell on Fixtures, p. 8 et seq. ; Ty- Allen v. Mooney, 130 Mass. 155 ; Crane 
 ler on Fixtures, ch. iv. "■ Brigham, 11 N. J. Eq. 29; Coey's 
 
 2 This test is very strong, and has Estate, 1 Tucker (N. Y. Surr.), 125 ; 
 frequently been treated as conclusive. Ewell on Fixtures, p. 15 et seq. The 
 Wake V. Hall, L. K. 8 App. Cas. 195 ; question, whether or not the fixture 
 Wiltshear v. Cottrell, 1 El. & Bl. 674 ; itself will be injured by its removal, is 
 Onthrie v. Jones, 108 Mass. 191 ; Mc- not material. Matter of City of New 
 Kiernan v. Hesse, 51 Cal. 594; Tyler York, 192 N. Y. 295. 
 
 on Fixtures, pp. 226-228. Of course, ' Horn v. Baker, 9 East, 215. See 
 
 express contract may overcome the pre- also Vorhees v. McGinnis, 48 N. Y. 
 
 sumption. And it has been held in 278 ; Feeder v. Van Winkle, 53 N. J. 
 
 some cases that, even in the absence of Eq. 370. 
 
 contract, strong and firm annexation so * Potter v. Cromwell, 40 N. Y. 287. 
 
24 INTRODUCTION AND OUTLINE. 
 
 But portable engines, looms, machinery, or other fixtures, 
 which are loosely fastened to a house by means of cleats, 
 screws, or screw-bolts, or in such a manner that they can be 
 readily removed without injury to the soil or the structure to 
 which they are attached, are more readily held to be person- 
 alty, unless a different intention is shown by some of the other 
 tests applied. 1 
 
 If the fixture be of a completory character, i. e. necessary to 
 make a finished and symmetrical structure of the building 
 with which it is used, it is uniformly held, in accordance 
 with the above-stated principles, to have become a part of the 
 real property.^ The removal of such an article must neces- 
 sarily leave the premises in a deteriorated condition. A 
 tenant for years of a farm removed the clapboards from one 
 side of the house and built an extension upon that side, pro- 
 jecting the roof so as to make it continuous over the entire 
 structure. When he left the farm at the expiration of his 
 lease he could not take away the extension thus built, because 
 to do so would be to leave the building, in an incomplete 
 condition.^ 
 
 § 19. Weight, Size, etc., of Fixture. — The actual annexa- 
 tion of a fixture to real property may consist either in its 
 being fastened into the soil or in or upon some structure on 
 the land, as in the cases above cited under this subdivision, 
 or in its being simply set or placed upon some part of the 
 realty. When there is no actual fastening shown, yet the 
 great weight or bulk of the article, its location upon the land, 
 or its adaptability to the use to which the premises are put 
 may show that it is a part of the real property.* When it is 
 
 1 Davis !>. Jones, 2 BaiD. & Aid. 165; Mason (U.S.), 459; Winslow d. Mer- 
 
 Minshall I'. Lloyd, 2 M. & W.450; Van- chants' Ins. Co., 4 Met. (Mass.) 306; 
 
 derpoel n. Van Alien, 10 Barb. (N. Y.) Breese v. Bange, 2 E. D. Smith (N. Y.), 
 
 157; Murdock v. Gifford, 18 N. Y. 28; 474, 491 ; Pope v. Jackson, 65 Me. 
 
 Eogers v. Brokaw, 25 N. J. Eq. 4% ; Mc- 162, 166; ToUes v. Winton, 63 Conn. 
 
 Connell o. Blood, 123 Mass. 47 ; Chase 440; Hill v. Mundy, 89 Ky. 36 ; Tyler 
 
 V. Tacoma Box Co., 11 Wash. 377. on Fixtures, p. 104 et seq. In Penn- 
 
 '■' Warner v. Fleetwood, cited in sylvania, indeed, adaptation and ne- 
 
 Herlakenden's Case, 4 Coke, 64 ; Freid- cessity for the reasonable use of the 
 
 lander v. Rider, 30 Neb. 783 ; Snedeker premises is said to be the chief test, if 
 
 V. Waring, 12 N. Y. 170; Watts-Camp- not the only one. Christian v. Dripps, 
 
 bell Co. V. Youngling, 125 N. Y. 1; 28 Pa. St. 271; Morris's Appeal, 88 
 
 Speiden v. Parker, 46 N. J. Eq. 292; Pa. St. 368; Williams's Appeal, 16 AtL 
 
 Teaff V. Hewitt, 1 Ohio St. 511. Rep. 810. And see Reyman r. Bender- 
 
 • Freidlander i'. Rider, 30 Neb. 783 ; son Nat. Bk., 98 Ky. 748 ; Fairis «. 
 Lawton v. Salmon, 1 H. Bl. 259, note a. Walker, 1 Bailey L. iS. C.) 640. 
 
 * Powell V. Monson Mfg. Co., 3 
 
FIXTDBES. 25 
 
 very heavy and its location is such as to point towards an 
 intention to make it permanent, it will readily be held to be 
 realty. Accordingly, where a sculptor placed in the grounds 
 in front of his house a statue of Washington, which with its 
 pedestal weighed about three tons and was simply set upon a 
 solid stone foundation without being in any other way fastened 
 to it, it was decided that the statue was a part of the realty ; 
 and the same conclusion was reached in reference to a sun- 
 dial, constructed upon a block of similar stone and weighing 
 about two hundred pounds, which was appropriately located 
 on a permanent foundation in the same grounds.^ It is 
 upon this principle that monuments and ornamental shafts 
 and statues in cemeteries or on lawns are usually treated 
 as a part of the realty.^ 
 
 § 20. Adaptabiuty to Pramisea. — ■ It is plain from the above 
 discussion that the question of the adaptability of the article 
 to the use of the land is of much importance.^ The fixture 
 may be light in weight and loosely attached to the building, 
 or merely set in it or upon the land ; and yet be so fitted and 
 appropriated to the premises for the purposes for which they 
 are employed as to be clearly a part of them.'' Much stress 
 is laid on this test by some writers and judges. But, here 
 again, although such clear adaptation appear, yet frequently 
 the fixture may be removed as personalty, because it is clearly 
 proved in some way that it was put there with intent to have 
 it removable as a chattel by one who has a right to deal with 
 it in that manner. An illustration of such a one would be a 
 tenant for years or for life.* 
 
 1 Snedeker w. Waring, 12 N. Y. 170, a part of the freefiold or not; but 
 
 a leading case ; Strickland v. Parker, whether it was particularly adapted to 
 
 54 Me. 263, 266; Bainway v. Cobb, 99 the use of the building, and was really 
 
 Mass. 457 ; Feeder v. Van Winkle, 53 necessary to constitute the building fit 
 
 N. J. Eq. 370 ; Ewell on Fixtures, p. for the uses to which it was erected." 
 
 25. Tyler on Fixtures, p. 102 ; Bainway v. 
 
 « Oakland Cem. Co. v. Bancroft, Cobb, 99 Mass. 457 ; Pierce v. George, 
 
 161 Pa. St. 197 ; ToUes v. Winton, 63 108 Mass. 78 ; Voorhis v. Freeman, 2 
 
 Conn. 440; Tyler on Fixtures, p. 57. Watts & S. (Pa. St.) 116; Lyle v. 
 
 ' " For example, look at the ma- Palmer, 42 Mich. 314 ; Quimby w. Man- 
 
 chinery in a cotton manufactory ; the hattan Cloth Co., 24 N. J. Eq. 260. 
 
 question to be examined would be, * Lawton v. Salmon, 1 H. Bl. 259, 
 
 whether the machinery was necessary note a; Whaley v. Koehrich (1908), 
 
 to constitute the factory, and without it 1 Ch. 615 ; Main v. Schwartzwelder, 4 
 
 would the building in which it was used E. D. Smith (N. Y.), 273 ; Day v. Per- 
 
 be a manufactory at all. Whether the kins, 2 Sand. Ch. (N. Y.) 359 ; Pothier, 
 
 machinery was fast or loose would not de communanU, § 56. 
 
 determine the question whether it was ' See §§ 32-34, 38, infra. 
 
26 INTRODUCTION AND OUTLINE. 
 
 § 21. ConclUBiou, as to Annexation. — In concluding this 
 part of the discussion of fixtures, it is safe to say that the 
 consideration of the manner in which the article is annexed 
 to the land, to ascertain its character as realty or personalty, 
 is largely if not chiefly important as helping to determine 
 the intent with which it was placed or used upon the realty. 
 When it is necessary to have it remain there in order to com- 
 plete the structure to which it is attached or with which it is 
 used, or when it can not be removed without material injury 
 to the soil or building, usually the conclusion is practically 
 resistless that it was placed or used there as a permanent 
 annexation to the realty. In such cases this test alone deter- 
 mines the reasonably presumable intent. When, on the other 
 hand, the fixture is loosely attached to the soil or building 
 and its removal would cause no injury, the prima facie con- 
 clusion from such attachment alone is that it is personalty. 
 But this may be easily overcome if the application of any of 
 the other criteria show a contrary intent on the part of him 
 by whom the fixture was annexed. 
 
 3. Relation between the Parties as a Criterion. 
 
 § 22. Relation between Parties, as determining whether Fix- 
 tures are Realty or Personalty — Classes of Parties. — The legal 
 relation between the parties, who are adversely claiming a 
 fixture, is another important criterion for determining whether 
 it is realty or personalty. It must be repeated, however, that 
 this test is also to a large extent subsidiary to the determi- 
 nation of the reasonably presumable intent with which the 
 article was annexed to the land or used in association there- 
 with. Such intent on the part of one who has a permanent 
 interest in the real property is apt to be different from that 
 which actuates a temporary owner. Hence this branch of 
 our subject naturally falls into two chief divisions ; namely : 
 
 (1) The effects of the relations between parties interested in 
 realty upon or in connection with which fixtures have been 
 placed or used by one having a permanent interest; and 
 
 (2) The effects of the relations between interested parties 
 upon fixtures which have been placed on land or used in 
 association with it by one having a temporary interest. The 
 parties between whom the questions arise in the first of these 
 chief divisions are: a. Vendor and vendee; b. One under 
 
FIXTURES. 27 
 
 contract to sell and one under contract to buy; c. Heirs or 
 devisees and personal representatives of a deceased owner of 
 the land; d. Co-tenants of the realty, including tenants in 
 common, joint tenants, coparceners, tenants by the entirety, 
 and partners; e. Mortgagor and mortgagee of the realty; 
 /. Unpaid vendor, mortgagee, or other lienor of the fixture, 
 and vendee, mortgagee, or other lienor of the realty. Those 
 between whom the questions arise in the second chief divi- 
 sion are : a. Landlord and tenant for years ; h. Tenant for 
 life or his personal representatives, and remainderman, rever- 
 sioner, or other subsequent owner of the land ; and c. Other 
 kinds of temporary holders and t,he succeeding owners of the 
 real property. The effects of each of these relationships will 
 be separately considered. 
 
 § 23. ^l) Fixtures placed upon Land by its Permanent Owner. 
 — In all of those cases in which the attachment to the land 
 has been made by a permanent owner, the general presump- 
 tion of law, in the absence of positive evidence to the con- 
 trary, is that the fixtures have become part of the realty. ^ 
 This is a natural presumption arising from the well known 
 fact that most structures erected upon land by its absolute 
 owners are intended to be permanent. But this conclusion 
 may be readily prevented by direct evidence that such was 
 not the intent of him by whom the article was annexed, or by 
 the stronger adverse presumption which may sometimes arise 
 from the application of one or more of the other criteria above 
 discussed. Thus, by direct agreement with his mortgagee at 
 the time when he annexes fixtures to his land, a mortgagor 
 may retain them as personal property ; ^ and the owner of land 
 may, of course, so place chattels of any kind upon it as to 
 show clearly by their position, method of annexation, or want 
 of adaptability to the premises that he intended to have them 
 remain personalty.* In the light of these general rules, each 
 of the relations under this chief division may be briefly 
 examined. 
 
 1 Lawton v. Salmon, 1 H. Bl. 259, Co., 59 Mo. App. 244 ; Christian «.' 
 
 note a; Elwes v. Maw, 3 East, 38; Dripps, 28 Pa. St. 271 ; Boyd v. Shor- 
 
 Lawton v. Lawton, 3 Atk. 13 ; Nor- rock, L. R. 5 Eq. 72. See Andrews •>. 
 
 {on V. Dashwood (1896), 2 Ch. 497 ; Day Button Co., 132 N. Y. 348. Bat 
 
 Snedeker v. Waring, 12 N. Y. 170 ; Mc- such cases rarely occur ; and ordinarily 
 
 Fadden w. Allen, 134 N. Y. 489 ; Bain- fixtures placed on land by a mortgagor 
 
 way V. Cobb, 99 Mass. 457 ; Kinsell v. become part of the security for the 
 
 Billings, 35 Iowa, 154. mortgagee. See last preceding note. 
 
 ' Heirkamp v. La Motte Granite ^ ^qj^ on intention, §§ 13, 20, supra. 
 
28 INTRODUCTION AND OUTLINE. 
 
 § 24. a. Between Vebdor and Vendee. — The presumption 
 is strong, in favor of the vendee, that fixtures are real prop- 
 erty and pass to him under the deed. Public policy and in 
 many instances the doctrine of estoppel in pais preclude the 
 vendor apparently to increase the value of land by annexing 
 chattels to it, and then, having by such means induced a pur- 
 chase, to remove from the land the things thus attached.^ 
 Numerous authorities emphasize this strong presumption in 
 favor of the vendee.^ In order to rebut it, the vendor must 
 produce clear evidence of his contrary intent and his absolute 
 fairness in dealing with the purchaser.^ 
 
 § 25. h. Between One under Contract to Sell and One under 
 Contract to Buy. — The presumption is also strong that fixtures 
 are embraced within a contract for the purchase and sale of 
 the land. He who is under agreement to buy may ordinarily 
 insist that they shall pass by the deed, or may refuse to com- 
 plete his purchase of the land, though the title to that be 
 good, if the vendor can not give good title to the fixtures.* 
 When one who is in possession of realty undef contract to 
 buy it annexes fixtures thereto and then wrongfully fails to 
 complete his purchase, the articles so attached are presumed 
 to have become a part of the realty and to remain the property 
 of the owner of the land. The proposed vendee may obtain 
 title to the fixtures by completing his contract; and, if he fail 
 to do so, his loss of them is occasioned by his own fault. ^ If, 
 on the other hand, he who is in possession under contract to 
 purchase place fixtures upon the land and then the owner can 
 not or will not convey to him the title, the articles so annexed 
 are presumed to remain the personal property of him who 
 annexed them.® But, of course, in either of these cases such 
 presumption as to the character of the fixtures may be over- 
 
 1 Notes on intention, §§ 13, 20, supra. 304 ; Mich. Mut. Life Ins. Co. v. Cronk, 
 
 2 Ogden V. Stock, 34 HI. 522; Mc- 93 Mich. 4&; Kingsley v. McFarland, 
 Fadden v. Allen, 134 N. Y. 489, 491 ; 82 Me. 231 ; Seatoff v. Anderson, 28 
 Leonard ». Clough, 133 N. Y. 292 ; Wis. 212. But a third party, who has 
 Poor u. Oakman, 104 Mass. 309, 318; annexed a fixture as personalty, with 
 Glidden v. Bennett, 43 N. H. 306 ; the acquiescence of the intended vendor 
 Lapham v. Norton, 7 1 Me. 83 ; Ewell and vendee, may remove it even after 
 on Fixtures, p. 274 et seq. the latter has broken his contract to pur- 
 
 ' Dolliver v. Ela, 128 Mass. 557; chase. Brannon w. Vaughan, 66 Ark. 87. 
 Hare v. Horton, 5 Barn. & Ad. 715; « Goodwin v. Perkins, 134 Cal. 564; 
 
 Tyler on Fixtures, p. 553. Rush County v. Stubbs, 25 Kan. 322 ; 
 
 * Authorities in last two preceding Lapham v. Norton, 71 Me. 83. See 
 
 notes; Tyler on Fixtures, p. 542 e< scj. Carpenter v. Pocasset Mfg. Co., 180 
 
 ,te 0. Wixon, 128 Mass. Mass. 130. 
 
FIXTURES. 29 
 
 come by positive evidence of the contrary intent of the parties, 
 or by the application of any of the other criteria in such 
 manner as to produce a stronger adverse presumption. 
 
 § 26. c. Between Heirs or Devisees, and Personal Representa- 
 tives of a Deceased Owner of the Land. — In early times the 
 heir was always given the benefit of any doubt, in contests 
 between him and the executors or administrators of his 
 deceased ancestor. ^ While he is not aided so strongly by the 
 modern common law, yet he still has in his favor a presump- 
 tion that the fixtures of his ancestor pass to him with the real 
 property which he inherits and with which they are associ- 
 ated.'* Such presumption may be readily rebutted by evidence 
 that the ancestor intended the articles to remain personalty. 
 And the circumstances attending the latter's annexation or 
 use of them are here given full consideration in determining 
 whether he regarded them as part of his realty or intended 
 that they should remain chattels.' A devisee has in his favor 
 substantially the same rule as that which obtains between 
 the heirs and the personal representatives of a deceased owner 
 of real property. He takes all the fixtures unless the testator 
 is shown to have intended otherwise.* (a) 
 
 (a) In New York, the rights of heirs and devisees in fixtures are afiected 
 by the following statute : " The following shall be deemed assets and go to 
 the executors or administrators, to be applied and distributed as part of 
 the personal property of the testator or intestate, and be included in the 
 inventory. ... 4. Things annexed to the freehold, or to any building, 
 for the purpose of trade or manufacture, and not fixed into the wall of a 
 house so as to be essential to its support. . . . 9. . . . Things annexed 
 
 1 Year Book, 21 Hen. VII. 26 b; House v. House, 10 Paige Ch. (N. Y.) 
 
 Elwes V. Maw, 3 East, 38, 51 ; Norton 158; Hays v. Doane, 11 N. J. Eq. 84 j 
 
 V. Dashwood (1896), 2 Ch. 497; Bain- Kinsell v. Billings, 35 Iowa, 154. 
 
 way V. Cobb, 99 Mass. 457 ; Shepp. ' Effects of clearly expressed intent, 
 
 Touchst. 470. § 13, supra. It may be said generally 
 
 * The English courts at one time that an lieir is a favorite of the law. 
 
 manifested a tendency to relax this In several respects this favor has been 
 
 rule in favor of the personal repre- somewhat relaxed, or done away with 
 
 sentatives of a deceased owner of land, by statutes, in modern times. See 
 
 especially when the fixture had been Bosley v. Bosley, 55 U. S. (14 How.) 
 
 placed upon the property for the pur- 390, 397, 398 ; Goodwin v. Coddington, 
 
 poses of trade or manufacture or do- 154 N. Y. 283 ; 2 Jarman on Wills 
 
 mestic use. But those cases have since (4th Eng. ed.), p. 840, Rules V., VI. 
 
 been overruled; and the common law * Norton v. Dashwood (1896), 2 Ch. 
 
 as stated in the text may now be re- 497 ; Dana v. Burke, 62 N. H. 627 j 
 
 garded as settled on both sides of the Tyler on Fixtures, pp. 701-703. And 
 
 Atlantic. Fisher v. Dixon, 12 CI. & F. see Batterman v. Albright, 122 N. Y, 
 
 312; Tuttle v. Bobinson, 33 N. H. 104; 484, 488. 
 
30 INTRODUCTION AND OUTLINE. 
 
 § 27. d. Co-tenants, including Tenants in Common, Joint 
 Tenants, Coparceners, Tenants by Entirety, and Partners. — To all 
 
 of these relationships the general rules as to fixtures, which, 
 apply between vendor and vendee, heir or devisee and per- 
 sonal representatives, etc. , are applicable. The articles are pre- 
 sumed to be a part of the realty, unless the method of their 
 annexation or use, or other evidence of the intention of the 
 parties, show that they remain chattels.^ And this is true 
 whether they be placed upon the land by the act of all of the 
 
 to the freehold, or to a building, shall not go to the executor, but shall, 
 descend with the freehold to the heirs or devisees, except such fixtures as 
 are mentioned in the fourth subdivision of this section. The right of an 
 heir to any property, not enumerated in this section, which by the common 
 law would descend to him, is not impaired by the general terms of this- 
 section." N. Y. Code Civ. Pro. § 2712, subd. 4 and 9, which statute was 
 originally 2 R. S. 82, § 6, subd. 4 and §§ 7, 8. In their original note to 
 this statute the revisers say : " It has been supposed that the same legal 
 character should be given to an ai'ticle, without reference to the parties in 
 controversy ; and that therefore certain fixtures, which are deemed chattels 
 as between landlord and tenant, should be considered in the same light as 
 between executor and heir.". (3 R. S. 639, 2d ed.). In the case of House- 
 V. House (10 Paige, 158), however, Chancellor Walworth decided that the 
 water-wheels, mill-stones, belting apparatus, and running gear of a grist 
 and flour mill, though clearly not fixed into the wall of the house so as to 
 be essential to its support, were parts of the realty and descended with th& 
 mill to the heir at law. See also Walker v. Sherman, 20 Wend. 636, 645. 
 These decisions were approved and followed in Buckley o. Buckley, 11 
 Barb. 43, and commended in a dictum of Johnson, C. J., in Murdock v. 
 GifEord, 18 K. Y. 28, 32. And while in Ford v. Cobb, 20 N. Y. 344, 
 Denio, J., expresses himself as not entirely satisfied with the reasoning of 
 the Chancellor in House v. House, yet he adds : " But as the judgment in 
 that case may be said to have become a rule of property, it should not be 
 disturbed without the greatest consideration, and certainly not in a case 
 like the present, which may be satisfactorily disposed of on other grounds." 
 It may be safely said, therefore, that, at least where the decedent owned 
 both the land and the fixture as a complete establishment or business plant,, 
 the heir or devisee takes the fixture the same as at common law ; and that, 
 if any change exist by virtue of the statute, it is in the cases in which the 
 article in question was not owned as a part of the ownership of the realty 
 or was applied and used for a purpose substantially distinct from the main 
 purpose of the other structures, i. e. , it is not an essential part of one com- 
 plete business plant or establishment. See Ewell on Fixtures, pp. 225-227;. 
 Tyler on Fixtures, pp. 691-699. 
 
 1 Parsons K. Copeland, 38 Me. 537 ; Aldrich v. Husband, 131 Mass. 480; 
 
 Walker u. Sherman, 20 Wend. (N. Y.) Crest v. Jack, 3 Watts (Pa.), 238; 
 
 636; Baldwin !•. Breed, 16 Conn. 60, Tyler on Fixtures, p. 707. 
 66 ; Plnmer v. Plumer, 30 N. H. 558 ; 
 
FIXTURES. 31 
 
 GO-tenants or by that of one or more of them. It is simply an 
 outgrowth of the general principle by which improvements 
 made by one or more of several co-owners of real property 
 prwia facie belong to them all.^ 
 
 § 28. e. Mortgagor and Mortgagee of the Land. — Several 
 different theories exist in this country as to the nature of a 
 mortgage of real property and the remedies which it affords 
 to the mortgagee.* But the courts of England and of all the 
 United States are agreed that, in determining the rights of 
 parties contending for fixtures, a mortgage is to be treated in 
 the same way as a deed; and the mortgagee is given the same 
 preference over the mortgagor which is accorded to the vendee 
 over the vendor.^ The fixture will be treated as part of the 
 security for the mortgage on the land, unless one or more 
 of the other criteria afford evidence strong enough to rebut the 
 presumption that it is realty. The result is the same, as 
 between these parties, whether the mortgage was delivered 
 before or after the chattel was placed upon the real property, 
 or whether it is a mortgage in fee, or for a term of years, or 
 simply of a leasehold interest owned by the mortgagor.* In 
 annexing fixtures to the land after giving the security, the 
 mortgagor is regarded as looking to the redemption of the 
 property when the debt shall become due, and thus as mak- 
 ing additions for his own benefit.* However expensive the 
 improvements may be, he can save himself from loss by 
 paying the debt and redeeming the entire property from the 
 mortgage. 
 
 § 29. f. Unpaid Vendor, Mortgagee, or other Lienor of the 
 Fixture, and Vendee, Mortgagee, or other Lienor of the Land. — 
 The questions which are presented under this heading may 
 arise from one or more of a number of diverse transactions ; 
 
 1 CosgrifE V. Fobs, 152 N. Y. 104; 17 Vt. 403; Burnside v. Twitchell, 43 
 
 Stevens v. Melcher, 152 N. Y. 551, 565 ; N. H. 390 ; Rogers v. Brokaw, 25 N. J. 
 
 § 698, infra. Of course, by express or Eq. 496. And see Nat. Bk. v. Levy, 
 
 implied agreement properly made, ad- 127 N. Y. 549, 553; Tyler on Fixtures, 
 
 ditions made to land so held may be p. 559 et seq. 
 
 removed as his chattels by or for the * Ibid. ; Southport Banking Co. v. 
 
 one who annexes theiu. Thompson, L. R. 37 Ch. Div. 64; Joliet 
 
 " These are explained at §§ 74-80, First Nat. Bk. v. Adams, 138 lU. 483 ; 
 
 infra. Kruger v. Le Blanc, 75 Mich. 424 ; 
 
 » Colegrave v. Dias Santos, 2 B. & C. Hunt v. Bay State Iron Co., 97 Mass. 
 
 76; Hnddersfield Banking Co. v. Lis- 279; Corliss v. McLagin, 29 Me. 115; 
 
 ter (1895), 2 Ch. 273 ; Snedeker v. War- Ewell on Fixtures, p. 282. 
 
 ing, 12 N. Y. 170; Pratt «. Baker, 92 ^ ibid.; McConnell v. Blood, 123 
 
 Hun (N. Y.), 331 ; Leland v. Gassett, Mass. 47. 
 
32 INTRODUCTION AND OUTLINE. 
 
 but each of them presents the case of two innocent claimants 
 of a fixture which is on the land of some third party, generally 
 a wrongdoer. Thus, suppose that A purchases of B on credit 
 an engine and heavy machinery, the agreement being that the 
 title to them shall not pass to A until he has fully paid for 
 them, then A fastens them firmly upon his land, upon which 
 C already holds a mortgage or upon which A subsequently 
 gives a mortgage to C, and A does not pay for the fixtures 
 tiius annexed to the freehold nor satisfy C's mortgage; the 
 question may arise as to whether B, as an unpaid vendor of 
 the engine and machinery, shall be first entitled to them, or 
 whether C, as mortgagee of the property to which they are 
 attached, shall have a prior claim to them as part of the secur- 
 ity for his mortgage debt. So if A, having already annexed 
 fixtures to his land, treat them as chattels and secure a loan 
 to himself from B by a chattel mortgage upon them, and 
 subsequently as security for another loan to himself from C 
 give to C a mortgage purporting to cover the fixtures as well 
 as the land, and neither loan be paid, the question may arise 
 between B and as to which of their claims upon the fixtures 
 shall have preference. Again, one of the adverse claimants 
 may be a chattel mortgagee of the fixture and the other a 
 mechanic's lienor upon the land; or one may be a conditional 
 vendor of the fixture, while the other is a vendee of the real 
 property to which it is annexed. In short, such questions 
 may be presented whenever a fixture is claimed by two parties, 
 either of whom would be entitled to it as between himself and 
 a third person, and that third person is the one who so dealt 
 with the article as to give it the character of a fixture. 
 
 The solution of such questions depends largely upon the 
 extent to which the expressed intention of the owner of 
 the land, at the time when he so annexed or dealt with the 
 chattel, is to be given effect by the courts. Some courts make 
 this expression of intention the chief controlling element, 
 others give it less weight, while still others refuse to give it 
 any material force in arriving at their decisions. There result 
 three distinct rules for the solution of such controversies. 
 
 Where treated as Personalty. — In those states in which 
 the greater stress is laid on the landowner's expression of 
 intention at the time when he dealt with the fixture as such, 
 the person who by virtue of such dealing holds a chattel, 
 mortgage against it, or any other right by a contract treating: 
 
FIXTUKES. 83 
 
 it as personalty, is usually given the preference, when the fix- 
 tare can be removed without injury to the realty, unless the 
 other claimant has the protection of a statute. Such is the 
 law of New York, Alabama, Indiana, Kansas, Michigan, Texas, 
 and perhaps some other states.^ The fact that the owner of 
 the land intended that the article should remain personalty, 
 and at the time of annexing it expressed such intention in his 
 contract with its vendor or chattel mortgagee, is, in the ab- 
 sence of controlling statute and of fraud and bad faith on the 
 part of the latter, conclusive, in his favor, in determining it to 
 be that kind of property .^ But some statutes, such as that of 
 New York, give the prior right to such a fixture to one who 
 becomes an innocent purchaser or encumbrancer of the realty, 
 for value, after it is attached, unless the agreement by which 
 the article is sought to be retained as personalty is so filed, or 
 recorded, and indexed, that a proper examination of the title 
 to the real property would reveal its existence.^(a) The courts, 
 moreover, strive to avoid all injustice in the carrying out of 
 these contracts. And, if the claimant who asserts that the 
 
 la) The New Tork statute provides that a conditional sale of a chattel 
 attached, or to be attached, to a building, shall be void as against subse- 
 quent bona fide purchasers or encumbrancers of the premises on which 
 the building stands, and as to them the sale of the chattel shall be deemed 
 absolute, unless the contract of conditional sale shall describe such prem- 
 ises sufficiently for their identification, stating the block and section in 
 any city where the block system of recording and indexing conveyances is 
 used, and shall be filed and indexed as prescribed by the statute — so that a 
 proper examination of the title to the premises would reveal the existence 
 of the conditional sale contract. L. 1904, ch. 698, amending Pers. Prop. 
 L. (L. 1909, ch. 45), §§ 62-64 ; Kirk v. Crystal, 118 App. Div. 32, 34. 
 
 1 Tifft V. Horton, 53 N. Y. 377 ; real estate rest, as it appears, upon the 
 Sisson 0. Hibbard, 75 N. Y. 542 ; presumptions which the law makes of 
 Davis V. Bliss, 187 N. Y. 77, 82 ; Wash- what their purpose is in the act of an- 
 ington Trust Co. v. Morse Iron Works, nexation. . . . Hence I conclude that the 
 187 N. Y. 307 ; Brand v. McMahon, 15 agreement of the owner of the land with 
 N. Y. Supp. 39; Warrenn. Liddell, 110 the plaintiffs" (the plaintiffs were the 
 Ala. 232; Thomason v. Lewis, 103 Ala. chattel mortgagees), " as it did fully ex- 
 426; Binkley v. Forkner, 117 Ind. 182; press their distinct purpose that these 
 Eaves w. Estis, 10 Kan. 314; Burrill u. annexations of boiler and engines should 
 S. N. Wilcox Lumber Co., 65 Mich. not make them a part of the real estate, 
 571 ; Lansing I. & E. Works v. Walker, was sufficient to that effect without any 
 91 Mich. 409; San Antonio Brewing concurring intention of the defendants 
 Ass'n 0. Ice Co., 81 Tex. 99 ; In re as prior mortgagees." See Globe Mar- 
 Allen (1907), 1 Ch. 575; Ewell on ble Mills Co. u. Quinn, 76 N. Y. 23 ; Mc- 
 Kxtures, p. 282 et seq. Eadden v. Allen, 134 N. Y. 489, 494. 
 
 2 Tifft V. Horton, 53 N. Y. 377, in » N. Y. L. 1904, ch. 698, amending 
 which Eolger, J., says (p. 383) : " The Pers. Prop. L. (L. 1909, ch. 45), §§ 62- 
 general rules governing the rights of 64; Kirk «. Crystal, 118 N. Y. App. Div. 
 parties in chattels thus annexed to the 32, 34 ; 1 Stim. Amer. Stat. L. § 1983. 
 
34 INTRODUCTION AND OUTLINE 
 
 fixture is personal be shown to have obtained his alleged 
 interest fraudulently, or not in good faith, or to have acted 
 so as to be estopped to demand it, or to have sold it with full 
 knowledge that it was to be placed in a building in such man- 
 ner as to form a part of the realty, the other party, who is 
 an innocent purchaser or encumbrancer of the realty, for value 
 and without notice, prevails.^ 
 
 Where treated as Realty. — In those jurisdictions in which 
 the expressed intention of the owner of the real property 
 is given but little weight in such controversies, the vendee, 
 mortgagee, or other lienor of the land is generally given the 
 preference over him who demands the fixture as personalty. 
 This is the rule more favored in Massachusetts, Maine, Dela- 
 ware, and possibly one or two other states.^ In such jurisdic- 
 tions, unless the mortgagee or other claimant of the fixture 
 as realty has consented to its being placed or retained on the 
 land as a chattel, or has done some act by which he is estopped 
 to deny that he has so consented, the maxim quiequid planta- 
 tur solo, solo cedit is given full operation in his favor; he is 
 regarded as the one to whom the owner of the land is reason- 
 ably presumed to have intended to pass the fixture, and it 
 goes to him as part of his real-property security. It has 
 been suggested that this rule is adopted in favor of a mortgagee 
 of the land, because in those states and countries where it ob- 
 tains he is regarded as in effect the owner or purchaser.^ But 
 this suggestion, while showing some reason for the differences 
 in result, does not fully account for the divergence of the 
 rule of New York from that of Massachusetts ; for the New 
 York courts give the preference to the claimant of the fix- 
 ture as a chattel, so long as he is innocent of any fraud or 
 unfair dealing, and is unaffected by statute, whether he is con- 
 tending against a mere lienor of the laud, such as a mortgagee 
 who is not there regarded as the owner or purchaser of the 
 land, or against an absolute owner, such as a vendee. The real 
 distinction between the two rules lies in the fact that the 
 
 1 See Jermyn v. Hunter, 93 N. Y. Hunt v. Bay State Iron Co., 97 Mass. 
 
 App. Div. 175; Fitzgibbons Boiler Co. 279 ; Ridgeway Stone Co. u. Way, 141 
 
 V. Manhasset Eealty Corp., 125 N. Y. Mass. 557; Meagher «. Hayes, 1 52 Mass. 
 
 App. Div. 764 ; Excelsior Brewing Co. 228 ; Hawkins v. Hersey, 8? Me. 394 ; 
 
 V. Smith, 125 N. Y. App. Div. 668; Watertown Steam Engine Co. u. Davis, 
 
 Ewell on Fixtures, pp. 29, 36, 41 ; In- 5 Houst. (Del.) 192 ; Albert v. Uhrich, 
 
 tent shown by Contract, § 14, supra. 180 Pa. St. 283. 
 
 " Clary v. Owen, 15 Gray (Mass.), = Folger, J., in Tifit u. Horton, 53 
 
 622; Pierce v. George, 108 Mass. 78; N. Y. 377, at p. 384. 
 
FIXTURES. 35 
 
 courts of Massachusetts give the more weight to the -presump- 
 tion that the permanent owner of land intended his fixtures 
 to be realty in favor of those who claim interests in the land 
 through him; while the New York courts lay the greater 
 stress upon the expressed intention of the landowner, as found 
 in the contract between him and the party who insists that 
 the fixture is a chattel.^ 
 
 Where the Time of Annexation is most Material. — A third 
 rule for the solving of such questions is adopted by the 
 United States Supreme Court and the courts of New Jersey, 
 New Hampshire, Vermont, Illinois and the majority of the 
 American states; also, in substance, by the English courts. It 
 loses sight almost entirely of the intention of the owner of 
 the land in annexing the fixture, and works out the equities 
 of the parties to the action by determining whether or not the 
 vendee, mortgagee, or other lienor of the land justifiedly 
 relied upon the fixture as constituting a part of the realty at 
 the time when he made his purchase or acquired his lien. If 
 he did so, then he is given the preference; while if he did 
 not, the article is treated as personal property so far as it is 
 necessary to so treat it in order to satisfy first the claim of 
 the other party. ^ Thus, by this method of deciding between 
 the adverse claims, if a fixture were placed upon the land and 
 a chattel mortgage upon it given to A for money loaned by 
 him to the landowner, and subsequently B without notice of 
 A's rights and for money advanced by him to the landowner 
 were to take a mortgage upon the land with the fixture thus 
 
 1 Between the mortgagor and real- Press Co. v. Wormley, 166 111. 383; 
 property mortgagee the presumption is German Sav. & Loan Soc. c. "Weber, 16 
 practically conclusive that the fixture Wash. 95; Hobson v. Gorringe (1897), 
 belongs to the latter. The argnment 1 Ch. 183. Some of the later English 
 of the Massachusetts courts is that, since authorities favor the real-property mort- 
 the mortgagor himself can not remove gagee, who obtained his lien first, only 
 it as a chattel, he can not give to in case he has entered under his mort- 
 another the right to do so. See cases gage. Gongh v. Wood (1894), 1 Q. B. 
 cited in preceding note, and especially 713. And see Hobson v. Gorringe 
 Clary v. Owen, 15 Gray, 522. (1897), 1 Ch. 183. 
 
 2 Posdick V. Schall, 99 U. S. 235, Where the articles have become so 
 251 ; United States v. New Orleans E. firmly attached as in effect to have lost 
 Co. 79 U. S. (12 Wall.) 362; Porter v. their separate identity and become part 
 Pittsburg Bessemer Steel Co.', 122 U. S. of 'lie realty, the claimant of them aa 
 267 ; Campbell v. Roddy, 44 N. J. Eq. realty prevails. Porter v. Pittsburg 
 244; Tibbets v. Home, 65 N. H. 242; Bessemer Steel Co., 122 U. S. 267; 
 Page V. Edwards, 64 Vt. 124 ; Paine v. Binkley v. Forkner, 117 Ind. 176. See 
 McDowell 71 Vt. 28 ; Binkley v. Fork- Falaenaw v. Reliance S. F. Co., 69 Atl. 
 ner 117 twl- 182, 185; Simpson Brick Rep. 1098, 1100 (N. J. Ch.). 
 
36 INTRODUCTION AND OUTLINE. 
 
 annexed to it, B's claim would have the preference and A 
 could take only so much of the value of the fixture as was not 
 needed in satisfying B's mortgage;^ but if, on the other hand, 
 B were to take his. real-estate mortgage lefore the article was 
 annexed to the land and mortgaged to A as a chattel, then 
 A's claim would have the preference,, and B could take only so 
 much of the value of the fixture as was not needed to satisfy 
 A's chattel mortgage. ^ While this rule discards most of the 
 ordinary criteria for determining whether a fixture is real 
 property or personalty, it seems to be the principle that is 
 most apt to result in substantial justice. 
 
 It should be added that, whatever be the theory upon which 
 this question is decided in any court, if the entire value of 
 the fixture be not needed to satisfy the demand of him in 
 whose favor the decision turns, the residue of its value is held 
 to belong to the other innocent claimant rather than to the 
 owner of the land who has done the wrong. Thus, in those 
 states where the chattel mortgagee or unpaid vendor of the 
 fixture is given the preference, any remaining value of it after 
 his claim is satisfied belongs to the vendee, or mortgagee or 
 other lienor of the real property.^ 
 
 § 30. (2) Fixtures placed upon Land by its Temporary Owner. 
 ^ — A fundamental proposition of the common law is that fix- 
 tures annexed by one man to the land of another are to be 
 regarded prima facie as a part of that land.* Contract 
 express or implied, or natural equities between the partifes, • 
 may show, however, that this is not the nature of some such 
 articles. And the development in business enterprise and 
 wealth in personalty and some modifications of the relation of 
 landlord and tenant have engrafted important modern excep- 
 tions upon the original rule. The rise, growth, and results 
 of those exceptions are to be next examined. They appear in 
 
 1 Hobson V. Gorringe (1897), 1 Ch. they can uot take fixtures against the 
 183; Tibbets v. Home, 65 N. H. 242. claims of persons who have sold them 
 See Sowden v. Craig, 26 Iowa, ] 56. to the debtors, or loaned money on them 
 
 2 Campbell v. Roddy, 44 N.J. Eq. under agreements that they shall remain 
 244 ; General Elec. Co. w. Transit Equip. personalty. Manwaring w. Jenison, 61 
 Co., 57 N. J. Eq. 460; Buzzell v. Cum- Mich. 117; Young v. Baxter, 55 Ind. 
 mings, 61 Vt. 213 ; Dillon v. Barnard, 188 ; Kinsey v. Bailey, 9 Hun (N. Y.), 
 88 U. S. (21 Wall.) 430, 440. See 452. 
 
 Phoenix I. W. Co. v. N. Y. Security ^ Preference of real-property mort- 
 
 Co., 83 Fed. Eep. 757. gagee over mortgagor, § 28, supra; 
 
 Purchasers of realty at execution especially Snedeker v. Waring, 12 N. Y. 
 
 sales acquire no more right than that 170; Rogers r. Brokaw, 25 N. J. Eq. 496. 
 
 held by the judgment debtors. Hence * § 10, supra. 
 
FIXTURES. 37 
 
 connection with three general classes or divisions of relation- 
 ships to the land ; namely : a. That of landlord and tenant for 
 years; h. That of tenant for life or his personal representa- 
 tives, and reversioner, remainderman, or other owner of the 
 subsequent interest in the land; and c. Other kinds of tem- 
 porary holders or tenants and the succeeding owners of the 
 real property. It is in this general department of its consid- 
 eration that the unfolding and scope of the law of fixtures are 
 most readily traced and understood. 
 
 § 31. a. Fixtures annexed by Tenant for Years. — The 
 tenant of real property for a term of years, as he is known to- 
 day, did not exist in common-law jurisdictions previous to 
 the reign of Henry VI. Before that time he who held the 
 land of another for such a limited period was a mere agent or • 
 bailiff of the landowner. ^ He could not retain the property 
 against the will of his employer or principal. Everything 
 that he annexed to or placed upon the freehold, in such a 
 manner as to make it a fixture, he so placed there as the 
 agent or representative of the owner of the real property, and 
 thus made it a part of the land.^ As soon as actions for waste 
 were permitted against such an agent or bailiif in possession 
 of the realty, they began to be brought for his acts in remov- 
 ing such annexations ; and the questions thus presented were 
 at first uniformly decided in favor of the owner of the land.^ 
 The maxim guicquid plantatur solo, solo cedit was given full 
 operation in such instances.* And whatever might be the 
 
 1 Com. Dig. Landl. & T. 5 ; Smith, tlie civil law the form of solo cedit quod 
 Landl. & T. 8-12 ; Goodtitle v. Tombs, solo inmdificatur, and in our law the form 
 3 Wils. 118, 120; Campbell v. Loder, of quicquid plantatur solo, solo cedit, it 
 3 Hurl. & C. 520, 527, n. ; 1 Cruise Dig. followed, in virtue of the relation afore- 
 258. said subsisting between landlord and 
 
 2 Co. Lit. 53 a, 57 a; Gibson v. Ham- tenant, that everything of whatever sort 
 mersmith Railway Co., 32 L. J. Ch. 337. put up upon or put into the soil by the 
 
 ' Tyler on Fixtures, p. 150; notes tenant became pai-t and parcel of the soil, 
 
 to Elwes V. Maw, 3 East, 38. and the tenant had no right even during his 
 
 * " If we call to mind the peculiarity term to remove or to unjix it again. It 
 of the relation subsisting in old times was, in fact, the landlord's fixture from 
 between the lessor and his lessee, — a the first, and the tenant had neither any 
 relation in which status was everything property in it, nor any right nor power 
 and in which contract had no place, the over it, beyond its use, in this the ear- 
 tenant being the mere bailiff or agent liest phase of the agricultural relation, 
 of his landlord, — we can readily under- or so long as this phase of that relation 
 stand how, in that early state of society continued. And it is matter of history 
 and of property, the maxim accessio that the primitive relation subsisted in 
 cedit principali found unobstructed oper- all its unmitigated rudeness for a period 
 ation. From this maxim, which in its sufficient to allow the full development 
 special application to, land assumed in of the law of agricultural fixtures purely 
 
38 INTRODUCTION AND OUTLINE. 
 
 nature of the articles, or for whatever purpose their annexa- 
 tion to the land might have been made, the presumption was 
 that they belonged to the landlord and could not, against his 
 will, be unfixed or removed by the bailiff-tenant. 
 
 By virtue of a number of statutes, the first of which was 
 enacted in the time of Edward I. and the last during the reign 
 of Henry VI., the relation between the landowner and his 
 tenant was gradually changed, until the latter came finally to 
 be recognized, as he now is, as the owner of an interest or 
 estate in the land, which he can maintain during his term 
 against his landlord and all other persons, and the possession 
 of which he may regain by action when wrongfully deprived 
 of the same.i Partly as a result of this change in their posi- 
 tion and rights, and largely also for the purpose of encourag- 
 ing such temporary owners carefully to cultivate and improve 
 the realty and to pay good rents, important exceptions have 
 been engrafted one by one upon the ancient rule as to fixtures 
 associated with land by tenants for years. 
 
 § 32. (a) Trade Fixtures. — The first of those exceptions 
 was made in relation to articles placed upon the land by the 
 tenant /or purposes of trade or 'manufacture. It was, accord- 
 ingly, held by Lord Holt, in Poole's Oase,^ that a soap-boiler 
 might remove, during his term, the soap vats, coppers, 
 kettles, etc., which he had set up upon the demised premises 
 for the purpose of his manufacture and trade and the removal 
 of which would not injure the freehold. Since that decision, 
 in 1704, this exception has been generally recognized. And 
 such articles as temporary sheds or buildings,^ the counters, 
 shelves, and other fixtures in a store,* copper-stills and kettles 
 
 and simply so called, that is to say, of Nay. & P. Co., 125 N. Y. 341 ; Talbot 
 erections and other things which were v. Cruger, 1.51 N. Y. 117; Smith o. 
 indispensable to the bare or necessary Whitney, 147 Mass. 479 ; Firth v. Rowe, 
 enjoyment or culture of the land as 53 i^^. J. Eq. 520 ; Shellar v. Shivers, 
 such." Brown's Law of Fixtures (4th 171 Pa. St. 569; Macdonough t). Star- 
 ed., 1881), p. 7. See People ex reZ. Int. bird, 105 Cal. 15; Carr v. Georgia B. 
 NaT. Co. c. Barker, 153 N. Y. 98. Co., 74 Ga. 73. 
 
 ' This change was completed prob- * Tabor «. Robinson, 36 Barb. (N. Y.) 
 
 ably not later than the year 1458. 1 483, 485 ; Guthrie v. Jones, 108 Mass. 
 
 Wash. R. P. p. "291, note (6th ed., 191; Hanrahan v. O'Reilly, 102 Mass. 
 
 § 608); 2 Poll. & Mait. Hist. Eng. 201; Ombony «. Jones, 19 N. Y. 234; 
 
 L. (2d ed.) p. 106 et se.q. Asheville Woodworking Co. u. South- 
 
 2 1 Salk. 368. See Elwes v. Maw, wick, 119 N. C. 611; Cubbins v. Ayres, 
 
 3 East, 38, and notes. 4 Lea (Tenn), 329 ; Berger v. Hoeruer, 
 
 8 Kissam t. Barclay, 17 Abb. Pr. 36 111. App. 360 ; Felcher v. McMillan, 
 
 (N. Y.) 360; Devin v. Dougherty, 27 103 Mich. 494; Tyler on Fixtures, p. 
 
 How. Pr. (N. Y.) 455; Lewis i>. Ocean 230 et seq. 
 
PIXTDKES. 
 
 39 
 
 for distilling,^ engines and machinery,^ and the like have been 
 allowed to be removed by the tenant, if they could be detached 
 without injury to the building or land.^ The expression 
 "trade fixtures" is commonly employed to include all such 
 articles as are embraced within this exception.* And the 
 word " trade " is given a wide meaning in this connection, 
 and includes practically everything annexed to land for the 
 pecuniary advantage of the tenant and not entirely for agri- 
 cultural purposes.* 
 
 § 33. (b) Domestic Fixtures. — The second exception, which 
 the common law recognized in favor of the tenant for years, 
 relates to articles placed by him upon the land for domestic 
 use and convenience and the necessary enjoyment of the premises. 
 This class of articles is usually denominated domestic fixtures. 
 It includes things employed for ornament or utility or both.^ 
 Thus, stoves,^ portable bath-tubs, ranges and heaters,^ orna- 
 mental chimney-pieces, pier glasses and hangings, and wain- 
 scot fixed only by screws^ are illustrations of such fixtures.^" 
 
 1 Reynolds v. Shnler, 5 Cow. (N. Y.) 
 323; Holmes v. Tremper, 20 Johns. 
 (N. Y.) 29; Moore v. Smith, 24 Ul. 
 512. 
 
 2 Minshall v. Lloyd, 2 M. & "W. 450; 
 Globe Co. V. Qninn, 76 N. Y. 23; 
 Andrews v. Day Button Co., 132 N. Y. 
 348 ; Heffner v. Lewis, 73 Pa. St. 302 ; 
 Smith V. Whitney, 147 Mass. 479 ; Con- 
 rad V. Saginaw Mining Co., 54 Mich. 
 249; Hewitt v. General Electric Co., 
 61 111. App. 168; Merritt v. Judd, 14 
 Cal. 59 ; Brown v. Reno Electric Co., 
 55 Fed. Rep. 229. 
 
 8 Ibid. ; also Wake v. Hall, L. R. 7 
 Q. B. DiT. 295 ; Wiggins Ferry Co. v. 
 Ohio, etc. R. Co., 142 U. S. 396 ;" Wall v. 
 Hinds, 4 Gray (Mass.), 256, 271; Con- 
 ner V. Coffin, 22 N. Y. 538 ; Powell v. 
 McAshan, 28 Mo. 70 ; Seeger t'. Pettit, 
 77 Pa. St. 437 ; Tyler on Fixtures, pp. 
 148-158 ; Ewell on Fixtures, pp. 80-110. 
 
 4 Ibid. 
 
 ' Van Ness v. Pacard, 27 U. S. 
 (2 Pet.) 137; Holmes v. Tremper, 20 
 Johns. (N. Y.) 29 ; Young v. Chandler, 
 102 Me. 251 ; Elwes r. Maw, 3 East, 38 ; 
 Union T. Co. v. W. & S. F. R. Co., 116 
 Iowa, 392 ; Ewell on Fixtures, pp. 80- 
 110. 
 
 6 Elwes V. Maw, 3 East, 38, 53 ; 
 
 Bishop «. Elliott, 11 Ex. 113; Law- 
 rence t. Kemp, 1 Duer (N. Y.), 363. 
 
 ' Roffey V. Henderson, 17 Q. B. 574, 
 575 ; Lawrence v. Kemp, 1 Duer (N. Y.), 
 363. 
 
 8 Guthrie v. Jones, 108 Mass. 191 ; 
 Lawton v. Lawton, 3 Atk. 13 ; Lawton 
 u. Salmon, 1 H. Bl. 259, 260, note a. 
 
 ' Ex parte Quincy, 1 Atk. 477 ; Law- 
 ton c. Lawton, 3 Atk. 13 ; Beck v. 
 Rebow, 1 P. Wms. 94 ; Grymes v. Bow- 
 eren, 6 Bing. 437 ; Leigh v. Taylor 
 (1902), App. Cas. 157; Wall v. Hinds, 
 4 Gray (Mass.), 256; Gaffield u. Hap- 
 good, 17 Pick. (Mass.) 192. 
 
 w Some cases, as early as those which 
 recognized trade fixtures as belonging 
 to the tenant, had recognized orna- 
 mental fixtures as also the tenant's 
 property. But the authority of these 
 was denied in other decisions. I^ 1 743, 
 Lord Hardwicke regarded the question 
 as settled in faror of the tenant (Law- 
 ton V. Lawton, 3 Atk. 13, 16), and in the 
 leading English case of Elwes v. Maw 
 (3 East, 38, 53), decided in 1803, Lord 
 Ellenborongh, after speaking of the ex- 
 ception of trade fixtures in the tenant's 
 favor, says : " The indulgence in favor 
 of the tenant for years during the term 
 has been carried still further, and he 
 
40 INTRODUCTION AND OUTLINE. 
 
 The cases under this head are not very numerous ; but they 
 make clear the law that such things may be removed by the 
 tenant, if the severance from the realty will not materially 
 injure it nor destroy the essential character of the fixtures as 
 articles of personalty.^ 
 
 § 34. (c) Agricultural Fixtures. — A third exception, gen- 
 erally recognized in favor of the tenant for years by the 
 common law of the United States, but not by that of England, 
 relates to articles placed by him upon the land for agricultural 
 purposes. Illustrations of such fixtures are nursery trees, '^ 
 hop-poles,^ fences,* and buildings erected for purposes of 
 husbandry. ^ 
 
 The ancient common law, which so strongly favored the 
 landlord as against his so-called tenant, — his mere bailiff or 
 agent, — was formulated in this respect chiefly upon questions 
 of waste committed by farmer tenants in removing agricultural 
 appliances from the land. It was attempted in England, in 
 the principal case of Elwes v. Maw,^ to break through the rule 
 of stare decisis, and to extend to agricultural fixtures the same 
 liberal principle in the tenant's favor which had been accorded 
 him in regard to trade fixtures. But the court refused to 
 allow such an extension, and held, on the principle of stare 
 decisis, and also because to hold otherwise would be "to 
 introduce a dangerous innovation into the relative state of 
 rights and interests holden to subsist between landlords and 
 tenants,"' that fixtures placed upon the land for purposes of 
 agriculture should be presumed to be the property of the 
 
 has been allowed to carry away matters McMath v. Iiffry, 74 Miss. 450 ; Holmes 
 
 of ornament, as ornamental marble i). Tremper, 20 Johns. (N. Y.) 29; Tyler 
 
 chimney-pieces, pier glasses, hangings, on fixtures, pp. 271-317; Ewell on 
 
 wainscot fixed only by screws, and the Fixtures, pp. 110-127. 
 like." See Tyler on Fixtures, pp. 357- ^ 3 East, 38. 
 
 369 ; Ewell on Fixtures, pp. 127-137 ; ^ Per Ld. EUenborough, 2 Smith's 
 
 2 Taylor, Landl. & T. (8th ed.) p. 153 ; L. C. p. « 188. And he adds : " But the 
 
 2 Smith's L. C. p. * 198 et seq. danger or probable mischief is not so 
 
 1 Ibid.; Hanrahan v. O'Keilly, 102 properly a consideration for a court of 
 Mass. 201 ; Ambs v. Hill, 13 Mo. App. law, as whether the adoption of such a 
 585; Wright v. Du Bignon, 114 Ga. doctrine would be an innovation ai aS; 
 765. and, being of opinion that it would be 
 
 2 Brooks V. Galster, 51 Barb. (N. Y.) so, and contrary to the uniform current 
 196. of legal authorities on the subject, we 
 
 ' Wing V. Gray, 36 Vt. 261. feel ourselves, in conformity to and in 
 
 * Mott V. Palmer, 1 N. Y. 564, 572. support of those authorities, obliged to 
 
 5 Elwes V. Maw, 3 East, 38 ; Van pronounce that the defendant had no 
 
 Ness V. Pacard, 27 U. S. (2 Pet.) 137, right to take away the erections stated 
 
 145 ; Perkins v. Swank, 43 Miss. 349 ; and described in this case." 
 
FIXTURES. 41 
 
 landlord. Some exceptions to this rule have since then 
 been made in England by statute, ^ but the common law of 
 that country has remained unchanged. 
 
 This strict English law was not adapted to the circum- 
 stances and needs of the American colonies and states. All 
 that could be done to encourage the clearing of the soil and 
 thrifty husbandry was here required from the courts. In 
 many of the United States, therefore, agricultural fixtures are 
 allowed to be taken away by the tenant. ^ This exception, 
 however, is not even here so strongly favored nor so univer- 
 sally recognized as are those which relate to trade fixtures 
 and to fixtures for domestic use and convenience and the 
 necessary enjoyment of the premises.^ 
 
 § 35. Summary of Exceptions in Favor of Tenants for Tears. 
 — It follows from the above discussion that fixtures placed 
 upon land or used in association with it by a tenant for years 
 are presumptively the property of the landlord ; but if they can 
 be removed without injury to the freehold, and are employed 
 for trade, domestic use, or agricultural purposes (though the 
 latter class is not included by the common law of England), 
 they are exceptions to the general rule and may ordinarily be 
 taken away by the tenant as his own property. Since these 
 exceptions are so broad in their scope and include nearly all 
 articles that are ever affixed to real property by temporary 
 owners, the statement is often made by judges and text- 
 writers that the presumption as to articles annexed to the 
 premises by a tenant is in his favor. But this is neither 
 logically nor historically accurate. The tenant can not main- 
 tain his right to an article merely by showing that it is a 
 fixture placed upon the property by himself and removable 
 without injury to the freehold. He must also prove that it 
 is either a trade fixture, or a domestic fixture, or (in this 
 country) an agricultural fixture. If he fail to bring it within 
 one of these classes, it is presumed to be real property and to 
 belong to the landlord. * And it must be repeated here that, 
 
 1 14 & 15 Vict. ch. 25, § 3 ; 38 & 39 Gough, 153 Pa. St. 225 ; Davis v. East- 
 Vict. ch. 92; 2 Smith's L. C. pp. » 196, ham, 81 Ky. 116; Ewell on Fixtures, 
 * 197 ; Brown on Fixtures, pp. 26-39. p. 112 et seq. 
 
 2 Notes 2-5, p. 40, supra. * Ombony v. Jones, 19 N. Y. 234; 
 
 3 See Van Ness v. Pacard, 27 U. S. Kiasam v. Barclay, 17 Abb. Pr. (N. T.) 
 (2 Pet.) 137, 143; Harkness v. Sears, 360; Schlemmer d. North, 32 Mo. 206 ; 
 26 Ala. 493 ; McCuUough v. Irvine's Madigan v. McCarthy, 108 Mass. 376, 
 Executors, 13 Pa. St. 438; Carver v. 377; Evi'ell on Fixtures, pp. 134-136. 
 
42 INTRODUCTION AND OUTLINE, 
 
 even when the character of the article itself would bring it 
 within one of these exceptions in favor of the tenant, the appli- 
 cation of one or more of the other criteria may show that it 
 was put upon the land with the intention of making it a part 
 of the realty ; and thus the result may be the retention of it 
 by the landlord as a portion of his property. 
 
 § 36. Time when Tenant for Teaxa may remove Fixtures. — 
 The landlord and tenant may, of course, vary their rights as 
 to fixtures by any agreement into which they may see fit to 
 enter. 1 And they may thus designate the time within which 
 the articles may be removed by the tenant. ^ When the time 
 of removal is not settled by contract, the law in England and 
 in most of the United States is that the tenant must take 
 away his fixtures Within the term of his lease, or during such 
 further time as he retains possession of the real property in 
 his character as a tenant, or they will become the property of 
 the landlord. When he actully surrenders the premises to the 
 landlord, whether before, or at, or after the expiration of the 
 time designated in the lease, the tenant, in the absence of 
 agreement to the contrary, ordinarily relinquishes his right 
 to all articles thereon which are not unquestionably personal 
 property.^ But in Pennsylvania, Illinois, Missouri and Ken- 
 tucky it has been declared that, within a reasonable time 
 after the expiration of his lease and the concurrent surrender 
 of the premises, the tenant may lawfully take away as his own 
 such fixtures as he might have so removed during his term.* 
 In any jurisdiction, moreover, where the removal during the 
 term has been prevented by the landlord, the tenant has a 
 reasonable time after its expiration in which to take away 
 his fixtures.^ And the same privilege is accorded him when 
 
 1 Dubois V. Kelly, 10 Barb. (N. Y.) ring v. Beck, 146 Mich. 706 ; Mueller v. 
 496: Thorn v. Sutherland, 123 N. Y. C. M. & St. P. R. Co., Ill Wis. 300; 
 236 ; Torrey v. Burnett, 38 N. J. L. 457 ; Griffin v. Eansdell, 71 Ind. 440. See 
 Mcllver V. Estabrook, 134 Mass. 550. So. Dak. Comp. L. 1887, § 3206. 
 
 2 Ibid. 4 Shellar v. Shivers, 171 Pa. St. 569 
 ° Weeton u. Woodcock, 7 M. & W. Berger v. Hoerner, 36 111. App. 360 
 
 14 ; Penton i^. Kobart, 2 East, S8 ; Ex Walsh v. Sichler, 20 Mo. App. 374 
 
 paHe Brook, L. R. 10 Ch. Div. 100 ; Caperton v. Stege, 91 Ky. 351 ; Chali- 
 
 Sainpson v. Camperdown Cotton Mills, foux v. Potter, 113 Ala. 215. 
 64 Fed. Rep. 939 ; Talbot v. Cruger, 151 6 Mason v. Fen'n, 13 111. 525 ; Bircher 
 
 N.Y. 120; Lewis !>. Ocean Nav.& P. Co., v. Parker, 40 Mo. 118; Goodman i. 
 
 125 N. Y. 341 ; Mcllver v. Estabrook, Hannibal & St. J. R. Co., 45 Mo. 33 ; 
 
 134Mass.550;Trask I). Little, 182 Mass. Podleck v. Phelan, 13 Utah, 333. See 
 
 8; Sullivan v. Carberry, 67 Me. 531; Lewis i. Ocean Nav. & P. Co., 125 N. Y. 
 
 Preston v. Briggs, 16 Vt. 124 ; Deh- 341, 345 ; Bnrk i;. Hollis, 98 Mass. 55. 
 
FIXTURES. 43 
 
 tliQ time at which the term will end depends on a contingency, 
 or is for any reason uncertain, and it may be terminated 
 unexpectedly to the tenant.^ In no case, however, has it been 
 held that, if the lease be terminated by breach of contract by 
 the tenant and the re-entry of the landlord, the tenant can 
 thereafter remove fixtures from the demised premises.^ 
 
 § 37. Iiffect of Rene^val of Lease on Right to Fistures. — In 
 those cases in which the lessee has erected removable fixtures 
 upon the land, and then, after the expiration of the term dur- 
 ing which he so erected them, has remained continuously in 
 possession under a renewal lease, but without any agreement 
 concerning the fixtures, there is direct conflict of authority as 
 to his right to them during the last term or at its expiration. 
 What may be fairly designated as the New York rule upon 
 this matter is that the tenant thereby loses his title to such 
 fixtures and his right to remove them. The reason stated for 
 this rule, in the leading case of Loughran v. Ross, is that the 
 acceptance of the new lease of the premises, without reserva- 
 tion of right or mention of any claim to the fixtures, and 
 occupation under the new letting are equivalent to a sur- 
 render of the possession of the entire property, including the 
 fixtures, to the landlord at the expiration of the first term. 
 "The tenant is in under a new tenancy, and not under the 
 old; and the rights which existed under the former tenancy, 
 and which were not claimed or exercised, are abandoned as 
 effectually as if the tenant had actually removed from the 
 premises, and after an interval of time, shorter or longer, had 
 taken another lease and returned to the premises."^ While 
 this is admitted to be "quite technical reasoning,"* yet it has 
 been steadily adhered to in the state of New York ; ^ and 
 the same rule has been followed in England, Massachusetts, 
 Pennsylvania, New Jersey, Maryland, Indiana, California, 
 
 1 Martin v. Eoe, 7 El. & Bl. 237 ; St. 346 ; Keogh u. .Daniell, 12 Wis. 
 Reynolds v. Shuler, 5 Cow. (N. Y.) 163. 
 
 323 ; Loughran v. Boss, 45 N. Y. 792, » 45 N. Y. 792, 794. 
 
 794 ; Ellis v. Paige, 1 Pick. (Mass.) 43 ; * Lewis v. Ocean Nav. & P. Co., 125 
 
 Watriss v. Cambridge Nat. Bk., 124 N. Y. 341, 350. 
 
 Mass. 571 ; Nor. Cent. R. Co. v. Canton ^ Talbot v. Cruger, 15] N. Y. 117 ; 
 
 Co., 30 Md. 347 ; Cromie v. Hoover, 40 Stephens v. Ely, 162 N. Y. 79. See 
 
 Ind. 49. Bernheimer v. Adams, 70 N. Y. App. 
 
 2 Pugh V. Acton, L. R. 8 Eq. 626; Div. 114, 122; Precht v. Howard, 187 
 Kutter V. Smith, 69 U. S. (2 Wall.) N. Y. 136; liadey v. McCurdy, 209 Pa. 
 491 ; Mass. Nat. Bk. v. Shinn, 18 N. Y. St. 306; Bergh v. IJerring-Hall-Marvin 
 App. Div. 276 ; Davis v. Moss, 38 Pa. S. Co.. 136 Fed. Rep. 368. 
 
44 INTRODUCTION AND OUTLINE. 
 
 and probably a majority of the American states in which the 
 question has arisen.^ 
 
 The opposing rule is that of Michigan, which is followed 
 in Wisconsin, Minnesota, Texas, and perhaps a few other 
 states. ^2 In the leading case of Kerr v. Kingsbury,^ upon this 
 side of the controversy. Judge Cooley severely criticises the 
 argument of the New York courts, and insists on the right of 
 the lessee to remove the fixtures while he remains in posses- 
 sion under his renewal lease, or continuously as lessee after 
 its expiration. He bases his conclusion upon the ground that 
 the reason for usually requiring the lessee to remove fixtures 
 during his term is in order that the subsequent possession of 
 the lessor may not be disturbed by their removal ; and such 
 reason does not operate so long as the lessee himself retains 
 possession of the land. He says, among other things: "A 
 regard for the succeeding interests is the only substantial 
 reason for the rule which requires the tenant to remove his 
 fixtures during the term ; indeed, the law does not in strict- 
 ness require of him that he shall remove them during the 
 term, but only before he surrenders possession, and during 
 the time he has a right to regard himself as occupying in the 
 character of a tenant. " * 
 
 While the New York rule in such cases may be more logi- 
 cally in accord with the history and development of the law 
 of fixtures and that of landlord and tenant in England, and 
 as a settled law of property should not be disturbed probably 
 in those states in which it has been adopted ; yet the rule of 
 Michigan accords better with the more liberal policy of most 
 of the American courts in regard to fixtures, and seems to be 
 most apt to result in substantial justice to all parties inter- 
 ested in erections on demised premises. 
 
 § 38. 5. Fixtures annexed by Life Tenant. — Substantially 
 the same principles should control the right to fixtures 
 
 1 Thresher v. East London Water 169 111. 184; Leman v. Best, 30 111. 
 
 Works, 2 B. & C. 608; Watriss v. App. 323. 
 
 Cambridge First Nat. Bk., 124 Mass. ^ Kerr v. Kingsbury, 39 Mich. 150; 
 
 571 ; Darrah v. Baird, 101 Pa. St. 265 ; Bank v. 0. E. Merrill Co., 69 Wis. 
 
 Gerbert v. Sons of Abraham, 59 N. J. L. 501 ; Wright v. Macdonnell, 88 Tex. 
 
 160; Carlin «. Ritter, 68 Md. 478; 140. 
 
 George Bauernachmidt B. Co. v. Mc- ' 39 Mich. 150; s. c. 33 Amer. Rep. 
 
 Colgan, 89 Md. 135; Hedderich v. 362. 
 
 Smith, 103 Ind. 203 ; Marks v. Ryan, * 39 Mich. 150, 152; 33 Amer. Rep. 
 
 63 Cal. 107 ; Sanitary Dist. v. Cook, 362, 364. 
 
FIXTURES. 45 
 
 between a tenant for life and the succeeding owner of the land 
 as those which apply to the relation of landlord and tenant 
 for years. When, therefore, the article is a trade fixture, or 
 is employed for domestic use and convenience, and its removal 
 will not injure the realty, the life tenant who annexed it may 
 take it away during his life ; or, if he fail to do so, then, after 
 his death, it may be removed by his executors or administra- 
 tors.^ This right has been denied as to agricultural fixtures ;^ 
 but there is good authority in favor of treating these also as 
 removable.^ Since the life tenant's interest in the real prop- 
 erty is always of uncertain duration, he is not required to 
 remove his fixtures while it continues.* In this particular, 
 then, his rights in such aimexations differ from those of an 
 ordinary owner for years. But if a tenaiit for life volun- 
 tarily surrender his interest in the premises and give up 
 possession without removing his fixtures, or if his holding 
 terminate by breach of contract on his part and entry by the 
 succeeding owner, he has no right to enter and remove them.^ 
 When his natural death terminates his estate, as is ordinarily 
 the case, it is just and proper that his executors or adminis- 
 trators should have a reasonable time thereafter within which 
 to remove fixtures. Yet it is conceived that no such right 
 should be allowed them, if he committed suicide or otherwise 
 voluntarily terminated his own interest in the land.^ 
 
 1 Lawton v. Lawton, 3 Atk. 13 ; Lord ' Overman v. Sasser, 107 N. C. 432 ; 
 Dudley i;. Lord Warde, Ambler, 112, Whiting t^. Brastow, 4 Pick. (Mass.) 
 113 ; Leigh v. Taylor (1902), App. Cas. 310. 
 
 157; Beattie v. Hulse (1905), 1 Ch. * Last three preceding notes, and 
 
 406; Lawton i;. Salmon, 1 H. Bl. 259; especially Lawton d, Lawton, 3 Atk. 13. 
 
 D'Eyncourt v. Gregory, L. E. 3 Eq. ' London Loan Co. v. Drake, 6 0. B. 
 
 382; Harkness u. Sears, 26 Ala. 493 ; n. s. 798 ; Ex parte Brook, L. R. 10 Ch. 
 
 Whiting V. Brastow, 4 Pick. (Mass.) Div. 100; Thropp's App., 70 Pa. St. 
 
 310; Johnson's Ex'rs i;. Wiseman's 395; Ex parte Hemenway, 2 Lowell 
 
 Ex'rs, 4 Mete. (Ky.) 357, 360 ; Buckley (U. S.), 496 ; Tyler on Fixtures, p. 491. 
 
 r. Buckley, 11 Barb. (N. Y.) 43, 61; <> The questions before the courts as 
 
 Williams on Executors (7th Am. ed.), to the rights of life tenants and their 
 
 862. A lessee of a life tenant has the personal representatives to fixtures have 
 
 same rights as the life tenant himself. not been very numerous. It has been 
 
 White V. Arndt, 1 Whart. (Pa.) 91; asserted by some judges and text writers 
 
 Cannon v. Hare, 1 Tenn. Ch. 22 ; Haf- that the law is not so liberal in their 
 
 fick V. Stober, 11 Ohio St. 482. favor as it is in favor of tenants for 
 
 2 Haffick u. Stober, 11 Ohio St. years. Dudley i). Warde, Ambler, 112, 
 482; McCuUough u. Irvine, 13 Pa. St. ns; Albert !■. Ullrich, 180 Pa. St. 283; 
 438 ; Gliddon v. Bennett, 43 N. H. 306. Elwes o. Maw, 3 East, 38 ; Kerr on 
 See Demby v. Parse, 53 Ark. 526 ; Al- R. p. § 133. Yet there seems to be no 
 bert V. XJhrich, 180 Pa. St. 283; Doak tangible distinction pointed out, nor any 
 V. Wiawell, 38 Me. 569. reason for one ; and a careful and ex- 
 
46 INTRODUCTION AND OUTLINE. 
 
 § 39. C. Fixtures annexed by other Temporary Owners of the 
 Real Property. — The principles above explained, as to the 
 fixtures of the designated temporary owners of realty, apply 
 generally to all tenants, or holders whose interests are not 
 permanent. Those principles may be summarized in three 
 general propositions; namely ; (a) Trade, domestic, or agricul- 
 tural (in the United States) fixtures, which can be detached 
 without injury to the real property, may ordinarily be removed 
 as personalty by the temporary owner who annexed them; 
 (b) When the time during which he is to retain the real prop- 
 erty is fixed and definite, or when such time being in itself 
 uncertain he causes his tenancy to terminate by his own act 
 or fault, then he must remove them within his term or during 
 such further time as he retains possession of the real property 
 in his character as tenant, or he can not remove them at all ; 
 and (c) When the time during which he is to retain the real 
 property is uncertain and he does not cause his tenancy to 
 end by his own act or fault, or when his tenancy which was 
 by its terms definite and certain is prematurely terminated 
 without his act or fault, then he or his personal representa- 
 tives, as the case may be, have a reasonable time after the 
 expiration of the tenancy within which to remove such fix- 
 tures. These propositions are supported by the great weight 
 of authority ; although, as is above pointed out, they are to 
 •some extent qualified or repudiated in a few jurisdictions. 
 Applying them to the less important cases of temporary 
 ownership, which have not yet been considered, they will 
 readily solve, in harmony with the decided cases, most of the 
 questions which arise as to the fixtures of such temporary 
 owners. 
 
 It follows, for example, that, between a tenant in tail,^ or 
 his personal representatives, and the succeeding owner, since 
 the duration of the estate of such tenant is uncertain, the 
 same rules as to fixtures apply as those which prevail in the 
 relation of a life tenant or his personal representatives and 
 
 haustive writer has summed the matter case, the determination of which has 
 
 up as follows; " Lord Hardwicke seems proceeded upon a known or recognized 
 
 to treat the question of fixtures, as be- distinction between these parties." Ty- 
 
 'tween the representatires of tenants for ler on Fixtures, p. 492. 
 life or in tail, and the remainderman, i For definition and explanation of 
 
 in about the same light as between tenancy in tail, or estates tail, see § 72, 
 
 landlords and. tenants for years ; and infra. 
 there does not seem to be any reported 
 
FIXTURES. 47 
 
 the subsequent owner. ^ The tenant at will^ has generally 
 the same rights and privileges as to fixtures as those which 
 belong to a tenant for years ; and, if his holding be suddenly 
 terminated by the landlord, he has a reasonable time after 
 abandoning possession within which he may remove them.* 
 And the same is true of a tenant at sufferance.* .A tenant 
 from year to year or from month to month, etc., ^ is, during 
 the time for which his holding is running, practically the 
 same in this respect as a tenant for years; and the law of 
 fixtures is the same as to him as it is in regard to a tenant 
 for years. ^ 
 
 §40. Fixtures — Conclusion. — The application of the cn- 
 teria which are discussed in the preceding pages will, in most 
 cases, readily determine to which of the two great classes of 
 property, a fixture belongs. Sometimes some one of the tests 
 alone is decisive of the question, sometimes two or all of 
 them must be applied. But it will always materially aid in 
 the investigation to remember that the reasonably presumable 
 intent of him who annexed the article to the land or used it 
 in association therewith is generally the inquiry of primary 
 importance, and that the other criteria are subordinate means 
 for the determination of that question. And it is to be also 
 steadily borne in mind that, if the fixture be attached so as 
 
 1 Tyler on Fixtures, p. 483 ; note which helonged to his assignor, and, 
 to Elwes D. Maw, 2 Smith's L. C. as against third parties, a, vendee has 
 pp. *169, *206. the same rights that were his vendor's. 
 
 2 For definition and explanation of Horn i>. Baker, 9 East, 215 ; MiusUall 
 such tenancy, see § 73, infra. v. Lloyd, 2 M. & W. .(,50 ; Gafiield v. 
 
 8 Martin v. Roe, 7 El. & Bl. 237; Hapgood, 17 Pick. (Mass) 192; Fitz- 
 
 Cromie v. Hoover, 40 Ind. 49; Lewis gerald w. Anderson, 81 Wis. 341 ; Tyler 
 
 V. Ocean Nav. & P. Co., 125 N. Y. on Fixtures, p. 633 et seq. And an 
 
 341. execution creditor possesses the same 
 
 * For definition and explanation of rights which belonged to his debtor, 
 
 this tenancy, see § 73, infra; Lewis v. Morey u. Hoyt, 62 Conn. 542; Freid- 
 
 Ocean Nav. & P. Co., 125 N. Y. 341. lander v. Ryder, 30 Neb. 783, 785 ; 
 
 ^ For definitions and explanations Thropp's App., 70 Pa. St. 395. If, 
 
 of these tenancies, see § 73, infra. therefore, the execution were one which 
 
 8 Martin o. Roe, 7 El. & Bl. 237 ; could reach personal property only, the 
 Sullivan o. Carberry, 67 Me. 531. sheriff could not ordinarily take the 
 Those claiming under any of the fixtures from land of which the debtor 
 parties whose rights to fixtures are was a permanent owner, while he would 
 discussed in the text stand in the be able, in most instances, to reach fix- 
 shoes of those through whom they tures erected by the debtor for trade, 
 claim, and are bound generally by the agricultural, or domestic purposes upon 
 same rules and principles. Thus an land in which such debtor had only a 
 assignee in bankruptcy has the same temporary interest. Ibid. 
 rights as to such articles as those 
 
48 INTRODUCTIplr iiND OUTLINE. 
 
 to be completory of the building, or so that its removal (no 
 repairs being made) would in itself injure the property, that 
 fact alone is ordinarily conclusive evidence of the intention 
 that it should be a part of the realty. When it can be removed 
 without injury, the criteria are to be applied successively or 
 together, in the light of all the circumstances of each case. 
 
CHAPTER III. 
 
 PKOPERTT, OTHER THAN FIXTURES, THAT IS SOMETIMES REAL 
 AND SOMETIMES PERSONAL. 
 
 §4S. 
 
 Buildings erected on one's 
 
 land with his consent. 
 
 §49. 
 
 Rolling-stock of railroads. 
 
 §50. 
 
 Water and ice. 
 
 §51. 
 
 Vegetable products of the 
 
 earth. 
 
 
 §52. 
 
 Fructus iniiustriales. 
 
 §53. 
 
 Fruclus nalurales. 
 
 §54. 
 
 Manure. 
 
 §55. 
 
 Pew rights. 
 
 §56. 
 
 Burial rights. 
 
 §57. 
 
 Heir looms. 
 
 § 41. What may be sometimes 
 realty and sometimes personalty. 
 
 § 12. Money. 
 
 § 43. Stock of a corporation. 
 
 § 41. Right of action for injury 
 to real property. 
 
 § 45. Gas and electric light fix- 
 tures and appliances. 
 
 § 46. Buildings. 
 
 § 47. Buildings erected on one's 
 land without his consent. 
 
 § 41. What Things may be sometimes Realty and sometimes 
 Personalty. — The nature and characteristics of a number of. 
 articles, which may readily change from one species of prop- 
 erty to the other but are not usually fixtures, have been from 
 time to time investigated and determined by the courts. 
 They are ordinarily not fixtures, because the questions con- 
 cerning them in the various positions in which they are com- 
 monly found have been decided, and they do not now call for 
 the application of the tests which are required to determine 
 whether fixtures are realty or personalty. Illustrations of 
 such articles are ice, trees, growing crops, buildings, and the 
 like. A brief resumd of the conditions under which they are 
 real property and those under which they are personalty will 
 best complete our inquiry into the inherent nature of the sub- 
 ject-matter, the law of which is dealt with in this treatise. 
 Those things which are most commonly chattels will be first 
 considered ; and the progress of the inquiry will be, in general, 
 towards those that are most frequently real property. 
 
 § 42. Money. — Money is never treated as real property, 
 except sometimes in equity under the doctrine of equitable 
 
50 INTRODUCTION AND OUTLINE. 
 
 conversion. By virtue of that doctrine, which rests upon the 
 maxim that " equity regards that as done which ought to be 
 done," real property may be dealt with as personalty, and vice 
 versa.''- If, for example, a testator direct by his will that a 
 certain piece of land be sold and the proceeds paid to a desig- 
 nated person, equity treats that land as personal property 
 from the time of the death of the testator until the sale is' 
 actually made;^ and when a will orders a sum of money to 
 be invested in real property for the benefit of a person named, 
 such money is regarded by equity as realty from the time of 
 the testator's death. '^ So, if real property be sold upon the 
 foreclosure of a mortgage, or by virtue of a judgment, decree, 
 or order of court in a partition suit, or in proceedings for the 
 sale of the lands of infants, lunatics, or other persons inca- 
 pable of managing their own affairs, the proceeds of the sale, 
 or so much thereof as remains after the mortgage or other 
 liens or encumbrances properly payable therefrom are satis- 
 fied, are dealt with in equity as the real property of those 
 whose lands were thus sold.^ A contract for the purchase 
 and sale of land causes equity to deal with it as personalty in 
 the hands of the vendor, or his personal representatives in 
 case of his death, land with the purchase price as real property 
 in the hands of the vendee, or his heirs in case of his death. ^ 
 And when land is taken for public purposes under the exer- 
 cise of the right of eminent domain, the money paid for the 
 same is realty in so far as it must be so regarded in order to 
 work out the equities of those who had interests or rights in 
 the land.® In all such cases the right of dower, and that of 
 curtesy and all other rights and interests which would be 
 
 1 Fletcher v. Ashburner, 1 Bro. C. C. * Re Barker, L. R. 17 Ch. Div. 241 ; 
 
 497 ; Bridgeport Elec. & Ice Co. i;. Dunning v. Ocean Nat. Bk., 61 N. Y. 
 
 Header, 30 U. S. App. 581, 588; 497 ; Lockman r. Reilly, 95 N. Y. 64 ; 
 
 V. Cochran, 144 N. Y. 104, Ford i;. Livingston, 140 N. Y. 162; 
 
 112; Thompson v. Hart, 169 N. Y. Oberly «. Lerch, 18 N. J. Eq. 346; 
 
 571 ; Ashhurst v. Potter, 29 N. J. Eq. Lloyd v. Hart, 2 Pa. St. 473. 
 
 625, 643; Bennett o. Harper, 36 W. « Palmer r. Morrison, 104 N. Y. 132; 
 
 Va. 546. Williams v. Haddock, 145 N. Y. 144 ; 
 
 ^ Ibid. ; Taylor v. Benham, 46 U. S. Matter of Davis, 43 N. Y. App. Div. 331 ; 
 
 (5 How.), 233,268 ; Greenland v. Wad- Benedict v. Luckenbach, 162 Pa. St. 18. 
 
 dell, 116 N. Y. 234, 239; In re Keim's « Kelland c. Fulford, L. R. 6 Ch. 
 
 Estate, 201 Pa. St. 609; King v. King, Div. 491 ; In re N. Y. & Brooklyn 
 
 13 R. I. 501, 506 ; Ritch v. Talbot, 74 Bridge, 27 N. Y. Supp. 597 ; Flynn v. 
 
 Conn. 137. Flynn, 167 Mass. 312; Wheelerw. Kirk- 
 
 8 Seymonr v. Freer, 75 V. S. land, 27 N. J. Eq. 534. Such award is 
 
 (8 Wall.) 202, 214; Fletcher v. Ash- usually personal. Matter of Mayoi, 
 
 burner, 1 Bro. C. C. 497. 116 N. Y. App.Div. 252. 
 
51 
 
 incident to the real property attach to its equitable represent- 
 ative, the money. ^ 
 
 § 43. stock of a Corporation. — The interest of an individual 
 stockholder in the property of a corporation or joint-stock 
 association is now uniformly held on both sides of the Atlantic 
 to be personalty, unless it is declared otherwise by positive 
 statute;^ and this is true even though the property owned 
 by the corporation consist entirely of realty.^ In a few early 
 English cases, and in one or two decisions following them in 
 this country, it was said that, when the property of the corpo- 
 ration was chiefly land, its shares of stock were also realty.* 
 But practically all such utterances have been discredited and 
 overruled. 
 
 § 44. Right of Action for Injury to Real Property. — A right 
 of action for injury to real property is, as a rule, personalty.^ 
 If the owner of such injured realty devise it by his will, which 
 takes effect after the right of action accrues, the devisee does 
 not thereby acquire the right to sue, but such right passes as 
 personal property to the executors or administrators of the 
 decedent.® So, if the owner of the injured land sell it with- 
 out expressly or impliedly transferring the right of action for 
 the trespass, he retains the right to sue the wrongdoer.'^ But 
 where the trespass is a continuing one, such as that caused 
 by a railroad running over or near the land, the purchaser, 
 devisee, or heir usually acquires the right to sue for the injury 
 occasioned after his acquisition of. title; and frequently the 
 contract or deed is so drawn as to transfer to a purchaser of 
 the land the entire chose in action for all the injury caused 
 
 1 Last preceding note. railroad company were held in Ken- 
 
 2 Bradley v. Holdsworth, 3 M. & W. tucky to be real property which might 
 422; Cleveland Trust Co. v. Lander, descend to heirs and in which a widow 
 184 U. S. Ill ; Matter of Jones, 172 might have dower. Price v. Price, 6 
 N. Y. 575; Tippets n. Walker, 4 Mass. Dana (Ky.), 107. See Field v. Pierce, 
 595; Codman v. Winslow, 10 Mass. 102 Mass. 253, 261. 
 
 146; Arnold v, Ruggles, 1 It. I. 165; ^ Griswold u. Met. El. R. Co., 122 
 
 Toll Bridge u. Osborn, 35 Conn. 7 ; N. Y. 102 ; Mortimer v. Manhattan R. 
 
 Allen V Pegram, 16 Iowa, 163 ; South- Co., 129 N. Y. 81. 
 
 we.stern R. Co. v. Thoraason, 40 Ga. <= Griswold ,,.. Met. Kl. R. Co, 122 
 
 408. N. Y 102; Sheparil r. Manhattan R. 
 
 8 Ibid. Co , 117 N. Y. 442; Gucker c. Met. El. 
 
 * Drybntter v. Bartholomew, 2 P. R. Co , 3S N. Y. App. l)iv. 47 ; Jones 
 
 Wms. 127; Weekley v. Weekley, 2 on Easements. §§ 525-52S. 
 
 Yonnge & C. 281, n; Welles v. Cowle.s, ' Ibid. ; Wardu. Met. El. R. Co., 152 
 
 2 Conn. 567; Meason's Est., 4 Watts N. Y. 39; Pegram v. Elevated R. Co., 
 
 ,r. \ »,. cii f :^^ ^-^^t-nA 117 M V IQ^ 
 
62 INTRODUCTION AND OUTLINE. 
 
 both before and after the title passed to him.^ If the owner 
 of the land, the value of which is lessened by the existence 
 and operation of a railroad, grant to the railroad company the 
 right to continue the infliction of the injury, which is open 
 and visible, a subsequent purchaser of the land acquires it 
 subject to that right, and cannot sue to restrain its exercise 
 though he has no notice of the grant and the deed is not re- 
 corded. ^ When such a right is sold by the committee of a 
 lunatic, who owns the land, the money obtained for it becomes 
 in equity a part of the real property of the lunatic.^ This 
 results from equitable conversion as above explained.* 
 
 § 45. Gas and Electric Light Fixtures and Appliances. — The 
 gas pipes which run through the walls and under the floors of 
 a building are a permanent part of the structure. But the 
 brackets and fixtures which appear in the rooms, halls, etc., 
 and can be readily removed from their connections with the 
 pipes without injury to the building, are held by the weight of 
 authority to be mere chattels.^ Their character may, how- 
 ever, bo controlled by agreement.^ And it is held in New 
 Jersey and a few cases in other jurisdictions that, as between 
 vendor and vendee, or mortgagor and mortgagee, but not 
 between landlord and tenant when the tenant made the an- 
 nexation, all the gas fixtures, as well as the gasometers and 
 instruments for generating gas, are to be taken, prima facie 
 at least, as constituting a part of the realty." Manifestly the 
 same general rules apply to electric light fixtures and appli- 
 ances as those wliicli determine the character of fixtures used 
 for burning gas. The wires and attaclimcnts that are in the 
 walls and floors are ordinarily a part of tlie house, while the 
 
 1 MitcheU v. Met. El. R. Co., 134 * § 42, supra. 
 
 N. Y. 11; N. Y. El. B. Co. c. Fifth ' McKeage u. Hanover Fire Ins. Co., 
 
 Ave. Nat. Bk., 135 U. S, 432; Del. & 81 N. Y. 38; Towne v. Fiske,127 Mass. 
 
 Ear. Canal Co. v. Wright, 21 N. J. L. 125; Nat. Bk. of Catasauqua v. North, 
 
 469; Fowle v. N. H. & N. E. Co., 107 160 Pa. St. 303 ; Copehart v. Foster, 61 
 
 Mass. 352; s. c. 112 Mass. 334. See Minn. 132; Eogers v. Crow, 40 Mo. 91. 
 
 McKenna v. Brooklyn Union EI. E. 6 j-ratt v. Whittier, 58 Cal. 126. 
 
 Co., 184 N. Y. 391 ; Western Union ' Keeler v. Keeler, 31 N. J. Eq. 181, 
 
 Tel. Co. u. Shepard, 169 N. Y. 170; 191; Security Trnst Co, v. Temple 
 
 Schomacker v. Michaels, 189 N. Y.61, Trust Co., 67 N. J. Eq. 514; St. Louis 
 
 65; § 179 infra. Eadiator Mfg. Co. v. Corroll, 72 Mo.. 
 
 ■^ Ward w. Met. El. E. Co., 1.52 N. Y. App. 315; Sewell v. Augerstein, 18 
 
 39; Lewis v. N. Y. & H. E. Co., 162 L. T. Eep. N. s. 300; Cent. Trust & 
 
 N. Y. 202. Safe Dep. Co. v. Cinn. Grand Hotel, 26 
 
 » Ford V. Livingston, 140 N. Y. 162, Weekly Law Bull. 149. 
 
PROPERTY, REAL OR PERSONAL. 53 
 
 articles that appear in the rooms and can be readily removed 
 without injury to the ' building are personal property .^ 
 
 § -16. Buildings. — The buildings which a permanent owner 
 of land erects upon it are a part of the realty, unless a differ- 
 ent intention is very clearly manifested by him at the time 
 of their erection. This results not only from the maxim 
 quicquid plantatur solo, solo cedit, but also from the further 
 well-recognized principle, cujus est solum ejus est usque ad 
 ccelum in one direction, and usque ad Orcum in the other.^ 
 Hence dwelling-houses, stables and other outbuildings, fences, 
 and hedges are ordinarily a part of the real property to which 
 they are attached.^ And this is true though the house be 
 made from materials which do not belong to the owner of 
 the land. The landowner is obliged to answer to the former 
 owner of the materials for their value; but by annexing 
 them to his land he has made them his own real property.* 
 After a structure is once so placed upon land as to become 
 a part of it, the structure can not be the subject of convey- 
 ance as personalty ; nor can it be orally reserved as the per- 
 sonal property of the grantor when the realty is sold. If the 
 grantor wish to reserve the building to himself but to convey 
 the land, he must make such reservation, either in the deed 
 by which the real property is conveyed or- by some other 
 writing which complieg with the requirements of the statute 
 of frauds relative to the sale of lauds, tenements, and here- 
 ditaments.^ Where, for example, an owner of land upon 
 which stood part of a barn conveyed the land by a deed in 
 which the barn was not mentioned, but it was orally agreed 
 between the parties that it should remain the property of the 
 vendor, it was held that that part of it which stood on the 
 land conveyed passed under the deed to the vendee and con- 
 stituted a portion of the real property of a subsequent pur- 
 
 1 See Havens v. West Side Elec. L. 31, 34; Inhab. of Sudbury v. Jones, 62 
 Co., 17 N. Y. Supp. 580; Harrisburg Mass. 184, 189. 
 
 Elec. L. Co. V. Goodman, 129 Pa. St. * Mitchell v. Stetson, 61 Mass. 435 ; 
 
 206; Keating I. & M. Co. c Marshall 2 Kent's Com. p. *362. See West Shore 
 
 Elec, L. & P. Co., 74 Tex. 605. Co. v. Wenner, 70 N. J. L. 233. 
 
 2 1 Wash. R. P. p. *1 ; Broom's ' Leonard v. Clougli, 133 N. Y. 292 ; 
 Legal Maxims, p. *395 ; Barnes y. Hos- Noble v. Bosworth, 19 Pick. (Mass.) 
 mer, 196 Mass. 323. 314; Hussey u. Heffermau, 143 Mass. 
 
 8 Minshall v. Lloyd, 2 M. & W. 450 ; 232 ; Doane v. Hutchinson, 40 N. J. Eq. 
 
 Wake V. Hall, L. R. 8 App. Cas. 195; 83; Sampson v. Camperdowu Mills, 64 
 
 Mott V. Palmer, 1 N. Y. 564, 572 ; Price Fed. Rep. 939 ; Macdonough v. Star- 
 
 u. Weehawken Ferry Co., 31 N. J. Eq. bird, 105 Cal. 65 ; 63 Alb. Law J. 367. 
 
54 INTRODUCTION AND OUTLINE. 
 
 chaser of the same land who bought with full notice of the 
 oral agreement.^ Structures that can not be sold, except by 
 contract which complies with the requirements of the statute 
 of frauds relative to transfers of interests in real property, 
 can not be mortgaged or otherwise encumbered by any form 
 of agreement which does not conform to that statute. ^ At 
 the time when a building is placed upon the land, however, 
 the owner, by clearly indicating his intention, may retain it 
 as personal property. Thus, if he expressly agree with some 
 one else who is interested in it that it shall remain person- 
 ;alty, or mortgage it as a chattel, or build it in such a tempo- 
 rary manner or in such a position as clearly to show that it is 
 not meant to remain on the land, it does not become a part 
 of the freehold, nor does it pass to one who purchases the land 
 with notice of the character of the building or of the agree- 
 ment by which it is affected.^ 
 
 § 47. Buildings erected on One's Land without his Consent. — 
 If one person erect a building on the land of another without 
 the express or implied assent of the latter, it becomes at once 
 a part of the land and the property of the landowner. And 
 this is true even though he who builds the house believes that 
 he himself is the owner of the land.* So where one, during 
 the pendency of an action to try the title to land, erected a 
 building thereon with the permission of the defendant in the 
 action, it was held that he could not remove it against the 
 wish of the plaintiff, who prevailed in the suit.^ The cases 
 are numerous in which persons who supposed themselves to 
 have perfect title to real property, and in that belief made 
 valuable improvements thereon, have lost both the land and 
 the improvements in suits brought by paramount owners.* 
 
 1 Leonard v. Clough, 133 N. Y. 292 ; McRoberts, 139 N. Y. 193 ; McAUaster 
 Burk V. Hollis, 98 Mass. 55 ; Webster v. Niagara Fire Ins. Co., 156 N. Y. 80 ; 
 V. Potter, 105 Mass. 414; Deane v. ViUage of St. Johnsville v. Smith, 184 
 Hutchinson, 40 N. J. Eq. 83; Bonney N. Y. 341, 348; Lelaud v. Gasset, 17 
 V. Foss, 62 Me. 248. Vt. 403; West v. Stewart, 7 Pa. St. 
 
 2 See last two preceding notes. 122. 
 
 3 Coleman v. Lewis, 27 Pa. St. 291 ; ^ Hetderson v. Ownby, 56 Tex. 647. 
 Morris o. French, 106 Mass. 326, 329 ; See Madigan u. McCarthy, 108 Mass. 
 Dame ». Dame, 38 N. H. 429 ; Yater v. 376 ; Hubschman v. McHenry, 29 Wis. 
 Mullen, 24 Ind. 277 ; Sheldon v. Ed- 655. 
 
 wards, 35 N. Y. 279 ; Leonard v. Clough, ' Bohn v. Hatch, 133 N. Y. 64 ; 
 
 133 N. Y. 292, 297. Sudbury Pariah v. Jones, 8 Cush. 
 
 * Poor V. Oakman, 104 Mass. 309, (Mass.) 184; Guernsey v. Wilson, 134 
 
 317 ; Meriam v. Brown, 128 Mass. 391 ; Mass, 482, 486 ; Leland v. Gasset, 17 
 
 Bonney v. Foss, 62 Me. 248; Spruck v. Vt. 403; Reid v. Kirk, 12 Rich. L. E. 
 
PROPERTY, REAL OR PERSONAL. 55 
 
 When a structure thus passes to the o^vner of the land because 
 it is placed thereon without his consent, a court of law will 
 not compel him to make any compensation, to. the person who 
 built it, for the materials or labor employed in its erection ; 
 and a court of equity ordinarily follows the same rule.^ Ho 
 takes the risk of such loss when he builds upon land which 
 he does not certainly know to be his own. It seems, however, 
 that he may move a court of equity to grant him compensation 
 from the landowner for the labor and materials employed, if 
 he who erected the building show that in doing so he acted 
 upon the belief that he had title to the land, which belief had 
 some probable basis, and that the real owner of the property, 
 knowing of such acts and belief, suffered him to go on without 
 notice of the true state of the title. ^ 
 
 ^ 4S. Buildings erected on One's Land -with his Consent. — 
 When one person builds on the land of another with the 
 latter's consent, the former may retain the structure as his 
 personal property._ When the purpose for which he was per- 
 mitted to build has been accomplished, or during the tempo- 
 rary holding which he may have of the land, he may remove 
 the structure as his own.^ The consent of the owner of the 
 freehold may be either express or implied. It is usually 
 express when the builder is not given any interest or estate 
 in the land, but simply a license or easement to erect and 
 maintain the building.* It is more commonly implied when 
 he who builds the structure has some temporary interest or 
 
 {S. C.) 54 ; Campbell v. Roddy, 44 in cash and once in the Talue of the 
 
 N. .1. Eq. 244 ; Crest v. Jack, 3 Watts house so rebuilt. 
 
 (Pa.), 238; West v. Stewart, 7 Pa, St. ^ gohn v. Hatch, 133 N. Y. 64, 68; 
 
 122 ; Graham v. Connellsville R. Co., Spruck </. McRoberts, 139 N, Y. 193 ; 
 
 36 Ind. 463; 2 Kent's Com. pp. * 334, Hardisty v. Richardson, 44 Md. 617; 
 
 *335. King v. Thompson, 34 U. S. (9 Pet.) 
 
 1 Last three preceding notes. In 204; 1 Pom. Eq. Juris. § 1241. 
 
 McAUaster v. Niagara Eire Ins. Co., s Curtis v. Hoyt, 19 Conn. 154 ; 
 
 156 N. Y. 80, the defendant, which had Dudley v. Hurst, 67 Md. 44 ; Korbe v. 
 
 replaced a burned building by a similar Barbour, 130 Mass. 255 ; Lapham i. 
 
 one on the land of the insured but after Norton, 71 Me. 83 ; SaUey v. Robinson, 
 
 lis proper time to elect to do so under 96 Me. 474 ; Dame v. Dame, 38 N. H. 
 
 its policy had expired, was compelled 429 ; Dubois i: Kelly, 10 Barb. (N. Y.) 
 
 to pay the amount of the policy in cash, 496 ; Central Branch R. Co. c. Fritz, 20 
 
 although the house thus erected by it Kan. 430. 
 
 became at once the property of the in- * Wall v. Hinds, 4 Gray (Mass.), 
 
 .sured. Thus, as the result of iw wrong- 256 ; Dame v. Dame, 38 N. H. 429 ; 
 
 fully building on another's land, the Harris v. Gillingham, 6 N. H. 9 ; Ham 
 
 company was practically required to pay i'. Kendall, HI Mass. 297. 
 twice the amount of the policy, — once 
 
56 INTRODUCTION AND OUTLINE. 
 
 estate in the land, such as an estate for years, from year to 
 year, or for life.^ In such latter instances the buildings are 
 practically within the domain of fixtures, and their character 
 as realty or personalty is to be determined by the tests appli- 
 cable to fixtures, as above explained. It follows that when 
 they are erected by a tenant for trade, agricultural (in the 
 United States), or domestic purposes, and are not so con- 
 structed that their removal would injure the freehold, he may 
 remove, sell, mortgage, or otherwise encumber them as per- 
 sonal property. 2 Such rights of those who erect buildings 
 upon the land of others with the landowners' consent, prevail 
 only between the parties to the consent and against those who 
 take interest in the lands with notice of such rights. They 
 are inoperative against innocent purchasers or encumbrancers 
 of the land, without notice, actual or constructive, of the rights 
 of the builders ; and as to such purchasers and encumbrancers 
 the erections are real property.^ 
 
 § 49. Rolling-stock of Railroads. — It is settled that the 
 depots, station-houses, water-tanks, masonry, foundations, 
 columns, substructures, and superstructures of railroads, 
 either surface, underground, or elevated, are real property.* 
 The rails and ties are also commonly treated as realty ; but 
 it is held that where they are put down upon a specified part 
 of the roadbed pursuant to a contract that they shall remain 
 personalty in that position until paid for, they do not become 
 real property until payment is made.^ As to the character 
 of the rolling-stock of a railroad, there is direct conflict of 
 authority. It is held to be real property by the Supreme 
 Court of the United States and the courts of Kentucky, 
 Illinois, Maine, Maryland, Pennsylvania, and several other 
 states;® while in New York, New Jersey, Iowa, Ohio, Wis- 
 consin, and probably a majority of the states of this country, 
 
 1 Wood u. Hewitt, 8 Q. B. 913 ; ' Ibid. ; Haven v. -Emery, 33 N. H. 
 Wiggins Ferry Co. v. 0. & M. K. Co., 66; Pierce v. Emery, 32 N. H. 484; 
 142 TJ. S. 396 ; Doty v. Gorham, 5 Pick. Georgia R. Co. w. Haas, 127 Ga. 187. 
 (Mass.) 487 ; Korbe v. Barbour, 130 ^ Minn. Co. v. St. Paul Co., 69 U. S. 
 Mass. 255; Mechanics' Nat. Bk. a. (2 Wall.) 609; Hammock v. Loan & 
 Stanton, 55 Minn. 211. Trust Co., 105 U. S. 77; Phillips 
 
 2 §§ 31-35, supra. v. Winslow, 18 B. Mon. (Ky.) 431 ; 
 " Kerr v. Kingsbury, 39 Mich. 150 ; Palmer v. Forbes, 23 111. 301 ; Strick- 
 
 Meyers v. Schemp, 67 lU. 469 ; Brown land v. Parker, 54 Me. 263 ; State v. 
 
 V. Eoland, 92 Tex. 54; 2 Bract. 18. Nor. R. Co., 18 Md. 193; Youugman 
 
 * People ex rel. El. R. Co. u. Com. "• E. & W. R. Co., 65 Pa. St. 278 ; 
 
 of Taxes, 101 N. Y. 322 ; Hunt v. Bay Coe v. McBrown, 22 Ind. 252. 
 State Iron Co., 97 Mass. 279. 
 
PROPERTY, REAL OR PERSONAL. 
 
 57 
 
 it is treated as personalty. ^ The questions have most fre- 
 quently arisen as to whether it should be taxed as realty or 
 personalty, and in connection with the question as to the 
 effect of failure to file as a chattel mortgage a railroad trust 
 deed or mortgage given upon all the property of the corpora- 
 tion. * In answering such questions the better logical reasons 
 appear to be in favor of treating the rolling-stock of a railroad 
 as personal property.^ 
 
 § 50. Water and Ice. — The water of a stream, lake, or 
 pond forms, while there, a part of the land over which it lies; 
 but, because of its mobile and evanescent character, it can not 
 be dealt with by itself as real property. Thus, a deed of a 
 designated body of water would pass nothing to the grantee. 
 But a deed of a described tract of lan"d covered with water 
 would pass the land and the water on it at the time.* 
 When the water becomes congealed, the ice, as it rests in its 
 natural condition upon the surface, is still a part of the land 
 over which it is formed.^ Since, however, it is more stable 
 
 1 Hoyle V. Plattsburgh & M. R. Co., 
 54 N. Y. 314 ; People, etc. v. Com. of 
 Taxes, 101 N. Y. 322 ; State Treas. v. 
 S. & E. R. Co., 28 N. J. L. 21 ; Wil- 
 liamson V. N. J. & S. R. Co., 29 N. J. 
 Eq. 311 ; Neilson .;. L B. R. Co., 51 
 Iowa, 184; Coe i). C. P. &L R. Co., 
 10 Ohio St. 372; Chicago & N. W. R. 
 Co. V. Bor. of Ft. Howard, 21 Wis. 44; 
 Meyer v. Johnston, 53 Ala. 231, 237; 
 Boston, C. & M. K. Co. ^. Gilmore, 37 
 N. H. 410. 
 
 ^ Last two preceding notes. 
 
 ' Ibid. In some states, such as Il- 
 linois, Missouri, Arkansas, Nebraska, 
 West Virginia, and Texas, constitu- 
 tional provisions declare that rolling- 
 stock of a railroad shall he personal 
 property, and liable to execution and 
 sale in the same manner as the per- 
 sonalty of individuals. Jones on Rail- 
 road Securities, § 171. 
 
 * Co. Lit. 4 a, b; 2 Blackst. Com. 
 p. * 18; Shep. Touchst. 91. When 
 water, oil, or natural gas is bottled, 
 barrelled, or otherwise separated and 
 retained from the land, it is, of course, 
 personal property. When percolating 
 naturally through the soil, or lying or 
 flowing in bulk upon or within it, 
 these substances are part of the land 
 
 upon which they are found for the 
 time being. But when they escape and 
 pass into or upon other land, the former 
 owner's title to them ceases ; and they 
 become while there a part of the real 
 property of the owner of the land to 
 which they have passed. Because of the 
 analogy, thus suggested, to the move- 
 ments and ownership of wild animals, 
 these three substances have been spoken 
 of by the Supreme Court of Pennsylva- 
 nia as " minerals ferce naturce." West- 
 moreland & C. Nat. Gas Co. v. De Witt, 
 
 130 Fa. St. 235. See 5 Lawy. Rep. 
 Ann. 731 ; People's Gas Co. r. Tyne, 
 
 131 Ind. 277, 408. It is doubtful, how- 
 ever, whether water can be at all prop- 
 erly classified as a mineral ; and it is 
 quite certain that the rules and decisions 
 as to mining rights, which bear so 
 directly upon property in oil and natu- 
 ral gas, have no direct application to 
 water, either standing, running, or per- 
 colating. 
 
 6 Allen V. Weber, 80 Wis. 531 ; 
 Marshall v. Peters, 12 How. Pr. (N. Y.) 
 218; Myer v. Whitaker, 5 Abb. N. C. 
 (N. Y.) 172; Paine w. Woods, 108 Mass. 
 160; Washington Ice Co. v. Shortall, 
 101 111. 46 ; Bigelow v. Shaw, 65 Mich. 
 341. 
 
58 INTRODUCTION AND OUTLINE, 
 
 than water, the landowner may treat it in this condition as 
 personal property, and may sell, mortgage, or otherwise deal 
 with it as such. He may dispose of the soil and ice together 
 as real property, and a transfer of the land without mention- 
 ing the ice will have that effect; or he may dispose of the 
 land and reserve the ice as personalty, either in the deed or 
 by an oral reservation ; or he may, it seems, dispose of the ice 
 while in its natural condition on the surface as personal 
 property.^ After the ice has been cut and severed from the 
 water, it is personalty, and can be dealt with only as such.* 
 In all of these respects ice partakes of the nature of an 
 annual crop formed upon the surface of the water. It is 
 ■prima facie a portion of the land over which it is madCj but, 
 either before or after it is cut, it may be dealt with by its 
 owner as personalty ; and it must be so treated after it has 
 been severed from the land.^ 
 
 As between the state and the individual owners of land 
 along the banks of streams, lakes, or ponds, the question of 
 the ownership of the water and ice is ordinarily answered by 
 determining who owns the land under the water. Along a 
 non-navigable stream each riparian proprietor owns to the 
 thread of the stream, while the bed, ice, and water of navi- 
 gable streams belong to the state.* This follows the uniform 
 criterion; but, as to what streams are navigable in contem- 
 plation of law and what are not, the common law is not so 
 well settled in this country, with its large rivers actually 
 navigable far above tide-water, as it is in England, with its 
 short streams navigable only so far as the tide ebbs and flows. 
 In England, a stream in which the tide does not ebb and flow 
 is uniformly treated as non-navigable, and the riparian pro- 
 prietors own to the filum aguce.^ In some of the United 
 States, such as Iowa, Kansas, Missouri, Michigan, Pennsyl- 
 
 1 Huntington v. Asher, 96 N. Y. * Shively ». Bow%, 152 TJ. S. 1,31 ; 
 604 ; Van Kensaelaer v. Mould, 48 Hun Smith v. City of Rochester, 92 N. Y. 
 (N. Y.), 396; Higgins u. Kusterer, 41 463; Gouverneur o. Nat. Ice Co., 134 
 Mich. 318; Eidmiller Co.i;. Guthrie, 42 N. Y. 355 ; Paine v. Woods, 108 Mass. 
 Neb. 238; 21 Amer. Law Eeg. n. s. 160, 172; Bigelow v. Shaw, 65 Mich. 
 320 ; 32 Amer. Law Reg. N. s. 66 ; 48 341 ; Marsh v. McNider, 88 Iowa, 390, 
 Alb. Law J. 504. 6 Bickett v. Morris, L. R. 1 So. App. 
 
 2 Ward 0. People, 3 Hill (N. Y.), 47 ; Orr Ewing v. Colquhoun, L. R. 
 395, 6 Hill (N. Y.), 144. See Wash- 2 App. Cas. 839 ; Barney v. Keokuk, 94 
 ington Ice Co. v. Shortall, 101 111. 46; U. S. 324, 337 ; Shively v. Bowlby, 152 
 State V. Pottmeyer, 33 Ind. 402. U. S. 1, 31. 
 
 ° Last three preceding notes. 
 
59 
 
 vania, North Carolina, and several other states, the soil 
 under the large rivers, which are in fact navigable but not 
 subjected to the ebb and flow of the tide, is held to belong to 
 the state ;^ and the Supreme Court of the United States has 
 decided that those rivers which form boundaries between 
 states, and are used or may be used for purposes of commerce, 
 are navigable rivers of the United States, and this, too, with- 
 out regard to the consideration whether or not the tide ebbs 
 and flows within them.^ The states around the Great Lakes, 
 and not the individual riparian owners, have title to their 
 beds and water.^ In New York it is held that, except as to 
 streams regulated by statute, the English common-law crite- 
 rion applies to streams in general, but at least the Hudson 
 and Moliawk rivers are governed by tiie rule of the civil law, 
 according to which the riparian owneis do not hold the bed of 
 the stream oven where there is no tide.* 
 
 Ice formed upon a stream, lake, or pond the bed of which 
 belongs to the state is the property of the public in general, 
 and may be cut and removed by the one who first appropriates 
 it and cuts, or surveys and fences it off as his.^ But, when 
 one has taken possession of a portion and appropriated it to 
 himself, the rights of others are excluded.^ (a) 
 
 § 51. Vegetable Products of the Earth — Fructus Industriales 
 — Fructus Naturales. — Things which belong to the vegetable 
 kingdom are either fructus naturales, the natural, sponta- 
 
 (a) It is provided by statute in New York that each riparian owner 
 along the Hudson River may out and remove the ice opposite his land, as 
 far as ihejilum aquas, provided he erects safeguards to prevent accidents to 
 travellers and teams as required by the statute. N. Y. Gten. Bus. L. § 260; 
 American Ice Co. v. Catskill Cement Co., 99 App. Div. 31, 182 N. Y. 5-53. 
 
 1 Houghton u. Chicago K. Co , 47 ers, 33 N. Y. 461 ; Neal v. City of 
 Iowa, 370; Wood v. Fowler, 26 Kan. Rochester, 156 N. Y. 213; Lincoln u. 
 682 ; Benson v. Morrow, 61 Mo. 345 ; Davis, 53 Mich. 375. 
 
 Byan v. Brown, 18 Mich. 196 ; Shrunk 6 ibid. ; Paine v. Woods, 108 Mass. 
 
 V. Schuylkill Nav. Co., 14 Serg. & R. 160; People's Ice Co. v. Davenport, 
 
 (Pa.) 71 ; Wilson v. Forbes, 2 Dev. L. 149 Mass. 322 ; Barrett v. Eockport Ice 
 
 (N. C.) 30; Shively v. Bowlby, 152 Co., 84 Me. 155; Wood v. Fowler, 26 
 
 IT. S. 1, 31. Kan. 682 ; Rossniiller w. State, 114 Wis. 
 
 2 Shively v. Bowlby, 152 U. S. 1, 58 ; 169 ; Woodman v. Pitman, 79 Mo. 456 ; 
 Water Power Co. v. Water Comm'rs, Brookville & M. H. Co. 0. Butler, 91 
 168 TJ. S. 349; Swerigan v. St. Louis, Ind. 134; Bigelow v. Shaw, 65 Mich. 
 185 IT. S. 38. 341. See Washington Ice Co. v. Short 
 
 8 LincolniJ.Davis, 53 Mich. 375; 111. all, 101 111. 46; Mill River W. Mfg 
 
 Cent. R. Co. v. Illinois, 146 U. S. 387. Co. v. Smith, 34 Conn. 462. 
 
 < Sraithu.Cityof Rochester, 92 N.Y. 6 ibid. 
 
 463, 473; People v. Canal Apprais- 
 
60 INTRODUCTION AND OUTLINE. 
 
 neous productions of the earth which do not require an- 
 nual cultivation ; or fructus industriales, fruits which are the 
 result of yearly culture. Since the former are the more 
 closely and permanently connected with the soil and appear 
 more really to be a part of it, they are more frequently treated 
 as real property than are the latter.^ Each of these classes 
 requires brief consideration. 
 
 § 52. Fructus Industriales. — These include not only those 
 crops which require the yearly sowing of seed, such as corn, 
 potatoes, beans, peas, and the like, but also those which are 
 produced by vines or shrubs springing up anew each year from 
 old roots but needing training and culture in order to the 
 production of valuable fruit. ^ Types of the latter kinds of 
 products are hops, requiring as they do that the vines shall 
 be trained upon poles or other supports and cultivated in 
 order that a crop may result,^ and turpentine, which, though 
 taken from trees, yet requires annual care and culture for its 
 production.* Nursery trees also are practically fructus in- 
 dustriales, since care and training by man are necessary to 
 their production in a form suitable for market.^ It is some- 
 times difficult in individual cases to decide what products of 
 the soil are fructus industriales ; but it may be stated in gen- 
 eral that they include all fruits and crops which need annual 
 sowing, or cultivation, or training, or care by man, in order 
 to the production of any substantial, valuable result. Things 
 are not to bo placed in this class simply because by cultiva- 
 tion a letter crop will be produced. Thus, blackberries aild 
 strawberries are not fructus industriales; for the vines or 
 bushes will produce valuable crops from year to year without 
 man's care, although training and culture may cause them to 
 bring forth larger and better fruits.^ 
 
 The common law treats these annual products of the soil 
 (fructus industriales) as part of the realty, unless they are so 
 dealt with by the owner of the land or the character of the 
 
 1 Matter of Chamberlain, 140 N. Y. » Latham v. Atwood, Cro. Car. 51S ; 
 390 ; Sparrow v. Pond, 49 Minn. 412 ; Rodwell v. Phillips, 9 M. & W. 501 ; 2 
 Brittain v. JlcKav, 1 Ired. L. {N. C.) Blackst. Com. p. * 122. 
 
 265 ; Preston v. Ryan, 45 Mich. 174. * Lewis v. McNatt, 65 N. C. 63. 
 
 2 Co. Lit. 55 b, II., 364; Williams, 6 Pentou v. Robert, 2 East, 88 ; Price 
 on Exr's, 597 ■ Lewis v. McNatt, 65 v. Brayton, 19 Iowa, 309. 
 
 N". C. 63; State ^. Moore, 11 Ired. L. o Sparrow v. Pond, 49 Minn. 412; 
 
 (N. C.) 70 ; Penton v. Robert, 2 East, Matter of Chamberlain, 140 N. Y. 390 ; 
 
 88 ; Forbes v. Shattuck, 22 Barb. (N. Y.) Kimball v. Sattley, 55 Vt. 285. 
 568 ; Chaplin, Landl. & T. ch. xxi. 
 
PROPERTY, REAL OR PERSONAL. 61 
 
 ownership is such as to indicate that they are personal prop- 
 erty'. ^ Hence, if the landowner grant or devise it without 
 mentioning the crops that are growing upon it, they pass to 
 the grantee or devisee.^ And when an ancestor dies intestate, 
 although the annual crops standing upon his land whether 
 then ready for harvest or not belong primarily to his personal 
 representatives, this is only for the purpose of paying his 
 debts; and if not needed to satisfy his creditors they pass 
 with the land to his heirs, unless it is otherwise provided by 
 statute.^ (a) Even though the crops are mature, but have not 
 yet been severed from the land, they are generally treated as 
 prima facie a- part of the real property.* But in this condi- 
 tion the courts have more readily regarded them as person- 
 alty, against the claim of the heirs, and in some instances 
 against that of devisees.* 
 
 While a few early cases held that a conveyance of the 
 land upon which stood annual crops necessarily included 
 
 (o) In a number of the American states this is regulated by statute. 
 The law of New York is as follows: "The following shall be deemed 
 assets and go to the executors and administrators, to be applied and dis- 
 tributed as part of the personal property of the testator or intestate, and 
 be included in the inventory; ... 5. The crops growing on the land of 
 the deceased at the time of his death. 6. Every kind of produce raised 
 annually by labor and cultivation, except growing grass and fruit ungath- 
 ered." N. Y. Code Civ. Pro. § 2712; Batterman v. Albright, 122 N. Y. 
 484 ; Matter of Chamberlain, 140 N. Y. 390. 
 
 1 Last preceding note ; Branton v. * Thus a crop of corn standing un- 
 Griflats, L. R. 1 C. 1'. Div. 349 ; Bradner harvested in the field in December was 
 V. Faulkner, 34 N. Y. 347 ; Howell u. held to have passed to the grantee of 
 Schenck, 24 N. J. L. 89 ; Smith v. Price, the land. Tripp c. Hasseig, 20 Mich. 
 39 111.28. 254,261. See Parker u. Strickland, 11 
 
 2 Falmouth c. Thomas, 1 Cr. & M. East, 302 ; Kittredge v. Woods, 3 N. 11. 
 89 ; Vaughan v. Hancock, 3 C B. 766 ; 503. A crop growing on land when it is 
 Batterman v. Albright, 122 N. Y 484, sold on execution passes with the land. 
 488 ; Banta u. Merchant, 173N.Y. 292; Hersberg v. Metzgar, 90 Pa. St. 217; 
 Winterraute v. Light, 46 Barb. (N. Y.) Pitts v. Hendiix, 6 Ga. 452 ; Porche v. 
 278, 283 ; Bradner v. Faulkner, 34 N. Y. Bodin, 28 La. An. 761. And the same 
 347 ; Dennett v. Hopkinson, 63 Me. 350; is true as to a sale on foreclosure or in 
 Bull u. Griswold, 19 111. 631 ; Cummings partition. Ledyard u. Phillips, 47 Mich. 
 V. Newell, 86 Minn. 130; Willis v. Moore, 305 ; Jones v. Thomas, 8 Blackf. (Ind.) 
 59 Tex. 628. 428. But see Albin v. Eiegel, 40 Ohio 
 
 8 Kain v. Fisher, 6 K Y. 597 ; Bat- St. 339. 
 terman v. Albright, 122 N. Y. 484, 488; * Last three preceding note.i ; Pen- 
 Stall V. Wilbur, 77 N. Y. 158 ; Howe v. hallow v. Dwight, 7 Mass. 34 ; Sherman 
 Bachelder, 49 N. H. 204 ; Penhallow u. v. Willett, 42 N. Y. 146; Howe v. 
 Dwight, 7 Mass. 34 ; Pattison's Appeal, Bachelder, 49 N. H. 204; McGee v. 
 61 Ta. St. 294 ; Broom's Legal Maxims, Walter, 106 Mich. 521. 
 p. » 305 ; 2 Woerner Adm. § 282. 
 
62 INTRODUCTION AND OUTLINE. 
 
 them unless they were expressly excepted in the deed,^ yet 
 the great weight of authority is now in favor of permitting 
 an oral reservation of the crops, without violating the statutes 
 of frauds. The owner may treat them, even before they are 
 severed from the soil as personal property, and may orally 
 reserve them to himself or transfer them to another by any 
 method which complies with the requirements of the section 
 of the statute of frauds relating to personalty. ^ So they may 
 be taken on execution as personal property ; and a mortgage 
 of them as chattels generally gives to the mortgagee an 
 ownership of them superior to the rights of subsequent pur- 
 chasers or encumbrancers of the land.^ After the crop is 
 severed from the soil, even though not yet removed from the 
 land on which it grew, it is uniformly treated as personal 
 property, and does not pass with a conveyance of the land 
 unless the grantor act in such a manner as to preclude him- 
 self from denying the vendee's right to the crop.* 
 
 Again, the character of the ownership of the land by him 
 who claims the annual crops may be such as to cause them 
 to be treated as part of his personal property. This is true 
 of such products raised by a tenant for years, at will, or for 
 life, while the tenancy continues ; ^ and where the holding is 
 for an uncertain period, such as that of a life tenant or tenant 
 at will, the right to cultivate and harvest the crops which are 
 the result of his annual labor ordinai-ily belongs to the tenant 
 as to such crops which are growing upon the land when the 
 
 1 See Emmerson v. Heelis, 2 Taunt. » Whipple v Foote, 2 Johns. (N. Y.) 
 38 ; Sainsbury v. Matthews, 4 M. & W. 418 ; Fry v. Miller, 45 Pa. St. 441 1 Wait 
 343; West v. Moore, 8 East, 339. u. Baldwin, 60 Mich. 622. 
 
 2 Sexton V. Breese, 135 N. Y. 387, * Bixon v. NiccoUs, 39 111. 372; 
 391; Stall c. Wilbur, 77 N. Y. 158; Pat- Hersberg v. Metzgar, 90 Pa. St. 217; 
 tison's Appeal, 61 Pa. .St. 294 ; Owens v. Stockwell v. Phelps, 34 N. Y. 363 ; 
 Lewis, 46 lud. 488 ; Kelley v. Goodwin, Faulcou a. Johnston, 102 N. C. 264. 
 
 95 Me. 538 ; Howe v. Baehelder, 49 NT H. ' Co. Lit. 55 ; Gland's Case, 5 Co. 
 
 204; M. V. L. Co. ,.. Barwick, 50 Kan. Rep. 116 a; Whipple v. Foote, 2 Johns. 
 
 57; Polley i: Johnson, 52 Knn. 478; (N. Y.) 418; Stewart v. Doughty, 9 
 
 Overman i\ Sa-sser, 10 La wy. Rep. Ann. Johns. (N. Y.) 108; Harris v. Frink, 
 
 722 and note. Where the owner of a 49 N. Y. 24, 30; Batterman v. Albright, 
 
 mortgaged farm sells a crop of wheat 122 N. Y. 484, 490 : Kelley v. Goodwin, 
 
 growing thereon, and then before it is 95 Me. 538; Johnson v. Camp, 51 111. 
 
 harvested delivers possession of the land 219, 220. But the crops may'readily 
 
 to the mortgagee, the mortgage debt become a part of the realtv, if the tenant 
 
 not yet being due, the purchaser of the voluntarily abandon or forfeit the land, 
 
 crop as such owns it in preference to Tbid. ; Chandler v. Thurston, 10 Pick, 
 
 theclaimsof the mortgagee of the land. (Mass.) 205, 210; Debow ti. Colfax 10 
 
 Sexton V. Breese, 135 N. Y. 387. N. J. L. 128. ' 
 
PROPERTY, REAL OR PERSONAL. 63 
 
 tenancy terminates.' This right of a tenant for an uncertain 
 period to his away-going crops is to be more fully treated of 
 hereafter under the head of emblements. 
 
 § 53. Pruotus Naturaies. — These are trees and their fruits, 
 shrubs and grasses, which come to perfection without needing 
 labor or intervention by man. Under most circumstances 
 they are a part of the land upon which they are standing, 
 and pass with it by grant, devise, or descent.^ They are so 
 closely allied, in contemplation of law, to the soil itself that, 
 while standing as they have grown upon it, they can not be 
 transferred by oral contract; but the conveyance must comply 
 with the requirements of that part of the statute of frauds 
 which relates to the sale of lands, tenements, or heredita- 
 ments, or any interest therein.^ (a) It has been held in New 
 York and some of the other American states, that, if standing 
 trees be sold by written contract so that the purchaser owns 
 them distinct from the soil, they may be regarded as personal 
 property in his hands and transferred or otherwise dealt with 
 as such. His purchase of them, without including any of the 
 soil in which they are rooted, works a constructive severance 
 of them from the land. He must buy them as real property 
 from the owner of both soil and trees ; but after so buying he 
 may own them as a portion of his personalty.* 
 
 (a) It is to be again noted that section 2712 N. Y. Code Civ. Pro. 
 declares that " every kind of produce raised annually by labor and cultiva- 
 tion " is to be part of the pfersonal assets of a deceased person, " except 
 growing grass and fruit ungalhered." Note (a), p. 61, supra. It is thus 
 made clear that, even though fruits such as apples, peaches, pears, etc., or 
 such grasses as clover or sedge, may be carefully cultivated, and so im- 
 proved in quality or increased in quantity, they are, while still standing 
 uncut in the field or hanging ungathered upon the trees, a part of the real 
 property of the deceased owner of the land. Matter of Chamberlain, 140 
 N.Y. 390. 
 
 1 Eietredge v. Woods, 3 N. H. 503 ; ' Carrington v. Roots, 2 M. & W. 
 Whitmarsh !). Cutting, 10 Johns. (N.Y.) 248; Green o. ArmBtrong, 1 Denio 
 360 ; Terraes de la Ley, " Emblements." (N. Y.), 550; McGregor v. Brown, 10 
 See Reeder ii. Sayre, 70 N. Y. 180, 184, N. Y. 114 ; Howe v. Bachelder, 49 N. H. 
 185. 204; Brackett v. Goddard, 54 Me. 309; 
 
 2 St. Regis Paper Co. w. Santa Clara Whitmarah v. Walker, 42 Mass. 313; 
 Lumber Co., 173 N. Y. 149 ; Matter of Buck u. Pickwell, 27 Vt. 157 ; Walton 
 Chamberlain, 140 N. T. 390; Batter- u. Lowry, 74 Miss. 484. 
 
 man v. Albright, 122 N. Y. 484 ; Hutch- * Lansingburgh Bk. v. Crary, 1 Barb, 
 
 ins t'. King, 68 U. S. (1 Wall.) 53; (N. Y.)542; Warren k. Leland, 2 Barb. 
 
 Sparrow i>. Pond, 49 Minn. 412 ; Slocnm (N. Y.) 613 ; Claflin v. Carpenter, 4 Met. 
 
 V. Seymour, 36 N. J. L. 138 ; White v. (Mass.) 580 ; Kingsley v. Holbrook, 45 
 
 Foster, 102 Mass. 375. N. H. 313 ; McClintock's Appeal, 71 
 
64 INTRODUCTION AND OUTLINE. 
 
 A sale of standing trees or grass, which results in the 
 immediate passing of the title, must be carefully distinguished 
 from a contract for their future sale and delivery. Such a 
 contract may be made orally, when it provides for their 
 severance by the vendor and delivery to the vendee;^ while, 
 if under its provisions they are to be cut by the vendee, the 
 contract is unenforcible unless it is in writing. ^ The latter 
 form of the contract contemplates the passing of the title | 
 while they are still connected with the soil, and therefore is '■ 
 an agreement for the sale of an interest in land. In the| 
 case, however, where the vendor is to sever them from the' 
 ground, the sale is not to be consunamated and the title is not 
 to pass until they have become personal property by reason 
 of such severance, and it is therefore a sale of that kind of 
 property. 3 
 
 A sale of standing trees or grass, which results in an 
 immediate passing of the title, must also be carefully distin- 
 guished from a mere license given by the owner to another 
 to come upon the land and cut and remove them. Such a 
 license, though given orally, as it usually is, is a complete 
 justification to him who acts upon it and removes the grass 
 or trees.* But it gives to him no ownership of or enforcible 
 
 Pa. St. 365. Tde courts of England but often diiBcnlt of application, and 
 
 and those of some of the United States it has been practically discarded in the 
 
 have distinguished between a sale of United States. Ibid. ; Liford's Case, 
 
 trees when the sap is out of them and II Coke, 46 b; White v. Foster, 102 
 
 they are to be cut and removed by the Mass. 375 ; last three preceding notes, 
 vendee before it returns (or when they ' Bostwick v. Leach, 3 Day (Conn.), 
 
 are sold, for their immediate removal 476, 484 ; Killmore v. Howlett, 48 Ni Y.-^ 
 
 by the vendee, so that they are not to 569 ; St. Regis Paper Co. v. S.'C. Lum- 
 
 receive any further sustenance from the ber Co., 173 N. Y. 149 ; White o. Foster, 
 
 soil), and a sale of them to be owned by 102 Mass. 375 ; Marshall v. Green, L. E. 
 
 the vendee while standing with the sap I C. P. Div. 35. 
 in them and to receive further nourish- ^ P. 62, note 2, supra, 
 
 ment from the soil before their removal. ' P. 62, note i, supra. 
 
 They have held that in the former case * See "license," discussed § 240, 
 
 the purchaser owns them as personal infra, as an excuse when executed for 
 
 property, and may even buy them as what would otherwise have been a tres- 
 
 such if he do so when there is no sap in pass. Some courts hold that as soon as 
 
 them, while in the latter case it is a sale the trees are cut pursuant to a license, 
 
 of real property, and they remain realty though not yet removed from the land, 
 
 in his hands or in the hands of those they become the personal property of 
 
 claiming under him so long as they the licensee, and the license to remove 
 
 continue to draw sustenance from the them is then irrevoaable. Nettleton u. 
 
 ground. This distinction, making the Sykes, 8 Met. (Mass.) 34; Leonards, 
 
 character of the trees depend on whether Medford, 85 Md. 666; Cool u. B. & L. 
 
 or not they are to receive further nutri- Co., 87 Ind. 531 ; Bostwick v. I^each, 
 
 ment from the soil, is logically correct 3 Day (Conn.) 476. 
 
PROPERTY, REAL OR PERSONAL. 65 
 
 interest in them until they have been severed from the ground. 
 Before such severance the landowner may revoke the license 
 and prevent the licensee from going upon the land ; while, if 
 the transaction had resulted in a valid sale of the grass or 
 trees, the vendor would have lost all control over them. ^ 
 
 Trees cut or blown down and lying upon the land where 
 they grew, or grass severed from the ground but still lying 
 upon it, will pass with a transfer of the land when there are 
 no circumstances to indicate a contrary intent.^ But in these 
 conditions they may also be treated as personal property, in 
 the same manner as fructus industriales.^ And when they 
 have been removed from the land upon which they grew, or 
 the trees have been sawed or hewn into timber or cut or piled 
 up in such a way as to indicate a permanent severance from 
 the soil, they become personalty.* 
 
 As was above pointed out, trees planted and cultivated as 
 nursery products and designed to be sold and transplanted 
 while yet young are in reality fructus industriales, and are 
 governed by the principles of law applicable to annual crops. 
 Nursery trees are often treated by text-writers as fixtures; 
 but they are uniformly personal property, if the owner choose 
 to so regard them, and it will be found that the courts have 
 constantly applied to them the rules of law which control 
 fruits of yearly cultivation.^ 
 
 Standing trees being ordinarily real property, it is settled 
 that, if the trunk of a tree be wholly on one man's land while 
 the roots extend into another's soil and the branches over- 
 hang it, the entire tree and all its fruits, if any, belong to 
 the owner of the land on which the trunk stands.^ The ad- 
 jacent owner, however, may lop off the branches and roots 
 at the dividing line between the two lots of land.''' When, on 
 the other hand, the trunk of a tree stands partly on one man's 
 
 1 Lwt preceding note. which was given before the planting of 
 
 2 Brackett v. Goddard, .^4 Me. 309 ; the trees. Maples v. Millon, 31 Conn. 
 Kittredge v. Woods, 3 N. H. 503; 598; Adams v. Beadle, 47 Iowa, 439; 
 Cook V. Whiting, 16 111. 480. Brooks w. Galster, 51 Barb. (N. Y.) 196 ; 
 
 3 Ibid. Miller v. Baker, 1 Met. (Mass.) 27. 
 
 * Ibid. ^ Masters v. Pollie, 2 Rolle, 141, 
 
 5 Batterman v. Albright, 122 N. Y. 144 ; HofEman o. Armstrong, 48 N. Y. 
 
 484, 489; Price v. Brayton, 19 Iowa, 201; Lyman v. Hale, 11 Conn. 177; 
 
 309. It has been held, however, that Skinner v. Wilder, 38 Vt. 115. 
 
 nursery trees planted by the owner of ' Ibid. ; Lemmon v. Webb (1894), 
 
 the land become part of the realty, as 3 Ch. Div. 1 ; Grandona u. Lovdal, 70 
 
 security under a mortgage of the land Cal. 161. 
 
66 INTRODUCTION AND ODTLINE. 
 
 land and partly on another's, the dividing line between the 
 lots passing through the trunk whether at its middle or not, 
 the entire tree and its fruits belong to the two landowners as 
 tenants in common.^ 
 
 § 54. Manure. — Manure made upon a farm, from the con- 
 sumption of its products and in the ordinary manner, is 
 regarded, either as between vendor and vendee, mortgagor 
 and mortgagee, or landlord and tenant, as a part of the real 
 property. And this is generally true of both the manure 
 itself and of composts formed of its mixture with hay, straw, 
 soil, or other substances, and whether it or they be found 
 where the manure is dropped or gathered into heaps or 
 piles or moved to different parts of the farm.^ It has been 
 ■ held, however, that, when raked into heaps for the purpose 
 of being removed from the farm and sold, manure is to be 
 treated as personalty ; ^ while, if so gathered for the purpose 
 of being carted to another part of the same farm and used 
 there, it remains a part of the land.* The reason for the 
 general rule isthat, since the substance of the land produces 
 the manure, it should remain on the farm for its enrich- 
 ment, and the soil should not be impoverished because of its 
 removal by a vendor or outgoing tenant.^ But this reasoning 
 is repudiated in New Jersey, North Carolina, and New Bruns- 
 wick, in all of which jurisdictions manure is ordinarily held 
 to be personal property.® 
 
 When the food from which the manure is produced is not 
 raised on the land upon which it is dropped by the animals, 
 the reason for treating it as a part of the realty does not exist, 
 
 1 Dubois w. Beaver, 25 N. Y. 123; » Leigh v. Hewitt, 4 East, 154; 
 Griffin c. Bixby, 12 N. H. 454. Aud French v. Freeman, 43 Vt. 93 ; Strong 
 neither owner can legally destroy or b. Doyle, 110 Mass. 92; Middlebrook w. 
 injure the tree without the consent of Corwin, 15 Wend. (N. Y.) 169. And, 
 the other. Ibid. ; Waterman v. Soper, of course, its character as realty or 
 1 Ld. Kaym. 737 ; Skinner u. Wilder, personalty may be controlled by ens- 
 38 Vt. 115. See Kobinson v. Clapp, 65 tom or agreement. Webb v. Pluramer, 
 Conn. 365. 2 B. & Aid. 746 ; Fletcher v. Herring, 
 
 2 Middlebrook i: Corwin, 15 Wend. 11'2 Mass. 382; Hill v. De Rochemont, 
 (N. Y.) 169; Goodrich i-. Jones, 2 48 N. H. 87. 
 
 Hill (N. Y.), 142; Elting v. Palen, 60 * Last two preceding notes. 
 
 Hun (N. Y.), 306; Lewis v. Lyman, 22 6 Jbid. 
 
 Pick. (Mass.) 437; Kittredge v. Woods, ' Ruckman v. Cutwater, 28 N. J. L. 
 
 3 N. H. 503 ; Perry v. Carr, 44 N. H. 581 ; Smithwick v. Ellison, 2 Ired. L. 
 
 118; Chase v. Wingate, 68 Me. 204; (N. C.) 326; Staples .;. Emery, 7 Me. 
 
 Norton v. Craig, 68 Me. 275 ; Wetherbee 201 ; 1 Wash. R. P. p. »6. 
 
 V. Ellison, 19 Vt. 379 ; Strong v. Doyle, 
 
 110 Mass. 92. 
 
PROPERTY, REAL OR PERSONAL. 67 
 
 and it is accordingly held to be personal property. Thus, 
 where a tenant of a farm fed his cattle upon grain produced 
 from a source foreign to the land, he was entitled during his 
 term to remove it from the farm.^ And where the owner of 
 a stable in which he kept team horses sold it together with 
 the house and small yard around them, it was held that a 
 quantity of manure iu the cellar of the stable did not pass to 
 the vendee, but remained the personal property of the vendor.^ 
 So, manure dropped in the street is the personal property of 
 the first taker. ^ 
 
 Manure, while still where it was dropped on the land from 
 the products of which it was made, may be treated as person- 
 alty by the landowner and transferred or encumbered as such. 
 He may, accordingly, dispose of it by any contract which 
 complies with the statute of frauds as to sales of personalty, 
 and a subsequent conveyance of the farm will not pass the 
 manure to the vendee under the deed. It is thus capable of 
 being constructively separated from the land by oral contract, 
 in the same manner as ice and annual crops.* 
 
 § 55. Pew Rights. — In England, the freehold of church 
 property is in the parson for the time being. The pewholder 
 has a right to occupy the pew during divine services, and this 
 is an incorporeal right in the nature of an easement in the 
 lands of another.^ When it is granted to one in perpetuity 
 or for life, his ownership of it is real property ; but when it 
 is simply leased to him for one or more years, his interest in 
 it is personal property, — a chattel real.^ In this country, in 
 the absence of statutory provisions, the same statements apply 
 
 1 Gallagher v. Shipley, 24 Md. 418; v. Doyle, 110 Mass. 92; Ewell on Fix- 
 Snow w. Perkins, 68 Md. 48.3 ; Pickering tures, p. 122; Tyler on Fixtures, pp. 
 V. Moore, 33 Atl. Rep. 828 (N. H.). 352-356. 
 
 But the fact that a tenant famished to ' Brumfitt r. Roberts, 5 C. P. 224, 
 
 his live-stock some hay and grass not 232; Phillips v, Haliday (1891), App. 
 
 raised on the premises will not give him Cas. 228 ; Shaw v. Beveridge, 3 Hill 
 
 any title to the manure made, especially (N. Y.), 26; Daniel v. Wood, 18 Mass. 
 
 if he fail to specify how much of either 102. 
 
 he supplied, and what proportion they ^ McNabb v. Pond, 4 Bradf. (N. Y.) 
 
 bore to the entire amount of food con- 7; Johnson v. Corbett, 11 Paige (N. Y.), 
 
 sumed by the live-stock. Lewis f. 265, 276. French v. The Old South 
 
 Jones, 17 Pa. St. 262, 267. Society, 106 Mass. 479. When an iu- 
 
 2 Proctor V. Gilson, 48 N. H. 62. terest in any kind of realty is for a 
 ' Ha.slera v. Lockwood, 37 Conn. term of years only, that interest is a 
 
 500, mere chattel real, — personalty. See 
 
 * French v. Freeman, 43 Vt. 93 ; § 73, infra. ' 
 Collier v. Jenks, 19 R. I. 137 ; Strong 
 
bo INTRODUCTION AND OUTLINE. 
 
 as to the nature of the pewholder's rights and ownership;' 
 but the determination of where the title to the church grounds 
 and edifice resides depends on the character and organization 
 of the church society. In some of the states, statutes declare 
 pews in churches to be personal property ; while in other 
 states they are thus made real property.^ In either case, the 
 rights of the owner of the pew do not include the privilege of 
 occupying or using it at any time except during divine ser- 
 vices, or for any other purposes than those connected in some 
 way with public worship. ^ 
 
 The church society or organization has such a vital inter- 
 est in the character and personnel of its pewholders, in the 
 uses to which the pew is to be put and in the compensation to 
 be paid for the same, that it is generally permitted, without 
 any of the restrictions of technical rules of law, to treat the 
 terms of the deed or contract as the sole criterion of the 
 nature and extent of the estate, rights, and duties of the owner 
 of a pew. Thus, if a deed conveying an acre of land in fee 
 simple should contain a clause purporting to restrict abso- 
 lutely the right of the grantee to alien the same, such clause 
 
 1 Freligh v. Pla*t, 5 Cow. (N. Y.) 
 494 ; Ithaca Church v. Bigelow, 16 
 Wend. (N. Y.) 28 ; Woodworth ti. Payne, 
 74 N. Y. 196, 200; Sohier v. Trinity 
 Church, 109 Mass. 1, 21 ; Aylward u. 
 O'Brien, 160 Mass. 118 ; State v. Trinity 
 Church, 45 N. J. L. 230 ; Barnard v. 
 "Whipple, 29 Vt. 401. In Shaw v. 
 Bereridge, 3 Hill {N. Y.), 26, 27, the 
 court said, per Nelson, Ch. J. : " But in 
 this state owners of pews have an ex- 
 clusive right to their possession and 
 occupation for the purposes of public 
 worship ; not as an easement, but by 
 virtue of their individual rights of 
 property therein, derived perhaps, in 
 theory at least, from the corporation 
 represented by the trustees who are 
 seised and possessed of the temporalities 
 of the church." But the right is uni- 
 formly treated as substantially an ease- 
 ment. And its owner may have an 
 action of trespass against any one who 
 wrongfully interferes with the right. 
 Ibid. ; Voorhees v. Presby. Ch., 17 Barb. 
 (N. Y.) 108 ; St. Paul's Ch, <;. Pord, 34 
 Barb. (N. Y.) 16 ; French v. The Old 
 South Society, 106 Mass. 479. 
 
 2 See Jackson u. Koun.seville. 4G 
 Mass. 127; O'Hear v. Ue Goesbriand, 
 33 Vt. 593 ; Church o. Wells' Execu- 
 tors, 24 Pa. St. 249; Mass. Rev. L. 
 1902, ch. 36, § 38 ; Aylward v. O'Brien, 
 160 Mass. 118; Smith v. Blood, 106 
 N. Y. App. Div. 317, 323. 
 
 8 Brumfitt V. Roberts, 5 C. P. 224 
 Erwin v. Hurd, 13 Abb. N. C. (N. Y.) 91 
 Pirst Bapt. Soc. v. Grant, 59 Me. 245 
 Presby. Ch. in Newark v. Andruss, 21 
 N. J. L. 325. At meetings for tem- 
 poral purposes, but such as have some 
 bearing directly or indirectly upon the 
 management or interests of the church, 
 it would seem that the owner of a pew 
 has the exclusive right to sit therein. 
 Wall V. Lee, 34 N. Y. 141, 149; First 
 Baptist Church of Hartford v. Wether- 
 ell, 3 Paige (N. Y.), 296. But when the 
 use of the edifice for the time being is 
 wholly foreign to the business or affairs 
 of the church, — as when it is leased for 
 purposes not connected with the public 
 worship of the church society, — the 
 pewholder has no such exclusive right. 
 Jackson v. Kounseville, 46 Mass. 127, 
 132. 
 
69 
 
 •would be null and void : ^ but, in the conveyance of a pew, 
 whether in fee simple, for life, or for j'ears, such a restriction 
 is valid and enforcible.^ So the contract is the only thing 
 ordinarily to be consulted in determining the power of the 
 society to tax the holder of the pew and otherwise to demand 
 compensation for its use.^ 
 
 So long as the church authorities do not act wantonly or 
 maliciously against the holder of a pew, he can not prevent 
 any alterations, repairs, or even removal or taking down of 
 the building by them.* He can not compel the holding of 
 divine services in the structure, nor prevent the society from 
 abandoning it as a place of worship.^ If the building be 
 destroyed by fire or other casualty, or become so dilapidated 
 that it must be taken down, he has no right to compensation 
 for the loss of his pew.^ If, however, a pew be taken away 
 when it is not reasonably necessary to do so, the owner may 
 recover proper compensation.' So, alterations must be made 
 with a just regard to the relative rights of the holders of the 
 pews ; and if in the course of alterations or repairs a pew be 
 placed in a position relatively less advantageous than that 
 which it formerly occupied, the owner may recover compensa- 
 tion for his loss.^ 
 
 § 56. Burial Rights. — The right of sepulture is governed 
 by substantially the same legal principles as are pew rights, 
 except that the former are rarely granted otherwise than in 
 perpetuity. The cemetery society, or other organization for 
 burial purposes, usually retains the ownership of the soil, 
 while the owner of the burial plot or right has an easement as 
 real property, or a license, to bury there so long as the ground 
 
 1 See discussion of the rule which Ch. (N. Y.) 608 ; Aylward v. O'Brien, 
 prevents a grantor in fee simple from 160 Mass. 118. 
 
 restricting the right of alienation by his ' Freligh v. Piatt, 5 Cow. (N. T.) 
 
 grantee, §§ 280, 282, infra. 494 ; Matter of Ref. Dutch Church, 
 
 2 French >■. The Old South Society, 16 Barb. (N. Y.) 237 ; Van Houten v. 
 106 Mass. 479. See 22 Lawy. Rep. First Ref. Dutch Church, 17 N. J. Eq. 
 Ann. 206 ; Aylward v. O'Brien, 160 126. 
 
 Mass. 118. ^ Ibid. ; Voorhees v. Presby. Church, 
 8 Gifford V. First Presby. Soc. of 8 Barb. (N. Y.) 135; Re Brick Presby. 
 Syracuse, 56 Barb. (N. Y.) 114; Bapt. Church, 3 Edw. Ch. (N. Y.) 155; Kin- 
 Church c. Witherell, 3 Paige (N. Y.), caid's Appeal, 66 Pa. St. 411; Jones v. 
 296 ; German Ref. Church v. Seibert, Towne, 58 N. H. 462. 
 3 Pa. St. 282, 291 ; Chase v. Cheney, 58 ^ Voorhees v. Presby. Church, 17 
 111.509. Barb. (N. Y.) 108; Sohier v. Trinity 
 4 Howe V. Stevens, 47 Vt. 262; Church, 109 Mass. 1, 21 ; Aylward w. 
 Heeney v. St. Peter's Church, 2 Edw. O'Brien, 160 Mass. 118. 
 
 8 Ibid. 
 
70 INTRODUCTION AND OUTLINE. 
 
 is used for burial purposes. The deed or contract in this case 
 also is treated as practically the sole criterion of the relative 
 rights and duties of the parties.^ The owner of the burial lot 
 or privilege holds it subject" to municipal control and police 
 regulations, and to the right of the society, so long as it acts 
 in good faith, to abandon it as a burial ground. The right 
 granted is also revocable v^'henever such a course is required 
 by public necessity. ^ It is to be added, as a matter of course, 
 that when a cemetery association sells the land to the various 
 purchasers of the lots, each purchaser acquires the corporeal 
 real property by his deed and holds it subject to the rules and 
 regulations of the society. But it is more customary for the 
 society to convey an easement or a license, as above explained, 
 and retain to itself the title to the land. 
 
 § 57. Heirlooms. — ; In the English law, articles, vrhich in 
 their inherent nature are personal property, sometimes become 
 so associated by custom with ancestral houses or structures as 
 necessarily to descend with them, as part of the real property, 
 to the heir. These are ca^ed heirlooms. They are generally 
 such implements or articles of furniture as can not be removed 
 without practically dismembering the inheritance. Illustra- 
 tions are, old family pictures and jewels, fish in a pond, jewels 
 of the crown, maps, charts, and other evidences of the inher- 
 itance, and the like.^ 
 
 Heirlooms, in this accurate sense, have never been recog- 
 nized by the law of this country, unless perhaps title deeds 
 passing with the land may be so treated.* But the same term 
 is sometimes used loosely and inaccurately to denote articles 
 which remain personalty but by act of the parties have been 
 retained in the same family for a number of generations. 
 Heirlooms as recognized in England are always real prop- 
 
 1 Windt V. German Ref. Church, Lord Chesham, L. E. 31 Ch. Div. 466 ; 
 4 Sand. Ch. (N. Y.) 471; Craig v. First 2 Blackst. Cora. pp. #18, *428; Shop. 
 Presby. Church, 88 Pa. St. 42 ; Sohier v. Tonchst. p. * 470. See Tollemache v. 
 Trinity Church, 109 Mass. 1, 21. Earl of Coventry, 2 CI. & F. 611 ; Hill 
 
 2 Ibid; ; Kincaid's Appeal, 66 Pa. v. Hill (1902), 1 Ch. 807. 
 
 St. 411; Dwenger v. Geary, 113 Ind. * Title deeds ordinarily pass with the 
 
 106,113; Hollmann w. Platteville, 101 land and belong to its owner, and are not 
 
 V7is. 94; B. L. & I. Co. v. Jenkins, 111 property in and of themselves; but it 
 
 Ala. 135. , would not be safe to say that they have 
 
 8 Liford's Case, 1 1 Co. Kep. 46 b, SO ; been distinctively treated as heirlooms 
 
 Ford (,-. Tynte, 2 Johns. & H. 150; in this country. See Parrett w. Avery, 
 
 Shelley v. Shelley, 37 L. J. Ch. 357 ; 1 59 Mass. 594 ; Huse v. Den, 85 Cal. 
 
 Lord V. Wardle, 3 Bing. N. C. 680; 390; Smith v. McGregor, 10 Ohio St. 
 
 Pusey 0. Pusey, 1 Vern. 273; In re 461,473; 48 Alb. Law Jour. 514. 
 
PROPERTY, REAL OR PERSONAL. 71 
 
 erty — hereditaments. As will be explained hereafter, they 
 afford the best illustration of hereditaments which are not 
 tenements.^ 
 
 The general nature of real property having been explained, 
 and the circumstances under which various classes of articles 
 are to be embraced within it having been examined, the way 
 is now cleared for the discussion of the rules and principles 
 of law that have been built upon and around it by the wisdom 
 of the centuries. 
 
 1 See § 62, infra. 
 
CHAPTER IV. 
 
 OUTLINE. 
 
 I. Kinds. 
 II. Holdings. 
 
 § 58. The four departments of 
 real-property law. 
 
 1. Kinds of Real Property. 
 
 § 59. Lands — Tenements — 
 Hereditaments. 
 § 60. I. Lands. 
 § 61. II. Tenements. 
 § 62, III. Hereditaments. 
 
 n. Holdings of Real Property. 
 § 63. Kinds or Holdings. 
 § 64. I. Alodial holding; 
 § 65. II. Tenure. 
 
 III. Estates in Real Property. 
 § 66. Classes of Estates. 
 § 67. I. Classified as to courts. — 
 (1. Legal. 2. Equitable.) 
 
 2. Equitable estates. 
 §68. (1) Uses. 
 
 § 69. (2) Trusts. 
 
 § 70. (3) Equities of redemption. 
 
 § 71. II. Classified as to quantity. 
 
 § 72. 1. Freehold estates. — (1) 
 Of inheritance, or Fees; (2) Not of 
 inheritance, or Life estates. 
 
 § 73. 2. Estates less than free- 
 hold. — (1) For years; (2) From 
 year to year; (3) At will; (4) At 
 sufferance. 
 
 § 74. III. Classified as to number 
 
 III. Estates. 
 
 IV. Titles. 
 
 and connection of owners. — (1. In 
 severalty. 2. Joint estates.) 
 
 § 75. 1. Estates in severalty. 
 2. Joint estates. 
 
 § 76. (1) Joint tenancy. 
 
 § 77. (2) Coparcenary. 
 
 § 78. (3) Estates in common. 
 
 § 79. (4) Estates by entirety. 
 
 §80. (5) Partnership estates. 
 
 § 81. (6) Joint mortgages. 
 
 § 82. IV. Classified as to qualified 
 nature. — (1. Absolute. 2. Qualified.) 
 2. Qualified estates. 
 
 § 83. (1) Estates on condition. 
 
 § 84. (2) Estates on limitation. 
 
 § 85. (3) Estates on conditional 
 limitation. 
 
 § 86. (4) Mortgages. 
 
 § 87. V. Classified as to time for 
 enjoyment to begin. — (1. Present. 
 2. Future.) 
 
 §88. 1. Estates in prcEsenti. 
 
 §89. 2. Estates in futuro. — 
 (1) Reversions; (2) Remainders; 
 (3) Executory estates. 
 
 IV. Titles to Real Property. 
 
 § 90. Definition of title — Its 
 elements. 
 
 § 91. I. Title by descent. 
 § 92. II. Title by purchase. 
 
OUTLINE. 73 
 
 § 93. 1. Title by purchase other 
 than by alienation. 
 
 § 94. 2. Title by alienation. 
 
 § 95. Liens on real property. 
 § 96. Registration of titles and 
 liens. 
 
 § 58. Four Departments of Real-property Law — Kinds — 
 Holdings — Estates — Titles. — The discussion of real property 
 and the law relating to it naturally divides itself into four 
 leading departments. The first of these is an explanation of 
 the different kinds of real property — lands, tenements, and 
 hereditaments. The second deals with the holdings of real 
 property, and in doing so brings to light many of the historical 
 reasons at the foundation of great legal principles. The third 
 discusses the estates or interests that may be owned in lands, 
 tenements, or hereditaments. And the last explains the 
 titles by which real property may be acquired and held. A 
 preliminary outline of each of these branches of our subject 
 will be of interest and assistance to the student. 
 
 I. Kinds of Real Property, 
 
 § 59. Lands — - Tenements — Hereditaments. — The historical 
 consideration of the common-law divisions of property shows 
 that, during the vigorous sway of the feudal system, things 
 which were objects of ownership were either goods and chattels, 
 or lands, tenements, and hereditaments ; and that, after that 
 system had lost most of its pristine vigor, they were either 
 real property or personal property. It thus appears that real 
 property consists of lands, tenements, and hereditaments. 
 
 § 60. I. Land, which is the least comprehensive of these 
 three terms, embraces all real property that is substantial 
 and tangible. It comprehends the soil of the earth and the 
 permanent productions and erections upon it, as trees, houses, 
 fences, poles, wires, and other structures. It includes all the 
 strata of the soil and the space downward to the centre of the 
 earth, as well as all the space and structures above the surface 
 indefinitely outward. If one own an acre on the surface of 
 the soil, his land is ordinarily embraced within a cone or 
 pyramid, having the centre of the earth as its apex, extending 
 upward and outward indefinitely into space, with its sides 
 passing through the edges of the plot marked out by the acre 
 upon the surface of the soil. The sides or superficies of this 
 cone constitute his close, for the wrongful breaking through of 
 
74 INTRODUCTION AND OUTLINE. 
 
 which by another the common law gives to the owner of the 
 land an action of trespass quare clausum fregit.^ 
 
 § 61. II. Tenements is a word of broader signification than 
 land. It denotes all property of which feudal tenure could be 
 predicated, i. e. which one as vassal could hold of another as 
 lord. It includes land and also mere incorporeal rights, such 
 as franchises, rents, ways, and other easements and servi- 
 tudes, — practically every species of real property known to 
 the American law, whether tangible or intangible. It is in 
 the fact that tenement embraces these incorporeal kinds of 
 property that its distinction from land is to be emphasized. 
 Including these and all- lands also, it is frequently and quite 
 accurately used as a generic word to denote real property of 
 every description.^ 
 
 § 62. III. Hereditament (heir-editament) is any property 
 capable of being inherited — anything that can be transmitted 
 by the law of descent from ancestor to heir. It is said by 
 Coke and Blackstone to be the largest and most comprehen- 
 sive of the three words, land, tenement, hereditament. ^ It 
 embraces lands and substantially all tenements, and also 
 some things which are neither lands nor tenements, such as 
 heirlooms. Since, however, heirlooms are not recognized in 
 this country, and they are the only things which in England 
 are really hereditaments and not tenements,* it follows that 
 the word " hereditament " has no broader scope in the United 
 States than the word "tenement." It is possible, moreover, in 
 
 1 See 3 Blackst. Com. ch. xii. if a certain stipulation or restriction 
 ' "Thus liberum tenementum, frank contained in the deed be violated by 
 tenement, or freehold, is applicable not such grantee or any such claimant, 
 only to lands and other solid objects. When the land is conveyed in fee sim- 
 bnt also to offices, rents, commons, and pie, with such restriction, the right to 
 the like : and, as lands and houses are recover it back if the restriction be 
 tenements, so is an advowson a tene- broken is called a possibility of fer- 
 ment ; and a franchise, an office, a right feiture (or possibility of reverter). This 
 of common, a peerage, or other prop- may descend to the heirs of the grantor, 
 erty of the like unsubstantial kind, are but it can not be assigned or devised, 
 all of them, legally speaking, tene- nor held one of another. In the law 
 ments." 2 Blackst. Com. p. * 17. of this country it is the nearest ap- 
 ^ Chase's Blackst. p. 219. proach to a hereditament that is not a 
 * Mr. Blackstone says (2 Blackst. tenement; but it is not, strictly speak- 
 Com. 17):" And so a condition, the bene- ing, either of these, since it is not prop- 
 fit of which may descend to a man from erty. It is a mere chance or possibility, 
 his ancestor, is also an hereditament." which may pass to the heirs of the 
 By a condition he means the right some- grantor, not as heirs, but by way of 
 times reserved by a grantor of land to representation. Upington v. Corrigan, 
 re-enter and take it back from the 151 N. Y. 143. 
 grantee or any one claiming under him, 
 
OUTLINE. 75 
 
 either country, to create a tenement that shall not be a here- 
 ditament. Thus, if A grant to B a right of way over A's 
 land, to continue during B's life only, such right or easement 
 is a tenement; but it is not a hereditament, since it must 
 terminate at B's death and therefore can not descend to his 
 heirs. 
 
 There are two kinds of hereditaments: 1. Corporeal; and 
 2. Incorporeal. 1. Corporeal are such as are tangible or 
 cognizable by the senses and are the same as land as above 
 defined. 2. Incorporeal hereditaments are rights, neither tan- 
 gible nor visible, nor otherwise cognizable by the senses, 
 which arise out of a thing corporeal, or are concerned with, 
 or annexed to, or exercisable within corporeal property. ^ 
 Such are a right of one person to pass over the land of 
 another, or to drain water across another's lot, the right to 
 build or maintain a ferry, bridge, or road, and the right to 
 collect compensation for the use of leased premises. 
 
 There are four kinds of incorporeal hereditaments, which 
 are important in American law. These are, (1) rent, (2) fran- 
 chise, (3) easement, (4) profit d prendre. Six other kinds 
 are recognized and dealt with by the English law, namely: 
 advowsons, tithes, offices, dignities, corodies or pensions and 
 annuities ; but, with the exception of the last, these things are 
 not known in this country, and the law of annuities belongs 
 rather to a work on wills or contracts than to one on real 
 property. (1) Rent is defined as the right to a certain profit 
 issuing periodically out of lands or tenements. A familiar 
 example is the right which the landlord has to collect from 
 his tenant compensation for the use of the leased premises. 
 (2) A frai^chise is a special right or privilege conferred by 
 the government upon one or more individuals, such as does 
 
 1 " In short, as the logicians speak, we must be careful not to confound to- 
 corporeal hereditaments are the sub- gether the profits produced, and the 
 stance, which may be always seen, thing, or hereditament, which produces 
 always handled; incorporeal heredita- them." (2 Blackst. Cora. p. *20). A 
 menta are but a sort of accidents, which rent, for example, is an incorporeal 
 inhere in and are supported by that hereditament, because it is merely the 
 substance ; and may belong, or not right to periodic compensation for the 
 belong to it, without any visible altera- use of leased property. The money, or 
 tion therein. Their existence is merely other valuable compensation which the 
 in idea and abstracted contemplation ; tenant pays, is not, in legal contempla- 
 thongh their effects and profits may be tion, the rent, but merely the proceeds, 
 frequently objects of our bodily senses. profits, or returns which the rent pro- 
 And indeed, if we would fix a clear ducei. See § 100, infra. 
 notion of an incorporeal hereditament. 
 
76 INTRODUCTION AND OUTLINE. 
 
 not belong generally to the citizens of the country. Thus, a 
 ferry right, a bridge right, or the right to build and operate a 
 railroad or to be a corporation is a franchise. (3) An ease- 
 ment has been well defined as "a privilege without profit" 
 (i. e. without iprofit h prendre, or the right to take anything 
 from the land), " which the owner of one piece of land called 
 the dominant tenement has over another piece of land called 
 the servient tenement." An example of this large and im- 
 portant class of incorporeal hereditaments is a right of way, 
 or the privilege of maintaining a drain, which one owner of 
 land has over the land of another. It is essential to the exist- 
 ence of an easement, as thus defined, that there shall be two 
 distinct tenements — a dominant and a servient. But there 
 are also many similar rights with which the law of real prop- 
 erty has to deal, and in which there is only one tenement in- 
 volved — the servient. Such are rights in streets, wharves, 
 or parks, or privileges which individuals as such may have 
 over land of others. These latter, although frequently called 
 easements, are .perhaps more properly designated by the gen- 
 eral, civil-law term servitudes, which, as commonly employed, 
 embraces all easements as well as all other forms of rights 
 owned by one person over the land of another. (4) A profit 
 d prendre is the right of one individual to take something of 
 value from the land of another. Illustrations are a mining 
 right, a right to cut and remove timber, and the privilege of graz- 
 ing cattle upon the fields of others. These rights are often 
 designated as commons; but the latter word is a narrower 
 old English term, which is not much used in the United States. 
 They are all included within the generic term servitudes. 
 
 A license, which is an authority to do some act or acts upon 
 the land of another without possessing any estate or interest 
 therein, is so similiar to incorporeal hereditaments, especially 
 to easements, that its treatment logically and properly follows 
 that of those other intangible rights. A mere license, although 
 it is generally a complete justification for any act done pur- 
 suant to its terms and while it remains operative, does not 
 give to its owner any right which is enforcible against the 
 will of the landowner. The latter may generally revoke it, 
 at any time before its execution is complete. It is, moreover, 
 most commonly made by parol, while easements and other 
 servitudes are created by grant, or prescription, or methods 
 equally strong and binding. 
 
OUTLINE. 77 
 
 II. Holdings of Real Property. 
 
 § 63. Kinds of Holdings. — The ample control, which the 
 owner of real property may now have over it, is the result 
 of long and gradual development. Absolute ownership of 
 land, except by the king, was unknown to the feudal law. 
 Hedged about originally by the most refined and cumbersome 
 restrictions, the subject who possessed realty has laboriously, 
 and step by step, made his way towards an independent 
 ownership, until, in England to-day, little but the theory of 
 tenure remains. By tenure from some superior lord, however, 
 is still the manner of holding land, in the mother country, by 
 every one except the king. In the United States, the advance 
 towards unrestricted ownership and control has been much 
 greater. There is no tenure of land here ; but the owner is 
 said to have it by an alodial holding; that is, there is no 
 recognition of any superior lord or over-master under whom 
 he retains his possession or control. The two methods of 
 holding real property, then, are, I. Alodial holding in this 
 country ; II. By tenure in England. 
 
 § 64:. I. Alodial Holding. — Protection by the state must 
 be back of all adequate and satisfactory enjoyment of property 
 of any kind. That protection is reasonably accompanied by 
 some rights and interests in the property, which are reserved 
 to the state. Such are the right of taxation, the right to 
 take property when needed for public purposes, — or eminent 
 domain, — ■ and the right of escheat, which gives the title of 
 property to the state when its owner dies intestate and with- 
 out heirs or without heirs by whom it can be inherited. Real 
 property held alodially is owned subject to such rights of the 
 state, but free and independent of all other domination or 
 control. Its owner has it in substantially the same way in 
 which he has his watch or horse. 
 
 § 65. II. Tenure. — The feudal system gave birth and nurt- 
 ure to very many of the leading principles, which now help 
 to make up the law of real property on both sides of the 
 Atlantic. Most of these originally clustered around the idea 
 of tenure, or the holding of land by one person, as vassal or 
 tenant, of another as lord. As terse illustrations of this fact, 
 it may be stated that the subtle idea of seisin, the leading 
 distinctions between the kinds of estates or interests which 
 may be owned in real property, the development of the right 
 
78 INTRODUCTION AND OUTLINB. 
 
 to transfer those interests from one to another, and the 
 methods and forms by which such transfers are made, espe- 
 cially the unfolding of a warranty and its effects on aliena- 
 tion inter vivos, were all directly produced or largely modified 
 by the existence of feudal tenure. These are fully discussed 
 hereafter. But it will conduce to clearness to explain here 
 that the important word " seisin " embraces not only the 
 thought of possession, or right of possession, of real property, 
 but also that of a claim of & freehold estate therein — an estate 
 either for life or that may descend to the owner's heirs. 
 Thus, seisin in fact is the actual possession of realty, coupled 
 with a claim of a freehold estate therein; and seisin in law is 
 the right to the possession of, and the ownership of, a freehold 
 estate in real property which no one else is holding adversely. 
 A life owner, or an owner in fee, of land, who has possession, 
 is seised in fact; an heir, who has inherited vacant land of 
 which he has not yet taken possession, is seised in law; but a 
 tenant for years, since his estate is less than one for life, has 
 only possession and not seisin. 
 
 The most ancient and honorable English tenure was that 
 by 1, Knight-service. It was purely military in character, and 
 required from the vassal, as compensation fOr his retention of 
 the land, attendance upon the lord and services for him in the 
 wars. These services were regarded as honorable and free 
 (i. e., worthy of a free man) find they were originally uncer- 
 tain in amount. He who held by this species of tenure was 
 said to have 2i proper feud ; and all other kinds of tenure gave 
 rise to so-called improper feuds. 
 
 As wars became less exacting and the acts of peace more 
 plentiful, tenure by knight-service gradually abated. The 
 most important of those holdings that succeeded it is that 
 which is still the prevailing modern English tenure, — 2, In 
 free and common socage. The services which it requires from 
 the tenant are still regarded as free and honorable ; but they 
 are fixed and definite in amount and consist in the return of • 
 money or its equivalent to the lord, rather than in military 
 exploits. Some of the land in the United States was held by 
 this form of tenure before the revolution.^ 
 
 There have existed three other more important forms of 
 English tenure. One of these is that in 3, Villein-socage (origi- 
 
 1 See Delancey v. Piepgras, 138 N. Y. 26; Gray Rule against Perpetuities, 
 SS 22-28. 
 
OUTLINE. 79 
 
 nally ancient demesne), in which the services or returns ren- 
 dered by the vassal to the lord are fixed and certain in 
 amount, but base, servile, or menial in character. Another 
 was tenure in 4, Pure villeinage, in which the services were 
 base or servile and unlimited in amount, — measured only by 
 the reasonable ability and endurance of the tenant, — a species 
 of " English serfage " now, of course, no longer employed. 
 And the third is tenure by 5, Copyhold, a form still in exist- 
 ence, which arose out of pure villeinage and in which the tenant, 
 once either in his own person or in that of his ancestor a slave 
 or villein, but subsequently emancipated and thus enabled to 
 contract with his lord and to contend with him in the courts, 
 may prove his interest and rights in the land by a copy of the 
 record or court roll formerly kept in the old manor court, or 
 court baron, of the manor in which the land is situated. 
 
 A word as to the inferior or subsidiary .species of tenure 
 will be sufficient in this brief outline. They were tenure by 
 6, Frankalmoin, in which the services were religious in char- 
 acter but not fixed in amount; by 7, Divine service, requiring" 
 certain and prescribed religious duties;- by 8, Grand sergeanty, 
 in which the vassal rendered some special, personal service for 
 the king; by 9, Petty sergeanty, which required the yearly ren- 
 dering to the king of some article for his personal use in war, 
 as a lance or a bow; by 10, Burgage, small holdings in the 
 ancient boroughs by a certain rent; and by 11, Gavelkind by 
 which the Kentish men held their lands under special, favor- 
 able customs. It will be seen, from the fuller discussion here- 
 after, that some of these — and especially frankalmoin — while 
 classed with the lesser tenures, throw much clear light on the 
 growth of feuds and on the abiding principles which feuds 
 matured. 
 
 III. Estates in Real Property. 
 
 § 66. Classes of Estates. — An estate is the interest which 
 one has in lands, tenements, or hereditaments. This is to 
 be carefully noted as something entirely distinct, not only 
 from the lands, tenements, or hereditaments themselves, but 
 also from the methods of holding them and from the titles 
 by which they may be acquired or held. Thus, an acre of 
 land may be held by A as vassal of B, the right to thus hold 
 having been conveyed to A by and being expressly made to 
 continue during A'a life only. The interest, or ownership 
 
80 INTRODUCTION AND OUTLINE. 
 
 which A has in the land, to continue during his life, is his 
 estate in that land; his title or means of acquiring the estate 
 is through C ; he holds it subject to the feudal rights of B ; 
 and thus the four conceptions — land, holding, estate, title — 
 stand out distinct. Again, A, the owner of land, may create 
 over it a perpetual right of way, which he grants to X and Y 
 jointly for twenty years, and after that time to Z and his heirs 
 forever. The right of way is a tenement, X and Y have a 
 joint estate in that tenement for twenty years, Z has an estate 
 to begin in possession after twenty years and last perpetually, 
 and the title, or means of acquiring these different estates or 
 interests in the one tenement, is derived from A, the common 
 grantor.! The law of personal property has comparatively 
 very little to do with estates. This is owing to the fact that, 
 because of the temporary and perishable character of person- 
 alty, the ownership or interest in it is usually absolute and 
 entire, and hence does not call for particular discussion apart 
 from the title. But, since real property is ordinarily perma- 
 nent and has been through all the ages the object of careful 
 study and refined distinctions, estates in it have been made, 
 classified, divided and subdivided until the rules and princi- 
 ples relating to them in their numerous aspects have come to 
 form, perhaps, the most important branch of the law of real 
 property. ' 
 
 The classifications of estates are from five distinct stand- 
 points ; namely : I. With reference to the courts by which they 
 are recognized — 'their legal or equitable nature; II. With 
 reference to their quantity — the extent or duration of the 
 interest; III. With reference to the number and connection 
 of their owners ; IV. With reference to their conditional or 
 
 1 The word estate, as here employed the word property. In the technical 
 
 in its technical and proper sense, is also sense of the law of real property, estate 
 
 to be carefully distinguished from the is one's interest in the property or object 
 
 meaning frequently ascribed to it by of ownership. This distinction between 
 
 popular usage. In this latter sense it the two senses of the word may be 
 
 very commonly signifies the property made clearer by the following example : 
 
 generally which a person owns. Thus, If A own a thousand acres of laud dur- 
 
 a man is often said to have left a large ing his life and B own one acre of the 
 
 or a small estate at his death, or to same kind of land in fee simple (i. e., 
 
 have lost all of his estate in speculation ; for him and his heirs forever), while A 
 
 and executors, administrators, and has the greater estate, in the loose sense 
 
 trustees are constantly spoken of as of the greater quantity of property, yet 
 
 representing the estates of decedents. B has the greater estate, in the accurate, 
 
 In this loose, special, or popular sense technical sense of real property law. 
 of the word, estate is synonymous with 
 
OUTLINE. 81 
 
 qualified nature; V. With reference to the time when the 
 enjoyment of them may begin — whether the owner may have 
 the possession or income of the property at present, or must 
 wait for it till some future time. A brief outline here of 
 these classes and divisions will prepare the way for the more 
 exhaustive discussion of subsequent chapters. 
 
 § 67. I. Estates classified \vith Reference to the Courts by 
 ^vhich they are recognized — Their Legal or Equitable Nature. — 
 Before the court of chancery took any cognizance of real prop- 
 erty, or of rights or interests therein, the only final arbiter 
 as to the creation, transfer and devolution of these was the 
 court of law. Hence, the estates which the latter sanctioned 
 and controlled were called legal estates; and they are still 
 described by the same expression. They comprise, of course, 
 the larger part of the interests that are owned in real prop- 
 erty. But the desire, and in a large sense the necessity, of 
 having a right or ownership in realty distinct from these legal 
 estates — an interest which the law courts long refused to 
 recognize, but which was to be owned and controlled by one 
 person while the legal estate resided in another — afterwards 
 gave rise to a use and a trust, both of which were recognized 
 and fostered by the courts of equity. This was accomplished, 
 for example, by giving land to A for the use of B, or in trust 
 for B! a then held the legal estate and was regarded by the 
 law courts as the absolute owner of the land; while B came. 
 In time, to be treated by the courts of equity as owning the 
 equitable estate and, for all substantial purposes, as the sole 
 owner of the property. When A held thus for B generally, 
 while B was to manage and control the land for himself, A 
 was said to hold for the use of B, and B owned a use. When, 
 on the other hand, A held the property specially, actively to 
 manage and control it for the benefit of B and to hand over to 
 him the net proceeds, he was said to hold in trust for B, and 
 B owned a trust. These two equitable estates — the use and 
 the trust — as viewed from the standpoint of their owner, may 
 be collectively defined as the right to the beneficial enjoyment 
 of property of which the legal estate is in another person. A 
 third form of the equitable estates is the so-called equity of 
 redemption, in those jurisdictions in which a mortgage of real 
 property transfers the legal estate or interest to the mortgagee. 
 In most of the United States, a mortgage of land is now merely 
 a lien upon it, and the mortgagor retains the legal estate. But 
 
 6 
 
82 INTRODUCTION AND OUTLINE. 
 
 in England and a few of our states, such as Massachusetts and 
 New Hampshire, the legal interest passes to the mortgagee, 
 while the right to redeem the land, at and after the maturity 
 of the debt, has been perfected and preserved by equity for 
 the mortgagor and constitutes his equitable estate. In sum- 
 mary, then, from this point of view, all estates are either 
 1, Legal, or 2, Equitable; and the equitable estates are: 
 (1) uses; (2) trusts; and (3) equities of redemption. 
 
 § 68. (i) Uses. — After its invention in early feudal times 
 and prior to the twenty-seventh year of the reign of Henry VIII. , 
 the use was the prominent form of equitable ownership. The 
 holder of the legal estate was designated the feoffee to uses, 
 and the owner of the equitable interest (the use) the cestui que 
 use. The former was a mere receptacle for the legal title and 
 estates ; while the latter had all the management, control, and 
 benefit of the property. The cestui que use had these, more- 
 over, divested of most of the duties, responsibilities, and 
 burdens that ordinarily attach to the ownership of property. 
 His interest could not be reached by his creditors, nor for- 
 feited for his crimes, nor made subject to the claims of a wife, 
 husband, or feudal lord. The courts of equity had favored 
 this estate too strongly, in failing to give it such incidents so 
 requisite to the fair and proper employment of land for busi- 
 ness and commercial purposes ; and one result of this failure 
 was a number of attempts to remedy the evils by means of 
 legislation. These culminated in the celebrated " Statute 
 of Uses," 27 Hen. VIII. ch. 10, by which it was enacted, in 
 substance, that, whenever one person was seised of a legal 
 estate for the use of another, the owner of the use (the cestui que 
 use) should have also the legal estate in the same quality, 
 manner, form, and condition in which he had the use. By a 
 strained construction of that statute, however, its purpose 
 was frustrated; and the use, slightly altered in the method 
 of its creation and with most of the ordinary property in- 
 cidents, duties, and burdens now attached to it, has been 
 retained as an equitable estate distinct from the legal, but 
 under the generally employed new appellation of a passive 
 express trust. 
 
 § 69. (2) Trusts. — Trusts, including their original types 
 which existed as such before the Statute of Uses and the old 
 use with its new name, are now the most important of the 
 equitable estates. It will suffice, in this outline, to explain 
 
OUTLINE. 83 
 
 briefly the nature of the chief classes into which they are 
 divided. 
 
 Trusts, in respect to the mode of their creation, are pri- 
 marily divided into two classes : a, Express, and h, Implied. 
 They are express when they are explicitly declared by the 
 instrument or agreement, or appear from a proper construction 
 of its terms; implied when raised by equity, either to effec- 
 tuate what is assumed to be the intention of the parties,^ or 
 to work out justice regardless of what may have been the 
 intent. ^ 
 
 a. Express trusts, as here defined, include such as are 
 ordinarily c^Aledi precatory, i. e., trusts not declared by direct 
 words of command, but indicated — most commonly in a will 
 — by expressions of hope, request, entreaty, recommendation, 
 and the like, used in such manner as reasonably to evince the 
 testator's intent that the devisee shall hold or dispose of some 
 or all of the property for another. All of the express trusts 
 are subdivided into two classes; viz. (a) active, and (6) pas- 
 sive. (/)) A passive express trust is simply the old use with 
 its new name, as above explained ; while a trust is (a) active 
 when the trustee has some active duties to perform for the 
 cestui que trust, as, for example, to manage the property and 
 pay the net proceeds over to him. Within the general sphere 
 of the express trusts are also included, not only those that 
 are private and for definite beneficiaries, but also those 
 called public or charitable, the distinguishing characteristics 
 of which are that their object is some public utility, their 
 individual beneficiaries are indefinite, and they may be validly 
 made to continue forever. It is to be added that quite similar 
 to an express trust is an arrangement by which a duty to dis- 
 pose of realty is imposed on one to whom the legal estate is 
 not transferred. This creates a power in trust. And such 
 powers are properly to be discussed in connection with the 
 general topic of express trusts. 
 
 b. Implied trusts are either (a) resulting or (b) construc- 
 tive. A resulting trust is one which equity raises in order to 
 carry out what is assumed to be the intention of the parties. 
 A constructive trust is one implied by equity in order to work 
 out justice, regardless of what may have been the intent of the 
 
 1 Unfortunately, the use, by one or in regard to the exact limitations of the 
 
 two prominent writers, of divisions terms "express trusts" and "implied 
 
 different from tliese that are commonly trusts.'' See 1 Perry on Trusts, §§ 24- 
 
 employe.l, lias tended to breed confusion 27, 112 ; § 35, infra. 
 
84 INTRODUCTION AND OUTLINE. 
 
 parties. A brief statement as to each of these will explain 
 its essential nature and forms. 
 
 (a) Resulting trusts are of four kinds. One of these com- 
 monly arises when, in one transaction, real property is bought 
 in the name of one person and the purchase price as such is 
 paid by another. He who takes the legal title and estate 
 ordinarily holds the land in trust for him who thus pays the 
 consideration. A second form exists when a holder of trust 
 funds purchases realty with them and takes title in his own 
 name; a third when real property is conveyed "in trust," 
 but the trusts are not wholly declared or partly or entirely 
 fail ; and a fourth, in some instances, though not so readily 
 to-day as in former times, when a conveyance of land is made 
 by a deed which expresses no consideration nor any use or 
 purpose for which the grantee is to hold. In all such 
 instances, the holder of the legal estate is a trustee for the 
 owner of the fund, or the grantor, or those who have succeeded 
 to his interest by descent or otherwise. 
 
 (b) Constructive trusts arise either from actual fraud — 
 circumstances of imposition — or from fraud presumed by 
 equity though not actually proved, or from transactions in 
 which there is no fraud, but in which the raising and enforc- 
 ing of a trust affords the most adequate and complete remedy. 
 Thus there are three subdivisions of this important branch of 
 trusts. An instance of the first of these exists where one by 
 acts of imposition or unfair dealing obtains a legal estate 
 from another, so that the latter might have an action at law 
 in tort for the wrong. In equity, he may have a constructive 
 trust in the property declared against the wrongdoer, and a 
 reconveyance to himself decreed. Again, when a trustee of 
 real property purchases it from the cestui que trust, equity 
 presumes fraud and, unless the purchaser overcome this pre- 
 sumption by positive evidence of fairness, raises a construc- 
 tive trust against him. In such cases, equity goes far beyond 
 law, which never presumes fraud, and furnishes illustrations 
 of the second class of constructive trusts. And lastly, as 
 illustrating the third class of such trusts, when a valid con- 
 tract is made for the purchase and sale of real property, the 
 intended vendor becomes at once a trustee of the property for 
 the intended vendee, and the latter is treated as holding the 
 purchase money in trust for the former, not because of any 
 fraud either actual or presumed, nor because the parties are 
 
OUTLINE. 85 
 
 regarded as so intending, but because upon this principle of a 
 irust the best remedy — usually a specific performance suit — 
 is available to either party if the other fail to carry out the 
 contract. 
 
 § 70. (3) Equities of Redemption. — In the original form 
 of a mortgage the legal estate was always transferred to the 
 mortgagee. If the debt secured by the mortgage were not 
 promptly paid on the day when it was due — the "law day" 
 — the title and estate became absolute in the lender, and the 
 mortgagor could not subsequently regain the land. In the 
 process of ameliorating this hardship on the borrower, equity 
 gave to him the so-called "equity of redemption," — ^the right 
 to redeem the land and regain it for himself, by paying the 
 pi'incipal of the debt, interest, and costs in full after the law 
 day. This right has been so greatly enlarged in most of the 
 states of this country that it has been merged into a legal 
 estate now retained by the mortgagor until foreclosure of the 
 mortgage is complete. But in England and Massachusetts, 
 for examples, the changes have not been so great; and, as was 
 above explained, the equity of redemption remains in the 
 mortgagor or his successors in interest until the mortgage 
 is paid off or otherwise discharged or foreclosure of it ia 
 complete. 
 
 § 71. H. Estates classified Tvith Reference to their Quantity, 
 or the Extent or Duration of the Interest in them. — In this 
 respect the primary division of estates is into, 1, Estates of 
 freehold and 2, Estates less than freehold. For the purpose 
 of this brief outline, it is sufficient to define a freehold estate 
 as one which is either a life estate or a greater interest. 
 Thus, the following estates, namely: to A for his own life, to 
 A during the life of B, to A and the heirs of his body, to A 
 and his heirs so long as they continue to live upon the land, 
 to A and his heirs forever, are all freehold estates. Such 
 interests were regarded by the courts, in feudal times, as the 
 only ones worthy of a free man's contemplation and accept- 
 ance ; only a free man could hold such estates, and hence the 
 name which was applied to them. An estate less than free- 
 liold is one which, in contemplation of law, is not so great or 
 important as a life estate. Illustrations of them are, an 
 estate to A for ten years (or for . any number of years or other 
 interval measured by a definite period of time), and to A at 
 the will of himself and his landlord or during the will of 
 
86 INTRODUCTION AND OUTLINE. 
 
 either of them. Such interests were regarded as trivial and 
 unimportant and not worthy of being owned by a free man, 
 
 § 72. 1. Freehold Estates are either (1} Estates of inher- 
 itance, or (2) Estates not of inheritance. (1) An, estate of 
 inheritance is one capable of descending from ancestor to 
 heir by the law of descent. Such are the estates in fee, these 
 being again subdivided into a. Fee simple, and h, Qualified 
 fees. 
 
 a. An estate in fee simple is the highest and most com- 
 prehensive interest known to the law — an estate to one and 
 his heirs forever. The owner of it has absolute dominion and 
 control of the property, so that he may sell it in perpetuity, 
 .■devise it away absolutely by his will, or let it descend to his 
 heirs generally upon his death. 
 
 b. Qualified fees are also estates to one and his heirs, but 
 there is appended some condition, qualification, or restric- 
 tion, such that the owner may not have the absolute, perpetual 
 dominion of the property. The subdivisions of this class are: 
 (a) Fee conditional at common law, which by the statute de 
 donis conditionalihus ^ became the fee tail ; (b) Fee on condition ; 
 (c) Fee on limitation; and (d) Fee on conditional limitation, 
 (a) A fee conditional at common law, which by the ancient 
 statute de donis conditionalihus^ was converted into the fee tail 
 (or estate tail), is an estate to one and the heirs of his body or 
 some part or class of such heirs; i. e., while the conveyance is 
 in a sense to him and his heirs, so that the estate is a fee, yet 
 the words employed restrict the inheritance to his own issue, 
 or some part of them, and exclude other relatives. Illustra- 
 tions are, an estate tb X and the heirs of his tody ; to X and 
 the heirs of his lody by his wife Mary ; to X and the heirs male 
 cr female of his lody. (b) A fee on condition is an estate to 
 one and his heirs, but conveyed to him with words of condi- 
 tional or hypothetical import, such that the estate is to be ' 
 defeated and the property revert to the grantor, devisor, or 
 other person who conveyed it, or his heirs, if the condition be 
 broken by the happening of the contingent event, and he who 
 conveyed the estate or his heirs re-enter. An illustration is 
 an estate to X and his heirs, provided they do not sell intoxicat- 
 ing liquor upon the premises. If they sell such liquor there, 
 
 1 See next succeeding note. effects of this famous statute are ex- 
 
 2 13 Edw. I. Stat. 1, ch. 1, § 2 (a.d. plained in § 281, infra. 
 1285). The provisions, operation, and 
 
OUTLINE. 87 
 
 and he who conveyed the estate or his heirs re-enter upon the 
 property, the estate of X is thereby defeated, (c) A fee on 
 limitation is an estate to one and his heirs, but conveyed to 
 him by the use of words denoting duration of time, as "while," 
 "during," "so long as," etc. (any expression that is a trans- 
 lation of donee); such that, when the limitation thus indicated 
 expires by the happening of the contingent event, the estate 
 will terminate and the property revert to the grantor, or other 
 person who conveyed, or his heirs, without the necessity for 
 their re-entry. An illustration is an estate to X and his 
 heirs, so long as they do not sell intoxieating liquor upon the 
 premises. If they sell such liquor there, the estate of X at 
 once terminates and the property reverts to him who conveyed 
 it, or to his heirs, (d) A fee on conditional limitation is an 
 estate to one and his heirs, but conveyed by the use of words 
 of either condition or limitation, and with the provision that 
 on the happening of the contingent event the estate shall 
 depart from the person to whom it is first conveyed and go 
 over to another. An illustration is either an estate to X and 
 his heirs, hut if they sell intoxicating liquor upon the premises 
 then to Y and his heirs, or an estate to X and his heirs until 
 they sell intoxicating liquor upon the premises and then to Y and 
 his heirs. If X or his heirs or successor in interest sell such 
 liquor there, the estate at once passes to Y or his heirs, 
 without the necessity for any entry upon the premises by the 
 latter. The fee on conditional limitation was not permitted 
 to be made directly by a deed at common law ; but, after wills 
 of real property were authorized by statute, such an estate 
 could be made by will as one of the forms of executory 
 devises ; and, by the employment of a use, it could be made 
 indirectly by deed as a shifting use. These methods of creat- 
 ing and dealing with it are fully explained hei'eafter. 
 
 (2) Freehold estates not of inheritance are the life estates. 
 These are classified, according to the manner in which they 
 are created, into a. Conventional life estates, or those made 
 by act, contract, or convention of the parties ; and &, Legal life 
 estates, or those made by operation of law. a. The conven- 
 tional life estates comprise: (a) An estate to one for his own 
 life, illustrated by an estate to X so long as he lives ; (b) An 
 estate per autre vie, i. e., to one person during the life of 
 another, illustrated by an estate to X so long as Y lives ; and 
 (c) An estate for an uncertain period, which is not at will 
 
88 INTEODUCTION AND OUTLINE. 
 
 and may last for life, illustrated by an estate to X so long 
 as a designated tree shall stand or an estate to Y while she 
 remains a widow. Of these three forms, the estate per autre 
 vie is regarded as the smallest; and it has always been treated 
 as the least of all the, freehold interests, b. The legal life 
 estates are : (a) Curtesy, — the life interest of a husband in all 
 the real property of which his wife was beneficially seised of 
 an estate of inheritance during the coverture, provided a child 
 be naturally born of the marriage, born alive and capable of 
 inheriting the property; (b) Dower, — the life interest of a 
 wife in one third of the real property of which her husband 
 was beneficially seised of an estate of inheritance during the 
 coverture ; (c) Jointure, — a provision or settlement of property 
 by or for a husband upon his wife, to be taken by her in lieu 
 of dower ; and (d) Estates by marriage, such as the husband's 
 common-law interest in and right to income from his wife's 
 real property of any kind during the coverture. It will be 
 noted that all of the legal life estates arise from the relation- 
 ship of husband and wife. They have always been favored by 
 the common-law courts. 
 
 § 73. 2. Estates less than Freehold embrace four classes, 
 namely : (1) Estates for years ; (2) Estates from year to year, 
 including those from month to month, from week to week, 
 from day to day, etc.; (3) Estates at will; (4) Estates at 
 sufferance. (1) An estate for years is one which is measured 
 by some definite period of time, whether it be one hour, ten 
 days, twenty years, or ten millions of years. All estates so 
 measured have precisely the same standing before the com- 
 mon law ; all are governed by the same principles and each 
 of them, whether its period of time be great or small, is of 
 lesser importance and a lesser estate in contemplation of law 
 than a life estate which is the least of the freeholds. Estates 
 for years are chattels real. (2) When a tenant has held real 
 property for a year or more, paying rent according to a yearly 
 reckoning, and after such time has elapsed he remains in 
 possession without further contract, he may ordinarily be 
 treated by the landlord as tenant for another year ; and if he 
 remain after that year he may be treated as tenant for 
 another year, and so on from year to year ; and such a pro- 
 ceeding creates for him by implication of law an estate from 
 year to year. When a tenant pays rent regularly every 
 month, without any contract as to how long he shall remain 
 
OUTLINE. 89 
 
 as a tenant and without any yearly reckoning in the transac- 
 tion, he becomes by implication of law a tenant from month 
 to month; while, if such payments be weekly, the tenancy 
 becomes from week to week ; and thus estates from month to 
 month, from week to week, from day to day, etc., are caused 
 to arise. (3) An estate at will is oue created by contract, 
 express or implied, whereby landlord and tenant agree that 
 the latter shall hold the real property as tenant, either at the 
 will of both parties (which is the most common form of such 
 tenancy), or at the will of one of them only who is designated 
 in the contract. The party at whose will the estate is so held 
 may terminate it, whenever he elects to do so, without the 
 consent of the other. This is the least of all the estates that 
 rest upon contract either express or implied. (4) An estate 
 at sufferance is one which arises from the wrongful^ holding 
 over and remaining in possession by a tenant who came 
 rightfully upon the land. It is not the result of contract, but 
 merely of the laches or forbearance of the landlord in not 
 ejecting the tenant after the expiration of his rightful ten- 
 ancy. This is the lowest and most insignificant of all the 
 estates. The tenant at sufferance differs from a trespasser 
 merely in the fact that his original coming upon the land was 
 rightful, while a trespasser is a wrongdoer from the beginning. 
 The estates from year to year, at will and at sufferance are 
 chattel interests.^ 
 
 § 74. III. Estates classified with Reference to the Number 
 and Connection of their Owners. — The classes of estates, which 
 arise from a consideration of the ways in which a number of 
 persons may together own real property, are 1, Estate in sev- 
 eralty, and 2, Joint estates ; and the latter are (1) Estate in 
 joint tenancy ; (2) Estate in coparcenary ; (3) Estate in com- 
 mon ; (4) Estate by the entirety ; (5) Partnership estates, and 
 (6) Estates or interests in joint mortgages. 
 
 § 75. 1. An Estate (or a Tenancy) in Severalty exists when 
 one has the right to enjoy real property separately and dis- 
 
 1 " Wrongful " here means simply (estates for years) and chattel in- 
 
 without any right founded on contract terests, is that the former may be 
 
 or other legal act. It does not neces- reached by an execution while the lat- 
 
 sarily include the thought of any moral ter can not be so reached. See N. Y. 
 
 turpitude. Any holding over by a ten- L. 1909, ch. 52, § 33; Fowler's Real 
 
 ant, without legal right, is wrongful. Prop. X. of N. Y. (2d ed.) p. 190; 1 
 
 ^ The practical distinction, made in Stimson's Amer. Stat. L. § 1344. 
 some states, between chattels real 
 
90 INTRODUCTION AND OUTLINE. 
 
 tinct from the interests of others. It is the most naturr.1 
 and common of all these classes of estates. 
 
 § 76. 2. Joint Estates. — (l) An Bstate in Joint Tenancy is 
 one held or owned together by two or more persons in equal 
 shares by purchase. The owners are said to be seised jier my 
 et per tout — that is, each owns an undivided share equal to 
 that of each of the others, and also each owns the whole. 
 From this theory or fiction of entire ownership by every joint 
 tenant flows the great distinguishing characteristic of this 
 estate, the right of survivorship; by which is meant .that, 
 whatever be the quantity of estate, and even though it be 
 limited to the owners and their heirs, the survivor or sur- 
 vivors take the entire estate to the exclusion of the heirs or 
 representatives of their deceased co-owners. Joint tenants 
 must acquire their interests by purchase (i. e. any method 
 other than by descent from a deceased ancestor), at the same 
 time, from the same source, and so that their individual inter- 
 ests are the same in amount; and, when one of them is in 
 possession of the property, they are all deemed by the law to 
 be in possession. These requisites are ordinarily expressed 
 by saying that a joint estate has the four unities of time; title, 
 interest, and possession. 
 
 § 77. (2) An Estate or Tenancy in Coparcenary arises, in 
 England, when, upon the death of an ancestor, his real prop- 
 erty descends to two or more female heirs. There is no sur- 
 vivorship in this kind of tenancy. It has the three unities of 
 title, interest, and possession, but not that of time. It is not 
 now recognized in any of the United States; for in such 
 cases of descent the land is held by the heirs as tenants in 
 common.-' 
 
 k § 78. (3) An Estate (or a Tenancy) in Common exists when 
 undivided interests are owned by two or more persons with- 
 out the right of survivorship and with no unity annexed to 
 it save that of possession. The interests or quantities of 
 ownership of the co-tenants may be different, and they may 
 acquire them at different times and from different sources 
 or titles. Upon the death of one of them his interest may 
 descend to his heirs or be disposed of by his deed or will. 
 The possession of one, however, is deemed to be that of all, 
 and thus the unity of possession is requisite. The co-tenants 
 may deal with their interests very much in the same way as 
 
 ^ See tenancy in common explained in the following paragraph. 
 
OUTLINE. 91 
 
 if they owned them in severalty, except that while the estate 
 continues to be in common no one of them can treat any part 
 of the property as absolutely his own. This is the loosest 
 and, as a rule, the most satisfactory of all the co-ownerships. 
 It is the kind preferred and most frequently employed in this 
 country. 
 
 § 79. (4) Estate by Entirety. — When real property is con- 
 veyed to husband and wife, and nothing is said as to the 
 quality of their interests, they take in it an estate by the 
 entirety. They are said to be seised 'pe.r tout et non per my. 
 Hence, the right of survivorship attaches the same as in joint 
 estates. But unlike joint tenants, neither husband nor wife, 
 who hold an estate by the entirety, can sell or encumber the 
 property so as to impair the right of survivorship of the other. 
 This kind of estate is the strongest and most compact of all 
 the co-ownerships. It has all the unities of time, title, 
 interest, and possession. It exists in most of the United 
 States ; but in a few of them it has been abolished, directly 
 or indirectly, by statute. 
 
 § 80. (5) Partnership Estates, — When real property is pur- 
 chased with partnership funds for partnership purposes, the 
 partners are, in some respects, tenants in common thereof, 
 while, in other particulars, they are joint tenants. As a 
 general rule, they are the former as among themselves and the 
 latter as to outside parties. The doctrine that the property 
 is equitably converted into personalty while in their hands 
 is also applied (fully in England, and in this country so far 
 as required for working out the affairs of the firm) to deter- 
 mine the ultimate interests of those who claim rights in the 
 same. 
 
 § 81. (6) Joint Mortgages. — Where a mortgagee is regarded 
 as the owner of an estate in the mortgaged property, two or 
 more persons, who have each contributed some of the money to 
 secure the re-payment of which the mortgage is given, become 
 co-tenants of that estate; and their interests are sometimes 
 those of joint tenants, while sometimes they are tenants in 
 common. It may be said, as a general rule, that, as to their 
 rights and interests as among themselves and without regard 
 to any remedies which they may pursue for the recovery of the 
 money, they are tenants in common ; while, for the purpose of 
 prosecuting their remedies — such, for instance, as foreclosure 
 of the mortgage — they are joint tenants. 
 
92 INTRODUCTION AND OUTLINE. 
 
 § 82. IV. Estates classified with Reference to their Qualified 
 Nature. — So classified estates are: 1, Absolute or unqualified, 
 which need only to be mentioned here, and 2, Qualified. In 
 the classification of estates with reference to their quantity, 
 the qualified fees were explained as estates in fee; i.e. con- 
 veyed to one "and his heirs," but with some condition, limi- 
 tation or restriction annexed, so that the owner does not have 
 the fee simple, or unrestricted, perpetual dominion of the 
 property. Such qualifications may be connected with estates 
 of any quantity, as well as with a fee. Thus, property may 
 be conveyed to A for his life, provided he do not sell intoxi- 
 cating liquor upon the premises ; or to A (without mentioning 
 his heirs), so long as he does not sell intoxicating liquor 
 there; or to B for ten years on condition that he live upon 
 the land, etc. The species, of interests found within the 
 classes of which these are examples are, (1) Estates on con- 
 dition, (2) Estates on limitation, (3) Estates on conditional 
 limitation, and (4) Mortgages. 
 
 § 83. (l) An Estate on Condition is one with some restric- 
 tion or qualification annexed, to the effect that if a specified 
 contingent event occur ^ the estate is to commence, or to be 
 enlarged, diminished, or defeated. When the commencing or 
 enlarging of the estate is made to depend upon the happening 
 of the event, there results an estate on condition precedent ; 
 while in the other two cases, — when it is to be diminished, or 
 defeated because of the occurrence, — there results an estate 
 on condition subsequent. An estate to X for life, to begin 
 when he marries Y and not before, is on condition pre- 
 cedent. Illustrations of estates on condition subsequent are, 
 to X for fifty years, provided he sell no intoxicating liquor 
 on the premises ; to X and his heirs, to be cut down, however, 
 to an estate for his life, or to be wholly defeated, if Z come 
 back from Rome. When any estate whether it be a fee or a 
 lesser interest is on condition subsequent, two things are nec- 
 essary to terminate it; namely, breach of the condition and 
 
 1 The expression, " if some con- failure of something to happen, when 
 
 tingent event occur,'' and those of that is specified as such a cause. Thus, 
 
 similar meaning, are used here and if real property were conveyed to X for 
 
 elsewhere, in speaking of this group of life, on condition, however, that he 
 
 estates, in a general sense, to denote should marry Y within the next ten 
 
 the coming to pass or occurring of that years, the happening of the contingent 
 
 which is indicated as tlie cause for event in that case would be the failure 
 
 the termination or passing over of the of X to marry Y within the specified 
 
 estate. It, accord&gly, includes the ten years. 
 
OUTLINE. 93 
 
 re-entry upon the land by him who created the estate, or by 
 his successor in interest. The property then reverts to him 
 ■who so enters. 
 
 § 8-4. (2) An Estate on Limitation is one created by the use 
 of words denoting duration of time, such as " while," "during 
 the continuance of," " so long as," etc. — any expression that 
 is a translation of donee. Thus, a conveyance to X, so long as 
 he shall live on the premises, creates a life estate on limitation. 
 And an estate to X and the heirs of his body, while they do 
 not sell intoxicating liquor on the land, is a fee tail on limita- 
 tion. The happening of the specified event — the natural 
 ending of the limitation — iu itself terminates such estates as 
 these ; and the property reverts at once to him who created 
 the estate, or to his successor in interest, without the necessity 
 for any re-entry. 
 
 § 85. (3) An Estate on Conditional Limitation arises from a 
 conveyance of real property to one person, with words of eitlier 
 condition or limitation, and with the further proviso that, upon 
 _the happening of the specified contingent event, it shall depart 
 from him and go over to another person. Such are estates, to 
 X and his heirs until he marries and then to Y and his heirs ; 
 to X for ten years, but if he sell intoxicating liquor on the land, 
 then to Y for the residue of the terra ; to X and the heirs of 
 his body, provided that if Y return from Rome it is to go to Y 
 and his heirs forever. The distinctive feature of such an estate 
 is that the mere happening of the specified event prematurely 
 terminates the interest of the first party and carries it over to 
 the other. The common-law courts disliked this characteristic, 
 and, therefore, were opposed to estates on conditional limitation. 
 
 § 86. (4) Mortgages. — One of the original forms of estates 
 on condition subsequent has developed, through changes 
 wrought chiefly by courts of equity, into tlie modern mortgage, 
 with its varied forms and remedies. In England and a few of 
 the United States, a mortgage transaction still results in the 
 conveying of a conditional estate to the mortgagee. But, as 
 was heretofore said,i in most of the A.merican states, the mort- 
 gagee now acquires only a lien on the land, before foreclosure ; 
 and all the estate, both legal and equitable, is retained by the 
 mortgagor until foreclosure of the mortgage is complete. The 
 form of the contract remains everywhere that of a sale, on con- 
 dition that the vendor (mortgagor) may recover the property 
 
 1 § 81, supra. 
 
9 J: INTRODUCTION AND OUTLINE. 
 
 il" lie repay the money loaned or do some other prescribed act 
 on or before a designated day, which is called the " law day ; " 
 but its substance and operation have been vastly changed, 
 chiefly through the invention and use of the " equity of redemp- 
 tion." 1 And the generally accepted definition of a modern 
 mortgage is : " Any conveyance of land intended by the parties 
 at the time of making it to be a security for the payment of 
 money or the doing of some prescribed act." ^ The different 
 forms and kinds of mortgages, the diverse theories under which 
 they are dealt with in the several states, and the rights and 
 remedies of the parties to them supply the subject matter for 
 one of the most interesting and important chapters in the law 
 of real property. 
 
 § 87. V. Estates classified with Reference to the Time whea 
 the Enjoyment of them may begin — whether the owner may have 
 the possession or enjoyment of the property at present, or must wait 
 for it till some future time. The natural and established division 
 of estates, from this standpoint, is into, 1, Estates in prmsenti 
 — in present possession; and 2, Estates infuturo — in expect- 
 ancy, or future estates. For, although a man's interest in 
 property may be very great, it may be so limited that it can not 
 be enjoyed by him until some future time ; and other interests, 
 whether great or small, may be such as to afford -immediate 
 possession and enjoyment. 
 
 § 88. 1. An Estate in Praesenti, the familiar, ordinary kind 
 of interest which gives actual pernancy of the profits to 
 continue as long as the estate, needs only to be mentioned as a 
 class under this method of viewing estates. It is the kind of 
 interest most frequently owned and most commonly desired. 
 
 § 89. 2. Estates in Future, or in expectancy, in which the 
 right to possess and enjoy the property is postponed, are classi- 
 fied as (1) Reversions, (2) Remainders, and (3) Executory 
 estates. 
 
 (1) A reversion is a future estate, created ly operation of 
 law, to take effect in possession, in favor of a grantor or his 
 heirs or the heirs of a testator, after the natural termination of 
 a prior particular estate granted or devised. If, for example, 
 X, the owner of a piece of land in fee simple, convey it to Y 
 for his life, the law at once creates and gives to X the residue 
 
 1 See § 70, supra. Appeals, in Burnett v. Wright, 135 
 
 2 Quoted and adopted from 2 Wash. N. Y. 543, 547. 
 R. P. p. *43, by the N. Y. Court of 
 
OUTLINE. 95 
 
 of the estate in fee simple, so that he may again possess the 
 land after Y's death has naturally terminated Y's estate. Y's 
 life interest is then the particular estate, and that which the 
 law has created for or reserved to X is the reversion. If X 
 die at or before the time when the grant to Y takes effect, or 
 if the conveyance to Y be by will, the reversion is reserved for 
 the heirs of X. So when the owner of an estate for life leases 
 out the laud, say for ten years, the law immediately creates and 
 reserves for him a reversion of the residue of the life estate, so 
 that he may again have possession after the particular estate 
 for ten years has elapsed. A reversion is always made by 
 operation of law, and never by act of the parties ; it must always 
 be preceded by a particular estate, upon which it is said to 
 depend, and it must be so created and limited as not to curtail 
 or interrupt that particular estate, but to take, elfect in posses- 
 sion at its natural termination. 
 
 (2) A remainder is a future estate, made iy act of the par- 
 ties, to take effect in possession after the natural termination 
 of a prior particular estate, which is created by the same trans- 
 action. It differs from a reversion in that it is always made 
 by act of the parties and never by operation of law. Thus, if 
 X, the owner of a piece of land in fee simple, convey it to Y 
 for his life and then to Z and his heirs forever, Y's life interest 
 is the particular estate, and Z has a remainder in fee simple. 
 So, X might make, from his estate, a number of successive 
 remainders, as if he conveyed the land to P for ten years, then 
 to Q for life, then to R and the heirs of his body, and then to S 
 and his heirs forever. Like a reversion, a remainder must 
 always be preceded by a particular estate, upon which it is said 
 to depend, and it must be created to take effect in possession, 
 if ever, at the natural termination of the particular estate, 
 which it must never be made to interrupt or curtail. It is also 
 requisite to a valid remainder that it shall be created by the 
 same transaction as the particular estate upon which it de- 
 pends. The primary division of remainders is into a, vested, 
 and h, contingent, a. A vested remainder is one in which 
 there is a present fixed right to future enjoyment of the prop- 
 erty. An illustration is an estate to X for life, remainder to 
 Y who is a living person. Here, while Y can not possess and 
 enjoy the land until after the death of X, yet his right to such 
 future enjoyment is not affected by any contingency or uncer- 
 tainty. It may be added that a vested estate, generally, whether 
 
96 INTRODUCTION AND OUTLINE. 
 
 a remainder or not, is defined as a present, fixed right to pres- 
 ent or future enjoyment, b. A contingent remainder is one 
 in which either the person to take it is not in being or not 
 ascertained, or' the event upon which it is to be enjoyed is 
 uncertain, or both ; and so the right to the future enjoyment of 
 the property is not fixed. Illustrations are an estate to X for 
 life, remainder to his unborn son ; an estate to X for ten 
 years, remainder to Y and his heirs forever if he marry Z ; an 
 estate to X for life and, at his death, to the person who is then 
 president of the United States. It is also to be added that a 
 contingent estate, generally, whether a remainder or not, is 
 frequently defined as an uncertain right to future enjoyment. 
 Special forms of contingent remainders are cross remainders 
 and alternate remainders, as to each of which it is enough here 
 to remark that it is made so that it will ultimately go to one or 
 the other of two or more designated persons, as one or another 
 of specified contingent events may occur. Any kind of re- 
 mainder may be made directly in the legal estate, or by the 
 employment of a use. When a contingent remainder is made 
 in a use, it is known as a contingent use. 
 
 (3) An executory estate is one, created hy act of the parties, 
 to take effect in possession in the future, without any particular 
 estate upon which it depends. Such an estate is illustrated by 
 a devise of land to X and his heirs, to begin in possession when, 
 he marries Y ; or to a minor for life, to commence on his 
 twenty-first birthday ; or to X, for life, and ten days after his 
 death, to Y and his heirs forever. In the first two of these 
 illustrations, no preceding estate whatever is mentioned ; in 
 the last one, while a preceding interest is given to X, yet the 
 estate conveyed to Y, which is the executory one, does not 
 depend upon it, since there is to be a period of ten days be- 
 tween them. It is this fact, of its having no particular estate 
 upon which to rest, that distinguishes an executory estate from 
 both a reversion and a remainder. The same fact also caused 
 the common-law courts to look upon executory estates, when 
 freehold in quantity, with disfavor, and to refuse to permit 
 them to be made directly by deed. This aversion to them was 
 due chiefly to the mode of procedure in the ancient methods of 
 conveyancing, which will be fully explained hereafter. It is 
 sufficient here to add that, at first by means of uses and 
 powers, and subsequently by wills also, freehold executory 
 estates were ultimately permitted to be created and employed. 
 
OUTLINE. 97 
 
 But it is only by virtue of very modern statutes that they have 
 been allowed to be created directly by deed. Before such 
 recent statutes, the methods resorted to were : a, springing uses, 
 h, shifting uses, e, dispositions of uses by virtue of powers and 
 d, executory devises, a. A use made to arise in the future, 
 without any preceding interest or particular estate on which it 
 depends, is a springing use. Such is a conveyance by deed of 
 land to X and his heirs for the use of Y when he marries. 
 When Y marries, he acquires the use ; and the Statute of Uses 
 then executes it and thus confers on him the legal estate. 
 Had the attempt been made to deed the legal estate directly to 
 Y, but not to be vested in and enjoyed by him until his mar- 
 riage, the deed would have been a nullity, if it were before the 
 modern enabling statutes, b. A shifting use is a conditional 
 {imitation in a use. An illustration is an estate to X and his 
 heirs, for the uses of Y and his heirs, but if Z return from 
 Rome then for the use of Z and his heirs. The Statute of Uses, 
 executing the use, bestows the legal estate upon Y, and shifts 
 it to Z on his returning from Rome and thus acquiring the use. 
 An attempt thus to shift the legal title directly by deed, and 
 without employing the use, since it would curtail the first 
 estate if allowed, would have been abortive before the modern 
 enabling statutes, c. A power in this department of law is 
 the right to dispose of a use. Accordingly, if an owner of 
 land, instead of creating a springing use or a shifting one, con- 
 fer on another person the right to dispose of future uses in the 
 property ; and the latter, who is the donee of a power, appoint 
 the use to spring up in the future or to shift from one ap- 
 pointee to another, the Statute of Uses executes the uses as 
 they come into existence, and thus executory estates emerge. 
 A single illustration, which is enough here, is found in a power 
 conferred by X, the donor, upon Y, the donee, to appoint the 
 use in fee of a specified acre of land, and the appointment of 
 that use by Y to Z and his heirs, to begin when Z marries. 
 The Statute of Uses transfers the legal estate to Z as soon as 
 upon his maiTiage he acquires the use. d. An executory de- 
 vise is a future estate, created by will, such as could not be made 
 directly by deed at common law. Illustrations are devises of 
 the legal estate in land to X and his heirs to begin when he 
 marries ; to X and his heirs until Y returns from Rome, and 
 then to Y and his heirs ; to X for his life, and ten days after 
 his death to Y and his heirs. The legal estate was allowed to 
 
98 INTRODUCTION AND OUTLINE. 
 
 be thus disposed of by will, after the Statute of Wills, 32 Hen. 
 VIII. eh. 1, as amended and explained by 34 & 35 Hen. VIII. 
 ch. 5.^ Executory freehold estates are favored by modern 
 statutes, which in many of the United States now permit them 
 to be made directly by deed, as freely as by will, and without 
 the necessity of employing either uses or powers. Executory 
 estates less than freehold have never been under the restric- 
 tions placed upon executory freehold estates by the common- 
 law courts. 
 
 IV. Titles to Beat Property. 
 
 § 90. Definition of Title — Its Elements — How acquired. — 
 Title is generally defined as the means of acquiring and holding 
 the ownership of property. " Titulus" says Coke, " est justa 
 causa possidendi id quod nostrum est." Its distinction from es- 
 tates in and holdings of realty has been already illustrated.^ A 
 complete title involves three elements ; namely, possession, right 
 of possession, and right of property. These appear, distinct and 
 separate, in the process of acquiring title by adverse possession 
 in one of the more conservative, common-law states, such as 
 New Jersey, where sixty years of adverse holding and occupancy 
 are frequently necessary to a complete transfer of title by this 
 method. If, in that state, A. without any apparent right take 
 B's land from him and hold it adversely, A has at once posses- 
 sion, while B retains the right of possession and the right of 
 property. For twenty years thereafter, B may perfect his title 
 again simply by regaining possession.^ After twenty years of 
 such adverse holding, A acquires both the possession and the 
 right of possession : while B then has left only the right' of 
 property and can not now perfect his title again except by 
 judicial proceedings. After forty years more of such adverse 
 holding, making sixty in all, A acquires the right of property 
 
 1 After the feudal system affected interest, either legal or equitable, in 
 
 all the land in England, and before real property. After the Statute of 
 
 the Statute of Wills, it was impossible Wills became operative, it was naturally 
 
 to dispose by devise of any legal, estate construed as allowing executory legal 
 
 in real property. Testators could will estates to be devised, just as executory 
 
 away only the use. Even their ability uses had been freely made by will 
 
 to do this was taken away by the before the Statute of Uses. Digby, 
 
 Statute of Uses, 27 Hen. VIII. ch. 10. Hist. R. P. (5th ed.) p. 3S2. 
 
 And so, for five years — from 27 Hen. 2 § 66, supra. 
 
 VIII., to 32 Hen. VIII. — no valid de- 3 Qen. Stat, of N.J. p. 1977, § 23. 
 Tise was made in England of any 
 
OUTLINE. 99 
 
 also ; ^ and B's title has thus passed to A, by three successive 
 stages under the statute of limitations, each of which stages 
 carried one of the elements of title. 
 
 The two chief methods of acquiring title to real property 
 are, I. By descent, and II. By purchase. 
 
 § 91. I. Title by Descent. — When an owner of real prop- 
 erty leaves it, at his death, undisposed of by any act of his, 
 the law at once casts it upon his heir or heirs ; and this is the 
 only instance, afforded by the common law, of title by descent. 
 The heir or heirs, to whom the law thus transfers the real 
 property of their deceased ancestor, are ascertained by the 
 common-law canons of descent, or by the modifications of or, 
 substitutions for these which are made by the modern statutes 
 of descent. It is to be noted that other methods of acquiring 
 title by law are not treated as descent, but as purchase. Thus, 
 a wife obtains dower, or a husband curtesy, by operation of 
 law ; but both of these interests are acquired by purchase. It 
 is only when the law casts property upon an heir that title 
 passes by descent. 
 
 § 92. II. Title by Purchase includes all methods of acquiring 
 property, other than that by descent as above explained. He 
 who obtains land by will, or by adverse possession, acquires it 
 by purchase ; as does also the individual who takes it by deed, 
 and the state to which it escheats when its owner dies intes- 
 tate and without heirs. The divisions of this means of obtain- 
 ing realty, which are suggested by convenience, are : 1, Title 
 by purchase other than by alienation ; and, 2, Title by aliena^ 
 tion, which comprises the " four common assurances of the 
 realm ; " namely : (1) alienation by deed, or grant, (2) alien- 
 ation by devise, (3) alienation by matter of record, and 
 (4) alienation by special custom.^ 
 
 § 93. 1. Title by Purchase, other than by Alienation, includes 
 those forms which may be called subsidiary, and which are not 
 80 common as the other methods. It is enough here to name 
 and briefly define each species. (1) Title by, escheat is the 
 passing of the property back to the state, as its primary and 
 ultimate receptacle, when the individual owner has died intes- 
 tate and without heirs, or without heirs who are capable of 
 inheriting that particular property. Feudal escheat was the 
 falling back of the estate to the lord, from the deceased vassal 
 
 1 Gen. Stat, of N. J. p. 1972, §§ 1, 2. ^2 Blackst. Com. pp. » 293-* 295. 
 
100 INTRODUCTION AND OUTLINE. 
 
 who had died without heirs capable of inheriting ; this was an 
 incident of tenure, which ceased in this country with that 
 method of holding real property ; but it furnished the model 
 upon which escheat to the state, as it now exists in the United 
 States, was built up by statutes. (2) Title by occupancy results 
 from property, which has been left vacant and unowned, being 
 taken and appropriated as his own by an individual. The only 
 remaining instance of it, at common law, is in the case where 
 a tenant per autre vie dies before the cestui que vie ; as if land 
 be owned by X for the life of Y, and X die before Y. The 
 common law then permits any one, who first obtains posses- 
 sion, to own and hold it for the rest of Y's life. Even this 
 case of title by occupancy is now abolished, in most jurisdic- 
 tions, by statute. (3) Title by accretion is that which results 
 from the gradual increase (so gradual that an observer does 
 not detect its progress as it is going on) along a stream, or 
 lake, or the sea shore, as the action of the water causes addi- 
 tional particles to adhere to and thus become a part of the 
 land. (4) Title by forfeiture is the result of some illegal act, 
 or negligence, on the part of the owner of realty, whereby it 
 passes either to the person injured or to the public. It is little 
 countenanced in this country, and much less than it formerly 
 was in England.- (5) Title by prerogative is sometimes extended 
 to cover such interests in real property as accrue to the crown, 
 or to persons who claim under the title of the crown, by virtue 
 of the position as parens patriae occupied by the king. It does 
 not exist in American law, and needs to be mentioned merely 
 for the sake of completeness. (6) Title by abandonment — result- 
 ing from the former owner's leaving the land unoccupied, under 
 circumstances which indicate that he does not intend to reclaim 
 it, and its being taken and possessed by another — is commonly 
 named as a separate and distinct class under this branch of our 
 subject ; but it will be found, as shown hereafter, that every 
 case placed in this category properly belongs under the head 
 of title by either estoppel, dedication, prescription, or adverse 
 possession. (7) Title by estoppel arises from the fact that he 
 who would otherwise be the owner of lands, tenements, or 
 hereditaments is precluded by his own act or representation 
 to assert, as against another claimant, his right or interest 
 therein. As in the law of contracts generally, the estoppel 
 effecting the passing of title may be either in pais, or of 
 record, or by deed. (8) Title by prescription, by which incor- 
 
OUTLINE. \ > / 101 
 
 V_;^ ' ' ;.. '' 
 poreal hereditaments only are acquired,^ is suchTas rests upon 
 the presumption, after twenty years (this is the common law and 
 ordinary period, though in some states it is made different by 
 statute) of continuous, peaceable, uninterrupted and adverse 
 enjoyment of such an incorporeal right, that he who has been 
 so enjoying it had at one time a grant of it, which has been 
 lost. The period of time required to perfect such a title and 
 the requisites of the adverse user during that period have been 
 worked out and prescribed by the common law, in analogy to 
 the statutes of limitations, but without much direct statutory 
 assistance. (9) Title by adverse possession, by which corporeal 
 hereditaments only are acquired,^ is M'holly the creature of the 
 statutes of limitations. The title to the laud is passed over to 
 the adverse holder as the result of twenty years (this is the 
 usual period, though the statutes of the different states vary) 
 of continuous, peaceable, uninterrupted occupation thereof with 
 an adverse claim of right. Such occupancy is said, in some 
 cases, simply to cut off the remedy of the rightful owner of the 
 land, while the title is left theoretically at least in him ; but in 
 England and many of the United States it is held to pass the 
 complete title to the adverse holder."* 
 
 § 94. 2. Title by Alienation. — Alienation is the voluntary 
 resigning or giving over of property by one person and its 
 receipt and acceptance by another. The most common methods 
 of acquiring realty are included within this class. As here- 
 tofore stated, they are the so-called " four common assurances 
 of the realm;" namely: (1) Alienation by deed or grant, 
 (2) Alienation by devise, (3) Alienation by matter of record, 
 and (4) Alienation by special custom. 
 
 (1) Alienation hy Deed or Grant. — A deed is a writing, 
 containing the elements of a contract, signed, sealed, and 
 delivered by the parties. Its most ordinary employment, of 
 
 i This is true when the word " pre- interchangeably. See last preceding 
 
 Bcription " is technically and accurately note. 
 
 employed. But it is sometimes used in 8344 ^m. IV. ch. 27, § 34 ; Baker 
 
 a sense broad enough to include the v. Oakwood, 123 N. Y. 16; Simis )'. 
 
 acquisition of any kind of real property, McElroy, 160 N. Y. 156; Campbell u. 
 
 whether corporeal or incorporeal, by Holt, 115 U. S. 620; Turner v. New 
 
 adverse holding or user for the requisite York, 168 U. S. 90; Hampton v. Com- 
 
 length of time. See United States v. monwealth, 19 Pa. St. 329 ; Welch v. 
 
 Chavez, 175 U. S. 509, 522 ; Davis v. Wadsworth, 30 Conn. 149 ; Jones u. 
 
 Coblens, 174 U. S. 719, 724. Jones, 18 Ala. 248; Cooley, Const. 
 
 2 But "adverse possession" and Lira. {5th ed.) 449. 
 "prescription" are sometimes used 
 
102 INTRODUCTION AND OtJTLINE. 
 
 course, is in transferring or otherwise affecting the title to 
 I real property. The forms that it has assumed for these pur- 
 poses are historically divided into three groups; namely: 
 a, the common-law deeds; 6, the forms of conveyancing 
 that arose and operate by virtue of the Statute of Uses; and 
 c, the kinds of deeds or grants at present employed. The 
 word "grant" is here used, in connection with "deed," be- 
 cause it is the term now quite commonly employed by courts 
 and writers to include practically all forms of alienation by 
 deed. 
 
 a. The common-law deeds, which were the only ones 
 known before the enactment of the Statute of Uses, embraced 
 six forms that were primary and five that were secondary. A 
 deed is said to be primary when it is capable of passing title 
 from one person to another originally and completely, without 
 reference to the previous operation of any other document or 
 form of transfer; it is secondary when its operation depends 
 on a former manipulation of the title through some other 
 instrument or transaction. The six primary common-law 
 deeds were, feoffment, which accompanied the ceremony 
 known as livery of seisin of the land and conveyed corporeal 
 hereditaments ordinarily in fee simple ; gift, which trans- 
 ferred an estate tail; grant (in its original and narrower 
 sense), which conveyed incorporeal hereditaments; lease, 
 which dealt with a smaller estate, usually less than freehold; 
 exchange, by which an estate in one piece of property was 
 traded for the same quantity of estate in another, and parti- 
 tion, which allotted in severalty distinct pieces of property 
 formerly owned by co-tenants. The five secondary deeds 
 were: confirmation, used to validate and make indefeasible a 
 prior voidable transfer; surrender, by which a tenant or 
 temporary holder gave back his estate to the landlord or 
 reversioner; release (the reverse of the surrender), by which 
 a reversioner gave up his interest to the temporary holder of 
 the land ; assignment, which transferred to a third party the 
 whole of a temporary interest, such, for example, as an estate 
 for years, and defeasance, uliich has become a part of the 
 modern mortgage and provides that a previous conveyance 
 shall become null and void on the happening of a specified 
 event. These ancient forms of deeds, with some modifications 
 and occasionally with new names, are still generally retained. 
 But, in some of the states of this country, the feoffment and 
 
OUTLINE. 103 
 
 gift are no longer used.i The defeasance is now uniformly 
 a mere clause or part of another deed, such as a mortgage, 
 rather than a separate instrument by itself. 
 
 b. The operation of the Statute of Uses consisted in its 
 taking the legal estate from him, who was seised of property 
 for the use of another, and passing it over to thai; other, — the 
 cestui que use, — thus " executing " the use by uniting it and the 
 legal estate in the same person. While that statute, because 
 of the ways in which it was construed, never accomplished 
 what its framers intended — never destroyed uses — yet it 
 soon came to be employed as a great convenience in secret 
 conveyancing of real property. It was apparent, from the 
 moment of its enactment, that title to real property might be 
 readily passed from A to C by having it conveyed by A to B 
 for the use of C. Thus the parties themselves transmitted'(or 
 transmuted) the title part of the way — from A to B — and 
 the statute then carried it the rest of the way — from B to C. 
 It was then said to be conveyed " by transmutation of posses- 
 sion." But in this process the conveyance from A to B was 
 necessarily open and notorious; for it must take place by 
 feoffment and livery of seisin on the land, when it was 
 called (a) a Feoffment to uses, or by a proceeding in court, when 
 it took the form of either (b) a Fine to uses or (c) a Common 
 recovery to uses. In order to avoid the publicity of such trans- 
 fers and secretly to utilize the statute, three other methods of 
 conveying by its aid, which were said to operate "without 
 transmutation of possession" soon came to be very commonly 
 employed. These were (d) Covenant to stand seised, (e) Bar- 
 gain and sale, and (f) Lease and release, (d) A covenant to 
 stand seised can operate only between husband and wife or 
 persons related by blood, and for a meritorious or good con- 
 sideration as distinguished from one that is valuable. Its 
 simple operation is that, without going on the land and with- 
 out any other act of publicity, A covenants and agrees to hold 
 the property (stand seised of it) for the use of B. By virtue 
 of such covenant, B becomes the owner of the use ; and the 
 Statute of Uses then instantly transfers to him the legal 
 estate, (e) The bargain and sale is for valuable consideration, 
 and does not require, any relationship of blood or marriage. 
 "Without any publicity, A merely agrees to sell the land to B, 
 
 1 Digby, Hist. Law R. P. (5th ed.) p. 16; 2 Poll. & Mait. Hist. Eng. L. (2d 
 ed.) pp. 314-321. 
 
104 INTRODUCTION AND OUTLINE. 
 
 and B bargains to purchase it. This agreement or " bargain " 
 gives the use to B; and tlie Statute of Uses then instantly 
 takes to him the legal title. The parties make the bargain, 
 and the Statute makes the sale, (f) The secrecy of these 
 forms of conveying being objectionable, it was provided by 
 the Statute of Enrolment, 27 Hen. VIII. ch. 16, that any 
 transfer of a freehold estate by bargain and sale should be 
 invalid, unless made by deed and enrolled, within six months 
 after its date, in one of the king's courts of record at West- 
 minster. The conveyance by lease, and release was invented 
 for the purpose of evading that statute ; and it consists of a 
 bargain and sale of an estate less than freehold (usually for 
 one year) from A to B, and then of a release from A to B of 
 the residue of the estate in fee simple. Neither the bargain 
 and sale for a term of years nor the release was required by 
 the statute to be enrolled. These last three methods of dis- 
 posing of and acquiring titles to realty, and also the feoffment 
 to uses, are still permitted in most common-law jurisdictions. 
 But the simpler forms of the deeds of to-day, as well as the 
 better operation of our modern recording acts, have done away 
 with their actual utility and use. 
 
 c. The modern kinds of deeds are modifications of those 
 already mentioned; but, largely because of the prominence 
 and importance now given to the covenants for title, and espe- 
 cially that of warranty, different names are generally em- 
 ployed. The four species most commonly used are : (a) The 
 quitclaim deed, which was originally a mere release, but 
 has come to be also in most states the lowest form of 
 primary conveyance — a mere naked transfer, without any 
 covenant as to title; (b) The modern bargain and sale deed, 
 which is an outgrowth and condensation of the older deed of 
 the same name — another but preferable form of naked trans- 
 fer, without any covenant as to title ; (c) The bargain and sale 
 with one or more special covenants for title, such as thfe 
 favorite covenant against the grantor's acts ; and (d) The war- 
 ranty deed, sometimes called the full covenant and warranty 
 deed, which, in addition to purporting to convey the property 
 in the strongest and fullest terms, contains all the usual 
 covenants by which the grantor binds himself and his heirs 
 forever to make good" and defend the title of the grantee and 
 his successors in interest. In addition to these chief species 
 of conveyances, there are in use at the present time numerous 
 
OUTLINE. 105 
 
 subsidiary forms, most of which are in substance modifi- 
 cations of the bargain and sale deed. Such are sheriffs' 
 deeds, executors' deeds, referees' deeds, receivers' deeds, tax 
 deeds, etc. 
 
 The modern deeds are also classified and discussed with 
 regard to the kinds of grantors or parties by whom they are 
 made and delivered. Thus, (a) the public grant (using grant 
 in its generic sense) by the state or general government is 
 one form ; (b) the office grant, made by some duly authorized 
 public ofiicer, is another ; and (c) the private grant — the most 
 frequently employed form — is the third. 
 
 The essential requisites of all these forms of conveyances, 
 their execution, delivery, witnessing, acknowledging, proving, 
 and record, and their orderly component parts, as arranged by 
 courts and statutes ancient and modern, present broad fields 
 of inquiry and discussion within the domain of the law of 
 real property. 
 
 (2) Alienation by Devise. — A devise is a gift of real prop- 
 erty by will. The right thus to transfer landed interests, as 
 it is now enjoyed, is the result of much change and develop- 
 ment, in which famous statutes have played a very important 
 part. Hence, the discussion of title by will embraces in the 
 first instance (a) an explanation of the general nature and 
 operation of devises in the different periods of their history. 
 It next deals with (b) the present methods of executing wills, 
 in order to make them capable of passing real property. And, 
 lastly, it examines (c) the different varieties of devises and 
 the general rules and principles of construction applicable 
 to them. 
 
 (a) In the Anglo-Saxon period of the common law, and 
 before the feudal system became established in England, wills 
 of realty were quite freely permitted and used, at least by 
 lords and great men. They were ordinarily made in writing, 
 authenticated by the testator's making the sign of the cross 
 upon them, and deposited in monasteries for safe keeping, i 
 ^he introduction of feuds interfered with this system, because 
 it was considered to be a right of the lord to prevent his 
 vassal from willing away the legal estate in the land ; and, 
 until this difficulty was overcome by statute, no holder of 
 land by tenure could devise any interest therein except the 
 use or equitable estate, i) It was decided that the^_tatijte of 
 
 1 Digby, Hist. Law R. P. (5th ed.) ch. viii. 
 
106 INTRODUCTION AND OUTLINE. 
 
 Uses, 27 Hen. VIII. ch. 10, sinceJi„30&Jp.,.takejrtieJegal 
 esl^iEwhereyer. the use was bestowed, had Jorbidden„even the 
 willing away .of. a .use) arid' soJ;he£a.-Wej:g,,nQ,,jgli^ 
 England of any InteresfTTn real property, for .fee., y^rs — 
 f rem 27 "Hen. VlE'to "32 Hen. Tffi:' (fe„jifi_Siatute_pf 
 WiJUa, 32 Hen. VIII. ch. 1, as amended and explained by 34 
 & 35 Hen. VIII. ch. 5, ni^gi§jLiegaI-ajid.-^<iuitalile-Jait^;gsts 
 in real property wex.e..pfijrHijjtt§d.jfcaJ!g„Ja:g4lsfe^^ 
 writing y*^nd this was generally and somewhat loosely done 
 until the enactment of the 3^ute^,,g^^raudSj,_JgBJlax^I.* 
 ch. 3. The last-mentioned enactment, which required a will 
 of realty not only to be in writing but also to be signed by 
 ithe testator and attested and signed by at least three credible 
 witnesses, controlled such instruments until the taking effect 
 of our modern wills statutes,*)such as that of 1 Vict, ch. 26 
 in England, or the Revised Statutes of 1830 in New York. 
 Thus, these modern statutes introduced the sixth and last 
 general period in the history of wills of real property. 
 
 (b) The law of the place where the land is situated is that 
 which is uniformly applied to the determination of the valid- 
 ity and effects of its transfer by will. Tersely summarized 
 here, that law may be said usually to require that the written 
 will shall be signed or subscribed by the testator, in the presence 
 of at least two witnesses (some states require three, and that 
 number is everywhere preferable), or if subscribed in their 
 absence that the signature be acknowledged by him to them ; 
 that he declare to them that it is his will and request them to 
 attest and subscribe it as witnesses, and that they thereupon 
 attest and subscribe it as such witnesses. The different states, 
 of course, have local variations in these requirements; (a) 
 but those here stated are the essentials most uniformly 
 prescribed. 
 
 (c) Among the most important matters relating to the 
 
 , (a) The New York statute, as to the execution of a will, requires that : 
 " 1. It shall be subscribed by the testator at the end of the will: 2. Such 
 subscription shall be made by the testator, in the presence of each of 
 the attesting witnesses, or shall be acknowledged by him, to have been so 
 made, to each of the attesting witnesses: 3. The testator, at the time of 
 making such subscription, or at the time of acknowledging the same, shall 
 declare the instrument so subscribed, to be his last will and testament: 
 4 There shall be at least two attesting witnesses, each of whom shall sign 
 his name as a witness, at the end of the will, at the request of the testator." 
 N. y. L 1909, ch. 18, § 21 ; 2 R. S. 63, § 40. 
 
OUTLINE. 107 
 
 kinds or varieties of devises are those which arise from the 
 operation of residuary clauses in wills, and from the lapsing 
 of direct and explicit devises because of the death of the bene- 
 ficiaries before the testators. At common law, a residuary 
 clause or devise in a will — a general gift of the residue of 
 the testator's property after specific gifts have been made — 
 could not dispose of real property ; but now, in England and 
 most of the United States, the modern statutes have enabled 
 it to do so. A will now generally speaks and operates as of 
 the time of the death of the testator; and so lapsed devises 
 may be taken up and disposed of by residuary clauses. The 
 discussion of devises also calls for a resume of the special 
 forms of estates thereby frequently conveyed, such as execu- 
 tory devises, devises for charitable uses, etc 
 
 (3) Alienation ly Matter of Record. — Title acquired by 
 matter of record does not depend upon the direct acts of the 
 parties, but looks to the sanction of a court for its substan- 
 tiation and preservation. It is ordinarily the outcome of a 
 judgment or decree. While, under the modern practice in 
 this country, these do not as a rule give title, but merely 
 crystallize and confirm that which is assumed to have already 
 existed, yet they are to be examined as important methods of 
 perfecting titles. Two kinds of assurances, moreover, which 
 are within this group and were for a long time extensively 
 used in England, did actually and originally in many in- 
 stances transfer an entire interest in realty from one person 
 to another. They were fines and common recoveries. The 
 study of these two forms of judicial proceeding, which were 
 technical, artificial, and collusive in character, throws much 
 light upon the history and leading principles of a considerable 
 part of the common law. 
 
 (4) Alienation hy Special Custom. — There are no instances, 
 of any practical importance, of title by special custom in this 
 country. But a complete survey of our subject includes the 
 few methods of thus acquiring property, such as those asso- 
 ciated with Burgage tenures and Gavelkind holdings, which 
 have been operative in some parts of England. The effects of 
 some local customs in modifying the rights and interests of 
 landowners, especially in cases where the estates are less than 
 freehold, are also properly embraced within this subdivision 
 of the methods of acquiring title. 
 
 § 95. Liena on Real Property. — Ownership of real property 
 
108 INTBODUCTION AND OUTLINE. 
 
 may be either free, clear, and indefeasible, or affected by liena 
 or other encumbrances. An encumbrance is a right or claim 
 against the property, which does not interfere with the pass- 
 ing of the title, but impairs the value.'V Such is a restriction 
 as to use, more onerous than the law would naturally require, 
 or a mortgage, or a lien for taxes or water rent. Some of 
 these encumbrances, such, for example, as the first illustra- 
 tion just given, are not ordinarily liens, since they are only 
 restrictions, and not claims for any payment or value out of 
 the land. The discussion of these comes naturally in con- 
 nection with the instruments which create them, such as con- 
 veyances, leases, and covenants. ^ lien — which is also an 
 encumbrance — is a hold or claim, which one person has over 
 the property of another as security for the payment of some 
 charge or debt out of that property.) As these are necessarily 
 involved in a thorough examination of title to real property, 
 they are logically to be discussed at the end of the subject of 
 title. 
 
 The mortgage, which is one of the most important liens, 
 has been already explained, as a development from estates on 
 condition subsequent; and the equitable liens or mortgages, 
 such as vendors' liens, vendees' liens, lis pendens, etc., were 
 included in its discussion. Statutory liens remain to be 
 noticed. And it will be sufficient here to name and define 
 the most important forms among them. Such are liens for 
 taxes, levied yearly by the public authorities against the 
 property ; also water rents — in the large cities, — and assess- 
 ments or betterment charges imposed upon lands for payment 
 for special public improvements at or near where the lands 
 are located. Such also are judgment liens, obtained by the 
 " docketing " of judgments against landowners, as authorized 
 and regulated by statutes ; mechanics' liens, filed pursuant to 
 statute for compensation due to persons who have contributed 
 labor or material to the repair or improvement of the land; 
 attachment liens, obtained by plaintiffs during the pendency 
 oMitigation; and unsafe building liens and, liens in favor of 
 boards of health, which are filed because of the properties' 
 violation of municipal ordinances or rules. Such rights, 
 while not directly assailing the title, may readily take most 
 or all of the value from its owner. 
 
 § 96. Registration of Titles and Liens. — A system of "reg- 
 istering titles," first brought into practice by Sir Robert 
 
OUTLINE. 109 
 
 Torrens in South Australia, and therefore known as the 
 "Torrens System," has been substantially adopted in a few 
 of the United States, such, for example, as Illinois and 
 Massachusetts. It is entirely statutory; and the local acts 
 vary considerably. But the general scheme includes a judi- 
 cial proceeding to determine that the applicant owns the 
 property, to which proceeding all interested persons are made 
 parties, a certificate of title to the successful petitioner by a 
 public official designated by the statute, registration of the 
 certificate in a book kept for that purpose, all subsequent 
 transfers and liens made by note on such certificate or a new 
 one duly registered and the making of the certificate conclu- 
 sive evidence of the title of its holder. The merits claimed 
 for such a system are the security which it gives to titles 
 and the ease and rapidity with which it enables them to be 
 transferred. 
 
 It is hoped that the utility of the foregoing survey of the 
 ground to be covered in the following chapters may be in- 
 creased by the annexed tabulated summary of its contents. 
 
Book I. f Part I. Lands. 
 
 < PART II. Tenbments. , , r> i 
 
 KINDS OP REAL PROPERTY. [ PART III. Hereditaments. | g" in°or oreal 
 
 Book n. 
 HOLDINGS OF REAL PROPERTY. 
 
 ' PART I. Alodial, before feudal system, and after the Bei 
 
 ' 1. Knight^errice . 
 
 2. Free and common aoc( 
 
 3. Villein socage — Anoi* 
 
 4. Pure villeinage. 
 
 5. Copyhold .... 
 
 6. Frankalmoin . . 
 
 7. Divine service. 
 
 8. Grand sergeanty 
 
 9. Petty sergeanty. 
 10. Burgage. 
 
 ,11. Gavelkind .... 
 1. Legal. — Recognized W 
 
 . PART II. Br Tencre 
 
 PART I. As TO Courts . 
 
 2. Equitable 
 
 Book ni. 
 
 ESTATES IN REAL PROPERTY. 
 
 PART II. As TO Quantity. 
 
 1. Freehold 
 
 PART Til. As TO NcMBER 
 & Connection of Ownrrs. 
 
 PART IV. As TO QtrALiFiED 
 OR Unqdalifikd Nati.re 
 
 [ PART V. As TO TiMK FOR I 
 
 Enjoyment to Begin. 1 
 
 2. Less than Freehold . , 
 
 1. Severalty. — Separate aii 
 
 2. Joint Estates . , . , { 
 
 1 . Absolute — Not conditiiji 
 
 II 
 
 .2. Qualified '[ 
 
 i[ 
 I 1. Present Estates — In pui 
 
 [ 2. Future Estates 
 
 Book IV. 
 TITLE TO REAL PROPERTY. 
 
 PART I. Bv Descent — P.as.siiig by law from ancestor tot 
 
 1. Other than by Alienatiat 
 
 PART U. Br Pdrchase . . 
 
 2. Bv Alienation 
 
[ a Reut-service. 
 
 (1) Kents J 6 Rent-charge. 
 
 (2) Franchises. (c Rent-seek. 
 
 (3) Easements and servitudes. (License.) 
 [ (i) Profit ii prendre. 
 
 dntion in the United States. 
 
 It demesne. 
 
 )• Chief forms. 
 
 Inferior or subsidiary forms. 
 
 ill courts. 
 
 fll) Uses, 
 .-j (2) Trusts 
 
 t (3) Equities of Redemption. 
 
 a 
 
 b Implied 
 
 (1) Of inheritance j 
 
 I (2) Not of inheritance, or for life . 
 
 (1) For years (chatteb real). 
 
 (2) From year to year 
 
 (3) At will. 
 
 (4) At sufferance 
 
 d distinct ownership. 
 
 ( 1 ) Joint tenancy. 
 
 (2) Coparcenary. 
 
 (3) Estates in common. 
 ■ "■ (4) Estates by entirety. 
 
 (5) Partnership estates. 
 
 (6) Joint mortgages, 
 nal nor qualified. 
 
 f ( I ) Estates on condition. 
 
 J (2) Estates on limitation. 
 ' I (3) Estates on conditional limitation. 
 
 I (4) Mortgages, 
 session. 
 
 I (1) Reversions. 
 
 (2) Remainders 
 
 (3) Executory Estates . 
 
 a Fee simple. 
 b Qualified fees 
 
 a Conventional 
 
 6 Legal . . . . 
 ' Chattel interests. 
 
 a Vested. 
 b Contingent. 
 
 ■ a Springing uses. 
 6 Shifting uses, 
 c Powers. 
 d Executory devises. 
 
 (a) Active. 
 
 (b) Passive. 
 
 (a) Resulting. 
 
 (b) Constructive. 
 
 (a) Fee conditional — fee tail. 
 
 (b) Fee on condition. 
 
 (c) Fee on limitation. 
 
 (d) Fee on conditional limitation. 
 
 ■ (a) For one's own life. 
 
 (b) Per autre vie. 
 
 (c) For uncertain period which 
 
 may last for life. 
 
 (a) Curtesy. 
 
 (b) Dower. 
 
 (c) Jointure. 
 
 (d) Estate by marriage. 
 
 (1) By escheat. 
 
 (2) By occupancy. 
 
 (3) By accretion. 
 
 (4) By forfeiture. 
 
 (5) By prerogative. 
 
 (6) By abandonment. 
 
 (7) By estoppel 
 
 (S) By prescription. 
 
 i (9) By adverse possession. 
 
 (1) By deed or grant . 
 
 (2) By devise. 
 
 (3) By matter of record. 
 
 (4) Bv special custom. 
 
 a Common-law kinds. 
 
 b Kinds operating by Statute 
 
 of Uses, 
 c Modern kinds 
 
 (a) Public grant. 
 
 (b) Oflice grant. 
 
 (c) Private grant. 
 
BOOK I 
 
 KINDS OF REAL PROPERTY. 
 
 Part I. — Lands. 
 Part II. — Tenements. 
 Part III. — Hereditaments. 
 
PARTS I AND II. 
 
 CHAPTER V. 
 
 LANDS AND TENEMENTS. 
 § 97. Lands. § 98. Tenements. 
 
 § 97. Lands. — The topic of this book is real property, in 
 the sense of things which are objects of ownership. The 
 holdings of such things, the estates or interests in them and 
 the titles to them are the distinct subjects of the other three 
 books. Naturally the first of these things — these objects of 
 ownership — which engaged the attention of men, was land 
 — the real property that is cognizable by the physical senses. 
 Land embraces whatever is parcel of the terrestrial globe, 
 whatever is affixed thereto, whether by nature — as trees, 
 grass, herbs, and water — or by the act of man — as houses, 
 fences, poles, and wires — and all the space beyond them 
 indefinitely outward. When the lawyer thinks of land, he 
 must immeasurably enlarge upon the ordinary, lay conception 
 of it and make it include everything of which his physical 
 senses might give him knowledge, from the centre of the earth 
 upward into unlimited space. Cujus est solum ejus est usque 
 ad ccelum, et ad orcum. I can restrain my neighbor from 
 swinging his shutters out over my roof ; and he who, without 
 permission, digs into my soil a thousand feet below the sur- 
 face, or stretches a telegraph or telephone wire over it, or flies 
 in an air-ship thousands' of feet above it, is guilty of trespass.^ 
 
 § 98. Tenements. — As things not tangible, nor cognizable 
 in any way by the physical senses, came more and more to 
 
 1 See § 62, supra, and note; Lay- 134 N. Y. 355. When an article, 
 bourn v. Gridley (1892), 2 Ch. 53 ; Lem- though very small, such as a wire, is 
 men V. Webb (1895), App. Cas. 1 ; thus retained, so that it maybe taken 
 Chartiers Block Coal Co. v. Mellon, 152 away by the sheriff, an action of eject- 
 Pa. St. 286 ; G. R. & I. R. Co. v. But- ment will lie for its removal. Butler v. 
 ler, 159 U. S. 87, 92 ; Montana Mining Frontier Telephone Co., 186 N. Y. 486, 
 Co. V. St. Louis Mining Co., 204 U. S. 492 ; Jemison v. Bell Telephone Co., 
 204, 217; Gouverneur v. Nat. Ice Co., 186 N. Y. 493. 
 
 8 
 
114 KINDS OP REAL PROPERTY. 
 
 demand a place in the domain of realty, the necessity arose 
 for a -word that should include these as well as land, and that 
 should embrace practically everything that we now call real 
 property. Tenure was affecting all these things ; and between 
 the twelfth and thirteenth centuries they all came to be de- 
 noted by the word tenements.''- "Unless we are mistaken, 
 that word first came into use for the purpose of comprising 
 meadows, pastures, woods, and wastes, for at an early time 
 the word terra will hardly cover more than the arable land. 
 But tenementum will also comprise any incorporeal thing 
 which can be holden by one man of another. . . . Thus, Tor 
 example, rents charge, rents seek, rights of common, become 
 tenements. Statutes of Edward I. 's day gave the word a 
 sharper edge. " ^ As already explained, the wor4 " tenements " 
 practically embraces all the forms of real property — real 
 things — known to the American law. 
 
 1 1 FoU. & Mait. Hist. Eng. L. (2d > 2 PoU. & Mait. Hist. Eng. L. (2d 
 
 ed.) p. 236, note 3. ed.) p. 148. 
 
PART III. 
 
 HEREDITAMENTS. 
 1. Corporeal. 2. Incorporeal. 
 
 CHAPTER VI. 
 
 HEREDITAMENTS EXPLAINED AND CLASSIFIED — CORPOREAL 
 HEREDITAMENTS. 
 
 § 99. Hereditaments. — Early local customs, under the 
 name of "principals" or "heirlooms," which gave certain 
 favorite chattels to the heir,i gradually hardened into law and 
 added to the category of real things some articles that are 
 naturally neither lands nor tenements. The heii' inherited 
 them, as he did other real property ; and so they and it came 
 to be called collectively hereditaments. That word is accord- 
 ingly used everywhere to denote every kind of real property. 
 But in this country it is practically no wider in scope than 
 tenements. And, as was explained above, it is possible to 
 create a tenement which is not a hereditament.^ 
 
 Dividing hereditaments into their two classes — corporeal 
 and incorporeal — as to the first of these, it is only necessary 
 to repeat that all real property that is tangible or in any way 
 cognizable by the physical senses is said tp be corporeal, and 
 that all corporeal hereditaments are lands. All other here- 
 ditaments are incorporeal; i. e., mere rights, which arise out 
 of things corporeal or are connected with or annexed to or 
 exercisable within corporeal property. Comprising as they 
 do some of the most valuable property interests of the present 
 day, and ramifying into important kinds and species, the 
 incorporeal hereditaments call for separate and careful con- 
 
 1 2 Poll. & Mait. Hist. Eng. L. (2d ed.) p. 363. ^ § 62, supra. 
 
116 KINDS OF REAL PEOPERTT. 
 
 sideration. As was heretofore stated, their four kinds, 
 ■which are important in the American law of real property, 
 are (1) Rents, (2) Franchises, (3) Basements and servitudes, 
 and (4) Profit d prendre.^ 
 
 1 For the six other forms, which admiration for the daring fancy that 
 
 exist in England, see § 62, supra. created it, a fancy that was not afraid 
 
 " We can not leave behind us the law of the grotesque." 2 Poll. & Mait. Hisfc 
 
 of incorporeal things, the most medieval Eng. L. (2d ed.) p. 149. 
 part of medieval law, without a word of 
 
». INCORPOEEAL HEREDITAMENTS. 
 CHAPTER VII. 
 
 (1) RENTS. 
 
 §100. 
 
 Rent — Definition. 
 
 §101. 
 
 Kinds of rent. 
 
 
 a. Rent-service. 
 
 §102. 
 
 Rent-service — Incident of 
 
 reversion 
 
 . 
 
 § 103. Fealty — Estoppel to deny 
 title. 
 
 § 104. Distress — Remedies for 
 non-payment, etc. 
 
 § 105. To whom rent-service re- 
 served — To whom proceeds payable. 
 
 § 106. Assignment, or transfer. 
 
 § 107. Discharge — Suspension 
 — Apportionment. 
 
 § 108. Discharge of rent-service. 
 
 § 109. Suspension of rent-service. 
 
 § 110. Apportionment of rent- 
 service. 
 
 § 111. Effects of destruction of 
 or injury to buildings. 
 
 b, c. Rent-charge, Rent-seek. 
 
 § 112. Definitions and distinc- 
 tions. 
 
 § 113. General characteristics of 
 rent-charge and rent-seek. 
 
 § 114. Remedies for enforcing 
 and recovering proceeds. 
 
 § 115. Reservation. Assignment, 
 or transfer. 
 
 §116. Discharge, suspension, and 
 apportionment. 
 
 § 117. Discharge of such rents. 
 
 § 118. Suspension of such rents. 
 
 § 119. Apportionment of such 
 rents. 
 
 § 100. Rent — Definition. — The early common-law rent 
 (reditus) was a mere right to services rendered by a tenant 
 to his lord or landlord. This has been styled the old " tenu- 
 rial " rent.i But other cognate rights have been so persis- 
 tently designated by the same word that the rent of to-day 
 must be defined in broader terms. It is a right to a certain 
 profit issuing periodically out of lands or tenements. ^ And 
 the elements of this definition require careful attention. 
 
 1 2 Poll. & Mait. Hist. Eng. L. (2d 
 ed.) p. 129. 
 
 ^ The substance of this definition is 
 from 2 Minor's Inst. 32. It is there 
 added that the right must issue out of 
 lands or tenements corporeal. This re- 
 
 quirement is undoubtedly correct, as 
 viewed from common-law theory ; and 
 it may well be added that Dr. Minor's 
 exposition of the law of rent is probably 
 the clearest and most scientific one in 
 existence. But, since the practice ig 
 
118 KINDS OF REAL PBOPBRTT. 
 
 In the first place, then, rent is a mere right. It is not the 
 money, goods, or services, which the tenant renders to his 
 landlord, nor is it the mere privilege of suing for any of these 
 things when due ; but it is a right against the realty to receive 
 from it some compensation or return. Hence it is incorpo- 
 real. ^ The money, or other thing of value, which the rent 
 is the right to receive, is the proceeds, fruits, or profits of the 
 rent. It will prevent much confusion of thought and conduce 
 to clear and accurate results to bear this distinction con- 
 stantly in mind. 2 Rent, as thus understood, is ordinarily 
 real property or a chattel real; while its fruits or proceeds, 
 when received, and the right to sue for them when due and 
 unpaid are personalty. 
 
 Again, rent is a right to a certain profit. This profit, or 
 the fruits or proceeds of the rent, may consist of money, 
 goods, services, or any other things of value. ^ It was at first 
 commonly paid in services, rendered by the vassal to his lord 
 or the tenant to his landlord, which fact gave the name to the 
 most important kind of rent — the rent-service.* The things 
 thus rendered must be a gain or profit to the owner of the 
 rent, and not anything which he had before the rent was 
 created. Therefore, a return of part of the soil to the grantor 
 of land or of trees or herbage growing upon it at the time of 
 the grant could not be properly treated as the proceeds of 
 rent ; but a reservation of crops yet to be grown or of cattle 
 thereafter to be raised on the premises may be so treated.^ 
 
 DOW SO common of leasing out incor- quently use the word " rent " to mean 
 
 poieal rights, such for example as rail- or include these returns or proceeds, 
 
 road franchises, and having the right to See 2 Blackst. Com. p. * 41 ; 3 Kent's 
 
 the compensation from the lessee con- Com. p. *460 ; 2 Leake, 373; Standard 
 
 stantly treated by the courts as rent, it Diet. " Rent ; " Abb. L. Diet. " Rent ; " 
 
 is thought best to omit from our defini- Priester v. Hohloch, 70 N. Y. App. Div. 
 
 tion all requirement that the property 256. 
 
 out of which it issues shall be corporeal. » Lit. §213; Keneage v. Elliott, 9 
 
 See Eastman v. Anderson, 119 Mass. Watts (Pa.), 258; Cornell v. Lamb, 2 
 
 526. Cow. (N. Y.) 652. 
 
 It is said by some authorities that ^ 2 Poll. & Mait. Hist. Eng. L. (2d 
 
 rent may issue also out of "the furni- ed.) p. 129. 
 
 ture," which is leased together with the 5 ColtneSs Iron Co. v. Black, L. E. 
 
 real property in which it is located. 6 App. Cas. 315, 335 ; Reg. v. West- 
 
 Mickle V. Miles, 31 Pa. St. 20. , brook, 10 Q. B. 178; Buckley v. Ken- 
 
 1 Van Rensselaer v. Read, 26 N. Y. yon, 10 East, 139 ; Moulton v. Robinson, 
 558, 564; Pollock v. Earmers' L. & T. 27 N. H. 550; Johnston v. Smith, 3 P. 
 Co., 157 U. S. 429, 580, 158 U. S. & W. (Pa.) 496; Co. Lit. 142 a; 2 
 €01 ; 2 Min. Inst. 32. Min. Inst. 33. 
 
 2 Writers, and even courts, fre- 
 
RENTS, 119 
 
 And the profit must be certain or ascertained in amount. 
 Hence, the right to labor, or money, generally and without 
 any quantity being fixed or any method being designated for 
 determining how much it shall be, is not rent. But, in con- 
 formity to the maxim id cerium est quod certum reddi potest, it 
 is sufficient if some standard or criterion be fixed upon by 
 which the amount can be ascertained. Thus, the right to 
 receive for the use of leased premises as much a year as X, an 
 outside party, shall decide upon, or the price of one hundred 
 bushels of wheat at a designated market on a day specified, 
 is a good rent.^ 
 
 The profit or proceeds of the rent, moreover, must issue 
 periodically. This may be yearly, quarterly, monthly, weekly, 
 or as measured by any other definite periods ; but it must be 
 at regular, equal intervals throughout the time during which 
 the rent is to continue.^ Hence, if one purchase land, and, 
 instead of paying a gross amount for the same, agree to pay 
 a fixed sum yearly or monthly, etc., while his estate con- 
 tinues, the right of the grantor to receive such payments 'is 
 rent ; while if the agreement be that the purchase price shall 
 be paid in instalments, lut not at regular intervals during the 
 continuance of the estate, the right to such instalments is not 
 rent.^ 
 
 The profit must issue out of lands or tenements, i. e., out of 
 tenements of some kind.* It is this requirement that distin- 
 guishes rents from annuities. The latter are rights to peri- 
 odical income or payments, which are fixed and certain ; but 
 they are charged upon the person who is to make the pay- 
 ments, and not upon real property.^ The primitive idea of 
 rent was that it must be attached to corporeal hereditaments ; 
 for the right to distrain upon the property out of which it 
 issued, i. e,, the right to take goods and chattels therefrom 
 
 ^ Walsh V. Lonsdale, L. R. 21 Ch. tenant . . whether the amount to be 
 
 Div. 9 ; Smith v. Fyler, 2 Hill (N. Y.), paid has been defined by the agreement 
 
 648; Commonwealth w. Contnor, 18 Pa. of the parties, or has been left indefi- 
 
 St. 439, 447 ; Ocean Grove Camp M. nite." Kites v. Church, 142 Mass. 586, 
 
 Ass'n w. Sanders, 67 N. J. L. 1 ; Cross 589. 
 
 V. Tome, 14 Md. 247 ; McFarlane v. ^ 2 Blackst. Com. p. *41. 
 
 Williams, 107 111. 33 ; Dutcher v. Cul- ^ 2 Min. Inst. 33. 
 
 ver, 24 Minn. 584; Co. Lit. 96 a; Gil- * Co. Lit. 142a; Watk. Conv. 273; 
 
 bert, Rents, 9. But it has been said in Eastman v. Anderson, 1 1 9 Mass. 526. 
 Massachusetts that, " the word ' rent ' » 2 PoU. & Mait. Hist. Eng. L. (2d 
 
 may include the compensation to be ed.) o. 131 j 2 Blackst. Com. p. * 40. 
 ■paid for the occupation of land by a 
 
120 
 
 KINDS OF REAL PROPERTY. 
 
 for arrears of the payments or render to be made, which was 
 always incident to a proper rent, could not be enjoyed out of 
 things intangible and incorporeal.^ But even the early com- 
 mon law recognized some species of rights called rents, to 
 which distress did not belong. ^ And, although perhaps the 
 most numerous authorities still insist that rent must issue 
 out of land, yet practically it is now generally treated as 
 capable of being incident to all kinds of tenements, and even 
 in some cases to the furniture that is leased with them.^ 
 
 § 101. Kinds of Rent. — The three important classes, into 
 which all rents may be divided, are : a, rent-service, b, rent- 
 charge, and c, rent-seek. Rent-service, in the present practi- 
 cal sense of the term, is a rent reserved upon a grant or 
 lease of real property when a reversion exists in the grantor 
 or lessor.* The relation of landlord and tenant, as it is 
 familiarly known to-day, ordinarily gives rise to this kind of 
 rent. Rent-charge is that for which the land is specially 
 charged or encumbered with a distress,* usually by the terms 
 
 1 2 Blackst. Com. p. *41 ; 2 Min. 
 Inst. 33 ; 2 Poll. & Mait. Hist. Eng. 
 L. (2d ed.) p. 133 ; Raby v. Reeves, 112 
 N. C. 688; Whitaker u. Hawley, 25 
 Kan. 674. 
 
 2 This is rent-seek. See § 112, infra. 
 ' Eastman v. Anderson, 1 19Mass, 526; 
 
 Mickle V. Miles, 31 Pa. St. 20 ; Tetter's 
 Appeal, 99 Pa. St. 52 ; Newman v. An- 
 derton, 2 Bos. & P. N. R. 224; 5 Co. 
 16 b; Gilbert, Rents, 187. In those 
 states like New York, in which all dis- 
 tress for rent has been abolished by 
 statute, this use of the word " rent " is 
 wholly logical, as well as customary and 
 convenient. See N. Y. L. 1846, ch. 271 ; 
 Stim. Amer. Stat. L, § 2031. It was 
 also argued, against the possibility of 
 rent issuing out of incorporeal heredita- 
 ments, that, since they were originally 
 allowed for the public good, they were 
 not fit subjects for private profit. Upon 
 this matter, Dr. iMCinor says ; " Hence, 
 if one seised in fee simple, of a way, or 
 common, should lease it for years, reserv- 
 ing a periodical compensation therefor, 
 it is not a rent, because it issues out 
 of an incorporeal, and not a corporeal 
 tenement. (Gilb. Rents, 20, etc. ; 1 Th. 
 Co. Lit. 441 -442. ) The reasons assigned 
 ior this doctrine are that the person en- 
 
 titled cannot distrain for the amount in 
 arrear where the tenement is incor- 
 poreal ; nor can he have a writ of assize, 
 inasmuch as the recognitors of assize 
 cannot have a view of the subject ; and 
 that incorporeal hereditaments were 
 originally created and allowed for the 
 public good, and therefore were not 
 deemed fit subjects of private profit'. 
 Hence, although a reversion and re- 
 mainder are incorporeal, yet upon a 
 grant of either, reserving a return or 
 compensatioti, such compensation is a 
 proper rent, because the estate was 
 created to make profit of; and although 
 there can be no distress until by the 
 determination of the particular estate 
 the interest in reversion or remainder 
 comes into possession, yet then the 
 grantor of the land may distrain for all 
 arrears. (Gilb. Rents, 21 to 23 ; 1 Th. 
 Co. Lit. 442.) " 
 
 * This means that the grantor or 
 lessor lets out a smaller interest in the 
 property than he himself owns, and 
 retains the residue, as when an owner 
 in fee leases the land for a term of 
 years, or for one's life. See "rever- 
 sions," § 89, supra. 
 
 ^ It may conduce to clearness to 
 repeat here that the right of " distress," 
 
RENTS. 121 
 
 of the grant or reservation, and where the owner of the rent 
 has no reversion or other expectant interest in the land itself. 
 Rent-seek is like rent-charge in the fact that its owner has 
 no reversion in the land or tenement out of which its fruits 
 are to issue ; but it differs from the latter in that its owner 
 has no right of distress. It is, therefore, reditus siccus, or 
 dry or barren rent, because there is no means of enforcing 
 the rendering of its proceeds except by action at law.^ Each 
 of the three forms of rent thus briefly defined will be ex- 
 plained more in detail hereafter. Particular names have 
 also been given to some special sorts of rent, which are not 
 employed in this country and which it will suffice to name 
 and tersely define. Thus, the certain, established rents of the 
 ancient freeholders and copyholders of manors, which can not 
 be departed from or varied, are rents of assize. Such of these 
 as were paid by the freeholders are often called chief-rents, 
 reditus capitales ; and both sorts are indifferently denominated 
 quit-rents, because by the rendering of them the tenant is 
 freed from all other services and returns. Where the pay- 
 ments required were to be made in silver, the rent was often 
 called white-rent, hlanch-farm, reditus alius; and it was thus 
 distinguished from those in which the fruits or returns con- 
 sisted of labor, grain, or other sorts of money, which were 
 designated black-mail. When the sum to be paid is as much 
 as the use of the tenement is worth during the period for 
 which it is to be so paid, or is nearly equal to that amount, it 
 is frequently denominated rack-rent. All of these are simply 
 varieties of the three important classes above outlined.^ 
 
 a. Bent-service, 
 
 § 102. Rent-service — Incident of Reversion. — The letting 
 out of lands to be held by tenants, upon their making com- 
 pensation or return to the owners, is doubtless as old as 
 individual proprietorship in real property. And the use of 
 
 or of " distraining," means the privi- cally created by contract, in order to 
 
 lege of going on the land and taking attach to any other species of rent. 
 any goods or chattels there, in payment ^ This is Littleton's classification, 
 
 of any amount due as return or prO; which has been uniformly followed, 
 
 ceeds of the rent. At common law, it Lit. § 213 ; 2 Blackst. Com. p. *42; 
 
 belongs, as matter of right, to the owner 3 Kent's Com. p. * 460. 
 of a rent-service ; but it must be specifi- " 2 Blackst. Com. pp. * 42, * 43. 
 
122 KINDS OP EEAL PROPERTY. 
 
 the word, rent (reditus) or its equivalent is almost as ancient.^ 
 In England, however, the law of rent did not assume special 
 importance, nor call for much care from the courts, until after 
 the villeins, who had cultivated the demesnes of the great lords 
 of manors, began to be emancipated; and then to have par- 
 celled out to them, to cultivate for the support of themselves 
 and their families, the lands to which they had been attached.^ 
 Those to whom the corporeal property was thus given out 
 were required to render to or for its owner (the reversioner), 
 at regular intervals, a designated quantity of corn, wheat, or 
 other provisions, or the performance of a stipulated amount 
 of work and services.^ The uniform result of such an arrange- 
 ment was that the owner or proprietor of the land retained a 
 reversion to himself or to himself and his heirs. He passed 
 to his tenant only a portion of his own interest, whether that 
 portion were for one or more years, or for the life of the 
 tenant or some other person, or in fee of some kind, and 
 retained the residue. And so it has come about that when- 
 ever, for a regular, periodical return of value from the tenant, 
 land is parted with by one who retains the ultimate ownership, 
 his right to the receipt of such value is designated rent-service. 
 Therefore, rent-service may be more comprehensively defined 
 as the riffht to a certain profit out of lands or tenements, be- 
 longing to the owner of a reversion, in return for the property 
 that passes. This most important form of rent is, of course, 
 not tenurial in this country ; it flows from contract — between 
 landlord and tenant. But in practice ifc retains the name of 
 its feudal ancestor, and is governed by substantially the same 
 principles.* 
 
 1 See 2 Poll. & Mait. Hist. Eng. L. service could be reserved to the grantor 
 
 (2d ed.) p. 129. of an estate in fee simple. For, al- 
 
 ^ Ibid. ; 3 Cruise Dig. p. *271 et seq. though in one sense he parted with all 
 
 ° In process of time, the lands so let his interest in the land and kept no 
 
 out were called farms — from the reversion, yet, because of the rights 
 
 Anglo-Saxon word feorm, which means as lord of the fee which the feudal 
 
 provisions. The right to the compensa- system enabled him to retain, chief 
 
 tion was rent ; and, since at first it was among which rights was that of taking 
 
 commonly in form of services, it was back the land if the grantee — r the vas- 
 
 distinguished from the other forms of sal — violated any of his feudal obliga- 
 
 rent by the name rent-service. Gilbert, tions, the grantor could and usually did 
 
 Eents, 9 ; 3 Cruise Dig. p. * 272. retain for himself and bis heirs a quasi re- 
 
 < Smith, Landl. & T. 90 ; Com. Dig. version, which was called his " possibility 
 
 Bent, ch. 1; § 113 infra. Before the of reverter " and which was sufficient to 
 
 18th year of Edward I. (1290.), rent- have a rent-service as its incident. But 
 
RENTS. 123 
 
 § 103. Fealty to Owner of Rent-aenrlce — Estoppel to deny 
 Title of Reversioner. — " When a tenant holds his land by fealty 
 and certain rent," says Cruise, "it is a rent-service; and this 
 was the only kind of rent originally known to the common 
 law. " 1 The mutual bond or obligation of a vassal to his lord, 
 which the feudal law styled fealty, required among other 
 things that the tenant should defend the title of his lord, 
 promptly notify him of any attacks upon it, and never in any 
 way assert any right or interest in the land adverse to his. 
 None of the feudal effects of this relation can operate now in 
 this country; but, whether it be as many have supposed an 
 outgrowth of the ancient fealty, or a principle which has 
 grown up independently thereof, the estoppel of a tenant to 
 deny the title of his landlord is as strong a rule of law to-day 
 as it was in the time of Lord Coke. And so, as a more 
 modern American enunciation of the principle than that 
 above quoted from Cruise, it may be said that whoever holds 
 real property out of which proceeds a rent-service is in general 
 estopped- to deny the title of his landlord, the reversioner. ^ 
 
 § 104. Distress — Remedies for enforcing Rent-service and 
 recovering its Fruits or Proceeds. — " The characteristics of 
 rent-service ; 1. It arises by reversion, and is always in retri- 
 
 the statute quia emptores (18 Edw. I. statute of quia emptores is recognized 
 ch. 1 1 provided that, in all conveyances as law in all of the United States, 
 in fee simple except those made directly except Pennsylvania and possibly one 
 by the king or with his waiver of the or two other states. And, therefore, 
 statute, the grantee should not hold his outside of such exceptional states, the 
 land by tenure of the grantor, but should uniform rule both here and iu ling- 
 hold of the same lord of whom the land, is that rent-service can not be 
 grantor had held. This did away with reserved on a grant of land in fee 
 aU feudal obligations and relations be- simple^ Ibid. ; IngersoU v. Sergeant, 1 
 tween grantor and grantee in fee simple, Whart. (Pa.) 337 ; Gray on Perpetuities, 
 when both were subjects (except where ' §§ 20-51. Stat, quia emptores, § 291, 
 the king, waiving the statute, permitted infra, and note on Manor Lands of New 
 his own tenants to make such a relation York at the end of Ch. XVII, iiifra. 
 between themselves and their grantees), i Greenl. Cruise Dig. tit. xxviii. ch. 
 and thus rendered it impossible to re- i. §§ 2-8. 
 
 serve a rent-service upon such a trans- ' Delaney v. Fox, 2 C. B. N. s. 768 ; 
 
 fer. The ordinary grantor in fee simple Rowan v. Lytle, 11 Wend. (N. Y.) 616, 
 
 has now no reversionary interest of 621 ; Whiting v. Edmonds, 94 N. Y. 
 
 any kind, to which a rent-service can 309 ; Longfellow v. Longfellow, 54 Me. 
 
 attach as incident. Lit. §§ 122, 216- 240, 61 Me. 590 ; Gray v. Johnson, 
 
 218, 225-228 ; Den d. Farley v. Craig, 14 N. H. 414. This principle, which 
 
 15 N. J. L. 191 ; Bradbury v. Wright, simply needs to be stated here to com- 
 
 2 Doug. 624 ; Van Rensselaer v. plete our view of rent-service, is dis- 
 
 Hayes, 19 N. Y. 68; Van Rensselaer cussed more fully in connection with 
 
 V. Chadwick, 22 N. Y. 32 ; De Lancey estates for years. For its origin and 
 
 V. Fiepgras, 138 N. Y. 26, 38. The history, see 6 Amer. L. Rev. 1. 
 
124 KINDS OF EEAL PROPERTY. 
 
 bution for the land out of which it issues ; 2. It supposes a 
 tenure " (holding) " of the grantor and a reversion to him ; 
 3. The arrears are recoverable hy distress as of common right. " ^ 
 The distinguishing feature of this last-mentioned right, as 
 connected with rent-service, — the right to take goods and 
 chattels of the tenant from the land to an amount sufficient 
 to pay the sum due as fruits or profits (arrears) of the rent, — 
 is that it was given to the lord or landlord by the common law 
 as a matter of common right, and needed not to be reserved or 
 mentioned in the contract of letting the land.^ It was because 
 of the existence of this right to distrain, then inseparably con- 
 nected with rent-service, which was the rent of the early com- 
 mon law, that the early writers laid it down that rent must 
 issue out of land or tenements corporeal ; for such property is, 
 of course, the only kind upon which distress can be made.' 
 In a number of the United States, such as New York, Wis- 
 consin, and Minnesota, the drastic remedy of distress has 
 been abolished by statute.* (a) It is not generally favored in 
 this country, even where not abrogated." In England, it has 
 been extended to all kinds of rent; and it is treated with 
 similar favor in a few of the American states.® 
 
 The ordinary modern remedy for obtaining the proceeds 
 or fruits of rent-service when due is an action of debt,' or 
 
 (a) The Revised Statutes of New York (1830) gave preference to a land- 
 lord's claim for arrears of rent, over judgment creditors of the tenant. 
 
 1 K. S. 476. By the laws of 1846, ch. 274, which was one of the re- 
 sults of the " Tenants' War," this preference was done away with and all 
 distress for rent of every kind was abolished. See 4 Wilson's Hist. Amer. 
 People, p. 131. 
 
 1 2 Min. Inst. 36. 6 gge Crocker v. Mann, 3 Mo. 472 ; 
 
 2 3 Cruise Dig. p. *272; Bac. Abr. Harrison v. Ricks, 71 N. C. 7 ; Greenl. 
 Rents (A) 2 ; 2 Blackst. Com. p. *42 ; Cruise Dig. tit. xxviii. ch. i. § 65, n. 1. 
 
 2 Poll. & Mait. Hist. Eng. L. (2d « 4 Geo. II, ch. 28, § 5 j Addison 
 ed.) p. 576; Cornell v. Lamb, 2 Cow. v. Shepherd (1908), 2 K. B. 118; 01- 
 (N. Y.) 652. Originally, this right den v. Mather, 67 Atl. Rep. 435 (N. J. 
 merely enabled the reversioner to seize Ch.) ; Manchester H. B. L. Ass'n v. 
 and retain the goods and chattels. Porter, 106 Va. 528 ; Mitchell v. Prank- 
 But by statute it has been made to in- lin, 3 J. J. Marsh. (Ky.) 477, 480; 2 
 elude the right to sell them and apply Min. Inst. 37. 
 
 the proceeds to the payment of the '' Co. Lit. 47 b ; Gilbert, Rents, 93, 
 
 amount due. Stat. 2 Wm. & M. ch. 5 ; 98 ; Walker's Case, 3 Co. 22 a ; 
 
 3 Blackst. Com. pp. *13, *14 ; 2 Tay- McKeon v. Whitney, 3 Denio (N. Y.), 
 lor, Landl. & T. § 557; 1 McAdam, 452; Howland u. Coffin, 9 Pick. (Mass.) 
 Landl. & T. p. 200. 52, 12 Pick. 125 ; Ryerson v. Quacken- 
 
 " 2 Blackst. Com. p. * 41 ; Common- bush, 26 N. J. L. 236 ; 1 McAdam, 
 wealth V. Centner, 18 Pa. St. 439, 447. Landl. & T. p. 349. 
 1 1 Stim. Amer. Stat. L. § 2031. 
 
RENTS. 125 
 
 an action on the covenant or special promise contained in the 
 lease. ^ A similar remedy, given by statutes, though not tech- 
 nically based on rent, is the action in assumpsit for use and 
 occupation, in cases where the relation of landlord and tenant 
 exists and a return for the use of the land is implied but no 
 definite amount is agreed upon.^ It seems to be generally 
 recognized, also, that a proceeding by bill or petition in 
 equity may be had, for enforcing rights arising as or from 
 rent or from the use of realty, when for any reason there is 
 no adequate redress at law.* 
 
 In the liberal methods of procedure permitted by our 
 modern codes, when the reversioner brings an action for the 
 arrears or fruits of the rent, the tenant sometimes defends by 
 denying the existence of any rent ; and the court, if of com- 
 petent jurisdiction, proceeds to try and determine the issue 
 thus raised, which involves both the question of rent and that 
 of the right to its proceeds.* The rent-service per se is thus 
 established in an action purely personal in nature;^ but this 
 should be carefully noted as an outcome of liberal judicial 
 procedure and not allowed to engender any confusion as to 
 the distinction between rent-service and its proceeds or 
 profits. It is also to be carefully noted, however, that the 
 word " rent " is commonly used, in a loose sense, to denote such 
 proceeds or profits ; and that actions are constantly said to be 
 "for the recovery of rent," whether their object be for obtain- 
 ing such fruits or proceeds alone, or for that purpose and also 
 for the establishment of the right. 
 
 1 Thursby v. Plant, 1 Saund. 237 ; Nat. Oil Ref. Co. v. Bush, 88 Pa. St. 
 Ellis B. Rowbothara (1900), IQ. B. 740; 335; Goddard v. Hall, 55 Me. 579; 
 Cross V. United States, 81 U. S. (14 Weaver u. Jones, 24 Ala. 420. 
 Wall.) 479; Kiersted v. 0. & A. R. 8 Cockles v. Foley, 1 Vern. 359; 
 Co., 69 N. y. 343; Greeuleaf v. Allen, Hamero v. Hamero (1894), 2 Ch. 564; 
 127 Mass. 248 ; U. P. R. Co. v. C. R. Pa. R. Co. v. St. L. A. & T. H. R. Co., 
 I. & P. R. Co., 164 111. 88; Brown v. 118 U. S. 290; Borcherling v. Katz, 
 Cairns, 63 Kan. 693. 37 N. J. Eq. 150 ; 2 Taylor, Landl. & T. 
 
 2 Stat. 2 Geo. IV. ch. 19, § 14; §656 et seq. These various remedies 
 N. Y. L. 1909, ch. 52, § 220;Greenl. will be more fully discussed in dealing 
 Cruise Dig. tit. xxviii. ch. i. § 77 ; Gib- with the law of landlord and tenant, 
 son K. Kirk, 1 Q. B. 850, 856 ; 'Osgood t). * Mayor v. Sonneborn, 113 N. Y. 
 Uewey, 13 Johns. (N. Y.) 240; CoUyer 423; Bath Gas L. Co. v. Claffy, 151 
 V. CoUyer, 113 N. Y. 442, 448 ; Codman N. Y. 24 ; Chaplin, Landl. & T. p. 169 
 V. Jenkins, 14 Mass. 93 ; Kline v. Jacobs, et seq. 
 
 68 Pa. St. 57. This form of action will ^ " The appropriate remedy for the 
 
 not lie where the technical relation of recovery of a rent, before the abolition 
 
 landlord and tenant does not exist. of real actions, was by Assize of Novel 
 
 Preston v. Hawley, 139 N. Y. 296 ; Disseisin." Digby, Hist. Law B. P. 
 
 Lloyd V. Hough, 42 U. S. (1 How.) 153 ; (5th ed.) p. 239, note. 
 
126 KINDS OP REAL PROPERTT. 
 
 In most of the states of this country, Nummary proceed- 
 ings for quickly dispossessing tenants, who fail to make the 
 payments when due, are given by statute. They are effective 
 against those who are unquestionably tenants and who can 
 not or do not set up an adverse claim of title. ^ They are not, 
 strictly speaking, a form of remedy for the recovery of arrears 
 of rent, since their only result usually is to put the tenant out 
 of possession ; but the practical outcome of the institution of 
 such proceedings is very frequently to bring about a prompt 
 payment or return which else would have been delayed or not 
 made at all. The same results are often obtained, though 
 more slowly, in an action of ejectment or its equivalent pre- 
 scribed by statute, by which title to the rent, or land, or both, 
 is now ordinarily determined. ^ The common law, and that 
 of most of the United States at the present time, requires a 
 clause of re-entry in the lease or grant, in favor of the lessor 
 or grantor, in order that he may retake possession, or eject the 
 tenant from the land for non-payment of rent.^ The com- 
 mon law was also very minute and exacting in its requirements 
 as to demand for the payment, as a prerequisite to such pro- 
 cedure; but those stringent rules are now generally much 
 modified or entirely abrogated by statutes.* (a) 
 
 (a) In New York the stringent common-law requirements as to demand 
 for payment of arrears of rent were abolished by L. 1805, oh. 95 (based on 
 Eng. Stat. 4 Geo. II. oh. 28), which provided that an action of ejectment 
 " should stand instead of a demand of the rent in arrear." This was found 
 (in 1813) in 1 R. L. ch. 63 (p. 440), § 23, and (in 1830) in 2 R. S. 505, 
 § 30, and is now § 1504, Code Civ. Pro. Again, a very usual clause in 
 common-law leases was that which reserved to the lessor a right of re-entry 
 in default of goods whereon to distrain. By the same act that abolished dis- 
 tress for rent, L. 1846, ch. 247, § 1, it was provided that, where such a clause 
 exists, ejectment may be had for non-payment after fifteen days' notice of 
 intention to begin the action; that statute is now § 1505, Code Civ. Pro. 
 
 The result of these two sections of the Code of Civil Procedure, — §§ 1504, 
 
 1 See N. Y. Code Civ. Pro. §§ 2231- a right of re-entry." Chaplin, Landl. 
 2265 ; 2 McAdam, Landl, & T. ch. 34 ; & T. § 583. 
 
 Chaplin, Landl. & T. p. 539 e( seq. ' Ibid. ; Jackson v. McClellan, 8 
 
 2 Willison V. Watkins, 28 U. S. (3 Cow. (N. Y.) 295 ; Delaneey v. Ganong, 
 Pet.) 43, 48; Jackson !■, Collins, 11 9 N. Y. 9; Jones v. Reilly, 174 N. Y. 
 Johns. (N. Y.) 1, 5; Bradt v. Church, 97, 103, 104. 
 
 110 N. Y. 537; Sand u. Church, 152 * 2 Geo. XL ch. 28; Stim. Amer. 
 
 N. Y. 174; Hall v. Dewey, 10 Vt. 593; Stat. L. §§2020-2040. These common- 
 
 Fusaelman v. Worthington, 14 111. 135. law requirements will be explained in 
 
 " To maintain ejectment for non-pay- discussing the law of landlord and ten- 
 
 ment of rent, the demise must contain ant. 
 a proviso or condition which wiU afford 
 
RENTS. 127 
 
 § 105. To whom Rent-service may be reserved — To ^rhom 
 its Proceeds are payable. — Since rent-service is in return for 
 the land that passes, it must be reserved to the grantor or 
 lessor, or to him and his heirs, and not to a stranger. ^ After 
 being thus reserved, it may be sold or assigned by contract, 
 separate from the reversion, as will be more fully explained 
 hereafter. * When such a rent is reserved generally, without 
 specifying to whom, it belongs to the lessor or grantor; and 
 if he fail to dispose of it and it continue after his death, it 
 passes at his death to the person who could then have taken 
 possession of the land as its owner if the lease or grant had 
 not been made.^ 
 
 Since proceeds or arrears of rent are personal property, 
 while the rent itself is real in nature, if an owner of rent- 
 
 1505, — thus arising from different sources and causes, may be summarized 
 as follows. When a right of re-entry for non-payment is reserved in any 
 form in the lease or grant of the land, and is not made dependent on 
 any default of goods whereon to distrain, ejectment may be had without 
 any demand when six months' rent or more is in arrear, but not before 
 (§ 1504). When the lease or grant contains a clause of re-entry dependent 
 on default of goods whereon to distrain, ejectment may be had as soon as any 
 rent is in arrear " provided a written notice of intention to re-enter was 
 given fifteen days before the commencement of the action,'' — (§ 1505). 
 Martin v. Rector, 118 N. Y. 476 ; Bulger v. Coyne, 20 N. Y. App. Div. 
 225, 227 ; Chaplin, Landl. & T. p. 513 et seq. Of course the remedy under 
 § 1505 is always available, if the instrument contain the clause relative to 
 default of goods whereon to distrain ; for, since no right of distress exists, 
 there always is such default. Hosford v. Ballard, 39 N. Y. 147, 151. 
 These principles and statutes apply in New York to all kinds of rent. 
 But they have been used and discussed most in connection with the per- 
 petual rents reserved on conveyances of the land in fee, because in the 
 more ordinary relation of landlord and tenant summary proceedings afiord 
 a much quicker remedy. Code Civ. Pro. §§ 2231-2265. Such proceedings 
 do not apply to cases of perpetual rents. See notes on New York Manor 
 Lands at the end of Ch. XVII., infra. 
 
 1 Lit. § 346; Gilbert, Rents, 61; tors, or assigns, or to any combination 
 
 Ege V. Ege, 5 Watts (Pa.), 134, 138; of these, the common-law rule is that 
 
 Ryerson v. Quackenbnsb, 26 N. J. L. tbe rent shall cease at the time of tl}e 
 
 236. death of the grantor or lessor. Gilbert, 
 
 *• § 106, infra. Rents, 65 et seq. ; Bac. Abr. Rent (H) ; 
 
 ' 3 Cruise Dig. p. • 278. If, in 2 Th. Co. Lit. 413, n. (K). When rent 
 the reservation, the words " during the is reserved otherwise than by deed to 
 term," or their equivalent be used, the joint tenants, it accriies to all, thus fol- 
 rent passes, at the death of the owner lowing the reversion ; but when the 
 of the land, to those who succeed to the lease is by deed of indenture, the par- 
 reversion ; but if no such words be used, ties are estopped from claiming the rent 
 or the reservation be to the lessor or otherwise than according to the deed, 
 grantor and his executors, administra- Gilbert, Rents, 63, 
 
128 KINDS OP REAL PROPERTY. 
 
 service die after an instalment of the proceeds has become 
 due, it is payable to his personal representatives; but an 
 instalment which is not due at that time is payable, when it 
 does mature, to him who has the reversion at the time of such 
 maturity. Hence, if the lessor owned the land in fee simple, 
 a payment falling due after his death would belong to his heir 
 or devisee, together with the reversion; while if the lessor 
 himself had only an estate for years and sub-let the same 
 reserving a rent-service, such payment so falling due must be 
 made to his personal representatives, since they acquire the 
 reversion in the term of years. ^ 
 
 § 106. Assignment or Transfer of Rent-service. — Since 
 rent-service is incident to the reversion, it passes upon a sale 
 of the latter, unless a contrary intention is expressed. ^ But 
 the reverse of this is not true; i. e., a sale of the rent alone — . 
 the incident — does not by implication carry with it the rever- 
 sion — the principal.^ Hence, if a landlord sell and convey 
 the demised premises subject to the lease, the purchaser 
 acquires thereby, in the absence of special agreement to the 
 contrary, the right to the periodical payments to be made by 
 the tenant. But when the landlord simply sells the right to 
 those periodical payments, i. e. the rent, he retains the 
 ownership of the reversion. Thus, he may sell the rent and 
 retain the reversion, or sell the reversion and retain the rent ; 
 but in order to do the latter he must clearly express his in- 
 tention to that effect. And, when he sells both rent and 
 reversion, he may either do so in explicit terms, or expressly 
 sell the latter and let the law pass the former with it as inci- 
 dent.* It must be added that, at common law, whenever by 
 any such transactions the rent and the reversion come into 
 different hands, the former ceases to be rent-service (because it 
 ceases to be incident to the reversion) and becomes rent-seek.^ 
 
 1 Gilbert, Rents, 66, 67 ; Bac. Abr. * Bennett v. Austin, 81 N. Y. 308 ; 
 Kent (H). MofEatt v. Smith, 4 N. Y. 126 ; Demar- 
 
 2 Walker's Case, 3 Co. 22 ; Bntt v. est v. Willard, 8 Cow. (N. Y.) 206 ; 
 Ellett, 86 U. S. (19 Wall.) 544, 547 ; Beal v. Boston Spring Car Co., 125 
 Van Rensselaer v. Gallup, 5 Denio Mass. 157 ; Daniren v. Amer. L. & P. 
 (N. Y.), 454 ; Stover v. Ghasse, 6 N. Y. Co., 91 Me. 334; Crosby v. Loop, 13 111. 
 Misc. 394 ; Farley ». Craig, 11 N. J. L. 625 ; Co. Lit. 143 a. 
 
 262; Dixon i). NiccoUs, 39 111. 372; * Lit. § 225; Co. Lit. 151; 2 Min. 
 
 Steed V. Hinson, 76 Ala. 298. Inst. 40; Farley v. Craig, 15 N. J. L. 
 
 8 Ards V. Watkins, Cro. Eliz. 637; 192; Demarest v. Willard, 8 Cow. 
 
 Childs V. Clark, 3 Barb. Ch. (N. Y.) 52 ; (N. Y.) 206, 209. 
 Bennett v. Austin, 81 N. Y. 308 ; PfafE - 
 V. Golden, 126 Mass. 402. 
 
RENTS. 129 
 
 § 107. Discharge, Suspension, and Apportionment of Rent- 
 service. — Rent-service has always been favored by the com- 
 mon law, both because it was a natural, and ordinary incident 
 of tenure between lord and vassal or landlord and tenant and 
 because, by bringing new tenants upon the land, it afforded 
 additional strength and protection to the kingdom. Hence, 
 if any change occur in the number or relation of the parties 
 interested in .the land, the rent may be readily extinguished 
 or suspended, in whole or in part, or apportioned among 
 those who are fairly entitled to participate in its fruits. The 
 causes for its discharge or suspension will be first examined 
 and then its apportionment, both as to persons and as to time, 
 will be considered. 
 
 § 108. Discharge of Rent-service. — When the tenant has 
 been evicted from all the leased property, that is when he 
 has been put out of possession either by the act of the land- 
 lord or by some one claiming under the landlord or by the 
 owner of a paramount title, the rent is discharged.^ When 
 he has been evicted from a portion only of the property let to 
 him and has retained possession of the residue, the rent is 
 often discharged only pro tanto, while it continues for the 
 part, if any, which he retains. In this case, however, if the 
 partial eviction be due to the wrong or negligence of the land- 
 lord or of those claiming through him, the tenant may stand 
 upon the principle of entirety of contract and insist on a sus- 
 pension of the entire rent so long as he is thus deprived of 
 any portion of the premises.^ In all cases of eviction, the 
 tenant is liable to the payment of the arrears of rent which 
 became due before the eviction, for the obligation continues 
 as long as the consideration.* 
 
 1 A3con3;h's Case, 9 Co. Kep. 134, evicted, he need not retake possession, 
 
 135; Smith v. Raleigh, 3 Camp. 513; though it become possible for him to 
 
 Lawrence v. French, 25 Wend. (N. Y.) do so. He may, and generally does, let 
 
 443 ; Dyett v. Pendleton, 8 Cow. the eviction extinguish the rent. Ibid. 
 
 (N. Y.) 727; Presby v. Benjamin, 169 ^ Smith v. Malings, Cro. Jac. 160; 
 
 N. Y. 377; Sully v. Schmitt, 147 N. Y. Blair v. Claxton, 18 N. Y. 529 ; Chris- 
 
 248; Brown v. Holyoke W. P. Co., 152 topher v. Austin, 11 N. Y. 216; Edger- 
 
 Mass. 463; Hoereler v. Flemming, 91 ton o. Page, 20 N. Y. 281 ; Fillebrown 
 
 Pa. St. 322; Cheairs v. Coats, 77 JMiss. v. Hoar, 124 Mass 580; Doltont). Sickel, 
 
 846; Warren v. Wagner, 75 Ala. 188; 49 Atl. Rep. 679 (N. J. Sup.); Warren 
 
 Gilbert, Rents, 145. Sometimes this is v. Wagner, 75 Ala. 188; 2 Taylor, 
 
 ■spoken of as a suspension of the rent. Land!. & T. 649. 
 
 because, if the tenant regain his posses- ' Ibid. ; Greenl. Cruise Dig. tit. 
 
 sion during the term, the rent revives xxviii. ch. iii. § 2; O'Brien v. Smith, 
 
 from that time. But, being once wholly 13 N. Y. Supp. 408 ; Johnson v. Barg, 
 
130 KINDS OP REAL PBOPERTY. 
 
 Again, the landlord may release the rent-service to the 
 tenant, or purchase the term, and thus do away with the rent; 
 or, by purchasing the property out of which the rent issues, 
 the tenant may unite the two ownerships and thus cause the 
 rent to cease. Whenever the rent and the property out of 
 which it proceeds thus come into the same hands, at the 
 same time and in the same right, the rent is said to be extin- 
 guished; 1 and sometimes this result is loosely but inaccurately 
 styled a merger of the rent.^ 
 
 § 109. Suspension of Rent-service. — Whenever the com- 
 ing together of the rent and the property which produces it 
 is not absolute, but either conditional or for a portion of 
 the estate only, the rent may be merely suspended for a time 
 and not discharged of extinguished. Thus, if the landlord 
 purchase the tenant's interest on condition and the condi- 
 tion be broken so that the term returns to the tenant, or if 
 having "leased the land for ten years the landlord buy it back 
 for five years, while he so holds it the rent is suspended but 
 revives again upon the return of the land to the tenant.^ 
 
 § 110. Apportionment of Rent-service. — The common law 
 has always favored the apportionment of rent-service among 
 the different persons who were at the same time fairly entitled 
 to its proceeds. But it never permitted such division of any 
 instalment of its proceeds between two successive owners of 
 the land from which the rent issued.* Accordingly, wTien 
 the owner of the reversion of a piece of land, from which rent 
 is issuing as against the tenant, sells it in distinct .parcels 
 to two or more persons, each purchaser thereby becomes 
 
 8 N. Y. Misc. 307. The effects on rent- acre and thus causes the latter to be 
 
 service, produced by the different forms merged or swallowed up by the former, 
 
 of eviction, will be more fully discussed Extinguishment is the absorption of 
 
 in dealing with the law of landlord and one kind of property by another, and 
 
 tenant. ■ is illustrated by the destruction of rent 
 
 1 Greenl. Cruise Dig. tit. xxviii. ch. in this way when the owner of the rent 
 iii. §§ 5, 6 ; 3 Preston, Conv. 201 ; purchase the laud or by the extin- 
 Stephens v. Bridges, 6 Madd. 66 ; Car- guishraent of a mortgage when the 
 roll 7). Ballance, 26 111. 9. But not, if mortgagee buys up the mortgaged, 
 only part of one interest pass to the premises. Bouvier's Law Diet., " Ex- 
 other owner. Martin v. Tobin, 123 tinguishment." 
 Mass 85. ' Gilbert, Rents, 150; Greenl. Cruise- 
 
 - Technically and accurately speak- Dig. tit. xxviii. ch. iii. § 2, n. ; 2 Leake,, 
 
 ing, merger applies only to the absorp- 407 ; IngersoU v. Sergeant, 1 Whart.. 
 
 tion of one estate by another in the (Pa.) 337 ; Martin v. Tobin, 123 Mass. 
 
 same property ; as when the owner of 85. 
 
 an estate in fee simple in an acre of * Greenl. Cruise Dig. tit. xxviii. clu 
 
 land buys up a life estate in the same iii. §§28-43. 
 
RENTS. 131 
 
 entitled to a share of the rent proportionate to the piece of 
 land that he buys ; ^ and, if the owner of leased property devise 
 it to several persons, or upon his death intestate it descend to 
 two or more individuals as his heirs, each becomes in like 
 manner the owner of his pro rata share of the rent.^ So, 
 when the tenant purchases a part of the land from his land- 
 lord, or otherwise acquires it, or the landlord buys back for 
 his own use a part of the land which he has leased, or such 
 part descends upon or is devised or otherwise passed to him, 
 the rent is in like manner divided and continues to issue 
 ratably only out of that portion of the property which still 
 remains leased.^ A single exception to this principle arises 
 when the services or proceeds of the rent are indivisible, as 
 when, for example, for the use of the land the tenant is to 
 deliver a horse to his landlord on the first day of each and 
 every month. In that case, if the landlord buy back a por- 
 tion of the leased property or distribute his reversion, or let 
 it be distributed by operation of law, among several persons, 
 the rent ceases; while if the tenant sell and assign separate 
 portions of the land to strangers, the rent is multiplied and 
 the landlord may obtain as many horses each month as he 
 thus has tenants.* These anomalous results may, of course, 
 be prevented by express agreements or arrangements among 
 the parties. 
 
 On the other hand, rent-service is never apportioned as to 
 time, by the common law ; i.e., it is never divided between 
 successive owners of the reversion so that each can claim a 
 share of an entire payment to be made by the tenant.^ There- 
 fore, when one who owns a rent-service for his life dies dur- 
 ing the period for which the rent is running, as during the 
 quarter, month, or week, and before the instalment of income 
 for that period becomes due and payable, the proceeds are 
 
 1 Moodle V. Garnance, 3 Bulst. 153; Bliss v. Collins, 8 Barn. & Aid. 876; 
 West V. Lassels, Cro. Eliz. 851 ; Bliss Worthington v. Cooke, 56 Md. 51. 
 
 V. Collins, 5 Barn. & Aid. 876 ; Rivis v. * Lit. § 222 ; 1 Inst. 149 a, b ; Gil- 
 Watson, 5 M. & W. 255; Ehrman v. bert, Rents, 165-167; Talbot's Case, 
 Mayer, 57 Md. 612 ; Greenl. praise Dig. 8 Co. Rep. 102 b, 104. 
 tit. xxviii.ch. iii. §§ 28-31. See Church ^ Jenner i;. Morgan, 1 P. Wms. 
 (.. Seeley, 110 N. Y. 457 392; Clun's Case, 10 Co. Rep. 127 a. 
 
 2 Ards I). Watkins, Cro. Eliz. 637, Unlike interest, such rent is not re- 
 651 ; Campbell's Case, 1 Roll. Abr. garded as accruing from day to day, 
 237; Moody v. Garnon, 3 Bulst. 153; but it all accrues and becomes due on 
 Linton v. Hart, 25 Pa. St. 193. the day fixed for payment. 
 
 3 Lit. § 222; Gilbert, Rents, 165; 
 
132 KINDS OP REAL PROPERTY. 
 
 never apportioned by the common law for that period; and 
 neither his heirs nor his personal representatives are entitled 
 to any part thereof.^ If under such circumstances the rent 
 cease at his death — as when the owner of land for life leases 
 it and dies during the time designated for the lease to run, 
 thus terminating both the lease and the rent — the common 
 law does not permit any one to recover the proceeds for any 
 portion of the period then unexpired and the tenant is accord- 
 ingly released to that extent;^ while, if the rent continue 
 notwithstanding the life-tenant's death — as when the lease 
 •was granted by the owner in fee who subsequently conveyed 
 the reversion to such life-tenant for the latter's life — the 
 instalments of proceeds for the period which was running and 
 unexpired when such life-tenant died, is all given by the 
 ■common law to the succeeding owner of the rent.* This defect 
 in the common law has been removed by statutes in England,* 
 and generally in the United States ; ^ so that now rent-service 
 is apportionable, both as to persons and as to time ; and, on 
 the death of a life-owner of a reversion, his personal repre- 
 sentatives are thus made entitled to such proportion of the 
 payment for the period in which he died as the time during 
 •which he lived in that period bears to that entire period, (a) 
 
 (a) In New York, the statute 2 Geo. II. ch. 19, § 15 was practically copied 
 and enacted in 1788 (2 Jones & Var. 241, § 27), and passed into the Re- 
 vised Laws of 1813 (1 R. L. 143)' and into the Revised Statutes of 1830 
 (1 R. S. 747, § 22). That act, as it is finally worded in the Revision of 
 1909 (L. 1909, ch. 52, § 222), provides that: "Where a tenant for life, 
 who shall have demised the real property, dies before the first rent day, 
 or between two rent days, his executor or administrator may recover the 
 proportion of rent which accrued to him before his death." It having 
 been held in Marshall v. Moseley, 21 N. Y. 280, that this act, like that of 
 2 Geo. II. ch. 19, § 15 from which it came, did not correct the diflScuIty in 
 cases where the leases had been made by persons other than the life- 
 owners, the statute, ch. 542, L. 1875, which is now in substance Code Civ. 
 
 1 Last preceding note; Marshall v. sum, and not until the prescribed day 
 
 Moseley, 21 N. Y. 280 ; Wataon v. Penn, of payment, the common law gives it " 
 
 108 Ind. 21, 23; Sohier v. Eldredge, (the income) " to him who is the rever- 
 
 103 Mass. 345. sioner at the time, and no case can be 
 
 ^ Jenner v. Morgan, 1 P. Wms. 392 ; found where a court of equity has 
 
 -Ex parte Cook, 2 P. 'Wras. 501 ; Wood adopted a different rule." Marshall v. 
 
 V. Partridge, 11 Mass. 488, 493; Mar- Moseley, 21 N. Y. 280, 282. 
 shall V. Moseley, 21 N. Y. 280, 281. < 2 Geo. II. ch. 19, § 15 ; 4 Wm. IV. 
 
 3 Ibid. ; Ex parte Smyth, 1 Swanst. ch. 22 ; 33 & 34 Vict. ch. 35. 
 337 ; Greenl Cruise Dig. tit. xxviii. ch. ' 1 Stim. Amer. Stat. L. §§ 2027, 
 
 iii. § 44; Woodfall, Landl. & T. 248. 2028. 
 "'Being recoverable only in a single 
 
RENTS. 133 
 
 § 111. Effects of DestTuction of Buildings, or Injury to 
 them. — A destruction of the leased premises or an injury to 
 them, by any cause not traceable to wrong or neglect on the 
 part of the landlord, does not, at common law, have any 
 effect on rent-service. ^ This also has been remedied in many 
 states, by statutes which enable the tenant to terminate the 
 rent and lease by removing from the premises after the build- 
 ing or buildings have been destroyed without any fault on his 
 part.^ (a) 
 
 b, c. Eent-charge, Bent-seek. 
 
 § 112. Rent-charge — Rent-seek — Definitions and Distinc- 
 tions. — It has always been found convenient, as in the rais- 
 
 Pro. § 2720, swept away all the objectionable features of the common 
 law and made rents wholly apportionable as to time. See also L. 1909, ch. 
 52, §§ 221, 223. 
 
 (a) In New York the statute, which was first enacted as L. 1860, ch. 345, 
 and is now L. 1909, ch. 52, § 227, provides that: "Where any building, 
 which is leased or occupied, is destroyed or so injured by the elements, 
 or any other cause as to be untenantable, and unfit for occupancy, and 
 no express agreement to the contrary has been made in writing, the 
 lessee or occupant may, if the destruction or injury occurred without his 
 fault or neglect, quit and surrender possession of the leasehold premises, 
 and of the land so leased or occupied ; and he is not liable to pay to the 
 lessor or owner rent for the time subsequent to the surrender." The 
 tenancy ceases with such destruction of the premises, unless the tenant 
 elect to remain and retain possession. Such election may be shown by a 
 continued retention of any part of the premises. Decker v. Morton, 31 
 App. Div. 469. But merely retaining possession for a short time, in order 
 to remove debris and the carcasses of burned animals, as required by the 
 board of health, will not show an election to remain as tenant. Fleisch- 
 man v. Toplitz, 134 N. Y. 349 ; N. Y. R. E. & B. I. Co. v. Motley, 143 
 N.Y. 156. See Craig y. Butler, 83 Hun, 286. The landlord can recover all 
 rent due at the time of such destruction. Craig v. Butler, 156 N. Y. 672, 
 affirming 83 Hun, 286 ; Werner v. Padula, 49 App. Div. 135. The statute 
 means physical destruction, and does not include such unfitness for occu- 
 pancy as is caused by small-pox in the house. Majestic Hotel v. Eyre, 53 
 App. Div. 273. See also May v. Gillis, 53 N. Y. App. Div. 393. The tenant 
 may waive this statute, by express terms in the lease ; but unless there is a 
 clear waiver the statute will operate. May v. Gillis, 169 N. Y, 330. See 
 Werner ■;. Padula, 49 N. Y. App. Div. 13o, 138, afi'd 167 N. Y. 611. 
 
 1 Paradine v. Jane, Aleyn, 26; Gilli.i, 169 N. Y. 330. Aud thus also 
 Teller v. Boyle, 132 Pa. St. 56 ; Mur- the tenant is enabled to recover back 
 ray v. Albertson, 50 N. J. L. 167; any part of payments in advance due 
 Greenl. Cruise Dig. tit. xxviii. ch. iii. and made before the destruction of the 
 § 9 ; 1 Taylor, Landl. & T. § 372. building. Werner v. Padula, 49 N. T. 
 
 2 1 Stlm. Amer. Stat. h. § 2062; App. Div. 135, 138, aflE'd 167 N. T 
 Green v. Redding, 92 Cal. 548; May v. 611. 
 
134 KINDS OF REAL PROPERTY. 
 
 ing of marriage portions and other settlements, for the owner 
 of real property to grant out of it and charge upon it the right 
 to certain periodical payments, while he himself retained his 
 entire original estate in the land upon which such right was 
 charged. The species of incorporeal property thus created 
 resembled rent-service in many respects, and in process of 
 time came to be also denominated rents. They have been 
 called improper rents, by a careful writer, because they are 
 not in return for any land that passes.^ Such charges of 
 regular payments or returns upon realty may be made, how- 
 ever, either by retaining the land and granting the rent, or 
 by granting the land and creating against it and specifically 
 charging upon it a rent in favor of the grantor.^ But such 
 rent, whether made in conveying the land or on retaining it, 
 is created as a distinct and separate entity and is not incident 
 to any reversion. Rent which is incident to a reversion must 
 be rent-service, either in its ancient feudal form, or its modern 
 contract form ; and when rent is owned independent of any 
 reversionary interest — held as a distinct thing, not connected 
 with any other right or ownership in the land out of which 
 it issues — it is not rent-service.^ 
 
 When rent is thus specifically charged upon land and not 
 made incident to a reversion, there is never any distress an- 
 nexed to it by the law as of common right.* And, therefore, 
 if the parties desire to have the right to distrain as incident 
 to such rent, they must specifically create and reserve that 
 
 ' "The important diacrimination to ' Therefore, in this country, wher- 
 
 be here made is between rents proper — ever the statute of quia emptores ia in 
 
 that is, rents reserved — on the one force the grantor of an estate in fee 
 
 side, and rents improper — that is, rents simple can not now reserve a rent-ser- 
 
 granted — on the other. Kents proper, vice to himself, because he can keep no 
 
 or rents reserved, are rents reserved reversionary interest to which it can be 
 
 upon a grant of lands. ... A rent incident ; but where that statute has not 
 
 improper, or rent granted, is where a been adopted such a grantor may retain 
 
 certain sum is granted, payable period- for himself a rent-service out of the 
 
 ically, issuing out of the grantor's land. Van Rensselaer v. Chadwick, 22 
 
 lands." ..." This distinction . . . af- N. Y. 32 ; Delancey v. Piepgras, 138 
 
 fords a clue which, in general, suffices N. Y. 26, 39 ; IngersoU v. Sergeant, 1 
 
 to guide the student through whatever Whart. (Pa.) 337; Wallace v. Harn- 
 
 intricacies belong to" this subject. 2 stad, 44 Pa St. 49a. See also § 102, 
 
 Minn. Inst. 35. supra. 
 
 2 Langford v. Selmes, 3 Kay & J. * Lit. §§ 218, 225-228; 2 Blackst. 
 
 220, 229; v. Cooper, 2 Wils. Com. p. * 42; Cornell u. Lamb, 2 Cow. 
 
 375 ; Greenl. Cruise Dig. tit. xxviii, ch. (N. Y.) 652, 659; Farley v. Craig, 15 
 
 i. §§ 6, 7. N. J. L. 192. 
 
RENTS. 135 
 
 right by their own contract or convention. ^ When thia ia 
 done, the rent so charged on the land ia a rent-charge ; other- 
 wise it is a rent-seek.^ Since only corporeal hereditaments 
 can be distrained upon, it ia apparent also that rent-charge 
 must be made to issue out of land. Hence, a rent-charge may 
 be defined as the right to a certain profit issuing periodically 
 out of lands (or tenements corporeal), which is not incident 
 to any reversion and to secure which, usually by the terms of 
 the grant and never as of common right, the land is specially 
 charged with a right of diatress. And a rent-seek may be 
 described as a right to a certain profit issuing periodically out 
 of lands or tenements, which is not incident to any reversion 
 and to secure which there is no right of distress . Since these 
 two classes of rents are so nearly identical — differing only in 
 respect to one kind of remedy, distress — they will be here 
 treated of together. In states like New York, Minnesota, 
 and Wisconsin, where all distress for rent of every kind has 
 been abolished,* there is no difference whatever between 
 them ; or, more accurately speaking, rent-charge no longer 
 exists in such states, and only rent-seek and rent-service 
 remain. 
 
 Rent-charge and rent-seek are sometimes spoken of together 
 as fee-farm rents. They are substantially such, when made 
 to continue in perpetuity. But the term fee-farm rent was 
 used in a somewhat different sense in the early common law 
 (to denote a rent-service reserved on a conveyance in fee) ; 
 and it is also essentially misleading as intended to embrace 
 all rents-charge and rents-seek, for in these rents interests 
 less than fees may be readily created.* 
 
 § 113. General Characteristics of Rent-charge and Rent-seek. 
 — These rents are never incident to any reversion. They 
 stand out distinct from the lands or tenements out of which 
 they issue and may be dealt with as separate entities. Hence 
 the statute of guia emptores did not in any way interfere with 
 the granting or reserving of them in fee simple. They do not 
 
 ^ Last preceding note. By the statute ' 1 Stim. Amer. Stat. L. § 2031; 
 
 4 Geo. II. ch. 28, § 5, the right of dis- § 104, supra. 
 
 tress was given in England for all rents. * " A non-tennrial rent often comes 
 
 See § 104, supra. into being by virtue of a grant. The 
 
 ^ 2 Blackst. Com. p * 42 ; Cornell v. holder of land imposes such a rent upon 
 
 Lamb, 2 Cow. (N. Y.) 652, 659. Kent- his laud in favor of some other persou. 
 
 seek means dry rent, reditus siccus — It may be a rent for life or a rent in 
 
 not having the sap of distress. fee." 2 Poll. & Mait. Hist. Eng. L. (2d 
 
 ed.) p. 130. 
 
136 KINDS OP REAL PROPEETT. 
 
 presuppose any tenure or fealty between the owner of the land 
 and the owner of the rent ; and so they may exist in the same 
 forms and with the same effects where the feudal system has 
 been abolished as in those countries where the theory or prac- 
 tice of that system still remains.^ (a) They and all their 
 incidents are, in fine, the result of express contract or cove- 
 nant between the parties; and, except in so far as statutes 
 have interfered with them, they always have been and still 
 are just what the parties to the covenants have made them by 
 the words which they have employed. Rents of this character 
 are not very common in the United States ; but the reasons 
 which have caused them to be extensively used in England,* 
 
 (a) The operation of the feudal system on the manor lands of New York 
 and the general way in which rent was reserved and retained in connection 
 with the manors are explained hereafter. Note at end of Ch. XVII. There 
 has been much discussion, as to the nature of the rents which that manorial 
 system employed, and as to the remedies and rights connected with those 
 rents. The lands were let out in fee, by the owners (many of whom were 
 called patroons) who held under the king, and perpetual rents were reserved 
 to such owners. These were rents-service; because, although the statute 
 of quia emptores has always operated in New York, yet it was impliedly 
 waived by the king in favor of these perpetual leases. Van Rensselaer 
 V. Hayes, 19 N. Y. 68, 71 ; Delancey v. Piepgras, 138 N. Y. 26, 39. The 
 abolition of all tenure between one citizen and another (in 1787) made such 
 rents in substance rents-charge (at least as to all such rents subsequently 
 created) ; and when distress was taken away (in 1846) they became rents- 
 seek. But it has been clearly held, at first by virtue of the statute, L. 
 180.5, ch. 98, and, after the repeal of that act in so far as it affected such 
 leases in fee (L. 1860, ch. 896), as a principle which had always existed 
 independent of statute, that these perpetual rents run with'the land and 
 bind the heirs and assigns of the original covenantors and can be enforced 
 against them in substantially the same manner as other rents. Van Rens- 
 selaer V. Read, 26 N. Y. 558, 564; Cent. Bk. v. Heydorn, 48 N. Y. 260; 
 Hunter v. Hunter, 17 Barb. 25; Delancey v. Piepgras, 138 N. Y. 26; note 
 at end of Ch. XVII. , infra. The non-payment of rent under any such lease, 
 for twenty years, is now made presumptive evidence of a release of the 
 rents and reversions to the owner of the fee. See L. 1909, ch. 52, § T2, 
 which also provides for a procedure for the establishment of such a release. 
 
 1 They are " non-tenurial." "The non-tenurial rent can be exacted by dis- 
 
 tenurial rent was a redditus : to use a tress, it is a rent-charge ; if not, it is a 
 
 term which comes into use somewhat rent-seek, redditus siccus, or dry rent." 
 
 late in the day, it was 'rent-service.' 2 Poll. & Mait. Hist. Eng. L. (2d ed.) 
 
 But there were other rents; we may p. 129. 
 
 call them ' non-tennrial,' there being no ^ For recent instances of them in 
 
 technical term which covers them all. England, see Pertwee v. Townseud 
 
 These non-tenurial rents fell into two (1896), 2 Q. B. 129; Charity Com'rs d. 
 
 classes, for each of which in coarse of Green (1896), 2 Ch. 811; Blackburne 
 
 time lawyers invent a name. If the i>. Hope-Edwardes (1901), 1 Ch. 419. 
 
RENTS. 137 
 
 such as marriage settlements, settlements in lieu of dower 
 and the raising of portions for children, may operate here; 
 and, with the exception of some restrictions upon the forms 
 of remedy, there is nothing in our law inconsistent with their 
 more general use. (a) 
 
 § 114. Remedies for enforcing Rent-charge and Rent-seek 
 and recovering their Fruits or Proceeds. — Since the common 
 law connects no distress, as of common right, with these 
 rents, if the owner desire to have this remedy he must ex- 
 pressly reserve it by his contract; and, as has been before 
 said, if he do so, the rent is thereby made rent-charge. In 
 England, this remedy as matter of right, has been extended 
 by several statutes to what were formerly rents-seek and also 
 to rents-charge.^ The same has been done in some of the 
 states of this country; while in others, as was above pointed 
 out, all distress for rent of every kind has been abolished.^ 
 
 Whether any right of distress exists or not, he to whom 
 the payment of the profits is due may have an action at law to 
 recover the same from the holder of the property out of which 
 they are payable. He may also generally, by virtue of the 
 contract itself, enter upon the premises and either defeat the 
 title of the holder thereof as for breach of condition, or hold 
 the property until its income pays the amount due.^ The 
 latter is the remedy most commonly provided for in the con- 
 tract.* The form of action, when one is brought, and the 
 
 (a) The Constitution of New York (1894), Art. I. § 13, provides that, 
 " No lease or grant of agricultural land, for a longer period than twelve 
 years, in which shall be reserved any rent or services of any kind, shall be 
 valid." See Mass. Nat. Bk. v. Shinn, 163 N. Y. 360; Stephens v. Rey- 
 nolds, 6 N. Y. 454; Parsell v. Stryker, 41 N. Y. 480; Clark v. Barnes, 76 
 X. Y. 301 ; Parish v. Rogers, 20 N. Y. App. Div. 279. But there is no 
 prohibition against the making of a perpetual rent-seek, issuing out of 
 other kinds of real property. Hawley v. James, 16 Wend. 61, 154 ; Wood- 
 ruff V. Oswego Starch Factory, 177 N. Y. 23, 26 ; Hunter v. Hunter, 17 
 Barb. 25 ; Van Rensselaer v. Plainer, 2 Johns. Cas. 24 ; Van Rensselaer 
 V. Dennison, 35 N. Y. 393 ; Cent. Bk. v. Heydorn, 48 N. Y. 260 ; Bradt v. 
 Church, 110 N. Y. 537. 
 
 1 32 Hen. VHI. ch. 37 ; 8 Ann. eh. §§ 70-72. If he be unable to enter 
 14 ; 4 Geo. II. ch. 28 ; 1 1 Geo. II. ch. 19 ; peaceably, he may have ejectment. 
 
 57 Geo. III. ch. .52. See Blackburne v. * Ibid. In some of the United States, 
 
 Hcpe-Edwardes (1901), 1 Ch. ^19. the right of re-entry for-non-paynient of 
 
 2 s 104 suwra. '^nt is given by statute, and so exists 
 8 jemmott o. Cooley, 1 Lev. 170; independent of any agreement by the 
 
 Greenl. Cruise Dig. tit. xxviii. ch. i. parties. 1 Stim. Amer. Stat. L. § 2054. 
 
138 KINDS OF KEAL PROPERTY. 
 
 extent of the right of entry and its effects depend upon the 
 terms of the instrument by which the rent was created, and 
 may also be much affected by the forms of procedure pre- 
 scribed by the codes of the states in which the lands are situ- 
 ated. And the methods of procedure are generally made by 
 the codes substantially the same for all kinds of rent.^ 
 
 § 115. Reservation of Rent-charge and Rent-seek — Assign- 
 ment of them, and Transfer of the Property out of -which they 
 issue. — The reservation of either of these forms of rent must 
 be to one of the parties to the contract by which it is created, 
 and not to a stranger. The payments of the proceeds are to 
 be either to the person designated in the contract as entitled 
 to them or to his assignee. For such rent may be freely 
 assigned, either in whole or in part, as a distinct and inde- 
 pendent form of property; and if the land out of which it 
 issues be sold the purchaser takes it subject to the rent.^ 
 
 A distinction has been attempted here between a rent re- 
 served and one granted, to the effect that in case of the latter 
 the grantee of the land out of which it was granted should 
 not be charged with the covenant to pay the rent.^ But, in 
 the leading case of Van Rensselaer v. Hayes,* Denio, J. 
 insists that the law was neyer so and quotes with approval 
 the following statement of Sir Edward Sugden: "Covenants 
 ought to be held to run in both directions, with the rent or 
 interest carved out of or charged upon it, " (the land) " in the 
 hands of the assignee, so as to enable him to sue upon them, 
 and with the land itself in the hands of the assignee, so as to 
 render him liable to be sued upon them." And Judge Denio 
 continues: "There seems to be no distinction favorable to the 
 defendant between a perpetual rent-charge granted by the 
 owner of the estate and a like rent reserved in fee by inden- 
 ture, where the grantee covenants for himself and his assigns 
 to pay it." And the law may now safely be said to be that, 
 whether the rent-charge or rent-seek be granted or reserved, 
 the assignee of the rent may recover its propeeds in a proper 
 
 1 See these explained, § 104, supra. the English authorities are the other 
 
 2 Scott V. Lunt, 32 U. S. (7 Pet.) way. See Milnes v. Branch, 5 M. & S. 
 596; Van Kensselaer v. Head, 26 N. Y. 411 ; Brewster v. Kidgill, 12 Mod. 166; 
 558; Van Rensselaer v. Dennisou, 35 Randall v. Rigby, 4 M. & W. 130; 
 N. Y. 393 ; Cook v. Brightly, 46 Pa. St. Spencer's Case, 1 Smith's L. C. p. * 68, 
 439 ; Hannen v. Ewalt,' 18 Pa. St. 9 ; notes. 
 
 McMurphy v. Minot, 4 N. H. 251 ; Sag- ' Brewster v. Kitchin, 1 Ld. Baym. 
 
 den, Vend. & P. (13th ed.) p. 483 ; 1 317, 322. 
 
 Taylor, Landl. & T. § 261. Some of * 19 N. Y. 68, 90, 91. 
 
RENTS. 139 
 
 action, and the grantee of the land becomes bound to pay 
 them.^ 
 
 § 116. Discharge, Suspension, and Apportionment of Rent- 
 charge and Rent-seek. — Changes in tlie relations or interests 
 of the parties concerned are much more apt to cause the dis- 
 charge or extinguishment of rents-charge and rents-seek, than 
 to result merely in their suspension or apportionment. This 
 is because such rents were "against common right," and were 
 looked upon with disfavor by the common law.^ 
 
 § 117. Bischarge of Rent-charge and Rent-seek. — It is 
 accordingly settled that, if the owner of either of these rents 
 purchase the whole or any part of the land or tenement out 
 of which it issues, the rent is entirely extinguished. It is 
 regarded as an entire thing, issuing out of every part of the 
 land, and so is not apportioned.^ So, if the owner of the rent 
 release any part of the land from its burden, the whole rent 
 is extinct.* But these results may be prevented by express or 
 necessarily implied agreements of the parties, entered into 
 at the time of the conveyance or release. Thus, when the 
 owner of the rent purchases a portion of the land, it may be 
 validly stipulated in the deed that the rent shall remain upon 
 the residue ; and, when he releases a part of the land from the 
 burden, the rest may be expressly charged in the deed of 
 release.* Such new contracts are usually treated, however, 
 as creating new rents, after the discharge of the old, rather 
 than as preserving any of the old or former rents. And the 
 result is that the new burdens thus imposed upon the property 
 are subordinate to all existing encumbrances which have 
 attached to it since the creation of the original rents. ^ 
 
 1 Last tfiree preceding notes; Wil- service, which is freely apportionable 
 liams's App., 47 Pa. St. 283, 290; 2 as to persons, or amount. See § 110, 
 Wash. R. P. (6th ed) §§ 1200-1211. supra. In England, the statute 22 & 2-3 
 
 2 Greeul. Cruise Dig. tit. xxviii. ch. Viet. ch. 35, § 10, now makes all of these 
 i- §§ 6, 7, ch. iii, §§ 16-19. rents apportionable when the owner of 
 
 2 Dennett v. Pass, 1 Biug. N. C. 388 ; the rent releases a part of the laud. 
 
 Van Rensselaer v. Chadwick, 22 N. Y. 5 And tlie owner of the land may so 
 
 32, 33; Horner v. Dellinger, 18 Fed. deal with the other parties as impliedly 
 
 Rep. 495 ; Ehrman v. Mayer, 57 Md. to show his acquiescence in the appor- 
 
 612; 1 Co. Inst. 147 b; Gilbert, Rents, tionment. Church v. Seeley, 110 J^. Y. 
 
 152. 457; Farley c.. Craig, 15 N. J. L. 192, 
 
 * Van Rensselaer v. Chadwick, 22 262; 1 Co. Inst. 147 b. 
 
 N. Y. 32,34; 1 Co. Inst. 148 a; ISVin. 5 \ Co. Inst. 147 b; Greenl. Cruise 
 
 Abr. 504; 3 Vin. Abr. 10, 11. Notice Dig. tit. xxviii. ch. iii §§ 20,21; Van 
 
 the radical difference, in these respects, Rensselaer v. Chadwick, 22 N. Y. 32, 
 
 between such rents as these and rent- 3G. 
 
140 KINDS OP REAL PBOPERTY. 
 
 § 118. Suspension of Rent-charge and Rent-seclE, — It fol- 
 lows, from the above discussion, that such rents as these can 
 not be merely suspended, as can rent-service. They must 
 either exist in their entirety or be completely extinguished. 
 If by specific agreement the parties cause a cessation in the 
 lien of the rent for a limited time, they are, in reality, dis- 
 charging the original burden and causing a new one to arise 
 after an interval ; and it is not a suspension of any one con- 
 tinuous rent.^ 
 
 § 119. Apportionment of Rent-charge and Rent-seek. — 
 While the purchase, by the owner of such a rent, of a portion 
 of the land out of which it issues extinguishes it entirely and 
 so can work no apportionment, such is not the result when a 
 part of the land descends to the owner of the rent. In the 
 latter case, he passively becomes owner of some of the land 
 by operation of law, and so the law apportions the rent and 
 retains the pro rata burden upon the residue of the land." 
 So, it has always been held that, by scire facias or execution, 
 a portion of the rent may be taken from the owner thereof, 
 without affecting his title to the residue.^ Again, when the 
 grantee of rent-charge or rent-seek releases a part of it to the 
 grantor or his alienee of the land, or sells a portion of it to 
 a stranger (to whom the tenant attorned at common law, 
 though attornment is now generally abolished by statutes), 
 an apportionment takes place and the holder of the land must 
 pay the proceeds of the rent ^ro rata to the respective owners.* 
 Objections were at one time strenuously urged against such 
 apportionment of rent of any kind, on the ground that it 
 might result in exposing the tenant to several suits or dis- 
 tresses for a thing which was originally entire. But the 
 obvious answer has always been recognized as suflficient, that 
 he may avoid such inconveniences by promptly making the 
 returns or payments when they become due.^ 
 
 What is said above, regarding the apportionment of rent- 
 service as to time, applies also to rent-charge and rent-seek. 
 
 1 Last preceding note. Gilbert, Rents, 165 ; Cook v. Brightly, 
 
 2 Lit. § 224, and Gilbert, Rents, 155, 46 Pa. St. 439, 440. 
 
 156, both cited by Deuio, J., in Van « Rives v. Watson, 5 M. & "W. 255 ; 
 
 Rensselaer v. Chadwick, 22 N. Y. 32, Parley v. Craig, 15 N. J. L. 192, 262; 
 34, 35 ; Crager v. McLaury, 41 N. Y. Greenl. Cruise Dig. tit. xxyiii. ch. iii. 
 219. § 23.' 
 
 s Wotten ... Shirt, Cro. Eliz. 742; 6 Wotten v. Shirt, Cro. Eliz. 742; 
 
 Gilbert, Rents, 164. 
 
RENTS. 141 
 
 It was not permitted by the common law ; but now, in Eng- 
 land and most of the United States, rents of all kinds, annui- 
 ties, dividends, and payments of every description becoming 
 due at fixed periods are made, by statutes, apportionable 
 among the various owners according to the times of their 
 respective ownerships in the periods for which the payments 
 are made.^ 
 
 1 § 110, supra. 
 
CHAPTER VIII. 
 
 (2) FKANCHISBS.- 
 
 § 120. Franchise — Definition. 
 
 § 121. Franchises, general and 
 special. 
 
 § 122. Purposes for which fran- 
 chises exist. 
 
 § 123. How franchises may be 
 acquired. 
 
 § 124. No franchise right ob- 
 tained by implication. 
 
 § 125. How franchises may be 
 lost or destroyed. 
 
 §120. Franchise — Definition. — A franchise is a special 
 privilege, which is conferred by the government on an indi- 
 vidual or corporation and which does not belong to the citizens 
 of the country generally by common right. ^ It is treated by 
 tlie English law as a branch of the king's prerogative, sub- 
 sisting in the hands of a subject;^ and in both that country 
 and this it has generally been classed as real property — an 
 incorporeal hereditament.^ On both sides of the Atlantic, 
 however, there are many instances of franchises, which are 
 property but not hereditaments, and which, if partaking of 
 
 1 Bank of Augusta v. Earle, 38 U. S. 
 (13 Pet.) 519, 595 ; Ashley v. Ryan, 153 
 U. S. 436, 441 ; Curtis v. Leavitt, 15 
 N. y. 9, 170; Retsam i-. Hay, 122 111. 
 293 ; Bridgeport i.. N. Y. & N. H. R. 
 Co., 36 Conn. 255. 
 
 2 Keg. V. County Court Judge (1891), 
 1 Q. B. 792, 2 Q". B. 263; 2 Blackst. 
 Com. p. *37; Greenl. Cruise Dig. tit. 
 xxvii. § 1. 
 
 3 2 Blackst. Com. p. *37; Reg. v. 
 Cambrian R. Co., 6 Q. B. 427 ; Lonis- 
 ville Ferry Co. v. Kentucky, 188 U. S. 
 385, 394; Smith v. New York, 68 N. Y. 
 .'552, 555 ; Lumberville D. B. Co. v. As- 
 sessors, 55 N. J. L. 529, 537 ; Sellers v. 
 Union L. Co., 39 Wis. 525, 527 ; Spring 
 Val. W. Works v. Schottler, 62 Cal. 69, 
 110. The historical reason for treating 
 franchises as real property is doubtless 
 
 in the fact that they were at first uni- 
 formly exercisable only within the 
 limits of lands belonging to their own- 
 ers, and so were readily regarded in 
 very much the same way as the lands. 
 " For the popular mind these things are 
 things. The lawyer's business is not to 
 make them things, but to point out that 
 they are incorporeal. The layman who 
 wishes to convey the advowson of a 
 church will say that he conveys the 
 church ; it is for Bracton to explain to 
 him that what he means to transfer is 
 not that structure of wood and stone 
 which belongs to God and the saints, 
 but a thing incorporeal, as incorporeal 
 as his own soul or the anima mundi." 
 2 PoU. & Mait. Ilist. Eng. L. (2d ed.). 
 p. 124. 
 
FBANCHISES. 143 
 
 the nature of real property at all, must be mere chattels real. 
 Such are special privileges granted to corporations, to con- 
 tinue for a term of years only and then to terminate. Such 
 things could not descend from ancestor to heir, even if they 
 were to become the property of a natural person. Upon his 
 death, they must pass to his executors or administrators, to 
 be applied and distributed as personal property. ^ But, of 
 course, the great mass of franchises, which are granted in 
 perpetuity, are real property and incorporeal hereditaments. 
 It is to be added that this legal use of the word " franchise " 
 must not be confounded with its political use, in which it 
 denotes the right to vote at a public election. 
 
 § 121. Freuicliises, general and special. — With respect to 
 their nature, franchises have been divided into two classes — 
 general and special. A general franchise simply authorizes 
 the carrying on of some kind of business or work, or creates 
 a corporation for such a purpose ; while a special franchise 
 adds to the privileges thus conferred some peculiar or par- 
 ticular right.^ " The general franchise of a corporation is its 
 right to live and do business by the exercise of the corporate 
 powers granted by the state. The general franchise of a street 
 railroad, for instance, is the special privilege conferred by 
 the state upon a certain number of persons known as the cor- 
 porators to become a street railroad corporation and to con- 
 struct and operate a street railroad upon certain conditions. 
 Such a franchise, however, gives the corporation no right to 
 do anything in the public highway without special authority 
 from the state, or some municipal officer or body acting 
 under its authority. When a right of way over a public 
 street is granted to such a corporation, with leave to con- 
 struct and operate a street railroad thereon, the privilege is 
 known as a special franchise, or the right to do something in 
 
 1 Lippencott v. AUander, 27 Iowa, corporate being. Thus, the right to be 
 460; State v. 6a. Med. Soc, 38 Ga. a corporation is always a franchise. 
 608, 626. See Price v. Price, 6 Dana But a right, conferred upon a corpora- 
 (Ky.), 107; 3 Kent Com. p. *459. tion by its charter, to carry on a busi- 
 
 2 Ibid. See People ex rel. Met. St. ness or to do acts which the citizens of 
 R. Co. V. Tax Com'rs, 1 74 N. Y. 4 1 7, 439, the state may do or carry on as of com- 
 which is explained in the next section, mon right, is not a franchise, but 
 § 121, infra; Julian"!). Central Trust merely a corporate power. See State 
 Co., 193 U. S. 93, 106. A franchise w. Minn. Threshing Mfg. Co., 40 Minn, 
 conferred upon an individual or a cor- 213, 225; Peter v. Kendal, 6 B. & C. 
 poration must also be distinguished 703 ; Middlebury Bank v. Edgerton, 30 
 from a mere power given by law to a Vt. 182, 190. 
 
144 
 
 KINDS OP REAL PROPERTY. 
 
 the public highway, which, except for the grant, would be a 
 trespass."^ 
 
 § 122. Purposes for which Franchises exist. — Franchises 
 have been held in England for a great variety of purposes, 
 which are not recognized in this country. Such are rights to 
 hold a court, to have waifs, wrecks, estrays, treasure-trove, 
 royal fish, forfeitures and deodands, and many such privileges 
 peculiar to the English system of government.^ In the United 
 States, also, the purpose and objects for which they may be 
 granted are not restricted ; but those of most importance are 
 the rights to build and maintain ferries, bridges, railroads, 
 and turnpike roads and the right to be a corporation. ^ The 
 last-named franchise is, of course, the one most extensively 
 employed; and it is as multifarious in its aspects as the 
 forms which the ingenuity of man is permitted to give to 
 corporations.* 
 
 1 People ex rel. Met. St. E. Co. v. 
 Tax Com'rs, 174 N. Y. 417, 435. It 
 was held in that case that both kinds of 
 franchises are taxable by the state as 
 propeHy. But Vann, J., adds, in speak- 
 ing of the special franchises, brought 
 under the tax law by statute : " The 
 new property is real estate in name, but 
 not in reality, for it is a mere privilege 
 to do something in public streets and 
 places not permitted to citizens gener- 
 ally," p. 439. See State v. Minn. 
 Threshing Mfg. Co., 40 Minn. 225; 
 E. L. S. Orphans' Home v. Buffalo 
 Hydraulic Assoc, 64 N. Y. 561. 
 
 2 2 Blackst. Com. p. »37. "The 
 realm of medieval law is rich with in- 
 <:orporeal things." 2 Poll. & Mait. 
 Hist. Eng. L. (2d ed.) p. 124. 
 
 ' The question as to what is a ferry 
 has led to some interesting discussion. , 
 "It is impossible, in a general way," 
 «ays the New York Court of Appeals, 
 " to specify to what distance over inter- 
 Tening waters ferries may be operated. 
 A ferry could not be established be- 
 tween New York and Boston, or New 
 York and Newport or Philadelphia. 
 The distance would be too great, and 
 the business of transporting passengers 
 and freight between such distant places 
 would be that of common carriers upon 
 public waters. But when the interven- 
 ing waters are not wide and can be 
 
 traversed at regular and brief intervals 
 by boats adapted to a ferry business, 
 there can be no question that ferries 
 may be established and operated." 
 Then the ferry is a continuation of the 
 highway from one side of the stream, 
 arm of the sea, or other body of water, 
 to the other. Mayor, etc. of N. Y. 
 V. N. J. S. N. Co., 106 N. Y. 28, 30. 
 It was held in this case that a company 
 was doing a ferry business, whose boats, 
 running from and returning to New 
 York City, stopped at several places on 
 Staten Island and two places in New 
 Jersey, making a round trip of about 
 twenty-four miles; that it was a ferry 
 between each of those places and New 
 York City, but was not such between 
 the two places on the New Jersey shore, 
 or between two places on the shore of 
 Staten Island, since between such places 
 the boats did not pass over intervening 
 waters; but as between such places 
 alone it was simply doing the business 
 of a common carrier. See also Peter 
 V. Kendal,' 6 B. & C. 703 ; Roberts v. 
 Washburne, 10 Minn. 23, 27; Conway 
 V. Taylor, 1 Black (U. S.), 603; Mid- 
 land F. Co. V. Wilson, 28 N. J. Eq. 
 537; Collins v. Ewing, 51 Ala. 101. 
 
 * See Memphis R. Co. v. E. R. 
 Com'rs, 112 U. S. 609; Chesapeake 
 & O. R. Co. V. Miller, 114 U. S. 176, 
 185; Grady D. Monlton, 61 Minn. 185; 
 
FRANCHISES. 145 
 
 § 123. How Pranchiaes may be acquired. — In a few in- 
 stances, franchises have been acquired by prescription, and 
 have thus been held by presumed grant from the state. ^ But 
 they are generally granted by express legislative act; and 
 these acts are either general in character, authorizing the 
 acquisition of such rights by any corporations that may be 
 organized and conducted in the manner specified, or they are 
 special statutes, each providing for the giving of particular 
 privileges to designated individuals or corporations. It is 
 now the settled policy of most of the United States to 
 organize corporations and confer upon them their various 
 franchises by means of general statutes, rather than by special 
 legislation. 2 (a) But a franchise, whatever may be its char- 
 acter, must arise from a grant of the sovereign; and it is this 
 fact that distinguishes it from all other kinds of incorporeal 
 property. ^ 
 
 § 124. No Franchise Rights obtained by Implication. — The 
 grant of a franchise, whether made as the result of a general 
 act or by special legislation, constitutes a contract between 
 the state and the individual or corporation. Hence, the pro- 
 vision of the Federal Constitution, which forbids the states to 
 pass any law impairing the obligation of contracts, prevents 
 it from being abrogated or materially altered by state legis- 
 lation without the consent of the other party, unless the right 
 so to do has been expressly reserved.* (5) The franchise, 
 
 (a) " This is done in New York, as follows : The Legislature shall 
 not pass a private or local bill in any of the following cases : . . , Grant- 
 ing to any corporation, association, or individual the right to lay down 
 railroad tracks. Granting to any private corporation, association, or in- 
 dividual any exclusive privilege, immunity, or franchise whatever. 
 
 " Providing for building bridges, and chartering companies for such 
 purposes, except on the Hudson River below Waterford, and on the East 
 Eiver, or over the waters forming a part of the boundaries of the State. 
 
 " The Legislature shall pass general laws providing for the cases enu- 
 merated in this section, and for all other cases which in its judgment may 
 be provided for by general laws." N. Y. Const. (1894), Art. 3, § 18. 
 
 (6) " Corporations may be formed under general laws; but shall not be 
 created by special act, except for municipal purposes, and in cases where, 
 
 Attorney-General v. C. R. Co., 35 Wis. « § 120, supra. 
 
 425; Bridgeport v. N. Y. & N. H. R. * Dartmouth College v. Woodward, 
 
 Co., 36 Conn. 255, 266. 17 U. S. (4 Wheat.) 518. Many states 
 
 1 1 Co. Inst. 114a; 9 Co. Rep. 27 b; reserve the right to alter or abolish 
 Greenl. Cruise Dig. tit. xxvii. § 15. franchises created under their general 
 
 2 1 Stim. Amer. Stat. L. § 441. laws. 1 Stim. Amer, Stat. L. §§ 442- 
 
 10 
 
146 KINDS OP REAL PROPERTY. 
 
 moreover, constitutes a valuable right of property, which 
 can not be directly taken or destroyed, even for public pur- 
 poses by the exercise of the right of eminent domain, unless 
 just compensation is made.^ Thus, if a railroad or bridge- 
 company be authorized by the legislature to so construct a 
 bridge as to occupy the place of a former ferry, or if one turn- 
 pike privilege be directly appropriated or abolished in order 
 to make way for another, the individual or corporation whose 
 property is thus impaired must be fully reimbursed. ^ 
 
 But this principle does not prevent the state from indi- 
 rectly and consequentially impairing or wholly destroying the 
 value of a franchise, by granting similar or antagonistic rights 
 to other parties. The settled rule of constitutional law upon 
 this matter is that public grants are to be strictly construed ; 
 and nothing passes by implication against tlie state, or against 
 any of its departments or agencies of government, in dero- 
 gation of the legislative powers which are requisite to accom- 
 plish the end of their creation.^ It was, accordingly, held 
 that the grant by statute of a franchise to the Charles River 
 Bridge Company to construct and maintain a bridge over that 
 river and to receive toll for a limited period for the use of the 
 same contained no implied engagement by the State of Massa- 
 chusetts, forbidding it to confer upon another corporation — 
 The Warren Bridge Company — the right to construct another 
 bridge over the same river, in the same line of traffic and 
 so near to the first as to divert travel from it and thus to 
 diminish its value. * The only way in which the first corpora- 
 in the judgment of the legislature, the objects of the corporation can not be 
 attained under general laws. All general laws and special acts passed pur- 
 suant to this section may be altered from time to time or repealed." N. Y. 
 Const. (1894), Art. 8, § 1; Mayor v. Twenty-third Street R. Co., 123 N. Y. 
 311; People v. O'Brien, 111 N. Y. 1; People ex rel. W. G. Co. v. Deehan, 
 153 N. Y. 528. 
 
 447. Such reserved rights become in * Fanning v. Gregoire, 57 U. S. (16 
 
 substance part of the contract. Kail- How.) 524 ; Williams v. Wingo, 177 
 
 road Co. v. Georgia, 98 U. S. 359; Rail- U. S. 601 ; Joplin v. Light, Co., 191 D. 
 
 road Co. K. Maine, 96 U. S. 499 ; S. W. S. 150; Metropolitan St. R. Co. i-. 
 
 Mo. Light Co. V. Joplin, 113 Fed. Rep. New York, 199 U. S. 1, 37 ; Brooklyn 
 
 817 ; Inhab. of Palmyra v. Pa. R. Co., City R. Co. v. New York, 199 TJ. S. 48; 
 
 62 N. J. Eq. 601. Water Co. v. Knoxville, 200 U. S. 22 ; 
 
 ^ Ibid. Delancey v. Piepgras, 138 N. Y. 26, 38. 
 
 2 Ibid. ; Central Bridge Co. v. * Charles River Bridge v. Warren 
 
 towell,4 Gray (Mass.), 474; Matter of Bridge, 11 Pet. (U. S.) 420; Tuckahoe 
 
 Kerr, 42 Barb. (N. Y.) 119; N. Y. H. & Canal Co. v. Tuckahoe R. R. Co., 11 
 
 N. R. Co. V. Boston & M. R. Co., 36 Leigh (Va.), 42; Fort Plain Bridge Co. 
 
 Conn. 196; Roberts v. Washburne, 10 v. Smith, 30 N. Y. 44 ; Fall i'. Sutter 
 
 Minn. 23, 28. _ Co., 21 Cal. 237. 
 
FRANCHISES. 147 
 
 tion could have protected itself against such subsequent act of 
 the legislature was by obtaining an express statutory provi- 
 sion to that effect. 1 And it is to be emphasized that even 
 such an express statute could not be constitutionally sustained, 
 if it went so far as to amount to a general abrogation by the 
 legislature of powers entrusted to it for the public welfare.'' 
 
 § 125. How Fraachises may be lost or destroyed. — By 
 surrender, merger, misuser or non-user, franchises may be 
 done away with. If the owner thereof grant or transfer the 
 right back to the state for the purpose of having it cease to 
 exist, the franchise as a piece of property is thereby destroyed 
 by suri-ender. And, when by any means the state acquires 
 for itself the title to such a right, or privilege which it has 
 previously granted, it merges, or is extinguished, into the 
 general right of sovereignty.^ 
 
 If the holder of a franchise misuse it, as by employing it 
 for an illegal purpose or an object not authorized by his 
 charter or grant, the state may take it from him for such 
 violation of duty. When he employs it for the purposes for 
 which it was created and also for other purposes for which he 
 has no legal authority, and it is reasonably possible to distin- 
 guish the legal user from that which is illegal, he will be 
 deprived of the latter only and his rightful franchise will not 
 
 * Last preceding note ; Williams v. of private capital, and secnred its reim- 
 Wingo, 177 U. S. 601. Therefore, a, bursement liy the grant of a charter of 
 city's grant of an " exclusive " fran- incorporation, with the right to take 
 chise to a water company can not be tolls for a limited period ; and tlie pub- 
 impaired by an opposing water plant lie necessity should afterwards require 
 sought to be maintained by the city the creation of another way, the open- 
 daring the life of the franchise. "Vicks- ing of wliich would diminish the profits 
 burg V. Waterworlis Co., 202 U. S. of the first, and so prevent the corpora- 
 453, 469. . tors from receiving the compensation 
 
 2 " Any act of the legislature, dis- intended to be secured to them ; the 
 abling itself from the future exercise state, thus sacrificing the private prop- 
 of powers entrusted to it for the public erty of the corporation for public uses, 
 good, must be void, being in effect a would unquestionably be bound, as a 
 covenant to desert its paramount duty sacred moral duty, to make full in- 
 to the whole people. It is therefore demnity therefor, in some other mode." 
 deemed not competent for a legislature Greenl. Cruise Dig. tit xxvii. § 29, 
 to covenant, that it will not, under any note ; Illinois Cent. R. R. v. Illinois, 
 circumstances, open another avenue for 146 U. S. 387 ; Saunders v. N. Y. C. & H. 
 the public travel within certain limits, R. R. Co., 144 N. Y. 75 ; Watuppa B. 
 or a certain term of time; such covenant Co. w. City of Fall River, \hi Mass. 305. 
 being an alienation of sovereign powers ° This is called in England a de- 
 and a violation of public duty. etruction of the franchise " by merger 
 
 " But if, in order to provide suitable in the crown." Greenl. Cruise Big. tit 
 
 public ways, the state has availed itself xxvii. § 16 ; 1 Crabb, Real Prop. § 731. 
 
148 KINDS OF BEAL PROPEETT. 
 
 be forfeited ; but when the two are so related or blended that 
 the unlawful part can not be readily separated from that which 
 is lawful, the misuser results in a forfeiture of the entire 
 privilege.^ 
 
 So non-user, or failure of the owner to enjoy a franchise, 
 for such a period of time as to raise a presumption that he 
 does not intend again to exercise the right, may result in a 
 forfeiture. Since all franchises in the United States are 
 granted for some public utility, it is in a broad sense true 
 that an unreasonable non-user is also a misuser, and hence, 
 under such circumstances, the state is justified in entirely 
 depriving the wrongdoer of his franchise. ^ The length of 
 time which is sufficient to establish such a non-user must 
 vary, of course, according to the nature of the franchise itself 
 and the circumstances under which it is enjoyed, a very short 
 time sufficing when the public is greatly inconvenienced, and 
 a discontinuance of the enjoyment of the right for even many 
 years being insufficient when the public welfare is but little 
 affected thereby.^ 
 
 ^ Thus, " where a person has a f ran- since no one can tell on which two of the 
 
 chise to hold a market every week, on three days he legally holds the fair, 
 the Friday, and he holds it on the Fri- ^ cjty of London u. Vanacre, 12 
 
 day and the Monday, in this case nothing Mod. 270, 271; BrowneU v. Old Col. 
 
 shall be forfeited but that which he hath R. R., 164 Mass. 29; Greenl. Cruise 
 
 purprised. But he who has a fair to Dig. tit. xxvii. §§ 20-26. 
 hold two days, and holds it three days, ' Brownell v. Old Col. R. R., 164 
 
 forfeits the whole." Greenl. Cruise Mass. 29 ; Chadwick v. Haverhill Bridge, 
 
 Dig. tit. xxvii. § 21 . And the reason 2 Dane Abr. 686 ; Willoughby v. 
 
 is, manifestly, that, while in the former Horridge, 12 C. B. 742, 747; Ferrel 
 
 case the good can be separated from the v. Woodward, 20 Wis. 458, 461. 
 bad, in the latter this can not be done. 
 
(3) EASEMENTS AND SERVITUDES. 
 CHAPTER IX. 
 
 EASEMENTS. KINDS. HOW CREATED. 
 
 § 126. Easements defined. 
 
 § 127. Analysis of definition. 
 
 § 128. Servitudes defined. ' 
 
 § 129. Classes of easements and 
 servitudes. 
 
 § 130. How easements may be 
 acquired. 
 
 a. Easements created by Express 
 Grant. 
 
 § 131. Express grant of ease- 
 ments. 
 
 §132. Express grant by covenant 
 or condition in deed. 
 
 § 183. Maps or plans showing in- 
 tended grant. 
 
 § 134. Express grant of ease- 
 ments appurtenant to land. 
 
 b. Easements created by Reservation. 
 
 § 135. Reservation explained. 
 
 § 136. Reservation distinguished 
 from exception. 
 
 § 137. Requisites of reservations 
 of easements. 
 
 c. Easements created by Implied 
 Grant or Implied Reservation. 
 
 § 138. Implied grant or implied 
 reservation. 
 
 § 139. (a) From severance of en- 
 tire tract and conveyance of part. 
 
 § 140. Severance and implied 
 grant. 
 
 § 141. Severance and implied 
 reservation. 
 
 § 142. Classes of easements cre- 
 ated by implied reservation. 
 
 § 143. (b) Ways of necessity. 
 
 § 144. Founded on necessity. 
 
 § 145. Termination — S u s p e n- 
 sion. 
 
 § 146. Location and change. 
 
 § 147. To what extent they may 
 be used. 
 
 § 148. (c) Equitable easements. 
 
 § 149. Their requisites. 
 
 § 150. Forms of contract from 
 which they arise. 
 
 § 151. By and against whom they 
 may be enforced. 
 
 § 152. When they terminate. 
 
 d. Easements created by Prescription. 
 
 § 153. Prescription explained. 
 
 § 154. History of prescription. 
 
 § 155. Nature of user requisite 
 to prescription. It must be : 
 
 § 156. (a) Open, visible, and no- 
 torious. 
 
 § 157. (b) Continuous and uni- 
 form. 
 
 § 158. (c) Peaceable and unin- 
 terrupted. 
 
 § 159. (d) With adverse claim of 
 right. 
 
 § 160. (e) With acquiescence of 
 owner of servient land. 
 
150 
 
 KINDS OF REAL PROPERTY. 
 
 § 161. (f) Against landowner who 
 was seised in fee. 
 
 § 162. (g) Against one free from 
 disability. 
 
 § 163. Prescription rests on pre- 
 sumed grant or other legal origin. 
 
 § 164: No prescription where no 
 grant can be presumed. 
 
 § 126. Easements — Definition. — In modern law, the word 
 " easement " is frequently employed, in a very loose sense, to 
 denote any right or privilege which one person has over the 
 land of another. In the early common law it was employed, 
 with more care and precision, to describe a class of rights 
 around which definite and logical legal principles have crys- 
 tallized.i Not all of those principles are wholly applicable to 
 many of the privileges and immunities which are now fre- 
 quently styled easements. It, therefore, conduces to clear- 
 ness of conception, and ease in understanding the kinds of 
 incorporeal hereditaments now to be discussed, first to define 
 and explain the strict, technical, common-law easement and 
 then to examine those other similar, but broader and looser 
 rights, which, for want of a better term, may be described by 
 the generic civil-law word, servitudes. We may, in the first 
 place, then, define a common-law eajsement as follows : 
 
 An easement is a privilege without profit (i. e., without 
 profit h prendre, or the right to take anything from the land), 
 acquired by grant or prescription, which privilege the owner 
 of one piece of land, called the dominarit tenement, has over 
 another piece of land, called the servient tenement. "The 
 essential qualities of easements, " says Mr. Washburn, " are 
 ihese: 1st, they are incorporeal; 2d, they are imposed on 
 corporeal property, and not upon the owner thereof ; 3d, they 
 confer no right to a participation in the profits arising from 
 such property; 4th, they are imposed for the benefit of cor- 
 poreal property; and 5th, there must be two distinct tene- 
 ments, — the dominant, to which the right belongs, and the 
 -servient, upon which the obligation rests. " ^ And he might 
 well have added here, as he does in other connections,^ 6th, 
 they are always acquired, either by some form of grant, or by 
 prescription which presupposes a grant. Illustrations of 
 easements are: a right of way, i. e., a privilege of walking, 
 driving, or otherwise going over another's land; a right to 
 drain water or have it flow over another's soil; a right to 
 
 1 Digby, Hist. Law E. P. (5th ed.) 
 pp. 181-191 ; 2 Poll. & Mait. Hist. Eng. 
 Law (2d ed.) p. 145. 
 
 - " Wash. Ease, and Serv. p. 3. 
 
 > Wash. Ease, and Serv. pp. * 7, * 20^ 
 *21. 
 
EASEMENTS. KINDS. HOW CREATED. 151 
 
 light, air, or prospect or view across neighboring property ; a 
 right to foul or pollute the air, or a stream, and many other 
 similar privileges. 
 
 § 127. Analysis of Definition. — It is to be noted,, in the 
 first place, that an easement is a privilege without profit — 
 without authority to take anything from the soil or land over 
 which the right exists. It is thus distinguished from Si. profit 
 h prendre, or the right to take something of value, such as 
 grass, turf, gravel, or marl from the land itself. An ease- 
 ment may be very valuable and produce much income or profit 
 for its owner. But the value must consist in the mere privi- 
 lege of using the land, as by walking, or driving, or looking 
 across it, and not in the right to abstract anything from the 
 soil of the servient tenement, or its products, or the structures 
 or erections thereon. The right to drive from one's own land 
 over the land of one's neighbor is an easement; but the right 
 to let the horses graze as they go over .such neighboring land, 
 or the right to take sea-weed or ice from another's prop- 
 erty, is a profit ti prendre, and not an easement.^ Again, an 
 easement is a privilege without profit, acquired iy grant or 
 prescription. Since a prescriptive right rests upon the pre- 
 sumption of a grant, it is sometimes said, with accuracy, that 
 all easements are obtained by grant, either express, implied, or 
 presumed. This fact distinguishes them from mere licenses, 
 and from those natural and customary rights which rest upon 
 no express grant and for which no grant can be presumed. 
 A license to one person to do an act or series of acts upon 
 land of another is merely a permission given by parol, confers 
 no interest in or over the land itself and is ordinarily revoc- 
 able by the licensor at any time before it has been wholly 
 executed ; while an easement, being created by grant, always 
 includes an interest in the land over which it is to be enjoyed 
 and can be enforced by its owner even against the will of the 
 holder of the servient tenement. Those natural rights, more- 
 over, such as adjacent riparian proprietors along a stream or 
 the seashore have reciprocally against each other, or adjoin- 
 ing owners of lands have for the lateral or subjacent support 
 of their soil, are not, strictly speaking, easements, since they 
 
 1 Hill V. Lord, 48 Me. 83, 99 ; Hnnt- is not an easement, since such a convey- 
 
 ingdon u. Asher, 96 N. Y. 604 ; Huff v. ance excludes the grantor, and is in 
 
 McCanley, 53 Pa. St. 206, 209. effect a conveyance of the soil itself. 
 
 A grant of the exclusive use of land Buszard v. Capel, 8 B. & C. 141. 
 
152 KINDS OF REAL PROPERTY. 
 
 exist without grant or prescription. ^ It should be added that 
 the grant by which an easement is acquired is ordinarily 
 private and that, even when it is public, it imposes upon the 
 grantee no special duty or obligation to the public or any part 
 of it; and it is this fact that distinguishes easements from 
 franchises. 2 
 
 Lastly, an easement is a privilege without profit, acquired 
 by grant or prescription, which privilege the owner of one piece 
 of land, called the dominant tenement, has over another piece of 
 land, called the servient tenement. . Not only must there be two 
 distinct and separate pieces, but the privilege must be wholly 
 in favor of the one and against the other as a burden. Hence, 
 the rights to light, air, and access, which adjoining owners 
 have in streets and highways, and the right of passing over 
 them, which inheres in the general public, are not easements, 
 nor are the rights of access to natural streams and the right 
 to their uninterrupted flow in an unpolluted condition, which 
 are owned by riparian proprietors. Such rights are servi- 
 tudes, as appears hereafter ; but they are not easements, since 
 they do not require for their existence two separate and dis- 
 tinct tenements, the one wholly dominant and the other wholly 
 servient. ^ An easement exists for the benefit of the dominant 
 
 1 Speaking of such rights and privi- ^ The distinctions between such 
 leges as these, Earl, J., says, in Scriver rights as these and easements were 
 V. Smith, 100 N. Y. 471, 479: "Such emphasized and applied by the New 
 rights have some semblance to ease- York Court of Appeals in Stevens v. 
 ments, and no harm or inconvenience N. Y. El. R. Co., 130 N. Y. 95. It 
 cfin probably come from classifying is a settled principle of common-law 
 them as such for some purposes. But easements that if, in favor of one lot 
 they are not in fact real easements. of land A have an easement over B's 
 Every easement is supposed to have its land, such, for example, as a right of 
 origin in grant or pre.scription, which way, and A purchase another distinct 
 presupposes a grant, and it is quite ab- lot adjoining that in favor of which the 
 surd to suppose that the owner of land, way exists, he can use the way not for 
 at the head of a stream, has an ease- the benefit of both lots but only for that 
 ment by grant or prescription for its for which it originally existed. Now, 
 flow over all the land of the riparian in the above-cited case, M owned a lot 
 owners for many miles to its mouth. of land fronting on the east side of 
 Would any of the usual covenants in Pearl Street in New York City and ex- 
 it deed be violated because a natural tending from the centre of that street 
 stream of water flowed through the half way through the block to the next 
 land, and the upper owners, therefore, street to the east — Water Street, — and 
 had an easement in such land t Clearly in favor of such lot he enjoyed all the 
 not." Also Huyck v. Andrews, 113 street rights in Pearl Street. Subse- 
 N. Y. 81, 85; Village of Haverstraw v. queutly, he bought the adjoining lot in 
 Eckerson, 1 92 N. Y. 54, 59. the rear, thus obtaining one continuous 
 
 2 See § 120, supra. strip from the middle of Pearl Street to 
 
EASEMENTS. KINDS. HOW CREATED. 
 
 153 
 
 owner alone, and the servient tenant acquires thereby no 
 reciprocal rights and has no chose in action for its discon- 
 tinuance. Thus, when the easement consists in the right to 
 discharge water, in an artificial stream, over the land of 
 another, though the water may be advantageous to the ser- 
 vient tenant, yet the latter acquires no right to have the flow 
 continued, nor any right of action because the stream is subse- 
 quently diverted or entirely stopped.^ 
 
 § 128. Servitudes — defined and explained. — In the civil 
 law, the word servitude is used, in its general significance, 
 to denote the subjection of one person or thing to another 
 person or thing. A personal servitude is the subjection of 
 one person to another; a mixed servitude is the subjection of 
 a thing to a person or vice versa; a real or proedial servitude is 
 a charge or burden laid on one piece of land for the use and 
 utility of other land belonging to another proprietor.^ The 
 last-named form is employed generally to describe any such 
 charge or burden, and its proper use by common-law writers 
 is with the same broad signification. Hence real or prsedial 
 servitudes embrace (1) All common-law easements, as above 
 
 the middle of Water Street. After he 
 had built a warehouse ou the entire 
 strip between those two streets, the 
 elevated railroad was constructed on 
 Pearl Street, and he sued the railroad 
 company for the damages thus caused 
 to his entire warehouse. It was con- 
 tended, in behalf of the defendant, that 
 his recovery must be limited to com- 
 pensation for the damages caused by 
 the railroad to that half of the ware- 
 house which stood upon the lot origi- 
 nally owned by him and fronting on 
 Pearl Street, and the above-stated prin- 
 ciple as to easements was invoked in 
 favor of this contention. But it was 
 held that he should recover compensa- 
 tion for the damages to the entire struc- 
 ture, since the street rights invaded by 
 the elevated structure were not easements. 
 Pollett, J., writing the opinion, said ; 
 " The characterization of these street 
 rights as easements and the implying 
 that they are governed by the rules and 
 are subject to the limitations of com- 
 mon-law easements tends to obscure the 
 rights of abutting owners on the one 
 hand and of the corporation on the 
 
 other. They may be easements, in tlio 
 sense that the owner of land is some- 
 times said to have an easement for lat- 
 eral support in adjacent land, or that 
 the owner of land bordering on navi- 
 gable waters having certain private 
 rights to the shore is sometimes said to 
 have an easement, but in neither case 
 are the rights common-law easements. 
 There is no dominant nor servient 
 estate, and the rules applicable to ease- 
 ments have not generally been applied 
 to such rights." These rights, how- 
 ever, are constantly called easements 
 by the New York Court of Appeals, as 
 well as by the other courts generally. 
 See Ely V. Edison Elec. Ilium. Co., 172 
 N. Y. I ; Story v. N. Y. El. R. Co., 90 
 N. Y. 122 ; Knoth v. Manhattan R. Co., 
 187 N. Y. 243, 252; Farrell v. Lock- 
 hart, 210 U. S. 142, 148. But, as in 
 the Stevens case, when the distinction 
 becomes material, they make it in 
 nomenclature. 
 
 ^ Mason v. Shrewsbury & S. R. Co., 
 6 Q. B. 578, 587; 10 Eng. Rul. Cas. 22, 
 30. 
 
 '^ Bouvier Law Diet., "Servitude." 
 
154 KINDS OP REAL PROPEETT. 
 
 explained ; (2) All forms of profit h prendre, or rights to take 
 something from the land itself; and (3) All those natural, 
 legal, and customary rights above mentioned, such as the 
 reciprocal rights of proprietors along streams or highways, 
 which are not common-law easements and which do not carry 
 with them the privilege of taking anything from the land 
 itself. For the sake of convenience, this last class of rights 
 will he designated in the following pages simply as servitudes, 
 and they will be treated of in connection with easements. A 
 separate discussion will be devoted to the subject of profit in, 
 prendre. 
 
 It is to be added that the word servitude, as used in its 
 general sense by the civilians and very frequently by common- 
 law writers, looks more to the burden on the land than to the 
 right or privilege. Thus, an easement is, in a liberal sense, 
 a form of real' or prsedial servitude; but, more strictly, an 
 easement is the privilege or right looked at from the stand- 
 point of the owner of the dominant tenement, while from the 
 point of view of the owner of the servient tenement it "is a 
 servitude. 
 
 In our discussion, then, of all those rights and privileges, 
 which one person may have in the land of another, and the 
 burdens which the latter must endure, there will be in reality 
 . three topics involved ; namely : First, Easements, as above 
 defined and explained; Second, Those other rights and bur- 
 dens similar to easements, for which somewhat illogically but 
 for the sake of convenience and for want of a better term the 
 generic word " servitudes " will be used ; and Third, Profit b, 
 prendre. The first two of these, being similar in most par- 
 ticulars, will be largely treated of together, but care will be 
 taken to point out the distinctions between them as the discus- 
 sion progresses. It should be said in passing that the second 
 division properly includes a class of rights which are com- 
 monly called easements in gross. These are rights granted to 
 or otherwise acquired over another's land by some individual 
 as such and without regard to his ownership of any land, that 
 is to say there is no dominant tenement, the right being at- 
 tached to the person and not to any land whatever. 
 
 § 129. Classification of Easements and Servitudes. — Ease- 
 ments are either affirmative or negative; and the same classi- 
 fication may be extended to servitudes generally. They are 
 afiirmative when their owner has a positive right to do some 
 
EASEMENTS. KINDS. HOW CREATED. 155 
 
 act or series of acts upon the land on which the burden rests, 
 as the right to pass over it, or to let water drip upon it from 
 the eaves of his house. They are negative when they consist 
 in the right to restrain the owner of the servient property 
 from doing or permitting thereon that which might otherwise 
 be lawfully done. Such are rights to prevent one from build- 
 ing on his own land, to restrain him- from digging away his 
 soil so as to endanger the foundations of a house standing on 
 the dominant tenement, and to preclude him from building 
 except in a specified manner, or from carrying on certain 
 designated trades or kinds of business in themselves legal 
 and permissible. 1 
 
 Again, easements are either apparent or non-apparent, 
 which distinction practically defines itself, and which applies 
 to other servitudes as well. A right of way, or a right to 
 swing shutters over one's neighbor's land, is an apparent 
 easement, since in the act of enjoying it its owner may be 
 readily seen; while the privilege of using a hidden, under- 
 ground drain through another's soil is, of course, non-appar- 
 ent in character. 
 
 All easements and servitudes are also classified as con- 
 tinuous and discontinuous, which classes are thus defined : 
 "Continuous are those of which the enjoyment is or may be 
 continued, without the necessity of any actual interference by 
 man, as a waterspout or a right of light or air. Discontinu- 
 ous are those the enjoyment of which can be had only by the 
 interference of man, as rights of way, or a right to draw 
 water. " ^ 
 
 Easements have been further divided into appurtenant 
 (sometimes called also appendant), and in gross. An ease- 
 ment is appurtenant when it is for the benefit of the property 
 of the grantee. In that case, it is an assignable right and, if 
 it be sufficiently great in quantity, it is inheritable with the 
 dominant tenement. Strictly and accurately speaking, all 
 easements properly so called (i. e., all common-law ease- 
 ments), are appurtenant, since they are for the benefit of the 
 
 1 All the forms of equitable ease- ' Lampman v. Milks, 21 N. Y. 505 ; 
 
 ments, hereafter explained, are negative. Durel v. Boieblanc, I La. An. 407. 
 
 See § 148, infra ; also Talmadge v. East This classification of servitudes is 
 
 River Bank, 26 N. Y. 105; Equitable made by the Code of France and is 
 
 Life Assur. Soc. v. Brennan, 148 N. Y. recognized and applied with important 
 
 661 . results by the common-law courts. See 
 
 §§ 139, 140, infra. 
 
156 KINDS OF REAL PROPERTY. 
 
 corporeal dominant tenements upon which their existence 
 depends.^ It follows that the expression, "easement in 
 gross " is a misnomer ; but it is, in fact, used by judges, legal 
 writers and the profession generally to describe a right over 
 another's property, not appurtenant to any land, but simply 
 belonging to its owner as an individual, i. e., where there is 
 a servient tenement but no dominant, the right or privilege 
 being attached to the person and not to any land whatever. ^ 
 We may, therefore, employ the expression, but with the 
 understanding that it denotes a servitude and not a common- 
 law easement. ^ An easement appurtenant is preferred to one 
 in gross; and a grant or reservation will not be construed as 
 creating the latter kind when it can reasonably be held to be 
 for the benefit of any land of the grantee. Thus, a right of 
 way, which leads to the grantee's land and is useful in con- 
 nection with it, is appurtenant to such land, and this, al- 
 though the land is not mentioned in the deed by which the 
 way is created or transferred. So, where one conveyed to 
 another a parcel of land; and on the same day granted to 
 him, "his heirs and assigns, and tenants and occupiers," a 
 right of way over a strip of ground adjoining the property 
 already transferred to him, which way led to such property, 
 it was held that the right of way was'appurtenant to the land 
 already conveyed.* 
 
 Easements and servitudes are sometimes classified as 
 natural, legal, customary, and conventional. But all common- 
 law easements are conventional, that is, they are the result 
 of contract, or convention between the parties from which 
 arises a grant express or implied. On the other hand many 
 servitudes, which are not easements, exist by nature or arise 
 by operation of law or by, custom, without any contract or 
 convention express or implied between the parties interested 
 
 1 See Longendyke v. Anderson, 101 of the term it is useless to attempt to 
 
 N. Y. 625, 629; Parish v. Baird, 160 establish a refinement of definition in- 
 
 N. Y. 302; analysis of definition of ease- tended to do away with the term." 
 
 ments, § 127, supra. Jones on Easements, § 33. See Crippen 
 
 " " It has sometimes been said that v. Morse, 49 N. Y. 63 ; Valentine v. 
 
 there is no such thing as an easement Schreiber, 3 N. Y. App. Div. 235 ; Met- 
 
 in gross ; that a privilege not appurte- calf v. Central Brook Park Ass'n, 63 
 
 nant to land is not an easement. The N. Y. App. Div. 445. 
 term 'easement in gross' is used be- ' See servitudes, defined and ex- 
 
 canse it is a term in general use by plained, § 128, supra. 
 legal writers, by judges and by the * Moll v. McCauley, 83 Iowa, 677. 
 
 profession; and as against such usage 
 
EASEMENTS. KINDS. HOW CREATED. 157 
 
 in or affected by them. Thus, a natural servitude is illus- 
 trated by the burden to which a lower field is subject, to 
 receive the surface water which flows upon it from higher 
 ground ; ^ the obligation of the owner of the soil of a street or 
 highway to let the public use the same, which obligation 
 arises when the highway is created by public authority, is a 
 sample of a legal servitude ; and the burdening of pieces of 
 land in favor of the rights of the inhabitants of certain locali- 
 ties or villages to dance and play games on the same have 
 afforded a few instances of servitudes arising from custom.^ 
 These various forms of servitudes will be more fully examined 
 in discussing the methods by which such incorporeal rights 
 and obligations are created. 
 
 § 130. How liasements may be acquired. — Basements have 
 been defined as privileges acquired by grant or prescription. 
 And prescription, or adverse enjoyment of some burden on 
 another's land for the requisite length of time, may bring 
 these rights into existence because it rests upon the presump- 
 tion of a grant, which has been lost or destroyed and therefore 
 can not be directly proved. The grant, then, or transfer of 
 the right or privilege by deed, is actually or presumptively at 
 the foundation of all common-law easements. Parol license, 
 permission, or acquiescence can not ordinarily create or trans- 
 mit them. Thus, ^n oral promise to allow one to send water 
 through a drain on the promisor's land,^ or to take water 
 from his aqueduct,* or to maintain an embankment upon the 
 premises for the benefit of the promisee,^ though founded upon 
 a valuable consideration, does not at law run with the land 
 nor create an easement therein. 
 
 In some states a parol agreement for an easement is sus- 
 
 1 Laumier v. Francis, 23 Mo. 181. ^ Fitch v. Bawling, 2 H. Blackst. 
 
 "The French law reckons five natural 393; Brakely w. Sharp, 1 Stockt. (N.J.) 
 
 servitudes ; namely, 1. The flowing of 9 ; Lockwood v. Wood, 6 Q. B. 31, 66 ; 
 
 water from higher to lower land. 2. The Day w. Savadge, Hob. 85; Gateward's 
 
 right to a spring or fountain of water Case, 6 Rep. 60 ; Smith v. Gatewood, 
 
 on the part of the owner on whose Cro. Jac. 152; Mounsey b. Ismay, 3 H. 
 
 land it rises. 3. The right of a land- & Colt. 486, 492, 498. 
 
 owner to a watercourse flowing through ' Wiseman v. Lucksinger, 84 N. Y. 
 
 or forming a boundary of his land. 31. 
 
 4. The fixing and maintaining boun- * Cronkhite v. Cronkhite, 94 N. Y. 
 
 daries between lands of adjacent own- 323 ; Taylor v. Gerrish, 59 N. H. 569, 
 
 ers; and 5. Building and maintaining 570. 
 
 fences for separating the lands of dif- ' Banghart v. Flummerfelt, 43 N, J. 
 
 ferent owners. 1 Lepage Desgodets, L. 28. 
 15." Wash. Ease, p.* 15. 
 
158 
 
 KINDS OF REAL PROPERTY. 
 
 tained in equity, when it is founded upon a valuable consid- 
 eration and there has been such a part performance of the 
 contract by the promisee as would take the case out of the 
 statute of frauds if it were a contract for the purchase and 
 sale of land.^ And a very few states, such as Pennsylvania 
 and Iowa, go even further than this and hold that a mere 
 executory, parol license, on the faith of which the licensee 
 has done work, incurred expense, or otherwise materially 
 changed his position, can not be revoked at the will of the 
 licensor alone, but becomes enforceable as an interest in the 
 land, and, therefore, is in effect an easement.^ This last 
 doctrine, however, is 'pro tanto a repeal of the statute of frauds 
 by the courts and is discountenanced in England and most 
 of the United States. " A parol license to perform an act on 
 the land of another, while it justifies anything done by the 
 licensee before a revocation, is, nevertheless, revocable at the 
 option of the licensor, and this although the intention was to 
 
 1 " The doctrine' that equity will in- 
 terfere in some cases of oral license in 
 order to prevent great damage arising 
 to the licensee from the revocation of 
 the license appears to be gaining ground. 
 . . . The principle is that where two 
 persons have entered into a complete, 
 sufficient, and legal contract, for a 
 license, which contract is not only 
 founded upon a valuable considera- 
 tion, but of which the terms are de- 
 fined by satisfactory proof, and accom- 
 panied by acts of part performance 
 unequivocally referable to the supposed 
 agreement, equity will regard such a 
 contract for a license as creating an 
 easement, and will enforce the ease- 
 ment either by compelling the grantor 
 to give a deed of the easement, or by 
 restraining him from interfering with 
 the grantee in his enjoyment of the 
 right acquired by the contract. The 
 terms of the contract, however, must be 
 plain and definite. If they are indefinite, 
 as if it is doubtful whether the license 
 is to be for life, or at the pleasure of 
 the grantor or otherwise, equity will 
 not enforce the agreement, or if the 
 evidence is too vague to establLih any 
 agreement, or if the acts of part per- 
 formance are not so clear, definite, and 
 certain in their object and design as to 
 
 point exclusively to a complete and per- 
 fect agreement, of which they are a 
 part execution." Wash. Ease. (4th ed.) 
 p. 29, p. *18, citing Dempsey v. Kipp, 
 61 N, Y. 462 ; Wiseman v. Lucksinger, 
 84 N. Y. 31 ; Cronlihite v. Cronkhite, 94 
 N. Y. 323; Wheeler v. Reynolds, 66 
 N. Y. 227 ; Huff v. McAulej, 53 Pa. St. 
 206 ; Thompson v. McElarney, 82 Pa. 
 St. 174; Meek o. Breckenridge, 29 
 Ohio St. 642 ; Butt v. Napier, 14 Bash 
 (Ky.), 39; Legg ;'. Horn, 45 Conn. 409, 
 415 ; United States v. Bait. & Ohio R. 
 Co., 1 Hughes C. C. 138. See also 
 Veghte V. Earitan Co!, 19 N. J. Eq. 
 142 ; Williamston, &c. K. Co. !;. Battle, 
 66 N. C. 540, 546; Jackson Co. v. Phila. 
 W. & R. Co., 4 Del. Ch. 180. 
 
 2 Rerick v. Kern, 14 S. & R. (Pa.) 
 267; WheatleyK. Chrisman, 24 Pa.' St. 
 298 ; Strickler v. Todd, 10 S. & R. (Pa.) 
 63, 74; Lacey v. Arnett, 33 Pa. St, 169; 
 Campbell v'. McCoy, 31 Pa. St. 263; 
 Swartz a. Swartz, 4 Pa. St. 353, 358 ; 
 Lindeman r. Lindsay, 69 Pa. St. 93, 
 100; Buihiinan c. Logansport, 71 Ind. 
 265 ; Wickersham o. Orr, 9 Iowa, 253, 
 260; Baetty;-. Gregory, 17 Iowa, 109, 
 114; Lee >■. McLeod, 12 Nev. 280; 
 School District v. Lindsay, 47 Mo. 
 App. 134 ; Harlan r. Logansport Co., 
 32 N. E. Rep. 930; § 239, infra. 
 
EASEMENTS. KINDS. HOW CREATED. 159 
 
 confer a continuing right and naoney had been expended by 
 the licensee on the faith of the license. " ^ 
 
 The grant, by which an easement is created or conveyed, 
 may be either express or implied ; and, when express, it may 
 consist, either of a grant of a right or privilege over land 
 which ia^retained by the grantor, or of a reservation by him 
 to himself or his heirs of a right or privilege over the land 
 conveyed, which reservation is made in his deed of conveyance 
 of the land. Adding to the three divisions of the grant of 
 easements thus emerging the method of gaining them by 
 prescription, we have the following four modes by which they 
 may be acquired and transferred ; namely : a. By express grant, 
 where the grantor retains the land over which the right is 
 conferred ; b. By reservation in a deed, where the grantor parts 
 with the land and in the deed of conveyance reserves an ease- 
 ment over it; c. By implied grant; and d. By prescription, 
 which presupposes a grant. Each of these four methods and 
 the varieties of easements to which they give rise and their 
 characteristics and incidents will be separately discussed. 
 
 a. Easements created hy Express Grant. /\^,^^,>.ji^ 
 
 § 131. Express Grant of Easements. — The nature of an 
 easement created by express grant is to be chiefly determined, 
 of course, by a proper construction of the language used by 
 the parties to the instrument. The dominant and servient 
 tenements must each be described with sufficient accuracy to 
 be clearly identified as such, and the character and location 
 of the right must in general be made clear by the words of 
 the conveyance. 2 The privilege, being once brought into 
 existence by deed, is presumed to be permanent, unless a 
 contrary intention is expressed. If, for example, it be 
 intended to make it to continue only during the life of a 
 
 1 Crosdale v. Lanigan, 129 N. Y. Mass. 146; Tniax v. Gregory, 196 111. 
 604 ; also, Gaboon v. Bayard, 123 N. Y. 83 ; Smith v. Worn, 93 Gal. 206. An 
 298 ; Lawrence v. Springer, 49 N. J. Eq. easement granted by the use of vague 
 289 ; Lake Erie R. Co. v. Kennedy, 132 or indefinite terms may be construed in 
 Ind. 274 ; Babcock v. Utter, 1 Abb. Ct. accordance with the uniform acts of 
 App. Dec. (N. Y.) 27-60. See also the the parties in using and enduring it 
 Bubject of revocation of licenses, § 239, for many years, and so evincing their 
 infra. intent. Hoag v. Place, 93 Mich. 450 ; 
 
 2 Brazier i). Glasspool (1901), W. N. Mudge v. Salisbury, 110 N, Y. 413, 
 Gas. 237; Matter of Brookfield, 176 417; Outhank w. L. S. & M. S. R. Go., 
 N. Y. 138; Crocker v. Cotting, 181 71 N. Y. 194. 
 
160 KINDS OF REAL PROPERTY. 
 
 designated person or for a specified term of years, this fact 
 must be expressed in the deed.^ The grant may be made in 
 connection with the dominant tenement, or separately and as 
 a distinct thing, thereby imposing the easement as a burden 
 upon the estate of the grantor and rendering it servient to 
 land already owned by the grantee.'' Again it maylbe made 
 by a covenant or condition, contained in the deed of the ser- 
 vient tenement, as to the method of using it in connection 
 with another piece of land, though the latter does not belong to 
 the grantor and though the deed is not signed by the grantee. 
 So, in the process of partitioning land among co-tenants, such 
 as tenants in common or joint tenants,^ or in the transfer by 
 one transaction of a number of lots of land to different pur- 
 chasers,* easements may be expressly brought into existence 
 by the agreements and stipulations inserted in the deeds. In 
 short, all that is necessary to the creation of an easement by 
 express grant is the evincing, in the deed,j3f a clear intention 
 on the part of the grantor to make one parcel of land subser- 
 vient to another, whether that other belongs at the time to 
 himself or to a third person.^ 
 
 § 132. Express Grant of Easements by Covenants or Condi- 
 tions in Deeds. — As was said above, covenants and conditions 
 in deeds of corporeal property frequently impose easements 
 upon the lands conveyed, or retain them on other real estate 
 of the grantor. Prominent among these are those stipulations 
 and agreements in grants, which restrict or regulate the use 
 to be made of the property transferred or reserved.^ Thus, a 
 very common form of covenant, put into deeds by which land 
 
 1 Lathrop v. Eisner, 93 Mich. 599. 54 Me. 276 ; Stillwell v. Foster, 80 Me. 
 
 2 Holmes v. Seller, 3 Lev. 305 ; Ger- 333. 
 
 rard v. Cooke, 5 B. & P. 109; Com, 
 Dig., " Cherain," D. 3. 
 
 3 Huttenieier v. Albro, 18 N. Y. 48 
 
 V. Godfrey, 53 Vt. 219 ; Mason v. Hor- 
 ton, 67 Vt. 266 ; Kilgour v. Ashcom, 
 5 H. & J. (Md.) 82 ; Burwell v. Hobson, 
 
 5 Gibert v. Peteler, 38 Barb. (N. Y.) 
 488, 514; see also Trastees of Columbia 
 College V. Lynch, 70 N. Y. 440 ; Story 
 
 Ellis D. Bassett, 128 Ind. 118; Goodall v. N. Y. El. R. Co., 90 N. Y. 122; 
 
 Barrow v. Richard, 8 Paige (N. Y.), 351 ; 
 Richardson v. Tobey, 121 Mass. 457 ; 
 Norfleet v. Cromwell, 70 N. C. 634. 
 
 12 Gratt. (Va.) 322. 6 Joy v. St. Louis, 138 U. S. 1 ; 
 
 * Johnson f. Jordan, 2 Met. (Mass.) Van Rensselaer v. Albany & S. R. 
 
 234, 242 ; Russell u. VVatts, L. R. 25 Co., 62 N. Y. 65 ; Wetmore v. Bruce, 
 
 Ch. Div. 559 ; Swansborough f. Coven- 118 N. Y. 319; Coudert v. Sayre, 46 
 
 try, 9 Bing. 305; Mitchell v. Seipel, 53 N. J. Eq. 386; Ladd v. Boston, 151 
 
 Md. 251; Brakely V. Sharp, 10 N. J. Mass. 585; Peck «. Conway, 119 Mass. 
 
 Eq. 206, 209 ; Randall v. McLaughlin, 546 ; Stephens v. Hockemeyer, 46 N. Y. 
 
 10 Allen (Mass.), 366 ; Warren v. Blake, St. Rep. 329, 19 N. Y. Snpp. 666. 
 
EASEMENTS. KINDS. HOW CHEATED. 161 
 
 is conveyed, or reserved, or partitioned, is one which provides 
 for the kinds of buildings which may be erected thereon, or 
 regulates the character of the trades or business which the 
 purchaser may carry on upon the premises.^ When such 
 agreements are incoi'porated into a number of deeds, by which 
 the owner of a large tract of land splits it up into building 
 lots and conveys them to a number of different purchasers, 
 not only does the grantor thus obtain rights to compel the 
 various lot owners to live up to these agreements, but Ihose 
 owners also ordinarily have reciprocal easements against one 
 another, which will be recognized and enforced in a court of 
 equity.^ Another ordinary way of creating easements or ser- 
 vitudes by covenant is by laying out streets or ways across 
 land, or open spaces such as squares or parks, and selling 
 lots along them, or with reference to them, as places to be 
 always kept open for the use of the purchasers. The vendor 
 and his successors in interest thus become bound to keep such 
 places open and unobstructed for the benefit of those who buy 
 land in reliance upon the representations so made;^ and the 
 various lot purchasers also acquire the right to restrain one 
 another from closing or obstructing them.* 
 
 § 133. Maps or Plans, shov^ing intended Grant of Easements. 
 — When a map or plan, according to which lots are sold, 
 designates a portion of the grantor's property as intended 
 to be kept open for the benefit of the grantees, each pur- 
 chaser acquires an easement to have that part kept open 
 and unobsti'ucted ; and this, even though there is no ex- 
 press covenant to that effect inserted in his deed, and whether 
 or not the public accepts the designated land for a street or 
 other public place. ^ But, according to the New York Court 
 of Appeals, the only obligation that the law will thus imply 
 from the exhibition of the plan or map and the selling of lots 
 
 1 Trustees of Columbia College v. Marshall, 66 Me. 435. See these equi- 
 Lynch, 70 N. Y. 440 ; Stetson v. Curtis, table easements more fully discussed 
 119 Mass. 266; Coudert v. Sayre, 46 §§ 149-1.52, infra. 
 
 N. J. Eq. 386 ; Kilpatrick v. Peshine,_ " Dexter v. Beard, 130 N. Y. 549 ; 
 
 24 N. J. Eq. 206 ; Gawtry v. Leland, 31 Condert v. Sayre, 46 N. J. Eq. 386 ; 
 
 N. J. Eq. 385 ; Middletown v. Newport Hogan v. Barry, 143 Mass. 538. 
 
 Hospital, 16 R. I. 319. * Tinker v. Forbes, 136 111. 221; 
 
 2 Trustees of Columbia College v. Herrick v. Marshall, 66 Me. 435 ; Tall- 
 
 Thacher and Lynch, 70 N. Y. 440, 87 madge v. East River Bank, 26 N. Y. 
 
 N. Y. 311 ; Equitable Life Assurance 105; Lowenberg v. Brown, 79 N. Y. 
 
 Soc. of U. S. t. Brennan, 148 N. Y. 661 ; App. Div. 414. 
 
 Knight V. Simmons (1896), W. N. 22; ^ Ibid.; Swedish E. L. Church v. 
 
 Aylingt). Kramer, 133 Mass. 12 ; Tinker Jackson, 229 111. 506 ; Grould v. Wagner, 
 
 V. Forbes, 136 111. 221 ; Herrick v. 196 Mass. 270. 
 
 11 
 
162 KINDS OP REAL PROPERTY. 
 
 with reference to it is the negative one, that prevents the 
 closing of the open places indicated, or their use for any 
 purpose inconsistent with the vendees' enjoyment of their 
 easements in them ; and, in the absence of express covenant 
 that the vendor will use any portion of his land in a particular 
 manner, he will not be required to erect anything upon it or 
 do any affirmative act thereon for the benefit of the lot pur- 
 chasers. In Johnson v. Shelter Island Grove and Camp 
 Meeting Association,^ lithographed maps, according to which 
 lots fx'om a large tract were sold at public auction, were dis- 
 tributed among the bidders. On the maps, a certain large 
 space was indicated as open and public and called "The 
 Ramble. " In the middle of " The Ramble " was marked out a 
 small, rectangular place, upon which was the word " Chapel. " 
 After the lots around " The Ramble " were sold and the deeds 
 given, the association began to build a hotel upon the place 
 marked " Chapel " on the map ; and one of the purchasers, 
 whose lot fronted on "The Ramble," brought an action to 
 enjoin such erection and compel the building of a chapel 
 upon the rectangular space. It was decided that, in the 
 absence of covenant as to the character of the building to be 
 constructed upon that space, the vendees were not entitled to 
 the relief sought; and that the mere existence of the word 
 " Chapel " upon that place on the map did not constitute any 
 such covenant either express or implied. The court said, per 
 Parkei", J. : " It is the policy of the law to encourage the 
 most advantageous use of land; and the courts will not be 
 diligent in searching for pretexts with which to check the 
 enterprise of an owner of the fee at the behest of one who is 
 not actually interfered with in the proper enjoyment of his 
 easement. "2 It is thought that this decision is to be regarded 
 as, at best, a border-line case. Its doctrine is opposed by the 
 New Jersey Court of Errors and Appeals in Dill v. The 
 School Board ;^ and it is safe to assume that, under such 
 conditions, the New York courts would be quick to seize 
 upon any slight additional facts-or representations in order to 
 raise a covenant implied, or created by estoppel, against the 
 grantor.* 
 
 > 122 N. Y. 330. " 47 N. J. Eq. 421. 
 
 2 See Downes v. D. & F. Co., 75 * See Hay v. Kuauth, 36 N. Y. App 
 
 N. Y. App. Diy. 513 ; Matter of Mayor Div. 612. 
 (Leggett Ave.), 80 N. Y. App. Div. 
 618, 620. 
 
EASEMENTS. KINDS. HOW CREATED. 163 
 
 § 134. Express Grant of Basements as Appurtenances to 
 Land. — When an easement has become appurtenant to a 
 parcel of land, it usually passes with a conveyance of that 
 land, whether mentioned in any covenant or condition or other 
 part of the deed or not, and whether or not it is necessary to 
 the enjoyment of the corporeal property by the grantee. ^ If, 
 then, in transferring the land, it be desired to separate and 
 reserve from it an easement which has once become appurte- 
 nant thereto, this must be done by the use of explicit and 
 unmistakable terms. Where one owning a lot fronting on a 
 public street bought other land in the rear adjoining that 
 which he already possessed, which land so purchased had 
 appurtenant to it a right of way over a private alley, he was 
 not bound to relieve the alley from the easement existing 
 on it and impose the burden upon the land already owned 
 by him in the front.^ When a way is appurtenant to land a 
 part of which is conveyed to another, the right of way will 
 exist in favor of each of the parts into which the original 
 parcel is thus divided.^ But, although this is the broad form 
 in which the law is usually stated, the principle must be 
 taken with the modification that the burden on the servient 
 tenement shall not be thereby made any greater than was 
 originally intended. If, for example, the owner of a large 
 field used for agricultural purposes should grant a small piece 
 of it to another and reserve a right of way over the piece so 
 granted, for the benefit of his remaining field, he could not 
 then sell the field off into building lots and thus burden the 
 way so reserved so that the owners of all the lots should be 
 entitled to its enjoyment.* 
 
 Only incorporeal hereditaments can pass as appurtenant to 
 land. "A thing corporeal can not properly be appurtenant 
 to a thing corporeal, nor a thing incorporeal to a thing in- 
 
 ^ Newman v. Nellis, 97 N. Y. 285 ; demise, the way goes with the land. 
 
 Webster v. Stevens, 5 Dner (N. Y.), 682 ; Skull v. Glenister, 16 C. B. n. s. 81, 90. 
 Huntington v. Asher, 96 N. Y. 604 ; Kent ' Underwood v. Carney, 1 Cush. 
 
 w. "Waite, 10 Pick. (Mass.) 138; Under- (Mass.) 285, 290; Watson r. Bioren, 
 
 wood V. Carney, 1 Cush. (Mass.) 285; 1 S. & R. (Pa.) 227; Whitney v. Lee, 
 
 George v. Cox, 114 Mass. 382 ; Dority 1 Allen (Mass.), 198. 
 V. Dunning, 78 Me. 381 ; Pettingill v. * Allan v. Gomme, 11 Ad. & E. 
 
 'Porter, 8 Allen (Mass.), 1. 759; South Metr. Cemetery v. Eden, 16 
 
 ^ Zell V. First Universalist Society, C. B. 42 ; Henning v. Burnet, 8 Exch. 
 
 119 Pa. St. 390. When a right of 187. See Lewis u. Carstairs, 6 Whart. 
 
 way is appurtenant to a piece of land (Pa.) 193. 
 which is passed to a lessee by an oral 
 
164 KINDS OP REAL PROPERTY. 
 
 corporeal."^ Whenever one piece of land passes in con- 
 nection with the grant of another, it may be said to pass as 
 ^^ parcel, " but never by the use of the word " appurtenance ; " 
 and it is equally true that land can not pass as appurtenant 
 to an incorporeal right, nor one incorporeal hereditament as 
 appurtenant to another. ^ 
 
 b. Easements created hy Reservation in Deeds of Land. 
 
 § 135. Reservation. — In the deed by which land is con- 
 veyed, an easement may be created and reserved for the bene- 
 fit of the grantor. This is illustrated by a case in which a 
 grantor of land, bounded upon a stream of water, reserved to 
 Mmself, by his deed, a- privilege in the stream, for the benefit 
 •of his mill and the land under and around it which he re- 
 tained.^ And where one, conveying a portion of his land, 
 stated in the deed that he retained for himself a bridle path 
 in front of his house and across the piece transferred, this was 
 held to create an easement of a right of way by reservation.* 
 
 § 136. Reservation distinguished from Exception. — A reser- 
 vation of an easement or other servitude by deed always 
 results in the creation of something new, — i. e. something 
 which did not before exist as an easement or servitude, — 
 and in retaining it as an item of property belonging to the 
 grantor. Being thus brought into existence, as property, by 
 the deed itself, it must always be incorporeal. Thus, if A' 
 -sell the westerly half of his farm to B, and in the deed 
 reserve to himself over that half a right to pass from a 
 highway to the easterly half of the farm, which A retains for 
 himself, the way is a new piece of property, made by A's deed 
 and owned by him as an easement created by reservation; for 
 -while, as owner of the entire farm, A had possessed the right 
 "to go over the westerly half as he pleased, yet he did not own 
 that right as an easement until such westerly half became the 
 
 1 Co. Lit. 121 b. 8 Pettee v. Hawes, 13 Pick. (Mass.) 
 
 2 Co. Lit. 121 b, 122 a ; Harris v. 323 ; Phoenix Ina. Co. v. Continental 
 Elliott, 10 Pet. (U. S.) 25, 54; Invest- Ina. Co., 87 N. Y. 400. 
 
 ment Co. v. O. & N. E. Co., 41 Fed. * Bean i^. French, 140 Mass. 229 ; 
 
 Eep. 378 ; Griffiths v. Morrison, 106 Mayo v. Newhoff, 47 N. J. Eq. 31 ; Tab- 
 
 N. Y. 165; Jackson v. Hathaway, 15 batt v. Grant, 94 Me. 371 ; Andrews v. 
 
 Johns. (N. Y.) 447 ; Leonard v. White, Nat. Sugar Ref. fo., 72 N. Y. App. 
 
 7 Mass. 6; Donnell v. Humphreys, 1 Div. 551. 
 Mont. 518, 525. 
 
EASEMENTS. KINDS. HOW CREATED. 165 
 
 property of B, because a man can not have an easement over 
 hia own land. On the other hand, an exception — -or thing 
 excepted — in a deed is something, whether corporeal or 
 incorporeal, not created by the terms of the deed, but already 
 in existence and expressly kept out from the operation of the 
 grant and not allowed to pass uijder the deed. For example, 
 if an owner of a farm convey it all, except the house thereon 
 and the land under it and around it as a garden, or except a 
 right of way, or right of flowage owned by him and appurtenant 
 to the land transferred, such property retained is a proper 
 exception and not a reservation. ^ 
 
 It follows, as a matter of course, that easements may be 
 created by reservations, but never by exceptions, since excep- 
 tions properly so called deal only with property rights already 
 in existence. But the courts look at the substance and inten- 
 tion of a deed, rather than at its mere form; and so, fre- 
 quently, the words employed are construed as creating an 
 easement by reservation, although the property is spoken of 
 as an exception, because it appears that the intention of the 
 parties is to create something new and retain it for the 
 grantor; while the word "reserving" or "reservation" is 
 often held to refer only to a thing in existence, and not to be 
 intended to raise incorporeal rights by reservation, because 
 from an examination of the entire deed and the surrounding 
 circumstances such appears to be its fair construction. ^ 
 Accordingly, where the grantor of a tract of land stated in the 
 deed that he reserved for himself "the wood and underground 
 produce of the estate," his statement was held to refer to an 
 exception rather than to a reservation. ^ And a deed which 
 conveyed a city lot by metes and bounds, "excepting and 
 reserving therefrom a strip of land ten feet wide . . . across 
 the rear or inner end . . . for an alley," was construed as 
 passing to the grantee all the corporeal property mentioned, 
 and reserving to the grantor an easement of an alleyway over 
 the strip.* 
 
 1 Boist V. Empie, 5 N. Y. 33 ; 464 ; Chicago, Rock Isl. & P. R. Co. v. 
 
 Myers v. Bell Telephoue Co., 83 N. Y. D. & R. G. R. Co., 143 0. S. 596. 
 App. Div. 623 ; Wiuthrop i'. Fairbanks, ^ Doe d. Douglas v. Lock, 4 Nev. & 
 
 41 Me. 307 ; Smith v. Ladd, 41 Me. 314. M. 807, where the distinctioDs between 
 
 ^ Wood !. Boyd, 145 Mass. 176 ; exceptions and reservations are ex- 
 White V. N. Y. & N. E. R. Co., 156 ainined at length by Lord Chief Justice 
 Mass. 181; Whitaker v. Brown, 46 Pa. Deumau. 
 St. 197 ; Haggerty v. Lee, 50 N. J. Eq. * Winston v. Johnson, 42 Minn. 398. 
 
166 KINDS OP REAL PKOPERTY. 
 
 § 137. Requisites of Reservations of Easements. — A reser- 
 vation of an easement must always be to the grantor, and not 
 to a stranger. If, for example, the grantor of an estate to 
 A reserve a right of way over the land for B, a third person 
 who is not a party to the deed, this gives nothing to B which 
 he did not own before. If B already owned a way over the 
 land, the effect of such a statement in the deed would be 
 simply to save the grantor from any liability which might 
 arise upon the covenants in his deed bocji.ise of the existence 
 of such easement.^ 
 
 Again, as a general rule, the reservation must be out of 
 the estate granted, and not out of other property. But "in 
 some peculiar cases such a reservation may operate in the 
 nature of a grant from the grantee, to charge upon other 
 premises the burden of contributing the means of enjoying 
 what is thus reserved. " ^ When, however, the grantee makes 
 such a charge upon another estate, — and that other .estate 
 must evidently be other property of his own, — he is simply, 
 in the one deed between him and the grantor, conveying 
 something to the grantor, not strictly by way of reservation, 
 since it is not reserved out of that with which the grantor 
 parts, but as a separate and distinct covenant or contract 
 incorporated into the deed by which the grantor conveys to 
 him the land.^ 
 
 Lastly, a reservation being equivalent to a grant, and in 
 fact a form of grant, the strict rule of law requires that there 
 shall be proper words of limitation and inheritance — the use 
 of the word "heirs" in some collocation — if the grantor 
 intend the right to extend beyond his own life.* This is 
 simply an application of the common-law principle, which, 
 with a few exceptions, requires the use of the word "heirs" 
 in order to the creation or conveyance of an estate in fee 
 
 1 Hill V. Lord, 48 Me. S3, 95 ; Q. B. N. s. 940, 967 ; Claflin v. B. & A. 
 Bridger v. Pierson, 45 N. Y. 601, 603 ; R. Co. 157 Masa. 489 ; Ashcroft v. 
 West Point Iron Co. v. Reymert, 45 Eastern R. Co., 126 Mass. 196 ; Bean v. 
 N. Y. 703. French, 140 Mass. 229 ; Jamaica Pond 
 
 2 3 Wash. R. P. p. • 646. Aqueduct Co. v. Chandler, 9 Allen 
 » Holms V. Seller, 3 Lev. 305; Gi- (Mass.), 159; Curtis </. Gardner, 13 
 
 bert V. Peteler, 38 Barb. (N. Y.) 488, Met. (Mass.) 457; Hornbeck c. West- 
 
 514; Dyer v. Sandford, 9 Met. (Mass.) brook, 9 Johns. (N. Y.) 73. See Baker 
 
 395 ; Randall u. Latham, 36 Conn. 48, v. Mott, 78 Hun (N. Y.), 141 ; Railroad 
 
 53; Emerson t). Mooney, 50 N. H. 315 ; Co. v. Malott, 135 Ind. 113; Walz v. 
 
 Haggarty v. Lee, 54 N. J. L. 580. Walz, 101 Mich. 167. 
 * Durham & S. R. Co. v. Walker, 2 
 
BASEMENTS. KINDS. HOW CREATED. 167 
 
 simple by deed. But, with regard to easements and servi- 
 tudes created by reservation, the modern cases on both sides 
 of the Atlantic have relaxed this strict, technical rule, and 
 now seek to determine the extent of the right by getting at 
 the intention of the parties to the instrument. In doing this, 
 a clear distinction is drawn between the reservation of a com- 
 mon-law easement and that of the form of servitude which is 
 called an easement in gross. The latter, being personal in 
 its nature and not connected with any lands belonging to its 
 owner, is conclusively presumed to have been intended to last 
 for his life only, unless it is reserved to him and his heirs. 
 But when the right retained is a common-law easement, and 
 therefore appurtenant to land of the grantor, the presumption, 
 in the absence of words or circumstances to show the con- 
 trary, is now usually that it is meant to be a permanent acces- 
 sion and benefit to that land.^ As is explained above,^ the 
 question whether the privilege reserved is an easement in gross, 
 — a mere personal right, — or is to be construed as appurtenant 
 to some other estate, " must be determined by the fair inter- 
 pretation of the grant or reservation creating the easement, 
 aided, if necessary, by the situation of the property and the 
 surrounding circumstances." ^ 
 
 c. Easements created hy Implied G-rant or Implied Reservation. 
 
 ' § 138. Implied Grant or Implied Reservation — niustrationa 
 — ^Forms. — Tlie subject of easements arising by implication of 
 law presents a broad field of inquiry. Whenever such risrhts 
 are called into existence, in favor of either grantor or grantee, 
 in the absence of words which can be construed as directly 
 creating them, but for the purpose of enabling the owner of 
 land properly to use and enjoy that which has been conveyed 
 to him, or retained by him when he conveyed other land, they 
 are easements created by implied grant ; * and in many in- 
 
 1 Coudert «. Sayre, 46 N. J. Eq. 386, (Mass.), 359, 365; Kuecken v. Voltz, 
 
 395 ; Hagerty v. Lee, 54 N. J. L. 580 ; 110 HI. 264. 
 Cooper V. Louanstein, 37 N. J. Eq. 284 ; 2 § i^S,, supra. 
 
 Newhoff V. Mayo, 48 N. J. Eq. 619; s p^ck i. Conway, 119 Mass. 546 
 
 Schaefer v. Thompsou, 116 N. Y. App. 549. 
 
 Div. 775 ; Bowen v. Conner, 6 Cush. ■• New Ipswich Factory v. Bachelder, 
 
 (Mass.) 132 ; Mendell v. Delano, 7 Met. 3 N. H. 190 ; Outerbridge v. Phelps, 13 
 
 (Mass.) 176 ; Winthrop v. Fairbanks, 41 Abb. N. C. (N. Y.) 117, 125 ; Taylor v. 
 
 Me. 307 ; KarmuUer v. Krotz, 18 Iowa, Boulware, 35 La. An. 469 ; Jones, Ease. 
 
 352; Whitney v. Union B. Co., 11 Gray § 141. 
 
168 KINDS OF REAL PHOPERTT. 
 
 stances such rights and duties are brought into existence and 
 enforced so as to work out justice between parties between 
 whom the relation of grantor and grantee does not exist, or 
 as to whom there is no privity,^ nor any other contractual 
 relation. When, for example, a person has erected a mill, 
 and for its use cut an artificial raceway through his own land^ 
 and then sells the mill, retaining the land through which the 
 raceway passes, the right to use such waterway in connection 
 with the mill granted continues annexed by implication to the 
 mill as necessary to its beneficial use and enjoyment. Again, 
 if the owner of a tract of land sell a portion of it entirely 
 surrounded by that which he keeps, or a portion which £ntirely 
 surrounds the part retained by himself, a way of necessity 
 is at once implied in favor of the piece of land which is so 
 enclosed. And pui-chasers of neighboring city lots, all from 
 the same source of title, who take their deeds with uniform 
 restrictive covenants therein restraining them from using 
 their land in ways in which they might otherwise employ it, 
 ordinarily have in a court of equity, raised by implication for 
 the purpose of working out justice among them, the right to 
 enjoin and prevent one another, from breaking or violating 
 such restrictive covenants. Numerous as are the cases such 
 as these which the reports present, they may be grouped into 
 three general classes, which are typified by the three illustra- 
 tions just given. These three modes of creating easements 
 by implied grant or reservation are : (a) By severance of an 
 entire piece of property and conveyance of a part thereof, of 
 which method the first of the above illustrations is an in- 
 stance; (b) By creating ways of necessity, of which the 
 second illustration is an example ; and (c) By raising equi- 
 tahle easements, or servitudes, which are typified by the last of 
 the above illustrations. By each of these modes of implied 
 grant or reservation are brought into existence many varieties 
 of easements, which are next to be examined in the order 
 here indicated. 
 
 § 139. (a) Easements arising by Implication from the Sev- 
 erance of an Entire Piece of Property and Conveyance of a Part 
 thereof. — Accurately speaking, a person can not have an ease- 
 ment over his own land. If he burden a portion or tract of 
 
 1 Pririty is " mutual or successive grantee, ancestor and heir, or owners in 
 
 relationship to the same rights of prop- common of land ; but not, of course, 
 
 erty." 1 Greenl. Ev. §§ 189, 523. There between mere neighbors. 
 is such relationship between grantor and 
 
EASEMENTS. KINDS. HOW CREATED. 169 
 
 it in favor of another tract or portion, as by draining one 
 piece over the other, or by building a house upon one part in 
 such a manner that it is supported by the other part, he 
 creates what would he an easement if the owner of one parcel 
 of land had a right to enjoy it over the land of another ; but 
 it is at most only what some writers call a quasi easement so 
 long as both tenements belong to the same proprietor.^ If, 
 with things in this condition, the two parts come into the 
 hands of different persons, either by the owner's selling or 
 otherwise transferring the piece which enjoys the right and 
 retaining that upon which the burden rests, or by his con- 
 veying the servient parcel and keeping the dominant, an 
 easement may be brought into existence, and such will usually 
 be the result. One leading principle, upon which rests the 
 creation of easements in this manner, is that the parties to 
 the transfer are presumed to act with reference to the actual, 
 visible, and known condition of the properties at the time, 
 and to intend that the benefits and burdens manifestly be- 
 longing to each part of the entire tract shall remain un- 
 changed. ^ And the other principle, which has caused a wide 
 distinction to be made in this connection between implied 
 grants and implied reservations of easements, is that a grant 
 is to be construed most strongly against the grantor and in 
 favor of the grantee.^ It is this last principle that compels 
 us to consider the class of easement now before us under two 
 subheads ; namely, those created by implied grant and those 
 created by implied reservation,. 
 
 § 140. Easements created by Implied GB.AMT, upon Severance 
 of Entire Tract of Land. — The law is uniform, in England and 
 throughout the United States, that, upon a severance of 
 
 1 Such an adaptation of his property !'. Cloouan, 81 N. Y. 557 ; O'Rorke o. 
 or properties by the same owner, so Smith, 11 R. I. 259 ; Brazier v. Glass- 
 that one part shall enjoy a right or pool (1901), W. N. Cas. 237. 
 privilege to the detriment or burdening When the incidents or quasi ease- 
 of another, corresponds to what in the ments are open and visible, knowledge 
 French law is called destination du pere of their existence is inferred as to 
 defamille. Pardessus, Traite' des Servi- both grantor and grantee. Simmons v. 
 tudes, 430, 431; Code Nap. art 642; Cloonan, 81 N. Y. 557; United States 
 La. Civ. Code, art. 763 ; Seymour v. v. Appleton, 1 Sumn. (U. S.) 492. 
 Lewis, 13 N. J. Eq. 439, 443. See Gale ' Russell v. Watts, L. R. 25 Ch. Div. 
 & What. Ease. 50-52 ; Goodall v. God- 559, 572 ; Wells v. Garbntt, 132 N. Y. 
 frev, 53 Vt. 219. 430; Sullivan v. Ryan, 130 Mass. 116; 
 
 2 Lampman v. Milks, 21 N. Y. 505 ; Toothe u. Bryce, 50 N. J. Eq. 589 ; 
 Paine i>. Chandler, 134 "N. Y, 385 ; Cur- Warren v. Blake, 54 Me. 276, 289,- 
 tiss V. Ayranlt, 47 N. Y. 73 ; Simmons Burns v. Gallagher, 62 Md. 462. 
 
170 KINUfl OP REAL PROPERTY. 
 
 an entire tract of land by its owner and the transfer of the 
 dominant portion, an easement arises in favor of the grantee 
 in all those apparent and reasonably necessary appendages 
 with which the land retained by the grantor has been encum- 
 bered in favor of that conveyed. ^ Or, as stated by the New 
 York Court of Appeals, per O'Brien, J., "When the owner 
 of a tract of land conveys a distinct part of it to another, he 
 impliedly grants all. those apparent and visible easements 
 which at the time of the grant were in use by the owner for 
 the benefit of the part so granted, and which are essential to 
 a reasonable use and enjoyment of the estate conveyed. The 
 rule is not limited to continuous easements or to cases where 
 the use is absolutely necessary to the enjoyment of the thing 
 granted. It applies to those artificial arrangements which 
 openly exist at the time of the sale, and materially affect the 
 value of the thing granted. " ^ Nor is it necessary that that 
 which is thus claimed as an easement shall be in actual use 
 at the time when the grant is made. It is sufficient that it is 
 open, visible, and reasonably necessary, and that the grantor 
 has knowledge of its existence. The grantee is then pre- 
 sumed to contract with reference to it and to intend to 
 acquire it as a part of his purchase. In the case of Spencer 
 V. Kilmer,* from which the above-quoted language of the New 
 York Court of Appeals is taken, the lessor of a parcel of land, 
 upon which, pursuant to the requirements of the lease, the 
 lessee had built fish ponds and then had laid conduits from 
 the ponds to springs on adjoining land of the lessor not em- 
 braced in the lease, sold the property upon which tlie fish 
 ponds were thus constructed for him " with the appurten- 
 ances," and retained title to the property where were the 
 springs. At the time of the sale, some of the conduits were 
 not in actual use ; but all of them were there visible and ready 
 to be used at any time, and the springs on the land of the 
 grantor were the only reasonably available source of supply 
 of water for the fish ponds. It was held that the right to 
 
 1 Wheeldon v. Burrows, L. R. 12 Miiiot, 158 Mass. 577 ; Janes v. Jenkius, 
 
 Ch. Div.31 ; Brazier t>.Glasspool(1901), 34 Md. 1 ; Ingals v. Plamondon, 75 111. 
 
 W. N. Cas. 237; Lampman b. Milks, 118; Smitho. Lockwood, 100 MiDn. 221. 
 21 N. Y. 505; Spencer v. Kilmer, 151 " Spencer v. Kilmer, 151 N. Y. 390, 
 
 N. Y. 390. Also Katz v. Kaiser, 154 398. Also Snow v. Pulitzer, 142 N. Y. 
 
 N. Y. 294,298; Wilson v. VS^ightman, 263; Vi^halen y. Manchester Land Co., 
 
 36 N. Y. App. Div. 41 ; Toothe v. 65 N. J. L. 206. 
 Bryce, 50 N. J. Eq. 589 ; Johnson ' 151 N. Y. 390. 
 
 V. Jordan, 2 Met. (Mass.) 234 ; Case v. 
 
EASEMENTS. KINDS. HOW CREATED. 171 
 
 conduct the water from the springs to the ponds, through the 
 pipes thus laid, passed with the deed to the grantee. The 
 ponds having been built for the grantpr and with his knowl- 
 edge, he was bound by the same rule as if he had placed them 
 there himself. O'Brien, J., said further: "The thing which 
 the defendant [the grantor] granted was the lot with the 
 fish pond then in use, constituting a very important element 
 in the value of the property. The principal appliances for 
 maintaining it by supplying the water were open and visible, 
 and the defendant knew that there was no reasonable way to 
 maintain it without them. " So, where the owner of two lots 
 of laud built on one of them a house, the cprnice of which 
 projected over the other lot, and then sold the house and the 
 land on which it stood, it was held that neither he nor those 
 who succeeded to his title to the vacant lot could prevent the 
 grantee of the house from maintaining the cornice as thus 
 constructed.' Such easements are not implied, however, when 
 co-owners of land partition it by conveying at the same time 
 separate pieces to each other, ^ nor when one owner of land 
 divides it into separate parcels which he sells to different 
 purchasers by one and the same transaction, unless it appear 
 from the circumstances that such rights already in existence 
 were intended to continue as easements.' In these cases the 
 courts more readily presume that each owner was intended to 
 take his parcel in severalty, free and clear of any rights in 
 the others; and, therefore, if easements are to arise from 
 such a severance of an entire estate, they must be expressly 
 granted or reserved, or their continuance must be a strict 
 necessity, or the intent to bring them into existence must be 
 otherwise clearly manifested.* 
 
 ^ Grace M. E. Church v. Dobbins, Cotton said: " It really is not a reserva- 
 
 153 Pa. St. 294. See Nichols ii. Cham- tion, but in order to make all those 
 
 berlain, Cro. Jac. 121. grants which are looked upon as one 
 
 2 Whyte V. Builders' League, 164 transaction available and effectual, it is 
 
 N. Y. 429. considered that each of the grantees is 
 
 ' Russell V. Watts, L. R. 25 Ch. Div. to he looked upon as taking from the 
 
 559 ; Johnson v. Jordan, 2 Met. (Mass.) grantor, while he has .still the power to 
 
 234; Warren v. Blake, 54 Me. 276; give it, what it is right that he should 
 
 Huttemeier v. Albro, 18 N. Y. 48, 51 ; get; so that there is an implicit grant 
 
 Ellis I'. Bassett, 128 Ind. 118; Goodall against all the other grantees of those 
 
 V. Godfrey, 53 Vt. 219; Mason v. Hor- easements which will be reasonably 
 
 ton, 67 Vt. 266; Burvvell v. Hobson, 12 necessary for the property which is con- 
 
 Gratt, (Va.) 322. veyed." Russell v. Watts, L.R. 25 Ch. 
 
 * Referring to an easement created Div. 659, 573. Also Blakely v. Sharp, 
 
 by the simultaneous sales of several 10 N. J. Eq. 206; Mitchell u. Seipe), 53 
 
 lots by the same grantor, Lord Justice Md. 251. 
 
1,72 
 
 KINDS OP REAL PROPERTY. 
 
 In order that an easement may arise by implied gran!, ii 
 must be of value to the estate conveyed, and the grantee must 
 be presumed to have taken it into consideration and paid for 
 it in connection with his purchase. ^ It must also be " rm- 
 sonaUy " ^ (though not absolutely) " necessary " to the use and 
 enjoyment of that which is expressly granted. By this is 
 said to be meant that, " if without alteration involving labor 
 and expense, the convenience is fit and proper for the use of 
 the property as it exists at the time of the conveyance, or so 
 necessary in that sense, the easement passes. "^ "The law 
 gives a reasonable intendment in all such cases to the grant, 
 and passes with the property all those easements and privi- 
 leges which at the time belong to it and are in use as appur- 
 tenances. " * It must, moreover, be open and apparent, i. e. 
 there must be some visible sign or mai-k, by which a person 
 who was examining the entire property with reasonable care 
 could discover that one portion of it was burdened in favor 
 of another.^ Such are party-wall rights,^ an open ditch or 
 canal,^ visible pipes used for conduits or aqueducts,^ and the 
 like. 9 
 
 1 Paine v. Chandler, 134 N. Y. 385; 
 Curtiss V. Ayrault, 47 N. Y. 73 ; Sim- 
 mons V. Cloonan, 81 N. Y. 557, 566; 
 O'Korke v. Smitii, II R. I. 259; 
 Henry v. Koch, 80 N. Y. 391. "On 
 the other hand, the presumption that the 
 parties contract with reference to the 
 visible condition of the property at 
 the time may be repelled by actual 
 knowledge on the part of the contract- 
 ing parties of facta, which negative any 
 deduction to be drawn from the appar- 
 ent condition." Jones, Ease. § 126; 
 Simmons o, Cloonan, 81 N. Y. 557; 
 United States v. Appleton, I Sumn. 
 (U. S.) 492. 
 
 2 Not absolutely necessary, but rea- 
 sonably requisite. McElroy n. Mc- 
 Leary,"7I Vt. 396. 
 
 8 Howell V. Estes, 71 Tex. 690, 694; 
 Preble v. Reed, 17 Me. 169; Sloat v. 
 McDougall, 30 N. Y. St. Rep. 912; 
 Snow V. Pulitzer, 142 N. Y. 263 ; Spen- 
 cer V. Kilmer, 151 N. Y. 390. 
 
 * United States v. Appleton, I Sumn. 
 (U. S.) 492, 500. 
 
 6 Snffield V. Brown, 4 De G. J. & S. 
 185 ; United States v. Appleton, 1 
 Sumn. (U. S.) 492; Butterworth v. 
 
 Crawford, 46 N. Y. 349 ; Phillips v. 
 Phillips, 48 Pa. St. 178; Ingalls v. 
 Plamondon, 75 111. 118; Providence 
 Tool Co. V. Corliss Steam Engine Co., 
 9 R. I. 564; Sanderlin v. Baxterj 76 
 Va. 299. 
 
 * Rogers v. Sinsheimer, 50 N. Y. 
 646; Griffiths v. Morrison, 106 N. Y. 
 165 ; Western Nat. Bank's Appeal, 102 
 Pa. St. 171. 
 
 ' Dodd V. Burchell, 1 Hurl. & C. 
 113; Hair v. Downing, 96 N. C. 172; 
 Munsion v. Reid, 46 Hun (N. Y.), 399. 
 
 ^ Nicholas v. Chamberlain, Cro. Jac. 
 121; Wardle v. Bro'cklehurst, 1 El. & 
 El. 1058; Butterworth v. Crawford, 46 
 N. Y. 349 ; DoUifE v. Boston & M. 
 R. Co., 68 Me. 173. 
 
 ' The fact that a pipe, aqueduct, etc., 
 is concealed from casual vision does not 
 prevent it from being apparent within 
 the requirement of this rule. If by or- 
 dinary inspection it would be discovered 
 through marks, objects, or indications 
 of any kind, this is sufficient to make, it 
 apparent. Nicholas v. Chamberlain, 
 Cro. Jac. 121 ; Pyer v. Carter, 1 H. & 
 N. 916 ; Watts v. Kelson, L. R. 6 Ch. 
 App. 166; Toothe v. Bryce, 50 N. J. 
 
EASEMENTS. KINDS. HOW CREATED. 173 
 
 It was formerly declared, also, that no such right or privi- 
 lege could pass by implication, unless, when acquired as an 
 easement, it would be continuous in its nature, i. e. would 
 be enjoyed without the necessity of any act of man. This 
 requirement is prominently dwelt on in the leading case of 
 Lampman v.- Milks, ^ and is mentioned as u, prerequisite in 
 many of the text-books and decided cases. ^ But most of the 
 authorities which dwell on this requirement employ the 
 word " continuous " in the sense of permanent, and not with 
 its technical signification, to denote a continuous easement 
 as above defined;^ and all that is actually required in this 
 respect is that, from the visible and apparent disposition and 
 arrangement of the parts of his property before the severance, 
 it must appear that it was the purpose of the owner to create 
 a permanent and common use and enjoyment of the one part 
 for the benefit of the other.* In the above quotation from the 
 opinion of the New York Court of Appeals in Spencer v. 
 Kilmer^ we find these words: "The rule is not limited to 
 continuous easements or to cases where the use is absolutely 
 necessary to the enjoyment of the thing granted. It applies 
 to those artificial arrangements which openly exist at the 
 time of the sale, and materially affect the value of the thing 
 granted." While this utterance is only a dictum, the ease- 
 ment involved in that case being continuous in the strict, 
 technical sense, yet it seems to be most fully in harmony 
 with the reasons which give rise to easements by implied 
 grant, and to have the support of the most carefully consid- 
 ered decisions With regard to such easements as are discon- 
 tinuous but at the same time open and visible and apparently 
 meant to be permanent.® 
 
 Eq. 589. And an easement or servi- cially in favor of easements of air and 
 tnde is apparent if the parties hare ac- light, lateral support, partition walls, 
 tual knowledge of its existence, or drains, aqueducts, conduits, and water- 
 knowledge of facts which should put pipes or spouts, all these being conlinu- 
 them as reasonable persons upon in- ous easements technically so called, — 
 <}uiry. Larsen v. Peterson, 53 N. J. Eq. that is to say, easements which are enjoyed 
 88. And see Tabor v. Bradley, 18 without any active intervention of the 
 N. Y. 109. party entitled to enjoy them." O'Rorke 
 
 1 21 N. Y. 505 ; Jones, Ease. §§ 143- v. Smith, 11 R. I. 259, 263. 
 147. ' § 129, supra. 
 
 ' See Watts v. Kelson, L. R. 6 Ch. * John Hancock Mut. L. Ins. Co. v. 
 
 App. 166 ; Sullivan v. Ryan, 130 Mass. Patterson, 103 Ind. 582 ; Francie's Ap- 
 
 116; Bolton u. Bolton, L. R. 11 Ch. peal, 96 Pa. St. 200; Elint v. Bacon, 
 
 Div. 968 ; Parsons v. Johnson, 68 N. Y. 13 Hun (N. Y.), 454. 
 '62, 66. The Supreme Court of Rhode ^ 151 N. Y. 380, 391. 
 
 Island says: "The rule applies espe- ' Cases cited above in connection 
 
174 KINDS OF REAL PROPERTY. 
 
 § 141. Easements created by Implied RESERVATION upon 
 Severance of Entire Tract of Land. — There are SOme weighty 
 opinions and decisions, especially among the earlier cases, to 
 the effect that an easement will as readily arise by implied 
 reservation as by implied grant, — that if the owner of an entire 
 tract of land, one piece of which enjoys a right or quasi ease- 
 ment over the other, convey the servient part and retain the 
 dominant, ah easement will be implied in his favor as freely 
 and fully as it would have been implied against him if he had 
 sold the portion which enjoyed the privilege and retained that 
 which sustained the burden. The leading decision in support 
 of this doctrine is the much-discussed and criticised case of 
 Pyer v. Carter, ^ decided in 1857. In that case, the owner of 
 two houses constructed a visible drain under both of them; 
 and then sold, first the lower house, under which the other 
 was drained, to one purchaser, and then the higher house to 
 another purchaser. The vendee of the lower house stopped 
 the drain. In an action against him by the second vendee, 
 judgment was rendered in favor of the latter, although it was 
 not shown that the vendee of the lower house had any actual 
 knowledge of the drain at the time of his purchase. The 
 court said that the defendant took his piece of the property 
 subject to all the existing, apparent signs of servitude, aud 
 that by "apparent signs was to be understood not only those 
 which must necessarily be seen, but those which may be seen 
 or known on a careful inspection by a person ordinarily con- 
 versant with the subject. "2 The purchaser of the upper house 
 bought it with the right to the drain existing as an easement 
 appurtenant. The principle thus enunciated has been adhered 
 to in some of the United States, such as New Hampshire, 
 Vermont, Pennsylvania, Illinois, North and South Carolina, 
 and perhaps some others;^ and it was followed by the earlier 
 decisions in New York and New Jersey.* 
 
 with this section ; Brazier v. Glasspool Geible v. Smith, 146 Pa. St. 276 ; Liquid 
 
 (1901), W. N. Cas. 237; Barkshire •). Carbonic Co. w. Wallace, 219 Pa. St. 457 ; 
 
 Grubb, L. K. 18 Ch. Div. 616 ; Thorn- Cihak v. Klekr, 117 111. 643; Hair v. 
 
 son u. Waterloiv, 6 Eq. 36; Bolton u. Downing, 96 N. C. 172; Crosland v. 
 
 Bolton, L. R. 11 Ch. Div. 958; Par- Rogers, 32 S.C. 130; Steinke».Bentley, 
 
 sons !'. Johnson, 68 N. Y. 62, 66 ; Jones, 6 Ind. App. 663. 
 
 Ease. § 195. 4 Lampman v. Milks, 21 N. Y. 505; 
 
 1 1 H. & N. 916. Outerbridge v. Phelps, 13 Abb. N. C. 
 
 2 1 H. & N. 916, 922. (N. Y.) 117 ; Kelly v. Dunning, 43 N. J. 
 
 3 Dankles v. Wilton R. Co., 24 N. H. Eq. 62 ; Fetters v. Humphreys, 18 N. J. 
 489 ; Harwood u. Benton, 32 Vt. 724 ; Eq. 260. See La. Rev. Ciy. Code, art. 
 Ormsby y. Pinkerton, 159 Pa. St. 458; 769. 
 
EASEMENTS. KINDS. HOW CREATED. 
 
 175 
 
 But the case of Pjer v. Carter has been so thoroughly dis- 
 approved in England that it is practically overruled ;i and in 
 this country the decisions of many of the best courts deny 
 that an easement can be as readily reserved for the grantor as 
 implied in favor of the grantee.^ This is upon the principle 
 that a deed is to be most strictly construed against the 
 , grantor, and, further, that a grantor shall not be permitted 
 to derogate from his own grant. The purchaser may have 
 the benefit of all fair implications and intendments; and 
 so the severance of an entire tract may impliedly confer 
 upon him an easement, if it be reasonally necessary to the 
 enjoyment of his property. But, say these later cases, 
 the general rule is that the vendor can not have the ben- 
 efit of any such presumptions, to the impairment of that 
 which he has expressly granted; and, when he is to have 
 an easement over land that he has absolutely conveyed, 
 he must be able to .establish it by express contract or 
 reservation. Such is now the settled law of New York,^ 
 
 1 Suffield V. Brown, 4 De G. J. & S. 
 18.'), 196 (1864); Brown v. Alabas- 
 ter, L. R. 37 Ch. Div. 490; Russell v. 
 Watts, L. R. 25 Ch. Div. 559 ; Ford v. 
 Met. R. Co., L. R. 17 Q. B. Div. 12, 27 ; 
 Pollard V. Gare (1901), 1 Ch. 834. 
 
 2 Wells V. Garbutt, 132 N. Y. 430; 
 Sloat V. McDongall, 30 N. Y. St. Rep. 
 912, 9 N. Y. Sapp. 631; Sullivan v. 
 Ryan, 130 Mass. 116 ; Carbrey «. Willis, 
 7 AUen (Mass.), 364 ; Warren o. Blake, 
 54 Me 276; Stevens i>. Orr, 69 Me. 
 323 ; Toothe v. Bryce, 50 N. J. Eq. 589 ; 
 Larsen i/. Peterson, 53 N. J. Eq. 88 ; 
 Burns v. Gallagher, 62 Md. 462; 
 Mitchel V. Seipel, 53 Md. 251 ; Scott v. 
 Beutel, 23 Gratt. (Va.) 1, 7; Walker u. 
 Clifeord, 29 So. Rep. 588 (Ala.). 
 
 8 Wells V. Garbutt, 132 N. Y. 430 ; 
 Paine v. Chandler, 134 N. Y. 385 ; Sloat 
 V. McDougall, 30 N. Y. St. Rep. 912. 
 In WelLs v. Garbutt, Vann, J., said, at 
 p. 435 : " As a grantor cannot derogate 
 from Ms own grant, while a grantee 
 may take the language of the deed 
 most strongly in his favor, the law will 
 imply an easement in favor of a grantee 
 more readily than it will in favor of a 
 grantor, and this distinction explains 
 many of the apparent inconsistencies 
 in the reported cases. Some learned 
 judges, in considering what may be 
 
 termed an implied graut, as distin- 
 guished from au implied reservation, 
 without, however, mentioning the dis- 
 tinction, have used language apparently 
 applicable to all easements existing by 
 implication, when, in fact, intended to 
 be limited to those existing in favor of 
 a grantee. Others, in deciding that 
 an easement was iinijliedly created by 
 a grant and conveyed to the grantee, 
 have gone farther in their discussion 
 than the point involved required and 
 have broadly declared the i^ule to be 
 reciprocal and applicable alike to bene- 
 fits conferred and burdens imposed, 
 provided the marks of either were open 
 and visible. Such was the case of 
 Lampman v. Milks, 21 N. Y. 505, where 
 the discussion outran the decision, for, 
 while it was decided that, on the facts 
 then appearing, an easement should be 
 implied in favor of the grantee, against 
 the grantor and his remaining lands, it 
 was asserted that under like circum- 
 stances an easement would be implied 
 in favor of the grantor, against the 
 grantee and his lands. The latter 
 proposition was involved neither in the 
 case decided, nor in any of those called 
 upon to support it, except such as have 
 since been overruled, either expressly or 
 impliedly." 
 
176 KINDS OP REAL PROPERTY. 
 
 New Jersey, Massachusetts, Maine, Maryland, Virginia, and 
 Mississippi.^ 
 
 While such is the general rule as to creation of easements 
 by implied reservation, there are some important exceptions 
 to it, which are recognized by all courts and which are next 
 to be examined. 
 
 § 142. Classes of Easements which may be created by Implied 
 Reservation. — The general principle is that a grantor can not 
 derogate from his own grant. Yet, even in those jurisdictions 
 where this maxim is most rigidly enforced, there are two 
 well-recognized classes of cases in which the grantor must be 
 accorded an easement over the property conveyed, although 
 his deed is silent upon the matter. One of these is where 
 there are mutual easements or servitudes required by both 
 parties to the contract; as where the owner of two houses 
 which mutually support each other, or both of which rest upon 
 a wall, — as a party wall, — sells one and retains title to the 
 other. Here, just as an easement in the right to support 
 passes by implication to the grantee, so, as a matter of logical 
 necessity, a similar easement is impliedly reserved to the 
 grantor.2 The other class embraces those rights and privi- 
 leges which are absolutely or for all practical purposes neces- 
 sary to the enjoyment by the grantor of the property retained 
 by him, as where a man continues to own a lot of land 
 entirely surrounded by other land which he sells. He then 
 has a right of way of necessity, although the deed by which he 
 transfers the surrounding property make no mention of any 
 such right. ^ 
 
 § 143. (b) Ways of Necessity — How they arise. — The 
 creation of easements by implied grant or reservation as thus 
 far discussed, where an entire tract or estate is divided and a 
 portion of it conveyed, ordinarily results from the fact that, 
 before such division, one part of the property was encumbered 
 in favor of the other with a distinct and well-defined ease, 
 burden, or servitude, and the separation of the two pieces 
 caused this to become a complete easement. Thus, if one 
 who has established a drain from his house over his adjacent 
 lot sell the former and retain the latter, the right to the 
 
 • Last note but one; also Crosland ' The right of way of necessity, 
 
 V. Rogers, 32 S. C. 130, 133; Bonelli v. which is the illustration of this class, is 
 
 Blakemore, 66 Miss. 136. more fully explained in the following 
 
 2 Richards v. Rose, 9 Exch. 218 ; sections. 
 Snow V. Pulitzer, 142 N. Y. 263 ; Powers 
 V. Heffernan, 233 111. 597. 
 
EASEMENTS. KINDS. HOW CREATED. 177 
 
 drain as then existing and reasbnably necessary becomes an 
 easement belonging to the purchaser. A way of necessity 
 differs from cases such as this, in that, while it always 
 springs from an implied grant or reservation resulting from 
 some division of land into at least two distinct pieces, it 
 does not require that any defined and known way as such shall 
 have previously existed over the one parcel and in favor of 
 the other. The fact alone that the purchaser of a thing can 
 not use it for any beneficial purpose, without the enjoyment of 
 some right or privilege in connection with other property of 
 the vendor, causes the law to presume that the parties intended 
 that right or privilege to pass with the grant, though it did 
 not before distinctively exist; and in like manner the fact 
 alone that the vendor can not use for any beneficial purpose 
 that which remains to him, unless he enjoy some right or 
 privilege over what he has conveyed, causes the law to pre- 
 sume a reservation of such right or privilege.^ Hence, when 
 a conveyance is made of a lot of land entirely surrounded by 
 other land of the vendor, or surrounded partly by his land and 
 partly by that of other persons through which no available 
 way exists for the grantee; or when, under like conditions, 
 the grantor retains the lot so enclosed and conveys the other 
 portion of his property, a way of necessity is thereby brought 
 into existence for the benefit of the owner of the parcel thus 
 surrounded.^ The circumstances may be such as to cause 
 this way to be located over a road already in existence ; but 
 if there be no such road or none that is suitable, the owner of 
 the servient tenement has the right to designate where one 
 shall exist, provided he makes it reasonably convenient for the 
 enjoyment of the dominant property.^ In accordance with the 
 general principle, however, that no implication runs against 
 the state, a legislative grant or other conveyance by the state 
 has been held not to pass with it a way of necessity.* 
 
 1 Warren v. Blake, 54 Me. 276. King, 73 Vt. 375 ; Stewart v. Hartman, 
 
 2 Pomfreti!.Rieroft,lSaaud.pp.*320, 46 Ind. 331. 
 
 *323, No. 6 ; Clark v. Cogge, Cro. Jac. » Pearson v. Spencer, 1 B. & S. 571 ; 
 
 170; Howton t. Prearson, 8 T. R. 50 ; Palmer ii. Palmer, 150 N. Y. 139; 
 
 Gayford u. Moffatt, L. R. 4 Ch. App. Schmidtu.Quinn, 136 Mass. 575 ; Bolton 
 
 133 ; Palmer v. Palmer, 150 N. Y. 1.39 ; r. Bolton, L. R. 11 Ch. Div. 968 ; Kripp 
 
 Bass V. Edwards, 126 Mass. 445; Sey- v. Curtis, 71 Cal. 62 ; Cheney y. O'Brien, 
 
 mour u. Lewis, 13 N. J. L. 439,444; 69 Cal. 199; Capers u. Wilson, 3 McCord 
 
 Ogden V. Grove, 38 Pa. St. 487 ; Collins (S. C), 170. 
 
 V. Prentice, 15 Conn. 39; Woodworth * Pearneu.Cold Creek M. &M. Co., 
 
 V. Raymond, 51 Conn. 70, 75; Dee v. 90 Tenn. 619. 
 
 12 
 
178 KIXD3 OF REAL- PROPEETT. 
 
 It is not the necessity alone, but the implied grant or 
 reservation that gives rise to a way of this kind. "Such 
 a way is not created by mere necessity, but always originates 
 in some grant or change of ownership, to which it is attached, 
 by construction as a necessary incident, presumed to have 
 been intended by the parties. " ^ Therefore it can not arise 
 over the property of one who is a stranger to the transaction 
 by which land is conveyed and acquired. ^ To bring it into 
 existence one of the parcels or tracts involved must be con- 
 veyed, or its ownership must be changed by operation of law. 
 Such direct transfer, by act of the parties, may be made by 
 deed, or devise, or by a partition among co-owners;^ and a 
 sale of land on execution, or pursuant to the judgment of a 
 competent court, is an illustration of its passing by operation 
 of law.* When a way has sprung up through any such trans- 
 action, it endures, as the property of the owner of the domi- 
 nant estate and the successors to his title, as long as the 
 necessity continues.^ 
 
 § 144. Pounded on Necessity. — There must be a necessity 
 for its use in connection with the enclosed parcel of land, in 
 order that such a way may come into existence. The fact 
 that it is very convenient, or more convenient than some 
 other means of access, will not suffice.^ Thus, where the 
 
 1 Woodworth v. Raymond, 51 Conn. ley Falls Co, v. Dolan, 9 R. I. 489. 
 70, 75; Stewart v. Hartman, 46 Ind. Butwhereland was taken by condemna- 
 331 ; Tracy v. Atherton, 35 Vt. 52. tion proceedings for a school, and no 
 
 2 Bullard v. Harrison, 4 M. & S. 387 ; attempt was made to condemn any way 
 Proctor V. Hodgson, 10 Exch. 824 ; to it, although it was land-locked, 
 Woodworth V. Raymond, 51 Conn. 70. no way of necessity existed — none 
 " If a man can be supposed to hold land could be implied under such conditions, 
 without any right of access to it, a grant Banks v. School Directors, 194 111. 274. 
 of it would not convey to the grantee ' Logan v. Stogsdale, 123 Ind. 372 ; 
 any right to pass over the adjoining Taylor v. Warnaky, 55 Cal. 350. 
 land, however necessary it might be to « Proctor v. Hodgson, 10 Exch. 824 ; 
 the enjoyment of the thing granted. Holmes v. Goring, 2 Bing. 76 ; London 
 He would acquire nothing more than v. Riggs, L. R. 13 Ch. Div. 798; Union 
 the grantor held." Nichols u. Luce, 24 L. Co. v. London G. D. Co. (1902), 2 
 Pick. (Mass.) 102, 104. Ch. 557; Palmer v. Palmer, 150 N. Y 
 
 8 Palmer v. Palmer, 150 N. Y. 139; 139; Ogden v. Jennings, 62 N. Y. 526 
 
 Viall V. Carpenter, 14 Gray (Mass.), Bascom u. Cannon, 158 Pa. St. 225 
 
 126; Murphy v. Lincoln, 63 Vt. 278; Stuyvcsant u. Woodruff, 21 N.J. L. 133. 
 
 Ellis V. Bassett, 128 Ind. 118 ; Blum o. Quimby v. Straw, 71 N. H. 160 ; Dee v. 
 
 Weston, 102 Cal. 362. , King, 73 Vt. 375. There are some early 
 
 * Pernam v. Wead, 2 Mass. 203 ; dicta to the effect that the way will 
 
 Schmidt v. Quinn, 136 Mass. 575; arise if it be reasonably convenient 
 
 Smith V. Tarbox, 31 Conn. 585 ; White though not strictly.necessary. In one 
 
 V. Story, 2 Hill (N. Y.), 543, 549; Val- case, Lord Mansfield said: "I know 
 
EASEMENTS. KINDS. HOW CREATED. 179 
 
 purchased property is surrounded on three sides by land of the 
 vendor and on the other one by the ocean or other navigable 
 body of water, while the approach by land might be much the 
 easier and shorter, yet, since the vendee can reach his lot by 
 using a boat, he has no right by implication to pass over his 
 grantor's adjacent premises.^ So, if the grantee can reach 
 his property over a public highway, though it be long and 
 round about,^ or if he have a steep, narrow, and inconvenient 
 road across land of a third party,* no way of necessity arises 
 in his favor. And the fact that it is much cheaper to float 
 logs from the lot granted, down a non-navigable stream which 
 flows over land of the grantor, does not give a way of necessity 
 down that stream, when there is another way out by railroad.* 
 The older books and cases use language to the effect that 
 the necessity must be absolute, — i. e. that there must be no 
 other means whatever of getting to the land, — in order that 
 a way of necessity shall be brought into existence. But the 
 better statement of the rule, which is sustained by the latest 
 and best decisions, seems to be that such a way will arise 
 when, without it, there could be no practical use of the en- 
 closed property, or it could not be used in the manner or for 
 the purpose manifestly intended by the parties to the convey- 
 ance.* If, for example, the consideration for the enclosed 
 parcel were five thousand dollars, and it would coat five hun- 
 dred thousand dollars to construct any approach to it, other 
 than one over the vendor's adjacent land, a way of necessity 
 would be implied.^ 
 
 not how it has been expounded, but it Gayetty d. Bethnne, 14 Mass. 49 ; Stuy- 
 wonldnot be a great stretch to call that vesant v. Woodruff, 21 N. J. L. 133. 
 a necessary way without which the most * Dodd v. Burchell, 1 Hurl. & C. 
 convenient and reasonable mode of en- 113; Carey v. Eae, 58 Cal. 159 ; Kripp 
 joying the premises could not be had." u. Curtis, 71 Cal. 62; M'Donald v. Lin- 
 Morris t). Edgington, 3 Taunt. 24,31. dall, 3 Rawle (Pa.), 492; Leonard v. 
 See also Pheysey y. Vicary, 16 M. & W. Leonard, 2 Allen (Mass.), 543. 
 484; Lawtonr. Rivers, 2 McCord(S.C.), * De Camp v. Thompson, 16 N. Y. 
 445; Alley v. Carleton, 29 Tex. 74; App. Dir. 528, 531. 
 "Watts i: Kelson, L. R. 6 Oh. App. 166, ' Schmidt v. Quinn, 136 Mass. 575 ; 
 175. Paine v. Chandler, 134 N. Y. 385; 
 
 1 Kingsley v. Goldsborough Land O'Rorke r. Smith, U R. L 259 ; Thomp- 
 Imp. Co., 86 Me. 279; Turnbull v. son y. Miner, 30 Iowa, 386. 
 
 Rivers, 3 McCord (S. C), 131 ; Lawton ^ Pettingill v. Porter, 8 Allen (Mass.), 
 
 V. Rivers, 2 McCord (S. C), 445 ; Bnr- 1, 6 ; Paine v. Chandler, 134 N. Y. 385 ; 
 
 lew V. Hunter, 41 N. Y. App. Div. 148, Smith u. Griffin, 14 Colo. 429 ; Oliver 
 
 151. But see Jay v. Michael, 92 Md. v. Pitman, 98 Mass. 46, 50; Goodall u. 
 
 ) 98. Godfrey, 53 Vt. 219. 
 
 2 Vossen v. Dautel, 116 Mo. 379; 
 
180 KINDS OF REAL PROPERTY. 
 
 § 145. Termination of Ways of Necessity — Their Suspension. 
 — All the ordinary methods of destroying and suspending 
 easements (which methods are fully examined hereafter) ^ 
 apply generally to a way of necessity. By clear, express 
 contract, for example, a man may release and do away with 
 such a privilege, even though the effect be to shut him off 
 from all access to his own land.* But, dependent as it is 
 upon necessity, this sort of a way has, as its own, peculiar, 
 additional cause for ceasing to exist, the ending of the neces- 
 sity. When the necessity no longer continues, the way ter- 
 minates.^ This may be brought about by the opening of a 
 public highway through or along the dominant tenement,* or 
 by the owner of that tenement acquiring another road or path 
 over other land,^ or by his purchase of more land, thus en- 
 abling himself to reach an existing thoroughfare,^ or by the 
 coming of the dominant and servient estates into the same 
 hands at the same time and in the same right,^ or by any 
 other transaction by which is brought to an end the necessity 
 for the way which was impliedly granted.^ 
 
 While a way of necessity is extinguished by the coming 
 together of the dominant and servient estates in the same 
 hands, at the same time and in the same right — it being 
 often said in such a case that the right is merged, though the 
 technically accurate expression is that it is extinguished — yet 
 it may readily be brought again into existence and pass with 
 the dominant estate upon the subsequent conveyance of that 
 tenement alone to another person.^ So the way of necessity 
 may be suspended for a time, as by the leasing of one tene- 
 ment for a term of years or for life by the owner of the other 
 
 1 §§ 187-195, jn/ra. Ch. (N. Y.) 353; Viall v. Carpenter, 
 
 " Richards v. Attleborough Branch 14 Gray (Mass.), 126. 
 
 E. E., 153 Mass. 120. See Symmes v. ^ Ballard v. Demmon, 156 Mass. 
 
 Drew, 21 Pick. (Mass.) 278 ; Goodall v. 449 ; Baker v. Crosby, 9 Gray (Mass.), 
 
 Godfrey, 53 Vt. 219. 421 ; Carbonic Acid Gas Co. v. Geysers 
 
 ' Palmer w. Palmer, 150 N. Y. 139 
 Holmes v. Seeley, 19 Wend. (N. Y.) 507 
 Fritz V. Tompkins, 41 N. Y. Supp. 985 
 Eowell V. Doggett, 143 Mass. 483, 489 
 Whitehouse v. Cumraings, 83 Me. 91 
 
 Gas Co., 72 N. Y. A pp. Div. 304. 
 
 ' Brown «. Berry, 6 Cold. (Tenn.) 
 98. 
 
 8 Morris v. Edgington, 3 Taunt. 24 ; 
 Pierce u. Selleck, 18 Conn. 321 ; 
 
 Seeley t). Bishop, 19 Conn. 128; Wissler Nichols w. Luce, 24 Pick. (Mass.) 102; 
 
 V. Hershey, 23 Pa. St, 333. Gayetty v. Bethune, 14 Mass. 49 ; 
 
 * Palmer v. Palmer, 71 Hun, 30, Alley v. Carleton, 29 Tex. 74 ; VS'oodr. 
 
 aff'd 150 N. Y. 139; Abbott v. Stew- Ways, 72. 
 
 artstown, 47 N. H. 228. » Brown v. Berry, 6 Cold. (Tenn.) 
 
 ' Holmes v. Goring, 2 Bing. 76 ; 98. 
 N. Y. Life Ins. Co. v. Milnor, 1 Barb. 
 
EASEMENTS. KINDS. HOW CREATED. 181 
 
 tenement; and it will revive when the lease ends and the two 
 parcels of land pass again into the possession of their different 
 owners.^ 
 
 § 146. Location and Change of Ways of Necessity. — The 
 kind of easement now under discussion is usually, at the out- 
 set, undefined as to place. If before the conveyance of the 
 land a convenient way had been in use for tho benefit of the 
 dominant tenement, it would ordinarily be understood that 
 the same should be continued.^ Otherwise, the parties may 
 agree on the location of the way and may change it as often 
 as both concur.^ But, when, as is ordinarily the case, it is 
 to be designated anew and the parties to the purchase and 
 sale have not agreed as to its location, the right to determine 
 where the route shall lie rests with him over whose lands it 
 is to be, provided that, upon request, he place it so that it 
 shall be reasonably convenient to him by whom it is to be 
 enjoyed.* If, upon being asked to do so, the owner of the 
 servient tenement fail to designate a suitable place for the 
 way, the owner of the dominant tenement may locate it ; but 
 in doing so he must have due regard to the convenience and 
 interests of the servient proprietor.^ 
 
 As a rule, there can be only one way of necessity. And, 
 therefore, where the grantor had been accustomed to use two 
 different roads to the parcel of land conveyed and they both 
 lay over other property of his own, he had the right to close 
 one of them and leave only the other for the use of the 
 grantee.® 
 
 1 Such a right is not lost, extin- Mass. 575 ; Dunham v. Pitkin, 53 Mich, 
 guished, nor auspeuded by mere non- 504 ; Kripp v. Curtis, 7 1 Cal. 62 ; Hart 
 user; but, if the servient owner «. Connor, 25 Conn. 331 ; 2 RoUe Abr. 
 adversely obstruct it for the period of pi. 17. 
 
 twenty years, it may be thereby de- ^ Palmer ti. Palmer, 150 N. Y. 139; 
 
 stroyed. Smiles v. Hastings, 24 Barb. Burlaw v. Hunter, 41 N. Y. App. Div. 
 
 44, 22 N. Y. 217. See how easements 148, 151 ; Nichols v. Luce, 24 Pick, 
 
 may be lost, destroyed, or suspended, (Mass.) 102, 104 ; Morris v. Edgington, 
 
 §§ 187-195, infra. 3 Taunt. 24; Holmes v. Seely, 19 Wend. 
 
 2 Barnard «. Lloyd, 85 Cal. 131 ; (N. Y.) 507. 
 
 Whitehouse v. Cnmmings, 83 Me. 91 ; * Bolton v. Bolton, L. R. 11 Ch. Div. 
 
 Ellis V. Bassett, 128 Ind. 118; Chase v. 968. But of course distinct parcels 
 
 Hall, 41 Mo. App. 15. See Bass k. conveyed by the same grant may each 
 
 Edwards, 126 Mass. 445. give rise to a separate way of necessity. 
 
 3 Smith V. Lee, 14 Gray (Mass.), See Nichols v. Luce, 24 Pick. (Mass.) 
 473; Rumill w. Robbins, 77 Me. 193. 102. In Bolton v. Bolton it is said 
 
 * Bolton V. Bolton, L. R. 1 1 Ch. Div. that the grantor, if he keep the land- 
 
 968 ; Capers i'. Wilson, 3 McCord locked piece, — the dominant tenement, 
 
 (S. C), 170; Palmer v. Palmer, 150 — may select the way. 
 N. Y. 139; Schmidt v. Quinn, 136 
 
182 KINDS OP REAL PBOPERTT. 
 
 After a way of necessity has been once designated by 
 express agreement of the parties, or located by one and used 
 by the other in such a manner as to imply his acquiescence, 
 it can not be changed by either without the other's consent. 
 The fact that the owner of such a right uses, for a consider- 
 able length of time without protest, the road or path fixed 
 upon by the other party is usually sufficient to prove his 
 acceptance of that particular way.^ 
 
 § 147. To what Extent Ways of Necessity may be used. — 
 When a way of necessity manifestly arises for some particular 
 purpose only, the use of it is restricted to the accomplishment 
 of that purpose. Thus, in a case where the land-locked 
 property conveyed was a mill-dam and race, and the only 
 reason for the existence of a way was to enable the grantee 
 to make repairs to them, he was restricted to a reasonable 
 use of the grantor's land for that one purpose, and could not 
 prevent the latter from cultivating the soil over which the 
 right existed,' so long as this did not interfere with such 
 enjoyment of the way.^ When, however, there is no such 
 restriction on the extent to which the owner of such ease- 
 ment may employ it, the law of England and of all the states 
 of this country permits it to be used for all the purposes for 
 which it may be required in order that there may be a full 
 enjoyment of the dominant tenement as it is at the time of 
 the conveyance.^ The parties contract with reference to the 
 enclosed piece of land as it is situated when their agreement 
 is made ; and the condition of that piece at that point of time, 
 or its condition as then clearly contemplated by them, will 
 determine the maximum use to be made of the way of neces- 
 sity to which the transfer gives rise. When, for ekample, 
 the enclosed parcel is used for the carrying on of a particular 
 kind of business, or is purchased with a view on the part of 
 the grantee of conducting such business thereon, which fact 
 is known by the grantor or reasonably presumed to be known 
 by him, an adequate way for that purpose is implied.* And, 
 on the sale of land to one who has notice that the vendor is 
 
 1 Pearson v. Spencer, 1 B. & S. 571 ; 798 ; SerfE v, Acton Local Board, L. K. 
 Palmer y. Palmer, 150 N.Y.I 39; Hines 31 Ch. Div. 679; Gayford v. Moffatt, 
 V. Hamburger, 14 N. Y. App. Div. 577 ; L. R. 4 Ch. App. 133 ; Myers v. Dunn, 
 Smith V. Lee, 14 Gray (Mass.), 473. 49 Conn. 71 ; Whittier v. Winkley, 62 
 See Rumill v. Bobbins, 77 Me. 193 ; N. H. 338. 
 
 Abbott V. Stewartson, 47 N. H. 228. * SerfE v. Acton Local Board, L. B. 
 
 2 M'Tavish v. Carroll, 7 Md. 352. 31 Ch. Div. 679. 
 » London v. Biggs, L. R. 13 Ch. Div. 
 
EASEMENTS. KINDS. HOW CREATED. 183 
 
 going to divide up adjoining property into building lots in 
 such a manner as to make a road over the property purchased 
 practically indispensable, such road becomes a way of neces- 
 sity reserved for the grantor. ^ 
 
 When the law upon this topic is stated as above, the limit 
 placed by the English courts upon the implication of the right 
 to use ways of necessity is practically reached. But the pre- 
 Tailing principle in the United States is that the owner of the 
 dominant tenement may enjoy such an easement, not only to 
 the extent and for the purposes demanded by the situation of 
 his property at the time of the grant, or in the way then con- 
 templated by the parties to the transaction, but also in such 
 manner as is requisite to the use of his land at any time for 
 lawful objects.^ "If," says the Supreme Court of New Hamp- 
 shire, "the parties supposed a way passed as a necessary 
 incident of the grant, how can it be inferred that they in- 
 tended only a way for a particular purpose, when they knew 
 the land was capable of being used for many purposes ? " ^ It 
 is, accordingl}', held that the proprietor of such a right, who 
 employs his land for the erection thereon of a dwelling-house, 
 may use the way to walk over, drive over, and haul such 
 articles over as are required for the convenient enjoyment of 
 the. property by himself and his family. So the owner of an 
 npper story of a building, the lower part of which belongs to 
 another person, may use the stairways and halls through the 
 parts below him, so far as is required for the proper enjoy- 
 ment of his property, whether or not such use was contem- 
 plated at the time when the portions of the house passed into 
 the hands of the different proprietors.* 
 
 A way of necessity, having been once located, can not be 
 subsequently prolonged and increased by its owner, so as to 
 
 ' Davies v. Sear, 7 Eq. 427. less the two owners concurred in re- 
 ^ Myers v. Dunn, 49 Conn. 71 ; storing it to the same condition in 
 Camp V. Whitman, 51 N. J. Eq. 467. which it had previously existed. Such 
 3 Whittier v. Winkley, 62 N. H. 338. de.struction would do away with all the 
 * Thompson v. Miner, 30 Iowa, 386 j interest in the house of the owner of 
 Morrison v. King, 62 111. 30 ; Benedict the upper part. But, if the owner of 
 V. Barling, 79 Wis. 551 ; Mayo v. New- the lower part co-operated in restor- 
 hoff, 47 N. J. Eq. 31 ; Pierce v. Cleland, ing the building to its original condition, 
 133 Pa. St. 189 ; Nat. Exch. Bk. u. this would restore his corporeal prop- 
 Cunningham, 46 Ohio St. 575. It may erty to the former -owner of the upper 
 be noted here, however, that such a way portion, and with it the way through 
 1;hrough the lower stories of a house the lower stories. Douglas v. Coonley, 
 would terminate upon the destruction 156 N. Y. 521. 
 ■of the house by accident or decay, un- 
 
184 KINDS OF EEAL PROPERTY. 
 
 become more burdensome. Thus, if a highway to which it at 
 first leads be closed, it can not be extended over land of the 
 grantor to another highway. ^ Nor can it be used for the 
 benefit of land other than that for which it was originally 
 created. If, for example, its owner purchase from a third 
 party a lot of land adjoining that in favor of which the right 
 exists, he must not go over the way for the purpose of- reach- 
 ing the newly acquired parcel, even though he attempt to do 
 so by going first upon the land to which the way belongs.^ 
 When he passes from the latter piece to the former, the ques- 
 tion as to whether or not he went over the way to enable him 
 to do so is one of fact for the jury. "Did he use the way to 
 get to the dominant estate, or was the use of it merely color- 
 able to get to the lot beyond. " If the latter, he was guilty of 
 trespass.^ 
 
 § 1-18. (c) Equitable Easements — defined and illustrated. 
 — ■ From covenants or conditions in deeds, and even from oral 
 agreements or representations, equity frequently raises or 
 implies easements which are not recognized in a court of law. 
 These are always negative in character. Hence, they are 
 often designated as negative equitable easements. They are 
 brought into existence and enforced by courts of equity, for 
 the purpose of working out justice between owners of neigh- 
 boring lands, and in disregard of the existence or non-exist- 
 ence of privity, or contractual or conventional relationship of 
 any kind between such neighbors. * Their most prominent and 
 frequent illustration is presented by the owner of a tract of 
 land selling it off in separate lots or parcels to different pur- 
 chasers and inserting in the deeds, or otherwise imposing upon 
 the vendees, stipulations as to the kinds of buildings which may 
 be erected upon the property, or the trades or sorts of business 
 which may be there carried on, or the uses in other respects 
 to which it may be put." When such agreements evince a 
 
 1 The remedy of the landowner, rych on Ways, p. *34. See § 198,. 
 whose access to his property is thus cut infra. 
 
 off, is against the public for the dam- 8 Skull v. Glenister, 16 C. B. n. s. 
 
 ages caused by the closing of the liigh- 81, 102. See London v. Eiggs, L. R. 
 
 way. Morse v. Benson, 151 Mass. 440. 13 Ch. Div. 798 ; N. Y. L. Ins. & T. Co. 
 
 2 Howell V. King, I Mod. 190 ; Law- „. Milnor, 1 Barb. Ch. (N. Y.) 353. 
 
 ton V. Ward, 1 Ld. Eaym. 75 ; Daven- * See definition and illustrations of 
 
 port J). Lamson, 21 Pick. (Mass.) 72; privity, p. 168, note 1, sujara. ' 
 Greene v. Canny, 137 Mass. 64, 69 ; 6 Equitable Life Assur. Soc. of U. S. 
 
 French w. Marstin, 32 N.H. 316; Wool- v. Brennau, 148 N. Y. 661 ; Tobey w. 
 
 Moore, 130 Mass. 448. 
 
EASEMENTS. KINDS. HOW CREATED. 185 
 
 uniform, general plan of a common grantor or mutual grantors 
 with respect to the manner of improvement and occupation of 
 the land, and are not exclusively for tlie benefit of the grantor, 
 but are meant to be for the advantage generally of the entire 
 tract, equity will enjoin the breach of them by any of the 
 grantees, upon the suit of any of the other lot owners.^ Equi- 
 table easements may, accordingly, be defined as those rights, 
 which a court of equity alone accords to landowners, to restrain 
 neighboring proprietors from using their land in ways in 
 which it might be freely employed but for the existence of re- 
 strictive covenants, conditions, or stipulations affecting benefi- 
 cially and usually in substantially the same manner all the 
 parcels involved. Thus, where the owner of several lots of 
 land sold them to different purchasers, and it was stipulated 
 in the deeds that no house to be built thereon should be set 
 within ten feet of the line of the street, it was held that there 
 were thereby created, in respect to the various pieces, mutual 
 easements and servitudes, which equity would enforce, by en- 
 joining the violation of their terms, among the grantees and 
 their successors in interest.^ So, in a case in which the 
 covenants in the deeds were that the grantees would not erect 
 or permit to be erected, on the property conveyed, any livery- 
 stable, slaughter-house, etc. (enumerating various trades " of- 
 fensive to the neighboring inhabitants "), each purchaser had an 
 easement against all the other lots, to prevent their owners from 
 establishing or maintaining any of those trades upon them.^ 
 
 § 149. Requisites of Equitable Easements. — It is to be no- 
 ticed that equitable easements are most commonly mutual or 
 reciprocal riglits, which the landowners have, the one against 
 the other. Each lot is a dominant tenement, as to all the 
 others involved in the general plan, and a servient tenement in 
 favor of each of those others. In order that such rights and 
 duties shall spring into existence, it is necessary, in the first 
 place, that the restrictions placed upon all the parcels involved 
 in a general scheme shall be substantially the same, and im- 
 posed by a common grantor or mutual grantors. A lot affected 
 
 ^ Last preceding note. of implied grant. They are not legal 
 
 2 Winiield v. Hennesy, 6 C. E. Green grants ; yet they are, so to speak, 
 
 (N. J.), 188, 190; Tallmadge v. The equitably implied grants arising from 
 
 East Rirer Bank, 26 N. Y. 105. the severance of an entire tract, and so 
 
 ' Barrowu. Richards, 8 Paige (N.Y.), they are best treated of in the present 
 
 351 . It is, in a sense, illogical to dis- connection. 
 
 cuss equitable easements under the head 
 
186 KINDS OF REAL PROPERTY. 
 
 by one kind of covenant or stipulation can not enjoy an equita- 
 ble easement over another, the only restrictions on which are 
 materially different, since there is no general scheme of im- 
 provement or development.^ And, if A convey an entire tract 
 of land to B, with- a restrictive covenant which B does not in- 
 sert in the deeds whereby he transfers separate lots therefrom 
 to different purchasers, the latter acquire no equitable ease- 
 ments through that covenant.^ One grantor, or he and his 
 successors in interest, or the purchasers among themselves, 
 must affect the separate lots with substantially uniform re- 
 strictions, in order thus to give rise to such easements. 
 
 Secondly, there must appear, either in the express terms of 
 the agreement or by necessary implication from all the cir- 
 cumstances, a clear intention to establish the restriction for 
 the benefit of the land generally and that of the person suing. 
 In Badger v. Boardman,^ the first deed, which was of a house 
 and lot, contained a covenant that no shed or outbuilding at 
 the rear of the house should ever be built any higher than the 
 one then existing. Subsequently the same vendor sold his 
 other and adjoining lot to another purchaser, who sought to 
 restrain the first vendee from increasing the height of the 
 shed. But the court of equity refused to grant the relief asked 
 for, because there was nothing in the deeds or circumstances 
 of the case to show that the restriction as to the defendant's 
 building was intended to inure to the benefit of the plaintiff or 
 his land.* " If the covenant is silent ; " says the New York 
 Court of Appeals, " if there is no mutual agreement or under- 
 standing between the various owners creating an easement; 
 if there is nothing in the surrounding circumstances from 
 which mutual rights can be fairly inferred, then no action can 
 be maintained." ® 
 
 Thirdly, those against whose property the equitable ease- 
 ment is sought to be enforced must have notice that the re- 
 
 1 Equitable Life Assur. Soc. of U. S. Land Co. v. Solly, 148 N. Y. 42 ; Sharp 
 V. Brennan, 148 N. Y. 661 ; Everett o. v. Ropes, HO Mass. 381. 
 Hemington (1892), 3 Ch. 148; Beale v. 6 Equitable Life Assur. Soc. of U. S. 
 Case, 138 Mass: 138 ; Boston B. S. U. v. Brennan, 148 N. Y. 661, 672. See 
 V. Trustees of Boston University, 183 Barrow ti. Richards, 8 Paige (N. Y.), 
 Mass. 202. 351 ; Brouwer v. Jones, 23 Barb. (N. Y.) 
 
 2 Korn V. Campbell, 192 N. Y. 490. 153 ; Seymour v. McDonald, 4 Sand. 
 " 16 Gray (Mass.), 559. Ch. (N. Y.) 502; Lattimer «. Liver- 
 * See also Woodhaven Junction more, 72 N. Y. 174; Skinner v. Shep- 
 herd, 130 Mass. 180. 
 
EASEMENTS. KINDS. HOW CREATED. 187 
 
 striction was intended for the benefit of the land of him who 
 is endeavoring to assert the right. " It is not necessary in 
 order to sustain the action that there should be privity either 
 of estate or of contract ; nor is it essential that an action at 
 law should be maintainable on the covenant ; but there must 
 be found somewhere the clear intent to establish the restric- 
 tion for the benefit of the party suing or his grantor, of which 
 right the defendant must have either actual or constructive 
 notice. " ^ And the record of the deed is sufficient notice of 
 the existence of that right. ^ 
 
 § 150. Forms of Contract from 'which Zlquitable Easements 
 arise. — The most common forms of agreement from which 
 easements are implied by courts of equity are covenants by 
 vendees in deeds of conveyance, i. e. stipulations whereby the 
 purchasers undertake that the property shall or shall not be 
 used in specified ways or for designated purposes. Illustra- 
 tions of these have already been given in those cases in which 
 stand-back covenants, so-called, require any house built upon 
 the land to be a certain distance from the street line,^ and in 
 those restrictions against nuisances, which are so often found 
 in deeds and which prohibit the carrying on, upon the prop- 
 erty, of certain trades or kinds of business.* When the con- 
 tract takes simply the form of a covenant, and no conditional 
 element is annexed, then, upon its breach, the grantor may 
 either sue the grantee at law for damages or enjoin him in 
 equity from any further violation of his agreement ; but the 
 mere infraction of a covenant by the purchaser gives no right 
 to the vendor or those who succeed to his interests to re-enter 
 and take back the property.^ Whenever, then, the stipula- 
 tions in the deeds are covenants, each grantee has an equit- 
 able easement against his neighbors who are restricted in 
 substantially the same manner as himself in conveyances 
 from the same grantor. 
 
 In the few cases in which the question has been presented 
 to the courts, it has been also held that neighboring land- 
 
 ^ Equitable Life Assur. Soc. of U. S. ' Winfield v. Heunesj, 6 C. E. Green 
 
 V. Brennan, 148 N. Y. 661, 671. (N. J.), 188, 190; § 148, supra. 
 
 '^ Peck V. Conway, 119 Mass. 546. * Trustees of Columbia College v. 
 
 A covenant against encumbrances iu Lynch, 70 N. Y. 440; Trustees of Col- 
 
 a deed of conveyance is broken by umbia College v. Thacher, 87 N. Y. 31 1 ; 
 
 the existence of an equitable easement Rowland v. Miller, 139 N. Y. 93 ; De 
 
 against the property conveyed. Kramer Gray v. Monmouth, B. C. H. Co., 50 
 
 V. Carter, 136 Mass. 504; Jeffries v. N. J. Eq. 340. 
 
 Jeffries, 117 Mass. 184. * Stuyvesaut i-. Mayor, etc., 11 Paige 
 
 (N. Y.), 414, 427. 
 
188 KINDS OF REAL PROPERTY. 
 
 owners, who claim under the same grantor and through his 
 deeds containing similar restrictive conditions — i. e. stipula- 
 tions upon the violation of which the grantor or his heirs 
 may re-enter and take back the property — are entitled to 
 equitable easements against one another and may prevent, by 
 injunction, the breach of the conditions. ^ 
 
 The principle, upon which rests the class of easements 
 now under discussion, is that, where adjoining and neighbor- 
 ing lot owners are permanently bound in conscience and good 
 morals to abstain from employing their properties in certain 
 ways, equity will compel any one or more of them, at the suit 
 of any other, to abstain from violating such obligation ; and 
 this without regard to any privity either of contract or of estate 
 between the litigating parties. In applying this doctrine, the 
 courts have gone to the full extent of holding that, although 
 the restriction be not entered into in the form of covenant or 
 condition, and even though it be a mere oral contract or 
 representation, it may, nevertheless, create an equitable ease- 
 ment and impose a burden or servitude, provided it appear 
 that the parties meant to establish a permanent restraint upon 
 the use or mode of occupation of the land.^ This is forcibly 
 illustrated by the case of Lewis v. Gollner,* in which the New 
 York Court of Appeals held that an injunction was properly 
 decreed against the erection, in a fine residential section of 
 Brooklyn, of a tenement house, by one who had notice that 
 her grantor had orally agreed with the neighboring lot owners, 
 for a valuable consideration, not to erect any apartment or 
 tenement house in that vicinity. 
 
 The only limitations upon this principle, so broadly and 
 liberally applied by courts of equity, are that the intention of 
 the parties, however expressed, shall be clear and explicit,* 
 that that intention shall be to impose a permanent uniform 
 I'estriction upon the use or method of occupation or enjoyment 
 of the respective parcels of land, and that he against whom 
 
 1 Parker v. Nightingale, 6 Allen " 129 N.Y. 227. 
 
 (Masa.), 341 ; Clark v. Martin, 49 Pa. * It was the fact that the intention 
 
 St. 289, 290. of the parties to restrict the rectangular 
 
 2 Tallmadge v. East Biver Bank, 26 piece of land to its use for a chapel was 
 N.Y. 105; Hubbell r. Warren, 8 Allen not sufficiently clear that caused the 
 (Mass.), 173; Hodge w. Sloan, 107 N. Y. court to refuse the injunction prayed 
 244, 250 ; Hayward r. Miller, 6 N. Y. for in Johnson v. Shelter Island 6. & C. 
 Misc. 254; Everett y. Remington (1892), M. Assoc, 122 N. Y. 330, the facts of 
 3 Ch. 148. which are stated in § 133, supra. 
 
EASEMENTS. KINDS. HOW CREATED. 189 
 
 ^ 
 
 such restriction is sought to be enforced shall have had notice 
 of the same at the time of his purchase. 
 
 § 151. By and against -v^hom Equitable Easements may be 
 enforced. — " There are many cases in this country and Eng- 
 land," says the New York Court of Appeals, "which uphold 
 the doctrine laid down in Tallmadge v. The East River Bank 
 (26 N. Y. 105) to the effect that although the legal title be 
 absolute and unrestricted, yet the owner may, by parol con- 
 tract with the purchasers of successive parcels in respect to 
 the manner of its improvement and occupation, affect the 
 remaining parcels with an equity requiring them also to be 
 occupied in conformity to the general plan which is binding 
 upon a subsequent purchaser with notice."^ This dictum 
 expresses the limitations of the principle upon which is 
 ascertained who may be bound by equitable easements and by 
 whom they may be enforced. All persons who purchase lots 
 from a common grantor with substantially the same cove- 
 nants, conditions, or other restrictions in their deeds, all 
 grantees who are affected by stipulations or representations 
 (even though made orally) as to the use to which their land 
 shall be put, and all those who purchase from any such owners 
 with notice of the limitations affecting the property, are bound 
 by such easements and may enforce them against one another. 
 A grantor, moreover, who has conveyed parcels of land subject 
 to uniform restrictions, which are meant to be for the benefit 
 of an entire tract or neighborhood, impresses an equitable 
 easement or servitude upon his remaining property, so that 
 his vendees within any reasonable distance may restrain him 
 from occupying or improving that which he retains otherwise 
 than in conformity to the general plan. And this equity 
 affects all subsequent purchasers of the remaining portions, 
 who have notice of the prior agreements, even though their 
 legal titles be unrestricted by any express covenants or con- 
 ditions.^ Thus, where the vendor of a large tract of land 
 inserted in the deeds to the purchasers of a number of the 
 lots first sold a covenant restraining them from building any 
 frame houses upon the land, it was held that tlie same re- 
 striction affected in equity the parcels which he retained, and 
 ran witli them against all who subsequently bought with 
 
 1 Equitable Life Assnr. Soc. of U. S. bia College v. Lynch, 70 N. Y. 440, 
 V. Brennan, 148 N. Y. 661, 672. 447; Clark v. Martin, 49 Pa. St. 289, 
 
 2 Tallmadge v. The East River 290; Parker v. Nightingale, 6 Allen 
 Bank, 26 N. Y. 105 ; Trustees of Colum- (Mass.), 341 ; Pom. Eq, Jur. § 1295. 
 
190 KINDS OF REAL PROPERTY. 
 
 notice of the facts.^ Where one conveyed a house lot and in- 
 serted in the deed a condition that the grantee should not erect 
 upon the back part of the premises any building above a desig- 
 nated height, the grantof then owning the adjoining lot, and 
 the respective parcels subsequently came into the hands of new 
 owners by grants from the parties to the first deed ; it was 
 held that, since the condition was manifestly for the benefit of 
 the original grantor's lot, if not for both pieces, the land first 
 sold, at least, remained bound by it, and the owner of either 
 lot might have a bill in equity to restrain the erection upon 
 the other of a building above the prescribed height.^ Clearly, 
 in this case, if the benefit were intended for both lots, each 
 owner could enforce it against the other. The basis of such 
 rights is equitable estoppel ; it is held in equity to be unaf- 
 fected by the statutes of frauds, and the extent to -which the 
 principle will be carried and the amount of territory which 
 ■will be brought within its operation in any case depend upon 
 the sound discretion of that court.* 
 
 § 152. When Equitable Easements terminate. — Equitable 
 easements may be released, abandoned, or otherwise extin- 
 guished, in the same manner as other easements. They are 
 sometimes destroyed, also, by a change in the neighborhood 
 in which the land affected by them is situated. They arc 
 creatures of equity, brought into existence for the purpose of 
 working out justice among the various parties who are bound 
 by them and may enforce them. And, therefore, when a 
 change in the character of the surrounding properties, or in 
 the uses to which they are put, is such that it would no 
 longer be right and just to enforce negative restrictive stipu- 
 lations in favor of those to whom they have not been directly 
 made, they cease to operate except for those who may main- 
 tain actions at law upon them. In other words, they cease to 
 cause equitable easements to exist when it would no longer 
 be equitable to imply such easements.* A covenant, for 
 example, which restrains all the lot owners in a certain 
 prescribed section of a city from erecting upon their lands 
 
 1 Bimson i^. Bultman, 3 N. T. App. « Trustees of Columbia College v. 
 Div. 198; Turner v. Howard, 10 N. Y. Lynch and Thacher, 70 N. Y. 440, 87 
 App. DiT. 555; Silbermanw. Uhrlanb, N.Y. 311; Fourth Presbyterian Church 
 116 N. Y. App. Div. 869; Trustees of v. Steiner, 79 Huu (N. Y.), 314; B. E. 
 Columbia College v. Lynch, 70 N. Y. & C. R. Co. v. N. Y. L. E. & W. E. Co., 
 440, 447 ; Pom. Eq. Jur. § 1295. 123 N. Y. 316 ; Holt v. Eleigchman, 75 
 
 2 Clark V. Martin, 49 Pa. St. 289, 290. N. Y. App. Div. 593. 
 
 3 Bimson v. Bultman, 3 H. Y. App. 
 Diy. 198. 
 
EASEMENTS. KINDS. HOW CREATED. 191 
 
 any building except three story, brown stone front, private 
 residences, may be enforced by all those for the benefit of 
 whose land it was created, so long as that style of dwelling is 
 suitable and in keeping with the locality. But when manu- 
 facturing or business establishments have so encroached upon 
 this section that it would be a detriment to the property to 
 insist on the observance of the covenant, then equity will not 
 grant an injunction against its breach, on the ground that any 
 easemeut or servitude is to be implied.^ A change in the 
 character of the neighborhood, however, will not do away with 
 equitable easements while they are still useful and important 
 to the various lot owners, though in different ways and for 
 different purposes from those originally intended.^ And it is 
 also to be carefully noted that no change in the character of 
 the neighborhood will destroy the right of a grantor and those 
 who succeed to his interest to sue at law for the breach of an 
 express covenant in his deed, or to re-enter and defeat the 
 estate of the grantee for violation of a condition therein ex- 
 pressed. Thus, if A convey land to B by a deed in which B 
 covenants that certain things shall not be done on the prem- 
 ises, A and all those who succeed to his rights may always 
 maintain an action at law against B and those in privity with 
 liim for any violation of such agreement ; and this regardless 
 of any changes that may occur in the neighborhood.' Among 
 those who succeed to A's rights under such circumstances have 
 been classed subsequent purchasers of lots adjoining B's or 
 reasonably close to the same ; for in favor of such proprietors 
 it has been held at law that the negative easements were 
 directly created. But contiguous owners, who bought their 
 parcels of A before the sale to B, and those whose lots are 
 so situated in relation to B's that it can not be said as a 
 matter of law that the covenant was directly made for their 
 benefit, can have no remedy agai-nst B except in so far as 
 equity affords one because it raises equitable easements ; and- 
 such easements will cease to be when the working out of 
 justice among the respective lot owners no longer requires 
 their existence.* 
 
 1 Trustees of Columbia College v. ' McClure v. Leaycraft, 183 N. Y. 
 Lynch and Thacher, 70 N. Y. 440, 87 36. See Deeves v. Constable, 87 N. Y. 
 N. Y. 3U. App. Dir. 352,357; Kitching w. Brown, 
 
 2 Zipp V. Barker, 40 N. Y. App. 180 N. Y. 414. 
 
 Div. 1. * Amerdeu v. Deane, 132 N. Y. 355; 
 
192 KINDS OF REAL PROPEETy. 
 
 It follows, moreover, from the above-stated principles, and 
 has also been expressly decided, that if he who seeks to 
 enjoin the breach of an equitable easement be shown to have 
 broken the stipulation upon which it rests, or to have know- 
 ingly acquiesced in frequent violations of it by his neighbors, 
 equity will refuse him the relief for which he prays when he 
 asks for an injunction against its breach by others.^ 
 
 d. Easements created hy Prescription. 
 
 § 153. Prescription defined and explained. — Prescription 
 is a mode of acquiring the ownership of incorporeal heredita- 
 ments by long-continued user or enjoyment. It originated in 
 the desire of the courts to quiet titles, and to put an end to 
 long and expensive litigation in cases in which the evidence 
 adduced would be vague and unsatisfactory because of the 
 antiquity of the facts and events with which it must attempt 
 to deal. This judicial tendency has been the primary cause 
 of the growth of three methods of obtaining property, which 
 are now well established in our law, namely, by custom, by 
 adverse possession, and by prescription. Custom >is distin- 
 guished from prescription in that the former is a mere local 
 usage, not annexed to any particular person, but belonging to 
 the community rather than to its individuals, while the latter 
 is a personal usage or enjoyment confined to the claimant and 
 his ancestors or those whose estate he has acquired." Thus, 
 a privilege for the inhabitants of a certain town or parish to 
 dance and play games on a particular piece of land may 
 grow out of a custom immemorially continued ; ^ but if the 
 owner of a lot of land has a right of way over his neighbor's 
 field because he, or he and his grantors, have walked across 
 it for many years, he is the owner of an easement founded on 
 
 JRowland V. Miller, 139 N. Y. 93, 104; must obtaiu releases from all the neigh- 
 People ex rel. Trost v. N. Y. C. & H. boring proprietors who have a right to 
 E. Co., 168 N. Y. 187, 194; Tourth enforcetheeasements, and also from the 
 Presbyterian Church v. Steiner, 79 Hun grantor (or his successors in interest) in 
 (N. Y.), 314. See Woodhaveu June. connection with whose deed or transfer 
 Ii. Co. V. Solly, 148 N. Y. 42. the restrictive stipulations originated. 
 
 It follows from these principles that, i Moore v. Murphy, 89 Hnu (N. Y.), 
 
 when the owner of a lot of land which 175; Deeves ». Constable, 87 N. Y. 
 
 is encumbered by equitable easements -A.pp. Div. 352. See Woodhaven Juno, 
 
 desires to do anything thereon in viola- L. Co. v. Solly, 148 N. Y. 42. 
 tion of the restrictions, in order in doing ^ Blackst. Com. p *263. 
 
 so to become secure against subsequent ^ Fitch v. Eawling, 2 H. Blackst. 
 
 attacks both at law and in equity, he 393. See § 170, infra. 
 
EASEMENTS. KINDS. HOW CREATED. 193 
 
 prescription. Adverse possession differs from both custom 
 and prescription in that it is, properly speaking, a means of 
 acquiring title to corporeal hereditaments only, and is usually 
 the direct result of statutes of limitations ;i while they are 
 the outgrowth of common-law principles, with but little aid 
 from the legislature, and, properly speaking, have to do with 
 the acquisition of no kind of property except incorporeal 
 hereditaments.'^ 
 
 § 154. History and Development of Prescription. — In the 
 ancient common law, prescription meant the acquisition of 
 an incorporeal hereditament by enjoying it for so long a time 
 that there was no evidence as to when it began to be used. 
 He who rested his claim to a right upon prescription must 
 show immemorial enjoyment of it by himself or by those 
 under whom he claimed — an exercise of it so long continued 
 that "the memory of man runneth not to the contrary. "^ 
 After the troublous times of Richard I., because of the great 
 difficulty in tracing titles back beyond that period, it became 
 less and less customary to attempt to do so ; and, by the year 
 1275, the law was settled that a right might be established by 
 prescription if its continued and uninterrupted adverse user 
 could be shown to extend backward as far as the beginning of 
 his reign (1189).* But as this period became unreasonably 
 long, in the lapse of years, the time necessary to raise a strict 
 prescription was limited by a statute in the 32nd year of 
 Hen. VIII. (1541), at sixty years;* and, subsequently, the 
 courts, finding the necessity for proving even that length of 
 user to be inconvenient and burdensome, looked about them 
 for some principle upon which it might be further shortened. 
 This they obtained by inventing the fiction of a grant made 
 and lost in modern times. And when they sought to fix a 
 period, after the lapse of which a grant should be presumed, 
 they found a ready analogy in the twenty years prescribed by 
 
 1 The passing of corporeal heredita- quiring intangible rights by long user 
 ments by adverse possession is discussed or enjoyment. Merlin, Repertoire de 
 in dealing with title to real property. Jurisprudence, title Pre'scription, sect. 
 
 2 See Boyce v. Mis. Pac. li. Co., 186 1 ; H Law Mag. & Rev. 109. 
 Mo. 583 ; Missouri v. Illinois, 200 U. * Jones, Ease. § 158. 
 
 S. 496, 520. ' Coolidge v. Learned, 8 Pick. (Mass.) 
 
 » Lomax, Dig. 6U, 615; Lit. § 170; 503, 508; Ricard v. Williams, 7 Wheat. 
 
 Co. Lit. 115a; Termes de la Ley, title (U.S.)59; Tyler «. Wilkinson, 4 Mass. 
 
 Prescription ; Mayor of HuU v. Homer, 402 ; 2 Greenl. Ev. § 539. See Ar- 
 
 Cowp. 102, 109. buckle v. Ward, 29 Vt. 43 ; Okesoa a. 
 
 The civil law also uses the word Patterson, 29 Pa. St. 22 ; Crawson v. 
 
 prescription to denote the means of ac- Primrose, 4 Del. Ch. 643. 
 
 13 
 
194 KINDS OF REAL PROPERTY. 
 
 the Statute of Limitations (21 Jas. I. ch. 16, a. d. 1623) as the 
 time within which one might acquire the title to corporeal 
 hereditaments by adverse enjoyment. This length of enjoy- 
 ment was accordingly settled upon in England as sufficient to 
 establish a prescriptive right. It was adopted as a period 
 adequate to raise a presumption of a grant which had been 
 lost and therefore could not be produced as evidence ; or, as 
 the most modern theory is, to raise a conclusive presumption 
 of a grant, or some other legal origin, at least twenty years 
 old. And such is the English doctrine of to-day, according 
 to which prescriptive easements may be created by twenty 
 years adverse user or enjoyment of the way, drain, water-flow, 
 or other incorporeal thing. ^ In summary, then, the ancient 
 English doctrine, upon this topic, was the resting of title by 
 prescription upon immemorial usage ; while the modern one 
 is based upon the conclusive presumption of a grant or other 
 legal origin, after twenty years of uninterrupted adverse 
 enjoyment. 2 The statute 2 & 3 Will. IV. ch. 71 (1832), 
 which is known as the Prescription Act, has settled a number 
 of questions, about which the English courts found difficulties 
 because of the differences between the ancient theory and the 
 modern one. That statute fixes the exact time of prescrip- 
 tion, for certain classes of easements (the prevailing period 
 being twenty years), and particularly prescribes what must be 
 proved in order to establish the right to them.^ 
 
 In the United States, the modern English doctrine of a 
 
 1 Angus V. Dalton, L. E. 4 Q. B. Div. as a fact, whether there were any evi- 
 162 ; Bright v. Walker, 1 Cr. M. & R. dence to that effect or not, that there 
 211; Bass ». Gregory, L. R. 25 Q. B. had been a grant given and lost. But 
 Dir. 481. this method of apparently making the 
 
 2 Angus V. Dalton, L. R. 4 Q. B. Div. question purely one of fact to be deter- 
 162; Bass v. Gregory, L. R. 25 Q. B. mined by the jury was found to be too 
 Div. 481 ; Parker v. Foote, 19 Wend. great a strain on the consciences of 
 (N. Y.) 309. For a series of years, jurors, and was therefore abandoned in 
 during the progress of the changes de- favor of the legal fiction of a grant pre- 
 scribed in the text, judges were in the sumed by the court. Bass v. Gregory, 
 habit of leaving it to juries to presume L. R. 25 Q. B. Div. 481, 484. The mod- 
 a grant, as a matter of fact, from a long ern theory of conclusively presuming 
 exercise of an incorporeal right; and a grant, or some other legal origin, is 
 they usually adopted the period of discussed more at length, § 163, infra. 
 twenty years by analogy to the statute » Bright v. Walker, 1 Cr. M. & R. 
 of limitations. If one jury failed to find 211, 217; Sturges v. Bridgman, L. E. 
 a grant, as a matter of fact, from such 1 1 Ch. Div. 852 ; Dalton v. Angus, 
 period of user, it was dismissed and L. R. 6 App, Cas. 740 ; 1 Greenl. Ev. 
 another empanneled; and this process § 17, note 1 ; Tud. Lead. Cas. 14. 
 
 was continued until some jury concluded 
 
EASEMKNTS. KINDS. HOW CBBATBD. 195 
 
 presumed grant or other legal origin is generally adopted ; but 
 the length of time, which must elapse before such presump- 
 tion will be indulged, varies in the different states with the 
 variations in the periods prescribed by the statutes of limita- 
 tions. Thus, in Connecticut it is fifteen years, in analogy 
 to its statute of limitations ;i in Pennsylvania, as the result 
 of a like analogy, it is twenty-one years ;2 while in New York, 
 for a similar reason, it was formerly twenty-five years and is 
 now twenty.^ But in some cases, in this country, the fiction 
 of an implied grant has been repudiated and the prescriptive 
 period made the same as that fixed by the statute of limita- 
 tions, by direct analogy and without regard to any presump- 
 tion as to the origin of the right.* And in a few states there 
 are special statutes dealing with the subject of the acquisition 
 of easements by prescription.^ The nature of the presumption 
 of a grant, or other legal origin, will be more fully discussed 
 after the requisites of prescriptive easements have been 
 examined.^ 
 
 § 155. Nature of the User requisite to create Easements by 
 Prescription. — The user during the twenty years (or other 
 period determined as is above explained from the statute 
 of limitations of the state in which lies the land affected) 
 is required by the law, in order to give rise to a prescrip- 
 tive easement, to have been (a) open, visible, and notorious, 
 (b) continuous and uniform, (c) peaceable and uninterrupted, 
 (d) with an adverse claim of right, and (e) with the acquies- 
 cence of the owner of the land, (f) who was seised in fee and 
 (g) who, at the time of the beginning of such enjoyment, was 
 
 1 Sherwood v. 'Ban, 4 Day (Conn.), mont, and Virginia it is fifteen years; 
 244, 249 ; Legg v. Horn, 45 Conn. 409, in Ohio and Pennsylvania it is twenty- 
 415. one years, and in the other states 
 
 2 Strickler u. Todd, 10 S. & R. it is twenty years. Jones, Ease. § 160, 
 (Fa.) 63, 69. note and statutes and cases cited. 
 
 ' Gerard on Titles to Real Estate * Krier's Private Road, 73 Pa. St. 
 (4th ed.), p. 759 ; N. Y. Code Civ. Pro. 109. See Workman v. Curran, 89 Pa. 
 §§ 365, 366. In Arizona Territory, St. 226 ; Atty.-Gen. v. Revere Rubber 
 California, Idaho, and Nevada the Co., 152 Mass. 444 ; Schulenberg u. 
 period is five years ; in Arkansas, Zimmerman, 86 Minn. 70. 
 Florida, and Tennessee it is seven ^ See Ricard v. Williams, 20 V. S. 
 years; in Alabama, Iowa, Mississippi, (7 Wheat.) 59, 110; Hazard v. Robin- 
 Missouri, Montana, Nebraska, New son,3 Mason (U. S. Cir. Ct.), 272. Dis- 
 Mexico, Oregon, Texas, Washington, trict of Col. v. Robinson, 180 U. S. 92 ; 
 West Virginia, and Wyoming it is ten Simpson v. Boston & M. R. Co., 17S 
 years ; in Connecticut, Indiana, Kansas, Mass. 359. 
 Kentucky, Michigan, Oklahoma, Ver- '^ § 163, infra. 
 
196 KINDS OP REAL PROPERTY. 
 
 free from disability to resist its imposition upon his property. 
 Each of these requisites is to be briefly explained. 
 
 § 156. (a) The User must be Open, Visible, and Notorious. 
 — By this is meant that it must be of such a nature and fre- 
 quency that the owner of the servient land knows, or must 
 be reasonably presumed to know, of its existence. If, for 
 example, the right had been claimed only once or twice dur- 
 ing the twenty years, or the use had occurred only in the 
 middle of the night or in some other secret manner, this 
 would not be likely to have given any notice to the owner of 
 the land affected, and would not be sufficient for the establish- 
 ment of an easement.^ But if the enjoyment were such that 
 the landowner could reasonably have known of its existence, 
 even though he had no actual knowledge thereof, that would 
 be all in this respect that the law requires.^ 
 
 § 157. (b) The User must be Continuous and Uniform. — In 
 Bome of the books and cases, the form of expression is 'that 
 the enjoyment must have been " continuous and uninterrupted, " 
 that is, that it must neither have been stopped or suspended 
 by the claimant of the right in such a manner as to indicate 
 an abandonment, nor interfered with by the owner of the 
 land over which the right is exercised so that the substantial 
 continuity of the prescriptive period was broken.^ The inter- 
 ference by the owner of the servient land is discussed in the 
 following section ; and simply the acts and omissions of the 
 •claimant of the right, which may interrupt the running of 
 the period of adverse user, are to be here considered. This 
 involves inquiries as to : f,rst, what is to be regarded as con- 
 tinuous enjoyment; second, how far uniform or similar in 
 character the acts of enjoyment must be ; and, third, how far 
 the acts of one person may ^e united with those of another so 
 as to make a continuity for the period of time required. 
 
 1 Gilford V. Wimiepiseogee Lake and the owner of the adjoining land may 
 
 Co., 52 N. H. 262 ; Deerfield v. Conn. be said to have lost the full benefit of 
 
 Riv. B. Co., 144 Mass. 325 ; Tread- rights through his laches, it may be a 
 
 well V. Inslee, 120 N. Y. 458 ; Flora v. fair test of whether the enjoyment was 
 
 Carbean, .38 N. Y. 1 11 ; Esling v. Wil- open or not to ask whether it was such 
 
 liams, 10 Pa. St. 126 ; Cleveland v. that the owner of the adjoining land, 
 
 Ware, 98 Mass. 409 ; Dee v. King, 73 but for his laches, must hare known 
 
 Vt. 375. what the enjoyment was and how far it 
 
 ^ O'Brien a. Goodrich, 177 Mass. 32; went." Lord Blackburn, in Dalton v. 
 
 Lewis V. N. Y. & H. R. Co., 162 N. Y. Angus, L. B. 6 App. Cas. 740, 827. See 
 
 202 ; Boyce v. Mis. Pac. B. Co., 168 Ward v. Warren, 82 N. Y. 265. 
 Mo. 583. " And in cases where the en- ^ Wash. Ease. (4th ed.) p. 167, p. 
 
 joyment was in the beginning wrongful, * 101. 
 
EASEMENTS. KINDS. HOW CREATED. 197 
 
 First. Generally speaking, a voluntary breach of the 
 continuity of user involves such conduct on the' part of the 
 claimant of the right as to indicate an abandonment — a giv- 
 ing up of the use for a time with intent not to resume the 
 same.i If, because of some accident, or for the benefit or 
 convenience of the claimant of the right, it be not exercised 
 for some time, perhaps even for some of the years during the 
 twenty, this would not defeat the acquisition of the easement, 
 unless it was reasonable to presume from all the circum- 
 stances attending the cessation of the user that it was for the 
 time being intended to be relinquished. ^ Whether or not 
 such intention is to be presumed will depend, to a large 
 extent, upon the character of the right claimed. There must, 
 for example, be a degree of continuity in the use of a mere 
 passageway different from that of flowing land with water, or 
 enjoying light and air over the property of another; and the 
 failure to employ the former for a considerable length of time 
 would be less indicative of an intention to relinquish it than 
 would the stopping of the latter for a much shorter period.* 
 In one case, the easement claimed was the right to carry on 
 in the claimant's building a trade offensive to his neighbors ; 
 and it was held that the suspension of its exercise for two 
 years, there having been no interference by others, was not 
 such an interruption as to affect the right.* This decision is 
 mentioned as a border-line case. It is criticised in Carlisle 
 V. Cooper,^ by the New Jersey court, as allowing too great a 
 voluntary interruption of the enjoyment. And it is certainly 
 in accordance with the weight of authority to state that from 
 long-continued non-user alone, before the prescriptive period 
 is complete, the courts may presume an intent to abandon the 
 claim. Thus, where the person who claimed a right of way 
 had passed over the land in 1819, and then again in 1824, and 
 from then on without further intermission until 1843, it was 
 held not to be a continuous use except from 1824.^ And in 
 
 1 Pollard V. Barnes, 2 Cush. (Mass.) (N. J.), 256, 261 ; Winnepiseogee Lake 
 191. Co. f. Young, 40 N. H. 420. 
 
 2 Earl De La Warr v. Miles, L. R. ^ Bodfish v. Bodfish, 105 Mass. 317; 
 17 Ch. Div. 535 ; Carr v. Foster, 3 Q. B. Cox v. Forrest, 60 Md. 74. 
 
 581 ; Hall v. Augsbury, 46 N. Y. 622 ; * Dana v. Valentine, 5 Met. (Mass.) 
 
 Hesperia Land & Water Co, u. Rogers, 8, 13. 
 
 83 Cal. 10 ; Dana v. Valentine, 5 Met. « 4 C. E. Green (N. J.), 256, 261. 
 
 (Mass.) 8; Wood u. KeUey, 30 Me. 47 ; « Watt v. Trapp, 2 Rich. (S. C.) 
 
 Haog V. Delorme, 30 Wis. 591. But 136. 
 
 see Carlisle v. Cooper, 4 C. E. Green 
 
198 KINDS OP REAL PROPERTY. 
 
 the leading case of Pollard v. Barnes,^ where the right con- 
 tended for was to pile lumber upon another's land, and this 
 had been enjoyed from 1822 to 1846, except between tjie years 
 1829 and 1834 when no lumber had been piled there, it was 
 held that there had been a voluntary abandonment of the right 
 which destroyed the continuity of its enjoyment, and that the 
 time in favor of the claimant being limited to that from 1834 
 to 1843 did not constitute the requisite prescriptive period. 
 The conclusion, to be drawn from the somewhat conflicting 
 decisions, appears to ibe that all the circumstances of each 
 case are to be investigated to ascertain the cause of the cessa- 
 tion of the use, and that the continuity of the enjoyment is to 
 be regarded as broken when it is reasonable to presume, either 
 from the length of the non-user alone, or from that element in 
 connection with the other facts, that there was an intention 
 to abandon the claim. ^ It is to be added that the time, from 
 which the running of the period is to be reckoned in deter- 
 mining whether or not there has been a sufficieTit length of 
 continuous enjoyment, is when the injury or invasion of the 
 servient owner's right begins, and not the time when the 
 party producing such injury begins the acts which bring about 
 that result. Thus if one claim a prescriptive right to flow 
 the land of another with a mill-pond, he must show, in order 
 to sustain his contention, that the requisite period has elapsed 
 since the dam was so far completed as to cause the flowage 
 upon that land to begin ; and he can not have the benefit of the 
 time required for the construction of the dam, during which 
 time the water was not raised upon his neighbor's property.^ 
 
 Second. The nature and character of the acts of enjoy- 
 ment must be substantially uniform and the place where they 
 are performed must be practically the same throughout the 
 entire twenty years, or other prescriptive period. " While the 
 law does not require the use to be, in all respects, identical 
 
 1 2 Cush. (Mass.) 191. for twenty years or more under a claim 
 '^ " A ready illustration would pre- of right, it would be sufficient, it is be- 
 sent itself to the mind where, from lieved, to acquire thereby an easement 
 analogy to the above cases, there would of way for that purpose. Nor would 
 seem to be no want of continuity, al- this right be affected by the long inter- 
 though the easement was but rarely vals between the times of the user." 
 used. Suppose a man had been accus- Wash. Ease. {4th ed.) p, 169, p.* 102, 
 tomed to go across another's land to a citing Carr v. Foster, 3 Q. B. 581. 
 meadow, once a year, for the purpose ' Branch u. Doane, 17 Conn. 402, 
 of cutting and bringing away the grass 18 Conn. 233; Crosby v. Bessey, 49 
 growing thereon, and had continued this Me. .^43 ; Polly v. M'Call, 37 Ala. 20. 
 
EASEMENTS. KINDS. HOW CREATED. 199 
 
 and the same, both in manner and extent, in order to gain an 
 easement; any material change in these respects, while the 
 right is being gained by prescription, may defeat the same. 
 If it shall have been actually gained, a mere failure to use it 
 to the extent to which the right has been acquired will not 
 affect such right. " ^ It was, accordingly, decided that the New 
 York Elevated Railroad Company had not gained a right, 
 against the owners of lots fronting on the street over which 
 the servitude was claimed, to continue to operate its road 
 upon that street, by virtue of the fact that it had maintained 
 thereon a tentative, experimental structure for eleven years, 
 and had then taken it down and built in a different position 
 and operated in a different manner for nine years its perma- 
 nent elevated road.^ So, in a case in which one flowed his 
 neighbor's land for ten years by using a dam of a certain 
 height, and then increased the height of the dam so that 
 more land was covered by the water, and continued this for 
 ten years longer, it was held that he had thereby acquired an 
 easement over only so much of his neighbor's property as was 
 flowed during the first ten and entire twenty years.^ It is 
 chiefly upon this principle that the law forbids the gaining 
 of an easement by prescription to have the boughs of a tree 
 overhang another's 'and, or its roots remain imbedded therein. 
 The growth of the tree produces a constant change in the 
 burden and inconvenience which it imposes.* But if a right 
 be asserted and enjoyed during the entire prescriptive period, 
 with only slig'it or immaterial alterations, an easement may 
 emerge as the result.^ All that the law requires is that the 
 
 1 Ballard ». Dyson, 1 Taunt. 279 ; Norris v. Baker, 1 RoUe, 393 ; Robin- 
 Cowell V. Thayer, 5 Met. (Mass.) 253 ; son v. Clapp, 65 Conn. 365. The owner 
 Homer v. Stillwell, 35 N. J. L. 307 ; of the land, into which the roots extend 
 Wash. Ease. (4th ed.) p. 171, p. *104. and over which the branches hang, may 
 
 2 Amer. Bank Note Co. v. N. Y. El. lop them ofE, although they have been 
 R. Co., 129 N. y. 252; Homer v. Still- there for twenty years ; and he may do 
 well, 35 N. J. L. 307. this without the necessity of giving any 
 
 ' Baldwin v. Calkins, 10 Wend. notice to his neighbor, the owner of the 
 
 {N. Y.) 167 ; Penrhyn Slate Co. v. tree. Hoffman v. Armstrong, 48 N. Y. 
 
 Granville Electric I.. & P. Co., 181 N. 201 ; Dubois v. Beaver, 25 N. Y. 123 ; 
 
 Y. 80, 92; Whittier v. Cocheco Mfg. Lemmon v. Webb (1894), 3 Ch. 1, 17; 
 
 Co., 9 N. H. 454 ; Morris v. Commander, Pickering v. Rndd, 4 Camp. 219, 1 Stack. 
 
 Sired. (N. C.) 510; Wright u. Moore, 56; Gale, Ease. (6th ed.) p. 461 ; Jones, 
 
 38 Ala. 593, 598. The extent of the Ease. § 177. 
 
 easement is fixed by the user. Tyler v. ^ Belknap v. Trimble, 3 Paige (N. Y.), 
 
 Cooper, 47 Hun, 94, aff'd 124 N. Y. 577; Davis v. Brigham, 29 Me. 391; 
 
 626 ; Taylor v. Millard, 118 N. Y. 244. Stackpole v. Curtis, 32 Me. 383 ; Whit- 
 
 * Lemmon v. Webb (1894), 3 Ch. 1 ; tier v. Cocheco Mfg. Co., 9 N. H. 454. 
 
200 KINDS OP EEAL PROPERTY. 
 
 adverse user shall impose substantially the same burden upon 
 the same land during the whole of the requisite time. ^ 
 
 Third. It is not necessary to the acquisition of a prescrip- 
 tive easement that the user shall be by the same person during 
 the entire period, provided the possession and enjoyment of 
 the right have been legally continued from one owner of the 
 dominant estate to the other. ^ If, for example, an ancestor 
 use a way over his neighbor's field for twelve years, and, after 
 his death, the heir who inherits his land continue the user for 
 eight years more, the prescription will be complete.^ The 
 same will be true when the successive owners of the land in 
 favor of which the right is claimed are vendor and vendee, 
 devisor and devisee, or otherwise related in privity of estate 
 to each other, so that the title of one is legally derived from 
 the other. And, in like manner, there may be three or more 
 persons, upon each of whom in succession the title to the 
 dominant estate devolves by some legal process, and the sum 
 total of whose periods of enjoying the right contended for is 
 the time necessary to cause an easement to arise.* But when 
 a succeeding holder does not claim in any way through his 
 predecessor, as if, for example, one has disseised the other, 
 or the first occupant has abandoned the land and the enjoy- 
 ment of the right contended for, and the other has then 
 entered and possessed both, the time of the user by one can not 
 be tacked on to that of the other for the purpose of completing 
 the prescriptive period.^ 
 
 § 158. (c) The User must be Peaceable and Uninterrupted. 
 — Since the creation of an easement by prescription rests 
 upon the presumption of a grant which has been lost and 
 therefore can not be produced as evidence, no easement can 
 arise in that way, if, during the time needed for its acquisi- 
 tion, the owner of the servient estate has interrupted the use 
 or successfully protested against its continuance. An inter- 
 ruption by him consists in his cutting off and preventing the 
 
 1 Belknapt>.Trimble,3Palge(N.Y.), Leonard U.Leonard, 7 Allen (Mass.), 
 577 ; Bullen v. Runnels, 2 N. H. 255 ; 277. 
 
 Luttrel's Case, 4 Rep. 87 ; Wash. Ease. * Cole v. Bradbury, 86 Me. 380. 
 
 (4tlied.) p. 172, p. *105. 5 Holzman v. Douglas, 168 U. S. 
 
 2 Leonard v. Leonard, 7 Allen 278 ; Watkins v. Peck, 13 N. H. 360 ; 
 (Mass.), 277; Sargent t. Ballard, 9 Melvin v. Whiting, 13 Pick. (Mass.) 
 Pick. (Mass.) 251 ; Williams v. Nelson, 184; McFarlin v. Essex Co., 10 Cash. 
 23 Pick. (Mass.) 141 ; Cole v. Bradbury, (Mass.) 304 ; Okeson v. Patterson, 29 
 86 Me. 380, ' Pa. St. 22 ; Tracy v. Atherton, 36 Vt. 
 
 3 Cole u. Bradbury, 86 Me. 380; 503. 
 
EASEMENTS. KINDS. HOW CREATED. 201 
 
 enjoyment for a time. However brief such an interference 
 may be, it will stop the running of the prescriptive period. 
 Thus, the purchaser of a mill property, which was conveyed 
 to him by metes and bounds but at the end of which was an 
 unfenced strip belonging to his grantor, had been accustomed 
 for twenty years to pass regularly over a path across that 
 strip, as the most convenient way of reaching the mill; but 
 his grantor had occasionally piled boards and other lumber 
 upon the path and thus closed the passageway. It was held 
 that the owner of the mill had not obtained a right of way by 
 prescription. 1 So when it has been necessary to employ 
 force in order to continue the enjoyment,''^ or when one path 
 or route has been exchanged for another and neither has been 
 used for the entire requisite period,^ no easement is thereby 
 brought into existence.* 
 
 The requirement that the enjoyment shall be peaceable 
 means that it must be without any forcible resistance, or legal 
 proceedings against it, on the part of him over whose land 
 the right is claimed; and, in some jurisdictions, that it must 
 be without his verbal protest or remonstrance. His com- 
 mencing an action at law to recover damages for the past 
 user, or a suit in equity to enjoin its continuation, is recog- 
 nized by all the courts as an effectual interruption of the 
 enjoyment.^ In some states, moreover, if he remonstrate 
 with the claimant of the right, or forbid him to come upon 
 the land, and do nothing more, it is held in well considered 
 cases that this is sufficient to break the continuity of the 
 prescriptive period.® But, in the majority of the states of this 
 
 1 Plimpton V. Converse, 42 Vt. 712. 441 ; Pollard k. Barnes, 2 Cash. (Mass.) 
 
 2 Eaton V. Swansea Water Works 191- 
 
 Co , 17 Q. B. 267, 275 ; Livett v. Wil- ^ Eaton v. Swansea Water Works 
 
 son,' 3 Bing. 115; Stillraan v. White Co., 17 Q. B. 267 ; Workman ti. Curran, 
 
 Ftock Mfg. Co., 3 Woodb. & M. (U. S. 89 Pa. St. 226 ; Postlethwaite v. Payne, 
 
 Cir. Ct.) 538, 549; Powell v. Bagg, 8 8 Ind. 104; and see Lanford u. Poppe, 
 
 Grav ( Mass.), 441 ; Lehigh Val. R. Co. 56 Cal. 73. 
 
 r. McFarlan, 30 N, J. Eq. 180, 43 N. J. ^ In Powell v. Bagg, 8 Gray (Mass.), 
 
 jj go5. 441, 443, which was an action against 
 
 The enjoyment must be per patien- one who claimed, by virtue of twenty 
 
 tiam veri domini qui seivit et non pro- years' use, the right to an aqueduct over 
 
 hibuU, sed permisit de consensu lactio. his neighbor's land, although within 
 
 Powell V. Bagg, 8 Gray (Mass.), 441, 443. that time he had been denied the right 
 
 8 Totel V. Bonnefoy, 123 111. 653; by such neighbor and ordered off the 
 
 Peter.s v. Little, 95 6a. 151; Pope v. premises, — Bigelow, .1., said : "It was 
 
 Ileverenx, 5 Gray (Mass.), 409; Mason not necessary for the plaintiff tocommit 
 
 1 Dnvison, 27 Nova Scotia, 84. an assault and battery on the defendant 
 
 ■• Powell V. Bagg, 8 Gray (Mass.), or his servants, or to use actual force to 
 
202 
 
 KINDS OP BEAL PROPERTY, 
 
 country and the latest decisions both here and in England, 
 such a method of interrupting the right and causing the run- 
 ning of the requisite time to begin de novo is denied ; and it 
 is held that this can be done only by some overt act of inter- 
 ference, other than mere words whether written or spoken. ^ 
 In some of the states, such as Indiana, Iowa, Maine, and 
 Massachusetts, statutes provide for notices which, when given 
 as required by the acts, shall have the effect of interrupting 
 or preventing the acquisition of easements by continuous 
 enjoyment.^ 
 
 § 159. (d) The User must be -with an Adverse Claim of 
 Right. — It must be in opposition, express or implied, con- 
 scious or unconscious, to the owner of the land over which 
 the right is claimed. The attitude of him who is acquiring 
 an easement by prescription must be such that, if he were 
 
 eject them from the premises in order 
 to disturb and break the continuity of 
 possession or use, and prevent it from 
 ripening into a title by lapse of time." 
 Also Stillman i-. White Rock Mfg. 
 Co., 3 Woodb. & M. 538 ; Livetti). Wil- 
 son, 3 Bing. 115; Smith v. Miller, 11 
 Gray (Mass.), 145 ; Workman u. Curran, 
 89 Pa. St. 226; Chicago & N. W. E. 
 Co. V. Hoag, 90 111. 339 ; Nichols v. 
 Aylor, 7 Leigh (Va.), 546; Field o. 
 Brown, 24 Gratt. (Va.) 74. 
 
 1 Angus V. Dalton, L. R. 6 App. 
 Cas. 740 ; Kimball v. Ladd, 42 Vt. 747 ; 
 School District v. Lynch, 33 Conn. 330, 
 334; Demuth v. Amweg, 90 Pa. St. 
 181; Lehigh Val. R. Co. v. McFar- 
 lan, 43 N. J. L. 605 ; Morris Canal & 
 B. Co. V. Diamond Mills P. Co., 64 
 Atl. Rep. 746 (N. J. Ch,). In KimbaU 
 V. Ladd, the decision of Powell v. Bagg, 
 supra, is distinguished ; and in Lehigh 
 Val. R. Co. V. MpFarlan, the argument 
 upon this side of the controrersy is 
 well put by Depue, J., in a passage in 
 which he says : " If the easement has 
 been interrupted by any act which 
 places the owner of it in a position to 
 sue and settle his right, if he chooses to 
 postpone its vindication until witnesses 
 are dead or the facts have faded from 
 recollection, he has only his own folly 
 and snpineness to which to lay the 
 blame. But if by mere protests and 
 denials by his adversary, his right might 
 
 be defeated, he would be placed at an 
 unconscionable disadvantage. He could 
 neither sue and establish his right, noi; 
 could he have the advantage usually 
 derived from long enjoyment in quiet- 
 ing titles. Protests and remonstrances 
 by the owner of the servient tenement 
 against the use of the easement rather 
 add to the strength of the claim of a 
 prescriptive right; for a holding in 
 defiance of such expostulations is de- 
 monstrative proof that the enjoyment 
 is under a claim of right, hostile and 
 adverse ; and if they be not accompanied 
 by acts amounting to a disturbance of 
 the right in a legal sense, they are no 
 interruptions or obstructions of the en- 
 joyment." Where verbal denials of the 
 right are supported by some acts on the 
 part of the landowner, it should or- 
 dinarily be left to the jury to decide 
 whether or not they are sufficient to 
 prove a want of acquiescence in the 
 user. Connor v. Sullivan, 40 Conn. 26 ; 
 Wash. Ease. (4th ed.) p. 184, p. *113. 
 
 2 Ind. 1 K. S. (1894) §§ 5746-5749 ; 
 Parish v. Kaspere, 109 Ind. 586 ; Car- 
 gar V. Fee, 140 Ind. 572; Iowa, R. S. 
 (1888) §§3206-3210; State «. Birming- 
 ham, 74 Iowa, 407 ; Maine, R. S. 
 (1883) ch. 105, §§ 1, 13, 14; Cole v. 
 Bradbury, 86 Me. 380 ; Mass. Pub. St. 
 (1882) ch. 196, § 1 ; Hodgkins ^. Far- 
 rington, 150 Mass. 19 ; Jonea, Ease. 
 § 160, note. 
 
EASEMENTS. KINDS. HOW CREATED. 203 
 
 asked why he was so acting, his correct answer would be that 
 he was doing so against, or at least without, the license or 
 consent of the owner of the servient estate. ^ When it appears 
 that the enjoyment has been by permission asked for, or for a 
 rent paid, or for some other equivalent rendered,^ or when there 
 is such a legal relation between the parties that the consent of 
 the one to the acts of the other is to be presumed — as when 
 the relation is that of landlord and tenant, or life-tenant and 
 remainderman or reversioner ^ — this ordinarily rebuts the 
 presumption of a grant and thus destroys the foundation for 
 a prescriptive easement. The criterion, upon which the 
 American courts uniformly depend for determining whether 
 or not the user has been adverse and under a claim of right, 
 is well stated by the Supreme Court of South Carolina, as 
 follows: "There must be an adverse possession or assertion 
 of right, so as to expose the party to an action, unless he 
 had a grant; for it is the fact of his being thus exposed to 
 an action, and the neglect of the opposite party to bring suit, 
 that is seized upon as the ground for presuming a grant in 
 favor of long possession and enjoyment, upon the idea that 
 this adverse state of things would not have been submitted to 
 if there had not been a grant. " * When the acts of the one 
 party are thus an invasion of the right of the other, they may 
 lay the foundation for a prescriptive easement, even though 
 they are performed in ignorance of the fact that they constitute 
 in effect a trespass. Thus, if one erect a house on his land so 
 that the cornice extends over his neighbor's lot, or a railroad 
 company so build its iron structure in a street as to injure the 
 abutting property, the requisite continuance of the enjoyment 
 may give an easement though the owner or company acted on 
 the belief of an existing riglit.^ The actual invasion of tlie 
 neighbor's right, and the absence of license or permission ex- 
 
 1 Easton v. Isted (1903), 1 Ch. 405 ; ' Gavford o. Moffatt, L. R. 4 Ch. 
 
 Flora V. Carbean, 38 N. Y. Ill; Bur- App. 133, 135; Phillips v. Phillips, 48 
 
 bank v. Fay, 65 N. Y. 57 ; Morse v. Pa. St. 178, 184. 
 
 Williams, 62 Me. 445; Blanchard v. * Feltoii i;. Simpson, 11 Ired. (N. C.) 
 
 MouUon, 63 Me. 434 ; Oliver v. Hook, 84 ; Meliane v. Patrick, 1 .Jones (N. C), 
 
 47 Md. 301 ; Rose v. City of Farming- 23; Junes, Ease. § 165, note 3; § 163, 
 
 ham, 196 HI. 226. infra. 
 
 ^ St. Vincent Asylum v. Troy, 76 ^ Grace M. E. Church v. Dobbins, 
 
 N. Y. 108 ; Grouse v. Wemple, 29 N, Y. 153 Pa. St. 294 ; Hindley v. Manhattan 
 
 540 ; Boyce v. Brown, 7 Barb. (N. Y.) R. Co., 185 N. Y. 335, 355 ; Bremer «. 
 
 80; Watkins u. Peck, 13 N. H. 360; Manhattan R. Co., 191 N. Y. 333, 
 Arnold v. Stevens, 24 Pick. (Mass.) 106; 
 Smith u. Miller, 11 Gray (Mass.), 145. 
 
204 KINDS OF REAL PROPEETT. 
 
 press or implied, together constitute an enjoyment with an 
 adverse claim of right. 
 
 It follows that the claimant of a prescriptive right is not 
 ordinarily required to prove a negative by directly producing 
 evidence to the effect that his holding was without license. 
 The fact that he has enjoyed it during the entire requisite 
 period is in itself sufficient to raise the presumption that it 
 was adverse.^ If, on the other hand, his enjoyment be shown 
 to have originated in a license, or to have been exercised at 
 any time with the permission of the owner of the servient 
 estate, it will be conclusively presumed to have been con- 
 tinued under such authority until the time at which the 
 claimant unequivocally shows that he abandoned his license 
 and used, the right adversely. ^ "It is well known that a 
 single lisp of acknowledgment by a defendant that he claims 
 no title fastens a character upon his possession which makes 
 it unavailable for ages."^ So, where A gave B permission to 
 construct and use a drain through A's soil, it was held that B's 
 use of the same for twenty years, without more being said or 
 indicated concerning the matter, did not create an easement in 
 B's favor.* But where it was shown that the license to con- 
 struct a drain was intended to be mei-ely temporary, and that, 
 after the expiration of the time specified, the licensee continued 
 to use the drain for the prescriptive period, it was held that an 
 easement was thereby acquired.^ 
 
 When a grant of an easement by deed is shown, there is, 
 of course, no room for any question as to prescription.^ It is 
 also held that when by parol agreement one party is authorized 
 to enjoy as Ms own a right over the land of another, and does 
 
 1 And the burden rests upon him Garrish, 59 N. H. 560, 570; Speir v, 
 ■who alleges that the use has been by Town of New Utrecht, 121 N. Y. 420; 
 virtue of a license or permission, to People ex rel. Cunningham v. Osborn, 
 prove that fact by aifirmative evidence. 84 Hun (N. Y.), 441, 443; Zerbey v, 
 Tyler y. Wilkinson, 4 Mason (U. S. Cir. Allan, 215 Pa. St. 383; Jobling h. 
 Ct.), 397; Parker v. Fiiote, 19 Wend. Tuttle, 75 Kan. 351. 
 
 (Nf. Y.) 309 ; Nichols r. Wentworth, 100 s Colvin v. Burnet, 17 Wend. (N. Y.) 
 
 N. Y. 455; Ward .-. Wiirren, 82 N. Y. 564, 568; Stewart v. White, 128 Ala. 
 
 2G5, aflSrming 15 Huu, 600; Esliug u. 202. 
 
 Williams, 10 Pa. St. 126; Stearns v. i Smith u. Miller, 11 Gray (Mass.), 
 
 Janes, 12 Allen (Mass.i, 582; Olney 145. 
 
 V. Tenner, 2 R. I. 211 ; Trench u.'Mars- 6 Wiseman v. Lucksinger, 84 N. Y. 
 
 tin, 24 N. H. 440 ; Jones, Ease. § 186. 31. 
 
 2 Jewett V. Hussey, 70 Me. 433 ; e Chamber Collier Co. v. Hopwood, 
 Arbuckle v. Ward, 29 Vt. 43; Legg L. E. 32 Ch. Div. .549 ; Hoyle a. X. Y. & 
 .;. Horn, 45 Conn. 409, 415; Taylor v. N. E. R. Co., 60 Conn. 28. 
 
BASEMENTS. KINDS. HOW CREATED. 205 
 
 SO, this makes the user adverse, and its continuation for the 
 proper time may create an easement.^ The user by virtue of 
 a mere license, so tliat it may be said to be the enjoyment of 
 the right of the licensor with his permission, will not lay the 
 foundation for a prescriptive easement; but the enjoyment of 
 the right as his own by the claimant of the easement will be 
 available to support hi.s claim, even though it originated in an 
 oral contract with the owner of the servient estate.^ 
 
 The requirement that the user shall be with an adverse 
 claim of right involves an element sometimes stated as a 
 distinct and independent requisite, namely, that it shall also be 
 exclusive. By this is to be understood that the right must not 
 depend for its exercise upon a similar privilege existing in 
 others, but the claimant must enjoy it, not only adversely to 
 the owner of the servient estate, but also independently of all 
 other persons.^ Therefore a person can not acquire by pre- 
 scription a right of way as an easement over a public high- 
 way.* And when a space around a building is left open so 
 that people generally cross it when convenient, and a neigh- 
 boring proprietor uses it more frequently for that purpose 
 than do other persons, he can not thereby obtain a prescriptive 
 easement, unless he lays out or indicates in some manner a 
 distinct path appropriated to the beneficial use of his own 
 land.^ By the principle under discussion is not meant that a 
 clear right of way or other private easement is to be defeated 
 
 1 Ashley v. Ashley, 4 Gray (Mass.), p. 155, p. *89. See also Jones, Ease. 
 197; Wiseman v. Lucksinger, 84 N. Y. § 179. 
 
 31 ; Jewett v. Hussey, 70 Me. 433, 443 ; 3 Wheeler v. Clark, 58 N. Y. 267 ; 
 
 Arbnckle «. Ward, 29 Vt. 43, .52 ; Sum- Kilburu o. Adams, 7 Met. (Mass.) 33; 
 
 ner v. Stevens, 6 Met. (Mass.) 337. Thomas v. Marshfield, 13 Pick. (Mass.) 
 
 2 "The doctrine of Ashley v. Ash- 240; Ross v. Thompson, 78 Ind. 90. 
 ley" (4 Gray (Mass.), 197) "has been * Hamilton v. White, 1 Seld. (N. Y.) 
 much discussed. The rule seems to be, 9 ; Driggs o. Phillips, 103 N. Y. 77 ; 
 that when the oral agreement which is Glaze v. Western, etc. R. Co., 67 Ga. 76 1 ; 
 followed by user amounts to a grant of Boss y. Thompson, 78 Ind. 90. The 
 the easement claimed and the grantee rights which an individual has over a 
 thereafter uses the easement, claiming public highway are not strictly speaking 
 it as his own, for the period of prescrip- easements, but servitudes enjoyed by 
 tion, such user will give a prescriptive him in common with the rest of the 
 right to the easement ; but if the parol public. But an easement may be gained 
 ■agreement amounts merely to a license across a railroad track by twenty years' 
 or permission to use the easement, the enjoyment. Fisher v. N. Y. & N. E. 
 period of prescription does not begin to R. Co., 135 Mass 107, 108. 
 
 run till the licensee does some act which 6 Kilburn v. Adams, 7 Met. (Mass.) 
 
 unequivocally shows that he abandons 33. See Smith v. Hughes, 12 Vt. 113; 
 
 his license and is using the easement Curtis v, Angier, 4 Gray (Mass ), 547. 
 Adversely." Wash. Ease. (4th ed.) 
 
206 KINDS OP REAL PIlOPERTy. 
 
 merely because others have used the same road cr enjoyed a 
 similar right; two or more persons may each acquire, by 
 adverse enjoyment, an independent right in the same thing : ^ 
 but it is meant that the user must be distinct and independent, 
 disassociated from the rights of other people and standing out 
 by itself adverse to the rest of the world. ^ Thus, tenants in 
 common of a parcel of land may acquire, in connection with 
 its use, an easement over another lot belonging to one of them 
 in severalty; but in- such a case the proof on which the 
 jury is to find the adverse character of the enjoyment must 
 be very clear and conclusive.^ It need hardly be added that, 
 since one can not use a thing adversely to himself, there can 
 be no creation of an easement by prescription while both 
 tenements are wholly possessed by the same person.* 
 
 § 160. (e) The User must be vrith. the Acquiescence of the 
 Owner of the Land over which the Right is claimed. — This re- 
 quirement, though frequently stated as distinct, is in reality 
 a mere combination of two of those above discussed ; namely, the 
 enjoyment must be open, visible, and notorious, so that the 
 landowner either knows of its existence or could reasonably 
 do so, — so that the law treats him as having knowledge of it, 
 — and it must be peaceable and uninterrupted. He is proved 
 to have acquiesced when knowledge of the invasion of his 
 right and the absence of effectual resistance of such invasion 
 are established against him.^ And this is done when it is 
 shown that the user was " ita quod, nee per vim,, nee clam, nee 
 precario. " ^ As is above stated, the most recent cases both in 
 England and in this country hold that effectual resistance is 
 not made by mere verbal remonstrances or denials of the 
 right, but requires either forcible opposition or proceedings 
 in law or equity against him who is seeking to acquire the 
 easement.' 
 
 1 Bolivar Mfg. Co. v. Neponget Mfg. Worthington v. Gimson, 2 El, & El. 
 
 Co., 16 Pick. (Mass.) 241 ; Kent w. 618, 624. 
 
 Waite, 10 Pick. (Mass.) 13S; Pavis v. ^ Wash. Ease. (4th ed.) pp. 180-184, 
 
 Brigham, 29 Me. 391. pp. * HI-* 113. 
 
 s Davis V. Brigham, 29 Me. 391 ; 6 Bract, fol. 222, D. 39, 3, 23 ; Co. 
 
 Curtis V. Angler, 4 Gray (Mass.), 547; Lit. 114 a; Eaton v. Swansea Water 
 
 Borden v. Vincent, 24 Pick. (Mass.) Works Co., 17 Q. B. 267 ; Solomon v. 
 
 301. Vintner's Co., 4 H. & N. .602; Angus 
 
 » Bradley Eish Co. v. Dudley, 37 v. Dalton, L. E. 6 App. Cas. 740 ; Con- 
 Conn. 136. nor v. Sullivan, 40 Conn. 26; Kane v. 
 
 * Olney v. Gardiner, 4 M. & W. 496 ; Bolton, 36 N. J. Eq. 21 ; Workman u. 
 
 Clayton v. Corby, 2 Q. B. 813 ; Lady- Carran, 89 Pa. St. 226. 
 man v. Grave, L. R. 6 Ch. App. 763 ; 7 § 158, sui)ra. 
 
EASEMENTS. KINDS. HOW CREATED. 207 
 
 § 161. (f) The Adverse User must be against a Landowner 
 who is seised in Fee Simple. — Prescription operates only 
 against one who is "capable of mailing a grant. "^ And 
 since a tenant for years or for life can not grant away the 
 interest of the remainderman or reversioner, it is uniformly 
 held that adverse enjoyment of a right over land in possession 
 of such a tempofary holder does not create an easement that 
 can prevail against the succeeding owner. ^ Where, for 
 example, a right of way was asserted because of adverse use 
 and enjoyment for time out of mind, over land possessed for 
 most of the time by a tenant for ninety-nine years, whose lease 
 had recently expired, it was held that the claim was not 
 effectual against the owner of the inheritance.* 
 
 It is not settled by the authorities whether or not an 
 easement may be obtained by use against a lessee or other 
 temporary holder, while the land is in his possession. He 
 may undoubtedly grant such a right to last during the con- 
 tinuance of his own estate;* and it would seem that adverse 
 enjoyment against him for twenty years ought to give rise to 
 an easement that would continue during the residue of his 
 term. Likewise, if the servient estate be in the possession 
 of one who has a conditional or determinable fee therein, it 
 is reasonable to assume that an easement might be acquired 
 by prescription that would avail against him so long as his 
 estate lasted, and terminate with his interest in the land.^ In 
 Wallace v. Fletcher,^ it is said by Bell, J., that "the tenant 
 for life or years may grant easements, or permit them to be 
 acquired by user, and they will be valid against himself and 
 those who hold his estate during its continuance, and perhaps 
 not afterwards, where the reversioner had previously neither 
 cause nor right to complain." But in Bright v. Waliser it 
 was decided that the adverse use of a way, with a claim of 
 right, for a period of more than twenty years, over land in 
 the possession of a tenant or lessee for life, gave no right in 
 
 ' Barker v. Richardson, 4 Barn. & ley v. Commonwealth, 36 Pa. St. 29 ; 
 
 Aid. .579. Portland v. Keep, 41 Wis. 490. 
 
 2 Bradbury v. Grimsel, 2 Sannd. » Wood v. Veal, 5 Barn. & Aid. 454. 
 
 175 d; Daniel v. North, 11 East, 372; * Wheaton v. Maple (1893), 3 Ch. 
 
 Blanchard v. Bridges, 4 Adol. & El. 176 ; 48, 63 ; Wallace v. Fletcher, 30 N. H. 
 
 Sand V. Church, 152 N. Y. 174 ; Parker 453. 
 
 V. Framingham, 8 Met. (Mass.) 260; ^ Tonllier, Droit Civil Fran9ais, 419. 
 
 Pierce v. Fernald, 26 Me. 436 ; Schen- » 30 N. H. 453. See Franz v. Men- 
 
 donca, Ml Cal. 20".. 
 
208 KINDS OP REAL PROPERTY. 
 
 the nature of an easement against either the lessor or the 
 lessee.^ 
 
 § 162. (g) The Adverse XTser must be against an Owner of 
 the Land who, at the Time of the Beginning of such Enjoyment, 
 was free from Disability to resist its Imposition upon his Prop- 
 erty. — A grant can not be presumed to have been made by a 
 person who was legally incapable of making it. If, therefore, 
 the adverse enjoyment begin against one who is at the time 
 insane, or an infant, or otherwise incapacitated to sue in his 
 own name alone for the infraction of his right, the prescriptive 
 period will not begin to run while such disability continues 
 and he remains the owner of the land.^ By the weight of 
 authority it is held that no incapacity to sue, except that 
 which existed when the adverse enjoyment commenced, will 
 interfere with the acquisition of an easement by prescription ; 
 that the prescriptive period will begin to run as soon as that 
 incapacity is removed or the servient estate passes into the 
 hands of another owner in fee, and that no subsequently 
 accruing or superimposed disability will have any effect.* 
 Thus, if A be an infant when B begins to use a path over his 
 lot, a right of way may be obtained by B across the. land in 
 the time of prescription after A becomes of age, though A 
 
 1 1 Cr. M. & E. 211. words, when speaking of prescription 
 " On the other hand, though it is under the statute of 2 & 3 William IV. 
 clear that a tenant for life of a domi- ch. 71 : ' Semble, the owner in fee of 
 nant estate may acquire an easement in land demised for a term of years is 
 a servient one by adverse enjoyment, it subject to any right of access and use 
 does not seem to be settled whether it of light over his land which may be 
 would, when acquired, inure in favor of acquired by the owner of an adjoining 
 him who has the inheritance by way of house during the demise,' " (citing Lady- 
 reversion." (Citing Holland v. Long, man v. Grave, L. R. 6 Ch. App. 763). 
 7 Gray, 487.) "But though in the Wash. Ease. (4th ed.) p. 186, pp. * 115, 
 above-cited case the court avoid the *116. 
 
 question, it would seem that, if the ten- ^ McGregor n. Wait, 10 Gray (Mass.), 
 
 ant held by lease from the tenant of 72, 74; Melvin o. Whiting, 13 Pick. 
 
 the fee of the dominant estate, an ease- (Mass.) 184 ; Watkins v. Peck, 13 N. H. 
 
 ment gained by such a holding by the 360 ; Schenley v. Commonwealth, etc., 
 
 tenant would inure tq the landlord's 36 Pa, St. 29 ; Reimer v. Stuber, 20 
 
 benefit, in analogy with the doctrine of Pa. St. 458 ; City of Austin v. Hall, 
 
 a class of cases which hold that, if a 93 Tex. 591. 
 
 tenant by disseisin extends his holding ' Scallon v. Manhattan R. Co., 185 
 
 over a neighboring parcel of land till a N. Y. 359 ; Ballard v. Demmon, 156 
 
 prescriptive title is gained, it will inure Mass. 449 ; Tracy v. Atherton, 36 Vt. 
 
 to the benefit of his landlord " (citing 503 ; Walker v. Fletcher, 30 N. H. 434 ; 
 
 Andrews w. Hailes, 2 Ellis & B. 349, and Melvin v. Whiting, 13 Pick. (Mass.) 
 
 cases therein cited). "And the head- 184; Reimer t>. Stuber, 20 Pa. St. 458; 
 
 note of Ladyman v. Grave is in these Jordeson v. S. S. & D. Gas Co. (1899) 
 
 2 Ch. 217. 
 
EASEMENTS. KINDS. HOW CREATED. 209 
 
 should be imprisoned after the adverse user began, and either 
 before or after he became of age, and should become insane 
 before his release from prison. And if A should die at any 
 time after B began the walking over his property, and the title 
 to the land should thus descend to A's heir or otherwise pass 
 to another owner in fee (he being under no disability), the 
 prescriptive period would at once begin in B's favor.^(a) 
 Some courts insist, however, that no easement can arise by 
 prescription unless he who claims it proves affirmatively that, 
 during the whole of the requisite period, the owners of the ser- 
 vient estate were competent to convey a clear title thereto and 
 to sue in their own names for any violation of their rights.'^ 
 
 § 163. Fresumption of a Grant or other Legal Origin arising 
 from Proof of the , Requisite User. — There has been much dis- 
 cussion, and some conflict of opinion, as to the nature of the 
 presumption, or principle, upon which rest most of the modern 
 decisions concerning prescriptive easements. Is it a presump- 
 tion of law or of fact ? Is it conclusive or disputable ? Is it 
 confined to the presumption of a grant? The summary of 
 most of the answers of to-day on both sides of the Atlantic 
 is that, when all the requisites of adverse user or enjoyment 
 as described in the preceding sections have been proved, there 
 arises a conclusive presumption of law that the claimant of 
 the easement had at one time a right by grant, or in some 
 other lawful form, over the servient property.^ 
 
 (a) In New York the statute of limitations expressly provides as fol- 
 lows : " A person can not avail himself of a disability unless it existed 
 when his right of action or of entry accrued." " Where two or more disa- 
 bilities coexist, when the right of action or of entry accrues, the limitation 
 does not attach until all are remo\ ed." N. Y. Code Civ. Pro. §§ 408, 409 ; 
 Scallon V. Manhattan R. Co., 185 N. Y. 359. 
 
 The forms of disability which stay the running of the statutory period 
 are infancy, insanity, and imprisonment for a term less than for life. 
 N. Y. Code Civ. Pro. § 375; HoweU v. Leavitt, 95 N. Y. 617; Darrow v. 
 Calkins, 154 JST. Y. 503, 512. 
 
 1 Ballard «. Demmon, 156 Mass. 449. Fenner, 2 R. I. 211; Boyce v. Mis. 
 
 2 Saunders v. Simpson, 37 S. W. Pac. R. Co., 168 Mo. 583. "In this 
 Rep. 195 (Tenn.). country the prevailing doctrine is, that 
 
 ^ Angus V. Dalton, L. R. 6 App. an exclusive and uninterrupted enjoy- 
 
 Cas. 740; Campbell v. Wilson, 3 Bast. ment for twenty years creates a pre- 
 
 294; Bremer v. Manhattan R. Co., 191 sumption. Juris et de jure, and is con- 
 
 N. Y. 333, 338 ; Lehigh Val. R. Co. v. elusive of title whenever, by possibility, 
 
 McFarlan, 43 N. J. L. 605 ; Pierce a right may be acquired by grant." 
 
 V. Cloud, 42 Pa. St. 102 ; Plimpton ■/. Depue, J., in Lehigh Val. R. Co. v. 
 
 Converse, 42 Vt. 712 ; Webber v. McFarlan, 43 N. J. L. 605. 
 Chapman, 42 N. H. 326; Olney v. 
 
 14 
 
210 KINDS OP REAL PROPERTY. 
 
 Just as the statutes of limitations were at first treated 
 as rules of disputable presumption, and were subsequently 
 decided to be statutes of repose; so, after the ancient theory 
 of immemorial enjoyment was discarded and the shorter 
 period of prescription adopted, the courts at first made the 
 proper adverse user for such time merely prima facie evidence 
 of a grant, it being regarded by some as a presumption of fact 
 and by others as a disputable presumption of law ; and after- 
 wards the most of them came to deal with it as a conclusive 
 presumption of law.^ It is held, however, in some of the 
 United States, as California, Indiana, and Mississippi, that 
 it is a rebuttable presumption, even after all the requisite 
 facts as to the adverse enjoyment have been established.^ 
 
 The inquiries in any case as to the length of the enjoy- 
 ment, its nature as adverse, open, peaceable, and uninterrupted 
 or otherwise, and whether or not the owner of the servient 
 land acquiesced in it, or was laboring under any disability to 
 defend his rights, all involve questions of fact, which are 
 usually for the jury. And not until these matters have all 
 been decided in favor of the claimant of the right is the foun- 
 dation laid for a presumption of any kind.' But when the 
 law of a state has once settled upon any number of years — 
 say twenty — as the prescriptive period, and in a given case 
 in that state all those questions of fact involved in the estab- 
 lishment of the requisites of the adverse use have been settled 
 
 1 Last preceding note. the evidence thereby resulting in fa- 
 
 " Union Water Co. v. Crary, 25 Cal. vor of a, title to incorporeal hereditar 
 
 504 ; Postlethwalte v. Payne, 8 Ind. ments, may be reconciled, if we bear in 
 
 104; Lanier v. Booth, 50 Miss. 410; mind that, to constitute such a use or 
 
 Watkins v. Peck, 13 N. H. 360. See enjoyment as raises such presumption 
 
 Hammondu. Zehner, 21 N. Y. 118; Hey of a grant, requires, in addition to the 
 
 V. Coleman, 78 N. Y. App. Div. 584, requisite length of time, that it should 
 
 586. have certain qualities and characteris- 
 
 ' Angus V. Dalton, L. R. 6 App. Cas. , tics, such as being adverse, continuous, 
 
 740; Lehigh Val, R. Co. v. McFarlan, uninterrupted, and by the acquiescence 
 
 43 N. J. L. 605; Smith «. Miller, 11 of the owner of the inheritance out of 
 
 Gray (Mass.), 145, 148; Garrett v. or over which the easement is claimed. 
 
 Jackson, 20 Pa. St. 331 ; Livett v. Wil- And if we assume that these have been 
 
 son, 3 Ring. 1 15 ; 1 Greeul. Ev. § 17. established by sufficient proof, it would, 
 
 Mr. Washburn, in his work on Ease- doubtless, in such a case and after such 
 
 ments, argues well upon this question. a use and enjoyment, be held to create 
 
 He says : " Any seeming discrepancy as conclusive a presumption in favor of 
 
 between the ancient doctrine of pre- him who makes the claim, as if it had 
 
 scription and the modern notion of a been established by prescription in its 
 
 presumed grant where the deed has ancient sense." Wash. Ease. (4th ed.) 
 
 been lost, as to the conclusiveness of p. 129, p.* 70. 
 
EASEMENTS. KINDS. HOW CREATED. 211 
 
 in the claimant's favor, it is not only in harmony with the 
 results of the most thoroughly considered modern cases, but 
 also in accordance with the reasonable policy which gave rise 
 to prescriptive titles, to insist that a conclusive presumption 
 of the rightfulness of the enjoyment shall at once arise, and 
 that evidence shall not thereafter be admitted to overthrow 
 such conclusion or to prevent the establishment of a prescrip- 
 tive easement.^ 
 
 A proper way, therefore, in which to sum up the best 
 modern judicial thought as to the basis of prescriptive 
 rights, seems to be to assert that it rests upon the presump- 
 tion of a lost grant, or of some other legal origin. The ques- 
 tions as to the existence, duration, and nature of the user 
 having all been decided in the claimant's favor, the presump- 
 tion that it is founded on right is conclusive — juris ei de 
 jure. ^ 
 
 § 164. No Prescriptive Easement where no Grant can be 
 presumed. -^ Out of the narrower theory, however, that a pre- 
 scriptive title must rest upon a presumed grant, h&a sprung 
 the well-settled negative rule of law, that no easement which 
 could not be the subject of a grant can be acquired by pre- 
 scription.^ Since, therefore, a common-law grant can transfer 
 incorporeal hereditaments only,* the title to land or any 
 interest in it can not be acquired by prescription.^ Any ad- 
 verse possession or user, which is to pass title to corporeal 
 hereditaments, must ordinarily find its power to do so in 
 some statute. So, in a case in which Parliament had given 
 
 ^ The questions as to the existence, prescription," §§ 168, 169, infra. See 
 
 duration, and nature of the user arc, of also Welsh o. Taylor, 134 N. Y. 450; 
 
 course, for the jury. The logical posi- Valentine v. Schreiber, 3 N. Y. App. 
 
 tion is that these are to lie settled be- Div. 235. 
 
 fore any presumption of any sort, as to ^ Lockwood v. Wood, 6 Q. B. 31, 50, 
 
 the origin of the easement, is to be 64; Smith v. Gatewood, Cro. Jac. 152; 
 
 indulged. Bat, these being settled in Grimstead v. Marlowe, 4 T. R. 717; 
 
 favor of the claimant, the presumption Curtis u. Keesler, 14 Barb. (N. Y.) 
 
 of his right should then be conclusiye. 51 1 ; Perley v. Langley, 7 N. H. 233 ; 
 
 Lehigh Val. R. Co. v. McFarlan, 43 Lit. §170; Co. Lit. 113 b. 
 N. J. L. 605, 608; Sibley v. Ellis, 11 * 2 Blackst. Com. p. *317. 
 
 Gray (Mass.), 417 ; Bremer v. Manhat- s Luttrel's Case, 4 Co. 87 ; Potter v. 
 
 tan R. Co., 191 N. Y. 333, 338 ; Parker North, 1 Ventr. 383, 387 ; Carlyon v. 
 
 D.Foote, 19 Wend. (N.Y.) 309; Strieker Levering, 1 Hurl. & N. 784; Strickler 
 
 V. Todd, 10 Serg. & R. (Pa.) 63, 69; v. Todd, 10 S. & E. (Pa.) 63, 69; Cor- 
 
 Tracy v. Atherton, 36 Vt. 503 ; Angus telyou v. Van Brunt, 2 Johns. (N. Y.) 
 
 V. Dalton, L. R. 6 App. Cas. 740. 357 ; Gayetty v. Bethune, 14 Mass. 49, 
 
 2 See this exemplified in the disciis- 53 ; Tinicum Fishing Co. v. Carter, 61 
 
 sion of servitudes acquired by " public Pa. St. 21 ; Hill v. Lord, 48 Me. 83, 96. 
 
212 KINDS OP REAL PROPERTY. 
 
 to a corporation the right to construct and operate a canal for 
 public use, and an individual who for over twenty years had 
 drawn water from the canal to run a steam-engine placed by 
 him upon its banks pleaded a prescriptive right when sued 
 by the company, it was held that his plea was bad, since the 
 corporation had no power to do anything concerning the water 
 except to use it for a canal.^ And, because the City of New 
 York holds its streets in trust for the public use, and can not 
 legally make a grant that will interfere with that use, a private 
 owner's enjoyment for twenty years of a vault that encroaches 
 on the street does not give him any conclusive right to its 
 continuance.^ 
 
 It follows also, from the doctrine of an assumed grant or 
 other legal origin, that an easement can not be acquired from 
 the state by adverse enjoyment, for no presumption can run 
 against the state.^ But such rights may be gained against 
 cities, towns, and other public or quasi corporations.* 
 
 1 Rockland Canal Co. v. Eadcliffe, 852, 855; Wood on Nuisancea, pp. 40, 
 
 18 Q. B. 287; Stafford, etc. Canal v. 105. 
 
 Birmingham Canal, L. R. 1 Eng. & Ir. ^ Deshong v. City of New York, 176 
 
 App. 254, 268, 278 ; Bnrbank v. Fay, 65 N. Y. 475, 483. 
 
 N. Y. 57. A prescriptive right can * Pa. R. Co. v. Borough of Free- 
 not be obtained to commit a nuisance. port, 138 Pa. St. 91 ; Glaze v. Western 
 Campbell v. Seaman, 2 N. Y. Super. & Atlantic R. Co., 67 Ga. 761 ; Dart- 
 Ct. 231, afe'd 63 N. Y. 568; Common- mouth College v. Woodward, 4 Wheat, 
 wealth V. Upton, 6 Gray (Mass.), 473; (U. S.) 518. 
 Sturges V. Bridgman, L. R. 11 Ch. Div. * Ibid. 
 
CHAPTER X. 
 
 SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 
 
 § 165. Servitudes — How ac- 
 quired. 
 
 a. Servitudes arising from Grant. 
 § 166. Directly created by grant. 
 § 167. Easements in gross. 
 
 b. Servitudes arising from 
 Prescription. 
 
 § 168. Public prescription. 
 § 169. Requisites of public pre- 
 scription. 
 
 c. Servitudes arising from Custom. 
 § 170. Creation and nature of 
 
 such servitudes. 
 
 d. Servitudes created by Dedication. 
 
 § 171. General requisites of dedi- 
 cation. 
 § 172. OfEer by landowner. 
 
 § 173. Revocation of landown- 
 er's offer. 
 
 § 174. Acceptance of ofier by 
 public. 
 
 § 175. Statutory dedication. 
 
 § 176. Effects of dedication. 
 
 e. Servitudes created by Operation 
 of Law. 
 
 § 177. Such servitudes explained 
 and distinguished. 
 
 § 178. Requisites — Public na- 
 ture. 
 
 § 179. Requisites — ' Compensa- 
 tion. 
 
 § 180. Kinds of servitudes so 
 created. 
 
 f . Servitudes existing by Nature. 
 
 §181. Natural servitudes — 
 Kinds. 
 
 § 165, Servitudes — How acquired. — It was explained in 
 the last chapter that real or prcedial servitudes, when the 
 term is employed in the broad sense of the early common-law 
 writers, embrace all common-law easements; all those nat- 
 ural, legal, and customary rights in or over land which are 
 not franchises nor common-law easements, and which do not 
 carry with them the privilege of talcing anything from the 
 servient land; and all forma of profit h prendre, or rights 
 to take something from the servient land.^ The preceding 
 chapter was devoted to the acquisition and leading character- 
 istics of the first of those groups, — the common-law easement, 
 
 1 §§ 127-129, supra. 
 
214 KINDS OP REAL PROPERTY. 
 
 which was defined as a privilege without profit (without profit 
 A prendre), created by grant or prescription, which the owner 
 of one piece of land called the dominant tenement has over 
 another piece of land called the servient tenement.^ 
 
 The present chapter deals with the creation and chief 
 characteristics of the second group of rights above named, 
 which for the sake of clearness and for want of a better dis- 
 tinctive term are here designated simply as servitudes. While 
 commonly called easements even by the highest courts, they 
 are clearly distinguished from common-law easements, prop- 
 erly so called, by the facts that they may come into existence 
 by means other than grant or prescription, and that they do 
 not require the existence of two distinct tenements, the one 
 dominant and the other servient.* Illustrations of them are 
 found in the rights enjoyed by the public in streets and high- 
 ways,^ in the reciprocal privileges and duties belonging to the 
 owners of adjacent riparian lands,* and in the natural right of 
 every owner of land to have it laterally supported by the soil 
 of his neighbor.^ There are six methods by which such servi- 
 tudes may exist or be brought into being; namely: a. By 
 grant, in some of its forms; h. By prescription — public pre- 
 scription; c. By custom; d. By dedication; e. By operation 
 of law ; and /. By nature. These methods are to be dis- 
 cussed in the order here named, and in connection with such 
 discussion the nature and prominent features of the servitudes 
 to which they may respectfully give rise are to be examined. 
 
 a. Servitudes arising from Grant. 
 
 § 166. Servitudes directly created by Grant, — In favor of 
 a competent grantee, the owner of a parcel of land may impose 
 
 1 § 126, supra. stream, has an easement by grant or 
 
 s See §§ 127, 128, supra. The word prescription for its flow over the land 
 
 " servitudes " is thus used, not in a of riparian owners for many miles to 
 
 new sense, but simply to distinguish its mouth.'' Earl, J., in Scriber v. 
 
 such rights from common-law ease- Smith, 100 N.Y. 479. And see Archer 
 
 ments. "Such rights have some sem- v. Archer, 84 Hun (N. Y.), 297, 298; 
 
 blance to easements, and no harm or Bly v. Edison Electric Ilium. Co., 172 
 
 inconvenience can probably come from N. Y. 1. 
 
 classifying them as such for some pur- ' Iselin v. Starin, 144 N. Y. 453. 
 poses. But they are not in fact real * Brown u. Bowen, .30 N. Y. 519; 
 casements. Every easement is sup- Acqnackanonck Water Co. v. Watson, 
 posed to have its origin in grant, or 29 N. J. Eq. 366 ; Macomber v. God- 
 prescription which presupposes a grant ; frey, 108 Mass. 219. 
 and it is quite absurd to suppose that ' White v. Nassau Trust Co., 168 
 the owner of land, at the head of a N. Y. 149, 155. 
 
SERVITUDES THAT ARE NOT COMMON-LAW BASEMENTS. 215 
 
 upon it any legal burden that he may choose to create. In 
 order to make an easement in this way, he must evince a clear 
 intent to make one lot of land subservient to another; but, 
 when by grant a servitude which is not an easement is to 
 arise, it is simply required that the one piece of land shall be 
 encumbered with a burden for the benefit of some designated 
 grantee.^ This may be accomplished by a direct conveyance 
 by the landowner of some right or privilege over his property, 
 or by a direct reservation in a deed of the servient estate, or 
 by a covenant or condition contained in the instrument of 
 conveyance. The contract, however, must usually be express, 
 when a servitude is to come into existence by virtue of a 
 grant alone. When either law or equity fixes by implied 
 grant a burden or obligation upon land, it does so in favor of 
 some other land, to which the right is appurtenant; and thus 
 a common-law easement is brought into existence. ^ 
 
 § 167. EaaementB in Gross. — The form of servitude (out- 
 side of common-law easements) most commonly made by 
 express grant is the so-called "easement in gross," which, as 
 above explained, though generally called an easement, is in 
 reality a form of servitude, but not strictly an easement, since 
 it requires the existence of only one tenement.* Thus, if a 
 person who owns no land in the neighborhood be granted a 
 right to walk over a certain lot, or a drover be deeded a per- 
 manent privilege of driving his cattle across a strip of land 
 connecting two highways and this purely for his convenience 
 in taking them to market and without regard to any owner- 
 ship of real property by him, a servitude of this character is 
 created.* 
 
 An easement in gross is so purely personal in its nature 
 that it is not ordinarily assignable, devisable, or inheritable, 
 and the grantee can not even permit another to enjoy it with 
 him against the will of the grantor. In most jurisdictions 
 it can not be made inheritable, devisable, or assignable, by 
 any words in the deed by which it is created.^ But, in New 
 York, Massachusetts, Wisconsin, and perhaps one or two 
 
 1 § 165, supra. ' Boatman v. Lasley, 23 Ohio St. 
 
 3 §§ 138-152, su/)ro. 614; Moore v. Crose, 43 . Ind. 30; 
 
 " §§ 127, 128, supra. Hoosier Stone Co. v. Malott, 130 Ind. 
 
 * Ackroyd v. Smith, 10 C. B. 164; 21, 24; Tinicum Fishing Co. v. Carter, 
 
 Lathrop v. Elsmer, 93 Mich. 599 ; Gar- 61 Pa. St. 21 ; Whaley v. Stevens, 21 
 
 rison v. Eudd, 19 HI. 558 ; City of New S. C. 221. 
 York V. Law, 125 N. Y. 380. 
 
216 KINDS OP REAL PROPERTY. 
 
 other states, it may be made transferable in these ways, by 
 apt words used in the deed of grant. ^ Easements in gross are 
 not favored by the law ; and a grant of a right over land is 
 presumed to be appurtenant to other land, unless the contrary 
 is shown directly, or by necessary implication from the words 
 of the instrument, or from the surrounding circumstances.* 
 When it is clearly an easement in gross, if there be no explicit 
 declaration as to how long it is to continue, it will be con- 
 strued as lasting only during the life of the grantee, or for 
 such other period as will be sufficient to carry out the pur-, 
 poses of the grant. ^ Thus, where the right was reserved 
 simply for the benefit of the grantor's lessee, it was held that 
 it would end when the lease terminated.* But in those 
 states in which such rights are inheritable they may be 
 made to last in perpetuity, if such an intention be clearly 
 expressed. ^ 
 
 b. Servitudes arising from Prescription. 
 
 § 168. Public Prescription. — In discussing the subject of 
 acquiring easements by prescription, it was shown that the 
 most modern theory upon which the courts rest the creation 
 of incorporeal hereditaments through long-continued adverse 
 user or enjoyment is the conclusive presumption of a grant or 
 other legal origin.^ Since there can be no logical presumption 
 of a grant to such an indefinite and constantly changing thing 
 as the general public, the principle at the foundation of 
 "public prescription" for streets and highways must be 
 simply the indisputable assumption, after such rights have 
 been enjoyed in the requisite manner for the necessary period, 
 
 1 City of New York v. Law, 125 N. Y. Brook Park Ass'n, 63 N. Y. App. DiT. 
 380, 392; Bowen v. Conner, 6 Gush. 445. 
 
 (Mass.) 132, 137 ; Hankey v. Clark, 110 * Eussell v. Heublein, 66 Conn. 486; 
 
 Mass. 262 ; Engel v. Aver, 85 Me. 448 ; Jamaica Pond Aqueduct Co. ■/. Chand- 
 
 Paul V. Mockley, 33 Wis. 482; Steren- ler, 9 Allen (Mass.), 159, 170. 
 
 son a. Wiggin, 55 N. H. 308; Wash. ' Piukum u. Eau Claire, 81 Wis. 
 
 Ease. (4th ed.) p. 12. See White «. 301; Amidon u. Harris, 113 Mass. 59; 
 
 Wiley, 36 N. Y. St. Eep. 102. Bank v. Miller, 6 Fed. Rep. 545, 550. 
 
 2 Cadwalader v. Bailey, 17 R. I. It is not technically accurate in such 
 495 ; Dennis v. Wilson, 107 Mass. 591 ; cases to say that the easement In gross 
 Oswald V. Wolf, 1 26 DI. 542 ; Valentine is granted in fee, " because an ease- 
 V. Schreiber, 3 N. Y. App. Dir. 235, ment in fee must be appurtenant to 
 240; Hopper v. Barnes, 113 Cal. 636. land held in fee." Jones, Ease. § 43; 
 
 » McDaniel • v. Walker, 24 S. E. Pinkura v. Eau Claire, 81 Wis. 301. 
 Rep. 378 (S. C); Metcalf v. Crystal See Hankey «. Clark, 110 Mass. 262. 
 
 « § 163, supra. 
 
SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 217 
 
 that they had a " legal origin " of some kind. They may have 
 commenced as dedicated servitudes, or as rights taken by 
 eminent domain, or otherwise. The precise nature of the 
 origin is immaterial. The fiction is that it was a legal 
 beginning of some sort, and practically all the states of this 
 country recognize and protect the resultant highway rights 
 and privileges.^ Most of the cases in which servitudes have 
 been recognized as established in this manner have dealt 
 with streets, roads, or public ways; but in a few instances 
 prescriptive titles to other rights of convenience or utility to 
 the public have been upheld.* The burdens so imposed upon 
 land are servitudes ; but they are not easements, since they are 
 enjoyed by the general public, who have no dominant estate.^ 
 § 169. Requisites of Public Prescription. — A prescriptive 
 highway, or right to some special use of a street or road, may 
 be established by proof that the enjoyment of it by the general 
 public, for the requisite length of time, has been open and 
 notorious, continuous and uniform, peaceable and uninter- 
 rupted, with an adverse claim of right, and with the acquies- 
 cence of an owner of the land who was seised in fee and who, 
 at the time of the beginning of such enjoyment, was free from 
 disability to resist its imposition upon his property. These 
 essentials are stated in the same form as that in which they 
 were above enumerated in dealing with easements by prescrip- 
 tion. When they are all established, a right is ordinarily as 
 fully and conclusively proved in the one class of cases as in 
 the other.* So, if it be shown that the public use was with 
 
 1 Cohoes V. D. & H. Canal Co., 134 warrant a presumption of laying out, 
 N. Y. 397 ; Corning v. Head, 86 Hun dedication, or appropriation, by parties 
 (N. Y.), 12 ; Smith v. State, 23 N. J. L. having authority ao to lay out, or a right 
 130; Weiss v. South Bethlehem, 136 to so appropriate, like that of prescrip- 
 Pa. St. 294 ; Commonwealth v. Rail- tiou or non-appearing grant in case of 
 road Co., 135 Pa. St. 256 ; Sprow u. individuals. It stands upon the same 
 B. & A. E. Co., 163 Mass. 330; Pome- legal grounds, a presumption that what- 
 roy V. Mills, 3 Vt. 279 ; Hampson v. ever was necessary to give the legal 
 Taylor, 15 R. I. 83; Stevens v. Nashua, effect and operation was rightly done, 
 46 N. H. 192; Campau v. Detroit, 104 though no evidence of it can be pro- 
 Mich. 560; Wheatfield i^. Gruudmann, duced except the actual enjoyment of 
 164 111. 250; Shick i/. CarroU Co. the benefits conferred by it." Jennings 
 Comm'rs, 106 Ind. 573 ; Schwerdth v. v. Tisbury, 5 Gray (Mass.), 73, 74. Also 
 Placer Co., 108 Cal. 589. District of Columbia v. Robinson, 180 
 
 " Stedman v. Southbridge, 17 Pick. TJ. S. 92, 98 ; Wheatfield v. Grundmann, 
 
 (Mass.) 162. 164 111. 250; Root v. Commonwealth, 
 
 Stevens v. N. Y. El. R. Co., 130 98 Pa. St. 170; Thomas n. Pord, 63 
 
 N. Y. 95 ; § 165, supra. Md. 346 ; Brownell v. Palmer, 22 Conn. 
 
 * "In general, it must be such as to 107 ; Howard v. State, 47 Ark. 431. 
 
218 KINDS OF REAL PROPERTY. 
 
 the license or permission of the landowner, or that it was not 
 under a claim of right, or that it was desultory or not con- 
 tinued in the same manner and to the same extent through- 
 out the entire prescriptive period, or according to the weight 
 of authority if during part of such period the landowner were 
 under a legal disability which existed when the adverse enjoy- 
 ment be^n, the servitude, will not be proved to have arisen.^ 
 But in a few states it has been held that, since prescriptive 
 privileges in favor of the general public are not founded upon 
 the presumption of a grant, the mere disability of the owner 
 of the servient estate to make a grant does not stand in the 
 way of the acquisition of such a right. ^ 
 
 In a few of the United States, as New York, Indiana, and 
 California, there are statutory provisions regarding such ac- 
 quisition of highways.^ These generally require that the 
 way or street shall be specifically used as a highway ;' and, if 
 the positive provisions of the statute be complied with, it is 
 then generally not fatal to the acquisition of the right that the 
 user was not wholly adverse, or that the landowner was under 
 some legal disability to sue.* (a) 
 
 (a) The New York statute (Consol. Laws, ch. 25, being L. 1909, ch. 
 30, § 209) provides that " All lands which have been used by the public 
 as a highway for the period of twenty years or more shall be a highway, 
 with the same force and effect as if it had been duly laid out and recorded 
 as a highway, and the commissioners of highways shall order the overseers 
 of highways to open all such highways to the width of at least two rods." 
 Dealing with a case arising under this act, the Court of Appeals, per Earl, 
 J., says : " The mere fact that a portion of the public travels over a road for 
 twenty years cannot make it a highway ; and the burden of making high- 
 ways and sustaining bridges cannot be imposed upon the public in that 
 way. There must be more. The use must be like that of a highway gen- 
 erally. The road must not only be travelled upon, but it must be kept in 
 
 1 Irwin I'. Dixon, 9 How. (U. S.) 10; Elliott on ftoada, 138. And see Speir 
 Borough of Verona t. A. R. R. Co., i-. New Utrecht, 121 N. Y. 420; Freshour 
 152 Pa. St. 368; Lewis v. N. Y. L. E. & v. Hihn, 99 Cal. 443. 
 
 W. R. Co., 123 N. Y. 496; McCleary w. » N. Y. Highway Law (Consol. 
 
 Boston & M. R. Co., 153 Mass. 300; Laws, ch. 25), §209; Strong v. Ma- 
 
 Morund v. McClintock, 150 111. 129; keever, 102 Ind. 578 ; Freshour w. Hihn, 
 
 Jones y. Phillips, 59 Ark. 35 ; Lewis v. 99 Cal. 443 ; Stewart v. Frink, 94 N. C. 
 
 Portland, 25 Oreg. 133 ; Edsou v. Man- 487 ; Commonwealth i;. Kelly, 8 Gratt. 
 
 sell, 10 Allen (Mass.), 557; Watkins (Va.) 632. 
 
 V. Peck, 13 N. H. 360; Faukboner v. *■ Ibid.; Speir v. New Utrecht, 121 
 
 Corder, 127Ind. 164; Reimerw. Stuber, N. Y. 420; People v. Underhill, 144 
 
 20Pa. St. 458. N. Y. 316; Schwerdth v. Placer Co., 
 
 2 Webber v. Chapman, 42 N. H. 108 Cal. 589; Elfeit v. Stillwater K. 
 326 ; Wallace v. Fletcher, 30 N. H. 434 ; Co., 53 Mum. 68, 
 
SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 219 
 
 c. Servitudes arising from Custom. 
 
 § 170. Creation and Nature of such Servitudes. — It was 
 stated above that " custom is distinguished from prescription 
 in that the former is a mere local usage, not annexed to any 
 particular person but belonging to the community rather than 
 to its individuals, while the latter is a personal usage or en- 
 joyment confined to the claimant and his ancestors or those 
 whose estate he has acquired. " ^ Custom, moreover, is an 
 outcome of immemorial usage, and will not ordinarily result 
 from proof of twenty years of adverse enjoyment.^ 
 
 There have been presented to the courts very few cases in 
 which title to incorporeal hereditaments has been held to rest 
 on custom alone. In the rare instances in which it has given 
 rise to servitudes, it has been shown to have continued for 
 time out of mind in favor of a practically definite class of 
 families or persons constituting a town, village, or other com- 
 munity, and to have been reasonable in purpose and scope, so 
 as not to preclude the ordinary use of the land by its owner. ^ 
 Thus, in Fitch v. Rawling* it was held that a custom for the 
 inhabitants of a certain parish to enter upon a designated 
 piece of land, at reasonable times in each and every year, and 
 
 repair or taken in charge and adopted by the public authorities. ... A 
 private way opened by the owners o£ the land through which it passes for 
 their own use does not become a public highway merely because the public 
 are also permitted for many years to travel over it." Speir v. New Utrecht, 
 121 N. Y. 420, 429. See also Lewis v. N. Y. L. E. & W. R. Co., 123 N. Y. 
 496; People o. Underbill, 144 N. Y. 316; People v. Osborn, 84 Hun, 441 ; 
 Harriman v. Howe, 78 Hun, 280; Buffalo o.D. L. & W. R. Co., 39 N. Y. 
 Supp. 4 ; Davenpeck v. Lambert, 44 Barb. 596. 
 
 1 § 153, supra. they are holden as a cnatom; if the 
 
 ' Goodman v. City of Saltash, L. R. same are limited to an individual and 
 
 7 App. Cas. 633 ; Edwards v. Jenkins his descendants, to a body politic and 
 
 (1896), 1 Ch. 308; Co. Lit. 110 b. its successors, or are attached to a par- 
 
 "The same rights and privileges which ticular estate, and are only exercised by 
 
 may be claimed as a custom may also those who have the ownership of sach 
 
 be claimed as a prescription. An ease- estate, they are holden as >v prescrip- 
 
 ment upon another man's land, snch as tion, which prescription is either per- 
 
 a right of w^y, a right to turn a plough sonal in its character, or is a prescription 
 
 upon another man's land, or for a fish- in a que estate." Perley i: Langley, 
 
 erman to mend his nets there, a right 7 N. H. 233, 235 ; Knowles v. Dow, 22 
 
 to have a gateway, or to pass quit of N. H. 387. 
 
 toll, may be sustained as a custom, or ' Fitch u. Bawling, 2 H. Blackst. 
 
 as a prescription. If these rights are 393 ; Tyson i>. Smith, 9 Adol. & El 
 
 common to any manor, hundred, dis- 406 ; Gray on Perpetuities, ch. xvii. 
 trict, parish, or county, as a local right, * 2 H. Blackst. 393. 
 
220 KINDS OF REAL PROPERTY. 
 
 play at cricket and other games was good, and could be estab- 
 lished, against the landowner by showing that they and their 
 ancestors had enjoyed this privilege for time whereof the 
 memory of man ran not to the contrary. But it was declared 
 that it could not be claimed as a good custom for all the 
 people of England to do this, nor in favor of strangers or 
 other persons, not residents of the parish, who happened to be 
 there at the times when the games were played.^ A custom 
 for all the inhabitants of a town to go upon a certain close on 
 a specified day in each year, for the purpose of horse-racing, 
 was decided to be valid. ^ But the residents of a village could 
 not thus obtain the right to go upon a piece of land, at their 
 pleasure, to exercise horses^ or to play golf,* since this would 
 be unreasonable; nor could they, in this way, gain the privi- 
 lege of walking or riding over a field at times in the year 
 when the owner had corn or other annual crops growing or 
 standing thereon, because this would tend to destroy alto- 
 gether the profits of his land.^ 
 
 Emphasis is to be laid upon the fact that a customary ser- 
 vitude must be confined to the inhabitants of a local district, 
 town, or parish. Thus, it was decided in New York that the 
 general public could not obtain a right to deposit manure, 
 wood, and other substances on a public landing-place on the 
 bank of a navigable stream.® And in that case Chancellor 
 Walworth says: "The law is well settled that a customary 
 accommodation in the lands of another, to be good, must be 
 confined to the inhabitants of a local district, and cannot be 
 extended to the whole community or people of the State. " ^ 
 In a country like this, where towns and villages are newer 
 and change more rapidly than in England, while the theory 
 of the creation of servitudes by custom may prevail, yet the 
 circumstances which give rise to the above-enumerated requi- 
 
 ' Also Abbot II. Weekly, 1 Lev. 1 76 ; which last is called prescribing in a 
 
 Bland v. Lipscombe, 4 El. & B. 713, que estate." Chase's Blackst. p. 418. 
 
 714, note. "If one claims a prescriptive right to 
 
 2 Mounsey v. Ismay, 3 H. & C. 486. an easement in another's land, by reason 
 
 ' Sowerby v. Coleman, 2 Ex. 96, 99. of owning or occupying laud to which 
 
 * Dempster v, Cleghorn, 2 Dow, 40, such right is appurtenant, he is said to 
 
 49, 62. claim in a que estate." Wash. Ease. 
 
 ""■ Bell V. Wardwell, Willes, 202. (4th ed.) p. 18, p. » 10. 
 
 6 Pearsall v. Post, 20 Wend. (N. Y.) ' Post v. Pearsall, 22 Wend. (N. Y.) 
 
 Ill, 118. "All prescription must be 425, 432; State o. Wilson, 42 Me. 9; 
 
 either in a man and his ancestors, or in Gardiner v. Tisdale, 2 Wis. 153 ; Man- 
 
 a man and those whose estate he hath : ning v. Wasdale, 5 Adol, & El. 758, 
 
SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 221 
 
 sites rarely concur ; and in many of the United States such 
 rights have never been held to have been called into exist- 
 ence.^ In a few states, as above shown, customary servitudes 
 have been clearly sustained.^ 
 
 d. Servitudes created by Dedication. 
 
 § 171. General Requisites of Dedication. — Dedication is 
 a means by which title to real property may pass from a per- 
 son to the general public (or some part thereof) through an 
 offer made by the former and accepted by the latter. Its 
 most common operation is to impose a servitude upon land, 
 as, for example, to make the soil subject to use for a highway, 
 street, square, park, landing, or wharf.' It is founded wholly 
 on the doctrine of estoppel in pais; a representation being 
 made by the offer of the landowner such as it is reasonable to 
 presume was intended to be acted on by the public, and the 
 latter reasonably acting accordingly in such a manner that 
 injury would result to it if the representation were denied 
 and the offer withdrawn.* The discussion of servitudes 
 created by dedication, therefore, divides itself naturally into 
 two parts — Jirst, the offer of a right over his land, made by 
 the owner thereof to the public, and second, the acceptance of 
 the offer by the public. 
 
 § 172. The Offer by the Landowner. — First. The offer or 
 representation may be made in any proper manner which 
 indicates a clear intent or willingness on the part of the 
 owner of the land to have it used by the public. A deed of 
 the right to the public authorities, a parol declaration that 
 
 1 Post V. Pearsall, 22 Wend. (N. Y.) Rex v. Hudson " (2 Strange, 909), "and 
 425 ; Rose v. Bonn, 21 N. Y. 275 ; Acker- was next applied in Lade u. Shepherd, 
 man o. Shelp, 8 N. J. L. 125: Wash. in 1735" (2 Strange, 1004). "It then 
 Ease. (4th ed.) pp. 140-144, pp. * 77-*80. slept until 1790, in the case o£ Rugby v. 
 
 2 Knowles v. Dow, 22 N. H. 387; Merryweather " (11 East, 375). Wash. 
 TSadi V. Hobbs, 17 N. H. 524. See Ease. (4th ed.) p. 207, p.* 131. Since 
 Hill V. Lord, 48 Me. 83 ; Waters v. the last-named date, a great many 
 Lilley, 4 Pick. (Mass.) 145. cases have been decided upon its prin- 
 
 * The doctrine of the dedication of ciples; and it is now a settled doctrine 
 
 servitudes to the public is of com- in both England and America, 
 paratively modern date. "Thus it is * Wilder k. St. Paul, 12 Minn. 192, 
 
 stated by Gibson, C. J., in Gowen u. 200 ; Thousand Is. Pk. Ass'n r. Tucker, 
 
 Philadelphia Exchange Co.," 5 Watts 173 N. Y. 203, 209; Uhlefelder v. City 
 
 & S. (Pa.) 141 "that the doctrine of of Mt, Vernon, 76 N. Y. App. Div. 
 
 dedication to the public, without the 349. 
 intervention of trustees, began in 1732, 
 
222 
 
 KINDS OF REAL PROPERTY. 
 
 the property is designed for public use, or acts, or circum- 
 stances, though nothing but silent acquiescence, are sufficient , 
 if unequivocal in character to perform that part of the process 
 of dedication which is for the landowner.^ The cases are 
 numerous, for example, in which lots have been sold with 
 reference to a map or plan, showing them to be bounded on 
 strips of land designed for public streets, highways, squares, 
 or other open places ; and it has been held that the offer was 
 thus made to dedicate the land so indicated.^ "It is every 
 day's practice to presume a dedication of land to the public 
 use from an acquiescence of the owner in such use. " ^ 
 
 The requirement must be emphasized that the overt act 
 or tacit permission must be such that, from it, the design to 
 make the offer to the public can be clearly and fully spelled 
 out or presumed. It was, accordingly, decided that there 
 was no dedication of a way, in a case in which the landowner 
 laid out a street through his premises and graded and paved 
 it, but erected at both ends of it gates, which were, ' however. 
 
 1 Trustees, etc. v. Merry weather, 1 1 
 East, 375 ; McKay v. Hyde Part, 134 
 TJ. S. 84 ; Flack v. Green Island, 122 
 N. Y. 107 ; Matter of 160th Street, 48 
 Hun (N. Y.), 488; Commonwealth v. 
 Railroad Co., 135 Pa. St. 256; Hayden 
 V. Stone, 1 1 2 Mass. 346 ; Commonwealth 
 V. Coupe, 128 Mass. 63; Wheatfield v. 
 Graudmann, 164 111. 250. 
 
 2 Haight V. Littlefield, 147 N. Y. 338 ; 
 People f. Dnderhlll, 144 N. Y. 316; 
 Ecker.son t. Village of Haverstraw, 
 6 N. Y. App. Div. 102; Price r. Plain- 
 field, 40 N. J. L. 608 ; Clark v. Eliza- 
 beth, 40 N. J. L. 172; Quieksall v. 
 Philadelphia, 177 Pa. St. 301; Ruddi- 
 man v. Taylor, 95 Mich. 547 ; Thaxter 
 V. Turner, 17 R. I. 799. But the mak- 
 ing of a plan or map of one's land, on 
 which streets or other open places are 
 indicated, not followed hv any dealing 
 with the land with reference to such 
 places, docs not evince an intent to 
 dedicate them. Whitworth v. McComb, 
 69 Miss. 882 ; Vanatta v. Jones, 42 
 N. J. L. 561 ; Birmingham, etc. R. Co. 
 V. Bessemer, 98 Ala. 274. When an 
 owner of land thus sells it off in lots, 
 with reference' to a plan or map show- 
 ing squares, streets, etc., by or along 
 which the parcels are bounded, all the 
 
 purchasers who buy with reference to 
 such map or plan are held to have the 
 right to have the spaces kept open as 
 indicated, even though the offer or rep- 
 resentation may not be made in such 
 a manner as to lay the foundation for 
 a dedication to the public. Bissell u. 
 N. Y. C. R. Co., 23 N. Y. 61 ; Bridges 
 V. Wyckoff, 67 N. Y. 139'; Matter of 
 Eleventh Ave., 81 N. Y. 436 ; Story d. 
 N. Y. El. R. Co., 90 N. Y. 122 ; Thou- 
 sand Is. Pk. Ass'n V. Tucker, 173 N. Y. 
 203; Commonwealths. Beaver Borough, 
 171 Fa. St. 542. But this last-named 
 right is the result of an implied grant to 
 such purchasers of an easement over such 
 streets or places ; and it is to be care- 
 fully distinguished from servitudes upon 
 such places arising from dedication, in 
 favor of the public. The latter rests 
 upon estoppel, the former upon implied 
 grant ; the former requires the exist- 
 ence of two distinct tenements — the 
 lot sold as dominant and the land over 
 which the right exists as servient — 
 while the latter is a burden on the one 
 tenement only — the land over which 
 the public have the right. See §§ 139, 
 140, supra. 
 
 3 Knight u. Heaton, 22 Vt. 480, 
 483. 
 
SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 223 
 
 removed for a time while the road was being finished.' 
 The existence of the gates negatived all presumption of an 
 offer to the public, and their removal for a time was explained 
 by the fact that it was done for the purpose of completing the 
 roadway. Thus, very slight acts on the part of him over 
 whose property the right is claimed, such as putting a fence, 
 post, or rock in the road, or by a sign-board forbidding pass- 
 age through it, will readily do away with any assumption that 
 he meant a dedication to ensue, ^ And mere acquiescence by 
 the owner of land in its occasional and varying use for travel 
 by the public is insufficient to establish an intent to dedicate 
 it for a street.^ Yet, since the doctrine upon which rest the 
 principles of dedication of servitudes is estoppel in pais, it 
 is to be added, as of course, that if the landowner so act as to 
 lead the public to believe that he meant to offer it the use of 
 his property, even though in reality he had no such intention, 
 he will be precluded from denying the existence of a dedi- 
 cated right, to the prejudice of those who have in good faith 
 acted upon the representation so made.* 
 
 § 173. Revocation of Landowner's Offer. — The owner of 
 land, who has offered the use of it to the public, may with- 
 draw the offer at any time before its acceptance, and thus 
 prevent a dedication from ever being effectuated.^ His death 
 before the public has accepted the proffered servitude is in 
 itself a revocation.® The offer, moreover, is deemed to be 
 
 1 Carpenter v. Gwynn, 35 Barb. that a dedication has actually occurred. 
 (N. T.) 395, 406. Ottawa u. Yentzer, 1 60 111. 509 ; Getchell 
 
 2 "A single act of interruption by v. Benedict, 57 Iowa, 121 ; Elsworth v. 
 the owner is of much more weight upon Grand Kapids, 27 Mich. 250 ; Busch- 
 the question of intention than many man v. St. Louis, 121 Mo. 523 ; Smith 
 acts of enjoyment on the part of the v. Osage, 80 Iowa, 84. 
 
 public; the use without the intention ' Borough of Verona v. A. R. R. 
 
 to dedicate it as a public way not being Co., 152 Pa. St. 368. 
 a dedication." Wash. Ease. (4th ed.) * Wilder v. St. Paul, 12 Minn. 192. 
 
 p. 212, p. * 135 ; Poole v. Huskinson, 11 See Lee c. Lake, 14 Mich. 12, 18. 
 M. & W. 827 ; Roberts v. Carr, 1 Campb. ' Bridges v. Wyckoff, 67 N. Y. 139 ; 
 
 262; Barraclough v. Johnson, 8 Adol. & Lee v. Sandy Hill, 40 N. Y. 442; Mark 
 
 EI. 99 ; Dwinel v. Barnard, 28 Me. 554 ; v. West Troy, 57 N. Y. St. Rep. 323 ; 
 
 Commonwealth v. Newbury, 2 Pick. Chicagov.Drexel, 141 111. 89; Diamond 
 
 (Mass.) 51 ; Huffman ./. Hall, 102 Cal. Match Co. v. Ontonagon, 72 Mich. 249; 
 
 26; Herhold v. Chicago, 108 111. 467; People v. Dreher, 101 Cal. 271 ; Becker 
 
 Hall i!. Baltimore, 56 Md. 187; State t>. St. Charles, 37 Mo. 13. See Trustees 
 
 V. Green, 41 Iowa, 693; Bauman v. v. Hoboken, 33 N. J. L. 13; Atty.- 
 
 Boeckeler, 119 Mo. 189. So the pay- Gen. v. Morris, etc. R. Co., 4 C. E. 
 
 ment of taxes on the land, as private Green (N. J.), 386, 391. 
 property, militates against a presumed ^ People v. Kelloqrg, 67 Hun (N. Y.), 
 
 intent to offer it to the public ; but this 546 ; Bridges v. Wyckoff, 67 N. Y. 130 ; 
 
 may be readily rebutted by other proof Walker v. Townsend, 43 Ohio St. 537. 
 
224 KINDS OF REAL PROPERTY. 
 
 kept open only a reasonable time ; and, after that has elapsed 
 without anything having been done on the part of the public 
 to complete the dedication, the landowner may treat his proposi- 
 tion as in effect rejected, and employ his property accordingly, 
 without the necessity for any formal revocation of his offer. ^ 
 
 § 174. Acceptance of the Offer by the Public. — Second. 
 When the offer, still in force, is accepted by the public, the 
 dedication becomes complete ; and until that time it is merely 
 incipient. 2 As is stated above, the acceptance must be made 
 within a reasonable time after the offer, or the offer will be 
 deemed revoked.^ All that is required to constitute the 
 acceptance is that the public shall, in some unmistakable 
 manner, indicate an intention to avail itself of the right ten- 
 dered by the owner of the land.* This is frequently done in 
 an express contract entered into by the duly authorized public 
 authorities and the proprietor of the servient estate. But it 
 may also be readily accomplished by any direct dealing by- 
 such authorities with the locus in quo, such as grading and 
 paving or sewering the street, fencing in the square, or 
 otherwise improving the place in question, so as to evince 
 the exercise of control over it for the designated object.* 
 And, while in a few cases it has been held that acceptance 
 requires some overt act other than mere user,® yet the weight 
 of authority, in this country at least, is to the effect that 
 mere enjoyment by the public in the manner indicated by the 
 offer of the servitude and so that its discontinuance would be 
 detrimental to the public, or even enjoyment alone for a con- 
 
 ^ Cook V. Harris, 61 N. Y. 448 ; sometimes impose an onerous burden 
 
 Derby v. AUing, 40 Conn. 410 ; Crocket upon the public without its consent. 
 V. Boston, 5 Cush. (Mass.) 182 ; Bartlett ^ § 173, supra. 
 
 V. Bangor, 67 Me. 460 ; Baker v. Johns- * People v. Underhill, 144 N. Y. 316. 
 
 ton, 21 Mich. 319. What constitutes a ^ King v. Leake, 5 Barn. & Ad. 469; 
 
 reasonable time is to be determined by Matter of Hunter, 1 64 N. Y. 365 ; Ham- 
 
 the particular circumstances of each ilton v, Chicago, B. & C. R. Co., 124 
 
 case. See Vermont Village v. Miller, 111.235; Koss u. Thompson, 78 Ind. 90; 
 
 161 Dl. 210; Grandville v. Jenison, 84 Price v. Breckinridge, 92 Mo. 378; 
 
 Mich. 54; Bell v. Burlington, 68 Iowa, Hall v. Meriden, 48 Conn. 416; State v. 
 
 296. Fisher, 117 N. C. 733. 
 
 2 Cubitt V. Mapse, 8 C. P. 704; « See Green u. Canaan, 29 Conn. 157, 
 
 People V. Underhill, 144 N. Y. 316; 163; Guthrie v. New Haven, 31 Conn. 
 
 State u. South Amboy, 57 N. J. L. 252 ; 308, 321; Hobokeu Land Co. v. Ho- 
 
 Hayden v. Stone, 112 Mass. 346; Dor- boken, 36 N. J. L. 540. Thus, in Iowa, 
 
 man u. Bates Mfg. Co., 82 Me. 438 ; it is expressly provided by statute that 
 
 Field V. Manchester, 32 Mich. 279. If a public way shall not be established 
 
 the act of the landowner alone could by user alone. 1 Iowa, R. S. (1888) 
 
 cause the -servitude to exist, he might § 3206. 
 
SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 
 
 225 
 
 fiiderable length of time, finishes the dedication and makes 
 the right and burden complete.^ When the right is in itself 
 essential to the public convenience, the user alone, without 
 regard to its length, is ordinarily sufficient; but otherwise 
 mere enjoyment is simply an item of evidence of acceptance, 
 which may be easily overcome by counter-proof, unless it has 
 been continued so long and under such circumstances as to 
 make it clear that the public convenience and rights would be 
 materially affected by its cessation. ^ Under such conditions 
 it has been held that proof of user, in one case for five years,* 
 and in another for four years,* was sufficient evidence of 
 acceptance of the servitude. When the public would not be 
 in any way inconvenienced by the termination of the use, 
 "then, in order to establish the right by proof of the enjoyment 
 alone, it must be shown that it has continued for at least 
 twenty years, or during the prescriptive period.^ But in such 
 a case the servitude is in reality created by prescription and 
 not by dedication.^ 
 
 1 King V. Leake, 5 Barn. & Ad. 469 ; 
 ■Green v. Canaan, 29 Conn. 157; Atty.- 
 "Sen. 11. Abbott, 154 Mass. 323; Bau- 
 
 •.lan 1). Boeckeler, U9 Mo. 189 ; Smith 
 1. Flora, 64 111. 93; Los Angeles 
 •Cemetery Co. v. Los Angeles, 32 Pac. 
 Rep. (Cal.) 240 ; Buchanan v. Cartis, 
 25 Wis. 99; Kansas City Milling Co. c. 
 Riley, 133 Mo. 574. " Even in case an 
 acceptance by formal adoption by the 
 public authorities be essential, as it is 
 in some states, in order to impose on 
 ■the public the duty of maintaining and 
 Tteeping in repair, yet if in fact there 
 has been a dedication, and in the esti- 
 mation of the authorities the want and 
 •convenience of the public require the 
 land to be used for' the purpose of a 
 highway, they may use it for that pur- 
 pose and thus cut off tlie owner from 
 retraction." Jones, Ease. § 450, citing 
 Hoboken Land Co. v. Hoboken, 36 
 N. J. L. 540 ; Harrison County v. Seal, 
 •66 Miss. 129. 
 
 2 Matter of Beach Avenue, 70 Hun 
 (N. y.), 351 ; Commonwealth v. Rail- 
 road Co., 135 Pa. St. 256; Detroit v. 
 Detroit & M. R. Co., 23 Mich. 173; 
 Ramthun r. Halfman, 58 Tex. 551 ; 
 .Meiners v. St. Louis, 130 Mo. 274. 
 
 ' J.'irvis I . Deah, 3 Bing. 447. See 
 
 Post V. Pearsall, 22 Wend. {N. Y.) 
 425. 
 
 * Los Angeles Cemetery Co. v. Los 
 Angeles, 32 Pac. Rep. (Cal.) 240. 
 
 6 Gould V. Glass, 19 Barb. (N. Y.) 
 179; Smith v. State, 23 N. J. L. 130; 
 Atty.-Gen. v. Morris, etc. R. Co., 4 C. E. 
 Green (N. Y.), 386, 391 ; Hoole v. Atty.- 
 Gen., 22 Ala. 190; Day v. Allender, 22 
 Md. 511, 526 ; Hutto v. Tindall, 6 Rich. 
 (S. C.) 396. 
 
 • " Ways by prescription and ways 
 by dedication rest upon entirely differ- 
 ent principles. The first is established 
 upon evidence of user by the public, 
 adverse and continuous for a period of 
 twenty years or more, from which use 
 arises a presumption of a reservation or 
 grant and the acceptance thereof, or 
 that it has been laid out by the proper 
 authorities, of which no record exists. 
 The second is created by the permission 
 or gift of the owner, and upon the 
 acceptance of such gift by the public 
 autliorities it becomes a way, and the 
 owner cannot withdraw his dedication." 
 Commonwealth v. Coupe, 128 Mass. 63; 
 Commonwealth r. Matthews, 122 Mass. 
 60 ; Richards v. County Commissioners, 
 120 Mass. 401 ; State v. Mitehell, 68 
 Iowa, 567. 
 
226 KINDS OF REAL PROPERTY. 
 
 § 175. statutory Dedication. — In a number of the United 
 States, most of which are in the West, there are statutes 
 regulating the dedication of property by private persons to 
 the public.^ Some of them are confined to the creation of 
 incorporeal hereditaments in this manner, while others are 
 made broad enough to effect the transfer of corporeal prop- 
 erty.^ The prominent idea in them all is that the making, 
 acknowledging, and filing by the landowner, of a plat or plan, 
 upon which are shown streets, squares, parks, or other open 
 places designed for public use, shall constitute a dedication 
 of those places without further acts or formalities.' Formal 
 acceptance by the public is, under most of such statutes, not 
 necessary to complete the dedication ; but, of course, the right 
 always exists in the local authorities to reject a proffered 
 servitude or other property which would not be for the public 
 convenience or utility. By some of the statutes, moreover, 
 the method of accepting by the public is specifically outlined.* 
 
 In states where such means of dedication are prescribed, 
 such, for example, as Ohio, Indiana, Illinois, Michigan, 
 Minnesota, and California, it is uniformly held that, if the 
 statute be not properly complied with, but all the requisites 
 of a common-law dedication be shown to exist, a servitude 
 may be thus established. ^ Such special acts, therefore, do 
 not exclude the other methods of acquiring easements and 
 servitudes. 
 
 § 176. Effects of Dedication. — In the absence of statutory 
 modification, the ordinary results of the dedication of a servi- 
 tude are that the title to the land remains as before, the right 
 over it passes as a servitude, in favor of the publib, for the 
 
 1 Railroad Co. o. Schurraeier, 7 Wall. " United States v. Illinois Cent. E. 
 
 (U. S.) 272 ; Vermont Village v. Miller, Co., 1.54 U. S. 225 ; Elson v. Comstock, 
 
 161 111. 210; Marsh v. Village of Fair- 150 111. 303 ; Carpentaria School Dist. 
 
 bury, 163 111. 401 ; Fulton v. Mehren- v. Heath, 56 Cal. 478. 
 field, 8 Ohio St. 440 ; Ruddiman v. * Beid v. Board of Education, 73 Mo. 
 
 Taylor, 95 Mich. 547 ; State v. Minne- 295 ; Fulton v. Mehreufield, 8 Ohio St. 
 
 apolis & M. R. Co., 62 Minn. 4.50; 440; Ehnien v. Guthenberg, 50 Neb. 
 
 Pillsbury v. Alexander, 40 Neb. 242; 715; Elson u. Comstock, 150 111.303. 
 Giffen v. Olathe, 44 Kan. 342 ; Car- ' Banks v. Ogden, 2 Wall. (tJ. S.) 
 
 pentaria Scliool District v. Heath, 56 57; Evansville v. Page, 23 Ind. 525, 
 
 Cal. 478; Evansville v. Page, 23 Ind. 527; Marsh v. Fairbury, 163 111. 401; 
 
 525, 527; Callaway Co. v. Nolley, 31 Mason «. Chicago, 163 111. 351 ; State ». 
 
 Mo. 393 ; Elliott, Roads & Streets, § 1 14. Minneapolis & M. E. Co., 62 Minn. 450 ; 
 
 " Trustees, etc. v. Haven, 1 1 111. 554 ; Burton v. Marx, 38 Mich. 761 ; Carpen- 
 
 Moses V. Pittsburg, etc. R. Co., 21 lU. taria School Dist. v. Heath, 56 CaL 
 
 516 ; Des Moines v. Hall, 24 Iowa, 234, 478. 
 244. 
 
SERVITUDES THAT ABE NOT COMMON-LAW EASEMENTS. 227 
 
 purposes and to the extent indicated by both the offer and 
 the acceptance,^ and the local public authorities thereupon 
 become responsible for the proper care and improvement of 
 the way, square, or other place, and liable in damages to any 
 one rightfully there who may be injured because of its being 
 out of repair. 2 The right and burden, moreover, will keep 
 pace with any extensions or necessary changes in the land. 
 Thus, if it be a way across a piece of land to navigable waters, 
 it will continue to lead to those waters, though the land be 
 extended much farther out into them either by natural causes 
 or by the voluntary act of the owner of the soil.^ 
 
 e. Servitudes created hy Operation of Law. 
 
 § 177. Such Servitudes explained and distinguished. — 
 Rights that the public have in streets, parks, wharves, 
 canals, natural streams, and the like, are very largely the 
 results of statutes; and, when they arise in that way, they 
 are servitudes created by operation of law. The. privileges 
 and immunities, which legislative enactments confer upon 
 members of the public in general and, to a limited extent, 
 upon individuals and corporations for special purposes, are 
 as numerous and varied as the requirements and opinions of 
 different communities. But the servitudes to which they 
 give rise are all affected by the constitutional inhibitions 
 against the taking of private property for public purposes 
 without just compensation, and against the taking of such 
 property in opposition to the will of its owner for any pur- 
 poses other than those of a public nature. It is the fact, 
 moreover, that they spring from the exercise of the right of 
 eminent domain, either by the state generally or by some 
 municipality or corporation upon which that right has been 
 conferred, that distinguishes them from all other servitudes 
 and that is to be specially noted as indicating the line of 
 
 1 Thus the dedication may be re- N. J. L. 201 ; Pa. R. Co. v. Montgomery 
 
 Btrictive, as for a foot-path, or for all County P. R. Co., 167 Pa. St. 62; O'NeU 
 
 purposes except to carry coals, etc., and v. Sherman, 77 Tex. 182 ; Woods, Ways, 
 
 the public must then confine its use to 13. 
 
 the purposes and within the limits so " Mayor v. Sheffield, 4 Wall. (XJ. S.) 
 
 indicated, Stafford v. Coyney, 7 Barn. 189; Savannah, etc. R. Co. v. Shiels, 3.3 
 
 & C. 257 ; White v. Bradley, 66 Me. Ga. 599, 619. See Durgin v. Lowell, 3 
 
 254 ; Gowen v. Phila. Exchange Co., 5 AUen (Mass.), 398. 
 Watts & S. (Pa.) 141; Hemphill v. » Mark w. Village of West Troy, 151 
 
 Boston, 8 Cush. (Mass.) 195; State u. N. Y. 453. 
 Trask, 6 Vt. 355 ; State v. Lererick, 34 
 
228 KINDS OP BEAL PROPEETT. 
 
 demarkation between them and servitudes created by dedica- 
 tion. The latter are the outcome of an offer, voluntarily 
 and intentionally made by the landowner, ^ while servitudes 
 arising by operation of law are taken in invitum from the 
 proprietor of the servient land.^ 
 
 § 178. Requisites of Servitudes created by Operation of Law 
 — Public Nature. — The primary requisite of servitudes of 
 this kind is that the use, for which the right is taken shall be 
 public in its nature. By this is not meant that the enjoyment 
 and benefit must be universal, or even extend throughout the 
 entire state ; but it is sufficient if they be such as to contribute 
 in some measure to the progress or general welfare of the 
 ■community or district in which the privilege is exercised.^ 
 Such a use is involved, for example, in the employing of land 
 ior a highway, or a railroad, or a public park, though the chief « 
 or only benefit therefrom accrue to the residents of the town 
 in which it is located.* It is the nature of the use, rather 
 than the extent to which it is applied, that determines its char- 
 acter; and when it is manifestly open to all, or is really 
 for public good under the circumstances, though designed pri- 
 marily for the convenience df only a few individuals, or to 
 accommodate one person more specially than others, it com- 
 plies with the requirement now under discussion.^ It is to be 
 added that, in some rare instances, constitutional provisions 
 authorize the creation of such rights, against the will of the 
 owner of the land, for private uses alone, as in New York for 
 
 1 § 172, supra. ' Thus, the demands of public utility 
 
 ^ Matter of Townsend, 39 N. Y. 171 ; enable riparian owners to use a stream 
 
 Matter of Union El. R. Co., 112 N. Y. more ftJly in arid sections than in 
 
 €1 ; In re City of Brooklyn, 143 N. Y. places where water is plentiful. Clark 
 
 596; Denham v. County Comm'rs, 108 v. Nash, 198 U. S. 361; p. 300, infra; 
 
 Mass. 202, 205. Denham v. County Comm'rs, 108 Mass. 
 
 ^ Beekman v. Saratoga, etc. B. Co., 202, 205. See Wash. Ease. (4th ed.) 
 
 3 Paige (N. Y.), 45, 73 ; Matter of p. 454, p. * 327 ; citing Talbot v. Hud- 
 
 Townsend, 39 N. Y. 171, 174; Dono- son, 16 Gray (Mass.), 417, 421; Beek- 
 
 hue u. Keystone Gas Co., 181 N. Y. 313; man v. Saratoga, etc. R. Co., 8 Paige 
 
 Concord R. B. v. Greeley, 17 N. H. 47, (N. Y.), 45, 73; Inhabitants, etc. v. 
 
 61 ; Cooley, Const. Lim. 532. County Comm'rs, 2 Met. (Mass.) 185, 
 
 * Beekman «. Saratoga, etc. R. Co., 188; Tyler v. Beacher, 44 Vt. 648; 
 
 3 Paige (N. Y.), 45, 73 ; Boston Water Matter of Townsend, 39 N. Y. 171, 174 ; 
 
 Power V. B. & W. R. Co., 23 Pick. Allen v. Joy, 60 Me. 124, 139; Bank- 
 
 (Mass.) 360, 399 ; Talbot v. Hudson, 16 head o. Brown, 25 Iowa, 540, 545; In 
 
 Gray (Mass.), 417, 421 ; Olmstead v. re Fowler, 53 N. Y. 60, 62. 
 Camp, 33 Conn. 532 ; Bankhead v. 
 Brown, 25 Iowa, 540, 549. 
 
SERVITUDES THAT ABE NOT COMMON-LAW EASEMENTS. 229' 
 
 private roads ; ^ but in England and most of the United States. 
 such an invasion of individual rights is not permitted.^ 
 
 § 179. Requisites of Servitudes created by Operation of Lavr 
 — Compensation. — The other distinctive requisite of servitudes 
 created by operation of law is that just compensation shall be 
 made to the owner of the land upon which the burden is im- 
 posed. This is to be sufficient to pay him for the value of the 
 servitude taken, including damages for the direct injury which 
 he suffers because of its creation and existence. The general 
 principle is that compensation can not be recovered for indirect 
 and consequential injuries which may be inflicted upon a piece 
 of land by the invasion or taking of other private property for 
 public purposes. Thus, when a state, or city, or town, in chang- 
 ing the grade of a street by proper authority, depreciates the 
 value of an abutter's property, but does not specifically take 
 any of it from him, he has ordinarily no I'ight of action for the 
 resulting injury.3(a) But the precise limitations of this prin- 
 ciple are not easily ascertainable. There has been much diver- 
 gence of opinions and decisions concerning them, especially in 
 relation to street rights, in the different states of this country. 
 
 An abutting owner has property rights in the use of the 
 street, which his land adjoins, for ingress and egress and for 
 the receiving of light and air. Whether he owns any of the 
 soil of the street or not, he is entitled to compensation in 
 damages for any direct interference with these rights, unless 
 it is occasioned by such uses of the street as were originally 
 contemplated, or are necessary, appropriate, and usual for tlie 
 
 (a) In New York, statutes provide for payment of damages for injury 
 caused by change of grade of streets in towns and villages, L. 1903, ch. 
 610 (adding § 11 a to the Highway Law) ; L. 1909, ch. 30, § 59; Matter 
 of Borup, 182 N. Y. 222 ; Comesky v. Village of SufEern, 179 N. Y. 393, 391 ; 
 Matter of Andersoii, 91 App, Div. 563 ; Lawton v. City of Roohelle, 123 
 App. Div. 832. Otherwise damages for change of grade of streets are not 
 recoverable, except by virtue of special statutes for individual oases. See 
 L. 1893, ch. 537 ; People ex rel. Astor, 124 App. Div. 195. 
 
 1 See discussion of private roads laid ' Mead r. Portland, 200 U. S. 148; 
 out by operation of law, § 180, infra. Sauer v. City of New York, 180 N. Y. 
 N. T. Highway Law (L. 1909, ch. 30, 27 ; Smith v. Boston & Albany R. Co., 
 being Con. L. ch. 25), §§ 211-219. 181 N. Y. 1-32; Kadcliff's Executors v. 
 
 2 Wilkinson .,. Leland, 2 Pet. (U. S.) Mayor of Brooklyn, 4 N. Y. 195; Cos- 
 626, 658; Talbot v. Hudson, 16 Gray ter'v. Mayor of Albany, 43 N. Y. 399 ; 
 (Mass.), 417, 421 ; Bankhead v. Brown, Lahr v. Met. El. R. Co., 104 N. Y. 268, 
 25 Iowa, 540, 548. Such was the rule, 292 ; Lamm v. Chicago, St. P. M. & 0. 
 also, under the constitution of New U. Co., 45 Minn. 71 ; Detroit City 
 York prior to 1 846 Beekraan d. Sarar Railway t). Mills, 85 Mich. 634. See 
 toga, etc. R. Co., 3 Paige (X. Y.), 45, 73 ; Bennett o. Long Is. R Co., 181 N. Y. 
 Matter of Townsend, 39 N. Y. 171, 174. 431. 
 
230 KINDS OP EEAL PROPERTY. 
 
 proper enjoyment thereof by the public.^ New uses of the 
 street, coming within such contemplation or usage, may be 
 authorized by legislation for the benefit of the public, without 
 the necessity for providing for any remuneration to the abut- 
 ting proprietors. " Such are the cases in respect to changes 
 of grade ; the use of a street for a surface horse railroad ; the 
 laying of sewer, gas, and water pipes beneath the soil ; the 
 erection of street lamps and hitching posts, and of poles for 
 electric lights used for street lighting. " ^ So the uses of a 
 street for a surface, cable, or electric railway, provided they do 
 not interfere with its enjoyment for ordinary street purposes, 
 do not usually create nor take servitudes so as to bestow upon 
 adjoining owners any right to compensation.^ But New York 
 holds otherwise, when the abutting proprietors own the soil 
 (fee) of the street.* The erection and operation of an elevated 
 railroad on a city street, not being an improvement of the 
 street for' the benefit of the public, but rather an additional 
 use by virtue of a right granted to a corporation, is the taking 
 and appropriation of rights of abutting owners in such a way 
 as to render the railroad company liable to them in damages. 
 And this is true, though the structure is erected pursuant to a 
 state statute requiring it; for otherwise the abutters would 
 be deprived of their property (servitudes) without due process 
 of law.^ And the same is true of buildings erected for like 
 purposes on streets by railroad companies, even by order of 
 the state, so as to deprive abutters of light, air, and access. 
 Such interference with the street rights of an adjacent 
 owner is a taking of those rights ipro tanto, and the value 
 
 1 Story V. N. Y. El. E. Co., 90 N. Y. Chicago City R. Co., 32 Fed. Eep. 270; 
 122 ; Drueker v. Manliattan R. Co., 106 Howe v. West End St. R. Co., 167 Mass. 
 N. Y. 157 ; American Bank Note Co. 46 ; Halsey v. Rapid Transit R. Co., 47 
 W.N. Y.El. R. Co., 129N.Y. 252; Fries N. J. Eq. 380; Hudson R. Tel. Co. u. 
 V. N. Y. & H. R. Co., 169 N. Y. 270; Waterrliet Turn. & R. Co., 135 N. Y. 
 Paterson R. Co. v. Grundy, 51 N. J. Eq. 394, 397 ; Blair v. Chicago, 201 U. S. 
 213 ; Dill V. Camden Board of Educar 401 ; Grand Rapids St. R. Co. v. West 
 tion, 47 N. J. Eq. 441 ; Onset St. R. Co. Side St. R. Co., 48 Mich. 433 ; Detroit 
 V. County Comm'rs, 154 Mass. 395; City Railway v. Mills, 85 Mich. 634, 
 Lincoln Rapid Transit Co. v. Rnndle, 658. See note (a) as to New York, p. 
 34 Neb. 559. 232, infra. 
 
 2 Lahr v. Met. R. Co., 104 N. Y. * Paige v. Schenectady R. Co., 178 
 268, 292 ; Folensbee v. City of Amster- N. Y. 102, 109 ; note (a) p. 232, infra, 
 dam, 142 N. Y. 118. 6 Muhlker v. Harlem R. Co., 197 
 
 8 Matter of Third Are. R. Co., 121 V. S, 544, reversing S. C. 173 N. Y. 
 N. Y. 536 ; Rafferty v. Central Traction 549. 
 Co., 147 Pa. St. 579; Lorie v. North 
 
SERVITUDES THAT AKE NOT COMMON-LAW EASEMENTS. 231 
 
 of what is so taken, must be paid for ; and, in connection with 
 this, compensation must be made for the damage done to his 
 land adjoining the street, which is the one great injury. He is 
 paid for a direct taking of property rights — servitudes — from 
 him ; and the right to such payment > is inseparable from his 
 land, and passes with it when it is transferred.^ But owners 
 of land not abutting on tlie street on which is the road can 
 not recover compensation for any injury (for such injury 
 is indirect) occasioned to their properties by its erection, ex- 
 istence, or operation.^ No servitudes are thereby taken from 
 them. There is a conflict in the decisions as to the right of 
 adjacent owners to recover damages for injury occasioned 
 by steam railroads on the surface of streets. In the majority 
 of the United States, it is held that the construction and 
 operation of such roads upon streets and highways, of which 
 the ownership of the soil is in the abutting proprietors, is a 
 perversion of them to a use not ordinary nor originally con- 
 templated, and that, accordingly, such owners may liave com- 
 pensation for the servitudes thus taken and the consequent 
 loss in the value of their property.^ But a few of the courts 
 have maintained that such an employment of a highway is 
 
 etc. R. Co., 45 Minn. 71. Since this 
 
 1 McKenna v. Brooklyn Union El. 
 R. Co., 184 N. Y. 391 and cases cited ; 
 Schomacker v. Michaels, 189 N. Y. 61 ; 
 Osborne v. Auburn Telephone Co., 189 
 N. Y. 393; Bohn <;. Met. El. K. Co., 
 129 N. Y. 576 ; Kane v. N. Y. El. R. 
 Co., 125 N. Y. 164; Abendroth v. 
 Manhattan R. Co., 122 N. Y. 1 ; Lahr 
 V. Met. El. R. Co., 104 N. Y. 268; 
 Drucker c. Manhattan R. Co., 106 N. 
 Y. 157 ; Story v. N. Y. El. R. Co., 90 
 N. Y. 122; Muhlker v. Harlem R. Co., 
 173 N. Y. 549, 556; Dolan u. N. Y. & 
 H. R. Co., 175 N. Y. 367, 370; Pa. R. 
 Co. V. Duncan, 111 Pa. St. 3.52. The 
 damages, in such cases, include the 
 amount by which the value of the abut- 
 ting property is decreased by the 
 construction and operation of the road, 
 because of the loss to it of access, light, 
 and air and the injury caused to it by 
 noise, loss of privacy, etc. Woolsey v. 
 N. Y. El. R. Co., 134 N. Y. 323 ; Rura- 
 sey V. N. Y. & N. E. R. Co., 133 N. Y. 
 79, 136 K Y. 543 ; Buffalo v. N. Y. El. 
 R. Co., 138 N. Y. 257 ; Bookman v. N. 
 Y. El. R. Co., 137 N. Y. 302, 147 N. Y. 
 298; Robinson v. N. Y. El. R. Co., 175 
 N. Y. 219 ; N. Y. El. R. Co. v. Fifth Nat. 
 Bk., 135 U. S. 432 ; Lamm v. Chicago, 
 
 right adheres to the land, a purchaser 
 in fee of the abutting property, after 
 the construction of the road, may main- 
 tain an action for the entire injury. 
 The owner for the time being is usu- 
 ally the only one who can successfully 
 sue. When it has been agreed that a 
 prior owner shall have damages, he 
 who thus sues obtains them in trust for 
 him. McKenna v. Brooklyn Union El. 
 R. Co., 184' N. Y. 391 ; Shepard v. 
 Man. El. R. Co., 169 N. Y 160; W. 
 U. Tel. Co. !). Shepard, 169 N. Y. 170. 
 See Schomacker v. Michaels, 189 N. Y. 
 61 ; Gait V. Chicago & N. W. R. Co., 157 
 111. 125 ; Beach v. W. & W. B. Co., 120 
 N. C. 498. 
 
 2 Ibid. Especially Story v. N. Y. 
 El. R. Co., 90 N. Y. 122; Reilly u. 
 Man. El. R. Co., 43 N. Y. App. Div. 80. 
 
 3 Williams v. N. Y. Cent. R. Co., 16 
 N. Y. 97 ; Henderson v. N. Y. Cent. R. 
 Co., 78 N. Y. 423 ; People .;. Kerr, 27 
 N. Y. 188; Kelsey v. King, 33 How. 
 Pr. (N. Y.) 39; Chamberlain v. Eliza- 
 bethport, S. C. Co., 41 N. J. Eq. 43 ; 
 Commonwealth v. Allen, 148 Pa. St. 
 358 ; Onset R. Co. v. County Comm'rs, 
 154 Mass. 395 ; Western R. Co. v. Ala, 
 
232 KINDS OF REAL PROPERTY. 
 
 ordinary and reasonable and does not give rise to any cause 
 of action for damages. ^ The courts of New York, Michigan, 
 Illinois, Tennessee, and a few other states have decided that a 
 steam railroad may be authorized upon the surface of streets, 
 the soil of which the city owns, without the necessity of making 
 compensation to the abutting owners, provided the grade of 
 the street is not changed, and it is left substantially free and 
 unobstructed for the purposes of ordinary travel.^ (a) In some 
 
 (a) The New York courts have decided, as to steam, electric and horse 
 raih'oads on the surface of a street, and also as to telegraph and tele- 
 phone poles, that they constitute an additional burden (and in that sense 
 take property) for which compensation must be made to the abutter, if he 
 own the soil of the street. Peek v. Schenectady R. Co., 170 N. Y. 298; 
 Paige V. Schenectady R. Co., 178 N. Y. 102, 109; Osborne v. Auburn 
 Telephone Co., 189 N. Y. 393, 396. But if he do not own that soil, the 
 damages are only consequential and call for no compensation, unless the 
 appropriation and use of the street become so great and annoying as to 
 degenerate into a nuisance. The elevated railroad cases, beginning with 
 Story V. N. Y. El. R. Co., 90 N. Y. 122, do not run counter to this dis- 
 tinction; but add an element to it, by holding that the elevated struc- 
 tures, being for the benefit of the railroad companies and not erected " to 
 improve the street for the benefit of the public," result in direct taking of 
 servitudes of light, air, and access, for which compensation must be made 
 to the abutters, even though they own none of the soil of the street. 
 Fobes V. R. W. & O. R. Co., 121 N. Y. 505; Reining v. N. Y. L. E. & 
 W. R. Co., 128 N. Y. 157 ; Kane v. N. Y. El. R. Co., 125 N. Y. 164 ; Fries 
 V. N. Y. & H. E. Co., 169 N. Y. 276; Mulilker v. Harlem R. Co., 173 
 N. Y. 549, 197 U. S. 544; Dolan v. IS. Y. & H. R. Co., 175 N. Y. 867. 
 
 G. T. R. Co., 96 Ala. 272; Eeichert R. T. Co., 85 Ky. 640; Hill v. Chicago, 
 
 V. St. L. & S. F. R. Co., .51 Ark. 491 ; St. L. & N. 0. R. Co., 38 La Ann. 599 ; 
 
 "Weyl V. S. V. R. Co., 96 Cal. 202 ; Arbenz c W. & H. R. Co., 33 W. Va. 
 
 Imlay v. Union B. R. Co., 26 Conn. 249 ; 1 ; McLaucUin ?;. C. & S. C. R. Co., 
 
 F. S. K. Co. V. Brown, 23 Fla. 104 ; S. 5 Rich. L. (S. C.) 583. See Macomber 
 
 Car. R. Co. u. Steiner, 44 Ga. 546 ; v. Nichols, 34 Mich. 212 ; Montgomery 
 
 Gait V. Chicago & N. W. R. Co., 157 v. S. A. W. R. Co., 104 Cal. 186, 192; 
 
 Dl. 125; Bnrkam v. 0. & M. R. Co., Knapp v. St. L. T. R. Co., 126 Mo. 26. 
 122 Ind. 344 ; Barb Wire Co. v. C. B. & 2 This question has arisen most 
 
 Q. R. Co., 70 Iowa, 105; Chicago K. prominently in reference to the City 
 
 & W. R. Co. V. "Woodward, 47 Kan. of New York, which owns iu fee simple 
 
 191 ; Phipps V. West Md. R. Co., 66 the soil of many of its streets on Man- 
 
 Md. 319 ; Taylor o. Bay City St. R. hattan Island. Fobes v. Rome, W. & 
 
 Co., 101 Mich. 140 ; Gustavson a. 0. R. Co., 121 N. Y. 505 ; Reining v. 
 
 Hamm, 56 Minn. 334 ; St. Louis Trans- N. Y. L. & W. R. Co., 128 N. Y. 1 57 j 
 
 fer Co. V. L. M. B. Co., Ill Mo. 666; Bloodgood v. Mohawk & H. E. Co., 18 
 
 Omaha & N. P. R. Co. v. Janecek, 30 Wend. (N. Y.) 9 ; People v. Kerr, 27 
 
 Neb. 276; Lawrence R. Co. v. Wil- N. Y. 188; Kane v. N. Y. El. R. Co., 
 
 liams, 35 Ohio St. 168 ; Railroad Co. v. 125 N. Y. 164 ; G. R. & 1. R. Co. v. 
 
 Bingham, 87 Teun. 522 ; G. C. & S. F. Heisel, 38 Mich. 62 ; Olney v. Wharf, 
 
 E. Co. V. Eddins, 60 Tex. 656 ; Hodges 115 111. 519 ; Railroad Co. v. Bingham, 
 
 V. S. R. Co., 88 Va. 653 ; Taylor v. 87 Tenn. 522 ; C. N. & S. W. E. Co. v. 
 
 Chicago, M. & St. P. E. Co., 83 Wis. Mayor, 36 Iowa, 299 ; Hogan v. Cent. 
 
 636. Pac. E. Co., 71 Cal. 83 ; K. N. & D. R. 
 
 1 Elizabethtowu & P. R. Co. v. Co. «. Cuykendall, 42 Kan. 234 ; Arbens 
 
 Thompson, 79 Ky. 52 ; Fulton v. S. E. v. Wheeling & H. E. Co., 33 W. "Va. 1. 
 
SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 233 
 
 of the states, however, such as Minnesota, Ohio, and Texas, 
 the owners of the adjacent lands are given the same remedies 
 for injury to their properties because of such a railroad, whether 
 or not the city owns the soil of the highway on which it is 
 located.^ There is a similar conflict of authority as to the 
 effect of the placing of telegraph and telephone poles and 
 wires upon streets and highways; it being insisted in some 
 states, such as Illinois and Virginia, that compensation for this 
 use of the way need not be made to abutting proprietors unless 
 their properties are unnecessarily injured,^ while in other juris- 
 dictions, such as New Jersey and Michigan and in New York 
 when the abutter owns the soil of the street, the existence of such 
 poles and wires^erse affords ground for the recovery of damages.^ 
 
 § 180. Kinds of Servitudes created by Operation of Law, — 
 While the kinds of servitudes which arise by operation of law 
 are numerous and varied, the most important and frequently 
 employed of these are roads and ways acquired by corpora- 
 tions, such as turnpike, canal, and railroad companies ; public 
 highways; private roads laid out by public authority; public 
 rights in non-navigable streams and waters, and special pro- 
 visions as to buildings and walls in large cities. 
 
 Incorporated companies, such as railroad and turnpike 
 corporations which need the use of large tracts of land for the 
 carrying on of their business, are ordinarily given, by either 
 general or special legislation, the power to exercise the right 
 of eminent domain ; and under that authority they acquire 
 roads and ways, in a quasi-pnhlic capacity and for uses of a 
 public nature.* They take, as a rule, not the ownership of 
 the soil and corporeal hereditaments, but simply servitudes 
 in the form of road and street rights and privileges. The 
 
 1 Carli v.Y. D. Co., 32 Minn. 101; Minn. 347; Daily v. State, 51 Ohio 
 Schnrmeir v. St. P. & P. R. Co., 10 St. 34S. 
 
 Minn. 82 ; L. M. R. Co. v. Hambleton, ' Dean v. Ann Arbor St. Ry. Co., 93 
 
 40 Ohio St. 496 ; S. V. R. Co. v. Law- Mich. 330 ; Erwin v. Cent. U. Tel. Co., 
 
 rence, 38 Ohio St. 41 ; Cincinnati, etc. 148 Ind. 365 ; Eels v. American J'. & 
 
 R. Co. V. Cnmminsville, 14 Ohio St. T. Co, 143 N. Y. 133; Palmer v. 
 
 523, 541 ; G. C. & S. P. B. Co. v. Eddins, Larchmont Electric Co., 158 N. Y. 231 ; 
 
 60 Tex. 656 ; B. & M. R. Co. v. Rein- Osborne v. Auburn Telephone Co., 189 
 
 hackle, 15 Neb. 279; Dooly Block v. N. Y. 393, 396. In New Jersey, a 
 
 Rapid Tr. Co., 9 Utah, 31. statute requires compensation to be 
 
 2 Pacific P. Tel. Cable Co. v. Irvine, made in such cases. Winter v. N. Y. 
 49 Fed Rep. 1 1 3 ; Board of Trade Tel. & N. J. Tel. Co , 5 1 N. J. L. 83 ; Broome 
 Co, V. Barnett, 107 111. 507 ; West U. v. N. Y. & N. J. Tel. Co., 49 N. J. L. 
 Tel. Co. f. Williams, 86 Va. 696 ; 624 ; Roake v. Amer. Tel. Co., 41 N. J. 
 Stowers v. Postal T. C. Co., 68 Miss. Eq. 35. 
 
 559; Willis v. Erie T. & T. Co., 37 * Stim. Amer. Stat. L. § 1141. 
 
234 KINDS OP REAL PBOPEETT. 
 
 proceedings for this purpose usually consist of an application 
 to the court, upon due notice to all persons interested in the 
 land to be affected, which, if successful, results in a judgment 
 or decree to the effect that, upon making just compensation to 
 such persons, the corporation shall take the property for the 
 uses and purposes mentioned in its application. Commis- 
 sioners are then appointed by the court, who view the land, 
 receive evidence as to its value, and determine upon the 
 amount of compensation to be paid; and, upon having their 
 report confirmed, and making or providing for the payments 
 thereby required, the applicant becomes entitled to the enjoy- 
 ment of the land. ^ (a) 
 
 (a) The general provisions of the New York statutes as to the condem- 
 nation and taking of private property for public purposes are found in 
 the N. Y. Code of Civil Procedure, §§ 3357-3384, which inav be sum- 
 marized as follows : The proceeding must be commenced by verified peti- 
 tion to the Supreme Court, presented by the person, corporation, officer, 
 or institution enlitled to take the property, who is called the plaintiff. The 
 petition must describe the plaintiff; give a description, by metes and 
 bounds, with reasonable certainty, of the property to be taken and state its 
 value ; give the names and places of residence of the owners of the prop- 
 erty, who are styled the defendants ; state the public use for which the 
 property is required and give a concise statement of the facts showing the 
 necessity for its acquisition for such use ; aver that the plaintiff has been 
 unable to agree with the owner of the property for its purchase and the 
 reason of such inability ; that it is the intention of the plaintiff, in good 
 faith, to complete the work or improvement for which the property is to 
 be taken, and that the preliminary steps required by law have been taken 
 to entitle him to institute the proceedings, and demand that it be adjudged, 
 that the public use requires the property to be so taken, that the plaintiff 
 is entitled to so take it upon making compensation therefor, and that com- 
 missioners be appointed to appraise and ascertain the amount of such 
 compensation to be paid. There must be annexed to the petition a notice 
 stating the time and place at which the petition will be presented to a 
 Special Term of the Supreme Court held in the judicial district where the 
 property or sortie portion of it is situated, .•^t least eight days before it? 
 presentation to the court, a copy of the petition and notice must be served 
 upon each of the defendants, in the same manner in which a summons is 
 required by the Code to be served. At the time of making such service, 
 or at any time thereafter and before entry of the fitial order in the proceed- 
 iiig, the plaintiff may file in the office of the clerk of each county where 
 any part of the property is situated a notice of the pendency of the pro- 
 ceeding, givins; the names of the parties, the object of the proceeding, 
 and a description of the property; and, after this is properly recorded and 
 , indexed, it is notice of the procepding to all snbseqiient purchasers and 
 
 1 Stim. Amer. Stat. L. §§ 1142-1149; Lewis, Eminent Domain, §§ 489-493, 
 584-587. 
 
SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 235 
 
 Highways and roads belonging to the public at large, 
 when they are not dedicated nor gained by grant or public 
 prescription, are an outcome of the exercise of the right of 
 eminent domain by or in connection with public officials such 
 as highway commissioners, overseers of highways, street or 
 
 encumbrancers of the property. The defendants may appear and answer, 
 in the same manner as in an action in the Supreme Court, incapacitated 
 parties appearing by their guardians existing or to be appointed by the 
 court. An answer must be verified ; and it may deny any of the allegations 
 of the petition, or set up new matter con-stituting a defence. When an 
 answer is interposed and issues are thus raised, they may be tried either by 
 the court or by a referee ; and the decision or report must be filed or handed 
 to the attorney for the successful party within twenty days after the final 
 submission of the case. If the decision or report be in favor of the defend- 
 ants, the proceeding is to be dismissed. When it is in favor of the 
 plaintiff, or when there has been no trial, judgment is to be entered, 
 adjudging thai tlif propertv is to be taken for the public purpose specified, 
 and tliat the plaintiff is entitled to take it for that purpose upon making 
 just compensation. After such judgment is entered, the court must 
 appoint three commissioners to take evidence and fix the amount of com- 
 pensation. If a trial has been had, this appointment is made after eight 
 days' notice to all the defeniiants who have appeared. The commissioners 
 must give eight days' notice of their meetings, except when they meet pur- 
 suant to order of the court or an adjournment. They must view the 
 property and examine such witnesses as the parties desire, decide upon the 
 amount of compensation to be made, and report to the court. They are 
 not to make any deductions because of increase in value of other property 
 caused by the improvement. Upon the filing of their report, either party 
 may move, upon notice to the others, for its confirmation; and, if it be 
 confirmed, a final order is entered directing that compensation shall be 
 made accordingly, and that the plaintiff shall be entitled to enter upon the 
 property for the purposes specified. There are also provisions for a writ 
 of assistance, if needed, to enable the plaintiff to obtain possession, for 
 entry of judgment against him for the amount of the compensation fixed 
 upon by the commissioners, for new appraisals when deemed proper by 
 the court, for appeals from the judgment or order, and for the taxing 
 of the costs of the proceeding. See Matter of Rochester Water Comm'rs, 
 
 66 N. Y. 413; Matter of Marsh, 71 J\\ Y. 315; Matter of N. Y. Cable Co., 
 104 N. Y. 1, 43 ; Re Staten Is. R. T. Co , 103 N. Y. 251; Stuart v. Palmer, 
 74 N. Y. 183; Matter of Brooklyn, etc. R. Co., 72 N. Y. 245; Matter of 
 34th St. R. Co., 102 N. Y. 343; Colonial City Traction Co. v. Kingston 
 City R. Co., 153 N. Y. 540; Henderson v. N. Y. C, R. Co., 78 N. Y.'423 ; 
 Matter of Mayor, etc. of N. Y., 99 N. Y. 570; Matter of C. & R. R. Co., 
 
 67 N. Y. 242; Matter of St. L. & A. R. Co., 133 N. Y. 271; West Ceme- 
 tery V. P. P. & C. R. Co., 68 N. Y. 591 ; Matter of Trustees N. Y. & B'klyn 
 Bridge, 137 N. Y. 95 ; Long Is. R. Co. v. (Jarvey, 159 N. Y. 334; People v. 
 Adirondack Park Ass'n, 160 N. Y. 225 ; Matter of City of B'klyn, 148 N. Y. 
 107 ; Railroad Co. v. Robinson, 133 N. Y. 271 ; People ex rel. Stewart v. R. 
 Comm'rs, 160 N. Y. 202. 
 
236 KINDS OF REAL PROPERTY. 
 
 park boards, etc., the names being different in the different 
 states. Under the statutory provisions enacted for this pur- 
 pose, application is usually required to be made to a court for 
 the appointment of commissioners to ascertain whether or not 
 the proposed way is necessary and to assess the damages to be 
 paid to the persons interested in the lands over which they 
 may decide that it should pass. After the confirmation by 
 the court of their report or decision in favor of the road, it 
 becomes the duty of the highway officials of the town or 
 locality to lay out and open the way accordingly.^ (a) The 
 
 (a) When public streets, highways, or other public places are to be laid 
 out and opened in a city or village of New York, a particular mode of pro- 
 cedure is usually outlined, either in the charter of the city or village, or in 
 some special law enacted for that locality. A sample of such special legis- 
 lation is found in the provisions of the charter of the City of New York, 
 relative to streets and parks. N. Y. L. 1897, eh. 378, §§ 970-1011. And 
 for closing such streets, see L. 1895, ch. 1006. It is provided by the N. Y. 
 Constitution, Art. III. § 18, that, " The legislature shall not pass a pi-ivate 
 or local bill . . . laying out, opening, altering, working, or discontinuing 
 roads, highways, or alleys, or for draining swamps or other low lands." 
 But it is held that this is not applicable to city streets or avenues. Matter 
 of Woolsey, 95 N. Y. 135. Outside of such local enactments, the making 
 of streets is controlled by the general provisions of the Highway Law 
 (N. Y. Con. L. ch. 25, Art. 8 being L. 1909, ch. 30, §§ 190-240), which are 
 in substance as follows. (See amendment by L. 1910, ch. 344.) 
 
 Any person or corporation assessable for highway labor may make writ- 
 ten application to the commissioners of highways of the town in which he 
 or it resides or is assessable, to alter or discontinue a highway or to lay 
 out a new one. Within thirty days thereafter, upon five days' notice to 
 the commissioners of highways and such notice to interested parties as the 
 county court shall order, he or it must apply, by verified petition, to 
 the County Court for the appointment of commissioners to determine upon 
 the necessity of the work proposed and assess the damages which will 
 result. Thereupon the court appoints as such commissioners three disin- 
 terested freeholders, who must not be named by any person interested in 
 the proceedings and who must be residents of the county, but not of the 
 town, where the highway is or is to be located. They take the constitu- 
 tional oath of office and fix upon a time and place at which they shall meet 
 to hear the highway commissioners of the town where the highway is or is 
 to be located and other interested parties. The applicant must cause at 
 least eight days' previous notice of such meeting to be posted in at least 
 three conspicuous places in the town, and also served upon the interested 
 parties, or mail it to them if they do not reside in the same town or service 
 can not be made upon them there. The commissioners appointed by the 
 court examine the highway or property and, at their meeting (which they 
 may adjourn from time to time), receive such evidence and reasons as may 
 
 1 1 Stim. Amer. Stat. L. §§ U40-1149; Lewis, Eminent Domain, §§ 173, 176, 
 489-493. 
 
SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 237 
 
 street rights and burdens above discussed, such as those 
 imposed by railways, telegraph and telephone poles and wires, 
 gas or electric light appliances, etc., are simply additional 
 servitudes placed upon streets and highways and more or less 
 affecting as such servitudes the rights and interests of the 
 proprietors of adjoining lands.' 
 
 In a few states, including New York, Pennsylvania, Iowa, 
 and Missouri, -private roads, when necessary, may be created 
 and laid out by operation of law.^ Where the right to do this 
 exists, it must be derived from a specific constitutional pro- 
 vision; for, since the proceeding consists in the seizure of the 
 property of one private individual for the benefit of another, 
 it is contrary to the fundamental law of the land, except in so 
 far as that law has been directly modified by the people of 
 any state. ^ The proceedings for the laying out of such a way 
 are ordinarily required to be before a jury of freeholders of 
 the town, by whom the questions as to the necessity for the 
 road and the compensation to be paid for it are determined. 
 It is generally provided that the compensation, as thus fixed, 
 shall be paid to the owner or owners of the land over which 
 
 be adduced, and, having made a decision and assessed the damages, if any, 
 file one copy of the decision in the office of the town clerk and another in 
 that of the county clerk. Within thirty days after their decision is filed 
 with the town clerk, any party interested may apply to the county court 
 for an order confirming, vacating, or modifying such decision. The pro- 
 ceedings thereon are the same as an ordinary, special proceeding before the 
 court. If no such application be made within the thirty days, the decision 
 of the commissioners becomes final. The decision, when it becomes thus 
 final or confirmed, must be carried out by the commissioners of highways 
 of the town, the same as if they had made an order to that effect. The 
 statute contains, also, minute provisions as to laying out roads which may 
 interfere with orchards, gardens, barying-grounds, etc., the making of 
 highways through two or more towns and along division lines, new 
 hearings when necessary and the costs of the proceedings. 
 
 The order of the County Court or judge confirming the report of the 
 commissioners is not appealable, Matter of De Camp, 77 Hun, 478 ; nor 
 will certiorari lie to review the decision of the commissioners, N. Y. Code 
 Civ. Pro. §21-22; Hanford v. Thayer, 88 Hun, 136. See N. Y. Const, 
 art. 1, § 7; Gerard on Titles to R. E. ch. ii. 
 
 ' See § 179, supra. '. Ibid. ; Logan v, Stogdale, 123 Ind. 
 
 2 N. Y. Const, art. 1, § 7; Con. L. 372; Blackman v. Halves, 72 Ind. 515; 
 
 ch. 25, §§ 211-219; Palmer's Private Wild w. Deig, 43 Ind. 455; Stewart v. 
 
 Boad, 16 Pa. Co. Ct. 340; Belk v. Hartman, 46 Ind. 331. 
 Hamilton, 130 Mo. 292 ; Taraldson v. 
 lAme Springs^ 92 Iowa, 187. 
 
238 KINDS OF EEAL PEOPERTT. 
 
 the private road is to exist before it can be actually laid out 
 and used.^ (a) 
 
 (a) This New York provision for laying out private roads by operation 
 of law, substantially in its present form, was enacted by L. 1848, ch. 71 ; 
 and see provisions affecting it in L. 1853, ch. 174; L. 1859, ch. 373; L. 
 1860, ch. 468. It is now found in §§ 211-219 of the highway law (L. 1909, 
 ch. 30, being Con. L. oh. 25), which rest upon the following constitutional 
 provi.siou (Const, art. 1, § 7) : "Private roads may be opened in the 
 manner to be prescribed by law ; but in every case the necessity of the road 
 and the amount of all damage to be sustained by the opening thereof shall 
 be first determined by a jury of freeholders, and such amount, together 
 with the expenses of the proceeding, shall be paid by the person to be 
 benefited." 
 
 The sections of the highway law above cited provide in substance as 
 follows: The proceedings begin with a written application to the commis- 
 sioners of highways of the town in which the road is proposed to be located, 
 specifying its width and location, courses and distances, and the names of 
 the owners and occupants of the land through which it is sought to have it 
 laid out. One or more of the commissioners then appoints a day, as early 
 as the convenience of the parties interested will allow, when, at a place 
 designated in the town, a jury will be selected to decide upon the necessity 
 of such road and assess any resulting damages. The commissioners deliver 
 to the applicant a copy of his application, to which is attached a notice 
 addressed to the owners and occupants of the land, stating when and where 
 the jury is to be selected. The applicant, on the same day or the next 
 day (excluding Sundays and holidays), must sei've copies of these on the 
 owners or occupants, or mail them to them if they do not reside in the 
 town or can not be served there. At the time and place thus fixed a jury 
 is selected, and the time and place determined at which they are to meet 
 and hear evidence and arguments. The jury view the premises, and, at 
 their meeting so determined upon, hear the allegations of the parties and 
 examine Such witnesses and other evidence as may be produced, and, if 
 they determine that the proposed road is necessary, assess the damages to 
 the person or persons through whose land it is to pass, and deliver their 
 verdict in writing to the commissioners of highways. The commissioners 
 annex to such verdict the application and their certificate that the road is 
 laid out, and the same are filed and recorded in the towh clerk's office. 
 Within thirty days thereafter, any owner of the land may apply to the 
 County Court for an order confirming, vacating, or modifying the verdict, 
 and the proceedings thereon are ordinary special proceedings. If no such 
 application be made, the verdict is deemed final. Before the road is opened, 
 the damages assessed by the jury must be paid by the applicant ; but if 
 the jury certify that the private road was made necessary by the alteration 
 or discontinuance of a public highway, the damages are to be refunded to 
 the applicant by the town. See Satterly v. Winne, 101 N. Y. 218; Matter 
 of De Camp, 79 Hun, 478 ; Hunford v. Thayer, 88 Hun, 136.; Matter of 
 Carpenter, 11 Misc. 690 ; Beveridge u. Schultz, 32 Misc. 444; 2 L. K. 
 
 (1813) 276; note 2, p. 229, supra. 
 
 \ 
 
 ^ Last two preceding notes. 
 
SERVITUDES THAT ABB NOT COMMON-LAW EASEMENTS. 239 
 
 A state may declare streams and other bodies of water 
 that are not navigable to be public highways; and this is 
 frequently done by statute.^ Such streams or waters thus 
 become burdened with servitudes created by operation of law. 
 So, in large cities, rights, privileges, and burdens in connec- 
 tion with partition walls and other structures, methods of 
 building and supporting houses, regulations as to drains, etc., 
 are more or less determined by statutes; and servitudes are 
 thus brought into existence by operation of law.^ Some of 
 the most important of these rights and burdens are more fully 
 examined hereafter in the discussion of particular clagses of 
 easements and servitudes.^ 
 
 f. Servitudes existing by Nature. 
 
 § 181. Natural Servitudes — Kinds. — The maxim sic utere 
 tuo ut alienum non Icedas has its most important illustrations 
 in the operation of those natural rights and burdens which 
 are attached in some degree to all corporeal hereditaments, , 
 and which must be here mentioned in order to complete our 
 examination of the methods of acquiring easements and servi- 
 tudes. Such privileges and obligations as nature establishes 
 over lands are servitudes, but not common-law easements.* 
 They are always strongly appurtenant to the land ; and adhere 
 to and pass with it in its transfer, unless they are prevented 
 from doing so by some positive law or agreement of the parties. 
 Examples of them are found in the servitudes of lateral and 
 subjacent support, which are the rights of a landowner to have 
 his soil supported in its natural condition by that of the other 
 proprietors of lands adjoining his own on the sides of it, and 
 beneath it if any ; * in proper means of access from riparian 
 
 1 Shively o. Bowlby, 152 U. S. 1; Hams, 178 Mass. 330; Jones, Ease. 
 Water Power Co. t. Water Coram'rs, §§ 586, 634-640. 
 
 168 U. S. 349; Hardin v. Shedd, 190 « Ch. XII., infra. 
 
 U. S. 508 ; Smith v. City of Rochester, * Stokes v. Singers, 8 E. & B. 31, 36 ; 
 
 92 N. Y. 463, 473 ; Lincoln v. Davis, McGuire v. Grant, 25 N. J. L. 356 ; 2 
 
 53 Mich. 375 ; Ensmiuger v. The Peo- Fonrnel, Traite' de Voisinage, 400 ; 
 
 pie, 47 111. 384. The word "highway," § 165, supra, and note. 
 
 as used in a grant, does not mean a ' Angus v. Dalton, L. K. 6 App. 
 
 waterway of any kind, unless such is Cas. 740 ; Lasala v. Holbrook, 4 Paige 
 
 clearly shown to be the intent of the (N. Y.), 169 ; Hay «. Cohoes Co., 2 
 
 parties. De Camp y. Dix, 159 N. Y. 436. N. Y. 159; Gilmore v. Driscoll, 122 
 
 2 N.Y.L. 1892, ch, 275, § 9;N. Y,L. Mass. 199; White u. Dresser, 1.35 Mass. 
 1888, ch. 5^3, § 59; N. Y. L. 1897, ch. 150; McGettigan v. Potts, 149 Pa. St. 
 378, §§ 1608-1620 ; Atty.-Gen. v. Wil- 155 ; McGuire v. Grant, 25 N. J. L. 356. 
 
240 
 
 KINDS OP REAL PROPERTY. 
 
 lands to natural bodies of navigable waters ; ^ in the reciprocal 
 privileges and burdens of owners of lands along the banks of 
 natural streams whether on the surface or underground, such 
 as the right and obligation to have the waters thereof flow over 
 their accustomed bed unpolluted and substantially undimin- 
 ished ; 2 and in the rights to use, ward off, or intercept surface 
 waters flowing in undefined courses,^ or percolating under- 
 ground water, oil, or natural gas.* 
 
 Each of these forms of natural servitudes has given rise to 
 many important questions and some conflict of opinion. A 
 separate and somewhat detailed discussion of each of them is 
 therefore required, and will be given in the following chapters, 
 and so no further examination of them here is needed.^ 
 
 1 Ramsey v. N. Y. & N. E. E. Co., 
 133 N. Y. 79 ; N. Y. C. & H. R. R. Co. 
 V. Aldridge, 135 N. Y. 83 ; Illinois Cent. 
 R. Co. V. Illinois, 146 U. S. 387 ; Shively 
 V. Bowlby, 1.52 U. S. 1 ; Stevens v. Patter- 
 son & N. R. Co., 34 N. J. L. 532 ; 
 Hedges v. West Shore R. Co., 150 
 N. Y. 150. 
 
 2 Brown v. Bowen, 30 N. Y. 519; 
 Scriver v. Smith, 100 N. Y. 471 ; Ac- 
 quackanonck Water Co. u. Watson, 29 
 N. J. Eq. 366; Shively v. Bowlby, 152 
 TJ. S. 1 ; Merrifield v. Worcester, 110 
 Mass. 216; Drnley v. Adam, 102 111. 
 177 ; Lord v. Meadville Water Co., 135 
 Pa. St. 122. 
 
 » Barkley v. Wilcox, 86 N. Y. 140; 
 Peck V. Goodberlett, 109 N. Y. 180; 
 Bowlsby V. Speer, 31 N. J. L. 351 ; Cas- 
 sidy V. Old Colony R. Co., 141 Mass. 
 174; Murphy v. Kelley, 68 Me. 521; 
 Wakefield v. Newell, 12 R. I. 75; Pres- 
 ton V. Hall, 77 Iowa, 309. 
 
 * Acton V. Blundell, 12 M. & W. 324 ; 
 Bradford v. Pickles (1895), App. Cas. 
 587; Bloodgood v. Ayers, 108 N. Y. 
 400; Davis u. Spaulding, 157 Mass. 431 ; 
 People's Gas Co. v. Tyne, 131 Ind. 277, 
 408 ; Westmoreland Gas Co. v. Be Witt, 
 130 Pa. St. 235 ; McKee v. Del. & H. 
 Canal Co., 125 N. Y. 353 ; Walker v. 
 So. Pac. R. Co., 165 U. S. 593. 
 
 6 See §§ 206-210, 220-225, infra. 
 
CHAPTER XI. 
 
 INCIDENTS OF EASEMENTS AND SERVITUDES — THEIB TERMINATION 
 AND SUSPENSION — REMEDIES. 
 
 § 189. (a) Release. 
 
 § 190. (b) Disclaimer, or aban- 
 donment and estoppel. 
 
 § 191. (c) Non-user. 
 
 § 192. (d) Adverse obstruction, 
 or prescription. 
 
 § 193. (e) Destruction of that on 
 which the right depends. 
 
 § 194. (f ) Union of tenements. 
 
 § 195. (g) Excessive claim or 
 user. 
 
 § 196. Remedies for obstructions 
 or injuries to easements and ser- 
 vitudes. 
 
 § 182. Topics of this chapter. 
 
 a. Incidents of Easements and 
 Servitudes. 
 
 § 183. Transfer of them. 
 § 184. Use and enjoyment of 
 them. 
 
 § 185. Repairs of them. 
 § 186. Alterations of them. 
 
 b. Termination, Destruction, and Sus- 
 pension of Easements and Servi- 
 tudes. 
 
 § 187. Natural termination. 
 § 188. Methods of destroying and 
 suspending them. 
 
 § 182. Topics of this Chapter. — The acquisition and gen- 
 eral nature of common-law easements and those of servitudes 
 which are not easements have been separately discussed in the 
 last two preceding chapters. In regard to their important 
 incidents, such as their transfer, use, repairs, and alterations, 
 all of these rights may now be most conveniently and intel- 
 ligibly examined together. Those incidents, the methods by 
 which easements and servitudes may be terminated or sus- 
 pended and the remedies for their obstruction or injury are 
 the topics of this chapter. Some special features of particu- 
 lar, important species of these incorporeal hereditaments will 
 be separately examined in the next succeeding chapter. 
 
 a. Incidents of Easements and Servitudes, including their 
 Transfer, Use, Repairs, and Alterations. 
 
 § 183. Transfer of Easements and Servitudes. — The pre- 
 vailing rule as to easements in gross, in both England and 
 
 16 
 
242 KINDS OP REAL PROPERTY. 
 
 America, is that they are not assignable nor inheritable, and 
 can not be made so by any form of words in the deeds or 
 contracts by which they are brought into being. , They are 
 attached to the persons to whom they are granted, and can not 
 exist in any other way.^ So, the other forms of servitudes 
 above discussed, which do not require the existence of any 
 dominant estate, such, for example, as the rights of the public 
 in a street or highway, are commonly of such a character that 
 they must remain the property of the town, parish, or other 
 political body which acquired them, or must cease to exist. ^ 
 In a few of the United States, however, such as Massachusetts 
 and Wisconsin, it is held that easements in gross may be so 
 created as to be readily passed from hand to hand in the same 
 ways in which other species of real property are transferred.^ 
 And there are some forms of the other servitudes having no 
 dominant tenements, such as rights of way acquired by rail- 
 road or turnpike companies, of which valid transfers may 
 unquestionably be made so long as the purposes and ends to 
 which they are applied are not materially changed.* These 
 rights and privileges over land which belong to individuals 
 or corporations as such, and are not appurtenant to other 
 land, may be said, in summary, to be ordinarily independent, 
 proper objects of such agreements, assignments, and transfers 
 as the interested parties choose to make ; with the two quali- 
 fications, however, that the public interests shall not be 
 injuriously affected by such conveyances or agreements, and 
 
 1 Ackroyd v. Smith, 10 C. B. 164; rights, not strictly servitudes in fee 
 
 liOnisville & N. R. Co. v. Koelle, 104 since a fee mnst be appuitenant to land, 
 
 IlL 455 ; Tinicum Fishing Co. v. Carter, but contract rights in perpetuity which 
 
 61 Pa. St. 21 ; Pearson v. Hartman, may be legally transferred from hand 
 
 100 Pa. St. 84; Cadwalader v. Bailey, to hand. See also Wilder «. Wheeler, 
 
 17 R. I. 495; Wagner i;. Hanna, 38 60 N. H. 351. 
 
 Cal. Ill ; Boatman v. Lasley, 23 Ohio ^ The intention that the right shall 
 
 St. 614 ; Post V. Pearsall, 22 Wend. be enjoyed by the grantee, his heirs and 
 
 (N. Y.) 425, 432; Hall v. Armstrong, assigns, must be clearly manifested, 
 
 53 Conn. 554 ; Hoosier Stone Co. v. Ma- Bowen v. Conner, 6 Cnsh. (Mass.) 132; 
 
 lott, 130 Ind. 21, 24; Fisher v. Fair, 34 French v. Morris, 101 Mass. 68; Owen 
 
 S. C. 203 ; Wilder ti. Wheeler, 60 N. H. v. Field, 102 Mass. 90 ; Hankey v. Clark, 
 
 351; Wash.Ease. (4thed.)p. 13, p.*9. 110 Mass. 262; Poull v. Mockley, 33 
 
 " Post V. Pearsall, 22 Wend. (N. Y.) Wis. 482. 
 425,432. A servitude conveyed to a city, * This occurs, for example, when a 
 
 "its successors and assigns," has been railroad franchise and all its ways.rights, 
 
 held to be capable of being assigned, and privileges are sold or leased. See 
 
 however ; and it seems to be clear that, Eastman v. Anderson, 1 1 9 Mass. 526 ; 
 
 if the parties use such express words to Barney v. Keokuk, 94 U. S. 324, 340; 
 
 that effect, they may thus make these 12 Amer. & Eng. Ency. of L. 660. 
 
INCIDENTS OF EASEMENTS AND SERVITUDES. 
 
 243 
 
 that, in most jurisdictions, mere easements in gross are of a 
 purely personal character and are not capable of passing from 
 hand to hand.^ 
 
 On the other hand, an easement or servitude which is 
 appurtenant to a dominant tenement adheres to that tenement 
 and passes with it in its transfer by descent, devise, or act 
 i7iter vivos.^ It is not even necessai'y that the right or privi- 
 lege shall be mentioned in the deed of the land to which it is 
 appurtenant; though in practice the statement that the instru- 
 ment is meant to convey the lot particularly described, with 
 all its appurtenances, is the form of the express conti-act by 
 which such incorporeal hereditaments are ordinarily granted.* 
 An appurtenant easement, moreover, can not be conveyed by 
 its owner separate from the land. It can not be converted 
 into an easement or right in gross. It inheres in the corpo- 
 real, dominant property, and can not exist in any other form.* 
 In order that it shall be thus appurtenant and adhere thus 
 closely to the land, passing with it and not b'eing severable 
 from it, the easement must be of some benefit to the corporeal 
 property, a valuable adjunct to it, appropriate and reasonably 
 
 1 The distinction must be again care- 
 fully noted between an easement and a 
 profit a prendre. The latter means the 
 right to take something from the servi- 
 ent estate, while the former never in- 
 volves that right. While an easement 
 in gross is ordinarily of a purely per- 
 sonal character and not assignable nor 
 transferable in any way, a profit a pren- 
 dre, even though it be the property of an 
 individual as sucli and without any ref- 
 erence to his ownership of any dominant 
 tenement, may be readily made assign- 
 able and inheritable by the use of apt 
 words in the deed or contract by which 
 it is created. Post v. Pearsall, 22 Wend. 
 (N. Y.) 423; Tinicum Fisliiiig Co. v. 
 Carter, 61 Pa. St. 21, 39 ; Ruffum .. 
 Harris, 5 R. I. 243 ; Stevenson v. Wig- 
 gin, 56 X. H. 308; Wash. Ease. (4th ed.) 
 p. 13, D. * 9. And see Pierce v. Keator, 
 70 N. Y. 419. 
 
 ^ Staple /•. Heydon, 6 Mod. 1 ; United 
 States i: Appleton, 1 Snmn. (U. S. Cir. 
 Ct.) 492, 503; Newman v Nellis, 97 
 N. Y. 285 ; Cady w. Springfield Water 
 Works Co., 10 N. V. Supp. 570; .Tack- 
 son V. Hathaway, 15 Johns. (N. Y.) 447 ; 
 
 Manderbaek v. Orphans' Home, 109 Pa. 
 St. 231 ; Jones v. Adams, 162 Mass. 224 ; 
 Brakely v. Sharp, 9 N. J. Eq. 9 ; Chicago, 
 St. F. & C. R. Co. V. Ward, 128 lU. 349 ; 
 Parish v. Kaspare, 109 lud. 586 ; Cole 
 V. Bradbury, 86 Mo. 380; Cadwalader 
 V. Bailey, 17 R. I. 495 ; Shields v. 'litus, 
 46 Ohio St. 528 ; Coolidge v. Hagar, 
 43 Vt. 9. 
 
 ^ United States v. Appleton, 1 Sumn. 
 (U. S. Cir. Ct.) 492, 502; Spencer v. 
 Kilmer, 151 N. Y. 390, 399; Newman 
 !', Nellis, 97 N. Y. 285 ; Dority li. Dun- 
 ning. 78 Me. 381 ; Alexander v. ToUes- 
 ton Club, 110 111. 65; Kent v. Waite, 
 10 Pick. (Mass.) LSS: Shields r. Titus, 
 46 Ohio St. 528. 
 
 * Hankey r. Clark, 110 Mass. 262; 
 Cadwalader v. Bailey, 17 R. I. 495; 
 Moore v. Crose, 43 Ind. 30 ; Schmidt y. 
 Brown, 226 111. 590 ; Ackroyd v. Smith, 
 10 C. B. 164; Tinicum Fishing Co. v. 
 Carter, 61 Pa. St. 21 ; Boatman w. Lasley, 
 23 Ohio St. 614; Newman i-. Nellis, 97 
 N, Y. 285. By express words an ease- 
 ment may be made appurtenant to any 
 certain portion of the land. Leach v. 
 Hastings, 147 Mass, 515. 
 
244 KINDS OF REAL PROPERTT. 
 
 requisite to its enjoyment for the purposes for which it is 
 conveyed. ■* But there need be no absolute ^necessity that the 
 easement shall exist in order that the land may be properly 
 enjoyed. Thus, if the owner of a lot of land fronting on a 
 public highway purchase the adjoining lot in the rear, access 
 to which has uniformly been over a private way (not a way of 
 necessity) from another public street, the fact that he may 
 now reach both parcels from the one highway which one of . 
 them adjoins will not interfere with his acquisition of the 
 private way as appurtenant to his newly acquired property. ^ 
 An easement or servitude that is appurtenant to a piece of 
 land adheres to every part of it ; and when the land is divided 
 and parcelled out among a number of different owners, either 
 by act of the parties or by operation of law, each of them may 
 enjoy the right, so long as this does not result in unduly 
 increasing the burden on the servient tenement.^ 
 
 § 184. ITse and Enjoyment of Easements and Servitudes. — 
 The ways in which easements or servitudes may be used and 
 the extent to which their enjoyment may be carried are to be 
 determined, from a fair construction of the deed or instru- 
 ment by which they are granted or reserved when they are 
 the result of agreement by the parties, from the method of 
 user by which they have been acquired when they arise from 
 prescription or custom, from an ascertainment of the purposes 
 for which the rights were originally contemplated or for 
 which they are appropriate and useful for public enjoyment 
 when they are created by operation of law, and from their 
 requirement for the protection or reasonable employment of 
 the land when they exist by nature. 
 
 When a right of way is expressly granted for a footpath, 
 the grantee can not use it for a carriage road or horseway.* 
 And where the lessor of a parcel of land reserved over it a 
 way to and from a stable which belonged to him, " on foot, 
 and for horses, oxen, cattle, and sheep," it was held that this 
 did not give him the right to carry manure in a wheelbarrow 
 
 1 Ackroyd u. Smith, 10 C. B. 164; v. Valentine, 34 Wis. 154; Dority v. 
 
 Bailey u. Stephens, 12 0. B. N. s. 91; Dunning, 78 Me. 381., 
 Borst V. Empire, 5 N. Y. 33; Pierce v. 2 pritzw. Tompkins, 39 N.Y.App.Div. 
 
 Keator, 70 N. Y. 419; McKenna v. 73; Parsons v. Johnson, 68 N. Y. 62; 
 
 Brooklyn Union El. R. Co., 184 N. Y. Mussey i'. Union Wharf, 41 Me. 34. 
 391; liennis v. Wilson, 107 Mass. 591; ^ Philbrick v. Ewing, 97 Mass. 133; 
 
 Boland v. St. John's Schools, 163 Mass. Spanlding v. Abhot^, 55 N. H. 423. 
 229; Lathrop v. Eisner, 93 Mich. 599; * Kirkham v. Sharp, 1 Whart. (Pa.) 
 
 Kneeken v. Voltz, 110 111. i!64 ; Spensley 323. 
 
INCIDENTS OF EASEMENTS AND SERVITUDES. 245 
 
 from the stable across the land.^ So, if there be granted or 
 reserved to A the privilege of passing over B's land simply 
 to reach lot No. 1, A will be a trespasser if he use the road 
 to reach lot No. 2, even though he may pass over the way to 
 lot No. 1 in the first place and thence across the latter to 
 lot No. 2.2 "The grantee of a way is limited to use his way 
 for the purposes and in the manner specified in his grant. 
 He can not go out of his way, nor use it to go to any other 
 place thaui that described, nor to that place for any other 
 purpose than that specified, if the use in this respect is re- 
 stricted. " ^ Whatever is necessary, however, to the reason- 
 able enjoyment of the easement passes with it;* and when 
 the grant or reservation is made generally without any par- 
 ticular specification of the place or method of its use, it may 
 be enjoyed to such an extent and in such a reasonable manner 
 as does not unnecessarily burden the servient tenement.^ 
 Accordingly, when the right is a footpath, it must be high 
 and wide and light enough for the convenient passing of 
 persons and such things as they usually carry.^ When it is 
 a "wagon road," it may be employed for the transportation 
 of any reasonable loads on wagons of any ordinary form and 
 size." And where it was a right of way to a warehouse, it 
 included, as an incident to its proper enjoyment, the right of 
 the tenant of the warehouse to pile goods upon the land and 
 keep them there for a reasonable length of time, in the process 
 of moving them to and from the building.^ 
 
 1 Brunton v. Hall, 1 Q. B. 792; George v. Cox, 114 Mass. 382, 388; 
 Furner v. Seabury, 135 N. Y. 50. Parks v. Bishop, 120 Mass. 340 ; Atty.- 
 
 2 Davenport v. Lamson, 21 Pick. Gen. v. Williams, 140 Mass. 329. 
 (Mass) 72; Crocker i'. Cotting, 181 ^ Atkins r. Bordman, 2 Met. (Mass) 
 Mass. 146 ; Howell v. King, 1 Mod. 190; 457 ; Tucker v. Howard, 128 Mass. 361 ; 
 Colchester v. Boberts, 4 M. & W. 769; Gerrish v. Shattuck, 132 Mass. 235. 
 Lawton u. Ward, 1 Ld. Raym. 75; 1 ' Atkins i>. Bordman, 2 Met. (Mass.) 
 RoUe Abr. 391, pi. 3; § 147, supa. 457; Richardson v. Pond, 15 Gray 
 
 ' French .-. Marstin, 24 N. H. 440, (Mass.), 387, 389; Bakeman v. Talbot, 
 
 32 N. H. 316; Regina v. Pratt, 4 E. & 31 N. Y. 366. 
 
 B. 860; Colchester v. Roberts, 4 M. & ^ Appleton v. FuUerton, 1 Gray 
 
 W. 769, 774; Greene v. Canny, 137 (Mass.), 186; Lyman i. Arnold, 5 
 
 Mass. 64, 69; Woolrych on Ways, p. Mason, 195, 198; Sargent v. Hubbard, 
 
 *34. 102 Mass. 380. It is ordinarily a ques- 
 
 * Baker v. Frick, 45 Md. 337 ; Bald- tion of fact for the jury as to what 
 
 win f. Boston & M. R. Co., 181 Mass. things are reasonably necessary or con- 
 
 166; Arnold i'. Fee, 148 N. Y. 214; Venient, so as to be included within that 
 
 Gillespie v. Weinberg, 148 N. Y. 238. which the owner of the easement or 
 
 ^ Abbott V. Butler, 59 N. H. 317 ; servitude may enjoy; but the jury is 
 
 Bakeman v. Talbot, 31 N. Y. 366; to act under the instructions of the 
 
246 KINDS OP REAL PROPERTY. 
 
 A right or privilege acquired by prescription must result 
 from a user of the servient estate in the same place and within 
 definite boundaries during the entire period of limitation. ^ 
 The manner and extent of such user then determine the 
 character and limitations of the easement or servitude thus 
 acquired. It can " never outrun or exceed the user in which 
 it. had its origin.'* ^ Thus, when a railroad company has 
 acquired a right of way by prescription, it is limited to the 
 enjoyment thereof to the width which it has employed dur- 
 ing the period of adverse user.^ So, where the prescriptive 
 roadway is obtained solely for agricultural purposes, and the 
 dominant property subsequently becomes a manufacturing or 
 residential district, the right can not be enjoyed for these 
 new purposes so as to impose a heavier burden upon the ser- 
 vient tenement.* But a fair and reasonable employment of 
 the right gained by prescription will be upheld by the courts; 
 and the owner of the dominant estate will not be restricted in 
 its enjoyment unless his acts substantially change or increase 
 the burden on the other's land. It was accordingly held 
 that the mere fact that the owner of a so-called "nine-acre 
 field," who had acquired by adverse user a general right of 
 way from it to a highway, carried over the road a quantity of 
 hay, of which a small portion had been raised on an adjoining 
 field, did not constitute an excessive use of the easement.^ 
 
 It may be repeated that the uses to which a way of neces- 
 sity may be applied are determined by its requirements for 
 the reasonable enjoyment of the dominant estate for the pur- 
 poses contemplated by the parties to the conveyance, and that 
 
 court as to the classes and character of * Parks v. Bishop, 120 Mass. 340; 
 the incidental privileges which they Wimbledon & Putney Commons Con- 
 may include. Baker v. Frick, 45 Md. servators v. Dixon, L. R. 1 Ch. Div. 
 337 ; Atkinson v. Bordman, 2 Met. 62. 
 
 (Mass.) 457; Richardson v. Pond, 15 'Williams v. James, 2 C. P. 577; 
 
 Gray (Mass.), 389. Parks i>. Bishop, 120 Mass.34Q; Bremer 
 
 1 Jones V. Perciyal, 5 Pick. (Mass.) v. Manhattan R. Co., 191 N. Y. 333; 
 485 ; South Branch R. Co. v. Parker, 41 Betjemann «. Brooklyn Union El. R. 
 N. J. Eq. 489; Kurtz v. Hoke, 172 Co., 127 N. Y. App. Div. 83; Cowling 
 Pa. St. 165; § 157, supra. v. Higginson, 4 M. & W. 245. It is to 
 
 2 Amer. Bank Note Co. v N. Y. El. be noted that the owner had acquired a 
 R. Co., 129 N. Y. 252, 266; Lewis v. general way in these cases. When by 
 N. Y. & H. R. Co., 40 ;ff. Y. App. Div. grant or fair implication a right is ob- 
 343 ; Ryan o. M. V. & S. I. R. Co., 62 tained for only one lot, it can not, as 
 Miss. 162 ; Richardson v. Pond, 15 shown above in this section, be used for 
 Gray (Mass.), 387. other land. See also § 147, supra, especi- 
 
 8 0. & R. V. E. Co. V, Rickards, 38 ally French v. Marstin, 32 N., H. 316; 
 Neb. 847. Crocker v. Cotting, 181 Mass. 146. 
 
INCIDENTS OF EASEMENTS AND SERVITUDES. 247 
 
 the way ceases when the necessity terminates.^ Rights which 
 exist in the natural order of things, such as the right to the 
 lateral support of soil, or that to the usual flow of a natural 
 stream, are servitudes which may be enjoyed and must be 
 endured to the extent which the ordinary uses of the land 
 ia its natural condition requires, but do not ordinarily ex- 
 tend to the benefit of artificial erections or improvements. 
 A right, for example, to have one's soil laterally supported 
 by that of his neighbor does not exist naturally in favor of 
 buildings, nor does it include any soil or its products in other 
 than their natural condition. ^ The waters of a natural stream 
 may be used by the owner of the land over which it flows, in 
 any manner and to any extent that he may desire, so long 
 as he does not change the place at which they pass into his 
 neighbor's property, nor pollute them, nor substantially 
 diminish their volume.^ 
 
 The owner of the servient estate may employ his land for 
 such purposes as he pleases, consistent with the reasonable 
 and proper use of the easement or servitude.* If, for ex- 
 ample, the right be a private way, the servient owner may, as 
 a general rule, maintain a gate or bars across it, provided 
 that this is not contrary to the contract of the parties and 
 does not materially interfere with the use of the way.^ But 
 he must not so place obstructions in the way, nor so remove or 
 destroy the accessories to its use, as to restrict essentially 
 the reasonable enjoyraent of the right. Therefore, where the 
 «asement consisted of a carriage road, the proprietor of the 
 land over which it existed was enjoined from depositing 
 stones in the way, and from hauling heavy loads over it in 
 
 1 §§ 145, 147, supra. feet wide, it was held that the servient 
 
 2 Angus V. Dalton, L. R. 6 App. Cas. tenant might place obstructions within 
 740; White v. Dresser, 135 Mass. 150 ; that space, so long as he did not shut out 
 White V. Nassau Trust Co., 168 N. Y. a conTenient way. Johnson v. Kinni- 
 149, 155 ; §§ 207, 208, infra. cutt, 2 Cush. (Mass.) 153, 156. But the 
 
 ' Brewster v. Rogers Co., 169 N. Y. express grant or reservation of a well- 
 
 73 ; § 222, infra. defined width entitles the grantee to the 
 
 * Bakeman v. Talbot, 31 N. Y. 366, entire space unobstructed. Tucker i. 
 
 371. Howard, 122 Mass. 529, 128 Mass. 361 ; 
 
 5 Huiion 1^. Young, 4 Lans. (N. Y.) Nash v. N. E. Ins. Co., 127 ..Mass. 91 ; 
 
 «3 ; Bean v. Coleman, 44 N. H. 539 ; Bissell v. Grant, 35 Conn. 288, 295. So, 
 
 Houpes V. Alderson, 22 Iowa, 160, 163 ; the landowner may cultivate the soil, 
 
 Connerv v. Brooks, 73 Pa. St. 80; At- over which the road exists, in such a 
 
 kins V. Bordman, 2 Met. (Mass.) 457 ; manner as not to interfere with the use 
 
 Richardson v. Pond, 15 Gray (Mass.), of the privilege according to the terms 
 
 ^87, 389. In one case, where the right of the grant or reservation. Wella v. 
 
 of way was granted over a space twenty Tolman, 156 N. Y. 636. 
 
248 KINDS OF REAL PKOPERTT. 
 
 such a manner as to cut it up and make it unsuitable for light 
 carriages. ^ 
 
 In a word, the owner of the easement or servitude shall 
 have the right to use it and all things accessory to its enjoy- 
 ment in the manner contemplated and implied in its original 
 creation or existence ; and the owner of the land shall have 
 the enjoyment of his property in all methods not inconsistent 
 ■with such use and enjoyment of the incorporeal right or 
 privilege. 
 
 § 185. Repairs of Easements and Servitudes. — • The owner 
 of the servient tenement may be bound, by grant,- reservation, 
 or prescription, to make such repairs as may be necessary 
 to the proper enjoyment of the easement or servitude by its 
 owner.^ But, as a general rule, this obligation does not rest 
 upon him; and the dominant tenant can insist on no repairs 
 or improvements other than those which he himself makes or 
 causes, even though they may be necessary to the enjoyment 
 of his right. ^ The authority, however, to amend, repair, or 
 improve the property, to the extent which may be fairly 
 requisite to the utility to its owner of the right or privilege 
 as reasonably contemplated by the parties, goes with it as an 
 incident tp its ownership. Such incidental rights have been 
 described as " secondary easements. " * Thus, the grant of a 
 way includes the right of its owner to keep it in good condi- 
 tion for the purposes for which it was created. And the right 
 to use a house or any part of it for a particular purpose carries 
 with it the right to repair it to the extent which that purpose 
 requires.^ 
 
 While the owner of the dominant tenement has authority 
 
 1 Herman v. Roberts, 119 N. Y. 37. Liford's Case, 11 Eep. 46 b, 52 a; Wet- 
 
 2 Whittenton Mfg. Co. v. Staples, more v. Fisk, 15 E. I. 354; Herman v. 
 164 Mass. 319, 330; Middleford v. Roberts, 119 N. Y. 37; Huntington ■;. 
 Churcb Mills Knitting Co., 160 Mass. Asher, 96 N. Y. 604 ; Edgett u. Douglas, 
 267; Bronson v. Coffin, 108 Mass. 175; 144 Pa. St. 95. Nor do words in the 
 Lynn v. Turner, Cowper, 86 ; Kingston- deed of conveyance of a way, declar- 
 npon-Hull v. Horner, Lofft, 576. , ing that no easement shall pass by im- 
 
 ^ Gerrard v. Cooke, 5 B. & P. 109, plication, nor long user of the way 
 
 115; Rider I'. Smith, 3T. R. 766; Doane without actually making any repairs, 
 
 V. Badger, 1 2 Mass. 65 ; Espencheid v. deprive the owner of a way of the right 
 
 Bauer, 235 111. 172 ; Joseph v. Ager, 108 to make repairs when necessary. " The 
 
 Cal. 517; Hargrave o. Cook, 108 Cal. very existence of a right of way pre- 
 
 72. eludes the idea that the party who has 
 
 ^ Nicholas v. Chamberlain, Cro. Jac. the right can not repair or keep the way 
 
 121 ; Toothe v. Bryce, 50 N. J. Eq. 589, in order." McMillan v. Cronin, 75 
 
 609. N. Y. 474, 477 ; St. Anthony F. W. Co. 
 
 ^Benham v. Minor, 38 Conn. 252 ; v. Minneapolis, 41 Minn, 270, 274. 
 
INCIDENTS OP EASEMENTS AND SERVITUDES. 249 
 
 to make such repairs as the proper uses of -his right demand, 
 yet, as between him and the servient tenant, he is under no 
 obligation to repair, unless required to do so by contract or 
 prescription.^ He may let the way, drain, wall, or other 
 subject of the right become useless if he please ; and, except 
 in cases in which this is a violation of his duty to the public 
 or to his neighbor to keep his property in a safe condition, he 
 is not answerable therefor to any one.^ 
 
 The privilege of making necessary and reasonable repairs 
 includes, of course, the right to go upon and use the servient 
 property to the requisite extent. The owner of a dam and 
 right of flowage may enter upon the soil and take as much of 
 it as is needed to keep the dam in good condition, doing as 
 little injury as possible to the servient land ; and he who has 
 a right of way is entitled to have such use of the adjacent 
 land as is required to make and keep a good road.^ But 
 when the means of enjoying his right are out of repair, he 
 must not pass over or appropriate other portions of the ser- 
 vient tenement, unless the owner of the latter is bound to 
 repair, or has wilfully and wrongfully obstructed or interfered 
 with the proper use of the easement or servitude. The owner 
 of such a privilege can not, by his own act or neglect, let the 
 means of utilizing it become defective, and, in consequence 
 thereof, impose a heavier or different burden upon the servi- 
 ent property.* If, however, the proprietor of the latter, by 
 intentional wrong, impair the means of enjoying the right, 
 the dominant owner may use the adjacent land as long as the 
 unwarrantable interference continues.^ 
 
 § 186. Alterations of Easements and Servitudes. — The very 
 existence of an easement or servitude, placing as it does the 
 enjoyment of one man's land to some extent in the hands of 
 another, calls for careful, exact, and quite stringent regula- 
 
 1 Taylor d. Whitehead, Dong. 744; Roberts, 119 N.Y. 37 ; Doane d. Badger, 
 McMillan v. Cronin, 75 N. T. 474; 12 Mass. 65; E^^mme^n v. Coulson, 
 Jones V. Percival, 5 Pick. (Mass.) 485, L. E. 5 Ch. Dlv. 133; Senhouse c 
 487 ; "Walker v. Pierce, 38 Vt. 94. Christian, 1 T. R. 560 ; Dand v. Kings- 
 
 2 Pomfret v. Ricroft, 1 Wras. Saund. cote, 6 M. & W. 174. 
 
 321 ; Duncan v. Louch, 6 Q. B. 904 ; * Rockland W. Co. v. Tillson, 75 
 
 Roberts v. Roberts, 55 N. Y. 275; Me. 170; Capers v. McKee, 1 Strobh. 
 
 Kaler v. Beaman, 49 Me. 207; Doane (S. C.) 164; McMillan v. Cronin, 75 
 
 V. Badger, 12 Mass. 65. N. Y. 474. 
 
 8 Edgett V. Douglas, 144 Pa. St. 95; ^ Taylor v. Whitehead, Dong. 744; 
 
 Gorrard u. Cooke, 5 B. & P. 109; Dun- Bnllard c. Harrison, 4 M. & S. 387; 
 
 can V. Louch, 6 Q. B. 904 ; Huntington Hamilton v. White, 5 N. Y. 9 ; Wash. 
 
 V. Ashor, 95 N. Y. 604; Herman v. Ease. (4th ed.) p. 293, p. * 196. 
 
250 KINDS OP EBAL PEOPEETT. 
 
 tions of their reciprocal rights and duties. The property of 
 each must be so used as not to cause any injury to the other, 
 with which it is so intimately associated ; yet the restrictions 
 must ordinarily be no more severe than such as are required 
 by this principle. "The right of the easement owner and 
 the right of the landowner are not absolute, irrelative, and 
 uncontrolled, but are so limited, each by the other, that there 
 may be a due and reasonable enjoyment of both. " ^ 
 
 It is accordingly held that the owner of the right may 
 make such improvements and alterations as do not substan- 
 tially change its character.'^ But he may be enjoined from 
 adding anything to it, or taking anything from it, or employ- 
 ing it in a manner or place, which may result in his enjoy- 
 ment upon the servient land of something materially different 
 from that to which he is strictly entitled ; and this though the 
 change or improvement might be of no immediate detriment 
 to the servient estate, or might be to it in some sense a bene- 
 fit.* Thus, a slight alteration in a road, made by the owner 
 of the right of way for the purpose of straightening it and 
 rendering it more convenient to all parties, will be permitted.* 
 And a change in the method of using water as it runs over 
 one's own land, whether the stream be natural or artificial, 
 gives no right of action to his neighbors, provided it does not 
 materially affect the character of the water nor the manner in 
 which it flows over their lands. ^ But an open drain can not 
 be changed to a drain through a pipe, or vice versa, against 
 the will of the owner of the land through which it passes.'' 
 Nor will the proprietor of a mill run by water power be per- 
 
 1 Olcott i). Thompson, 59 N. H. 154, A benefit bestowed upon it against his 
 
 156. will is a legal injury to him. Ibid. 
 
 " Roberts v. Boberts, 55 N. Y. 275. * Lawton v. Rivers, 2 M'Cord (S. C), 
 
 " Lutrel's Case, 4 Rep. 84 b ; Tap- 445. And see Burris v. People's Ditch 
 
 ling ». Jones, 11 H. L. Cas. 290; Dick- Co., 104 Cal. 248; Richardson «. Clem- 
 
 erson c. Grand Junction Canal Co , 15 ents, 89 Pa. St. 503 ; Blaine r. Hay, 61 
 
 Beav. 260 ; Onthank v. L. S. & M. C. R. Vt. 566. 
 
 Co., 7 IN. Y. 194 ; Evangelical Lutheran ° Luttrel's Case, 4 Rep 84 b: Saun- 
 
 St. J. & O. Home v. Buffalo Hydraulic ders v. Newman, 1 Barn. & Aid. 258, 
 
 Ass'n, 64 N. Y. 561 ; Merritt v. Parker, 262 ; Whittier v. Cocheco Mfg. Co., 9 
 
 1 N. J. L. 460 ; Johnston o. Hyde, 32 N. H. 454 ; Blanchard v. Baker, 8 Me. 
 
 N. J. Eq. 446; Allen v. San Jose L. & 253; Bnddington v. Bradley, 10 Conn. 
 
 W. Co., 92 Cal. 138 ; Dewey w. Bellows, 213. 
 
 N. H. 282 ; Darlington v. Painter. 7 s Allen r. San Jose L. & W. Co., 92 
 
 Pa. Pt. 473 ; Jennison v. Walker, 1 1 Cal. 138 ; Dickerson v. Grand .Tiinctiou 
 
 Gray (Mass.), 423. The owner of land Canal Co., 15 Beav. 260; Jaqui v. 
 
 has an arbitrary right to determine Johnson, 2.7 N. J. Eq. 526. 
 whether oi not it shall be improved. 
 
INCIDENTS OF EASEMENTS AND SERVITUDES. 251 
 
 mitted to alter the machinery therein or its workings in such 
 a manner as to interfere essentially with the operation of 
 other mills below his own.^ 
 
 On the other hand, the owner of the servient tenement 
 must do nothing to alter materially the servitude to which 
 his land is subjected. Even though the act might result in 
 an improvement of the easement or servitude and increase 
 its usefulness to its owner, the latter may have an injunction 
 against the working of any substantial change in his right or 
 in the mode of its enjoyment." Subject to this limitation, the 
 servient tenant may work and improve his land and put it to 
 any legal use which he may desire. The owner of an ease- 
 ment in the use of an aqueduct, for example, can not restrain 
 the landowner from putting a more ornamental covering over 
 the reservoir and otherwise improving his property, in such 
 a manner as not to materially interfere with the enjoyment 
 of the right. ^ The owner of land over which a way of 
 necessity is to exist may locate it in the first instance, if 
 he make it reasonably convenient ; but, after it is once fixed, 
 he can not change it without the other's consent* In case, 
 however, of the material alteration of any easement or servi- 
 tude by the servient tenant, if it be used in its changed con- 
 dition for so long a time as to show an acquiescence on the 
 part of its owner, he can not thereafter have it restored to its 
 original form without the consent of the servient owner. ^ 
 
 b. Termination, Destruction, and Suspension of Easements 
 and Servitudes. 
 
 § 187. Natural Termination. — Incorporeal rights and ob- 
 ligations, of course, may be so limited at the time of their 
 creation that they can not perpetually endure, but must come 
 to a natural end in the lapse of time. Thus, a grant to one 
 of a right of way over his neighbor's field, " for and during 
 his natural life," will terminate at the death of the grantee. 
 
 1 Wentworth r. Poor, 38 Me. 243 ; Haslett r. Sheperd, 85 Mich. 165 ; 
 Cowell !•. Thayer, 5 Met. (Mass.) 253; Kelley v. Saltmarsh, 146 Mass. 585. 
 King V. Tiffany, 9 roiin. 162. ' Olcott v. Thompson, 59 N. H. 154. 
 
 2 Vinton v. Greene, 158 Mass. 426; * § 146, supra. 
 
 Roberts v. Roberts, 55 N. Y. 275 ; Allen * Betts i'. Badger, 12 Johns. (N. Y.) 
 
 V. San Jose L. & W. Co., 92 Cal. 138 ; 223 ; Fitzpatrick v. B. & M. R. Co., 84 
 
 Me. 33. 
 
252 KINDS OF REAL PROPERTY. 
 
 So a privilege of using another's land may be expressly made 
 to conti:;ue only for some definite period of time, as a stated 
 number of years or months; or to last until some contingent 
 event does or does not occur, or until some designated purpose 
 shall be aocomplished. In such cases, it is hardly necessary 
 to say, the easement or servitude terminates naturally when 
 the time for which it was made has elapsed, or the purposes 
 of its creation have been fulfilled.^ 
 
 Aside from such natural ending, these rights and burdens, 
 ■whether created for some temporary purpose or to continue 
 perpetually, may be terminated or suspended in the various 
 ways which are next to be investigated. 
 
 § 188. Methods of destroying and suspending Easements 
 and Servitudes. — The means of destroying, and sometimes 
 suspending, these rights are by (a) release, (b) disclaimer, or 
 abandonment and estoppel, (c) non-user, (d) adverse obstruc- 
 tion, or prescription, (e) destruction of that upon which the 
 right depends, (f) union of the dominant and servient estates, 
 and (g) excessive claim or user. In most instances, any of 
 these methods of dealing with the incorporeal right destroys 
 it altogether; but under some conditions, which will be here- 
 after explained, the easement or servitude is only suspended 
 for a time, and revives when such operating cause of its ces- 
 sation is removed. Each of these ways of terminating ease- 
 ments and servitudes, or causing them to cease to operate for 
 a season, will be separately examined. 
 
 § 189. (a) Release of Easements and Servitudes. — Tech- 
 nical Release under Seal. — Anything of an incorporeal nature 
 may be terminated and destroyed by an express release under 
 seal, from the owner of the right to the owner of the servient 
 property.' It may also be temporarily suspended, to operate 
 again in the future, or partly done away with, set aside, or 
 altered in any manner agreed upon by the parties to the 
 contract. So long as the rights of third persons are not 
 interfered with, those who are interested in the land and the 
 rights and burdens upon or over it may regulate or terminate 
 the latter in any way that is clearly indicated by their deed. 
 It has accordingly been held that an express release of a right 
 of way ends it, although the effect is to cut off the releasor's 
 
 1 Hahnu. Baker Lodge, 21 Oreg. 30; 2 Dyer v. Sanford, 9 Met. (Mass.) 
 
 Shirley «. Crabb, 138 Ind. 200; Thorn 395; Comstock v. Sharp, 106 Mich. 
 V. Wilson, 110 Ind. 325. 176. 
 
INCIDENTS OF EASEMENTS AND SERVITUDES. 253 
 
 means of access to his land because it is entirely surrounded 
 by land of the releasee and that of other persons.^ 
 
 Such express contracts, by which interests in real property 
 are affected, are generally required by the statutes of frauds 
 to be in writing ; and, in oi-der to be a common-law release, 
 the writing must be under seal. 
 
 Release in Form of License. — Using the word " release " for 
 a moment, however, in its broad, general sense, to denote a 
 voluntary relinquishment of a thing in any manner, it may be 
 stated as a well-established principle that by a mere license, 
 which is a permission given orally or by a writing not under 
 seal, the owner of an easement may effectually release it to the 
 servient tenant. Tliis is done by an authority to the owner 
 of the servient land to do something upon it which will ob- 
 struct the enjoyment of the easement ; as when he is expressly 
 permitted to erect upon it a house or wall, in such a way as 
 to shut out from the windows of his neighbor, the licensor, 
 the light and air in the enjoyment of which the latter had in 
 some manner acquired an adverse right.^ While an easement 
 can not be created by parol agreement; yet, when an oral 
 license is thus given to do an act on the land of the licensee, 
 and the effect thereof is to destroy or impair an easement 
 appurtenant to land of the licensor, the latter will not be 
 permitted to revoke the license so as to stop or interfere with 
 any changes, additions, or improvements that have been begun 
 or made upon the servient land in consequence of the authority 
 so given. 3 But a parol license to do an act on the licensor's 
 land can not have such an operation. The licensor may 
 revoke it at any time, and compel the licensee to restore the 
 property to its original condition.* 
 
 Both of the rules of law above stated — that an easement 
 may be destroyed by a license to do an act on the licensee's 
 land, but that irrevocable privileges can not flow from a license 
 to do an act on the licensor's land — are well illustrated by 
 the decision in Morse v. Copeland.^ The plaintiff in that case 
 
 1 Kichards v. Attloborough Branch Ford </. New Haveu & North Co., 23 
 E. Co., 153 Mass. 120. Coun. 214, 223; § 243, infra. 
 
 2 Liggi'ns V. Inge, 7 Bing. 682 ; Elliott ^ Liggins v. Inge, 7 Bing. 682 ; Dyer 
 V. Rhett, 5 Rich. (§. C.) 405, 418, 419 ; v. Sanford. 9 Met. (Mass.) 395 ; Crosdale 
 Dyer v. Sanford, 5 Met. (Mass.) 395; v. Lanigan, 129 N. Y. 604; White v. 
 Dunn V. Youmans, 224 III. 34. Man. R. Co., 139 N. Y. 19; Lawrence 
 
 8 Winter v. Brockwell, 8 East, 308; ... Springer, 49 N. J. Eq. 289; §§ 240, 
 Pope V. O'Hara, 48 N. Y. 446 ; Veghte 242, infra. 
 V. Earitan Co., 19 N. J. Eq. 142, 153 ; So Gray (Mass.), 302. 
 
254 KINDS OF REAL PROPERTY. 
 
 owned a right of flowage over land of the defendant. He gave 
 to the latter oral permission to erect a dam upon that land, in 
 such a position as to prevent the water from flowing over a 
 part of it which had formerly been covered by the water ; and 
 also an oral license to dig and maintain a drain, from the 
 land thus taken from the pond, through a portion of plain- 
 tiff's land to a stream. A few years thereafter, the plaintiff 
 attempted to revoke these licenses and compel the defendant 
 to remove the dam, and to cease to use and to fill up the ditch 
 which he had constructed for the drain. It was held that he 
 could not compel the removal of the dam, since that was upon 
 the licensee's land ; but that he might revoke the license for 
 the ditch upon his own land, and have his property restored to 
 its original condition. 
 
 The distinction here made is, in substance, that, if the 
 effect of the oral license be to destroy or impair an easement, 
 it can not be revoked by the licensor after the erection or 
 change which it authorizes has been made or commenced ; but 
 if the effect be to create or enlarge an easement, it may be 
 revoked by the licensor at any time. It follows that natural 
 servitudes, such as the right to the natural flow of a stream, 
 or to have one's soil supported by that of his neighbor, can 
 not be done away with or affected by oral permission to do 
 something upon the land of the licensee, since this would be, 
 in effect, the creation of an easement over the licensor's prop- 
 erty. If, for example, A, the owner of lower land, give to B, 
 the owner of higher adjoining land, the right to divert upon 
 B's land a stream which flows through both properties, or to 
 use up all or most of its waters, this is the creation of a nega- 
 tive easement over the land of A, the licensor; and the 
 statutes of frauds require such a contract to be in writing.^ 
 
 § 190. (b) Disclaimer, or Abandonment and Estoppel. — In 
 addition to an express release, which njay terminate any 
 easement or servitude, an abandonment of such rights, or the 
 ceasing to use them under circumstances which indicate an 
 intent not to resume their enjoyment and without any formal 
 or direct contract, may also do away with them. It is "a 
 settled doctrine of the law," says the New York Court of 
 Appeals, "that the landowner's right in an easement may be 
 destroyed by his abandonment of it, and that whether there 
 has been an abandonment is a question of intention depending 
 
 1 Veghte V. Karitan Co., 19 N. J. Eq. 142, 154. 
 
INCIDENTS OP EASEMENTS AND SERVITUDES. 255 
 
 upon the facts of the particular case."^ A careful examina- 
 tion of the facts of the cases, in which incorporeal rights have 
 heen held to have been abandoned by methods other than 
 express release, will show that practically all of such deci- 
 sions rest upon the doctrine of estoppel in pais; and that, 
 when that principle is not involved, the loss of the right is 
 in reality due to some cause other than mere abandonment, 
 such, for example, as adverse user or prescription. 
 
 In the leading case of Corning v. Gould,^ there was an 
 alley -way between the land of the plaintiff and that of the 
 defendant; and the centre line of the alley was the dividing 
 line between their two properties. The plaintiff built upon a 
 part of this way and ran a fence along the middle line of it, 
 thus leaving the other half of the alley within the enclosure 
 of his neighbor's land. In that condition the last-named land 
 was sold to the defendant, who then occupied exclusively that 
 portion of the alley which was inside of said dividing fence 
 and next to his own lot. The action having been brought for 
 damages for the obstruction of the way, it was held that, since 
 the plaintiff had built in such a manner as to evince an intent 
 to give up the right, and his neighbor had acted accordingly 
 in using the land, and the property had been sold under those 
 circumstances, the easement was at an end. In tl^e case of 
 Taylor v. Hampton,^ so frequently cited in connection with 
 this topic, the easement was a right to flow water upon 
 another's land for the raising of a mill pond. , The owner of 
 the mill removed it further up the stream, and established it 
 in a new place, in such a manner as to indicate that he meant 
 to keep it there permanently. The owner of the land, which 
 had been flowed but was now left bare by the change in the 
 location of the mill, converted it into a rice-field, cultivated 
 it, and subsequently sold it in that condition. It was held 
 that the owner of the mill, after retaining it in its new posi- 
 tion for nine years, could not restore it to its former site and 
 again flow the land thus used for the raising of rice. In each 
 of these cases, the owner of the right had so acted as to rep- 
 resent, or be reasonably presumed to have represented, that 
 he did not intend to use it again ; he had done this in such a 
 way as reasonably to induce the other to act upon the repre- 
 
 1 Foots V. Elevated Railroad, 147 2 le Wend. (N. Y.) 531. See also 
 
 N. Y. 367, 371 ; Lavagnino u. Uhlig, Partridge v. Gibert, 15 N. Y. 601. 
 198 U. S. 443. = 4 McCord (S. C), 96. 
 
256 KINDS OF REAL PROPERTY. 
 
 sentation^ and that other had justiiiedly so acted, and would 
 suffer injury in consequence if the representation were denied. 
 The former owner of the easement was accordingly estopped 
 to reclaim its enjoyment. So, where one who owned an ease- 
 ment over a street believed that he owned also the soil in fee 
 and wrongfully enclosed it, it was held that he had not thereby 
 abandoned his easement; but it was declared that an abandon- 
 ment would have resulted, if by his conduct others had been 
 induced to act on the belief that the right was extinguished.^ 
 There are probably no well-considered cases in which it has 
 been decided that the mere failure to enjoy an easement or ser- 
 vitude for less than the prescriptive period, however emphatic 
 may have appeared the intention to relinquish it, constituted 
 a destruction of the right, unless the party favorably affected 
 thereby had changed his position, or might at least reasonably 
 be presumed to have changed it, on the faith of the represen- 
 tation thus made. 2 In Moore v. Rawson,^ which has been 
 called the leading case upon this topic, it was held that the 
 plaintiff, after taking down a wall containing windows for 
 which he had an easement in the light and air over his neigh- 
 bor's lot and building a solid blank wall in its place, couid 
 not recover against the adjoining owner for an obstruction to 
 the light and air of windows which he subsequently opened in 
 
 1 White's Bank v. Nichols, 6-t N. Y. H. R. E. Co., 156 N. Y. 474, 485, citing 
 
 65 ; also White v. M. R. Co. 139 N. Y. the above cases and Ward v. Met. El. 
 
 19; Snell V. Leritt, 110 N. Y. 595. In R. Co<, 152 N. Y. 39. 
 
 commenting upon the last two cases ^ Mr. Washburn reaches this same 
 
 cited the New York Court of Appeals conclusion as to title to corporeal here- 
 
 says: "The peculiar features in the ditaments. After summarizing tlie cases, 
 
 White and Snell cases, which have he concludes :" It is probably, therefore, 
 
 been referred to, were, in the one an not too strong a conclusion to assert, that 
 
 express authorization to build the ele- in no case can a man lose his title to a 
 
 vated railroad, and, in the other, an ex- freehold in land by any act or oral decla- 
 
 press relinquishment of an easement to ration of abandonment, unless it comes 
 
 conduct water ; upon both of which agree- within the category of estoppel, or is 
 
 ments the parties favoraUji affected thereby followed by such a possession by the 
 
 had acted." Foote v. El. R., 147 N. Y. person claiming title thereto in his 
 
 367, 371. And again the same court stead as brings the case within the stat- 
 
 says : " This court has several times held ute of limitations." 3 Wash. R. P. (5tli 
 
 that a release or abandonment of the ed.) p. 72, p. * 457, par. 5 (see 6th ed. 
 
 easement of light, air, and access which § 1888). See also Vogler v. Geiss, o\ 
 
 are appurtenant to property abutting Md. 407,411; Pope u. I)evereux, 5 Gray 
 
 upon a public street may be established (Mass.), 409 ; Erb u. Brown, 69 Pa. St. 
 
 by any evidence which clearly indicates 216; Collins u. St. Peters, 65 Vt. 618; 
 
 an intention upon the part of an abut- Ermentrout v. Stitzel, 170 Pa. St. 540; 
 
 ting owner to abandon the right, at Dyer v. Sanford, 9 Met. (Mass.) 395, 
 
 least where it has been acted upon by the 402. 
 
 mher party." Conabeer v. N. Y. C. & '3 Barn. & C. 332 
 
INCIDENTS OF EASEMENTS AND SERVITUDES. 257 
 
 the new wall. And the decision was placed upon the ground 
 that " By building the blank wall he may have induced 
 another person to become the purchaser of the adjoining 
 ground for building purposes, and it would be most unjust 
 that he should afterwards prevent such person from carrying 
 those purposes into effect."^ This is as far as either reason 
 or authority appears to carry the principle. And the fol- 
 lowing statement of Lord Campbell, C. J., in speaking of the 
 intention to abandon and the communication of that intention 
 to the servient owner, appears to be in accord with the weight 
 of authority, both ancient and modern. He says : " I doubt 
 whether the communication of that intention destroys tlie 
 right until the communication is acted upon. Then it cer- 
 tainly does. " ^ It follows that mere use of an easement for a 
 purpose not authorized, its excessive use or misuse, or the 
 failure to employ it for a brief time, is not in itself sufficient 
 to constitute an abandonment. These acts do not of them- 
 selves make such repi-esentations as, when acted on by the 
 other party, preclude the owner of the right from subsequently 
 insisting on its enjoyment.^ 
 
 When the giving up of the right is in favor of the public, 
 and the offer so made is accepted by the public, an aban- 
 donment by dedication results. In the case of Kegina v. 
 Chorley,* where the defendant owned a private right of way 
 to his malt house over the plaintiff's land, the court said 
 that if he had removed the house and walled up the entrance 
 and acquiesced in the use of the road by the public, this 
 would have been an abandonment of the easement. So, when 
 a railroad company removes its tracks from a public street in 
 a way which indicates a relinquishment of its rights therein, 
 or a telegraph or telephone company takes down its poles and 
 wires so as to leave the public highway unobstructed, an 
 abandonment of such rights results from the fact that there is 
 a dedication to the public of the unobstructed street or road.^ 
 In the last analysis, these methods also are abandonments 
 
 1 Wash. Ease. (4th ed.) p. 712, r. Cook, 39 N. J. Eq. 396; Duncan u. 
 p. *547. Rodecker, 90 Wis. 1. 
 
 2 Stokoe V. Singers, 8 E. & B. 31,39. * 12 Q. B. 515. 
 
 " Roby V. N. Y. C. & H. R. R. Co., ^ Jones v. Van Bochove, 103 Mich. 
 
 142 N. Y. 176, 181; White's Bank ■;. 98; Henderson u. Central Pass. R. Co., 
 
 Nichols, 64 X. Y. 65 ; Hayford v. Spokes- 21 Fed. Rep. 358 ; Hickox v. Chicago & 
 
 field, 100 Mass. 491; Jamaica Pond C. S. Ry. Co., 78 Midi. 615; Roanoke 
 
 Aqueduct Co. i-. Chandler, 121 Mass. 3 ; Investment Co. v. Kansas City & S. E. K. 
 
 Vinton v. Greene, 158 Mass. 426; Chew Co., 108 Mo. 50. 
 
 17 
 
258 KINDS OP BBAL PROPERTY. 
 
 resulting from estoppel in pais ; since it is the act of the 
 public, upon the faith of the representation made by the owner 
 of the right, which completes the destruction of the easement 
 or servitude. If, therefore, the public have not acted on the 
 assumption of the relinquishment of an easement, its owner 
 may restore it and use it again. -^ 
 
 There are a few cases in which incorporeal rights have 
 been said to have been abandoned, where the owners have 
 simply ceased to use them during the entire prescriptive 
 period, or they have been adversely obstructed by the servient 
 tenant during that length of time.'^ While it is, of course, 
 true, in the broad sense of the term, that one does abandon 
 such property by giving it up for so long a time as to preclude 
 himself from subsequently claiming it, it is equally apparent 
 that the destruction of easements and servitudes in such ways 
 is logically to be discussed under the topics non-user and 
 adverse obstruction or prescription. These methods of losing 
 such rights are to be next examined. 
 
 The burden of proving an abandonment, thus resting upon 
 the doctrine of estoppel in pais, is upon him who asserts that 
 the easement or servitude has been so extinguished; and 
 he must support his contention by clear and unequivocal 
 evidence.^ 
 
 § 191. (c) Non-user. — Mere non-user for any length of 
 time of an easement or servitude arising, by any method other 
 than prescription does not of itself work an extinguishment.* 
 The fact that the right has not been enjoyed for a long period 
 is an item of evidence, to aid in proving an abandonment; 
 but, in order to make such proof complete, an intention to 
 
 1 Hestonville M. & F. Pass. R. Co. Beaver Brook Reservoir Co. v. St. Vrain 
 
 V. Phila., 89 Pa. St. 210. Reservoir Co., 6 Colo. App. 130. 
 
 '' Crossley v. Lightowler, L. R. 2 * Crossley v. Lightowler, 3 Eq. 279 ; 
 
 Ch. App. 478, 482 ; Veghte v. Raritan, Carr v. Foster, 3 Q. B. 581 ; Canabeer 
 
 etc. Co., 19 N. J. Eq. 142, 156; Pres- v. N. Y. C. & H. R. R. Co., 156 N. Y. 
 
 cottu. Phillips, cited 6 East, 213; Hil- 474; Hennessy v. Murdock, 137 N. Y. 
 
 Isiry V. Waller, 12 Ves. 239, 265. See 317; Welsh )'. Taylor, 134 N. Y. 450; 
 
 Srayles v. Hastings, 22 N. Y. 217, 224; White o. Manhattan R. Co., 139 N. Y. 
 
 Steere v. Tiffany, 13 R. I. 568 ; Wilder 19 ; Horner v. Stillwell, 35 N. J. L. 307 ; 
 
 V. St. Paul, 12 Minn. 192, 208; Hall v. Dill v. Camden Board of Education, 47 
 
 McCaughey, 51 Pa. St. 43; Owen v. N. J. Eq. 441 ; Butterfield v. Reed, 160 
 
 Field, 102 Mass. 90, 114; Corning Mass. 361; Eddy v. Chace, 140 Mass. 
 
 V. Gould, 16 Wend. (N. Y.) 531, 535. 471; Steere v. Tiffany, 13 R. I. 568; 
 
 * Hennessy v. Murdock, 137 N. Y. Lathrop v. Eisner, 93 Mich. 599 ; Pa. K. 
 
 317, 325 ; Richardson v. McNulty, 24 Co. v. Borough of FreeporC, 138 Pa. St. 
 
 Cal. 339 ; Waring v. Crow, 1 1 Cal. 366 ; 91. 
 
INCIDENTS OP EASEMENTS AND SERVITUDES. 259 
 
 relinquish and an estoppel in pais must be established by all 
 the evidence, and this is not accomplished by showing non- 
 user alone. ^ The owner of the privilege is under no obliga- 
 tion of any kind to use it, unless he has voluntarily assumed 
 such obligation ; and, therefore, while he merely fails to enjoy 
 it, he is to be considered as still retaining his claim until the 
 contrary is clearly shown against him. 
 
 The same reasoning may appear to apply to an easement 
 or servitude acquired by prescription. But there are numer- 
 ous dicta, by the best courts, to the effect that rights which 
 have been obtained in that manner may be extinguished 
 simply by the subsequent failure of their owners to make use 
 of them during the prescriptive period. Thus, it has been 
 said by the New York Court of Appeals that "A right ac- 
 quired by prescription may be lost by non-user ; but it cannot 
 be lost or extinguished by mere non-user, when it has been 
 acquired by deed. " ^ Bracton declared that " incorporeal 
 rights acquired by use may be equally lost by disuse."* The 
 same statement was made by Lord Erskine in Hillary v. 
 Waller,'' and by Judge Story in Hazard v. Robinson;^ and 
 in Corning v. Gould, ^ after stating that Mr. Evans and 
 Chancellor Kent inclined, with the civil law, to the rule 
 that something more than mere non-user for the prescriptive 
 term is necessary to work a legal destruction of such a right, 
 Judge Cowen says : " The doctrine in the English and Amer- 
 ican cases cited is otherwise, and, in 182.S, the court of 
 appeals, in Maryland, expressly recognized the effect of simple 
 non-user." In many cases, moreover, the judges are careful 
 to state that easements "created by grant" can not be de- 
 stroyed by non-user alone, thus implying the opinion that 
 they might be so done away with if they arose by prescription.^ 
 On the other hand, there are several judges and writers who 
 have discarded this distinction. In Veghte v. Raritan Water 
 Power Co.,® for example, Chancellor Zabriskie said: "I do 
 not find any decisions founded on this distinction, and it 
 
 1 Moore «. RawsoD, 3 Barn. &C. 332; ' Bract. Lib. 4; 3 Kent Comn}. p. 
 Eddy V. Chace, 140 Mass. 471 ; Roby v. *448, note. 
 
 N. Y. C. & H. R. R. Co., 142 N. Y. 176 ; * 12 Ves. 239, 265. 
 
 White'fl Bank W.Nichols, 64 N.Y. 65, 74; *3 Mason (U. S. Cir. Ct,), 27^ 
 
 Pratt V. Sweetser, 68 Me. 344. 276. 
 
 2 Smyles v. Hastings, 22 N. Y. 217, « 16 Wend. (N. Y.) 531, 536. 
 223. ' First tvro notes to this section. 
 
 8 19 N. J. Eq. 142, 156. 
 
260 KINDS OP REAL PROPERTY. 
 
 would seem to be unfounded, as prescription is based upon 
 the presumption of a grant." 
 
 The most satisfactory theory upon which are based pre- 
 scriptive rights is the presumption of a grant or some other 
 legal origin.'^ If such a presumption can arise from a pre- 
 scribed period of user, it is logical and just to assume, from 
 an equal period of non-user, that the right never in fact 
 existed, or that it has been in some legal way extinguished. ^ 
 For the purpose of quieting titles and preventing litigation 
 over stale claims, the servient tenant should be allowed to 
 overcome the effect of proof of use for twenty years by counter 
 proof of subsequent failure to enjoy for twenty years. But 
 the only instances in which mere non-user should produce 
 such a result are those in which the owners of the rights 
 have voluntarily failed to employ them during the prescriptive 
 period. A continuous easement — such, for example, as the 
 right to have water flow from a stream upon one's land for 
 irrigation purposes — should not be lost because its usefulness 
 was interrupted for a long time by natural causes ; as, in the 
 case supposed, by the natural failure of the stream for many 
 years to rise to a sufficient height to supply the irrigating 
 waters. 
 
 Discontinuous easements gained by prescription and con- 
 tinuous rights so acquired, which are intentionally shut off 
 and relinquished by their owners, should be extinguished by 
 their non-user during the prescriptive period. While there is 
 a scarcity of actual adjudications in favor of this proposition, 
 yet, as shown above, it has many strong dicta for its support 
 and is not opposed by any decided cases.' 
 
 In some of the western states and territories of this 
 country, and in Louisiana, it is expressly provided by statute 
 that easements obtained by prescription may be lost by the 
 subsequent failure of their owners to enjoy them during the 
 prescriptive period.^ 
 
 § 192. (d) Adverse Obstruction, or PrescriptioD. — It has 
 been shown that the cessation of the user of a prescriptive 
 easement or servitude, for the period of time requisite to gain 
 title by prescription, is regarded by some courts as sufficient 
 
 1 § 163, supra. Dak. Rev. Code (1895), §§ 3351-3361 ; 
 
 ^ Corningu. Gould, 16 Wend. (N.Y.) S. Dak. Comp. Laws (1887), §§2760- 
 
 531,535. 2770; La. Code, §§ 790-804; 1 Stim. 
 
 ' Cal. Civ. Code,§§ 801-811 ;. Mont. Amer. Stat. L. §§ 2157, 2290. 
 Civ. Code (1895), §§ 1250-1260; N. 
 
INCIDENTS OP EASEMENTS AND SEBVITUDES. 261 
 
 of itself to extinguish the right, i It has also been explained 
 how non-user for any considerable length of time, accom- 
 panied by acts or representations on the part of the dominant 
 owner, which may be assumed to be meant to induce the servi- 
 ent tenant to act upon them, and which have that effect and 
 so work an estoppel in pais, results in a destruction of ease- 
 ments and servitudes by abandonment. ^ The owner of the 
 privilege or claim is, in both of these cases, the one who 
 causes its destruction. When, on the other hand, the ser- 
 vient proprietor adversely shuts off in some way the enjoy- 
 ment of the incorporeal right, and this continues during the 
 entire prescriptive period, the termination of the easement or 
 servitude is caused by adverse obstruction, or prescription. ^ 
 If, for example, one have the right to flow the land of another 
 for the purpose of raising a mill pond, the continued, peace- 
 able, and uninterrupted occupation of the land by its owner 
 for twenty years or more, under a claim adverse to the 
 right of flowage, extinguishes the easement.* And if the 
 servient tenant build a wall, fence, or house across a way 
 which is owned by his neighbor, and thus for twenty years 
 prevent the enjoyment of the road or path, the easement is 
 thereby done away with.^ 
 
 In order thus to extinguish such an incorporeal right, the 
 adverse obstruction or denial of the right must have the same 
 requisites as those heretofore summed up as necessary to the 
 acquisition of easements by prescription.^ And this means, 
 in brief, that the acts or conduct of him who is so destroying 
 the right must be of such a nature as to expose him to an 
 action ac law or in equity brought by the owner of the ease- 
 ment or servitude at any time before the period of prescription 
 is complete.^ In the process of destroying this property 
 right of the dominant owner, the hostile party is in reality 
 
 ^§191, supra. v. Nace, 2 Whart. (Pa.) 123, 125; 
 
 2 § 190, supra. Shields v. Arndt, 4 N. J. Eq. 234. 
 
 8 Woodruff I/. Paddock, 130 N. Y. 1= Smyles v. Hastings, 22 N. Y. 217 ; 
 
 618; Townsend v. McDonald, 12 N. Y. Chandler v. Jamaica Pond Aqueduct 
 
 381 ; Dill V. Camden Board of Ednca- Co., 125 JIass. 544 ; Horner v. Stillwell, 
 
 tion, 47 N. J. Eq. 441 ; Smith v. Lange- 35 N. J. L. 307 ; James v. Stevenson 
 
 wald, 140 Mass. 205; Wimeru. Simmons, (1893), App. Cas. 162; Mason u. Hor- 
 
 27 Oreg. 1 ; Yankee Jim's Water Co. v. ton, 67 Vt. 266. 
 
 Crary, 25 Cal. 504. ' Cases cited in preceding note ; 
 
 * Chandler v. Jamaica Pond Aque- also State v. Suttle, 115 N. C. 784; 
 
 duct Co., 125 Mass. 544. Humphreys v. Blasingame, 104 Cal, 40; 
 
 ■"' Drewett v. Sheard, 7 C. & P. 465 ; Sullivan v. Zeiner, 98 Cal. 346 ; §§ 155- 
 
 Welsh V. Taylor, 134 N. Y. 450 ; Yeakle 162, supra. 
 
262 KINDS OP REAL PROPERTY. 
 
 acquiring an adverse right against him ; and it must be shown 
 that such adverse right was obtained in the manner required 
 for the gaining of prescriptive titles. ^ When the requisites 
 thus demanded are established, the result may be the destruc- 
 tion of any easement or servitude, no matter by what method 
 it was acquired.^ 
 
 § 193. (e) Destruction of that upon -which the Right de- 
 pends. — The partial destruction of the servient property does 
 not extinguish an easement or servitude, provided enough of 
 it remains to enable the owner of the right to continue its 
 enjoyment. 2 But, when that in, upon, or over which the right 
 exists has been so substantially destroyed that it can not be 
 used as it formerly was, the easement or servitude is done 
 away with,* unless the parties have directly stipulated to the 
 contrary,^ or subsequently act in such a manner as to show an 
 intention to have the right continued.® 
 
 Thus, a right of way through the halls and stairways of a 
 house, whether to reach the upper stories of the same build- 
 ing or to enter other structures of the dominant owner, is 
 ended by the destruction of the house ; and the owner of 
 the easement can not compel its restoration by requiring 
 that the house, or any part of it, shall be rebuild So, where 
 one house is supported by the wall of another, or both build- 
 ings make use of a party wall erected upon the dividing line 
 between them, the substantial destruction of the wall, even 
 though its foundation may still remain, terminates the ease- 
 ments enjoyed in it by the landowners.* Likewise, where the 
 land, to which a right of way over adjoining property was 
 appurtenant, was entirely taken away from its owner by a 
 change in the bed of the Mississippi River, the easement was 
 thereby destroyed.^ And a way granted to a widow, to enable 
 her to enjoy her dower land, ceases when she dies and her 
 dower interest is thereby terminated.^* 
 
 i State V. Suttle, 115 N. C. 784. s Heartt v. Kruger, 121 N. Y. 386 ; 
 
 2 Mason v. liorton, 67 Vt. 266 ; Partridge v. Gibert, 15 N. Y. 601 ; 
 
 Welsh V. Taylor, 134 N. Y. 450 ; Wood- Pierce v. Dyer, 109 Mass. 374 ; Bonney 
 
 bury w. Allan, 215 Pa. St. 390; Swedish «. Greenwood, 96 Me. 335. Bat, bycon- 
 
 E. L. Church v. Jaclison, 229 ill. 506. tract, the parties may make such a wall 
 
 ' Bonuey v. Greenwood, 96 Me. 335. right permanent. O'Neil v. Van Tassel, 
 
 * Shirley «. Crabb, 138 Ind. 200 ; 137 N. Y. 297. 
 
 Heartt v. Kruger, 121 N.Y. 386 ; Pierce » Weis v. Meyer, 55 Ark. 18. 
 
 V. Dyer, 109 Mass. 374. i" Hoffman v. Savage, 15 Mass. 130; 
 
 6 O'Neil w. Van Tassel, 137 N.Y. 297. also Central Wharf v. India Wharf, 
 
 " Douglas V. Coonley, 156 N.Y. 521. 123 Mass. 561, 567; Mussey </. Union 
 
 I Shirley v. Crabb, 138 Ind. 200. Wharf, 41 Me. 34. 
 
INCIDENTS OF EASEMENTS AND SEHVITUDES. 263 
 
 In like manner, if an easement exist as appurtenant simply 
 to a certain dwelling-house, mill, or other structure, and the 
 building to which it so belongs be destroyed, the right is 
 thereby brought to an end. But a distinction must be here 
 carefully noted between such a privilege as appurtenant to the 
 land generally, though used for the benefit of a building upon 
 it, and one simply appurtenant to the building as such. In 
 the latter case, the destruction of the building terminates the 
 easement ; while, in the former, the right continues in favor 
 of similar structures erected in place of that for which it was 
 at first enjoyed. 1 So if the structui-e, in connection with 
 which alone an easement exists, be destroyed and then within 
 a reasonable time rebuilt in substantially the same form in 
 which it was before, the right revives in favor of the domi- 
 nant owner. The owner of a house and lot had a right to the 
 use of the stairway of his neighbor's building, and thence 
 through a door in a party wall to his own rooms above. Both 
 houses having burned, they were rebuilt in practically the 
 same form in which they had previously existed. In an 
 action to recover again the use of the stairway and door 
 through the party wall, it was held that, while the owner of 
 the servient property might have built differently or not at 
 all, and thus might have wholly destroyed the easement which 
 had been suspended, yet the building of the houses as they 
 were before showed that their owners considered this as the 
 best way to use the properties ; and the easement accordingly 
 revived.^ 
 
 § 194. (f) Eztinguishment and Suspension by Union of the 
 Dominant and Servient Estates. — Since the ownership of 
 property carries with it the right to its general use and 
 enjoyment, ordinarily no person can have an easement or 
 servitude over his own land. He employs it as he may please, 
 as his own, and not by virtue of any rights against any other 
 person or property. Therefore the union of the dominant 
 and servient estates, in the same person and in one and the 
 same right, will usually extinguish an easement which has 
 belonged to the former estate.^ Accordingly, where the' 
 
 1 Day V. Walden, 46 Mich. 575, 586. Shirley v. Crabb, 138 Ind. 200 ; Hoff- 
 
 The land of course remaining, the right man v. Kuhn, 57 Miss. 746. 
 which is appurtenant to the land, rather s James v. Plant, 4 Add. & El. 749 ; 
 
 than to the building, remains. That on Dynevor v. Tennant, L. R. 13 App. 
 
 which it depends is not destroyed. Cas. 279; Damper v. Bassett (1901), 
 
 ^ Douglas-w. Coonley, 156 N. Y. 521 ; 2 Ch. 350; Atlanta Mills v. Mason, 12 
 
264 KINDS OP REAL PROPERTY, 
 
 absolute owner of a parcel of land, to which was appurtenant 
 the right of . drawing water through aqueduct pipes over adja- 
 cent property, bought the servient tenement, the easement 
 was at once extinct. ^ And when the owner of a right of way 
 purchased the field over which the pathway ran, the easement 
 as such was at an end.^ 
 
 But, in order that an extinguishment may thus result, the 
 person who acquires the two tenements must have at the same 
 time the same estate of inheritance in both, " equal in valid- 
 ity, quality, and all other circumstances of right. " ^ And, if 
 his title to one of them be defeated because it was not perfect, 
 as he supposed, the union in him of the possession and seisin 
 of the two pieces of land will not be held to have destroyed 
 the easement previously existing.* It follows that, when the 
 owner of only an undivided interest in one of the tenements, 
 such as one of several joint-tenants or tenants in common 
 thereof, acquires title to the other tenement, or when the 
 owner in severalty of one of the pieces obtains an undivided 
 interest in the other, the uniting of such titles in him does 
 not extinguish an easement.^ 
 
 It is also a consequence of the principle last stated that, 
 when the same person is the absolute owner of one of the 
 parcels of land (in fee), and of the other for life, or for a term 
 of years however long or short it may be, this does not result 
 in the destruction of any easement or servitude. It simply 
 suspends any such rights during the continuance of the tem- 
 porary estate; and they revive again when the possession 
 and enjoyment of the two tenements are again separated, as 
 by the death of the life tenant or the expiration of the estate 
 for years. ^ 
 
 Mass. 244 ; Parsons v. Johnson, 68 N. Y. * Tyler v. Hammond, 1 1 Pick. 
 
 62, 66 ; Denton v. Leddell, 23 N. J. Eq. (Mass.) 193. 
 
 64; Zerbey u. Allan, 215 Pa. St. 383; ' Atlanta Mills v. Mason, 120 Mass. 
 
 Dority v. Dunning, 78 Me. 381 ; Plimp- 244. The most that could ever result 
 
 ton V. Converse, 42 Vt. 712 ; Mclllister from such a partial unity of ownerships 
 
 I). Devane, 76N. C.57; Howell u. Estes, would be a temporary suspension of 
 
 71 Tex. 690. the right while the co-tenant of one 
 
 1 Nichols V. Chamberlain, Cro. Jac, piece was the entire owner of the other ; 
 121 ; Sucy v. Pigot, Poph. 166. and a complete revival and restoration 
 
 2 Parsons v. Johnson, 68 N. Y. 62. of it when by sale or otherwise such par- 
 8 2 Wash. R. P. (6th ed.) § 1316, tial merger of the two estates was ter- 
 
 p. * 85 ; Thomas v. Thomas, 2 Cr. M. & minated. Bradley Fish Co. o. Dudley, 
 
 K. 34, 41 ; Dority v. Dunning, 78 Me. 37 Conn. 136, 144. 
 381; Tyler v. Hammond, 11 Pick. « Thomas u. Thomas, 2 Cr. M. & R. 
 
 (Mass.) 193, 195 ; Atlanta Mills v. 34, 41 ; Pearce v. McClenaghan, 5 Rich. 
 
 Mason, 120 Mass. 244. (S. C.) 178; Dority v. Dunning, 78 
 
INCIDENTS OP BASEMENTS AND SERVITUDES. 265 
 
 It is to be added that, even in cases where such rights have 
 been wholly extinguished by the coming together of the two 
 estates, if the ease or accommodation, which when the two 
 parcels of land were separately owned constituted an ease- 
 ment or servitude in or over one of them in favor of the other, 
 remain as apparent and reasonably necessary to the enjoyment 
 of that which had been the dominant tenement, then, upon the 
 division of the two corporeal properties again by the convey- 
 ance of one of them, it will again come into existence as an 
 easement or servitude, although no express words to that 
 effect are used in the instrument of conveyance.^ But it is 
 not accurate to speak of such a result as the revival of a pre- 
 existing right, which had been dormant or suspended for a 
 season. It is the creation of a new right, similar to or identical 
 with that which had existed before. When it is an easement, 
 such as a right of way or a right of drainage, it is brought 
 into existence by implied grant upon the severance of an 
 entire estate.^ When it is a mere servitude, such as the 
 right to lateral support of soil or to the ordinary flow of a 
 stream, it is a right which exists again as such by nature 
 as soon as the two ownerships are distinct.^ When an 
 easement is merely suspended by the temporary union of 
 the two tenements, the possessor of them can not lawfully 
 destroy the right, or prevent it from reviving when they 
 are again separated.* But, when the permanent union of 
 the two titles extinguishes an incorporeal hereditament, their 
 owner is, of course, at liberty to so alter their condition 
 as to prevent any such right from ever again springing into 
 existence; or he may do this by an express denial of the 
 right to his grantee in the conveyance of one of the parcels 
 of land.^ 
 
 Me. 381 ; Hollenbeck v. McDonald, 112 ^ §§ 139^ 140, supra; Spencer v. Kil- 
 
 Mas8. 247; Brewster v. Hill, 1 N. H. mer, 151 N. Y. 390. 
 
 350; Chapman w. Gray, 15 Mass. 439; ' § 181, supra; Johnson v. Jordan, 2 
 
 Gay, Petitioner, 5 Mass, 419. Met. (Mass.) 234; Collier v. Pierce, 7 
 
 1 Fritz V. Tompkins, 168 N. Y. 524 ; Gray (Mass.), 18, 20. 
 
 Grant v Chase, 17 Mass. 443; McCarty * Ibid. 
 
 V. Kitchenman, 47 Pa. St. 239; In re ' Manning 0. Smith, 6 Conn. 289; 
 
 Bull, 15 R. I. 534; Miller v. Lapham, Collier v. Pierce,. 7 Gray (Mass.), 18, 
 
 44Vt. 416; Ferguson y. Witaell, 5 Rich. 20; Johnson .■. .Jordan, 2 Met. (Mass.) 
 
 (S. C.) 280 ; Rightsell v. Hale, 90 Tenn. 234, 239 ; Huttemeier i'. Albro, 1 8 N. Y. 
 
 556; Dnnklee v. Wilton R. Co 24 48; Parsons v. Johnson, 68 N. Y. 62; 
 
 N. H. 489. Duval v. Becker, 81 Md. 537. 
 
266 KINDS OF REAL PROPERTY. 
 
 § 195. (g) Eztiuguishment by Ziscessive Claim or User. — 
 The owner of an easement or servitude has no right, merely 
 of his own volition, to increase its burden! upon the servient 
 property ; and, if he do so, it is settled that the owner of the 
 latter may recover damages at law for the injury or enjoin 
 its continuance by a suit in equity.^ It was, at one time, 
 thought to be the law of England that, for such unauthorized 
 excessive use or claim, the owner of the privilege might be 
 compelled to relinquish it altogether and that the servient 
 land should in consequence be relieved of the entire burden. ^ 
 But the rule now established, both there and in so far as the 
 question has arisen in this country also, is that, if that 
 which is wrongfully and excessively claimed or enjoyed can 
 be distinguished and separated from that which is rightfully 
 owned, this will be done and only the excessive amount will 
 be taken away and prohibited.^ When, however, such sepa- 
 ration and distinction can not be made, the prohibition of the 
 excessive claim results in the destruction also of the entire 
 original right.* Thus, in a number of cases in which the 
 owner of a house enjoying an easement in light and air has 
 enlarged the window and sought thus to impose an additional 
 burden upon his neighbor's land, the question has arisen as 
 to whether for that reason the entire window could be closed, 
 or whether simply the excessive portions could be darkened ; 
 and it has been held that only the latter remedy could be 
 enforced if the original window could be certainly located and 
 restored.^ But where the owner of a stable, the boards on 
 which had shrunk so that he could put small window-panes 
 into the crevices, made diminutive windows in this way; 
 and, after he had acquired a prescriptive right under the 
 
 1 Wood V. Copper Miner's Co., 14 HI; McCuUough v. Broad Exchange 
 C. B. 428, 446; Sharpe v. Hancock, 7 Co., 101 N. Y. App. Div. 566, afE'd 184 
 Mann. & G. 354 ; Chandler o. Thomp- N. Y. 592 ; Bremer v. Manhattan R. 
 son, 3 Camp. 80; Mendell v. Delano, 7 Co., 191 N. Y. 333, 338; Mendell v. 
 Met. (Mass.) 176. Delano, 7 Met. (Mass.) 176; McDonald 
 
 2 Garritt B. Sharp, 3 Adol. & E1.325; u. Bear River Co., 13 Cal. 220; Carlisle 
 Jones u. Tapling, 11 C. B. N. s. 283; v. Cooper, 6 C. E. Green (N. J.), 576, 
 Blanchard v. Bridges, 4 Adol. & El. 595. 
 
 176 ; Cherrington v. Abney Mill, 2 Vern. * Blanchard v. Bridges, 4 Adol. & El. 
 
 646; Hutchinson «. Copestalie, 9 C. B. 176; Hutchinson v. Copestake, 9 C. B.- 
 
 N. s. 863 ; Renshawu. Bean, 18 Q. B. 112. n. a. 863 ; Benshaw ». Bean, 18 Q. B. 
 
 3 Luttrel's Case, 4 Rep. 84 b, 86; 112. 
 
 Chandler •.-. Thompson, 3 Camp. 80; * Luttrel's Case, 4 Rep. 86, 89; 
 
 Tapling v. Jones, 13 C. B. n. s. 876; Chandler v. Thompson, 3 Camp. 80; 
 Renshaw v. Bean, 18 Adol. & El. n. s. Tapling v. Jones, 13 C. B. n. s. 876. 
 
INCIDENTS OF BASEMKNTS AND SERVITUDES. 267 
 
 English doctrine of ancient light, gradually widened the 
 openings and then placed in larger windows, it was decided 
 that, since the rightful claim could not be restored to its 
 original condition, the neighboring landowner might build in 
 such a manner as entirely to shut out the light and air from 
 the windows.^ It is conceived that this distinction is sound; 
 and that whether or not an excessive claim may result in 
 extinguishing an easement or servitude is to be determined 
 by the general principle of law that a right will not be lost 
 or destroyed by its connection or association with a wrong, 
 if the two things can be fairly and accurately separated.^ 
 
 § 196. Remedies for Obstructions or Injuries to Easements 
 and Servitudes. — When the servient tenant does or permits 
 anything which interferes with the enjoyment of an easement 
 or servitude, its owner has one or more of three different 
 remedies ; namely, abatement, an action at law for damages, 
 and a proceeding in equity. 
 
 When the use of the right is obstructed, as by a wall, or 
 gate, or house, the party thereby injured may lawfully remove 
 the obstacle, if he can do so without any breach of the peace. ^ 
 And, when a public way or servitude is so interfered with, 
 any citizen who is thereby inconvenienced may remove the 
 obstruction. Such acts of removal are abatements of nui- 
 sances. "And the reason why the law allows this private 
 and summary method of doing one's self justice is because 
 injuries of this kind, which obstruct or annoy such things as 
 are of daily convenience and use, require an immediate remedy, 
 and can not wait the slow progress of the ordinary forms of 
 justice."* 
 
 Or he whose right is thus interfered with may maintain 
 an action at law — usually trespass on the case, or simply 
 an action for damages under the codes — for each distinct act 
 
 1 Garritt v. Sharp, 3 Adol. & El. 325. right of way is established, the party 
 
 ^ The principle appears, in the law entitled to it may assert the right at 
 
 of personal property, in the rules appli- common law, and may, after notice 
 
 cable to confusion of goods. 2 Blackst. and request to remove the obstructing 
 
 Com. p. *405. house, pull it down, although it is act- 
 
 8 Sargent v. Hubbard, 102 Mass. 380 ; ually inhabited ; and under such circum- 
 
 Morgan v. Boyes, 65 Me. 124 ; Quintard stances a court of equity will grant leave 
 
 V. Bishop, 29 Conn. 366 ; Joyce v. Con- to the party entitled to the way ... to 
 
 iin, 72 Wis. 607. pursue any remedies or to do any acts 
 
 ^ Chase's Blackst. p. 621. "Although he can lawfully take or do to abate the 
 
 the court may have refused a mandatory obstruction." Jones, Ease. § 891, citing 
 
 injunction for the removal of a house Laue v. Capsey (1891), 3 Ch. 411; 
 
 which obstructed a right of way, if the Davies v. Williams, 16 Q. B. 546. 
 
268 KINDS OP REAL PROPERTY. 
 
 of injury to his easement or servitude.^ When the plaintiff 
 is in possession of land to which the right is appurtenant, he 
 may have an action for any injury to such right. Thus, a 
 tenant at will, or for years, a life tenant or an owner in fee 
 simple may then maintain his action.^ A person not in posses- 
 sion — a reversioner or remainderman — has a right of action 
 when the wrong done is of such a permanent character that his 
 interest in the land is thereby injuriously affected.^ (a) 
 
 Generally, when the owner of an easement or servitude has 
 at law a complete and adequate remedy for an interruption of 
 his right or an interference with it, equity will not entertain 
 any application for relief.* But, when the court of law affords 
 
 (o) In New York, the owner or possessor of what is claimed by another 
 to be the servient tenement of an easement or servitude may also have an 
 action for the determination of such claim. " Where a person has been, or 
 he and those, whose estate he has, have been for one year in possession of 
 real property, or of any undivided interest therein, claiming it in fee, or 
 for life, or for a term of years not less than ten, he may maintain an action 
 against any other person to compel the determination of any claim adverse 
 to that of the plaintiff, which the defendant makes to any estate in that 
 property, . . . including any claim in the nature of an easement therein, 
 whether appurtenant to any other estate or lands or not." N. Y. Code 
 Civ. Pro. § 1638. And the procedure in such an action is fully prescribed 
 in the following sections of that code, §§ 1639-1650. 
 
 1 Osborne v. Butcher, 26 N. J. L. Hoffman, 79 Pa. St. 71. Actual loss to 
 
 308; Hancock v. McAvoy, 151 Pa. St. one's business, occasioned by the nui- 
 
 460; Bowers v. Suffold Mfg. Co., 4 sance, may be included; and when a 
 
 Cush. (Mass.) 322; Child v. Chappell, stream used for irrigation purposes is 
 
 9 N. Y. 246. diverted, the damages embrace the 
 
 2 Baxter v. Taylor, 4 Barn. & Ad. amount of injury accruing from con- 
 
 72 ; Hamilton v. Dennison, 56 Conn. sequent loss of crops. Shafer v. Wilson, 
 
 359; Hastings v. Livermore, 7 Gray 44 Md. 268, 280; Schile u. Brokhahus, 
 
 (Mass.), 194; Noyes v. "Hemphill, 58 80 N. Y. 614; Ellis v. Tone, 58 Cal. 
 
 N. H. 536, 557; Com. Dig. Action on 289; Hanover Water Co. v. Ashland 
 
 the Case for a Nuisance, B. Iron Co., 84 Pa. St. 279. See also 
 
 3 BeU V. Midland R. Co., 10 C. B. White t>. Dresser, 135 Mass. 150 ; Our- 
 
 N. 8. 287 ; Metropolitan Ass'n v. Fetch, sler v. B. & 0. R. Co., 60 Md. 358 ; 
 
 5 C. B. N. s. 504 ; Brown ■;. Bowen, 30 Demuth u. Amweg, 90 Pa. St. 181. 
 
 N. Y. 519; Richardson v. Bigelow, 15 When no actual damages accrue, but the 
 
 Gray (Mass.), 154; Tinsman v. Belvi- right is invaded by the defendant, the 
 
 dere, etc. R. Co., 1 Dutch. (N. J.) 255. action at law lies, nevertheless, for 
 
 The quantity of damages is to be meas- the obstruction ; and nominal damages 
 
 ured by the extent of the injury actually at least may be recovered. Collins v. 
 
 done by the wrongful act. Gilmore v. St. Peters, 65 Vt. 618; Chase's Blackst. 
 
 Driscoll, 122 Mass. 199 ; SchUe v. Brok- p. 717 et seq. 
 
 hahus, 80 N. Y. 614; Shafer v. Wilson, * Goodhart v. Hyett, L. R. 25 Ch. 
 
 44 Md. 268, 280. But it should never Div. 182; Pattison v. Gilford, 18 Eq. 
 
 include an estimated amount for future 259, 262 ; Jones v. Adams, 162 Mass. 
 
 injury, for the defendant may stop the 224 ; Earle/s Appeal, 121 Pa. St. 496. 
 wrong-doing at any moment. Bare t>. 
 
INCIDENTS OP EASEMENTS AND SERVITUDES. 269 
 
 no remedy, or only an inadequate one, then the court of equity 
 will act, by way of injunction, to restrain irreparable mis- 
 chief, or to suppress continued and oppressive litigation, or 
 to prevent a multiplicity of suits. ^ Thus, relief will be inter- 
 posed by injuaction to prevent the diversion of a natural 
 stream and to restore it to its former condition when it has 
 been wrongfully diverted ; for a court of law could only give 
 damages for the injury and could not otherwise stop or pre- 
 vent it. Besides, if the party aggrieved must look to law 
 alone for his redress, he must continue to bring successive 
 actions for damages, and these are obviated by the injunction 
 granted by equity.^ So, for the continuous pollution of a 
 natural stream,^ or the interference with street rights by a 
 permanent elevated railroad or other structure,* and generally 
 for any lasting interruption or interference, equity will grant 
 relief by means of an injunction.^ The injunction so issued 
 is merely prohibitory, when its only object is to put a stop 
 to the unauthorized and wrongful acts ; and it is mandatory 
 when it aims to compel the removal of obstructions and the con- 
 sequent restoration of the easement or servitude to its proper 
 condition.® That court also may, and frequently does, in the 
 one proceeding, award damages in compensation for injuries 
 already sustained because of past obstructions or interferences.^ 
 
 1 2 Story, Eq. Jur." §§ 925, 926 ; Is entered, the injunction does not be- 
 Carlisle v. Cooper, 6 C. E. Green (N. J.), come operative. This has become the 
 576, 591 ; Coe u. Winnipiseogee Mfg. favorite and ordinary method of suing, 
 Co., 37 N. H. 254 ; Webber o. Gage, 39 for the ultimate purpose of simply ob- 
 N. H. 182. taining damages, in the elevated rail- 
 
 2 Corning v. Troy I. & N. Factory, road cases and similar injuries. See 
 40N. Y. 191. also Muhlker v. Harlem R. Co., 173 
 
 » Harris v. Mackintosh, 133 Mass. N. Y. 549 ; Itobinsou v. N. Y. El. R. 
 
 228; Lyon v. McLaughlin, 32 Vt. 423, Co., 175 N. Y. 219 ; Dolan v. N. Y. & 
 
 425. H. R. Co., 175 N. Y. 367 ; N. Y. El. R. 
 
 * Story V. N. Y. El. R. Co., 90 N. Y. Co. v. Fifth Nat. Bk., 135 U. S. 432. 
 122 ; Thompson v. Man. R. Co., 130 * Proprietors of Mills v. Braintree 
 
 N. Y. 360 ; Pegram v. N. Y. El. R. Co., Water Supply Co., 149 Mass. 478 ; 
 
 147 N. Y. 135 ; Koehle r. N. Y. El. R. Co., Brooks v. Cedar Brook Imp. Co., 82 
 
 159 N. Y. 218; Pa. R. Co. r. Duncan, 111 Me. 17 ; Schmitzins v. Bailey, 48 N. J. 
 
 Pa. St. 352. These elevated railroad Eq. 409; Pettigrew v. Evansville, 25 
 
 tases are a few of the many in which in- Wis. 223 ; Hicks b. Silliman, 93 111. 255. 
 junctions have been obtained against the ' Cases cited in last four preceding 
 
 defendants, to take effect in case dam- notes; Boland v. St. John's School, 163 
 
 ages, also adjudged, were not duly paid Mass. 229 ; Nash v. New Eng. Ins. Co., 
 
 to the plaintiffs. In such cases, the dam 127 Mass. 91,97. 
 
 ages being paid or the matters otherwise ' Ibid. ; Pegram v. N. Y. El. R. Co., 
 
 adjusted by the parties after judgment 147 N. Y. 135, 144. 
 
CHAPTER XII. 
 
 SPECIAL FEATURES OF IMPORTANT KINDS OP EASEMENTS AND 
 SERVITUDES. 
 
 § 197. Specific easements and ser- 
 vitudes. 
 
 Rights of Way. 
 
 § 198. Private ways. 
 § 199. Highways. 
 
 Rights to Light, Air, and Prospect. 
 
 § 200. Special features to be ex- 
 amined. 
 
 § 201 . Express grant of such rights. 
 
 § 202. Implied grant of such rights. 
 
 § 203. Ancient lights. 
 
 § 204. Prescriptive right to air. 
 
 § 205. Prospect or view. 
 
 Rights to Lateral and Subjacent 
 Support. 
 
 § 206. Forms of these rights to be 
 examined. 
 
 § 207. Lateral support of land or 
 soil. 
 
 § 208. Lateral support of buildings. 
 
 § 209. Subjacent support of land or 
 soil. 
 
 § 210. Subjacent support of build- 
 ings. 
 
 Party-wall Rights and Similar Ease- 
 ments and Servitudes. 
 
 §211. Different kinds of wall 
 
 rights. 
 § 212. a. Independent wall, 
 § 213. 6. Common wall. 
 § 214. c. Right to wall support. 
 § 215. d. Party wall — Definition 
 
 — Nature. 
 
 § 216. Creation of party-wall rights. 
 § 217. Use of party walls. 
 § 218. Repairing, removing, and re- 
 building party walls. 
 § 219. Division fences:" 
 
 Water Rights. 
 
 § 220. Kinds of rights in water. 
 § 221. a. Natural water rights. 
 
 (a) Well-defined streams 
 
 — Rights of access. 
 
 § 222. Ownership and use of nat- 
 ural streams. 
 
 § 223. (b) Rights as to surface 
 waters. 
 
 § 224. (c) Rights as to percolating 
 and subterranean waters. 
 
 § 225. 6. Artificial water rights. 
 
 § 197. Specific Easements and Servitudes. — The foregoing 
 discussion completes a general summary of the law of ease- 
 ments and servitudes. It has dealt with their essential 
 natures and form^, the ways in which they may be acquired, 
 and the chief characteristics of the forms of such rights which 
 may be gained by the different methods respectively; the 
 
IMPORTANT KINDS OP EASEMIiJNTS AND SERVITUDES. 271 
 
 incidents of them in general as incorporeal hereditaments; 
 how they may be lost, destroyed, or suspended, and the differ- 
 ent remedies available to their owners for injuries to them 
 and for the preservation of their rightful use and enjoyment. 
 There yet remains an examination, one by one, of some of the 
 most important specific kinds of easements and servitudes. 
 The forms which will be thus specially considered, in the 
 order here named, are rights of way ; rights to light, air, 
 and prospect ; rights to lateral and subjacent support of soil 
 and buildings; party-wall rights and similar privileges, and 
 water rights. 
 
 Bights of Way. 
 
 § 198. Private "Ways. — Ways, as private rights, are the 
 most numerous and ordinary instances of common-law ease- 
 ments. They include all cases in which an individual or 
 class of individuals has a fixed right of passage, by an estab- 
 lished route, over land of the servient owner to and from land 
 of the dominant owner. They may be brought into existence 
 by any of the four methods above discussed by which ease- 
 ments may be acquired ; namely, by express grant, by reserva- 
 tion in a deed of the servient tenement, by implied grant, and 
 by prescription. They have all the characteristics and inci- 
 dents which apply to easements in general ; they may be lost, 
 suspended, or destroyed by any of the methods above outlined, 
 and the extent of the right to use them and the manner in 
 which they may be enjoyed, altered, repaired, and improved 
 have been already fully examined in the foregoing discussion 
 of the general law of easements.^ Private easements of way, 
 therefore, are to be regarded as the typical form of such in- 
 corporeal right, and the principles relating to them embrace 
 practically the entire body of the law of easements. A right 
 of way in gross, which, technically speaking, is not an ease- 
 ment at all but a mere servitude, has been heretofore shown 
 to be unassignable and uninheritable in most jurisdictions ; '^ 
 while in a few of the United States, such as Massachusetts 
 and Wisconsin, it may be readily passed from hand to hand 
 
 1 See discussion, supra, as to ques- 111 455 ; Pearson u. Hartman, 100 Pa. St. 
 tions relating to their characteristics 84; Hoosier Stone Co. u. Malott, 130 
 and principles; Iii<l- 21, 24; Post v. Pearsall, 22 Wend. 
 
 2 Ackroydw. Smith, 10 C. B. IG4; (N.Y.) 425,432; §§ 126, 127, supra. 
 Louisville & N. K. Co. v. Koelle, 104 
 
272 KINDS OP REAL PROPERTY. 
 
 by the same methods by which other species of real property 
 are transferred.^ With this qualification, private rights of 
 way, whether appurtenant or in gross, are all governed by 
 substantially the same legal rules and principles. 
 
 § 199. Highways. — Public ways, or highways, are in sub- 
 stance easements in gross existing in favor of each member of 
 the public. Their creation and chief characteristics and how 
 they may be terminated have beeii explained in the last two ' 
 preceding chapters, as far as the limits of this work will 
 permit.^ 
 
 When the state or municipality acquires not only the 
 rights of way but also the land itself over which the roads or 
 streets are made, as is the case, for example, with many of 
 the streets of New York City,^ the ownership by the public 
 is of corporeal property; and the abutting owners then have 
 special forms of servitudes over the highways in front of their 
 lots. It has been already explained that compensation must 
 be made to such abutters, when such rights are directly taken 
 away or impaired.* 
 
 In the cases, which are the most usual, in which the 
 ownership of the land remains in the original proprietors or 
 their successors in interest, and the public acquires only 
 servitudes over it — by public prescription, dedication, or 
 operation of law, as above explained^ — the soil may be used 
 by its owners in any manner that is consistent with full and 
 proper enjoyment of the way by the public. Subject to this 
 restriction, they may take minerals, trees or crops from it, 
 cultivate it, or use it for any reasonable purpose in connec- 
 tion with their adjacent lands.® The public servitude has its 
 inception and limitations in the reasonable public require- 
 ments, according to the nature of each case. And, when the 
 uses thus called for are abandoned or otherwise terminated, the 
 land remains for its original owners or their successors freed 
 from the burdens which the public enjoyment had imposed.^ 
 
 1 Bowen v. Conner, 6 Cush. (Mass.) » §§ 168, 169, 172-174, 178-180, supra. 
 132 ; Hankey v. Clark, 110 Mass. 262 ; « Higgins v. Reynolds, 31 N. Y. 151 ; 
 Ponll V. Mockley, 33 Wis. 482 ; § 127, Lane v. Lamke, 53 N. Y. App. Div. 395 ; 
 supra, and cases cited. Sweet v. Perkins, 115 N. Y. App. Uiv. 
 
 2 §§ 178-180, 189, 190, supra. 784; Stackpole v. Healy, 16 Mass. 33; 
 » Kane v. N. Y. El. R. Co., 125 N. Y. People v. Foss, 80 Mich. 559 ; Town of 
 
 165, 182 ; Fobes v. Rome, W. & O. R. Snffield v. Hathaway, 44 Conn. 521 ; 1 
 
 Co., 121 N. Y. 505; Reining v. N. Y. L. Lewis, Em. Dom. § 132 et seq. 
 E. & W. R. Co., 128 N. Y. 157. ^ Harris v. Elliott, 10 Pet. (U. S.) 
 
 * § 179, supra. 25 ; Bissell v. N. Y. C. R. Co., 23 N. Y. 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 273 
 
 Bights to Light, Air, and Prospect. 
 
 § 200. Special Features to be examined. — When an ease- 
 ment in the continuous and uninterrupted flow of light, or air, 
 or both, or in an unobstructed prospect, view, or outlook over 
 another's land, is once shown to exist, it is a right or privi- 
 lege which is subject to the same rules of law as those which 
 govern other easements. The special discussion of these 
 incorporeal hereditaments, therefore, relates to the particular 
 methods by which they may be acquired and held. These 
 will be examined in their order, first with reference to light 
 and air and then with reference to prospect or view. 
 
 § 201. Express Grant or E:zpress Reservation of Right to 
 Light and Air. — By express contract, c'ither in the form of a 
 direct grant, or by a reservation in a deed of tlie servient land, 
 or by means of an explicit covenant, an easement in the enjoy- 
 ment of light, or air, or l)oth, may be brought into existence; 
 and the extent and nature of the right will depend, of course, 
 upon the proper construction of the words used in the instru- 
 ment.^ Such express stipulations ordinarily run with the 
 land of both parties to the contract and bind all subsequent 
 purcliasers and encumbrancers who take with notice of the 
 easements.^ 
 
 § 202. Implied G-rant of Right to Light and Air. — It is a 
 settled doctrine of the English courts that, upon the severance 
 of an entire tract or parcel of land and a conveyance of one of 
 the pieces, an easement in the form of a right to enjoy light 
 and air over the portion which the grantor retains may be ' 
 impliedly brought into existence.^ But those courts do not 
 go to the extent of implying any reservation of light or air in 
 favor of the grantor.* The principle upon which the ease- 
 ments can be implied against the grantor — that he will not 
 
 61; Thomsen v. McCormick, 136 111. 73; Lahr v. Met. El. K. Co., 104 N. Y. 
 
 135 ; Benham v. Potter, 52 Conn. 248 ; 287, 292. 
 
 Healey v. Babbitt, 14 E. I. 533 ; Black- * Leech v. Schweder, L. R. 9 Ch. 
 
 man v. Reilly, 138 N. Y. 318. -A^PP- 463, 472; Swansborough v. Coven- 
 
 1 Dalton V. Angu3, L. R. 6 A pp. Cas. try, 9 Bing. 305 ; Palmer v. Fletcher, 1 
 740; Keating u. Springer, 146 111.481; Lev. 122; Rosewell v. Pryor, 6 Mod. 
 Lahr v. Met. El. R. Co., 104 N. Y. 116; PoUard v. Gare (1901), 1 Ch. 
 287; Ladd v. Boston, 151 Mass. 585; 834. 
 
 Weigmann v. Jones, 163 Pa. St. 330; * Russell c. Watts, L. R. 10 App. 
 
 Hagerty a. Lee, 45 N. J. Eq. 1, 15; Cas. 590, 596; PoUard v. Gare (1901), 
 
 Morrison v. Marquardt, 24 Iowa, 35. 1 Ch. 834 ; Tenant v. Goldwin, 2 Ld. 
 
 2 Hogan V. Barry, 143 Mass. 538; Raym. 1089, 1093. See Jones, Ease. 
 White's Bank v. Nichols, 64 N. Y. 65, §§ 563, 564. 
 
 18 
 
274 KINDS OP REAL PEOPERTY. 
 
 be permitted to do anything in derogation of his own grant 
 — is manifestly inapplicable as against the grantee under 
 similar circumstances. It is held in England, however, that 
 the principle does apply to simultaneous grants of both parcels 
 from the same grantor to two different grantees ; and that, in 
 such a case, he who purchases the house has by implication 
 an easement in light and air for the windows which overlook 
 the land of the other vendee. ^ 
 
 In a few of the United States, such as New Jersey, Mary- 
 land, Delaware, and Louisiana, the English doctrine in this 
 respect is followed, with the qualification usually added that 
 it must be shown that the easement contended for as the 
 result of the severance of the two parcels of land is reasonably 
 necessary to the enjoyment of the portion conveyed.^ And in 
 Pennsylvania, Connecticut, Georgia, and possibly a few other 
 states, such a right may be brought into existence in this 
 manner when it is a positive, actual necessity to the reason- 
 able enjoyment of the portion granted, but not when such an 
 absolute necessity does not exist.' But, in the great majority 
 of the states of this country, it is held that the conditions, 
 under which property is rapidly improving and being trans- 
 ferred from hand to hand, are such that no easement in light 
 or air should be implied when a plot or tract of land is 
 divided and a portion of it sold,* or when different parts of 
 
 1 Allen V. Taylor, L. R. 16 Ch. Div. v. Tiernan, 15 La. Ann. 316. The New 
 355. It is said in a few English cases Jersey courts go farther than those of 
 that, while the principles above stated England, in this respect, and permit an 
 are there fully recognized so far as the easement in light and air to be implied 
 right to light is concerned, there are uo as a reservation in favor of the grantor ; 
 positive decisions applying them to the but they do not allow it to be gained by 
 right to air also, although the dicta prescription. Greer v. Van Meter, 54 
 speak of the same rules as applicable N. J. Eq. 270; Sutphen v. Therkelson, 
 to both. And it is at least safe to say 38 N. J. Eq. 318; Hayden v. Dutcher, 
 that the courts of England will not 31 N. J. Eq. 217. 
 
 restrain a mere obstruction to air unless ' Eennyson's App., 94 Pa. St. 147; 
 
 the complainant can show that he has Robinson v. Clapp, 65 Conn. 365 ; 
 
 been enjoying it through some definite Turner v. Thompson, 58 Ga. 268 ; Mor- 
 
 channel or aperture, such as a window rison v. Marquardt, 24 Iowa, 35 ; White 
 
 or chimney flue or other similar open- v. Bradley, 66 Me. 254 ; Powell v. Sims, 
 
 ing. Aldin w. Latimer Clark (1894), 5 W. Va. 1. 
 
 2 Ch. 437 ; Bryant v. Lefever, L. R. * Parker v. Eoote, 19 Wend. (N. Y.) 
 
 4 C. P. Div. 172; Harris i/. DePinna, 309, 315; Myers v. Gemmel, 10 Barb. 
 
 L. R. 33 Ch. Div. 238, 250. (N. Y.) 537 ; Knabe v. Levelle, 23 N. T. 
 
 2 Sutphen ij. Therkelson, 38 N.J. Eq. Supp. 818; Doyle v Lord, 64 N. Y. 
 318; Greer v. Van Meter, 54 N. J. Eq. 432, 439; Palmer v. Wetmore, 2 Sand. 
 270; Janes u. Jenkins, 34 Md. I ; Claw- (N. Y.) 316; Wilmurt l.-. McGrane, 16 
 son V. Primrose, 4 Del. Ch. 643; Cleris N. Y. App. Div. 412, 418 ; Shipman v. 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 1^75 
 
 it are conveyed at the same time to different purchasers.^ 
 The rule is different here, however, when a portion of the 
 premises, such as one story of a house or a building adjoining 
 a vacant lot, is leased for a term of years and the residue is 
 retained by the landlord or by those who subsequently succeed 
 to his rights and interests. It has been uniformly held that 
 the tenant for years can then restrain the owner of the remain- 
 ing portions of the property from obstructing the light and air 
 which are reasonably essential to the use and enjoyment of 
 the demised property in the manner contemplated by the 
 parties to the lease. ^ 
 
 § 203. Ancient lights. — By the prescriptive act of Eng- 
 land, it is provided that, " when the access and use of light to 
 and for any dwelling-house, workshop or other building shall 
 have been actually enjoyed therewith for the full period of 
 twenty years without interruption, the right thereto shall be 
 deemed absolute and indefeasible, any local usage or custom 
 to the contrary notwithstanding, unless it shall appear that 
 the same was enjoyed by some consent or agreement expressly 
 made or given for that purpose by deed or writing,"^ The 
 substantial effect of that statute is to put into the form of 
 written law the doctrine of "ancient lights," which has 
 always been recognized in that country and which is the rule 
 that the right to the unobstructed flow of light into windows 
 or other openings may be acquired by prescription, in favor 
 of a house, over the adjoining land of another owner.* 
 
 This English doctrine has been repudiated in all of the 
 United States except Delaware.^ And there are two reasons 
 
 Beers, 2 Abb. N. C. (N. Y.) 435 ; Christ 43 N. J. Eq. 493 ; Hilliard v. Gal. Coal 
 
 Chnrch v. Lavezzolo, 156 Mass. 89 ; Co., 41 Ohio St. 602 ; Lapere v. Luckey, 
 
 Sandal! v. Sanderson, 111 Ma«8. 114; 23 Kan. 534; Darnell w. Columbus S. C. 
 
 Keating v. Springer, 146 111. 481; Co., 129 Ga. 62. See Keating y. Springer, 
 
 Keiper v. Klein, 51 Ind. 316; Mullen v. 146 111. 481 ; Keiper v. Klein, 51 Ind. 
 
 Strieker, 19 Ohio St. 135; White v. 316; Haynes i>. King (1893), 3 Ch. 439. 
 Bradley, 66 Me. 254. » 2 & 3 "Wm. IV. ch. 71. 
 
 1 Mitchell ... Reed, 192 N. Y. 255; * Chastey v. Ackland (1895), 2 Ch. 
 Collier v. Pierce, 7 Gray (Mass.), 18; 389; Van Joel v. Homvey (1895), 2 Ch. 
 Lipsky V. Heller, 85 N. E. Rep. 453, 472 774 ; Lord Batterson v. Comm'rs, etc. 
 (Mass.); Turner (-■.Thompson, 58 Ga. 268. of London (1895), 2 Ch. 708; Tapling 
 In some states, this matter is regulated v. Jones, 1 1 H. L. Cas. 290 ; Aynsley v. 
 bystatnte. 1 Stim.Araer. Stat. L.§ 2254; Glover, 18 Eq. 544. 
 
 4 Shars. & B. I,ead. Cas. R. P. 246. " Parker v. Foote, 19 Wend. (N. Y.) 
 
 2 Doyle V. Lord, 64 N. Y. 432 ; O'Neill 309 ; Myers v. Gemmel, 10 Barb. (N. Y.) 
 V. Breese, 3 N. Y. Misc. 219; Case u. 537 ; Banks u. Amer. Tract Soc, 4 Sand. 
 Minot, 158 Mass. 577, 584 ; Brande v. Ch. (N. Y.) 438, 467 ; Christ Church v. 
 Grace, 154 Mass. 210; Ware v. Chew, Lavezzolo, 156 Mass. 89; Hayden ■;. 
 
276 KINDS OP EEAL PROPERTY. 
 
 laid down by our courts, either one of which is amply suffi- 
 cient ground for their refusal to follow the lead of the English 
 tribunals in this matter. One is that it is incompatible with 
 the condition and needs of our country, which is undergoing 
 such rapid changes in the progress of its growth and derelop- 
 ment.^ And the other is that the English doctrine of ancient 
 lights is illogical and inconsistent with the principles upon 
 which other prescriptive rights are founded, because there is 
 no adverse character in the enjoyment of light through the 
 windows of one's house over the land of his neighbor. ^ " The 
 actual enjoyment of the air and light by the owner of the house 
 is on his own land only. He makes no tangible or visible 
 use of the adjoining lands, nor, indeed, any use of them which 
 can be made the subject of an action by their owner, or which 
 in any way interferes with the latter's enjoyment with the 
 light and air upon his own lands, or with any use of those 
 lands in their existing condition."^ 
 
 The outcome of the American theory and practice upon 
 this subject is that owners of land, overlooking which win- 
 dows have been built by others, are not required, as is the 
 proprietor of land in England under similar conditions, to 
 shut out the light by erections upon their own properties 
 before there has been a twenty years' enjoyment of it through 
 the windows, or take the risk of being deprived, at the end of 
 the prescriptive period, of much of the utility and value of 
 their vacant lots. It also follows, as a logical and generally 
 recognized consequence in this country, that, in the absence 
 of restrictive legislation, a landowner may at any time, by 
 fences, houses, or other erections upon his own premises, 
 darken his neighbor's house or other structure, no matter 
 how long it has been enjoying the unobstructed light. And, 
 in most cases, it has been held that the courts will not inter- 
 
 Dutcher, 31 N. J. Eq. 217; Eenny- Hulley v. Security Trust Co., 5 Del. 
 
 son's Appeal, 94 Pa. St. 147 ; Keating Ch. .578. 
 
 V. Springer, 146 111. 481; Mullen i-. 1 Parker d. Foote, 19 Wend. (N. Y.) 
 
 Strieker, 19 Ohio St. 135; White v. 309; Doyle v. Lord, 64 N. Y. 432; 
 
 Bradley, 66 Me. 254 ; Hubbard v. Town, Sutphen v. Therkelson, 38 N. J. Eq. 318, 
 
 33 Vt. 295 ; Tunstall v. Christian, 80 323 ; Pierre v. Fernald, 26 Me. 436. 
 Va. 1. In Delaware it has been de- ^ Keats v. Hugo, 115 Mass. 204; 
 
 clared that the doctrine of "ancient Parker r. Foote, 19 Wend. (N. Y.), 309; 
 
 lights" was adopted as a part of the Hayden v. Dutcher, 31 N. J. Eq 217. 
 common law. See Clawson v. Prim- ' Keats v. Hugo, 115 Mass. 204, 
 
 rose, 4 Del. Ch. 643, which is discussed 215. 
 and questioned but not overruled by 
 
IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 277 
 
 fere with the exercise of this legal right, even though the 
 motive in making the erection be purely malicious.^ 
 
 § 204. Prescriptive Right to Air. — The uniform rule in the 
 United States, with the exception of Delaware, is that a pre- 
 scriptive right to the flow of air, whether generally or in a 
 defined channel or flue, can no more be acquired than can such 
 an easement in a continuous flow of light. ^ The reasons are 
 the same as to both light and air; and the two are generally 
 treated together, as governed by precisely the same principles. ^ 
 The English courts, however, while adhering broadly to their 
 doctrine of "ancient lights," and now being held to it by the 
 statute above quoted, refuse to. sustain prescriptive easements 
 in the access and flow of air, except in cases where its enjoy- 
 ment has been continued for twenty years or more through a 
 definite flue or channel. They have sustained such an ease- 
 ment, for example, in the right of plaintiff to ventilate a 
 cellar through a hole bored through the rock so as to connect 
 with a well in defendant's land;* but have denied that a pre- 
 scriptive right could be acquired to have the air flow generally 
 into one's back yard," or over neighboring land so as to pre- 
 vent a chimney from smoking,^ or for the purpose of running 
 a windmill.^ 
 
 § 205. Prospect or View. — Although they differ so radi- 
 cally in regard to the methods of creating easements in light 
 and air, yet the courts on both sides of the Atlantic agree 
 that the only way in which can be acquired merely the right 
 to an unobstructed view or prospect, — being as it is only a 
 matter of pleasure or delight as distinguished from the enjoy- 
 ment of light, or air, or both, which are so often necessaries, 
 
 1 Tinker v. Forbes, 136 111. 221 ; 309 ; Tnnstall !'. Christian, 80 Va. 1 ; Snt- 
 Levy II. Brothers, 4 N. Y. Misc. 48 ; Letts phen v. Therkelson, 38 N. J. Eq. 318. 
 
 v. Kessler, 7 Ohio Cir. Ct. 108. But « Parker y. Foote, 19 Wend. (N. Y.) 
 
 it has been held, in a few cases, that 309; Keats v. Hugo, 115 Mass. 204, 
 
 where a high board fence or other 215. 
 
 obstruction is erected solely fromma^ * Bass v. Gregory, L. R" 25, Q. B. 
 
 licious motives, and with no purpose Div. 481 ; Dent v. Auction Mart Co., 
 
 other than to injure one's neighbor, an 2 Eq. 238. 
 
 injunction against it will be granted by ^ Chastey v. Ackland (1895), 2 Ch. 
 
 a court of equity. Kirkwood v. Fine- 389 ; Harris r. DePinna, L. R. 33 Ch. 
 
 gan, 95 Mich. 543; Peck v. Roe, 110 Div. 238. 
 
 Mich. 52; Flaherty v. Moran, 81 Mich. " Bryant v. Lefever, L. R. 4 C. P. 
 
 52; Kessler U.Letts, 7 Ohio Cir. Ct. 108. Div. 172. 179, 181. 
 
 2 Keats V. Hugo, 115 Mass. 204; ' Webb v. Bird, 10 C. B. N. s. 268, 
 Christ Church v., Lavezzolo, 156 Mass. 13 C. B. N. s. 841. 
 
 89; Parker v. Foote, 19 Wend. (N. Y.) 
 
278 KINDS OP REAL PROPERTY. 
 
 — is by express grant or covenant. ^ It can not be gained by 
 implied grant or prescription. It follows that, in the absence 
 of such express contract to the contrary, one may build upon 
 his own land, so as to obstruct his neighbor's view of a high- 
 way, the sea, or a landscape ; or so as to partially shut off his 
 signs or wares from public view.^ But when an express cove- 
 nant prohibiting such an interference has been entered into 
 in the deed between the vendor and vendee of a parcel of 
 land, it will be enforced by injunction in equity in favor of 
 him for whose benefit it was made, even though he was not a 
 party to the contract; ^ 
 
 Rights to Lateral arid Subjacent Support of Soil and 
 Buildings. 
 
 § 206, Forms of these Rights to be examined. — Those servi- 
 tudes which exist by nature, and therefore do not require ^ny 
 act or convention of the parties for their creation, have been 
 heretofore frequently illustrated by rights to the support of 
 land in its natural condition and to the flow of water in its 
 customary channels. Similar privileges are frequently created 
 by agreement or conduct of the parties, and then usually come 
 into being as common-law easements. Such are rights to 
 lateral or subjacent support of buildings or walls, and to the 
 constant or peculiar flow of artificial streams. These matters 
 are also regulated, to quite an extent, by statutes; and thus 
 servitudes of this character are brought into existence by 
 operation of law. The rights, immunities, and duties pecu- 
 liar to the support of lands and buildings are the first group 
 of such easements and servitudes to be examined. And they 
 will be discussed in the following order, namely : lateral sup- 
 port of land or soil, lateral support of buildings (exclusive of 
 special questions of wall rights, which will be the subject of a 
 subsequent section), subjacent support of land or soil, sub- 
 jacent support of buildings. 
 
 § 207. Lateral Support of Land or Soil. — Upon the prin- 
 ciple sic utere tuo ut alienum non Icedas, there exists by nature 
 
 1 Aldred's Case, 9 Coke, 57 b ; Atty.- Bowden o. Lewis, 13 R. I. 189; Tud. 
 
 Gen. V. Doughty, 2 Ves. Sr. 453 ; Dal- Lead. Cas. R. P. 123. 
 ton V. Angus, L. R. 6 App. Cas. 740, ^ Ibid. ; Butt v. Imperial Gas Co., 
 
 824; Parker «. Foote, 19 Wend. (N. Y.) L. B. 2 Ch. 158; Smith v. Owen, 35 
 
 309 ; Harwood v. Tompkins, 24 N. J. L. N. J. Eq. 317. 
 425 ; Lyon v. McDonald, 78 Tex. 71 ; = Gibert v. Peteler, 38 N. T. 165. 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 279 
 
 the right of every landowner to have his soil supported lat- 
 erally, in its natural state, by the soil or structure of the 
 neighboring proprietor. ^ When, therefore, one makes an 
 excavation upon his own land, in such a manner that the 
 sand, clay, or other material of the adjoining land will fall 
 into the pit or be disturbed if not artiiicially supported, and 
 there is no special contract or statute authorizing him to so 
 dig, he must shore up or otherwise support the other's soil, 
 so as to retain it in its natural condition ; or he will be liable 
 in damages for the resulting injury.^ And this is true regard- 
 less of the location, contour, or constituent materials of the 
 neighboring land, in so far as these exist in a state of nature. 
 Thus, the lower owner upon a hillside must support the soil 
 of the upper owner, to as great an extent as is necessary to 
 retain it in its natural and undisturbed condition. And, 
 whether the properties be on a hill or a plain, the amount 
 of such support required will depend, of course, upon the 
 quality of the soil, — grading from nothing or almost nothing 
 in rocky sections to a heavy burden in places where the soil 
 is sandy or from any other cause readily movable. This 
 right to the lateral support of natural soil is absolute, unless 
 restricted by contract or statute; and when it is interfered 
 with, all that its owner needs to prove, in order to establish 
 a cause of action, is that he has suffered damage because of 
 such disturbance. He need not show that the excavation 
 which caused his soil to cave in was done in any careless, 
 negligent, or unskilful manner. ^ 
 
 There is a conflict of authority as to whether or not this 
 right to lateral support of soil exists against a city, town, or 
 other municipality, in favor of land abutting upon a public 
 street or highway. While in some of the United States it is 
 held to exist against such public entities as well as against 
 private owners,* yet in England, and probably by the weight 
 
 1 Humphries v. Brogden, 12 Q. B. ^ Transportation Company v. Chi- 
 739, 743 ; Lasala v. Holbrook, 4 Paige cago, 99 U. S. 635 ; Gilmore v. Driscoll, 
 (N. Y.), 169; Hay v. Colioes, 2 N. Y. 122 Mass. 199; McGuire w. Grant, 25 
 159 ; Radcliff v. Mayor, 4 N. Y. 195 ; N. J. L. 356 ; Green v. Berge, 105 Cal. 
 McGettigan v. Potts, 149 Pa. St. 155; 52; Richardson v. Vermont Cent. E. 
 Schultz V. Byers, 53 N. J. L. 442; Gil- Co., 25 Vt. 465. 
 
 more w. Driscoll, 122 Mass. 199 ; Moody * Dyer v. St. Panl, 27 Minn. 457; 
 
 c. McClelland, 39 Ala. 45; Moellering Burr v. lieieester, 121 Mass. 241 ; Cabot 
 
 V. Evans, 121 Ind. 195; Stearns r. i). Kingman, 165 Mass. 403 ; Stearns j). 
 
 Richmond, 88 Va. 992. Richmond, 88 Va. 992; Keating v. Ciu- 
 
 2 Ibid. ; Article in 1 Amer. Law cinnati, 38 Ohio St. 141. 
 Eev. 1. 
 
280 KINDS OP REAL PROPERTY. 
 
 of authority in this country, the principle is maintained that 
 a municipality, acting under due authority, is not liable to a 
 landowner for the falling away of his soil because of proper 
 grading or alteration of a street.^ But an adjacent landowner 
 must support the street in its permanent and natural condition 
 for public use.2 
 
 § 208. Lateral Support of Buildings. — The natural right to 
 lateral support does not extend to any buildings or artificial 
 structures which may be erected on the land. And, there- 
 fore, if one place his house upon the verge of his lot, he does 
 not thereby have the right to insist that it also shall have the 
 support of his neighbor's soil.^ If in digging upon his own 
 property the adjacent proprietor do nothing that would inter- 
 fere with the land in question in its natural state, i. e., if he 
 excavate so that such land would remain intact if it were not 
 loaded with the additional weight of the building, then any in- 
 jury thus occasioned is ordinarily damnum absque injuria.* The 
 process of excavating must, of course, be carried on with suffi- 
 cient care and skill so as not to injure the adjoining structure by 
 the manner in which it is done, even though the mere existence 
 of the hole thus dug would have occasioned no damage to the 
 neighboring land in its natural state.* But this requirement 
 emerges, not from the mere right of lateral support, but from the 
 fact that negligent,unskilful, or improper digging or blasting may 
 in itself result in a nuisance or a trespass upon the adjacent land. 
 
 1 Boulton V. Crowther, 2 B. & C. 703 ; U. S. 635 ; Dorrity v. Eapp, 72 N. Y. 
 
 Transportation Company v. Chicago, 307; White v. Nassau Trust Co., 168 
 
 99 CJ. S. 635 ; BadclifE v. Mayor, 4 N. N. Y. 149; Finegan v. Eckerson, 32 N. Y. 
 
 Y. 195; Folmsbee v. City of Amster- App. Div. 233, 235; Schultz u. Byers, 
 
 dam, 142 N. Y. 118; White v. Nassau 53 N. J. L. 442; McGettigan v. Potts,- 
 
 Trust Co., 168 N. Y. 149; Callender v. 149 Pa. St. 155; Gilmore v. DriscoU, 
 
 Marsh, 1 Pick. (Mass.) 418; Fellowes 122 Mass. 199; Gildersleeve v. Ham- 
 
 V. New Haven, 44 Conn. 240; O'Connor mond, 109 Mich. 408 ; Quiucy v. Jones, 
 
 V. Pittsburgh, 18 Pa. St. 187 ; Quincy v. 76 111. 231. 
 
 Jones, 76 111. 231 ; Aurora v. Fox, 78 * Thurston u. Hancock, 12 Mass. 
 
 Ind. 1; § 179, supra. In some of the 220; Gilmore v. DriscoU, 122 Mass. 
 
 United States there are statutes which 199; Lasala v. Holbrook, 4 Paige 
 
 require compensation for injuries caused (N. Y.), 169; Austin v. H. R. E. Co., 
 
 to abutting land by the grading, or al- 25 N. Y. 334, 346 ; Smith v. Thfickerah, 
 
 tering, of highways. See § 1 79, note (a) 1 C. P. 564; Backhouse u. Bonomi, 9 
 
 supra; O'Brien v. Philadelphia, 150 Pa. H. L. Cas. 503. 
 St. 589 ; Elgin v. Eaton, 83 HI. 535. « Austin j,. H. R. R. Co., 25 N. Y. 
 
 " Village of Hayerstraw v. Eckerson, 334, 346 ; EadclifE v. Mayor, 4 N. Y. 
 
 192 N. Y. 54, 59. 195; McGuire v. Grant, 25 N. J. L. 
 
 ' Angus 0. Dalton, L. R. 6 App. 356; Gilmore v. DriscoU, 122 Mass. 
 
 Cas. 740 ; Partridge v. Scott, 3 M. & W. 1 99, 201 ; Tuustall v. Christian, 80 Va. 
 
 220 ; Wyatt v. Harrison, 3 Barn. & Ad. 1 ; Charless v. Rankin, 22 Mo. 566 ; 
 
 871 ; Transportation Co. v. Chicago, 99 Winn v. Abeles, 35 Kan. 85. 
 
IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 281 
 
 It is now held by many courts, also, that the exercise of 
 proper care and diligence, on the part of him who' intends to 
 dig in such a manner that a building on the land of another 
 may be thereby damaged, requires him to notify the owner of 
 such building, or to see to it that he has knowledge of the 
 proposed excavation. i "It is more than a neighborly act," 
 says a New Jersey court, "to give such notice, because it 
 involves the right of one man to assert his right, regardless of 
 the injury he may cause his neighbor without such warning. " ^ 
 But some leading tribunals have denied that, in the absence 
 of statutory requirement, there exists any such duty on the 
 part of a careful excavator.^ And, as already indicated, it is 
 nowhere required that formal notice be given to a neighbor- 
 ing owner who already has knowledge or reasonable notice of 
 the intended improvement.* 
 
 A right to the lateral support of a house or other artificial 
 structure may be acquired, as an easement, by any of the forms 
 of grant.^ Thus, it may be directly created and conveyed by 
 deed, or reserved in the conveyance of the contiguous land. 
 And when the owner of two houses so built togetlier as to 
 require mutual support conveys one of them, or otherwise 
 separates the ownerships of tliem, the right of each house to 
 continue to be supported by the other may readily arise by 
 implied grant.® 
 
 It is thoroughly settled law in England that a properly con- 
 structed ancient building, i. e., a building which has stood in the 
 same position for twenty years or more, may acquire by pre- 
 scription the right to continuous support by the land of the adja- 
 cent proprietor in its natural condition, or if that be removed, 
 an adequate lateral support supplied by such adjacent owner.^ 
 
 1 Massey v. Goyder, 4 Carr. & P. Borrity v. Rapp, 72 N. Y. 307 ; Gilder- 
 161; Doddu. Holme, 1 Adol.& El. 493; sleeve v. Hammond, 109 Mich. 408; 
 Schultz V. Byers, 53 N. J. L. 442 ; Lar- Leavenworth Lodge v. Byers, 54 Kan. 
 Bon V. Met. St. R. Co., 110 Mo. 234; 323; Moody t). McClelland, 39 Ala. 45. 
 Shafer v. Wilson, 44 Md. 268 ; Clemens * North Eastern R. Co. u. Elliott, 
 II. Speed, 93 Ky. 284 ; First Nat. Bk. u. 1 J. & H. 145 ; Siddons v. Short, 
 VJUegra, 92 Cal. 96. L. R. 2 C. P. Div. 572 ; Richards 
 
 2 Schultz V. Byers, 53 N. J. L. 442, w.Rose, 9 Exch. 218; Lampraan v. 
 446. Milks, 21 N. Y. 505, 514; Tunstall r. 
 
 2 See Dorrity v. Rapp, 72 N. Y. 307 ; Christian, 80 Va. 1. 
 White V. Nassau Trust Co., 168 N. Y. « Richards v. Rose, 9 Exch. 218; 
 
 149; Gildersleeve v. Hammond, 109 Leraaitre v. Davis, L. R. 19 Ch. Div. 
 
 Mich. 408 ; Obert v. Dunn, 140 Mo. 476. 281 ; Fox >■. Clarke, 9 Q. B. 565. See 
 
 < Dodd V. Holme, 1 Adol. & El. 493 ; Snow v. Pulitzer, 142 N. Y. 263. 
 Schultz V. Byers, 53 N. J. L. 442; ' Angus y. Dalton, 6 App. Cas. 740; 
 
282 KINDS OP REAL PROPERTY. 
 
 It is also held in that country that contiguous buildings belong- 
 ing to different owners have by prescription a right of support 
 from each other, after twenty years of uninterrupted, adverse 
 enjoyment.^ These rules exist there in analogy to the English 
 doctrine of " ancient lights." 
 
 There are some strong dicta in this country also, and a 
 few early decisions, which uphold the principle that rights of 
 lateral support may be^ gained by prescription.^ Thus, in the 
 early New York case of Lasala v. Holbrook,^ Chancellor "Wal- 
 worth said : " There is another class of cases, however, where 
 the owner of a building on the adjacent lot is entitled to full 
 protection against the consequences of any new excavation or 
 alteration of the premises intended to be improved, by which 
 he may be in any way prejudiced. These are ancient build- 
 ings, or those which have been erected upon ancient founda- 
 tions, and which, by prescription, are entitled to the special 
 privilege of being exempted from the consequences of the spirit 
 of reform operating upon the owners of the adjacent lots, and 
 also those which have been granted in their present situation 
 by the owners of such adjacent lots, or by those under whom 
 they have derived their title." But, in harmony with tlie gen- 
 eral American doctrine that a prescriptive title must rest upon 
 an adverse user of such a nature Tis to give a cause of action in 
 favor of the person against whom the acts of enjoyment are 
 performed, in several important and carefully considered cases 
 of more recent date the English rule upon this matter has been 
 repudiated ; and it has been held that, when there is no actual 
 adverse use or occupancy of any part of the land of the contig- 
 uous owner, the right to lateral support of a building or other 
 artificial erection can not be acquired by prescription.* And it 
 is safe to say that this is now the generally accepted rule on 
 this side of the Atlantic.^ 
 
 Dodd V. Holme, 1 Adol. & El. 493, 505; Watts (Pa.), 460; Aston v. Nolan, 63 
 
 Solomon v. "Vintner's Co., 4 H. & N. Cal. 269; City of Quincy u. Jones, 76 
 
 585; Backhouse v. Bonomi, 9 H. L. 111.231. 
 Cas. 503. 3 4 Paige, 169, 173. 
 
 1 Lemaitre v. Davis, L. R. 19 Ch. * Gilmore v. Driscoll, 122 Mass. 199, 
 Div. 281 ; Solomon </. Vintner's Co., 207 ; Tunstall v. Christian, 80 Va. 1 ; 
 4 H. & N. 585; Brown v. Windsor, Handhan «. McManus, 42 Mo. App. 551, 
 1 Or. & J. 20. See Adams «. Marshall, affirmed in 100 Mo. 124; Sullivan v. 
 138 Mass. 228. Zeiner, 98 Cal. 346; Clemens v. Speed, 
 
 2 Lasala u.Holbrook, 4 Paige (N.Y.), 93 Ky. 284; Richart v. Scott, 7 Watts 
 169,173; Stimmel u. Brown, 7 Houst. (Pa.), 460; Mitchells. Mayor, 49 Ga. 19. 
 (Del.) 219; Stevenson v. Wallace, 27 * In Gilmore v. Driscoll, 122 Mass. 
 Gratt. (Va.) 77; Richart v. Scott, 7 199, 207, Chief Justice Gray said; "It 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 283 
 
 In some of the states of this country, positive statutes regu- 
 late such rights and burdens as are above discussed in this 
 section, especially in regard to houses and building operations 
 in large cities.^ (a) 
 
 § 209. Subjacent Support of Land or Soil. — Where differ- 
 ent strata of earth or soil, one beneath the other, are owned by 
 different persons, and there is no contract nor statute which 
 affects their interests^ the owner of the upper stratum has an 
 absolute right to have his land supported in its natural condi- 
 tion by the stratum below. ^ And this right exists whether the 
 
 (a) For those parts of the city of New York which before the consoli- 
 dation of Jan. 1, 1898, constituted the cities of New York and Brooklyn, 
 it is provided by statute that, when an excavation is to be carried more 
 than ten feet below the curb, the party making it must support and main- 
 tain, uninjured, contiguous walls and buildings, if he be given the neces- 
 sary license to enter upon the lands of their owners for that purpose ; but, 
 when an excavation is not to be carried more than ten feet below the curb, 
 the owners of adjoining walls and buildings must support and preserve 
 them at their own expense. N. Y. Laws 1885, ch. 456; 1887, ch. 566, 
 § 3; 1892, ch. 275, § 9 ; 1855, ch. 6 ; 1888, ch. 583. Under these statutes, 
 when the excavation is to be made more than ten feet below the curb, the 
 person making it must request permission from the neighboring proprietors 
 to enter upon their lands to an extent sufficient to enable him to shore up 
 and protect their walls; and it is no defence, in an action against him for 
 damages for injury occasioned by his excavation, that the plaiiitifi did not 
 proffer such a license without being asked for the same. Dorrity v. Rapp, 
 72 N. Y. 307 ; Cohen v. Simmons, 21 N. Y. Supp. 385. See also McKeiizie 
 V. McKenzie, 141 N. Y. 6; Ketchum v. Newman, 116 N. Y. 422. Unless 
 full, explicit license to enter on the land is given when so requested, he 
 who excavates is not bound to protect the adjoining wall or building. Sher- 
 wood V. Seaman, 2 Bosw. 127; Johnson v. Oppenheim, 55 N. Y. 280. 
 But when such permission is requested and given, he must support them, 
 though he digs less than ten feet; Blanohard v. Savarese, 97 App. Div. 58, 
 aff'd 184 N. Y. 537. This statute does not apply to excavations that affect 
 merely the foundations of a stoop; and therefore they are governed by the 
 rules of the common law. Berry v. Todd, 14 Duly, 450. 
 
 is difficult to see how the owner of a 739 ; Love v. Bell, L. R. 9 App. Cas. 286 ; 
 house can acquire by prescription a Kowbotham v. Wilson, 8 H. L. Cas. 348 ; 
 right to have it supported by the ad- Pringle v. Vesta Coal Co., 172 Pa. St. 
 joining land, inasmuch as he does noth- 438; Robertson v. Coal Co., 172 Pa. St. 
 ing upon, and has no use of, that land 566; Williams v. Hay, 120 Pa. St. 485; 
 which can be seen or known, or inter- Marvin ti. Brewster I. M. Co., 55 N. Y. 
 rupted or sued for by the owner thereof, 538, 556 ; N. J. Zinc Co. a. N. J. Frank- 
 and therefore no assent of the latter can linite Co., 13 N. J. Eq. 322 ; Erickson v. 
 be presumed to the acquirement of any Mich. L. & T. Co., 50 Mich. 604 ; Burg- 
 right in his land by the former." ner v. Humphrey, 41 Ohio St. 340 ; 
 
 1 1 Stim. Amer. Stat. L. §§1170, Mickle d. Douglas, 75 Iowa, 78 ; Yandes 
 
 2251. u. Wright, 66 Ind. 319. 
 
 '' Humphries v. Brogden, 12 Q. B. 
 
m t'-t 
 
 284 KINDS OP REAL PROPERTY. 
 
 lower property consists of rock, clay, minerals, or other stable 
 substances, or of easily movable materials such as quicksand ; ^ 
 and whether one of the strata is surface land, or both are some 
 distance below the surface.^ The lo\yer owner must not remove 
 his soil, by digging it away, or even by pumping it out, as, for 
 example, when it is quicksand, in such a ijianner as to cause a 
 subsidence of the land above.^ 
 
 Questions relating to subjacent support of soil are most 
 numerous and important in mining localities. The natural 
 right to sucli support does not prevent the owner of subsurface 
 mineral property from utilizing it by removing the minerals ; 
 but it requires him, in the process of mining, to leave, or in 
 some manner to supply and maintain, an adequate protection 
 against the si^bsidence of the land of the upper proprietor.* 
 When, therefore, the owner of the entire interest in a tract of ' 
 land sells the lower mineral portion and keeps the surface, he 
 ■impliedly retains also the natural servitude in the support of 
 his surface soil ; and, when he conveys the upper stratum and 
 retains the lower, he impliedly grants also the right against 
 himself to have the upper stratum vertically, supported in its 
 natural state.^ The owner of the mineral property, while re- 
 quired to endure this servitude of support, has a reciprocal 
 right to a way through the upper strata to the surface. He 
 may use the surface land, as by constructing and working 
 shafts and roads, to as great an extent as is reasonably neces- 
 sary for the proper enjoyment of his own property, provided he 
 thereby injures the other proprietor as little as possible.^ Such 
 rights frequently arise in substantially the same manner and 
 with practically the same incidents as ways of necessity. 
 
 § 210. Subjacent Support of Buildings. — Beyond the rights 
 and burdens already explained, as existing between different 
 owners of different strata of soil, the common law does not 
 
 1 Cabot V. Kingman, 166 Mass. 403. App. Cas. 95; Backhouse v. Bonomi, 9 
 
 2 Eobertson «. Coal Co., 172 Pa. St. H. L. Cas: 503; Williams v. Hay, 120 
 566 ; Mundy v. Duke of Rutland, L. R. Pa. St. 485 ; Carlin v. Chappel, 101 Pa. 
 23 Ch. Div. 81, 89. St. 348; Jones •,. Wagner, 66 Pa. St. 
 
 s Ibid. ; Pringle v. Vesta Coal Co., 429. 
 172 Pa. St. 438. See Forbell v. City of ^ Humphries u. Brogden, 12 Q. B. 
 
 New York, 164 N. Y. 522; Reisert v. 739, 746; Harris v. Ryding, 5 M. & W. 
 
 City of New York, 174 N. Y. 196; 60; Pringle «. Vesta Coal Co., 172 Pa. 
 
 Popplewell V. Modkinson, 4 Exch. 248, St. 438, 442 ; Livingston v. Moingona 
 
 251 ; Elliott v. N. E. R. Co., 10 H. L. Coal Co., 49 Iowa, 369. 
 Cas. 333. 6 Pringle v. Vesta Coal Co., 172 Pa. 
 
 * Humphries v. Brogden, 12 Q. B. St. 438. 
 739, 745; Wilson v. Waddell, L. li. 2 
 
IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 285 
 
 ordinarily go in the creation of natural servitudes of vertical 
 support. Other rights and privileges of a similar character 
 arise if at all from express or implied grant or from prescrip- 
 tion, and are technical common-law easements. Such is the 
 right to burden the surface stratum with buildings and insist 
 that the owner of the portion of earth lower down, such as the 
 owner of mines below, shall sustain the weight of the building 
 in addition to that of the upper soil in its natural condition. 
 There is very little positive adjudication upon this branch of 
 the law of subjacent support. But the above statements are 
 clear in principle, and harmonize with the cases actually de- 
 cided and with the opinions and utterances of eminent judges 
 and jurists.^ The ordinary statement of such writers, with 
 regard to separate ownerships of higher and lower properties, 
 is that the upper one has a right by nature to be supported in 
 its natural condition by the lower stratum.^ 
 
 There is more positive adjudication as to the rights and 
 duties of separate owners of different stories or flats of a house. 
 And it is settled that neither can remove, destroy, or alter his 
 portion in such a manner as to work an injury to any other 
 owner ;^ that the owner of an upper story is entitled to verti- 
 cal support from the lower parts of the building and to share 
 in such lateral support as the building may of right enjoy ; * 
 but that ordinarily neither of such owners can compel any of 
 the others to make repairs or to contribute towards the making 
 of the same.* ' 
 
 Party-vjall Bights, and other Similar Easements and Servitudes. 
 
 § 211. Different Kinds of Wall Rights. — The various forms of 
 expressions employed to denote wall rights and privileges are 
 frequently used, even by lawyers and judges, in loose and inac- 
 curate senses ; and the term " party-wall right " has been made 
 
 ' Humphries v. Brogden, 12 Q. B. Dalton v. ADgus, L. II. 6 App. Cas. 740 ; 
 
 739, 745 ; Dalton v. Angus, L. K 6 Graves v. Berdan, 26 N. Y. 498. 
 App. Cas. 740; Pierce v. Dyer, 106 * Harris v. Ryding, 5 51. & W. 60; 
 
 Mass. 374 ; Pringle v. Vesta Coal Co., Dalton v. Angus, L. R. 6 App. Cas. 
 
 172 Pa. St. 438; Dorrity v. Rapp, 72 740; Birmingham v. Allen, L. R. 6 Ch. 
 
 N. Y. 307. Div. 292 ; Richards v. Rose, 9 Exch. 218; 
 
 ^ Dalton V. Angus, L. R. 6 App. Graves v. Berdau, 26 N. Y. 498 ; Con- 
 
 Cas. 740; Lasala v. Holbrook, 4 Paige uel v. Kibbe, 33 III. 175; Rhodes v. 
 
 (N. Y.), 169; Pierce v. Dyer, 109 Mass. McConnick, 4 Iowa, 308. 
 374. '" Pierce v. Dyer, 109 Mass. 374, 376 ; 
 
 2 Hariis v. Ryding, 5 M. & W. 60 ; Ottumwa Lodge v. Lewis, 34 Iowa, 67. 
 
286 KINDS OP REAL PROPERTY. 
 
 to describe all sorts of easements and servitudes found in con- 
 nection with structures erected upon division lines. But, from 
 the more recent and accurate use of words in this connection, 
 we may observe four distinct, important species of wall rights. 
 It is important carefully to distinguish these and observe the 
 chief characteristics of each, especially as they come into play 
 in erecting, altering, preserving, or destroying buildings in 
 large cities. They are the rights which arise and exist in con- 
 nection with, a, an independent wall, 6, a common wall, c, a 
 mere easement of support in a wall which belongs entirely to 
 another, and d, a party wall.^ 
 
 § 212. a. Independent WaU. — An independent wall, as its 
 name indicates, is owned separately and distinctly by' the pro- 
 prietor of the land on which it stands. Such are ordinarily 
 the front and rear walls of houses, and the side walls which are 
 erected wholly on the lot upon which the house stands and 
 without any connection with any other structures. About the 
 only form of easement incident to this kind of wall is that of 
 support, which arises when a house is so constructed tliat its 
 side wall, although in form entirely independent, has come to 
 depend more or less on the wall of an adjacent building, or 
 when two houses are so constructed that their adjoining dis- 
 tinct walls mutually support each other.^ 
 
 § 213. h. Common Wall. — By this is meant a wall of which 
 the two adjoining owners are tenants in common (or possibly 
 joint tenants), i. e., each owns an undivided interest in the 
 entire structure ; and no part of it is owned independently and 
 absolutely by either of them.^ This is the kind of structure 
 which a wall erected partly on one man's land and partly on 
 another's may become when no statute, nor contract, nor pre- 
 scriptive right makes its nature different.^ Yet most walls so 
 built are affected by. some contract, express or implied, or gov- 
 erned by positive statutory enactment. And the results are 
 that they are generally not common walls, but erections of 
 
 1 See Watson v. Gray, L. R. U Ch. « Wiltshire v. Sidford, 1 Mann. & 
 Div. 192, 194. By. 404; Cubitt ■/. Porter, 8 B. & C. 
 
 2 Richards v. Rose, 9 Exch. 218; 257, 165; Watson u. Gray, L. R. 14 
 Lemaitre v. Davis, L. R. 19 Ch. Div. Ch. Div. 1^2, 194. 
 
 281 ; Webster v. Stevens, 5 Duer (N.Y.), * Backhouse v. Bonomi, 9 H. L. Cas. 
 
 553 ; Eno v. Del. Vecchio, 4 Duer 503 ; List v. Hornbrook, 2 W. Va. 340, 
 
 (N. Y.), 53; Solomon 1-, Vintner's Co., 345; Gilmore v. DriscoU, 122 Mass. 
 
 4 H. & N. 585. See Peyton' r. Loudon, 199, 207; Quinn v. Morse, 130 Mass. 
 
 9 B. & C. 725 ; Adams v. Marshall, 138 317 ; Whiting v. Gaylord, 66 Conn. 337. 
 Mass. 228. 
 
IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 287 
 
 some other nature, and most frequently party walls. Indeed, 
 in the absence of evidence to the contrary, a wall thus built 
 upon two lots is ordinarily presumed to be a party wall, and is 
 governed by tlie rules of law applicable to such a structure.^ 
 Those rules, as hereafter explained, have necessarily to deal 
 with easements and servitudes. But, in connection with a 
 mere common wall, there are usually no such rights or bur- 
 dens, except those wliich happen to be made by special con- 
 tract between the owners. This last named form of wall is, 
 therefore, described here simply for the sake of completeness. 
 
 § 214. c. Right of Support in a Wall -w^hich belongs entirely 
 to Another. — This may be a privilege of supporting a wall of a 
 house, as above explained.^ But, in connection with building 
 operations in cities, it is most frequently in the form of an 
 easement in the support of the beams or joists of a house in 
 the wall upon the adjoining lot. Thus, A, intending to erect 
 a house upon his own lot and finding that B, the owner of the 
 contiguous land, has already built up close to the dividing line 
 between the two properties, frequently purchases from B the 
 right to support the beams of his contemplated structure in the 
 wall already existing upon B's lot. He then erects his building 
 without constructing any new wall upon that side, and depends, 
 for the security of his house, upon the validity of the contract 
 which he has made with B. Such a right, being a common- 
 law easement, may be acquired by any form of grant, or by 
 prescription. But he who depends for the safety of his build- 
 ing on a privilege of this nature has upon him, in any liti- 
 gation concerning it, the burden of clearly establishing its 
 existence.^ As a rule, it is the least satisfactory, for its owner, 
 of all the kinds of wall easements and servitudes. 
 
 § 215. d. Party "Wall — Definition — General Nature. — A 
 party wall is a division wall erected on or near the line be- 
 tween two pieces of land belonging to different owners, and so 
 constructed that each owns absolutely that portion of it which 
 stands upon his own land and also a right of support in the 
 
 1 Cubitt V. Porter, 8 B. & C. 257; " Hodgkins u. Farrington, 150 Mass. 
 Schile V. Brokhahus, 80 N. Y. 614 ; 19 ; Rogers v. Sinsheimer, 50 N. Y. 646 ; 
 Campbell v. Mesier, 4 Johns, Ch. (N. Y.) Pearsall v. Westcott, 30 N. Y. App. 
 334; Weyman v. Ringold, 1 Bradf. Div. 99, 102; Spero u. Schultz, 14 N. Y. 
 (N. Y.) 40; Warner v. Sonthworth, 6 App. Div. 423; Moore f. Rayuer, 58 
 Conn. 471 ; Weill v. Baker, 39 La. Ann. Md. 411 ; Whiting v. Gaylord, 66 Conn. 
 1102. 337. 
 
 2 § 212, supra. 
 
288 KINDS OP REAL PROPERTY. 
 
 entire wall. Thus, if A and B owning adjacent lots of land 
 build a party wall twelve inches thick standing one-half on 
 A's lot and one-half on B's, A owns all the corporeal sub- 
 stance of the six inches of the wall on his land, the right to 
 compel B to retain the other six inches for its support and the 
 right to make such use of the entire structure (as by sticking 
 beams into it and resting joists upon it) as may be reasonably 
 required in the proper construction and preservation of the 
 house on A's property. And B has the ownership of tlie 
 six inches on his lot and the same kinds of rights against 
 A's half of the wall. While, then, there is no co-ownership 
 of the tangible materials of which the wall is composed, there 
 are cross easements or servitudes in the mutual rights to sup- 
 port-of each half of the wall by the other half and in the beam 
 and building rights required for the respective houses.^ It is 
 not necessary, however, that a party wall should stand with 
 one-half of it upon each of the adjoining parcels of land. 
 The greater portion, or even all of it, may be on one side of 
 the dividing line ; or that line may run diagonally through the 
 wall.^ The incorporeal rights and privileges are the same, in 
 all such cases, and the only distinctions are as to the quantities 
 of the corporeal substance which belong to each proprietor. 
 Each one owns the bricks and mortar, or other substantial mate- 
 rials, upon his side of the division lin'e, even though they may 
 include very little, or the most, or the whole of the wall. But 
 he holds them subject to the support, beam, and building rights 
 of his neighbor, as above explained. In some cases, it has 
 been shown that the structure in question stood entirely on 
 one man's land, and even some little distance away from the 
 
 1 "The adjoining owners are not v. Becker, 143 N. Y. 303; Nat. Cora, 
 
 joint tenants or tenants in common of Bk. o. Gray, 71 Hun (N. Y.), 295; 
 
 the party wall. Each is possessed in Normille b. Gill, 159 Mass. -127 ; Traute 
 
 severalty of his own soil up to the divid- v. White, 46 N. J. Eq. 437 ; Milne's 
 
 ing line, and of that portion of the wall Appeal, 81 Pa. St. 54 ; Gibson v. Holden, 
 
 which rests upon it; but the soil of 115 111. 199; Graves v. Smith, 87 Ala. 
 
 each, with the wall belonging to him, is 450. 
 
 hardened with an easement or servitude ^ Pearsall v. Westcott, 30 N. Y. 
 
 in favor of the other, to the end that it App. Div. 99, 102 ; Fettretch v. Leamy, 
 
 may afford a support to the wall and 9 Bosw. (N. Y.) 510, 530; McVey v. 
 
 buildings of such other." Bouvier's Dnrkin, 136 Pa. St. 418; Tate u. Fratt, 
 
 Law Diet. "Party Wall." HofEman v. 112 Gal. 613; Zeininger v. Schnitzler, 
 
 Kuhn, 57 Miss. 746 ; Odd Fellows ■/. 48 Kan. 63 ; Barry v. Edlavitch, 84 Md. 
 
 Hegele, 32 Pac. Rep. 681 (Oreg.) ; Par- 98 ; Marion v. Johnson, 23 La. Ann. 
 
 tridge v. Gilbert, 15 N. Y. 601, 614 ; 597. 
 Brooks V. Curtis, 50 N. Y. 639 ; Negus 
 
IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 289 
 
 lot of the other ; and yet such other landowner has been held 
 to have in it all the rights and privileges appertaining to a 
 party wall.^ 
 
 The expression " party wall " does not necessarily imply a 
 solid structure.^ There is, for example, no rule of law which pre- 
 vents one who is building such a wall, under an agreement 
 with his neighbor that the latter will pay for half of it, from 
 leaving in it chimney flues. And when it is the general custom 
 of the place to put flues in party walls, such custom may be 
 invoked to show that the wall was built in accordance with 
 the understanding and intention of the contracting parties.^ 
 But the rights and privileges to which such a structure gives 
 rise are limited in extent, and are ordinarily confined to the 
 purposes of mutual support.* Hence one lot owner can not, 
 without the consent of the other, erect the wall with openings 
 in it, such as windows or doors, nor place or maintain them in 
 it after its erection,^ nor construct or use it for any purpose 
 otiier than those of a division wall for the support and preser- 
 vation of the two houses and as an external wall for each.* 
 
 § 216. Creation of Party-wall Rights. — In some states, party 
 walls and their accompanying, rights and duties are specially 
 provided for by statutes. And, in all jurisdictions, they may 
 
 1 Pearsall r. Westcott, .'20 N. Y. Graffort, 35 Iowa. 531 ; DuDSComb v. 
 App. Div. 99; Tate v. Fratt, 112 Cal. Kauilolph, 107 Teun. 89. 
 
 S\3; Dorsey a. Ilabersack, 8+ .Md. 98; '' l)e U:um r. Moore, 22 N. Y. App. 
 
 McVey v, Durkin, 136 Pa. St. 418. Div. 485; also c.ise.s cited supra, last 
 
 2 Haramann r. .Jordan, 129 N. Y. 61 ; six notes, and especially Nat. Com. Bk. 
 Pettretch v. Leamy, 9 Bosw. (N. Y.) w. Gray, 71 Hun (N. Y.), 295 ; Brooks c. 
 510, 525; Ingals v. Plamondon, 75 111. Curtis, 50 N. Y. 639; Norinille v. Gill, 
 118. 159 Mass. 427; Wells v. Garbutt, 132 
 
 ' Hammann v. Jordan, 129 N. Y. N. Y. 430; Paine v. Chandler, 134 
 
 €1 ; De Baun v. Moore, 32 N. Y. App. N. Y. 385 ; VoUraer's Appeal, 61 Pa. St. 
 
 Div. 397, 398; Batt v. Kelly, 75 N. Y. 118 ; Traute v. White, 46 N. J. Eq. 437. 
 App. Div. 321. ^ Normille v. Gill, 159 Mass. 427; 
 
 * "Various reasons of inconvenience Wistar v. Amer. Bap. Soc, 2 W. N. C, 
 
 or peril have been assigned for the (Pa.) 333; Dauenhauer v. Devine, 51 
 
 doctrine, but they are all referable, we Tex. 480; Dawson v. Kemper, 11 Ohio 
 
 think, to the general doctrine that the Cir. Ct. 180, 181. 
 
 easement is only a limited one, and it is But, of course, a contract, expressly 
 
 not to be extended so as to include made by the parties or implied from 
 
 Tights and privileges not belongiug to their conduct, may vary these princi- 
 
 the character of a wall which is to be pies, and enable one of the owners 
 
 owned in common, [and in which the of a party wall to put windows in 
 
 rights of each owner are equal." Nor- it or otherwise vary its form or use. 
 
 mille 1^. Gill, 159 Mass. 427; Fettretch Hammann u. Jordan, 129 N. Y. 61; 
 
 1. Leatny, 9 Bosw. (N. Y.) 510; Harber Weigmann v. Jones, 163 Pa. St. 330; 
 
 V. Evans, 101 Mo. 661; Sullivan v. Grimley v. Davidson, 35 111. App. 31; 
 
 Barry ;;. Edlavitch, 84 Md. 95. 
 
290 KINDS OP REAL PROPERTY. 
 
 arise from express contract or covenant, including reservation 
 of sucli rights in the conveyance of corporeal property, or from 
 implied grant or contract, or from prescription. 
 
 The general purport of statutes, which authorize the erection 
 and maintenance of such walls, is that, in a city or town, one 
 who builds a wall of brick or stone contiguous to the vacant 
 lot of his neighbor may place one-half of it upon such neighbor's 
 land, and that, when the latter uses the wall, which he may 
 do at any time, he shall contribute one-half of the cost of its 
 construction. Such enactments, varying considerably in de- 
 tails, are found, and sustained by the courts as valid forms of 
 exercise of the police power, in the District of Columbia, Iowa, 
 Louisiana, Mississippi, Pennsylvania, and South Carolina.^ 
 In other states, such as Massachusetts and New Jersey, such 
 legislation has been declared to be unconstitutional and void, 
 as an attempt to authorize an illegal taking of private property 
 for private purposes.^ It would seem that, in the absence of 
 positive constitutional authority, statutes of such a nature ought 
 not to be sustained. 
 
 One of the most common methods of bringing party walls 
 into existence is as the result of express grant or covenant 
 entered into by the owners of the two contiguous lots of land.* 
 
 Many come into being, also, by virtue of contracts implied 
 by the law from the conduct and transactions of the owners 
 of the parcels of land affected. Probably the most preva- 
 lent illustration of this latter method of creating them is 
 found in that large class of cases in which one person has 
 built two or more connected houses in a row, with single 
 walls (ordinarily eight or twelve inches thick) between 
 them, and has subsequently sold them and the lots of land 
 on which they stand respectively to different purchasers, or 
 has sold one or more and retained the adjacent ones. Unless 
 
 1 1 Stim. Amer. Stat. L. §§ 2170- the right to use it at the owner's free 
 
 2177; Jones, Ease. §§ 635-640. will and pleasure, so that he does not 
 
 ^ " It seems to me that where my injure his • neighbor or the public.'-' 
 
 neighbor takes exclusive possession and Traute v. White, 46 N. J, Eq. 437, 440 ; 
 
 occupation of my land by corering it Williams v. Jewett, 139 Mass. 29. But 
 
 with a solid wall of masonry many see Evans v. Jayne, 23 Pa. St. 34, 36. 
 feet high, he ' takes ' it from me in the ' King v. Wight, 155 Mass. 444; 
 
 most thorough and effective manner, Garmire v. Willy, 36 Neb. 340 ; Brooks 
 
 although the legal title remains iu me. r. Curtis, 50 N. Y. 639 ; Keteltas v. 
 
 I do not understand that the legal title Penfold, 4 E. D. Smith (N. Y.), 122; 
 
 is at all involved Jn an unlawful 'tak- Gibson v, Holden. 115 111. 199; Duncan 
 
 ing' of land, but that it is a question v. Rodecker, 90 Wis. 1. 
 rather of practical dominion over, and 
 
IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 291 
 
 the deeds or other contracts between the parties expressly pro- 
 vide otherwise, such walls thus become party walls by implica- 
 tion of law, whether the dividing lines are described as running 
 through the middles of such walls, or simply through such 
 walls, or the descriptions of the lots are only by courses and 
 distances or simply by designation of the buildings.^ Each 
 purchaser is presumed to have contracted with rel'erence to the 
 actual condition of the properties at the time, and to have 
 taken his house and lot with all the benefits and burdens 
 which apparently belonged to them. So, if one build a wall 
 of his house partly upon land of his neighbor, and this without 
 the consent of such neighbor, the latter may, at his election, 
 treat the structure as a party wall, and, without paying for 
 any portion of it, may use it as such. The one who con- 
 structed it is estopped by his location of it to deny that he 
 intended to make it a party wall ; ^ but the otlier, if he so 
 elect, may refuse to treat it in that manner and compel its 
 removal from his land.^ Again, when neighbors construct 
 their houses at the same time and erect between them a single 
 wall in and upon which each supports his building, it thereby 
 becomes a party wall by implication.* And, in general, when- 
 ever the owners of contiguous lots of land place a wall upon 
 or near the boundary line between them and mutually use it 
 for the support of the beams or joists or roofs of their build- 
 ings, and whenever two persons become separate owners of 
 distinct houses so constructed with reference to some wall, and 
 there is no positive contract between them to the contrary, the 
 law presumes that the wall is a party wall.^ 
 
 1 Richards v. Rose, 9 Exch. 218; « Sherred o. Cisco, 4 Sand. (N. T.) 
 
 Solomon «. Vintner's Co., 4 H. & N. 480 ; Potter v. White, 6 Bosw. (N. Y.), 
 
 585, 586 ; Eno v. Del Vecchio, 4 Daer 644 ; Brown v. McKee, 57 N. Y. 684 ; 
 
 (N. Y.), 53 ; Partridge v. Gilbert, 15 N. Y. Pile v. Pedrick, 167 Pa. St. 296 ; Hough- 
 
 601 ; Brooks v. Curtis, 50 N. Y. 639, 642 ; ton v. Mendenhall, 50 Minn. 40 ; Kells 
 
 Heartt v. Kruger, 121 N. Y. 386; Carl- v. Helm, 56 Miss. 700. 
 
 ton V. Blake, 152 Mass. 176; Everett v. 
 Edwards, 149 Mass. 588; Warfel 
 Knott, 128 Pa. St. 528 ; Ingals v. Plamon- 
 don, 75 111. 118; Henry v. Koch, 80 Ky. 
 391 ; Hieatt v. Morris, 10 Ohio St. 523, 
 ^ Heartt v. Kruger, 121 N. Y. 386 
 Rogers v. Siusheimer, 50 N. Y. 646 
 Lampman v. Milks, 21 N. Y. 505, 507 
 
 * Rindge v. Baker, 57 N. Y. 209; 
 Huck V. Flentye, 80 111. 258 ; Miller <,. 
 Broivn, 33 Ohio St. 547 ; Eckleman k.. 
 Miller, 57 Ind. 88'; Wickersham ti. Orr,. 
 9 Iowa, 253 ; Rice v. Roberts, 24 Wis. 
 461 ; Hammond v. Schiff, 100 N. C. 
 161. 
 
 * " In the absence of evidence to the 
 
 Henry v. Koch, 80 Ky. 391. But he is contrary a common wall between two- 
 
 not estopped to prevent the other from adjoining estates is presumptively a 
 
 running the wall further back upon the party wall, either from an agreement 
 
 lot. Schmidt v. Lewis, 63 N. J. Eq. 564. to that effect or from its being built. 
 
292 KINDS OP REAL PROPERTY. 
 
 Lastly, by prescription a division wall between buildings 
 becomes a party wall after continuous adverse user as such 
 for the full prescriptive period.^ The burden of proof to show 
 all the elements of such user rests strongly upon him who 
 claims the party-wall rights. He must show, not only the 
 proper method of enjoyment by himself, or by himself and his 
 predecessor in title, but also the negative fact that no disa- 
 bility of the other party prevented the running of the full 
 prescriptive period .^ 
 
 § 217. Use of Party Walla. — The principle of law which 
 regulates the enjoyment of these structures and the rights con- 
 nected with them is that they are for the common benefit and 
 convenience of the adjoining properties ; and the only restric- 
 tion ordinarily imposed upon the right of one party to use 
 them is that such use shall not be detrimental to the other 
 owner.^ Accordingly, one alone, in the absence of restraining 
 contract, may make the foundation deeper and stronger, 
 or build the wall up higher, and both of these things he may 
 do to the full thickness of the wall on both sides of the line be- 
 tween the adjoining lots ; * he may add thickness to it upon his 
 side of that line, and so, by any or all of these means, he may 
 make the wall suitable for a larger building, or for one differ- 
 ent in other respects from that originally existing or contem- 
 
 upon the lines of such estates for that Graves v. Smith, 87 Ala. 450 ; Brown 
 
 purpose by the respective owners. Of v. Werner, 40 Md. 15. 
 coarse, this presumption may be re- '■' Moore v. Raynor, 58 Md. 411; 
 
 butted by evidence that the whole wall Spero v. Schultz, 14 N. Y. App. Div. 
 
 belongs to the owner of one estate, or 423. 
 
 by evidence that the owner of the two ' Partridge i>. Gilbert, 15 N. Y. 601 ; 
 estates owns half of the wall in separate Mittnacht v. Slevin, 142 N. Y. 638 ; 
 ownership, subject to no easement in Myers v. Becker, 143 N. Y. 303; Carl- 
 favor of the other." Jones, Ease. § 644, ton v. Bkke, 152 Mass. 176; Lukens v. 
 citing Cubitt v. Porter, 8 B. & C. 257 ; Lasker, 202 Pa. St. 327 ; Graves v. 
 Mat,t V. Hawkins, 5 Taunt. 20; Watson Smith, 87 Ala. 450; Tate v. Fratt, 112 
 v. Gray, L. R. 14 Ch Div. 192; Schile Cal. 613 ; Andrae v. Haseltine, 58 Wis. 
 «. Brokhahus, 80 N. Y. 614 ; Campbell u. 395; Jones v. Pritchard (1908), 1 Ch, 
 Mesier, 4 Johns. Ch. (N. Y.) 334 ; Wey- 630. 
 
 man v. Ringold, 1 Brad. (N. Y.) 40 ; * Standard Bank ■.. Stokes, L. R, 9 
 
 Weill .«. Baker, 39 La. Ann. 1102; Ch. Div. 68; Eno v. Del Vecchio, 4 
 
 Warner v. / Southworth, 6 Conn. 471 ; Duer fN. Y.j, 53; Brooks v. Curtis, 50 
 
 Murly V. McDermott, 8 Adol. & El. N. Y. 639 ; Negus v. Becker, 143 N. Y. 
 
 138. 303; Carlton v. Blake, 152 Mass. 17G; 
 
 1 Schiler. Brokhahus, SON. Y. 614; Everett v. Edwards, 149 Mass. 588; 
 
 Lewis I'. Gollner, 129 N. Y. 227 ; Eno Matthews v. Dixey, 149 Mass. 595 ; 
 
 V. Del Vecchio, 4 Duer (N. Y.), 63; Barry v. Edlavitch, 84 Md. 95; Dauen- 
 
 McVey c. Durkin, 136 Pa. St. 418; hauer <j. Devine, 51 Tex. 480; Haiber 
 
 Hodgkin v. Farrington, 150 Mass. 19; n. Evans, 101 Mo. 661. 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 293 
 
 plated.^ When one of the owners has thus made additions to 
 a party wall, the other may use it in its changed condition, 
 without paying anything for the benefit of the improvements, 
 unless he has bound himself by contract to make compensation 
 for such advantages.^ The substantial reason why one can not 
 put windows, doors, or other openings in the wall against the 
 will of the other is that this would injuriously restrict the 
 practical uses to be made of it by the latter.^ 
 
 § 218. Repairing, Removing, and Rebuilding Party Walls. — 
 A part}' wall being for the benefit and convenience of the adjoin- 
 ing proprietors, they are obliged to contribute ratably towards 
 keeping it in suitable condition for the purposes for which it 
 was erected or exists. If, therefore, it need repairing, one 
 of them may do the work or have it done and hold the other 
 responsible for one-half of the expense thereby reasonably 
 incurred.* But this right extends only to rejmirs properly so 
 called. And if they allow the wall to become so dilapidated 
 and ruinous that the only practical way to restore it is to 
 rebuild it from the foundation up, the party-wall rights as 
 such cease to exist, and neither can compel the other to con- 
 tribute towards the renewal of the wall; nor will either of 
 them, without the concurrence of the other, be justified in re- 
 building it even entirely at his own expense.^ So, if any 
 ordinary party wall be destroyed by inevitable accident, as by 
 fire, wind, or flood, neither owner can compel the other to 
 help to restore it, nor can either replace it without the consent 
 of the other.* 
 
 1 Walker v. Stetson, 162 Mass. 86; Martin, 2 Lea (Tenn.), 213; 31 Amer. 
 "Wolfe V. Frost, 4 Sandf. Ch. (N. Y.) Rep. 598. 
 
 72 ; Partridge v. Gilbert, 1.5 N. Y. 601 ; » § 215, supra ; Normille v. Gill, 159 
 
 Qninn o. Morse, 130 Mass. 317 ; Mitt- Mass. 427 ; Weston v. Arnold, L. R. 8 
 
 nacht V. Slevin, 142 N. Y. 638, 683 ; Mus- Ch. App. 1084 ; Milne's Appeal, 81 Pa. 
 
 grave v. Sherwood, 54 How. Pr. (N. Y.) St. 54; Harber v. Evans, 101 Mo. 661 ; 
 
 338, 60 How. Pr. (N. Y.)339; Sebald t. Sullivan t. Graffort, 35 Iowa, 531; 
 
 Mdlholland, 155 N. Y. 455. Harmann v. Jordan, 129 N. Y. 61. 
 
 2 Walker v. Stetson, 162 Mass. 86; * Campbell v. Mesier, 4 Johns. Ch. 
 Eno V. Del Vecchio, 4 Duer (N. Y.), (N. Y.) 334 ; Huck v. Flentye, 80 HI. 
 .53. "There are decisions, however, to 258; Sherred !•. Cisco, 4 Sand. (N. Y.) 
 the effect that one who builds a party 480 ; Odd Fellows Ass'n u. Hegele, 24 
 wall higher for his own convenience is Oreg. 16. 
 
 entitled to contribution from the other ^ Partridge v. Gilbert, 15 N. Y. 601, 
 
 owner, who, without an agreement in 615; Antomarchi r. Russell, 63 Ala. 
 
 relation to the wall, uses the additions, 356 ; List v. Hornbrook, 2 W. Va. 340 ; 
 
 to the extent of one-half of the value of Reynolds r. Fargo, 1 Sheld. (N. Y.) 531. 
 the additions at the time they are used." ^ Sherred v. Cisco, 4 Sand. (N. Y.) 
 
 Jones, Ease. § 703, citing Sanders v. 480, 487 • Partridge v. Gilbert, 15 N. Y. 
 
294 KINDS OF EBAL PROPERTY. 
 
 It is because of its characteristics, as above explained, that 
 the existence of a party wall on a lot of land, and the ordi- 
 nary covenants relating to it, do not constitute an encum- 
 brance within the meaning of a covenant against encumbrances 
 in a deed of the land or in a contract for its sale.^ But when 
 to these is added a perpetual covenant, running with the land, 
 to the effect that the adjoining owners and their heirs and 
 assigns shall forever share equally the expense of repairing or 
 rebuilding the wall, and that whenever rebuilt it shall be of 
 the same size as before and of similar materials, the wall con- 
 trolled by such a covenant constitutes an encumbrance upon 
 the titles to both of the lots.^ So, a wall built entirely upon 
 one piece of land, but subject to use for all purposes as a party 
 wall by the owner of the adjacent lot, is an encumbrance upon 
 the lot on which it stands.^ 
 
 One owner of a party wall has no right to tear it down, or 
 •otherwise to do away with it, as long as it is safe and suitable 
 for the adjoining owner.* But, in the process of building or 
 repairing on his own property, one may take it down, or 
 otherwise deal with it for his own convenience, provided he re- 
 stores it for the use of the other proprietor and causes the latter 
 no injury or inconvenience while such removal, restoration, or 
 other changes are being effected.^ He who thus assumes to 
 deal with a party wall for his own benefit does so at his own 
 risk, and must, at his peril, save his neighbor harmless from 
 loss or legal injury by virtue of such change or changes.'' 
 
 § 219. Division Fences. — Somewhat similar to easements 
 connected with walls are rights which sometimes exist in 
 favor of landowners to compel their neighbors to build or 
 
 601; Heartt v. Kruger, 121 N. Y. 386; Mohr v. Parmelee, 11 J. & S. (N. Y.) 
 
 Bonney v. Greenwood, 96 Me. 335; 320. 
 
 Pierce v. Dyer, 109 Mass. 374, 377; * Partridge y. Gilbert, 15 N. Y. 601 
 
 Huck V. Flentye, 80 111. 258 ; Orman Partridge v. Lyon, 67 Hun (N. Y), 29 
 
 V. Day, 5 Fla. 385 ; Hoffman v. Kuhn, Brondage v. Warner, 2 Hill (N. Y.), 145, 
 57 Miss. 746. 6 Standard Bk. .,. Stokes, L. E. 9 Cli, 
 
 1 Hendricks v. Stark, 37 N. Y. 106 ; Div. 68 ; Putzel v. Drovers & Mec, 
 Schaefer v. Blnmenthal, 169 N. Y. 221 ; Nat. Bk., 78 Md. 349 ; Partridge y. Gil- 
 Weld «.■ Nichols, 17 Pick. (Mass.) 538; bert, 15 N. Y. 601. 
 Bertram «. Cnrtis, 31 Iowa, 46. « Bower v. Peate, L. R. 1 Q. B. Div. 
 
 2 O'Neil V. Van Tassel, 137 N. Y. 321 ; Percival v. Hughes, L. R. 9 Q. B. 
 297; Corn v. Bass, 43 N. Y. App. Div. Div. 441 ; Dorrity v. Kapp, 72 N. Y 
 53; Savage v. Mason, 3 Gush. (Mass.) 307; Schile v. Brokhahus, 80 N. Y. 614 
 500; Mackey v. Harmon, 34 Minn. But he is not liahle for injuries caused 
 168. by the acts of an independent contractor, 
 
 ' Cecconi v. Rodden. 147 Mass. 164 ; Negus v. Becker, 143 N. Y. 303 ; Coving- 
 Giles u. Dugro, 1 Duer (N. Y.), 331 ; ton v. Geyler, 93 Ky. 275. 
 
IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 295 
 
 help build and maintain division fences between the parcels of 
 land. No such rights exist naturally at common law ; bat they 
 sometimes arise by grant or prescription.^ And, in most 
 states, statutes now provide more or less fully for the erection, 
 repairing, and preservation of division fences. Generally, 
 such statutes require each owner of the contiguous properties 
 to erect one-half of the fence, or to contribute one-half of its 
 cost, also to pay one-half of the cost of its repairs, or restora- 
 tion if destroyed, and to abstain from doing anything to cause 
 its destruction or injury. Pence-viewers are also provided for 
 and authorized to fix the amounts to be paid by the land- 
 owners, respectively, when the latter can not agree.^ (a) Such 
 fences may be placed one-half upon the land of each conter- 
 minous owner, when there is no prescription or contract to the 
 contrary .3 Such statutes, therefore, afford means of bringing 
 fence servitudes into being and regulating them by operation 
 of law. 
 
 Water Bights. 
 
 § 220. Kinds of Rights in Water. — In connection with real 
 estate, property in water can only be predicated of its use, 
 which serves in its enjoyment to give value to the corporeal 
 hereditaments with which its use is associated. Hence it is 
 that the valuable legal incidents of water take the form of 
 easements or servitudes. And most of them are not tech- 
 nical common-law easements, but rather servitudes, since they 
 exist by nature and do not have one estate wholly dominant 
 and another distinctly servient. When, however, artificial 
 water rights, privileges, and obligations arise, as they some- 
 times do, by grant or prescription, they are common-law ease- 
 ments in the strict, technical sense of that term. The logical 
 classification, therefore, of these forms of incorporeal heredita- 
 
 (a) In New York division fences in towns are now regulated by the 
 Town Law, L. 1909, ch. 63, §§ 360-369, L. 1892, eh. 20, art. 5; and those 
 between farms by the Town Law. See Gerard on Titles to R. E. (4th ed.) 
 p. 779. 
 
 1 Boyle V. Tamlyn, 6 B. & C. 329 ; ' Duffy v. N. Y. & H. R. Co., 2 Hilt. 
 Adams u. Van Alstyne, 25 N. Y. 232 ; (N. Y.) 496; Bronson v. Coffin, 108 
 Rust 1). Low, 6 Mass. 90, 97 ; Moore o. Mass. 175 ; Harlow v. Stinson, 60 Me. 
 Levert, 24 Ala. 310. 347, 349. See Pool v. Alger, 11 Gray 
 
 2 Stim. Amer. Stat. L. §§ 2181- (Mass.), 489 
 2190; 12 Amer. & Eng. Ency. L. 1050. 
 
296 KINDS OP BBAL PROPERTY. 
 
 ments is into a, natural water rights and 6, artificial water 
 rights or easements. And the first of these classes presents 
 three distinct divisions ; namely, the rights, immunities, and 
 burdens associated with, (a) natural and well-defined streams, 
 (b) surface waters not in defined streams, and (c) percolating 
 or subterranean waters — not in defined streams. These three 
 groups of natural water rights and obligations will be first dis- 
 cussed, in the order named, and then the easements connected 
 with artificial water courses will be briefly examined. 
 
 § 221. a. Natural Water Rights — (a) "Well-defined Streams 
 — Right of Access. — Around natui-al bodies of water and 
 streams flowing in defined channels (whether, on or below the 
 surface of the soil), the riparian proprietors have rights of 
 access to and enjoyment of the water facilities, which are valu^ 
 able property rights and of which they can not be deprived 
 without due process of law. For about forty years in the state 
 of New York, it was formerly held that those whose titles ex- 
 tended only to high-water mark along navigable streams had 
 no ground for complaint because their means of approach to 
 such waters were shut ofif by the building of railroads, wharves, 
 or other structures in front of their properties and below high- 
 water ihark. But this view has been discarded by that state ; 
 and the rule has been there adopted, which is generally fol- 
 lowed, that such owners of lands can not legally be deprived, 
 without their own consent, of the reasonable enjoyment of the 
 waters in front of their properties.^ Among such privileges, 
 appertaining to each riparian owner, are the right of access to 
 the navigable part of the water from the front of his land, and 
 the right to construct a wharf for his own use or the use of the 
 public. It is, accordingly, held that he may have an action for 
 an injunction or for the recovery of damages against a railroad 
 company or other person or institution by whose acts these 
 natural rights are injuriously affected.^ But the former doc- 
 trine of New York seems to be still adhered to in New Jersey, 
 and possibly in a few other states.^ And it is the uniform rule 
 
 1 Eumsey i-. N. Y. & N. E. R. Co., « Stevens v. Paterson & Newark 
 133 N. Y. 79 ; N. Y. C. & H. R. R. R. Co., 34 N. J. L. 532. See Hoboken 
 Co. V. Aldridge, 135 N. Y. 83 ; Matter of v. Pa. R. Co., 124 TJ. S. 656, 688, 690, 
 City of New York, 168 N. Y. 134. See 691 ; Mann v. Tacoma Land Co., 153 
 Hedges v. West Shore R. Co., 150 N. Y. TJ. S. 273, 283, 287; Coxe v. State of 
 150; City of Buffalo v. D. L. & W. R. New York, 144 N. Y. 396; Mark u. 
 Co., 190 N. Y. 84. West Troy, 151 N. Y. 453. 
 
 2 Ibid. ; Wall v. Pittsburgh Harbor 
 Co., 152 Pa. St. 427. 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 297 
 
 of the federal government and of the states alike that the rights 
 of such owners must yield to the requirements of navigation and 
 the improvements and use of property which it demands.^ 
 
 The common-law test of navigability of streams — tide- 
 waters only being navigable — while applying well in England, 
 where no rivers are in fact navigable except so far as the tide 
 ebbs and flows, is not wholly applicable to a country like this 
 with its large and important inland water highways. In the 
 different states, therefore, there is much divergence *of opinion 
 as to what kinds of streams are to be regarded as navigable in 
 the technical sense, and as to how far the ownership of riparian 
 proprietors extends. The tendency of the western states is to 
 treat rivers as navigable in law when they are so in fact, though 
 there is no tide within them.^ The eastern states adhere more 
 closely to the common-law test, (a) The Supreme Court of the 
 United States has decided that rivers, which form the bound- 
 aries between states, and are used or may be used for pur- 
 poses of commerce, are navigable rivers of the United States ; 
 and this, too, without regard to the consideration whether the 
 tide ebbs and flows within them. The same has been held as 
 to the Great Lakes.^ 
 
 (o) In New York, it is held that, except as to streams regulated by 
 positive statute, the common-law criteHon is applicable to streams in gen- 
 eral, but that the Hudson and Mohawk, even above tide-water, are gov- 
 erned by the civil law, according to which the riparian proprietors do not 
 own the bed of the stream. Smith i'. City of Rochester, 92 N. Y. 473 ; 
 The Canal Appraisers, 33 N. Y. 46. See Lincoln v. Davis, 53 Mich. 375; 
 § 50, supra. 
 
 1 Scrantonu. Wheeler, 179 U.S. 141; 185 U. S. 38; Kean v. Calumet Canal 
 Gibson v. United States, 166 U. S. 269; Co., 190 U. S. 452; Hardin o. Shedd, 
 Sliiigerland v. International Const. Co , 190 U. S. 508; Illinois Cent. R. Co. r. 
 169 N. Y. 60. In the case last cited, it Illinois, 146 U. S. 387 ; Mobile Trans- 
 was decided that, if the improvement portation Co. «. Mobile, 187 U. S. 479, 
 permanently injured the riparian own- 487 ; The Robert W. Parsons, 191 U. S. 
 er's access to the navigable water, he 17,25; West Chicago R. Co. «. Chicago, 
 might recover damages for the loss ; 201 U. S. 506. The Montello, 1 1 Wall, 
 but the proof of such loss and damage (U. S.) 411 ; The Daniel Ball, 10 Wall, 
 must be very clear and convincing. See (U. S.) 557 ; § 50, supra. In many of 
 Thousand Island Steamboat Co, v- our states while the public has the right 
 Visger, 179 N. Y. 206 ; Barnes w. Mid- to navigate the large streams, in which 
 land R. T. Co., 126 N. Y. App. Div. 435 ; there is no tide, but which are in fact 
 Whitaker v. McBride, 197 U. S. 510. navigable, yet the title to the soil of 
 
 2 Barney v. Keokuk, 94 U. S. 324 ; such streams is vested in the riparian 
 Swerigen v. St. Louis, 185 U, S. 38; owners. Smith v. City of Rochester, 
 Chase's Blsiekst, p. 221. 92 N. Y. 473; Magnolia «. Marshall, 
 
 8 Stiively !). Bowlby, 152 U. S. 1-53; 39 Miss. 119; Eneminger v. The 
 Water Power Co. v. Water Comm'rs, People, 47 111. 366; Ryan v. Brown, 
 168 U. S. 349 ; Swerigen v. St. Louis, 18 Mich. 196; Blanchard v. Porter, 11 
 
298 KINDS OF REAL PEOPEBTT. 
 
 Below high-water mark of navigable waters, in most juris- 
 dictions, the state is the owner of the land, subject to the 
 rights of the riparian proprietors, and the right of navigation 
 in favor of such proprietors and the public generally.^ The 
 state holds such lands in trust for the public ; and while it may 
 make reasonable grants and concessions of the land under 
 water, to individuals or corporations, it can not grant or give 
 up so much as to make a practical abdication of its control 
 over such waters or so as to prejudice the public right of navi- 
 gation or the private rights of the riparian owners.^ When 
 the stream or body of water is not navigable, the rights of the 
 state, or of the public, are generally not involved, and the 
 natural servitudes exist simply among the neighboring owners 
 along the banks. 
 
 § 222. Ownership and Use of Natural Streams. — The pro- 
 prietors along the banks of a stream do not own the waters 
 thereof as such ; and this is true though they own the bed of 
 the stream, and though for a portion or even all of its course 
 one person may own all the soil over which it flows and the 
 land on both sides.^ But each has a right to its reasonable use, 
 as it flows past or over or through his property, whetlier it be 
 on or below the surface of the soil; and each one can require 
 of his neighbors and of all the riparian owners that it shall 
 be permitted to flow upon and over or through his land in 
 its natural bed, unpolluted and substantially undiminished in 
 quantity by virtue of anything done by them.* 
 
 In so far as it relates to the contamination of flowing 
 
 Ohio, 138. A grant by the crown (or Mass. 216 ; Davis v. Fuller, 12 Vt. 178^ 
 
 state) of the land along a navigable Mitchell v. Bain, 142 Ind. 604. A stream, 
 
 sound and the islands therein does not or natural water-course, " is a natural 
 
 include the land below high-water mark, stream, flowing in a defined bed or 
 
 unless the intent that it shall do so is channel, with banks and sides, having 
 
 expressly declared in the grant. De- permanent sources of supply." Barkley 
 
 laucey v. Piepgras, 138 N. Y. 26. v. Wilcox, 86 N. Y. 140, 143 ; Erwin v. 
 
 1 Shively w. Bowlby, 152 U. S. 1, and Erie B.. Co., 98 N. Y. App. Div. 402, 
 cases cited. 404. 
 
 2 Illinois Cent. R. Co. v. Illinois, 146 * Agua currit et debet currere ut cur- 
 V. S. 387 ; West Chicago R. Co. v. rere solebat. United States v. Rio Grande 
 Chicago, 201 U. S. .506, 520. See United Irrigation Co., 174 U. S. 690, 702; Phila. 
 States V. Rio Grande Irrigation Co., v. Spring Garden, 7 Pa. St. 348 ; Clark r. 
 174 U. S. 690. Pa. R. Co., 145 Pa. St. 438; Brewster 
 
 ^Embrey v. Owen, 4 Exch. 353; w. Rogers Co., 1 69 N. Y. 73 ; Strobel w, 
 
 Sturr V. Beck, 133 U. S. 541 ; Brown v. Kerr Salt Co., 164 N. Y. 303 ; Watuppa 
 
 Bowen, SO N. Y. 519; Colricku. Swin- Reservoir Co. v. Fall River, 1.34 Mass. 
 
 burne, 105 N. Y. 503; Acquackanouck 267; Clark v. Pa. R. Co., 145 Pa. St. 
 
 Water Co. v. Watson, 29 N. J. Eq. 366 ; 438, 449 ; Warren v. We.stbroolc Mfg. 
 
 Lord 0. Meadville Water Co., 135 Pa. Co., 88 Me. 69, 71 ; Young ■. Bankier 
 
 St. 122; Merrifield v. Worcester, 110 Distillery Co. (1893) App. Ciis. 601. 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 299 
 
 waters, this rule is practically absolute.^ If there be such a 
 thing, in any jurisdiction, as a legal riglit to foul the waters of 
 a natural stream in any degree, it must be very closely re- 
 stricted in its extent and must be founded on the obligation 
 sometimes placed upon the individual by the demands of the 
 arts or sciences, or of proper agriculture or manufacture, for 
 the promotion or conservation of the greater good of the 
 public in general.^ An illustration of such a requirement is 
 found in the mining districts of Pennsylvania, where the courts 
 permit the water from a mine lawfully worked to be poured 
 into a natural stream even though the stream is thereby some- 
 what polluted.^ 
 
 The rule as to the diversion of a stream is also absolute, to 
 the extent that it enables each owner to insist that the stream, 
 however much it may be shifted around on land of others, shall 
 flow upon and from his land in its natural channel.* As to 
 the diminution of the quantity of the water, the circumstances 
 of each case, such as its volume, the rapidity of its flow, and 
 the character of the surrounding country must all be taken 
 into consideration in determining the rights and duties of the 
 riparian proprietors. Each of tliem may use all that is neces- 
 sary for drinking and domestic purposes,^ and all that is 
 otherwise required for any objects that will not result in an 
 unreasonable diminution of the quantity of water to the mate- 
 
 1 Pennington ». Brinsop Hall Coal Vt. 49 ; Frazier i>. Brown, 12 Ohio St. 
 
 Co., L. K. 5 Ch. Div. 769 ; Jackman v. 294. And see Stone v. State, 1.38 N. Y. 
 
 Arlington Mills, 137 Mass. 277; Dwight VU. 
 
 Printing Co. v. Boston, 122 Mass. 583; * Stowell r. Lincoln, 11 Gray ( JIa.ss.), 
 
 Warren v. Parkhnrst, 186 N. Y. 45; 434; Fletcher v. Smith, L. R. 2 App. 
 
 Prentice v. Geiger, 74 N. Y. 341 ; Ac- Cas. 781 ; Pierson v. Speyer, 178 N. Y. 
 
 quackanonck Water Co. v. Watsou, 270, 273; Hartshorn v. Chaddock, 135 
 
 29 N. X Eq. 366 ; Lion w. McLaughlin, N. Y. 116; Covert v. Cranford, 141 
 
 32 Vt. 423 ; Canfield v. Andrews, 54 Vt. N. Y. 521 ; N. Y. Rubber Co. v. Roth- 
 
 1; Silver Spring B. & D. Co. v. Wan- ery, 132 N. Y. 293, 296; Kensit v. Gt. 
 
 Bcuck Co., 13 R. I. 611; Lockwood Eastern R. Co., L. R. 27 Ch, Piv. 122 ; 
 
 Co. V. Lawrence, 77 Me. 297 ; Bar- St. Anthony F. W. P. v. Minneapolis, 
 
 rett V. Greenwood Cem. Ass'n, 159 111. 41 Minn. 270. 
 
 385. ^ It is said that he -may exhaust the 
 
 ^Tenn. Coal. & I. R. v. Hamilton, water, if necessary, for culinary and 
 
 100 Ala. 252, 260; Sanderson v. Pa. other domestic purposes of his family. 
 
 Coal Co., 86 Pa. St. 401 ; Miss. Mills or for watering his cattle. Swindon 
 
 Co: V. Smith, 69 Miss. 299. Water Works v. Wilts Canal, 7 H. L. 
 
 «Pa. Coal Co. v. Sanderson, 113 Pa. Cas. 697; Wadsworth v. Tillotson, 15 
 
 St. 126. The discharge into a stream Conn. 366 ; Anthony v. Lapham, 5 
 
 of the usual impurities from streets does Pick. (Mass.) 175; Swift v. Goodrich, 
 
 not give a cause of action against the 70 Cal. 103 ; Kaler v. Campbell, 1 3 
 
 city or town. Chatfield «. Wilson, 28 Oreg. 596. 
 
300 KINDS OP EEAL PBOPERTT. 
 
 rial detriment of the other owners along the stream.^ Any 
 abstraction of the water, which is unreasonable under the cir- 
 cumstances, will give rise to a cause of action, whether it be 
 done by directly pumping or dipping it from the stream or by 
 indirectly removing it in some other manner. It was accord- 
 ingly held, in Smith v. City of Brooklyn,? tliat the city was 
 liable in damages to the riparian owners, for greatly diminish- 
 ing the volume of the flow of a natural stream by pumping 
 large quantities of water from artesian wells sunk by it in its 
 own lands at and near the sources of the water supply. But 
 where the waters directly taken are only percolating to the 
 stream and are not in a definite channel, as was true in the 
 Smith case in New York, the opposite rule remains clearly 
 the law of England.^ 
 
 These rights and obligations in natural streams may, of 
 course, be modified by contracts express or implied, or by 
 prescriptive titles or privileges.* In some of the United States, 
 also, especially in those along the Pacific Coast and Rocky 
 Mountains having important mining interests, prior appropria- 
 tion of water facilities is made to give superior rights." And 
 the so-called mill acts of several states give special facilities 
 for milling operations to certain riparian owners, particularly 
 to those who are the first to take advantage of the provisions 
 of such statutes.® The right of irrigation, moreover, in some 
 instances even to the extent of practically exhausting such 
 currents, is authorized by legislative enactments in some of 
 the arid and hotter sections of this country.^ These rights, 
 
 1 Bailey & Co. v. Clark (1902), 1 Ch. * Manning v. Wasdale, 5 Adol. & El. 
 649 ; N. Y. Rubber Co. v. Rothery, 132 7.58 ; Wiley v. Hunter, 2 Eastern, 228. 
 N. Y. 293 ; Clark v. Pa. R. Co., 145 Pa. No easement can be acquired as a right 
 St. 438 ; Gould v. Boston Duck Co., 1 3 to pollute a stream against a statutory 
 Gray (Mass.), 442 ; Dyer u. Cranston prohibition. Brookline v. Mackintosh, 
 Print- Works Co., 22 R. I. 506; Woodin 133 Mass. 215. Nor by prescription to 
 )-•. Weiitworth, 57 Mich. 278 ; City of create a public nuisance. Common- 
 Canton r. Shock, 66 Ohio St, 19; Fisher wealth v. Upton, 6 Gray (Mass.), 473 ; 
 f. Fiege, 137 Cal. 39. North Salem v. Eagle Co., 138 Mass. 8. 
 
 2 160 N. Y. 357. See also Stillwater » Stim. Anier. Stat. Xj. §§ 418, 1171. 
 Water Co. v. Farmer, 93 N. W. Reji. « Angel Wat. Cour. § 483 ; Lincoln 
 (Minn.) 907 ; Ilaujjt's Appeal, 125 Pa. r. Chacibourne, 50 Me. 197 ; Smith v. 
 St. 211 ; Higginsw. Flemington W. Co, Agawam Canal Co., 2 Allen (Mass.), 
 36 N. J. Eq. 533 ; Moulton v. Newbury- 355 ; Lo.well v. Boston, 111 Mass. 454, 
 port W. Co., 137 Mass, 163. 467. 
 
 8 Popplewell w. Modkinson, 4 Exch. 'Stim. Amer. Stat. L. § 1179; 
 
 248 ; Bradford Corp. r. Ferrand (1902), United States v. Rio Grande IrrigatioD 
 
 2 Ch, 655; Chasemore v. Richards, 2 Co., 174 U.S. 690 ; Kansas a. Colorado, 
 
 H. & N. 163, 7 H. L. Cas. 349. 206 U. S. 46 ; p. 228, note 5, supra. 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 301 
 
 beyond what the common law permits, and their accompanying 
 obligations depend on the special form of the statutes in each 
 state where such an enactment exists. 
 
 § 223. (b) Rights as to Surface Waters. — The rule of the 
 civil law is that every owner of land has a right against 
 his neighbors to have surface water (i. e., not in a fixed 
 stream) flow according to the natural contour of the sur- 
 face of the land. The upper proprietor has a servitude to 
 let the rain and other surface waters pass naturally from 
 his property upon the field of the lower owner ; and the 
 latter has a reciprocal servitude against the former to insist 
 that they shall continue to flow in that manner.^ But the 
 common-law principle, in this regard, is that " surface water 
 is a common enemy," whicli every one may get rid of as best , 
 he can, provided he does not directly use it for the injury of 
 his neighbor. The owner of the higher land may retain it on 
 his property, or let it flow to the lower level ; and the lower 
 proprietor may either receive it upon his land, or ward it off, 
 by filling in and making liis land higher, or by means of 
 embankments or other obstructions.^ A few of the states of 
 this country, such as Illinois, Louisiana, and Pennsylvania, 
 have adopted the civil-law doctrine upon this matter ; * while, 
 in England and the rest of the United States, the rule of the 
 common law prevails.* 
 
 The common-law right of every landowner to ward off and 
 
 1 Walker v. So. Pac. R. Co., 165 * Broadbent v. Ramsbotham, U 
 U. S. 593, 602 ; Foley v. Godchaux, 48 Exch. 602, 614 ; Walker v So. Pac. R. 
 La. Ann. 466; La. Code, Art. 656; Co., 165 U. S. 593, 602; Barkley r. 
 Rhoads v. Davidheiser, 133 Pa. St. 226. Wilcox, 86 N. Y. 140 ; Peck v. Good- 
 
 2 Broadbent v. Ramsbotham, 11 berlett, 109 N. Y. 180; Bowlsby v. 
 Exch. 602, 614 ; Walker v. So. Pac. R. Speer, 31 N. J. L. 351 ; Jessup v. Bam- 
 Co., 165 D. S, 593, 602 ; Barkley v. ford B. Co., 66 N. J. L. 641 ; Cassidy 
 Wilcox, 86 N. Y. 140; Peck v. Good- v. Old Colony R. Co., 141 Mass. 174; 
 berlett, 109 N.Y. 180; Bowlsby K. Speer, Byrne v. Farmlngton, 64 Conn. 367; 
 31 N. J. L. 351 ; Cassidy v. Old Colony Chicago K. & N. W. R. Go. v. Steck, 
 R. Co., 141 Mass. 174; City of Franklin 51 Kan. 737; Murphy v. Kelley, 68 
 V. Durgee, 71 N. H. 186; Sangninetti v. Me. 521 ; Rowe v. St. P. M. & M. R. 
 Peck, 136 Cal. 466. Co., 41 Minn. 384 ; Wakefield v. Newell, 
 
 8 Peck u. Herrington, 109 III. 611 ; 12 R. I. 75 ; Gross v. Lamposas, 74 
 Anderson v. Henderson, 124 111. 164; Tex. 195; Beard v. Mnrphy, 37 Vt. 
 Livingston v. McDonald, 21 Iowa, 160; 99; Cass t'. Dicks, 14 Wash. 75 ; Les- 
 Prestonu. Hull, 77 Iowa, 309; La. Code, sard v. Stram, 62 Wis. 112. See 
 Art. 656 ; Foley v. Godchaux, 48 La. Waverly v. Page, 105 Iowa, 225 ; San- 
 Ann. 466 ; Miller v. Laubach, 47 Pa. St. guinetti v. Pock, 136 Cal. 466. 
 154 ; Rhoads v. Davidheiser, 133 Pa. St. 
 226. 
 
302 KINDS OF REAL PROPERTY. 
 
 get rid of, in the best way he can, the surface water which 
 he does not want on his property, is qualified by the require- 
 ment that he shall not converge it into a stream and pour 
 it in a flood upon the land of the adjoining proprietor. And 
 a fortiori this same requirement is insisted on by the civil 
 law. The lower land may be filled up, or obstructions may be 
 erected, and thus the natural flow of the water reversed ; but 
 to do this in such a manner as to create an artificial channel 
 or current upon the adjacent land would be to impose upon it 
 an unnecessary burden.^ And, therefore, if a raih'oad com- 
 pany, in the construction of its road, erect a long embankment, 
 through an aperture in which it allows rain water to pour from 
 the higher ground on one side upon the lower land on the other, 
 it is liable in damages to the owner of the lower property for 
 the resulting injury.^ But a municipality is not liable for 
 damage caused by the discharge of surface water as the result 
 of its lawful grading of streets.^ 
 
 § 224. (c) Sights as to Percolating and Subterranean Waters. 
 — Resting on the maxim cujus est solum ejus est us^ue ad 
 ccelum et ad orcum, is the well-established rule of both the civil 
 and the common law that one may take, use, and dispose at 
 will of the waters that are in or percolating tiirough his soil 
 and are not in any natural stream.* The water mixed in with 
 one's soil, and not flowing regularly or definitely, is, while 
 there, a part of his land ; and he has ordinarily the same do- 
 minion over it that he has over the sand, clay, or loam of which 
 his soil is more permanently composed. The decision' which 
 established this' principle in England was Acton v. Blundell;* 
 and the rule itself is often named from that case. It has been 
 
 1 Hurdman v. Nor. East. R. Co., L. R. per Beasley, J., cited in Walker v. So. 
 3 C. P. Div. 168 ; Walker v. So. Pac. Pac. R. R. Co., 165 U. S. 593, 602. 
 
 R. Co., 165 U. S. 593, 602; McKee r. » Prime v. City of Yonkers, 192 N. 
 
 D. & H. Canal Co., 125 N. Y. 353; Y. 105, 110; Wakefield o. Newell, 12 
 
 Kelly V. Dunning, 39 N. J. Eq. 482 ; R. I. 75. 
 
 Bates ... Westborough, 151 Mass. 174; * Acton k. Blundell, 12 M. &W. 324 ; 
 
 Osten V. Jerome, 93 Mich. ]96; Dayton Chasemore v. Richards, 2 H. & N. 168; 
 
 V. Drainage Comm'rs, 128 111. 271; Wilson k. New Bedford, 108 Mass. 261 ; 
 
 Rice V. Norfolk, 130 N. C. 375. Bloodgood v. Ayers, 108 N. Y. 400; 
 
 2 Illinois Cent. R. Co. v. Miller, 68 Bliss r. Greeley, 45 N.Y. 671, 674; Roath 
 Miss. 760 ; Kansas City M. & B. R. v. DriscoU, 20 Conn. 533 ; Haldeman v. 
 Co. V. Lackey, 72 Miss. 881; Deigle- Bruckhart, 45 Pa. St. 514; BufEum v. 
 man v. N. Y. L. E, & W. R. Co., 12 N. Harris, 5 R. I. 243 ; Miller v. Black 
 Y. Supp. 83 ; Bedell u. Village of Sea Rock Spring Co., 99 Va. 747. 
 
 Cliff, 18 N. Y. App. Div. 261. See 5 i2 M & W. 324. 
 
 Bowlsby V. Speer, 31 N. L. J. 351, 35.3, 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 303 
 
 followed by many adjudications in that country ; and by none 
 more fully than by several well-considered recent decisions.^ 
 
 In the United States the same principle was recognized and 
 settled as law, even before the decision of Acton v. Blundell.^ 
 It is here held to include, not only water, but also percolating 
 oil and natural gas.^ Where the owner of a tract of land sold 
 to A the right to draw water from a spring on it, and then sold 
 the land to B, and B dug a well twenty feet from the spring, 
 which cut off A's supply of water from the spring, it was held 
 that A was without remedy.* And, in a case in which A dug 
 in his own land a well for the obtaining of natural gas, and 
 exploded therein nitro-glycerine and thus drew away all the 
 supply of gas from a similar well on B's adjacent property, it 
 was decided that this was damnum absque injuria against B 
 and gave him no cause of action.* 
 
 While there is some conflict of opinions and decisions as to 
 the effects of a malicious intent in so operating in or upon 
 one's own land as to deprive one's neighbors of water, oil, or 
 gas, which they could otherwise enjoy, some states holding 
 that this must not be maliciously done,^ yet the view of a 
 majority of the best courts, as declared in the recent and most 
 fully considered cases, is well expressed in Bradford v. Pickles '' 
 by Lord Halsbury, L. C, who says : " This is not a case in 
 which the state of mind of the person doing the act can affect 
 the right to do it. If it was a lawful act, however ill the motive 
 might be, he had a right to do it. If it was an unlawful act, 
 however good his motive might be, he would have no right to 
 do it. Motives and intentions in such a question as is now before 
 
 ^ Broadbent v. Ramsbotham, II ' People's Gas Co. «. Tyner, 131 Ind. 
 
 Exch. 602; Kawstron v. Taylor, 11 277, 280. In this case, it is said: 
 
 Exch. 369 ; Bradford v. Pickles (1895), " Water, oil, and still more strongly 
 
 App. Cas. 587 ; Bradford v. Ferrand gas, may be classed by themselves, if 
 
 (1902), 2 Ch. 655. the analogy be not too strong, as min- 
 
 ^ Greenleaf v. Francis, 18 Pick. erals ferce natures. . . . They belong to 
 
 (Mass.) 117; Chatfield v. Wilson, 28 the owner of the land, and are a part 
 
 Vt. 49, 54 ; Saddler v. Lee, 66 Ga. 45. of it, so long as they are on or in it, 
 
 ' Westmoreland Gas Co. v. DeWitt, and are subject to his control ; but when . 
 
 130 Pa. St. 235 ; People's Gas Co. v. they escape and go into another's land 
 
 Tyner, 131 Ind. 277 ; Wagner v. Mai- or come under another's control, the 
 
 lory, 169 N. Y. 501, 505. See Amster- title of the former owner is gone." 
 dam Knitting Co. v. Dean, 162 N. Y. 278. " Chesley v. King, 74 Me. 164 ; Roath 
 
 * Bliss V. Greeley, 45 N. Y. 671,674; v. DriscoU, 20 Conn. 533 ; Haldeman v. 
 
 Ballacorkish Mining Co. v. Harrison, Bruckhart, 45 Pa. St. 514 ; Redman v. 
 
 5 P. C. 49 ; Trout v. McDonald, 83 Pa. Forman, 83 Ky 214 ; Springfield Water 
 
 St. 144 ; Coleman v. Chadwiek, 80 Pa. Works v. Jenkins, 62 Mo. App. 74. 
 St. 81. 7 (1895), App. Cas. 587. 
 
304 
 
 KINDS OF EEAL PROPERTY. 
 
 your lordships seem to me to be absolutely irrelevant." And 
 it was held in that case that the defendant might bore many 
 large wells in his own land, and thus draw the supply of water 
 from plaintiff's wells, although defendant's motive in so acting 
 was evidently to compel the plaintiff, if possible, to purchase 
 his land at a high price, and although the defendant was puinp- 
 ing the water /or- the purpose of taking it away from hoth prop- 
 erties and selling it as merchandised 
 
 The motive — the mental attitude whether benevolent or 
 malevolent — of him who takes percolating water from his own 
 land is, then, as a rule, quite immaterial. But it is now settled 
 in New York that he is liable in damages to his neighbor, 
 whom he injures by so taking it and leading it away from the 
 land for the purpose of disposing of it as merchandise, and so 
 preventing it from returning to the soil. It was so decided in 
 Porbell V. City of New York,^ in which the defendant, by 
 pumping large quantities of water from artesian wells in its 
 own land and taking it by pipes to supply tlie Borough of 
 Brooklyn with water, greatly decreased the fertility of lands 
 of other owners near the wells. The Court of Appeals says in 
 that case : " In the absence of contract or enactment, what- 
 ever it is reasonable for the owner to do with his sub-surface 
 water, regard being had to the definite rights of others, he may 
 do. He may make the most of it that he reasonably can. It 
 is not unreasonable, so far as it is now apparent to us, that he 
 should dig wells and take therefrom all the water that he needs 
 in order to the fullest enjoyment and usefulness of his land as 
 land, either for purposes of pleasure, abode, productiveness of 
 soil, trade, manufacture, or for whatever else the land as land 
 may serve. He may consume it, but must not discharge it to 
 the injury of others. But to fit it up with wells and pumps of 
 such pervasive and potential reach that from their base the 
 defendant can tap the water stored in the plaintiff's land, and 
 in all the region thereabout, and lead it to his own land, and 
 by merchandising it prevent its return, is, however reasonable 
 it may appear to the defendant and its customers, unreasona- 
 ble as to the plaintiff and the others whose lands are thus 
 clandestinely sapped, and their value impaired." The reason- 
 
 1 See also Phelps v. Nolen, 72 N. Y, 
 39; Clinton ;;. Myers, 46 N. Y. 511 
 Ocean Groye Camp M. Ass'n v. Commis- 
 sioners of Asbury Park, 40 N. J. Eq. 
 447 ; Chatfield v. Wilson, 28 Vt. 49 ; 
 
 Walker v. Cronin, 1 07 Mags. 555, 564 ; 
 14 Alb. L. Jour. 61; Cooley, Torts, 
 688, 691. 
 
 2 164 N. y. 522. 
 
IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 305 
 
 ing of this case and also that of Smith v. City of Brooklyn, 
 which held the city liable for reducing the flow of a natural 
 stream by pumping water in the same manner and for the same 
 purpose, are affirmed in the later adjudication of Reisert v. 
 City of New York.^ And, similarly, the Supreme Court of 
 Minnesota has held that a landowner must not collect from his 
 own land, and waste, percolating waters, which would otherwise 
 be used for the benefit of the public.^ 
 
 A landowner must not foul or poison the water percolating 
 through his property, so as to render such water dangerous or 
 deleterious in quality when it reaches the land of a neighboring 
 owner.' 
 
 § 225. h. Artificial 'Water Rights. — The water rights and 
 their attendant obligations thus far discussed are chiefly nat- 
 ural servitudes. The privileges and immunities are reciprocal. 
 They do not present one tenement as wholly dominant, and 
 the other as distinctly and only servient ; but they afford cases 
 in which each of the neighboring owners has rights incident to 
 the natural location of their lands. If the owner of two par- 
 cels of land, through which a natural stream flows, sell one of 
 them, neither he nor his purchaser will have the right to stop 
 or divert the waters of the stream, against the will of the other.* 
 And, if one of them should change it on his own land and 
 thus keep it flowing for twenty years in a different channel over 
 the other's property, and the latter sliould during that time use 
 it in its new location for the running of a mill, neither could 
 again change it without the consent of the other.^y Since they 
 are deahng with a natural stream, their rights and duties re- 
 main reciprocal. wA broad and important distinction exists be- 
 tween rights and burdens such as these and the easements 
 which may exist in connection with artificial streams and 
 bodies of water, created for temporary purposes, although the 
 latter may have been enjoyed for more than twenty years. 
 
 The rights whicli one man may have against another, in con- 
 nection with artificial ponds or streams, are, then, common-law 
 \ easements, as distinguished from mere natural servitudes. One 
 landowner has the right and the other must endure the bur- 
 
 1 174 N. Y. 196, 200, s. 0. 101 N. Y. * Tad. Lead. Cas. R. P. 111. See 
 
 App. Div. 93. See Westphal v. City of Miller «. Lapham, 44 Vt. 416 ; Hap good 
 
 New York, 177 N. Y. 140; § 222, supra. v. Brown, 102 Mass. 451. 
 
 ' Stillwater Water Co. u. Farmer, ' Belknap i'. Trimble, 3 Paige 
 
 93 N. W. Rep. 907 ; Barclay v. Abra- (N. Y.), 577, 605 ; Delaney v. Boston, 2 
 
 ham, 121 Iowa, 619. Harr. (Del.) 489, 491. 
 
 » Hodgkinsou v. Enner, 4 B. & S. 229. 
 
 20 
 
306 KINDS OF REAL PROPERTY. 
 
 den; and there is no corresponding privilege or advantage 
 operating in the other direction.^ Thus, if one pump or other- 
 wise draw subterranean waters from his own land, or gather 
 the surface waters into streams, and after making tise of them 
 for mining, manufacturing, or other purposes, cause them to 
 flow in a current unto his neighbor's land, he will thus com- 
 mit a trespass upon that land, unless he has acquired by grant 
 or prescription the privilege of so dealing with the waters. 
 When, however, he has obtained such privilege by one of those 
 methods, there arises thereby no corresponding right, in favor 
 of the lower proprietor, to have the flow of the water continued, 
 no matter how beneficial it may have become to him. I He is 
 simply the servient tenant, who must endure the burden of the 
 artificial stream without thereby acquiring for himself an^ 
 special correlative rights.^ \y 
 
 Easements in artificially produced streams or bodies of water 
 are ordinary forms of that species of incorporeal hereditaments, ^ 
 and are governed by the laws of easements generally, heretofore 
 discussed in full. They may be acquired by either of the forms 
 of grant, or by prescription. One of the most familiar illustra- 
 tions of them is the easement of drainage, created by implied 
 grant upon the severance of an entire tract of land and sale of 
 one piece, when one of the lots is enjoying the ease or accom- 
 modation of being drained over or through the other.^ An- 
 other instance is the right of eaves' drip, where a houseowner 
 has acquired the right to let rain water flow from his roof upon 
 his neighbor's lot.* And still another is the easement which 
 one who is mining in his own land may have to get rid of 
 the waste waters by letting them run over the lands of 
 contiguous owners.^ 
 
 1 There are a few rare cases, in Wash. Ease. (4th ed.) 418-427; Tud. 
 
 which this is denied. Thus, where one Lead. Cas. R. P. 120. 
 acquired a right to pour water in an » Simmons v. Cloonan, 47 N. Y. 3 ; 
 
 artificial channel upon a lower owner's Paine v. Chandler, 134 N. Y. 385 ; 
 
 land, it was held, in two cases, that the Wright o. Williams, I M. & W. 77 ; 
 
 latter had thereby gained a right on his White v. Chapin, 12 Allen (Mass.), 
 
 . part to have the stream continue to fllow. 516; Leidlein v. Meyer, 95 Mich. 586; 
 
 Shepardson v. Perlcins, 58 N. H. 354 ; § 139, supra. 
 
 Reading r. Althonse, 93 Pa. St. 400. < Harvey v. Walters, 8 C. P. 162 ; 
 
 And see Bowne ». Deacon, 32 N. J. Eq. Keats v. Hugo, 115 Mass. 204, 216; 
 
 *59. Grace M. E. Church v. Dobbins, 153 
 
 ' Arkwright v. Gell, 5 M. & W. 203 ; Pa. St. 294 ; Rose v. Bunn, 21 N. Y. 275 ; 
 
 Wood 1-. Wand,' 3 Exch. 748; Greatrex Neale v. Seeley, 47 Barb. (N. Y.) 314. 
 V. Hayward, 8 Exch. 291; Mayor w. ^ Arkwright «. Gell, 5 M. & W. 203 ; 
 
 Chadwick, 11 Adol. & El. 571 ; Samp- Pa. Coal Co, v. Sanderson, 113 Pa. St. 
 
 son V. Hoddiuott, 1 C. B. n. s. 590; 126. 
 
CHAPTER XIII. 
 
 (4) PROFIT 1 PRENDRE. 
 
 § 226. Definition and illustrar 
 tions. 
 
 § 227. Profit a prendre in gross, 
 or as appurtenant to land. 
 
 § 228. How a profit a prendre 
 may be acquired. 
 
 § 229. Kinds of profit a prendre. 
 
 §230. 
 
 §231. 
 country. 
 
 § 232. 
 
 §233. 
 
 §234. 
 mines. 
 
 Mining rights. 
 Mining laws 
 
 of this 
 
 (a) Discovery of mines. 
 
 (b) Location of mines. 
 
 (c) Annual labor on 
 
 § 226; Definition and Illustrations. — A profit d prendre is a 
 right to take something of value from the land of another. It 
 is an incorporeal hereditament, since it is a mere right ; and it 
 differs from an easement, as was above pointed out, in the fact 
 that the latter, which is also a mere right, does not authorize 
 the taking of anything valuable from the servient tenement. 
 The right to reach a highway from my land, by drivii\g with 
 my horse and carriage across the land of my neighbor, is an 
 easement. The right to let my horse pasture on my neigh- 
 bor's field, and thus to take something from it, is a profit d 
 prendre} The term servitude, in its civil-law sense and as 
 ordinarily employed, includes both easement and profit d pren- 
 dre. The latter is that special form of servitude, or right in 
 alieno solo, which authorizes the taking of some part of an- 
 other's soil or its contents, or some of its valuable products.'' 
 Other illustrations of it are the right to take marl, loam, peat, 
 gravel, coal, or other minerals;^ the privilege of fishing and 
 
 1 Rose !).Bnnn,21 N.Y. 275; Smith 
 V. Floyd, 18 Barb. (N. Y.) 522 ; Living- 
 stou V. Ten Broeck, 16 Johns. (N. Y.) 
 14; Van Rensselaer v. Radcliff, 10 
 Wend. ( N. Y. ) 639 ; Worcester v. Green, 
 2 Pick. (Mass.) 425, 429. 
 
 ^ Some authorities, however, define 
 the word easern-ent in a sense broad 
 enough to include profit a prendre. Post 
 
 V. Pearsall, 22 Wend. (N. Y.) 425 ; Owen 
 V. Pield, 102 Mass. 90, 103; Ritger v. 
 Parker, 8 Cush. (Mass.) 145; Hufi v. 
 McCauley, 53 Pa. St. 206, 209. 
 
 ' Manning v. Wasdale, 5 Adol. & El. 
 758; Chetham v. Williamson, 4 East, 
 469 ; Gruhb v. Grnbb, 74 Pa. St. 25 ; 
 Worcester v. Green, 2 Pick. (Mass.) 
 425, 429. 
 
308 KINDS OF KEAL PEOPEETY. 
 
 taking away the fish caught,^ or of shooting and taking away 
 game;^ the right to cut and remove wood, and tlie authority 
 to gather and appropriate the seaweed from the shore of an- 
 other's land.^ But, since water in its natural conditions is so 
 movable and wandering a thing, it is" not treated in this con- 
 nection as a part of the land or its products ; and an established 
 right, which one man may have to take from the land of an- 
 other either surface water or water percolating or flowing in a 
 natural stream, is usually an easement or form of servitude that 
 is not a profit a prendre^ 
 
 § 227. Profit ^ Prendre, in Gross or as an Appurtenance to 
 Land. — This form of incorporeal hereditament may be, and 
 frequently is, owned in connection with land (as a dominant 
 estate) and as an appurtenance to the same ; or it may bo 
 owned as a right in gross. It is probably most commonly 
 found in the latter form. When it is an appurtenance to a 
 dominant estate, it readily passes with a conveyance of the 
 land ; and it can not ordinarily be used for any purpose other 
 than for the benefit or convenience of such land. It carries 
 with it practically all the incidents of a common-law easement, 
 with the addition of the right to take something from the ser- 
 vient estate.^ 
 
 1 Peers v. Lucy, 4 Mod. 354, 366; ii. Saleme, 15 Oreg. 208; Tinicnm Fish- 
 Turner V. Hebron, 61 Conn. 175; Hooker ing Co. v. Carter, 61 Pa. St. 21, 37. 
 
 V, Cummings, 20 Johns. (N. Y.) 90 ; s uju „. Lord, 48 Me. 83 ; Emans v. 
 
 Baylor w. Decker, 133 Pa. St. 168. The TurnbuU, 2 Johns. (N. Y.) 314; Sale v. 
 
 right to fish in navigable waters is com- Pratt, 19 Pick. (Mass.) 191; Church 
 
 mon to all, unless some exclusive privi- v. Meeker, 34 Conn. 421. See St. Regis 
 
 lege or franchise has been obtained by Paper Co. v. Santa Clara Lumber Co., 
 
 grant or prescription. Carters. Alurcot, 173 N. Y. 149, 162. 
 4 Burr. 2162 ; Hooker v. Cummings, 20 * Manning v. Wasdale, 5 Adol. & El. 
 
 Johns. (N. Y.) 90; Weston v. Sampson, 758, 763; Wickham v. Hawker, 7 M. & 
 
 8 Cush. (Mass.) 347 ; Chalker r. Dickin- W. 63; Borst v. Empie, 5 N, Y. 33; 
 
 son, 1 Conn. 382; Phipps v. State, 22 Goodrich v. Burbank, 12 Allen (Mass.), 
 
 Md. 380. The right to fish in non- 459, 461 ; Hill v. Lord, 48 Me. 83 ; 
 
 navigable waters belongs ;5Wma _/ac?'e to Spensley v. Valentine, 34 Wis. 154. 
 
 the owner of the land under the water. But the right to take water from a 
 
 But, if one own the water distinct from closed and retaining receptacle, such as 
 
 the land beneath it, the right of taking a cistern, may be treated as a ■profit 
 
 the fish is his, rather than the propert)* d prendre. Hill v. Lord, 48 Me. 83, 99. 
 of the owner of the land. Turner v. 5 Douglass v. Kendal, Cro. Jac. 256 ; 
 
 Hebron, 61 Conn. 175; Waters w.Lilley, Bailey v. Stephens, 12 C. B. N. s. 91, 
 
 4 Pick. (Mass.) 145; Hooker v. Cum- 109; Huntington v. Asher, 96 N. Y. 
 
 mings, 20 Johns. (N. Y.) 90. 604 ; Taylor v. Millard, 118 N. Y, 244; 
 
 2 Wickham v. Hawker, 7 M. & W. Post v. Pearsall, 22 Wend. (N. Y.) 425 ; 
 63 ; Year Book, 1 2 Hen. VIL 25 ; Year Grubb v. Grubb, 74 Pa. St. 25, 33. 
 Book, 1 3 Hen. VII. 13, pi. 2. Bingham 
 
PROFIT X PRENDRE. 309 
 
 When on the other hand a profit a prendre is in gross, it is a 
 personal privilege which does not pass with the transfer of any 
 land, but is in the fiature of an individual interest or ownership 
 in the land in which the right exists.^ As was explained above, 
 an easement in gross is treated, in most jurisdictions, as a spe- 
 cial, individual privilege, which belongs to the grantee alone 
 .and can not be assigned or transferred to another.^ But a 
 profit a prendre in gross is a distinct, independent object of 
 ownersliip, which is in its nature assignable, devisable, and in- 
 heritable.^ If, for example. A, as an individual and not as the 
 owner of any land, have the right to dig and talce coal from the 
 laud of B, he does not thereby own any of the coal before he . 
 has dug it, but he has an incorporeal right to which attaches 
 all the ordinary incidents of real-property ownership. 
 
 § 228. Ho-w a Profit k Prendre may be acquired. — A profit d 
 prendre may be brought into existence by any of the methods 
 by wliich common-law easements may be acquired ; i. e., by ex- 
 press grant, reservation in a deed of the servient land (which 
 is in reality a form of express grant), implied grant, and pre- 
 scription.* Such a right may also be dedicated or created by 
 operation of law ; but it never exists by nature, nor arises by 
 custom.^ When gained by prescription, it is most commonly, 
 though not necessarily, not a riglit in gross,- but an incident 
 to land as a dominant estate ; ^ but, when acquired by any of 
 the other methods, it is most frequently a profit a prendre 
 in gross. 
 
 § 229. Kinds of Profit k Prendre. — In discussing under 
 the term " common " the chief forms of profit a prendre as 
 they existed when he wrote, Blackstone says : "^ " And hence 
 common is chiefly of four sorts ; common of pasture, of piscary, 
 of turbary, and of estovers. 
 
 1 Pierce iJ. Keator, 70 N. T. 419. ^ Gateward's Case, 6 Coke, 59 b 
 
 ^ §167, SM/jra. Grimstead v. Marlowe, 4 T. K. 717 
 
 8 Palmer's Case, f> Coke, 24 b ; Wick- Post i: Pearsall, 22 Wend. (N. Y.) 425 
 
 ham V. Hawker, 7 M. & W. 63; Post v. Waters v. Liliey, 4 Pick. (Mass.) 145 
 
 Pearsall, 22 Wend. (N. Y.) 425, 432 ; Perley v. Langley, 7 N. H. 233 ; Moor 
 
 Taylor v. Millard, 118 N. Y. 244 ; Good- v. Gary, 42 Me. 29 ; Cobb v. Davenport, 
 
 rich V. Burbank, 12 Allen (Mass.), 459, 83 N. J. L. 223. 
 
 461 ; Hill V. Lord, 48 Me. 83, 96. Tini- ^ Merwin v. Wheeler, 41 Conn. 14 ; 
 
 cum Fishing Co. v. Carter, 61 Pa. St. Littlefield !•. Maxwell, 31 Me. 134; 
 
 21,39; Cadwalader v. Bailey, 17 R.I. Waters v. Liliey, 4 Pick. (Mass.) 145; 
 
 495, 500. Hinckel v. Stevens, 35 N. Y. App. 
 
 * Brady v. Smith, 181 N. Y. 178; Div.' 5. 
 
 Merwin v. Wheeler, 41 Conn. 14, 25 ; '2 Blackst. Com. pp. *32-*35. 
 
 Waters ti. Liliey, 4 Pick. (.Vlass.) 145; 
 
 Littlefield v. Maxwell, 31 Me. 134. 
 
310 KINDS OF EEAL PROPERTY. 
 
 " 1. Common of pasture is a right of feeding one's beasts 
 ou another's land : for in those waste grounds, which are usu- 
 ally called commons, the property of the soil is generally in 
 the lord of the manor ; as in common fields it is in the par- 
 ticular tenants. This kind of common is either appendant, 
 appurtenant, because of vicinage, or in gross. Common ap- 
 pendant is a right belonging to the owners or occupiers of 
 arable land, to put commonable beasts upon the lord's waste, 
 and upon the lands of other persons within the same manor. 
 Commonable beasts are either beasts of the plough, or such as 
 manure the ground. . . . Common appurtenant ariseth from 
 no connection of tenure, nor from any absolute necessity : but 
 may be annexed to lands in pther lordships, or extend to 
 •other beasts, besides such as are generally commonable ; as 
 hogs, goats, or the like, which neither plough nor manure the 
 ground. . , . Common because of vicinage, or neighborhood, 
 is where the inhabitants of two townships, which lie contiguous 
 to each other, have usually intercommoned with one another ; 
 the beasts of the one straying mutually into the other's fields, 
 without any molestation from either. . . . Common in gross, or 
 at large, is such as is neither appendant nor appurtenant to 
 land, but is annexed to a man's person ; being granted to him 
 and his heirs by- deed ; or it may be claimed by prescriptive 
 right, as by a parson of a church, or the like corporation sole. 
 This is a separate inheritance, entirely distinct from any 
 landed property, and may be vested in one who has not a foot 
 of ground in the manor. . . . 
 
 " 2, 3. Common of piscary is a liberty, of fishing in another 
 man's water ; as common of turhary is a liberty of digging turf 
 upon another's ground. There is also a common of digging for 
 coals, minerals, stones, and the like. All these bear a resem- 
 blance to common of pasture in many respects : though in one 
 point they go much further ; common of pasture being only a 
 right of feeding on the herbage and vesture of the soil, which 
 renews annually ; but common of turbary, and those aforemen- 
 tioned, are a right of carrying away the very soil itself. 
 
 " 4. Common of estovers or estouviers, that is, necessaries 
 (from estoffer, to furnish), is a liberty of taking necessary 
 wood, for the use of furniture or a house or farm, from off 
 another's estate. The Saxon word, bote, is used by us as 
 synonymous to the French estovers : and therefore house-bote 
 is a sufficient allowance of wood, to repair, or to burn in, the 
 
PROFIT A. PRENDRE. 311 
 
 house : which latter is sometimes called fire-bote : plough-bote 
 and cart-bote are wood to be employed in making and repair- 
 ing all instruments of husbandry ; and liay-bote, or hedge- 
 bote, is wood for repairing of hay, hedges, or fences. These 
 botes or estovers must be reasonable ones ; and such any ten- 
 ant or lessee may take off the land let or devised to him, with- 
 out waiting for any leave, assignment, or appointment of the 
 lessor, unless he be restricted by special covenant to the 
 contrary." 
 
 " Of all these rights," says Digby, " by far the most impor- 
 tant is the right of common of pasture." ^ But here the form 
 of profit a prendre which Mr. Blackstone refers to in the 
 words, " There is also a common of digging for coals, min- 
 erals, stones, and the like," is tliat which needs special dis- 
 cussion, as dealing with the important mining interests of this 
 country. 
 
 § 230. Mining Rights and Ownerships, in General. — Since the 
 substances of which the earth is composed may be owned in 
 layers, or strata, by different people, so that the property of 
 one in its natural position may be vertically above that of an- 
 other,^ it is often a difficult question whether the sale and con- 
 veyance of a so-called mining right gives to the grantee the 
 title to one of these strata — a corporeal hereditament — or 
 only an incorporeal right to take minerals from the land of the 
 grantor. When it is the latter, the grantee acquires simply a 
 profit a. prendre ; he does not own any of the coals or other 
 miinerals in their natural place in the ground, before he has 
 dug and removed them ; and, when he has taken them by 
 virtue of his right to do so, they are not realty, but personal 
 property in his hands — i^^e proceeds of his profit a prendre;^ 
 whereas, . if by the contract he obtain title to a stratum 
 
 1 Digby, Hist. Law R. P. (5th ed.) .or uncultivated land itself.which was still 
 
 p. 192. Mr. Digby shows how the un- usually called common land, as if the 
 
 cultivated land of the township, from commoners had rights of property in 
 
 being the common property of all the common over the soil itself, instead of 
 
 tOTjnsfolk, came, in the process of having simply rights t'n a/i'eno soZo." See 
 
 growth of manors, to he "regarded as also 1 PolL & Mait. Hist. Eng. L. (2d 
 
 thesoleproperty of the lord of the manor ed.) pp. 620-622; Williams, Eights of 
 
 and was called the lord's waste, and the Common, 37 et seq. 
 
 old customary rights of the villagers ^ § 209, supra. 
 
 came, as notions of strict legal rights of ' Shep. Touchst. 96 ; Caldwell v. 
 
 property were more exactly defined, to be Fulton, 31 Pa. St. 475, 478; Hanley v. 
 
 regarded as rights of user on tlie lord's Wood, 2 Barn. & Aid. 724. See Vogel 
 
 soil — aajura inrealiena. Still the name v. Webber, 159 Pa. St. 235. 
 remained, and attached ... to the waste 
 
312 KINDS OP REAL PROPERTY. 
 
 of soil, he at once owns the minerals in it, as corporeal real 
 property, while they are in their natural location in the 
 ground.^ The solution of the question usually turns on the 
 language of the instrument employed, the guiding principle 
 of construction being that, if the words used import an exclu- 
 sive right to take all the coal or other minerals in certain 
 described land, it is a conveyance of the minerals themselves 
 as corporeal real property in place, but otherwise it is merely a 
 grant of an incorporeal hereditament — a profit d prendre in 
 the form of a privilege of taking minerals from another's land.^ 
 Thus, in Huntington and Mountjoy's Case, the grant was of a 
 right to dig ore in the waste of a manor and to take turfs 
 there sufficient to make alum and copperas ; and it was held to 
 convey only an incorporeal hereditament.^ But, where the 
 transfer was of the right to dig coal under the grantor's land, 
 " to any extent," it conveyed the ownership of the coal before 
 it was mined.* And a like result followed where the deed con- 
 veyed the exclusive right to search for, dig, and carry away the 
 iron ore and limestone in a certain described parcel of land.^ 
 In accordance with the rule that a deed between individuals is 
 to be construed most strongly against the grantor, the later 
 cases, especially in this country, have tended to resolve close 
 questions of this character in favor of the grantee and decide 
 that the ownership of the unmined or unquarried minerals or 
 other substances passes to him.^ Such corporeal property is 
 susceptible of subdivision of its ownership ; but a profit d 
 prendre in minerals — the mere right to take them from the 
 land of another, and then own them as personal property — is 
 at common law an entire, indivisible thing, and an attempt 
 by its owner to convey only a part of it extinguishes it alto- 
 gether.'^ Some of the most important principles of these forms 
 of profit d prendre, as mining rights in the United States, re- 
 quire a further brief discussion. 
 
 1 Caldwell v. Fulton, 31 Pa. St. 475, 5 Stockbridge Iron Co. v. Hudson 
 478. Iron Co., 107 Mass. 290. 
 
 2 Shep. Touchst. 96 ; Hanley v, ^ Ibid. ; East Jersey Iron Co. v. 
 "Wood, 2 Barn. & Aid. 724 ; Caldwell v. "Wright, 32 N. J. Eq. 248 ; Clement 
 Eultou, 31 Pa, 475, 478 ; Clement v. v. Youngman, 40 Pa. St. 341 ; Grubb 
 Youngman, 40 Pa. St. 341 ; Stockbridge v. Bayard, 2 Wall. Jr. (U. S. Cir. Ct.) 
 Iron Co. V. Hudson Iron Co., 107 Mass. 81 ; Bainbridge on Mines, etc., 254, 255 
 290 ; Silsby o. Trotter, 29 N. J. Eq, 228. (4tli ed.), 369. 
 
 " Godbolt, 17. ' Huntington and Mountjoy's Case, 
 
 • Caldwell v. Fulton, 31 Pa. St. 475, Godb. 17 ; "Van Rensselaer v. Radcliff, 
 
 478. 10 Wend. (N. Y.) 639; Caldwell v. 
 
 Fulton, 31 Pa. St. 475, 478. 
 
PROFIT A. PRENDRE. 313 
 
 § 231. Mining Laws of this Country. — By the common lavf 
 of England, all mines of gold and silver belong to the crown, 
 as an incident or flower of the royal prerogative.* In New 
 York, the people, as successors to the rights of the king of 
 Great Britain, became the owners of such mines ; (a) and it may 
 
 (a) The New York statutes upon this topic have always been similar to 
 those of England. See stat. Feb. 6, 1789 j Sesa. L. 12, ch. 18; R. S. pt. 1, 
 ch. 9, tit. 11. They are now found in L. 1909, ch. 50, Art. 7, as including 
 Laws 1894, ch. 745, and L. 19li2, ch. 503. They declare that, " The fol- 
 lowing mines are the property of the people of this state in their right of 
 sovereignty: 1. All mines of gold and silver discovered, or hereafter to be 
 discovered, within this state. 2. All mines of other metals, and of talc, 
 mica or graphite, discovered, or hereafter to be discovered, upon any lands 
 owned by persons not being citizens of the United States. 3. All mines of 
 other metals, and of talc, mica or graphite, discovered, or hereafter to be 
 discovered, upon lands owned by a citizen of the United States, the ore of 
 which, on an average, shall contain less than two equal third parts in value 
 of copper, tin, iron and lead, or any of those metals. 4. All mines and all 
 minerals and fossils discovered, or hereafter to be discovered, upon any 
 lands belonging to the people of this state. But all mines, of whatever 
 description, other than mines of gold and silver, discovered upon any lands 
 owned by a citizen of any of the United States, the ore of which upon 
 an average, shall contain two equal third parts or more in value of copper, 
 tin, iron and lead, or any of those metals, shall belong to the owner of 
 such land." 
 
 The act authorizes any citizen of the state, who discovers a valuable 
 mine upon the state's land, to work the same for twenty-one years, after 
 giving the proper notice to the Secretary of State, and upon paying a royalty 
 to the state of two per cent of the value of the products when ready for 
 market. It also provides for corporations to be formed for mining purposes 
 and to exercise the right of emiuent domain in connection therewith; and 
 
 ' Co. Lit. 4 a; 1 Inst. 4 a; 2 Inst. or iron, the whole belonged to the crown, 
 
 572 ; Case of Mines, Plowd. 313. In because the nobler metal attracted to it 
 
 the noted ease last cited it was said : the less valuable ; and, since the king 
 
 " The common law, which is founded could not hold property jointly with a 
 
 upon reason, appropriates everything subject, he therefore took the whole, 
 
 to the person whom it best suits ; as This latter doctrine, to which a minority 
 
 common and trivial things to the com- of the judges including Plowden himself 
 
 mon people ; things of more worth to dissented, was corrected by the statutes 
 
 persons of a higher and superior class, 1 Wm. & Mary, ch. 30, and 5 Wm. & 
 
 and things most excellent to the person Mary, ch. 6, which, however, allowed the 
 
 who excels all others : and because gold king to take the proceeds of such mines 
 
 and silver are the most excellent things provided he reimbursed the landowner 
 
 which the soil contains, the law has ap- at specified rates. Lord Coke says that 
 
 pointed them, as in reason it ought, to the crown has no right, by virtue of its 
 
 the person most excellent, and that is prerogative, to any other metals than 
 
 the King." In that case, also, it was de- gold and silver, for those are the only 
 
 cided, by a majority of the twelve judges, metals required for the coining of money 
 
 that, if any admixture of gold or silver for the use of the subjects. 2 Inst. 577. 
 
 were found in mines of copper, tin, lead, 578. 
 
314 KINDS OF REAL PROPERTY. 
 
 be safely assumed, in the absence of controlling statutes in any 
 state, that mines of gold and silver are the property of the state 
 in its sovereign capacity.^ The United States government, 
 however, is the owner of mines of those metals, as well as of 
 all other mines, in its own lands, even though such lands be 
 within the boundaries of one or more of the states. The right 
 to take minerals from this public domain is now fully regulated 
 by the United States statutes, passed May 10, 1872.2 ^jj^ ^jjg 
 result of operating under those enactments is that the miner, be- 
 fore obtaining a complete title to the land itself (which he is 
 authorized to go on and do if he wish, but which in many if not 
 most cases he does not do), has a so-called mining claim, which 
 in its legal analysis consists of & profit a prendre, including the 
 right to exclusive possession and enjoyment of all the surface 
 embraced within the lines of the land located by him as his 
 claim.^ But, long before there was any national legislation 
 on this subject, systems of local mining regulations, growing 
 out of the necessities of the miners, had been established in the 
 states and territories of the Rocky Mountains and the Pacific 
 Slope, where discoveries of rich mineral deposits had brought 
 together large bodies of prospectors. At a meeting of the 
 miners themselves called for that purpose, the district rules 
 and regulations were framed to fit the needs of each particular 
 locality ; and these soon became recognized as a part of the law 
 of the community for which they were made.* They were first 
 
 it provides that property shall not be interfered with for this purpose, un- 
 less so taken, or except by written consent of the owner, or of the commis- 
 sioners of the land office when the land belongs to the state. As to the 
 rights in general of grantees of mining privileges, see Marvin v. Brewster 
 Co., 55 N. Y. 538. 
 
 1 In most of the charters from the homa, and Wisconsin. U. S. E. S. 
 British crown to the colonies, "all § 2345; 19 Stat. L. 529; 22 Stat. L. 
 mines " were expressly included. In 487 ; 26 Stat. L. 1026. 
 
 some of them, as in those of New Eng- ' Manuel v. Wulff, 152 U. S. 505 ; 
 
 land, there was a reservation of a fifth, Sullivan v. I. S. M. Co., 143 XJ. S. 431 ; 
 
 or a fourth, of the gold and silver ore ; Noyes v. Mantle, 127 U. S. 348 ; Gwil- 
 
 and, subject to this reservation, mines lim v, DonneUan, 115 U. S. 45; Belk 
 
 were leased by the colonial governors v. Meagher, 104 XJ. S. 279; Forbes v. 
 
 to those who discovered them. 3 Dane, Gracey, 94 U. S. 7Q2. 
 
 Abr. 137 ; 2 Wash. R. P. 5th ed. p. 407 * " The land department of the gov- 
 
 (6th ed. § 1318), p. *87. ernment, and this court also, have al- 
 
 2 IT. S. R. S. §§ 2318-2346; 23 Stat. ways acted upon the rule that all 
 L. 24 ; 26 Stat. L. 321, 1095. But from mineral locations were to be governed 
 the operation of these statutes are ex- by the local rules and customs in force 
 pressly exempted Alabama, Kansas, at the time of the location, when such 
 Missouri, Minnesota, Michigan, Okla- location was made prior to the passage 
 
PROFIT 1 PRENDRE. 315 
 
 developed in California ; and its system, which was itself 
 largely borrowed from the Spanish law, furnished the model 
 upon which the systems of other sections were chiefly based.^ 
 In most of the states and territories, moreover, in which 
 these public lands are situated, there are special legislative 
 enactments, affecting to some extent their mining rights and 
 interests. So that, in many mining districts, there are the 
 provisions of the statutes of the United States, which as far as 
 they go are paramount, the state or territorial legislation, which 
 is second in order of authority, and the local rules and regu- 
 lations enacted by the miners themselves, wliich are valid in so 
 f^r as they are reasonable and do not conflict with the laws of 
 congress, or of the state or territory .^ Many mining district 
 organizations, with their special codes of rules, were in exist- 
 ence at the time of the enactment of the national mining law 
 of May 10, 1872, and that law expressly recognized them and 
 authorized their continuance.^ The Federal law and the special 
 miner's regulations apply only to operations for minerals on 
 the public lands of the United States.* The ordinary rules of 
 the common law and the statutes of the respective states and 
 territories define and ascertain the rights and duties of the 
 proprietors of mineral lands which belong to individuals or 
 corporations as private property.^ 
 
 Under the United States statutes, the right beyond the 
 acquisition of which most miners do not go is that of exclusive 
 possession and a profit a prendre to take and appropriate the 
 minerals. In acquiring these, the steps are : (a) discovery, (b) 
 location, and (c) the performance of annual labor, commonly 
 called " assessment work." If he desire to acquire complete 
 title to the land itself, the claimant may make entry and pur- 
 chase of it and then procure a patent from the United States. 
 But there is no requirement that he shall take this last step.^ 
 A few words as to each of these steps will suffice. 
 
 of any mineral law by congress.'' ^ U. S. R. S. § 2324; Min. Man. 
 
 Glacier Mt. S. M. Co. v. Willis, 127 Clark, Heltman & Consaul, p. 19. 
 
 U. S. 471. See Miner's Manual, by * U. S. R. S. § 2319; Henshaw v. 
 
 Clark, Heltman & Consaul, pp. 18, 19; Clark, 14 Cal. 460, 464. 
 
 Morrison's Mining Rights, pp. 1-9. ^ Henshaw v. Clark, 14 Cal. 460, 
 
 1 Henshaww. Clark, 14 Cal. 460,464; 464; 2 Wash. R. P. (6th ed. § 1319) 
 Desloge v. Pearce, 38 Mo. 588. p. * 87. 
 
 2 North Noonday M. Co. v. Orient ^ U. S. R. S. §§ 2.318-2346; Min. 
 M. Co,, 1 Fed. Rep. 522; Forbes v. Man. Clark, Heltman & Consaul, p. 14. 
 Oracey, 94 U. S. 762 ; Upton v. Larkin, Por summary of state requirements, 
 7 Most. 449; Territory v. Lee, 2 Mont. see Morrison's Mining Rights (9th ed.), 
 124 ; Rosenthal v. Ives, 2 Idaho, 244. pp. 64-69. 
 
316 
 
 KINDS OP REAL PROPERTY. 
 
 § 232. (a) Discovery of Mines. — The statute of the 
 United States requires that, before the location of a mining 
 claim, a discovery of valuable minerals in the land shall be 
 made.^ Many of the state and territorial enactments requii'e 
 the discoverer to sink a discovery shaft to indicate generally 
 where his claim is to be located. And, if there be no posi- 
 tive requirement by statute, he must then proceed within 
 a reasonable time to complete the location.^ As a matter of 
 practice, though the statutes are silent regarding it, the pro- 
 spector should indicate his discovery by erecting a stake, or 
 other convenient article, and posting a notice upon it, briefly 
 describing his claim, demanding the time, if any, allowed by 
 the state statute or the local mining rule for perfecting the 
 location, and stating his name and the date.^ 
 
 § 233. (b) Location of Mines. — There are two distinct 
 species of mines, with the location and claiming of which the 
 statutes deal. One of these is the ordinary lode mine. A lode, 
 in the geological sense, is " a fissure in the earth's crust, an 
 opening in its rocks and strata made by some force of nature, 
 in which the mineral is deposited ; " but, as used by the 
 acts of congress, the term " is applicable to any zone or belt 
 of mineralized rock lying within boundaries clearly separat- 
 ing it from the neighboring rock." * The other form is 
 
 1 Jackson v. Roby, 109 XJ. S. 440 
 Jupiter M. Co. v. Bodie Const. M. Co., 
 11 Fed. Kep. 666; Xoulumne C. M. Co. 
 V. Maier, 134 Cal. 583 ; Bryau v. McCaig, 
 10 Col. 309. " All valuable mineral de 
 posits in lands belonging to the United 
 States, both surveyed and nnsurveyed, 
 are hereby declared to be free and open 
 to exploration and purchase, and the 
 lands in which they are found to occu- 
 pation and purchase, by citizens of the 
 United States and those who have de- 
 clared their intention to become such, 
 umler regulations prescribed by law, 
 and according to the local customs or 
 rules of miners in the several mining 
 districts, so far as the same are appli- 
 cable and not inconsistent with the 
 laws of the United States." U. S. R. S. 
 § 2319. The miner has a right, under 
 this statute, to enter and prospect on 
 public land of the United States, even 
 though it is claimed by another as agri- 
 cultural property, provided the final 
 
 agricultural entry has not been made 
 and he does not interfere with it for 
 legitimate agricultural purposes nor 
 damage the improvements of such 
 other claimant. Lentz u. Victor, 17 
 Cal. 271; Clark v. Duval, 15 Cal. 85; 
 Atwood V. Pricot, 17 Cal. 37, 43. But 
 his discovery must be clearly indicated. 
 Chrisman v. Miller, 197 U. S. 313. 
 
 2 Electro-Magnetic Co. v. Van 
 Auken, 11 Pac. Rep. 80; Erhardt u. 
 Boaro, 113 U. S. 527; Patterson v. 
 Hitchcock, 3 Col. 533 ; Mnrley v. Ennis, 
 2 Col. 300 ; Gleeson v, Martin White M. 
 Co., 13 Nev. 442. 
 
 s Min. Man. Clark, Heltman & Con- 
 saul, p. 27, q. v. This little book con- 
 tains much practical and easily accessible 
 information for miners. 
 
 * I. S. M. Co. V. Cheesman, 116 U.S. 
 529 ; North Noonday M. Co. v. Orient M. 
 Co., 1 Fed. Rep. 522; Buffalo Z. & C, 
 Co. V. Crump, 70 Ark. 525 ; Bainbridge 
 on Mines, p. 2. 
 
PROFIT A. PRENDRE. 317 
 
 the placer mine. By the term placer claim is meant " ground 
 within defined boundaries which contains mineral in its 
 earth, sand, or gravel ; ground that includes valuable de- 
 posits not in place, that is, not fixed in rock but which are in 
 a loose state, and may in some cases be collected by washing 
 or amalgamation without milling ,"" such as " superficial de- 
 posits which occupy the beds of ancient rivers or valleys ; " 
 also "deposits of valuable mineral, found in particles in 
 alluvium or diluvium, or in the beds of streams." ^ When it 
 is a lode (or vein) claim, the United States statutes permit 
 each claimant to complete his location, when he is not limited 
 by any prior, adverse rights, by staking off, or otherwise plainly 
 marking out, a tract fifteen hundred feet long by six hundred 
 feet wide.^ Any markings upon the ground claimed, by which 
 the boundaries may be readily traced, are sufficient.^ Each 
 locator of a placer claim is restricted, by the United States 
 statutes, to a plot of land not exceeding twenty acres in area, 
 with the qualification that an association may locate twenty 
 acres for each individual therein and that the maximum area of 
 any one location shall be one hundred and sixty acres ; and it is 
 required that the lines of any placer claim shall correspond, 
 as nearly as possible with the lines of the official government 
 surveys, by which its public lands are laid out Into townships 
 and sections ; * and it is sufficiently definite to indicate the 
 claim by describing it as some legal subdivision of such a 
 section. In other respects (and, when the placer mine is not 
 on land already surveyed, practically in all respects), the re- 
 quirements as to locating both species of mines are the same.^ 
 In locating either form of mine, a designation of more ground 
 than is allowed by law is void only as to the excess.® 
 
 § 234. (c) Annual Labor on Mines. — The United States 
 statutes further provide that, on each claim located after May 
 
 1 United States u. I. S. M. Co., 128 ing Eights (9th ed.), pp. 64-69. See 
 TJ. S. 673; Reynolds v. I. S. M. Co., 116 Mining Co. v. Tunnel Co., 196 U. S. 
 U. S. 687 ; Moxon v. Wilkinson, 2 Mont. 337. 
 
 421 ; Min. Man. Clark, Heltmau & Con- * U. S. R. S. §§ 2329-2331. 
 
 saul, p. 33. ^ See McKinley Creek M. Co. v. 
 
 2 U. S. R. S. § 2320. Alaska U. M. Co., 183 U. S. 563; 
 ' Jupiter M. Co. v. Bodie Const. M. Crane's Gulch M. Co. v. Scherrer, 134 
 
 Co., 11 Fed. Eep. 666 ; Walsh v. Erwin, Cal. 350. 
 
 115 Fed. Rep. 531 ; Warnock v. DeWitt, " Min. Man. Clark, Heltman & Con- 
 
 11 Utah, 324; Emerson v. McWhirter, saul, pp. .S3-37, and cases cited. See 
 
 133 Cal. 510 ; Union M. & M. Co. v. Clmper Mining Co. v. Eli Mining & L. 
 
 Leitch, 24 Wash. 585 ; Min. Man. Clark, Co\l94 U. S. 220; St. Louis M. Co. v. 
 
 Heltman & Consaul, p. 28. Summary MontWa M. Co., 194 U. S. 2,35. 
 
 of states' requirements, Morrison's Min- ^^^^^ 
 
318 KINDS OF REAL PKOPERTY. 
 
 10, 1872, not less than one hundred dollars' worth of labor 
 shall be performed, or improvements made, during each year ; 
 and, on all claims located before that time, ten dollars' worth 
 per year for each one hundred feet in length along the vein.^ 
 Failure to perform such labor, or make such improvements, 
 does not per se cause a forfeiture of the claim. But it makes 
 it subject to relocation by others, if work be not resumed ; and, 
 if such relocation be made, forfeiture of the mining rights of 
 the former claimant then results. The construction of the 
 statute, in this respect, is that the rights of one locator are 
 not divested by his failure to comply with this requirement 
 of the act, unless there is some other locator for whose bene- 
 fit the forfeiture occurs. ^ 
 
 The statute also authorizes the record of tlie locator's claim 
 and interest, but does not require it for the preservation of his 
 rights.^ It requires the locator to be a citizen of the United 
 States, or one who has duly declared his intention to become a 
 citizen, and outlines in detail the manner of establishing citi- 
 zenship.* When he has complied with all the requirements of 
 the statute, and with the state and local laws and rules whose 
 more minute provisions may be superadded, the locator of a min- 
 ing claim has a profit d prendre in the privilege, and the exclu- 
 sive right to the possession of the land. These rights combined, 
 which constitute his claim, afford him more of the ordinary 
 incidents of property than does the mere common-law privilege 
 of taking minerals from the land of another, in that his mining 
 claim is alienable, inheritable, devisable, and may be reached 
 and taken from him by an execution. The title to the land 
 remains in the United States, unless he takes the further steps 
 which bring him a patent; but his right and interest constitute 
 " property in the fullest sense of the word," and have incident 
 
 1 U. S. R. S. § 2324. See Morrison's Elkhorn M. Co., 153 U. S. 445 ; Wright 
 Mining Rights (9th ed.), pp. 72-87. v. Killiam, 132 Cal. 56. 
 
 2 Belk ti. Meagher, 104 U. S. 279 ; » Buffalo Z. & C. Co. v. Crump, 70 
 Calhoun Gold M. Co. v. Ajax Gold M. Ark.. 525; Payton o. Burns, 41 Oreg. 
 Co., 182 U. S. 499; Clipper M. Co. v. 430. 
 
 Eli M. & L. Co., 29 Col. 377; North * U. S. R. S. §§ 2319, 2324; Min. 
 Noonday M. Co. v. Orient M. Co., 1 Fed. Man. Clark, Heltman & Consaul, pp. 
 Rep. 522 ; Jupiter M. Co. v. Bodie Const. 29-32. But the fact that the locator is 
 M. Co., 1 1 Fed. Rep. 666 ; Pharis v. an alien makes his claim not void, but 
 Mnldoon, 75 Cal. 284 ; DuPrat v. only voidable ; and no one but the gov- 
 James, 65 Cal. 555 ; McGinnis v. Eg- ernment can successfully attack it on 
 bert. 8 Col. 41 ; Lacey v. Woodward, that ground. McKinley Creek M. Co. 
 25 Pac. Rep. 785 ; Ileischler v. McKen- v. Alaska U. M. Co., 183 TI. S. 563. 
 dricks, 16 Mont. 211. See Black v. 
 
PROFIT X PRENDRE. 319 
 
 to them all the ordinary rights and duties of property owner- 
 ship.^ Thus, he may sue in ejectment or trespass, for a viola- 
 tion of his privileges,^ and his interest requires a deed for its 
 transfer.^ His rights carry with them the fullest and most 
 important instance of a profit a prendre in this country. 
 
 If the locator go on and purchase the land itself in which 
 the mine is located, the mining rights, of course, usually 
 become extinguished or merged in the ownership of the 
 corporeal property. 
 
 1 Mannel v. Wulfl, 152 U. S. 505 ; Eureka M. Co., 204 U. S. 266; Farrell 
 
 SuUivau V. I. S. M. Co., 143 U. S. 431 ; v. Lockart, 210 U. S. 142. 
 
 Forbes .. Gracey, 94 U. S. 762; State ^ Merced M. Co. v. Fremont, 7 Cal. 
 
 I). Moore, 12 Cal. 56, 71; McKeon u. 317,326. 
 
 Bisbee, 9 Cal. 137. See, also. Patter- " McCarron v. O'Connell, 7 Cal. 152. 
 
 eon V. Hewitt, 195 U. S. 309; East But see Black v. Elkhoru M. Co., 153 
 
 Central Eureka M. Co. v. Central U. S. 445. 
 
CHAPTER XIV. 
 
 LICENSES. 
 
 § 235. Definition and distinctions. 
 
 § 236. Express and implied li- 
 censes. 
 
 § 237. Licenses naked, and cou- 
 pled with an interest. 
 
 § 238. Licenses executed, execu- 
 tory, continuously or repeatedly 
 executed. 
 
 § 289. a. Licenses ■wholly execu- 
 tory — Revocation. 
 
 § 240. b. Licenses wholly exe- 
 cuted — Irrevocable. 
 
 § 241. c. Licenses continuously 
 or repeatedly executed. 
 
 § 242. (a) On licensor's land. 
 
 § 243. (b) On licensee's land. 
 
 § 244. How licenses may be re- 
 voked. 
 
 § 235. Definition and Distinctions. — It has been shown how 
 each of the incorporeal hereditaments discussed in the pre- 
 ceding chapters is a species of real property — an intangible 
 interest, connected or associated with land or corporeal here- 
 ditaments. A license, on the other hand, is not property at all. 
 It is a mere privilege or permission, which confers no interest 
 in the land over which it exists. Ifc is simply an excuse or 
 justification for doing upon or in connection with another's 
 land something which would otherwise constitute a trespass. 
 Hence the ordinary definition of a license, in this sense, is 
 " an authority to do a particular act or series of acts upon 
 another's land, without possessing any estate therein." ^ " This 
 distinction," says Chancellor Kent, " between a privilege or 
 easement, carrying an interest in land, and requiring a writing 
 within the statute of frauds to support it, and a license which 
 may be by parol, is quite subtle, and it becomes difficult in 
 some of the cases to discern a substantial difference between 
 
 1 Bouvier's L. Diet. "License"; 3 
 Kent's Com. p. *452 ; De Haro v. 
 TJnited States, 5 Wall. (U. S.) 599; 
 Wolfe ,,■. Frost, 4 Sand. Ch. (N. Y.) 
 72; Mumford o. Whitney, 15 Wend. 
 (N. Y.) 380. A license is generally 
 created by parol, but occasionally arises 
 
 by deed. But a privilege in land, when 
 made in the latter way, is more com- 
 monly an easement, an enforcible 
 right. To be a license, it must ordi- 
 narily be so formed that while executory 
 ■it may be freely revoked at the option 
 of the licensor. 
 
LICENSES. 321 
 
 them." ^ The difficulty is in the application of a legal distinc- 
 tion which is in itself clear and unmistakable. An easement, 
 & profit a prendre, or a servitude of any kind is an interest, a 
 property right, owned and enforcible against the land. "A 
 license properly passeth no interest, nor alters or transfers 
 property in anything, but only makes an action lawful which 
 without it had been unlawful." ^ An ownership of a right of 
 way over another's field is an easement; and an enforcible 
 right to dig and take away coal from his mine is a profit a 
 prendre : but an oral permission to hunt on the land of one's 
 neighbor, or to prospect upon it for gold, which permission 
 may be revoked at any time, is a license which while unrevoked 
 justifies the act of prospecting or hunting. A license is a privi- 
 lege which is personal to the licensee and can not be assigned.^ 
 Not being property, its discussion here is logically out of place. 
 But it is, at first sight, so similar to easements and servitudes, 
 that it is generally treated of in connection with them. And 
 the demand for completeness requires a brief examination of it 
 at this point. 
 
 § 236. Express and Implied Licenses. — One classification of 
 licenses is into express and implied. The cliaracter and opera- 
 tion of the former kind depend, of course, upon the language 
 employed in their creation. Implied licenses to go upon the 
 property of others frequently arise from business or social re- 
 lationships. People generally have a license to enter a post- 
 office or other public building.* Familiar intercourse between 
 families may establish an implied permission for members of 
 "the one to pass over the lands of the other.^ " The publican, 
 
 1 3 Kent's Com. p. *452. v. Fisk, 6 Me. 200; Cowles <;. Kidder, 
 
 ^ Thomas v. Sorrell, Vaughan's Rep. 24 N. H. 364 ; Nunnelly v. Southern 
 
 351. For further discussions of the Iron Co., 94 Tenn. 397 ; Thoerake i\ 
 
 nature of a license, see Greenwood Lake Fiedler, 91 Wis. 386. It has been said 
 
 & Port Jervis R. Co. o. N. Y. & G. L. that a license may be made assignable 
 
 R. Co., 134 N. Y. 435 ; Cronkhite v. by express permission, as wheie it was 
 
 Cronkhite, 94 N. Y. 323 ; Mendenhall expressly declared by the parties that a 
 
 ». Klinck, 51 N. Y. 246 ; Hodgkins v. license to mine might be transferred by 
 
 Farrington, 150 Mass. 19 ; Batchelder deed. Muskett v. Hill, 5 Bing. N. C. 
 
 V. Hibbard, 58 N. H. 269 ; Motes v. 694. But such a right appears to have 
 
 Bates, 74 Ala. 374; Forbes v. Balen- sufficient permanency to become in 
 
 seifer, 74 111. 183; Parish u. Kaspare, reaXity a profit a prendre. 
 
 109 Ind. 586 ; Cook v. Chicago, B. & Q. * Sterling v. Warden, 51 N. H. 217, 
 
 R. Co., 40 Iowa, 451, 455 ; Wheeler v. 231. 
 
 West, 71 Cal. 126. ' Martin i;. Houghton, 45 Barb. 
 
 ' Priucer. Case, 10 Conn. 375; Dark (N. Y.) 258; Adams v. Freeman, 12 
 
 V. Johnston, 55 Pa. St. 164 ; Menden- Johns. (N. Y.) 408. 
 hall l: Klinck, 51 N. Y. 246 ; Emerson 
 
 21 
 
322 KINDS OP REAL PROPERTY. 
 
 the miller, the broker, the banker, the wharfinger, the artisan, 
 or any professional man whatever licenses the public to enter 
 his place of business, in order to attract custom ; but when the 
 business is discontinued the license is at an end." ^ So, if any 
 one sell personal property upon his land to another, he im- 
 pliedly licenses the latter to enter and remove that which he 
 has bought.^ 
 
 § 237. Licenses naked, and coupled with an Interest. — An- 
 other and distinct classification of licenses is into those that 
 are naked, or " mere licenses" and those that are coupled with 
 an interest, that is, coupled with an ownership of some interest 
 in the land or of sometliing that is in or on the land. The 
 importance of this distinction arises from the fact that the 
 latter kind of license, whether it be executory or executed, is 
 irrevocable by the licensor alone ; while the former kind may 
 often be revoked merely at his option.^ The following and 
 chief portion of this chapter is devoted to a discussion of the 
 revocability of naked licenses. But it is to be here emphasized 
 that any license is irrevocable, except with the concurrence of 
 the licensee, when it is annexed to a valid ownership of prop- 
 erty on the land in connection with which it exists.* And 
 a familiar illustration of this general rule emerges when one 
 sells personal chattels on his own land, and the purchaser 
 thereby acquires an enforcible license to enter upon it and 
 remove them within a reasonable time after the sale.^ 
 
 § 288. Licenses wholly executory, 'wholly executed, and con- 
 tinuously or repeatedly executed. — The most prominent and 
 important classification commonly made of licenses is into ex- 
 ecutory and executed. In connection with the forms of them, 
 
 1 Gowen v. Phila. Exch. Co., 5 Watts Co. v. Durham & N. R. Co., 104 N. 0. 
 & S. (Pa.) 141, 143 ; Root v. The Com- 658. 
 
 monwealth, 98 Pa. St. 170; Kay v. Pa. * Ibid. 
 
 R. Co., 65 Pa. St. 273. ' Whitmarsh v. "Walker, 1 Met. 
 
 2 Wood V. Leadbitter, 13 M. & W. (Mass.) 313, 316 ; Nettletoa v. Siker, 
 838, 856 ; Whitemarsh «. Walker, 1 Met. 8 Met. (Mass.) 34; Hill v. Hill, 113 
 (Mass.) 313, 316; Parsons v. Camp, 11 Mass. 103; Parsons v. Camp, H Conn. 
 Conn. 525. 525 ; Thomas v. Sorrell, Vaughan, 330, 
 
 "Wood V. Leadbitter, 13 M. & W. 351 ; Marshall v. Green, L. R. 1 .C. P. 
 
 838,856; Wood t). Manley, 11 Adol. & Div. 35. See Williams v. Morris, 8 
 
 El. 34 ; Hunt o. Rousmanier, 8 Wheat. M. & W. 488 ; Town v. Hazen, 51 N. H. 
 
 (U. S.) 174, 203 ; United States v. Bait. 596 ; Giles v. Simouds, 15 Gray (Mass.), 
 
 &0. R. Co., 1 Hughes (Ky.), 138; Met- 441; Pierrepont v. Barnard, 6 N. Y. 
 
 calf V. Hart, 3 Wyo. 513,- Karaphouse 279; Cool v. Peters B. & L. Co , 87 
 
 V. Gaffner, 73 111. 453, 461 ; Miller v. Ind. 531. 
 The State, 39 Ind. 267 ; Richmond R. 
 
LICENSES. • 323 
 
 which thus emerge, arise the most difficult questions as to their 
 revocability by the licensor alone.^ It is apparent, also, upon a 
 moment's reflection, that, when licenses are considered from 
 this standpoint, an intermediate class must exist in which the 
 controversies have arisen when the licenses were partly exe- 
 cuted and partly executory. An illustration of this class is 
 presented by the above-cited case of Giles v. Simonds,* in which 
 permission to cut down and take away a designated number of 
 trees orally sold to the licensee was sought to be revoked by the 
 licensor after a portion of them had been felled and removed 
 and the residue still remained standing. Another illustration 
 would be an orally given privilege of erecting and living in a- 
 house upon another's land.^ It will be found to conduce to 
 clearness of thought and exposition to consider such instances 
 as these as a group by themselves, and, accordingly, to discuss 
 the revocability of licenses, a, wholly executory, b, wholly exe- 
 cuted, and, c, continuously or repeatedly executed. 
 
 § 289. a. Iiicenses wholly Executory — Revocation. — A 
 license is wholly executory as long as nothing of that which it 
 authorizes has been done upon or affecting the land with refer- 
 ence to which it was given.* A license to cut certain trees is 
 executory while none of them has been cut; and a license to 
 flow a designated piece of land is executory until, pursuant to 
 such authority, water has been actually flowed upon that 
 specific land. And this is true although the licensee may have 
 performed much labor elsewhere and expended large sums of 
 money in preparing to act on the license ; as if, for example, 
 he has erected a dam on his own adjoining property, for the 
 purpose of flowing the water back upon the land of the licensor.^ 
 The law is thoroughly settled everywhere, that a license of this, 
 kind, — wholly executory, — whether it authorize the act or 
 acts to be performed upon the land of the licensor or upon that 
 of the licensee, may be revoked at the pleasure of the licensor, 
 if the licensee has not expended money nor otherwise mate- 
 
 1 The licensee alone may, at any Johna. (N. Y.) 418; Prince «. Case, 10 
 time, release or abandon his privilege. Conn. 375, .378. 
 
 Dark v. Johnston, 5.5 I'a. St. 164. * Hill v. Hill, 113 Mass. 103 ; Dodge 
 
 2 15 Gray (Mass.), 441. See Wood v. McCliutock, 47 N. H. 383 ; Houston- 
 V. Leadbitter, 13 M. & W. 838 ; CoUister v. LafCee, 46 N. H. 505. 
 
 V. Hayman, 183 N. Y. 250; note on * Thompson v. Gregory, 4 Johns. 
 
 licenses, 49 Lawy. Rep. Ann. 497. / (N. Y.) 81; Hazleton v. Putnam, 4 
 
 * Jamieson v. Milleraann, 3 Duer Chand. (Wis.) 117; Carleton v. Eed- 
 
 (N. Y.), 255; Jackson v. Babcock, 4 ington, 21 N. H. 291, 293; Woodward 
 
 V. Seeley, 11 111. 157, 165. 
 
324 KINDS OP BBAL PROPERTY. 
 
 rially changed his position upon the faith of such license ; i. e., 
 if its abolition will leave the licensee in statu quo.^ And a 
 large majority of the best courts go far beyond this, and hold 
 that such a license is freely revocable by the licensor alone, 
 although the other party may have paid value for it, or, in 
 reliance upon it, may have expended large sums of money or 
 in other ways substantially altered his position.^ In the states 
 in which this view prevails, both the courts of law and those 
 of equity sustain it, and refuse to fasten any liability upon the 
 licensor for his act of revocation, on the clear, just principle 
 that to hold otherwise would be, as was said in New York, to 
 allow a mere parol license or oral privilege to create a valid 
 •easement or other incorporeal hereditament, thus not only in 
 effect repealing the statute of frauds, but also abolishing the 
 Tule of the common law that such an interest in or over land 
 <5an only be conveyed by a deed.^ In the New Jersey Court of 
 Errors and Appeals, the true and forcible argument for the 
 rule was stated by Chief Justice Beasley as follows : " If a 
 parol license, inefficacious by force of the act, should be ren- 
 dered efficacious by reason of a losing performance on the side 
 of the licensee, it would be difficult to refuse, on a like ground, 
 to apply a similar quality to a sale of goods equally within the 
 statutory condemnation. . . . The fact- is, that a statute which 
 renders legal the revocation of certain classes of contracts is 
 founded on the theory that while, by its force, great losses will 
 
 1 Wood V. Leadbitter, 13 M. & W. Md. 20; Wood v. M. A. L. E. Co., 90 
 «38; Sampson v. Burnside, 13 N. H. Mich. 334; Lake Erie R. R. v. Ken- 
 264; Huff w. McCauley, 53 Pa. St. 206 ; nersly, 132 Ind. 274; St. Louis Nat. 
 Root V. Wadhams, 107 N. Y.384 ; Law- Stock Yards v. Wiggins Ferry Co., 112 
 Tence v. Springer, 49 N. J. Eq. 289 ; 111. 384 ; Minneapolis Mill Co. v. Minn. 
 Parish v. Kaspare, 109 Ind. 586. & St. Louis R. Co., 51 Minn. 304 ; 
 
 2 Poot u. New Haven & North Co., Pitzzmau v. Boyce, 111 Mo. 387; 
 ■23 Conn. 214, 223 ; Thompson v. Greg- Thoemke v. Fiedler, 91 Wis. 386; Beck 
 ory, 4 Johns. (N. Y.) 81 ; Babcock v. v. L. N. O. & T. R. Co., 65 Miss. 172; 
 Utter, 1 Abb. Ct. App. Dec. (N. Y.) 27, Stewart v. Stevens, 10 Colo. 440; Duke 
 60 ; Crosdale v. Lanigan, 129 N. Y. 604 ; of Sutherland v. Heathcote (1892), 1 Ch. 
 White V. Manhattan R. Co., 139 N. Y. 475. In some of these cases, the license 
 1 9 ; Lawrence u. Springer, 49 N. J. had been partly executed ; but the de- 
 Eq. 289 ; Morse v. Copeland, 2 Gray cision was that, in so far as it was 
 (Mass.), 302; Cook w. Stearns, 11 Mass. executory it was revocable, and hence 
 533 ; Seidensparger t>. Spear, 17 Me. they are authority for the proposition 
 123; Poster v. Browning, 4 R. I. 47, for which they are cited. i 
 
 53 ; Batchelder ... Hibbard, 58 N. H. » Wolfe «. Frost, 4 Sand. Ch. (N. Y.) 
 
 269 ; Prince v. Case, 10 Conn. 375 ; Col- 72, 90 ; White v. Manhattan B. Co., 139 
 
 lins Co. ■». Marcy, 25 Conn, 239; Jack- N. Y. 19; Cronkhite v. Cronkhite, 94 
 
 son & S. Co. V. Phila. W. & B. R. Co., N. Y. 323. 
 4 Del. Ch. 180; Carter u. Harlan, 6 
 
LICENSES. 325 
 
 many times fall upon promisees, nevertheless such losses must 
 be endured by such sufferers in order that the mass of the 
 community shall be protected against worse disaster." ^ With 
 the statute of frauds before him, it is the licensee's own folly 
 that he performs labor or incurs expense on the strength of 
 a parol agreement for a right or interest in the land of his 
 neighbor. He is not justified, as a reasonable person, in rely- 
 ing on such a contract ; and, therefore, he is not in legal con- 
 templation defrauded when the permission is annulled by the 
 other party .2 But, when the licensor has been guilty of con- 
 duct such that the revocation of the license would otherwise 
 act as a fraud on the promisee, as when he has made false 
 statements or misrepresentations, other than the promise of 
 the license, which have induced the licensee substantially to 
 change his position, then all the courts are agreed that the 
 license can not be revoked, or at least that it can not be done 
 away with imless the licensee is fully reimbursed or placed in 
 statu quo? In other words, the principle of the revocability 
 of executory licenses is a rule, not to shield fraud, but in favor 
 of the statute of frauds.* 
 
 It was early decided in Pennsylvania, however, and the 
 principle has been steadily adhered to there and followed in a 
 few other states, such as Georgia, Iowa, Nevada, Tennessee, 
 and Texas, that an executory license becomes irrevocable and 
 in effect transfers an interest in or over the land, by the fact 
 that, in reliance upon the parol promise, the licensee has ex- 
 pended money, or performed labor, and will suffer conse- 
 quential injury if the license be abrogated.^ This is the 
 extreme, so-called equitable view, which subordinates the re- 
 quirements of the statute of frauds to the apparent demands of 
 the individual case. It is defended by the argument that the 
 
 1 Lawrence i'. Springer, 49 N. J. Eq. ^ Le Ferre v. Le Fevre, 4 Serg. & R. 
 289, 296. (Pa.) 241 , 267 ; Dark v. Johnston, .55 Pa. 
 
 2 "Wood V. Leadbitter, 13 M. & W- St. 164 ; Cleland's App., 133 Pa. St. 189 ; 
 838; Crosdale v. Lanigan, 129 N. Y. Wiuham v. McGuire, 51 Ga. 578; Hiers 
 604, 610; Desloge i. Pearce, 38 Mo. t. Mill Haven Co.. 113 Ga. 1002 ; Hark- 
 588, 599; ness n. Burton, 39 Iowa, 101 ; Lee v. 
 
 2 Minneapolis Mill Co. v. Minn. & St. McLeod, 12 Nev. 280 ; Moses v. Sanford, 
 
 L. R. Co., 51 Minn. 304, 313; Eckerson 2 Lea (Tenn.), 655; Thomas v. Juuc- 
 
 V. Crippen, 110 N. Y. 585; Cronkhite v. tion City Irrigation Co., 80 Tex. 5.50; 
 
 Cronkhite, 94 N. Y. 323, 327 ; Wiseman Clark v. Glidden, 60 Vt. 702 ; Gilmore 
 
 V. Lucksinger, 84 N. Y. 31. v. Armstrong, 48 Neb. 92 ; Flickinger 
 
 * Crosdale o. Lanigan, 129 N. Y. v. Shaw, 87 Cal. 126. 
 604, 610; Lawrence v. Springer, 49 
 N. J. Eq. 289, 296. 
 
326 KINDS OP REAL PROPERTY. 
 
 licensee, by so changing his position, becomes pi*actically a pur- 
 chaser of the license for a valuable consideration, " and it 
 would be against all conscience to annul it, as soon as the 
 benefit expected from the expenditure is beginning to be per- 
 ceived." ^ Thus, where the owner of a lot of land had made 
 expensive improvements upon it, on the faith of a mutual un- 
 derstanding that he might use an alley on his neighbor's lot, it 
 was held that he had an irrevocable license for the enjoyment of 
 a way over the alley .^ And where two owners had agreed in 
 erecting their houses, on their respective lots, so that one could 
 not reach the upper stories of his house except through a por- 
 tion of the other's building, it was decided that an irrevocable 
 right of access was thus created.* In a few of the states this 
 Tiew is adopted by the courts of equity, while rejected by the 
 <;ommon-law courts.* But the New York Court of Appeals 
 effectually answers the arguments in favor of making such 
 licenses, merely as such, irrevocable, either in law or in equity, 
 and sustains the opposite rule of England and most of the 
 United States, as follows : " This is plainly the rule of the 
 statute. It is also, we believe, the rule required by public 
 policy. It prevents the burdening of lands with restrictions 
 founded upon oral agreements easily misunderstood. It gives 
 security and certainty to titles, which are most important to be 
 preserved against defects and qualifications not founded upon 
 solemn instruments. The jurisdiction of courts to enforce oral 
 contracts for the sale of land is clearly defined and well under- 
 stood, and is indisputable. But to change what commenced 
 in a license into an irrevocable right, on the ground of equit- 
 able estoppel, is another and quite a different matter." ^ 
 
 § 240. b. Licenses •wholly executed — Irrevocable. — The 
 statute of frauds does not apply to a license which has been 
 completely carried out and performed. Whether it was given 
 by deed or by oral contract, the execution of it before it is 
 revoked makes it an accomplished act, performed with the 
 valid consent of both parties, to which no statutory prohibition 
 
 1 Rerick v. Kern, 14 Serg. & R. (Pa.) man v. Poor, 38 Me. 237 j Cook v. 
 267,271; LeFevrey.LeFevre, 4 Serg. Prigden, 45 Ga. 331. See Babcock 
 & R. (Pa.) 241. V. Utter, 1 Abb. Ct. App. Dec. (N. Y.) 
 
 2 Ebner v. Stickler, 19 Pa. St. 19. 27-60 ; Wiseman v. Lucksinger, 84 
 » Cleland's App., 133 Pa. St. 189. N. Y. 31. 
 
 * Kamphouse v. Gaffner, 73 111. 453, ^ Cro8dale v. Lanigan, 129 N. Y. 
 
 461 ; Tanner v. Valentine, 75 HI. 624 ; 604, 610. 
 Johnson o. Skillman, 29 Ind. 95; Pit- 
 
LICENSES. 327 
 
 can thereafter apply .^ It is, moreover, a complete excuse and 
 justification to the licensee for what he has done by virtue of its 
 authority. And that is what is meant by the settled rule of 
 law that a wholly executed license is irrevocable ; having per- 
 mitted the act or acts to be done without objection, the licensor 
 can not annul or recall his parol permission so as to hold the 
 licensee as a trespasser.^ Thus, if one by license of another, 
 pull down an existing building on the latter's land, or dig and 
 lay an aqueduct in his lot, or cut down and i-emoye trees from 
 his forest, no action will lie for such proceedings, no matter 
 how much the licensor may have been injured thereby.^ 
 
 § 241. C. Licenses continuously or repeatedly executed. — 
 Many questions have been presented to the courts as to licenses 
 partly executed and partly executory ; such, for example, as a 
 permission to flow water unto another's land and to retain it 
 there, or to build a house upon his property and to continue to 
 live in it indefinitely. The same kind of question is presented 
 also by an authority to do several distinct acts on land of 
 another, when some of them have been performed and others 
 are still unexecuted. Unfortunately, some of the highest 
 courts and best writers have spoken of such licenses as these 
 as " executed," * while others have dealt with them under the 
 simple designation " executory." ^ They are not entirely within 
 either of those classes. They can be most intelligibly explained, 
 as a class or group by themselves, as contimbously or repeatedly 
 executed licenses. Our discussion of them falls naturally and 
 logically into two divisions, namely : (a) those continuously or 
 repeatedly executed licenses the performance of which is to 
 take place on the licensor's land, and (b) those continuously 
 or repeatedly executed licenses the performance of which is to 
 take place on the licensee's land. 
 
 1 Taylor v. Waters, ?■ Taunt. 374; Kent, 18 Pick. (Mass.) 509; Fentiman 
 Woodbury v. Parsley, 7 N. H. 237 ; Wal- t>. Smith, 4 East, 107 ; Bridges v. Pur- 
 ter V. Post, 6 Duer (N. Y.), 363. ceU, I Dev. & B. (N. C.) 492, 496. 
 
 2 Selden v. Del. Canal Co., 29 N. Y. • Crosdale v. Lanigan, 129 N. Y. 
 634, 639; Pratt v. Ogden, 34 N. Y. 20; 604, 610; Wolfe v. Frost, 4 Sand. Ch. 
 Cook w. Stearns, 1 1 Mass. 533 ; Foot u. (N. Y.) 72, 90; Cleland's App., 133 
 New Haven & North Co., 23 Conn. 214 ; Pa. St. 189; 2 Wash. E. P. (5th ed.) 
 Barnes v. Barnes, 6 Vt. 388 ; Sampson p. 667 (6th ed. § 844), p. *400; Jones, 
 V. Burnside, 13 N. H. 264 ; Wood v. Ease. § 77, et seq. 
 
 Leadbitter, 13 M. & W. 838 ; Smith v. ^ Dodge v. McClintock, 47 N. H. 
 
 Goulding, 6 Cnsh. (Mass.) 154. 383; Hill v. Hill, 113 Mass. 103 ; Het- 
 
 8 Prince v. Case, 10 Conn. 375, 378; field v. Cent. li. Co., 29 N. J. L. 571 ; 
 
 Pratt V. Ogden, 34 N. Y. 20 ; Sampson Lawrence v. Springer, 49 N, J. Eq. 
 
 ». Bnrnside, 13 N. H. 264 ; Kent v. 289. 
 
328 KINDS OP REAL PROPERTY. 
 
 § 242 (a) Licenses to be continuously or repeatedly executed 
 on the Licensor's Land. — The first of these — the license to be 
 continuously or repeatedly executed on the licensor's land — may 
 be easily and fully treated by being considered as in effect two 
 licenses ; the one wholly executed, embracing that part which 
 has been already performed and therefore governed by the 
 principles discussed in section 240 above ; the other executory, 
 embracing the other portion and governed by the principles 
 discussed in section 239 above. It follows that such a license 
 is a complete excuse and justification for what has been 
 done pursuant to it before its revocation ; ^ that, by the great 
 weight of authority the licensor who has not been guilty of 
 fraud or unfair dealing respecting it may at any time revoke it 
 as to the future and stop further operations under it, no matter 
 how much injury such revocation may cause the licensee,^ and 
 that, according to the Pennyslvania doctrine, it has become 
 entirely irrevocable after the licensee has so altered his posi- 
 tion upon the faith of it as not to be left substantially in statu 
 quo upon the abrogation of the license.^ Thus, under the 
 majority rule, it lias been held that a verbal license given to an 
 adjacent proprietor to erect and use a retaining wall upon the 
 licensor's land might be revoked after the wall was erected, 
 and the licensee might be compelled to remove the wall.* But 
 the latter was not liable in damages for having placed it there. 
 And in another case, where the permission was to build a dam 
 on the licensor's land, it was decided that the landowner 
 might at any time compel the removal of the dam from his 
 property, and that its owner was not liable in damages for hav- 
 ing built and retained it there nor for "its affecting the land 
 during the reasonable time required for its removal after the 
 license was revoked.^ But, in applying the Pennsylvania doc- 
 trine, it was adjudged that an oral authority to cast sawdust 
 into a stream was wholly irrevocable after the licensee had 
 been led thereby to build his mill in a location different from 
 that which he had originally intended ; ® and a license to sink 
 
 1 % 240, supra. 154. Also Cook v. Stearns, 11 Mass. 
 
 » I 239, supra; Hicks «. Swift Creek 533; Mumford w. Whitney, 15 Wend. 
 
 Mill Co., 133 Ala. 411; Emerson v. (N. Y.) 380; White v. Manhattan R. 
 
 Shores, 95 Me. 237. Co., 139 N. Y. 19 ; Lawrence v. Springer, 
 
 ^ Ibid. 49 N. J. Bq. 289 ; Batchelder v. Hibbard, 
 
 * Crosdale v. Lanigan, 129 N. Y. 58 N. H. 269 ; Wood i?. Mich. Air Line 
 604; St. Louis Nat. Stock Yards ii. R. Co., 90 Mich. 334. 
 
 Wiggins Ferry Co., 112 111. 384. ' « Thompson v. McElarney, 82 Pa. 
 
 * Smith V. Goulding, 6 Cush. (Mass.) St. 174. 
 
LICENSES. 329 
 
 and retain a shaft for mines in the licensor's land was held to 
 be irrevocable after the shaft had been made.^ It was in decid- 
 ing a case similar to these last two, that the New York Court 
 of Appeals said : " It is better, we think, that the law requiring 
 interests in land to be evidenced by deed should be observed, 
 than to leave it to the chancellor to construe an executed 
 license " (the license was partly executed) " as a grant depend- 
 ing upon what, in his view, may be equity in the special case." ^ 
 § 243. (b) Licenses to be continuously or repeatedly executed 
 on the Licensee's Land. — A license to be executed upon the 
 licensee's land can exist only in those cases in which its perform- 
 ance will destroy or impair some right owned by tiie licensor 
 over that land. For, in the absence of such an adverse right, 
 one may do what he pleases on his property without the neces- 
 sity for any license. Thus, if one have an easement to enjoy 
 for his house light and air over the adjacent lot, such a license 
 may arise in the form of a permission to his neighbor to so 
 build as to shut out such light and air and retain his building 
 in that position. As soon as a license of this nature is either 
 wholly executed, or partly executed by a material change of 
 position on the part of the licensee, it becomes entirely irrevo- 
 cable.^ For the effect of enforcing it is not to create or convey 
 
 1 Beatty v. Gregory, 17 Iowa, 114. maintain the wall, for at least a reason- 
 Also Wickersham v. Orr, 9 Iowa, 253, able time after it was finished ; for 
 260; Lee v. McLeod, 12 Ney. 280; otherwise it would he of no use to the 
 § 239, supra. Under either of the op- licensee- It was this last named part, 
 posing rules, a license may be revoked this distinctly implied part of the license, 
 by the licensor after practically all the that was in reality revoked. The right 
 beneficial purposes of its creation have to build was not revoked ; for, if that 
 been enjoyed by the licensee. Allen v. could have been done, the licensor might 
 Fiske, 42 Vt. 462 ; Clark v. Gliddeu, 60 have sued the licensee and recovered 
 Vt. 702, 710. against him in an action for trespass. 
 
 ^ Crosdale v. Lanigan, 129 N. Y. 604, The prioilege of keeping the wall there in 
 
 610. The word " executed," as used in the future, and that alone, was revoked, 
 
 the passage quoted, is explained by the It was, in a sense, an " executed " 
 
 context. It is not meant here to criti- license ; but there was a distinct part of 
 
 cise the high tribunal from whose Ian- it that was executory, and the executory 
 
 gnage the quotation is taken ; but rather part alone was revocable. It is believed 
 
 to make the text of this treatise plain. that a correct understanding of the sense 
 
 The license, in that case, was an oral in which the courts have used the terms 
 
 permission to build a retaining wall on " executed " and " executory," in treat- 
 
 another's land, and, before the license ing of the law of licenses, would clarify 
 
 was attempted to be revoked, the waE many opinions and do away with many 
 
 had been entirely erected. In a true apparent discrepancies, 
 and literal sense, therefore, the license ' Winter v. Brockwell, 8 Bast, 308 ; 
 
 was executed. It is perfectly clear, Hewline v. Shippam, 5 B. & C. 221 ; 
 
 however, that the parties to the agree- Moore v. Bawson, 3 B. & C. 332 ; Morse 
 
 meut meant it to include the right to v. Copeland, 2 Gray (Mass.), 302; Pope 
 
330 KINDS OP HEAL PROPBETY. 
 
 any right or interest in real property, but to destroy an existing 
 easement or servitude : and, therefore, the doctrine of equitable 
 estoppel may be applied without in any way contravening the 
 statute of frauds. The impairment or destruction of incor- 
 poreal hereditaments is not affected by the statute of frauds, 
 nor by the common-law rule which requires certain interests 
 in real property to be conveyed by deed.^ 
 
 § 244. How Licenses may be revoked. — A revocable license 
 may be revoked and terminated by any act of the licensor 
 which prevents, or is inconsistent with, its exercise.^ It is re- 
 voked by his death, or by his conveyance of the land without 
 excepting or preserving the right, or by the death of the 
 licensee.^ So an action by the landowner against the licensee, 
 for the recovery of damages for its exercise, brings it to an 
 end.* 
 
 V. O'Hara, 48 N. Y. 446 ; Jamieson v. 32 N. J. Eq. 248 ; Winne v. Ulster Co 
 
 Millimann, 3 Duer (N. Y.), 255 ; Veghte Sav. Inst., 37 Hun (N. Y.), 349. 
 I). Raritan Co., 19 N. J. Eq. 142, 153; ' Wood v. Leadbitter, 13 M. & W. 
 
 Foot ti. New Haven & North Co., 23 838 ; De Haro v. United States, 5 Wall. 
 
 Conn. 214, 223 ; Addison v. Hack, 2 Gill (U. S.) 599 ; Emerson v. Shores, 95 Me. 
 
 (Md.), 221 ; Hazleton v. Putnam, 3 237 ; Eckert v. Peters, 55 N. J. Eq. 379 ; 
 
 Chand. (Wis.) 117, 124, Vandenburgh v. Van Burgen, 13 Johns. 
 
 1 Ibid. ; Wolfe v. Frost, 4 Sand. Ch. (N. Y.) 212. 
 
 (N.Y.) 72,90; Wood w. Leadbitter, 13 * Mumford v. Whitney, 15 Wend. 
 
 M. & W. 838. (N. Y.) 380 ; Branch v. Doane, 17 Conn. 
 
 2 Hodgkins w. Farrington, 150 Mass. 412. 
 19, 21 ; East Jersey Iron Co. v. Wright, 
 
BOOK II. 
 
 HOLDINGS OP REAL PROPERTY. 
 
 Part I. — Alodial Holding before Feudal Ststem, and 
 AFTER Revolution in United States. 
 Part IL — Tenure — Feudal System. 
 
PART I. 
 
 ALODIAL HOLDING. 
 
 CHAPTER XV. 
 
 OUTLINE OP THIS BOOK — ANGLO-SAXON HOLDINGS. 
 
 § 245. Introduction — Divisions. 
 § 246. Anglo-Saxon and Ameri- 
 can holdings. 
 
 § 247. Forms of Anglo-Saxon 
 holdings. 
 
 § 248. Feudal germs in Anglo- 
 Saxon law. 
 
 § 245. Introduction — Divisions. — The forms or kinds of 
 real property having been examined and explained, the next 
 department of our subject is a discussion of the different 
 methods by which they may be held or owned. This will in- 
 volve historical matter, which is sometimes said to be of little 
 or no importance to the American lawyer. But, in addition 
 to its lending the satisfaction, and utility alike, which thor- 
 oughness merely for its own sake brings with the work of 
 every student, a knowledge of the ancient tenures and holdings 
 affords a constant source of enlightenment and assistance in 
 the study of the subsequent and more directly practical por- 
 tions of real-property law. There are many statutes and forms 
 of modern law that may be largely understood and often ap- 
 plied by him who has no knowledge whence they came. Those 
 who are to know them fully, however, and desire to be able to 
 use them to the best advantage, must frequently go to their 
 beginnings and trace them from their sources. To observe the 
 salient elements of real-property law, as they arose and grew 
 in England during the Anglo-Saxon period ; to investigate the 
 important changes and additions, which came about as the 
 result of the Norman Conquest and the vigorous sway of 
 ■the feudal system ; to note the decline of that system, its re- 
 jection in America and the restoration here of land holding 
 
334 HOLDINGS OF REAL PROPERTY. 
 
 to substantially its primitive form, and ultimately to find 
 scattered along through it all the mainsprings of hundreds of 
 leading principles, whicli are at the basis of this and other great 
 departments of jurisprudence on both sides of the Atlantic, is 
 not merely the work of an antiquarian ; it is an absolute neces- 
 sity to the thorough equipment of a practical American lawyer. 
 The effort is made in this book to present, in as terse a form 
 as is compatible with clearness, the historical matter which 
 explains our holdings of real property and shows the origin 
 and nature of important rules and principles of other branches 
 of the subject. This will be attempted in three chapters, the 
 first, or present one, of which deals with Anglo-Saxon holdings, 
 the second with the feudal system, and the third with holdings 
 in the United States. How the tenure of the county of Kent 
 supplied a natural connection between the holdings to be 
 discussed in the first and third of these chapters is hereafter 
 explained.^ With that link — or rather chain five centuries 
 long — between them, those holdings are, nevertheless, largely 
 identical; and the chapters which deal with them, though 
 separated by that on the feudal system (which is Part II.), are 
 logically to be thought of together as constituting Part I. of 
 this Book. 
 
 § 246. Anglo-Saxon and American Holdings. — There is very 
 little actual knowledge, at the present time, of the system, if 
 there were anything at all that could be called a system, under 
 which land was held by the Teutonic invaders — the Angles, 
 the Saxons, and the Jutes — who wrested England from tlie 
 Celtic and British tribes and founded the kingdom of Great 
 Britain. There is a similar lack of information as to many of 
 their laws and institutions, which prevailed even down to the 
 Norman Conquest. It is certain, however, that, during the 
 Anglo-Saxon period of Englisli history, much real property was 
 owned and held alodially, that is, " held in absolute ownership, 
 not in dependence upon any other body or person in whom the 
 proprietary rights were supposed to reside, or to whom the 
 possessor of the land was bound to render service." ^ An ordi- 
 nary kind of landed interest was that of such absolute domin- 
 ion and control, each owner being the entire master of his 
 property, independent of all obligations to render services or 
 
 1 § 246, infra. Kent's Com. p. * 488 ; Freeman, Noiv 
 
 2 Digby, Hist. Law B. P. (5th ed.) man Conq. (2d ed.) i. 84. 
 p. 12; 2 Blackst. Com. p. » 105; 3 ' 
 
ANGLO-SAXON HOLDINGS. 335 
 
 money payments to any one, except only the three requirements, 
 the trinoda neoessitas, to which all lands were subject. These 
 were the obligations to render military services for the king 
 (expeditio), and to repair bridges, and fortresses (pontis arcisve 
 constructio), and were of a political rather than of a proprietary 
 nature.^ After the Norman Conquest and the general burden- 
 ing of lands in England with feudal requirements, the Kent- 
 ishmen struggled persistently, and with a large amount of 
 success (though their lands were brought imder the feudal 
 system), for the preservation of this alodial characteristic of 
 their real-property holdings.^ And, in the royal charters to 
 most of the American colonies, in after times, reference was 
 made to the holding of lands in the county of Kent, and the 
 same immunities that those lands enjoyed from many of the 
 feudal burdens were assured for the realty here.^ Thus, 
 the county of Kent formed, as it were, a bridge, over feudal 
 eras, between the alodial holdings of our Anglo-Saxon ancestors 
 and the same form of real-property ownership now almost uni- 
 versally prevalent in the United States.* 
 
 § 247. Forms of Anglo-Saxon Holdings. The alodial lands 
 
 of the Saxons were practically co-extensive with their book- 
 lands (hoc-land}, or those which had originally been " booked," 
 or granted, by the king and his council of wise men (witenage- 
 mot or witan), from the common property of the community, 
 to individuals or religious bodies.^ .The characteristics of such 
 grants depended largely, of course, upon the terms of the 
 charters, or " hooka" by which they were made ; but these lands 
 were generally, not only held alodially, but also with the right 
 of the owners to will them away, or transfer them to others 
 by act inter vivos. They were also inheritable, and, in the 
 absence of special local custom, passed, on the death of the 
 owner intestate, to all of his sons in equal shares.^ Another 
 
 1 1 Stubb's Const. Hist. Eng. pp. 76, socage, and not in capite or by knight- 
 190; Digbv, Hist. Law R. P. (5th ed.) service." 
 
 p. 13 ; 1 Blackst. Com., p. * 263. * § 288, infra. 
 
 2 1 Poll. &Mait. Hist. Eng. Law (2d ' Digby, Hist. Law U. P. (5th ed.) 
 ed.), p. 186 ; 1 Wash. R. P. p. * 17, 6th p. 12. 
 
 ed., § 55. « Digbv, Hist. Law R. P. (5th ed.) 
 
 ' 1 Spence, Eq. Jur. 105, u. ; 1 Story, p. 26 ; 1 Poll. & Mait. Hist. Eng. Law 
 
 Const. 159. An ordinary expression in (2d ed.), p. 60, where it is also said : " It 
 
 those charters, describing the tenure, is important to remember that book-land 
 
 was: "to be holden of our sovereign was a clerkly and exotic institution, and 
 
 lord the king as of his manor of East that grants of it owe their existence 
 
 Greenwich in the county of Kent in the directly or indirectly to royal favor, and 
 
 realm of England, in free and common throw nci light, save incidentally, on the 
 
 old customary rules of laud-holding." 
 
336 HOLDINGS OP EEAL PROPERTY. 
 
 large portion of the land was called folk-land, which was held 
 by virtue of the customary law of the realm, without any 
 written title. It is probable that this kind of property, coming 
 down as it did by custom from ancestor to heir, could not be 
 aliened from the family (or folks) without much difficulty, and 
 there seems to be no evidence that it could be disposed of by 
 will.^ Large tracts of territory, called terra regis, were also 
 held by the king individually. These came, in process of time, 
 to be known as the king's folk-land ; and it was, without doubt, 
 the great extent and importance of this domain, with the fre- 
 quent additions to it from forfeiture and other causes, that 
 ultimately gave emphasis, if not origin, to the fundamental 
 conception of the English feudal system, that all real property 
 was originally vested in the crown.^ In the latter part of the 
 Anglo-Saxon period, land was sometimes let out by the owner, 
 to be held of him by another ; and it was then styled laen-land. 
 It is probable that this arrangement was most frequently made 
 to continue during the life of the holder, though it may some- 
 times have been for one or more years or even a shorter period.^ 
 Here was the precursor, if not the original, of the relation of 
 landlord and tenant of subsequent centuries.* 
 
 § 248. Feudal Germs in Anglo-Saxon Law. — It is said by 
 the most recent and careful historians that, toward the close 
 of the Anglo-Saxon era, there are discernible in these forms 
 of land holding the germs and some of the growth of that which 
 was hastened by the Norman Conquest into the fully developed 
 feudal system. There was present the relation of lord and 
 man (closely corresponding originally to the Roman princeps 
 and comes), and this had in some instances developed into the 
 relation of lord and tenant. Large districts of land were held 
 by great men, such as the kings thegns, or by religious institu- 
 tions, and divided, parcelled out, and controlled by a system 
 similar to that which characterized the manors of tlie succeed- 
 ing centuries.^ And, at the time of the arrival of William the 
 Conqueror, there were many tillers of the soil, who owed and 
 rendered to superior owners of the land services substantially 
 the same as those which were afterwards incident to the rela- 
 
 1 1 Poll. & Malt. Hist. Eng. Law p. 310; Digby, Hist. Law R. P. (5th ed.) 
 (2d ed.), pp. 61, 62. p. 16. 
 
 2 Digby, Hist. Law R. P. (5th ed.) * Digby, Hist. Law R. P. (5th ed.) 
 pp. 17, 18. pp. 49, 50. 
 
 8 1 Poll. & Mait. Hist. Eng. Law (2d « Digby, Hist. Law R. P. (5th ed.) 
 
 ed.), p. 61; 1 Kemble, Saxous in Eng. pp. 19-25. 
 
ANGLO-SAXON HOLDINGS. 337 
 
 tion of lord and vassal.^ " After the Norman Conquest book- 
 land preserved its name for a time in some cases, but was 
 finally merged in the feudal tenures in the course of the twelfth 
 century. The relations of a grantee of book-land to those who 
 held under him were doubtless tending for some considerable 
 time before the Conquest to be practically very like those of a 
 feudal superior ; but Anglo-Saxon law had not reached the 
 point of expressing the fact in any formal way. The Anglo^ 
 Saxon and the continental modes of conveyance and classifica- 
 tion of tenures must have coalesced sooner or later. But the 
 Conquest suddenly bridged a gap which at the time was still 
 well marked. After its work is done we find several new lines 
 of division introduced and some old ones obliterated, while all 
 those that are recognized are deeper and stronger than before. 
 The king's lordship and the hands that gather the king's dues 
 are everywhere ; and where they have come the king's law will 
 soon follow." 2 
 
 1 1 Poll. & Malt. Hist. Eng. Law ^ i pgn. ^ Malt. Hist. Eng. Law (5d 
 
 (2d ed.), p. 61. ed.), pp. 62, 63. 
 
PART IL 
 
 TENURE. 
 
 CHAPTER XVI. 
 
 THE FEUDAL SYSTEM AND ITS FRUITS. 
 
 
 The Feudal System. 
 
 §249. 
 
 Its rise and growth in 
 
 England 
 
 . 
 
 §250. 
 
 Its nature. 
 
 §251. 
 
 Creation of feudal rela- 
 
 tionship 
 
 — Terms used. 
 
 §252. 
 
 Fealty — Homage — War- 
 
 ranty. 
 
 , 
 
 
 Tenure. 
 
 §253. 
 
 Definition of tenure — 
 
 Classifioation. 
 
 §254. 
 
 1. Tenure by knight-ser- 
 
 §255. 
 
 Aids. 
 
 §256. 
 
 Relief. 
 
 §257. 
 
 Primer seisin. 
 
 §258. 
 
 Wardship. 
 
 §259. 
 
 Marriage. 
 
 §260. 
 
 Fines for alienation. 
 
 §261. 
 
 Escheat. 
 
 §262. 
 
 Decline and destruction of 
 
 tenure by knight-service. 
 
 § 263. Grand serjeanty. 
 
 § 264. Frankalmoiu. 
 
 § 265. Divine service. 
 
 § 266. 2. Socage — Free and com- 
 mon socage. 
 
 § 267. Incidents of tenure by 
 free and common socage. 
 
 § 268. Petty serjeanty — Bur- 
 gage — Gavelkind. 
 
 § 269. 3. Villein socage — Un- 
 free tenures. 
 
 § 270. Origin and incidents of 
 tenure by villein socage. 
 
 § 271. 4. Pure villeinage. 
 
 §272. 5. Copyhold tenure — Its 
 development and nature. 
 
 § 273. Survival of copyhold ten- 
 ures. 
 
 § 274. Manors. 
 
 Descent and Alienation of Realty, as 
 affected by Feuds. 
 
 Duration of vassal's hold- 
 
 (a) Descent of feuds. 
 
 (b) Alienation by will, 
 (o) Alienation by act inter 
 
 §275, 
 ing. 
 
 §276, 
 
 §277 
 
 §278, 
 vivos. 
 
 § 279. Effects of Magna Charta 
 on alienation inter vivos. 
 
 § 280. EfEects of Statute Quia 
 Emplores on alienation inter vivos. 
 
 § 2Sl. Statute Be Bonis. Sum- 
 mary as to alienation inter vivos. 
 
 § 282. Restrictions on alienation 
 removed by Statute 12 Car. IL 
 ch. 24 — Present results. 
 
THE FEUDAL SYSTEM AND ITS FKUITS. 
 
 33& 
 
 Seisin. 
 
 § 283. Seisia defined abd classi- 
 fied. 
 
 § 284. Seisin not allowed to be 
 in abeyance. 
 
 § 285. Only one seisin at a time. 
 § 286. Disseisin. 
 
 § 287. Livery of seisin — Grant — 
 Attornment. 
 
 2%e Feudal System. 
 
 § 249. Rise and Growth of the Feudal System in England. — ' 
 Feudalism would have conquered England, even if the Normans 
 had never come. With William I. both conquests were com- 
 pleted quickly. In forms widely divergent in the different 
 countries, the feudal system, which Maine says created a great 
 interruption in the history of jurisprudence,! had grown and 
 matured upon the continent much earlier than in the British 
 Isles, — probably because, in all of its phases, it resulted from a 
 coalescence of Teutonic customs and Roman practices, which 
 went on most rapidly where the more cultured and civilized 
 peoples of the remnants of the Western Empire had the great- 
 est influence upon their ruder but stronger northern conquer- 
 ors.2 For at least a century before their taking of England in 
 1066, the Normans had practised the system of military tenure 
 of lands and enjoyed the services of a body of trained lawyers, 
 skilled in all the subtle reasoning and finesse of the feudal 
 polity .** These they naturally brought with them to their new 
 dominion. And the full-grown system of the victorious race, 
 converging with the then incipient feudal land tenure of the 
 vanquished, rapidly produced the Anglo-feudalism which has 
 played such a tremendous part in the development of the 
 common law of real property. It would no doubt be erroneous 
 to assume that feudal tenure and its numerous burdens were 
 imposed at any one time upon all the land in England by the 
 fiat of William the Conqueror, powerful ruler though he was, 
 who would brook no imperium in imperio ; or that it was only 
 by the combination of the two forms of landed proprietorship, 
 existing apart before the battle of Hastings, that there was 
 brought into being, in those troublous times, the English char- 
 acteristics of the holdings of land from and under a superior 
 owner or lord. Numerous forces, personal, economical, and 
 
 ' Maine's Ancient Law (1st Amer. 
 ed.), p. 15. 
 
 '^ Maine's Anc. Law (1st Amer. ed.), 
 
 pp. 286-294 ; Digby, Hist. Law E. P. 
 ch. i. § ii. (pp. 30, 31). 
 
 8 Cruise Dig. ch. i. §§ 8-1 2; 1 Poll 
 & Malt. Hist. Eng. Law, ch. iii. 
 
340 HOLDINGS OP REAL PEOPEBTT. 
 
 political, were there working to make history and institutions 
 rapidly, yet with a permanency which shows the absence of 
 haste.i Early in the twclftli century the 'task had been sub- 
 stantially performed, and practically all the land of England 
 was under the dominion of feudal masters and overlords.^ 
 Even earlier than this, during the twentieth year of the reign 
 of William I., he had succeeded in having the domains of 
 many of the Saxon ■ proprietors, who had escaped the sword 
 and the forfeiture of their lands, surrendered to him as feudal 
 lord and then handed back to their owners to be held of him ; 
 and when to these acquisitions were added the vast estates 
 which had come to him as the direct result of conquest and 
 the numerous forfeitures which had followed the allegiance of 
 the Saxon noblemen to Harold and his cause, the infeudation 
 of very much of the real property of the kingdom was com- 
 plete.'' The occasion of this large handing over of their laud 
 to the Conqueror by the English landholders was the meeting 
 of the king and his barons and great men at Sarum, in the 
 year 1086, soon after a threatened invasion of the country by 
 the Danes had called for extensive warlike preparations and 
 shown the necessity of a compact military organization ready 
 for quick and compulsory service. The invasion did not take 
 place. But, after the danger which had been imminent was 
 over, it afforded a powerful argument by which William in- 
 duced the great Saxon proprietors to bring tlieir lands, in form 
 at least (for at first it was probably only meant by them to 
 be a form), under feudal bondage and obligations.* It was 
 upon the heels of the compilation of the great survey of the . 
 
 ' See 1 Poll. & Mait. Hist. Eng. come the ' man ' of the conqueror, and 
 
 Law (2d ed.), pp. 79, 80, where the should be bound to military service. 
 
 various elements which produced Eng- Moreover, in those troubled times it 
 
 lish feudalism are summarized. often became a necessity for the poor 
 
 2 Digby, Hist. Law R. P. (5th ed.) alodial holder to enter into the train of 
 
 pp. 37-43 ; 1 Poll. & Mait. Hist. Eng. retainers of a powerful lord in order to 
 
 Law (2d ed.), p. 62. obtain protection; hence the practice 
 
 ' 2 Blackst. Com. pp. *49, *50. of 'commendation,' of becoming the 
 
 " The principal agents by which alodial man or vassal of the lord, receiving in 
 
 owners of land were turned into feudal return the protection without which the 
 
 tenants were probably conquest, and need preservation of life and property was 
 of protection. The lot of the conquered ' impossible. An element in this process 
 
 is always hard, and doubtless the alodial was the surrendering of the alodial 
 
 holder of land was glad to retain the lands, to be received back under the 
 
 enjoyment of a portion of his property condition of rendering military or other 
 
 on such terms as the conqueror chose to service." Digby, Hist. Law R. P. ch. i. 
 
 impose. The usual conditions were § ii. (p. 32). 
 that the old free proprietor should be- * 2 Blackst. Com. p. * 49. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 341 
 
 realm, called Domesday Book, that this meeting at Sarum was 
 convened. " This," says Blackstone, " may possibly have been 
 the era of formally introducing the feudal tenures by law; and 
 perhaps the very law thus made at the council of Sarum is that 
 which is still extant, and couched in these remarkable words : 
 ' Statuimus, ut omnes, liberi homines faedere et sacramento affir- 
 ment quod intra et extra universimi regnum Anylice Wilhelmo 
 regi domino suo fideles esse volunt ; terras et honores illius omne 
 fidelitate ubique servare cum eo, et contra inimicos et alienigenas 
 defendere.' The terms of this law (as Sir Martin Wright has 
 observed) are plainly feudal : for, first, it requires the oath of 
 fealty, which made, in the sense of the feudists, every man that 
 took it a tenant or vassal ; and, secondly, the tenants obliged 
 themselves to defend their lord's territories and titles against 
 all enemies foreign and domestic. But what clearly evinces 
 the legal establishment of this system, is another law of the 
 same collection, which exacts the performance of the military 
 feudal services, as ordained by the general council. ' Omnes 
 comites, et harones, et milites, et servientes, et universi liberi 
 homines totius regni nostri prcedicti, haheant et teneant se semper 
 bene in armis et in equis, ut decet et oportet : et sint semper 
 prompti et bene parati, ad servitium suum integrum vobis ex- 
 plendum et peragendum, cum opus fuerit : secundum quod nobis 
 debent de fcedis et tenementis suis de Jure facere, et sicut illis 
 statuimus concilium totius regni nostri prcedicti.' " ^ Whether 
 Blackstone be right or wrong in attaching so much importance 
 to this meeting and the statutes which he quotes, it is certain 
 that he was writing of a time when Norman customs and insti- 
 tutions were being pushed with vigor to the front, that England 
 as a nation was then feudal, and that, at least within a very 
 few years thereafter, tenure was a practically universal law of 
 the land. 
 
 § 250. Nature of the Feudal System. — The primary object 
 of the feudal system, as it was elaborated in England, was to 
 have all of the king's subjects who could carry arms bound by 
 ties of the strongest self-interest to be ready, at a moment's 
 notice, to form or provide an army for any and all sorts of 
 military service. It did this by making the landowner's hold- 
 ing of his property dependent upon his obligation and readiness 
 to render services to a superior lord. Its fundamental principle 
 was that the king was the owner of all the lands within his 
 
 1 2 Blackst. Com. pp. * 49, * 50. 
 
342 HOLDINGS OP BEAL PROPERTY. 
 
 realm. He parcelled out large tracts of this property to indi- 
 viduals, or religious bodies, to hold as the vassals or ten- 
 ants of the crown. These holders in their turn subparcelled, or 
 subinfeudated, their respective portions to others below them- 
 selves, to hold as their vassals or tenants ; and the latter, 
 again, often brought in others as holders under themselves. 
 And so the process of causing one man to be an owner in 
 subordination to another, and the lower of these two to have 
 a tenant under him, and so on down in a series, might be, and 
 frequently was, carried on till between the king, who was the 
 primary and only alodial owner of a tract of land, down to the 
 person who actually held and cultivated or otherwise used it, 
 "there was a long chain of persons interested in it, each feudally 
 ibound by that interest to those above him and thus ultimately 
 •obligated to the crown. At the top of this series is the king, 
 who is designated the lord paramount. Those who hold im- 
 mediately of him, as his tenants, or vassals, are called tenants 
 in oapite, or in chief. Those at the bottom of the scale, who 
 cultivate or otherwise make actual use of the land, hold in 
 demesne as the tenants paravail, — the tenants who make 
 the avail or profits out of the land itself. And those standing 
 between these last and the king, or lord paramount, are the 
 vassals of those above and the lords of those below themselves. 
 Looked at in the latter light, they are mesne or intermediate 
 lords. Thus, if A, the king, grant a piece of land to B, and B 
 parcel out some of it to C who subinfeudates it to D, A is lord 
 paramount ; B is his tenant in capite and he is also a mesne 
 lord, being the immediate lord of C, and C is tenant of B and 
 mesne lord of D, who, being as we suppose the cultivator of 
 the land, is the tenant paravail. Or, to take an actual case, 
 during the reign of Edward I., Roger of St. German made 
 the proceeds of land at Paxton in Huntingtonshire which he 
 held of Robert of Bedford ; the latter held it of Richard of 
 Ilchester, who held of Alan of Chartres, who held of William 
 Le Boteler, who held of Gilbert Neville, who held of Devorguil 
 Balliol, who held of the king of Scotland, who held of the king 
 of England. Roger of St. German, who held the land in 
 demesne as tenant paravail, looked up to Robert of Bedford 
 as the lord to whom he was immediately responsible, and 
 through him and the other mesne lords to the king of England 
 as lord paramount ; while the king of Scotland, as tenant in 
 capite, looked upward to the king of England, as his only lord, 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 343 
 
 and downward to Devorguil Balliol as his tenant or vassal.^ 
 Every such ladder of ownerships — and there was not an acre 
 of land in the kingdom that did not have one of them, with at 
 least two rungs, and often, as in the above illustration, with 
 many more — had connected with it bonds of honor, self- 
 interest, and even self-preservation, which bound the dif- 
 ferent parts almost indissolubly together.^ For the vassal's 
 retention of his land, and therefore in most cases the means 
 of subsistence for himself and his family, depended on his 
 loyalty to his lord and the faithful performance of the services 
 incident to his tenure ; while the lord was obligated, by the 
 strongest ties of honor, self-respect, and feudal custom, carefully 
 to look out for the welfare of his tenants. When, therefore, 
 it was determined that the nation should go to war, the king 
 called upon his tenants in capite to bring their forces to his 
 .service. They made the same demand upon their vassals ; and 
 the latter in turn did the same as to the immediate holders 
 under themselves, until every Icnight and soldier had been 
 reached by the call. Failure of a tenant to obey the summons 
 meant consequent forfeiture of his land ; but he knew that 
 faithful performance of that wliich was properly demanded 
 would result in the continuation of his holding and such pro- 
 tection for himself and his property as his lord could reason- 
 ably give. It is readily apparent how such a system, which 
 was the plan of military organization throughout Christendom 
 during five or six of the darkest centuries of the world's his- 
 tory, would provide just such a compact, quickly reached, and 
 easily controlled body of warriors as was demanded in those 
 troubled times for a nation's preservation and welfare. 
 
 § 251. Creation of Feudal Relationship — Terms used. — The 
 manner of conveying real property, to be thus held of a superior 
 lord, was by words of pure donation, dedi et coneessi ; and these 
 are still retained as operative words of conveyance in many 
 forms of modern deeds.^ In its original use, before feudalism 
 properly so called had developed, the gift was to be held at the 
 "will of the donor, and as found on the continent was called a 
 precarium. In process of time, the grant came to be made for 
 a certain and determined period, as for one or more years, and 
 
 , 1 This illustration is given in 1 Poll. ^ 1 Poll. & Mait. Hist. Eng.Law (2d 
 
 & Mait. Hist. Eng. Law (2d ed.),p. 233, ed.), p. 233. 
 
 citing Rot. Hand. ii. 673. See also » Blackst, Com. p. *53. 
 
 2 Blackat, Com. pp. * 59, * 60 ; 1 Spence 
 
 Eq.Jur. 135. 
 
344 HOLDINGS OP REAL PKOPERTT. 
 
 later on for the life of the grantor or grantee. In these forms 
 it was ordinarily styled a benefioium, or benefice. But, after 
 passing through these transitional stages, and still another 
 period in which it was the well-recognized custom for the 
 land to be granted after the death of the vassal to his son 
 or sons, these interests became inheritable and were so created 
 and transferred that, when the first taker died his heir should 
 have the property in his stead, and upon the death of such heir 
 it should pass to his heir, and so on ad infinitum. It then, 
 with this descendible characteristic, came to be denominated 
 a feud, feod, fief, or fee} It was through the weakness of 
 Charlemagne's successors that the benefioium, which by his 
 time had largely supplanted the precarium of the Romans, 
 gradually transformed itself into the hereditary fief, or fee. 
 The process was probably completed on the continent before 
 the Normans invaded England.^ But it is safe to say that, in 
 view of this growth of ownership from precarium to fee, stress 
 was always laid upon the inheritable quality of the fee or feud ; 
 and, therefore, in later centuries when the strength of feudalism 
 was waning, the transition was natural to the meaning of the 
 word fee which it still retains — an estate or interest which 
 may descend from ancestor to heir. To own " in fee " is now 
 to have real property in such manner that the law will cast the 
 title upon the heir of the owner who dies intestate. 
 
 The process of bestowing a feud or fee upon a vassal was 
 called a feoffment. The physical act of putting him into pos- 
 session and enjoyment of the property was frequently spoken 
 of as an investiture, which was an open and notorious ceremony 
 in the presence of the other vassals of the same lord as wit- 
 nesses, consisting often of the lord's taking off" his coat and 
 putting it upon the incoming tenant as a symbol of placing on 
 him the ownership of the land. The lord also, in this cere- 
 mony, made livery of seisin to the feudatory, which was the 
 act of handing him something connected with the land, such 
 as a stone, or twig, or clod of earth, and stating that he gave 
 it to him in the name of seisin. The other vassals were called 
 upon to observe and take mental note of these performances : 
 and thus " the evidence of property was reposed in the memory 
 
 1 Termes de la Ley, "Fend;" A. D. 1000, they began to be granted in 
 
 Wright, Ten. 19, 4; Dalrymp. Fend, perpetuity, and then took the name of 
 
 199; 1 Spence, Eq. Jur. 34; 1 Poll. & "fueds" or "fees." Irving, Civ. Law, 
 
 Mait. Hist. Eng. Law (2d ed), p. 67. 200 ; note to 1 Wash. R. P. (5th ed.) pp. 
 
 'It seems that, about the year 45, *19. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 345 
 
 of the neighborhood ; who, in case of a disputed title, were 
 afterwards called upon to decide the difference, not only ac- 
 cording to external proofs adduced by the parties litigant, 
 but also by the internal testimony of their own private 
 .knowledge." ^ 
 
 § 252. Fealty — Homage — Warranty. — The feudal bond 
 always carried with it the duty of the vassal to take and live up 
 to the oath of fealty (or fidelity, fidelitas) to his lord. This 
 oath might be taken, in any ordinary form of solemn swearing, 
 either before the lord in person or before his agent or bailiff.^ 
 The tenant stood, with his hands on the Gospels, and said : 
 " Hear this, my lord : I will bear faith to you of life and member, 
 goods, chattels, and earthly worship, so help me God and these 
 holy gospels of God." ^ The spirit of this oath pervaded all 
 the relations of lord and vassal, and exerted a powerful in- 
 fluence in the legal determination of their reciprocal rights 
 and duties. A similar modern principle, though not a formal 
 asseveration and perhaps not a direct outgrowth of the ancient 
 obligation, is the stringent doctrine, in the law of landlord and 
 tenant, that the tenant is estopped to deny his landlord's title 
 to the demised property.* Although the ancient writers do not 
 so state, there was doubtless added to the form of oath above 
 quoted a saving of the tenant's duty to the king. And certain 
 it is that we find a growing and finally dominant requirement 
 that the king is to be treated as the only liege or primary lord, 
 and the ultimate necessity that every male of the age of twelve 
 years and upwards shall swear to him and his heirs, " to bear 
 faith and loyalty of life and limb, of body and chattels and of 
 earthly honor." ^ Thus arose the oath of ligeance or allegiance, 
 which still may be required by the sovereign of every citizen 
 and in theory is taken by all, and which, when thus finally 
 evolved, differs from its progenitor, the oath of fealty, chiefly 
 in the fact that the latter was only required to be taken by a 
 tenant to his immediate lord.^ 
 
 When the property granted to the vassal was a fee or feud 
 
 1 2 Blackst. Com. p. *53. See 2 (U. S.) 535, 548; Tilon v. Reynolds, 
 
 Poll. & Mait. Hist. Eng. Law, bk. ii. 108 N. Y. 558; Bigelow, Estoppel (5th 
 
 ch. ir. § 2. ed.), 506, 510 ; Smith, Landl. & Ten. 
 
 ^ Wright, Ten. 35. Stnbbs, Const. 234 note a; 6 Amer. L. Rev. 1, et seq. 
 Hist. § 462 n. * Britton, i. 185 ; Hale, P. C. i. 62- 
 
 3 1 Poll. & Mait. Hist. Eng. Law (2d 76 ; Co. Lit. 65 a. 
 ed.), p. 298, quoting Bracton, f. 80 ; ^^ 1 Blackst. Com. pp. *366-*368; 
 
 Termes de la Ley, " Pealty." 1 Poll. & Mait. Hist. Eng. Law (2d ed.), 
 
 * Blight V. Rochester, 7 Wheat. pp. 298-300. 
 
346, HOLDINGS OP REAL PROPERTY. 
 
 of inheritance, the more stringent oath of homage was also 
 usually required. The vassal, kneeling on both knees, ungirt 
 and with his head uncovered, placed his hands between those 
 of the lord, who sat before him, and said : " I become your 
 man " {devenio vester homo) " of the tenement that I hold of 
 you, and faith to you will bear of life and member and earthly 
 worship, and faith to you shall bear against all folk who can 
 live and die, saving the faith that I owe to our lord the king." 
 He then received a kiss from the lord. ^ This solemn ceremony, 
 called homagiiim, or manhood, as the oath states, made the 
 vassal the " man " of his lord. It seems to have carried with 
 it more of religious sanctity than did the oath of fealty. 
 Homage was never taken, or " done," by any but free men ; 
 for the doing of it by a villein or unfree tenant might imply 
 his enfranchisement.^ Homage was purely a feudal matter, 
 which has no representative in American law. 
 
 One of the most important duties, which the lord, from his 
 position as such even without any formal declaration, owed to 
 his vassal, was that of defending him in . possession of the land 
 " against all men who can live and die." ^ This protection was 
 what, from the standpoint of the vassal, gave incentive and 
 efficacy to the feudal relationship. It was the quid pro quo, 
 which, in " commending" himself to a powerful earl or abbot, 
 he received in exchange for his submission, fealty, homage, and 
 services.* It carried with it the obligation of his superior to 
 give him another tenement of equal value, if he were evicted 
 from the property assigned to him. If a suit affecting the title 
 to the land were brought against the vassal, he vouched in, or 
 called in, his lord to defend ; the latter, if he did his duty, 
 defended the action ; and, if he failed to do so or his efforts in 
 the matter were unavailing, he must compensate the tenant 
 by giving him other real property of equal value. Thus the 
 
 1 2 Blackst. Com. pp. * 53, * 54 ; for a certain service {per cerium servi- 
 
 Britton, ii. 37 ; Littleton, § 85. tium), named and expressed in the gift 
 
 ' 1 Poll. & Mait. Hist. Eng. Law (2d and vice versa whereby the tenant is 
 
 ed.), pp. 296, 297, 305. ' really ' bound {re oUigatur) to keep 
 
 3 1 Poll. & Mait. Hist. Eng. Law (2d faith to his lord and do the due seryice ; 
 
 ed.), p. 306 ; 2 Blackst. Com. p. * 57 ; and such is the connection by homage 
 
 Wright, Ten. 38. between lord and tenant that the lord 
 
 * " Bracton defines homage thus : owes as much to the tenant as the ten- 
 Homage is a bond of law {vinculum ant to the lord, save only reverence." 
 juris) by which one is holden and bound 1 Poll. & Mait. Hist. Eng. Law (2d ed.), 
 to warrant, defend, and acquit the tenant p. 301. 
 in his seisin against all men, in return 
 
THE FEUDAL STSTEM AND ITS FRUITS. 347 
 
 lord warranted his vassals' title.^ The covenants express or 
 implied, which bear the same name in om- modern deeds of 
 conveyance, are the representatives of the ancient warranty. 
 It originated as an incident of feudalism and developed into a 
 contractual obligation of a vendor to his purchaser.^ 
 
 The other rights, obligations, and burdens, which attended 
 the relationship of lord and vassal, are best understood in con- 
 nection with the different forms of tenure discussed in the 
 following pages. 
 
 Tenure. 
 
 § 253. Definition of Tenure — Classification. — It has already 
 been shown that, between the lord and his vassal, the feudal 
 constitution prescribed a tenure of some kind for every acre of 
 land in England. In its general sense, tenure may be defined 
 as the holding and manner of holding of lands, tenements, or 
 hereditaments by one person of another.^ It would be idle to 
 attempt to describe all the minor forms of such holdings, which 
 are mentioned by the different authorities, ancient and modern, 
 and to endeavor to harmonize their statements as to the charac- 
 teristics of the various species of tenure. The truth seems to 
 be that the rights, privileges, duties, and burdens incident to 
 feudalism changed so materially, from century to century and 
 even from generation to generation, that a designated form of 
 tenure often had essentially different characteristics in one age 
 from those which it possessed in another; and the natural 
 tendency of writers to generalize and systematize has often 
 stood in the way of careful observance of these mutations. 
 Tor examples, knight-service in the reign of Henry II. was 
 taaterially different from knight-service in the time of Edward I. ; 
 and the word socage, about the derivation of which there has 
 been so much heated controversy, was employed during the 
 dark ages to describe many and largely divergent forms of 
 feudal tenure. It is, therefore, sufficient hei'e to explain the 
 fundamental characteristics of the chief classes of tenure of 
 real property that have existed in England. A primary division 
 to be made for this purpose is into free tenures and those that 
 were not free. The former were such as demanded no services 
 
 1 Wright, Ten. 38; 2 Blackst. Com. « Wright, Ten. 19-21; 2 Blackst. 
 p.- * 57. Com. p. * 59. 
 
 2 Wright, Ten. 38 ; 1 Poll. & Mait. 
 Hist. Eng. Law {2d ed.), p. 306. 
 
348 HOLDINGS OF REAL PROPERTY. 
 
 from the vassal except those which were honorable or worthy 
 of a free man, as the obligation to serve the lord in war, or to 
 pay him money or other things of value ; while the latter 
 required menial labor, such as would be performed only by 
 persons of servile rank, as to plough the lord's field, or to take 
 care of his cattle. Another natural division had regard to the 
 amount and character of the services demanded — whether they 
 were certain or uncertain. Thus, in each kind of tenure, its 
 incident services were either free or base and also either certain 
 or uncertain. In the following discussion, it will more fully 
 appear that these are the true bases of differentiation. Taking 
 them as such, the five chief forms of tenure — chief in the 
 order of their historic and economic importance — are: 1. 
 Knight-service, in which the services were originally free and 
 uncertain ; 2. Free and common socage, in which they are 
 free and certain ; 3. Villein socage, in which they are base 
 and certain ; 4. Pure villeinage, in which they are base and 
 uncertain ; and 5. Copyhold, the outgrowth and modern suc- 
 cessor of pure villeinage. The historical importance of some 
 of the inferior or subsidiary forms of tenure and their simi- 
 larity to or outgrowth from the others require them to be 
 discussed in connection with the more important kinds to 
 which they are most nearly related. Therefore, in this chapter, 
 grand serjeanty, frankalmoin, and divine service tenure will 
 be explained immediately after knight-service ; and petty ser- 
 jeanty, burgage, and gavelkind will be discussed in connection 
 with free and common socage. 
 
 § 254. 1. Tenure by Knight-service. — Tenure in chivalry, 
 or by knight-service — military tenure (per servitium militare) 
 — was the oldest, noblest, most universal and most highly 
 esteemed of all the free lay tenures. The services incident to 
 it were military in character (and, therefore, in those times the 
 most honorable of all forms of secular labor) ; and, while the 
 number of days per year during which the tenant could be re- 
 quired to perform the warlike duties for his lord soon became 
 limited, the original and fundamental conception of such a 
 holding was that the services were not only free in nature but 
 also uncertain as to their extent.^ He who had property under 
 this form of tenure, his holding being as it was entirely military 
 and the general outcome of the feudal establishment in Eng- 
 land, was said to have & proper feud (feoda propria). His in- 
 
 1 2 Blackst. Com. pp. * 61 , * 62 ; 1 Poll. Mail. Hist. Eng. Law (2d ed.), pp. 252, 253. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 349 
 
 terest was thus distinguished from the kinds of improper feuds 
 {feodcB improprice), in which the services were of a peaceful 
 character, such as cultivating the lord's private lands, render- 
 ing to him an annual payment in money or in agricultural 
 products, and the like.^ 
 
 During the different eras of feudal supremacy, the extent of 
 the required attendance hy the vassal upon his lord in the wars 
 varied considerably. Within a century after the conquest, 
 moreover, the system of paying scutage to the lord, which was a 
 pecuniary return made by the tenants to enable the lords to 
 hire soldiers in the place of the tenants, became quite preva- 
 lent, especially in favor of the king as lord paramount.''' But, 
 in its most settled and stable form, tenure by military service 
 called for a knight's fee, or twelve ploughlands,^ for each vas- 
 sal's use, from the lord ; and, in return for the same the vassal's 
 personal service upon the lord in military operations for not 
 more than forty days in each year. The value of the land, 
 which should constitute a knight's fee, and probably its terri- 
 torial extent also, varied greatly from time to time. If any 
 one tenant held more or less than the quantity, which was re- 
 quired at the time to make such a fee, the number of days dur- 
 ing which he could be called upon to render military services 
 for his lord was greater or less in proportion.* 
 
 It was in the working out of the theory of tenure by knight- 
 service in practical military operations, and in supplying the 
 demand of the superiors for complete support and maintenance 
 by their inferiors and dependants, that its inherent weakness 
 and inadequacy, as it was viewed from the lord's standpoint, 
 became apparent, and that stringent measures for the remedy- 
 
 1 Wright, Ten. 32, 33 ; 2 Blackst. amounts." 1 Poll. & Mait. Hist. Eng. 
 
 Com. p. * 58. Law (2d ed.), p. 252. 
 
 ^ " Speaking roughly, we may say ' A ploughland was probably un- 
 
 that there is one century (1066-1166) certain in extent, being measured rather 
 
 in which the military tenures are really by value than by quantity of territory, 
 
 military, though as yet there is little Some, however, have contended that it 
 
 law about them ; that there is another was a fixed number of acres, the amount 
 
 century (1166-1266) during which these being placed by some as low as twenty 
 
 tenures will supply an army, though acres, and by others as high as one hun- 
 
 chiefly by supplying its pay ; and that dred and twenty acres. Co. Lit. 69 a. 
 
 when Edward I. is on the throne, the Blackstone tells us that in the reigns 
 
 military organization which we call of Edward I. and Edward II., the value 
 
 feudal has already broken down and of a knight's fee was placed at £20 per 
 
 will no longer provide either soldiers annum. 2 Blackst. Com. p. * 62. 
 or money, save in very inadequate < Lit. § 95; 2 Blackst. Com. pp.* 62, 
 
 *63. 
 
350 HOLDINGS OF REAL PROPERTY. 
 
 ing of its defects appeared in the form of numerous exactions 
 of pecuniary returns and services.' Few wars could be carried 
 to successful issues with soldiers who would not fight more 
 than forty days in a year. Hence the system of demanding 
 scutage, and its gradual increase to the exclusion of the original 
 plan of the vassal's personal military attendance. No superior 
 lord, who was conversant only with warlike affairs and whose 
 time was wholly spent in matters of arms and chivalry, could 
 ill this way provide the necessaries and luxuries demanded by 
 himself and his family. Hence the harsh and intricate laws, 
 which imposed other pecuniary burdens upon the vassals, as 
 incidental appendages and consequences of their holdings, 
 gradually taking definite form and finally becoming inseparably 
 connected with military tenure. These onerous fruits or inci- 
 dents of knight-service were aids, relief, primer seisin, wardship, 
 marriage, lines for alienation, and escheat. A few words are 
 needed as to each of them. 
 
 § 255. Aids. — The fealty and other feudal obligations 
 always due from the vassal would require his purse, as well as 
 his person, to be at the lord's service whenever necessary for 
 the latter's safety or prosperity; and the original conception 
 of aids was simply that this duty of the inferior to the superior 
 should be faithfully and conscientiously performed.^ But the 
 unjust exactions, which the lords sought to make, upon the 
 basis of this loose and vague principle, caused the number and 
 forms of these pecuniary returns to be settled by numerous 
 contests and finally to be definitely fixed by statutes. The 
 aids thus determined were money contributions by the tenants 
 for three purposes : (a) to ransom the lord's body if he were 
 taken prisoner ; (b) to defray the expenses of conferring the 
 order of knighthood upon his oldest son, and (c) to supply a 
 suitable marriage portion or dowry for his oldest daughter. It 
 was declared by Magna Charta that none but these three aids 
 should be taken by any inferior lord, and that the king would 
 demand no aids without the consent of parliament.* But in 
 the subsequent charters this provision was omitted. Aids for 
 various other purposes were then exacted, such as to pay the 
 lord's debts, to stock his farm, to enable him to pay a fine to 
 the king,* etc. But the statute entitled Confirmatio Ohartarum 
 
 1 1 Poll. & Mait. Hist. Eng.Law(2d « MagnaCharta (1215), ch. 12. 
 ed.), pp. 2.^2-25.5. 4 1 Poll. & Mait. Hist. Eng. Law 
 
 2 Glanv. ix. 8. (2d ed.), p. 350. 
 
THE FEUDAL SYSTEM AND ITS FEUITS. 351 
 
 (1297) again restricted them to the ancient three, and again 
 required that the amount in each case should be reasonable.^ 
 The statute 1 Westminster (1275) ^ had already restricted the 
 amount which each tenant should pay to any mesne lord, as a 
 marriage portion for his oldest daughter or for the knighting 
 of his oldest son, at twenty shillings ; and in 1342 the tenants 
 in capite obtained the same statutory restriction against the 
 king.* The amount of the third ordinary aid, that for the 
 ransoming of the lord from captivity, was left of necessity to 
 be determined from the circumstances of each case. 
 
 § 256. Relief. — The original conception of feudal relation- 
 ship was that its continuance depended on the volition of both 
 parties to the compact and that, therefore, it would termi- 
 nate upon the death of either of them.* If the heir of the 
 decedent desired it to be restored, the other party could dictate 
 the terms upon which this might be done. It was also a well- 
 settled custom, while fiefs or feuds were usually voluntary gifts, 
 for the vassal, upon entering into possession of tliy land, to 
 make a donation of some kind to his lord.^ From these 
 sources sprang the relief, or return in money or products of 
 the land, when the tenant of an inheritable fief died, and his 
 heir succeeded as vassal to the position of his ancestor. Be- 
 cause of his death, the property was regarded as falling away 
 from the family of the tenant, and this payment was demanded 
 in order to raise it up again (relevare — relief) to the possession 
 and enjoyment of the heir. It was always justly regarded by 
 English tenants as one of the most onerous and oppressive of 
 feudal burdens.* Numerous statutes were enacted to restrict 
 the lords from demanding as a right too much of that which 
 the vassals properly thought should be only a matter of bounty 
 or gracious gift.'^ And the amount of relief thus at length 
 fixed upon, and generally although not always adhered to, was 
 one hundred shillings for every knight's fee.* This was re- 
 
 1 25 Edw. I. ; 2 Blackst, Com. p. * 64. to that of Henry II., sach acts were re- 
 
 ' 3 Ed%v. I. ch. 36. peatedly passed and subsequently disre- 
 
 ' 25 Edw. III. Stat. 5, ch. 11 ; 2 garded by the more powerful lords. 
 
 Stnbbs, Const. Hist. 521. William Rufus refused to be bound by 
 
 * 1 Poll. & Mait. Hist. Eng. Law such a statute of his father, and it was 
 
 (2d ed.), 317. not until 27 Hen. II. that relief be- 
 
 ' 2 Sulliv. Lect. 1 24 ; 2 Blackst. Com. came definitely fixed and acquiesced in 
 
 p. • 56 ; Wright, Ten. 15. by the tenants. 2 Blackst. Com. pp. *65, 
 
 6 1 Poll. & Mait. Hist. Eng. Law (2d * 66. 
 
 ed.), 308 ; 2 Blackst. Com. p. *65. 8 2 Blackst. Com. p. • 66. 
 
 ' From the time of the Conqueror 
 
352 HOLDINGS OP REAL PROPERTY. 
 
 garded as equivalent to the first year's income, and was payable 
 within that year, if, at the time of the death of the vassal, his 
 heir were twenty-one years of age. 
 
 § 257. Primer Seisin. — This was, in substance, an addi- 
 tional relief which early in English feudal law became re- 
 stricted to the tenants in capite. When such a tenant died 
 leaving an heir who was then of age, the latter must pay to the 
 lord paramount, for the privilege of taking up the inheritance, 
 one year's income of the land, in addition to the ordinary relief, 
 if the land were in possession of the heir, and if it were not, 
 but the heir must wait for possession until the expiration of a 
 preceding life-estate, then one-half a year's income in addition 
 to relief.^ The history of the development of relief shows that 
 theoretically the intermediate lords had as much, right to primer 
 seisin aS'had the king. It was all a matter of gradual adjust- 
 ment, in the process of which the lord paramount succeeded in 
 acquiring a source of income which the mesne lords were 
 obliged to forego.^ 
 
 § 258. Wardship. — If the feud descended, upon the death 
 of the vassal, to an heir who was under twenty-one years of age 
 if a male, or under fourteen years of age if a female, the lord 
 had the custody of the person of such heir during his or her 
 minority, and the control of and income from the land, without 
 any duty to account for the income to any one.^ He must use 
 the property reasonably, however, and not commit waste upon 
 it ; and out of the proceeds thereof he must support and educate 
 the heir, his ward, in accordance with his or her station in life.* 
 The male heir became of age, and the wardship ceased, when 
 he became twenty-one ; and he could then recover his land by 
 paying one-half a year's income thereof to the lord. The 
 female heir became of age, and had the same right to recover 
 her land, when slie was sixteen. No wardship of a female heir 
 occurred, if she were fourteen or over when her ancestor died. 
 But, if slie were under that age at the time of her ancestor's 
 death, the wardship then commenced, and continued until she 
 was sixteen.^ T)ie principle on which this right of wardship 
 reposed was that, during the time when the vassal could not in 
 person render military services for the lord, the latter was 
 
 1 Last preceding note. ' 2 Dalrymp. Fead, 44, 45 ; 2 Blackst. 
 
 ■■^ 1 Poll. & Mait. Hist. Eng. Law Com. p. * 67. 
 (2d ed.), 307-318; 2 Blackst. Com. pp. * 2 Blackst. Com. pp. *68, *69. 
 
 *66, *67. 6 2 Blackst. Com. p. *67; Wright, 
 
 Tan. 90-92. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 353 
 
 entitled to the proceeds of the land with which to supply a 
 substitute. The male tenant became fully capable of rendering 
 those services at the age of twenty-one. The female tenant 
 was capable of marrying at fourteen, and her husband could 
 then perform the services due to the lord.^ • 
 
 § 259. Marriage. — Growing out of wardship and incident 
 to it was the lord's right to select a proper spouse for his ward, 
 whether male or female. This was designated the right of 
 marriage (maritagium, as distinguished from matrimony'). It 
 continued as long as the wardship, and practically authorized 
 tlie lord to sell his infant vassal in marriage, with the single 
 condition that there should be no disparagement in the match.'^ 
 If tiie ward refused to marry the person thus selected, he or 
 she forfeited to the lord tiie value of the marriage, or what 
 such selected person was willing to pay ; and, if the ward 
 married without or against the lord's consent, the forfeiture 
 was double such value.^ This incident of tenure was often a 
 very fruitful source of income to the lords. It and the ward- 
 ship to which it was incident were regarded by the English 
 tenants as the most unjust and grievous of all the burdens of 
 feudalism.* 
 
 § 260. Fines for Alienation. — Tlie primal theory of the 
 feudal connection being that of personal obligation, it followed 
 as a logical consequence that neither tlie lord nor the vassal, 
 without the consent of the other, could alienate his interest 
 and thus bring in a new party to the relation. In order to 
 transfer his rights and duties to another, the lord must have 
 the acquiescence, or attornment, of his tenant ; and the vassal 
 should not substitute another in his place without the consent 
 of the lord. Whether this theoretical view of the situation 
 
 1 1 Poll. & Mait. Hist. Eng. Law ^ 2 Blackst. Com. p. * 70 ; Wright, 
 
 (2d ed.), 318-329; Wright, Ten. 90- Ten. 97; 1 Poll. & Mait. Hist. Eng. 
 
 «2; 2 Blackst. Com. pp. *67-*70. Law (2d ed,), 318. 
 
 Wardship was regarded by the feudal ^ 2 Blackst. Com. p. * 70 ; Wright, 
 
 tenants as one of the greatest hardships Ten. 97. 
 
 -which they were obliged to endure. * 1 Poll. & Mait. Hist. Eng. Law 
 
 It was an interest for the benefit of the (2d ed.), 318-328. In one case the Earl 
 
 guardian, rather than a trust for the of Warwick obtained £10,000 for his 
 
 protection and benefit of the ward. It consent to the marriage of his female 
 
 was, therefore, assignable by the lord, ward ; and for the custody of the lands 
 
 and on his death it might be transferred and person of the heir of Gilbert de 
 
 to his personal representatives. (Co. UnfranriUe and his marriage, Simon 
 
 Lit. 86, ii. 11.) It remained, as an de Montford gave the king 10,000 
 
 incident of tenure, until abolished by marks. SuUiv. Lect. 248; Lord Little- 
 
 the statute 12 Car. II. ch. 24. ton's Hist. Hen. II. 2 vol. 296. 
 
 20 
 
354 HOLDINGS OF REAL PROPERTY. 
 
 produced the results which finally emerged, as is thought by 
 some, or whether feuds originally alienable gradually came to 
 be clogged with restrictions in this respect growing out of the 
 power and greed of the lords, as is thought by others, it is 
 certain that the lord was rarely if ever called upon to pay his 
 vassals for an attornment, and that, by the time of the reign 
 of King John, the tenants were ordinarily required to make 
 payments, called fines, to their lords for the privilege of alienat- 
 ing their feuds. By one of the provisions of Magna Oharta 
 and by the important statute of Quia Emptores^ (18 Edw. I.), 
 all tenants except those in capite were relieved of this burden ; 
 but since neither of those enactments applied to the vassals who 
 lield immediately of the king, fines for the privilege of dispos- 
 ing of their lands were still enforced against them. While, 
 therefore, the lower tenants were thus permitted to alien the 
 whole of their estates, to be held of the same lord of whom 
 they themselves had held, the king's tenants in capite must 
 continue to pay fines for this privilege, or take the risk of an 
 absolute forfeiture of their lands. The subsequent statute of 
 1 Edw. III. ch. 12, forbade forfeiture, even in such instances, 
 and provided that, in case of his tenant's alienation of his feud, 
 the king should only be entitled to a reasonable fine. The 
 construction of this last statute settled it that, for a license to 
 alien, tiie tenants in capite should pay one-third of the yearly 
 value of the land ; and, if they presumed to alien without first 
 procuring the king's license, the fine should be a full year's 
 value. While fines, as such, remained as feudal burdens, these 
 continued to be the rules by which they were assessed upon 
 the king's tenant's, while the inferior vassals were permitted 
 after 18 Edward I. to dispose of all their interests without 
 making any such payments. The effects of fines in the gradual 
 development of the right to freely dispose of real property 
 will be noticed hereafter in the discussion of that general 
 topic.2 
 
 § 261. Escheat. — Back of the ownership of the vassal was 
 always that of his lord. If the former violated his obligation 
 to the latter, the goods and chattels on his land might be 
 distrained and held by the lord as a pledge for the proper 
 rendering of services by the tenant, and the due performance of 
 his feudal duties. By statutes in the first year of Edward I., 
 the lord was also entitled to seize and hold the land until the 
 
 1 18 Edw. I. ch. i. 2 § 282, infra. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 355 
 
 tenant's breach of the feudal bond was repaired.^ And this 
 superiority, which the lord always had over the land, might 
 become a full and complete ownership at any time, if the 
 tenant died without heirs, or if his blood were corrupted by 
 outlawry or felony, so that no one could inherit from him. 
 The land was then said to escheat (excadere), or fall back to 
 the lord. If the crime by which the inheritable quality of his 
 blood was extinguished were treason, the property was for- 
 feited to the king ; but, when the tenant was only outlawed or 
 convicted of felony, the king had the ancient right of wasting 
 his lands for a year and a day, and, subject to this right, they 
 escheated to the immediate lord of the felon or outlaw.^ 
 
 Escheat is the feudal incident of real-property ownership 
 which is most nearly reproduced in American law. Each of 
 the United States retains the original and ultimate property of 
 all lands within its jurisdiction, and takes back to itself all 
 lands the title to which fails because of defect of heirs. While, 
 however, such a passing of title back to the state is here called 
 escheat, it is not a surviving element of an otherwise obsolete 
 system; but it is a principle inherent in the state's right of 
 sovereignty, which is similar to the feudal doctrine of the same 
 name, and which has been established as a positive and prac- 
 tically necessary part of modern jurisprudence.^ 
 
 § 262. Decline and Destruction of Tenure by Knight-service. 
 — As already explained, the theory upon which this ancient and 
 honorable form of tenure was based was that each holder of 
 land should personally attend and serve his lord in the wars> 
 and be ready, at a moment's notice, to fight, and to continue 
 fighting for at least forty days in each, year for every knight's; 
 fee, and also to pay, when occasion properly required, the above; 
 described pecuniary returns which were incident to his tenure. 
 There was thus to be formed " a national militia composed of 
 barons, knights, and gentlemen, bound by their interest, their 
 honor, and their oaths, to defend their king and country," and. 
 for this purpose to rally at the trumpet-call around their re- 
 spective immediate lords.* But the practice rapidly diverged 
 from the theory. There soon came to be many smaller tenants 
 by knight-service, who did not each own a knight's fee, and 
 
 1 Statute of Gloucester, 6 Edw. I. ' See § 290, infra, and notes, 
 eh. 4 ; Statute of Westra. II. ch. 21. * 2 Blackst. Com. p. • 75. 
 
 2 2 Blackst. Com. p. «72; Glanv. 
 vii. 17; Bract, f. 297, b. 
 
356 HOLDINGS OF REAL PROPERTY. 
 
 who were required to contribute ratably to a sum of money 
 sufficient to hire a soldier or knight to represent in the army 
 the entire knight's fee. There were other tenants who could 
 not personally bear arms, such as females and aged or dis- 
 abled males ; and the line between those who could not fight 
 and those who would not do so was often very hard to draw. 
 The vassal who held an entire knight's fee, readily concluded 
 that, if his neighbor who owned only one-fortieth of a fee went 
 quit of personal service in the field by the payment of one shil- 
 ling, he himself should avoid actual warfare by the payment of 
 forty shillings ; and the able-bodied tenant, who could fight if 
 he would, naturally considered that he had done his whole duty 
 to his lord if he paid to him as much money as was paid by 
 another holder of an amount of land equal to his own, who was 
 aged or infirm.^ At first these payments, which were called 
 scutage, or escuage, in the Norman French, (Latin, seutagium), 
 were fixed at such amounts as would actually supply a soldier 
 for each knight's fee, the principle being that, instead of per- 
 sonally supplying one to serve for him as he had formerly some- 
 times done, the vassal enabled the lord himself to fill his place 
 in the ranks. From this, the step was natural and easy to the 
 mere levying of scutage, at a uniform rate for each levy, upon 
 the vassals, and the taking of the product by the lord for the 
 raising, equipping, and maintaining of such an army as he 
 could therewith procure. The vassal was then often said to 
 hold hy scutage, to distinguish his tenure from the original form 
 of knight-service ; but the only difference between him and the 
 warrior-vassal consisted in their different methods of filling the 
 ranks of the army of their lord.^ It is doubtful if scutage 
 could ever be legally levied by any but the king, or (if for a 
 mesne lord), by aid of the king's writ ; and, after much friction 
 and numerous pledges by the sovereign, and violations of the 
 same, it was settled by statute 25 Edw. I. ch. 5, 6, as indeed it 
 had also been provided by Magna Charta with but short-lived 
 
 1 1 Poll. & Mait. Hist. Eng. Law (2d happen to them, than to be compelled 
 
 ed.),p. 272. to pay a scutage at the rate fixed 
 
 ^ This is the meaning of Littleton's by royal decree, a sum much less than 
 
 statement, to the effect that tenures by they would have spent had they hired 
 
 homage, fealty, and escuage_ were ten- substitutes to fill their places. In short, 
 
 ores by knight-service Lit. §§ 95-97. ' tenure by knights ' service of a mesne 
 
 "It would seem that the tenants as lord, became first in fact, and then in 
 
 a body got the better in the struggle, law,' tenure by escuage." 1 Poll. & 
 
 and established the rule that if they Mait. Hist. Eng. Law (2d ed.), p. 272. 
 did not choose to serve, no worse could 
 
THE FEUDAL SYSTEM AND ITS FBUITS. 357 
 
 benefit, that the king should take no such payments without 
 the consent of parliament. The scutage, or escuage, thus 
 levied or permitted by the king, with the consent of parliament, 
 was the ground-work of all succeeding subsidies, and of the land 
 tax of later ages. But it differed from a mere pecuniary rent, 
 in that it never was a settled, invariable sum, but depended 
 for its amount and the occasions of its assessment on the 
 exigencies of the times and the special consent of parliament 
 to each levy. As soon as a vassal came to have his land by 
 paying a determined yearly rent, he no longer held by knight- 
 service, but became a socage tenant of some kind. 
 
 Tlie consequences of the gradual change of the original 
 form of knight-service, with its close personal bond between 
 lord and vassal, into the hard, unsocial holding by scutage 
 with the other numerous pecuniary burdens, which tended 
 always to increase ratlier tlian to diminish, proved to be far 
 more detrimental to the tenant than to his lord. The onerous 
 incidents of his holding were all preserved and often augmented 
 against the vassal, while all the benefits of knightly standing 
 and prestige were swept away. The result was continued and 
 persistent clamor for abolishment or diminution of the burdens 
 under which the landholders were made to groan. And, 
 finally, after numerous palliatives and ineffectual measures, 
 tenure by knight-service, with all its objectional incidents, was 
 entirely abolished by the statute 12 Car. II. ch. 24. During the 
 Commonwealth, all military tenures had been discontinued ; 
 and, immediately after the Restoration, this enactment, which 
 Blackstone declares was a greater acquisition to the civil 
 property of the kingdom than even Magna Charta itself, turned 
 all tenures into free and common socage, " save only tenures 
 in frankalmoign, copyholds, and the honorary services (without 
 the slavish part) of grand serjeanty." It also did away 
 entirely with scutage, aids, primer seisin, tenancy in capite, 
 forfeitures and payments for marriage, and fines for alienation, 
 and retained only those forms of wardship and relief whicli, as 
 modified and ameliorated, were applicable, as hereafter ex- 
 plained, to tenure by free and common socage. The net result, 
 then, of this sweeping destruction of tenures and their append- 
 ages was the preservation of tenui'es by free and common 
 socage, frankalmoin, copyhold, and grand serjeanty, with 
 esclieat and improved and beneficial forms of relief and ward- 
 ship as their only feudal incidents. 
 
358 HOLDINGS OF REAL PEOPERTY. 
 
 § 263. Grand Serjeanty. — As history advanced, the servientea 
 of Domesday Book — those who were connected with the land as 
 personal servants of its owner — became the tenants by ser- 
 jeanty in the completed feudal system. The services, which 
 such vassals rendered to their lords, had their foundation in 
 the idea of " servantship" to an immediate master.^ jind, as 
 the grades of the personal attendance came to diverge, some 
 becoming occasional performance of high and honorable 
 offices about the person of tlie king, and others degenerating 
 into fixed and more humble duties to him personally, or to the 
 person of a mesne lord, serjeanties were divided into grand ser- 
 jeanty (magnum servitiuni) and petit serjeanty (parvum servi- 
 tium}.^ Since the services of the latter class were fixed and 
 certain, it was in substance a species of socage tenure, and will 
 be more fully noticed hereafter.^ 
 
 Tenure by grand serjeanty was the holding of land of the 
 iing (or possibly sometimes of a powerful intermediate lord), 
 with the duty to render to him in person, whenever occasion 
 might require, some special honorary service, as to carry his 
 sword or banner in battle, to act as his special chamberlain, 
 forester, or messenger, or to be the king's butler or champion 
 at his coronation.^ Such holdings were very similar to those 
 by knight-service ; but, being of a closer personal nature, no 
 scutage ever took the place of the actual services, the tenant 
 could not alien, nor even subinfeudate his land without the 
 lord's consent, and the pecuniary returns became fixed and 
 determinate much less slowly and definitely than in the case of 
 knight-service.^ One of the special forms of grand serjeanty, 
 which is mentioned by Blackstone, was to warn the king's 
 subjects, by winding a horn, when the Scots or other enemies 
 entered the land. As shown above, the honorary services of 
 grand serjeanty were retained by the statute 12 Car. II. ch. 24. 
 
 §264. Prankalmoin. — Frankalmoin, as a species of free 
 tenure, was one of the most ancient and long-lived of all of these 
 methods of holding property.^ It was often spoken of as tenure 
 
 1 1 Poll. & Mait. Hist. Eng. Law 6 Bract, f. 84 b, f. 39.5 ; 1 Poll. & 
 <2d ed.), pp. 288-290. Mait. Hist. Eng. Law (2d ed.), p. 290. 
 
 2 2 Blackst. Com. pp. *73, *81; * "It was an old Saxon tenure, and 
 1 Poll. & Mait. Hist. Eng. Law (2d ed. ), continued under the Norman revolution, 
 p. 290. through the great respect that was 
 
 ' § 268, irifi-a. shown to religion and religious men in 
 
 * 2 Blackst. Com. p. * 73 ; 1 Poll. & ancient times." 2 Blackst. Com. 
 
 Mait. Hist. Eng. Law (2d ed.), p. 287. p. * 102. And, in the third report of 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 359 
 
 in free alms (libera eleemosyna), and was the holding from and 
 of a donor by an abbot, prior, church, or other religious corpora- 
 tions, aggregate or sole, and their successors forever, under the 
 obligation of making orisons, prayers, mafees, and the like, for 
 the soul of the donor and for the souls of his heirs, dead or 
 alive.^ These religious ceremonies were indefinite in extent, 
 and in no way enforcible except as the ryles or discipline of 
 the church might require their observance. They were of the 
 most honorable and holy nature, and superseded and precluded 
 all requirements .for fealty or homage. Gifts in frankalmoin 
 were regarded as made to God. They were, therefore, largely 
 outside of the sphere of merely human justice.^ The tenants 
 were bound by the trinoda necessitas of repelling invasions and 
 repairing bridges and castles ; ^ but, if they failed to perform 
 the religious services for the donor or his heirs, there was no 
 remedy except a complaint to the ordinary, or to the visitor of 
 the corporation, for the correction of tlie wrong. Hence the 
 feature of this soi"t of honorable tenure, which most attracted the 
 notice of lawyers, was its negative characteristic, — the absence 
 of all services that could be enforced by the secular courts.* 
 
 § 265. Divine Service. — Frankalmoin tenure, then, may be 
 summarized by saying that the services which it implied were 
 (a) spiritual and (b) indefinite; and therefore they were unen- 
 forcible except by the tribunals of the church. When, as in 
 some instances it occurred, the religious personage or institu- 
 tion as tenant was obligated to do some special and certain 
 service of a spiritual nature, as to sing a specified number of 
 masses, or to distribute in alms a designated sura of money, it 
 was called a tenure by divine service. This was still a free hold- 
 ing, but less honorable and dignified than frankalmoin. The 
 lord might distrain, without any complaint to the visitor, if 
 the tenant in divine service failed to duly perform the stipu- 
 lated services.^ 
 
 Prom the beginning of the feudal period to the time of 
 Henry VIII. large quantities of the land of England were held 
 
 the English Real Property Commission- * 1 Poll. & Mait. Hist. Eng. Law 
 
 ers (1833), it and tenure by dli-ine (2d ed.), pp. 240-244. 
 
 service were said to be then still in ex- * 2 Blackst. Oom. p. » 102 ; 1 Poll. & 
 
 istence. RealProp. Comm'rs,3dRep. 7. Mait. Hist. Eng. Law (2d ed.), p. 240. 
 
 1 Bract. 207 ; Lit. §§ 133-135 ; 2 Some instances of tenure by divine ser- 
 Blackst. Com. p. * 101. ^''ce are mentioned in Domesday Book, 
 
 2 Bract, f. 12; 1 Poll. & Mait. Hist. e. g. ii. 133, 133 b; and it was said to 
 Eng. Law (2d ed.), pp. 243, 244. be a still subsisting form of tenure in 
 
 2 2 Blackst. Com. p. * 102. 1833. Real Prop. Comm'rs, 3d Rep. 7. 
 
360 HOLDINGS OP REAL PROPERTY. 
 
 by these religious tenures, and especially by the more dignified 
 one of frankalmoin. 
 
 § 266. 2. Socage — Free and Common Socage. — Thesokeraen 
 (soohemanni) were a class of landholders who are mentioned 
 in Domesday Book as rendering definite agricultural services 
 (services of the plough) for the use of their lands. Their con- 
 dition was probably described, in a general way, by the word 
 socage. After the conquest, these holders, probably at first 
 in large part because of their insignificance, were the most 
 successful in retaining alodial incidents to their tenures, and 
 preserving them most nearly exempt from feudal burdens. The 
 negative characteristics of their tenures, the features which em- 
 bodied this comparative freedom from feudal bondage, thus came 
 gradually to give the meaning to the word socage. And hence 
 that word was used to include all holdings, for fixed and certain 
 returns, which were " not spiritual, nor military, nor ' servien- 
 tial."'i As a class, with these chiefly negative characteristics, 
 they were the successors of the alodial proprietorships of Anglo- 
 Saxon times. The fixedness of services, making the return 
 to the lord in effect rent, and thus distinguishing it from the 
 irregular exactions of scutage and the indefinite duties asso- 
 ciated with spiritual holdings, constituted the most prominent 
 feature of all these socage tenures.^ When this rent, or render, 
 was of an honorable character, such as the paying of a fixed 
 sum of money every year, or the annual giving of a determined 
 quantity of the fruits and produce of the land, the tenure was 
 by free and common socage ; when the return to the lord was of 
 a baser nature, as the ploughing of so much land each year, or 
 the personal doing of some other prescribed servile labor, the 
 holding was by villein socage, which was one of the unfree 
 tenures.^ 
 
 § 267. Incidents of Tenure by Free and Common Socage. — 
 Free and common socage, or free socage merely, as it is often 
 called, with its services to the lord fixed in amount and free 
 and honorable in character, and on its pfrominent negative 
 side excluding most of the oppressive and objectionable in- 
 cidents of ieuds, grew in favor and extent and, gradually at 
 first, but quickly after the enactment of the statute 12 Car. II. 
 ch. 24, absorbed or superseded almost every other species of 
 
 1 1 Poll. & Mait. Hist. Eng. Law ^ 2 Blackst. Com. pp. * 75, » 78, * 79 ; 
 
 (2d ed.), pp. 291-295. Digby, Hist. Law R. P. (5th ed.) p. 45. 
 
 » 2 Blackst. Com. pp. * 79, * 98. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 361 
 
 tenure. Relieved of practically all the burdens of medieval 
 feudalism, it exists to-day as the almost universal method of 
 holding land in England. Before the statute 12 Car. II. ch. 
 24, it was subject to aids, primer seisin, and relief; but was 
 free from the oppressive incidents of feudal wardship and 
 marriage, and probably from that of fines, except in cases of 
 tenure in capite} The guardian in socage was the oldest male 
 relative, wlio could not inherit the ward's land; and he was 
 accountable for its profits at the termination of the wardship.'^ 
 The oath of fealty was always attached to this species of 
 tenure, and sometimes constituted the only service due (for 
 the returns to the lord ranged from such as were merely 
 nominal to such as constituted practically rack-rent), but the 
 oath of homage could not always be required by the lord.^ 
 The effects of the statute 12 Car. II. ch. 24, on this kind of 
 holding were the leaving of the oath of fealty demandable at 
 any time, preserving the fixed rents, escheat, and guardianship 
 in socage as they had formerly existed, and sweeping away all 
 other feudal incidents.* And such is substantially the form in 
 which tenure by free and common socage exists in England at 
 the present time. 
 
 § 268. Petit Serjeanty — Burgage — .Gavelkind. — Within 
 the sphere of free-socage tenure were included all methods of 
 holding land by lionorable and certain rents and duties ; among 
 v\\\c\\ petit serjeanty, burgage, and gavelkind tenures are to be 
 specially noted. The first of these resembled grand serjeanty, 
 in assuming a close personal relationship to exist between 
 lord and vassal, and making its return or renders to be done 
 for the lord's use about his person ; but it became a form of 
 free socage because these returns were a fixed rent, such as 
 the periodical giving to the lord of a sword, a lance, an arrow, 
 or some other implement of war. Such holdings were, as a 
 rule, directly of the king, and were styled paroum servitium 
 regis.^ 
 
 Tenure in burgage exists where the lands of an ancient 
 borough are held by an established rent payable to the lord. 
 Through all the mutations of feudalism, such holdings of 
 borough houses and lands, being usually small and compar- 
 
 1 2 Blackst. Com. pp. *86-»89; » 1 Poll. & Mait. Hist. Bng. Law 
 
 Digby, Hist. Law R. P. (.5th ed.) p. 47. (2d ed.), p. 291. 
 
 '■' Ibid. And such is the nature of * 2 Blackst. Com. pp. *86-*89. 
 
 guardianship in socage, at the present ' 2 Blackst. Com. pp. *81,*82. 
 
 time. 
 
362 HOLDINGS OP REAL PROPERTY. 
 
 atively insignificant, continued to exist ; and they are still a 
 feature of English tenure. Besides having the ordinary char- 
 acteristics of socage holding, they were distinctly marked by 
 their subjection to local customs, especially as to dower, the 
 descent of lands, and the disposing of them by will. In some 
 of the boroughs, for example, a widow was dowable of all her 
 husband's tenements, and not merely of one-third of them; 
 and the legal title to most of these borough holdings could be 
 devised by will, even before the Statute of Wills, in the 32d 
 year of Henry VIII. made it possible for nearly all real prop- 
 erty to be willed away.^ One of the most remarkable of these 
 local customs was the inheritance of a father's land by his 
 youngest son, rather than by his oldest.^ 
 
 G-avelhind tenure, as a species of free socage, was a con- 
 spicuous remnant of Anglo-Saxon liberty, enjoyed chiefly in 
 the country of Kent. The boast, that every child born in 
 Kent was born free, was probably made possible by the per- 
 sistent early struggles for liberty on the part of its inhabitants, 
 and by its subsequent unrivalled prosperity as a gateway of 
 commerce, which naturally favored the owners and tillers of 
 its soil. And the results of these struggles and influences were 
 that the gavelkind holdings in Kent came the nearest of all 
 tenures to alodial ownership.^ The name of this holding came 
 from its Anglo-Saxon form, in which the payment of gafol, or 
 rent, distinguished it from the military tenures. The special 
 customs which belonged to it were that the lands, (a) descended 
 equally to all the sons, (b) could usually be disposed of by 
 will, even before the Statute of Wills, (c) did not escheat in 
 
 ^ 1 Poll. & Mait. Hist. Eng. Law paratire independence of the Kentish 
 
 (2d ed.), p. 295; Digby, Hist. Law men have been numerous and varied. 
 
 R. P. (5th ed.) p. 47. But the suggestion in the text seems to 
 
 '^ Lit. § 165. Littleton tells us that harmonize most nearly with their known 
 the reason for this custom was be- characteristics and position, and with 
 cause the youngest son, on account of the results of the most recent and thor- 
 his tender age, is not as capable of tak- ough historical research. See 2 Poll. & 
 ing care of himself as are his brothers. Mait. Hist, Eng. Law, p. 272. " Possi- 
 Other writers have ascribed it to the bly," says Digby, in summing up an- 
 ancient right of concubinage by the other theory, "the very fact that the 
 lord with his vassal's wife on her wed- hand of the conqueror fell so heavily 
 ding night, and the consequent doubt as and at so early a date on the great men 
 to the oldest child being the child of of the country operated to preserve the 
 her husband. For a discussion of this old customs amongst the poorest free- 
 custom, see Elton, Origins of English holders, whose insignificance was their 
 History, ch viii. p. 183. best protection." Digby, Hist. Law 
 
 ' The attempts to explain the com- R. P. (5th ed.) p. 47, a. 2. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 363 
 
 case of attainder and execution for felony, the maxim being 
 " tlie father to the bough, the son to the plough," and (d) could 
 be aliened by the tenant at the age of fifteen.^ The first of 
 these characteristics is still a feature of gavelkind lands, as 
 distinguished from other tenures in England.^ 
 
 § 269. 3. Villein Socage — Unfree Tenures. — Many species 
 of tenure, which were doubtless marked with sufficient clearness 
 in the times when they flourished in full vigor, have greatly 
 puzzled the lawyers of later ages. Of the different forms of 
 unfree tenures, this is particularly noticeable. They were all 
 included within the general term villeinage^ and were readily 
 distinguished from the military holdings, in that their services 
 had nothing to do with warlike operations, but were always 
 humble and base in character, such as personally ploughing 
 the lord's land, doing his chores, or carrying out the dung 
 from his stables. It seems safe to say, also, that the service 
 or return of every unfree holding was uncertain in its nature, 
 in the sense that it depended to some material extent upon 
 the will of the lord. Custom, or contract, or both, might fix, 
 — and usually did fix, — the amount of work which the vassal 
 must perform ; but if when he went to bed at night he knew 
 that he must spend the morrow in working for his lord, but 
 did not know to what kind of work he might be put, his hold- 
 ing was by villeinage of some kind.* When this uncertainty was 
 so great that the holder of the soil was practically a "serf," an- 
 nexed to the land and passing with it, and having his services 
 limited in amount by nothing but the customs of the manor, of 
 which customs the lord himself was the ultimate though usually 
 equitable arbiter, the holding was by pure villeinage. And 
 when the services were thus uncertain from day to day, but 
 of an amount beyond which the lord could be prevented from 
 
 ' 2 Blackst.'Com. p. * 84. men ; on the other hand, the villein 
 
 ' Digby, Hist. Law E. P. (5th ed.) usually has a villein tenement. Then 
 
 p. 47, n. 2. As to the effects of Kent- again, the villanus gets his name from 
 
 ish tenures on holdings of land in the villa, and this may well lead us to 
 
 America, see § 246, supra. expect that his condition cannot be ade- 
 
 ' "The name 'villeinage' at once qnately described if we isolate him 
 
 tells us that we are approaching a region from his fellows ; he is a member of 
 
 in which the law of tenure is, as matter a community, a villein community," — a 
 
 of fact, intertwined vvith the law of per- villa. 1 Poll. & Mait. Hist. Eng. Law 
 
 sonal status ; ' villeinage ' is a tenure, it (2d ed.), p. 358 ; id. p. 413 ; § 272, infra. 
 is also a status. On the one hand the * Bract, lib. iv. cap. 28, fol. 208; 
 
 tenant in villeinage is normally a villein ; 1 Poll. & Mait. Hist, Eng. Law (2d ed.), 
 
 the unfree tenements are held by unfree pp. 369-375. 
 
364 HOLDINGS OF REAL PBOPERTT. 
 
 exacting, — and as to such holdings this was true only^ of 
 lands which had been held of the king, in ancient demesne, so- 
 called, since the Conquest, — the tenure was by privileged 
 villeinage, or villein socage. The latter of these will be first 
 more fully described. 
 
 § 270. Origin and Incidents of Tenure by Villein Socage. — 
 " There is also another kind of villein tenure, which has been 
 held of our lord the king ever since the conquest of England. 
 Tliis is called villein socage, and it is a villein tenure but of a 
 privileged kind. Thus the tenants of the demesne of our lord 
 the king have this privilege, that they cannot be removed from 
 the land as long as they are willing and able to render the 
 services which they owe, and villein socmen of this kind are 
 properly said to be bound to the land. Moreover, they render 
 villein services, but the services are fixed and ascertained. 
 Nor can they be compelled contrary to their desire to hold 
 tenements of this kind, and therefore they are called free. 
 Further, they cannot make a gift of their tenements, or transfer 
 them to others by title of gift, any more than pure villeins 
 can, and therefore if the tenements have to be transferred, 
 the tenant surrenders them to the lord or his bailiff, and 
 the lord transfers them to other persons to be held in 
 villeinage." ^ 
 
 Tenants of the character thus described by Bracton were 
 those who held in ancient dem,esne, so called, the lands which 
 were actually in the hands of the crown in the times of Edward 
 the Confessor, or William the Conqueror,^ and possibly other 
 lands which, subsequently being acquired by the king, were 
 treated in the same way in dealing with this favored class of 
 villein holders.^ It was a general principle of feuds that their 
 sale or transfer from one lord to another should not affect the 
 nature of the vassals' holdings. And, therefore, when the 
 king parted with ancient demesne lands thus held of him by 
 villein socage, the same kind of tenure continued under the 
 new lord.* But it was only of such lands that this species of 
 holding existed. If we repeat tliat, when Bracton says the 
 services were fixed and ascertained, this is to be taken to mean 
 simply tliat there was always a very reasonable limit to their 
 
 1 Bract, lib iv. cap. 28, fol. 208. * 1 Poll. & Mait. Hist. Eng. Law (2d 
 
 2 2 Hlackst. Com. p. * 99. ed.), p. 385. 
 
 3 1 Poll. & Mait. Hist. Eng. Law (2d 
 ed.), pp. 383, 38+. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 365 
 
 amount, but the tenant must work at the lord's bidding up to 
 that amount; and if we emphasize the fact that such tenants 
 were given a peculiar process, called the " little writ of right 
 close," by which they could prevent the lord from removing 
 them from the land against their will,^ we summarize the most 
 notable features which distinguished this tenure from that 
 in pure villeinage. On the ancient demesne, then, there were 
 freeholders, villein sokemen, and pure villeins ; while on all 
 other lands the tenants were all embraced within the two 
 general classes, freeholders and pure villeins. The tenure 
 of the latter and its important development are to be next 
 examined. 
 
 § 271. 4. Pure Villeinage. — The pure villein who was ordi- 
 narily in status au English " serf," was permitted, like other 
 vassals, to take the oath of fealty, and the customs of the 
 manor always regulated, to some extent, the quantity of services 
 which the lord could require him, as such liolder, to perform.^ 
 But, if those customs were violated to his injury, the pure 
 villein tenant had practically no remedy ; for the only court in 
 which he could be heard was the manor court of his own lord, 
 who had done or permitted the wrong.^ In the last analysis, 
 therefore, his services were not only base in character, but also 
 uncertain as to both time and quantity. It was a rare circum- 
 stance, however, for the lord to break through the manorial 
 customs and exact from his villein more burdensome services 
 than they fairly required.* 
 
 These lowest holders of land were in early ages either villeins 
 regardant, that is, annexed to the land and passing with it, or 
 villeins in gross or at large, that is, attached to the person of 
 the lord and transferable by deed from him to another owner.* 
 They were, in a word, the lord's property, recoverable in an 
 action at law if they ran away or were stolen, and unable to 
 leave the land without his permission. Tlie villein's children 
 (called nativi) belonged in like manner to the lord ; and if a 
 
 1 For a description of this peculinr 2 i poU. & Mait. Hist. Eng. Law (2d 
 
 writ, see 1 Poll. & Mait. Hist. Eng. Law ml.), p. 356 et seq., p. 412 et seq.; § 272, 
 
 (2d ed.), p. 386. It was a quickly oper- infra. 
 
 ating writ ; and Britton tells us that the '^ 1 Poll. & Mait. Hist. Eng. Law (2d 
 
 reasons for its existence for the benefit ed.), pp. 3.59, 360. 
 
 of villein sokemen was that thev were * 2 Blackst. Com. p. * 93 ; I PoU. & 
 
 the tillers of the king's soil, and dis- Mait. Hist. Eng. Law (2d ed.), pp. 361, 
 
 putes about that soil should be settled 362. 
 
 by rapid and simple processes. Britton, ^ 2 Blackst. Com. p. * 93. 
 ii. p. 13. 
 
366 HOLDINGS OP REAL PEOPERTY. 
 
 female villein (who was called a neife) were married without 
 his consent, he had the right to a fine from her father, ^ and an 
 action for damages against her husband for thus taking away 
 his property.^ The lord might beat or chastise his villeins 
 with impunity; yet, as the king's subjects, they were given 
 redress for atrocious injuries by him, such as mahem or rape ; 
 and he was liable criminally for killing or violently injuring a 
 villein.^ It sometimes happened, even with such servile vassals 
 as these, that their services were all commuted for a fixed rent, 
 while they still remained thus attached to the land.* This was 
 usually among the first steps in the development of their hold- 
 ings into copyhold tenure, — the species of tenure next and 
 last to be examined. 
 
 § 272. 5. Copyhold, Tenure — Development and Nature. — 
 When tenure in pure villeinage is said to be unfree, this must 
 be understood as referring distinctively to the tenure, and not 
 necessarily describing the personal status of the tenant. For, 
 as a matter of fact, throughout all the feudal ages, villein tene- 
 ments were frequently held, and the "services for them were 
 rendered or supplied, by men who were not villeins, but in 
 their persons were free. In process of time, moreover, many 
 of those who themselves had been villeins were emancipated ; 
 and yet they and their descendants continued to hold the land 
 in the same manner in which they had held it before obtaining 
 their freedom.^ While all these vassals undoubtedly held at 
 first merely at the will of the lord, yet, by the customs wliich 
 gradually grew up around such holdings, in the manors where 
 those customs ultimately became matter of record upon the 
 rolls of the various manor courts or courts baron, the will of 
 
 1 This obligation to pay for the priv- pear-tree growing in his court, he must 
 
 ilege of giving his daughter in marriage not fell it, except for the repair of his 
 
 was called merchet, and it affords an in- house, without the lord's leave. When 
 
 Btructive instance of the practical slav- he dies, his widow shall pay a heriot of 
 
 ery of the pure villein. Speaking of thirty shillings and be quit of work for 
 
 this and similar burdens, Pollock and thirty days. These are common feat- 
 
 Maitland say, in their history of Eng- ures, and the merchet is of peculiar iin- 
 
 lish law (2d ed.), vol. i. p. 368 : " Our portance, as will be seen hereafter." 
 Stukeley yirgater pays 'merchet,' as 2 2 Blackst. Com. p. *9.3. 
 
 best he may, that is to say, if he wishes » 2 Blackst. Com. p. * 94 ; 1 Poll. & 
 
 to give his daughter in marriage he Mait. Hist. Eng. Law (2d ed.), p. 412, 
 
 must pay money to the lord, and the et seq. 
 
 amount that he has to pay is not fixed. * l Poll. & Mait. Hist. Eng. Law (2d 
 
 If he has a foal or calf born of his mare ed.), p. 375. 
 
 or cow, he must not sell it without the 6 2 Blackst. Com. pp. * 94, * 95. 
 
 lord's leave. If he has an oak, ash, or 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 367 
 
 the lords came to be largely controlled and regulated; and, 
 although there was for a long time no means of enforcing 
 these customs by judicial action against the lord, yet they were 
 deeply rooted in the usages and habits of the people, and any 
 lord who ventured to set them aside and deprive the land- 
 holder of their benefit must have been exceptionally grasping 
 and regardless of public opinion.^ Gradually the king's courts 
 of common law came to recognize and enforce these customs, 
 which had thus grown up within the different manoi's and 
 were evidenced by the entries on the rolls of the manor courts. 
 And the tenant, who being now free could contend with his 
 lord in any of the king's courts, became thereby enabled, by 
 proving his right by means of a copy of the rolls of the manor 
 court, to retain his land even against the will of his lord.^ 
 The copy of those rolls was, therefore, his only muniment of 
 title ; and he was accordingly said to have his land by copyhold 
 tenure. In brief, then, a copyhold estate may be defined as 
 one which, being originally held in pure villeinage at the will 
 of the lord, came in process of time, by virtue of long con- 
 tinued possession according to fixed customs, to be held by 
 the tenant in spite of any determination of the lord's will, but 
 upon the same services as before and in conformity to the 
 established customs of the manor ; the customs being usually 
 proved in the higher court by copy of the rolls of the respective 
 courts baron (manor courts) in which they were entered.^ 
 
 § 273. Survival of Copyhold Tenures. — Except as they were 
 affected by their special local customs, copyhold tenures came 
 by degrees to have the same characteristics as the free tenures. 
 There is, at the present time, a large though gradually decreas- 
 ing amount of land in England which is subject to tenure by 
 copyhold. But, of course, villein socage and pure villeinage 
 have long ago disappeared. " It might have been expected," 
 says a recent writer,* " that so anomalous a class of rights as 
 that which constitutes copyhold tenure would before the pres- 
 
 1 2 Blackst. Com. pp. * 9.5-* 98; Edw. IV. p. 19, that this was the ap- 
 
 Digby, Hist. Law R. P. (5th ed.) p. 288, propriate remedy, and not a writ of 
 
 et seq. subpoena, i. e. an application to the 
 
 ^ " The great step seems to have been jnrisdli.tion of tlie chancellor." 
 the recognition of the right of the ten- ' See Bouvier's Law Diet. " Copy- 
 ant in villeinage to maintain an action of hold;" Burrill's Law Diet. "Copy- 
 trespass against his lord." Digby, Hist. hold." 
 
 Law P. E. (5th ed.) p. 291. And Digby * Digby, Hist. Law R. P. (5th ed.) 
 
 adds, in a footnote : " It was held in p. 294. 
 a ease reported in the Year Book, 7 
 
368 HOLDINGS OP REAL PROPERTY. 
 
 €nt time have been assimilated to the other forms of property 
 la land. This, however, has not been done. Copyholds might 
 at any period have been enfranchised (or converted into free- 
 holds) by the conveyance of the freehold by the lord to the 
 copyholder, or extinguished by surrender of the copyhold by 
 the tenant to the lord.^ Various acts have in recent times 
 created facilities for this process by providing means for the 
 assessment and commutation of the lord's rights and other- 
 wise; and at the present day either lord or copyholder may 
 compel enfranchisement by taking the proper steps through 
 the action of the Board of Agriculture." 
 
 § 274. Manors. — The different forms of tenure have been 
 above described as separate and distinct. And so they were 
 in theory, and largely so in practice. But the finer distinctions 
 between them varied much in different ages and are often hard 
 to catch even at any given time. One vassal, moreover, might 
 hold various pieces of land by different tenures and of different 
 lords. He could have one parcel of A by free and common 
 socage, another of B by knight-service, another of C by a form 
 of serjeanty ; and, even as a free man, he might render or 
 supply servile labor to one of these or to some other lord for 
 land held by an unfree tenure.^ The system of feuds was thus 
 more complicated than a discussion of the few forms of tenure 
 which it produced might at first thought indicate. But it was 
 largely saved from intricacy by the division of most of the land 
 into manors, the orderly distribution of the domain within 
 
 1 It IS to be again carefully noted Reading at a money rent ; he held lands 
 that the enfranchisement here men- at Crofton in Buckinghamshire of Wil- 
 tioned refers to the tenure and not to liam de Say by some service that the jury 
 the tenant. The tenants or holders of did not know ; he held a manor in Nor- 
 to-day are all free men ; but their copy- folk of the bishop of Norwich by the 
 hold lands are held by a tenure which service of a sixth part of a knight's fee 
 is designated unfree, because it is the and by castle-guard ; he held a manor 
 representative of the base tenures of in Sussex of the Earl of Warenne by 
 medieval times. To enfranchise it now the service of one knight ; he held a 
 would be to make the holding of the manor in Hertfordshire of the king in 
 land tenure by free and common socage. chief by the serjeanty of finding a foot- 
 See Wappett V. Kobinson (1903), 1 Ch. soldier for forty days; he held tene- 
 135. ments in London of the king in chief by 
 
 '•^ Pollock & Maitland [Hist. Eng. socage, and could bequeath them as 
 
 Law (2d ed.), p. 296] thus describe the chattels. So we must not think that 
 
 holdings of Sir Robert de Aguilon, at each man fills but one place in the legal 
 
 the time of his death in 1287: "He structure of feudalism. In a remote 
 
 held lands in Greatham in Hampshire past this may have been so ; but it is 
 
 of the king at a rent of 18.s. ; he held not so in the age that defines the vari- 
 
 lands at Hoo in Kent of the abbat of ons tenures." 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 369 
 
 each of these among the various classes of tenants and the 
 primitive yet systematic administration of their affairs by 
 the manorial courts or courts baron. 
 
 A manor was a large tract of land, originally granted by the 
 king to a person of rank, portions of which {terrce, tenementales) 
 were let out by the grantee or mesne lord to his vassals.^ No 
 exact quantity of territory marked the extent of all manors : 
 some were larger, some smaller, but all were extensive and 
 important tracts ; each was a unit in the system of agriculture 
 and the management of property, and in each its lord held a 
 court which was called the court baron or manor court.^ A 
 greater lord was often the proprietor of more than one of these 
 tracts ; and, in addition to a court for each of his manors, he 
 would sometimes have a central court for the principal free- 
 holders of them all.^ Bach manor was divided roughly into 
 four parts, (a) The lord kept in his own hands as much land 
 as was reasonably required for the use of himself and his 
 family, his bailiffs and servants. This was his demesne land, 
 and on it was located his house or homestead, (b) Another 
 portion was assigned to the freeholders within the manor ; i. e. 
 those who held by free tenure, such as knight-service, free 
 socage, etc. (c) Still another part was held and cultivated by 
 the unfree vassals ; and, when the land was held by the lord in 
 ancient demesne, some of such vassals' were free sokemen, 
 while others were pure villeins, (d) Lastly, there was uni- 
 formly a fourth part of the manor which was left waste or 
 uncultivated and used for public roads and pasture lands or 
 commons for the lord and all his tenants.* Doubtless the 
 various tenements of these four distinct legal portions lay inter- 
 mingled, as convenience or order of distribution might dictate ; 
 different portions of the manor would remain waste or unculti- 
 vated in different years, and the tenure of a given piece of the 
 land would sometimes change from one kind to another. But, 
 at any point of time, the complete manor had these four clearly 
 distinguished species of tenements.^ And, for settling property 
 disputes among his tenants and for redressing misdemeanors 
 and nuisances, the lord's court baron had jurisdiction througli- 
 
 1 Bonvier, Law Diet. " Manor." Lect. 62, 63 ; Wms. R. P. p. * 1 19 ; 1 Poll. 
 
 ' 2 Blackst. Com. p. *90. & Mait. Hist. Eng. Law (2d ed.), p. 364. 
 
 ' 1 Poll. & Mait. Hist. Eng. Law (2d ^ i PoU. & Mait. Hist. Eng. Law (2d 
 
 ed), p. 597. ed.), p. 364. 
 
 * 2 Blackst. Com, p. * 90 ; 2 Sulliv. 
 
 24 
 
370 HOLDINGS OP EEAL PROPBRTr. 
 
 out the manor. It is from the records of the manorial customs 
 and rights, inscribed upon the rolls of this court, that the copy 
 w^s obtained, which, as above shown, constitutes the only 
 available evidence of his title for the copyhold owner of land.^ 
 Not all the lands in England were thus included within 
 manors ; but the manor constituted the property and jurisdic- 
 tional unit of most of the holdings. Manors existed before the 
 conquest. They were then, and for some time during feudal 
 supremacy, largely coincident in extent with the rils {villas) ; 
 and, as time advanced, a process is discernible by which some 
 of them developed ultimately into boroughs of modern times.^ 
 
 Descent and Alienation of Realty, as affected hy Feuds. 
 
 § 275. Duration of the Vassal's Holding. — There can be 
 little doubt that in Anglo-Saxon times, when the holdings of 
 land were chiefly alodial, men generally owned them in such a 
 way that they could at pleasure dispose of them by will, or by 
 deed or other act inter vivos, and upon the death of their owner 
 intestate they could descend to his heirs at law.^ But the 
 entire theory and structure of the feudal system were opposed 
 to such absolute power of disposition. The lord selected his 
 Tassals with special reference to their personal characteristics. 
 He wanted them to be always ready and able to fight for him 
 in the wars, or promptly and faithfully to render the other ser- 
 vices which were his due. He therefore naturally objected to 
 the tenant's alienation of his land, without his consent, to a 
 stranger ; and he hedged about the right of inheritance with 
 such incidents as relief, primer seisin, wardship and marriage, 
 as a compensation to himself for accepting as tenant a minor 
 heir, who was a female or too young for warfare, in place of the 
 deceased ancestor, who had been a brave and capable knight. 
 
 1 § ' 272, supra. The existence of consequences. In particular, it seems 
 
 the manor court was, perhaps, the cru- to us that the men of the time would 
 
 cial test of the actual existence of a generally have argued from the court 
 
 manor. If there ceased, at any time, to to the manor, rather than from the 
 
 be enough freeholders (at least two) to manor to the court, and would have 
 
 hold this court, the manor ceased to be. said, ' A single court is held for it, 
 
 2 Blackst. Com. p. * 90. " We are in- therefore it is a manor,' rather than 
 
 clined to think," say Pollock & Mait- 'It is a manor and therefore it has 
 
 land [Hist. Eng. Law (2d ed.), p. 605], a court.'" 
 
 " that the mere fact that a certain tract ^ gee i Poll. & Mait. Hist. Eng. Law, 
 
 of land or a certain complex of rights ch. 3, §§ 7, 8. 
 
 was a manorium had no immediate legjil ' § 247, supra. 
 
THE FEUDAL SYSTEM AND ITS FKDITS. 371 
 
 Hence the completion of our outline of feudal holdings requires 
 a brief discussion of their effects upon (a) the descent of real 
 property from ancestor to heir, (b) its alienation by will, and 
 (c) its alienation by deed or other act inter vivos. And, in 
 connection with these, seisin and disseisin of real property must 
 be explained. 
 
 § 276. (a) Descent of Feuds. — Although we can not state 
 the exact times when the changes occurred, yet it is certain 
 that, from being in their original form mere precarious hold- 
 ings (or henefices') retained purely at the will of the lord,^ feudal 
 lands came gradually to be let out for a short fixed period, as 
 for a year at a time ; then by degrees they were given over to 
 the tenants for life ; and finally, as stress was laid on the 
 hardship of depriving children of that which their father had 
 held as his own, feuds bepame hereditary and were ordinarily 
 bestowed upon the vassals for themselves and their heirs.^ 
 The transfer of tenements thus to a man " and his heirs," when 
 first employed, was regarded as giving them to him while he 
 lived and then to his heirs ; and the relief which the heir must 
 pay upon taking up the land after tiie death of his ancestor 
 was a natural and direct outgrowth of this theory .^ But the 
 later and permanent construction of those words was that they 
 were simply the technical, legal means of indicating that the 
 vassal himself, the first taker to whom the lord gave the land, 
 was to have the perpetual ownership of it, so that, upon his 
 death still owning it, it might descend by operation of law from 
 him to his heirs.* This result emerged in England not long 
 after the Conquest. And there quickly followed upon it the 
 rule of primogeniture, by which in most parts of that country, 
 even down to the present time, the oldest son is the sole heir; 
 while, if there be daughters but no son, they share the property 
 equally, as together constituting the heir of their father.^ 
 
 § 277. (b) Alienation by "WUl. — The disposition of real 
 property by will, in common-law jurisdictions, and the effects 
 of feudalism upon it may be outlined in six distinct historical 
 periods as follows : 
 
 Anglo-Saxon Period. — Before the Norman Conquest, 
 owners of lands could will them away at death ; and, although 
 
 1 § 251, supra. * See 2 Poll. & Mail. Hist. Eng. Law, 
 
 « 2 Blackst. Com. p. * 55. ch. i, §§ 1, 2. 
 
 • § 256, supra. ' 2 Blackst. Com. pp. » 21 1-* 216 ; 
 
 Digby, Hist. Law R. P. (5th ed.) p. 421. 
 
372 HOLDINGS OP REAL PROPERTY. 
 
 there were doubtless some restrictions placed upon their right 
 to do so, such for example as the payment of a heriot to the 
 king for his consent, yet it is now quite well established, 
 especially as to such owners who had large means and high 
 rank, that they more often died testate than intestate as to 
 their property both real and personal.^ 
 
 Feudal Period. — Even after feuds came to be heritable, 
 it was thought to be an injustice to the lord that the tenant 
 should devise them to persons who might be wanting in those 
 personal qualities for which he had been chosen as vassal. 
 The heir, the blood relative of the deceased tenant, would 
 probably have some or all of the same characteristics wiiich 
 had commended the tenant himself to the lord. But a devisee 
 of the land might be an entire stranger, possibly an enemy of 
 the lord, or one whom for other reasons he would not willingly 
 accept as vassal. The result was that, except in some favored 
 localities, as in Kent with its gavelkind customs, feudalism 
 soon destroyed the power of every one but the king to will 
 away tlie complete legal title to lands in England.^ But, 
 during the fourteentli century, the system, which was fos- 
 tered and developed by the courts of equity, of having the 
 legal title to lands and tenements held by one person for 
 the use or benefit of another who thus got all the utility 
 and enjoyment of the property, did away with the difficulties 
 which otherwise would have arisen. Equity treated this owner 
 of the use as the real owner of the land, and compelled the 
 holder of the legal title to recognize the use in favor of liim 
 to whom it was given and any one to whom lie might will it 
 away. And, by the beginning of the fifteenth century, the 
 system was complete whereby an owner of land, who desired 
 to devise it, deeded it away to some one else to hold to his own 
 use, or to the use of any one whom he might designate, and 
 then willed away the use which he had thus put at his own dis- 
 posal. It thus came about that, from the time of the complete 
 introduction of feuds into England to the 27th year of Henry 
 VIII. (1535), when the famous Statute of Uses (hereafter ex- 
 plained) was enacted, the one important method of disposing 
 of interests in real property by will was by the devising of 
 
 1 See 2 Poll. & Mait. Hist. Eng. But an interest in real property for 
 
 Law (2(1 ed.), pp. 320-322; Digby, merely a term of years, such interest 
 
 Hist. Law R. V. (.5th ed.) pp. 13, 1.5. being a. chattel real, could still be dis- 
 
 ^ Glanv. vli. 1 ; 2 Poll. & Mait. posed of by will the same as other per- 
 
 Hist, Eng. Law (2d ed.), pp. 325-332. sonal property. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 373 
 
 uses in lands which were held for the benefit of the testators 
 and their devisees.^ 
 
 Period under Statute of Uses. — The statute of uses, en- 
 acted in 1535 (27 Hen. VIII. oh. 10), provided that the 
 legal title should follow the use — that a grant or transfer to 
 A for the use of B should give to B all the ownership includ- 
 ing the legal title. And, since under the feudal theory this 
 legal title could not ordinarily be the subject matter of a 
 devise, and it must now follow the use, it was decided that 
 this statute had destroyed all possibility of merely devising the 
 use.^ There were practically no wills of realty in England 
 for live years thereafter^ — until the enactment of the Statute of 
 Wills in the thirty -second year of Henry VIII. 
 
 Period under Statute of Wills. — By the statute 32 Hen. 
 VIII. ch. 32, § 1, which was interpreted and explained by 
 that of 34 and 35 Hen. VIII. ch. 5,^ all persons except 
 married women, infants, idiots, and persons of unsound mind 
 were enabled to devise, by will in writing, all their lands held 
 by socage tenure and two-thirds of those held by knight-service. 
 And, by virtue of those acts, testators disposed of such lands 
 by wills — the only requisite of which was that they should 
 be in writing — until the enactment of the Statute of Frauds, 
 29 Car. II. ch. 3 (1677). 
 
 Period tender Statute of Frauds. — By the last- mentioned 
 act, it was made a necessary condition of a will of real prop- 
 erty that it should be signed by the testator, or by some other 
 person in his presence and with his knowledge and consent, 
 and be attested and subscribed by at least three credible wit- 
 nesses.* Under this famous statute, real-property wills were 
 made in England and the various states of this country, until 
 modern legislation in each jurisdiction respectively prescribed 
 the requisites of such dispositions of realty. 
 
 1 2 Blackst. Com. pp. * 374, *375 ; 2 title must follow the use, to devise the 
 Poll. & Mait. Hist. Eng. Law (2d ed.), use was in effect to devise the legal title, 
 pp. 233-239. and, since this latter was forbidden by 
 
 2 This was not a necessary decision the law of feuds, the statute had doue 
 (if it were even logical) from the word- away with all wills of interests in 
 ing of the statute and its operation. realty. 
 
 The courts might logically have held ' The first act was loosely and in- 
 
 that a testator's will of the use in itself artificially drawn, and needed the later 
 
 passed nothing but the use, and that statute, which was full and explanatory, 
 
 then the statute carried the legal title * The statute said " three or four 
 
 to the devisee. But, as a matter of credible witnesses," which, of course, 
 
 fact, they decided that, since the legal meant .three or more. 
 
S74 HOLDINGS OP REAL PEOPBRTT. 
 
 Period under Modern Statutes. — The English statute 
 which now regulates wills of property, both real and personal, 
 went into operation January 1, 1838 (Act of 1 Vict. ch. 26, as 
 modified and explained by 15 & 16 Vict. ch. 24). ^ That of 
 New York took effect January 1, 1830. (a) And so in each 
 state the modern wills legislation particularly prescribes the 
 method by which real property may be devised. 
 
 § 278. (c) Alienation by Act Inter Vivos. — It was explained 
 above that, during the Anglo-Saxon period, book-lands were 
 probably freely alienable by deed as well as by will, while the 
 folk-lands were clogged with important restrictions in tliis 
 respect. It was also shown that the book-lands, with their 
 alodial characteristics, continued to be held as such for some 
 little time after the Conquest ; and then came, like all other 
 real property, under the absolute control of the feudal system.^ 
 It is now impossible accurately to determine the restrictions 
 which the feudal polity imposed upon the power of the tenants 
 or vassals voluntarily to transfer their holdings and put other 
 owners in the places which they themselves had occupied. 
 But it is certain that, even after the heir's power to obstruct 
 his ancestor's disposition of land was lost,^ the lord could pre- 
 vent direct alienation which would ,, operate to his detriment.* 
 Being thus hampered in regard to so important an incident of 
 property ownership — the right to dispose of it as they might 
 wish —the vassals early resorted to subinfeudation of their 
 
 (a) The requirements of the New York Statute as to the execution of 
 wills are quoted p. 106, note (a), supra. 
 
 1 The principal requirements of this already to the heir ; and the ancestor 
 
 statute are that the will shall be in could not dispose of it. But when it 
 
 writing, signed at the end by the testa- became settled, as it did even before 
 
 tor, or by some other person in his Magna Charta, that a conveyance to A 
 
 presence and by his direction, that his " and his heirs " gave the entire and 
 
 signature shall be acknowledged by the absolute ownership to A and nothing 
 
 testator in the presence of two or more to his heirs, it followed that they could 
 
 witnesses present at the same time, and not place any restrictions upon his 
 
 that the witnesses shall attest and sub- alienation of every estate and interest 
 
 scribe the will in the presence of the in the land. If he died without having 
 
 testator. disposed of it, they could inherit it from 
 
 ^ §§ 247-249, supra. him ; but they could not insist on his 
 
 ' As long as the transfer of real keeping it till he died, or for any other 
 
 property to one " and his heirs " was period. Bracton, lib. ii. cap. 19, fol. 
 
 regarded as in itself bestowing an inter- 45 ; Digby, Hist. Law R. P. (5th ed.) 
 
 est upon the heirs, they could prevent p. 162. 
 
 the ancestor from alienating against ' 1 Poll. & Mait. Hist. Eng. Law 
 
 their will. The inheritance belonged (2d ed.), pp. 329-340. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 375 
 
 tenements ; that is they handed them over to others to hold of 
 themselves, while they retained the position of tenants to their 
 original lords. Thus, if A were the lord and B the vassal, and 
 B, desiring to sell his feud, met with objections or restrictions 
 emanating from A, B transferred the property to C to hold of 
 B ; and thus C became the vassal of B and not of A, while B, 
 instead of ceasing to have any interest in the land as he would 
 have done if he could have sold it outriglit, retained his posi- 
 tion and obligations in regard to it as the vassal of A.^ B 
 might treat his entire feud, or any portion or portions of it, in 
 this manner.^ Even upon this method of subinfeudating, how- 
 ever, there seem to have arisen by custom some restrictions in 
 favor of the lord. And the statutes hereafter described, which 
 curtailed and ultimately destroyed subinfeudation, at first 
 merely defined and then amplified pre-existing restraints.^ 
 
 § 279. Effects of Magna Charta on Alienation Inter Vivos. — 
 The difficulty, which subinfeudation was constantly producing 
 or tlireatening for the lords, was that, while it still- left tlieni 
 against their own tenants the rights incident to tenure, such 
 as aids, relief, marriage, wardship, and escheat, it might 
 seriously diminish the value of those rights. If, for example, 
 a tenant by knight-service subinfeudated the tenement to 
 another to hold at a yearly rent of a pound of pepper, and then 
 died leaving an infant heir, his lord, instead of being entitled 
 to enjoy the land itself till such heir became of age, could 
 merely recover from the sub-feudatory a pound of pepper 
 annually during that time. And, if the vassal who had thus 
 subinfeudated died without heirs, his lord, instead of obtaining 
 by escheat the absolute use of the land, received only the rent 
 paid by the subtenant.* The first attempt to obviate such 
 difficulties by statute was made in the Magna Charta of 1217, 
 which enacts that " No free man shall henceforth give or sell 
 so much of his land as that out of the residue he may not 
 sufficiently do to the lord of the. fee the service which pertains 
 to that fee." If the tenant presumed to convey more than 
 was thus permitted, the excessive gift or sale could be avoided 
 by his lord.^ 
 
 1 2 Blackst. Com. pp. * 91, * 92; =1 Poll. & Mait. Hist. Eng. Law 
 Digby, Hist. Law K. P. (5th ed.) pp. (2d ed.), p. 343. 
 
 234, 235. * 1 Poll. & Mait. Hist. Eng. Law 
 
 2 1 Poll. & Mait. Hist. Eng. Law (2d ed.), p. 330. 
 
 <2d ed.), p. 330. ^ Charter 1217, ch. 39 ; Coke, 2d inst. 
 
 65. 
 
376 HOLDINGS OP REAL PROPERTY. 
 
 § 280. Effects of the Statute of Quia Emptores on Alienation 
 Inter Vivos. — But this restriction of Magna Qharta proving to 
 be vague and unsatisfactory, the entire system of subinfeudation 
 was swept away by the statute of Westminster III., or Quia 
 Umptores [18 Edw. I. ch. 1 (1290)], which is a very important 
 landmark of real-property law. It declared that every free 
 man might sell at his own pleasure his lands and tenements, 
 or any part of them, but so that the transferee should hold 
 of the same lord and by the same services and customs, of 
 whom and by which the transferor had held. The services 
 were to be ratably apportioned if only a part of such lands or 
 tenements was sold by the tenant.^ The statute applied only 
 to the alienation of the entire fee simple — the entire interest 
 or estate — of the land sold ; and did not prevent a tenant 
 from creating a species of subtenure by letting out the land for 
 life or any other period shorter than his own interest, retain- 
 ing for himself the residue of interest, called the " reversion," 
 and having the person to whom he thus sublet as his own 
 tenant.^ Neither did the act apply to the tenants in capite ; 
 but it, and the subsequent enactments called Prerogativa Regis 
 [17 Edw. II. ch. 6 (1324), and 34 Edw. III. ch. 15 (1361) ], 
 left it as a part of the king's prerogative to permit or prevent 
 at will direct alienation or subinfeudation by those who held 
 immediately of him.^ The net result was the effectual check- 
 ing of all subinfeudation, except such as the king allowed his 
 own tenants to make, and the enabling of all free landholders 
 but those who held directly of the crown absolutely to alienate 
 their entire estates and interests in all or any parts of the 
 tenements which they held in fee simple. The king could still 
 collect fines from his vassals for granting to them the privilege 
 of selling ; but the mesne lords had ho control over alienation 
 of the fee simple by their tenants, except the power to require 
 
 1 See the statute in full in Digby, 1 Poll. & Mait. Hist. Eng. Law (2d ed.), 
 
 Hist. Law R. P. (5th ed.) pp. 236-239. p. 337. 
 
 "The statute is a compromise; the ^ xhe words of the statute are : "And 
 
 great lords had to concede to their it is to wit that this statute extendeth 
 
 tenants a full liberty of alienation by but only to lands holden in fee simple." 
 
 way of substitution — substitution even See Digby, Hist. Law B. P. (5th ed.) 
 
 of many tenants for one tenant — and p. 238; 1 Leake, 19,317 ; Challis, E. P. 
 
 thus incur a danger of losing their ser- ] 8, 20, 30. 
 
 vices by the process of apportionment ; s 2 Blackst. Com. pp. *91,*92; 1 
 
 on the other hand, subinfeudation with Poll. &Mait. Hist. Eng. Law (2d ed.), 
 
 its consequent depreciation of escheats, p. 337. 
 wardships and marriages was stopped." 
 
THE FEUDAL SYSTEM AND ITS PBUIT8. 377 
 
 that when they sold they should sell outright. This meant 
 that permanent new subtenurcs could not be made without the 
 king's license : and consequently all manors existing in Eng- 
 land at the present time, with the possible exception of a few 
 expressly authorized by the crown, and all holdings in fee 
 simple of any lord other than the king must have been created 
 before the Statute of Quia Umptores went into operation.^ 
 
 § 281. statute De Donis — Summary as to Alienation Inter 
 Vivos. — It is to be added that, five years before the enactment 
 of the last-named statute, estates tail, i. e., interests in land 
 conveyed to one and the heirs of his hody as distinguished from 
 his heirs generally, were rendered wholly inalienable by the 
 Statute de Donis Conditionalihus.^ The exact nature of such 
 estates or interests in land, and the operation of the Statute de 
 Bonis Conditionalibus upon them will be explained hereafter ; 
 and how tiiey have since become alienable will be described. 
 But the general effect of that statute is here noted for the 
 sake of completeness in dealing with the question of alienation 
 of real property. And, if now we look at all possible interests 
 in such property immediately after the Statute of Quia Emptores 
 took effect, we arrive at the following summary ; namely, (1) 
 subinfeudation of tenements held in fee simple was impossible, 
 except by the king's tenants pursuant to his license ; (2) all 
 tenements held in fee simple of any one but the king could be 
 freely aliened outright ; (3) estates tail could not be aliened 
 at all ; (4) all lesser interests in real property, such as estates 
 for life or for terms of years, could be clogged with any reason- 
 able restrictions as to alienation which the parties saw fit to 
 impose. 
 
 § 282. Restrictions on Alienation removed by Statute 12, 
 Car. II. ch. 24 — Present Results. — Since the Statute of Quia 
 Emptores became a law, and as one of the logical and necessary 
 consequences flowing from it, it has been impossible in both 
 England and America for any one (except the king), who con- 
 veys real property in fee simple, to place any material restric- 
 tion upon the power of the alienee himself to sell. Thus, the 
 notion, so common to us, that we may dispose when and how 
 we please of lands or tenements which are wholly and abso- 
 
 1 2 Blackst. Cora. p. *92 ; Wms. R. license from the crown since 1290. 
 P. 119, 127; Digby, Hist. Law R. P. Challis, R. P. 19. 
 (5th ed.) p. 235. There have been a ^ Statute of We.stm. II. 13 Edw. I. 
 
 few new manors created by special ch. 1 (1285), which see in full in Digby, 
 
 Hist. Law R. P. (5th ed.) pp. 226-230. 
 
378 HOLDINGS OP REAL PROPERTY. 
 
 lutely ours, is not an inherent common-law principle that has 
 always operated ; but it has its roots in that famous statute 
 made practically necessary by the development of feudalism. 
 
 By the death of intermediate lords without heirs, the occa- 
 sional surrender of their ownership to their superiors, etc., the 
 ladders of feudal tenures gradually lost their rungs and were 
 thus shortened, after the Statute of Quia Emptores, until most 
 of the holders of real property came to be the king's tenants 
 in chief.i That statute did not operate in favor of these latter ; 
 and thus the difficulties of tenure, especially as to those who 
 held by knight-service, were constantly affecting more and 
 more vassals. As soon as he lost the mesne lord between him- 
 self and the crown and so became a holder in capite, tlie 
 tenant became subject to primer seisin, or fines for alienation, 
 or both, in addition to all the other burdens incident to his ten- 
 ure. Hence it was that the statute 12 Car. II. ch. 24 (1660), 
 above explained more in detail,^ was enacted to abolish prac- 
 tically all of those onerous appendages of the feudal holdings. 
 Since that time alienation in fee simple, by all holders of land, 
 lias been substantially unrestricted, except as to the manner 
 ill which it must be accomplished. And tiie uniform method 
 of transfer to-day, in botli England and America, as prescribed 
 by the statutes of frauds [based on that of 29 Car. II. ch. 3 
 (1677)], is by a deed in writing.^ (a) 
 
 § 283. Seisin defined and classified. — The feudal idea of 
 seisin is so inwrought into the entire structure of the law of 
 
 (a) In New York, the statute, which was formerly 2 R. S. 134, § 6, 135, 
 § 7, and 137, § 2, and is now Real Prop. Law (L. 1909, ch. 52), § 242, 
 provides that, " An estate or interest in real property, other than a lease 
 for a term not exceeding one year, or any trust or power, over or concern- 
 ing real property, or in any manner relating thereto, can not be created, 
 granted, assigned, surrendered, or declared, unless by act or operation of 
 law, or by a deed or conveyance in writing, subscribed by the person cre- 
 ating, granting, assigning, surrendering, or declaring the same, or by his 
 lawful agent, thereunto authorized by writing. But this section does not 
 affect the power of a testator in the disposition of his real property by will; 
 nor prevent any trust from arising or being extinguished by implication 
 or operation of law, nor any declaration of trust from being proved by 
 a writing subscribed by the person declaring the same." 
 
 1 Digby, Hist. Law R. P. (5th ed.) " § 262, supra. 
 
 p. 235. > 1 Stim. Amer. Stat. L. §§ 4140, 4148. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 379 
 
 real property that it is very difficult to understand and apply 
 the reasoning of the courts, either ancient or modern, upon 
 the subject, without a clear understanding of the unfolding and 
 nature of that idea.^ 
 
 When first used in the common law, seisin meant simply 
 and only possession. Before the end of the thirteenth cen- 
 tury, it applied to the possession of chattels as well as land. 
 Subsequently its meaning was restricted to the possession of 
 lands and tenements. And finally, as its settled meaning, it 
 came to involve the thought of dt, freehold interest in real prop- 
 erty and either the possession or the right to the possession 
 of the same.^ When estates in real property are hereafter 
 discussed, the nature of a freehold interest, or " freehold 
 estate," will be fully explained. It will suffice here to say 
 that it is an interest in realty for life or of inheritance. If 
 A have a piece of land to hold during his own life or during 
 the life of B, or for him and his lieirs forever, or for him and 
 the heirs of his body, he has a freehold estate in the same. 
 Now, no one can be seised of realty without having either the 
 possession or the unobstructed right to the possession of land, 
 together with the claim therein of a fyeehold estate. When 
 it involves actual possession it is seisin in fact ; when there is 
 no actual possession, but an unobstructed right to take pos- 
 session exists, it is seisin in law. It is best, therefore, if a 
 set definition be required, to say that seisin is a compound 
 idea, involving seisin in fact and seisin in law : seisin in fact 
 is the actual possession of real property together with the 
 claim of a freehold estate in the same ; ^ seisin in law is 
 the claim of a freehold estate in, and the present right to the 
 possession of real property, which is not being held adversely 
 by another.* Thus-, when one is actually occupying an acre of 
 land, which he claims for his life or for himself and his heirs, he 
 is seised in fact of that land. And when one owns an acre of 
 land, the title to which has descended or been devised to him, 
 
 1 " In the history of our law there is ' Lit. 324 ; Co. Lit. 200 b, 201 a ; 
 
 no idea more cardinal than that of 2 Poll. & Mait. Hist. Eng. Law (2d ed.), 
 
 seisin. Even in the law of the present pp. 29-39. 
 
 day it plays a part which must be '^ Co. Lit. 266 b, n. 217; Com. Dig. 
 
 studied by every lawyer; but in the Seisin, A; 2 Poll. & Mait. Hist. Eng. 
 
 past it was so important that we may Law (2d ed.), p. 40. 
 almost say that the whole system of * Ibid. ; 1 Cruise Dig. tit. ii. ch. iil 
 
 oar land law was law about sei.iin and § 34. 
 its consequences." 2 Poll. & Mait. Hist. 
 Eng. Law (2d ed.), p. 29. 
 
380 
 
 HOLDINGS OF EEAL PROPERTY. 
 
 and he. claims a freehold estate in it, but he has not yet taken 
 possession of it, and no one is in possession holding adversely 
 to him, he is seised in law of that land. It is thus apparent 
 that seisin is quite different from mere possession. A tres- 
 passer, a licensee upon land, or a tenant for years or at will 
 may have possession, and generally does so ; but as such a 
 holder he is not seised.^ The possession of a tenant for years 
 or at will, however, is ordinarily for the benefit of his land- 
 lord, the owner of the freehold estate ; so that then the latter 
 has the seisin in fact, because he both claims a freehold estate 
 in the property and has possession of it through his tenant.^ 
 Incorporeal hereditaments, of course, can not be possessed, or 
 manually held, in the same way as corporeal ones. But the 
 right to receive the income, the rents and profits, from them is 
 treated as equivalent to possession ; and he who has this right 
 at present and claims a freehold estate in the easement, fran- 
 chise, or other kind of incorporeal hereditament, has the seisin 
 thereof.-' 
 
 1 " We may say that the animus re- 
 quired of the person who is ' seised of 
 free tenement ' is the intent to hold that 
 land as though he were tenant for life 
 or tenant in fee, holding by some free 
 tenure." 2 PoU. & Mait. Hist. Eng. 
 Law (2d ed.), p. 40. 
 
 2 Bract, book ii. ch. ix. fol. 27. 
 
 ' 2 Poll. & Mait. Hist. Eng. Law (2d 
 ed.), pp. 34, 39. It may be noted here 
 that future interests in real property, 
 such as remainders and reversions, are 
 incorporeal in their nature, and that 
 owners of them are sometimes said to 
 be seised. There is no difficulty in 
 understanding this when the preceding 
 estate is only a term of years. Thus, if 
 land be held by A for ten years, then 
 to go to B for life or in fee, A takes 
 possession for B ; B has, therefore, tlie 
 possession and the freehold estate, and 
 is seised in fact. But when the first 
 estate is a freehold, there is apt to be 
 ambiguity created by speaking of the 
 owner of the next or future estate as 
 being seised. For, when A owns a 
 piece of land for life, and it is then to 
 go to B and his heirs, if A have posses- 
 sion, it is for himself, and he and nut B 
 has the seisin in fact. Yet B is ofteu 
 spoken of, under such circumstances, 
 
 as being seised of his future, estate in 
 reversion or in remainder. When the 
 word seisin is thus used, it must be 
 understood as employed in a broad, 
 general sense which is closely synony- 
 mous with ownership. And such a use 
 of the word must not be allowed to 
 caase confusion as to its accurate and 
 technical meaning above explained. 
 
 Also, in dealing with estates and 
 interests which were developed under 
 the Statute of Uses, those who have 
 legal estates, either in possession, or in 
 remainder or reversion, provided no 
 one has wrongfully taken the land from 
 them and reduced their iuterest to a 
 mere right of entry, are often said by 
 the courts and writers to be seised of 
 the property, even though they have no 
 possession. This, again, is a broader 
 and looser meaning of the word than 
 that given in the text ; and this general 
 use of it must not be allowed to cause 
 confusion ; 2 Prest. Abr. 282 ; Co. Lit. 
 266 b; Cook u. Hammond, 4 Mason 
 (U. S. Cir. Ct.), 467, 489 ; 12 Law Quart. 
 Rev. 239, 247. It has proved in some 
 respects unfortunate that these loose and 
 general meanings have been applied by 
 the best writers to the word seisin. 
 But the student will ordinarily avoid 
 
THE FEUDAL SYSTEM AND ITS PRUITf. 381 
 
 § 284. Seisin not allowed to be in Abeyance. — The com- 
 mon law, unaffected by statute, will never permit the seisin of 
 real property to be lost or in abeyance, for an instant. There 
 must always be some one in being, in whom the seisin resides.^ 
 This is a very stringent rule, which has often defeated estates 
 and interests that otherwise would have been valid. If, for 
 example, land were conveyed by deed to A for ten years, and 
 then to a child not in being and his heirs forever, the common 
 law would not allow that any interest be thus created for the 
 child : and the reason was that, since A had only an estate for 
 years, he had no seisin ; tliere could be no seisin, of course, in 
 a child not in being ; and, therefore, such an arrangement, if 
 allowed to be good, would put the seisin in abeyance until the 
 child came into being.^ 
 
 § 285. Only One Seisin at a Time — Adverse Claimants. — 
 There can be only one seisin at a time of a piece of real prop- 
 erty. When two or more persons are in possession, holding it 
 jointly or in common, the seisin is in all of them considered in 
 law as a unit. When two or more are in possession, claiming 
 freehold estates adversely to one another, the seisin resides in 
 the one of them, if any, who has the right to the possession ; ^ 
 and, if no one of them have any right, in the one wlio first ac- 
 quired the possession.* When seisin by any person or class of 
 
 uncertainty by regarding the word as upon whom this writ could be served, 
 
 used in its strict, technical sense, unless the court would have lost jurisdiction 
 
 the context shows that it is being of the land during that time. And the 
 
 employed with a broader and more requirement that there should always 
 
 general signification. It is such a fun- be such an owner and holder was tersely 
 
 damental idea in real -property law that expressed by saying there must always 
 
 it must be frequently employed ; and by be some one who was '" seised to the 
 
 most courts and text-writers it is gener- praecipe " of the land. 1 Prest. Est. 
 
 ally used in its original and narrower pp. * 208, * 255; 1 Atk. Conv. 11. See 
 
 sense. Wallach v. Van Riswick, 92 U. S. 202, 
 
 1 This was because there must 212. 
 always be some one, who was a free- ^ This example illustrates one of 
 
 holder, to render the services due to the important common-law rules relat- 
 
 the lord; and also because there must ing to coutingent remainders, which 
 
 always be a freeholder to answer in will be fully discussed hereafter. See 
 
 any real action which might be brought also 1 Prest. Est. 255. 
 for the recovery of the property. Such ' Barr v. Gratz, 4 Wheat. (U. S.) 
 
 an action had to be brought against the 213; Slater u. Rawson, 6 Met. (Mass.) 
 
 immediate freehold owner of the land, 439; Means v. Wells, 12 Met. (Mass.) 
 
 and the court writ served upon him 356 ; Look v. Norton, 55 Me. 103 ; 
 
 was called the praecipe, this being the Monroe v. Luke, 1 Met. (Mass.) 459, 
 
 first word of the mandatory part of the 466. 
 
 writ, — precipe qitnd reddat, etc. If * But if a person have possession 
 
 there could have been any time during without title, an intent to assert a free- 
 
 wMch there was no freehold owner hold estate in the land must be proved, 
 
382 HOLDINGS OF REAL PROPERTY. 
 
 persons is once proved or admitted, it is presumed to continue 
 till the contrary is shown.^ And, by virtue of modern statutes 
 in most jurisdictions, the rightful owner of land which is un- 
 occupied is deemed to have the possession and seisin thereof^ 
 until it is proved that he has been deprived of them by the 
 actual possession and adverse claim of another person.^ {a) 
 
 § 286. Disseisin. — The act of ousting a pei'son from land 
 and depriving him of seisin is a disseisin. It involves not only 
 dispossession, but also the claim (whether well founded or 
 not) by the disseisor of a freehold estate in the land. . It is the 
 act which lays the foundation for the acquisition of title by 
 adverse possession under modern statutes. In the common 
 law, the disseisor, the wrongdoer, while he may be turned out 
 by the rightful owner, either by actual re-entry by the latter 
 or by process of law, has a defeasible title, and for many pur- 
 poses acts done by him are as effectual as if he were the true 
 owner. The person wrongfully ousted, the disseisee, has only 
 the right to regain his possession and make his title again com- 
 plete by an action at law or by I'e-entry. And one of these 
 remedies — that by re-entry, or regaining his possession — is 
 lost by his failure to exercise it in the proper way and within 
 the proper time, or before the seisin passes from the disseisor 
 to his heir by descent, or to any other person by feoffment and 
 livery of seisin.^ The last-named method of transfer will be 
 
 (a) The New York statute says : " In an action to recover real property . 
 or the possession thereof, the person who establishes a legal title to the 
 premises is presumed to have been possessed thereof, within the time re- 
 quired by law ; and the occupation of the premises, by another person, is 
 deemed to have been under and in subordination to the legal title, unless 
 the premises have been held and possessed adversely to the legal title, for 
 twenty years before the commencement of the action." N. Y. Code Civ. 
 Pro. § 368. See Deering v. Reilly, 167 N". Y 184, 192; LevrisB. N Y. & 
 H. II. Co., 162 N. Y. 220; Archibald v. N. Y. C. & H. R. R. Co., 157 
 N. Y. 574, 579; Arents o. L. I. R Co., 156 N, Y. 1, 9; Doherty v. Matsell, 
 119 N. Y. 640 ; Yates v. Van De Bogert, 56 N. Y. 526, 532. 
 
 in order to show tliat he has the seisin. 108-115. At common law, the disseisee 
 
 Bradstreet w. Iluntiugton, 5 Pet. (U. S.) could exercise his right of entry by 
 
 402 ; Ewing v. Burnett, 11 Pet. (U. S.) actually re-entering upon the land ; or, 
 
 41, 52. if he were prevented from doing this 
 
 1 Brown n. King, 5 Met. (Mass.) peaceably, by going yearly near the land 
 173. and asserting his claim. This latter 
 
 2 1 Stim. Amer. Stat. L. §§ 1400, was designated a "continual cl.iim." If 
 1401. he faileil to assert his right iu either of 
 
 5 Lit. §§ 38.5, 414, 41 7, 422, 593 ; these ways, he might lose the ]iciiver of 
 Digby, Hist. Law R. P. (5th ed.) pp. doing so by the death of the disseisor in 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 383 
 
 explained in the following section. But it is to be added here 
 that the common-law rules and principles as to disseisin and 
 its effects are now largelj^ modified by statutes, which will b<«, 
 explained in treating of titles to real propert}'.^ 
 
 § 287. Livery of Seisin — Grant — Attornment. — The com- 
 mon-law voluntary transfer of seisin of land from one to another 
 was effected by a foi'mal proceeding called " livery of seisin." 
 The parties went upon the land to be conveyed, and in the 
 presence of the other freeholders (Spares curiae) of the manor 
 or of the same lord, the transferor delivered to the transferee, 
 "in the name of seisin of the land," a twig, stone, piece of turf, 
 or other article taken from the land ; or sometimes he took off 
 his coat and placed it upon the purchaser, as a symbol of a 
 clothing of him (investiture) with the seisin and ownership of 
 the property. ^ If for any reason they could not go upon the 
 land, they went within sight of it, and the owner gave the other 
 authority to enter ; and this was effectual to pass the seisin and 
 ownership, provided the transferee actually entered upon the 
 land during the lifetime of the transferor.^ This latter method 
 was designated " livery in law," while the former method, the 
 proceeding upon the land itself, was " livery in fact." * Either 
 ceremony was ordinarily accompanied by a deed or charter of 
 " feoffment," as it was called, which attested tlie livery of 
 
 possession or his alienation of his in- pp. *3I5, *316 ; Thoroughgood's Case, 
 
 terest; and the disseisee would then be 9 Coke, 136 b. "Great importance was 
 
 compelled to resort to legal proceedings attached to the notoriety of the trans- 
 
 to regain a complete title. By the action. That all the neighbors might 
 
 death of the disseisor in possession, and know that A was tenant to B, from the 
 
 the taking of his place by his heir, there fact that open livery of seisin had been 
 
 was said to be a " descent-cast," which made to him, was of the utmost impor- 
 
 " tolled" (or barred) "the entry" by tance to B in order to protect and to 
 
 the . rightful owner. These technical enable him to assert his right as lord, 
 
 principles, which are explained in full For in case of dispute as to the title to 
 
 in the 1 0th chapter of 3 Blackstone's the lands, or the right to services, aids. 
 
 Commentaries, gave rise to much litiga- or reliefs, the fact of this open and 
 
 tion and subtle refinement. Most of notorious livery of seisin enabled the 
 
 them were abolished in England by the lord to appeal to the tribunal before 
 
 statute 3 & 4 Wm. IV. ch. 27 ; and they which, since the reforms of Henry II., 
 
 have been done away with or modified suits relating to land were commonly 
 
 by statutes in this country, so that title decided, — the verdict of twelve legaJes 
 
 is now regained from a disseisor either homines de vicineto, who would know 
 
 by actually getting him out and retaking themselves or have heard from their 
 
 complete possession in a peaceable man- fq,thers the truth of the matter." 
 
 ner, or by the aid of the court through l^igby, Hist. LawR. P. (5th ed ) p. H7. 
 an action of ejectment. '2 Blackst. Com. p. *316; also 
 
 1 See preceding note. authorities cited in preceding note. 
 
 2 Bract, lib. ii. ch. xviii. fol. 39 ; Lit. * 2 Blackst. Com. pp. * 315, * 316. 
 § 59 ; Co. Lit. 48, 49 ; 2 Blackst. Com. 
 
384 HOLDINGS OP REAL PROPERTY. 
 
 seisin and stated the purpose, nature, and extent of the trans- 
 fer. "When a deed was thus employed, the entire transaction 
 was known as a feoffment with livery of seisin.'' And such a 
 transfer, though now almost wholly obsolete, would still be 
 effectual in passing title, in any jurisdiction where it has not 
 been abolished by statute.^ (a) Since a feoffment with livery 
 of seisin operated merely by transfer of possession, it might 
 be wrongfully made by one who had rightful temporary pos- 
 session in behalf of the permanent owner of the land. Hence 
 it was that a tenant for life or for a term of years could, dis- 
 seise the landlord, or succeeding owner of the freehold, by so 
 disposing of the property. His act was known as a tortious 
 feoffment or alienation, which was (and, where statute has not 
 affected it, still is) a cause of forfeiture of the wrongdoer's 
 interest in the pi'operty.^ 
 
 There can be no livery of seisin of things of which there 
 can be no actual manual possession. Therefore incorporeal 
 hereditaments and future interests in corporeal property which 
 the owner can not yet possess have always been incapable of 
 transfer by feoffment and livery. A deed, wiiich is called a 
 " grant," has always been required for their conveyance. 
 Hence the distinction, on which the common law laid much 
 emphasis, between those tilings which " lie in livery " and those 
 which " lie in grant." ^ (5) A grant, not involving livery of 
 
 (a) In New York, feoffment with livery of seisin was abolished by the 
 Eevised Statutes, Jan. 1, 1830. 1 R. S. 7o8, § 136, which is now Real 
 Property Law (L. 1909, ch. 52), § 241. For an illustration of such a 
 transfer here before that date, see McGregor v. Comstock, 17 N. Y. 162, 
 164, 171. See also Sparrow v. Kingman, 1 N. Y. 242, 250, 251 ; Varick n. 
 Jackson, 2 Wend. 158, 203. 
 
 (b) The New York statutes have made the grant the broad general form 
 of deed for conveying both corporeal and incorporeal hereditaments ; and, 
 where other kinds of instruments are authorized for the transfer of free- 
 hold estates, it is declared that they shall be construed as grants. N. Y. 
 Real Property Law (L. 1909, ch. &2), §§ 242-246. 
 
 i2]'oll. & Mait. Hist. Eng. Law Touchst. 228; Digby, Hist. Law R. P. 
 
 (2d ed.), pp. 83-90 ; Digby, Hist. Law (5th ed.) pp. 252-262. Tlie grant of , 
 
 R, P. (5th ed.) pp. 144, 145. iucurporeal liereditaments is a form of 
 
 2 In some of the United States, feoff- contract which was required to be in 
 
 ment with livery of seisin is expressly writing even liclore any statute of 
 
 abolished ; and in many of them it is . frauds was enacted. The grant has 
 
 declared by statute to be unnecessary. grown in favor in modern law, and, in 
 
 1 Stim. Amer. Stat. L. § 1470. many juri.sdictions, has been made cap- 
 
 8 Lit. §§ 415, 416, 611; Co. Lit. able of transferring hereditaments, both 
 
 223 b, 330 b ; Challis, 11. P. 68, 110. corporeal and incorporeal, without any 
 
 ♦ Co. Lit. 9 a, 49 a, 172 a; Shep. livery of seisin. 
 
THE FEUDAL SYSTEM AND ITS FRUITS. 385 
 
 seisin, could not affect any interest in the property except that 
 of the grantor ; and, therefore, it could never take effect as a 
 tortious conveyance.^ When it was a transfer of the grantor's 
 future interest in land, moreover, it was ineffectual at common 
 law without the consent of the tenant who had the present pos- 
 session. Thus, if a life tenant, or a holder for a term of years, 
 were in possession of the land, the landlord or owner of the 
 subsequent interest must obtain liis consent to a grant of the 
 future or permanent interest in the land. This was called tech- 
 nically an " attornment." ^ The necessity for it was done away 
 with in England by the statutes 4 Anne, ch. 16, §§ 9, 10 (1706) 
 and 2 Geo. II. ch. 19 (1729), and in most if not all of the states 
 of this country it is likewise abolished by positive legislation.^ (a) 
 
 (a) In New York, " An attornment to a grantee is not requisite to the 
 validity of a conveyance of real property occupied by a tenant, or of the rents 
 or profits thereof, or any other interest therein. But the payment of rent 
 to a grantor, by his tenant, before notice of the conveyance, binds the 
 grantee ; and the tenant is not liable to such grantee, before such notice, 
 for the breach of any condition of the lease. . . . The attornment of a 
 tenant to a stranger is absolutely void, and does not in any way affect the 
 possession of the landlord unless made either : 1. With the consent of the 
 landlord; or, 2. Pursuant to or in consequence of a judgment, order, or 
 decree of a court of competent jurisdiction ; or, 3. To a mortgagee after 
 the mortgage has become forfeited." N. Y. L. 1909, ch. 52, §§ 248, 224. 
 AvA see O'Donnell v. Mclntyre, 118 N. Y. 156; Austin v. Ahearne, 61 
 if. Y. 6; Fowler's R. P. Law of State of N. Y., pp. 496, 458. 
 
 ' Lit. §§609, 610; 4 Kent Com. dispossession of the landlord, and there- 
 
 p. * 490. fore often caused much difficulty. But 
 
 ^ Lit §§ 551, 567, 568 ; 2 Blackst. it is now uniformly provided by the 
 
 Com. pp. * 71, * 72; 1 Poll. & Mait. above-cited statute that such an attorn- 
 
 Hist. Eng. Law (2d ed.), pp. 346-349. ment shall be void, unless it is made 
 
 ' 1 Stim. Amer. Stat. L. §§ 2008, with the express or implied consent of 
 
 2009. The attornment by a tenant to a the landlord or reversioner, 
 stranger might result in a disseisin or 
 
 25 
 
CHAPTEE XVII. 
 
 HOLDINGS OF REAL PROPERTY IN THE UNITED STATES. 
 
 § 288. Tenure before the Revolu- 
 tion. 
 
 § 289. Alodial holdings since the 
 Kevolution. 
 
 §290. 
 §291. 
 lores. 
 
 The state's rights. 
 
 The Statute of Quia Emp- 
 
 § 288. Tenure before the Revolution. — Lands in this coun- 
 try, which were granted by the crown of Great Britain, were 
 held by feudal tenure before the Revolution. They were 
 granted to the colonial proprietors to hold in free and com- 
 mon socage ; ^ but, as stated above, in most of the charters 
 reference was made to the tenure that prevailed in the county 
 of Kent ; and thus the military and slavish part of feudalism 
 was prevented from ever affecting the lands of the thirteen 
 colonies.'^ (a) Little but the theory of that system ever oper- 
 ated here. The services reserved consisted for the most part 
 of merely nominal rents, and sometimes there was nothing but 
 the incident of fealty to mark the feudal relation. The bur- 
 dens of feudalism, therefore, never materially affected real 
 property in America.^ 
 
 (a) Thus, the habendum clause of such a grant in New York provided 
 that, " the lands shall be held by Palmer, in free and common socage, as 
 of the manor of East Greenwich, in the County of Kent," etc. Delancey 
 V. Piepgras, 138 N. Y. 26, 35. 
 
 1 Story, Const. 1.59; Sulliv. Land. 
 Tit. 35 ; 2 Sharsw. Blackst. Com. p. 77. 
 
 ^ 1 Spence, Eq. Jur. 105, n. See 
 § 246, supra. 
 
 ' 1 Story, Const. Law, § 172; 1 
 Gray's Cas. K, P. 407, note. There 
 has been some discnssion as to the 
 nature of the king's title to lands which 
 were in possession of the Indian tribes, 
 and as to where the seisin resided 
 before the extinguishment of their pos- 
 pesBory right. This has but little bear- 
 
 ing, however, on the growth of our law; 
 for it was held that the Indians had no 
 element of title save that of occupancy, 
 and when that was divested the entire 
 system of English tenure was left free 
 to operate. See Clark ». Williams, 19 
 Pick. (Mass.) 499 ; Martin v. Waddell, 
 16 Pet. (U. S.) 367, 409 ; Fellows i;. 
 Lee, 5 Denio (N. Y.), 628 ; Johnson «. 
 Mcintosh, 8 Wheat. (U. S.) 543 ; Wor- 
 cester V. Georgia, 6 Pet. (U. S.J 515. 
 
HOLDINGS IN THE UNITED STATES. 387 
 
 § 289. Alodial Holdings in most States since the Revolution. 
 - The effects which the Revolution and the consequent change 
 of sovereignty from the crown to the people of the state pro- 
 duced upon holdings of land have been the subject of much 
 learned discussion. Professor Gray undoubtedly stated a cor- 
 rect logical conclusion concerning this matter, when he wrote ; 
 "It does not seem that so fundamental an alteration in the 
 theory of property as the abolition of tenure would be w^orked 
 by a change of political sovereignty." ^ And it is certain that 
 in three of the most conservative of the thirteen original states, 
 — New Jersey, South Carolina, and Georgia, — at least the 
 theory of tenure always was retained and still prevails.^ But 
 it must bo remembered that the feudal system mingled and 
 confused property rights with political authority and responsi- 
 bilities,* and that the charters from the king to the colonial 
 pi'oprietors conveyed together, without making any very clear 
 distinctions between them, both governmental jurisdiction 
 and territorial proprietorship. Political sovereignty and over- 
 lordship of all their lands were thus confused in the minds of 
 the colonists. They made no clear distinction between the 
 king as a feudal lord and the king as a hated despot. And 
 when the despotism had been thrown off, it was natural for 
 them to assume that the feudalism had been done away with. 
 Tliey had brought with them, it is true, and retained in their 
 systems of jurisprudence, most of the common and statute law 
 of the mother country ; but this they would inevitably modify 
 as the nature of the times and the condition of the country re- 
 quired.* And feudalism as a system was out of harmony with 
 the American spirit. We should have expected, therefore, a 
 priori, the result that followed, namely, that most of the old 
 states and all of the new ones would declare by positive statute or 
 
 * Gray, Perpetuities, § 22, citing all realty is held in this state is under 
 
 Sharswood, Law Lect. viii. 207-232 ; the state as original owner. It is with- 
 
 United States v. Repentigny, 5 Wall. out service of any kind, and limited 
 
 211,267; 2 Blackst. Com. (Sharswood 'a only by the right of eminent domain 
 
 ed.) p. 77, note, etc. remaining in the state." 
 
 2 1 N. J. Gen. Stat. (189.5) p. 879 ; ^ Maine Anc. Law (Ist Am. from 
 
 Eev. Stat. S. C. (1873) p. 416 ; Georgia 5d London ed.), pp. 102, 103. 
 Code (1895), §'3051. In New Jersey, * Commonwealth v. Charleston, 1 
 
 while by the above-cited statute tenure Pick. (Mass.) 180; Commonwealth v, 
 
 is retained in theory as to most land, Alger, 7 Cush. (Mass.) 53-82; De 
 
 yet grants from the state are declared Lancey v. Piepgras, 138 N. Y. 26, 36. 
 
 to be alodial. The code of Georgia See Luhrz v, Hancock, 181 U. S. 567; 
 
 (§ 3051) says: " The tenure by which 22 Lawy. Rep. Ann. 501. 
 
388 HOLDINGS OP REAL PROPERTY. 
 
 judicial determination, or would tacitly assume, that all lands 
 within their jurisdictions should be held and owned alodially. 
 In Connecticut, New York, (a) Virginia, West Virginia, Ken- 
 tucky, Ohio, Minnesota, Wisconsin, and California, and probably 
 in some other states, statutory enactments, some in the form of 
 constitutional provisions and others as ordinary legislative 
 acts, have done away with all feudal incidents and made the 
 lands alodial.i In Maryland and Pennsylvania the courts have 
 declared, without the aid of statute, that no tenure exists.^ 
 And it seems to be perfectly safe to assert that, in tlie other 
 states and territories where no affirmative law upon the subject 
 is to be found, it has been assumed, and will always be main- 
 tained, that no real property within their jurisdiction is held 
 under any feudal tenure or incidents.^ 
 
 In a few of the states, however, where all traces of feu- 
 dalism have long since disappeared, that system continued to 
 
 (a) The first constitution of New York (1777), Art. I. §35, adopted 
 for this state all applicable English statutes and colonial enactments down 
 to April 19, 1775, the date of the battle of Lexington. Const. 1846, 
 Art. I. § 17, Const. 1894, Art. I. § 17. By statute passed Oct. 22, 1779, 
 which was made to relate back to July 9, 1776, all rights formerly held by 
 the king in lands in this state were declared to be vested in the people of 
 the state. The act in relation to tenures, which was passed Feb. 20, 1787, 
 and made to relate back generally to July 4, 1776, abolished all tenures by 
 one citizen or subject of another, and thus left tenure possible only by 
 a subject holding immediately of the state. And the Revised Statutes 
 (Part II. ch. i. tit. 1, § 3) which took effect Jan. 1, 1830, did away with all 
 feudal tenures and made all real property within the state alodial. The 
 constitution of 1846 embodied the results of these enactments in Art. I. 
 §§ 12, 13 ; and that of 1894, in Art. I. §§ 11, 12, as follows : 
 
 " All feudal tenures of every description, with all their incidents, are 
 declared to be abolished, saving, however, all rents and services certain 
 which at any time heretofore have been lawfully created or reserved." 
 
 " All lands within this state are declared to be allodial, so that, subject 
 ■only to the liability to escheat, the entire and absolute property is vested 
 in the owners, according to the nature of their respective estates." See 
 also note on New York manor lands, p. 389, note (a), infra. 
 
 1 Conn. Rev. Sts. tit. 18, ch. 6, pt. 1, (Md.) 443, 451 ; Wallace i\ Harmstad, 
 I 1 ; N. Y. Const. (1894) Art. I. §§ 10, 44 Pa. St. 492. See IngersoU v. Ser- 
 11, 12; Va. 10 Hen. St. 50, 64, 65; 1 geaut, 1 Whart. (Pa.) 337. 
 
 Lomax, Dig. 5.39; Ohio, 1 Chase St. » Matthews v. Ward, 10 Gill. & J. 
 
 512, 528; Walker, Amer. Law, § 124; (Md.) 443, 451 ; 4 Kent's Com. pp. *24, 
 
 Wis. Const. (1848) Art. L §14; Mhin. *25. But see Sharswood, Law Lect. viii. 
 
 Const. (1857) Art. I. § 15; Cal. Civ. 207-232; 2 Blackst. Com. ( Sharswood's 
 
 Code, § 762 ; 1 Stim. Amer. Stat. L. ed.) p. 77, note ; Smith, Landl. & Ten. 
 
 §§ 400, 401. (Amer. ed.) 6, note; Gray, Perpetuities, 
 
 2 Matthews v. Ward, 10 Gill & J. § 22. 
 
HOLDINGS IN THE UNITED STATES. 389 
 
 affect some of the real property until a number of years after 
 independence. Thus, in New York, large tracts of land were 
 held as manors, by proprietors under the king, who became 
 mesne lords by parcelling out the land as feudal holdings to 
 inferior tenants. The state took the place of the king after the 
 Revolution ; but it was not until January 1, 1830, that the last 
 vestige of feudalism was removed from those properties and 
 their tenants or owners came to hold them alodially. (a) So, the 
 
 (a) New York Manor Lands. — Large tracts of land in New York, 
 especially in the Hudson and Mohawk valleys, were formerly held as 
 manors, subject to manorial rights and duties. Not only agricultural 
 property, but also sections upon which cities and towns have been erected, 
 were embraced within these tracts. Thus, the county of Albany was 
 incluied within the manor of Rensselaerwyck, which had an area of over 
 1100 square miles. It is necessary for the examiner of titles in such dis- 
 tricts to comprehend that part of the law of New York which has had to 
 deal with these considerable portions of its territory. 
 
 These manors were patented by the King of Great Britain, to propri- 
 etors, to hold of him by perpetual rent in money or in kind, or they were 
 acquired, to be so held; by the king's confirmations of grants made by the 
 States-General of Holland, while the colony was under their control. Many 
 of the patentees or proprietors were called patroons ; and for convenience 
 they will all be described by that word in this note. They were tenants 
 in capite, and had the ordinary manorial privileges, such as the right to 
 hold a court, award fines, and have waifs, estrays, and deodands. 
 
 The patroons subinfeudated their lauds in fee simple ; and their tenants 
 or vassals, to whom they had thus let the lands to hold of themselves, 
 became the tenants paravail. For there is no record of any attempt at 
 further subinfeudation by any of those who held under the patroons. A 
 perpetual rent, in money or in kind, was reserved in these subleases in fee. 
 The rents due from the patroons to the crown, and subsequently to its 
 successor the state, have in general been commuted or released for a gross 
 sum ; and the same is true of some of the rents due from the tenants par- 
 avail to the mesne lords, or patroons. But others of the latter kind are 
 still in existence as charges upon the lands. 
 
 This system of dealing with real property in New York was attacked, 
 both on behalf of the state claiming title to the lands by escheat, and by 
 those who sought to avoid the rents and services due to tlie patroons. 
 The chief grounds upon which the attacks were made were that the king 
 had no power to issue such grants, that they had never been confirmed by 
 the colony or state, and tliat the subinfeudations by the patroons were 
 forbidden and nullified by the Statute of Quia Emptores. The first two of 
 these positions were decided to be untenable (People v. Van Rensselaer, 
 9 N. Y. 291) ; and, while the last objection was at first obviated by hold- 
 ing that the Statute of Quia Emptores was never in force in New York (De 
 Peyster v. Michael, 6 N. Y. 467, 501), it was ultimately settled that that 
 statute has always operated in this state, but that, since it was enacted for 
 the king's benefit, he might waive it, and had in fact waived it in allow- 
 
390 HOLDINGS OF REAL PROPERTY. 
 
 Virginia statute, which abolished feudal tenures, was not passed 
 until 1779,^ and that of Connecticut was first enacted in 1793.* 
 
 ing the patroons to subliifeudate. But the patroons,' who were mesne 
 lords, were bound by the statute ; and therefore their tenants did not and 
 could not subiiifeudate. Van Rensselaer c. Hays, 19 N. Y. 68. The 
 outcome, then, of a long line of cases upon these questions is the deter- 
 mination that, before the Revolution, there were three yalid interests or 
 ownerships in these manor lands, namely, (1) that of the King of Great 
 Britain, as lord paramount, {S) that of the patroons, as mesne lords, and 
 (3) that of the tenants paravail, who held under the patroons. 
 
 The first change iu this system was brought about by the Revolutionary 
 War, which substituted the people of the state as lord paramount iu the 
 place of the king. This was expressly declared to be the result by the 
 statute of Oct. 22, 1779, § 14, which was made to relate back to the ninth 
 day of July, 1776. 1 Jones & Varick, 44; De Peyster v. Michael, 6 
 N. Y. 467, 503. The next change was that the Statute of Tenures, so 
 called, which was enacted Feb. 20, 1787, abolished military tenures and 
 all their incidents from August 30, 1664, changed all tenures of estates of 
 inheritance into free and common socage from July 9, 1776, put an end 
 to all feudal tenure between one citizen and another, and substituted in 
 its place a tenure between each landholder and the people of the state in 
 their sovereign capacity. This did away with the patroons, as mesne lords, 
 and caused those who had been their tenants to hold immediately of the 
 state. 1 Rev. Laws, 70 ; De Peyster v. Michael, 6 N. Y. 467, 503. And, 
 finally, the Revised Statutes, which went into operation Jan. 1, 1830, 
 took away the position of the state as lord paramount, abolished all man- 
 orial rights as such, swept away all feudal tenures, and made every piece 
 of land within the state alodial, " so that, subject only to the liability to 
 escheat, the entire and absolute property is vested in the owners, according 
 to the nature of their respective estates." Rev. Stat. Part II. ch. i. tit. 1, 
 § 3 ; N. Y. Const. 1846, Art. I. § 13 ; N. Y. Const. 1894, Art. I. § 2. In 
 summary, there was never any time in. the history of New York when 
 conveyances between individuals could create a tenure, except in this 
 special case of grants, from the crown, of power to erect and maintain 
 manors. As to such manor lands, the crown was superseded by the state 
 on the ninth day of July, 1776, the intermediate lords as such disappeared 
 on the twentieth day of February, 1787, and the state ceased to be the 
 lord, and the lands that had been manorial and feudal became alodial on 
 the first day of January, 1830. 
 
 The grants in fee of these manor lands, by the patroons to their tenants, 
 were ordinarily made on two kinds of conditions, namely, (i) restraints 
 on alienation, which provided that the tenants should not sell their lands 
 without paying a fine, or a certain portion of the price, as one-quarter, one- 
 tenth, etc., to the patroons, which latter were called quarter-sales, tenth-sales, 
 etc., and (S) the reservation of perpetual rents, payable in money or in 
 kind. For breach of either of these, the patroon, as grantor, or feoffor, 
 usually reserved the right to re-enter and enforce a forfeiture. The first 
 
 1 Va. Stat. 1779, ch. 13. 2 Conn. Stat. Oct. 1793, Stat. 1821, 
 
 tit. 56, ch. 1, § 1, note. 
 
HOLDINGS IN THE UNITED STATES. 391 
 
 § 290. The State's Rights. — The word " alodial " means free 
 from tenure ; but it does not imply exemption from govern - 
 
 class, " (1)," of these forms of restrictions has been repeatedly held to have 
 been invalid. And the constitutions of the state have explicitly declared 
 that, " All fines, quarter-sales, or other like restraints upon alienation, re- 
 served in any grant of land hereafter to be made, shall be void." Const. 
 1846, Art. I. § 15 ; Const. 1894, Art. I. § 14 ; De Peyster o. Michael, 6 
 N. Y. 467, 504. But the second class, " (2)," of conditions — the reserva- 
 tion of rents and services certain — was excepted from the operation of the 
 statutes which destroyed the feudal tenures of the lauds (being vested prop- 
 erty interests, they must be so excepted under the United States Constitu- 
 tion), and such perpetual rents and conditions, giving rights of re-entry and 
 forfeiture for their non-payment, may still be legally created as to all lands 
 which are not agricultural in character. They could also be legally made 
 as to agricultural lands until 1846, when the constitution of that year pro- 
 vided that, " No lease or grant of agricultural land, for a longer period 
 than twelve years, hereafter made, in which shall be reserved any rent 
 or service of any kind, shall be valid." Const. 1846, Art. I. § 14 ; Const. 
 1894, Art. I. § 13. A brief statement is here required, as to the nature of 
 those perpetual rents. 
 
 Such of the rents as were reserved by the crown in granting the 
 manors to the patroons were rents-service. The king, becoming as he 
 did the feudal lord, retained the possibility of re-acquiring the lands, if 
 any of the conditions upon which they were granted were broken (this 
 reversionary right in him being called technically a possibility of reverter), 
 and the rents reserved by him became incident to this reversionary inter- 
 est, and were therefore rents-service. See § 102, supra. The rights to dis- 
 train and to re-enter and take back the property for non-payment, being 
 both implied as incidents to rent-service, passed with these rents to the 
 people of the state, when they acquired the rights and property of the 
 crown on the ninth day of July, 1776. And, for default of payment, and by 
 virtue of the rights so implied and acquired, some of the manor lands were 
 subsequently taken away from their owners and disposed of by the state. 
 Laws, 1819, ch. 222; Laws, 1824, ch. 225; Laws, 1825, ch.251; De Lancey 
 V. Piepgras, 138 N. Y. 26, 88-43. 
 
 The rents which the patroons reserved, in granting lands in fee to their 
 tenants, were, theoretically at least, of the same character as those reserved 
 by the king — rent-service — if they were created before Feb. 20, 1787, 
 J. e., before the time when the patroons could no longer subinfeudate or 
 stand as mesne feudal lords to their tenants. The statute of that date 
 made it impossible for one citizen or subject to reserve for himself any 
 reversionary interest whatever when he conveyed real property in fee 
 simple to another, and, therefore, upon such a conveyance, no rent-service 
 could be reserved. But the rents and services certain, then in existence 
 and owned by the patroons, and those whioh were subsequently created in 
 conveyances of realty in fee were all recognized and preserved as charges 
 upon the lands, and as practically rents-charge they have been sustained 
 and made collectible and enforcible according to the terms of the cove- 
 nants by which they were created. In a mere rent-charge, as distinguished 
 from a rent-service, no right of distress, or of re-entry, is ever implied by 
 
392 HOLDINGS OP REAL PROPERTY. 
 
 mental rights and control. Every man holds his real property, 
 however absolute his interest therein, subject to the state's 
 
 the law. But, in all cases of the perpetual rents which were created by 
 the patroons, and which have come before the courts, these rights were 
 reserved by express covenants and conditions,- if the rents should not be 
 duly paid, or the services duly rendered. And, after some vacillation, the 
 courts decided that such express stipulations were enforcible against the 
 delinquent landowners by the patroons or by their heirs or assigns. 
 
 There has been much discussion and difference of opinion as to whether 
 the assignees of these rents — the devisees, purchasers, etc., of the oiigiual 
 ownei's — could enforce these covenants and conditions, especially the con- 
 dition for re-entry upon the land in case the rents were not paid. The diffi- 
 culty grew out of the ordinary common-law rule that a condition annexed 
 to a conveyance in fee can not be enforced, nor can re-entry be made for its 
 breach, by any one but the grantor or his heirs. Upington v. Corrigaii, 
 151 N. y. 143. It wcis also strenuously contended that, even as covenants, 
 stipulations for paying such rents, for distress, etc., could not run with the 
 land or with the rent, nor be available to the assignees of either, or enforcible 
 by them. But it has been definitely and wisely decided that such rents, 
 charged upon the land, are incorporeal hereditaments, issuing out of and 
 binding the land, and that, without the aid of any statute, the covenants 
 and conditions affecting them run in both directions, — with the rent in the 
 hands of the assignee, so as to enable him to sue on and enforce the cove- 
 nants and conditions, and with the land itself in the hands of its pur- 
 chaser, so as to render him liable to have them enforced against him. 
 Van Rensselaer v. Hays, 19 N. Y. 68, 86 j Van Rensselaer v. Read, 26 N. Y. 
 558, 570 ; Cruger i-. McLaury, 41 N. Y. 219 ; Upington v. Corrigan, 151 
 N. Y. 143, 150. All remedy by distress was abolished for the future by 
 statute enacted May 13, 1846 (L. 1846, ch. 274); but the other remedies 
 reserved by the terms of the gi-ant of the rent still rernain for the grantee 
 and his heirs and assigns. This statute practically changed these per- 
 petual rents into rents-seek. 
 
 These results have been arrived at chiefly as common-law principles 
 affecting the perpetual rents reserved in New York upon grants (or so-called 
 leases) of lands in fee. Statutes have also had much to do with them. 
 And, although it is now settled that legislation was not required for the 
 benefit of the assignees of such rents, yet much law has clustered around 
 these statutes, and they should be briefly examined. In 1774 (L. 1774, 
 ch. 14), the colonial legislature passed an act making these rents, arrears 
 of which had not been paid for three years within the twenty years preced- 
 ing, collectible as were rents reserved on leases for years. This act was a 
 repetition of the English statute 4 Geo. II. ch. 28. By statute, ch. 7, 
 Law of 1783, entitled, " An act to enable grantees of reversions to take ad- 
 vantage of conditions to be performed by lessees," which statute followed the 
 terms of that of 32 Hen. VIII. ch. 34, it was provided that the grantees and 
 assignees of either the lease or the reversion, when the lease was less than 
 in fee, should have the same remedies, by entry, action, distress, or other- 
 wise, as their grantors or lessors had or might have had. And, by ch. 98, 
 Laws of 1805 (April 9, 1805), these provisions were extended as well to 
 grants or leases in fee, reserving rent, as to leases for life or for years. 
 
HOLDINGS IN THE UNITED STATES. 393 
 
 right of eminent domain, and to the right of the government to 
 regulate the use of it by such rules and limitations as the public 
 
 This law of 1805 was repealed by Act of April 14, 1860 (L. 1860, oh. 396), 
 as to all conveyances or leases in fee made before April 9, 1805, or after 
 April 14, 1860 ; but, since the rights of the assignee of a rent-charge did 
 not really depend on that statute (though some early decisions rested 
 upon it, i. e., Van Rensselaer v. Ball, 19 N. Y. 100, and see Van Rensse- 
 laer V. Hays, 19 N. Y. 68 ; Cornell v. Lamb, 2 Cow. 652), but on the 
 common law, the repeal of the statute did not affect those rights. And, 
 even if it could have done so, they have been held to be preserved by 
 section 3 of chapter 274, Laws of 1846, which expressly recognizes the 
 assignees' interests in connection with such leases and rents. AH of this 
 legislation, affecting assignees of rents, and of the lands out of which the 
 rents accrue, is now summarized in § 223 of the New York real property 
 law (oh. 52, L. 1909), which is as follows : " The grantee of leased real 
 property, or of a reversion thereof, or of any rent, the devisee or assignee 
 of the lessor of such a lease, or the heir or personal representative of 
 either of them, has the same remedies, by entry, action, or otherwise, for 
 the non-perfovmanoe of any agreement contained in the assigned lease 
 for the recovery of rent, for the doing of any waste, or for other cause of 
 forfeitm-e, as his grantor or lessor had, or would have had, if the reversion 
 had remained in him. A lessee of real property, his assignee or personal 
 representative, has the same remedy against the lessor, his grantee or 
 assignee, or the representative of either, for the breach of an agreement 
 contained in the lease, that the lessee might have had against his immediate 
 lessor, except a covenant against encumbrances or relating to the title or 
 possession of the premises leased. This section applies as well to a grant or 
 a lease in fee, reserving rent, as to a lease for life or for years ; but not to a 
 deed of conveyance in fee, made before the ninth day of April, eighteen hun- 
 dred and five, or after the fourteenth day of April, eighteen hundred and sixty." 
 Since, as was above explained, it has been held that without the aid of 
 this statute the assignees of both parties to perpetual rents have all the 
 rights and remedies of their assignors, the sentence of the statute which is 
 here printed in italics was not required, and has in fact no operation ; and 
 the last clause of that sentence does not interfere in any way with the reme- 
 dies for the non-performance of the covenants or conditions affecting such 
 rents. 
 
 The remedies incident to such rents as these, including the recovery of 
 their fruits or proceeds, are fully discussed in §§ 104, 114, supra, and the 
 New York notes thereto. It simply needs to be added here that §§ 2231- 
 2265, N. Y. Code Civ. Pro., which provide summary proceedings for the 
 removal of tenants for years, tenants at will, etc., for non-payment of rent, 
 do not affect these perpetual rents, nor afford any remedy because of non- 
 performance of their accompanying conditions or covenants. 
 
 The general results, as to these perpetual rents, may be summarized 
 as follows: As reserved in conveyances of the manor lands, they were 
 valid as rents-service before Feb. 20, 1787, and after that date and until 
 1846 as rents-charge ; the statute of 1846 (oh. 274), which removed the right 
 to distrain for their proceeds, changed them into rents-seek; they may 
 still be reserved as rents-seek in conveyances in fee of land which is not 
 
394 HOLDINGS OF REAL PROPERTY. 
 
 good may require; and, if the owner of an inheritable interest 
 die without heirs and without disposing of it, it passes by 
 escheat to the state. Escheat here, however, has no feudal 
 character, but is a right established in modern jurisprudence, 
 which is similar to the feudal principle of the same name. 
 Each state, hy virtue of its sovereignty, is deemed to have the 
 original and ultimate property in ail the lands within its juris- 
 diction.^ (a) So the duty of allegiance to the state, which in 
 feudal times was often confused with fealty, is obligatory upon 
 every citizen ; but this has now no necessary connection with 
 the ownership of land.'' 
 
 § 291. The Statute of Quia Emptores. — While feudal ten- 
 ures continued to exist in this country, the Statute of Quia 
 Umptores, which forbade subinfeudation by any but the king's 
 
 agricultural; they may be enforced and dealt with by and against the heirs 
 and assignees of the original parties to the contracts or conventions by 
 which they were created ; the remedies available to such parties and their 
 heirs and assignees are fully regulated by statutes, which change and 
 ameliorate the common-law rules relating to rent. 
 
 The study of the decisions upon the manor lands of New York, and 
 the rents and sei'vices associated with them, throws much light on the 
 feudal system, especially in its operation upon the law of real property 
 in this country. Some of such decisions are : People v. Van Rensselaer, 
 9 N. Y. 291; Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. 
 Ball, 19 N. Y. 100; De Peyster v. Michael, 6 N. Y. 467; Van Rensselaer 
 V. Dennison, 35 N. Y. 393; Van Rensselaer v. Jewett, 2 N. Y. 135, 141 ; 
 Van Rensselaer v. Read, 26 N. Y. 558; Van Rensselaer v. Slingerland, 
 26 N. Y. 580 ; Van Rensselaer v. Snyder, 13 N. Y. 299 ; Van Rensselaer 
 V. Barringer, 39 N. Y. 9 ; Hosford v. Ballard, 39 N. Y. 147 ; Cruger v. 
 MoLaury, 41 N. Y. 219 ; Plumb v. Tubbs, 41 N. Y. 442 ; De Lancey v. 
 Piepgras, 138 N. Y. 26; Upington v. Corrigan, 151 N. Y. 143; Livingston 
 V. Miller, 11 N. Y. 80; Cornell v. Lamb, 2 Cow. 652; Van Rensselaer v. 
 Jones, 5 Denio, 449 ; Van Rensselaer's Executors v. Gallup, 5 Denio, 454 ; 
 Van Rensselaer v. Bouton, 3 Keyes, 260 ; Van Rensselaer v. Jones, 2 Barb. 
 643 ; Tyler v. Heidorn, 46 Barb. 439, 48 N. Y. 671 ; Cagger v. Lansing, 
 4 Hun, 812, 64 N. Y. 417; Main v. Davis, 32 Barb. 461 ; Van Rensselaer 
 V. Bonesteel, 24 Barb. 865. 
 
 (a) The New York Constitution, Art. I. § 10 (Const, of 1894), declares 
 that, " The people of this state, in their right of sovereignty, are deemed 
 to possess the original and ultimate property in and to all the land within 
 the jurisdiction of the state ; and all lands, the title to which shall fail 
 from a defect of heii-s, shall revert or escheat to the people." In the 
 former constitutions this was Art. I. § 11. 
 
 1 3 Kent's Com. pp. *512-*514; 1150; Chase's Blackst. pp. 286, 287, 
 1 Stim. Amer. Stat. L. §§ 400, 401, note. 
 
 2 2 Kent's Com. pp. »44-»50. 
 
HOLDINGS IN THE UNITED STATES. 395 
 
 tenants in chief with his permission, was in operation in all 
 the states except South Carolina and probably Pennsylvania.^ 
 The abolition of feudal tenures, of course, made feudal sub- 
 infeudation an impossibility. And hence it has been cogently 
 argued that it is idle to assert that that famous statute still 
 operates in any state but the three in which the theory of feu- 
 dalism is retained.^ So far as the mere letter of the statute and 
 its direct destruction of subinfeudation are concerned, this is 
 unquestionably correct. But, in allowing " every freeman to 
 sell at his own pleasure his lands and tenements, or part of 
 them," the statute, by necessary implication, removed practi- 
 cally all power from a grantor of an estate in fee simple to 
 restrain the right of alienation by his grantee. " The grantor's 
 right to restrain alienation immediately ceased, when the 
 statute put an end to the feudal relation between him and his 
 grantee ; and no instance of the exercise of that right, in 
 England, since the statute was passed, has been shown, or can 
 be found, except in the case of the king, whose tenure was not 
 affected by the statute, and to whom, therefore, it did not 
 apply." ^ That landmark of legislation, therefore, must be 
 understood to have put two leading negative principles into the 
 law of real property, namely, (a) the forbidding of subinfeudation 
 by any but the king's tenants, and (b) the prohibition of restraints 
 upon alienation in conveyances in fee simple. While the former 
 of these necessarily disappeared with feudal tenures, the latter 
 has remained operative as a powerful factor in the development 
 of American jurisprudence. In some of the states, it has been 
 put into modern statutory form.* (a) 
 
 In a word, then, in all of the states of this country except 
 Pennsylvania and South Carolina, the Statute of Quia Umptores 
 has always been in force, restraining subinfeudation wliile 
 feudalism continued, and continually maintaining freedom of 
 alienation of estates in fee simple. But it is to be carefully 
 noted here, that it does not affect in this manner any convey- 
 
 (a) The Statute of Quia Emptores has always operated as a principle in 
 New York, and is still a part of its -law. Const. 1894, Art. I. § 14; Van 
 Rensselaer v. Hays, 19 N. Y. 68; De Lancey v. Piepgras, 138 N. Y. 26, 39 ; 
 note on Manor Lands of New York, p. 889, note a, supra. 
 
 1 Gray, Perpetuities, §§ 26-28. ' N. Y. Const. (1894) Art. I. § U; 
 
 2 Gray, Perpetuities, §§ 24, 25. 1 N. J. Gen. Stat. (1895) p. 879; Gray 
 « De Peyster v. Michael, 6 N. Y. 467, Perpetuities, §§ 20-28. 
 
 600. 
 
396 HOLDINGS OP SEAL PROPERTY. 
 
 ances but those in fee simple. He who owns an interest in 
 realty, and carves out of it and conveys away a lesser estate 
 than his own, as one for life or for years, has a reversion left 
 In himself, and, as the owner of such reversion, may curtail or 
 preclude the right of the alienee to dispose of the interest thus 
 conveyed to him.^ 
 
 1 The Statute of Quia £m/)torcs itself time coining." Digby, Hist. Law R. P. 
 says: " And it is, to wit, that this statute (5th ed.) p. 23S; De Lancey v. Fiep- 
 exteudeth but only to lands holden in gras, 138 N. Y. 26 ; Upington v. Corn- 
 fee simple, and that it extendeth to the gan, 151 N. Y. 143. 
 
BOOK III. 
 
 ESTATES IN REAL PROPERTY. 
 
 Treated in 
 
 Part I. — As to Courts. 
 
 Part II. — As to Quantity. 
 
 Part III. — As to Number and Connection op Owners. 
 
 Part IV. — As- to Qualified ok Unqualified Nature. 
 
 Part V. — As to Time for Enjoyment to Begin. 
 
CHAPTER XVIII. 
 
 ESTATES. — EXPLAINED AND CLASSIFIED. 
 
 § 292. Estates defined and il- I § 293. Classification of estates, 
 
 lustrated. I 
 
 § 292. Estates defined ana illustrated. — The interest that 
 one has in lands, tenements, or hereditaments is his estate 
 therein. If we use the word "property" here to denote the 
 object of ownership, — the piece of corporeal or incorporeal 
 realty, — the interests which one has in it is his estate, his 
 status, condition or circumstances in which he stands with 
 regard to that property.^ The acre of land, the house and lot, 
 the right of way, or the ferry right is the ultimate real thing, 
 which may be the object of various different interests and 
 ownerships ; and in this one thing one man may have an estate 
 for a term of years, another for life, and another in fee simple. 
 It may be owned by a number of people, as joint tenants or 
 tenants in common ; one person may have tlie right to present 
 enjoyment of it, while the interest of another is such that he 
 must wait for his enjoyment of it till some time in the future ; 
 the estate of this owner may be certain and absolute, while 
 
 1 The deyelopment of "estates" is with regard to the land, and so had 
 
 explained in Maine's Anct. L. ch. viii. acquired the power, which is still his, of 
 
 In West's Symboliography, §31, it is regaining the possession of the specific 
 
 said : " An estate, status, dominium, pro- land leased if he were evicted during 
 
 prietas, is that right and power whereby the term, he was then, for the first time, 
 
 we have the property or possession of said to have an estate for years in the 
 
 things, that is, whereby we be owners land. He had become the owner of 
 
 or possessors thereof." The right of something more than a mere contractual 
 
 one who held land for a term of years right. He had become the owner of an 
 
 gradually strengthened, in the common interest in the land itself, a dominium, a 
 
 law, from a mere possession, which the proprietas, which the law recognizes as 
 
 landowner might legally terminate at such and enables him to retain. The 
 
 any moment, to a fixed interest, which study of this matter may aid the student 
 
 the termor could retain for the period in acquiring a precise idea of this term 
 
 designated in the lease, even against " estate." See Digby, Hist. Law R. P. 
 
 the will of the landlord. When the (5th ed.) pp. 176-181. 
 tenant had attained to this last position 
 
400 ESTATES IN REAL PROPERTY. 
 
 that of the other is conditional or defeasible ; one man may 
 have in it an interest which is recognized and protected by a 
 court of law, and the right or estate of another may be such 
 that no cognizance or enforcement of it can be had save in a 
 court of equity. These various interests or estates in the prop- 
 erty are at once seen to be different from the holdings of it, and 
 from the titles to it, or the modes by which it may be acquired. 
 A man may be known as owning a certain farm for life, or for 
 himself and his heirs, without regard to how he obtained it, the 
 validity of his title, or whether his holding is alodial or by 
 tenure under a superior lord. His estate in the land is a dis- 
 tinct thing, with which the law deals as such. And it is 
 around estates that the greatest part of the law of real property 
 has clustered.^ 
 
 The existence of estates in real property is the most im- 
 portant distinguishing feature between it and personalty. 
 While there may be created several separate and distinct 
 interests in one chattel, whether personal or real, this is not 
 commonly done, because the article is only temporary and in 
 a short time will cease to exist. The owner of it is ordinarily 
 thought of and treated as owning absolutely the article, such 
 as his watch, or horse, or plough, and not merely as having 
 an estate therein.^ But the law contemplates a parcel of 
 land, or usually a rent-charge issuing out of it, as something 
 which will continue in existence forever, and therefore recog- 
 nizes the probability as well as the possibility of many and 
 
 1 Originally, and probably as late as of the word must be disregarded, in 
 
 the middle of the thirteenth century, most instances, and its meaning must 
 
 the word " estate " was used in England be confined to the interest which one lias 
 
 to describe the personal condition uf the in lauds, tenements, or hereditaments, 
 feudal tenant — his status. But, under ' Distinct aud separate interests in 
 
 the feudal system, this personal position a personal chattel are sometimes cre- 
 
 was so closely connected with his pro- ated by a bailment of it ; and, by means 
 
 prietary rights that the transition to the of subleases, the ownership of chattels 
 
 use of the word to denote his interest in real is frequently divided into different 
 
 real property was natural and easy. 2 parts for different owners. There is 
 
 Poll. & Mait. Hist. Eng. Law (2d ed.), no legal prohibition against the crea- 
 
 pp. 10-13; 2 Blackst. Com. p. *163. tion of many different estates in the 
 
 The same word is often popularly em- same chattel of any kind. 1 Leake, 4 ; 
 
 ployed to denote generally the property Gray, Perpetuities, §§71-97. But the 
 
 which one owns. Thus, a dece.ised per- important fact for the lawyer is that, 
 
 son is said to have left a " large estate," because of the temporary character of 
 
 or a " complicated estate ; " and execu- personal property, this is not done to 
 
 tors, administrators, and trustees are any large extent, and rarely causes any 
 
 said to manage or settle the " estates " of the complicated questions which arise 
 
 entrusted to them. But, in dealing with from the existence of numerous estates 
 
 the law of real property, these meanings in real property. 
 
ESTATES. — EXPLAINED AND CLASSIFIED. 401 
 
 varied estates connected with it and belonging to different 
 owners. The subtle reasoning of feudal and scholastic ages, in 
 dealing with these possibilities, brought into the law of real 
 property many niceties and technical refinements which have 
 never had any material influence upon personalty. The fine 
 distinctions and technical results, however, which are involved 
 in the present law of real property, are always logical ; and, as 
 a result of modern statutes, most of them which remain are of 
 practical importance and utility. 
 
 § 293. Classifications of Estates. — The vast influence of 
 courts of equity in the moulding of English jurisprudence is 
 most conspicuously manifested in the new species of interests 
 in real property which they have created and preserved. By 
 the operation of the maxim, " Equity follows the law," these 
 new and important interests have generally been made subject 
 to the same incidents and principles that govern the older 
 estates of purely common-law cognizance. It is because those 
 incidents and principles can be most satisfactorily studied as 
 now generally applicable to all estates alike, wliether legal or 
 equitable, and because in dealing with tlie other classifications 
 of estates the equitable interests must be frequently referred 
 to, that it has been decided to depart, in this treatise, from the 
 time-honored custom of discussing estates first with reference 
 to their quantity .^ Therefore they will be examined in Part Z, 
 of this book as divided, with regard to the courts in which they 
 are dealt with, into 1. legal estates and 2. equitable estates. 
 The second basis of classification {Part U.') will be with refer- 
 ence to their quantity, or the extent of their owners' interest ; 
 the third {Part ZZZ), with regard to the number and connec- 
 tion of their owners ; the fourth {Part IV.), with regard to their 
 qualified or unqualified nature, and the fifth {Part V.), with 
 regard to the time when tlieir owners may begin to occupy and 
 enjoy the property or object of ownership. It is believed that 
 this order of discussion will both conduce to clearness and 
 avoid the necessity for repetition to any material extent. 
 
 ^ The suggestion is also ventured They can be intelligibly studied alone, 
 
 that, of all the different interests in without regard to the other forms or 
 
 lands, tenements, and hereditaments, classes of estates, the same as can a 
 
 equitable estates, so called, come the rent, a franchise, or an easement in 
 
 nearest to being a distinct species of gross ; and a thorough knowledge of 
 
 property, — the nearest to being in and them is of great assistance to the under- 
 
 of themselves objects of ownership, as standing of the other interests in real 
 
 distinguished from the ownership itself. property. 
 
 26 
 
PART I. 
 
 ESTATES CLASSIFIED AS TO THE COURTS THAT 
 RECOGNIZED THEM. 
 
 1. Legal Estates. 2. Equitable Estates. 
 
 2. EQUITABLE ESTATES. 
 CHAPTER XIX. 
 
 (1) USES. 
 
 § 294. Legal estates distinguished § 299. Definition of use and trust, 
 
 from equitable estates. . § 300. The requisites of a use. 
 
 § 295. Prototypes of the use. § 301. Characteristics of the use 
 
 § 296. Growth of the use in the before the Statute of Uses. 
 
 common law. § 302. The Statute of Uses. 
 
 § 297. Development of the use § 303. How the Statute of Uses 
 
 into an equitable estate. was interpreted and construed. 
 
 § 298. Early distinctions between § 804. How the use was retained 
 
 a use and a trust. under the name of a trust. 
 
 § 294. Legal Estates distinguished from Equitable Estates. — 
 The earliest cognizance and control of estates in lands, tene- 
 ments and hereditaments were, of course, in the courts of 
 common law. Those courts first dealt with interests in realty 
 in a plain, direct manner, suited to the simplicity of the times. 
 And the legal estates, which they knew and protected, are, in 
 the main, the strictly legal estates which are recognized by the 
 courts of law of to-day. They were and are the ordinary, well- 
 known interests in realty, for which the owners have, by and 
 for themselves and without looking to any trustees or other 
 holders for them, their remedies at law for any wrongful taking 
 of or injury to the lands, tenements, or hereditaments. At 
 first such estates answered all the requirements of business 
 and commerce. Before the reign of Edward III., and possibly 
 down to a somewhat later date, they were the only forma 
 
EQUITABLE ESTATES. — USES. 403 
 
 of estates in realty, which had been known to any system of 
 law.^ 
 
 But the rigidity of procedure of the common-law courts, 
 their strict and inflexible adherence to precedents, the strin- 
 gency of feudal exactions and the restraining force of a number 
 of acts of parliament gradually impeded the full enjoyment of 
 these legal estates, especially by restricting their alienability 
 and thus impairing their utility as articles to be employed in 
 the growing business of the realm. It was to get rid of these 
 burdens, and in particular to enable the ecclesiastical corpora- 
 tions to evade the Statutes of Mortmain, which forbade them 
 to take title to land, that the system of uses and trusts grew 
 into prominence and became the most important forms of 
 equitable estates.^ And it was to mitigate the hardships, which 
 the inelasticity of common-law procedure placed upon mort- 
 gagors of real property, that the so-called equity of redemption 
 was invented and enforced for their benefit, by the Court of 
 Chancery, and grew into the other important form of equitable 
 estates. Each of these species of equitable estates will be 
 separately considered. It will thus appear that the equitable 
 estates are (1) uses, (2) trusts, and (3) equities of redemption, and 
 that all other estates — the more ordinary ones, which have not 
 been developed by a court of equity, — are legal. 
 
 ^ 295. Prototypes of the Use. — The origin of the use in real 
 property has been the subject of much historical research and 
 many learned discussions. Probably it can not be distinctively 
 traced to any one system of early jurisprudence, nor precisely 
 assimilated to any law or custom of any people or peoples other 
 than the Anglo-Saxon race. Rooted in practices which are 
 common to all civilized communities, it grew up in England as a 
 product peculiar to that island. Those practices are the natural 
 and almost necessary employment of agents, confidants, or fidu- 
 ciary persons of some kind, in holding and managing property. 
 And that product is the vast system of uses and trusts which 
 now involves so important a part of English and American 
 law. 
 
 It is because every system of jurisprudence, as soon as it 
 becomes at all complex, will employ agents, third parties and 
 intermediaries of varying types and orders, that so many things 
 
 M Leake, 7; Digby, Hist. Law Digby, Hist. LawR. P. (.^tUed.) p. 316; 
 R. P. (5th ed.) pp. 43, 60, 315-326. 2 Poll & Mait. Hist. Eng. Law (2d ed.), 
 
 '2 Blackst. Com. pp. * 268-* 272; pp. 228-239. 
 
404 ESTATES IN BEAL PROPERTY. 
 
 analogous to the English use are to be found in other bodies 
 of law. A few of those things, which may have supplied sug- 
 gestions for the originals of our uses and trusts may profitably 
 be noted. One of them was the usus of the Roman law, from 
 which it was long thought that the English use took its name. 
 But it is now known that our word is derived from the Latin 
 opus, which in old French is os or oes, and that the earliest 
 transfers of this kind were to one person " ad opus " (to the 
 use) of another.^ The Roman usus was simply the right to 
 the natural use of something, owned by another, which right 
 belonged to some definite individual and his family and was 
 as a rule not transferable. The owner held the article so tliat 
 he who had the usus and his family personally might take only 
 so much of the fruits or products as was necessary for their 
 daily consumption. They had no title, either legal or equitable, 
 but only this restricted privilege of enjoying the products of 
 another's property.^ 
 
 Another suggestion for the originators of the English use 
 may have been found in the Roman idea of usus-fructus, which- 
 was a right broader than tlie mere usus in that it gave the 
 right to the temporary enjoyment of a thing, without restricting 
 the amount to daily needs, and could be sold or otherwise 
 transferred to another. But tlie civil law never created any 
 binding obligation in such a case, whereby the owner of the 
 article could be compelled to hold it in trust for the benefit of 
 the usufructuary; and so it did not produce the beneficial 
 results which are caused by our uses and trusts. It made the 
 relation between the parties more like that of a temporary 
 owner — such for example as a life tenant — and the rever- 
 sioner in fee. ^ 
 
 Probably the most pertinent suggestion and closest analogy • 
 furnished by the civil law were found in its fidei-commissa. In 
 that law there were many restrictions on successions and lega- 
 cies. For example, a testator could not will property to one 
 who was not a Roman citizen ; nor, after duly devising property 
 to one person, could he ordinarily name another devisee to 
 succeed the one first named ; i. e., the first beneficiary must take 
 the absolute legal and beneficial ownership of the property and 
 the testator could control it no further. To avoid such difficul- 
 
 1 2 Poll. & Mail. Hist. Eng. Law « Ibid. ; Tompkins & Jenkyn's Mod- 
 
 (ad ed.), p. 228. em Roman Law, 173, 174. 
 
 * Just. Inst. Lib. ii. tit. iv and t. 
 
EQUITABLE ESTATES. — USES. 405 
 
 ties, there arose the practice, in the later period of the Repub- 
 lic, of a testator "instituting an heir" and at the same time 
 directing him to dispose of all or some of the property in a 
 particular manner. The trust or confidence thus reposed in 
 the designated heir was called fidei-commissum?- For a long 
 time there was no means of enforcing the performance of these 
 commissions. In the early part of the reign of Augustus, how- 
 ever, that monarch directed the consuls to compel the carrying 
 out of the otherwise imperfect duties thus imposed; and finally 
 a praetor fidei-commi&sarius was appointed to take charge of 
 such trusts and enforce the proper obligations which they had 
 created.^ But this system of controlling property by will never 
 resulted, as did the English use, in the creation and control of 
 an equitable estate separate and distinct from the legal title 
 and ownership. It was simply a means of compelling the 
 transfer of the only known estate — the legal one — ■ to the 
 person to whom it justly belonged.^ It was a successful de- 
 vice, however, for avoiding obstacles which the jus civile had 
 interposed ; and as such it probably afforded an important hint 
 to those who were called upon to surmount the difficulties 
 whereby the common law and statutes impeded certain trans- 
 fers of lands, tenements and hereditaments.* 
 
 It is to be added that, in regard to their res mancipi, the 
 Romans, before the time of Justinian, made a distinction be- 
 tween legal and beneficial ownership. If such an article were 
 sold, but the ceremony called mancipatio did not accompany 
 the transfer, the purchaser obtained only the beneficial interest 
 in it, while the legal title remained in the vendor.^ This dis- 
 tinction never affected any interest in land, and it was abolished 
 by Justinian ; ^ but it may have been one of the analogies upon 
 which our uses and trusts depend. 
 
 By a method similar to the Roman fidei-commissum, the 
 
 1 Just. Inst. Lib. ii. tit. xxiii. erty to one person in trust to convey or 
 
 ^ Grains, Lib. ii. § 278 ; Just. Inst. transfer to another. " There can be no 
 
 Lib. ii. tit. xxiii. §§ 1, 2. doubt of the general proposition that 
 
 ' The distinctions between the Jidei- where money is placed in the hands of 
 
 commissa of the civil law and the uses one person to be delivered to another, a 
 
 and trusts of the common law are clearly trust arises in favor of the latter, which 
 
 pointed out in McDonough's Executors he may enforce by bill in equity, if not 
 
 V. Murdoch, 15 How. (U. S.) 367, 407- by action at law." McKee o. Lamon, 
 
 409. 159 U. S. 317, 322. 
 
 * Amos on the Science of Jurispru- ' Gaius, ii. 40. 
 
 dence, 91. The form of our trusts, " Cod. Lib. vii. tit. 25, De nudo jure 
 
 which has the closest resemblance to quiritium tollendo; Digby, Hist. Law 
 
 the Jidei commissa is the giving of prop- R. P. (5th ed.) pp. 316, 317. 
 
4(J6 ESTATES IN REAL PEOPERTY. 
 
 Franks of the lex salica, who were " one family of our legal 
 ancestors," employed temporary trustees for the purpose of 
 passing property to heirs who could not otherwise be appointed 
 or adopted. The third party, to whom the title was thus 
 passed, was called the " saleman ; " and it was his duty, though 
 probably as an imperfect and unenforcible obligation, to hand 
 it over to the purchaser or other rightful owner.^ But here 
 again there is no evidence of any separation of the title or 
 estate into two distinct parts, the one legal and the other 
 equitable. There was only a means of compelling one holder 
 of property to transfer its title to another person. 
 
 In all of these schemes and arrangements, and in all others 
 an which historians have sought for the prototype of the , Eng- 
 lish use, one or both of two characteristics of the latter in its 
 final stage of development are lacking. Those characteristics 
 are (a) that the owner of the use has an estate, an interest in 
 the realty held for him, which is something more than a mere 
 right against the person of the holder of the legal title, and 
 which a court of equity will recognize and protect as a distinct 
 and separate ownership ; and (b) that he has a complete and 
 adequate means of compelling the exact fulfillment of all the 
 ■duties and obligations which are imposed upon the holder of 
 the legal title because of the existence of this equitable estate. 
 If these two elements have ever co-existed in any species of 
 real estate other than the English use and trust, it has been 
 for so short a time or in so unimportant a manner that history 
 has lost sight of the fact. It is safe to conclude that uses and 
 trusts, as we know them, are, in the main, original productions 
 of the equity side of our common law. How they were created 
 a,nd developed is next to be examined. 
 
 § 296. Growth of the Use in the Common Law. — "A slight 
 but unbroken thread of cases," say Pollock & Maitland,^ 
 " beginning while the conquest is yet recent, shows us that a 
 man will from time to time convey his land to another ' to the 
 ■use ' of a third. For example, lie is going on a crusade and 
 wishes that his land shall be held to the use of his children, or 
 he wishes that his wife or his sister sliall enjoy the land, but 
 doubts, it may be, whether a woman can hold a ttiilitary fee, or 
 whether a husband can enfeoff his wife." And they proceed 
 
 1 Lex Salica,titi6,Deadfathamire; & Mait. Hist. Eng. Law (2d ed.), p. 
 Heusler, Institutionem, i. 215; 2 Poll. 230. 
 
 2 2 Hist. Eng. Law (2ded.), p. 231. 
 
EQUITABLE ESTATES. — USES. 407 
 
 to show how, to such private arrangements, were soon added 
 cases in which lands were given to convents or other religious 
 houses, for special purposes or uses, as " ' to the use ' of the 
 library or ' to the use ' of the infirmary ; " and how, after the 
 coming to England, in the early part of the thirteenth century, 
 of the Franciscan friars, who could own nothing, much land, 
 as well as other property, was conveyed to the borough com- 
 munities for the use of the friars. And they add : " It is an 
 old doctrine that the inventors of ' the use ' were ' the clergy ' 
 or ' the monks.' We should be nearer the truth if we said 
 that to all seeming the first persons who in England employed 
 * the use ' on a large scale, were not the clergy, nor the monks, 
 but the friars of St. Francis." 
 
 Thus the employment of an intermediary, to hold the legal 
 title to realty for one who could not personally take and hold 
 it as was desired, came gradually into our law as the require- 
 ments for it arose. And when the statutes of mortmain, first 
 as chapter 36 of Magna Charta (1217), and afterwards as the 
 statute de religiosis, 7 Bdw. I. (1279), and the statute 13 Edw. I. 
 ch. 32 (1285),^ had practically prohibited the taking of real 
 property by the great religious houses, the lawyers who were 
 employed by those institutions resorted naturally to this means 
 of serving their clients, and had property conveyed to individ- 
 uals " for the use " of the ecclesiastical institutions. The re- 
 ligious bodies were thus enabled practically to evade the statutes, 
 a.nd to obtain all the enjoyment of and benefits from the land 
 of which they could not take the legal title.^ Although the 
 statute 15 Rich. II. ch. 5, which required all lands held " to 
 the use of religious people or other spiritual persons " to be 
 amortized by license from the king or to be disposed of for 
 some other use, practically deprived the ecclesiastical houses 
 of the benefit of this invention ; yet their dealings with it natur- 
 ally led to its employment for many other purposes. Especially 
 during the civil wars between the house of York and that of 
 Lancaster, when the triumph of the wearers of the red rose 
 was followed by attainder of the persons and confiscation of 
 the estates of those who wore the white, and vice versa, the 
 use, which was not forfeitable because of treason, became the 
 most common form of property owned by the combatants, 
 while the legal titles to their lands were carefully vested in 
 
 1 See also stat. 3i Edw. I. ch. 3 ; '^2 Blackst, Com. pp. *271-»272; 
 
 2 Blackst. Com. pp. * 268-* 273. 1 Spence's Eq. Jiir. 440. 
 
408 ESTATES IN REAL PROPERTY. 
 
 other persons.^ And, after those wars were over, the use re- 
 mained and continued to spread, as a favorite species of prop- 
 erty, to avoid curtesy or dower, to evade creditors, to impair 
 the remedies of the lord of the fee, etc., until the legal titles to 
 and estates in practically all the real property in England were 
 in one set of persons, while the uses or rights to the beneficial 
 enjoyment of the same were in other individuals or institu- 
 tions.^ Since it had such an origin, and since it was carefully 
 fostered and preserved by the Court of Equity alone — the court 
 of the chancellor who was the "keeper of the king's con- 
 science " — it has been well said that the parents of the use 
 " were fraud and fear, and a court of conscience was the 
 nurse." ^ 
 
 § 297. Development of the Use into an Equitable Estate. — 
 When the use is first noticed in legal records, it appears as a 
 mere personal confidence in the one who holds the legal estate 
 and who is called the feoffee to use. The beneficiary, the person 
 for whom the property is held and who is called the cestui que 
 use, has no legal means of compelling him to carry out the 
 merely conscientious obligation. If, therefore, A were en- 
 feoffed of land, to the use of B, or in trust or confidence that B 
 might occupy the property and receive the fruits and profits, no 
 court of that time would prevent A from ignoring B's rights 
 and appropriating all the land and its products to his own use 
 and enjoyment. Without doubt, such obligations were special 
 favorites of the Church, and were frequently enforced by the 
 authority of the Confessor ; but the cestui que use was without 
 remedy in any other tribunal.* 
 
 There was an ancient practice in England for persons 
 aggrieved, when the wrongdoers were too powerful for them, 
 or the common-law courts afforded them no redress or no ade- 
 quate remedy, to appeal directly to the council or the king for 
 relief.^ In the twenty-second year of Edward III., it was or- 
 dered that all suclr applications, which were of grace, should 
 be made directly to the chancellor, or to the keeper of the 
 
 1 1 Spence's Eq. Jur. 441. courts at one time enforced conscien- 
 
 ^ Sand. Uses, 17; Burgess u.Wheate, tioas obligations, entertaining suits de 
 
 1 Wm. Blackst. 123, 135. Jidei IcBsione, but tbis jurisdiction is said 
 
 8 Atty.-Gen. v. Sands, Hard. 488, to have been taken away from them in 
 
 491 ; Chudleigh's Case, 1 Rep. 114, 123 ; cases arising between laymen as to civil 
 
 Bacon, Readings upon Statute of Uses, matters in the reign of Henry -III." 
 
 vol. xiv. pp. 301, 302 (Boston ed. 1861). Digby, Hist. Law R. P. (5th ed.) p. 315. 
 
 * " It is true that the ecclesiastical ^ 1 Spence's Eq. Jur. p. 335. 
 
EQUITABLE ESTATES. — USES. 409 
 
 privy seal.^ From the practice of receiving such petitions and 
 making decrees upon them grew the "extraordinary jurisdic- 
 tion " of the chancellor, as distinguished from his pre-existing 
 ordinary jurisdiction, at law ; and thus arose and grew the 
 Equity side of the Court of Chancery .2 Unhampered by the 
 precedents and technicalities of the older tribunals, this court 
 had power to compel the specific performance of a purely con- 
 scientious duty ; and it found the use ready for the exercise 
 of that power. During the reign of Richard II., and " at some 
 date later than 1393," it began to take cognizance of these 
 interests in realty ; 2 and, bringing the feoffees to uses before 
 the court by means of its writ of subpoena, it compelled them 
 to carry out the obligations resting upon their consciences, as 
 by allowing the beneficiaries to hold and enjoy the land, con- 
 veying it to them, or doing or permitting such other acts as 
 were expressly or impliedly required by the terms of the 
 creation of the uses.* But when the court of equity thus 
 came forward, as the tribunal in which the cestui que use 
 could find redress, it at first refused to issue its subpoena, in 
 such a case, against any one but the feoffee to uses personally.^ 
 And, while it would intervene to prevent him from wrongfully 
 selling the property, or otherwise disposing of it to the injury 
 of the beneficiary, yet, if before such interposition of the court 
 he sold the land, or gave it away, or it descended to his heir, 
 the cestui que use, during this period in the development of his 
 interest, could not follow the realty ; nor could he enforce his 
 rights in any way against the third party into whose hands 
 the legal estate had thus passed. 
 
 The last step in the advancement of the use to an equitable 
 estate was the enlarging of the operation of the subpoena, 
 in such cases, so as to reach and control the heir or purchaser 
 of the feoffee to uses and, generally, to compel the observance 
 of the rights of the cestui que use and the performance of the 
 obligations in conscience owed to him by the heir, donee, or 
 purchaser of the feoffee to uses, and by all other persons into 
 whose hands the legal estate might come, except those who 
 were disseissors or other adverse holders (i. e., not in privity with 
 the feoffee to uses), or innocent purchasers of the land without 
 
 f 
 
 1 Spence's Eq. Jur. p. 337. * 1 Spence, Eq. Jnr. pp. 338, 369 ; 
 
 2 Select Cases in Chancery (Selden Digby, Hist. Law R. P. (5th ed.) p. 
 Soc), pp. xvi. et seq. ; Kerly, Eq. p. 49. 325. 
 
 8 Select Cases in Chancery (Seldeu ^ year Book, 8 Edw. IV. 6 ; Digby, 
 
 Soc), p 48. Hist. Law K. P. (5th ed.) p. 326, 
 
410 ESTATES IN BEAL PEOPEBTT. 
 
 notice of the use.^ This change probably occurred dnring the 
 reign of Edward IV., or possibly a little earlier. And it was 
 this addition to his remedies that first gave to cestui que use an 
 equitable estate in the land — a status or position with reference 
 to the land itself, as distinguished from a mere personal confi- 
 dence in the feoffee to use — the power to follow the property 
 itself along from hand to hand and to enforce his rights against 
 its legal holder for the time being, unless or until it comes into 
 the possession and ownership of one who is an adverse liolder 
 or has purchased it for value and without notice of the use. 
 But it was then decided, and has ever since that time been 
 held, that a purchaser of the legal estate, for a valuable con- 
 sideration and without notice of ihe use, holds the land free 
 from the obligation to the cestui que use? 
 
 In summary, when uses first appeared in England the cestui 
 que use had nothing but a personal confidence in the feoffee to 
 uses ; later he acquired the power by subpasna in equity to 
 compel the feoffee personally while he kept the legal estate 
 to live up to the requirements of that confidence ; finally he 
 became enabled to follow the land itself and to comjjel any 
 one into whose hands it came to live up to the requirements of 
 that confidence, unless or until the legal estate was acquired by 
 one who held it adversely (not in privity with the feoffee to 
 uses) or purchased it in good faith for value and without 
 notice of the use. The courts have uniformly called his in- 
 terest thus finally evolved an equitable estate. 
 
 § 298. Early Distinctioiis betw^een a Use and a Trust. — In 
 the early times of which we have been speaking, there was a 
 clear distinction recognized between a "its«" and what was 
 then designated a " trust." Both of these grew up at about 
 the same time into equitable estates.^ The foundation prin- 
 ciple was the same in each ; namely, that the legal estate must 
 be held by one person for the benefit of another who owned 
 the equitable estate. When this holder of the legal estate was 
 nothing but a receptacle for it, and simply retained it generally 
 
 1 Gonld V. Petit, temp. Hen. VL National Bank v. National Broadway 
 Chancery Calendar, iL p. xxviii ; Saon- Bank, 156 N. T. 459, 468 ; Bochester 
 dress v. Gaynesford, temp. Hen. VL & C. Tnmpike Co. r. Parrioni, 162 
 Chancery Calendar, iL p. xxxriii. ; N. Y. 281 ; Otis v. Otis, 1 67 Mass. 245. 
 Spence's Eq. Jur. pp. 445, et seq. ; » Bnt strictly in point of time the 
 Bacon's Law Tracts, 318 ; Burgess v. special " tmst " seems to hare first ap- 
 Wheate, 1 Wm. Blackst. 123, 156. peared in English law. Sand. Uses, 7. 
 
 2 Year Book, 5 Edw. IV. 7 b ; First 
 
EQUITABLE ESTATES. — USES. 411 
 
 and permanently, so that the other might have all the control, 
 management, and benefit of the property, the interest of the 
 latter was called a use.^ But when the recipient of the legal 
 estate had some special duty to perform, as for example to 
 care for and manage the property and pay the net proceeds to 
 the beneficiary, the interest of the latter was denominated a 
 trust? Thus the use was permanent and general, the trust 
 temporary and special. Or, as Lord Bacon expressed it: 
 "When a trust is not special nor transitory, but general and 
 permanent, there it is a use." ^ The use, as thus differentiated, 
 was the most prevalent form of these interests, and the one 
 most commonly spoken of and dealt with by the Court of 
 Chancery before the enactment of the Statute of Uses in the 
 twenty-seventh year of Henry VIII.* 
 
 § 299. Definition of Use and Trust. — From the foregoing 
 discussion it appears that a use or trust, as viewed from the 
 standpoint of its owner — the owner of the equitable estate — 
 is the right to the beneficial enjoyment of property of which 
 the legal title and estate are in another person ;^ and that, as 
 regarded more especially from the standpoint of the holder of 
 the legal estate — the feoffee to uses or trustee — it is " an 
 obligation upon a person arising out of a confidence reposed in 
 him to apply property faithfully and according to such confi- 
 dence." ® Lord Coke defined it as, " a confidence reposed in 
 some other, not issuing out of the land, but as a thing col- 
 lateral, annexed in privity to the estate of the land, and to the 
 person touching the land, for which cestui que trust has no 
 remedy but by subpoena in chancery."" 
 
 Bearing constantly in mind the fact that, as soon as the 
 " remedy by subpoena in chancery " became available against 
 all persons who took the legal estate from, through, or under 
 the original trustee of feoffee to uses with notice of the use or 
 trust, or without paying a valuable consideration, the courts of 
 
 1 Sand. Uses, 3 ; Bacon, Law Tracts, ^ Bispham's Principles Eq. § 49 ; 
 306 ; Delamere's Case, Plowden, 346 ; Warner v. McMullin, 131 Pa. St. 370, 
 Co. Lit. 272 b. 381. 
 
 2 Sand. Uses, 6 ; Cornish, Uses, 14 ; ° Stair's Institutions of the Laws of 
 Tnd. Lead. Cas. E. P. 255. Scotland, B. iv. tit. yi. § 2, p. 591, § 3, 
 
 ' Bacon's Essay on Uses, 9 ; 1 pp. 592-594. 
 Spence, Eq. Jur. 448 ; 1 Lewin on ' Co. Lit. 272 b. For other defini- 
 
 Trusts, p. *7; Hutchins v. Heywood, tions of uses and trusts, and criticisms 
 
 50 N. H. 491, 497. of the same, see 1 Perry on Trusts, 
 
 * As to this statute and its operation §§1,2; Underbill on Trusts and Trus- 
 
 and efEects, see §§ 302-304, infra. tees (Am. ed.), pp. 1-6. 
 
412 ESTATES IN REAL PEOPEETT. 
 
 equity called the interest of the beneficiary an equitable estate, 
 and have continuously done so ever since, the elements of this 
 famous definition formulated by Coke may be profitably ex- 
 amined, as revealing the essential characteristics of these forms 
 of equitable interests. The expression, " a confidence reposed 
 in some other" means, in the light of modern adjudications, 
 that the holder of the legal estate and the beneficiary can not 
 be identical. A may hold land for the use of B, or for the use 
 of A and B ; or A and B may hold it for the use of A or B. 
 But if A undertake to hold it for the use of himself alone, the 
 equitable estate is ordinarily merged in the legal.^ 
 
 The phrase, " not issuing out of the land, but as a thing col- 
 lateral," distinguishes the use and trust from such interests as 
 mortgages, judgments, terms of years and other liens, claims, 
 and rights, which issue out of the land itself, and are binding 
 in law upon every person into whose hands it may come.^ This 
 is further explained by the statement, " annexed in privity to 
 the estate in the land, and to the person touching the land," 
 i. e., to the person of the holder of the legal title because he is 
 such holder. A mortgage, or other legal lien or claim, is at- 
 tached to the land per se, regardless of who may be the owner. 
 A use or trust is attaclied primarily to the legal owner of the 
 land, and through him, collaterally, to the land.^ And, if the 
 title leave him and pass to one who does not claim under him, 
 or to one who purchases for value and without notice of the 
 confidence, the use or trust is thereby destroyed.* So, if the 
 trustee be disseised, or if he be turned out of possession by a 
 person having a paramount title, the disseisor or adverse holder 
 is not bound by the trust or confidence because there is no 
 
 1 Goodright v. "Wells, Doug. 771; 808; Woodward v. James, 115 N. Y. 
 
 Hamwood v. Oglander, 8 Ves. 106, 127 ; 346, 357. It has been said hy the New 
 
 "Wade V. Paget, 1 Bro. Ch. 363 ; "Wood- York Court of Appeals that " the ap- 
 
 ward V. James, 115 N. Y. 346 ; Carr v. pointment of the beneficiary as trustee 
 
 Richardson, 156 Mass. 576; Greene v. by the court, on the death or resignation 
 
 Greene, 125 N. Y. 506; Robertson of the testamentary trustee, does not ex- 
 
 V. Brulatour, 188 N. Y. 301 , 317 ; Matter tinguish the trust." Losey e. Stanley, 
 
 of Radam M. K. Co., 110 N. Y. App. 147 N. Y. 560, 568. 
 Div. 329, 330; Merrill v. Hayden, 86 ' Lewin on Trusts, p. * 15. 
 
 Me. 133. It has been held in some cases, ^ Finch's Case, 4 Inst. 85 ; Gilbert 
 
 and may safely be taken as generally ac- on Uses, 429 ; Reeves u. Evans, 34 Atl. 
 
 cepted law, that where one of the bene- Rep. 477 (N. J. Eq.). 
 ficiaries is sole trustee — as where A is * Finch's Case, 4 Inst. 85 ; Bassett 
 
 trustee for A and B, his own beneficial v. Nosworthy, 2 Lead. Cas. Eq. 1 ; 1 
 
 interest merges in his legal ownersliip. Perry on Trusts,! 218, and cases cited; 
 
 Bolles v. State Trust Co., 27 N. J. Eq. § 247, supra. 
 
EQUITABLE ESTATES. — USES. 413 
 
 privity of estate between him and the ousted trustee.^ In a 
 word, the creation of a use or trust separates the estate into two 
 parts — legal and equitable — and gives to the owner of the equi- 
 table estate thus formed the right to enforce his claim against 
 the trustee, or feoffee to uses, and against all persons into 
 whose hands the legal estate may come, except adverse or 
 paramount owners and innocent purchasers for value with- 
 out notice of the use or trust. 
 
 The last clause of Lord Coke's definition — " for which 
 cestui que trust has no remedy but by subpoena in chancery " — 
 was, at the time when it was written, an accurate statement 
 of the means by which the owner of the use or trust could 
 enforce his rights and protect his interest, and it clearly ex- 
 presses the reason for calling such an interest an equitable 
 estate; but, as will be more fully explained hereafter, the 
 result of statutes and of the tendency of all judicial tribunals 
 to follow the correct lead of equity has been to give to other 
 courts considerable cognizance of uses and trusts and impor- 
 tant forms of remedies for the owners of these equitable 
 estates.^ 
 
 Having thus ascertained the nature of a use, as it arose 
 and flourished in early English law, we have next to examine 
 its requisites and chief characteristics, before it was affected 
 by the Statute of Uses, 27 Hen. VIII. ch. 10, and the rules and 
 constructions based on that famous enactment. 
 
 § 300. The Three Requisites of a Use. — Three things were 
 
 ' 1 Perry on Trusts, § 14 ; 1 Spence, all branches of the High Court take 
 
 Eq. Jur. 445. "All those persons who cognizance of equitable rights and rem- 
 
 take under the trustee by operation of edies. A similar result is produced in 
 
 law are privies, both in estate and in per- most of the states of this country by 
 
 son, to the trustee. Thus those who take the amalgamation of the courts by the 
 
 as heirs under the trustee, or as tenants codes of procedure. But, in England, 
 
 in dower or curtesy, or by extent of an the Chancery Division is still the proper 
 
 execution, or by an assignment in insol- branch of the court in which to enforce 
 
 vency or bankruptcy, are bound bj' the express trusts ; and all of the amalga- 
 
 trnst. It has been thought that a lord, mated courts in the United States have 
 
 who takes by an escheat, or by a title equity sides, or " terms," to which the 
 
 paramount, would not be bound by the cognizance of uses and trusts . more 
 
 trust; but the point has not been ad- especially belongs. See " Supreme 
 
 judged." 1 Perry on Trusts, §15, citing Court of Judicature Act," 36 & 37 
 
 Leake I'. Leake, 5 Ired. Eq. (N. C.) 361, Vict. ch. 66; 44 & 45 Vict. ch. 68; 
 
 366; Burgess v. Wheate, 1 Eden, 177, N. Y. Code Civ. Pro. §§ 217, 484, 2988, 
 
 203. See also Otis v. Otis, 167 Mass. 3339 ; McCartney v. Bostwick, 32 N. Y. 
 
 245 ; 1 Lewin on Trusts, pp. * 15, * 16. 53, 57 ; Kennedy v. Fury, 1 Call. (U. S.) 
 
 ^ The old court of chancery, as 72; 1 Perry on Trusts, § 17. See 
 
 such, no longer exists in England, and TJnderhill, Trusts & Trustees (Amer. 
 
 «d.) pp. 2, 3. 
 
414 ESTATES IN REAL PROPERTY. 
 
 necessary to the existence of a use, namely, (a) a subject-matter, 
 or as it was frequently styled a use, in being, (b) a feoffee to 
 uses in being, and (c) a cestui que use in being. 
 
 (a) No real property, corporeal or incorporeal, except such 
 as was in esse at the time and capable of having the seisin 
 thereof, or what answered to the seisin, transferred at once 
 to the feoffee to uses, could be the subject-matter held or con- 
 veyed to use.^ Nothing could be so conveyed or held, whereof 
 the use or enjoyment is inseparable from the possession, such 
 as annuities, commons and ways in gross.^ And, while one 
 who was seised of land might grant it to another for the use 
 of a third person for a term of years, yet he who had no 
 interest for himself other than a leasehold for years, since he 
 had no seisin, could not so deal with the property.^ But all 
 realty, of which one could have the present seisin whether in 
 possession, reversion, or remainder, and which was not property 
 quce ipso usu consumantur, could be made by him the subject- 
 matter of a use.* 
 
 (b) All natural persons, who could be feoffees of land at 
 common law, could be feoffees to uses. Even infants and 
 married women, being capable of taking and holding the legal 
 title to realty, were compellable by chancery to hold it as 
 feoffees to the use of other persons.* Corporations were de- 
 clared to be incapable of holding such a position, chiefly because 
 there were no means of compelling them to recognize the 
 rights of the beneficiary ; ^ and the king was also beyond the 
 reach of such obligations, for " the arms of equity are very 
 short against the prerogative." ' But it is now uniformly held 
 that any corporation may be seised to uses, provided that they 
 and their objects are not foreign to the purposes of its own 
 existence.^ 
 
 (c) All persons, whether natural or artificial, who could 
 
 ' Lord Willonghby's Case, W. Jo. « Plowd. 102; Bacon on Uses, 57; 
 
 127. • Sugden, V. & P. p. 417. 
 
 2 2 Blackst. Com. p. *331 ; Beaudely ' Pawlett v. Atty.-Gen., Hard. 465, 
 
 V. Brooks, Cro. Jac. 189. 467 ; Burgess o. Wheate, 1 Eden, 255; 
 
 8 Lord Willonghby's Case, W. Jo. Briggs w. Light-Boats, 11 Allen (Mass.), 
 
 127; Yelverton v. Yelverton, Cro. Eliz. 157. 
 401. 8 Atty.-Gen. i>. St. John's Hospital, 
 
 < Crabb, E. P. §§ 1610, 1611; 2 2 DeG. J. & Sm. 621; Trustees of 
 
 Blackst. Com. p. * 331 ; 2 Wash. R. Phillips Academy v. King, 12 Mass. 546 ; 
 
 P. p. *98 ; Bispham's Prin. Eq. § 52. Matter of Howe, 1 Paige (N. Y.), 214; 
 
 6 Bac. Read. 58 ; Crabb, R. P. § 1607 ; Jackson v. Hartwell, 8 Johns. (N. Y.) 
 
 Hill on Trustees, 48 ; Comm'rs v. Walker, 422 ; Perry on Trusts, §§ 42, 43. 
 6 How. (Miss.)"U3, 146. 
 
EQUITABLE ESTATES. — USES. 41S 
 
 hold property at common law, could be cestuis que use} But an 
 alien was uniformly forbidden to become cestui que use of 
 property of which he was not capable of holding the legal title.^ 
 It frequently occurred that real property was conveyed to a 
 feoffee " for the use " of one who was not in being or not yet 
 ascertainable, as for the use of the oldest child of one who had 
 no child, or to the use of the woman who might subsequently 
 become the wife of a designated single man. Tn such a case, 
 the feoffee took the legal title at once ; but, since one of the 
 requisites of a use was wanting, no use existed until the desig- 
 nated beneficiary was in being and definitely ascertained. 
 When the cestui que use thus came in esse, the use sprang up 
 in his or her favor.^ 
 
 § 301. Characteristics of the TTse before the Statute of Uses. 
 — In those early times the cognizance and control of uses was 
 solely in the Court of Cliancery (or Equity). In dealing with 
 them, that tribunal in some respects followed the rules of law, 
 in others departed widely from them. And it was because of 
 the many instances in which it refused to apply those rules 
 to the use that that equitable estate came to be a species 
 of valuable interest, divested of most of the burdens and 
 responsibilities which ordinarily accompany the ownership of 
 property. 
 
 The maxim " Equity follows the law " was then not at all 
 fully applied to these interests ; and, when it was applied this 
 was done chiefly in holding them subject to the same prin- 
 ciples as legal estates in regard to their duration and dev- 
 olution. Thus, they were descendible in the same manner as 
 legal interests.* And, if A were enfeoffed of a lot of land to 
 the use of B and his heirs, B would thereby acquire an estate 
 in fee simple in the use ; if it were to the use of B while lie 
 lived, he would take a life estate, and so of an estate for years 
 etc., the words denoting the extent or duration of the interest 
 being given prima facie the same effect when applied to a use 
 which they had at law when applied to the legal estate.^ It 
 
 1 Sand. Uses, 370 ; 1 Lewin on came into being, and the " shifting use," 
 Trusts, p. *43; 1 Perry on Trusts, which was similar to it, are explained 
 § 60. hereafter as forms of future estates. 
 
 2 Tnd. Lead. Cas. K. P. 254 ; Du « 2 Blackst. Com. p. * 330 ; 1 
 Hourmelin v. Sheldon, 1 Beav. 79 ; 1 Spence, Eq. Jur. 454. 
 
 Perry on Trusts, § 64. See Marx v. ' Sugden's Gilbert on Uses, ch. 1, 
 
 McGlynn, 88 N. Y. 357. § 2 ; Year Book, 5 Edw. IV. 7 b. 
 
 ° The "springing use," which thus 
 
416 ESTATES IN REAL PROPERTY. 
 
 was not necessary, however, that any technical words of in- 
 heritance or limitation, such as " heirs," or " heirs of his body," 
 should be employed to create estates of inheritance in a use,^ 
 although such words were required in a deed in order to create 
 legal estates of inheritance. In dealing with the use, equity 
 carried out the intention of the parties, when it was clearly 
 expressed by any form of words which they chose to employ. 
 And, while technical words would ordinarily be given their 
 technical meaning, this would not be done if a different intent 
 were clearly expressed by the parties to the transaction.^ 
 Equity also allowed uses to be disposed of by will,^ although 
 the feudal principles at that time (and until the Statute of Wills, 
 32 Hen. VIII. ch. 1) forbade devises of the legal estates. Thus, 
 if A held land to the use of B and his heirs, while the legal 
 title could not be willed away, yet at B's death B might devise 
 the use to C, and thereafter A would be compelled by the 
 Court of Chancery to hold the land for the use of C or his 
 grantees or devisees. It was by willing away uses in this 
 manner that the prohibition imposed by the feudal system upon 
 devises of real property was largely overcome.* By act inter 
 vivos, also, the cestui que use could freely sell or otherwise dis- 
 pose of the use ; and he might do this by deed, or writing not 
 under seal, or mere oral instructions to the feoffee to uses.^ 
 But, though often in possession of tlie land, the cestui que use 
 could not alien the legal estate without the consent of the 
 feoffee to uses, because he had no ownership thereof.^ 
 
 In most other respects, the Court of Chancery departed 
 
 1 1 Cruise, Dig. tit. xi. ch. ii. §§ 26, power of disposing of their property by 
 27 ; Tud. Lead. Cas. E. P. 253 ; 1 will ; which enabled them to make a 
 Spence, Eq. Jur. 452 ; Cornish, Uses, much better provision for their families 
 19. than they could otherwise have done." 
 
 2 2 Blackst. Com. p. *331 ; 1 Cruise, I Cruise, Dig. tit. xi. ch. ii. § 36 ; Sir 
 Dig. tit. xi. ch. ii. §§ 20, 21. Edward Clere's Case, 6 Eep. 17 b ; Tud. 
 
 8 Co. Lit. 271 b, Butler's note, 231 ; Lead. Cas. R. P. 268. 
 
 Crabb, R. P. § 1616. 6 i Cruise, Dig. tit. xi. ch. ii. §§ 25- 
 
 * Thus A, owning land of which he 27; Crabb, R. P. § 1614; Cornish, 
 
 wished to dispose by will, would convey Uses, 19; 1 Spence, Eq. Jur. 454. It 
 
 it to B to the use of A and to tlie use was not until the enactment of the 
 
 also of such persons as A might name Statute of Frauds, 29 Car. II. ch. 3, 
 
 in his will as cestuis que use. Then A that a writing was required by law, in 
 
 would will away the use, and after A's disposing of a use or trust inter vivos. 
 
 death B would hold the legal title for By § 7 of that chapter, all declarations 
 
 the devisees. " Lord Bacon observes of trusts or confidences in real property 
 
 that one of the reasons why so much were required to be "manifested and 
 
 land was conveyed to uses was, because proved " by some writing, 
 
 persons acquired by that means the * 2 Blackst. Com. p. * 331. 
 
EQUITABLE KSTATES. — USES. 417 
 
 from the rules of law in dealing with uses. The use, being 
 a mere impalpable abstraction, could not be affected by the 
 common-law property incidents which grew out of the doc- 
 trines of feudal seisin and tenure. Therefore a cestui que use 
 could not be disseised or dispossessed of his use by an adverse 
 claimant.^ Therefore, also, there arose novel and important 
 methods of creating and transferring uses, which will be ex- 
 plained hereafter.2 So it was decided that there should be 
 neither curtesy nor dower in a use.^ The lord was not en- 
 titled to an escheat on failure of heirs of the cestui que use ; * 
 nor, except for certain changes introduced by legislation, was 
 the liing entitled to any forfeiture of the use for crime,® 
 or the creditor of its owner to reach it for the payment of 
 his debt.® 
 
 Thus the use was divested of most of the plain and ordin- 
 ary incidents .of real property ; and, while it was owned sub- 
 ject to the legal estate resting in the feoffee to uses and affected 
 by legal incidents as against him,^ yet its owner could incur 
 ■debts, commit crimes, secretly sell or encumber his property, 
 or otherwise act in ways unfair or unjust towards others, with- 
 out fear of any loss or diminution of his use, except by his 
 own voluntary act or the crime, covin, or marriage of the feoffee 
 to uses.^ Some of the results of this state of affairs, as ex- 
 pressed by Lord Bacon, wei-e that " A man, that had cause to 
 sue for land, knew not against whom to bring his action, or 
 who was the owner of it. The wife was defrauded of her 
 thirds ; the husband of his curtesy ; the lord of his vvardship, 
 
 1 2 Wash. E. P. p. * 106, par. 26. Lead. Cas. R. P. 253 ; Jackson d. Gratz 
 
 2 See Digby, Hist. Law R. P. (5th u. Catlin, 2 Johns. (N. Y.) 248, 261. 
 €d.) pp. 328-343. « Cruise, Dig. tit. xi. ch. ii. § 35. For 
 
 s "And therefore it became cnstom- the law court had no process that could 
 ary, when most estates were put in use, reach it. 2 Blackst. Com. p. *331. 
 to settle before marriage some joint Most of these incidents of owner- 
 estate to the use of the husband and ship — curtesy, liability for debts, etc. — 
 wife for their lives ; wllich was the were annexed to the use, or trust, after 
 ■original of modem jointures." 2 Blackst. the Statute of Uses was enacted. See 
 Com. * p. 331. pp. 425, 426, m/ro. 
 
 * 2Blackst. Com. p. *330; Sngden's 'The use, in this period before 
 
 Gilbert on Uses, ch. i, §§ 2, 5, 6. the Statute of Uses, was subject to the 
 
 ' This was remedied by early legis- feudal duties and obligations of the 
 
 lation, such as the statute 21, Rich. II. feoffee to uses — to the dower of his 
 
 ch. 3, and the later statute 33 Hen. VIII. wife or to the curtesy of her husband — 
 
 ch'. 20, § 2, which made uses forfeitable and to the danger of being forfeited for 
 
 upon attainder for treason. Cruise, his treason or felony. Sand. Uses, 67 ; 
 
 Dig. tit. xi. ch. ii. § 31 ; 3 Inst. 19; 1 Spence, Eq. Jur. 445. 
 
 €hndleigh's Case, 1 Rep. 114, 121 ; Tud. ' Ibid. 
 
 27 
 
418 ESTATES IN REAL PROPERTY. 
 
 relief, heriot,^ and escheat ; the creditor of his extent for debt ; 
 and the poor tenant of his lease." ^ 
 
 Through a series of years, many attempts were made to 
 cure or prevent by statute these mischiefs and hardships. 
 Instances of such attempts were the statutes 50 Edw. III. oh. 
 6, 1 Rich. II. ch. 9, and 19 Hen. VII. ch. 15, which aimed to 
 enable creditors to take lands held to the use of their debtors ; 
 
 4 Hen. VII. ch. 17, which sought to restore to the lord his 
 wardships and reliefs in respect to realty held by one for the 
 use of another ; and 1 Rich. III. ch, 1, whereby the cestui que 
 use ^as authorized to alien the legal estate in the land without 
 the concurrence or consent of the feoffee to uses.^ But the 
 subtlety of those who were endeavoring to perpetuate secret 
 uses and their fruits was enabled to evade practically all of 
 such enactments. The last one here mentioned — 1 Rich. III. 
 ch. 1 — became of itself a fruitful source of perplexity and 
 confusion. For it enabled the cestui que use to sell the legal 
 estate, without depriving the feoffee to uses of the same power 
 which the common law gave to him ; * and the result was that 
 they both sometimes sold the land, at about the same time, 
 one to one purchaser and the other to another, and both ven- 
 dees apparently had perfect titles while claiming adversely to 
 each other.^ Finally, such inconsistencies and evasions were 
 sought to be done away with, and the objects of all the prior 
 enactments merged, in the famous " Statute of Uses," 27 Hen, 
 VIII. ch. 10, which will be next discussed. 
 
 § 302. The statute of Uses, 27 Hen. VIII. oh. 10 (l53S). — 
 After reciting the numerous evils which it was intended to 
 abolish,^ the Statute of Uses enacted, in substance, that when- 
 
 1 A heriot was "a cnstomary tribute * The preamble is long and recites a 
 
 of goods and chattels, payable to the great variety of abuses which resulted 
 
 lord of the fee on the decease of the from secret uses, trusts and confidences, 
 
 owner of the land." Bouvier, Law Especially it declares that the objects 
 
 Diet. of the enactment were " for the extirp- 
 
 ^ 2 Blackst. Com. pp. *331, *332. ing and extinguishment of all -such 
 
 These difficulties are stated in detail in subtle practiced feoffments, fines, re- 
 
 the preamble to the Statute of Uses, 27 coveries, abuses, and errors heretofore 
 
 Hen. VIII. ch. 10. used and accustomed in this realm . . . 
 
 8 See such acts as these more fully and to the intent that the king's high- 
 set forth and explained in Cruise, Dig. ness, or any other his subject of this 
 tit. xi. ch. ii. §§ 41-45. realm, shall not in any wise hereafter, 
 
 * Digby, Hist. Law R. P. (5th ed.) by any means or inventions be deceived, 
 
 p. 345, note. damaged, or hurt by reason of such; 
 
 ' See Sispham's Prin. Eq. Jur. trusts, uses and confidences." 
 
 5 53. 
 
EQUITABLE ESTATES. — USES. 419 
 
 ever any person should be seised of real property to the use of 
 another, the cestui que use should have the legal estate and pos- 
 session in thi same quality, manner , form and, condition in which 
 he had the use.^ Its object was to do away with uses, by unit- 
 ing the legal and equitable estates in the cestui que use and thus 
 merging the latter estate in the former. The feoffee to uses 
 ■was made a mere figure-head, from whom the legal estate and 
 possession should pass as soon as the use vested in another 
 person.^ In the language of conveyancing, the statute was 
 said to execute the use ; i. e., it destroyed the use by merging 
 it in the legal estate brought over to its owner from the feoffee 
 to uses.^ It did this when the feoffee to uses, or holder of tlie 
 legal estate, had the seisin of the property. And this process 
 of execution was the investing of the cestui que use with the 
 legal estate, in the same quality, manner, form and condition in 
 which he had the use. Thus, if A were seised of one piece of 
 land for the use of B in fee simple, of a second piece for the 
 use of C for his life, of a third for the use of D as long as he 
 should live on the land, and of a fourth for the use of E for 
 ten years provided he did not attempt to assign his interest, 
 the statute would execute all of these uses, and thereby confer 
 the legal estate in the one piece of land upon B in fee simple, 
 in the second piece upon C for his life, in the third upon D as 
 long as he should live on the land, and in the fourth upon 
 E for ten years provided he did not attempt to assign his in- 
 terest. The statute consisted of tliirteen sections, dealt care- 
 fully with several important interests much affected by uses, 
 such as the jointure of a wife in lieu of her dower, and> 
 among other consequences, was held to have done away en- 
 tirely with the power of disposing of interests in realty by will, 
 which power had been theretofore one of the most important 
 results of the employment of uses.* But the main and essen- 
 
 1 Sections 1-3 of the statute ; Digby, ship, to make the ostensible tenant in 
 
 Hist. Law R. P. (5th ed.) pp. 347-351 ; every case also the legal tenant, liable 
 
 Cruise, Dig. tit. xi. eh. iii. § 4. to his lord for feudal dues and services 
 
 * " The object of the statute was, by — wardship, marriage, and the rest." 
 
 joining the possession or seisin to the Digby, Hist. Law R. P. (5th ed ) p. 
 
 use and interest (or, in other words by 346 ; Bac. Law Tracts, 322 ; Sand, 
 
 providing that all the estate which would Uses, 86, 87; Wms. E. P. p.* 159; 
 
 by the common law have passed to the Chudleigh's Case, 1 Rep. 114, 124. 
 grantee to uses should instantly be taken ' 2 Blackst. Com. p. * 333 ; Bisp- 
 
 out of him and vested in cestui que itse), ham's Prin. Eq. § 53. 
 to annihilate altogether the distinction * The courts held that, since under 
 
 between the legal and beneficial owner- the statute the person to whom a use 
 
420 ESTATES IN REAL PROPERTY. 
 
 tial change, which it proposed and of which its other features 
 were incidents or results, was the execution of uses as above 
 explained. 
 
 § 303. How the Statute of Uses was interpreted and con- 
 strued. — " The Statute of Uses," said Lord Bacon, " is the 
 most perfectly and exactly conceived and penned of any law' 
 in the books." ^ But it opposed the current of general opin- 
 ion and popular demand as to the ownership of real property ; 
 and the curious result was that its effects were directly the re- 
 verse of its purpose as conceived by its framers and enactors.^ 
 By means of it, unexpected forms of secret conveyances were 
 introduced and have continued to be employed down to the 
 present time. These will be hereafter discussed, in the por- 
 tion of this work which deals with titles and conveyancing. 
 By a strict and almost strained construction of the language 
 of the statute, the old distinction between legal and equitable 
 ownership and estates was also revived ; and the use continued 
 to flourish, though under the new name of a trust.^ 
 
 After the enactment of the statute-, the courts of common 
 law, following out its intent, began to take cognizance of uses. 
 Its interpretation and construction were mainly the work of 
 those courts.* Some of the results, at which they arrived, 
 were undoubtedly correct and necessary. Thus, they held 
 that, since the legal estate must leave the feoffee to use the 
 instant he received it, the land could no longer escheat or be 
 forfeited by bis act or defect, nor be liable to dower or curtesy 
 because of the seisin of such feoffee, nor be aliened by him 
 discharged of the use. So the interest of the cestui que use, 
 since it now included the legal estate, was held to be liable 
 
 was devised would acquire the legal of uses. But it was not adopted ; and 
 
 estate as soon as he acquired the use, the result was that there were no wills 
 
 to will away the use was in effect to of realty in England for five years — 
 
 will away the legal estate. And, as a from the Statute of Uses, 27 Hen. VIII. 
 
 disposition of the latter by will was for- ch. 10 (1.535), to the Statute of Wills, 
 
 bidden by the feudal law, it was decided 32 Hen. VIII. ch. 1 (1540). This fact 
 
 that the statute of uses wholly did. away is said to have been among the causes 
 
 with 'the possibility of devising realty, which led to the insurrection of 1536. 
 
 It would have been equally as logical, 3 Frond's Hist. Eng. 91 ; Digby, Hist, 
 
 if not more so, for the courts to have Law R. P. (5th ed.) p. 346, n. 
 
 argued that the will dealt with the use l Law Tracts, 324. 
 
 only and the fact that the statute then ^ Digby, Hist. Law R. P. (5th ed.) 
 
 annexed the legal estate to the use pp^ 346, 347. 
 
 was a result with which the will had ' 1 Perry on Trusts, § 6. 
 
 nothing to do. The latter conrse of * 2 Blackst. Com. p. * 333. 
 reasoning would have retained devises 
 
EQUITABLE ESTATES. — USES. 421 
 
 to ordinary common-law incidents, such as curtesy, forfeiture 
 for crime, escheat, etc.^ But the facts that the statute did 
 not produce the results for which it was enacted and that uses 
 continued to flourish, even with renewed vigor, were due to 
 several strict and technical decisions of those same courts of 
 law. Before discussing the three most important of those de- 
 cisions — the three constructions which decided the destiny of 
 uses and trusts — it is to be noted that it was held that the 
 statute did not execute uses limited of copyhold lands,^ nor 
 uses of mere chattels,^ nor contingent uses as long as the events 
 had not happened upon which the vesting of the uses depended.* 
 
 The first of the three most important decisions related to 
 uses in estates for years. Since the statute was to operate 
 only where one person was seised to the use of another, it was 
 held by the courts of common law that it did not execute any 
 use where the holder of the legal title had no greater interest 
 than an estate for years." Tiius, if land were conveyed to A 
 for ten years, for the use of B for ten years, this use would not 
 be executed, since A had no seisin and the case was clearly not 
 within the letter of the statute. But it is to be carefully noted 
 that, when the conveyance was to A and his heirs for the use 
 of B for ten years, or to A for life for the use of B for ten 
 years, since in such cases A had tiie seisin, the statute did 
 operate and transfer the legal estate to B, to continue during 
 the same term of years for which he was given the use.^ 
 
 Second. It was further determined, by the common-law 
 courts, that, when the feoffee to uses was required to convey 
 the land, or to receive the rents and profits and pay them over 
 to the beneficiary, or to perform any other active duties in 
 regard to the property, the use, or trust, was not executed by 
 the statute.'' Such a settlement made an active trust. And 
 it has been uniformly and correctly held that such a trust 
 was not within the spirit of the statute.^ To have concluded 
 otherwise would often have resulted in taking the manage- 
 ment of property from a competent trustee and placing it in 
 
 1 Last preceding note. Cas. B. P. 265 ; Wms. R. P. pp. * 184- 
 
 2 Gilbert, Ten. 170 ; Co. Lit. 272 a. * 188. 
 
 ' 1 Perry on Trusts, § 6. ''2 Blackst. Com. p. "sae; 1 Perry 
 
 * Sanders, Uses, 240 et seq. on Trusts, § 6 ; Kay v. Scates, 37 Pa. St. 
 
 6 2 Blackst. Com. p. *336; 1 Perry 31, 37; Hart v. Seymour, 147 111. 598, 
 on Trusts, §6. 611. 
 
 »2 Prest. Cony. 219; Tnd. Lead. ' Pughw. Hayes, 113 Mo. 424; N.Y. 
 
 L. 1909, ch. 52, § 96. 
 
422 ESTATES IN BEAL PROPERTY. 
 
 the hands of an infant, a lunatic, or some other incapacitated 
 cestui que trust. 
 
 Third. The farthest reaching and most strictly technical 
 of these three important adjudications was the decision in 
 TyrreVs Case, to the effect that the statute would not execute 
 a use ".limited on a use;" i. e., if a use were created upon a 
 use, the statute would execute only the first use, and would 
 thus vest and retain the legal estate in the first named cestui 
 que use} Thus, upon the conveyance of land to A, for the use 
 of B, for the use of C (or in trust or confidence for C), it was 
 decided in this case, by the common-law court, that the statute 
 would immediately transfer the legal estate from A to B and 
 would then cease to operate upon it and leave it in B. And 
 the same result must follow, no matter how many successive 
 uses were declared in the instrument of conveyance. Accord- 
 ingly, if realty were granted to A for the use of B, for the use 
 of C, in trust for D, in confidence for E, the statute would 
 simply take the legal estate to B, the first-named beneficiary, 
 and there it must remain so far as the statute was concerned. 
 Having operated once, in executing the first use, the force of the 
 statute upon that conveyance was declared to be wholly ex- 
 pended ; and it could not affect the other uses or trusts declared. 
 " About the time of passing the Statute of Uses," says Mr. 
 Watkins, " some wise man, in the plenitude of legal learning, 
 declared there could not be a use upon a use. This wise dec- 
 
 ^ Dyer, 155. Divested of its techni- aivay. It treated the abstract use as a 
 calities, the effect of the conveyance of real thing, which must have injected 
 the land, by Jane Tyrrel in this case, into it a substantial seisin before it 
 was that she was to have the legal estate, could be transformed into a legal estate, 
 for the nse of her son, for the use of And the argument was that, when 
 herself during her life, and, upon her livery of seisin was made to A, for the 
 death, for the use of her son and the use of B, for the use of C, there was no 
 heirs of his body, but if he had no heirs seisin given to B by the act of the par- 
 of his body then for the use of his heirs ties. Nothing but a use was given to 
 generally. In an opinion of three lines, him. He held a use for C, but no 
 the court declared that the statute exe- seisin. When the statute took the 
 cuted the u!ie in the son, that it then seisin and legal estate from A, it took 
 ceased to affect the title, and that the them for B and not for C. This was 
 legal estate would not be taken from the same kind of reasoning which led 
 him by any further operation of the to the doctrine of scintilla jusis, here- 
 statute. " Use ne puit estre engendre de after explained in connection with shift- 
 use," etc. At no point does English ing uses. Also 36 Hen. VIII. B. N. C. 
 law bear stronger traces of the realistic 284; Doe detn, Lloyd v. Passingham, 
 doctrines of the Schoolmen than in 6 Bam. & Ores. 305 ; Beid v. Gordon, 
 such decisions as that of Tyrrel's Case. 35 Md. 174, 183; Croxall i. Shererd, 
 The mode of thought, which gave rise to 72 U. S. 268; Sanders, Uses, 276; 1 
 such adjudications, has entirely passed Perry on Trusts, § 6. 
 
EQUITABLE ESTATES. — USES. 423 
 
 laration, which must have surprised every one who was not 
 sufficiently learned to have lost his common sense, was adopted 
 and still is adopted, and upon it (at least chiefly) has been 
 built up the present system of uses and trusts."^ For the 
 courts of equity proceeded at once to declare that, in instances 
 like those above stated, B was bound in good conscience to 
 hold the property in trust for C, and likewise must hold his 
 equitable interest upon the further confidence or trust, if any, 
 declared in the Instrument of conveyance. And those courts 
 proceeded by subpoena, as before the statute, to compel the 
 owner of the legal estate (the one to whom the statute had 
 transferred it — the first-named cestui que use — B, in the illus- 
 trations above given) and all the other designated beneficiaries 
 to recognize and perform the trusts, duties, and confidences 
 imposed upon them by the terms of the conveyance or settle- 
 ment.2 The use was thus restored, in full vigor, notwithstand- 
 ing the Statute of Uses ; but, in order to retain it, it was now 
 usually necessary to convey the legal estate to one in whom it 
 was not meant to remain, for the use of him in whom it was 
 intended that it should remain, for the use of (or in trust for) 
 the intended beneficiary. For example, if before the statute 
 was enacted it were desired that A should hold a piece of land 
 for the use of B, it was only necessary to convey it " to A for 
 the use of ^," and thereupon A would hold the legal estate and 
 B the equitable. If it were desired to bring about the same 
 result after the statute went into operation, and Tyrrel's Case 
 had been decided, it could be done by conveying the property 
 " to X for the use of A, for the use of B." The statute then 
 instantly vested the legal estate in A, and equity compelled 
 him, as before, to hold it for the use of B. The desired effect 
 was directly produced, before the statute was enacted ; and 
 afterwards it was produced indirectly by introducing a mere 
 " dummy " as the first feoffee, and saying " to the use " twice. 
 Hence the language of Lord Hardwicke as to the effects of the 
 decision in Tyrrel's Case : " By this means, a statute made 
 
 1 Watkins, Conv. Introd. xx. "It use was void — that, if land were con- 
 had been settled before the statute, as a veyed to A for the use of B, for the use 
 rule of property, that a use could not of C, C got no use, and therefore he 
 be raised upon a use." 1 Perry on had nothing to which the statute could 
 Trusts, § 6. The fundamental princi- carry the legal title. See citations of 
 pie, therefore, upon which was rested preceding note. 
 
 the rule in Tyrrel's Case, was that a ^ Hopkins v. Hopkins, 1 Atk. 581 ; 
 
 use coM not exist upon a use, and if Wms. E. P. p.* 161; 1 Perry on Trusts, 
 
 such a thing were attempted the second § 6. 
 
424 ESTATES IN REAL PBOPEBTY. 
 
 upon great consideration, introduced in a solemn and pompous 
 manner, by this strict construction, has had no other effect than 
 to add, at most, three words," to the use,'' to a conveyance." ^ The 
 doctrine of Tyrrel's Case is elementary law in those states of this 
 country in which it has not been changed by statute.^ (a) 
 
 § 304. HoMV the Court of Chancery retained the Use, under the 
 Name of a Trust. — By the above-explained constructions of the 
 Statutes of Uses, — chiefly by that in Tyrrel's Case, — and by 
 the advantage taken of them by the courts of equity, the use, 
 as such, continued to exist. But if it had been retained with 
 all its objectionable features, which had caused the enactment 
 of the Statute of Uses, there can be no doubt but that legislation 
 would ultimately have swept it entirely out of existence. 
 Therefore it behooved the court of chancery, or equity, which 
 was endeavoring to preserve the use, to so deal with it as to 
 remove the incentives for the enactment of another and possibly 
 a more stringent statute of uses. This was done by giving to 
 the old use a new name, and new and more equitable incidents 
 and characteristics. 
 
 The original distinction between a use and a trust has been 
 heretofore explained.^ After the decision iu Tyrrel's Case, and 
 the consequent revival of the use, this distinction in nomenclat- 
 
 (a) In New York, the rule of Tyrrel's Case has been abrogated since 
 Jan. 1, 1830. The statute, which was formerly 1 R. S. 737, §§ 47, 48, is now 
 § 92 of ch. 52, L. 1909 (Real Prop. Law), and reads as follows: "Every 
 person who, by virtue of any grant, assignment, or devise, is entitled both 
 to the actual possession of real property, and to the receipt of the rents and 
 profits thereof, in law or equity, shall be deemed to have a legal estate 
 therein, of the same quality and duration, and subject to the same condi- 
 tions as his beneficial interest; but this section does not divest the estate 
 of the trustee in any trust existing on the first day of January, eighteen 
 hundred and tliirty, where the title of such trustee is not merely nominal, 
 but is connected with some power of actual disposition or management in 
 relation to the real property which is the subject of the trust." Wendfc v. 
 Walsh, 164 N. Y. 154. See also note on New York express trusts, at the 
 end of Ch. XXI. infra. 
 
 1 Hopkins v. Hopkins, 1 Atk. 581 ; ^^^ """le in Tyrrel's Case is abolished by 
 Wms. R. P. p. *160; Digby, Hist. Law statute; and where the holder of the 
 R. P. (5th ed.) p. 372. legal estate is not given any active duty 
 
 2 See, for example, Martling v. Mart- *° perform, that estate passes to the ulti- 
 ling, 55 N. J. Eq. 771, 750; Cushing v. ™''te beneficiary named in the grant or 
 Blake, 30 N. J. Eq. 689. In many of devise. I Stim.Amer. Stat. L. §§ 1701, 
 the United States, such as Georgia, ^"^^^^ 
 
 Michigan, New York, and Wisconsin, ' § 298, supra. 
 
EQUITABLE ESTATES. — USES. 425 
 
 nre was discarded ; and both of these forms of equitable estates 
 were called trusts} When, therefore, real property was con- 
 veyed to A, for the use of B, for the use of C, B became 
 trustee for C, and C, to whom the " second use " was given, was 
 the cestui qiie trust. It then became necessary to make the 
 division, which is still retained, of all express trusts into two 
 classes, namely, active and passive. The passive express trust 
 of to-day is the old use with its new name ; and the active 
 express trust is practically the trust so called before the Statute 
 of Uses. . 
 
 The incidents and characteristics of the use, now called 
 a passive express trust, were also materially changed, by the 
 application to it of the maxim that " equity follows the law." ^ 
 By this is meant that, as far as their inherent nature will per- 
 mit, equity applies to these equitable estates those rules of law 
 by which legal titles and interests are regulated.^ Thus, they 
 are descendible, devisable, and alienable in the same man- 
 ner as legal estates.* They may be reached in equity by 
 creditors for the satisfaction of debts ; ^ in England by virtue 
 of statutes,^ and in this country by judicial decisions, they may 
 escheat on the death of their owners without heirs who can 
 inherit them,^ and they are forfeitable for treason.* In apply- 
 ing the maxim that equity follows the law, it was soon decided, 
 also, that a -husband may have curtesy in the equitable estates 
 owned by his wife, unless on there being conveyed to her for her 
 sole and separate use his marital rights in them are expressly 
 
 1 Digby, Hist. Law E. P. (5th ed.) por's Case, 1 Smith's Lead. Cas. 119, 
 p. 372. " Judge Hare's note ; Nichols v. Levy, 
 
 2 Burgess K.Wheate,! Win. Blackst. 5 Wall. (U. S.) 4.33, 441; Hallett v. 
 123, 155; Croxall u. Sbererd, 72 U. S. Thompson, 5 Paige (N. Y.), 583; 
 268, 281. Blackstone Bank v. Davis, 21 Pick. 
 
 ' Bispham's Prin. Eq. § 38. See (Mass.) 42; Easterly d. Keney, 36 Conn. 
 
 Magniac i. Thomson, 15 How. (U. S.) 18, 22; Taylor o. Harwell, 65 Ala. 1. 
 281; Hedges v. Dixon Co., 150 U. S. 6 47 & 48 Vict. ch. 71, § 4. 
 
 182-192. ' Johnston v. Spicer, 107 N. Y. 185; 
 
 * Burgess !-. Wheate, 1 Wm Blaekst. Matthews v. Ward, 10 Gill & J. (Md.) 
 
 155, 161 ; Price i-. Sisson, 13 N. J. Eq. 443, 454. 
 
 168, 174; Cornwell v. Ortou, 126 Mo. * This is the result of statute in 
 
 355; Faries' Appeal, 23 Pa. St. 29; England. 33 Hen. VIII. ch. 20. 
 
 Fearne, Cont. Rem. p. 284 ; 2 Lewin on Before this, in all cases of forfeiture, 
 
 Trusts, p. * 823. the trustee took the property freed from 
 
 ' The cestui que trust can not hold the trust. Burgess v. Wheate, 1 Eden, 
 
 and enjoy the property freed from the 199. In this country, practically the 
 
 duty of having it applied to the satis- only forfeiture of property is for trea- 
 
 faction of his debts. And this has been son, during the life of the person at- 
 
 the rule of equity, practically ever since tainted, and this applies to all kinds of _ 
 
 the decision in Tyrrel's Case. Dum- property alike. 
 
426 ESTATES IN REAL PROPERTT. ^ 
 
 excluded.^ But, when the question arose as the wife's dower in 
 property held in trust for her husband, it was decided that she 
 should not be endowed of such estates, because presumably she 
 was already provided for by a jointure or marriage settlement, 
 and titles would be disarranged by giving her dower.^ And 
 such was the law of England, until by the Dower Act of 1834 
 (3 & 4 Wm. IV. ch. 105) this anomaly was removed, and 
 dower was added as an incident to equitable estates. In most 
 of the states of this country, a widow has always been dowable 
 out of equitable estates of her husband.^ It is to be added that, 
 in dealing with executory trusts, which will be more fully 
 explained hereafter,* and which are trusts in an inchoate con- 
 dition, with their full quality or duration yet to be determined 
 by the trustee, equity will often refuse to apply the strict rules 
 by which legal estates are governed.^ 
 
 In a general summary, it may be said that, after the deci- 
 sion in Tyrrel's Case, the courts of equity retained the old use 
 with the new appellation of a trust, and applied to it the same 
 principles which courts of law apply to legal estates, except 
 that, for a long time they recognized no dower in it, in many 
 instances they refused to follow the law in dealing with execu- 
 tory trusts, and they would not follow the law in cases in 
 which such a course would be inconsistent with the nature 
 of the equitable estate itself, as in the instance of the exclusion 
 of curtesy from a trust for the sole and separate use of a mar- 
 ried woman. By these methods, equity retained, moulded, 
 and perfected the different forms of trusts, which now consti- 
 tute so large and important a 'part of our real property, and 
 which are next to be classified and discussed. 
 
 1 Roberts v. Dixwell, 1 Atk. 607; Ind. 179. See Phelps v. Phelps, U3 
 
 Morgan «. Morgan, 5 Madd. 408; Coch- N. Y. 197; Nichols v. Park, 78 N. Y. 
 
 ran D. O'Hern, 4 W. & S. (Pa.) 95, 99; App. Div. 95. But in Maine and 
 
 Rigler v. Cloud, 14 Pa. St. 361,363; Alassachnsetts a wife is not dowable of 
 
 Lewin on Trusts, pp. * 11, * 221,* 733; her husband's equitable estates. Hara- 
 
 1 Perry on Trusts, § 323. lin v. Hamlin, 19 Me. 141; Reed v. 
 
 ^ Co. Lit. 208 a (n. 105); D'Arey Whitney, 7 Gray (Mass.), 533; Lobdell 
 
 11. Blake, 2 Sch. & Lef. 387; Mayburry v. Hayes, 4 Allen (Mass.), 187. 
 V. Brien, 15 Pet. (U. S.) 21, 38; 1 * § 309, w/ra. 
 
 Perry on Trusts, § 323. ^ Wood !•. Burnbam, 6 Paige 
 
 8 Shoemaker !•. Walker, 2 Serg. & (N. Y.), 513; Pillot v. Landon,46 N. J. 
 
 R. (Pa.) 554; Hawley u. James, 5 Paige Ijlq. 310, 313; Bartlett v. Remington, 
 
 (N. Y.), 318; Mershon v. Duer, 40 59 N. H. 364; 4 Kent's Com. p. * 219. 
 N. J. Eq. 333 ; Stroup v. Stroup, 140 
 
(2) TRUSTS. 
 CHAPTER XX. 
 
 KINDS OF TRUSTS. 
 
 § 305. Classification of trusts. j §,309. Executed and executory 
 
 § 306. Trusts, lawful and unlaw- j trusts, 
 
 ful. i § 310. Trusts, a. Express [(a) 
 
 §307. Trusts, active or special, j Active, (b) passive], and b. Inl- 
 and passive, simple, or general. | plied [(a) resulting, (b) construe- 
 
 §308. Trusts, private and public, j tive]. 
 
 or charitable. i 
 
 § 305. ciaBsifioations of Trusts. — The different methods 
 of classifying trusts, which have been adopted by courts and 
 text-writers, may often lead to confusion, unless the reader 
 is constantly alert as to the meaning which is to be attached 
 in each case to the terms employed. This is specially true 
 as to the expression "implied trusts." It is, therefore, 
 necessary, in approaching the discussion of trusts, to explain 
 carefully the meanings of the various kinds of them which 
 are to be described and examined. The divisions and mean- 
 ings here adopted are believed to be those which are most 
 natural and most commonly accepted and used by the best 
 judges and writers. 
 
 § 306. Trusts, Lawful and Unlawful. — One division of all 
 trusts, which practically defines itself, is into lawful and 
 unlawful. Most trusts are, of course, lawful ; that is, they 
 exist for some fair and honest purpose recognized and upheld 
 by law. An illustration of an unlawful trust would be one 
 for some vicious or immoral purpose, or otherwise in viola- 
 tion of public policy or statutes; as a trust to encourage 
 crime, or to violate the excise laws, or the statutes of mort- 
 main, or those in regard to aliens,^ or the rules hereafter cx- 
 
 1 Bacon on Uses, 9 ; Servis y. Nelson, Masi. 9; Dunham v. Presby, 120 Mass, 
 14 N.J. Eq. 94; Snell u. Dwight, 120 285. 
 
428 LoTATES IN REAL PilOPERTY. 
 
 plained against perpetuities or accumulations.^ Equity brought 
 the trust into existence, as a new estate ; but no court will up- 
 hold it for any illegal purpose. 
 
 § 307. Trusts, Active or Special, and Passive, Simple, or 
 General. — As already explained, an active or special trust 
 is one in which something is required to be done by the 
 trustee, in order to cavi-y out the intention of the settler, 
 as to keep the property in repair, to sell or mortgage it^ 
 to receive the rents and profits, and to pay them over to the 
 cestui que trust, and the like ; while a passive trust — or, 
 as it is sometimes called, a simple or general trust — 
 merely vests the legal title in the trustee as a kind of re- 
 ceptacle, but imposes no active duty upon him.^ Most of 
 the implied trusts (as the word " implied " is used in tliis 
 treatise) are passive; while some express trusts are active 
 and others passive. Therefore trusts as active and passive 
 are more fully discussed hereafter, as subdivisions of e.xpicts 
 trusts. 
 
 § 308. Trusts, Private and Public, or Charitable. — Private 
 trusts are those in which the beneficial interests are vested in 
 one or more individuals, or families, who are definitely as- 
 certained, or may be so within a certain time. They must 
 not only be for the benefit of certain and determined indi- 
 viduals; but they are also generally limited in their duration,, 
 being restricted in time, by the so-called rule against perpe- 
 tuities, to a period of not more than a life or lives in being and 
 twenty-one years, and the period of gestation of a child in 
 addition.^ Public or charitable trusts are not thus restricted, 
 but have three leading and distinguishing features, namely: 
 first, their purpose must be some public utility, and, there- 
 fore, they must exist for the benefit of the public generally, or 
 of some considerable portion of it which answers to a par- 
 ticular description;* second, their beneficiaries must be in- 
 definite as to the individuals * and third, they are not 
 restricted, as to time, by the rule against perpetuities, but 
 
 1 Central Trust Co. v. Bgleston, 185 * Doyle v Whalen, 87 Me. 414, 425; 
 
 N.Y. 23. The rules against perpetuities Lewin on Trusts, p. *20; 2 Perry on 
 
 and accumulations, ch. Ixx, infra ; Gray, Trusts, § 697. 
 
 Perpetuities, ch. ir; Chaplin, Suspen- ^ Philadelphia r. Fox 64Pa. St. 169, 
 
 sion of Power of Alienation, ch. ii. 182; Jackson v. Phillips, 14 Allen 
 
 3 % 298, supra. (Mass.), 539, 5,50; Hopkins u. Grim- 
 
 » Rice V. Barrett, 102 N. Y, 161 ; ehaw, 165 U. S. 342, 352. 
 
 Manice v. Manice, 43 N. Y. 303. 
 
EQUITABLE ESTATES. — KINDS OF TRUSTS. 429 
 
 may be made to continue indefinitely.^ Cliaritable trusts 
 will be more fully discussed hereafter, as one of the forms 
 of express trusts. 
 
 § 309. Executed and Executory Trusts. — In a broad, gen- 
 eral sense, all trusts are executory ; that is, there is some 
 duty, either active or passive, for the trustee to perform, or 
 execute. But such is not the meaning of the courts when 
 they speak of an " executory trust. " The distinction between 
 such a trust and one which is executed has to do rather with 
 the completeness and perfection of their creation by the settler, 
 than with the conduct of the trustee in performing the duties 
 of his office.^ An executed trust is one so clear and definite, 
 in the terms by which it is created, that the trustee has' noth- 
 ing to do but to carry out literally the requirements and pro- 
 visions of the instrument.^ The settler, or creator, of such a 
 trust has become "his own conveyancer;" and has made the 
 trustee merely a medium for carrying out his puipose as ex- 
 pressed in the making of the trust.* An executory trust, on 
 the other hand, is one in which property is conveyed to a 
 trustee, to be by him settled or conveyed upon other trusts, 
 on the happening of designated events or contingencies ; and 
 those other trusts are only outlined, or imperfectly stated, so 
 that the trustee is given a discretion in filling out the details 
 and completing the scheme of the trust. The settler has not 
 become his own conveyancer; but has left it to the trustee 
 and the court to make out his intention from general expres- 
 sions. It is called executory, not because the work of the 
 trustee in carrying out the trust is to be performed in the 
 future, but because the trust instrument is to be filled out and 
 perfected in accordance with the general instructions of the 
 settler.^ Thus, if land be conveyed to A, in trust to manage 
 and pay the net income to B during his life, and at B's death 
 to divide the corpus equally among his children then living, 
 the trust is executed. But if real property be given to A, in 
 trust to settle the same upon B and C and their issue, in case 
 
 ' Hopkins v. Grimshaw, 165 U. S. La Fayette, 115 Ind. 423; Martling v. 
 
 342; Andrews ». Andrews, 110111.223; Martling, 55 N.J. Eq. 771, 780; Till- 
 
 Mills V. Davison, 54 N. J. Eq. 659. inghast v. Coggeshall, 7 K. I. 383. 
 
 2 I Perry on Trusts, § 359. ^ Austen v. Taylor, 1 Edeu, 361, 
 
 ' Wright 0. Pearson, 1 Eden, 119, 366; Neves v. Scott, 9 How. (U. S.) 
 
 125; 4 Kent's Com. p. * 220. 196, 211; Wood v. Burnham, 6 Paige 
 
 * Edgerton v. Brownlaw, 4 H. L. (N. Y.), 518, 26 Weud. (N. Y.) 9; Cush- 
 
 Cas. 1, 210; Glenorchy v. Bosville, 1 man d. Colemau, 92 Ga. 772. 
 Lead. Cas. Eq. 1, note; Gay lord v. 
 
430 ESTATES IN BEAL PROPERTY. 
 
 they intermarry, and nothing more be expressed as to the 
 terms and conditions of such settlement, the trust is exec- 
 utory.^ In both of these illustrations, the work of the 
 trustee is to be done in the future. But, in the former, he 
 has only to carry out the provisions of a fully declared trust; 
 while, -in the latter, he is to participate in moulding and 
 perfecting the trust scheme itself. 
 
 The most important practical distinction between executed 
 trusts and those that are executory is that -equity strictly 
 follows the law in dealing with the former, but frequently fails 
 to do so in carrying out the latter.^ In the one, the rules of 
 law prevail, even though the settler's intention may be thereby 
 defeated; in the other, his intention is sought to be effectuated, 
 even though technical rules of law may be thereby sometimes 
 disregarded.^ If, for example, a lot of land were deeded to 
 A, in trust to manage for B during his life, and at B's death 
 for his children equally, the children would obtain only life 
 estates, since the ultimate gift was not to them and .their 
 heirs, and the technical rule of the common law requires the 
 use of the word "heirs," in order to thus convey an interest 
 greater than one for life.* But if the grant or devise were to 
 A in trust to manage for B during his life, and at his death 
 to settle upon his children, the terms of the settlement being 
 left indefinite and not fully prescribed; when the formal 
 instrument, by which this general scheme was to be carried 
 out, came to be drawn, the ultimate settlement would be made 
 upon B's children and their heirs, thus giving them absolute 
 estates in fee simple, if this could fairly be regarded as the 
 intention of the grantor or testator.^ 
 
 In dealing with an executory trust, a court of equity is 
 constantly seeking to ascertain and carry out the intention of 
 
 1 Austen v. Taylor, 1 Eden, 361, settlement which will best give effect 
 
 366 ; Cashing v. Blake, 30 N. J. Eq. to the settler's intention, and for this 
 
 689 ; Carney v. Cain, 40 W. Va. 758. purpose may even, disregard the con- 
 
 ^ Wright V. Pearson, 1 Eden, 119; struction the instrument would receive 
 
 Jones V. Morgan, 1 Brown, C. C. 206 ; at law." Pilot v. Landon, 46 N. J. Eq. 
 
 Price u. Sisson, 13 N. J. Eq. 168; 310,313. 
 Smith's Estate, 144 Pa. St. 428. 4 HoUiday v. Overton, UBeav. 467 ; 
 
 3 Ibid. " In practice the chief dis- Lucas v. Brandreth, 28 Beav. 274 ; 
 
 tinction between au executed and an Nelson v. Davis, 35 Ind. 474. 
 executory trust lies in the fact that the 6 Moore v. Cleghorn, 10 Beav. 423 ; 
 
 former executes itself by converting its Watkins «. Weston, 32 Beav. 238 ; Doe 
 
 limitations into the corresponding legal «. Cafe, 7 Exch. 675. See Pitman v. 
 
 estates, whereas in the latter, the court Pitman, 1 1 Lawy. Rep. Ann. 456, and 
 
 may direct that form of conveyance or note. 
 
EQUITABLE ESTATES. — KINDS OP TRUSTS. 431 
 
 the settler, even at the expense of hard and rigid principles 
 of law. The evidence of intention is to be gathered, of course, 
 primarily from the entire instrument by which the general 
 scheme is outlined. When, for example, the scheme or gen- 
 eral plan is contained in a will, the whole document — includ- 
 ing the parts which do not bear directly upon the trust — is 
 to be studied, in the light of the testator's condition and sur- 
 roundings ; and the trust is to be moulded in accordance with 
 the clear intent thus ascertained.^ But, in shaping an execu- 
 tory trust outlined by a marriage settlement, the court is aided 
 also by the presumption that the intention of the settler was 
 to benefit the issue of the marriage.^ No such presumption 
 exists in the construction of wills ; but the intent must plainly 
 appear from the words of the testator. ^ There is, indeed, no 
 difference between the rules of interpretation and construction 
 of wills, and those which apply to marriage settlements ; the 
 intention alone is sought in both; but in dealing with the 
 latter documents res ipsa loquitur, the occasions which give 
 rise to them evince what may be presumed to have been the 
 paramount object of the settlers.* This presumption will 
 readily yield, of course, to a contrary intent clearly expressed 
 in the marriage articles. 
 
 When it is said that equity in dealing with an executory 
 trust may disregard technical rules of law, it must not be 
 understood that that court may thereby produce any result 
 that is in itself illegal. It simply chooses among possible 
 legal constructions that which most nearly conforms to the 
 expressed or presumed intention of the settler, rather than 
 that which follows hard and fast principles of interpretation. 
 This is apparent from the illustrations already given. And, 
 it is to be added, that in striving to effectuate the wishes of 
 the creator of the trust, even where he has outlined a scheme 
 that is partly illegal, equity will construe the instrument cy 
 pres, — as nearly as possible to, — his expressed intention, 
 and will give effect to the legal parts of his plan, if they can 
 
 1 Blackburn v. Stables, 2 Ves. & R. 4 H. L. 543, 565 ; 1 Perry on Trusts, 
 
 Bea. 367, 369 ; Sweetapple v. Bindon, 2 §§ 360-366. 
 
 Vern. 536; Roe i,. Viugut, 117 N. Y. '^ Sweetapple v. Bindon, 2 Vern. 
 
 202, 204 ; Clark v. Cammann, 160 N. Y. 536 ; 1 Perry on Trusts, § 366. 
 315, 324; In re Hammer's Est., 158 Pa. * Sackville-Westy. Holmesdale, L. R. 
 
 St. 632; Adams v. Cowen, 177 U. S. 4 H. L. 543, 565 ; Bispham's Prin. Eq. 
 
 471. § 57. 
 
 ^ Sackville-West v, Holmesdale, L. 
 
432 ESTATES IN KEAL PROPERTY. 
 
 be properly and fairly separated from the portions which are 
 illegal.^ Thus, where a devise was made to a trustee, to 
 settle the property upon A for life, and then to his first son 
 for life, and then to that son's son for life, and so on for 
 many generations yet to come into being, it was held that 
 the attempt thus to create life estates for persons not in 
 being was void, because it violated the rule against perpetu- 
 ities, but that the general scheme of the testator should be 
 effectuated as nearly as.,possible, by giving trust interests for 
 life to the sons in being, and the ultimate ownership abso- 
 lutely or in fee simple to their children.^ But, when the gift 
 is such that it can not legally be carried out in any form 
 approximating the intention of the settler without contra- 
 vening some positive statute or rule of law, the entire trust, 
 whether executed or executory, is void.^ 
 
 § 310. Trusts : a. Express ; and b. Implied. — The most im- 
 portant division of trusts is that made in reference to the 
 mode of their creation, into a. Express and b. Implied. 
 
 a. Express trusts are such as are created by the language 
 of the parties. They may arise from explicit statements, 
 whereby the relation of trustee and cestui que trust is plainly 
 established, or from expressions of a less certain character, 
 which the courts have uniformly construed as evincing an 
 intent to create a trust. ^ Some writers, among whom Mr. 
 Perry is prominent, call those trusts implied, which are not 
 unequivocally expressed in direct terms, but are to be spelled 
 out by the court " from the whole transaction and the words 
 iised."^ But this style of nomenclature is opposed by the 
 best courts and the majority of careful writei's.^ If the maker 
 of the instrument declare the trust by any form of words, it 
 should be called an express trust; and it will be so named in 
 this treatise. Confusion is avoided and a system in harmony 
 with the great weight of authority is produced by classifying 
 as express all trusts which are declared by the words of the 
 parties, whether in explicit terms, or by the employment of 
 such language as will not reveal a trust unless it is carefully 
 
 1 Hnmbertson v. Humbertson, 2 * Bispham's Priu. Eq. § 63. 
 Veru. 737 ; 1 Perry on Trusts, § 376. ^ j perry ou Trusts, § 112. 
 
 2 Humbertson v. Humbertson, 2 " Neal v. Clark, 95 U. S. 704, 709 ; 
 Vern. 737; Bailey v. Bailey, 28 Hun Mulock v. Byrnes, 127N. Y. 23; Cronon 
 (N. y.), 603. V. Cotting, 104 Mass. 245 J Bispham's 
 
 " Blagrave v. Hancock, 16 Sim. 371 ; Prin. Eq. § 78. 
 Manlee v. Manice, 43 N. Y. 303. 
 
EQUITABLE ESTATES. — KINDS OF TRUSTS. 433 
 
 read in the light of established rules of interpretation and 
 construction. As thus understood, express trusts include 
 those which are precatory ; that is, those created, not by direct 
 words of command, but by expressions of hope, request, ex- 
 pectation, entreaty, and the like.^ Charitable trusts, and 
 several other special forms of these equitable estates ai-e 
 also to be examined as species of express trusts. An ex- 
 press trust Euay be either (a) active or (b) passive. 
 
 h. Implied trusts, as the term is generally and more prop- 
 erly employed, are those which arise by implication of equity, 
 either for the purpose of carrying out the presumed intention 
 of the parties, or to work out justice between them regardless 
 of what their intention may have been. They rest, not upon 
 the wording or construction of any contract or instrument, 
 but upon the acts and transactions of the interested parties. 
 Those which are implied for the purpose of carrying out the 
 presumed intention of the parties are (a) resulting trusts. And 
 those which are implied to work out justice, regardless of 
 what the parties to the transactions may have intended, are 
 (b) constructive trusts.^ 
 
 The ultimate analysis of these various forms of trusts, 
 classified with respect to the mode of their creation, leads 
 to their discussion under two chief divisions and four sub- 
 divisions, namely: a. Express trusts, which are, (a) active 
 and (b) passive ; I. Implied trusts, which are, (a) resulting 
 and (b) constructive. 
 
 1 Knight V. Knight, 3 Beav. 148, ^ Bisphara's Prin. Eq. § 78; 1 Perry 
 
 173; Hill V. Hill (1897), 1 Q. B. 483 ; on Trusts, §§ 26, 27. 
 Clay 0. Wood, 153 N. Y. 134 ; Colton v. 
 Colton, 127 U. S. 300. 
 
 28 
 
CHAPTER XXI. 
 
 EXPRESS TRUSTS. — THEIR CREATION, REVOCATION, REQUISITES, 
 AND FORMS. — POWERS IN TRUST. 
 
 Creation of Express Trusts. 
 
 § 311. Creation of express trusts 
 at common law. 
 
 § 312. Proof required by Statute 
 of Frauds. 
 
 § 313. The statute a rule of evi- 
 dence. 
 
 § 314. Forms and operation of 
 the statute in the United States. 
 
 § 315. The writing required. 
 
 § 316. Language to be used in 
 creating express trusts. 
 
 Direct Words of Trust. 
 
 § 317. Direct words of contract, 
 command, or declaration. 
 
 § 318. First. Trusts created on 
 transfer of legal estate. 
 
 § 319. Second. By settler mak- 
 ing himself trustee. 
 
 § 320. Third. Executory agree- 
 ment or promise to settle property 
 in trust. 
 
 § 321. Revocation of trusts 
 created by direct words. 
 
 Precatory/ Words. 
 
 § 322. Precatory trusts. 
 
 § 323. Intention the chief expo- 
 nent of precatory trusts. 
 
 § 324. Certainty of beneficiaries. 
 
 § 325. Certainty of subject- 
 matter. 
 
 § 326. Other tests as to preca- 
 tory trusts. 
 
 § 327. Requisites 
 trusts generally. 
 
 of express 
 
 Kinds of Express Trusts and Trust 
 Interests. 
 
 § 328. Express trusts, active and 
 passive. 
 
 § 329. (a) Active express trusts. 
 
 § 330. (b) Passive express trusts 
 — or uses — when executed. 
 
 § 331. Effects of active trusts be- 
 coming passive. 
 
 § 332. Powers in trust. 
 
 § 333. Execution of powers in 
 trust. 
 
 Specific Kinds of Express Trusts. 
 
 § 334. Purposes for which ex- 
 press trusts may exist. 
 
 § 335. Spendthrift trusts. 
 
 § 336. Separate use trusts — for 
 married women. 
 
 § 337. Trusts for charities. 
 
 § 338. Definitions and essentials 
 of charitable trusts. 
 
 § 339. First. They are for pub- 
 lie utility — Purposes included.- 
 
 §340. Religious purposes — Su- 
 perstitious uses. 
 
 § 341. Educational purposes. 
 
 § 342. Eleemosynary purposes. 
 
 § 343. Governmental purposes. 
 
 § 344. Other charities. Criterion 
 as to charitable purpose. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 436- 
 
 § 345. Second. Indefinite bene- 
 ficiaries of charitable trust. 
 
 § 346. Degree of uncertainty. 
 
 § 347. The cy pres doctrine — 
 Judicial cy pres. 
 
 § 848. Prerogative cy pres. 
 
 § 349. Approval of judicial cy- 
 pres in this country. 
 
 § 350. Third. Charitable trusts- 
 generally unaffected by rules against 
 perpetuities and accumulations. 
 
 Creation of Express Trusts. 
 
 § 311. Creation of Express Trusts at Common Law. — At 
 common law the most ordinarj- method of conve)'ing corporeal 
 hereditaments was by means of livery of seisin, frequently 
 accompanied by a deed of feoffment. But the deed, although 
 customarily used, was not necessary. The livery of seisin, 
 in the presence of the witnesses, — the handing over, by the 
 one party to the other, of a stone, twig, clod of earth, or other 
 symbol, either on the land itself, or within sight of it, — 
 was a sufficient ceremony to accompany the oral statement that 
 this was done in the name of seisin and for the purpose of 
 transferring the property.^ Practically, all authorities are now 
 agreed that any property of which the legal estate could be 
 thus conveyed could be settled to use or in trust by oral state- 
 ment. Technically, trusts were said to be "averrable;" that 
 is, they could be declared and created by word of mouth. ^ 
 But the better opinion is that, when a deed was needed for 
 the conveyance of the legal estate, a deed was also requisite 
 to the proper declaration of a trust. Thus, a transfer by 
 covenant to stand seised to uses, which method of conveying 
 the legal estate will be hereafter explained, required a deed 
 for the raising of a use or trust. ^ And it seems to be safe to 
 assert, though upon no direct authority, that a writing was 
 necessary to the declaration of a trust in incorporeal heredit- 
 aments, because the creation and transfer of legal estates in 
 them must be by deed of grant. And so the law remained 
 until the Statute of Frauds' went into operation, in 1677. 
 
 § 312. Proof required by the Statute of Frauds. — By the 
 seventh section of the English Statute of Frauds, it was enacted 
 that "all declarations or creations of trusts, or confidences of 
 any lands, tenements, or hereditaments, shall be manifested 
 
 1 2 Sand. Uses and Trusts, 1-8 ; § 287, " Gilbert on Uses, 270 ; Adlington v. 
 
 supra. Cann, 3 Atk. 141 ; Fordyce v. Willis, 3 
 
 = Fordyce i-. Willis, 3 Bro. Ch. 577, Bro. Ch. 577, 687. 
 587; Adlington i. Cann, 3 Atk. 141; 
 1 Perry on Trusts, § 75. 
 
436 ESTATES IN REAL PROPERTY. 
 
 and proved by some writing signed by the party who is by law 
 entitled to declare such trust, or by his last will in writing; 
 or else they shall be utterly void and of none effect. " The 
 eighth section excepted from the operation of the statute all 
 trusts which arise or result by implication or construction of 
 law ; that is, it left all implied trusts unaffected by the statute. 
 And the ninth section provided that "all grants or assign- 
 ments of any trust or confidence shall likewise be in writing, 
 signed by the party granting or assigning the same, or by 
 such last will or devise, or else shall likewise be utterly void 
 and of none effect. "^ Those three sections of the act, then, 
 were made, to regulate the proof and transfer of express trusts 
 of real property. All estates for years and leasehold interests, 
 as well as freehold estates, are within the statute; but not 
 mere personal interests or claims in land.^ The statute does 
 not affect trusts of personalty ; ^ and where real property is 
 transferred to a trustee under an oral trust in itself unenforc- 
 ible because of the statute, if the terms of the agreement be 
 so far performed that the property is converted into person- 
 alty, the oral declaration of trust then becomes sufficient, and 
 the trustee can be compelled to carry out its provisions.* 
 
 § 313. The Statute a Rule of Evidence. — The Statute of 
 Frauds, in this seventh section, as well as in most of its other 
 departments, prescribes a rule of evidence, rather than a re- 
 quirement as to manipulating property.^ It does not demand 
 that trusts of real property shall be created by a writing; but 
 enacts that they "shall be manifested and proved by some 
 writing." The evidence of the existence of the trust must 
 be written, or the cestui que trust is without remedy against 
 the trustee. But, whatever may have been the actual mean- 
 ing intended by its framers, the uniform construction of this 
 section has been that it does not forbid the making of a real 
 property trust by parol. ^ Such a trust may be brought into 
 
 1 29 Car. II. ch. 3, §§ 7, 8, 9. Iowa, 397 ; Owens v. Williams, 130 N. 
 
 2 Benbow v. Townsend, 1 Myl. & K. C. 165. 
 
 506; Skett v. Whitmore, Freem. 280; 5 Hutchins w. Van Vechten, 140 N. Y. 
 
 Hutching v. Lee, 1 Atk. 447 ; BeUasis v. 115, 118; Crane v. Powell, 139 N. Y. 
 
 Compton, 2 Vern. 294. 379 ; Forster v. Hale, 3 Ves. 696, 707. 
 
 3 Hirsh tf. Aner, 146 N. Y. 13, 19; « Forster v. Hale, 3 Ves. 696, 707; 
 1 Perry on Trusts, §86. Randall v. Morgan, 12 Ves. 67, 74; 
 
 * Bork V. Martin, 132 N. Y. 280; Steere v. Steere, 5 .Johns. Ch. (N. Y.) 1 ; 
 In re Siraond's Estate, 201 Pa St. 413 ; Barrell v. Joy, 16 Mass. 227 ; Hutchinsw. 
 State I). Rondebush, 114 Ind. 347; Van Vechten, 140 N. Y. 115; Martin w. 
 McCormick H. M. Co. v. Griffin, 116 Baird, 175 Pa. St. 540; 1 Perry on 
 
 Trusts, § 79. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 437 
 
 being by oral contract or settlement, and exist for a time as 
 an unenforcible but otherwise valid arrangement; and a writ- 
 ing may then be executed which will relate back and make 
 the trust eni'orcible ab initio by the cestui que trust. Accord- 
 ingly, in an early case, a testator was held capable of devis- 
 ing by his will, which could not pass real property acquired 
 by him after its execution, his interest as cestui (jue trust in a 
 tract of land, the trust in which was orally created in his favor 
 before the will was executed, although the written acknowl- 
 edgment of the trust was not made until some time after 
 the will.i 
 
 § 314. Forms and Operation of the Statute in the United 
 States. — lu most of the United States, this seventh section 
 of the old English Statute of Frauds has been re-enacted or 
 tacitly adopted. Its phraseology has been changed in a few 
 of the states, so as apparently to require that trusts of real 
 property must be made, or brought into being, by a writing. 
 Thus, in Maine, ^ Massachusetts, ^ Vermont,* Indiana, ^ and 
 Wisconsin,^ the form of the statutes is, in substance, that 
 such trusts shall bo " created and declared " in writing ; while 
 in Illinois, ''''declarations or creations of trusts must be mani- 
 fested and proved" in writing.' But the view is now gen- 
 erally accepted that such changes of words have not altered 
 the general rule, as settled with reference to the Statute of 
 29 Car. II. ch. 3, and that, under all of these enactments, 
 a writing will be sufficient to establish a trust in real prop- 
 erty, although it is not executed until after the trust is orally 
 created.* The Court of Appeals of New York has declared, 
 however, that, between 1829 and 1860 the statute of frauds of 
 that state did not permit such a trust to " be created or estab- 
 lished except by a deed or conveyance in writing." Before 
 January 1, 1830, the form of the New York statute was sub- 
 stantially the same as that of England; and by chapter 322 of 
 
 1 Ambrose v. Ambrose, 1 P. Wms. * Pinnock v. Clough, 16 Vt. 500, 
 
 321. "There is a distinction between an 508. 
 
 agreement and a trust under the Statute ' Rev. Stats. (1881) § 2969. 
 
 of Frauds, and a trust need not, like an ° Begole v. Hazzard, 81 Wis. 274. 
 
 agreement, be constituted or created by 'Rev. Stats. (1877) § 9, p. 522; 
 
 writing." Kent, Ch. in Moran r. Hays, Home v. Ingraham, 125 111. 198. 
 
 1 Johns Ch. (N. Y. ) 339, 342. 8 Sheet's Est. 52 Pa. St 257 : .T.-Kjues 
 
 ^ Rev. Stats. (1857) ch. 73, § 11. v. Hall, 3 Gray (Mass.), 194 ; Browne, 
 
 ' Jenkins y. Eldridge, 3 Story (U. S. Stat, of Frauds, § 109; 1 Perry On 
 
 Cir. Ct.), 181, 294 ; Blodgett v. Hildreth, Trusts, § 81. 
 
 103 Mass. 484, 486. 
 
438 ESTATES IN REAL PEOPERTT. 
 
 its laws of 1860, that form was practically restored in New- 
 York, and since that time has been continuously retained. ^ (a) 
 § 315. The Writing required by the Statute. — The 'Writing, 
 required by the statute to "manifest and prove" a trust of 
 real property, must clearly indicate the objects and nature of 
 the trust, the parties to it, the relations which they sustain 
 to one another, and the proportions in which they are to take, 
 
 (a) The history of the statute in New York is as follows : " The English 
 statute on this subject (29 Car. IT. oh. 3), in its essential features was 
 enacted in this state by the act of Feb. 26, 1787, the 12th- section of 
 which provides that ' all declarations or creations of trusts of any lauds 
 shall be manifested and proved by some writing signed by the party en- 
 titled by law to declare the trust.' Thus the law stood for about forty 
 years, until the general revision of the statutes, when it was changed and 
 3uade to read as follows : ' No estate or interest in lands, other than leases 
 ior a term not to exceed one year, nor any trust or power over or concern- 
 ing lands, or in any manner relating thereto, shall hereafter be created, 
 granted, assigned, surrendered, or declared, unless by act or operation of 
 law, or by a deed or conveyance in writing subscribed by the party creating, 
 granting, assigning, surrendering, or declaring the same, or by his lawful 
 agent thereunto authorized by writing.' (2 R. S. 135, § 6.) After the 
 revision, a trust of the character claimed by the plaintiff in this case," 
 {an express trust of realty), " could not be created or established, except 
 by a deed or conveyance in writing. But, by chapter 322 of the laws of 
 1860, the legislature restored the law to its original condition, by an 
 amendment to the seventh section, substantially providing that a declar- 
 ation of trust in lands might be proved by any writing subscribed by the 
 party declaring the same. It is not now necessary to produce a deed or 
 formal writing intended for the purpose, in order to prove the trust, but 
 letters or informal memoranda signed by the party, and even admissions 
 in a pleading in another action between other parties, if signed by the 
 party with knowledge of its contents, will satisfy the requirements of the 
 statute, if they contain enough to show the nature, character, and extent 
 of the trust interest." O'Brien, J., in Hutchinst). Van Vechten, 140 N. Y. 
 115, 118. See also Crane v. Powell, 139 N. Y. 379 ; Bates v. Lidgerwood 
 Mfg. Co., 130 N. Y. 200; Mc Arthur v. Gordon, 126 N. Y. 597. It was 
 .«aid in Cook v. Barr, 44 N. Y. 157, that the change in the wording of the 
 statute between 1830 and 1860 did not change the meaning, and that it 
 has always been sufiBcient in New York to manifest and prove a trust in writ- 
 ing. But it is to be noted that both this statement and that quoted above 
 from Hutchins v. Van Vechten are merely dicta, and that there is no actual 
 adjudication upon the question in New York. But the dictum of Hutchins 
 V. Vechten is to be taken as the stronger, as well as the later, and as prob- 
 ably expressing the law to be hereafter followed. 
 
 The statute, substantially in the form quoted by Judge O'Brien in the 
 last-mentioned case, is now § 242 of the Real Property Law, L. 1909, ch. 
 52. 
 
 1 Hutchins v. Van Vechten, 140 N. Y. 115. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 439 
 
 and, in general, all the material elements of the contract or 
 settlement.^ But no particular form of the writing is re- 
 quired. A mere memorandum, an affidavit, ^ a note at the 
 end of a deed,^ or even a letter, though addressed to some 
 third party, if properly signed and adequately expressing what 
 the trust is, will comply with the requirements of the statute.* 
 When the writing consists of several distinct papers or sheets, 
 and one is properly signed, or subscribed, as the statute may 
 require, the generally adopted rule is that there must be in 
 the signed sheet a reference sufficient to identify and connect 
 with it the sheets or portions which are not signed.^ 
 
 In cases in which certain formalities are requisite to the 
 transfer of the legal estate, if a trust be declared by the same 
 instrument, or in the same transaction, those formalities must 
 also be observed in the writing by which the trust is mani- 
 fested and proved. Thus, in those jurisdictions which require 
 a married woman's deed of real property to be acknowledged 
 separately and apart from her husband, her declaration of a 
 trust in such property must be acknowledged in the same 
 manner.^ And when it is sought to convey realty by will, to 
 one person in trust for another, the trust thus originating in 
 the will, the instrument must be executed as required by the 
 Statute of Wills of the state in which the land is situated.^ 
 But if the trust were created by contract or declaration out- 
 side of the so-called will, so that the latter is simply employed 
 
 I Forster v. Hale, 3 Ves. 696, 708; 227; Larrabee v. Hascall, 88 Me. 511 ; 
 
 Steere v. Steere, 5 Johns. Ch. (N. Y.) 1 ; Cathcart v. Nelson, 70 Vt. 317 ; Eipper 
 
 Finleyu. Isett, 154 U. S. 561; Cook b. v. Benner, 113 Mich. 75; 1 Perry on 
 
 Barr, 44 N. Y. 157, 161; Hutchins v. Trusts, § 82. 
 
 Van Vechten, 140 N. Y. 115, 118; ' Denton u. Davis, 18 Ves. 499, 503 ; 
 
 Emerson v. Gallonpe, 158 Mass. 146; Champ v. Marshallsay, 64 L. T. 13; 
 
 Taft B. Dimond, 16 R.I. 584; Leslie Knowlton v. Atkins, 134 N. Y. 313; 
 
 V. Leslie, 53 N. J. Eq. 275; Martin v. McAuley's Est., 184 Pa. St. 124; Eipper 
 
 Baird, 175 Pa. St. 540; Salisbury v. v. Benner, 113 Mich. 75; Banning u. 
 
 Clarke, 61 Vt. 453, 459 ; Renz v. StoU, Mueller, 82 Wis. 235 ; Atwater v. Rus- 
 
 94 Mich. 377; 1 Perry on Trusts, § 83. sell, 49 Minn. 57. 
 
 " Barkworth v. Young, 4 Drew, 1 ; " Graham v. Long, 65 Pa. St. 383, 
 
 Pinney v. Fellows, 15 Vt. 525. 387 ; Tatge v. Tatge, 34 Minn, 272. 
 
 ' Ivory V. Burns, 56 Pa. St. 300. ' Adlington v. Cann, 3 Atk. 141 
 
 And see Preston u. Preston, 202 Pa. St. Stickland v. Aldridge, 9 Ves. .'ilG 
 
 515. Champ V. Marshallsay, 64 L. T. 13 
 
 ^Plymouth v. Hickman, 2 Vern. Thayer b. Wellington, 9 Allen (Mass.) 
 
 167; Dalew. Hamilton, 2 Phillips, 266; 283 ; Davis v. Stambaugh, 163 111. 557 
 
 Bntchins « Van Vechten, 140 N. Y. Chase v. Stockett, 72 Md. 235 ; 1 Lewin 
 
 115; Tusch b. German Sav. Bk., 46 on Trusts, ch. v. § 3 ; 1 Perry on Truatsi 
 
 N. Y. Supp. 422; Roberta's Appeal, 92 §§ 89, 90. 
 -Pa. St. 407; Barrel! u. Joy, 16 Mass. 
 
440 ESTATES IN REAL PROPERTY. 
 
 as written proof of a trust already in existence, it may satisfy 
 the requirements of the Statute of Frauds, although it fail to 
 comply with all the formalities prescribed by the Statute of 
 Wills. If, for example, A deed land to B, who orally agrees 
 that he will hold it in trust for C, B may subsequently mani- 
 fest and prove this trust by his declaration properly signed, 
 in a writing which he calls his will, but which is invalid as a 
 will, because not executed with the proper statutory formali 
 ties.^ But if A, by his will, attempt to devise land to B, ir 
 trust for C, thus seeking to create the trust in the will, the 
 entire scheme must fail if the document he not executed in 
 the manner required by the statute of the state in which the 
 land lies.^ 
 
 An answer in chancery may be a writing sufficient to 
 comply with the statute. ^ The courts at one time tended 
 to hold that, if the defendant in a suit in chancery admitted 
 by his answer the existence of the trust, he thereby supplied 
 the statutory requisite, and thus became bound by his admis= 
 sion, even though there was no other written evidence of the 
 trust.* But it is now settled that he may have the benefit of 
 the statute, if he choose to set it up in his answer. Being 
 sued with regard to an alleged trust of which there is no suf- 
 ficient declaration in writing, he may simply deny its ex- 
 istence by his answer, and at the trial of the case prove his 
 denial by showing that the agreement was by parol; or he 
 may follow the truth of the matter in his answer, by admit- 
 ting that the agreement or settlement was made, and then 
 successfully claiming that he is not bound by it, because 
 there is no writing which complies with the requirement of 
 the Statute of Frauds.^ 
 
 The construction of the seventh section of the statute has 
 been controlling upon that of the ninth; and it is accordingl' 
 
 1 Leslie ». Leslie, 53 N. J. Eq. 275, 111. 56 ; McVay c. McVay, 43 N. . 
 281 ; Keith v. Miller, 174 111. 64 ; Hiss Eq. 47 ; Warren v. Tyraan, 54 N 
 
 V. Hiss, 228 111. 414 ; Hill on Trustees, Eq. 402 ; Patton v. Chamberlain, • 
 
 61 ; 1 Perry on Trusts, § 91. Mich. 5. 
 
 2 Anding v. Davis, 38 Miss. 574 ; * Story's Eq. Plead. §§ 765-75' 
 Davis V. Stamhaugh, 163 111. 557. And Hampton v. Spencer, 2 Vern. 288. 
 
 see Kopp v. Gunther, 95 Cal. 63 ; Chase 5 Dean i. Dean. 9 N. J. Eq. 425 ; 
 
 V. Stockett, 72 Md. 235 ; 1 Perry on Bank u. Root, 3 Paige (N. Y.), 478; 
 
 Trusts, §§ 91-94. Davis v. Stambaugh, 163 111. 557 ; Myers 
 
 3 Nab u. Nab, 10 Mod. 404; Cozine r. Myers, 167 111. 52; Billingslea v. 
 t'. Graham, 2 Paige (N. Y.), 177; Ward, 33 Md. 48, 51 ; 1 Perry on Trusts, 
 Maccubbin v. Cromwell, 7 GiU & J. § 85. 
 
 (Md.) 157, 164; White i;. Ross, 160 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 441 
 
 held that the same requirements as to writing apply to 
 an assignment of his interest by the cestui que trust as 
 those which govern the evidencing of the trust in the lirst 
 instance.^ 
 
 § 316. Language to be used in creating Express Trusts. — 
 The important requirement as to the use of language in the 
 creation of an express trust is that the intent shall be made 
 plain. =* The words trust, trustee, etc., are not necessary.^ 
 Neither are any technical words required. If the settler 
 make his meaning clear, by the use of any form of expres- 
 sion, he accomplishes his purpose. But, when technical 
 words are employed, they are to be given their technical 
 meaning, unless the contrary clearly appears from the con- 
 text, or unless it is one of the cases of executory trusts here- 
 tofore explained.* The declaration of trust may be contained 
 in another instrument than that by which the legal estate is 
 conveyed to the trustee;^ or the document by which such 
 declaration is made may consist of several distinct papers, 
 with proper internal reference from the one which is signed 
 to the others.^ But the conveyance of the legal estate and 
 the creation of the trust (whether or not the latter is then 
 manifested and proved by a writing) must be simultaneous, 
 or at least in the same transaction. For, if an absolute legal 
 estate be conveyed to one upon whom no fiduciary obligation 
 is imposed at the time, the grantor can not subsequently in- 
 terfere with the beneficial interest of the grantee by impress- 
 ing a trust upon the property.'' 
 
 When it is said that any words which clearly indicate an 
 intent to create a trust may he effective in so doing, it must 
 nevertheless be understood that the expression employed must 
 indicate a final, definite purpose, and not merely an inchoate 
 
 1 Wright V. Wright, 1 Ves. Sr. (N. Y.) 495; Selrton's Appeal, 31 Conn. 
 409 ; Brydges v. Brydges, 3 Ves. 120 ; 548 ; Freedley's Appeal, 60 Pa. St. 
 1 Spence, Eq. Jur. 506 ; 2 Prest. Conv. 344. 
 
 368. * Wright «. Pearson, 1 Eden, 119, 
 
 2 Fisher v. Fields, 10 Johns. Ch. 125 ; § 309, supra. 
 
 (N. Y.) 495; Carpenter v. Cushman, ' Wood u. Cox, 2 Myl. & Cr. 684; 
 
 105 Mass. 417, 419; Brown v. Combs, Inchiqnin v. French, 1 Cox, 1; Smith 
 
 5 Dutch. (N. J.) 36 ; Porter v. Bk. of v. AttersoU, 1 Russ. 266. 
 
 Rutland, 19 Vt. 410; McAuley's Est., « See § 315, supra. 
 
 184 Pa. St. 124 ; Lnco v. De Tore, 91 • Adlington v. Cann, 3 Atk. 141, 
 
 Cal. 405. 145 ; Crabb v. Crabb, 1 Myl. & K. 511 ; 
 
 ' ShamplessD. Welch,4Dall. (U. S.) Ivory v. Burns, 56 Pa. St. 300, 303; 
 
 279 ; Mee v. Gordon, 187 N. Y. 400, 407 ; Brown v. Brown, 12 Md. 87 ; 1 Perry 
 
 Packard v. Old Colony R. R„ 168 Mass. on Trusts, § 77. 
 92, 96; Fisher v. Fields, 10 Johns. Ch. 
 
442 ESTATES IN REAL PROPERTY. 
 
 design, or only an expectation. ^ A purpose or wish to give 
 property, or settle it in trust, in the future, may be very 
 clearly expressed without creating any trust. Thus, where 
 one, at the time when he purchased a parcel of land, made 
 and executed an instrument in which he declared that the 
 purchase was " intended " for another person, it was held that 
 no trust was thereby brought into being. The expression was 
 nothing but the declaration of an incomplete design. The 
 intent was not carried out.^ A declaration of an intent to 
 give is not an assertion that the owner holds in trust; but 
 rather the contrary. To raise a trust, he must intend now 
 to hold in trust, or now to convey on a trust to begin at once 
 or in the future.^ 
 
 There are two chief methods, by which expressions of 
 completed intent to raise trusts may be made; namely, by 
 direct words, of contract, command or declaration, and by 
 precatory words. These will be discussed in the order 
 named. And in the former is included the subject of vol- 
 untary declarations of trusts. 
 
 Direct Words of Trust. 
 
 § 317. Trusts created by Direct Words of Contract, Command, 
 or Declaration. — By clear and explicit statement of intention, 
 whatever may be the form of language employed, trusts may 
 be brought into being, either by will, or by contract or dec- 
 laration inter vivos. The cases of creation and attempted 
 creation of them in this manner may be most readily and 
 logically examined by considering, first, those in which the 
 legal estate is fully transferred from the settler or creator of 
 the trust to another person, second, those in which the settler 
 makes himself trustee by an unequivocal declaration of trust,- 
 and third, those in which there is an imperfect or executory 
 agreement or promise to transfer the property, or to hold it in 
 future in trust for another. The last of these classes, includ- 
 ing as it does the voluntary executory agreements to settle 
 property in trust, has given rise to much divergence of de- 
 cisions and opinions. 
 
 1 Cunningham v. Davenport, 147 ' Beaver v. Beaver, 137 N. Y. 59; 
 N.Y. 43; Sheffield v. Parker, 158 Mass. Wadd v. Hazelton, 137 N. Y. 215; 
 330 ; Providence Inst, for Savings u. Young «. Young, 80 N. Y. 422 ; Girard 
 Carpenter, 18 K. I. 287 ; Chaplin on Trust «. Mellor, Appellant, 156 Pa. St. 
 Express Trusts and Powers, §§ 52, 106. 579, 590. 
 
 2 Hays V. Quay, 68 Pa. St. 263. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 443 
 
 § 318. First, Trusts Created on Transfer of Legal Estate. — 
 When the owner of property, complying with all the requisites 
 prescribed by common law and statutes, transfers the legal 
 estate therein to another person to hold in trust for a third, 
 the trust will be recognized and enforced by a court of equity, 
 whether or not the grantor or settler received any considera- 
 tion. The fact of the completed transfer is sufficient. The 
 instrument being duly executed and delivered and nothing 
 further remaining to be done by the grantor, devisor, or 
 other settler, the trust is created. ^ The only material 
 questions, which can thereafter arise, are such as relate to 
 the nature and operation of the trust thus created. And 
 such questions must be decided by application of the ordi- 
 nary rules for the interpretation and construction of the 
 language employed. When the legal estate is such that it 
 can not be effectually transferred, as when it is a mere pos- 
 sibility or reversionary interest, the same principle applies, 
 according to the weight of the more recent important authori- 
 ties; and the trust is created when the owner has done all 
 that he can do under the circumstances of the case, by perfect- 
 ing the transaction of assigning as far as the law permits. ^ 
 So, if the assignor have only the equitable estate, the legal 
 interest being vested in another who is holding it for him, 
 if he fully assign his own interest in equity for the benefit of 
 a designated beneficiary, a sub-trust is thereby brought into 
 existence in favor of such beneficiary.^ But, in all instances 
 in which the legal estate is not transferred, but the existence 
 of the trust is intended to rest upon the passing over of some 
 other interest, the author of the intended trust must have 
 made as complete an assignment as possible under the cir- 
 cumstances of the case.* Where, for example, the document 
 might have assigned in equity the so-called settler's rever- 
 
 1 Massey v. Huntington, 118 111. 80; 226; Meek v. Hattlewell, 1 Hare, 464; 
 
 Boardman v. Willard, 73 Iowa, 20 ; Beech o. Keep, 18 Bear. 285 ; 1 Perry 
 
 Westlake v. Wheat, 43 Hun (N. Y.), 77; on Trusts, § 101. 
 
 1 Perry on Trusts, § 99. ' Collinson v. Patrick, 2 Keen, 123; 
 
 " Kekewich i'. Manning, 1 DeG. M. Tierney v. Wood, 19 Beav. 330. 
 
 & G. 176, 187 J Fortescue v. Barnett, 3 ^ In re Earl of Lucan, L. R. 45 Ch. 
 
 Myl. & K. 36 ; Roberts v. Lloyd, 2 Bear. Div. 470 ; Kekewich v. Manning, 1 DeG. 
 
 376; Gilbert v. Overton, 33 L. J. Ch. M. & G. 176; Wilcocks u. Hannyngton, 
 
 «83; Appeal of Elliott's Ex'rs, 50 Pa. 5 Ir. Eq. (N. C.) 38, 45; Morgan v. 
 
 St. 75; 1 Perry on Trusts, § 101; 1 Malleson, 10 Eq. 475 ; Girard Trust Co. 
 
 Lewin on Trusts, 58. See earlier cases v. Mellor, 156 Pa. St. 579 ; Hill on 
 
 contra, Edwards v. Jones, 1 Myl. & Cr. Trustees, 140, 141. 
 
444 ESTATES IN REAL PROPERTY. 
 
 sionary interest, but it only purported to create a charge 
 thereon, no trust was thereby brought into existence.^ 
 
 § 319. Second, Trust created by Settler making Himself 
 Trustee. — When the settler takes his own property and 
 makes himself trustee of it by an unequivocal declaration 
 of trust, it is equally well settled that an express trust is 
 thereby brought into being, whether or not he receives any 
 consideration for his act.^ Such a transaction involves no 
 transfer of the legal estate, except the theoretical transfer 
 which the owner makes from himself as an individual to 
 himself as a trustee. But the matter for careful inquiry 
 here is as to the passing over of the equitable estate. Was 
 an unequivocal declaration made and delivered for that pur- 
 pose ? The intent of the declarant, in such a case, is again 
 to be ascertained from a proper interpretation and construc- 
 tion of his language. The question as to the delivery of the- 
 document, however, is often perplexing.^ For example, A 
 makes and duly executes a deed", in which he declares that he 
 will thereafter hold a designated lot of land in trust for B. 
 How and to whom must it be delivered, in order to become 
 operative? "In no case," says the Supreme Court of New 
 York, " has it ever been held as yet that a party may, by 
 transferring his property from one pocket to another, make 
 himself trustee. In every case where a trust has been estab- 
 lished, the party creating it has placed the evidence thereof 
 in the custody of another, and has thereby shown that it was 
 intended to be a completed act."* This is certainly a clear 
 statement of the safer rule of practice — that the declarant 
 must deliver the document, either to the cestui que trust him- 
 self, or to some third party for him. But, as is suggested by 
 a recent careful writer, it would seem to be a sufficient delivery 
 for him to indicate, in any other clear manner, his intention 
 to make the instrument become operative in his own hands, 
 as by acknowledging it before a notary public, or by placing 
 and retaining it among other valuable and frequently in- 
 
 1 In re Earl of Lucan, L. R. 45 Ch. ' If the instrument be not prop- 
 Div. 470 ; Bispham's Prin. Eq. § 67. erly delivered it can not be upheld as 
 
 2 Donaldson v. Donaldson, Kay, 711 ; a declaration of trust. Wadd v, Hazel- 
 Milroy u. Lord, 4 DeG. P. & J. 264; ton, 137 N. Y. 215; Smith's Est., 144 
 Ellison V. Ellison, 6 Ves. 656, 662 ; Cul- Pa. St. 428 ; Soulard's Est., 141 Mo. 
 bertsonw. Witbeck, 127U. S.326; Stone 642; "Wylie v. Charlton, 43 Neb. 840; 
 V. Hackett, 12 Gray (Mass.), 227 ; Janes Koberts v. Mullinder, 94 Ga. 493. 
 
 V. Falk, 50 N. J. Eq. 468 ; Lane v. Ew- * Govin v. De Miranda, 76 Hun 
 
 ing, 31 Mo. 75 ; 1 Perry on Trusts, § 98. (N. Y.), 414, 419 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 445 
 
 spected papers, or by stating to witnesses that he had de- 
 livered it from himself as an individual to himself as trustee, 
 etc.^ And there is abundant authority to the effect that he 
 need not part with possession of the instrument.^ 
 
 § 320. Third, Executory Agreement or Promise to settle 
 Property in Trust. — ■ In the third class of cases — those in 
 which there is an imperfect or executory agreement or 
 promise to transfer tlie property or to hold it in future in 
 trust for another — the element of consideration becomes 
 controlling. For when the promise rests upon a valuable 
 consideration a contract arises, which will be enforced by the 
 courts; but when the declaration or promise is purely volun- 
 tary — not based on any valuable consideration — and rests 
 in fieri, there is ordinarily nothing to move a court of either 
 law or equity to grant relief. Therefore, where the promise 
 or stipulation is executory or incomplete, the two essentially 
 different groups of cases are those in which valuable consid- 
 erations exist and those in which such consideration is want- 
 ing. The distinction here found, as it is applied to trusts or 
 other equitable interests, is the same as that between gifts 
 and executory contracts at common law. The gift must be 
 perfected by delivery of possession of the subject-matter; 
 while the contract, based on a promise to pay value, can be 
 enforced though no such delivery has been made.^ 
 
 The instances are, of course, plentiful in which the owner 
 of property has entered into an agreement, in consideration 
 of money or money's worth paid or promised, or of a mar- 
 riage to be consummated,* to hold such property in trust for 
 another, or to convey it to him in trust for a third party. 
 And in no such a case has a court of equity refused, as be- 
 tween the parties themselves, to declare and enforce a trust 
 
 1 Chaplin on Express Trusts and Kulp v. March, 181 Pa. St. 627; West- 
 Powers, § 78. See Govin u. Be Mi- lake w. Wheat, 43 Hun (N. Y.), 77. 
 randa, 140 N. Y. 474; Martin v. Funk, * In speaking of marriage as a val- 
 75 N. Y. 134, 142; Wadd v. Hazelton, uable consideration, the distinction must 
 137 N. Y. 215. always be borne in mind between an ex- 
 
 2 Clarering v. Clarering, 2 Vern. 473 ; isting married relation and the contract- 
 Souverbye v. Arden, 1 Johns. Ch. {N. Y.) ing of a marriage as an inducement to 
 240, 2.^6 ; Bunn u. Winthrop, 1 Johns. some other act or promise. The latter 
 Ch. (N Y.) 329 ; Adams v. Adams, 21 is a valuable consideration, but not the 
 Wall. (U.S.) 185; Johnson u. Smith, former. Johnston v. Spicer, 107 N. Y. 
 1 Ves. Sr. 314. 185 ; DeBarante v. Gott, 6 Barb. (N. Y.) 
 
 ' 2 Blackst. Com. p. * 441. See 492; Chilvers v. Race, 194 111. 71 ; 18 
 Sherk v. Endress, 3 W. & S. (Pa.) 255 ; Amer. Law Rev. 379. 
 Zimmerman v. Streeper, 75 Pa. St. 147 ; 
 
446 ESTATES IN EEAL PEOPEETY. 
 
 in favor of the promissee or designated beneficiary, upon 
 application being properly made to it for that purpose. ^ Be- 
 tween the parties to the agreement, equitable interests flowing 
 therefrom are as fully protected as are legal rights. But, as 
 will more fully appear hereafter, creditors of the promissor 
 and persons having in the property equitable interests, of which 
 the other parties to the contract have notice, may sometimes 
 prevent the cari-ying out of such an attempted trust. When 
 an intended trust is not perfectly created, but the incomplete 
 or defective instrument is delivered for value actually ad- 
 vanced or promised, the court will enforce the trust, if 
 enough appear from the document to show what are its terms 
 and who are the parties to be benefited. ^ "In such cases, 
 effect is given to the consideration to carry out the intention 
 of the parties, though informally expressed. " ^ It is hardly 
 necessary to add that the court will not move to carry out a 
 trust, even where a valuable consideration appears, if its terms 
 and conditions can not be ascertained with sufiicient clearness, 
 or the cestuis que trustenf are not definitely indicated or 
 known. * 
 
 After some vacillation by the courts, it is now settled in 
 most jurisdictions that an imperfect or executory conveyance 
 or declaration of trust, vrhich is also purely voluntary, will 
 never be aided or enforced in equity.^ " I take the distinction 
 to be," said Lord Eldon, "that if you want the assistance of 
 the court to constitute you cestui que trust, and the instrument 
 is voluntary, you shall not have that assistance for the purpose 
 of constituting you cestui que trust ; . . . but if the party has 
 completely transferred stock, etc., though it is voluntary, yet, 
 the legal conveyance being effectually made, the equitable in- 
 
 1 Baldwin v. Humphrey, 44 N. Y. '1 Perry on Trusts, § 95. 
 
 609 ; Young v. Young, 80 N. Y. 422, ' Dillaye v. Greenough, 45 N. Y. 
 
 437 ; Merrill o. Peaslee, 146 Mass. 460 ; 438 ; Ham v. Van Orden, 84 N. Y. 257 ; 
 
 Whitehouse v. Whitehouse, 90 Me. 468 ; Ownes v. Ownes, 23 N. J. Eq. 60. 
 Benscotter v. Green, 60 Md. 327 ; Taylor <• Matter of James, 146 N. Y. 78 ; 
 
 1-. Pownal, 10 Leigh (Va.), 172, 183; Martin r. Funk, 75 N. Y. 1.S4 ; Minturn 
 
 1 Perry on Trusts, § 95. The consider- b. Seymour, 4 Johns. Ch. (N. Y.) 497, 
 
 ation mush be legal and the contract 498 ; Hayes r. Kershaw, 1 Sand. Ch. 
 
 otherwise valid. Merrill v. Peaslee, 146 (N. Y.) 253 ; Acker i). Phoenix, 4 Paige 
 
 Mass. 460. (N, Y.) SO.^i ; Matthews w. Hoagland, 48 
 
 2 Livingston w. Livingston, 2 Johns. N. J. Eq. 455 ; Moore v. Moore, 43 L.J. 
 Ch. (N. Y.) 537; Huntley v. Huntley, Ch. 617, 623; 1 Perry on Trusts, §97; 
 8 Ired. Eq. (N. C.) 2.50; Young v. Pomeroy, Eq. Jur. § 1148; Story, Eq. 
 Young, 80 N. Y. 422, 437. Jur. § 987. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 447 
 
 terest will be enforced by this court." ^ That is, in a voluntary 
 declaration or settlement in trust, if everything is not done, 
 nothing is done. The court will not compel one, who has 
 merely promised without consideration that he would settle 
 property in trust, to go on and perform that promise against 
 his will. To do so would be to take his property fi"om him by 
 force and give it to another.^ And, when a person has pi-om- 
 ised to settle property by his will in favor of mere volunteers, 
 but has died without doing so, equity will afford no assistance 
 to the promissees against the heirs or personal representa- 
 tives of the deceased promissor.^ So, although the technical 
 rule of law is that a seal imports a consideration, yet it is 
 settled in England that the mere fact that an executory 
 promise to convey property in trust is under seal will not 
 alter the rule as here stated, if as a matter of fact there be 
 no consideration for the promise.* And, while in some of the 
 early cases in this country it was said that the courts would 
 not execute a voluntary executory agreement " unless it is 
 under seal," it is nevertheless safe to say that, at tlie present 
 time, the rule of America in this regard is in harmony with 
 that of England.^ 
 
 There has been considerable discussion of the question whether 
 or not a contract or promise founded on the meritorious consid- 
 eration of blood, or on that of an existing relation of marriage, is 
 voluntary, so as to come within the above-stated rule of equity. 
 While Sugden was Lord Chancellor of Ireland, he decided, in 
 the case of Ellis v. Nimmo, that a blood relationship was suffi- 
 cient to move a coui't of equity to enforce an executory contract 
 to settle property in trust.^ He subsequently allowed this de- 
 cision to be overruled in England.'^ And the doctrine is now 
 
 1 Ellison V. Ellison, 6 Ves. 656 ; its importance because of statutes, that 
 
 Young i: Young, 80 N. Y. 422 j Wadd it would be a construction out of har- 
 
 e. Hazelton, 137 N. Y. 215. mony with the present tendency of 
 
 ^ Young V. Young, 80 N. Y. 422, equity tribunals, which should carry 
 
 437. ' out a voluntary executory agreement 
 
 3 Waniner v. Bogers, L. R. 16 Eq. simply because it was under seal. But 
 
 340; Morgan v. Malleson, L. R. 10 Eq. see 1 Perry on Trusts, § 111 ; Dennison 
 
 475. V. Goehring, 7 Barr (Pa.), 175 ; Cald- 
 
 * Hale V. Lamb, 2 Eden, 292, 294 ; well v. Williams, 1 Bailey Eq. (S. 0.) 
 
 Evelyn v. Templar, 2 Bro. Ch. 148; 175; Mahan u. Mahan, 7 B. Mon. (Ky.) 
 
 Meek v. Eettlewell, 1 Hare, 464; Dil- 579 ; Leeper v. Taylor, 111 Mo. 312. 
 
 lin V. Coppin, 4 Myl. & Cr. 647 ; Dening « Lloyd & Gould, 333. 
 
 V. Ware, 22 Beav. 184. ' ' Moore v. Crofton, 3 Jones & La T. 
 
 5 So little attention is now paid by 438, 442. But, even in this case, he 
 onr courts to mere formalities, and the still expressed his belief in the sound- 
 formality of a seal has lost so much of ness of Ellis v. Nimmo. 
 
448 ESTATES IN REAL PROPERTY. 
 
 firmly established in that country that not even in favor of a wife 
 or child will the court carry out an executory agreement resting 
 on no valuable consideration ; and this is true, whether the at- 
 tempt be made to have it enforced against the settler himself, or 
 against his heirs or devisees, or against other volunteers who 
 claim under an executed agreement with liim.^ "While the 
 authorities in the United States are- not entirely harmonious 
 upon this point, yet the stiongly prevailing view is in favor of 
 the English rule.^ Thus, in New York, the Court of Appeals 
 has recently said : " The general principle is established that 
 in no case whatever will courts of equity interfere in favor of 
 mere volunteers, whether it be upon a voluntary contract or a 
 settlement, however meritorious may be the consideration, and 
 although they stand in the relation of a wife or child." ^ In a 
 few of the states, however, such as New Jersey,* Soutli Caro- 
 lina,^ Missouri,^ and Kentucky,'^ the decisions are the other 
 way. Yet, even in the few jurisdictions where a wife or child 
 is thus favored, the rule is said to be confined to those two 
 relationships ; and it will not extend its advantages to more" 
 remote relatives of the voluntary promissor, such as brothers, 
 sisters, parents, or grandchildren,^ nor to illegitimate children.' 
 § 321. Revocation of Trusts, ■which have been created by 
 Direct Words. — Much diversity of opinion has arisen as to the 
 revocability of a voluntary trust by the settler, after it has once 
 been completely declared or settled. When a valuable consid- 
 eration exists, no such question can practically arise, because 
 in such a case, a contract having been brought into existence 
 
 1 Moore v. Crofton, 3 Jones & La T. * Leeper v. Taylor, 111 Mo. 312. 
 438, 442; Price u. Price, 14 Beav. 598 ; ' Bright !■. Bright, 8 B, Mon. (ICy.) 
 Holloway v. Headington, 8 Sim. 324 ; 194, 197 ; Mahan v. Mahan, 7 B. Mon. 
 Jefferys v. Jefferys, 1 Cr. & Phil. 138 ; (Ky.) 579 ; Mclntire v. Hughes, 4 Bibb 
 Eyelyn <;. Templar, 2 Bro. Ch. 148 ; (Ky.), 186. Bnt in most of the cases, 
 Dillon V Coppin, 4 Myl. & Cr. 647. in Missouri, South Carolina, and Ken- 
 
 2 Matter of James, 146 N. Y. 78, 93 ; tneky, stress lias also been laid on the 
 Wadd V. Hazelton, 137 N. Y. 215; existence of a seal as indicating a con- 
 Campbell's Est. 7 Pa. St. 100; Water- sideration. 
 
 man v. Morgan, 114 Ind. 237 ; McHugh s Downing '■. Townsend, Amb, 592; 
 
 V. O'Connor, 91 Ala. 243. See 1 Perry Buford's Heirs v. McKee, 1 Dana (Ky.), 
 
 on Trusts, § 109 ; Pom. Eq. Jur. § 1148. 107 ; Tarbox v. Grant, 56 N. J. Eq. 199j 
 
 s Matter of James, 146 N. Y. 78, 93. Hayes i>. Kershaw, 1 Sand. Ch. (N. Y.) 
 
 * Tarbox v. Grant, 56 N. J. Eq. 199 ; 258. 
 Landon v. Hutton, 50 N. J. Eq. 500. ^ Fursaker v. Robinson, Pr. Ch. 475. 
 
 These cases contain valuable discussions See Bunn v. Winthrop, 1 Johns. Ch. 
 
 of the question. (N. Y.) 329; Matter of James, 146 
 
 ^ Caldwell v. Williams, 1 Bailey Eq. N. Y. 78. 
 (S. C.) 175. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 449 
 
 by the meeting of at least two minds, it can not be done away 
 with by the act of one of them alone. When a debtor has 
 made a voluntary assignment of his property in trust for his 
 creditors, a valuable consideration, although a past one, is 
 supplied by the existence of the debts ; and, if the creditors 
 have assented to such transfer thereby making it a contract, it 
 has become iri-evocable by the assignor.^ In this country, from 
 the fact of the assignment alone, and in the absence of statutory 
 regulation the assent of tlie creditors is presumed (unless tlie 
 contrai-y is clearly proved 2) and thus a contract is held to 
 exist.^ In England it is a question of the intent of the assignor 
 to make a completed assignment. If the language used and 
 circumstances of the case show that he intended the transfer to 
 be final, or if it be proved that the creditors expressly or tacitly 
 consented to the assignment, a contract emerges, irrevocable 
 by the assignor.* 
 
 When, on the other hand, an executed voluntary settlement 
 in trust has been made, may the donor revoke it at pleasure, 
 or in order to reserve that privilege must he have inserted in 
 the settlement an express power of revocation ? The correct 
 answer to this much mooted question appears to depend on the 
 intention and motives which gave rise to the settlement. Tlie 
 absence of an express power of revocation, in other words, is 
 not conclusive, but only makes a prima facie case of a trust ir- 
 revocable by its maker.^ When, from all the other circum- 
 stances of the case, it does not appear that there was any intent 
 to make an irrevocable settlement, and there was apparently 
 
 1 Siggera v. Evans, 32 Eng. L. & Mer. 707; Harland v. Binks, 15 Q. B. 
 Eq. 139; Walwyn u. Coutts, 3 Sim. 14, 713 ; Acton v. Woodgate, 2 Myl. & K. 
 3 Mer. 707. 492, 495; New v. Hunting (1897), 1 
 
 2 See Gibson v. Rees, 50 111. 383. Q. B. 607, 615 ; Synnott v. Simpson, 5 
 ' Nicoll V. Mumford, 4 Johns. Ch. H. L. Cas. 121, 133. It was said in 
 
 (N. Y.) 522; Cunningham v. Freeborn, Garrard v. Lord Lauderdale, 3 Sim. 1, 
 11 Wend. (N. Y.) 240 ; Pingree v. Com- that, even after the assignment had 
 stocis, 18 Pick. (Mass.) 46; Fellows v. been communicated to the creditors, it 
 Greenleaf, 43 N. H. 421 ; Read v. Rob- might be revoked by the debtor. But 
 inson, 6 "Watts & S. (Pa. ) 329 ; Ten- this is manifestly not now the law of 
 nant v. Stoney, 1 Rich. Eq. (S. C.) 223 ; England. See also Bill v. Cureton, 2 
 England v. Reynolds, 38 Ala. 370, 1 Myl. & K. 503, 511; Johns v. Jam^s, 
 Lead. Cas. iEq. 327. This presumption L. R. 8 Ch. Div. 744. 
 may be rebutted by the fact that the ° See this clearly explained in Gam- 
 assignment is not for fihe benefit of the sey v. Mundy, 24 N. J. Eq. 243, 13 
 creditors, or is in an objectionable or Amer. Law Reg. (n. s.) 345, with note; 
 unusual form. See 2 Perry on Trusts, also in 1 Perry on Trusts, § 104 and 
 5 593. note. 
 4 Walwyn v. Coutts, 3 Sim. 14, 3 
 
 29 
 
450 ESTATES IN REAL PROPERTY. 
 
 no motive for making such a binding arrangement, the court 
 may permit the grantor to annul the trust, although no right to 
 do so was expressly reserved.^ Whereas, if there existed a 
 manifest design to dispose permanently and definitely of the 
 property in trust, or if there appear a clear and sufficient reason 
 for doing so, such, for example, as to provide for an indigent 
 family or to guard against the effects of extravagance or in- 
 temperance on the part of the settler, the arrangement will be 
 declared complete and irrevocable, unless there exist an express 
 power of revocation.^ In the former case, the absence of both 
 motive and intent to make the trust permanent is 'prima fade 
 evidence of mistake in not reserving the power to revoke ; while 
 in the latter no such evidence exists, (a) 
 
 Precatory Words. 
 
 § 322. Trusts created by Precatory Words — Precatory 
 Trusts. — Precatory trusts are those created by word^ of prayer, 
 entreaty, request, hope, desire, expectation, and the like, and 
 not of direct command or explicit declaration. They occur 
 almost exclusively in wills, because testators, in preparing 
 their last wills and testaments, are apt to have in mind the 
 times and circumstances under which the documents will be 
 read and put into operation, and to soften their language, 
 accordingly, from that of harsh command to that of request or 
 expectation. Such forms of trusts may occur, however, and 
 
 (a) In New York, when the settler reserves for his own benefit an abso- 
 lute power to revoke the trust, "he is to be still deemed the absolute 
 owner of the estate conveyed, so far as the rights of creditors and pur- 
 chasers are concerned." Real Prop. Law (L. 1909, ch. 52), § 145; Conk- 
 ling V. Davies, 14 Abb. N. C. 499, 501; Von Hesse v. MaoKaye, 136 N. Y. 
 114; Van Cott v. Preutice, 104 N. Y. 45. 
 
 ' Garnsey v. Mundy, 24 N. J. Eq. Div. 1, 17 ; Von Hesse v. MacKaye, 136 
 
 243 ; Doran v. McConlogue, 150 Pa. St. N. Y. 1 14 ; Conkling v. Davies, 14 Abb. 
 
 98, 115; Barnard v. Gautz, 140 N. Y. N. C. (N. Y.) 499 ; Culrose v. Gibbons, 
 
 249, 255; Farleigh v. Cadmann, 159 130 N. Y. 447,452; Wilson n. Anderson, 
 
 N. Y. 169, 172; In re Thurston, 1154 186 Pa. St. 531 ; Eeidy «. Small, 154 Pa, 
 
 Mass. 596 ; Cooke v. Lamotte, 15 Beav. St. 505 ; Neal v. Black, 177 Pa. St. 83 ; 
 
 234; Brannin v. Shirley, 91 Ky. 450; New v. Hunting (1897), 2 Q. B. 19; 
 
 Ewing V. Wilson, 19 Lawy. Rep. Ann. The maker of the trust may also ex- 
 
 767. But see Howard v. Howard, 60 pressly reserve a power to modify the 
 
 Vt. 362; Sargent v. Baldwin, 60 Vt. same. Locke v. F. L. & T. Co., 140 
 
 17. N. Y. 146. 
 
 2 Tucker i>. Bennett, L. R. 38 Ch. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 451 
 
 are occasionally found, in other instruments.^ The principle, 
 upon which courts proceed in spelling out trusts froni such lan- 
 guage, is that, while the form of expression is modified and 
 softened by the testator, his meaning is the same as if he used 
 more explicit and unequivocal words in ordering and directing 
 the disposition of his property.^ In every day life, commands 
 of tlie most emphatic nature are frequently issued in the form, 
 of requests. And it is natural that testators sliould often adopt 
 the same method of giving instructions which are intended to 
 be imperative. The finding by equity of precatory trusts in 
 such instruments is, therefore, simply an application of the 
 fundamental rule of construction of wills — the rule which re- 
 quires the intention of the testator to be ascertained and carried 
 out — whereby forms of express trusts are shown to be created 
 by the testamentary language employed.^ For example, a tes- 
 tator gives property to his wife, with a " request " that out of its 
 proceeds she shall maintain his niece, who has been brought up 
 by him and taught to depend upon him for support ; and a 
 court of equity finds, from such language and circumstances, 
 that a trust was meant to_ be impressed upon the property in 
 the hands of the donee.* 
 
 § 323. Intent the Chief Ezponent of Precatory Trusts. — 
 Some writers have laboriously collected long lists of expressions, 
 which have been held in some cases to have created precatory 
 trusts, and other lists of those which have been decided to be 
 insufficient for that purpose.^ But, in the light of the most 
 recent adjudications, these are of but little assistance. The 
 question presented, in each case, is that of the interpretation 
 and construction of a will, which is probably different in some 
 respects from every other will. And this requires that the 
 entire document shall be studied and the intention of the tes- 
 tator ascertained, as expressed by the words he has used, ac- 
 cording to their ordinary and natural meaning, but possibly 
 
 1 See Liddaid v. Liddard, 28 Bear. Young v. Martin, 2 You. & Coll. 582 ; 
 266; Verzier v. Convard, 75 Conn. 1; Clay v. Wood, 153 N. Y. 134; Aldrich 
 Bispham's Prin. Eq. § 76. v. Aldrich, 172 Mass. 101 ; Eberhardt v. 
 
 2 Knight V. Bonghton, 11 CI. & Fin. Perolin, 49 N. J. Eq. 570; Boyle v. 
 513, 548; Knight v. Knight, 3 Beav. Boyle, 152 Pa. St. 108. 
 
 148,173; Mason u. Limbury, cited in * Collister,t;. Fassitt, 163 N. Y. 281. 
 
 Vernon o. Vernon, Arab. 4; Hill on ' See 1 Perry on Trusts, §§ 112, 113; 
 
 Trustees (4th Amer. ed.), p. 73. 1 Ames, Cases on Trusts, p. 82 et seq. 
 « Eaton!). Watts, L.R. 4 Eq. 151, 155; 
 
452 ESTATES IN EEAL PROPERTY. 
 
 modified by the context and his situation and circumstances 
 at the time when he used them.^ 
 
 As a rule or principle of construction subsidiary to that 
 which requires the testamentary intent to be sought, it was at 
 one time held by the English courts, in conformity to the old 
 Roman law, that precatory words in a will were to be taken 
 as prima facie imperative, and would raise a trust, unless a 
 contrary intent appeared from the context or circumstances.^ 
 But this doctrine has been abolished by recent decisions in Eng- 
 land ; and it is now firmly established there that such expressions 
 alone do not import a command.^ In the case of Hill v. Hill,* 
 decided in 1897, a summary of the rule of construction, which 
 is now controlling, is thus stated by Lord Esher, M.R. : " Words 
 of request in their ordinary meaning convey a mere request, 
 and do not convey a legal obligation of any kind either at law 
 or in equity. But in any particular case there may be circum- 
 stances which would oblige the court to say that such words 
 have a meaning beyond their ordinary meaning and import a 
 legal obligation." This is a clear expression of a principle for 
 which some of the English judges had long contended,^ but 
 which may be said to have been first thoroughly crystallized 
 into law in the leading case of In re Adams & Kensington 
 Vestry.^ 
 
 In the United States, the best decisions of recent years are 
 fully in harmony with the present English rule.^ In the Su- 
 
 1 Colton V. Colton, 127 U. S. 300, L. R. Ir. 311; Atkinson v. Atkinson, 
 312; Clay v. Wood, 153 N. Y. 134; 62 L. T. 735. 
 
 Aldrlch V. Aldrich, 172 Mass. 101 ; * (1897), 1 Q. B. 483. 
 
 Dexter v. Evans, 63 Conn. 58; Eber- * See Hanbnry v. Fisher (1904), 1 
 
 hardt v. Perolin, 49 N. J. Eq. 570; Ch. 415; Lambe w. Eames, L. R. 6 Ch. 
 
 Boyle W.Boyle, 152 Pa. St. 108; Mur- App. 597; Mussoorie BanR v. Raynor, 
 
 Tihy u. Carlin, 113 Mo. 112; 1 Ames, L. R. 7 App. Cas. 321 ; Reeves ». Baker, 
 
 •Cases on Trusts, 96, 97; 1 Jarman on 18 Beav. 372; In re Hutchinson & 
 
 Wills, p. *356. Tenant, L. R. 8 Ch. Div. 540; Briggs 
 
 2 Knight u. Knight, 3 Beav. 148, d. Penny, 3 MacN. & G. 546; McCor- 
 173 ; Knight v. Boughton, 11 CI. & Fin. mick v. Grogan, L. R. 4 H. L. 82 ; Par- 
 513 ; Hill on Trustees (4th Amer. ed.), nail v. Parnall, L. R. 9 Ch. Div. 96. 
 
 73. " The wish of a testator," it was « L. R. 27 Ch. Div. 394 ; Brett's 
 
 said, "like, the request of a sovereign, is Lead. Cas. Eq. 13. 
 
 equivalent to a command." 'Colton e. Colton, 127 IT. S. 300; 
 
 8 In re Hamilton (1895), 2 Ch. 370; CoUister v. Fassitt, 163 N. Y. 281 ; Clay 
 
 Hill V. Hill (1897), 1 Q. B. 483; Booth v. Wood, 153 N. Y. 134; Post v. Moore, 
 
 V. Booth (1894), 2 Ch. 282; In re Dig- 181 N. Y. 15, 19; Matter of Ingersoll, 
 
 gles, L. R. 39 Ch. Div. 253; In re 131 N. Y. 573; Phillips v. Phillips, 112 
 
 Adams & Kensington Vestry, L. R. 27 N. Y. 197 ; Brown v. Perry, 51 N. Y. 
 
 ■Ch. Div. 394; Adams v. Lopdell, 25 App. Div. 11, 12; Aldrich v. Aldrich, 
 
EQUITABLE ESTATES. 
 
 EXPRESS TRUSTS. 
 
 453 
 
 preme Court of the United States, the subject was exhaust- 
 ively discussed, in 1888, in the case of Colton v. Colton.^ The 
 testator there gave a large estate to his wife, and said in con- 
 nection with the gift : " I recommend to her the care and pro- 
 tection of my mother and sister, and request her to make such 
 gift and provision for them as in her judgment will be best." 
 It was held that a trust was thereby created. But the decision 
 was not based alone on the words above quoted, but rather on 
 the conclusion of the court that, in view of the largeness of 
 the estate and the added fact, which was proved, that the tes- 
 tator's mother and sister had only a meagre income of their 
 own, he could not have intended to confide solely in his wife's 
 affection for his relatives to determine what she should do for 
 them, but must have meant that his language should carry a 
 command.^ The same principle of construction has been uni- 
 formly recognized in Pennsylvania and Connecticut.^ And in 
 New York,* New Jersey,^ Massachusetts,® Indiana,^ Iowa,* 
 Missouri,^ Virginia,^" South Carolina," and Maryland,^^ gygij jg 
 
 172 Mass. 101 ; Durant v. Smith, 159 
 Mass. 229 ; Boyle v. Boyle, 152 Pa. St. 
 108; Good u. Fichthorn, 144 Pa. St. 
 287 ; Eberhardt v. Peroliu, 49 N. J. Eq. 
 570; Dexter v. Evans, 63 Conn. 58; 
 Pratt V. Trustees, 88 Md. 610; Orth 
 V. Orth, 145 Ind. 184; Stivers v. Gard- 
 ner, 88 Iowa, 307 ; Murphy v. Carlin, 
 113 Mo. 112; Sale v. Thornberry, 86 
 Ky. 266 ; Arnold v. Arnold, 41 S. C. 
 291 ; Harrison u. Harrison, 44 Amer. 
 Dec. (Va.) 365. 
 
 1 127 U. S. 300. 
 
 ^ It is intimated, in this case, that, if 
 the testator, in giving the same estate 
 to his wife, had made a similar request 
 in favor of their children, there would 
 have been no trust ; but the wife would 
 have taken the property absolutely, as 
 in the English case of In re Adams & 
 Kensington Vestry. It could then have 
 been safely assumed that the testator 
 meant to rely on the mother's natural 
 affection for her children, and therefore 
 did not intend to give her a command 
 by the precatory words employed. But 
 such an intent could not be assumed as 
 to his blood relatives who were not hers, 
 'This distinction well illustrates the nice 
 discrimination with which the intention 
 
 of a testator is sought, when he has 
 made use of precatory words. 
 
 8 Peunock's Est., 20 Pa. St. 268, 
 280; Paisley's Appeal, 70 Pa. St. 153; 
 Boyle f. Boyle, 152 Pa. St. 108; Mur- 
 phy's Est., 184 Pa. St. 310, 314; 
 Gilbert v. Chapin, 19 Conn. 342 ; Dex- 
 ter V. Evans, 63 Conn. 58. 
 
 * Clay V. Wood, 153 N. Y. 134; 
 Collister v. Fassitt, 163 N. Y. 281 ; 
 Matter of Ingersoll, 131 N. Y. 573; 
 Matter of Keleman, 126 N. Y. 73 ; Phil- 
 lips V. Phillips, 112 N. Y. 197 ; Lawrence 
 V. Cooke, 104. N. Y. 632 ; Willets „. 
 Willets, 103 N. Y. 650, 656 ; Foose 
 V. Whitmore, 82 N. Y. 405 ; Brown v. 
 Perry, 51 N. Y. App. Div. 11, 12. 
 
 6 Eberhardt v. Perolin, 49 N. J. Eq. 
 570. 
 
 6 Aldrich v. Aldrich, 1 72 Mass. 101 ; 
 Durant v. Smith, 159 Mass. 229 ; Bacon 
 I/. Ransom, 139 Mass. 117. 
 
 ' Orth I'. Orth, 145 Ind. 184. 
 
 8 Stivers a. Gardner, 88 Iowa, 307. 
 
 " Murphy v. Carlin, 113 Mo. 112. 
 
 1" Harrison v. Harrison, 44 Amer. 
 Dec. (Va.) 365. 
 
 " Arnold v. Arnold, 41 S. C. 291 ; 
 Le.sesne v. Witte, 5 S. C. 450. 
 
 12 Pratt V. Trustees, 88 Md. 610; 
 Nunn V. O'Brien, 83 Md. 198. 
 
454 ESTATES IN REAL PROPERTY. 
 
 undoubtedly the present rule. In a number of the American 
 states, however, such as Maine,^ Alabama,^ and Florida,^ thts 
 old Roman rule has been early adopted and never modified. In 
 summary for this country, then, it may be said that, in some of 
 the states, such as those last mentioned, precatory words are 
 words of technical import and without more iimply prima facie 
 an intent to create a trust ; while in the United States Supreme 
 Court and the courts of most of the states, such as those first 
 above mentioned, they are words, not of technical, but of com- 
 mon parlance, and do not raise a trust, unless from the context 
 and the situation and circumstances of the testator it is to be 
 fairly concluded that such was his intention. 
 
 The intention of the testator, then, the " pole star " for the 
 construction of wills, is the one thing commonly sought for, 
 in determining whether or not a precatory trust has been 
 created. His wish, when clearly ascertained, is to be takeh as a 
 command. * But, by the weight of authority, especially as ex- 
 pressed by the most recent decisions on both sides of the At- 
 lantic, a design to raise such a trust shall not be found prima 
 facie from tlie mere use of precatory words, but must be spelled 
 out of the entire document read in the light of the circum- 
 stances of the case.^ There are several subordinate principles, 
 which are commonly employed in this connection in the effort 
 to ascertain intention. Chief among these is the requirement 
 that there must be certainty as to botli the objects and the 
 subject-matter of the trust; that is, the parties who are to 
 take as beneficiaries must be definitely indicated, and the prop- 
 erty which they are to take must be clearly specified.^ 
 
 § 324. Certainty of Beneficiaries as indicative of Precatory 
 Trusts. — As to the first of these requirements, it will be here- 
 after fully explained that certainty in the beneficiary is one of 
 the prime requisites of every private trust.'^ But if a trust be 
 created by direct, technical words, thereby making it plain be- 
 
 1 Cole V. Littlefield, 35 Me. 439. v. Hill (1897), 1 Q. B. 4g3 ; In re Adams 
 
 '•^ McEee's Adm'rs v. Means, 34 Ala. & Kensington Vestry, L. B. 27 Ch. Div. 
 
 349. 394; Colton v. Colton, 127 U. S. 300; 
 
 * Lines v. Darden, 5 Ma. 51. Clay v. Wood, 153 N. Y. 134; Aldrich 
 
 * Perhaps the three typical cases in v. Aldrich, 172 Mass. 101. 
 
 America may be said to be Colton v. ^ Stead v. Mellor, L. li. 5 Ch. Div. 
 
 Colton, 127 U. S. 300; Clay v. Wood, 225, 227; Briggs v. Penny, 3 MacN. & 
 
 153 N. Y. 134; and Aldrich u. Aldrich, G. 546; Harding v. Glyn, 1 Atk. 46&; 
 
 172 Mass. 101. And all of these are in 2 Lead. Cas. Eq. 1833, and notes, 
 
 harmony with the English rule. J § 327, infra. 
 
 * Cases cited above, especially Hill 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 455 
 
 yond question that the trustee is not to take beneficially, and the 
 cestui que trust be not clearly pointed out, or, because of his 
 death or inability to take, the primary objects of the settlement 
 fail, the property is held for the benefit of the settler, or, if he 
 be dead, of his heirs or personal representatives ; and a, resulting 
 trust is thus brought into existence.^ Whereas, in case of un- 
 certainty of the beneficiary indicated by precatory words, the 
 courts will more readily conclude that no trust whatever was 
 intended, and permit the donee to take the property freed from 
 all fiduciary obligation.^ Thus, suppose one lot of land is de- 
 vised to A, " in trust nevertheless for such persons as are 
 hereafter in this will designated," and no beneficiaries are 
 clearly pointed out by the will ; and another lot is devised to A, 
 " hoping and requesting, however, that he will use as much of 
 the income as is necessary for the support of such of his rela- 
 tives as may be hereinafter named," and no such relatives are 
 definitely named in the will. If these testamentary statements 
 be all the evidence available as to the intended dispositions of 
 the two lots, A will take the former in trust for the heirs of 
 the testator, but will own the latter absolutely for his own 
 benefit. In the one case, it is clear that A is not to take bene- 
 ficially, and so he is required to hold the property in trust ; in 
 the other, the want of certainty is evidence indicating that the 
 testator did not really intend to create any trust.^ The distinc- 
 tion thus pointed out is the most important practical one be- 
 tween a precatory trust and a trust made by direct words of 
 command or declaration. Intlie former, in case of its failure, 
 the donee of the legal estate is the more apt to acquire the 
 property for his own benefit. But, of course, if the creator of 
 
 1 Resulting trusts are such as arise 528 ; Mussoorie Bank v. Eaynor, L. R. 
 
 by implication of law, in favor of the 7 App. Cas. 321; Giles v. Anslow, 128 
 
 grantor or his heirs, or the heirs of a 111. 187 ; Harper v. Phelps, 21 Conn, 
 
 testator, when property has been con- 256. 
 
 veyed to a trustee with the manifest s Cases cited in last note. In the 
 
 intention that he shall not hold it bene- first of those cases, the Lord Chancel- 
 
 ficially, and the purpose for which he lor said : " Wherever the subject to be 
 
 is to hold is not fully expressed, or administered is trust property, and the 
 
 for some reason can not be carried objects for whose benefit it is to be ad- 
 
 ont. Such trusts are implied to carry ministered are to be found in a will not 
 
 out the presumed intent of the settler. expressly creating a trust, the indefinite 
 
 See discussion of them hereafter, Ch. nature and quantum of the subject, and 
 
 XXII. infra. the indefinite nature of the object are 
 
 ^ Morice v. Bishop of Durham, 10 always used by the court as evidence 
 
 Ves. 521, 536; Meredith v. Heneage, 1 that the mind of the testator was not 
 
 Sim. 542 ; Harland v. Trigg, 1 Bro. C. C. to create a trust." 
 U2; Hood V. Oglander, 34 L. J. Ch. 
 
456 ESTATES IN REAL PEOPEETY. 
 
 a trust make it clear, even by the use of precatory words, that 
 he wishes the trustee to hold the property for some one other 
 than himself, and nut to have any beneficial interest therein, this 
 design will in some way be carried out by the court, even 
 though the primary purpose of the settlement fail, for want of 
 certainty, or for other cause.-^ 
 
 § 325. Certainty of Subject-Matter as indicative of Preca- 
 tory Trusts. — Another matter for inquiry, in this connection, 
 to aid in ascertaining the settler's intent, is the certainty with 
 which the property or subject-matter is pointed out. When 
 the identity or amount of this is left at all in doubt, and prec- 
 atory language is employed, the conclusion most naturally 
 and commonly drawn, in the absence of other evidence to the 
 contrary, is that no trust was meant to be created .^ Cases of 
 this sort arise, and no trust comes into existence, where the 
 donee is authorized to select the particular piece of land, or the 
 amount of it, and it is fair to conclude from the context that 
 such choice is left entirely to his discretion ; ^ or where he is 
 to use up as much of it as he may need or desire and any 
 " surplus," or " residue," is requested to be held for others, or 
 to be divided among them.* 
 
 § 326. other Tests as to 'whether or not Precatory Trusts 
 exist. — A few other principles, upon which courts have laid 
 stress as helping to determine whether or not a precatory trust 
 was designed, may be briefly mentioned. Thus, when the gift 
 is in the first instance absolute and apparently for the donee's 
 own benefit, it will not be cut down to a trust by subsequent 
 precatory words in the will ; and especially is this true when 
 other provisions of the will intervene between the gift and the 
 precatory language relating thereto.^ So the courts will not 
 
 1 Ingram v. Fraley; 29 Ga. 553 ; Hill * Knight v. Boughton, 11 CI. & Fin. 
 on Trustees (4th Amer. ed.), 110, and 513; Clancarty v. Clancarty, 31 L. R. 
 notes ; Hawkins on Wills, 160. Ir. 530, 549 ; Pennock's Est., 20 Pa. 
 
 2 Knight!). Boughton, 11 CI. & Fin. St. 268; Willets v. Willets, 103 N. Y. 
 513; Coumanu. Harrison, 10 Hare, 234; 650, 656; Durant v. Smith, 159 Mass. 
 Durantu. Smith, 159 Mass. 229; Coul- 229; Nunn v. O'Brien, 83 Md. 198; 
 son V. Alpaugh, 163 111. 298; Nunn v. Coulson w. Alpangh, 163 111. 298; 1 
 O'Brien, 83 Md. 198. Perry on Trusts, § 114, and note, and 
 
 8 Williams v. Williams, 1 Sim. n. s. § 116. 
 358; Reeves v. Baker, 18 Beav. 372; ^ Webbs. Wools, 2 Sim. n. s. 267 
 
 Hood y. Oglander, 34 Beav. 513; Foose Bardswell w. Bardswell, 9 Sim. 319 
 
 V. Whitmore, 82 N. Y. 405 ; Matter of Wilde «, Smith, 2 Dam. (N. Y.) 93 
 
 Keleman, 126 N. Y. 73; Wyman v. Lawrence v. Cooke, 104 N. Y. 632 
 
 Woodbury, 86 Hun (N. Y.), 277, 282 ; Clarke v. Leupp, 88 N. Y. 228 ; Brown 
 
 Gilljert v. Chapin, 19 Conn. 342. u. Perry, 51 N. Y. App. Div. 11, 12; 
 
EQUITABLE ESTATES, — EXPRESS TKUSTS. 457 
 
 raise such a trust for a purpose, the carrying out of which they 
 cau not compel ; as where a devise was to the testator's wife, 
 with a request that out of the proceeds of the property she 
 should support his sister, as long as tlie two women would live 
 together, the court declared it could not undertake to make 
 them live together, and therefore would not hold that there 
 was any trust.^ Again, if the words used indicate merely a 
 'purpose or motive in making the gift, rather than a direction as 
 to its use, there will not be any trust. Thus a gift of property 
 to a person, " to purchase a ring," or " to enable him to maintain 
 the children," does not bring into being a trust of any kind.^ 
 
 There must be, as prerequisites to the existence of a preca- 
 tory trust, a reasonably clear intent that definitely described 
 property shall be held for the benefit of cestuis que trustent who 
 are pointed out with common certainty. 
 
 § 327. Requisites of Express Trusts generally. — It has been 
 said that " Three things must concur to raise a trust, — suffi- 
 cient words to create it, a definite subject, and a certain or 
 ascertained object." ^ That is, there must be a sufficient 
 declaration of the trust, in terms either precatory or directly 
 mandatory, the subject-matter must be clearly indicated, and 
 the object or beneficiary must be definitely pointed out. These 
 things must coexist, in order that a trust may come into 
 being. When it has once been created and exists as an inter- 
 est in real property, its -essential features are seen to be the 
 same as those which were heretofore enumerated as belonging 
 to a use ; namely, a trustee in being, a cestui que trust in being 
 and ascertained, or so described as to be readily ascertainable, 
 and a determined subject-matter in esse, to which the trust 
 interest is attached.* 
 
 The word "certain" is very important, in regard to all of 
 these requisites. While uncertainty as to the individuals who 
 are to be the beneficiaries is one of the elements of a charitable 
 
 Van Dayne ». Van Duyne, 14 N. J. Eq. 412; Burt v. Herron, 66 Pa. St. 400; 
 
 397; Second, etc. Church v. Desbrow, Barrett c. Marsh, 126 Mass. 213; 1 
 
 52 Pa. St. 219; 1 Perry on Trusts, Perry on Trusts, § 119. 
 § 112, and note. * Knight v. Boughton, 11 CI. & Fin. 
 
 1 Gravest!. Graves, 13 Ir. Ch. 182; 513; Cruw^s u. Colman, 9 Ves. 319, 
 
 Hood V. Oglander, 34 Beav. 513 ; Harper 323. 
 
 V. Phelps, 21 Conn. 256. See Phillips ■• Phelps' Executor v. Pond, 23 N. Y. 
 
 u. Phillips, 112 N. Y. 197, 204. 69, 77 ; Rose v. Hatch, 125 N. Y. 427, 
 
 '' Apreece v. Apreece, 1 Ves. & Bea. 431 ; Greene v Greene, l?^ N. Y. 506, 
 
 354; Benson v. Whittam, 5 Sim. 22; 510; Sherwood ■. Amer. Bible Soc , 4 
 
 Burke v. Valentine, 52 Barb. (N. Y.^ Abb. Ct. App. Dec. (N. Y.) 227. 
 
458 ESTATES IN REAL PROPERTY. 
 
 trust,^ yet if in any other form of express trust, as to any of 
 its requisites, or if in a charitable trust as to any requisite 
 except the objects, there be such uncertaijity that the court 
 can not surely know who or what is meant, the settlement 
 attempted", or apparently attempted, can not be carried into 
 effect. Either the entire scheme will fail, and there will be 
 no trust at all,^ or, if the legal estate pass to one who clearly 
 ought not to hold it for his own advantage, some form of 
 implied trust will arise, either to comply with the presumed 
 intent of the parties or to work out justice regardless of such 
 intent.^ It has already been shown that trusts are more apt 
 to exist by implication, or to result, when explicit mandatory 
 statements are used by the settler but uncertainty arises as to 
 the objects to be benefited, tlian in cases of like ambiguity 
 where the expressions used to create the trusts are precatory.* 
 When doubt springs from the latter source, it frequently 
 causes the court to hold, in its quest for the intent, that there 
 is not enough evidence to raise a trust — or rather that the 
 doubt is such as in itself to be evidence against the existence 
 of any trust at all — and that the donee takes the property 
 absolutely for his own benefit.^ 
 
 It is a rule which has no exception that, if a trust be once 
 properly created, equity will not allow it to fail for want of a 
 trustee.^ When no trustee is properly named, or one who is 
 duly appointed dies, is removed, or becomes incapacitated, the 
 court either ascertains or appoints another, or regards itself 
 as such and executes the trust.^ Therefore, a trust rarely fails 
 on account of any difficulty as to the trustee. There is ordi- 
 narily a trustee of some kind in esse. But, when the coming 
 of the trust into existence depends on the appointment of a 
 trustee, as is true of some forms of charitable trusts hereafter 
 explained,^ then the failure to name one, or an attempted 
 
 1 See § 308, supra, and §§ 345, 346, Jaques, 3 Edw. Ch. (N. Y.) 207 ; Story, 
 infra. Eq. Jar. §§ 9S, 976. 
 
 2 Campbell v. Brown, 129 Mass. 23 ; ' Bennet v. Davis, 2 P. Wms. 31 6 
 Hill on Trustees (4th Amer. ed.), 73, 74. Cross v. V. S. Trust Co., 131 N. Y. 330, 
 
 8 See § 310, supra, and § 351, infra. 350; Kirk i: Kirk, 137 N; Y. 510, 515 
 
 * § 324, supra; Morice v. Bishop of Cushney u. Henry, 4 Paige (N. Y.), 345 
 
 Durham, 10 Ves. 521, 536; Bispham'a King ■;. Donnelly, 5 Paige (N. Y.), 46 
 
 Prin. Eq. §§ 75, 76. Malin :;. Malin, 1 Wend. (N. Y.) 625 
 
 6 § 324, supra. Piatt v. Vattier, 9 Pet. (U. S.) 405 
 
 « Co. Lit. 290 b, 113 a; Dodkin v. Kerr v. Day, 14 Pa. St. 114; Treat's 
 
 Brunt, L. R. 6 Eq. 580 ; Bundy v. Bundy, Appeal, 30 Conn. 113. 
 
 28 N.Y. 410; McCartee v. Orphan Asy. ' § 346, infra. 
 
 Soc, 9 Cow. (N. Y.) 437 ; Crocherou v. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 459 
 
 nomination by words so ambiguous tliat the court can not' 
 ascertain certainly who is meant, will defeat the entire scheme.^ 
 The court will not let an existing trust terminate for want of 
 a trustee ; nor will it bring into being a trust that would other- 
 wise not exist, by creating a trustee, or identifying one from 
 loose, ambiguous, or uncertain expressions. 
 
 Any kind of valuable property may be the subject-matter of 
 a trust.2 Real property of every sort is that dealt with by the 
 trusts here discussed. The simple requirement is that it shall 
 be definitely pointed out, so that it can be ascertained with 
 certainty by the court. And when this is done, even though 
 the land itself is not within the jurisdiction of the court, a. 
 trust thereof can be taken cognizance of and administered, if 
 the court have jurisdiction over the parties. " Equity acts 
 in perso7iam." ^ And therefore, in the absence of statutoi'y 
 restriction, if it have the parties properly before it, it may 
 administer trusts and fiduciary matters as to property which is 
 situated in a state or country outside of its own jurisdiction.^ 
 
 Kinds of Express Trusts and Trust Interests. 
 
 § 328. Express Trusts, Active and Passive. — The distinction 
 between (a) active (or special) and (b) passive (or simple) 
 trusts has been already pointed out.^ When the trustee has 
 certain duties to perform, such, for example, as to manage the 
 property for the benefit of other persons, which renders it 
 necessary that the legal estate shall remain in him, the trust 
 is active. Otherwise it is passive ; that is, the trustee is 
 merely the receptacle of the legal title ; the cestui que trust 
 has both the jus habendi, or the right to possess and enjoy the 
 property, and the Jus disponendi, or the right, as he may direct, 
 to compel the trustee to convey the legal estate.® This division 
 
 ^ Last preceding note ; Grimes o. * Penn v. Lord Baltimore, 1 Ves. Sr. 
 
 Harmon, 35 Ind. 198 ; 2 Perry on Trusts, 444, 2 Lead. Cas. Eq. 767 ; Vaughan v. 
 
 § 713. Barclay, 6 Whart. (Pa.) 392 ; Mitchell v. 
 
 2 1 Perry on Trusts, § 67. Bunch!| 2 Paige (N. Y.), 606 ; Chase 
 
 ' The jurisdiction of the Court of v. Chase, 2 Allen (Mass.), 101 ; Liudley 
 
 Chancei:y was acquired originally v. O'Reilly, 50 N. J. L. 636 ; Clad v. 
 
 against the person; and an attachment Paist, 181 Pa. St. 148; 1 Perry on 
 
 again.st the person has always heen its Trusts, §§ 71, 72. 
 
 ordinary method of proceeding. Great ^ § 307, supra. 
 
 Palls Mfg. Co. u. Worster, 23 N. H. ^ Mills v. Johnston (1894), 3 Ch. 
 
 462; Hart u. Sansom, 110 U. S. 151, 204; McOune w. Baker, 155 Pa. St. 503; 
 
 154. 1 Lewin on Trusts, p. * 18. 
 
460 ESTATES IN REAL PROPERTY. 
 
 of trusts into those that are active and those that are passive 
 assumes its chief importance as a subdivision of express trusts, 
 because implied trusts are uniformly passive. 
 
 § 329. (a) Active Express Trusts. — The purposes for vhich 
 active express trusts may exist at common law are many and 
 varied, and are discussed hereafter. Such trusts simply need 
 to be mentioned here as a class. And the material and often 
 difficult question is next in order, when and under what con- 
 ditions do trusts, wliich are created as active ones, cease to 
 exist because of the fact that they become passive by a change 
 of circumstances and are then executed by the Statute of Uses ? 
 If, for example, land be devised to A as an active trustee to 
 manage and pay the net income to B during his life and then 
 to convey the land to C, D, and E, when if ever will the legal 
 estate depart from A (although he fail to convey it), and vest 
 in the beneficiaries, C, D, and E ? Before the discussion of 
 such questions, however, a few words are required as to trusts 
 which are passive in their inception. 
 
 § 330. (b) Passive Express Trusts — or Uses — : When Ex- 
 ecuted. — A passive express trust is simply and only the old 
 use with a new name — the legal estate is vested in one 
 who has nothing to do but to hold it, for another who has 
 all the management and benefit of the property.^ When a 
 trust is thus expressly created in the first instance as passive, 
 and there is in its inception no resort to the principle in 
 Tyrrel's Case — ;no making of it in the form of a use upon a 
 use — in the absence of direct, modern statutory prohibition, 
 it will ordinarily be at once executed by the Statute of Uses.^ 
 Tlie mere employment of the word " trust," instead of " use," 
 will make no difference. It is the use such as existed in the 
 times of and before the Statute of Uses ; and is dealt with as 
 such. In many of the United States, as New York, Indiana, 
 Delaware, Massachusetts, Pennsylvania, Maine, New Hamp- 
 shire, Vermont, and Virginia, the rule in Tyrrel's Case has 
 been entirely abrogated, either by positive statute or judicial 
 determination.^ (a) Indeed, it has been doubted by high 
 
 (a) For the New York statute abolishing the nile of Tyrrel's Case, see 
 note (a) to § 331, infra. 
 
 1 §§ 303, 304, supra. 8 N. y. Real Prop. Law (L. 1909, 
 
 " Austen v. Taylor, 1 Eden, 361 ; ch. 52), §§ 92, 93 ; Downing i>. Mar- 
 
 Wendt 17. Walsh, 164 N. Y. 154; 1 shall, 23 N. Y. 366, 379 ; Townshend w. 
 
 Lewiu on Trusts, p. *209. Froramer, 125 N. Y. 446, 456; Wendt 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 461 
 
 authority whether that rule is in force at all in this country.^ 
 And the general American principle may be stated to be that, 
 whenever the legal estate is expressly given to a trustee, to 
 whom no active duties are assigned, it immediately goes past 
 him and vests in the cestui que trust for whose benefit the 
 settlement was ultimately intended. In Missouri, however, 
 and probably in New Jersey, and possibly in a few other states, 
 Tyrrel's Case has been adhered to ; and there, if a passive ex- 
 press trust be made in the form of a use upon a use, as to A in 
 trust for B in trust for C, the legal estate will not be carried 
 further than to the first-named beneficiary — ^in the example 
 given, to B — and he will hold as a passive trustee for the other 
 — for C.2 
 
 § 331. Effects of Active Ezpress Trusts becoming Passive. — 
 The moi'e difiicult question, as above stated,** is usually pre- 
 sented when a trust which has been once active becomes pas- 
 sive, or when by any means the trustee once active becomes the 
 holder of a mere dry legal estate. Does the trust then cease 
 and the legal estate vest immediately in the beneficiary ? It 
 does so in New York and in the few states, such as Wisconsin 
 and Michigan, which have followed New York's advanced form 
 of legislation upon this subject.* In those states a passive ex- 
 press trust can not exist ; for, as soon as a trust becomes of 
 that nature, the equitable estate of the ultimate beneficiary is 
 merged in the legal estate which passes to him.'' The same 
 position was at one time held by the courts of Pennsylvania, 
 without the aid of any statute.^ But they subsequently placed 
 themselves again in line with the English courts and those of 
 the majority of the states of this country.^ 
 
 V. Walsh, 164 N. Y. 154; Ind. Rev. St. mer, 125 N. Y. 446, 456; Hopkins v. 
 
 (1843) ch. 28; Del. Rev. St. (1829) Kent, 145 N. Y. 363; Wendt i. Walsh, 
 
 p. 89, § 1; Thatcher w. Omans, 3 Pick. 164 N. Y. 154; Wis. Rev. St. (1858) p. 
 
 (Mass.) 521, 528; Tucker's Appeal, 75 529; Goodrick v. Milwaukee, 24 Wis. 
 
 Pa. St. 354 ; Greenl. Cruise, Dig. tit. 422, 429 ; Backhaus v. Backhaus, 70 
 
 xii. ch. 1, § 4, note. Wis. 518; 2 Mich. Comp. L. (1857) p. 
 
 1 Greenl. Cruise, Dig. tit. xii. ch. 1 824; Ready v. Kearsley, 14 Mich. 215, 
 § i, note. 228. See also Murphey v. Cook, 75 
 
 2 Guest V. Farley, 19 Mo. 147. And N. W. Rep. (S. D.) 387. 
 see CroxaU v. Shererd, 5 Wall. (U. S.) " ^ Ibid. 
 
 268, 282 ; Martling o. Martling, 55 N. 6 Kuhn v. Newman, 26 Pa. St. 227 ; 
 
 J. Eq. 771, 780 ; Price v. Sisson, 13 N. J. Bush's Appeal, 33 Pa. St. 85 ; Nagee's 
 
 Eq. 168, 173 ; Jackson v. Gary, 16 Johns. Appeal, 33 Pa. St. 89. 
 
 Ch. (N. Y.) 302. ' Barnett's Appeal, 46 Pa. St. 392; 
 
 ' § 329, supra. ■ Bacon's Appeal, 57 Pa. St. 504 ; Tucker's 
 
 *N. Y. Real Prop. Law (L. 1909, Appeal, 75 Pa. St. 354 ; Ogden's Appeal, 
 
 ch. 52), §§ 92, 93 ; Townshend u.'From- 70 Pa. St. 501. 
 
462 ESTATES IN EEAL PROPERTY. 
 
 These latter tribunals likewise hold that the trust is ex- 
 ecuted as soon as it becomes wholly passive, when the only, 
 reason for the existence of the trustee in the first place was 
 that he might hold the property for the purpose of actively 
 performing some prescribed duty in reference thereto, and no 
 ultimate conveyance or transfer is expressly or impliedly 
 directed.^ Thus, where land was conveyed to the grantor's 
 wife, in trust to hold and manage for the benefit of their 
 children until the youngest child should become twenty-one 
 years of age, it was held that at the majority of such child the 
 trust terminated and the legal estate vested absolutely in all 
 the beneficiaries.^ But when the failure of the statute to 
 execute the trust in the first instance is not due entirely to the 
 active character of the trust, — as, for example, when the trustee 
 is directly ordered to make a conveyance of the legal title after 
 his work of managing for a period is accomplished, — then it is 
 held by the courts of England and most of our states that the 
 fact alone that the trust has ceased to be active does not cause 
 it to be executed by the Statute of Uses.^ In such cases, how- 
 ever, after his active labors are at an end, it is generally the 
 duty of the trustee, upon demand of the cestui que trust, to 
 convey the legal title to the latter, or to such person or persons 
 as he shall appoint.* And, a sufficient reason therefore thus 
 appearing, after a great lapse of time and long-continued pos- 
 session by the equitable owner, and in favor of a just title, 
 equity will presume that the trustee has performed his duty by 
 making such a conveyance.^ Thus, where the trustee is ex- 
 pressly ordered to convey upon the happening of a specified 
 event, as when a minor becomes of age, and the beneficiary 
 has been exclusively enjoying the property for a number of 
 years after that time — in one case only about four years — 
 the court presumes a conveyance, though there may be nothing 
 to lead it to suppose that one was ever actually made.^ So, 
 
 1 1 Perry on Trusts, §§ 349-351. 381. And see Hopkins w. Kent, 145 N.Y. 
 
 ■^ Sherman v. Dodge, 28 Vt. 26, 30; 363; 1 Perry on Trusts, §§ 351-355. 
 Leonard's Lessee v. Diamond, 31 Md. * Dunn v. Wheeler, 80 Mo. 238. 
 
 536, 541 ; Hill on Trustees (4th Amer. 5 England v. Slade, 4 T. K. 682 ; 
 
 ed.), 316; 1 Perry on Trusts, § 351. Angier v. Stannard, 3 Myl. & K. 566, 
 
 8 England v. Slade, 4 T. R. 682; 571; Langleyu. Sneyd, 1 Sim. & St. 45. 
 Obert 0. Bordine, 20 N. J. L. 394; « England «. Slade, 4 T. R. 682; 
 
 Welles V. Castles, 3 Gray (Mass.), Wilson v. Allen, 1 Jac. & W. 591, 611 ; 
 
 323 ; Hooper v. Feigner, 80 Md. 262, Hillary v. Waller, 12 Ves. 239 ; Doe v. 
 
 271; Aikin v. Smith, 1 Sneed (Tenn.), Sybourn, 7 T. K. 2; Marr t. Gilliam, 
 
 304; Liptrot !;. Holmes, 1 Kelley (Ga.), 1 Cold. (Temi.) 488. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 463 
 
 where land was deeded to trustees, for the purpose of having 
 them partition it and transfer separate pieces to the individual 
 grantors, it was presumed, after long occupation of distinct 
 parcels by the latter, that the trustees had duly made the con- 
 templated conveyances.^ The three requisites to such a pre- 
 sumption are : first, that it shall be supported by some sufficient 
 reason — ^and long and exclusive possession by the beneficiary, 
 when aided by any other slight circumstances, is one of the 
 best and most common reasons ; second, that it was the duty 
 of the trustee to make the conveyance ; and third, that the 
 presumption is in favor of, and not against, a just and proper 
 title.^ One can not have the benefit of such a presumption for 
 gaining an unfair or inequitable advantage over an adverse 
 claimant.^ 
 
 It need hardly be added that, while the trust remains 
 active, in whole or in part, the statute will not execute it, 
 and the courts will ordinarily refuse to presume or order a 
 conveyance from the trustee. Yet, even if some of the pur- 
 poses of the trust have not been accomplished, or the trust 
 may not have run its full prescribed course, if the cestuis que 
 trustent are all in being and under no legal disability, the court, 
 with their consent, may order the trust to be terminated and the 
 legal estate transferred to the rightful owner or owners.* This 
 can not be done, however, in derogation of the wish or intent 
 of the settler of the trust.^ 
 
 The rules above stated, by which the English and most of 
 the American courts determine whether or not a trust that has 
 become passive is to be held to have terminated, or a convey- 
 ance of the legal estate to the beneficiaries is to be presumed, 
 are necessarily somewhat vague and indefinite. Tiie time 
 involved in raising such presumptions of conveyances is not 
 necessarily nor usually the same as that of the Statute of Limi- 
 tations. Sometimes it is shorter, sometimes longer, according 
 as there are or are not other important facts to aid in raising 
 
 1 Jackson v. Moore, 13 Johns. Ch. * Bowditch v. Andrew, 8 Allen 
 (N. Y.) 513, a case decided before the (Mass.), 339; Culbertson's Appeal, 76 
 present form of statute on this matter Pa. St. 145, 148 ; Cuthbert v. Chauvet, 
 was adopted, — before Jan. 1, 1830; 136 N. Y. 326; Perry on Trusts, §§ 274, 
 Kimball v. Blanchard, 101 Me. 383; 922. 
 
 Guild V. Allen, 28 R. I. 430. * Hogan v. Karanogh, 138 N. Y. 41 7 ; , 
 
 2 1 Perry on Trusts, §§ 351-355. Cuthbert v. Chauvet, 136 N. Y. 326 ; 
 ' Doe V. Wrighte, 2 Barn. & Al. 710 ; Lent v. Howard, 89 N. Y. 169 ; Douglas 
 
 Doe w. Cook, 6 Bing. 174,179; 1 Perry v. Crager, 80 N. Y. 15; Chaplin on 
 on Trusts, § 355. Express Trusts and Powers, § 526. 
 
464 ESTATES IN REAL PROPERTY. 
 
 the presumption.! All the circumstances of each case are care- 
 fully examined ; and, in the light of these and by the applica- 
 tion of the rules above stated, the trusts are declared to have 
 terminated when such conclusions are just and equitable and 
 aid in the quieting and perfecting of titles. A statutory rule, 
 like that of New York, which instantly terminates an express 
 trust when it ceases to be active, is much more definite and 
 satisfactory, (a) 
 
 (a) The New York statute, which is now Real Prop. Law (L. 1909, oh. 
 52), §§ 90-93, is as follows : — 
 
 •' § 90. Every estate which is now " (Jan. 1, 1830) " held as a use, 
 executed under any former statute of the state, is confirmed as a legal 
 estate." 
 
 " § 91. Uses and trusts concerning real property, except as authorized 
 or modified by this article, have been abolished ; every estate or interest 
 in real property is deemed a legal right, cognizable as such in the courts, 
 except as otherwise prescribed in this chapter." 
 
 "§92. Every person, who, by virtue of any grant, assignment, or 
 devise, is entitled both to the actual possession of real property, and to the 
 receipt of the rents and profits thereof, in law or equity, shall be deemed 
 to have a legal estate therein, of the same quality and duration, and sub- 
 ject to the same conditions, as his beneficial interest; but this section does 
 not divest the estate of the trustee in any trust existing on the first day of 
 January, eighteen hundred and thirty, where the title of such trustee is 
 not merely nominal, but is connected with some power of actual disposi- 
 tion or management in relation to the real property which is the subject of 
 the trust." 
 
 " § 93. Every disposition of real property, whether by deed or by devise, 
 shall be made directly to the person in whom the right to the possession 
 and profits is intended to be vested, and not to another to the use of, or in 
 trust for, such person ; and if made to any person to the use of, or in trust 
 for another, no estate or interest, legal or equitable, vests in the trustee. 
 But neither this section nor the preceding section of this article shall 
 extend to the trusts arising, or resulting by implication of law, nor pre- 
 vent or affect the creation of such express trusts as are authorized and 
 defined in this chapter." 
 
 No express trusts, except such as are active, are "authorized and 
 defined " in the chapter which contains these sections, or in any other law 
 of New York. The sections here quoted are the present form of the same 
 statute in substance, which went into operation as a part of the New York 
 Revised Statutes, Jan. 1, 1880 (1 R. S. 727, §§ 45-50). See Fowler's 
 R. P. Law, pp. 232-248. 
 
 The results of these enactments are that (1) no passive express trust 
 
 1 1 Perry on Trusts, § 349. In some trust instrument, or is specially pre- 
 instances this time is regulated by special scribed by law, "shall cease at the ex- 
 statutes of limitation. Thus, in New York, piration of twenty-five years from the 
 a trust for the benefit of creditors, except time when the trust was created." See 
 where a diEEerent period is fixed by the last paragraph to note (a), p. 465, infia. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 465 
 
 § 332. Powers in Trust. — In order that a trust may exist, 
 the trustee must have the legal estate in the property. If tliere 
 be no legal estate and title for a trustee, there can be no trust.^ 
 Thus, if land be devised to A to hold and manage for the 
 benefit of B, the legal estate vests in A ; and, if anything sub- 
 sequently occur by which that interest is taken to B, the trust 
 
 can exist in New York, but an attempt to create one, which is otherwise 
 legal, vests the legal estate at once in the person who is designated as 
 ultimate beneficiary, Hopkins v. Kent, 145 N. Y. 363 ; Syracuse Sav. Bk. 
 V. Holden, 105 N. Y. 415, 418; Wendt v. Walsh, 164 N. Y. 154; Seidel- 
 bach V. Knaggs, 44 N. Y. App. Div. 169; Ring v. McCoun, 10 N. Y. 268; 
 ami {2) when a trust once active ceases to be so and becomes passive, the 
 legal estate passes instantly to the beneficiary, or person entitled thereto, 
 without any conveyance by the trustee ; and this is true whether or not the 
 trustee was ordered by the trust instrument to make a conveyance. Deni- 
 son I. Denison, 185 N. Y. 438, 443; Ring v. McCoun, 10 N. Y. 268; 
 Matter of Brown, 154 N. Y. 313; Matter of Tompkins, 154 N. Y. 634. 
 And see Matter of Baer, 147 N. Y. 348. If, for example, property be de- 
 vised to A, in trust to manage and pay the net rents and profits to B, and 
 on B's death to divide and convey the corpus among B's children, as soon 
 as B is dead the children then living have the legal estate absolutely vested 
 in them, without the necessity for any conveyance by A. Matter of 
 Brown, 154 N. Y. 313; Matter of Crane, 164 N. Y. 71 ; Paget v. Melcher, 
 156 N. Y. 399. And it seems to be clear in such a case that, since no 
 conveyance by the trustee is necessary to perfect the title, he can not be 
 compelled to convey. Ring v. McCoun, 10 N. Y. 268. But see Ander- 
 son V. Mather, 44 N. Y. 249 ; King v. Whaley, 59 Barb. 71. 
 
 These statutes do not vest an estate in the proposed beneficiary, how- 
 ever, if he be incapable of taking a direct grant or devise of the legal title, 
 as, e. g., if he be an alien who could not so take directly. Beekraan v. 
 Bonson, 23 N. Y. 298, 316. So these statutes do not apply to take the 
 legal estate from the trustee, when he himself has a beneficial interest in 
 the property, either alone or with others. King v. Townshend, 141 N. Y. 
 358, 364; New York Dry Dock Co. u. Stillman, 30 N. Y. 174. 
 
 In connection with the matter of the termination of a New York 
 express trust by virtue of statute, § 110 of the real property law (L. 1909, 
 ch. 52) is also to be noted. It is as follows: " Where an estate or 
 interest in real property has heretofore vested or shall hereafter vest in the 
 assignee or other trustee for the benefit of creditors, it shall cease at the 
 expiration of twenty-five years from the time when the trust was created, 
 except where a different limitation is contained in the instrument creating 
 the trust, or is especially prescribed by Jaw. The estate or interest remain- 
 ing in the trustee or trustees shall thereon revert to the assignor, his heirs, 
 devisee, or assignee, as if the trust had not been created." Kip ik Hirsh, 
 103 N. Y. 565, 572 ; Hoag v. Hoag, 35 N. Y. 469 ; New York Steam Co. v. 
 Stern, 46 Hun, 206. 
 
 1 GovinK De Miranda, 140 N.Y. 474, N. Y. 146; Requisites of Trusts, § 327, 
 477; Locke </. P. L. & Y. Co., 140 supra. 
 
 30 
 
466 ESTATES IN REAL PROPERTY. 
 
 then instantly terminates.^ But it frequently liappens that a, 
 power to dispose of property is given to one, to whom no estate 
 or interest is transferred ; as, fdr example, when realty is con- 
 veyed to A for his life and B is authorized and empowered to 
 dispose of it after A's death. B has no estate in the land, but 
 only a power or authority to dispose of or otherwise deal with ' 
 it. The donee, or owner of such a right, may also have an 
 estate in the property, either for his own benefit or as trustee 
 for another, and so may own the two as separate and distinct 
 things.^ This is illustrated by a conveyance of land to A, to 
 hold during his life, either for himself or in trust for others, 
 with power in him to dispose of it by will at his death.* But 
 the important distinction is that, as donee of a power he does 
 not have to own the legal estate, although he may own it and 
 also a distinct power ; whereas to be trustee he m.ust have the 
 legal estate. This is not the proper place for the complete dis- 
 cussion of powers over real property. They are most readily 
 explained hereafter, in connection with future and executory 
 interests in realty. But such powers as partake of the nature 
 of trusts — those which place fiduciary obligations upon the 
 donees, and are consequently called trust powers, or powers in 
 trust — should be briefly noticed here, after our examination 
 of the forms of express trusts. 
 
 § 333. Executing, or carrying out the Requirements of. Powers 
 in Trust. — In the early leading case of Brown v. Higgs,* Lord 
 Eldon said : " There are not only a mere trust and a mere 
 power, but there is also known to this court a power which the 
 party to whom it is given is entrusted and required to execute ; 
 and with regard to that species of power the court considers it 
 as partaking so much of the nature and qualities of a trust, 
 that if the person who has that duty imposed upon him does 
 not discharge it, the court will to a certain extent discharge 
 the duty in his own room and place." That is, a power *in 
 trust, in its essential nature, places upon the donee thereof a 
 duty to execute it, and thereby to dispose of property, in favor 
 of some person or persons other than himself. An illustration 
 is found in a devise of land to the testator's son, during his 
 
 1 Wade V. Paget, 1 Bro. Ch. 363 ; ^ Belmont v. O'Brien, 12 N. Y. 394, 
 
 James v. Morey, 2 Cow. (N. Y.) 246; 404; Fincke «. Fincke, 53 N. Y. 528; 
 
 Nicholson!). Halsey,! Johns. Ch.(N.Y.) Miller w. Wright, 109 N. Y. 194. 
 417, 422; Wills v. Cooper, 1 Dutch. » Smith i). Floyd, 140 N. Y. 337. 
 
 (N. J.) 137 ; Donalds v. Plumb, 8 Conn. * 8 Ves. 570, 5 Ves. 495. 
 
 446, 453 ; 1 Perry on Trusts, § 347. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 46T 
 
 life, " with the right and privilege of disposing of the same by 
 •will or devise to his children, if any he should have." ^ Unless 
 the creator of such a power himself leaves it discretionary with 
 the donee to execute it or not as he may choose, or, in other 
 words, unless the duty is expressly created as an imperfect and 
 unenforcible obligation, equity will compel the donee to per- 
 form it, if possible ; ^ or, if he be dead or can not be reached, 
 the court itself will execute the trust power .^ And when the 
 latter course is pursued, if no special scheme of distribution be 
 outlined by the donor, the court follows its maxim, that 
 " equality is equity," and divides the property equally among 
 the designated beneficiaries.* 
 
 In the last analysis, then, a power in trust involves a form 
 of express fiduciary obligation similar to that of an express 
 trust. The same degree of certainty as to the subject-matter 
 and beneficiaries is required, and equity usually enforces the 
 performance of the obligations alike in both cases.^ But the 
 fact is to be again emphasized that the donee, as such, of a 
 power in trust never has the legal estate, while there can be no 
 trust, technically so called, without a legal estate vested in a 
 trustee, (a) 
 
 The purposes for which powers in trust may exist are prac- 
 tically unrestricted, except by local statute, and by the require- 
 ment that their execution shall not violate any rule of law or 
 public policy. 
 
 (a) The New York system of trusts and powers is such that many 
 dispositions of property, which at common law would cause trusts to exist, 
 produce mere powers in trust. See this explained in the note on New 
 York express trusts, at the end of this chapter. 
 
 1 Smith V. Floyd, 140 N. Y. 337; Glover v. Condell, 163 111. 566. But 
 
 Salusbury v. Denton, 3 Kaj' & J. 529 ; when a, different practical scheme of 
 
 Glover v. Condell, 163 111. 566. distribution is set forth by the donor, 
 
 " In re Kirwan's Trusts, L. R. 25 the court will follow his wishes as far 
 
 Ch. Div. 373 ; In re Burrage, 62 L. T. as possible. Gower v. Mainwaring, 2 
 
 752 ; Towler v. Towler, 142 N. Y. 371 ; Ves. Sr. 87 ; Maberly v. Torton, 14 Ves. 
 
 Mat. L. Ins. Co. v. Everett, 40 N. J: Eq. 499 ; Bull t.-. Bull, 8 Conn. 47 ; 1 Perry 
 
 345 ; Osborne v. Gordon, 86 Wis. 92 ; on Trusts, § 255. 
 
 Dick V. Harby, 48 S. C. 516; McHan v. ^ In re Weeke's Settlement (1897), 
 
 Ordway, 82 Ala. 463. 1 Ch. 289 ; In re Eddowes, 1 Drew. & 
 
 3 Ibid. ; 1 Perry on Trusts, § 255. Sm. 395 ; Tilden v. Green, 130 N. Y. 
 
 ' Doyley v. Atty.-Gen., 2 Eq. Cas. 29; Towler v. Towler, 142 N. Y. 371; 
 
 Ah. 195; Izod v. Izod, 32 Beav. 242 
 Salusbury v. Denton, 3 Kay & J. 529 
 Eorke v. Abraham (1895), 1 I. R. 334 
 
 Mut. L. Ins. Co. V. Everett, 40 N. J. Eq. 
 345 ; Osborne v. Gordon, 86 Wis. 92. 
 
468 ESTATES IN REAL PROPEETT. 
 
 Specific Kinds of Express Trusts. 
 
 § 334. Purposes for which Express Trusts may exist. — At 
 common law, the only practical restriction upon the purposes 
 for which express trusts can be created and exist is, that they 
 shall not be of an illegal character.^ Illustrations of purposes 
 for which they are very commonly made are ; to sell, and from 
 the proceeds to pay creditors of the settler ; to sell, mortgage, 
 or lease to pay legacies or charges ; to manage, receive the net 
 income and pay it over to designated persons or apply it to 
 their maintenance and support ; to receive the net income and 
 accumulate it for a specified object ; to sell and pay the pro- 
 ceeds to the settler ; to receive the income and raise therefrom 
 a jointure or marriage portion ; to convey to specified persons ; 
 to partition ; to mortgage or lease, and out of the proceeds to 
 pay the settler's debts ; to hold for the sole and separate use of 
 a married woman ; to hold and manage for the benefit of a 
 charity, etc. In a few states, of which New York is promi- 
 nent, the number of purposes for which express trusts in real 
 property are allowed has been materially reduced by statute, 
 and powers in trust have been substituted for those forms 
 which have been abolished.^ But this change has not been 
 made with regard to personal property, (a) nor in England 
 and most of the United States with regard to realty. 
 
 Of the purposes above enumerated, the trusts for creditors 
 are very important, as comprising assignments and transfers of 
 property in bankruptcy proceedings and the ordinary insolvent 
 and general assignments under state statutes. By the cxjnvey- 
 ance of the land to , the trustee or assignee in bankruptcy or 
 
 (a) The five purposes for which express trusts in real property are 
 now permitted in New York are explained in the note at the end of this 
 chapter. But express trusts in personalty may be created for " any pur- 
 pose not unlawful, subject only to the law of perpetuity." Matter of Wil- 
 kin, 183 N. Y. 104, 109 ; Tabernacle Church v. Fifth Avenue Church, 60 
 N. Y. App. Div. 327, 334 ; Russell v. Hilton, 80 N. Y. App. Div. 178, 187. 
 See Mills v. Husson, 140 N. Y. 99. 
 
 1 This is true as to both realty and ^ See note on New York express 
 
 personalty, unless changed by statute. trusts, at the end of this chapter; 
 
 Matter of Carpenter, LSI N. Y. 86; Baokhans v. BackhauS, 70 Wis. 518; 
 
 Hlrsh V. Aner, U6 N. Y. 13; Hagerty Ready v. Kearsley, 14 Mich. 215, 228; 
 
 V. Hagerty, 9 Hun (N. Y.), 175; Tritt Murphy v. Cook, 11 S. D. 47. 
 V. Crotzer, 1.3 Pa, St. 451 ; 1 Perry on 
 Trusts, §21. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 469 
 
 insolvency, he acquires it as an active trustee to dispose of 
 according to the statute under which he is acting and to dis- 
 tribute the net proceeds ratably among the creditors of the 
 insolvent or bankrupt.^ (a) 
 
 Trusts to pay legacies, or charges on land such as mortgages, 
 etc., and those to manage the property and to receive and dis- 
 burse or accumulate income are very common and necessary 
 forms, which are retained even under such restrictive statutes 
 as those of New Yoi'k.^ A few words as to one of the trusts 
 for receiving and disbursing income ^ — -the so-called spendthrift 
 trust — are added in the following section. Trusts for the solo 
 and separate use of married women are not now as common as 
 they were before modern legislation had given to femes covert the 
 general ownership of their real property, and the complete con- 
 trol of and power over it which they now enjoy in most places. 
 But a brief summary of this kind of express trusts will be 
 found in a subsequent section.^ Trusts for the benefit of 
 charity have been brieiiy described already, and their distinc- 
 tive characteristics stated.* They require further discussion in 
 this chapter, as an important species of active express trusts; 
 
 § 335. Spendthrift Trusts. — The settler of a trust to re- 
 ceive and disburse income sometimes attempts to prevent the 
 interest of the cestui que trust from being aliened by him or 
 reached by his creditors. These arrangements, which have 
 been styled " spendthrift trusts," have caused much discussion , 
 and contrariety of opinion and decision as to how far such 
 objects can be legally accomplished. 
 
 It is absolutely settled in England that neither the alienabil- 
 ity of such an equitable estate or interest, nor its availability 
 for the debts of its owner, except when she is a married 
 woman, can in any manner be prevented or taken away. A 
 condition precedent that the provision shall not vest for the 
 beneficiary until his debts are paid, or a condition subsequent 
 
 (a) The "General Assignment" Act of New York, the operation of 
 which is, of course, largely superseded by the National Bankruptcy Law now 
 in force, was passed in 1877 (L. 1877, ch. 466), and is now found in N. Y. 
 Consol. Laws, p. 446. Insolvent Assignments, Code Civ. Pro. §§ 2149- 
 2187. See Gerard, Titles R. E. (4th ed.) ch. 31, 32. 
 
 1 The statutes in full upon these = N. Y. Real Prop. Law (L. 189^ 
 
 subjects shoald be consulted. See the ch. 547), § 76. 
 National Bankruptcy Act of July 1, ' § 336, infra. 
 
 1898; N. J. L. 1899, ch. 54; 1 Stim. * % 30%, supra. 
 
 Amer. Stat. L. part iv., " Insolvency." 
 
470 ESTATES IN REAL PROPERTy, 
 
 that the trust interest shall be divested from him if he become 
 insolvent or indebted and shall then pass over to another, is 
 there valid ; and thus the creditors of the intended cestui que 
 trust may be prevented from ever reaching the property, be- 
 cause of his never acquiring it or its being taken from him to 
 another. But the principle is unassailable that he can not take 
 and retain the property exempt from the rights of his creditors 
 or divested of his own power of disposal.^ 
 t" Uniformly in this country,- also, conditions preventing the 
 proposed beneficiary from acquiring and keeping the trust 
 estate while he is insolvent, or passing it over to another if he 
 ■become so, are sustained.''' And likewise the general rule 
 throughout the United States, wherever the matter is not 
 effected by statute, is the same as that of England, — the cestui 
 ■que trust can not hold the property for his own enjoyment freed 
 from the duty of applying it or having it applied to the pay- 
 ftient of his debts and obligations.^ But in a few of the states, 
 of which Massachusetts, Maine, Connecticut, and Virginia are 
 examples, and in the Federal Courts, even in the absence of 
 any statutory regulation, property may be settled in trust by 
 one person for the payment of income to another as beneficiary 
 for his life or for a shorter period, so that his creditors can not 
 reach it and he himself can not alien it by way of anticipation. 
 The principle on which this result is based is that the rule of 
 public policy, which requires a man's property to be subject to 
 the payment of his debts, does not go to the extent of giving 
 a creditor a right to complain because his debtor receives a 
 ■gift from a donor, who, in exercising his absolute right of dis- 
 position of the property, has chosen to keep it out of the reach 
 ■of the creditors of the donee.* In some of the American states, 
 such as New York and New Jersey, this matter is regulated by 
 statute ; the favorite form of the enactment being to the effect 
 that where property is given to a trustee by one person to pay 
 the income to another for life, a judgment creditor of the latter 
 may maintain an action in equity to recover the surplus income 
 
 1 Brandon u. Robinsou, 18 Ves. 429; * Foster v. Foster, 133 Mass. 179; 
 Dumpor's Case, 1 Sm. L. C. 119, note; Broadway Nat. Bk. w. Adams, 133 Mass. 
 Wms. R. P. p. * 87. 170; Wanner v. Snyder, 177 Pa. St. 
 
 2 Ibid.; Nichols v. Eaton, 91 U. S. 208; Seitzinger's Est., 170 Pa. St, 500; 
 716; Hallett v. Thompson, 5 Paige Roberts u. Stevens, 84 Me. 325 j Leavitt 
 (N. Y.), 583; Easterly v. Keney, 36 «. Beirne, 21 Cpnn. 8; Yonng u. Easley, 
 Conn. 22; Taylor u. Harwell, 65 Ala. 1. 94 Va. 193; Jarboe ;;, Hey, 122 Mo. 
 
 3 Ibid.; Warner !). Rice, 66 Md. 436 ; 341; Nichols v- Eaton, 91 U. S. 716; 
 Perry on Trusts, §§ 386 a, 827 a. Potter v. Couch, 141 U. S. 296. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 471 
 
 (both accrued and to accrue in the future) beyond what is 
 necessary for the suitable support and maintenance, according 
 to his station in life, of the cestui que trust and those who are 
 dependent upon him.^ (a) It is safe to add that on neither 
 side of the Atlantic does any court hold that the founder of a 
 trust, by making himself the beneficiary, can remove the prop- 
 erty from the reach of his creditors either present or future.^ 
 In New York, for example, A may settle property in trust for 
 B for life, so that B's creditors can not reach the income suita- 
 ble for the support of B and those dependent upon him; but 
 if the settlement wei-e by A in trust for himiself for life, his 
 creditors could take it all.' 
 
 § 336. Separate Use Trusts for Married Women. — Because 
 of the great power and control of a husband over the property 
 belonging to his wife, the method early came into use in Eng- 
 land, and was favored and fostered by the Court of Chancery, 
 of making settlements in trust " for the sole and separate use " 
 of married women. This may be done, either by employing 
 the words just quoted, which have come to be the technical 
 form, or by using any equivalent expression, or by otherwise 
 making the trust in such a manner as expressly or by neces- 
 sary implication to show an intent to exclude the husband's 
 
 (a) The New York statute, which was originally 1 R. S. 729, § 57, and 
 is now Real Property Law (L. 1909, ch. 52), § 98, provides that " Where 
 a trust is created to receive the rents and profits of real property, and no 
 valid direction for accumulation is given, the surplus of such rents and 
 profits, beyond the sum necessary for the education and support of the 
 beneficiary, shall be liable to the claims of his creditors in the same manner 
 as other personal property, which cannot be reached by execution. " The 
 "education and support " includes not only that for himself according to 
 his station in life, but also that for the support of his wife, aud the educa- 
 tion and support of his children, and the maintenance generally of those 
 properly dependent upon him. Code Civ. Pro. §§ 1871-1879 ; Wetmore v. 
 Wetmore, 149 N. Y. 520; Everett v. Peyton, lti7 N. Y. 117 ; Sherman v. 
 Skuse, 166 N. Y. 345. See Matter of Williams, 187 N. Y. 286, 288 ; note 
 on New York express trusts, at the end of this chapter. Also, when income, 
 not less than twelve dollars per week, is due, or to become due, to a debtor, 
 from trust funds, his creditors may reach ten per cent thereof, as it accrues. 
 Code Civ. Pro. § 1391. When the trust is such that the beneficiary may 
 ■take the corpus, his creditors may reach it also. Ullman v. Cameron, 186 
 N. Y. 339, 345. 
 
 » See Spring v. Raudall, 107 Mich. = Pac. Nat. Bk. v. Windram, 1.33 
 
 103 ; Parker H. & Co. v. Bushnell, 80 Mass. 175; Ghormley v. Smith, 139 Pa. 
 
 ■Conn. 233; N. J. Gen. Stat. p. 1424, § 43 ; St. 584 ; Schenck v. Barnes, 156 N. Y. 
 
 Linn v. Davis, 58 N. J. L. 29. This Stat- 316, 319. 
 
 nte makes all the income over $4,000 ^ Schenck c Barnes, 156 N. Y. 316, 
 
 available for creditors of the cestui que 321 ; Egbert v. De Solms, 218 Pa. St 
 
 <r.i«y. 207. 
 
472 ESTATES IN REAL PROPERTY. 
 
 marital rights as to that property.^ It is not necessary to 
 name a trustee in such a case. The husband himself may be 
 made trustee, and compelled to manage the property solely for 
 the benefit of his wife ; and, when no trustee is named, equity 
 will usually require him to occupy that position.^ 
 
 After some vacillation, it was settled by the English courts 
 that the wife might dispose of, encumber, or otherwise antici- 
 pate a trust interest settled upon her for her sole and separate 
 use.^ And the same view was adopted by most of the Ameri- 
 can tribunals.* This was apt to restore the husband's bene- 
 ficial control over the property, through the influence which he 
 could ordinarily exercise over his wife. In order to obviate 
 this difficulty and to make it possible to give property in trust for 
 a married woman so that she could not use or dispose of it in 
 any way for the benefit of her husband, though she might 
 desire to do so, the clause against anticipation, so called, was 
 framed by Lord Thurlow, added to the words of such settle- 
 ments and decided by the courts in both countries to be effec- 
 tive in preventing her disposition of the property so long as 
 she is covert.^ In making such a settlement, therefore, the 
 land is disposed of in trust for her, " for her sole and sepa- 
 rate use " (or by words of like import), and the statement 
 is added concerning the settlement that it is " not hy way of 
 anticipation" With a trust thus made in her favor, she can 
 not dispose of nor encumber her interest in any way during 
 coverture ; but at any time when she is discovert, whether 
 before she has married at all or while she is a widow, she 
 
 1 Parker v. Brooke, 9 Ves. 583 
 Jourdan v. Dean, 175 Pa. St. 599 
 Duffield's Appeal, 168 Pa. St. 171 
 Stuart V. Kissam, 2 Barb. (N. Y.) 494 
 Nix V. Bradley, 6 Rich. Eq. (S. C.) 48 
 Llppencott v. Mitchell, 94 IJ. S. 767 
 2 Perry on Trusts, §§ 646-649. 
 
 2 Bennet v. Davis, 2 P. Wms. 316 
 Richardson v. Stodder, 100 Mass. 528 
 Barron v. Barron, 24 Vt. 375 ; Vance v 
 Nogle, 70 Pa. St. 179 ; 2 Perry on Trusts, 
 
 1 Lead. Cas. Eq. (4th. Amer. ed.) 756 ; 
 
 2 Perry on Trusts, §§ 655-669. 
 
 = Hood-Barrs v. Heriot (1896), App. 
 Cas. 174; Shirley v. Shirley, 9 Paige 
 (N. Y.), 363 ; Waters v. Tazewell, 9 Md. 
 291; Bank v. James, 95 Tenn. 8; 2 
 Lewin on Trusts, p. * 781 ; 2 Perry on 
 Trusts, §§ 670, 671. The question has 
 heeu much debated as to the validity of 
 such a clause, in view of the general 
 rule against restraint on the alienation 
 
 § 647. of real property. But in favor of pro- 
 
 8 Taylor v. Meade, 4 DeG. J. & Sm. visions for married women the prohibi- 
 
 597 ; Wainford v. Heyl, L. R. 20 Bq. 324. tion against their alienation of separate 
 
 * Ankeney I'. Hannon, 147 U.S. 118; use estates while covert is everywhere 
 
 Dyett V. Central Trust Co., 140 N. Y. sustained. See Case v. Green, 78 Mich. 
 
 54 ; Home Mut. L. Ins. Co. v. Marshall, 540 ; Pritchard v. Bailey, 11 3 N. C. 521 ; 
 
 32 N. J. Eq. 103 ; Hulme v. Tenant, Bispham's Prin. Eq. § 107 ; Gray, Per- 
 petuities, §§ 432-437. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 473 
 
 may sell, or alienate, or encumber her equitable estate at her 
 pleasure. Whenever she is covert, the clause against antici- 
 pation is operative ; and it is inoperative whenever she is dis- 
 covert.^ In a few of the United States, however, of which 
 Pennsylvania and Massachusetts are the leading ones, no such 
 trust can be effectual, unless made for the benefit of a woman 
 who is covert at the time or who is in " immediate contempla- 
 tion of marriage " ; and in such states it ceases to be a separate 
 use trust as soon as she becomes a widow, and never revives 
 again though she remarry.^ As remarked above, in many 
 states this form of express trust is not now so important as it 
 was before modern legislation gave to married women complete 
 or large control over their own property, (a) 
 
 § 337. Trusts for Charities. — "It is said that courts look 
 with favor upon charitable gifts, and take special care to en- 
 force them, to guard them from assault, and protect them 
 from abuse. And certainly charity in thought, speech, and 
 deed challenges the admiration and affection of mankind. 
 Christianity teaches it as its crowning grace and glory ; and 
 an inspired apostle exhausts his powerful eloquence in setting 
 forth its beauty, and the nothingness of all things without it. 
 Charitable bequests are said to come within tliat department 
 of human affairs wherein the maxim, ut res magis valeat quam 
 pereat, has been, and should be applied." ^ 
 
 Without speculating upon the unsettled question of the 
 origin of trusts for charity, or " charitable uses," except to 
 remark that the occasion for and principles of such gifts must 
 arise and grow in every community with the advance of civili- 
 zation and culture, it is to be first observed that, not only were 
 charitable donations numerous in the medieval history of 
 
 (a) In New York, such an express trust comes practically within the 
 third class — to apply rents and profits, etc. — (see p. 497, infra). But it is 
 clear that discoverture does not enable the beneficiary to alJenate or en- 
 cumber her interest, except as she may be effectually authorized to do so 
 by the settler. P. 496, infra ; Crooke v. County of Kings, 97 N. Y. 421, 
 448; Ullman v. Cameron, 186 N. Y. 339. 
 
 1 Tullett 0. Armstrong, 4 Myl. & Or. ^ Moore v. Stinson, 144 Mass. 594; 
 
 377 ; Shirley v. Shirley, 9 Paige (N. Y.), Quin's Est., 144 Pa. St. 444, 449 ; Denis' 
 
 363; Beaufort v. Collier, 6 Humph. Est., 201 Pa. St. 616; Apple u. Allen, 
 
 (Tenn.) 487; Staggers o. Matthews, 3 Jones Eq. (N. C.) 120; Bispham's 
 
 13 Rich. Eq. (S. C.) 154. See tlie Eng- Priu. Eq. § 106. 
 
 lish Conveyancing and Property Act of '2 Perry on Trusts, § 687, citing 
 
 1881, § 39. Harrison o. Harrison, L. Saltoustall w. Sanders, 11 Allen (Mass.), 
 
 E. 4 Ch. Div. 418. 446, 455. 
 
474 ESTATES IN BEAL PROPERTY. 
 
 England, but also, as the Court of Chancery developed and 
 assumed importance, no doubt finding precedents in the Roman 
 law which had carefully fostered charitable devises and bequests 
 from the time when it began to be influenced by Christian 
 teaching,^ that court quickly took cognizance of such donations, 
 and perfected a scheme for their proper judicial care and ad- 
 ministration.2 By the time of the beginning of the conflict 
 between Henry VIII. and the pope for ecclesiastical suprem- 
 acy in England, that scheme had been perfected, and quite a 
 number of cases — records of probably as many as fifty are 
 now extant — had already been taken cognizance of and settled 
 as charities.^ Henry VIII., led by his determination to over- 
 throw the papal influence, abolished many charitable institutions 
 by statutes. It is said that even the great universities were 
 obliged to petition the king, that they miglit not come within 
 the general words " colleges and fraternities," as used in those 
 statutes.* But after this struggle was over, and Elizabeth's 
 claim to the throne was established, and the success of the 
 Reformation was no longer in doubt, the demand for eleemosy- 
 nary institutions and those for other public utility was soon 
 again manifest. Tliis led to a series of statutes for restoring 
 and encouraging such foundations, which were passed between 
 the first and forty-third years of the reign of Elizabeth.^ The 
 last and most important of these is the act of 43 Eliz. ch. 4 
 (1601), which is known as the Statute of Charitable Uses. The 
 purpose and operation of that enactment was to supply an 
 enumeration and definition of what uses are to be regarded as 
 charitable, to liunt up all existing charities, and to enforce 
 
 1 Domat, Civ. L. bk. 4, tit. 2, § 6 ; tion of equity did not originate in that 
 White u. White, 1 Bro. Ch. 12; Jack- statute. Vidal v. Girard's Executors, 
 son V. Phillips, 14 Allen (Mass.), 539. 2 How. (U. S.) 127. See also Tappan 
 
 2 This is shown hj the reports of the v. Deblois, 45 Me. 122 ; Williams v. 
 English commissioners of public rec- Williams, 8 N. Y. 525, 533 ; Atty.-Gen. 
 ords, published in 1827, 1830, and 1832. v. Moore, 19 N. J. Eq. 503; Ould v. 
 
 * Commissioners' reports, mentioned Washington Hospital, 95 U. S. 303 ; 
 
 in preceding note. In the litigation Stuart v. Easton, 74 Fed. Rep. 854. 
 over Stephen Girard's will, this his- * 33 Hen. VIII. ch. 27; 1 Burnet, 
 
 torical question was much discussed ; Hist. Reform., pp. 346, 347, 404-434 ; 
 
 and Mr. Binney, using the above-cited Comm'rs v. Pemsel (1891), App. Gas. 
 
 reports, showed clearly that the Penn- 531, 543, 581. 
 
 sylvania Court of Chancery had in- ^ 1 Eliz. ch. 4, §§ 34, 40, 85 ; 8 Eliz. 
 
 herent jurisdiction of the charitable use ch. 11 ; 14 Kliz. ch. 14; 31 Eliz. ch. 6; 
 
 therein involved, although the StaMe of 35 Eliz. ch. 3; 39 Eliz. ch. 4, 21; 43 
 
 Charitable Uses (43 Eliz. ch. 4) was not Eliz. ch. 2, 3; Perry on Trusts, § 691. 
 in force in that state; for this jnrisdic- 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 475 
 
 their due and proper administration.^ It gave a strong im- 
 petus to such settlements. But, altliough it was thought for 
 a long time that the jurisdiction of equity over charitable trusts 
 originated in this statute,^ it is now thoroughly settled that 
 such is not the truth of history .^ And, therefore, in those 
 states of tills country in which it has not been expressly adopted 
 or re-enacted, trusts for charity are nevertheless fully within 
 the jurisdiction of the courts of equity.^ 
 
 § 338. Definitions and Sssentials of Charitable Trusts. — 
 Charity, in its legal sense, always implies public utility J' Deal- 
 ing with the purpose rather than with the motive of the gift,® 
 such is the conception at the base of the most approved defini- 
 tions of a charitable use. Lord Camden defined it as, " a gift 
 to a general public use, which extends to the poor as well as 
 to the rich." '^ And this definition has met with the approval 
 of the highest authorities.* With perhaps too much stress laid 
 on the mere motive, Mr. Binney, in his noted argument in 
 the Girard Will Case, declared that a charitable donation is 
 " whatever is given for the love of God, or for the love of your 
 neighbor, in the catholic and universal sense — ; given from 
 these motives and to these ends — free from the stain or taint 
 of every consideration that is personal, private, or selfish." ® In 
 the great leading case of Jackson v. Phillips,^" Mr. Justice Gray 
 
 1 The statute provided for a com- sey v. Convention of Prot. Epis. Church, 
 mission td look after abuses of charities 75 Md. 275. 
 
 and for proceedings through it for the * Coggeshall v. Pelton, 7 Johns. Ch. 
 
 administration of funds devoted to such (N. Y.) 292, 294; Perin v. Carey, 24 
 
 purposes. But this method of proce- How. (U. S.) 465, 506; Jones v. Wil- 
 
 dure soon fell into disuse ; and pro- liams, Ambler, 651. 
 
 ceedings in equity by original bill or ' Fire Ins. Patrol v. Boyd, 120 Pa. 
 
 petition have continued to be the method St. 624. 
 
 of dealing with such gifts. Atty.-Geu. ' Jones v. Williams, Ambler, 651, 
 
 V. Newman, 1 Chan. Cas. 157 ; Eyre u. 652. 
 
 Shaftesbury, 2 P. Wms. 102, 119 ; Atty.- 8 n ^jig adopted as correct by Lord 
 
 Gen. V. Brereton, 2 Ves. Sr. 425 ; West Lyndhurst, in Mitford v. Reynolds, 1 
 
 V. Knight, 1 Chan. Cas. 134. Phil. Ch. 185, 191 ; by Chancellor Kent 
 
 2 See Trustees of Baptist Church v. in Coggeshall v. Pelton, 7 Johns. Ch. 
 Hart's Executors, 4 Wheat. (U. S.) 1 ; (N. Y.) 292, 294, and by the Supreme 
 1 Spence's Eq. 589. Court of the United States in Perin v. 
 
 3 Vidal V. Girard's Executors, 2 Carey, 24 How. (U. S.) 465, 506. 
 
 How. (U. S.) 127; Williams v. Wil- » Vidal v. Girard's Executors, 2 
 
 liams, 8 N. Y. 525, 533 ; Oulrt v. Wash- How. (U. S.) 127. See Boyd o. Fire 
 
 ington Hospital, 95 U. S. 303 ; Stuart Patrol, 120 Pa. St. 624 ; Ould v. Wash- 
 
 V. Easton, 74 Fed. Rep. 854. ington Hospital, 95 U. S. 303, 311; Union 
 
 * Holland v. Alcock, 108 N. Y. 312, Pac. R. Co. v. Artist, 19 U. S. App. 612. 
 
 332; Williams v. Williams, 8 N. Y. 1° 14 Allen (IWass.), 539, 555. 
 525 ; Pell v. Mercer, 14 R. I. 412 ; Hal- 
 
476 ESTATES IN HEAL PROPERTY. 
 
 framed a more complete definition, which has been generally 
 approved and which has the important advantage of stating 
 concisely the classes of purposes or objects for which such 
 donations are made. He said : " A charity, in the legal sense, 
 may be more fully defined as a gift to be applied, consistently 
 with existing laws, for the benefit of an indefinite number of per- 
 sons, either by bringing their minds or hearts under the influence 
 of education or religion, by relieving their bodies from disease, 
 suffering, or constraint, by assisting them to establish themselves 
 in life, or by erecting or maintaining public buildings or works, 
 or otherwise lessening the burdens of government. It is im- 
 material whether the purpose is called charitable in the gift 
 itself, if it is so described as to show that it is charitable in its 
 nature." ^ The purposes here enumerated may be tei'soly and 
 generally described by four adjectives, which import public util- 
 ity, namely : religious, educational, eleemosynary, and govern- 
 mental.^ The gift is also " for the benefit of an indefinite 
 number of persons." And " existing laws " put no time limita- 
 tion upon such a trust. It is, therefore, to be here repeated 
 that charitable uses or trusts have three leading and distin- 
 guishing features, namely : first, their purpose must be some 
 public utility, and, therefore, they must exist for the benefit 
 of the public generally, or of some considerable portion of it 
 which answers to a particular description ; second, their bene- 
 ficiaries must be indefinite as to the individuals, and third, 
 they are not restricted as to time, by tlie rule against perpetur 
 ities, but may be made to continue indefinitely.^ Around these 
 three essential features naturally clusters the discussion of 
 this interesting form of trust, which has occupied so large a 
 share of the attention and employed so much of the best learn- 
 ing and ability of the bench and bar of both England and 
 America.* 
 
 1 This is approved in Newcomb v. vancement of religion, and trusts for 
 
 Boston Protect. Dep't, 151 Mass. 215; other purposes heneficial to the com- 
 
 Kelly V. Nichols, 17 R. I. 306, 18 B. I. munity not falling under any of the 
 
 82. And it is adopted by the best text- preceding heads." 
 
 writers. See Bispham's Prin. Eq. § 1 24 ; ^ § 308, supra. , 
 
 2 Perry on Trusts, § 697. * A few of the great leading cases, in 
 
 " In Commissioners v. Pemsel (1891), which the subject has been exhaustively 
 
 App. Cas. 531, Lord McNachten said: discussed, are: Atty.-Gen. v. Baliol 
 
 "Charity in its legal sense comprises Coll., 9 Mod. 407; Morice v. Bishop of 
 
 four principal divisions : trusts for the Durham, 9 Ves. 399, 405 ; Atty.-Gen. 
 
 relief of poverty, trusts for the advance- v. Ironmongers' Co., 2 Beav. 313 ; Atty.- 
 
 ment of education, trusts for the ad- Gen. v. Glyn, 12 Sim. 84; Farquhar 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 477 
 
 § 339. First. Charitable Trusts are for Public Utility. Pur- 
 poses included. — The preamble of the Statute of Elizabeth 
 (43 Eliz. ch. 4) contains the following enumeration of uses 
 which are to be regarded as charitable, namely : " The relief 
 of aged, and impotent, and poor people ; the maintenance of 
 sick and maimed soldiers and mariners ; schools of learning ; 
 free schools ; scholars in universities ; houses of correction ; 
 repairs of bridges, ports, havens, causeways, churches, sea- 
 banks, and highways ; the education and preferment of orphans; 
 the marriages of poor maids ; supportation and help of trades- 
 men, handicraftsmen, and persons decayed ; the relief or 
 redemption of prisoners or captives ; and aid or ease of any 
 poor inhabitants concerning the payment of fifteenths, setting 
 out of soldiers and other taxes." While in states wliich have 
 not substantially re-enacted nor in any way adopted this statute, 
 such as Maine or Pennsylvania,^ the list here given is not, of 
 course, controlling ; yet within the letter or spirit of this enu- 
 meration are to be fouiad the great mass, if not all, of the 
 donations in trust which have been decided to be charitable. 
 In respect to religious institutions, the letter of the statute is 
 most deficient ; ^ and this is probably due to the apprehension 
 on the part of its framers that the I'eformation might possibly 
 be a failure. But there never has been any rcjom for doubt that 
 gifts for religious objects, as well as practically all others which 
 have since been treated as charitable, are clearly within the 
 spirit, or " equity " of the Statute of Elizabeth.^ Most of these, 
 though probably not all, are embraced within the four groups 
 indicated by the adjectives above-mentioned, — educational, 
 religious, eleemosynary, and governmental. A few words are 
 required as to each of these. 
 
 § 340. Oifts for Religious Purposes. Superstitious Uses. — 
 Gifts for religious purposes are charitable : as for foreign mis- 
 
 V. Darling (1896), 1 Ch. 50; Whicker 17 R. I. 265. See Fosdick „. Town of 
 
 V. Hume, 7 H. L. Cas. 124; Jackson v. Hempstead, 125 N. Y. 581 ; Tilden v. 
 
 Phaiips, 14 Allen (Mass.), 539 ; Vidal Green, 130 N. Y. 29 ; Dwight Charity 
 
 V. Girard's Ex'rs, 2 How. (U. S.) 127, Cases. 
 
 128 ; Phila. w. Giiard's Heirs, 45 Pa. St, ^ Tappan c Deblois, 45 Me. 122; 
 
 9, 27 ; Magill v. Brown, Brightly (Pa.), Brooks v. City of Belfast, 90 Me. 318; 
 
 347, 350; Hopkins u. GrimShaw, 165 Whitman v. Lex, 17 S. & R. (Pa.) 88. 
 U. S. 342 ; Fontain v. Ravenel, 17 How. '■' It will be noticed that no religious 
 
 (U. S.) 369, 387; Lorings v. Marsh, 6 object is mentioned, in the list quoted, 
 
 Wall. (U. S.) 337 ; Bascom v. Albertson, except the " repairs of . . . churches," 
 34 N. Y. 584 ; Williams v. Williams, 8 ^ g Perry on Trusts, § 701 ; White v. 
 
 N. Y. 525; Kinnard o. Miller's Ex'rs, White (1893), 2 Ch. 41. 
 25 Gratt. (Va.) 107 ; Almy u. Jones, 
 
478 
 
 ESTATES IN REAL PROPERTY. 
 
 sions ; ^ for the advancement of Christianity among infidels ; * 
 " for the service of my Lord and Master " ; ^ for the benefit of 
 ministers of the Gospel ; * for- distributing Bibles and religious 
 books and tracts ; ^ for the poor and the service of God ; ^ and 
 the likeJ 
 
 When a trust of this general character runs counter to the 
 English ecclesiastical law, it is there condemned as a " super- 
 stitious use." ^ All such donations, as, for example, for pray- 
 ing for souls of the dead, maintaining ohit lamps, etc., wliicii 
 were contrary to the tenets of the established church, were 
 formerly condemned.® But the English courts are now much 
 more liberal in this respect, i° although they still set aside so- 
 called charitable schemes which clearly attack or oppose the 
 religious policy of the realm ; as, for example, a devise or 
 bequest for the re-establishment of the supremacy of the pope.^^ 
 In this country, where religious liberty is guaranteed by the 
 Constitutions,^ no trust is ever successfully attacked merely 
 on the ground tliat it is a superstitious use.-'* But some gifts, 
 which have a religious aspect, are declared to be void, not 
 because they are superstitious, but because they are deemed 
 
 1 Bartjett v. King, 12 Mass. 537; 
 Fairbanks v. Larason, 99 Mass. 533; 
 Bridges v. Pleasants, 4 Ired. Eq. (N. C.) 
 26. 
 
 2 Atty.-Gen. v. William & Mary's 
 Coll., 1 Ves. 243. 
 
 3 Going V. Emery, 16 Pick. (Mass.) 
 107; Powerscourt v. Powerscourt, 1 
 Moll. 616. 
 
 * Atty.-Gen. v. Gladstone, 13 Sim. 7 ; 
 Grieves v. Case, 4 Bro. Ch. 67 ; Cory 
 Universalist Soc. v. Beatty, 28 N. J Eq. 
 570. 
 
 ° Atty.-Gen. v. Stepney, 10 Ves. 
 22 ; Bliss v. Amer. Bible Soc, 2 Allen 
 (Mass.), 334; Pickering v. Shotwell, 10 
 Pa. St. 23 ; Church v. Hinton, 92 Tenn. 
 188. 
 
 « Farquhar v. Darling (1896), 1 Ch. 
 50; People v. Cogswell, 113 Cal. 129. 
 
 1 In re Hunter '(1897), 2 Ch. 105; 
 Eosf's Charity (1899), 1 Ch. 21 ; In re 
 Scowcruft (1898), 2 Ch. 638; Teele v. 
 Bishop of Derry, 168 Mass. 341 ; Mc- 
 Alister v. Burgess, 161 Mass. 269 ; 
 Christ Church v. Trustees, 67 Conn. 
 5.54; Alden v. St. Peter's Parish, 158 
 111. 631 ; Mack's Appeal, 71 Conn. 122. 
 
 ' This doctrine originated in the 
 statute 1 Edw. VI. ch. 14. See De 
 Themmines v. De Bonneval, 5 Russ, 
 288 ; Doe v. Hawthorn, 2 Barn. & Aid. 
 96 ; Briggs v. Hartley, 14 Jur. 683. 
 
 ' De Themmines v. De Bonneval, 5 
 Ru.ss. 288 ; Atty.-Gen. v. Baxter, 1 
 Veru. 248, 2 Vern. 105, 1 Eq. Cas. 
 Ab. 96, pi. 9; Da Costa v. De Pas, 
 Ambler, 228 ; Finley v. Hunter, 2 Strob. 
 Eq. 208. 
 
 1° Atty.-Gen. v. Pearson, 3 Mer. 353 ; 
 Atty.-Gen. v. Cock, 2 Ves. Sr. 273; 
 Atty.-Gen. v, Hickman, 2 Eq. Cas. Ab. 
 193; Beichenbach v. Quin, 21 L. R. Ir. 
 138; Schouler, Petitioner, 134 Mass. 
 426 ; Holland v. Alcock, 108 N. Y. 312; 
 1 Ames on Trusts (2d ed.), 211. 
 
 1' De Themmines v. De Bonneval, 5 
 Russ. 288. 
 
 12 Cooley, Const. Lim. 575. 
 
 w Holland v. Alcock, 108 N. Y. 312 ; 
 Teele v. Bishop of Derry, 168 Mass. 
 341 ; Hoeffer v. Clogan, 171 111. 462 ; 
 Seibert's Appeal, 19 Pa. St. 49 ; Sher- 
 man V. Baker, 40 Atl. Rep. 11 (R. I-)- 
 See this matter further discussed, § 345,, 
 infra. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 479 
 
 to violate some American principle of morality or public policy.' 
 Thus, a trust for the benefit of an infidel society, or to encour- 
 age immoral, so-called religious rites, will not be sustained.^ 
 In the discussion of the uncertainty of the objects of a chari- 
 table use, it will also be shown hereafter that some trusts of tlie 
 kind which have been held to be superstitious in England have 
 failed in this country, because, being created in form as charities 
 and only sustainable as such, they have been decided to be 
 wanting in some of the requisites of such gifts.^ 
 
 § 341. Gifts for Educational Purposes. — Gifts for educa- 
 tional purposes are charitable : as to establish Inns of Chancery 
 for the prosecution of the study of law ; * for the foundation of 
 a fellowsliip in a college or university ; ^ to create a " change of 
 sentiment" in regard to slavery, or other matters, which means 
 to educate;^ for the cultivation of art, or instruction in the 
 mechanical arts;^ to advance learning;^ for the support of 
 schools, libraries, or literary institutions,^ and all similar foun- 
 dations which aim at public intellectual advancement, and not 
 merely private education.'** 
 
 § 342. Gifts for Eleemosynary Purposes. — Gifts for purely 
 eleemosynary purposes are charitable : as those for hospitals, 
 " homes," and asylums ; '' for the widows and orphans of a 
 parish;'^ for the relief of Indians ;'3 to suppress and abolish 
 
 ' Holland r. Alcock, 108 N. Y. 312; Phila., 158 Pa. St. 565 ; Phila. v. Over- 
 
 Inre Zimmerman's Will, 50 N. Y. Supp. seers, 170Pa. St. 257 ; Baley v. Umatilla 
 
 395; Festorazzi o. St. Joseph's Cath- Co., 15 Oreg. 172; Miller's Ex'rs «. Com- 
 
 olie Church, 104 Ala. 327; Moran v. monwealth, 27 Gratt. (Va.) 110, 116. 
 Moran, 104 Iowa, 216 ; McHugh v. Mc- i" In re Douglas, L. R. 35 Ch. Div. 
 
 Cole, 97 Wis. 166; Harrison ». Brophy, 472, 479; Vidal v. Girard's Ex'rs, 2 
 
 59 Kan. 1. How. (U. S.) 127 ; Penn's Hospital v. 
 
 2 Zeisweiss v. James, 63 Pa. St. 465 ; Delaware, 169 Pa. St. 305 ; Clement v. 
 1 Ames on Trusts (2d ed.), 211. Hyde, 50 Vt. 716; Halaey v. Convent 
 
 3 § 345, infra. P. E. Church, 75 Md. 275 ; Miller v. 
 < Smith V. Kerr (1902), 1 Ch, 774. Atkinson, 63 N. C. 537 ; Barkley o. 
 6 Rex V. Newman, 1 Lev. 294; Atty.- Donnelly, 112 Mo. 561. 
 
 Gen. V. Bowyer, 3 Ves. 714. " Atty .-Gen. ... Vint, 3 DeG & Sm. 
 
 6 Jackson v. Phillips, 14 Allen 704; Atty. -Gen. v. Kell, 2 Beav. 575; 
 
 (Mass.), 539, 552 ; George v. Braddock, McDonald v. Mass. Hospital, 120 Mass. 
 
 45 N. J. Eq. 757. 432. 
 
 ' Almy V. Jones, 17 R. I. 265 ; Peo- 12 Atty .-Gen. v. Comber, 2 Sim. & St. 
 
 plew. Cogswell, 113 Cal. 129, 93; Towle v. Nesmith, 69 N. H. 212; 
 
 » Whicker v. Hume, 7 H, L. Cas. Sheldon v. Stockbridge, 67 Vt. 299; 
 
 124; Stevens v. Shippen, 28 N. J. Eq. Trim's Estate, 168 Pa. St. 395; Hof- 
 
 487 ; Taylor «. Bryn Mawr, 34 N. J. Eq. fen's Estate, 70 Wis. 622. 
 101. 13 Magill V. Brown, Brightly (Pa,), 
 
 ^ Dauryi-. Inhab, of Natick, lOAUen 347, See Matter of Shattuck, 193 
 
 (Mass.), 169; Episcopal Academy v. N. Y. 
 
480 
 
 ESTATES IN REAL PROPERTY. 
 
 vivisection ; ^ for taking care of domestic animals ; ^ to sup- 
 press the manufacture and sale of intoxicating liquors,^ etc.* 
 
 § 343. Gifts for Governmental Purposes. — Gifts for lessen- 
 ing the burdens of government are charitable : as for erecting 
 and maintaining public buildings or other institutions ; ^ laying 
 out, making, and keeping in repair streets, parks, and docks ; ^ 
 for " repairs of bridges, ports, havens, causeways, . . . sea- 
 banks, and highways ;"'' to discharge a tax on the commu- 
 nity ; ^ to supply water to the inhabitants of a town,^ or to build 
 for it a botanical garden.^" 
 
 § 344. other Charities. Criterion as to Charitable Purpose. 
 — There are, in addition to these four classes, a few instances 
 of donations which have been held to be charitable, but are 
 difficult to classify. Illustrations are trusts " for charitable 
 purposes ; " ^^ for such charities as the trustees shall think 
 proper ; ^^ for charitable and religious objects,^^ and similar 
 provisions in which general public benefit is manifestly in- 
 tended, but the more particular nature of the gift is not 
 indicated.^* The character of such a gift as charitable must be 
 clear, or it will not be upheld.^^ Thus a trust for " philau- 
 
 1 In re Poreaux Cross (1895), 2 Ch. 
 501. 
 
 2 In re Douglas, L. R. 35 Ch. Div. 
 472 ; Univ. of London v. Yarrow, 1 
 DeG. & J. 72. 
 
 * Haines v. Allen, 78 Ind. 100. 
 
 * See also Nash v. Merely, 5 Beav. 
 177 ; Davis v. Inhabitants, 154 Mass. 
 224; Hayes v. Pratt, 147 U. S. 557; 
 Fosdick V. Town of Hempstead, 125 
 N. Y. 581, 582, 126 N. Y. 651 ; Strong's 
 Appeal, 68 Conn. 527; Beurhaus v. 
 Cole, 94 Wis. 617; Wood v. Paine, 66 
 Fed. Rep. 807. 
 
 * Coggeshall v. Pelton, 7 Johns. Ch. 
 (N. Y.) 292; Jackson u. Phillips, 14 
 Allen (Mass.), 539, 556. 
 
 « Atty.-Gen. v. Heelis, 2 Sim. & St. 
 67; Howse v. Chapman, 4 Ves. 542; 
 Mowry v. City of Providence, 10 R. I. 
 52; Smith's Estate, 181 I'a. St. 109. 
 
 ' Preamble to statute, 43 Eliz. ch. 4. 
 
 8 Atty.-Gen v. Bushby, 24 Beav. 299. 
 
 ° .Joues V. Williams, Ambler, 651. 
 
 1° Townley v. Bedwell, 6 Ves. 194. 
 Also, on the general topic of public 
 improvement, see Johnston v. Swann, 3 
 Madd. 457 ; Beaumont v. Oliveira, L. R. 
 
 4 Ch. 309 ; In re Lord Stratheden (1894), 
 3 Ch. 265 ; Bartlett, Petitioner, 163 
 Mass. 509 ; Phila. v. Keystone Battery 
 A, 169 Pa. St. 526; Hamden u. Rice, 
 24 Conn. 350 ; State r. Griffith, 2 Del. 
 Ch. 392; Stuart v. Easton, 39 U. S. 
 App. 238. 
 
 1' Schouler, Petitioner, 131 Mass. 426. 
 
 I'-' White V. Ditson, 140 Mass. 351; 
 Jemmit v. Varrel, Ambler, 585. 
 
 13 Baker v. Sutton, 1 Keen, 224; Sal- 
 tonstall V. Sanders, 11 Allen (Mass.), 
 446, 454 ; Treat's Appeal, 30 Conn. 113; 
 Farquhar v. Darling (1896), 1 Ch. 50. 
 
 M See Commissioners v. Pemsel 
 (1891), App. Cas. 531, 583; In re Crans- 
 ton (1898), 1 Ir. R. 431; George u. 
 Braddock, 45 N. J. Eq. 757, in which 
 a gift was upheld for disseminating 
 the doctrines of Henry George ; Web- 
 ster V. Wiggins, 19 R. I. 73, a donation 
 for erecting working-men's dwellings ; 
 Laue 0. Eaton, 69 Minn. 141 ; Pack v. 
 Shanklin, 43 W. Va. 304; Meeker v. 
 Puyallup, 5 Wash. St. 759 ; 24 Amer. 
 Law Rev. 489 ; 30 Cent. Law Jour. 334 ; 
 38 Alb. Law Jour 359. 
 
 15 Morioe v. Bishop of Durham, 9 Ves. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 481 
 
 thropic " purposes (which might or might not be for any public 
 benefit), or for private benevolence, is not charitable.^ There 
 has been considerable divergence of opinion as to whether or 
 not the word " benevolent " will be, under any circumstances, 
 a proper description of a charitable purpose .2 (a) The better 
 view appears to be that it will be so, when there is nothing to 
 the contrary in the context.^ A devise for " charitable and 
 benevolent " purposes has generally been sustained as charitable 
 in this country ; * although the opposite conclusion has been 
 reached in some cases in England.^ The true test, with regard 
 to the purpose of the gift, is probably that suggested by Sir Wm. 
 Grant, in the case of Morice v. The Bishop of Durham,^ namely : 
 whether or not, consistently with the apparent intention of the 
 donor, the property can be applied to a purpose not charitable ; 
 if it can, the trust will not be administered as a charity.' Be- 
 cause of their failure to conform to this oriferion, such donations 
 as the following have been held to be not charitable : " to secure 
 the passage of laws granting women the right to vote and hold 
 office;"^ " for the political restoration of the Jews to Jerusalem;"^ 
 for purchasing and presenting a cup " to encourage yacht-rac- 
 ing ; " ^^ to keep a supply of corn in London for the market ; ^^ 
 for charitable " or other " purposes.^^ So, if the arrangement be 
 
 (a) The New York statute authorizes sach gifts for "religious, educa- 
 tional, charitable, or benevolent uses." Real Prop. L. § 113j p. 501, infra. 
 
 399, 404; Atty.-Gen. v. Soule, 28 Mich. Mass. 24; Chamberlain v. Stearns, 111 
 
 153, 156; Darcy w. Kelley, 153 Mass. Mass. 267. 
 
 433. 6 Williams v. Kershaw, 5 Law Jar. 
 
 1 In re Macdufe (1896), 2 Ch 451 ; (n. s.) Ch. 84; Ommanney u. Butcher, 
 Farquhar M. Darling (1896), 1 Ch. 50; I Turn. & Russ. 260. See Norris v. 
 Ommanney ti. Butcher, 1 Turn. & Russ. Thompson, 19 N. J. Eq. 307; Salton- 
 260; Chamberlain v. Stearns, 111 Mass. stall v. Sanders, 11 Allen (Mass.), 446, 
 267. 462 ; Boyle on Charities, pp. 286-290. 
 
 2 See 2 Perry on Trusts, § 712, and = 9 Ves. 404. 
 
 note. 7 Also Darcy v. Kelley, 153 Mass. 
 
 5 Miller v. Rowan, 5 CI. & Fin. 99 ; 433 ; Rotch v. Emerson, 105 Mass. 431. 
 Goodale ». Mooney, 60 N. H. 528, 535 ; ^ Jacksou v. Phillips, 14 Allen 
 
 People V. Powers, 147 N. Y. 104, 110; (Mass.), 539, 571; Bacon v. Ransom, 
 
 Saltonstallii. Sanders, 11 Allen (Mass.), 139 Mass. 117, 119. 
 446, 468, 470 ; Livesey v. Jones, 55 N. J. ^ Habershon v. Vardon, 7 Eng. L. & 
 
 Eq. 204, 205, 56 N. J. Eq. 453 ; Murphy's Eq. 228. 
 Estate, 184 Pa. St. 310. 1° Jones v. Palmer (1895), 2 Ch. 
 
 * Saltonstall v. Sanders, 11 Allen 649. 
 (.Mass.), 446, 468 ; Murphy's Estate, 184 " Atty.-Gen. ,,. Haberdashers' Co., 
 
 Pa. St. 310. See Murdock v. Bridges, ' 1 Myl. & K. 420. 
 
 91 Me. 124 ; Mass. See. for Prevention 12 Ellis v. Selby, 1 Myl. & Cr. 286, 
 
 of Cruelty to Animals v. Boston, 142 299 ;' Chamberlain w. Stearns, 111 Mass. 
 
 31 
 
482 ESTATES IN REAL PROPERTY. 
 
 the outcome of a contract, or statute, or business enterprise, 
 and not a gift, it can not produce a charitable use or trust.^ 
 And, of course, a gift which violates the law of the land, or 
 the principles of morality, can not be sustained because it 
 purports to be charitable. Illustrations are found in attempted 
 beneficences which violate local statutory restrictions as to the 
 kind or amount of property which a testator may devote to 
 charitable purposes.^ Thus, in New York the general restric- 
 tion is that one who dies leaving husband, wife, parent, or 
 child surviving shall not dispose of more than half of his or 
 her property to charitable institutions, (a) 
 
 (a) The general statute of New York, which applies to all societies, as- 
 sociations, and corporations of the character therein named, is Laws of 
 1860, ch. 360, which provides as follows: " No person having a husband, 
 ■wife, parent, or child, shall, by his or her last will and testament, devise or 
 bequeath to any benevolent, charitable, literary, scientific, religious, or mis- 
 sionary society, association, or corporation, in trust or otherwise, more than 
 one-half of his or her estate, after the payment of his or her debts." In 
 addition to this general act, there is a number of special statutes, each of 
 which prescribes how kinds of corporations therein specified may be 
 formed, and restricts the amount of a testator's property which a cor- 
 poration so organized can take by his or her will, if he or she leave sur- 
 viving a wife, child, or parent (or a husband according to some of these 
 statutes), to one-half, or one-quarter, of his or her net estate ; and also 
 requires, as a prerequisite to the taking of that amount, that the will 
 shall have been made at least two months before the testator's death. 
 Such are L. 1848, oh. 319, § 6; L. 1903, ch. 623; L. 1865, ch. 366, § 6, 
 ch. 267, § 7, and ch. 343, § 5; L. 1886, ch. 236, § 7; L. 1887, ch. 315, § 5, 
 and ch. 317, § 7. See Stephenson v. Short, 92 N. Y. 433; Matter of 
 Lampson, 161 N. Y. 511; Pearson i-. Collins, 113 App. Div. 657, aff'd 
 187 N. Y. 530 ; Smith v. Havens Relief Fund Soc, 118 App. Div. 678, 
 afE'd 190 N. Y. 557 ; Matter of Strong, 121 App. Div. 112, 114. Thus, 
 
 267; Farquhar «. Darling (1896), 1 Ch. 362 j Brendle v. German Keformed 
 
 50; 28 Amer. Law Keg, (n. s.) 185. A Cong., 33 Pa. St. 415, 419; World's' 
 
 trust for preparing or maintaining a Columbian Exposition, 18 U. S. App. 
 
 monument, tomb, vault, or burial ground 42, 163. 
 
 is charitable, if it be in connection with ^ See N. T. L. 1860, ch. 360; Allen 
 
 a church or religious society, or some v. Stevens, 161 N. Y. 122 ; In re Hoff- 
 
 public institution ; but not if made ner's Estate, 161 Pa. St. 331 ; McCleau 
 
 solely for the benefit of the donor or v. Wade, 41 Pa. St. 266 ; Taylor v. 
 
 of a definite number of individuals or Mitchell, 57 Pa. St. 209 ; Eeynolds v. 
 
 families. Hopkins u. Grimshaw, 165 Bristow, 37 Ga. 283. For the English 
 
 tJ. S. 342, 352 ; Nauman v. Weidman, statutes of mortmain restricting gifts 
 
 182 Pa. St. 263 ; Bronson v. Strouse, 57 to religious corporations, see 2 Jarman 
 
 Conn. 147; Kelly v. Nichols, 18 R. I. on Wills, pp. 200-224; 2 Redfield on 
 
 62; Ford v. Ford, 91 Ky. 572. See Wills (2d ed.), pp. 508-516; Tudor on 
 
 Matter of Shattuck, 193 N. Y. Charities, 93, 101. Those statutes are 
 
 1 Swift V. Beneficial Soc, 73 Pa. St. not in force in this country. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 483 
 
 § 345. Second. The Beneficiaries of Charitable Trusts must 
 be Indefinite as to the Individuals. — Indefiniteness in its ob- 
 jects is the second distinctive feature of a charitable use. It is 
 not sufficient here to say, as do some writers, that the cestuis 
 que trustent may be uncertain. They must be uncertain and 
 indefinite, or the trust will be private. No matter how numer- 
 ous the recipients may be, an establishment for them as known 
 and determinate individuals is private and not public.^ Thus, 
 a trust to maintain a school, which is not free, but for the ben- 
 efit of particular individuals and their families ; ^ or a fund 
 
 if property be devised for charitable purposes, and one of them be an in- 
 stitution incorporated under L. 1848, oh. 319, as amended by L. 1903, cb. 
 623, and the testator or testatrix leave husband, wife, parent, or child sur- 
 viving, not more than one-half of his or her property can thus pass to all 
 of the charitable institutions, and if he leave wife, parent, or child surviv- 
 ing, the attempted gift to the corporation organized under L. 1903, ch. 623, 
 must fail if the will were not executed at least two months before the 
 testator's death. If an attempt be made to give more than is permitted 
 by the statutes to a number of charities, the gifts will not fail entirely ; 
 but the amount which can be legally given will be distributed pro rata 
 among them. Hollis v. Drew Theological Seminary, 95 N. Y. 166 ; Jones 
 V. Kelly, 170 N. Y. 401. L. 1860, ch. 360, applies to secret gifts, as where 
 on the face of the will the property is given to the executor absolutely, 
 but he is told orally by the testator how to apply it to charity. Edson v. 
 Bartow, 154 N. Y. 199. Any one who may be benefited thereby may 
 have the advantage of these statutes or may waive that advantage ; it is 
 not restricted to husband, wife, parent, and child. Robb v. Washington 
 & Jefievson College, 185 N. Y. 485, 491. It was decided in Allen v. 
 Stevens, 161 X. Y. 122, 148, that when the gift is "not to a 'society, asso- 
 ciation, or corporation in trust or otherwise,' but instead to trustees " for 
 such institution, it is not within the prohibition of the statute, L. 1860, 
 ch. 360. In so far as they relate to personalty, these statutes apply only 
 to domestic wills, i. e., wills made by persons domiciled in New York, the 
 provisions of which wills are to be executed within that state. Dammert 
 V. Osborn, 140 N. Y. 30, 40; Hope i>. Brewer, 136 N. Y. 126; Cross v. 
 U. S. Trust Co., 131 N. Y. 339. See St. John v. Andrews Institute, 191 
 N. Y. 254. When a corporation has all the property that it is author- 
 ized to hold, so that it can not hold any more, it can not take any more, 
 even for the purpose of passing it at once to other beneficiaries. Matter 
 of McGraw, 111 N. Y. 66, 136 U. S. 152. 
 
 1 Bullard v. Chandler, 149 Mass. 532, to be benefited must be vague, uncer- 
 540; Holland y. Alcock, 108 N. Y. 312, tain, and indefinite, until they are 
 330; Burke u. Eoper, 79 Ala. 138, 142; selected or appointed to be the par- 
 State V. Griffith, 2 Del. Ch. 392. "In ticular beneficiaries of the trust for 
 order that there may be a good trust for the time being." 2 Perry on Trusts, 
 a charitable use, there must always be § 710. 
 
 some public benefit open to an indefinite ^ Blandford v. Fackerell, 4 Bro. Ch. 
 
 and vague number ; that is, the persons 394. 
 
484 ESTATES IN REAL PROPERTY. 
 
 raised by an association by payment of subscriptions or dues 
 for the exclusive use of its own members, hovyever many they 
 may be, is not charitable in its nature.^ But a settlement of 
 property for the perpetual use of a designated church, school, 
 or hospital, is to be carried out as a public trust, because the 
 members, scholars, or inmates, who are to be thereby assisted, 
 are unascertainable as to who they are to be in the future.^ 
 This is the fundamental and logical distinction, as applied to 
 some extent in this country, between the cases which have sus- 
 tained gifts for uses of the kind called superstitious in England, 
 and those in which such gifts have been overthrown. For it is 
 held by some, probably the majority of our courts, including 
 those of New York, Massachusetts, Pennsylvania, and Illinois, 
 that trusts for the purpose of having masses or prayers said 
 for the souls of the dead, keeping obit lamps burning, etc., are 
 charitable, because they are to be regarded as beneficial to all 
 who may take part in the ceremonies, or hear or see them ; ^ 
 while in a few other states, among which Alabama is promi- 
 nent, it is decided that such uses are private, being, it is there 
 said, designed in substance for the benefit of the specified dead 
 persons alone, and that, therefore, when they are attempted to 
 be made to run on perpetually or for a time longer than that 
 permitted by the rule against perpetuities, which a private trust 
 can not legally do, they must be declared void.* 
 
 § 346. Degree of the Uncertainty. — As to the degree of un- 
 certainty which may legally characterize charitable uses, there 
 is much confusion in the cases.* But the principle deducible 
 from the large majority and weightier of them, which is also 
 supported by the better reasoning, is that, while the individual 
 
 1 Coe i;. Washington Mills, 149 Mass. " Festorazzi «. St. Joseph's Catholic 
 
 543; Stratton u. Physio-Medical College, Church, 104 Ala. 327; McHugh w. Mc- 
 
 149 Mass. .505; Babb v. Reed, 5 Rawle Cole, 97 Wis. 166; Harrisons. Brophy, 
 
 (Pa.), 151. Compare Union Pac. B. Co. 59 Kan. 1 ; Moran v. Moran, 104 Iowa, 
 
 V. Artist, 60 Fed. Eep. 365. 216. 
 
 ^ Last two preceding notes ; 2 Perry ^ This will appear from the reading 
 
 on Trusts, § 732. of a few such cases as White v. Fish, 22 
 
 8 Hoeffer v. Clogan, 171 111. 462; Conn. 31 ; Grimes i). Harmond, 35 Ind. 
 
 Holland v. Alcock, 108 N. Y. 312 ; In 198 ; Green v. Allen, 5, Humph. (Tenn.) 
 
 re Zimmerman's Will, 50 N. Y. Supp. 170, and Holland v. Peck, 2 Ired. Ch. 
 
 395; Teele v. Bishop of Derry, 168 (N. C.) 255, which dealt with gifts to 
 
 Mass. 341 ; Schouler, Petitioner, 134 known charities such as it would seem 
 
 Mass. 426 ; Kerrigan v. Tabb, 39 Atl. ought 'to have been sustained ; but in 
 
 Rep. 701 (N. J. Ch.) ; Sherman v. Baker, all of which it was held that the at- 
 
 40 Atl. Rep. 11 (R. I.); Seibert's Ap- tempted donations failed because of 
 
 peal, 19 Fa. St. 49. ragueness and uncertainty. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 485 
 
 beneficiaries must be indefinite, either the institution or class 
 to which they are to belong, either in being or to come into 
 being, must be pointed out with sufficient certainty, so that it 
 can come into court and move for the administration of the 
 trust,! or there must be a general charitable purpose manifested, 
 and a trustee or trustees appointed, ready and willing to act 
 and authorized to select the specific charitable object or objects 
 to which the property shall be applied.^ Thus, it is settled 
 that, if a donor give property in trust to establish and main- 
 tain a specified school or hospital, but appoint no competent 
 trustee, the settlement being in other respects valid, upon 
 the application of the designated school or hospital the court 
 will appoint a trustee and compel the employment , of the 
 property in the manner intended.^ So, by the weight of the 
 authorities, though here the cases diverge,* when property is 
 conveyed to competent and willing trustees, simply " for char- 
 itable purposes," or for such charitable purposes as they may 
 select, and no institution is indicated as the recipient and 
 as the alma mater, refuge, or home of the indefinite individ- 
 uals to be helped, the court of equity will see that the gift is 
 properly administered.^ And it need hardly be added that when 
 a willing and capable trustee is named, and also the specific 
 church, school, or other institution is pointed out, the court 
 will take cognizance of the trust.^ But when neither of these 
 
 ' Atty.-Gen. v. Garrison, 101 Mass. * See next preceding note but one. 
 
 223 ; Burrill v. Boarclmau, 43 N. Y, 254; ^ Hayes v. Pratt, 147 U. S. 557, 567. 
 
 Tilden v. Green, 130 N. Y. 29 ; Parker v. In Livesey v. Jones, 55 N. J. Eq. 204, 
 
 May, 5 Gush. (Mass.) 326,341 ; Cottman 56 N. J. Eq. 453, a gi£t to " humanity's 
 
 t. Grace, 41 Hun (N. Y.), 345; Ireland friend . . B, to use and expend the 
 
 1). Gerahty, 11 Biss. (U. S. Cir. Ct.) 465 ; same for the promotion of the religious, 
 
 Lewin on Trusts, p. * 665 ; 2 Perry on moral, and social welfare of the people 
 
 Trusts, § 732. in any locality, whenever and wherever 
 
 2 Saltonstall v. Sanders, 1 1 Allen he may think most needful and necea- 
 
 (Mass.), 446 ; Hayes v. Pratt, 147 U. S. sary," failed, not because of the trustee's 
 
 557 ; Everett v. Carr, 59 Me. 325, 334 ; power to select, but because " social " 
 
 Derby v. Derby, 4 K. I. 414 ; Miller v. objects might not be charitable. Pul- 
 
 Atkiuson, 63 N. C. 537; 2 Perry on press w. African Church, 48 Pa. St. 204 ; 
 
 Trusts, § 720. Saltonstall w. Sanders, 11 Allen (Mass.), 
 
 5 Here it does not need the appoint- 446 ; Everett v. Carr, 59 Me. 325. 334 ; 
 ment of a trustee to bring the trust into" Derby i'. Derby, 4 R. I. 414 ; Treat's 
 existence ; and equity will not allow the Appeal, 30 Conn. 113 ; Moore v. Moore, 
 valid trust to fail for want of a trustee. 4 Dana (Ky.), 354, 366. See Matter of 
 Sears v. Chapman, 158 Mass. 400 ; Reeve Shattuck, 193 N. Y. 
 V. Atty.-Gen., 3 Hare, 191 ; Inglis v. ^ Authorities cited in preceding sec- 
 Sailors' Snug Harbor, 3 Pet. (U. S.) 99 ; tion, as to purposes of charitable trusts; 
 Williams v. Pearson, 38 Ala. 299. 2 Perry on Trusts, §§ 698-705. 
 
486 ESTATES IN REAL PROPERTY. 
 
 exists — no trustee, or none who is capable and willing to act, 
 is appointed, and, while a charitable purpose is expressed, no 
 specific organization or organizations are selected from the 
 world of charity, — the attempted trust must fail, unless it can 
 be supported by some local statute, or by some power which 
 does not reside in any court as a judicial tribunal.^ In Eng- 
 land the Chancery Court's prerogative cy pres jurisdiction, 
 which does not exist in this country, and which is explained 
 hereafter,^ may avail for the administration of this vague form 
 of gift for charity generally. And it seems to be evident that 
 chapter 701 of the Laws of 1893 of New York (now § 113 of 
 Eeal Prop. Law, L. 1909, ch. 52), is an illustration of a local 
 statute by virtue of which it could be sustained and adminis- 
 tered by equity .3 For that act provides tliat no conveyance or 
 devise for such purpose, which is valid in other respects, is 
 " to be deemed invalid by reason of the indefiniteness or uncer- 
 tainty of the persons designated as the beneficiaries ; " and that, 
 when no trustee is named, the attorney-general shall represent 
 the beneficiaries and enforce the trusts by* proper proceedings. 
 There 'are perhaps intimations opposed to the view of this 
 statute here expressed.* But when the act is looked at in the 
 light of the litigation which led up to it, especially the contest 
 over the Tilden will,^ the conclusion appears to be clear that 
 the legislative intent was to do away entirely with all difficulties 
 of that character in connection with charitable trusts,^ This 
 New York statute is more fully examined hereafter.'^ It re- 
 stored charitable uses in New York after they had been dis- 
 carded for upwards of a centuiy. 
 
 § 347. The Cy Pres Doctrine. Judicial Cy Pres. — As an 
 
 1 Moggridge v. Thackwell, 7 Ves. ^ The statute is very liberally con- 
 
 36; Paice v. Canterbury, 14 Ves. 370; strued in Allen v. Stevens, 161 N. Y. 
 
 The Late Corp. of the Church of Jesus 122. And the decision in Eothschild 
 
 Christ of Latter Day Saints v. United v. SchifE, 188 N. Y. 321, 327, points 
 
 States, 136 U. S. 1 ; Everett v. Carr, 59 strongly to the conclusion here ven- 
 
 Me. 325, 334 ; Boyle on Charities, 241 ; tured. " Where a trust fund is by a 
 
 Bisphara's Prin. Eq. § 128. will dedicated to the purposes contem- 
 
 ^ § 348, infra. plated by the act,;then the act by express 
 
 3 The treatment of gifts for charity terms gives to the Supreme Court con- 
 in New York has been unique. It is trol over it and the attorney-general, 
 explained in the note on New York representing the beneficiaries, can en- 
 express trusts, at the end of this chapter. force the trust by proper proceedings 
 
 * Dammert v. Osborn, 140 N. Y. before the court. " Chase, J., in Matter 
 
 30, 43. See Fowler, Charitable Uses, of Shattuck, 193 N. Y. 
 
 Trusts & Donations, pp. 104-106. ' Note at end of this chapter. 
 
 6 Tilden v. Green, 130 N. Y. 29. 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 487 
 
 emphatic illustration of the maxim, ut res magis valeat quam 
 pereat, the peculiar principle known as the cy pres doctrine 
 sometimes operates to aid in determining the class or classes 
 of the beneficiaries of a charitable use. That doctrine, with 
 the limitation placed upon it in this country, which makes it 
 merely a rule of construction, is as follows : when a gift is 
 made for a charitable use, which is lawful and valid at the 
 time of the execution of the instrument creating it, and, 
 while indicating the general nature and purpose of the trust, 
 the donor has not expressed any intention to restrict it to any 
 particular institution or object alone ; and afterwards the 
 scheme outlined by him becomes illegal or impracticable be- 
 cause of a change of the law or circumstances, a court of 
 equity, looking at his general charitable design, and seeking 
 to ascertain and accomplish what he would have done had 
 he lived to know of the change of law or circumstances, does 
 not allow the trust to fail, or result to his heirs, but applies 
 the property as nearly as possible {cy pres) in the manner and 
 for the particular objects mentioned in the instrument. Such 
 instruments are ordinarily wills; and the change of law or 
 circumstances usually occurs after the death of the testator.^ 
 For example, in Jackson v. Phillips,^ a case which did much 
 to elucidate this doctrine and the principles generally of 
 charitable uses, a gift was made by the will of Francis 
 Jackson to trustees, for the purpose of having books and 
 papers circulated, speeches and lectures delivered, and such 
 other means employed "as in their judgment will create a 
 public sentiment that will put an end to negro slavery in 
 this country," and also for "the benefit of fugitive slaves 
 escaping from the slave-holding states." Slavery in this 
 country was abolished after the testator's death, but before 
 the litigation over his will had terminated. The trust could 
 not be carried out precisely as directed. But what the 
 testator really wanted, under the changed condition of affairs, 
 could be practically effectuated by the court; the people in 
 
 ^Jackson v. Phillips, 14 Allen v. Atty.-Gen., 179 Mass. 89; Women's 
 
 (Mass.), 539, 586; The Late Corp. of Church Ass'n. u. Campbell, 147 Mo.l63; 
 
 The Church of Jesus Christ of Latter Hannen o. Hillyer (1902), 1 Ch. 876; 
 
 Day Saints v. United States, 136 TJ. S. N. Y. Laws, 1893, ch. 701, as amended 
 
 1, 140 U. S. 665, 150 U. S. 145; Hop- by N. T. L. 1909, ch. 52, § 113; Bis- 
 
 kins V. Grimshaw, 165 U. S. 342, 353; pham's Prin. Eq. § 128. 
 
 Minot V. Baker, 147 Mass. 348 ; Atty.- ^ 14 Allen (Mass.) 539. 
 Gen. V. BriggB, 164 Mass. 561 ; Amory 
 
488 ESTATES IN REAL PROPEETY. 
 
 America for whom his bounty was designed could still be 
 thereby benefited. The matter was referred to a master in 
 chancery to devise a scheme cy pres for the application of the 
 property ; with the result that it was ultimately settled in trust 
 for the New England Branch of the Freedmen's Union Com- 
 mission. A similar case in England is that of the Attorney- 
 General V. Ironmongers' Co.,^ which is generally mentioned 
 as the "Ironmongers' Case." There the gift in question 
 was to trustees to apply to the redemption of British slaves 
 in Turkey and Barbary. After some years there ceased to be 
 any British slaves in those countries to redeem. The fund 
 having then accumulated for a long time, the court, upon the 
 application of the attorney-general, ordered the income to be 
 applied cy pres to a number of other charities as nearly as 
 possible like those mentioned in the will. As stated above, 
 the doctrine invoked in such cases is a rule of construction of 
 wills, applied by courts of equity in favor of charitable dona- 
 tions. The judgments are judicial acts, determining what is 
 the intention or probable intention of the testator. ^ There- 
 fore, if, from the language employed, and all the circumstances 
 of the case, it seem probable that the donor -had no ulterior 
 purpose in case of the failure of his directly expressed intent, 
 the charity must fail if that intent can not be strictly carried 
 out.^ "If the construction shows that the fund was to be em- 
 ployed in the way pointed out forever, and in no other way, 
 then all cy pres construction must fail."* 
 
 1 2 Beav. 313, Cr. & Ph. 308. See den v. Conn. Hospital, 64 Conn. 320; 
 also the Baliol College Case, Atty.-Gen. Kelly v. Nichols, 18 R. I.. 62 ; Campbell 
 K. Baliol Coll., 9 Mod. 407 ; Atty.-Gen. v. Kansas City, 102 Mo. 326 ; Women's 
 V. Glasgow Coll., 2 Collyer, 665, 1 H. L. Church Ass'n v. Campbell, 147 Mo. 163 ; 
 Cas. 800; Atty.-Gen. v. Glyn, 12 Sim. Duke on Uses, 624; 8 Harvard Law 
 84. Rev. 69. 
 
 2 In re St. Stephens, L, R. 39 Ch. » Teele?). Bishop of Derby, 168 Mass. 
 Div. 492 ; In re Villers- Wilkes, 72 L.T. 341 ; MacKenzie v. Trustees of Presby- 
 Rep. 323; White v. White (1893), 2 tery of Jersey City, 67 N. J. Eq. 652, 
 Ch. 41; Lorings v. Marsh, 6 Wall. 671; Atty.-Gen. v. Hnrst, 2 Cox, 364; 
 (U. S.) 337; The Late Corp. of The Carter B.'Salfour, 19 Ala. 814 ; 2 Perry 
 Church of Jesus Christ of Latter Day on Trusts, § 726. So if special con- 
 Saints V. United States, 136 U. S. 1 ; fidence be placed in trustees named, and 
 140 U. S. 665 ; Young o. Comrais- they die or become incapacitated with- 
 sioners, 51 Fed. Rep. 585 ; Barnard v. out executing the trust, it must fail. 
 Adams, 58 Fed. Rep. 313; Darcy v. Fontain v. Ravenel, 17 How. (U. S.) 
 Kelley, 153 Mass. 433; Atty.-Gen. 369, 382; Zeisweiss v. James, 63 Pa. 
 V. Briggs, 164 Mass. 561 ; Doyle v. St. 465. 
 
 Whalen, 87 Me. 414; Adams Female * Per Lord Brougham, in Atty.-Gen. 
 
 Academy v. Adams, 65 N. il. 225 ; Hay- u. Ironmongers' Co., 2 Myl. & K. 576. 
 
EQUITABLE ESTATES, — EXPBES8 TRUSTS. 489 
 
 § 348. The Cy Pres Doctrine. Prerogative Cy Pres. — Ap- 
 plied thus as merely a liberal rule of construction — and in 
 this country such only is its application — the cy pres doctrine 
 is a beneficent and commendable principle. It is well that 
 equity thus sees to it " that property devoted to a charitable 
 and worthy object, promotive of the public good, shall be 
 applied to the purposes of its dedication, and protected from 
 spoliation and from diversion to other objects. " ^ But a 
 practice, which is unfortunately called by the same name 
 and is at first sight similar to this, has prevailed in Eng- 
 land in such a manner as to cause some adverse criticism of 
 the cy pres doctrine on both sides of the Atlantic. That prac- 
 tice is the application of what has been called the prerogative 
 cy pres doctrine, to distinguish it from the judicial cy pres 
 above described.^ Much of the prerogative power of the king, 
 as parens patrice was delegated, under the sign manual of the 
 crown, to the Court of Chancery ; and included within this 
 is the authority to regulate and administer a charitable use, 
 even for a purpose entirely different from that contemplated by 
 the settler, or when the attempted gift is in itself incomplete, 
 impracticable, or even illegal. Under this sweeping author- 
 ity, for example, the court took a gift declared to be for a 
 Jews' synagogue, which under the law of England was 
 illegal, and applied it to the benefit of a foundling hospital. ^ 
 This was not an attempt to carry out testamentary intent, 
 though it professed to be such, but an exercise of arbitrary 
 administrative power such as no court in this country could 
 ever possess. "From a few grotesque cases like this," says 
 Mr. Perry, " discredit has been thrown upon the whole doc- 
 trine of cy pres. " * The clear distinction, however, between 
 the English prerogative cy pres, as an administrative power 
 
 1 Per Justice Bradley, in the Mor- conversed with many persons upon it," 
 mon Church Case, The Latter Day said Lord Eldon, "and I have found 
 Corp., etc. V. United States, 136 U. S. great difficultjr in the mind of every 
 1, 51. person I have consulted; but the gen- 
 
 2 2 Perry on Trusts, §§ 718, 727; eral principle thought most reconcil- 
 Story's Eq. Jur. § 1168; Bispham's' able to the cases is, that when there is 
 Prin. Eq. § 128. a general indefinite purpose not fixing 
 
 2 Story's Eq. Jar. § 1 1 68 ; 1 Amer. itself upon any object, the disposition is 
 
 Law Eeg. (n. s.) 400, 401. in the liing by sign-manual; but where 
 
 * 2 Perry on Trusts, § 728. The fact the execution is to be by a trustee with 
 
 that Ijoth forms of cy pres were admin- general or some objects pointed out, 
 
 istered bv the same court — the Court then the court will take the arlminis- 
 
 of Chancery — led to confusion, which tration of the trust." Moggridge v. 
 
 it took some time to remove. " I have Thackwell, 7 Ves. 36. 
 
490 ESTATES IN KEAL PROPERTY. 
 
 there delegated to the Court of Chancery, and the judicial cy 
 pres, as a rule of construction applied by courts of equity both 
 there and here, has come tobe generally understood; and the 
 former criticisms of the latter kind of cy pres, which resulted 
 chiefly from a failure to apprehend that distinction, have con- 
 sequently lost most of their force. ^ When the gift, as origi- 
 nally made, is legal and feasible, and no intent is manifested 
 to restrict it to the one special charity named, and yet it can 
 not be literally applied to that particular charity, it is well 
 that our courts of equity can save the property for some 
 kindred public beneficence. And this will be done, even when 
 there is in the will a residuary clause which might otherwise 
 include the property in question, unless the testator has made 
 clear his wish that on failure of the particular charity it shall 
 fall into the residuum.^ 
 
 § 349. Approval of Judicial Cy Pres in this Cquntry. — The 
 judicial cy pres doctrine has met with general, though not uni- 
 versal, favor in the United States. It was at one time appar- 
 ently repudiated by the Supreme Court of the United States,* 
 but is now adopted by that tribunal.* The courts of Massa- 
 chusetts have upheld and most lucidly explained it ;^ and those 
 of the other New England states and New Jersey have generally 
 followed in their lead.^ In Maryland, Virginia, West Virginia, 
 South Carolina, Tennessee, Alabama, Texas, and Wisconsin, 
 it has been expressly repudiated.' Before 1893, it could not 
 
 1 Jackson v. Phillips, 14 Allen 561. Compare Teele t>. Bishop of Derry, 
 (Mass.), 539; Mormon Church Case, 168 Mass. 341. 
 
 136U.S. 1,51; White u. White (1893), 6 Doyle v. Whalen, 87 Me. 414; 
 
 2 Ch. 41 ; 2 Perry on Trusts, §§ 723- Howard u. Amer. Peace Soc, 49 Me. 
 
 728; Bispham's Prin. Eq. §§ 128, 129. 288, 302; Adams Female Academy v. 
 
 2 Mayor of Lyons v. Advocate Gen- Adams, 65 N. H. 225 ; Brown v. Con- 
 eral of Bengal, L. R. 1 App. Cas. 91 ; cord, 33 N. H. 285, 296 ; Burr w. Smith, 
 Ironmongers' Co. v. Atty.-Gen., 10 CI. 7 Vt, 241 ; Hayden v. Conn. Hospital, 
 & Fin. 908. 64 Conn. 320 ; Kelly v. Nichols, 18 B. I. 
 
 8 Fontain u. Eavenel, 17 How. 62; MacKenzie u. Trustees of Prcsby- 
 
 (U. S.) 369. ■ tery of Jersey City, 67 N. J. Eq. 652, 
 
 * The Late Corp. of The Church of 671, 677. 
 
 Jesus Christ of Latter Day Saints v. ' ' Trustees y. Jackson Square Church, 
 
 United States, 136 U. S. 1, 150 U. S. 84 Md. 173; Halsey v. Convent P. E 
 
 145 ; Lorings v. Marsh, 6 Wall. (U. S.) Church, 75 Md. 275 ; Provost of Dum- 
 
 337; Hopkins v. Grimshaw, 165 U. S. fries «. Abercrombie, 46 Md. 172; B 
 
 342, 353. tist Ass'n v. Hart's Ex'rs, 4 Wheat. 
 
 ^Jackson v. Phillip.s, 14 Allen (U. S.) 1 ; Gallego's Ex'rs «. Atty.-Gen 
 
 (Mass.), 539; Cary Library v. Bliss, 151 3 Leiirh (Va.), 450; Mong v. Ronsh, 29 
 
 Mass. 364; Darcy v. Kelley, 153 Mass- W. Va. 119; Johnson v. Johnson, 92. 
 
 433; Atty.-Gen. v. Briggs, 164 Mass. Tenn, 559; Fesfcorazzi v. St. Joseph's 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 491 
 
 operate as a principle of construction in New York, because 
 charitable uses were not permitted.^ But it probably returned 
 with the restoratioH of that form of trust in 1893 ; and it was 
 specifically recognized and regulated by statute in 1901. ^ (a) 
 Some doubts have been expressed by the courts of New Jersey 
 as to its existence in that state. ^ But it seems to be safe to 
 conclude that it is an operative rule there,* and in the other 
 states of the Union, except as above specified.^ 
 
 Similar to the cy pres doctrine is another principle for the 
 disposition of charitable funds, that, unless the testator's in- 
 tention is clearly to the contrary, if the fund from any cause 
 produce more income than is specifically devoted to the desig- 
 nated charity, the surplus will not result to the settler's heirs, 
 but will also be devoted to the same or a similar charitable 
 object.® But the context and circumstances must always be 
 first carefully weighed, to make sure that the testator has not 
 expressed a contrary intention.'^ 
 
 § 350. Third. Charitable Trusts generally unaCTected by Rules 
 against Perpetuities and Accumulations. — The rule against per- 
 petuities, which at common law forbids the tying up of prop- 
 erty or taking it out of the market for more than any number 
 of lives in being, and twenty -one years and a fraction over (the 
 
 (a) After being disallowed in New York at least after 1829, and proba- 
 bly after 1788, the cy pres docti-ine was explicitly restored by L. 1901, 
 ch. 291, amending the act which restored charitable uses (L. 1893, ch, 701, 
 now L. 1909, ch. 52, § 113). The cy pres principle is thus authorized to be 
 applied by order of the Supreme Court, " provided, however, that no such 
 order shall be made without the consent of the donor or grantor of the 
 property, if he be living." The statute was amended and put into its pres- 
 ent form by chapter 144 of the laws of 1909. See also note on New York 
 express trusts, at the end of this chapter. 
 
 Catholic Church, 104 Ala. 327 ; Heiden- the cypres doctrine; Perry on Trusts, 
 
 heimer v. Bauman, 84 Tex. 174; §§ 728, 729, and notes; Bispham's Prin. 
 
 McHugh V. McCole, 97 Wis. 166 ; Eq. § 130. 
 
 Fuller's WiU, 75 Wis. 431 ; In re Hof- « Thetford School Case, 8 Rep. 130 b, 
 
 fen's Estate, 70 Wis. 522. by the name of which this principle is 
 
 ^ Baseom v. Albertson, 34 N. Y. 584 ; generally known. Atty.-Gen. < . Dean 
 
 Holmes v. Mead, 52 N. Y. 332. of Winsor, 8 H. L. Cas. 369 ; Atty.-Gen. 
 
 2 N. Y. L. 1901, ch. 291. v. Wax Chandlers' Co., L. R. 8 Eq. 452 ; 
 
 ^ Thomson's Ex'rs v. Norris, 20 N. J. Mayor of Beverly v. Atty.-Gen., 6 H. L. 
 
 Eq. 489, 522; Atty.-Gen. v. Moore's Cas. 310; Girard v. Philadelphia, 7 
 
 Ex'rs, 19 N. J. Eq. 503. Wall. (U. S.) 1 ; Hill on Trustees, 129; 
 
 * Livesey v. Jones, 55 N. J. Eq. 204, 2 Redfield on Wills, 796. 
 56 N. J. Eq. 453. ' Coe v. Mills, 149 Mass. 543 ; 2 
 
 ' Cases cited in preceding notes on Perry on Trusts, § 725. 
 
492 ESTATES IN REAL PROPERTY. 
 
 fraction being limited by the period of gestation of a child), 
 has been already mentioned as restricting the operation of 
 private trusts.^ The discussion of that rule in detail is best 
 postponed to a subsequent chapter. It will suffice here to 
 emphasize the fact that charitable trusts are not ordinarily 
 affected by that rule. Where no statute prevents, they may 
 continue perpetually for the raising of income and disbursing 
 it for public utility, or for accumulating income for any length 
 of time and then applying the accumulations to charitable 
 objects.^ This is a very essential feature, which gives much 
 of their effectiveness to most charitable donations. In Now 
 York, the statute forbids accumulations for charity.^ 
 
 If, however, a charitable devise be made to precede or fol- 
 low a private trust or other private gift, the rule against per- 
 petuities may interfere with the working out of the scheme in 
 whole or in part.* Thus, when a private trust is attempted 
 to be made for longer than the legal period, and provision is 
 added for a charitable use to follow it, since the first part 
 is invalid, and the other depends upon it, the entire scheme 
 must fail.^ Again, if a trust for charity be made, to con- 
 tinue during lives not yet in being, and a private gift follow, 
 although the charity may be sustained, since there is nothing 
 illegal ahead of it, the rest of the attempted settlement will 
 be inoperative.® But a charitable donation, with no other 
 gift preceding it, may be made to begin at any time in the 
 distant future.'' And a fund may be made to shift from one 
 charity to another in the future, no matter how remote.^ 
 
 1 §308, supra; Duke of Norfolk's St. Peter's Parish, 158 111. 631; Web- 
 Case, 3 Ch. Cas. 20 ; 1 Perry on Trusts, ster v. Morris, 66 "Wis. 366 ; Duggan v. 
 § 384. Sloeum, 92 Fed. Rep. 806, 808. 
 
 2 Hopkins v. Grimshaw, 165 V. S. <> Company of Pewterers v. Clirist's 
 342, 355; St. Paul's Church v. Atty.- Hospital, 1 Vern. 161; Atty.-Gen. u. 
 Gen., 164 Mass. 188; Abend v. End Downing, Ambler, 550; Post v. Rohr- 
 Fund. Commission, 174 111. 96; An- bach, 142 111. 600; Hopkins v. Grim- 
 drews «. Andrews, 110 111. 222; Sellers shaw, 165 U. S. 342, 355. 
 
 Church's Petition, 139 Pa. St. 61, 67; » Hopkins v. Grimshaw, 165 U. S. 
 
 Mills -v. Davison, 54 N. J. Eq. 659 ; 342, 355 ; Mills v. Davison, 54 N. J. Eq. 
 
 Brown v. Meeting St. Baptist Soc, 9 659; Alden v. St. Peter's Parish, 158 
 
 R. I. 177; 1 Perry on Trusts, § 384; 111.631. 
 
 2 Perry on Trusts, §§ 736, 737. ' Hopkins v. Grimshaw, 165 U. S. 
 
 8 St. John V. Andrews Institute, 191 342, 355; Atty.-Geu. o. Downing, Am- 
 
 N. Y. 254, 278 ; pp. 498, 501, infra. bier, 550 ; Inglis v. Sailors' Snug Har- 
 
 * Hopkins v. Grimshaw, 165 U. S. bor, 3 Pet. (U. S.) 99; Sanderson a. 
 
 342, 355 ; In re Tyler ( 1891), 3 Ch. 252 ; White, 18 Pick. (Mass.) 328, 336. 
 
 In re Bowen (1893), 2 Ch. 491; In re ^ Leming's Estate, 154 Pa. St. 209; 
 
 Notfcage (1895), 2 Ch. 649; Mills v. McDonogh's Ex'rsi). Murdock, 15 How. 
 Davison, 54 N. J. Eq. 659; Alden v. 
 
EQUITABLE ESTATKS. — EXPRESS TRUSTS. <! J 
 
 New York Express Trusts. 
 
 Until January 1, 1830, the law of uses and trusts as above explained 
 prevailed in New York, in all respects except as to gifts for charity. On 
 that day, the Revised Statutes, the preparation of which was begun by re- 
 visers appointed in 1827, and which were enacted by the legislature of 
 1829, went into operation. These made many important changes in the 
 New York law of real property, most of which have proved beneficial. 
 But probably in no other department of the state's jurisprudence were the 
 alterations effected by them so radical and far-reaching as in that of uses 
 and trusts. The objects of those alterations, as stated by the revisers in 
 tlieir report to the legislature, were to remove as far as possible the incon- 
 veniences which had grown up around these forms of interests as they 
 were dealt with by courts of equity, — especially the difficulties arising out 
 of the existence of both a legal estate and an equitable one in the same 
 piece of property, — anti yet to retain the old system for oases in which 
 " the purposes of the trust require that the legal estate shall pass to the 
 trustee," or in which justice or the best interest of the parties concerned 
 can be thereby most fully and fairly subserved. In their efforts to pro- 
 duce these results, the revisers found it necessary to retain unchanged all 
 the species of implied trusts except one. The modifications which they 
 made in that one will be explained hereafter in discussing the first form 
 of resulting trusts. 
 
 Dividing all express trusts into their two natural classes, — (a) active 
 and (b) passive, — they abolished the latter class entirely, retained four 
 kinds or gi'oups of the former class, and changed all other forms of other 
 wise valid, active, express trusts, except those four, into powers in trust. 
 Each of these statutory modifications of the express trusts requires a more 
 detailed discussion. And this will include a fuller explanation of the 
 vicissitudes through which charitable uses and donations have passed in 
 New York. 
 
 1. Passive Express Trusts are wholly Abolished. — For, said the revisers : 
 "They answer no end whatever but to facilitate fraud, to render titles 
 more complicated, and to increase the business of the Court of Chancery. 
 They are, in trath, precisely what uses were before the Statute of Uses, and 
 are liable to many of the same objections. Formal" (passive express) 
 "trusts we, therefore, propose to abolish by converting those which now 
 exist into legal estates and prohibiting their creation in the future. This 
 is substantially to carry the Statute of Uses into effect according to its 
 original intention." This purpose was carried out by the statutes which 
 were 1 R. S. 727, §§ 45-o0, and which are now Real Prop. Law (L. 1909, 
 ch. 52), §§ 90-93, and are quoted in full in note (a), § 331, supra. But 
 it is to be carefully noted that these statutes abolished passive express 
 trusts, not by declaring attempts to create them to be illegal, improper, or 
 a nullity, but by vesting the legal estate in the person designated as the 
 ultimate beneficiary, — by executing the use, and the use upon a use, if one 
 be made, and the use upon that, if such subsequent use exist, and so on to 
 the person or persons who are the real beneficiaries. In other words, these 
 
 (U. S.) 367, 415 ; Storrs' Agr. School v. 17 R. I. 265 ; 2 Perry on Trusts, §§ 736, 
 Whitney, 54 Conn. 342 ; Almy v. Jones, 737. 
 
494 ESTATES IN REAL PROPERTY. 
 
 statutes have overcome the effect of the decision in Tyrrel's Case, and 
 execute all the uses (or passive express trusts) attempted to be made, 
 whether they are first, second, third, or more remote. Thus, if land be 
 conveyed to A, in trust for B, to the use of C, the statute passes the legal 
 estate to C ; and A and B get nothing : and a transfer to A, for the use of 
 B, for the use of C, in trust for D, for the benefit of E, gives the legal es- 
 tate to E, and nothing to A, B, C, or D. Denison v. Denison, 185 N. Y. 
 438, 443 ; Wendt v. Walsh, , 164 N. Y. 154 ; Hopkins v. Kent, 145 N. Y. 
 363 ; Townshend v. Frommer, 125 N. Y. 446, 456 ; Woerz v. Rademacber, 
 120 N. Y. 62, 67 ; Syracuse Sav. Bk. v. Holden, 105 N. Y. 415 ; Mott v. 
 Ackerman, 92 N. Y. 539 ; Adams v. Perry, 43 N. Y. 487 ; Fisher v. Hall, 
 41 N. Y. 416 ; Downing v. Marshall, 23 N. Y. 366, 379 ; Matter of Gawne, 
 82 App. Div. 374 ; Knight v. Weatherwax, 7 Paige, 182. 
 
 2. Of the Active Express Trusts, Four purposes or groups were retained in 
 1830, to which a fifth one was added in 1893 ; and the rest, when otherwise 
 valid, are changed into powers in trust. — The object of the revisers was that 
 there should be no express trusts in real property, except where it is neces- 
 sary for the protection of those interested that the title or possession shall 
 be vested in a trustee. " Where no such necessity exists," say the 
 revisers (as where the trust is to convey, or to make partitions, etc.), 
 " it is obvious that without giving any estate to the trustee, the trust may 
 as well be executed as a power." See Clapp v. Byrnes, 3 N. Y. App. Div. 
 284, 292 ; Heermans v. Robertson, 64 N. Y. 332. That is, there is not to 
 be a legal estate separate from the beneficial enjoyrnent of the property, 
 where this can be properly avoided, but in such cases trust duties in con- 
 nection with the land are to be performed by the donee of a power in trust, 
 who as such donee has no title or estate. The statute, which in 1830 was 
 1 R. S. 728, § 55, and is now Real Property Law (L. 1896, ch. 547), § 76, 
 accordingly provides that : " An express trust may be created for one or 
 more of the following purposes : (i) To sell real property for the 
 benefit of creditors ; (2) To sell, mortgage, or lease real property for the 
 benefit of annuitants or other legatees, or for the purpose of satisfying 
 any charge thereon ; (3) To receive rents and profits of real property, 
 and apply them to the use of any person, during the life of that person, or 
 for any shorter term, subject to the provisions of law relating thereto; 
 (4) To receive the rents and profits of real property, and to accumulate the 
 same for the purposes, and within the limits prescribed bylaw." These 
 four purposes do not embrace charitable uses. But the statute, which 
 was originally L. 1893, ch. 701, and is now Real Property Law (L. 1909, 
 ch. 52), § 113, provides for, (5) A trust "for religious, educational, 
 charitable, or benevolent uses." And by the statute, 1 R. S. 729, §§ 58, 
 59, as it was in 1830, which is now Real Property Law (L. 1909, ch. 52), 
 § 99, it is enacted that, " Where an express trust relating to real property 
 is created for any purpose not specified in the preceding sections of this 
 article "(§113, which restored charitable uses, being a later amendment, 
 is treated as though it were a preceding section), no estate shall vest in 
 the trustees ; but the trust, if directing or authorizing the performance of 
 any act which may be lawfully performed under a power, shall be valid as 
 a power in trust, subject to the provisions of this chapter. Where a trust is 
 valid as a power, the real property to which the trust relates shall remain in 
 or descend to the persons otherwise entitled, subject to the execution of 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 495 
 
 the trust as a power." The statutes do not specify or limit the purposes 
 wliich are lawful as powers in trust, except by showing that they in- 
 clude those for which active express trusts were valid under the common 
 law, and which are not embraced within the_^ue express trust purposes still 
 permitted. Downing v. Marshall, 23 N, Y. 366, 380 ; Read v. Williams, 
 125 N. Y. 560, 569 ; Reynolds v. Denslow, 80 Hun, 359. In all cases of 
 doubtful construction, — where it is not practically certain that one of the 
 five express trust pui'poses is intended, — the courts lean towards a power, 
 rather than a trust. Steinhardt v. Cunningham, 130 N. Y. 292, 300 ; 
 Cass'agne v. Marvin, 143 N. Y. 292 ; Forster v. Wiufield, il42 N. Y. 327; 
 332; Bates c. Lidgerwood Mfg. Co., 130 N. Y. 200. See Robinson v. 
 Adams, 81 N. Y. App. Div. 20. A few remarks are needed, which apply 
 to all of the five groups of express active trusts ; and then each of those 
 groups is to be briefly considered. 
 
 The better and more consistent view is that the legislature did not first 
 abolish all express trusts and then create de novo five groups, which must 
 rest entirely upon the statutes for their authority and precedents ; but it 
 retained in the first instance four groups (and subsequently restored a fifth), 
 which were known and favored at common law, and converted the others 
 into powers in trust. Therefore, except in so far as they are positively 
 modified by the statutes, those trusts which remain are to have their effect 
 and operation determined by the principles of the common law. Leggettu. 
 Perkins, 2 N. Y. 297, 307; Boese v. King, 78 N. Y. 471, 478 ; Downing v- 
 Marshall, 23 N. Y. 366, 377. But see Hawlej v. James, 16 Wend. 61, 
 148. Again, in the third (S) and fourth (4) groups one of the expressed 
 purposes of the trusts is that the trustee may collect the rents, profits, 
 and income of the property. If a trust of the first (i) or second {S) group 
 be attempted to be made by devise for the purpose of selling or mortgaging 
 the property, it results only in a power, unless the trustee is also authorized 
 to collect the rents and profits until the sale or mortgage is made. Such is 
 the effect of the statute, which in 1830 was 1 R, S.- 729, § 56, and is now 
 Real Property Law (L. 1909, ch. 52), § 97, and which is as follows : " A 
 devise of real property to an executor or other trustee, for tlie purpose of 
 sale or mortgage, where the trustee is not also empowered to receive the 
 rents and profits, shall not vest any estate in him ; but the trust shall be 
 valid as a power, and the real property shall desoeud to the heirs, or pass 
 to the devisees of the testator, subject to the execution of the power." 
 Heermans v. Robertson, 64 N. Y. 332 ; Heerraans v. Burt, 78 N. Y. 259 ; 
 Knox V. Jones, 47 N. Y. 389. Therefore, in order to create one of these 
 first four active express trusts, the purpose must be one of those pre- 
 scribed by the statute, and executors as trustees under the first (1) and 
 second (2) groups, and all trustees under the third (3) and fourth (4) 
 groups, must have authority to receive the rents and profits of the 
 property. Holly v. Hirsch, 135 N. Y. 590 ; Brewster v. Striker, 2 N. Y. 
 19; Cooke v. Piatt, 98 N. Y. 35; Tobias v. Ketcham, 32 N. Y. 319. 
 The statute (in 1830, 1 R. S. 729, § 60, now Real Prop. Law, § 100) 
 also declares that : '' Except as otherwise prescribed in this chapter, an 
 express trust, valid as such iu its creation, shall vest in the trustee 
 the legal estate, subject only to the execution of the trust, and the 
 beneficiary shall not take any legal estate or interest in the property, 
 but may enforce the performance of the trust." See Marx v. McGlynu, 
 
496 ESTATES IN REAL PROPERTY. 
 
 88 N. Y. 357; Bennett v. Garlook, 79 N. Y. 302, 317 ; Van Cott v. Prentice, 104 
 N. Y. 45, 53 ; People ex rel. Short v. Bacon, 99 N. Y. 275; Marvin v. Smith, 
 46 N. Y. 571 ; Briggs v. Davis, 21 N. Y. 574, 577; De Graw v. Classen, 11 
 Paige, 136, 140. But the trustee himself takes no greater interest in the 
 property than is necessary to perform the requirements of the trust. Thus, 
 if the trust be for the life of A, on A's death the property freed from the 
 trust to pass to B, the estate of the trustee is only during the life of A. 
 Losey v. Stanley, 147 N. Y. 560, 568; Matter of Brown, 1.54 Jv". Y. 313; 
 Matter of Tompkins, 154 N. Y. 634; Brown v. Richter, 25 N. Y. App. Div. 
 239 ; Knowlton v. Atkins, 134 N. Y. 313, 317 ; Townshend v. Frommer, 125 
 N. Y. 446, 455 ; Manice v. Manice, 43 N. Y. 303, 363. The statute also 
 adds (Real Prop. Law, §§ 101, 102, formerly 1 R. S. 729, §§ 61, 62) : " The 
 last section " (§ 100 which vests the entire trust interest in the trustee, as 
 shown above) " shall not prevent any person, creating a trust, from declar- 
 ing to whom the real property, to which the trust relates, shall belong, in the 
 event of the failure or termination of the trust, or from granting or devising 
 the property subject to the execution of the trust. Such a grantee or de- 
 visee shall have a legal estate in the property, as against all persons, except 
 the trustees, and those legally claiming under them." " Where an express 
 trust is created, every legal estate and interest not embraced in the trust, 
 and not otherwise disposed of, shall remain in or revert to, the person creat- 
 ing the trust or his heirs." The alienability of express trusts of the third (3) 
 and fourth (4) groups is restricted by §§ 103-107 Real Property Law, which 
 wereformerly 1 B. S. 730, §§ 63-65, and L. 1895, ch. 886. These statutes 
 provide that, " The right of a beneficiary of an express trust to receive rents 
 and profits of real property and apply them to the use of any person can not 
 be transferred by assignment or otherwise, but the right and interest of the 
 beneficiary of any other trust in real property may be transferred." § 103 ; 
 Dyett V. Central Trust Co., 140 N. Y. 54. 65; Metcalfe v. Union Trust Co., 
 181 N. Y. 39 ; Gilliam u. Guaranty Trust Co., 186 N. Y. 127. " If the trust 
 is expressed in the instrument creating the estate, every sale, conveyance, 
 or other act of the trustee in contravention of the trust, except as provided 
 in this section, shall be absolutely void." § 105. But the trustee may lease 
 the property for not longer than five years at a time without permission of 
 the court ; and, for reasons shown which convince the court that it is for 
 the best interest of the estate or beneficiary, he may be empowered by it 
 to lease for a longer term than five years, or to mortgage or sell the trust 
 property or any part of the same. § 106. The procedure, upon the appli- 
 cation for such authority, is prescribed by § 107. When the property is sold, 
 § 94 of the statute now provides for investing the proceeds, when proper, in 
 the stocks and bonds, or either, of a corporation, formed or to be formed 
 for that purpose. A beneficiary's trust interest which he may alien [i. e., 
 in a trust of the first (1) or second (S) group] may be reached in equity 
 by his creditors. But, as heretofore explained, the income of a beneficiary 
 of one of the third {3) or fourth (4) groups can not be taken for his debts, 
 except so much thereof as is not needed for the education and support of 
 himself and those dependent on him, and except that ten per cent of his 
 income of not less than twelve dollars per week may be reached, as explained 
 in note (a), § 335, supra. The importance of these express trusts calls for 
 a brief, separate discussion of each of the above-named five groups: — 
 
 (I) A trust, " To sell real property for the benefit of creditors." — An 
 assignment for the benefit of creditors makes a trust of this class. It must 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 407 
 
 be absolute and imperative in character, vesting no discretion in the 
 trustee, except as to the time and manner of selling. And the direction 
 to sell must be the primary, if not the sole, purpose of the transfer. Stein- 
 hardt v. Cunningham, 130 N. Y. 292, 300; Henderson v. Henderson, 113 
 N. Y. 1, 11 ; Woerz v. Rademacher, 120 N. Y. 62 ; Cooke v. Flatt, 98 N. Y. 
 35. See New York General Assignment Act of 1877 (L. 1877, ch. 466, 
 now found in R. S. 9th ed, p. 2429), and treatises on general and in- 
 solvent assignments. 
 
 (S) A trust, " To sell, mortgage, or lease real properly for the benefit oj 
 annuitants or other legatees, or for the purpose of satisfying any charge 
 thereon." — In comparing this with the first group, it will be observed that 
 the only trust that can be made for the benefit of creditors is one to sell, 
 unless their claims are charged upon the land, as in the form of a mort- 
 gage, judgment, or other lien. Darling v. Rogers, 22 Wend. 483 ; Hawley 
 V. James, 16 Wend. 61, 149 ; Irving v. De Kay, 9 Paige, 521, 529. Pay- 
 ments to volunteers — annuitants and other legatees — may await the 
 possibly slower process of raising money by mortgage or lease. The 
 primary, if not the only, purpose of this second form of trust iimst be to 
 sell, mortgage, or lease for one or both of the two purposes specified by 
 the statute. Heermans v. Burt, 78 N. Y. 259, 265; Russell u. Hilton, 80 
 N. Y. App. Div. 178. If the trustee be instructed to lease the land, or 
 continue an existing lease, and apply the rents to the payment of an exist- 
 ing mortgage or other lien on the land, this is invalid, since it orders an 
 accumulation for a purpose not authorized by the statute. Hascall v. 
 King, 162 N. Y. 134. See also the discussion, in this note, of the fourth 
 group of active express trusts (^), infra, li the trustee be directed or 
 authorized to lease for one of the purposes permitted by the statute, he 
 may make a lease for any reasonable length of time required for the proper 
 performance of the trust, even though the term of such lease be longer 
 than the time during which the trust is to continue. Bennett v. Garlock, 
 79 N. Y. 302; Matter of McCaffrey, 50 Hun, 371; Greason v. Keteltas, 17 
 S. Y. 491 ; Taylor on Landlord and Tenant, §§ 130-132 ; Wood on Land- 
 lord and Tenant, §§ 165-167. 
 
 (3) A trust, " To receive rents and profits of real property, and apply them 
 to the use of any person, during the life of that person, or for any shorter term, 
 subject to the provisions of law relating therets." — The life "of any person" is 
 here mentioned as though only one person were intended. But such a 
 trust may continue during the lives of not more than two persons in being 
 at the time of its creation, i. e., in being when the deed is delivered, if it be 
 made by deed, or when the testator dies, if by will. Thus, the trust may 
 he to receive the rents and profits and apply them to the use of A while 
 he lives, and then to the use of B while he lives ; or to the use of A and 
 B during their joint lives, and then to the use of the survivor of them 
 during the rest of his life. Or there may be a valid trust to receive the 
 rents and profits, while A and B or either of them lives, and apply them 
 to the benefit of any number of designated persons during that period. 
 So, of course, the trust may be to apply the income to the use of A until 
 he is forty years of age, if he live that long, or for any other portion of 
 one or two lives. But, since ordinarily in such cases neither the benefi- 
 ciary, nor the trustee, nor both together, can sell the property during the 
 period prescribed by the trust, the tying up of the property in this way, or 
 
498 ESTATES IN BEAL PROPERTY. 
 
 this suspension of the power of alienation, is not allowed to transcend the 
 period of two lives in being. Manice v. Manice, 43 N. Y. 303 ; Smith v. 
 Secor, 157 N. Y. 402; Allen v. Allen, 149 N. Y. 280. It was at one time 
 supposed by some that this form of trust was designed merely for persons 
 who were legally incapable of managing their own affairs. But, while 
 such persons are of course very frequently the beneficiaries, it was long 
 ago settled that such trusts may exist for persons sui juris and legally 
 capacitated to act for themselves. Leggett v. Perkins, 2 N. Y. 297, 308, 
 321; Moore v. Hegeman, 72 N. Y. 376, 384; Gott v. Cook, 7 Paige, 521, 
 538. This is the species of trust by which settlements for married women 
 are frequently made in New York. L' Amoreaux v. Van Rensselaer, 1 Barb. 
 Ch. 34, 37 ; p. 473, note (a), supra. 
 
 (4) A trust, " To receive the rents and profits of real property and to 
 accumulate the same for the purposes, atid within the limits, prescribed by 
 law." — The "limits, prescribed by law," to a trust of this character are 
 that it can not begin before the birth of the beneficiary, and must begin 
 within or at the expiration of not more than two lives in being when it is 
 created ; it must terminate at or before the expiration of his minority, and 
 if it be directed to continue for a period beyond his minority, it is void only 
 as to the time beyond such minority; it can not be for the benefit of any 
 person other than the child by whose minority it is measured, nor even for 
 a charity. Real Prop. Law, § 61 ; Pray v. Hegeman, 92 N. Y. 508 ; Manice 
 ... Manice, 43 N. Y. 303, 375; Smith v. Parsons, 146 N. Y. 116, 120; Cook 
 v. Lowry, 95 N. Y. 103; Hascall v. King, 162 N. Y. 134; p. 492, supra. 
 
 (5) A trust "for religious, educational, charitable, or benevolent uses." — 
 The English Statute of Charitable Uses (43 Eliz. ch. 4) was abrogated 
 in New York by the Law of 1788, ch. 46. 2 Jones & Varick, 282; 
 Levy V. McCartee, 6 Pet. (U. S.) 102, 110; Beekman v. Bonsor, 23 
 N. Y. 298, 307. Before that time, although there were very few charitable 
 foundations in the' state, those which did exist were governed by the rules 
 and principles of trusts for charity, as these had been developed and ex- 
 plained by the English courts. It was believed, without question, at that 
 time, that those rules and principles were wholly based upon the Statute 
 of Elizabeth. And, therefore, after much vacillation by the courts, the 
 final judicial opinion is that the repeal of that statute is conclusive evi- 
 dence of an intention on the part of the legislature to abolish for New 
 York the entire English law of charitable uses. Holland v. Alcock^ 108 
 N. Y. 312, 334; Bascom v. Albertson, 84 N. Y. 584, 601 ; Levy v. Levy, 
 33 N. Y. 97, 112 ; Yates v. Yates, 9 Barb. 324 ; Ayres v. M. E. Church, 
 3 Sand. Ch. 351. The Revised Statutes (Jan. 1, 1830) provided for only the 
 four groups of express trusts heretofore explained in this note. And the ques- 
 tion was very soon mooted whether or not they had left or created any room 
 for charitable uses. In a line of decisions, of which Williams v. Williams, 
 
 8 N. Y. 525, is the chief, and which were supported by the opinions of such 
 jurists as Chancellors Kent, Jones, and Sandford, it was held that the Eng- 
 lish system of charities, and the jurisdiction of the Court of Chancery over 
 them became the law of New York on the adoption of the Constitution of 
 1777, and that neither the repeal of the Statute of Elizabeth nor the opera- 
 tion of the Revised Statutes of the state had done away with that law or sys- 
 tem. Coggeshall v. Pelton, 7 Johns. Ch. 292 ; McCartee v. Orphan Asylum, 
 
 9 Cow. 437, 451; Shotwell Executor v. Mott, 2 Sand. Ch. 46; Hornbeck's 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 499' 
 
 Ex'r V. American Bible Soc, 2 Sand. Ch. 133; Trustees of N. Y. Protestant 
 Episcopal School v. Davis, 31 N. Y. 574, 589 ; Iseman v. Mayers, 26 Hun, 
 651, 657. But subsequently judicial opinion on these matters turned the 
 other way ; and, after oscillating for several years, was completely reversed. 
 In 1873, the Court of Appeals announced that the long controversy was 
 definitely settled, and that the system of charitable uses, as it existed in 
 England, had disappeared from the jurisprudence of New York on the first 
 day of January, 1830, if not before. Bascom v. Alberton, 34 N. Y. 584; 
 Holmes v. Mead, 52 N. Y. 332 ; Holland o. Alcock, 108 N. Y. 312, 336 ; 
 People V. Powers, 147 N. Y. 104. See also Downing v. Marshall, 23 N. Y. 
 366; Levy v. Levy, 83 N. Y. 97, 134; Ayres v. Trustees of M. E. Church, 
 3 Sand. Ch. 351. 
 
 Beginning probably as far back as the Law of 1784, chapter 18 (1 Green- 
 leaf's Laws, 71 ; 1 Jones & Varick, 104), which was an act to enable relig- 
 ious institutions to appoint trustees who should become bodies corporate, the 
 state of New York was, in the mean time, developing a distinct scheme for 
 the manipulation of charitable gifts ; which scheme, although essentially as 
 ancient as the charities created before there were any statutes of mort- 
 main, and although it was completed here as a system in 1830, was not 
 thoroughly understood until many years after the Revised Statutes became 
 operative. The basal idea of this substituted policy was corporate charily, 
 — the making of .charitable gifts to corporations so organized, or to be so 
 organized, as to accomplish the desired objects, rather than to trustees for 
 the purposes intended. Thus, when the property was designed for religious 
 purposes, it was to be given directly to a church corporation, or other relig- 
 ions corporate entity, and not to trustees to hold and manage for such insti- 
 tution; and when it was intended for purely eleemosynary purposes, it was 
 to be given to some incorporated asylum, hospital, or the like, and not to 
 individuals in trust for the same. And if the desired charity were not 
 already in corporate form, there were to be directions in the instrument of 
 gift for having it made so, within the time permitted by the statutes (two 
 lives in being), and then transferring to it the donated property. These 
 gifts were then sustained upon the theory of the absence of a technical 
 trust, and the absolute ownership of the property by the charitable corpo- 
 ration. Bird V. Merklee, 144 N. Y. 544; Riker v. Lee, 115 N. Y. 93, 133 
 N. Y. 519; Cottman u. Grace, 112 N. Y. 299, 306; Wetmore v. Parker, 
 52 N. Y. 450 ; Bascom v. Albertson, 34 N. Y. 584, 609 ; Levy v. Levy, 33 
 N. Y. 97, 124. The corporation must fulfill the purposes of its existence ; 
 and it owed to the state a fiduciary obligation to do so. The state so far 
 forth insured the performance of the wish of the donor, by its laws relat- 
 ing to the administration of corporate property. There was, therefore, in 
 every such charity a trust relationship, consisting of the duty of the corpo- 
 ration properly to administer its funds ; and the individuals who were to 
 be the ultimate beneficiaries were necessarily indefinite. But the donor 
 created no trust. He gave his property absolutely to a definitely described 
 and known corporation. The duty and the trust were impressed upon the 
 gift by the state. The time of the existence of the beneficence of the 
 donor, moreover, must depend on that of the corporation, which might 
 or might not be perpetual. Thus the donor must choose a definite object 
 to which to give both the legal and equitable estates, and could not al- 
 ways make his charitable donation to last forever. Fosdick v. Town of 
 
500 ESTATES IN REAL PROPERTY. 
 
 ■ Hempstead, 125 N. Y. 582, 595 ; Matter of Tngersoll, 131 N. Y. ^73 ; Bird 
 V. Merklee, 144 N. Y. 544 ; Holland v. Alcock, 108 N. Y. 312 ; Bascotn v. 
 Albertson, 34 N. Y. 584. He might pass the property to the definite 
 object, by means of a power in trust reposed in a third party, such, for 
 example, as an executor, provided he required the power to be executed 
 within the time permitted by the statutes — two lives in being. Thus, he 
 could authorize his executors to distribute the property among known and 
 clearly described existing charities. Power v. Cassidy, 79 N. Y. 002, or to 
 have a corporation formed, within two lives in being, for definitely de- 
 scribed charitable objects, and tlien to convey the property absolutely to 
 such corporation. Tilden v. Green, 130 IST. Y. 29. It was required that 
 the corporations to so take and hold, whether directly from the donor or 
 •through the act of the donee of a power in trust, should be so definitely and 
 unmistakably pointed out by the instrument, that they could come into 
 ■court as unquestionably the only beneficiaries intended and move it to 
 compel the transfer of the property to them. People v. Powers, 147 N.Y. 
 104; Tilden v. Green, 130 N. Y. 29; Fosdick v. Town of Hempstead, 125 
 N. Y. 582, 591. Therefoi-e the cy pres doctrine had no application to such 
 gifts. It was repeatedly declared that that doctrine did not exist in either 
 ■of its forms in the state of New York. Owens v. Miss. Soc. M. E. Ghurch, 
 14 N. Y. 380; Holland v. Alcock, 108 N. Y. 312, 330 ; Cottmann v. Grace, 
 112 N. Y. 299, 306; Hillen v. Iselin, 144 N. Y. 365, 374. . But if the bene- 
 ficiary were explicitly indicated, and the settlement otherwise properly 
 made, it was not allowed to fail because of any non-appointment or absence 
 of a trustee or donee of a power in trust. The court, on application of the 
 beneficiary, would follow the legal estate, and see that it was disposed of 
 as required by the donor. Downing v. Marshall, 23 N. Y. 866, 382 ; Kirk 
 V. Kirk, 137 N. Y. 510, 514; Woodward v. James, 115 N. Y. 346, 357; Rose 
 V. Hatch, 125 N. Y. 427; Greene v. Greene, 125 N. Y. 506. 
 
 The difficulties with the scheme for charitable donations, as thus de- 
 veloped in New York, were that it was too rigid and narrow, and too 
 obscure. Testators were constantly desiring and endeavoring to put into 
 operation charitable plans which were not included within its narrow lim- 
 itations. The provisions of the Revised Statutes themselves did not 
 explain it with any degree of exactness. The best legal minds were long 
 in doubt and perplexity as to what could be done, and what was for- 
 bidden, in the way of foundations for charity. The result was the failiire 
 of many beneficent schemes for the public good, which might other- 
 wise have flourished forever in this state. See Damme^t v. Osborn, 140 
 N. Y. 30, 43. Some of the conspicuous instances of those abortive at- 
 tempts to benefit the public are shown in the following cases, namely: 
 Levy V. Levy, 33 N. Y. 97; Bascom v. Albertson, 34 N. Y. 584 ; White v. 
 Howard, 46 N. Y. 144; Holmes v. Mead, 52 N. Y. 332 ; Holland v. Alcock, 
 108 N. Y. 312; Tilden v. Green, 130 N. Y. 29; People v. Powers, 147 
 N. Y. 104 ; Fairchild v. Edson, 154 N. Y. 199. In People v. Powers, 
 147 N. Y. 104, as an illustration, the gift was to the executor named in the 
 will, " to dispose of among the charitable and benevolent institutions or 
 corporations in the city of Rochester, as he shall choose, and in such sums 
 and proportions as he shall deem proper." Since all kinds of charitable 
 institutions in Rochester, whether incorporated or not, came within the 
 meaning of this language, it was decided that the beneficiaries were 
 
EQUITABLE ESTATES. — EXPRESS TRUSTS. 501 
 
 clearly too indefinite — there being no fixed charity or class of charities 
 which could undeniably maintain that they alone were intended as donees 
 — and therefore the entire scheme must fail. This case was distinguished 
 from the quite similar one of Power v. Cassidy, 79 N. Y. 602, in which a 
 gift was sustained for the charitable Catholic institutions of the city of 
 New York, because it was shown that all such Catholic institutions in New 
 York City were incorporated and therefore definitely known and ascer- 
 tained. In thi' more noted case of Tilden v. Green, 1:;0 N. Y. 29, the 
 thirty-fifth and thirty-ninth paragraphs of the will of Samuel J. Tilden were 
 particularly in question. By the thirty-ninth paragraph and first part of 
 the thirty-fifth, the property was given to the executors, with instructions 
 that, during the lives of the testator's nephew and niece, or that of the 
 survivor of them (two desisjnated persons in being), they should cause to 
 be formed a corporation, to be known as the " Tilden Trust," for the pni'- 
 pose of establishing and maintaining a free public library in the city of 
 New York, and should then transfer the donated property to it, for that 
 purpose. It was declared by the Court of Appeals that, had he stopped 
 there, Mr. Tilden would have made a valid gift of the property, amounting 
 to |o,000,000, for the " Tilden Trust," yet to come into being. The settle- 
 ment would have come squarely within the then existing New York scheme 
 for charitable foundations. But the substance of the latter part of the 
 thirty-fifth paragraph of the will was that, if, in the judgment of the exec- 
 utors, it were not best to apply aU or any of the fund to the " Tilden Trust," 
 then, in their discretion, they might use any part or all of the same for 
 such other charitable purposes as in their judgment would be "most 
 widely and substantially beneficial to the interests of mankind." It was 
 held that all of those two paragraphs of the will must be read together, and 
 could not be taken separately as constituting two distinct provisions ; and 
 that, as so read, they authorized the executors, in their discretion, to give 
 the property to a7iy charity or charities in the world, of which the " Tilden 
 Trust" might or might not be one. Testing such a settlement as a trust, 
 it was clearly not within the purview of any of the four active express 
 trusts permitted by the Revised Statutes. Tested as a power in trust, it 
 must fail because of the indefiniteness of the beneficiaries. The scheme 
 was wholly inconsistent with the New York policy as to charities, and, 
 therefore, invalid. 
 
 Because of the constantly recurring frustrations of large and splendid!^ 
 devises and bequests for public beneficence, and in particular as an out- 
 come of the overthrow of the Tilden Will, the unfortunate policy, which 
 had existed in New York for at least over half a century without being 
 understood, was abandoned, in 1893, in favor of the restoration of charit- 
 able uses as the Ji/lh (5) group of active express trusts, as it may be prop- 
 erly styled. This was accomplished by chapter 701 of the Laws of 1893, 
 whichi is entitled, " An Act to regulate gifts for charitable purposes." In so 
 far as it deals with conveyances and devises of real property, that statute 
 has been re-enacted as § 113 of the Real Property Law. But the following^ 
 quotation is the complete act, as dealing with all kinds of property, and as 
 amended by the law of 1901, ch. 291, with reference to the cy pres doctrine. 
 
 " Section 1. No gift, grant, bequest, or devise to religious, educational, 
 charitable, or benevolent uses, which shall, in other respects, be valid under 
 the laws of this State, shall or be deemed invalid by reason of the inde- 
 finiteness or uncertainty 'of the persons designated as the beneficiaries- 
 
502 ESTATES IN BEAL PROPERTY. 
 
 thereunder in the instrument creating the same. If in the instrument 
 creating such a gift, grant, bequest, or devise, there is a trustee named to 
 execute the same, the legal title to the lands or property given, granted, 
 devised, or bequeathed for such purposes shall vest in the trustee. If no 
 person be named as trustee, then the title to such lands or property shall 
 vest in the supreme court. 
 
 '■2. The supreme court shall have control over gifts, grants, bpquests,. 
 and devises, in all cases provided for by section one of this act. Whenever 
 it shall appear to the court that circumstances have so changed since the 
 execution of an instrument containing a gift, grant, bequest, or devise to 
 religious, educational, charitable, 'or benevolent uses as to render imprac- 
 ticable or impossible a literal compliance with the terms of such instrument, 
 the court may, upon the application of the trustee or of the person or cor- 
 poration having the custody of the property, and upon such notice as the 
 court shall direct, make an order directing that such gift, grant, bequest, 
 or devise, shall be administered or expended in such manner as in the judg- 
 ment of the court will most effectually accomplish the general purpose of 
 the instrument, without regard to and free from any specific restriction, 
 limitation, or direction contained therein; provided, however, that no such 
 order shall be made without the consent of the donor or grantor of the 
 property, if he be living. 
 
 " 3. The attorney-general shall represent the beneficiaries in all such 
 cases, and it shall be his duty to enforce such trusts by proper proceedings 
 in the courts." 
 
 The statute was amended, and put into its present form, by chapter 
 li4 of the laws of 1909. 
 
 Construing this statute liberally, in view of the mischiefs which it was 
 manifestly made to remedy, and with special reference to the purpose for 
 which by its title it is declared to have been enacted, — " to regulate gifts for 
 cJiaritahle purposes,'^ — the Court of Appeals has decided that it restored 
 to New York the former and English system of trusts for charity, with 
 their three distinctive characteristics, namely, that the purposes are for 
 public utility, — religious, educational, eleemosynary, or governmental, — 
 they may continue perpetually, and their beneficiaries must be indefinite. 
 Allen V. Stevens, 161 N. Y. 122 ; Matter of Griffin, 167 N. Y. 71, 77. 
 And see Johnston v. Hughes, 187 N. Y. 446 ; Dammert v. Osborn, 140 
 N. Y. 30, 48. But a trust to accumulate income for a charity is still invalid. 
 St. John V. Andrews Institute, 191 N. Y. 254, 278; pp. 492, 498, supra. It 
 is believed, also, as heretofore stated (§ 346, supra), that this statute 
 authorizes greater indefiniteness in the beneficiaries than is permitted by 
 the unaided rules of equity. For, by those rules alone, a gift would be 
 invalid if made for general, unidentified, charitable purposes, without the 
 appointment of any trustee to select the specific class of beneficiaries. 
 § 346, supra, and authorities there cited. But, by virtue of this statute, 
 it would seem clearly to be the duty of the Attorney-General in such a 
 case to apply to the Supreme Court for the appointment of a trustee, and 
 the duty of the court then to appoint a trustee and order him to select the 
 charity and apply to its use the donated property. Looking at the diffi- 
 culties which gave rise to the statute, and in particular at the defect in the 
 Tilden Will, this seems to be a logical, if not a necessary, conclusion. But 
 this point remaius to be definitely settled by the court of last resort. 
 
EQUITABLE ESTATES. — EXPRESS TEUST8. 503 
 
 Rothschild v. Schiff, 188 N". Y. 327, 331; Matter of Shattuck, 198 N. Y, 
 446 ; p. 486, supra. See Dammerfc v. Osborn, 140 N. Y. 30, 43, 141 N. Y. 
 564; Allen v. Stevens, 161 N. Y. 122 ; Matter of Griffin, 167 N. Y. 71, 
 77 ; People v. Powers, 147 N. Y. 104 ; Butler v. Trustees, 92 Hun, 96, 101. 
 Before this statute took effect, it was also settled that a gift to or for an 
 unincorporated charitable association could not be sustained, either as a 
 trust 01- a power. But it is quite clear that, while the law of New York, 
 differing from that of many other states, is still that Jlie legal estate can 
 not be validly given to an unincorporated institution, in trust or otherwise 
 (Mount i>. Tattle, 183 N. Y. 358; Fralick u. Lyford, 107 App. Div. 543, 
 afl'd 187 N. Y. 524; Catt v. Catt, 118 App. Div. 742. Contra, American 
 Bible Society v. American Tract Society, 62 N. J. Eq. 219; MaoKenzie v. 
 Trustees of Presbytery of Jersey City, 67 N. J. E,q. 652, 677, 685; Yard's 
 Appeal, 64 Pa. St. 98. See Rine v. Wagner, 135 Iowa, 626 ; Guild v. Allen, 
 28 R. I. 430) ; yet, as to donations in trust for unincorporated institutions, 
 this difficulty was removed by ch. 701, L. 1893, and they may now be 
 beneficiaries of such gifts. Murray ;;. Miller, 178 N. Y. 316, 321 ; Down- 
 ing y. Marshall, 23 N. Y. 366; Shipman v. Rollins, 98 N. Y. 311, 326, 327; 
 White V. Howard, 46 N. Y. 144;' Vander Volgen v. Yates, 3 Barb. Ch. 242, 
 9 N. Y. 219 ; Congregational Unitarian Soc. v. Hale, 29 N. Y. App. Div. 
 396. 
 
 For the restrictions as to the amount of property which a testator may 
 give to charity by will, see § 344, note (a), supra. 
 
b. IMPLIED TRUSTS. 
 
 CHAPTER XXII. 
 (a) RESULTING TRUSTS. 
 
 § 351. Nature and classification 
 of implied trusts. 
 
 § 352. Resulting trusts. Groups. 
 
 a. Trusts resulting from Payment of 
 Purchase Money. 
 
 § 353. Reasons for and requi- 
 sites of such trusts. 
 
 § 354. Purchase money paid as 
 such. 
 
 § 355. Trust must result when 
 purchase money is paid. 
 
 § 356. All or aliquot part of pur- 
 chase price must be paid. 
 
 § 357. Proof of such trusts. 
 
 § 358. Title taken in name of 
 child or wife. 
 
 § 359. Circumstances which may 
 rebut these ordinary presumptions. 
 
 § 360. Statutory abolition of this 
 resulting trust. 
 
 /3. Following Trust Funds. 
 
 § 361. Trusts resulting from pur- 
 chase of property with trust funds. 
 
 § 362. Property held in fiduciary 
 capacity. 
 
 § 363. Property traced and iden- 
 tified. 
 
 § 364. Rights of innocent pur- 
 chasers for value. 
 
 y. Trusts resulting from Failure of 
 Declaration or Object. 
 
 § 365. Essentials and evidence of 
 such trusts. 
 
 §366. Effects of residuary 
 clauses in wills. 
 
 § 367. Gifts for charity not apt 
 to cause such resulting trusts. 
 
 § 368. General gift, or gift for 
 specific purpose, as causing such a 
 trust. 
 
 8. Trusts resulting from Conveyances 
 not expressing any Consideration 
 or Use. 
 
 § 369. Reasons for such trusts. 
 
 § 370. They arose only from ab- 
 solute common-law conveyances. 
 
 §371. Such trusts not now 
 favored. 
 
 § 372. Execution of resulting 
 trusts. 
 
 § 351. Nature and Classification of Implied Trusts. — Trusts 
 which arise by implication of law are expressly excepted from 
 the operation of the statutes of frauds of England ^ and the 
 various states of this country. ^ They are raised and carried 
 into effect, when they are necessary to the production of the 
 
 1 Stat. 29 Car. II. ch. 3, § 8. eh. 52), § 242 
 
 " N. T. Real Prop. Law (L. 1909, § 1710. 
 
 Stim. Amer. Stat. Ii< 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 505 
 
 best and most equitable results for the interested parties ; and, 
 therefore, no requirement as to written proof is allowed to 
 stand in the way of their establishment and operation. ^ In 
 some instances, trusts are implied bj equity for the purpose 
 of affording a remedy to injured parties who have no redress 
 at law; they are implied in other cases, in order to produce 
 better interests and remedies than the law courts can give. 
 They are always the outcome of the courts' endeavor to work 
 out the most complete justice. But under some circumstances, 
 as, for example, where relief is asked for on the ground of 
 fraud, this result is sought to be produced without regard to 
 what the parties to the transaction may have had in mind at 
 the time ; while under other circumstances, of which an at- 
 tempted trust not completely expressed by the instrument is 
 an illustration, the effort of the court is to work out the pre- 
 sumed intention of the parties. In the former class of cases, 
 the trusts are called constructive; in the latter resulting, or 
 &0'aiQ\i\m&& presumptive. The division, however, of all implied 
 trusts into these two classes — resulting and constructive — is 
 chiefly for convenience in investigation and discussion. 
 Courts and statute makers do not always observe closely 
 the distinction between them, which is here pointed out.^ 
 When a trust of either form is found to exist, the ordinary 
 remedy for the cestui que trust is a conveyance of the property 
 to himself from the trustee, or a judgment or decree of the 
 court vesting the legal estate in him, or declaring it to be so 
 vested without any conveyance. And it is the remedy or 
 redress with which the parties, courts and law-makers alike 
 are chiefly concerned. Therefore, trusts which arise from 
 fraud or unfair dealing are sometimes spoken of as result- 
 ing; and the expression, "constructive trusts," is now and 
 then used to include trusts which " result " according to the 
 intention of the parties. But the division here made is the 
 ordinary and logical one; and it affords the best basis for 
 the examination of all the implied trusts. The order in 
 which the two classes will be discussed is, (a) Resulting 
 trusts, in this chapter, and (b) Constructive trusts, in the 
 next. 
 
 1 1 Perry on Trusts, §§ 85, 86, 124, 1S4 Mass. 491 ; Barnes v. Thuet, 116 
 and notes, Iowa, 359 ; Preston v. Preston, 202 Pa. 
 
 2 1 Perry on Trusts, § 124 ; Albright St. 515 ; N. 1 . Keal Prop. Law (L. 1909, 
 V. Oyster, 140 U. S. 493; Dana v. Dana, ch. 52), ? 94. 
 
506 ESTATES IN REAL PEOPEETT. 
 
 § 352. Resulting Trusts — Groups. — All the forms of re- 
 sulting trusts may be conveniently discussed under, four 
 headings or groups, namely: a. Where the purchase price 
 of property is paid by one person, but the title is taken in 
 the name of another; /3. Where the holder of trust funds 
 buys property with them and takes title in his own name, with- 
 out expressing any trust — following trust funds; 7. Where 
 a conveyance is made in trust, but the trusts are not de- 
 clared, or are not wholly declared, or wholly or partly fail; 
 S. Where a transfer of property is made without consider- 
 ation and without expressing any use or purpose for which 
 the grantee or donee is to take. It will appear in the dis- 
 cussion that the second of these groups is, in reality, a 
 subdivision of the first. But it also has some important dis- 
 tinctive features, which entitle it to be treated separately. ^ 
 
 Resulting trusts are the modern outgrowth of the ancient 
 resulting uses, through the Statute of Uses and its construc- 
 tions. The same general principles which gave rise to and 
 governed resulting uses have raised and regulated resulting 
 trusts. It will, therefore, conduce to brevity and clearness 
 to discuss both of those equitable estates together, for they 
 are in all essential features the same, and to point out in 
 passing any of the ways in which they have differed. And 
 it will be observed that it is only in treating of the last, or 
 fourth, group of resulting trusts that any such differences will 
 have to be noted. 
 
 a. Trusts resulting from Payment of Purchase Money. 
 
 § 353. Reason for and Requisites of such Trusts. — Equity 
 presumes, in the absence of proof to the contrary, that he who 
 pays for property intends to become its owner. ^ Therefore, 
 when A pays the purchase price of a lot of land, and the title 
 is taken in the name of B, or of B and C either jointly or 
 successively, the land is ordinarily held by him or them in 
 
 1 Some writers make more classes of called, are embraced within the four 
 
 resulting trusts, some less. Thus, in groups here described. See Bispham's 
 
 Lloyd V. Spillett, 2 Atk. 148, 150, Lord Priu. Eq. § 79. 
 
 Hardwicke placed them in not more than ^ 2 Story's Eq. Jur. § 1201; Bostle- 
 three groups. Mr. I'erry makes five man v. Bostleman, 24 N. J. Eq. 103. 
 classes. 1 Perry on Trusts, § 125. And "And this rule," says Mr. Perry, "is 
 in 2 Lomax, Dig. 200, no less than thir- vindicated by the experience of man- 
 teen divisions are attempted. But all kind." 1 Perry on Trusts, § 126. 
 forms of resulting trusts, properly so 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 507 
 
 trust for A.^ This is implied from the acts of the parties, 
 and illustrates the most prominent form of resulting trusts. 
 The requisites to its existence are that the whole, or some 
 aliquot part, of the purchase money shall be paid, as such,"^ at 
 or before the time of the purchase, or as a part of the same 
 transaction, by one who does not take the legal estate; as 
 a general rule, that he who so pays shall nob be the husband 
 or father of the one who takes the legal title, and that no 
 other circumstances shall indicate an intention on the part 
 of the purchaser to make ^ gift of the property to the other 
 party. Where these essentials coexist, a trust will be im- 
 plied in any jurisdiction, except in a few states, such as New 
 York, Michigan, and Wisconsin, where this particular form 
 of resulting trust has been abolished by statute.^ Each of 
 these requisites requires a brief explanation. 
 
 § 3o4. The Purchase Money must be paid, as such. — It 
 must be shown that his funds, in whose favor such a trust 
 is claimed, were employed as such in the purchase.* Ac- 
 cordingly, if one hand money or other funds to his agent with 
 instructions to purchase real property, and the agent buy land 
 therewith, taking title in his own name, a trust results in 
 favor of the principal.^ But when an agent, who is employed 
 to purchase realty, not only takes the conveyance in his own 
 name, but also pays the purchase price out of his own funds, 
 whether the principal has advanced money to the agent for 
 that purpose or not, no trust results in favor of the latter.® 
 
 1 Dyer v. Dyer, 2 Cox, 92; 1 Lead. 117 Pa. St. 183, 192: Fox v. Peoples, 
 Cas. Eq. (4th Eng. ed.) 203, which is 201 Pa. St. 9; Jacksonville Nat. Bk. v. 
 the leading case; Sayre o. Townsend, Beesley, 1.^9 III. 120; Eurber v. Page, 
 15 Wend. (N. Y.) 647 ; Boyd v. McLean, 143 III. 622. 
 
 1 Johns. Ch. (N. Y.) 582; Kendall o. ^ Church v. Sterling, 16 Conn. 388; 
 
 Mann, 11 Allen (Mass.), 15; Beringer Robb's Appeal, 41 Pa. St. 45; Frank's 
 
 p.Lutz, 188 Pa. St. 364; Bickel's Appeal, Appeal, 59 Pa. St. 190, 194; Sanfoss v. 
 
 86Pa. St. 204; Stratton w. Dialogue, 14 Jones, 35 Gal. 481; Malloy v. Malloy, 
 
 N. J. Eq. 70; Cecil Bank v. Snivcly, 23 5 Bush (Ky.), 464. 
 
 Md. 253, 261 ; Moss v. Moss, 95 111. 449 ; ^ Bartlett v. Pickersgill, 1 Eden, 
 
 Carter u. Challen, 83 Ala. 135; O'Connor 515; James r. Smith (1891), 1 Ch. 
 
 V. Irvine, 74 Cal. 435 ; 1 Perry on Trusts, 384 ; Whiting v. Dyer, 21 R. I. 85 ; 
 
 § 126, and cases cited ; 2 Story's Eq. Levy v. Brush, 45 N. Y. 589 ; Fox 
 
 Jnr, §1201; Bispham's Prin. Eq. §80; v. Peoples, 201 Pa. St. 9 ; 1 Perry 
 
 89 Law Times, 1 52. on Trusts, § 135; Hill on Trustees, 
 
 2 See following notes, to the discus- 96 ; Sugden, V. & P. 703. But there 
 sion of each of these requisites. are a few decisions in which the op- 
 
 ' See § 360, infra. posite view has been taken upon this 
 
 * Botsford V. Burr, 2 Johns. Ch. particular point. See FoUansbe v. Kil- 
 
 (N. Y.) 405, 408; Kinimel v. Smith, breth, 17 111. 522; Chastain v. Smith, 
 
508 
 
 ESTATES IN REAL PROPERTY. 
 
 So, when the owner of the money advances it as a loan to the 
 other party, and does not deal with it as his own purchase 
 money, no resulting trust can arise.^ If in instances like 
 those last mentioned any trust at all exist, it must arise as 
 an express trust from the agreement of the parties ; and must, 
 therefore, be manifested and proved in writing as required 
 by the Statute of Frauds.^ 
 
 • § 355. Trust must result when Purchase is made. — Such 
 a resulting trust must arise, if at all, at the time when the 
 purchase is made; and all of the consideration, upon the 
 payment of which it is sought to be based, must have been 
 advanced or secured at or before the time of such purchase.* 
 A payment made after the conveyance, and as a distinct trans- 
 action, can not impliedly raise a trust. A purchaser's interest 
 in real property, having once vested absolutely and free from 
 any trust, can not be cut down, and he can not be placed in a 
 fiduciary position in regard to it, merely by the subsequent 
 payment of value to him.* 
 
 30 Ga. 96 ; Hidden v. Jordan, 21 Cal. 
 92; Vallette v. Tedens, 122 111. 607; 
 Bryan v. McNanghton, 38 Kan. 98. 
 
 1 Bartlett ;■. Pickersgill, 1 Eden, 515, 
 1 Cox, 15; Crop v. Norton, 9 Mod. 
 233; Aveling v. Knipe, 19 Ves. 441, 
 445 ; White v. Carpenter, 2 Paige 
 (N. Y.), 217 ; Wheeler v. Kirtland, 23 
 N. J. Eq. 13, 22; Kegerreis d. Lutz, 187 
 Pa. St. 252 ; Jacksonville Bank v. 
 Beesley, 159 111. 120, 125; Milliken v. 
 Ham, 36 Ind. 166 ; Beecher v. Wilson 
 & Co., 84 Va. 813 ; Hodges v. Verner, 
 100 Ala. 612; Gibson u. Toole, 40 
 Miss. 788. " On the other hand, if one 
 should advance the purchase money 
 and take the title to himself, but should 
 do this wholly on the account and 
 credit of the other, he would hold the 
 estate upon a resulting trust for the 
 other. And if partly on the account 
 and credit of another, he would hold as 
 trustee pro tanto." 1 Perry on Trusts, 
 & 133 and cases cited, especially Ave- 
 ling i-. Knipe, 19 Ves, 441 ; Lounsbury 
 V. Purdy, 18 N. Y. 515; Marvin v. 
 Brooks, 94 N. Y. 71. But where a pur- 
 chase is made on the credit of two per- 
 sons, and the money is paid by only 
 one of them, there is no resulting trust. 
 
 Brooks V. Fowle, 14 N. H. 248 ; Walsh 
 11. McBride, 72 Md. 45. See Butler v. 
 Rutledge, 2 Cold. (Tenn.) 4. 
 
 2 Gibson w. Foote, 40 Irtiss. 788, 792 ; 
 Kingsbury v. Buruside, 58 111. 310, 328 ; 
 Farnham v. Clements, 51 Me. 426 ; 
 Dyer v. Dyer, 1 Lead. Caa. Eq. pp. 
 « 203, « 216. But see Harrold v. Lane, 
 53 Pa. St. 268; Hall o. Congdon, 56 
 N. H. 279 ; Brotherton v. Weathersby, 
 
 73 Tex. 471; Robbins v. Kimball, 55 
 Ark. 414. 
 
 8 Dusie V. Ford, 138 U. S. 587, 592 ; 
 Ryder v. Loomia, 161 Mass. 161 ; 
 Champlin u. Champlin, 136 111. 309 ; 
 Osgood V. Eaton ; 62 N. H. 512 ; Collins 
 V. Carson, 30 Atl. Rep. (N. J. Eq.J 862 ; 
 Levy V. Evans, 57 Fed. Rep. 677 ; Coons 
 V. Coons, 106 Va. 572 ; Moore v. Moore, 
 
 74 Miss. 59 ; 1 Perry on Trusts, § 133. 
 
 * Cases cited in last note. But if the 
 note of the purchaser be agreed on when 
 the deed passes, and be delivered the 
 next day, or soon after, under such cir- 
 cumstances that it can be treated as a 
 part of the transaction of purchasing the 
 land, it will be sufficient to raise a re- 
 sulting trust. See Kline v. McDonnell, 
 62Hun(N..Y.), 177. 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 509 
 
 § 356. All, or Aliquot Part, of Purchase Price must be paid. 
 — Again, the payment must be of the whole or some definite 
 or aliquot part of the purchase price. And it must be paid 
 as the price of the whole or of that particular part of the 
 property purchased. ^ In a number of cases, the courts have 
 declared that no trust will result from the payment of pur- 
 chase money, unless the entire price is advanced by him who 
 claims to be cestui que trust.^ But it seems to be clear that 
 this means the entire price of that which he means to pur- 
 chase, whether it be a whole tract of land or a distinctly 
 specified but undivided portion of such tract. ^ Thus, if A 
 pay $10,000 as the entire consideration for an acre of land 
 which is deeded to B, and $5,000 as the entire consideration 
 for one-half of another acre which is deeded to C upon his 
 paying $5,000 for the other half, B takes the one acre wholly 
 in trust for A, and C holds an undivided one-half of the other 
 acre in trust for A.* But if A hand to B $5,000 with which 
 to purchase for A a lot of land, whether specified or not, and 
 B purchase the land for $10,000, or any amount over $5,000, 
 paying the additional consideration out of his own funds, 
 then, according to the great weight of authority, no trust 
 arises in favor of A.^ In the case last supposed, A may have 
 a lien on the land for the $5,000 of his money which went 
 into the purchase price ;^ but, since that sum was not advanced 
 for the aliquot part of the land which it purchased, he is not 
 a cestui gue trust of any portion of the land. But in Pennsyl- 
 vania, and possibly a few other jurisdictions, a trust may 
 result in favor of any one whose funds pay for any aliquot 
 
 1 Sayre v. Townsend, 15 Wend. ing notes. Also McGo wan u. McGowan, 
 (N. Y.) 647; Burke v. Callanan, 160 14 Gray (Mass.), 119; Buck w. Warren, 
 Mass. 195; Baker v. Vining, 30 Me. 14 Gray (Mass.), 122; Cutler w. Tuttle, 
 121,127; Dudley «. Bachelder, 53 Me. 19 N. 3. Eq. 549, 561; 1 Perry on 
 40.3; O'Donnell v. White, 18 R. I. 659 ; Trusts, § 132. 
 
 Wheeler v. Kirtland, 23 N.J. Eq. 13; * Cases cited in last three preceding 
 
 22 ; Reed v. Reed, 135 111. 482 ; Stephen- notes. 
 
 son V. McClintock, 141 111. 604; Key- ^ Schierloh u. Schierloh, 148 N. Y. 
 
 nolds V. Morris, 17 Ohio St. 510 ; Olcott 103 ; Dudley v. Dudley, 176 Mass. 34 ; 
 
 f. Bynum, 17 Wall. (U. S.) 44; Allen w. 1 Perry on Trusts, § 132, and cases 
 
 Caylor, 120 Ala. 251. cited. 
 
 2 Dudley v. Dudley, 176 Mass. 34; ' Leary v. Corvin, 181 N. Y. 222, 
 Schierloh v. Schierloh, 148 N. Y. 103; 229; Schierloh v. Schierloh, 148 N. Y. 
 Bryants. Allen, 54 N.Y.App.Dir. 500; 103; Bryant v. Allen, 54 N. Y. App. 
 Stambaugh w. Lung, 232 111. 373 ; Cole- Div. 500; Coleman v. Parran, 43 W. 
 man v. Parran, 43 W. Va. 737. See Va. 737; Woodside v. Hewell, 109 Cal. 
 Woodside t- Hewell, 109 Cal. 481. 481. 
 
 '' See cases cited in last two preced- 
 
510 
 
 ESTATES IN REAL PROPERTT. 
 
 part of land, although they were not advanced for that part, 
 or were used without his knowledge or consent.^ 
 
 It follows, from. the principles already explained, that, 
 when the purchase money is ratably contributed by several, 
 and the title taken in the name of one of them, or to a stranger, 
 a trust results to them in proportion to the amount advanced 
 by each. 2 And in some cases, where there was no clear proof 
 of how much was paid by each, it has been presumed that 
 their contributions were equal. ^ So, if the payment be made 
 by one, or ratably by two or more, and the title be taken by 
 them and others, or entirely by others who pay nothing, trusts 
 result proportionately for those who make the payments.* 
 
 § 357. Proof of Such Trusts. — Trusts of this character may 
 be established by any kind of competent evidence, oral or 
 written.^ But the requisities here explained must be clearly 
 proved as facts, or no such presumption will bo indulged. 
 When the evidence is conflicting or uncertain, no trust will 
 be declared.^ Therefore, while parol evidence, is admissible 
 even against the answer in chancery of the nominal pur- 
 
 1 Beringer v. Lntz, 188 Pa. St. 364 ; 
 Kennedy v. McCloskey, 170 Pa. St. .534. 
 And see Rouchefoucauld o. Boustead 
 (1897), 1 Ch. 196, 206, which partly 
 overrules Bartlett v. Pickersgill, 1 
 Eden, 515; Price v. Eeeves, 38 Cal. 
 457 ; Sanfoss v. Jones, 35 Cal. 481 ; 
 Malloy V. Malloy, 5 Bush (Ky.), 464. 
 
 2 Botsford 0. Burr, 2 Johns. Ch. 
 (N. Y.) 405, 410; Union College u. 
 Wheeler, 59 Barb. (N. Y.) 585; War- 
 ren V. Tynan, 54 N. J. Eq. 402 ; Morey 
 V. Herrick, 18 Pa. St. 123, 129 ; 
 Kelly V. Kelly, 126 111. 550; Hughes v. 
 White, 117 Ind. 470; Case v. Cod- 
 ding, 38 Cal. 191, 193 ; Fulton «. Jansen, 
 99 Cal. 587 ; 1 Perry on Trusts, § 132 ; 
 Hill on Trustees, 149. But Lord Hard- 
 wicke thought that probably the appli- 
 cation of the rule wits restricted to a 
 single purchaser. Crop r. Norton, 9 
 Moil. 233. And such were the deci- 
 sions of a few early cases .See Bernard 
 r. Bougard, Harr, Ch. (Mich.) 130, 143; 
 Coppaf,'e V. Barnett, Hi Miss. 621. 
 
 2 Shoemaker r. Smith, 1 1 Humph. 
 (Tenn.) 81 ; Edwards v. Edwards, 39 
 Pa. St. 369, 386. 
 
 ^ Bigden v. Walker, 3 Atk. 731, 735 ; 
 
 Botsford V. Burr, 2 Johns. Ch. (N. Y.) 
 405 ; Quackenbush v. Leonard, 9 Paige 
 (N. Y.), 334; Jackson v. Moore, 6 Cow. 
 (N. Y.) 706 ; Buck v. Swazey, 35 Me. 41 ; 
 Purdy V. Purdy, 3 Md. Ch. 547 ; Hall y. 
 Young, 37 N. H. 134; Clark v. Clark, 
 43 Vt. 685 ; Case v. Codding, 38 Cal. 
 191. 
 
 ^ Such trusts are expressly excepted 
 out of the Statute of Frauds, 29 Car. IL 
 ch. 3, § 8. It is clear that this was sim- 
 ply in affirmance of the general law; 
 and, since the statutes of frauds of our 
 states do not include implied trusts, 
 they may be established by parol. See 
 Judge Story's opinion in Hoxie v. Carr, 
 1 Sumn. (U. S. Cir. Ct.) 173, 187; Mc- 
 Guire v. Ramsey, 4 Eng. (Ark.) 518, 525. 
 
 « Oyster u. Albright, 140 U. S. 493, 
 515; Howland w. Blake, 97 U. S. 624; 
 Boyd V. McLean, I Johns. Ch. (N. Y.) 
 582 ; Beringer v. Lutz, 1 79 Pa. St. 1 ; 
 Martin v. Baird, 175 Pa. St. 540 ; Baker 
 ?•. Vining, 30 Me. 121, 127; McGinnisu. 
 Jacobs, 147 111. 24; Jacksonville Nat. 
 Bk. I'. Beesley, 159 111. 120; Pillars «. 
 McConnell, 141 Ind 670; Keedr. Pain- 
 ter, 129 Mo. 674 ; Woodside v. Hewell, 
 109 Cal. 481 ; 1 Perry on Trusts, § 137. 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 511 
 
 chaser, or against the express statements of the deed to 
 him, the testimony to raise a trust against him in such a 
 case must be very clear and strong. ^ The presumption that 
 the parties intended a trust to arise from the payment of pur- 
 chase money is always rebuttable ; and circumstances which 
 show that such was not their intention may also be established 
 by oral testimony as well as by written evidence.^ Some of 
 the most important of such circumstances remain to be 
 discussed. 
 
 § 358. Title taken in Name of Child or Wife. — When the 
 one who pays the purchase price is the husband or father of 
 the nominal purchaser, or stands in loco parentis to him, 
 equity presumes that the payment is a gift to the wife, or 
 an advancement to the child, as the case may be ; and 
 therefore no trust ordinarily results from such a transaction.^ 
 The relation between the parties precludes the presumption 
 of a resulting trust, because it is a fair and proper inference 
 that the husband or person standing in the position of parent 
 intends by his purchase to perform the legal or moral 
 obligation of support and maintenance which arises from 
 the relationship.* This clear exception to the general rule 
 as to resulting trusts thus arises from and rests upon the 
 obligation of husband or parent. Therefore, the general rule, 
 and not the exception, applies when one brother, for ex- 
 ample, pays for property conveyed to another; and a re- 
 sulting trust arises,* unless circumstances are proved to have 
 placed him who so pays the consideration in substantially 
 the position of a parent to his brother.* So, if the father 
 
 1 Boyd V. McLean, 1 Johns. Ch. u. Howell, 180 Pa. St. 315; Hallenback 
 
 (N. Y.) 582 ; Page v. Page, 8 N. H. 187 ; v. Rogers, 57 N. J. Eq. 199; Wolters v. 
 
 Moore v. Moore, 38 N. H. 382 ; Byers Shraft, 69 N. J. Eq. 215; Doyle v. 
 
 V. Feruer, 216 Pa. St. 233; Pinney v. Sleeper, 1 Dana (Ky.), 531, 536; Oli- 
 
 PeUows, 15 Vt. 525; Peabody v. Tar- pant w. Lerersidge, 142 111. 160; 1 Perry 
 
 bell, 2 Cnsh. (Mass.) 226, 232 ; Neyland on Trusts, §§ 143-149 ; Bispham's Prin. 
 
 t>. Benby, 69 Tex. 711. Eq. § 84; Hill on Trustees, 97. But 
 
 ^ Zimmerman v. Barber, 1 76 Pa. St. where an insane parent paid, the child, 
 
 1; Swinburne v. Swinburne, 28 N. Y. 568 ; taking the title, held in trust. Couch v. 
 
 Blodget V. Hildreth, 103 Mass. 484, 487; Harp, 201 Mo. 457. 
 Bush V. Stanley, 122 111. 406 ; Salisbury * Dyer v. Dyer, 2 Oox, 92 ; Long v. 
 
 V. Clarke, f 1 Vt. 453 ; Kline v. Ragland, King, 1 1 7 Ala. 423 ; Smithsonian Insti- 
 
 47 Ark. Ill ; Bispham's Prin. Eq. § 83. tution v. Meech, 169 U. S. 398 ; Walston 
 
 ' Murless v. Franklin, 1 Swanst. 13, v. Smith, 70 Vt. 19. 
 17; Grey w. Grey, 2 Swanst. 594, 597; ^ Maddison v. Andrews, I Ves. Sr. 
 
 Christy f. Courtenay, 13 Bear. 96 ; Page 57 ; Edwards v. Edwards, 39 Pa. St. 369; 
 
 V. Page, 8 N. H. 187; Partridge v. Hudsbn y. Wright, 204 Mo. 412. 
 Havens, 10 Paige (N. Y.), 618 ; Kern ^ Boswortb v. Hopkins, 85 Wis. 50. 
 
512 ESTATES IN REAL PEOPEBTY; 
 
 be living and able to support the child, a trust will result in 
 favor of the mother who pays for property bought in the 
 child's name. But when the father is dead, or for any 
 other reason the support of the child has devolved upon 
 the mother, her purchase of land for him is presumed to be 
 an advancement. 1 By the weight of authority, also, a pur- 
 chase in the name of an illegitimate child is prima facie an 
 advancement, and raises no trust. ^ And the prevailing view 
 is now in favor of the same conclusion, when realty is bought 
 by a parent in the joint names of himself and a child or 
 children.^ 
 
 § 359. Circumstances Tvhich may rebut these Ordinary Pre- 
 sumptions. — Tlie relationships of husband and wife and parent 
 and child supply most of the cases in which trusts do not arise 
 from the purchase of property by one person in the name of 
 another ; and such cases are commonly said to make the ex- 
 ception to the general rule. But it must be remembered that 
 all resulting trusts rest upon rebuttable presumption, and that 
 therefore other circumstances may frequently be proved to 
 show that no trust should exist. When, for example, the con- 
 veyance is made to some one other than the real purchaser in 
 order to hinder creditors, or, to defeat their rights, or for any 
 other illegal or unfair purpose, equity will decline to enforce 
 for the wrong-doer the trust which would otherwise exist.^ 
 And when the parties expressly stipulate that the payment is 
 a gift to the nominal purchaser,^ or a lokn to him ; ^ or a differ- 
 erent trust is expressly declared in writing,' or it is agreed 
 
 1 Currant v. Jago, 1 Coll. C. C. 261, 3 Ind. 558 ; Batstone v. Salter, L. K. 10 
 
 263 ; Lamplugh «. Lamplugh, 1 P. Wms. Ch. App. 431 . 
 
 Ill ; Jackson u. Feller, 2 Wend. (N. Y.) < Proseus v. Mclntyre, 5 Barb. 
 
 465 ; Robert's Appeal, 85 Pa. St. 84. (N. Y.) 424, 425 ; Ford v. Lewis, 10 
 
 '^ Beckford v. Beekford, Loft. 490; B. Men. (Ky.) 127; Sell v. West, 125 
 
 Soar V. Foster, 4 Kay & J. 152 ; Kimrael Mo. 621 ; Hubbard w. Goodwin, 3 Leigh 
 
 1-. McRight, 2 Barr (Pa.), 38. But not (Va.), 492; Zundell v. Gess, 73 Tex. 
 
 to the illegitimate child of a legitimate 144 ; Culler v. Tuttle, 19 N. J. Eq. 549, 
 
 child. Tucker v. Burrow, 2 Hem. & M. 562. 
 
 515, 525. 6 Groves v. Groves, 3 Y. & J. 163, 
 
 8 Grey v. Grey, 2 Swanst. 594, 599 ; 172 ; Hunt ". .Moore, 6 Cush. (Mass.) 1 ; 
 
 Williams v. Williams, 32 Beav. 370; Robles u. Clark, 25 Cat. 317; Zimmer- 
 
 Kingdon v. Bridges, 2 Vern. 67. See man v. Barber, 176 Pa. St. 1 ; Ward v. 
 
 also, as to other relationships, where Ward, 59 Conn. 188; Morris y. Clare, 
 
 one nevertheless has stood in loroparen- 132 Mo. 232, 236. 
 
 tis to the other, P^branrt >,'. Dancer, " See § 354, suprn. 
 
 1 Cas in Chan. 26; Richardson ,}. 7 Anstice w. Brown, 6 Pm}.;e (N. Y.), 
 
 Seevers, 84 Va. 259 ; Baker v. Leathers, 448 ; Clark v. Burnham, 2 Story (U. S. 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 513 
 
 that 'he shall receive from the property something inconsistent 
 with a trust,^ the court will of course refuse to raise any trust 
 by implication .2 
 
 Similarly, the presumption of an advancement or a gift to 
 wife or child may be readily overcome by clear evidence to 
 show the court that a trust should exist.^ Thus, a convey- • 
 ance to a wife for the purpose of defrauding creditors of the 
 husband, who pays the consideration, will raise a trust in favor 
 of those creditors.* Payment for property taken by a child 
 will not be an advancement, if it be understood that he shall 
 hold it for the parent who makes the payment.^ And where 
 a husband paid for land, which he caused to be conveyed to his 
 wife upon her agreeing orally that at her death she would 
 devise it to the Smithsonian Institution in Washington, it was 
 held after her death intestate, and upon clear proof of the facts, 
 that her heirs had the legal estate in the land in trust for 
 that institution.® 
 
 § 360. statutory Abolition of this Resulting Trust. — In a few 
 of the United States, where express trusts are much curtailed 
 by statute, the perfecting of the general legislative scheme has 
 required the abolition of the form of resulting trust now under 
 consideration. For where, as for example in New York, a 
 passive express trust in real property is no longer permitted, 
 the policy of the statute could otherwise be evaded by having no 
 trust whatever declared by the parties, but letting equity raise a 
 resulting trust (which is passive in its nature) upon the purchase 
 price being paid by the intended cestui que trust and the con- 
 veyance being taken in the name of the intended trustee. 
 Hence this form of trust, as a secret resulting trust, has been 
 
 Cir. Ct.), 1 ; Alexander v. Warrauce, 17 Va. 352 | 1 Perry on Trusts, §§ 145-147 ; 
 
 Mo. 228, 230. Bispham's Prin. Eq. § 84. 
 
 1 Dow V. Jewell, 21 N. H. 470. * Belford v. Crane, 16 N. J. Eq. 265 ; 
 
 2 See also Willis v. Willis, 2 Atk. 71 ; Adams v. Collier, 122 U. S. 382, 391 ; 
 Earrell v. Lloyd, 69 Pa. St. 239, 247 ; McCartney v. Bostwick, 32 N. Y. 53 ; 
 Salisbury v. Clarke, 61 Vt. 453 ; Bush Pierce v. Hower, 142 Ind. 626 ; Cleghorn 
 V. Stanley, 122 111. 406 ; Kline v. Rag- v. Oberualte, 53 Neb. 687 ; Smith v. 
 land, 47 Ark. Ill; 1 Perry on Trusts, Willard, 174 111. 538; 1 Perry on 
 § 140. Trusts, § 149. 
 
 ' Dyer v. Dyer, 2 Cox, 92 ; In re ^ Devoy v. Devoy, 3 Sm. & Gif. 403 ; 
 
 Whitehouse, L. R. 37 Ch. Div. 683, Stone v. Stone, 3 Jur. (n. s.) 708. 
 685 ; Jackson v. Matsdorf, 1 1 Johns. ^ Smithsonian Institution v. Meech, 
 
 (N. Y.) 91 ; Jaquith v. Mass. Bap. Con- 169 U. S. 398 ; Jaquith v. Mass. Bap, 
 
 vention, 172 Mass. 439; Shepherds. Convention, 1 72 Mass. 439 ; Hollenback 
 
 White, 10 Tex. 72 ; Bruce v. Slemp, 82 v. Rogers, 57 N. J. Eq. 199. 
 
 33 
 
514 ESTATES IN EEAL PROPERTY. 
 
 done away with by the statutes of New York,^ (a) Massa- 
 chusetts,^ Michigan,^ Wisconsin,* Illinois,^ Kansas,^ In- 
 
 (a) This New York statute was originally 1 R. S. 728, §§ 51-53. With 
 the sentences somewhat transposed and altered, but without change of 
 meaning, it is now Real Property Law (L. 1909, ch. o2;, § 94, and reads 
 as follows : " A grant of real property for a valuable consideration, to one 
 person, the consideration being paid by another, is presumed fraudulent 
 as against the creditors, at that time, of the person paying the considerar 
 tion, and, unless a fraudulent intent is disproved, a trust results in favor 
 of such creditors, to an extent necessary to satisfy their just demands; 
 but the title yests in the grantee, and no use or trust results from the 
 payment to the person paying the consideration, or in his favor, unless 
 the grantee, either, 1. Takes the same as an absolute conveyance, in his 
 own name, without the consent or knowledge of the person paying the 
 consideration, or, 2. In violation of some trust, purchases the property so 
 conveyed with money or property belonging to another." 
 
 This statute saves the rights of creditors of the actual purchaser, and 
 compels him to be just before he is generous. It appears at first sight to 
 do away vvfith all possibility of a resulting trust for his benefit, except where 
 the purchase is made with his funds, in violation of some trust, or without 
 his consent or knowledge. But, whenever A takes title to land for which B 
 pays the consideration, and subsequently, in violation of the express or 
 tacit understanding between the parties at the time of the purchase, A at- 
 tempts to hold the property for his own benefit, or otherwise to ignore B's 
 moral rights, the courts, because of the attempted fraud, at once raise, 
 against A, a trust which is in reality constructive (growing as it does 
 out of fraud) and therefore not within the letter or spirit of the statute. 
 " It seerm to be a well-settled rule of law in this state," says Van Brunt, 
 P. J., " that, unless it appears that the person paying the consideration has 
 consented to an unconditional and absolute conveyance of the jsroperty to 
 another, without any recognition or intimation in respect to his rights, the 
 statute in question will not protect the attempted fraud; and it is further 
 held that no presumption can be indulged to support such a defence." 
 Church of St. Stanislaus v. Algemeine Verein, 31 App. Div. 133, affirmed 
 without opinion in 164 N. Y. 606. In that case, the plaintiff, a church 
 society which was not incorporated, took title to land in the name of the de- 
 fendant ; and after the church's incorporation demanded a conveyance to 
 itself. The defendant having refused to convey, the action was brought, 
 with the result that the conveyance was decreed. And, besides the 
 above-quoted statement, Presiding Justice Van Brunt facetiously remarked 
 that the statute was not intended to enable one church organization to de. 
 fraud another. In the earlier case of Jeremiah v. Pitcher, 26 App. Div. 
 402, affirmed without opinion in 163 N. Y. 574, a real estate dealer, desir- 
 
 1 N. T. L. 1909, ch. 52, § 94. Connolly v. Keating, 102 Mich. 1 ; Tif- 
 
 2 Foster v. Dnrant, 2 Gray (Mass.), fany v. Tiffany, 110 Mich. 219. 
 
 538; Glidewell v. Spaugh, 26 Ind. * Bosworth w. Hopkins, 85 Wis. 50; 
 
 319. Strong v. Gordon, 96 Wis. 476. 
 
 ' McCreary o. McCreary, 90 Mich. ' Pope v. Dapray, 176 111. 478. 
 
 478; Barnes v. Munro, 95 Mich. 612; « Qee v. Thrailkill, 45 Kau. 173. 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 615 
 
 diana,^ Minnesota,^ Kentucky,^ California,* and perhaps 
 some other states.^ But exceptions are expressly made bv 
 these statutes in favor of those who are creditors of the real 
 purchaser at the time of the purchase ; and also in favor of 
 such purchaser himself, when without his knowledge or consent 
 his funds are used in buying property in the name of the 
 nominal purchaser.^ The courts, moreover, generally restrict 
 the operation of such statutes to what would otherwise be 
 secret trusts, — to cases in which one person knowingly and 
 
 ing to trade in land free from the dower right of his wife, who was insane, 
 purchased it in the name of his daughter, who orally agreed to convey it to 
 him, or according to his directions, upon his demand. The plan was suc- 
 cessful in preventing any dower right from attaching to the property. 
 Phelps V. Phelps, 143 N. Y. 197. But, in the action brought to establish 
 a trust in his favor, it was held that the property was his and the daughter 
 could not hold it to the exclusion of him, the real purchaser. To the same 
 efiect are Smith v. Balcom, 24 App. Div. 437, 441; Schultze v. Mayor, 103 
 N. Y. 307, 311; Wood v. Rabe, 96 N. Y. 414; Fairchild v. Fairchild, 64 
 N. Y. 471 ; Bobbins v. Robbins, 89 N. Y. 251. Thus, while the primary 
 and original purpose of this section of the New York Statutes of Uses and 
 Trusts was to prevent the indirect creation and existence of what would be 
 in effect passive express trusts, the courts have thrown the safeguard of a 
 wise construction around it, and so prevent it from becoming an instru- 
 ment of fraud or injustice. But they follow the statute strictly, where it 
 appears that no injustice will be done. See Pagan v. McDonnell, 115 App. 
 Div. 89, aff'd 191 N. Y. 515; McCartney v. Titsworth, 119 App. Div. 547. 
 The courts also raise a trust, notwithstanding the statute, where it ap- 
 pears, from the instrument of conveyance, or from other clear and explicit 
 evidence, that such was the intention of the parties, — cases in which the 
 transaction is relieved from the effects of a secret trust. Woerz u. Rade- 
 macher, 120 X. Y. 62. See the text further, as to such statutes. Also 
 Schierloh v. Schierloh, 148 N. Y. 103; Bork v. Martin, 132 N. Y. 280; 
 Niver v. Crane, 98 N. Y. 40; Reitz v. Reitz, 80 N. Y. 538; Brown u. 
 Cherry, 57 N. Y. 645 ; Marvin v. Marvin, 53 N. Y. 607 ; Everett v. Everett, 
 48 N". Y. 218 ; Foote v. Bryant, 47 N. Y. 544, 548 ; McCartney v. Bostwick, 
 32 N. Y. 53 ; Siemon v. Schurck, 29 N. Y. 598 ; Lounsbury v. Purdy, 18 
 N. Y. 515; Gilbert v. Gilbert, 2 Abb. Ct. App. Dec. 256; McCahill v. 
 McCahill, 71 Hun, 221; Hubbard v. Gilbert, 25 Hun, 596; Sayre v. 
 Townsend, 15 Wend. 647, 649; Russell v. Allen, 10 Paige, 249; Tracy 
 i>. Tracy, 3 Bradf. 57. The rights of creditors of the real purchaser, 
 in such cases, are discussed in connection with constructive trusts, § 400, 
 infra. 
 
 1 Toney v. Wondling, 138 Ind. 228; * Smith v. Mason, 122 Cal. 426. 
 Glidewell ». Spaugh, 26 Ind. 319. ^ gee Graham v. Selbie, 8 S. D. 604 ; 
 
 2 Darfee v. Pavitt, 14 Minn. 424 ; Brock v. Brock, 90 Ala. 86 ; Ward y. 
 Haaren v. Hoass, 60 Minn. 313. Ward, 59 Conn. 188 ; Harris u. Dough- 
 
 " Martin v. Martin, 5 Bush ( Ky. ), 47 ; erty, 74 Tex. 1 . 
 Watt V. Watt, 39 S. W. Rep. (Ky.) 48. » See last preceding eleven notes. 
 
516 ESTATES IN REAL PROPERTY. 
 
 intentionally purchases property in the name of another, who 
 is guilty of no fraud, and who takes and holds the legal estate 
 in the manner intended by the parties.^ The letter of the 
 statute is not permitted to be used as an instrument of fraud.* 
 Thus, where such statutes exist, if A intentionally buy land 
 in the name of B, there is no dower or curtesy right in such 
 land for the wife or husband of A,^ and subsequent creditors 
 or purchasers of A can not reach it, because A has no estate 
 in it, either legal or equitable ; * but the creditors of A, who 
 are such at the time of A's purchase, may reach it in equity 
 as held by B in trust for the payment of their claims.^ But 
 if the purchase in B's name be intended for the benefit of a 
 partnership of which he is a member,® or if when he takes 
 the title B agree even orally to convey it to A, the real 
 purchaser, upon A's demand, the statute can not be invoked 
 to enable B to appropriate the property to his own use and 
 thus to defeat the rights of A, or those of the partnership, as 
 the case may be.^ In such cases, notwithstanding the letter 
 of the statute, the courts raise what is technically a construc- 
 tive trust (since it is implied regardless of B's intention), 
 and thus prevent the perpetration of a fraud. ^ Of course, in 
 states which have such statutes, all purchases by parents or 
 husbands in the names of wives or children come within the 
 general rule of the statutes, and do not have to be treated as 
 exceptions — the nominal purchasers are the actual owners. 
 
 1 McArthur v. Gordon, 126 N. Y. Super. Ct. 116; Linsley v. Sinclair, 24 
 597 ; Smith v. Balcom, 24 N. Y. App. Mich. 380. 
 
 Div. 437, 441; Gage v. Gage, 83 Hun * See the wording of the statutes 
 
 (N. Y.), 362; Bullenkamp v. BuUen- themselves. 
 
 iamp, 54 N. Y. Supp. 482; Pope v. " Fairchild v. Fairchild, 64 N. Y. 
 
 Dapray, 176 VI. 478, 484. 471. See Moore v. Williams, 55 N. Y. 
 
 2 Church of St. Stanislaus v. Alge- Super. Ct. 116; Greenwood v. Marvin, 
 meine Verein, 31 N. Y. App. Div. 133, 111 N. Y. 423; Traphagen v. Burt, 67 
 aff'd 164 N. Y. 606 ; Schultze j). Mayor, N. Y. 30; Chester v. Dickerson, 54 
 103 N. Y. 307, 311 ; Woerz v. Rade- N. Y. 1 ; Levy v. Brush, 45 N. Y. 589. 
 macher, 120 N. Y. 62 ; Wood v. Eabe, ' Church of St. Stanislaus v. Alge- 
 96 N. Y. 414; Bitter v. Jones, 28 Hun meine Verein, 31 N. Y. App. Div. 133, 
 (N. Y.), 492; Smith v. Balcom, 24 afC'd 164 N. Y. 606; Smith a. Balcom, 
 N. Y. App. Div. 437, 441 ; Jeremiah v. 24 N. Y. App. Div. 437 ; Jeremiah v. 
 Pitcher, 26 N. Y. App. Div. 402, aff'd Pitcher, 26 N. Y. App. Div. 402, aff'd 
 163 N. Y. 574; Pope v. Dapray, 176 163N. Y. 574; Wood w. Rabe, 96 N. Y. 
 111. 478, 484 ; Smith v. Mason, 122 Cal. 414, 425 ; Schultze v. Mayor, 103 N. Y. 
 426. 307,311. 
 
 ' Phelps V. Phelps, 143 N. Y. 197. » gee discussion of constructive 
 
 * Ibid. ; Moore v. Williams, 55 N. Y. trusts arising from fraud or attempted 
 
 fraud, § 395, infra. 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 617 
 
 /8. Following Trust Funds. 
 
 § 361. Trusts resulting from Purchase of Property with Trust 
 Funds. — The equitable principle, on which depends the kind 
 of resulting trust already discussed, is that he whose funds 
 pay the price should be the owner of the property purchased. 
 The second form of resulting trust rests upon the same prin- 
 ciple ; and is, in the last analysis, a subdivision of the first. 
 It is the class of cases in which a trustee, or other person 
 who holds funds in a fiduciary capacity, purchases property 
 with them and takes the title in his own name. The essence 
 of such a transaction is that the cestui que trust, the real owner 
 of the funds employed, pays the consideration for the prop- 
 erty, and the title is taken in the name of the other, the 
 fiduciary party. ^ The nominal purchaser is accordingly pre- 
 sumed to have intended to purchase the property for the benefit 
 of the trust estate ; and a trust results in favor of the real 
 purchaser, the owner of the purchase price. ^ Trust funds 
 may thus be followed into any property into which they have 
 been converted or invested by fiduciary holders.^ It is be- 
 cause of the importance of the doctrine of "following trust 
 funds " that this second group of resulting trusts, though 
 really a subdivision of the first, is separately discussed. And 
 that doctrine, tersely stated, is that a cestui que trust, or other 
 person whose funds have been in the hands of a fiduciary holder, 
 can follow them and appropriate to himself the specific funds, 
 or the property into which they have been changed, together 
 with the increased value of such property, provided such trust 
 funds can be clearly ascertained, traced, and identified, and 
 the rights of an innocent purchaser for value without notice 
 have not intervened.* The requisites here, which demand 
 
 1 Gale V. Harby, 20 Fla. 171; 1 U. S. 50 ; Farmers' and Mechanics' Bk. 
 Perry on Trusts, § 127. v. King, 57 Pa. St. 202 ; Standish v. 
 
 2 "The right has its basis in the Babcock, 52 N. J. Eq. 628; Preston 
 right of property, and the court pro- u. Preston, 202 Pa. St. 515; Barnes t'. 
 ceeds on the principle that the title has Thuet, 116 Iowa, 359; In re Hallett's 
 not been affected by the change made Estate, L. R. 13 Ch. Div. 696. 
 
 of the trnst funds." Peckham, J., in ^ Holmes v. Gilman, 138 N. Y. 369", 
 
 Holmes w. Oilman, 138 N. Y. 369. And Nat. Bk. v. Ins. Co., 104 U.S. 54; 1 
 
 see American Sugar Refining Co. v. Perry on Trusts, § 127. 
 
 Pancher, 145 N. Y. 552 ; Converse v. * Cases cited in last two preceding 
 
 Sickles, 146 N. Y. 200; Union Stock notes; Turner y. Sawyer, 150 U. S. 578; 
 
 Yards Bk. u. Gillespie, 137 U. S. 411 ; Riddle v. Whitehouse, 135 U. S. 621 ; 
 
 Comm, Bk. of Pa. v. Armstrong, 148 Warren v. Union Bank, 157 N. Y. 259; 
 
518 
 
 ESTATES IN REAL PROPERTY. 
 
 discussion, are that the funds shall have been expended or 
 disposed of by one who held them in a fiduciary capacity, 
 that they can be traced and identified, and that the property 
 sought to be taken has not come into the hands of an inno- 
 cent purchaser for -value without notice of the rights of the 
 claimant. 
 
 § 362. Property held in Fiduciary Capacity, — It may be 
 stated generally that, for the purpose of implying a trust 
 of this kind, courts of equity will treat the relation as 
 fiduciary wherever one person holds money or other prop- 
 erty which ex equo et bono should be handed over to another, 
 or held or used for his benefit. Illustrations of persons oc- 
 cupying such positions are trustees,^ executors or administra- 
 tions, ^ guardians,^ directors or trustees of a corporation,* the 
 committee of a lunatic,^ an agent entrusted with money or 
 other property of his principal to hold or disburse,^ a hus- 
 band who employs his wife's funds in the purchase of land,' 
 and parents, partners, or co-tenants of whom one or more 
 expend money belonging to the others or to all together.^ So, 
 
 Darrow v. Calkins, 154 N. Y. 503; 
 Eoca V. Byrne, 145 N. Y. 182; Hatch 
 V. National Bk., 147 N. Y. 185 ; Cole v. 
 Cole, 54 N. Y. App. Div. 37 ; Little 
 V. Chadwick, 151 Mass. 109; Kennedy 
 V. McGloskey, 170 Pa. St. 354 ; Jones v. 
 Elkins, 143 Mo. 647 ; Kintner v. Jones, 
 122 Ind. 148; Moore v. Hamerstag, 109 
 Cal. 122; Story's Eq. Jur. §§ 1258, 
 1259 ; Bispham's Prin. Eq. § 86. 
 
 i Oliver v. Piatt, 3 How. (U. S.) 333, 
 401; Day v. Koth, 18 N. Y. 448; 
 McLarren v. Brewer, 51 Me. 402 ; 
 Lathrop v. Gilbert, 10 N.J. Eq. 344; 
 Standish o. Babeock, 52 N. J. Eq. 628 ; 
 Mc Arthur v. Robinson, 104 Mich. 540; 
 Harrisburg Bk. v. Tyler, 3 Watts & S. 
 (Pa.) 373 ; Pugh v. Pugh, 9 Ind. 132. 
 
 2 Buck V. Uhrich, 16 Pa. St. 499; 
 Claussen v. Le Franz, 1 Clarke (Ga.), 
 226 ; Dodge v. Cole, 97 111. 338 ; Phil- 
 lips I'. Overfield, 100 Mo. 466 ; Harper 
 V. Archer, 28 Miss. 212. 
 
 8 Schlaefer v. Corson, 52 Barb. 
 (N. Y.) 510; Bancroft v. Consen, 13 
 Allen (Mass.), 50; Durling v. Hamniar, 
 20 N. J. Eq. 220 ; Turner v. Petigrew, 
 6 Humph. (Tenn.) 438; Hughes v. 
 White, 117 Ind. 470; Alspaugh v. 
 Adams, 80 Ga. 345. 
 
 * Church V. Sterling, 16 Conn. 388; 
 Palmetto Lumber Co. v. Eisley, 25 S. C. 
 309 ; Church v. Wood, 5 Hamm. (Ohio) 
 283. 
 
 6 Reid V. Fitch, 11 Barb. (N. Y.) 
 399; Hammett's Appeal, 72 Pa. St. 
 337. 
 
 6 Day V. Roth, 18 N. Y. 448; Bank 
 I). King, 57 Pa. St. 202 ; Church n. Ster- 
 ling, 16 Conn. 388 ; Wynn v. Sharer, 
 23 Ind. 573. 
 
 ' Methodist Church v. Jaques, 1 
 Johns. Ch. (N. Y.) 450, 3 Johns. Ch. 
 (N. Y.) 77 ; Dickenson v. Codwise, 1 
 Sandf. Ch. (N. Y.) 214; Barron u. Bar- 
 ron, 24 Vt. 375 ; Lathrop v. Gilbert, 10 
 N. J. Eq. 344; Jones v. Elkins, 143 Mo, 
 647. 
 
 8 Robinson v. Robinson, 22 Iowa, 
 427 ; Moore v. Scruggs, 131 Iowa, 692; 
 Eastham v, Roundtree, 56 Tex. 110; 
 Robarts v. Haley, 65 Cal. 397, 402 ; 
 Rector v. Gibbon, 111 U. K. 276,291; 
 Monroe Cattle Co. v. Becker, 147 V. S. 
 47; Kennedy v. McCloskey, 170 Pa. St. 
 354 ; Virginia Coal Co. c Kelly, 93 Va. 
 332 ; Moore u. Hamerstag, 109 Cal. 122 ; 
 Brundv v. Mayfield, In Mont. 201; 
 Union'Nat Bk. v. Goetz, 138 111. 127; 
 Carley v. Graves, 85 Mich. 483 ; Story's 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 519 
 
 a clerk in a bank, and probably one in any ordinary cleri- 
 cal position, who purchases land with his employer's funds, 
 holds it in trust for the employer, i And one who knowingly 
 takes property from a person, who has purchased it with stolen 
 funds, holds it in trust for the rightful owner. ^ But where 
 one, who has property of another, does not hold it in any 
 fiduciary capacity, as, for example, when he is holding ad- 
 versely and treating it as his own with apparent cause, his 
 purchase of realty or other property with it raises no trust. ^ 
 
 § 363. Property traced and identified. — The principle in- 
 volved in this class of trusts applies, not only to purchases 
 with fiduciary funds, but also to assignments, deposits in bank, 
 etc., — to all cases generally in which the fiduciary holder has 
 disposed of property which can still be identified in the posses- 
 sion of one who is not an innocent holder for value and without 
 notice.* The requirement that it sliall be traced and identified 
 is complied with if it can be found included in some particular 
 property, fund, or account, no matter through how many 
 changes it may have passed in reaching that position.^ When, 
 therefore, a trustee mixes trust money with his own property, as 
 by purchasing land with it and money of his own, and the specific 
 land so purchased is known, he holds the proportion of it, which 
 
 Eq. Jur. §§ 1258-1359; 1 Perry on N. Y. 195; Welfch w. Polley, 177 N. Y. 
 
 Trusts, § 127. 117; Coram. Bk. of Pa. v. Armstrong, 
 
 1 Bank of Amer. v. Pollock, 4 Edw. 148 U. S. 50; Little v. Chadwick, 151 
 Ch. (N. Y.) 215; Newton v. Porter, 5 Mass. 109; Farmers' and Mechanics' 
 Lansing (N. Y), 416 ; Bassett v. Spof- Bk. «. King, 57 Pa. St. 202 ; Ennor v. 
 ford, 45 N. Y. 387 ; 1 Perry on Trusts, Hodson, 134 111. 32 ; Carley v. Graves, 
 § 128. 85 Mich. 483 ; Crumrine v. Crumrine, 
 
 2 Matter of Carin v. Gleason, 105 50 W. Va. 226. Some of these cases, 
 N. Y. 262, 303; Price v. Brown, 98 and those cited in the other notes 
 N. Y. 388, 395 ; Newton v. Porter, 69 on this section, were the outcome of 
 N. Y. 133; Hoffman u. Carrow, 22 positive fraud, and the trusts raised 
 Wend. (N. Y.) 285. were therefore constructive; but they 
 
 ' Ensley v. Ballentine, 4 Humph. are cited to complete a general view 
 
 (Tenn.) 233. And see Parsons w. Phe- of the doctrine of "following trust 
 
 Ian, 134 Mass. 109 ; Dana <,. Dana, 154 funds." 
 
 Mass. 491 ; Turner v. Sawyer, 150 U. S. * Accordingly, when property to 
 
 478 ; In re Brown's Estate, 210 Pa. St. which such a trust attaches is sold by a 
 
 493 ; Peterson v. Boswell, 137 Ind. 211 ; sheriff on execution against the holder. 
 
 Silvers v. Potter, 48 N. J. Eq. 539 ; and the money deposited in bank in the 
 
 Heiskell v. Trout, 31 W. Va. 810. sheriff's account, the cestui que trust can 
 
 * Amer. Sugar Refining Co. v. Fan- follow it and claim the proceeds out of 
 
 cher, 145 N. Y. 552 ; Converse v. Sickles, that account. In re Hallett's Estate, 
 
 146 N. Y. 200; Warren v. Union Bank, L. R. 13 Ch. Div. 696 ; Roca v. Byrne, 
 157 N. Y. 259 ; Hatch o. National Bk., 145 N. Y. 182, 200 ; Amer. Sugar Re- 
 
 147 N. Y. 184; Matter of Hicks, 170 fining Co. i>. Fancher, 145 N. Y. 652. 
 
520 ESTATES IN REAL PROPERTY. 
 
 the trust fund so used bears to the entire purchase price, for 
 his cestui que trust ;^ and, if the trustee can not clearly prove 
 how much of his own money was used in the purchase, the cestui 
 que trust may take it all. The doctrine of confusion of goods 
 in effect applies, in such a case as the latter, to the detriment 
 of the trustee.^ This is the rule generally recognized and fol- 
 lowed in both England and America ; although it has been 
 held in a few such instances that the cestui que trust had only 
 a lien upon the land for the amount of his property which was 
 used in its purchase.^ Of course, when all of a piece of prop- 
 erty can be identified as bought, with trust funds, it all belongs 
 to the cestui que trust, even though its value may greatly exceed 
 the value of those funds. "The court proceeds on the principle 
 that the title has not been affected by the change of the trust 
 funds, and the cestui que trust has his option to claim the prop- 
 erty and its increased value as representing his original fund." * 
 But when the fiduciary holder has so inextricably mixed the 
 trust property with his own or other persons' funds that it can 
 not be identified in any form, or can only be said to make some 
 unknown part of his general estate, or he has so disposed of it 
 that it can not be found as such in any form, all possibility of 
 
 1 In re Hallett's Estate, L. R. 13 Ch. " Supposing the trust money were one 
 Div. 696 ; Jones v. Elkins, 143 Mo. 647 ; thousand sovereigns, and the trustee 
 Turner v. Sawyer, 150 U. S. 578 ; Rec- put them into a bag, and, by mistake, or 
 tor V. Gibbon, 111 TJ. S. 276 ; Ennor v. accident, or otherwise, dropped a aover- 
 Hodson, 134 lU. 32; Vanatta v. Carr, eign of his own into the bag, could 
 229 111. 47 ; Carley v. Graves, 85 Midi. anybody suppose that a-judge in equity 
 483; 1 Perry on Trusts, §§ 127, 128 would find any difficulty in saying that 
 
 2 Frith w. Cartland, 34 L. J. Ch. 301 ; the cestui que trust has a right to take 
 Ex parte Dale, L. R. 11 Ch. Diy. 772; one thou.sand sovereigns out of the. 
 In re Hallett's Estate, L. R. 13 Ch. Div. bag." And it is to be added that, not 
 696 ; People v. City Bk. of Rochester, only could he take the one thousand 
 96 N. Y. 32 ; Comm. o. McAllister, 28 sovereigns (which even a lien would 
 Pa. St. 480; McLarren v. Brewer, 51 enable him to do), but if the entire con- 
 Me. 402 ; Sherwood v. Cent. Mich. Sav. tents of the bag had increased in value, 
 Bk., 103 Mich. 109; Hill on Trustees, he could take his proportion of the 
 148, note. larger mass, which is the advantage 
 
 ' See In re Hallett & Co., Ex parte due to his trust position. Thus, if the 
 
 Blane (1894), 2 Q. B. 237; Schierlohu. value had doubled, he could take out 
 
 Schierloh, 148 N. Y. 103; and discus- two thousand sovereigns and the trustee 
 
 sion in In re Hallett's Estate, L. R. 13 two; while, if he were relegated to the 
 
 Ch. Div. 696. In the case last cited, in position of a mere lienor, he could take 
 
 which a trustee converted the property only his original one thousand sover- 
 
 into cash and deposited it in bank to- eigns (with possibly interest added), 
 
 gether with some of his own money, and the other party would own the 
 
 Sir George Jessel, M. R., said, in pre- residue. 
 
 senting a strong argument for the rais- * Holmes v. Oilman, 138 N. Y. 369 ; 
 
 ing of a trust from such circum.stances : Standish c Babcock, 52 N. J. Eq. 628. 
 
KQUITABLE ESTATES. — RESULTING TRUSTS. 
 
 521 
 
 raising a trust because of it is at an end ; ^ and the cestui que 
 trust has simply a personal remedy against the trustee. 
 
 § 364. Rights of Innocent Purchasers for Value. — Finally, 
 if in the process of changing form or possession the fund come 
 into the hands of one who pays value for it without notice of 
 the rights of him who claims it as cestui que trust, no resulting 
 trust can arise against it in such hands. Thus, if after buying 
 land with trust funds the trustee sell it to such a purchaser, 
 the right of the cestui que trust against that land terminates.^ 
 He can follow the proceeds in the possession of the trustee, if 
 he can find them. But, otherwise, his only remedy is a per- 
 sonal one against the trustee. This inability to follow any 
 longer the land is simply one of the instances of the general 
 rule as to innocent purchasers without notice, which has been 
 heretofore explained^ and is further discussed hereafter, in 
 treating of constructive trusts.* 
 
 7. Trusts Resulting from Failure of Declaration or Object. 
 
 § 365. Essentials and Evidence of Such a Trust. — " There is 
 no equitable principle more firmly established," says Mr. Hill, 
 "than that where a voluntary disposition by deed or will is 
 made to a person as trustee, and the trust is not declared at 
 all, or is ineffectually declared, or does not extend to the whole 
 interest given to the trustee, or it fails either wholly or in part 
 by lapse or otherwise ; the interest so undisposed of will be 
 held by the trustee, not for his own benefit, but as a resulting 
 trust for the donor himself, or for his heir-at-law or next of 
 kin, according to the nature of his estate." * To bring a result- 
 ing trust of real property, then, within tliis third class, a con- 
 veyance without consideration is made to one, who is clearly 
 intended to hold in trust and not for his own benefit, and either 
 
 1 Freiberg v. Stoddard, 161 Pa. St, 
 259, 261 ; Little v. Chadwick, 151 Mass, 
 109; Dana u. Dana, 154 Mass. 491 
 Cole u. Cole, 54 N. Y. App. Div. 37 
 Slater ». Oriental Mills, 18 R. I. 352 
 Nonotuck Silk Co. v. Flanders, 87 Wis, 
 2-37 ; Cecil Nat. Bk. v. Thurber, 8 U. S 
 App. 496 ; Farwell v. Kloraan, 45 Neb. 
 424; Blake v. State Sav. Hk., 12 Wash, 
 619; Ferchen v. Aradt, 26 Oreg. 121 
 Silvers v. Potter, 48 N. J. Eq. 539 
 Heiskell v. Trout, 31 W. Va. 810. 
 
 then draw down the account below the 
 amount of the trust fund, and then add 
 to the account trust moneys of third 
 parties, the means of identification fails 
 and the trust ceases. Cole v. Cole, 54 
 N. Y. App. Div. 37. 
 
 2 Cornell v. Maltby, 165 N. Y. 557 ; 
 Anderson v. Blood, 152 N. Y. 285, See 
 Cornfeld v. Taneubaum, 176 N. Y. 126 ; 
 §§ 406-409, infra. 
 
 ' §§ 297, 299, supra. 
 
 * §§ 406-409, infra. 
 
 Thus, if the trustee put tlie property in ^ Hill on Trustees, 113, 114. 
 
 his own bank, with his own funds, and 
 
522 ESTATES IN REAL PROPERTY. 
 
 the purposes of the transfer are left wholly or partly undeclared, 
 or the purpose expressed wholly or partly fails and can not be 
 carried out.^ 
 
 When one pays value for property conveyed to him, it is 
 conclusively presumed, in the absence of clear expressions to 
 the contrary, that he takes it for his own benefit.^ Therefore, 
 trusts of this group must come within the sphere of voluntary 
 conveyances. And wills, of course, supply .more numerous 
 illustrations of tliese than do deeds. The transfer being found 
 to be a gift, by either will or deed, if it furtlier appear that 
 some or all of the property was not intended for the nominal 
 donee, or can not be used as the settler designed, a trust re- 
 sults, as to all or some of it, as the case may be. 
 
 It is a question of evidence, to be decided upon considera- 
 tion of all the circumstances of each case, whether or not the 
 donee was intended to take the property beneficially .^ And 
 many refined distinctions have been made in efforts to ascer- 
 tain this intention.* Thus, when the gift is to the wife, child, 
 heir, or other close relative of the donor,^ or to an infant or 
 other person who is incapable of executing a trust,® or with 
 expressions of affection or kindness towards the donee,' these 
 are " circumstances of evidence " which militate against the 
 presumption of any resulting trust. But such circumstances 
 count for little against clear and direct expressions of the 
 settler's intent.* Accordingly, where a testator gives real 
 property to his executors as trustees, " upon a trust to pay 
 debts" and at the time of his death he owes no debts, the ex- 
 ecutors take it as a resulting trust for his heirs ; * while if only 
 some of it be needed for the payment of his debts, the residue 
 
 1 O'Coiinoru.Gifford, 117N.Y. 275; v. Rogers, 3 P. Wms. 193; Randall w. 
 Mosher «. Funk, 194 111. 351 ; 1 Perry Bookey, 2 Vera. 425. 
 
 on Trusts, §§ 150-160. 8 Blinkhorn v. Feast, 2 Ves. Sr. 27; 
 
 2 Ridout V. Dowding, 1 Atk. 419; Williams v. Jones, 10 Ves. 77. 
 Brown v. Jones, 1 Atk. 188; Kerlin u. ' Cook v. Hutchinson, 1 Keen, 42; 
 Campbell, 15 Pa. St. 500 ; Anderson v. Rogers v. Rogers, 3 P. Wms. 193 ; 
 Blood, 1 52 N. Y. 285. Meredith i-. Heneage, 1 Sim. 542, 555 ; 
 
 8 Walton V. Walton, 14 Ves. 318, 322 ; Wood r. Cox, 2 Myl. & Cr. 684, 692. 
 Hill V. Bishop of London, 1 Atk. 619; ' King v. Deunison, 1 Vea. & Bea. 
 
 Starkey v. Brooks, 1 P. Wms. 390 ; Hug- 260, 275 ; King v. Mitchell, 8 Pet. (U. S.) 
 
 gins V. Yates, 9 Mod. 122. 326, 349. 
 
 * Perry on Trusts, §§ 151-153. ^ King v. Deunison, 1 Ves. & Bea. 
 
 * Jennings v. Selleck, 1 Vera. 467 ; 260, 272 ; Morice v. Bishop of Durham, 
 Hayes v. Kingdom, 1 Vera. 33 ; Christ's 9 Ves. 399, 10 Ves. 522 ; Gloucester v. 
 Hospital V. Budgin, 2 Vera. 683 ; Rogers Wood, 1 H. L. Cas. 272 ; Schmucker's 
 
 Est. V. Reed, 61 Mo. 592. 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 
 
 523 
 
 results to his heirs.^ So, when a devise is made to A, " upon the 
 trusts hereafter to be declared," and no trust is ever declared, 
 or those declared do not exhaust the property, a resulting trust 
 arises in favor of the devisor's heirs.^ And when a gift is 
 made for a purpose that is illegal, or otherwise void or ineffect- 
 ual, as if it violate some statute or positive rule of law,' or 
 when the 'designated cestui que trust dies before the testator and 
 the attempted gift lapses, a resulting trust comes into being.* 
 
 § 366. Effects of Residuary Clauses in Wills. — If a will con- 
 tain a general residuary clause, a legacy given by the will on a 
 trust that fails does not form a resulting trust, but passes to 
 the residuary legatee ; ^ except in the case where the trust 
 legacy itself forms a part of the residuary estate.® But, at 
 common law, when real property was devised upon a void trust, 
 or one that failed, it did not pass under any residuary clause in 
 the will, but a trust in it resulted to the heirs of the testator.^ 
 
 1 King V. Dennison, I Ves. & Bea. 
 260; McElroy r. McElroy, 113 Mass. 
 509. See Irvine v. Sullivan, L. R. 8 Eq. 
 673 ; Downer v. Church, 44 N. Y. 647 ; 
 Schmucker's Est. v. Reed, 61 Mo. 592 ; 
 Heidenheimer v. Bauman, 84 Tex. 174. 
 
 2 London v. Garway, 2 Vern. 571 ; 
 Sidney?!. Shelley, 10 Ves. 363; Atty.- 
 Gen. V. Windsor, 8 H. L. Cas. 369; 
 Pratt V. Sladden, 14 Ves. 193, 198; 
 Mence v. Mence, 18 Ves. 348 ; Sturte- 
 vant V. Jaqnes, 14 Allen (Mass.), 523, 
 526; Shaw v. Spencer, 100 Mass. 382, 
 388 ; Schmucker's Est. >•. Reed, 61 Mo. 
 592. 
 
 ^ Russell w. Jackson, 10 Hare, 204 ; 
 Carrick y. Errington, 2 1'. Wnis. 361 ; 
 Johnson v. Clarkson, 3 Rich. Eq. (S. C.) 
 305; Edson v. Bartow, 154 N. Y. 199, 
 768 ; St. Paul's Church v. Atty.-Gen., 
 164 Mass. 188; Rudy's Estate, 185 Pa. 
 St. 359; Farrington i.. Putnam, 90 Me. 
 405 ; Heiskell v. Trout, 31 W. Va. 810; 
 Lusk V. Lewis, 32 Miss 297. 
 
 * Ackroyd v. Smithson, 1 Bro. Ch. 
 503; O'Connor v. Gifford, 117 N. Y. 
 275, 281 ; Haskins v. Kendall, 158 Mass 
 224 ; Harker v. Reilly, 4 Del. Ch. 72 ; 
 Bond V. Moore. 90 N. C. 239. So, in 
 case of an insufficient declaration of an 
 intended trust, or a failure of its purpose 
 for any other reason, as by the dissolu- 
 tion of the corporation for which it was 
 
 made, a trust of this kind is generally 
 the outcome. Williams a. Kershaw, 5 
 CI. & Fin. Ill ; Shaw v. Spencer, 100 
 Mass. 382, 388 ; Coburn v. Anderson, 
 131 Mass. 513; King v. Mitchell, 8 Pet. 
 (U. S.) 326; Gnmbert's Appeal, 110 
 Pa. St. 496 ; Jenkins v. Jenkins Uni- 
 versity, 17 Wash. 160; Hill on Trus- 
 tees, 116; 1 Perry ou Trusts, §§ 159, 
 160. 
 
 ' Dawson v. Clarke, 15 Ves. 409, 
 417; Marsh v. Wheeler, 2 Edw. Ch. 
 (N. Y.) 156 ; Woolmer's Estate, 3 Whart. 
 (Pa.) 477; Pool v. Harrison, 18 Ala. 
 515. 
 
 * Skryrasher v. Northcote, 1 Swanst. 
 566; Leake w. Robinson, 2 Meriv. 363, 
 392 ; Smith v. Cooke (1891), App. Cas. 
 297 ; Floyd v. Barker, 1 Paige (N. Y.), 
 480 ; 1 Perry on Trusts, § 1 60. 
 
 ' The reason for this lay in the com- 
 mon-law rules, which required a definile 
 and specific dfscrip'ion of real property 
 intended to be disposed of, and that the 
 testator should be seised of it at the time 
 when he made the will, and remain con- 
 tinuously and uninterruptedly so seised 
 until he died. A residuary gift, dispos- 
 ing generally of what was left of a tes- 
 tator's property at the time of his death, 
 after all other gifts made by the will 
 had been satisfied, could not comply 
 with these requirements. 2 Blackst. 
 
524 ESTATES IN REAL PROPERTY. 
 
 In England, New York, (a) New Jersey, Maine, and some other 
 states of this country, the rule in this regard has been made 
 uniform for both kinds of property, by statutes which make 
 lapsed legacies and lapsed devises alike pass to a general 
 residuary donee, unless a different intent appears from the 
 language of the will.^ 
 
 § 367. Gifts for Charity not apt to cause such Resulting Trusts. 
 — Another qualification, to be noted, to the class of resulting 
 trusts now under consideration, is that, when the object of an 
 attempted trust is charitable, a resulting trust does not so 
 readily arise as when the specified object is a private trust.^ 
 This is because the cy pres doctrine can usually be applied to 
 fix the destination of charitable gifts, even though the exact 
 purposes intended may not be clearly indicated, or may wholly 
 or partly fail.^ A private trust must be carried out as directed, 
 or not at all. But, as already explained, when property is 
 given for a general charitable purpose, but the particular object 
 is not clearly specified, or if specified can not be realized in just 
 that manner, or does not exhaust the entire fund, the general 
 scheme ordinarily can and will be carried out by the court. 
 Therefore, there is less apt to be property to result in trust in 
 this latter class of gifts than in those that are private. But 
 
 (a) The New York statute, 2 E. S. 57 (Decedent Est. L. § 14), § 5, pro- 
 vides that, " Every will that shall he made by a testator, in express terms 
 of all his real estate, or in any other terms denoting his intent to devise all 
 his real property, shall be construed to pass all the real estate, which he 
 was entitled to devise, at the time of his death." And of this the Court 
 of Appeals says: "The common-law rule that lapsed devises do not fall 
 into the residue, but go to the heirs as undisposed of by the will, was done 
 away with in New York by 2 R. S. 57, § 5 ; and there is now no difference 
 between lapsed devises and lapsed legacies, as it respects the operation 
 upon them of a general residuary clause." Cruikshauk v. Home for the 
 Friendless, 113 N. Y. 337; Onderdonk v. Onderdonk, 127 N. Y. 196; 
 Youngs V. Youngs, 45 N. Y. 254 ; Van Kleeck v. Dutch Reformed Church, 
 6 Paige, 600, 20 Wend. 457. 
 
 Com. p. *513; 4 Kent's Com. 541; Cruikshank v. Home for Friendless, 
 
 Year Book, 44 Bdw. III. p. 33 ; Digby, 113 N. Y. 337 ; Molineux v. Reynolds, 
 
 Hist. Law E. P. {5th ed.) p. 385 ; Van 54 N. J. Eq. 559 ; Merrill v. Hayden, 86 
 
 Kleeck v. Dutch Beformed Church, 6 Me. 133 ; Brigham ». Shattuck, 10 
 
 Paige (N. Y.), 600, 20 Wend. (N. Y.) Pick. (Mass.) 306; Clapp v. Stoughton, 
 
 457; Hayden v. Stoughton, 5 Pick. 10 Pick. (.Mass ) 463. 
 
 (Ma.ss.) 528. 2 xhetford School Case, 8 Rep. 130b; 
 
 1 7 Wm. IV. an4 1 Vict. ch. 26, § 24 ; Moggridge v. Thackwell, 7 Ves. 36 ; 
 
 2 N. Y. R. S. 57 (R. S. 9th ed. p. 1876), § 347, supra. 
 
 § 5; 1 Stim. Amer. Stat. L. § 2822; » §§ 347, 349, ««pra. 
 
EQUITABLE ESTATES. — RESULTING TRUSTS. 525 
 
 even when real property is given to trustees for a charitable 
 object, if it be clearly for a specified particular object only, and 
 that object can not be carried out, the trustees will take the 
 property upon a resulting trust for the settler or his heirs.^ 
 
 § 368. General Gift, or Gift for Specific Purpose, as causing 
 Such a Trust. — A distinction is also to be noticed between a 
 gift in trust for a particular purpose, whether public or private, 
 and a gift to one, apparently for his own benefit, but having a 
 duty, or charge, impressed upon it for some specified purpose, 
 as, for example, to pay the settler's debts. In the former case, 
 a trust results in the surplus, after the particular purpose is 
 accomplished,^ while, in the latter case, the surplus belongs to 
 the donee.^ The difficulty often is to determine, from the 
 evidence, into which of these types a given case falls. Vice- 
 Chancellor Wood's oft-quoted rules upon this matter are as 
 follows : " 1st, where there is a gift to A, to enable him to do 
 something, where he has a choice whetlier he will do it or not, 
 then the gift is for his own benefit, the motive why it is given 
 to him being stated ; 2d, where you find the gift is for tlie 
 general purposes of the will, then the person who takes the 
 estate cannot take the surplus, after satisfying the trust, for 
 his own benefit; and 3d, where a charge is created by the will, 
 the devisee takes the surplus for his own benefit, no trust being 
 implied." * 
 
 h. Trusts resulting from Conveyances not expressing any Con- 
 sideration or Use. 
 
 § 369. Reasons for Such Trusts. — After uses became a 
 prominent feature of real property, the conveyance of land by 
 its owner to some otlier person, to hold to the use of such 
 owner, was so ordinary a transaction that the courts came to 
 regard all transfers of the legal estate, by common-law convey- 
 ances, where no consideration was expressed and no use de- 
 
 1 Hopkins v. Grimshaw, 165 U. S. Downer v. Church, 44 N. T. 647; 
 
 342, 353 ; Coe v. Mills, 149 Mass. 543. George v. Grose (1900), 1 Ch. 84. 
 And see §§ 347, 349, supra. * Barrs v. Fewkes, 2 Hem. & M. 60. 
 
 ' King V. Dennison, 1 Ves. & Bea. And see Saltmarsh v. Barrett, 29 Beav. 
 
 260, 272; McElroy v. McElroy, 113 474; Ellcock u. Mapp, 3 H. L. Cas. 492 ; 
 
 Mass. 509; Smith v. Abbott (1900), 2 Cooke v. Stationers' Co., 3 Myl. & K. 
 
 Ch. 326. 262; Hale v. Home, 21 Gratt. (Va.) 
 
 ' Hill w. Bishop of London, 1 Atk. 112; Shaeffer's Appeal, 8 Pa. St 38; 
 
 «19; Dawson v. Clarke, 18 Ves. 247 ; 1 Perry on Trusts, § 152; Hill on Trus- 
 
 Irvine v. Sullivan, L. R. 8 Eq. 673 ; tees, 119 ; Bispham's Prin. Eq. § 88. 
 
526 ESTATES IN REAL PROPERTY. 
 
 clared, as intended for the use of the transferor, who was 
 commonly called the feoffor} That is, a use resulted to him 
 who made a common-law conveyance to a stranger, without 
 expressing any consideration or any other use.^ And if he de- 
 clared a use as to part of the property or estate, and not in the 
 residue, the use in such residue resulted to liim. Or, as Lord 
 Coke expressed it, " so much of the use as the owner of the land 
 does not dispose of remains in him." ^ This doctrine was not 
 altered by the Statute of Uses. And when the use reappeared 
 as a trust, after the decision of Tyrrel's Case, the same doc- 
 trine remained as the foundation of the class of resulting trusts, 
 which forms the fourth and last group of such trusts for 
 our consideration.* Probably it was to prevent any possible 
 operation of this principle that the custom arose of reciting a 
 consideration of one dollar in quit-claim deeds, whether any 
 consideration is paid or not ; for such a recital can not be re- 
 butted by extraneous evidence, for the purpose of raising a re- 
 sulting use or trust and thus nullifying the effect of the deed.^ 
 § 370. They arose only from Absolute Common-Law Convey- 
 ances. — Resulting trusts of this group must arise, if at all, 
 from common-law forms of conveyance, such as feoffments, 
 grants, releases, etc., and not from those kinds of deeds and 
 tranfers which arose and. operated under the Statute of Uses; 
 for the latter always contain a declaration of the use for which 
 the conveyance is made.® No resulting trust would be implied, 
 moreover, even from a common-law conveyance, when it was 
 to the wife or a child of the grantor ; for the good considera- 
 
 1 Bacon on Uses, 317; Cruise, Dig. v. Graves, 29 N. H. 129; Philbroolt v. 
 tit. xi. ch. 4, § 16 et seq. ; Hill on Trus- Delano, 29 Me. 410, 420 ; Thomas ii. 
 tees, 196; 1 Perry on Trusts, § 161. McCormick, 9 Dana (Ky.), 108. But 
 
 2 " For where there is neither con- it has also been held that a mere nomi- 
 sideration, nor declaration of use, nor nal consideration, of which one dollar 
 any circumstance to show the intention is the common illustration, i. e., a con- 
 of the parties, it cannot be supposed sideration not being anything substan-'' 
 that the estate was intended to be given tial as compared with the value of the' 
 away." Cruise', Dig. tit. xi. ch. 4, § 16. property, will not prevent a resulting 
 
 5 Cruise, Dig. tit. xi. ch. 4, § 17. trust, as distinguished from the old re- 
 
 * Cruise, Dig. tit. xii. ch. 1, § 52; suiting use, from being raised by equity. 
 
 Dyer n. Dyer, 2 Cox, 92 ; Hayes v- 1 Spence, Eq. Jur. 467 ; Hill on Trus- 
 
 Kingdome, 1 Vern. 33 ; Van der Vol- tees, 107, note ; 1 Perry on Trusts, 
 
 gen V. Yates, 9 N. Y. 219, 223 ; BotSr § 161 ; 2 Wash. R.,P. (6th ed.) § 1421. 
 ford V. Burr, 2 Johns. Ch. (N. Y.) 405; 6 Cruise, Dig. tit. xi. ch. 4, § 16; 
 
 Pinney w. Fellows, 15 Vt. 525, 538. Coffey v. Sullivan, 63 N. J. Eq. 296; 
 
 s Riley v. Riley, 83 Hun (N. Y.), 1 Perry on Trusts, § 162. , For the 
 
 398; Weiss v. Heitcamp, 127 Mo. 23; forms of common-law conveyances, see 
 
 Bobb V. Bobb, 89 Mo. 411; Graves 2 Blaclsst. Com. p. * 309 eJ sej. 
 
iiQUITABLE ESTATES. — RESULTING TRUSTS. 527 
 
 tion arising from the relationship was enough to cause tlie pre- 
 sumption that the grantee was meant to talie beneficially.^ So, 
 very slight evidence of intent would be sufficient in any case 
 to rebut this weak presumption that there was a trust for the 
 grantor. For example, it was declared that the mere exist- 
 ence of the duties which rested upon a grantee of a temporary 
 interest, such as one for life or for a term of years, was enough 
 to indicate a beneficial transfer to him, and so to overcome the 
 presumption of a resulting trust.^ 
 
 § 371. Such Trusts are not now favored. — It is apparent, 
 from the foregoing paragraphs, that the resulting trust of this 
 fourth class never rested on anything but a very slight pre- 
 sumption, which could be readily rebutted by a little evidence 
 of the grantor's different intention. It was simply a rule 
 which placed a light burden upon a grantee, to show that a 
 voluntary conveyance was meant to be beneficial to himself.^ 
 In most jurisdictions, this light burden has been shifted by 
 the modern rule ; and, by the weight of authority to-day, if 
 the instrument of conveyance be perfectly executed and in- 
 tended to operate at once, no resulting trust will arise from 
 the mere facts alone that it is voluntary and expresses no con- 
 sideration and declares no use.* But the addition of very 
 slight evidence will raise a resulting trust in favor of the 
 grantor or his heirs.^ And in a few states, such as Indiana,'' 
 Tennessee,^ and Nevada,** and also in England as would appear 
 from the more recent decisions,® the old rule is still retained. 
 
 § 372. Execution of Resulting Trusts. — It should be here 
 repeated that, when a remedy is sought, any of the forms of 
 resulting trusts is commonly executed, and the cestui que trust 
 
 1 Spirett V. Willows, 3 DeG. J. & S. Tillaux, 115 Cal. 663. And see Larnon 
 
 293; Spicer v. Ayers, 2 N. Y. Super. v. Knight, lU 111. 232, 236; 1 Perry on 
 
 Ct. 626 ; Donnica v. Coy, 28 Mo. 525. Trusts, § 162. 
 
 This is the same principle as that which * Clavering u. Clavering, 2 Vern. 
 
 gives rise to the exception to the first 473; Edwards v. Culbertson, 111 N. C. 
 
 class of resulting trusts above discussed. 342 ; Graff v. Rohrer, 35 Md. 327 ; 
 
 ^ Castle u. Dod, Cro. Jac. 200; 1 Hill on Trustees, 170. 
 
 Prest. Est.,p. *292; 1 Spence, Eq. Jur. « Giffen v. Taylor, 139 Ind. 573; 
 
 452; 2 RoUe, Abr, 781, F. Myers c. Jackson, 135 Ind. 136. 
 
 8 Bacon on Uses, 317. ' Nashville Trust Co. v. Lammon, 
 
 * Rogers D. New York & Texas Land 36 S. W. Rep. (Tenn.) 977. 
 
 Co., 134 N. Y. 197 ; Goldsmith v. Gold- " Bowler u. Curler, 21 Nev. 158. 
 
 smith, 145 N. Y. 313; Hutchinson v. « /n re Duke of Marlborough (1894), 
 
 Hutchinson, 84 Hun (N. Y.),482; Lovett 2 Ch. 133; Rochefoucauld v. Boustead 
 
 V. Taylor, .54 N. J. Eq. 311 ; Fitzgerald (1897), 1 Ch. 196. Compare Haigh v. 
 
 V. Fitzgerald, 168 Mass. 488; Steveu- Kaye, L. R. 7 Ch. App. 469,and Leman 
 
 son V. Crapnell, 114 111. 19 ; Tillaux v. v. Whitley, 4 Russ. 423. 
 
528 ESTATES IN REAL PEOPERTT. 
 
 thus obtains his redress, by a conveyance of the legal estate 
 to him from the trustee ; or satisfaction is given to him by a 
 judgment or decree of the court vesting the legal estate in 
 him, or declaring it to be so vested, without any couveyence.^ 
 But, when the trustee has reasonably incurred any expense in 
 caring for the property or dealing with it, he is ordinarily en- 
 titled to be reimbursed, and may hold the legal estate until 
 justice is thus done to him.^ 
 
 1 Millaid V. Hathaway, 27 Cal. 119. ^ Malroy v. Sloans, 44 Vt. 311. 
 
CHAPTER XXIII. 
 
 (b) CONSTRUCTIVE TRUSTS. 
 
 § 373. Constructive trusts. 
 Groups. 
 
 a. Constructive Trusts arising from 
 Actual Fraud. 
 
 § 374. Trusts ex maleficio. 
 
 § 375. Transfer of legal estate 
 obtained by actual fraud. 
 
 § 376. Elements of such fraud. 
 
 § 377. Transfer of legal estate 
 prevented by fraud. 
 
 § 378. Trusts arising from crime. 
 
 /3. Constructive Trusts arising from 
 Presumptive Fraud. 
 
 § 379. Nature and causes of such 
 trusts. 
 
 § 380. (a) Fraud presumed from 
 nature of transaction. Inadequacy 
 of purchase price. 
 
 § 381. Sale of expectant interest 
 by heir or reversioner. 
 
 § 382. Other cases of such fraud. 
 
 § 383. (j3) Fraud presumed or 
 apprehended from relation or cir- 
 cumstances of parties. 
 
 § 384. Mental weakness : drunk- 
 enness : duress: undue influence. 
 
 § 385. Confidential relations. 
 
 § 386. Trustee and cestui que 
 trust. 
 
 § 387. Trustee's purchase of trust 
 property. 
 
 § 388. Trustee's purchase of en- 
 cumbrances : his renewal of lease. 
 
 § 389. Conclusion as to trustee 
 and cestui que trust. 
 
 § 390. Attorney and client. 
 
 § 391. Guardian and ward. 
 
 § 392. Parent and child. 
 
 § 393. Other close relations. 
 
 § 394. Promoters and directors 
 of corporations. 
 
 § 395. Purchase under contract 
 or promise to convey. 
 
 §396. Gifts from fraudulent 
 taker. 
 
 § 397. Jlemedy. 
 
 § 398. (y) Fraud presumed or 
 declared to exist as affecting third 
 parties. 
 
 § 399. Fraud on purchasers. 
 
 § 400. Fraud on creditors. 
 
 § 401. Fraud on marital rights. 
 
 § 402. Fraud on powers. 
 
 y. Constructive Trusts that arise in 
 the Absence of Fraud. 
 
 § 403. Foundation and forms of 
 such trusts. 
 
 § 404. Contracts for purchase 
 and sale of real property. 
 
 § 405. Legal estate taken with- 
 out value and without notice. 
 
 § 406. Bona fide purchaser for 
 value without notice. 
 
 34 
 
530 ESTATES IN BEAL PROPERTY. 
 
 § 407. First — Notice. 
 
 § 410. Seeing to application of 
 
 § 408. Second — "Valuable consid- 
 
 purchase money. 
 
 eration. 
 
 § 411. Equitable mortgages and 
 
 §409. Third — Time of notice 
 
 liens. 
 
 and payment. 
 
 
 § 373. Constructive Trusts — Groups. — Constructive trusts, 
 or those which are implied by equity witiiout regard to the 
 intent of the parties,^ arrange themselves naturally into three 
 chief groups or divisions, namely : a. Constructive trusts aris- 
 ing from actual fraud, i. e., from direct facts or circum- 
 stances of imposition or unfair dealing, /8. Constructive trusts 
 arising from presumptive fraud, i.e., fraud inferred or ap- 
 prehended by equity from the nature of the transaction or 
 the relations of the parties, or as affecting third parties, and 
 7. Constructive trusts arising in the absence of fraud, which are 
 raised by equity as affording the best remedies and working out 
 the most substantial justice for the interested parties.^ An illus- 
 tration of the first of these groups is where, by false statements 
 intentionally made to deceive the owner of land, one induces 
 him to transfer the legal estate in the property ; '^ the second 
 group is illustrated by a transaction between a trustee and his 
 cestui que trust, whereby the former seeks to acquire for his own 
 benefit the property which he was holding for the latter ; * and a 
 common illustration of the last group is supplied by every or- 
 dinary contract for. the purchase and sale of real property, for 
 while such a contract is running and until the deed is delivered, 
 the party who has agreed to sell holds the land as a construc- 
 tive trustee for him who has agreed to purchase.^ Courts of 
 
 ^ See distinction between construc- 
 tive trusts and resulting trusts, § 351, 
 supra. 
 
 2 See Lord Hardwicke's classification 
 of fraud in Cliesteriield 0. Janssen, 1 
 Atk. 301, 1 Lead. Cas. Eq. 541; 1 
 Perry on Trusts, cli. vii. ; Story's Eq. 
 Jur. § 258. Tills classification has 
 been much criticised by distinguished 
 authorities, especially in regard to its 
 division of fraud into actual or " legal " 
 and constructive or presumed. Derry 
 V. Peek, L. R. 14 App. Cas. 337, 346 ; 
 Angus V. Clifeord (1891), 2 Gh. 449; 
 Joliffe u. Baker, L. R. 11 Q. B. Div. 
 255, 271 ; Bokee v. Walker, 14 Pa. St. 
 139, 141 ; Pollock on Contracts, 480. 
 
 But it is clear and practical and sup- 
 ported by the authority of such names 
 as Story and Lord Hardwicke. 
 
 ' Chesterfield v. Janssen, 2 Ves. 125; 
 Ahrens v. Jones, 169 N. Y. 555 ; Grove 
 1). Kane, 195 Pa. St. 325 ; 1 Perry on 
 Trusts, § 171. 
 
 * Coles V. Trecothick, 9 Ves. 234; 
 Davoue v. Fanning, 2 Johns. Ch. (N. Y.) 
 252 ; Morse v. Hill, 136 Mass. 60 ; Ryle 
 V. Ryle, 41 N. J. Eq. 582 ; Adams i'. 
 Cowen, 177 U. S. 471. 
 
 ' Green v. Smith, 1 Atk. 572 ; Wil- 
 liams i>. Haddock, 145 N. Y. 144, 150; 
 Potter V. Jacobs, 1 1 1 Mass. 32 ; Reed v. 
 Lukens, 44 Pa. St. 200 ; Roberts v. Nor. 
 Pac. R. Co., 158 U. S. 1. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 531 
 
 equity take cognizance of the first of these groups, because the 
 remedy thus afforded through the medium of a trust is ordi- 
 narily better than any that can be obtained from the common- 
 law courts. The second group springs from a species of fraud 
 which is solely of equitable cognizance, for in courts of law 
 fraud must always be clearly proved and will never be pre- 
 sumed} The constructive trusts of the third group afford 
 scope for some of the most interesting and important equitable 
 remedies, such as the specific performance of conti-acts, and 
 several forms of rehef by injunction.^ Each of these divisions 
 or groups of constructive trusts is to be separately discussed. 
 
 a. Constructive Trusts arising from Actual Fraud. 
 
 § 374. Trusts ex Maleficio. — Trusts ex malejlcio — arising 
 from actual fraud, i. e., from circumstances of direct imposition 
 or unfair dealing — come into being because by such means 
 either a conveyance of property has been obtained, or an in- 
 tended conveyance or transfer has been prevented. In either 
 case, the wrong intended or perpetrated is best obviated or 
 redressed by treating the person who would otherwise profit 
 thereby as a constructive trustee for the injured party. Thus, 
 where A by false statements induces B to deed land to him 
 for little or no consideration, he will hold it in trust for B.* 
 And when an heir inherits realty from his ancestor, because he 
 fraudulently induced the latter to abstain from willing it away 
 to another person, he takes the legal estate in trust for such 
 injured person, who should rightfully have been the devisee 
 of the same.* 
 
 § 375. Transfer of Legal Estate obtained by Actual Fraud. — 
 Whenever by actual fraud one is induced to part with the legal 
 title to or estate in his property, he has a remedy at law in an 
 action for damages ; ^ and, in holding the wrong-doer to be a 
 constructive trustee, equity assumes jurisdiction concurrently 
 with law, but affords a different kind of redress.* While it 
 
 1 Bispham's Prin. Eq. § 198. W. 94, 96; Mestaer v. Gillespie, 11 
 
 * Qnigley o. Gridley, 132 Mass. 35, Ves. 621, 638; Fischbeck u. Gross, 112 
 40. 111. 208 ; Church v. Ruland, 64 Pa. St. 
 
 » Tyler v. Black, 54 TJ. S. 230 ; Boyce 432 ; 1 Perry on Trusts, § 181. 
 
 V. Grandy, 28 U. S. 210; Ahrens v. 6 Boyce k. Grandy, 28 U. S. 210,220. 
 
 Jones, 169 N. Y. 555; 1 Perry on » Evans «. Bicknell, 6 Ves. 174, 182; 
 
 Trusts, § 171. Bacon v. Bronson, 7 Johns. Ch. (N. Y.) 
 
 ♦ Middleton v. Middleton, 1 Jac. & 194, 201. 
 
532 ESTATES IN REAL PROPERTY. 
 
 seems to be clear, however, that in the absence of statutory 
 prohibition the latter court may take cognizance of all such 
 cases of fraud and raise constructive trusts,^ yet in practice it 
 does so only when there is no full and adequate remedy in any 
 other tribunal. 2 When damages in money, for example, will 
 amply repay the injured party for his loss, as is ordinarily the 
 case in a contract of sale, mortgage, or warranty of personal 
 property, he is left to his redress at law.** But, since- each 
 piece of real property has and must retain a situation different 
 from every other piece, and therefore its loss by fraud may not 
 be computable in terms of money, on application to equity by 
 one who has been defrauded of such property, that court will 
 uniformly raise a constructive trust in his favor. And, on de- 
 mand by the beneficiary, the constructive trustee will be com- 
 pelled to re-convey the land and account for its profits while he 
 held it, or a re-conveyance will be declared by the court* 
 
 This is true except in cases in which there has been fraud in 
 obtaining a will. Courts of probate have always had complete 
 jurisdiction of wills of personalty ; and by modern statutes that 
 jurisdiction has been generally extended over wills of realty.^ 
 And the validity of a will of realty could always be determined, 
 and complete justice ordinarily done regarding the same, in 
 the common-law courts. Therefore, the rule has become well 
 settled that equity will not usually interfere to raise a trust or 
 to set aside a transfer because of the procuring of a will by 
 fraud.^ But even here, when the wrong-doer has obtained by 
 
 1 Evans v. Bicknell, 6 Ves. 1 74, 1 82 ; as to the persoualty only. This has 
 
 Russell V. Farley, 105 U. S. 433 ; Bacon been universally changed by statute, so 
 
 V. Bronson, 7 Johns. Ch. (N. Y.) 194 ; that both species of will are required tp 
 
 1 Spence, Eq. Jur. 625. be probated. But in a few states of 
 
 ^ Buzard v. Houston, 119 U. S. 347. this country, such as New York and 
 
 ' Newham v. May, 13 Price, 749, 751 ; New Jersey, the validity of a devise of 
 
 Buzard K. Houston, 119 U. S. 347; Inre real property may be tested over and 
 
 Sawyer, 1 24 U. S. 200, 213; Force v. over again in the common- law court. 
 
 City of Elizabeth, 27 N J. Eq. 408. even after the will has been duly pro- 
 
 4 Earl of Bath's Case, 3 Ch. Cas. 55, bated. N. Y. Code Civ. Pro. §§ 2626- 
 56; Neville v. Wilkinson, 1 Bro. Ch. 2628; Covley v. McElmeel, 149 N. Y. 
 543, 596 ; Tyler v. Black, 54 U. S. 230 ; 228 ; Allaire v. Allaire, 37 N. J. L. 312; 
 Ahrens v. Jones, 169 N. Y. 555; Wil- 1 Perry on Trusts, § 182. In New 
 liams V. Vreeland, 29 N. J. Eq. 417 ; York, however, its validity or invalidity 
 Heuschel v. Mamero, 120 111. 660; may now be settled once for all by an 
 Sohler V. Sohler, 135 Cal. 323. action in the Supreme Court, at any 
 
 5 In the old Probate Courts of Eng- time within two years after probate, 
 land (theso-called Ecclesiastical Courts), N. Y. Code Civ. Pro. § 2653 a; Dobie v. 
 a will of real property could not be pro- Armstrong, 1 60 N. Y. 584. 
 
 bated, anil a will which disposed of both ^ Allen v. McPherson, 1 H. L. Cas. 
 
 realty and personalty could be probated 191 ; Roberts w. Wynne, 1 Ch. Rep. 125; 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 533 
 
 his attempted fraud a particular devise or bequest in a will 
 otherwise valid, as by orally promising to hold it for another, 
 and subsequently attempting to ignore such promise ; ^ or has 
 fraudulently procured a will giving him an interest in real 
 property which can not be reached by any real action, as when 
 it is only a remainder or reversion of which he can not take 
 present possession,^ equity will prevent a fraud hy treating him 
 as a trustee for the party who should rightfully have the 
 property.^ 
 
 § 376. Elements of Such Fraud. — In order to establish a 
 trust against one who by actual fraud has obtained the legal 
 estate from the rightful owner, all the elements of the wrong- 
 ful act must be proved, in substantially the same manner as in 
 an action in tort for fraud in a court of common law. The 
 complainant might elect to sue in tort and recover pecuniary 
 damages. Instead of doing so, he goes into equity for a differ- 
 ent and for him a better remedy ; and there he proves the six 
 requisites to the existence of actual fraud. These are, that 
 the defendant made a representation which in spirit and 
 esseuce was false, and that he did so either by expressing an 
 untruth (^expressio falsiy or by suppressing the truth (suppressio 
 veri), as by remaining silent when it was his duty to speak ; * 
 that he made such representation with wrongful and fraudulent 
 intent, which fact may be proved by showing that he made it 
 knowing it to be false, or without belief in its truth, or reck- 
 lessly, careless whether it was true or false ; ^ that he made it with 
 
 Ellis V. Davis, 109 U. S. 485 ; Farrell v. ^ Brady v. McCosker, 1 N. Y. 214 ; 
 
 O'Brien, 199 U. S. 89, 103; Colton v. Clarke v. Sawyer, 2 N. Y. 498. See 
 
 Ross, 2 Paige Ch. (N. Y.) 396; Ander- Anderson v. Anderson, 112 N. Y. 104, 
 
 son V. Anderson, 112 N. Y. 104, 114; 113-116. 
 
 Kalish V. Kalish, 166 N. Y. 368; Ton- ^ Cases cited in last two preceding 
 
 nele v. Wetmore, 124 N. Y. App. Div. notes; 1 Perry on Trusts, § 182; Bis- 
 
 686, 694; Adams v. Adams, 22 Vt. 50; pham's Prin. Kq. § 199. 
 
 Garland v. Smith, 127 Mo. 583; Lang- * See Le Lievre v. Gould (1893), 1 
 
 don !). Blackburn, 109 Cal. 19. In a few Q. B. 491, 498; Kountze v. Kennedy, 
 
 early English cases, the opposite view 147 N. Y. 124. 
 
 was held. See Maundy v. Maundy, 1 * Broderick v. Broderick, 1 P. Wms. 
 
 Ch. Rep. 66; Welby i'. Thornagh, Pr. 238; Boyce v. Grandy, 28 U. S. 210; 
 
 Ch. 123; Gosst). Tracy, I P. Wms. 287. Atwood v. Small, 6 Clark & Fin. 232; 
 
 But now the rule as stated in the text is Brownlie u. Camphell, L. R. 5 App. 
 
 everywhere settled. See also 1 Perry Cas. 925; Schumaker v. Mather, 133 
 
 on Trusts, § 182; Bispham's Prin. Eq. N. Y. 590; People u. Peckens, 153 N.Y. 
 
 § 199. 576, 592. See 1 Perry on Trusts, §§171- 
 
 1 Kennell y. Abbott, 4 Ves. 802; 177. 
 
 Matter of Will of O'Hara, 95 N. Y. ' Derry v. Peek, L. R. 14 App. Cas. 
 
 403 ; Church v. Kuland, 64 Pa. St. 432 ; 337, 374 ; Angus v. Clifford (1891), 2 Ch. 
 Gilpatrick v. Glidden, 81 Me. 137. 
 
534 
 
 ESTATES IN REAL PROPERTT. 
 
 intent that it should be acted on, or with reasonable ground to 
 believe that it would be acted on ; ^ that it was acted on by 
 the complainant, who under the circumstances was justified as 
 a reasonable person in so acting ; ^ that the statement was 
 material — a substantial moving cause of the complainant's 
 conduct,^ and that it has caused pecuniary damage as a 
 proximate result, or will do so unless the relief prayed 
 for — the establishment of a constructive trust and the 
 consequent disposition of the property — is granted by the 
 court* 
 
 All of these elements of actual fraud have been fully dis- 
 cussed and explained by the courts. Thus, it is settled that 
 ihe false representation may be made by words written or 
 spoken, by signs, gestures, or other acts, or by remaining silent 
 or passive when one is under a duty to act or speak. Such 
 a duty arises whenever a fiduciary relation exists between 
 the parties ; ^ and also generally in the case of a latent defect 
 in the thing involved, of which defect one party is aware, 
 and which he believes the other party does not know of and 
 
 449 ; Edington v. Fitzmanrice, L. R. 29 
 Ch. Div. 459 ; Lehigh Zinc & Iron Co. 
 V. Bamford, 150 U. S. 665; Lamberton 
 V. Dunham, 165 Pa. St. 129; Hadcock 
 V. Osmer, 153 N. Y. 604; Nash v. 
 Minnesota Title Co., 163 Mass. 574; 
 Bispham's Prin. Eq. § 214 ; 1 Perry on 
 Trusts, § 174; Kerr on Fraud and Mis- 
 take, 73, 74; 1 Story's Eq. Jur. §§ 192, 
 193. When he who makes the repre- 
 sentation fairly and honestly believes 
 in its truth, he is not guilty of fraud. 
 Angus V. Clifford (1891), 2 Ch. 449; 
 Nash V. Minnesota Title Co., 163 Mass. 
 574; Kountze v. Kennedy, 147 N. Y. 
 124; Houston v. Thornton, 122 N. C. 
 ^65. 
 
 1 " Where a party intentionally or 
 by design misrepresents a material fact, 
 or produces a false impression in order 
 to mislead another, or to entrap or cheat 
 him, or to obtain an undue advantage of 
 him — in every such case there is posi- 
 tive fraud in every sense of the term ; 
 there is an evil act, with an evil intent, 
 dolum malum, ad circumviendum." 1 
 Story's Eq. Jur. §§ 192, 193; Hickey 
 V. Morrell, 102 N. Y. 454. 
 
 " Atwood V. Small, 6 CI. & Fin. 232, 
 
 336; Redgrave v. Hurd, L. R. 20 Ch. 
 Div. 1, 13 ; Hickey v. Morrell, 102 N. Y. 
 454; Brown v. Leach, 107 Mass. 364; 
 Clark V. Everhart, 63 Pa. St. 347 ; Pratt 
 V. Philbrook, 33 Me. 17 ; Parker v. 
 Hayes, 39 N. J. Eq. 469; Bispham's 
 Prin. Eq. § 215. 
 
 8 Pulsford !>. Richards, 17 Beav. 87, 
 96 ; Arnison v. Smith, L. R. 41 Ch. 
 Div. 348; Strong w. Strong, 102 N. Y. 
 69; Levick v. Brotherline, 74 Pa. St. 
 149, 157; Kerr on Fraud and Mistake, 
 73, 74; 1 Perry on Trusts, § 175. 
 
 4 Smith V. Kay, 7 H. L. Cas. 750, 
 775; Clarke v. White, 37 U. S. 178; 
 Wells I,. Waterhouse, 22 Me. 131 ; 
 Taylor v. Guest, 58 N. Y. 262 ; Hotch- 
 kin V. Third Nat. Bk. of Malone, 127 
 N. Y. 329 ; Brauham v. Record, 42 Ind. 
 181; Rogers v. Higgins, 57 111. 244; 
 Marr'a Appeal, 78 Pa. St. 66, 69 ; Kerr 
 on Fraud and Mistake, 94. 
 
 6 Bulkley v. Wilford, 2 CI. & Fin. 
 102 ; Brownlie v. Campbell, L. R. 5 
 App. Cas. 925 ; Pidcock v. Bishop, 3 
 Barn. & Cr. 605; Bennett v. Judson, 
 21 N. Y. 238; Paddock v. Strobridge, 
 29 Vt. 470 ; Kerr on Fraud and Mis- 
 take, 95 ; 1 Perry on Trusts, § 178. 
 
EQUITABLE ESTATES. — CONSTRUCTIYE TRUSTS. 535 
 
 can not with due diligence discover.^ The representation 
 made in either of these ways must be of some material 
 fact, and not merely as matter of opinion or judgment.^ 
 The vendor may praise the property to be sold, or ;puff 
 its value, or depreciate the worth of what is offered in ex- 
 change, without being guilty of fraud. But if he misrepre- 
 sent a fact, as by stating that the house is newer than he 
 knows it to be, or by failing to reveal the truth known to him- 
 self as to the recent removal therefrom of a smallpox patient, 
 he is guilty of the act which constitutes the first of the above- 
 stated requisites of actual fraud.^ So, the other party must 
 have fairly or justifiedly relied upon the representation as 
 a fact.* If he knew or honestly believed it to be false,^ or 
 made inquiries for himself and ascertained that it was not true,^ 
 or if it were so plainly absurd, indefinite, or impossible that no 
 reasonable man could be expected to rely upon it,^ one of the 
 requisites to this kind of fraud would be lacking. In a word, 
 it is not a case to call for equitable relief on the ground of 
 actual fraud, unless there are alleged and proved all the ele- 
 ments of that wrong, in the manner moi-e fully explained in 
 the books on fraud, as the basis of an action in tort.^ 
 
 § 377. Transfer of Legal Estate prevented by Fraud. — In 
 
 .cases, moreover, where conveyances or other transfers of legal 
 
 interests have been prevented by fraud, constructive trusts will 
 
 be declared in favor of those who ought rightfully to have the 
 
 property.^ Thus, if an heir inherit land because by false re- 
 
 1 Hill V. Gray, 1 Stark. 434 ; Keates ^ Hough v. Richardson, 3 Story 
 
 V. Cadogan, 2"Eng. L. & Eq. 318; (U.S. Cir. Ct.), 6.59; Veasey y. Doton, 
 
 Squire v. Whitton, 1 H. L. Cas. .333; 3 Allen (Maas.), 380; Kerr ou Eraud, 
 
 Leake on Contracts, 199. See Laidlaw and Mistake, 75. 
 
 V. Organ, 1.5 U. S. 178. ^ Jennings v. Broughton, 17 Bear. 
 
 ^ Sonthern Construction Co. v. Silva, 234 ; Redgrave v. Hurd, L. E. 20 Ch. 
 
 125 U. S. 247 ; Sawyer v. Prickett, 86 Div. 1, 13 ; Clark v. Everhart, 63 Pa. 
 
 U. S. 146; Hadcock v. Osmer, 153 N. Y. St. 347 ; Pratt v. Philbrook, 33 Me. 17. 
 
 €04 ; Watts v. Cummins, 59 Pa. St. 84 ; ' Derry v. Peek, L. R. 14 App. Cas. 
 
 Bispham's Prin. Eq. § 207. 337 ; Blygh v. Samson, 137 Pa. St. 367, 
 
 ' Eerson v. Sanger, 1 Wood & M. 376; Irving v. Thomas, 18 Me. 418; 
 
 138, 146 ; Lowndes u. Lane, 2 Cox, Savage v. Jackson, 19 6a. 305. 
 
 363; Tyler v. Black, 54 U. S. 230; 8 Exhaustive discussions of these 
 
 Ensh V. Vought, 55 Pa. St. 437 ; Cesar elements are to be found in works on 
 
 V. Karntz, 60 N. Y. 229 ; Daly h. Wise, " Fraud " and " Torts." 
 
 132N. Y. 306; 1 Perry on Trusts, § 173. 9 Middleton v. Middleton, 1 Jac. & 
 
 * Atwood V. Small, 6 01. & Fin. 232, W. 94, 96 ; Oldham v. Litchford, 2 
 
 336; Redgrave v. Hurd, L. R. 20 Ch. Vern. 506; Mestaer v. Gillespie, 11 
 
 Div. 1, 13 ; Hickey v. Morrell, 102 N. Y. Ves. 621, 638 ; Jenkins v. Eldredge, 3 
 
 434; Parker v. Hayes, 39 N. J. Eq. Story (U. S. Cir. Ct.), 181; Church v. 
 
 469. Euland, 64 Pa. St. 432 ; Cowperthwaite 
 
686 ESTATES IN REAL PROPERTY. 
 
 presentations he induced his ancestor to abstain from devising 
 it to other persons, he will hold it in trust for those who would 
 otherwise have been the devisees.^ So, if heirs or devisees 
 fraudulently prevent a testator from charging his property 
 with legacies or annuities, they will take it burdened with a 
 trust in favor of the intended annuitants or legatees.^ And 
 whenever one wrongfully intercepts a gift or contemplated 
 transfer, which is designed for another, by promising directly 
 or indirectly that he will hand it over to that other, he takes 
 it in trust for the intended beneficiary .^ Equity will raise a 
 trust to frustrate fraud, whether it springs from negation or 
 positive act ; and where that court finds one holding the legal 
 estate or interest in property, which ex equo et bono he ought 
 not to retain, it will convert him into a trustee for those to 
 whom such property rightfully belongs.* 
 
 § 378. Trusts arising from Crime. — It is in conformity to 
 this general principle that constructive trusts are sometimes 
 raised against those who seek to retain property obtained by 
 them because of accident or the honest mistake of others.^ 
 And, at the other extreme, it is the same principle which some- 
 times makes a thief or felon a trustee of that which lie has 
 obtained by his crime.® Accordingly, it is held in England, New 
 
 V. Bank, 102 Pa. St. 397; Whitehouse * Cases cited in preceding notes on 
 
 V. Bolster, 95 Me. 458 ; Pischbeck u. this section ; Wallgrave v. Tebbs, 2 
 
 Gross, 112 111. 208; Schefferraeyer v. Kay & J. 313; Matter of Will of 
 
 Schaper, 97 Ind. 70. O'Hara, 95 N. Y. 403 ; Amherst College 
 
 1 Middleton v. Middleton, 1 Jac. & v. Rich, 151 N. Y. 282; Fairchild v. Ed- 
 
 W. 94, 96 ; Button v. Poole, 2 Lev. 211; son, Edson v. Bartow, 154 N. Y. 199 ; 
 
 Eeech v. Kennegal, 1 Ves. Sr. 123; Whitehouse v. Bolster, 95 Me. 458; 
 
 McGowanti.McGowan, 14 Gray (Mass.), Tucker v. Phipps, 3 Atk. 359; Eyton 
 
 119. . V. Eyton, 2 Vern. 380; Gaines v. Hen- 
 
 " Chamberlain v. Chamberlain, Free- nen, 65 U. S. 553 ; Ward v. Webber, 
 
 man, 34 ; Huguenin v. Beasley, 14 Ves. 1 Wash. (Va.) 274 ; Schultz's Appeal, 
 
 27.3, 290; Thynn u. Thynn, 1 Vern. 80 Pa. St. 396. 
 
 296; Hoge v. Hoge, 1 Watts (Pa.), 163, ^ Bingham v. Bingham, 1 Ves. Sr. 
 
 213. See Matter of Will of O'Hara, 126; Pusey v. Desbouvrie, 3 P. Wms. 
 
 95 N. Y. 403; Amherst College v. 316; Midland Gt. West. R. Co. v. 
 
 Rich, 151 N. Y. 282; Fairchild v. Ed- Johnson, 6 H. L. Cas. 798, 811 ; Fry v. 
 
 son, Edson u. Bartow, 154 N. Y. 199; Lane, L. R. 40 Ch. Div. 312; Goode 
 
 Edson !■. Parsons, 155 N. Y. 555 ; Oliffe v. Riley, 153 Mass. 585 ; Short v. Cur- 
 
 V. Wells, 130 Mass. 221, 224. rier, 153 Mass. 182. 
 
 8 Barrow v. Greenbongh, 3 Ves. ^ Nebraska Nat. Bk. v. Johnson, 51 
 
 152 ; Podmore v. Gunning, 7 Sim. 644 ; Neb. 546 ; Grouch v. Hazlehurst L. Co., 
 
 Milleru. Pearce, 6 Watts&S. (Pa.) 97; 16 So. Rep. (Miss.) 496. See Mutual 
 
 Hogew. Hoge, 1 Watts (Pa.), 163, 213. Life Ins. Co. v. Armstrong, 117 U. S. 
 
 See Kine v. Farrell,71 N. Y. App. Div. 591 ; EUerson v. Westcott, 148 N. Y. 
 
 2X9. 149, 153. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 537 
 
 York and a few other states in this country, that a person who 
 kills another in order to procure the latter's estate by descent or 
 devise can not take the property ; or, if he take it at all, he holds 
 it in trust for the innocent and rightful owners.^ In other 
 states, such as Nebraska, Pennsylvania and Illinois, it is held 
 that the crime does not affect the will or the rules of descent, 
 but that the punishment of the murderer is to be intiicted solely 
 by the criminal law.^ While the latter of these views is per- 
 haps the more technically accurate, the former seems to accord 
 better with good morals and to be the more likely to produce 
 the best equitable results.^ 
 
 /8. Constructive Trusts arising from Presumptive Fraud. 
 
 § 379. Nature and Causes of Such Trusts. — In going beyond 
 the scope of courts of law in regard to fraud, and presuming 
 its existence under some circumstances, equity has recognized 
 three additional forms of that wrong as causing constructive 
 trusts. These are, (a) fraud presumed from the intrinsic 
 nature of the transaction, (/3) fraud presumed from the rela- 
 tions of the parties to the transaction, and (7) fraud presumed 
 or declared to exist as affecting third parties.* It is in dealing 
 with constructive trusts arising from these species of fraud that 
 the beneficent and practically exclusive jurisdiction of courts 
 of equity comes specially into play. The first group (a) may 
 be illustrated by a conveyance of land for a grossly inadequate 
 consideration,^ the second (/3) by a gift of a trust interest from 
 cestui que trust to trustee.® and the third (7) by a voluntary 
 coaveyance of property in fraud of creditors.'' 
 
 § 380. (a) Constructive Trusts arising from Fraud presumed 
 from the Intrinsic Nature of the Transaction — Inadequacy of Pur- 
 
 1 Cleaver v. Mutual Res. F. L. Ass'n * Chesterfield v. Janssen, 1 Atk. 301, 
 (1892), 1 Q. B. 147 ; Riggs v. Palmer, 1 Lead. Cas. Eq. 541 ; Story, Eq. Jur. 
 115 N. Y. 506; Landy v. Lnndy, 24 § 258 ; Bispham's Prin. Eq. § 205. This 
 Can. Supr. Ct. 650 ; 36 Amer. Law Reg. group may include some cases of actual 
 N. 8. 227 ; 41 Cent. Law Jour. 377. fraud. They are placed here, somewhat 
 
 2 Skellenberger v. Ransom, 41 Neb. illogically perhaps, but for convenieuce 
 631, 31 Neb. 61 ; Carpenter's Estate, of treatment. 
 
 170 Pa. St. 203; Holdom v. Ancient ' Osgood v. Eranklin, 2 Johns. Ch. 
 
 Order of U. W., 159 111. 619 ; Owens v. (N. Y.) 1 ; Rosevelt v. Fulton, 2 Cow. 
 
 Owens, 100 N. C. 240 ; Deen v. Milli- (N. Y.) 129; Byers v. Surget, 60 U. S. 
 
 kin, 6 Ohio Cir. Ct. 357. 303; Gifford v. Thorn, 9 N. J. Eq. 702. 
 
 3 See 36 Amer. Law Reg. N. s. 227 ; ° Adams v. Cowen, 177 U. S. 471, 
 41 Cent Law Jour. 377 ; Mut. Life Ins. 482, 484. 
 
 Co. V. Armstrong, 117 TJ. S. 591, 597. ' Twyne's Case, 1 Smith's Lead. 
 
 Cas. 1 ; Means v. Dowd, 128 U. S. 273. 
 
538 ESTATES IN KEAL PROPERTY. 
 
 chase Price. — In Chesterfield v. Janssen,^ Lord Hardwicke 
 described one kind of fraud as that which is " apparent from 
 the intrinsic value and subject of the bargain, such as no man 
 in his senses, and not under delusion, would make on the 
 one hand, and as no honest or fair man would accept on the 
 other." An instance of such a bargain is a conveyance of 
 property for a grossly inadequate consideration — for a price 
 so small as to " shock the conscience " of the court ^ — for a 
 compensation whose unfairness is "so gross and manifest 
 that it is impossible to state it to a man of common sense 
 without producing an exclamation at the inequality of it. " ^ 
 Mere inadequacy of consideration alone, where it is not un- 
 conscionably great and startling, will not cause a construc- 
 tive trust to be raised on the presumption of fraud. Courts 
 of equity, as well as those of law, will leave capable con- 
 tracting parties free to reap advantage or suffer loss from 
 an ordinary bargain.* But when the insufficiency of the 
 consideration is so manifest and glaring as to be in itself 
 from a fair point of view an evidence of fraud, it will be so 
 treated ; and upon the presumption thus caused a constructive 
 trust will emerge. Such cases are rare. But the instances 
 are numerous in which other suspicious circumstances, though 
 slight, when added to the fact of inadequacy of consideration, 
 have given rise to constructive trusts.^ Thus, when the vendor 
 who is not fairly paid is in pecuniary distress at the time of 
 
 1 1 Atk. 301, 2 Ves. Sr. 125, 155, 53 V. S. 197; Slater v. Maxwell, 73 
 1 Lead. Cas. Eq. 541. U. S 268; Seymour i». Delancy, 3 Cow, 
 
 2 Colesu. Trecotliick,9Ves.234, 246; (N. Y.) 445; Lee v. Kirby, 104 Mass, 
 Ilnderhill v. Horwood, 10 Ves. 209; 420; Hemingway w. Coleman, 49 Conn. 
 Horsey w. Hough, 38 Md. 130; Osgood u. 390; Cummings's Appeal, 67 Pa. St, 
 Franklin, 2 Johns. Ch. (N. Y.) 1 ; Medi- 404 ; Phillips v. PuUen, 45 N. J. Eq. 
 cal College Laboratory;;. New York XJni- 830; Cooper a. Reilly, 90 Wis. 427 
 Tersity, 178 N. Y. 153; Eyre u. Potter, Wood v. Craft, 85 Ala.' 260. 
 
 56 U. S. 42, 60; Howard u. Edgell, 17 « Gwynne v. Heaton, 1 Bro. Ch. 8 
 
 Vt. 9 ; Booker v. Anderson, 35 111. 66. James v. Morgan, 1 Lev. HI; Byers « 
 
 8 Lord Thurlow, in Gwynne v. Hea- Surget, 60 U. S. 303 ; Eyre v. Potter, 
 ton, 1 Bro. Ch. 8. And see Hamet v. 56 U. S. 42 ; Hume v United StateS; 
 Dundass, 4 Barr (Pa.), 178 ; Gifford 132 U. S. 406 ; Osgood v. Franklin, 2 
 V. Thorn, 9 N. J. Eq. 702 ; PhiUips v. Johns. Ch. (N. Y.) 1 ; Hodgson v. Far- 
 Pullen, 45 N. J. Eq. 830; Brown v. rail, 15N. J. Eq. 88; Phillips «. PuUen, 
 Hall, 14 R. L 249 ; Taylor v. Atwood, 47 45 N. J. Eq. 830 ; Taylor v. Atwood, 47 
 Conn. 498 ; Case v. Case, 26 Mich. 484 ; Conn. 498 ; Brown v. Hall, 14 R. I. 249 
 Garrett v. Kan. City Coal Min. Co., 113 Howard v. Howard, 87 Ky. 616; Gal- 
 Mo. 3.30; Boyce u. Fisk, 110 Cal. 107. braith v. McLaughlin, 91 Iowa, 399, 
 
 ^ Harrison v. Guest, 6 DeG. M. & G. And in some extreme cases, law courts 
 
 424, 8 H. L. Cas. 481 ; Cockell v. Tay- have granted relief on this ground, 
 
 lor, 15 Beav. 103 ; Erwiu v. Par ham, Hume v. United States, 132 U. S. 406, 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 539 
 
 his sale,^ or is weak-minded ^ or very ignorant,^ or has been 
 to some extent under the authority or domination of the pur- 
 chaser,* such a trust will readily be declared. Clear evidence 
 of such circumstances readily shifts the burden of proof and 
 fastens a trust upon him who has obtained large value for 
 small consideration, unless he clearly convinces the court 
 that no fraud of any kind was practised.^ 
 
 § 881. Sale of Ezpectant Interest by Heir or Reversioner. — 
 Where one holds a temporary interest in property, such as a 
 life estate or an estate as tenant for years, and another ex- 
 pects to obtain the land as heir and reversioner or remain- 
 derman, a sale, by the latter, of such future estate is looked 
 upon with suspicion by a court of equity ; and, if the consid- 
 eration be inadequate, a constructive trust may be accordingly 
 declared against the purchaser.^ The prospective heir is 
 regarded as probably acting at a disadvantage, in that dis- 
 tress or need of present income may cause him to part with 
 his inheritance for less than its fair value. It is clearly 
 against public policy to permit others to take advantage of 
 such circumstances.^ This class of cases, therefore, is simply 
 one of the instances of those mentioned in the preceding para- 
 graph — fraud is presumed, and a constructive trust raised 
 from the inadequacy of price, coupled with the fact that the 
 
 1 Cockell V. Tajlor, 15 Beav. 103; ' Earl of Aylesford v. Morris, 8 Cli. 
 Warfield v. Ross, 38 Md. 85. Eep. 484, 490; O'Korke v. Bolingbroke, 
 
 2 Clarkson v. Hanway, 2 P. Wma. L. B. 2 App. Cas. 814, 834 ; Fry v. 
 203; How t/. Weldon, 2 Ves. Sr. 516; Lane, E. K. 40 Ch. Div. 312, 320; 
 Allore 11. Jewell, 94 U. S. 506 ; Rumph Savery v. King, 5 H. L. Cas. 627 ; 
 V. Abercrombie, 12 Ala. 64 ; Mann w Varick v. Edwards, 1 Hoff. Ch. (N. Y.) 
 Betterley, 21 Vt. 326. 382 ; Powers' Appeal, 63 Pa. St. 443 ; 
 
 8 Pickett V. Loggon, 14 Vea. 215; Wright v. Wright, 51 N. J. Eq. 475; 
 
 Wood V. Abrey, 3 Madd. 417 ; Cookson Larrabee v. Larrabee, 34 Me. 477 ; But- 
 
 V. Richardson, 69 111. 137 ; McKinney ler v. Duncan, 47 Mich. 94 ; McClure 
 
 V. Pinkard, 2 Leigh (Va.), 149 ; Esham «. o. Rabeu, 133 Ind. 507. The presump- 
 
 Lamar, 10 B. Mon. (Ky.) 43. tion being thus in favor of the heir, 
 
 * Gibson v. .Jeyes, 6 Vcs. 267 ; because of his position, the rule is the 
 
 Brooks «. Berry, 2 Gill (Mil.), 83 ; Grif- same when he is of full age. It is based, 
 
 fith V. Godev, 113 U. S R9, »■'>. not upon any personal disability on his 
 
 ' Cases cited in last five notes, s«;>m / part, but upon the assumed stres.'s of 
 
 Hardy v. Dvas, 203 111. 211 ; 1 Perry circumstances which causes him to sell 
 
 on Trusts, § 187 ; 1 Sug. V. & P. (8th his patrimony. Davis v. Marlborough, 
 
 Am. ed.) 119; Bispham's Prin. Eq. 2 Swanst. 113, 146 ; Addis v. Campbell, 
 
 § 219. 4 Beav. 401. By some the rule is said 
 
 ^ Gowland v. De Faria, 1 7 Ves. 20 ; to grow out of the assumption that such 
 
 James n. Kerr, L. K. 40 Ch. Div. 449 ; a transfer is a fraud on the ancestor. 
 
 Wright V. Wright, 51 N. J. Eq. 475 ; See Varick v. Edwards, 1 Hoff. Ch. 
 
 Chambers v. Chambers, 139 Ind. 111. (N. Y.) 382, 402. 
 
540 
 
 ESTATES IN REAL PROPERTY. 
 
 subject-matter is the vendor's patrimony or expectancy. The 
 courts have vacillated considerably in dealing with transfers 
 like these. Some of the American decisions go to the extent 
 of practically declaring such a sale by an heir, during the 
 life of his ancestor, or the continuance of the temporary hold- 
 ing, to be void.i But the recent cases are much more liberal in 
 dealing with these transactions.^ On both sides of the Atlantic, 
 the conclusion now appears to be that the burden rests on the 
 purchaser of such an interest to show fairness and good faith 
 on his part ; and, this being proved by reasonably clear evi- 
 dence, he may retain the property freed from any trust.* 
 When the father or ancestor joins with the heir in making 
 the sale, or otherwise assists him in the transaction, or when 
 the price received is substantially adequate, no trust will arise 
 unless actual fraud or unfair dealing is proved.* 
 
 § 382. other Instances of Fraud presumed from the Nature 
 of the Transaction are found in contracts tainted with usury,^ 
 
 1 Boynton v. Hubbard, 7 Mass. 112; 
 Poor V. Hazleton, 15 N. H. 664; David- 
 son V. Little, 22 Pa. St. 245, 252; 
 McClnre v. liaben, 133 Ind. 507 ; Hale 
 II. HolloD, 90 Texas, 427. 
 
 2 Kuhn's Appeal, 163 Pa. St. 438; 
 Whelen v. Phillips, 151 Pa. St. 312; 
 Clendening v. Wyatt, 54 Kan. 523 ; 
 American note to Chesterfield v. Jans- 
 sen, 1 Lead. Cas. Eq. p. *541. 
 
 ' Aylesford u. Morris, 8 Ch. Rep. 
 484 ; Fry v. Lane, L. R. 40 Ch. Div. 
 312, 321 ; James v. Kerr, L. R. 40 Ch. 
 Div. 449,460 ; Wright v. Wright, 51 N. J. 
 Eq. 475 ; Chambers v. Chambers, 139 
 Ind. Ill; Hale v. HoUon, 90 Texas, 427. 
 By the English statute 31 &32 Vict. oh. 
 4, it is provided that no fair and bond-fide 
 purchase of any reversionary interest in 
 either realty or personalty shall be set 
 aside merely on the ground of inade- 
 quacy of consideration. But it is held 
 that this enactment still leaves the 
 Court of Chancery free to set aside 
 such transfers, where it can find any 
 evidence of unfair dealing ; and thus 
 conveyances by heirs of their expec- 
 tancies are retained under its protection. 
 Miller !). Cook, L. U. 10 Eq. 641 ; James 
 V. Kerr, L. R. 40 Ch. Div. 449, 460 ; Bees 
 V. De Bernardy (1896), 2 Ch. 437. 
 
 * O'Rorke o. Bolingbroke, L. R. 2 
 App. Cas. 814, 828; Fitch v. Fitch, 8 
 Pick. (Mass.) 480; Nimmo v. Davis, 7 
 Texas, 26 ; 1 Sugd. T. & P. 427. So con- 
 veyances of this kind in terminating dis- 
 putes in families and making settlements 
 are favored. King v. Hamlet, 2 Myl. & K. 
 456 ; Kenney v. Tucker, 8 Mass. 143 ; 
 Powers' Appeal, 63 Pa. St. 443. But 
 see Needles v. Needles, 7 Ohio St. 432. 
 But mere knowledge or assent on the 
 part of the ancestor, who does not join 
 in the transaction nor assist in it in any 
 way, does not seem to be sufficient to 
 rebut the presumption of fraud or pre- 
 vent the establishment of a constructive 
 trust. Note to Chesterfield v, Janssen, 
 1 Lead. Cas. Eq. p. * 541 ; Aylesford ■». 
 Morris, 8 Ch. Rep. 484, 491. See Fry v. 
 Lane, L. R. 40 Ch. Div. 312, 321 ; Mc- 
 Clure«. Raben, 133 Ind. 607; Hale v, 
 HoUon, 90 Texas, 427. 
 
 ' Aylesford v. Morris, 8 Ch. Rep. 
 484; Barrow v. Rhinelander, 1 Johns. 
 Ch. (N. Y.) 550 ; Williams v. Fitzhough, 
 37 N. Y. 444 ; Buckingham v. Corning, 
 91 N. Y. 525 ; M. K. & T. Trust, Co. v. 
 Krumseig, 40 U. S. App. 620 ; Munford 
 V. McVeigh, 92 Va. 446; Sporrer ». 
 Eifler, 1 Heisk. (Tenn.) 633. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 
 
 541 
 
 wagering contracts,^ marriage brokerage contracts,^ and con- 
 veyances or transfers, or agreements to make them, upon 
 considerations or arrangements which would result in illegal 
 restraint of marriage,^ or of trade,* or in the improper pro- 
 curement of public office,* or which would in any other manner 
 violate sound principles of law or public policy.* Proceed- 
 ing upon the general maxim, ex turpi causd non oritur actio, 
 both courts of law and those of equity refuse to enforce such 
 agreements when executory.^ And when the outcome of any 
 one of them has been the acquisition of the legal title to 
 property, the retention of which would amount to the carry- 
 ing out of such an illegal transaction or design, equity treats 
 him who thus holds the title as a constructive trustee for 
 the person or persons to whom it should rightfully belong.' 
 Placing these improper contracts and transfers under the gen- 
 eral head of fraud in its broad, comprehensive sense, that 
 
 I Eawden v. Shadwell, Ambler, 269 ; 
 Stat. 8 & 9 Vict. ch. 109, § 18 ; Embrey 
 V. Jemison, 131 U. S. 336 ; Harvey v. 
 Merrill, 150 Mass. 1 ; Lynch u. Rosen- 
 thal, 144 lud. 86; Daoler v. Hartley, 
 178 Pa. St. 23. 
 
 " These are agreements made for 
 negotiating marriages, and in most 
 iarisdictions are held to be fraudulent 
 and void. Cole v. Gilson, 1 Ves. Sr. 
 .503 ; Duval v. Wellman, 124 N. Y. 156 ; 
 White V. Nuptial Benefit Uuion, 76 
 Ala. 251 ; Story, Eq. Jur. § 263. 
 
 ' Scott V. Tyler, 2 Lead. Cas. Eq. 
 p. * 144, and note ; Stackpole v. Beau- 
 mont, 3 Ves. 89, 96 ; Smythe v. 
 Smythe, 90 Va, 638 ; Bispham's Prin. 
 Eq. §§ 225-227. 
 
 * Mitchel V. Reynolds, 1 P. Wms. 
 181 ; Nordenfelt o. The Maxim, etc. 
 (1894) App. Cas. .539 ; United States 
 V. Freight Ass'n, 166 U. S. 290, 346; 
 United States v. Joint Traffic Ass'n, 
 171 U.S. 505; Addyston Pipe & Steel 
 Co. V. United States, 175 U. S. 211 ; 
 People V. North River Sugar Refining 
 Co., 121 N. Y. 582; Diamond Match 
 Co. V. Roeber, 106 N. Y. 473 ; Cohen v. 
 Berlin & Jones Envelope Co., 166 
 N. Y. 292; Sternberg v. O'Brien, 48 
 N. J. Eq. 370, 372 ; Trenton Potteries 
 V. Oliphant, 56 N. J. Eq. 680 ; Chicago 
 Gas L. Co. V. People's Gas L. Co., 121 
 
 111. 530; Harrison «. Glucose Co., 116 
 Fed. Rep. 304, 309; Bispham's Prin. 
 Eq. § 228. 
 
 ' Chesterfield v. Janssen, 1 Atk. 301, 
 1 Lead. Cas. Eq. p. * 541 ; Basket v. 
 Mass., 115 N. C. 448; Bispham's Prin. 
 Eq. § 229. 
 
 s Wilkinson u. Wilkinson, L. R. 12 Eq. 
 604 ; Brown v. Peck, 1 Eden Ch. 140 ; 
 Matter of Haight, 51 N. Y. App. Div. 
 310; Goodrich v. Tenney, 144 111. 422; 
 Houlton V. Dunn, 60 Miim. 26 ; Lum 
 V. McKwen, 56 Minn. 278. 
 
 ' " The authorities from the earliest 
 time to the present unanimously hold 
 that no court will lend its assistance in 
 any way towards carrying out the terms 
 of an illegal contract. In case any 
 action is brought in which it is neces- 
 sary to prove the illegal contract in 
 order to maintain the action, courts will 
 not enforce it, nor will they enforce any 
 alleged rights directly springing from 
 such contract. In cases of this kind the 
 maxim is Potior est conditio defendentis." 
 McMuUeu V. Hoffman, 174 U. S. 639, 
 654; Peters v. Mortimer, 4 Edw. Ch. 
 (N. Y.) 279 ; Richardson v. Crandall, 
 48 N. Y. 348, 362 ; Snell v. Dwight, 120 
 Mass. 9 ; Scott v. Brown (1892), 2 Q. B. 
 724, 730. 
 
 ' A uthorities cited in preceding notes 
 on illegal contracts. 
 
542 ESTATES IN REAL PROPEETT. 
 
 court affords the most adequate remedy for the injured party 
 by raising in his favor a constructive trust. For the wrong- 
 doing trustee is then compelled to re-convey the property, or 
 the procedure by which he acquired it is declared to be null 
 and void and set aside; and thus the legal estate is vested 
 in the rightful owner. ^ In the absence of any controlling 
 statute (a), and pursuant to the maxim, "he who seeks equity 
 must do equity, " the party who obtains such redress is also 
 required to place the other party as nearly as possible in statu 
 quo; as, for example, by repaying the principal of a usurious 
 loan with legal interest upon the same. '■^ 
 
 § 383. (/3) Constructive Trusts arising from Fraud presumed 
 or apprehended from the Relations or Circumstances of the 
 Parties. — Whenever the condition or position of one of the 
 parties to a transaction is such that the other may have 
 acquired an unfair advantage more easily than in ordinary 
 cases, a court of equity will investigate the whole matter 
 with scrupulous care, and readily presume fraud, unless its 
 absence is clearly proved.^ Also, in order to prevent the 
 possible though hidden or undiscoverable perpetration of 
 such a wrong, that court will sometimes, under circum- 
 stances of this nature, declare a constructive trust to exist, 
 without directly presuming any fraud.* Apprehension of 
 
 (a) In New York, it is provided by statute that the " borrower " of 
 money upon usurious interest may have redress in equity, without paying 
 back or tendering any of the consideration received. R. S. 9th ed. p. 1856 
 (1 R. S. 772), § 8; L. 1909, ch.25, § 377. But this statute, being in dero- 
 gation of sound equitable principles, is very strictly construed. And any 
 one other than the "borrower" personally must do equity, by restoring 
 the amount of the loan with legal interest, in order to obtain relief. Such 
 is the devisee or heir of the borrower, who has secured the loan by a 
 usurious mortgage. The devisee, heir, or other holder of the land who 
 thus takes it subject to the mortgage, must pay or tender the principal of 
 the debt with legal interest, in order to obtain an equitable decree for the 
 cancellation of the mortgage. Buckingham v. Corning, 91 N. Y. 525. 
 
 1 That is, the ordinary equitable the parties contracting ; and this goes 
 remedy of restitution is granted, § 373, further than the rule of law, which 
 supra. is, that fraud must be proved, not pre- 
 
 2 Walker v. Dalt, 1 Oh. Cas. 276; sumed." Hoghton w. Hoghton, 1 5 Beav. 
 Buckingham ». Corning, 91 N. Y. 525; 278; Taylor !•. Taylor, 49 U. S. 183; 
 Bispham's Prin. Eq. § 222. Union Pacific R'way v. Harris, 1 58 U. S. 
 
 2 In Chesterfield i'. Janssen, 2 Ves. 326 ; 1 Perry on Trusts, § 194 ; 2 Story, 
 
 Sr. 125, Lord Hardwicke said that the Eq. Jur. § 239. 
 
 " third species of fraud may be presumed * Davoue v. Fanning, 2 Johns. Ch. 
 
 from the circumstances and condition of (N. Y.) 252, 259 ; Moore v. Moore, 5 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 64B 
 
 fraud is the causa ultima of all constructive trusts which 
 arise merely from the relations or circumstances of the 
 parties. In some cases it exists only as an apprehension, 
 while in others it becomes so strong as to merge into a 
 presumption. Thus, when a trustee purchases the trust prop- 
 erty at his own sale of the same, a constructive trust i^ ordi- 
 narily declared in order to prevent possible fraud, because 
 of the aversion of equity to letting a trustee occupy a position 
 in which he might so easily commit fraud without fear of 
 detection;^ while a gift of land from a client to his attorney, 
 who is conducting legal proceedings relative to such land, is 
 presumed to be fraudulent and becomes the basis of a construc- 
 tive trust. ^ Since the shadow of the same wrong falls through 
 the windows of Equity athwart all such cases, and they all 
 involve the same kinds and classes of parties, logically they 
 are all to be discussed in the same chapter. 
 
 § 384. Mental AATeakness, Drunkenness, Buress, Undue In- 
 fluence. — One of the clearest groups of instances of this char- 
 acter is that of contracts between parties, one of whom is 
 affected by mental weakness, intoxication, undue influence, 
 duress, fear, apprehension, or extreme distress.^ Mere 
 weakness of intellect alone, when there is no confidential 
 relation between the contracting parties and they deal "at 
 arm's length," is not a sufficient ground for the interference 
 of equity;* nor is a state of drunkenness, which does not 
 make the person substantially non compos mentis. ^ But when 
 
 N. Y. 256; People v. Open Board of Me. 21; Hill on Trustees, 156; Co. 
 
 Stock Brokers' Building Co., 92 N. Y. Lit. 447 a. 
 
 98; SchoUe v. SchoUe, 101 N. Y. 167'j * Osmond r. Fitzroy, 3 P. Wm3.129; 
 
 Corbin v. Baker, 167 N. Y. 128 ; Yeackle Hyer v. Little, 20 N. J. Eq. 443 ; Lozear 
 
 V. Litchfield, 13 Allen (Mass.), 417,419 ; v. Shields, 23 N. J. Eq. 509 ; Aiman v. 
 
 Rich V. Black, 173 Pa. St. 92, 99 ; Beck- Stout, 42 Pa. St. 1 14 ; Ex parte Allen, 
 
 ley V. Schlag, 46 N. J. Eq. 533 ; Taylor 15 Mass. 58 ; Mann v. Betterly, 21 Vt. 
 
 V. Calvert, 138 Ind. 67 ; Fox v. Macreth, 326 ; Rogers v. Higgins, 57 111. 244, 247 ; 
 
 1 Lead. Cas. Eq. 115, note; Hill on Stiner v. Stiner, 58 Barb. (N. Y.) 643. 
 
 Trustees, 248, note; Bispham's Priu. But, of course, a very great lack of 
 
 Eq. § 94. mental ability, such as results in idiocy 
 
 ' See cases cited in last preceding or insanity, renders the contract void, 
 
 note, also § 387, infra. or at least voidable, in any court having 
 
 ^ Holmes v. Loynes, 4 DeG. M. & G. jurisdiction of the subject-matter. 
 270; Morgan v. Minot, L. R. 6 Ch. Div. ^ Gore v. Gibson, 13 M. & W. 623; 
 
 638; Newman v. Payne, 2 Ves. 199, Cory u. Cory, 1 Ves. Sr. 19; Selah v. 
 
 200; Greenfield's Est., 14 Pa. St. 489, Selah, 23 N. J. Eq. 185; Gombault v. 
 
 506; § 390, infra. Public Adm'r, 4 Bradf. (N. Y.) 226; 
 
 ' Ralston v. Turpin, 129 U. S. 663 ; Fluck v. Rea, 51 N. J. Eq. 233 ; In re 
 
 Neilson u. McDonald, 6 Johns. Ch. Schusler's Est., 198 Pa. St. 81. 
 (N. Y.) 201, 210; Oak v. Dustin, 79 
 
644 ESTATES IN REAL PBOPEETY. 
 
 one of the parties is so intoxicated or so mentally deficient as 
 to lead the court to believe that he probably does not know 
 what he is doing, the presumption is against the other party 
 to the contract ; and he must fairly clear himself of all im- 
 putation of fraud, or have a constructive trust raised against 
 the property which he has acquired by the transaction.^ 
 And, as was explained heretofore,'^ mental incapacity much 
 less than this, from whatever cause it may proceed, and 
 whether temporary or permanent, may be enough to raise 
 such a trust, when it is coupled with the fact of inadequacy 
 of consideration, or there are other slight circumstances in- 
 dicating that the stronger mind may have taken an unfair 
 advantage of the weaker.^ So, not only those grosser forms 
 of duress for which there is a remedy in a court of law, — 
 duress of imprisonment, or per niinas, or by threats against 
 life or limb, * — but also the more subtle duress of the .volition, 
 called "equitable duress," and such influence as is "undue," 
 which without direct force or bodily constrainb compels a 
 person to do something that he does not wish to do, will 
 move a court of equity to imply a constructive trust in his 
 favor -(^ "for in cases of this sort he has no free will, but 
 stands in vinculis." ^ "As between parties occupying no 
 relation of confidence in or toward each other, or of control by 
 reason of position, employment, or otherwise, undue influence 
 can rarely be imputed without showing some degree of fear, 
 or threats, or advantage taken of position, or unfair practices 
 
 1 Goret). Gibson, 13 M. & W. 623; nardy (1896), 2 Ch. 437; 1 Perry on 
 Johnson v. Mellicott, 3 P. Wms. 130, Trusts, §§ 190, 191 ; Hill on Trustees, 
 note ; Thackrah v. Haas, 119 U. S. 499 ; 155. 
 
 Selah i>. Selah, 23 N. J. Bq. 185 ; Mans- * Ripley v. Gelston, 9 Johns. (N. T.) 
 
 field's Case, 1 2 Rep. 123 ; Howe v. Howe, 201 ; Guilleaume v. Rowe, 94 N. Y. 268 ; 
 
 99 Mass. 88; Helbregu. Schumann, 150 Elliott v. Swartwout, 35 U. S. 137; 
 
 111. 12; Hill on Trustees, 46. Fairbanks v. Snow, 145 Mass. 153; 
 
 2 §§ 380-382, supra. Heaps v. Dunham, 95 111. 583 ; Motz 
 8 AUore v. Jewell, 94 U. S. 506, 511 ; v. Mitchell, 91 Pa. St. 114; 1 Blackst. 
 
 Griffith V. Gody, 113 U. S. 89, 95; Rals- Com. p. *131. 
 
 ton V. Turpin, 129 U. S. 663 ; Dundee ^ Williams v. Bayley, L. R. 1 Eng. 
 
 Chem. Works v. Connor, 46 N. J. Eq. & Ir. App. 218; Eadie v. Slimmon, 26 
 
 576 ; Borden v. White, 44 N. J. Eq. N. Y. 9 ; McCandless v. Eugle, 51 Pa. 
 
 291; Raw v. Von Zedlitz, 132 Mass. St. 309; DoUiver v. DoUiver, 94 Gal. 
 
 164; Churchill v. Scott, 65 Mich. 485; 642; Bryant v. Peck & Co., 154 
 
 Yount V. Yount, 144 Ind. 133 ; Stepp v. 460 ; Bell v. Campbell, 123 Mo. 1 ; Fry 
 
 Frampton, 179Pa. St. 284; Highherger v. Lane, L. R. 40 Ch. Div. 312, 322; 
 
 i;. Stiffler, 21 Md. 338 ; Brice v. Brice, Chicago, etc. R. Co. o. Belliwith, 55 
 
 5 Barb. (N. Y.) 533, 549; Maggini v. U. S. App. 113; Jones v. A. & V. R. 
 
 Pezzoni, 76 Cal. 631 ; Jones v. Thomp- Co., 72 Miss. 22. 
 son, 5 Del. Ch. 374; Rees v. De Ber- » 2 Story, Eq. Jur. § 239. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 545 
 
 ■or persuasion, involving in some degree a species of fraud. 
 But when any of these elements enter into and constitute part 
 of the circumstances attending a transaction, and controlling 
 the will of a party making a deed or other contract, courts of 
 equity have long been accustomed to give relief.^ 
 
 § 385. Confidential Relations. — But the most numerous 
 aud important groups of cases, in which constructive trusts 
 are brought into being in the manner now under discussion, 
 are those in which some confidential relation exists between 
 the contracting or interested parties. Such are the relations 
 between trustee and cestui que trust, guardian and ward, attorney 
 and client, parent and child, husband and wife, principal and 
 agent, directors of a corporation and the corporation itself and 
 its stockholders, minister or priest and parishioner, tenants in 
 common, joint-tenants, or other co-owners of property, employer 
 and employee, partners, and the like. Equity looks with 
 suspicion upon agreements and transactions between Such 
 persons ; and, when the outcome is that he in whom the con- 
 fidence is reposed acquires property from or through the 
 other, frequently either the arrangement is wholly set aside 
 without proof, or the burden of showing the fairness of the 
 contract is thrown upon him who has acquired the legal 
 estate, or, if he fail to prove this, he is declared to hold 
 the property as constructive trustee for the other party.^ 
 Each of the most important of these relations requires 
 a separate discussion. There are three of them to be first 
 discussed, the existence of either of which alone is sufficient 
 to create a presumption against the fiduciary party who 
 seeks to acquire for his own benefit the property affected 
 by the trust or confidence. These are the relations of 
 trustee and cestui que trust, guardian and ward, and attorney 
 and client. The other confidential relations above stated 
 call for careful scrutiny by the court ; and, while neither of 
 them alone will ordinarily be ground for implying a trust, 
 
 1 Per Smith, J., in Eadie v. Sliramon, great that the presumption ought to he 
 
 26 N. Y. 9, 11 ; Adams v. Irving Nat. against the transaction, and the person 
 
 Bk., 116 N". Y. 606; Peyser v. Mayor, holding the trust or influence ought to 
 
 70 N. Y. 497, 501 ; Osborn v. Robhins, he required to vindicate it from all Iraud, 
 
 36 N. Y. 365 ; Bispham's Prin. Eq. 230 ; or to continue to hold the property in 
 
 1 Perry -on Trusts, § 192. trust for the benefit of the ward, cestui 
 
 ^ " The ground of this rule is, that (?up trust, or other person holdiug a 
 
 the danger of allowing persons holding similar relation." 1 Perry on Trusts, 
 
 such relations of trust and influence § 194. 
 ■with others to deal with them is so 
 
 35 
 
546 ESTATES IN EEAL PBOPERTY. 
 
 yet, with other suspicious circumstances though often very 
 slight, they will give rise to such an implication. 
 
 § 386. Trustee and Cestui que Trust- — The trustee of an 
 active trust, because of his control of the property and superior 
 knowledge concerning it, usually has an important advantage 
 over the beneficiaries.' His position also naturally gives to 
 him an ascendency and influence over their ininds, which is 
 apt to be powerfully available in his favor. Therefore, when 
 he purchases a beneficial interest in the property from the cestui 
 que trust, or obtains a gift of it inter vivos from him, it is pre- 
 sumed in equity that these advantages have been unfairly 
 utilized ; ^ and the burden is accordingly placed upon the pur- 
 chaser or donee to prove that he dealt honestly and in perfect 
 good faith, and that the other party acted freely, and was 
 fully and fairly informed of all the circumstances, such 
 as the value of the property, present or prospective, the 
 conditions and rights of all the parties, and all other matters 
 by which the transaction was affected, or could reasonably 
 be expected to be influenced.^ In other words, such a sale 
 or gift shifts the ordinary burden of proof. And when 
 the vendor or donor comes into equity, praying that a con- 
 structive trust in the property be declared in his favor on the 
 ground of fraud, he succeeds, unless the donee or vendee clearly 
 proves that the entire transaction on his part was fair, open, 
 and above-board. In order that the transfer shall stand, the 
 court must be convinced that no special knowledge of the 
 trustee, nor any ignorance or disability on the part of tlie cestui 
 que trust, nor any influence unduly exercised by the former 
 over the latter, materially affected the gift or sale.* 
 
 These things can be most easily proved by the trustee, other 
 circumstances beuig the same, when he has purchased the 
 
 1 Coles V. Trecothick, 9 Ves. 234; Yonge v. Hooper, 73 Ala. 119; Cole 
 
 Dougan v. McPherson (1902), App. v. Stokes, 113 N. C. 270; Bisphaiu's 
 
 Cas. 197 ; Adams v. Cowen, 177 U. S. Prin. Eq. § 237. 
 
 471, 484 ; Goldsmith v. Goldsmith, 145 s Mott v. Mott, 49 N. J. Eq. 192, 199 ; 
 
 N. Y. 313; Ryle v. Ryle, 41 N. J. Eq. Hammell v. Hyatt, 59 N. J. Eq. 174; 
 
 582 ; "Wright v. Smith, 23 N. J. Eq. Coombe's Ex'r v. Carthew, 59 N. J. 
 
 106 ; Smith v. Townshend, 27 Md. 368 ; Eq. 638 ; Wright v. Smith, 23 N. J. Eq, 
 
 Eox t). Macreth, 1 Lead. Cas. Eq. 115, 106; Graves w. Waterman, 63 N. Y. 657 ; 
 
 note; 1 Perry on Trusts, § 195; Hill Davoueu. Fanning, 2 Johns. Ch. (N. Y.) 
 
 on Trustees, 158. 252, 258 ; Miggett's Appeal, 109 Pa. St. 
 
 ^ Cases cited in last preceding note ; 520 ; Darlington's Estate, 147 Pa. St. 
 
 Spencer's Appeal, 80 Pa. St. 317, 332; 624; 1 Perry on Trusts, § 195; Bisp- 
 
 Cadwallader's Appeal, 64 Pa. St. 293 ; ham's Prin. Eq. § 237. 
 Smith V. Drake, 23 N. J. Eq. 302; 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 647 
 
 realty for a full and adequate consideration. And, the less 
 the purchase price in proportion to the fair market value of 
 the property, the greater, as a rule, is the burden of proof 
 which rests upon him. Hence, that burden is heaviest in 
 case of a gift inter vivos, a pure gratuity from the beneficial 
 owner, who is living and might personally enjoy the property 
 if he did not give it away.^ It is natural and right that 
 the presumption against the freedom and fairness of a gift 
 under these conditions should be very strong. Still it is well 
 settled that the trustee, in such a case, by afl&rmatively showing 
 absolute good faith and fair dealing on his own part, full 
 disclosure by him of all the attending facts and circum- 
 stances, and complete freedom, and facility of action on the 
 part of the cestui que trust who had independent advice, may es- 
 tablish his right to retain the property for his own benefit.^ 
 
 When, on the other hand, the cestui que trust by his will 
 makes a devise or legacy to his trustee, it is decided by most 
 of the authorities that, while the relationship of the parties is a 
 circumstance of suspicion to be given due weight in a contest 
 over this provision of the will, yet it is not in and of itself 
 sufficient to shift the burden of proof upon the donee by creat- 
 ing a presumption of fraud against him.^ The cestui que trust 
 at his death must let the property pass over to some one. And it 
 is not unnatural, when he himself can no longer enjoy its bene- 
 fits, that he should desire to give it to one who has shown him- 
 
 1 Adams v. Cowen, 177 U. S. 471; ^ Bancroft v. Otis, 91 Ala. 279 r 
 Barnard w Gantz, 140 N. Y. 249, 256; Eastis v. Montgomery, 93 Ala. 293;, 
 Green v. Koworth, 1 13 N. Y. 462 ; Ten Matter of Will of Smith, 95 N. Y. 516 ; 
 Eyck u. Whitbeck, 156 N. Y. 341, 353 ; Loder v. Whelpley, 111 N. Y. 239, 250;, 
 Gibbs V. N. Y. L. Ins. Co., 67 How. Pr. Matter of Cornell, 43 N. Y. App. Div. 
 207 ; Haydock v. Haydock, 34 N. J. Eq. 241, aff'd 163 N. Y. 608 ; In re Adams' 
 570 ; VTright v. Vanderplank, 8 DeG. M. Estate, 201 Pa. St. 502 ; Scattergood v. 
 & G. 133, 137; Hoghton v. Hoghton, Kirk, 195 Pa. St. 195; Harp v. Parr, 
 15 Beav. 278; Morley v. Loughman 168 111. 459; Mackall v. Mackall, 135 
 (1893), 1 Ch. 736; Taylor w. Taylor, 49 U. S. 167, 172, 2 Lead. Cas. Eq. 582. 
 U. S. 183 ; Wistar's Appeal, 54 Pa. St. Contra, i. e., that such relations. between 
 60, 63 ; Davis v. Strange, 86 Va. 793 ; testator and beneficiary do change the 
 Soberanes v. Soberanes, 97 Cal. 140; ■ burden of proof. Hegnoy «. Head, 126 
 Eoss V. Conway, 92 Cal. 632. Mo. 619 ; Griffin v. Diffendorfer, 50' 
 
 2 Cowee V. Cornell, 75 N. Y. 91, 100 ; Md. 466. And see Kischman v. Scott,. 
 Pierce v. Pierce, 71 N. Y. 154; Matter 166 Mo. 214 ; Berberet v. Berberet, 131 
 of Will of Smith, 95 N. Y. 516, 522 ; Mo. 399 ; Fulton v. Andrews, L. R. 
 Nesbit V. Lockman, 34 N. Y. 167 ; Al- 7 Eng. & Ir. App. 448, 461 ;' Tyrell v. 
 leard v. Skinner, L. R. 36 Ch. Div. 145 ; Painton (1894), Prob. 151, 157. 
 
 1 Perry on Trusts, § 195 ; Bispham's 
 Priu. Eq. § 231. 
 
548 ESTATES IN EEAL PROPERTY. 
 
 self to be an honest and capable trustee. Besides, the donees 
 under a will are usually not present when it is executed ; and it 
 would be unreasonable to place upon them the burden of proof 
 concerning a matter of which they may have no knowledge, 
 and possibly no yieans of acquiring knowledge.^ A mere pas- 
 sive or dry trustee, moreover, since his position gives him no 
 advantage over the benficiaries, may take by any form of pur- 
 chase or donation from them, without thereby occasioning a 
 presumption of fraud or a constructive trust.'^ 
 
 § 387. Trustee's Purchase of Trust Property. — The basal 
 principle, which operates in shifting the burden of proof as here 
 explained, is that a trustee shall not use his position to make 
 any profit for himself out of the trust estate.^ An expression 
 of the same principle, even more emphatic, occurs when a 
 trustee with power to sell the trust property executes the 
 power and purchases at his own. sale. For, with the apprehen- 
 sion of fraud in the background, but without actually presum- 
 ing its existence, a court of equity, at the option of the cestui 
 que trust, and for the purpose of keeping its favorite, the trustee, 
 aloof from a position where he could so easily commit undis- 
 coverable wrong, will treat him as still holding the property in 
 trust for the same beneficiary or beneficiaries as before.* This 
 it will do whether the purchase is at private sale or public 
 auction,^ directly by the trustee himself or indirectly through 
 the medium of one or more third parties.^ And the same 
 stringent rule applies to every one, whether technically called 
 
 1 Bancroft t. Otia, 91 Ala. 279; Morse v. Hill, 136 Mass. 60; Rich v. 
 Matter of Will of Smith, 95 N. Y. 516. Black, 173 Pa. St. 92, 99 ; Taylor v. 
 
 2 Parkesu. White, 11 Ves. 209, 226 ; Calvert, 138 Ind. ,67; Scott w. Umbar- 
 Inlow V. Christy, 187 Pa. St. 186, 191. ger, 41 Cal. 410, 419; Fox u.Mackreth, 
 See Fletcher w. Bartlett, 157 Mass. 113. 1 Lead. Cas. Eq. 115; 1 Perry on 
 
 8 Hill on Trustees, 159; 1 Lead. Trusts, § 195. 
 Cas. Eq. (4th Am. ed.) 62 Amer. not^. * Campbell v. Walker, 5 Vea. 678, 
 
 * Downes v. Grazebrook, 3 Mer. ' 680, 13 Ves. 601 ; Davoue v. Fanning, 
 200; Farrar v. Farrar, L. R. 40 Ch. 2 Johns. Ch. (N. Y.) 252; Boernm v. 
 Div. 395, 409 ; Dougan v. McPherson Schenck, 41 N. Y. 182 ; Adams v. 
 (1902), App. Cas. 197; Dayoue v. Cowen, 177 U. S. 471 ; Frepch b. Pitts- 
 Fanning, 2 Johns. Ch. (N. Y.) 252; De- burg Vehicle Co., 184 Pa. St. 161, 163; 
 Caters v. Le Ray De Chaumont, 3. Ives v. Ashley, 97 Mass. 198 ; Broder v. 
 Paige Ch. (N. Y.) 178; Fulton u. Whit- Conklin, 121 Cal. 282. 
 ney, 66 N. Y. 548 ; Dodge v. Stevens, ^ Moore v. Moore, 5 N. Y. 256 ; 
 94 N. Y. 209 ; Amherst College v. People v. Open Board of Stock Brokers, 
 Rich, 151 N. Y. 282, 340; Kahn v. Building Co., 92 N. Y. 98; Bassett !■. 
 Chapiu, 152 N. Y. 305, 309 ; Hammond Shoemaker, 46 N. J. Eq. 538 ; DeCelis 
 V. Hopkins, 143 U. S. 224; Yeackel v. v. Porter, 59 Cal. 464; Gibson v. Bar- 
 Litchfield, 13 Allen (Mass.), 417,419; hour, 100 N. C. 192. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 549 
 
 trustees or not, such as executors, administrators, mortgagees, 
 attorneys, agents, and the like, who assume to buy property for 
 themselves, under circumstances fiduciary or confidential which 
 impose upon them the duty of acting disinterestedly for others.^ 
 Thus, where a son was employed as agent by his father to buy 
 land at the sale on foreclosure of a mortgage held by the latter, 
 and the maximum price which he should bid was fixed at 
 $15,000, a purchase of it by him, or for him through a third 
 party, for 116,000, was held to be in trust for the father and his 
 heirs at their election.^ The agent, being in the affair to act 
 for the benefit of another, could not use his position to his own 
 advantage, if the principal chose to treat the transaction as his 
 own.^ So a conveyance by an executor, acting under a power 
 of sale in the will, to a person having tlie same surname as 
 himself, and a deed for practically the same consideration as 
 the other from such person to the executor within four days 
 thereafter, both instruments being recorded at substantially 
 the same time, were held to be facts sufficient to justify one 
 in refusing subsequently to complete a contract to purchase 
 from the executor individually, on the ground that he held the 
 land as a constructive trustee for his original beneficiaries.* 
 In this class of cases there is more than the mere shifting of 
 the burden of proof upon the fiduciary. Haviug acted without 
 any authorization from the court, he is not even permitted to 
 prove, against the wish of the beneficiaries, that he has fairly 
 acquired the trust property for himself ; but they, at their own 
 election and without more, may fasten a constructive trust 
 upon it in his hands.^ 
 
 This absolute right of the cestuis que trustent may of course 
 be waived or relinquished by them,^ or lost by their laches or 
 by lapse of time.' And, where the trustee has an interest of 
 
 1 Adams ;;. Cown, 177 U. S. 471 ; 101 N. Y. 167, 171 ; Ives v. Ashley, 97 
 Hill on Trustees, 428, and notes; 1 Mass. 198; Bassett v. Shoemaker, 46 
 Perry on Trusts § 195, and notes. N. J. Eq. 538 ; Bispham's Prin. Eq. 
 
 2 Moore v. Moore, 5 N. Y. 256. § 94 ; 1 Perry on Trusts, § 195. 
 
 ' Moore v. Moore, 5 N. Y. 256, 261 ; « Hoyt v. Latham, 143 U. S. 553 ; 
 
 Mersey. HiU, 136 Mass. 60; Bassett v. Hammond v. Hopkins, 143 U. S. 224; 
 
 Shoemaker, 46 N. J. Eq. 538. Harrington v. Erie Co. Savings Bk., 
 
 * People V. Open Board of Stock 101 N. Y. 257; Yeackel v. Litchfield, 
 
 Brokers B'ld'ng Co., 92 N. Y. 98. 13 Allen (Mass.), 417, 419 ; Ives t>. Ash- 
 
 5 Campbell v. Walker, 5 Ves. 678, ley, 97 Mass. 198; Plucker v. Teller, 
 
 680; Davone v. Fanning, 2 Johns. Ch. 174 Pa. St. 529; Pearce u. Gamble, 72 
 
 (N. Y.) 252, 259-261 ; Moore v. Moore, Ala. 341 ; 1 Perry on Trusts, § 197. 
 
 S N. Y. 256, 261 ; Fulton v. Whitney, See Kullman v. Cox, 167 N. Y. 411. 
 
 66 N. Y. 548; Scholle v. SchoUe, ' Kahn i: Chapiu, 1.52 N. Y. 305; 
 
550 ESTATES IN REAL PROPERTY. 
 
 his own to protect by bidding at the sale of the trust property, 
 as, for example, where he has an individual paz't ownership 
 therein, and he makes special application to the court for 
 permission to buy for himself, which, upon the hearing of all 
 those who are interested, or their being given their day in court 
 and full opportunity to be heard, is duly granted, " then he can 
 make a purchase which is valid and binding upon all the parties 
 interested, and under which he can obtain a perfect title." ^ 
 But a constructive trust may fasten upon his purchase, if he 
 fail to comply exactly with all these requisites. He can not, 
 for instance, rely on the formal leave to buy which is usually 
 given to all the parties by the decree in a foreclosure or par- 
 tition suit.2 His application must be special, and with every- 
 body in court who could have any ground to object. " The^ 
 power resides in the court to relieve from the rule." * And it 
 has been held in New York, by a decision, which if it does not 
 undermine the priniciple of protection to the beneficiaries may 
 at least break down some of its fortifications, that, if every one 
 in interest be thus specially brought before the court, it may 
 grant such relief by confirming a purchase hy a trustee, who had 
 a personal interest to protect, but who did not obtain before 
 the sale any judicial authorization to bid in his own behalf.^ 
 When a sale has been honestly made to an outside party, 
 the trustee acting bona fide may, thereafter, validly purchase 
 from or through him without any sanction of the court.® And 
 it is held by the United States Supreme Court, and in some 
 states, though strongly denied in others,^ that he may pur- 
 Hammond V. Hopkins, 143 U. S. 224 ; ' Authorities cited in last two pre- 
 Hopper V. Hopper, 79 Md. 400; Har- ceding notes. If they use trust funds in 
 rison v. Manson, 95 Va. 593 ; Thompson the purchase, the profit of a resale be- 
 V. Hartline, 1 05 Ala. 263 ; Darling v. longs to the cestui que trust. Baker's 
 Potts, U8 Mo. 506; Barber a. Bowen, Appeal, 120 Pa. St. 33. 
 47 Minn. 118; In re Boles & British * Corbin v. Baker, 167 N. Y. 128, 
 Land Co. (1902) 1 Ch. 244; Bispham's 134. 
 Prin. Eq. § 94. 6 Corbin i>. Baker, 167 N. Y. 128. 
 
 1 Scholle ij. Scholle, 101 N. Y. 167, See KuUman v. Cox, 167 N. Y. 411; 
 172; Corbin v. Baker, 167 N. Y. 128, Kirsch v. Tozier, 143 N. Y. 390. 
 
 133 ; Colgate's Executor v. Colgate, 23 « Welch v. McGrath, 59 Iowa, 519. 
 
 N. J. Eq. 372; Markle's Estate, 182 Pa. And see Patterson v. Leming, 118 Pa. 
 
 St. 378 ; Boswell v. Coaks, L. R. 23 Ch. St. 571 ; Stewart v. Fellows, U8 111. 
 
 Div. 302, 310 ; Farmer v. Dean, 32 Beav. 480. But, of course, such transactions 
 
 327; 1 Perry on Trusts (5thed.),§ 195, are scrutinized by the courts with the 
 
 note (a). most rigid care; and it must be very 
 
 2 Fulton V. Whitney, 66 N. Y. 548; clear that the trustee was not person- 
 Torrey v. Bank of Orleans, 9 Paige ally interested in the first purchase. 
 (N. Y.), 649; Boswell v. Coaks, L. B. ' Marshall v. Carson, 38 N. J. Eq. 
 23 Ch. Div. 302, 310. 250; Hill on Trustees, 160, 250. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 551 
 
 chase directly at the sale when it is not by or for him, but 
 by some independent party, as when it is made pursuant to 
 an adverse judgment or decree.^ 
 
 § 388. Trustee's Purchase of Encumbrance — Renewal of Lease 
 in his own Name. — As one who occupies a fiduciary position 
 can not acquire a clear title to the trust property, except under 
 such circumstances as those explained in the preceding para- 
 graph, so he can not obtain for his own benefit, save under like 
 conditions, any claim, encumbrance, or outstanding lien against 
 or interest in that property.^ Being trustee, he must act 
 wholly for the trust. Many other illustrations of this salu- 
 tary principle are supplied by the authorities. But the only 
 one which needs to be added here is that of a renewal of a 
 lease in his own name by one who holds it in a fiduciary or 
 quasi-fiduciary capacity. Such renewal enures to the bene- 
 fit of the cestui que trust, or other party beneficially interested 
 in the original leasehold.^ In the famous " Rumford Market 
 Case," * it was so decided, although the trustee, who ultimately 
 took the new lease in his own name and ostensibly foe his own 
 benefit, at first attempted to obtain a renewal expressly for 
 the benefit of the cestuis que trustent, who were infants, and 
 the landlord refused to grant it in that form, because, under the 
 circumstances, he would then have had no means of enforcing 
 payment of the rent. And, in cases like that of " The Hoff- 
 man House," in New York,^ where one partner has endeavored 
 for himself alone to renew a lease owned and controlled by the 
 
 1 Allen V. Gillett, 127 U. S. 589 ; N. Y. 556 ; McGuire v. Devlin, 158 
 Fisk ». Sarber, 6 W. & S. (Pa.) 18; Mass. 63; Jones's Estate, 179 Pa. St. 
 Bruneru. Finley, 187 Pa.St. 389; Hall 36; Wood v. Irwin, 163 Pa. St. 413, 
 V. Bliss, 118 Mass. 554. But heie again 414 ; Petrie v. Badenoch, 102 Mich. 45 ; 
 it must be perfectly clear to the court Crone v. Crone, 180 III. 599. And this 
 that the trustee has acted in entire good principle applies to all cases in which, 
 faith, and not availed himself of any ad- by virtue of the existence of the' orig- 
 vantage growing out of his position. inal lease, a renewal has been obtained 
 See Mullen w. Doyle, 147 Pa. St. 512; by one person to the detriment of 
 Parshall's Appeal, .65 Pa. St. 234. another who had an interest in the same. 
 
 2 Parkist v. Alexander, 1 .Tohns. Ch. In re Lulham, 53 L. J. Ch. n. s. 928, 
 (N. Y.) 394; Dickey's Appeal, 73 Pa. 931; Mitthell u. Reed, 61 N. Y. 123, 
 St. 218, 247 ; Baker v. Whiting, 3 84 N. Y. 556. 
 
 Sumn. (U. S. Cir. Ct.) 475 ; Wellfordr. * Keech v. Sandford, 1 Lead. Cas, 
 
 Chancellor, 5 Gratt. (Va.) 39. See Eq. 44, called the liumford Market 
 
 Kennedy v. De Tafford (1896), 1 Ch. Case, because the lease was of the 
 
 762. market-place of that name. 
 
 8 Keech i>. Sandford, 1 Lead. Cas. ^ Mitchell v. Reed, 61 N. Y. 123, 84 
 
 Eq. 44 ; HUl v. HiU, 3 H. L. Cas. 828 ; N. Y. 556. 
 Mitchell V. Reed, 61 N. Y. 123, 84 
 
552 ESTATES IN REAL PROPERTY. 
 
 firm, he has uniformly been held, on application of the other 
 members, to be a constructive trustee for all the partners.^ 
 This application of the principle, which forbids a trustee to 
 profit by his position, is uniformly adhered to on both sides of 
 the Atlantic.^ But an exception appears under circumstances 
 such as arose in Pennsylvania, where a landlord refused to 
 renew a lease of a colliery unless there was taken with it 
 another colliery, the leasing and operating of which would call 
 for the outlay of large additional sums of money. The first 
 lease — of the one colliery — being held by a trustee, it was 
 decided that he acted properly in refusing to risk the trust 
 moneys in the larger enterprise. And he having taken the 
 new and more extensive lease with his own funds, and the 
 entire transaction being proved to be fair and lona fide, it was 
 held that no trust was to be raised by equitable construction 
 against him.^ It follows that, where the lease can not be 
 renewed and held for the cestuis without running counter to 
 the well-settled principles which govern the conduct of trustees, 
 the fiduciary holder is free from the operation of the rule which 
 would otherwise preclude him from taking a renewal for his 
 own benefit. 
 
 § 389. Conclnsion as to Trustee and Cestui Que Trust. — The 
 cases here given, in which equity raises constructive trusts 
 because of the apprehension of fraud, are simply the most im- 
 portant instances of the operation of a general rule. And that 
 rule makes the court quick to afford a remedy, through the 
 medium of such a trust, whenever one party occupies a posi- 
 tion towards another which would enable him readily to com- 
 mit fraud without likelihood of detection. It applies, not only 
 to the technical position of trustee and cestui que trust, but also, 
 to a greater or less degree, according to the closeness of the 
 confidence, to all the fiduciary and quasi-fiduciary relationships 
 discussed in this chapter.* 
 
 1 See also In re Lulham, 53 L. J. * Turner v. Sawyer, 150 U. S. 578 ; 
 
 Ch. N. s. 928 ; Palmer v. Young, 1 Van Home v. Fonda, 5 Johns. Ch. 
 
 Vem. 276; Winslow «. Tighe, 2 BaU& (N. Y.) 388, 409; Tanney v. Tanney, 
 
 B. 195; Featherstonaugh v. Fenwick, 159 Pa. St. 277; Fellows v. Loomis, 
 
 17 Ves. 298; Crone v. Crone, 180 111. 170 Pa. St. 415; Hyndman v. Hynd- 
 
 599; Keech v. Sandford, 1 Lead. Cas. man, 19 Vt. 9 ; McHan u. Ordway, 76 
 
 Eq. 44, Amer. note. Ala. 347. And see Stevens v. Eey- 
 
 ^ Authorities cited in last three pre- nolds, 143 Ind. 467 ; Kennedy v. De 
 
 ceding notes. TrafCord (1896), 1 Ch. 762. 
 
 » In re Markle's Estate, 182 Pa. St. 
 878. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TBUST8. 553 
 
 § 390. Attorney and Client. — The operation of the rules 
 above discussed is so strong between attorney and client, because 
 of the powerful influence which the former is supposed to 
 exercise over the mind of the latter, that it has been said, in 
 some cases, that they can not make any valid contract between 
 them concerning the subject-matter of the litigation or proceed- 
 ing in which the attorney is acting.^ Tins is probably too ex- 
 treme a statement.^ But a gift inter vivos of such property from 
 client to attorney, or a purchase of it by the latter, whether 
 directly from the client or at a judicial or official sale, places 
 upon him the heaviest possible burden of proof short of that 
 which is absolutely prohibitory.^ A client may give property 
 to his attorney by will without thereby alone causing any pre- 
 sumption of fraud. ^ They may fairly contract with each other 
 concerning property over which the attorney as such is exer- 
 cising no control or influence ; and so they contract as 
 strangers.^ And after the relation has ceased, and its influence 
 can no longer be supposed to be operative, they can deal with 
 each other at arms' length.® Thus, they may so deal when the 
 attorney has ceased to act as such for his former client and 
 is suing him for fees, or, as a creditor, is otherwise pressing 
 him.^ But when it is at all probable that the confidential position 
 
 1 Wright V. Proud, 13 Ves. 136, 138 ; L. R. 6 Ch. Div. 638. But in New York, 
 Holman v. Loynes, 4 DeG. M. &. G. aud probably in most jurisdictious, the 
 270 ; Tyrrell o. The Bank of London, courts have not gone so far. " I find 
 10 H. L. Cas. 26 ; Frank's Appeal, 59 no case in this state which holds the 
 Pa. St. 190 ; Roby v. Colehour, 135 111. presumption of fraud or undue in- 
 300; Rogers v. Marshall, 3 McCrary fluence to be so strong in law, that it 
 (U. S. Cir. Ct.), 76. cannot be overcome by evidence." Nes- 
 
 2 Liles V. Terry (1895), 2 Q. B. bit v. Lockman, 34 N. Y. 167, 169; 
 679; Nesbit v. Lockman, 34 N. Y. 167, Whitehead v. Kennedy, 69 N. Y. 462; 
 169 ; Whitehead v. Kennedy, 69 N. Y. Barnard v. Gantz, 140 N. Y. 249 ; Herr 
 462, 466; Story, Eq. Jur. § 311. v. Payson, 157 111. 244; 1 Perry on 
 
 2 O'Brien v. Lewis, 9 Jur. (n. s.) Trusts, § 202. 
 
 528; Newman u. Payne, 2 Ves. 199; * Hindson v. Weatherill, 5 DeG. M. 
 
 Liles V. Terry (1895), 2 Q. B. 679; & G. 301; Bancroft v. Otis, 91 Ala. 
 
 Nesbit V. Lockman, 34 N. Y. 167 ; Mat- 279 ; Matter of Will of Smith, 95 N. Y. 
 
 ter of Demarest, 11 N. Y. App. Div. 516; § 386, si/;?™. 
 
 156 ; United States v. Coffin, 83 Fed. 5 Bellew v. Russell, 1 Ball & B. 96, 
 
 Rep. 337; Mott v. Harrington, 12 Vt. 104; Edwards v. Meyrick, 2 Hare, 60; 
 
 199; Smitli v. Brotherline, 62 Pa. St. Montesquieu v. Sandys, 18 Ves. 302. 
 
 461 ; Trotter v. Smith, 59 111. 240 ; Dono- « Wood v. Downes, 18 Ves. 120, 127 ; 
 
 hoe V Chicago Cricket Club, 52 N. E. Smith v. Brotherline, 62 Pa. St. 461. 
 
 Rep. (111.) 351. It is said by some See Troxell v. Silverhorn, 45 N. J. Eq. 
 
 anthorities that a gift of this character 330. 
 
 is absolutely vdid. See Bispham's Prin. ' Johnson v. Fesemeyer, 3 DeG. & 
 
 Kq. § 236, citing Greenfield's Est., 14 J. 13 ; Smith v. Brotherline, 62 Pa. St 
 
 Pa. St. 489, 506; Morgan u. Minott, 461. 
 
654 ESTATES IN REAL PROPERTY. 
 
 may have operated to the advantage of the attorney, even though 
 as such attorney he had no direct control of the property, the 
 onus of proving the most absolute fairness and good faith is 
 imposed upon him.^ The same is true as to counsellors, solici- 
 tors, and legal advisers generally, while they are acting for 
 their clients as clients.^ And, as above shown, if being author- 
 ized to sell their clients' property, they purchase for their own 
 benefit, in the absence of such circumstances as would enable 
 a technical trustee to so purchase, the beneficiaries may, at 
 their option, have the sale set aside through the medium of a 
 constructive trust.^ 
 
 § 391. Guardian and Ward. — While two persons stand 
 towards each other in the relation of guardian and ward, it is 
 practically impossible for any contract of either gift or sale to 
 take place between them, which may not be repudiated by the 
 ward simply on the ground of his infancy.* But, during this 
 period, the guardian may sometimes seek to acquire the ward's 
 property through a sale or other transfer by himself, or by 
 some other person acting under an authority given by deed or 
 will, or by some competent court. Such a transaction can 
 rarely stand, if the ward proceed properly to have it set aside 
 because of presumed fraud.^ It produces one of the most 
 difficult cases of all those in which a fiduciary purchaser or 
 donee attempts to avoid a constructive trust by proving fairness. 
 And, when he pays very little or no consideration, he generally 
 can not succeed.^ In some states the purchase by a guardian 
 of his ward's real property is declared by statute to be abso- 
 lutely void, and his act of so purchasing a misdemeanor. ' (a) 
 
 (a) The provision of the New York Code is : "A commissioner, or 
 other officer making a sale, as prescribed in this title, or a guardian of an 
 
 1 Henry «. Raiman, 25 Pa. St. 354; 688; Green v. Green, 69 N. Y. 553 j 
 
 Hockenbury v. Carlisle, 5 Watta & S. Sparmau v. Keim, 83 N. Y. 245, 250; 
 
 (Pa.) 348, 350; Beedle v. Crane, 91 Bool w. Mix, 17 Wend. (N. Y.) 119. 
 Mich. 429; Place w.Hayward, 117 N.Y. 6 O'Donoghue v. Boies, 159 N. Y. 
 
 487, 496. 87 ; Farmer v. Farmer, 39 N. J. Eq. 
 
 ^ But when they are consulted sim- 211 ; 1 Perry on Trusts, § 200. 
 ply as friends, or in some capacity * Dawson v. Massey, 1 Ball & B. 
 
 other than that of legal advisers, the 219, 226; Farmer v. Farmer, 39 N. J. 
 
 rule does not apply. Devinney u. Nor- Eq. 211. And see Hugnenin u. Base- 
 
 ris, 8 Watts (Pa.), 314 ; Bank v. Foster, ley, 14 Ves. 273, 2 Lead. Cas. Eq. 556 ; 
 
 8 Watts (Pa.), 304 ; Dobbins v. Stevens, Bispham's Prin. Eq. § 234. 
 17 S. & R. (Pa.) 13. ' N. Y. Code Civ. Pro. § 1679; 
 
 3 § 387, supra. Boyer v. East, 161 N. Y. 580; 1 Stim. 
 
 • Dawson v. Massey, 1 Ball & B. Amer. Stat. L. § 2617. 
 219, 226 ; MacGreal v. Taylor, 167 TJ. S. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 555 
 
 When the guardianship has terminated, but its influence over 
 the mind of the erstwhile ward may fairly be supposed to con- 
 tinue, conveyances by him to the guardian, and settlements of 
 the estate between them are looked upon with suspicion by 
 courts of equity ; and a constructive trust arises unless the 
 transferee proves clearly that there was no fraud, undue influ- 
 ence, or unfair dealing in the transaction. ^ The burden rests 
 heavily upon the party who has recently had the power and 
 ascendency over the other, which is ordinarily produced by such 
 a relationship.^ Not until it is fair to assume that that influ- 
 ence has worn away, or it is proved as a fact that it no longer 
 exists, can they be said to deal with each other at arms' length. 
 The smaller the consideration and the more recent the termin- 
 ation of the guardianship, the heavier the burden of proof.^ 
 And, when the transfer is inter vivos and purely gratuitous, 
 immediately after the ward has become of age, the presumption 
 of fraud is almost though not absolutely conclusive.* When 
 
 infant party to the action, shall not, nor shall any person foi- his benefit, 
 directly or indirectly, purchase, or be interested in the purchase of, any of 
 the property sold ; except that a guardian may, where he is lawfully 
 authorized so to do, purchase for the benefit or in behalf of his ward. 
 The violation of this section is a misdemeanor; and a purchase made con- 
 trary to this section is void." N. Y. Code Civ. Pro. § 1679 ; formerly 
 2 R. S. 326, § 58. This section is in the "title" of the code, which re- 
 lates to actions concerning real property. It is entitled, " Purchases by 
 certain oflBcers prohibited. Penalty." And it is held not to apply to guar- 
 dians generally, such, for example, as a guardian in socage, but only to 
 guardians ad litem — those who, being appointed by the court, become its 
 officers for the purpose of the respective actions. Boyer v. East, 161 N. Y. 
 580. When a guardian ad lilem purchases realty affected by the action for 
 ■which lie was appointed, the bui'den is on him, in order to avoid the 
 effect of the statute, of proving that he bought for the benefit of his ward. 
 If he fail to prove this, his purchase is void, and the act of purchasing a 
 misdemeanor. O'Donoghue v. Boies, 159 N. Y. 87, 102. 
 
 1 Dawson v. Massey, 1 Ball & B. Pierce v. Waring, 1 P. Wms. 120, n.; 
 219, 226; Wright D. Proud, 13 Ves. 136; Whitman's Appeal, 28 Pa. St. 348; 
 Hatch V. Hatch, 9 Ves. 291 ; Bostwick O'Donoghue v. Boies, 159 N. Y. 87. 
 
 V. Atkins, 3 N. Y. 53; Strauss v. Bend- ^ " Nothing can be allowed to stand 
 
 heim, 162 N. Y. 469; Somes v. Skinner, that proceeds from the pressure of the 
 
 16 Mass. 348 ; Says v. Barnes, 4 S. & R. relation of guardian and ward fresh 
 
 (Pa.) 112; Richardson v. Linney, 7 B. upon the mind of the ward." 1 Perry 
 
 Mon. (Ky.) 571 ; Waller v. Armistead, on Trusts, § 200. 
 
 2 Leigh (Va.), 11; McKonkey v. * Dawson v. Massey, 1 Ball & B. 
 
 Cockey, 69 Md. 286; Garvin v. Wil- 219, 226, and other cases cited in last 
 
 liams, 50 Mo. 206. four preceding notes. 
 
 2 Hatch V. Hatch, 9 Ves. 292, 297 ; 
 
556 ESTATES IN REAL. PROPERTY. 
 
 the gift is bv will, however, the rule is the same as in the case 
 of trustee and cestui que trust, i. e., while the relationship is an 
 important item of evidence and the cause of suspicion and 
 careful scrutiny by the court, it is not in itself sufficient tO' 
 shift the burden of proof upon the donee.^ 
 
 § 392. Parent and Child. — The law favors proper family 
 settlements and arrangements.^ It is assumed, too, that the 
 influence naturally existing between parent and child will be 
 more apt to be employed for fair and equitable results than 
 will that between guardian and ward.^ The burden of proof,, 
 therefore, is not shifted by the mere fact that a parent buys 
 property from his child, or receives it as a gift from him, or 
 that it passes by either of these methods to the child from the 
 parent. The presumption is in favor of the validity of the 
 transfer.* But the closeness of the relationship and the oppor- 
 tunities which it affords for unfair dealing are circumstances of 
 suspicion, which cause the court of equity to scrutinize tlie 
 transaction very carefully. And when other circumstances,, 
 though slight, indicate that fraud or undue influence may have 
 been employed, the additional fact that this relation exists 
 between the parties will readily result in a decision against the 
 transaction.^ Thus, the fact that the parent is old and feeble 
 and has come to rely to some extent upon the child ; " or, on 
 the otlier side, that the child is inexperienced, and in other 
 matters has been unfairly treated by the parent, or that tlie 
 transfer is very detrimental to the child,^ will be enough to 
 shift upon the donee the burden of overcoming the presumption 
 of fraud and a constructive trust. The same rule applies 
 between children and all those who stand in loco parentis to 
 
 1 § 386, supra; Bancroft v. Otis, 91 the shifting of the burden of proof by- 
 Ala. 279 ; Matter of Smith, 95 N. Y. the mere existence of this relationship. 
 516; 7n re Adams' Estate, 201 Pa. St. See Smith v. Kay, 7 H. L. Cas. 750 j 
 502. Baker v. Bradley, 7 DeG. M. & G. 597 ; 
 
 ' Hartopp V. Hartopp, 21 Beav. 259 ; Readdy v. Pendergast, 55 L. T. Rep. 
 
 Hoblyn v. Hoblyn, L. R. 41 Ch. Div. 767 ; Bainbrigge v. Browne, L. R. IS 
 
 200; 1 Perry on Trusts, § 201. Ch. Div. 188. 
 
 s Jenkins y. Pye, 12 Pet. (U. S.)241, » Taylor v. Taylor, 49 U. S. 183; 
 
 253 ; Matter of Will of Martin, 98 N. Y. Barnard v. Gantz, 140 N. Y. 249 ; Ber- 
 
 193 ; In re Budlong's Will, 126 N. Y. gen v. Udall, 31 Barb. (N. Y.) 9 ; Miller 
 
 423 ; Crothers v. Crothers, 149 Pa. St. v. Simonds, 72 Mo. 669. 
 201 ; Francis f. Wilkinson, 147 111.370; « Barnard v. Gantz, 140 N. Y. 249 ; 
 
 Millican v. Millican, 24 Tex. 426. 1 Perry on Trusts, § 201. 
 
 * Towson V. Moore, 173 U. S. 17,24; ' Taylor v. Taylor, 49 U. S. 183; 
 
 Jenkins v Pye, 12 Pet. (U. S.) 241, and Towson v. Moore, 173 U. S. 17 ; 1 Perry 
 
 other cases cited in preceding note. But on Trusts, § 201. 
 some of the modern English cases f avx>r 
 
EQUITABLE ESTATES. — CONSTllUCTIVE TRUSTS. 557 
 
 them.' And, in a greater or less degree, according to the near- 
 ness and intimacpr of kinship, it affects all close family 
 relationships. 2 
 
 § 393. other Close Relations. — The foregoing discussion 
 shows the general principle at the foundation of constructive 
 trusts raised upon the presumption or apprehension of fraud 
 growing out of the relation or connection between the parties. 
 Trustee -and cestui que trust, attorney and client, guardian and 
 ward, where that relation still subsists or has but recently 
 terminated, — these are the parties between whom such a trust 
 will be readily interposed, simply because of the existence of 
 the relationship.^ Like the relation of parent and child, the 
 other close connections and associations are circumstances of 
 suspicion and items of evidence, which call for careful scrutiny 
 and cause courts of equity to look at the transactions " with 
 a jealous eye ; " but they do not generally, when unaided by 
 proof of other facts of suspicion, give rise to constructive trusts. 
 Of course, the closer such persons stand to each other, and 
 the more intimate their association, the greater is the aid which 
 their relationship gives to those who seek to impugn their 
 transactions. Husband and wife, principle and agent, steward 
 and employer, minister and parishioner, confidential medical 
 adviser and patient, promoters and directors of corporations 
 and the corporations and their stockholders, partners, tenants 
 in common, and many others come within the operation of 
 this general rule.* 
 
 § 394. Promoters and Directors of Corporations have fur- 
 nished some prominent instances of the working of the principle. 
 Thus, in Tyrrell v. The Bank of London,^ one, who was already 
 interested with others in organizing a bank, purchased land, a 
 part of which he subsequently sold to the new company (of 
 which he had become a director), at a price materially larger 
 than that paid by himself. It was lield that, since his relation 
 
 1 Archer v. Hudson, 7 Beav. 551; IDrury, 310; Richardaon w. Green, 133 
 Maitland v. Irving, 15 Sim. 437. U. S. 30; Carpenter v. Carpenter, 131 
 
 2 Harvey v. Mount, 8 Beav. 439 ; N. Y. 101 ; Pierce v. Pierce, 71 N. Y. 
 Sears v. Shafer, 6 N. Y. 268 ; Smith v. 154 ; McClellau v. Grant, 83 N. Y. App. 
 Smith, 134 N. Y. 62 ; Kennedy v. Ken- Div. 599; Bud C. & I. Co. v. Humes, 
 nedy, 2 Ala. 571 ; Hewitt v. Crane, 2 157 Pa. St. 278; Wickersham v. Crit- 
 Halst. Ch. (N. J.) 159. tenden, 93 Cal. 17; Jacobs v. Lude- 
 
 ' §§ 386, 390, 391, supra. mann, 137 Cal. 176 ; McKee v. Griggs, 
 
 * Huguenin v. Baseley, 14 Ves. 273 ; 51 N. J. Eq. 178 ; Hill on Trustees, 547 ; 
 
 Sheffield Society u. Aixlewood, L. K. 1 Perry on Trusts, § 204. 
 
 44 Ch. Div. 412; Ahearns v. Hogan, » lo H. L. Cas. 26. 
 
558 ESTATES IN REAL PROPERTY. 
 
 to the corporation was fiduciary at the time of his purchase, 
 and he had concealed from it the fact of his own gain in the 
 transaction, he held that gain as its constructive trustee.^ This, 
 it seems, will not be the result, in the absence of actual fraud, 
 if the promoter purchase the land and own it before he becomes 
 in any way interested in the corporation.^ But even in such a 
 case a trust will arise against him, if in selling to the company 
 he make any false representation as to what he paid for the 
 property.^ 
 
 § 395. Purchases under Contract or Promise to Convey. — 
 Another important group of such cases embraces those trans- 
 actions in which confidential agents or other fiduciary parties 
 acquire property, which they have orally agreed to purchase for 
 persons already owning some interest eitlier in the land itself 
 or in its purchase money ; and then seek to avail themselves 
 of the statute of frauds * as an excuse for not performing their 
 agreements. Equity will not permit that statute to be thus used 
 as an instrument of f raud.^ And, in favor of such an interested 
 party, it will raise a constructive trust in the land so bought. 
 Thus, if a person buy realty under an oral agreement to convey 
 all or part of it to one wlio already has an interest therein, such 
 as a mortgagor whose land is being sold on foreclosure, or a 
 ■ part owner of property sold for partition, equity will hold the 
 purchaser a trustee for him who has such interest.® So, when 
 the contracting parties are partners, and the partnership funds 
 are used in payment, or those funds are so employed by one 
 partner even without the knowledge of the other, or if each of 
 
 the parties contribute a definite portion of the purchase money 
 \ 
 
 1 See also Archer's Case (1892), « The fourth section of the English 
 1 Ch. 322, 341 ; McGourkey v. Toledo statute, or its equivalent here, which 
 & Ohio Cent. E. Co., 146 U. S. 536, requires such agreements or some note 
 565; Brewster v. Hatch, 122 N. Y. 349; or memorandum thereof to be in writ- 
 Ex. Mission Land & Water Co. v. Flash, ing. 29 Car. II. ch. 3, § 4 ; N. Y. L. 
 97 Cal. 610, 634 ; Russel u. Fuel Gas 1896, ch. 547, § 224 ; Stim. Amer. Stat. 
 Co., 184 Pa. St. 102; Donner v. Don- L. § 4140. 
 
 ner, 217 Pa. St. 37 ; Collins v. Case, 23 * Maddison v. Alderson, L. R. 8 App. 
 
 Wis. 230, 16 Amer. Law Rev. 671. Cas. 467, 474; Bork v. Martin, 132 
 
 2 Erlanger v. New Sombrero Phos- N. Y. 280 ; Traphagen v. Burt, 67 N. Y. 
 phate Co., L. R. 3 App. Cas. 1218,1236; 30; Wainwright v. Talcott, 60 Conn. 
 Ladywell Mining Co. v. Brookes, L. R. 43 ; Adam's Eq. 46. 
 
 35 Ch. Div. 400 ; Milwaukee Cold Stor- ^ Ryan v. Dox, 34 N. Y. 307 ; Peck 
 
 age Co. V. Decker, 40 Lawy. Rep. Ann. v. Peck, 110 N. Y. 64; Cook v. Cook, 69 
 
 837 ; Bispham's Prin. Eq. § 239. Pa. St. 443 ; Kent v. Dean, 128 Ala. 
 
 " Ex. Mission Land & Water Co. v. 600 ; Gruraley v. Webb, 44 Mo. 444 ; 
 
 Flash, 97 Cal. 610; McGourkey w.T. & Mackay u. Martin, 26 Tex. 57. See 
 
 O. Cent. E. Co., 146 U. S. 536, 565. Ellis v. Cole, 188 N. Y. 395. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 659 
 
 or other consideration before the land is bought, a constructive 
 trust will arise against the purchaser who seeks to hold the 
 property as exclusively his own.^ But beyond this equity 
 adheres to the statute of frauds ; and, whei-e the contracting 
 parties are strangers, will not enforce an oral agreement to 
 convey realty to one who has no existing interest in it at the 
 time of its purchase by the other party, and who has done no 
 act of part performance and has parted with nothing of value 
 pursuant to his contract with the purchaser.^ 
 
 § 396. Gifts from Fraudulent Taker. — It is to be added that, 
 if one claim as a gift property coming to him through another's 
 practices which are actually fraudulent, or for any cause are 
 presumed to be so, he holds it constructively in trust for the 
 rightful owner. Under such circumstances, said Chief Justice 
 Wilmot, in Bridgman v. Green, "Let. the hand receiving the 
 gift be ever so chaste, yet if it comes through a polluted 
 channel, the obligation of restitution will follow it." ^ Being 
 once touched by the fraud, the land can not be cleansed from 
 the defilement until the injured party has obtained his redress, 
 or the property has come into the hands of an innocent pur- 
 chaser for value without notice of the wrong.* 
 
 § 397. Remedy. — In all these cases of constructive trusts, 
 whether established by proof of actual fraud or raised by pre- 
 sumption of equity, the injured party may have a reconveyance 
 of the property, if it be still in the hands of the trustee ; or, 
 when it has passed beyond the reach of such redress, he may 
 have an accounting and damages against the wrong-doer.^ 
 
 1 Collins V. Carsons, 30 Atl. Rep. 68 N. E. Rep. 231 (N. J. Ch.) ; Davis v. 
 (N. J. Eq.) 162 ; Everly v. Harrison, 167 Davis, 216 Pa. St. 228 ; Lancaster Trust 
 Pa. St. 355 ; Cashing v. Danforth, 76 Co. v. Long, 220 Pa. St. 499 ; Taylor v. 
 Me. 114; Bryan v. McNaughton, 38 Boardman, 24 itfich. 287; Eobbins v. 
 Kan. 98 ; Van Buskirk v. Van Bnskirk, Kimball, 55 Ark. 414 ; Minot v. Mitchell, 
 35 Me. 383; Aborn v. Searles, 18 R. I. 30 Ind. 223; Barden v. Harltey, 112 
 357 ; Reorganized Church v. Church of Wis. 74 ; Burden v. Sheridan, 36 Iowa, 
 Christ, 60 Fed. Rep. 937; Barton v. 125; James u. Smith (1891), 1 Ch. 384. 
 McGrader, 69 Miss. 462. But it is held ' 2 Ves. Sr. 627. 
 
 in some states that the whole of the * Bassett v. Nosworthy, 2 Lead. Cas. 
 
 purchase money must be advanced be- Eq. 1, and notes; Anderson v. Blood, 
 
 fore the purchase, by one who claims 152 N. Y. 285 ; notes, §§ 297, 364, 
 
 the benefit of such a trust. Schierloh supra. 
 
 •J. Schierloh, 148 N. Y. 103 ; Bryant d. ^ Ex parte Reynolds, 5 Ves. 707; 
 
 Allen, 54 N. Y. App. Div. 500 ; Dudley Fox v. Mackreth, 1 Lead. Cas. Eq. 
 
 V. Dudley, 176 Mass. 34. P- * "»; Jackson v. "Walsh, 14 Johns. 
 
 2 Levy 1). Brush, 45 N. Y 589 ; Emer- (N. Y.) 407, 415; Robbins u. Bates, 
 sou n. Galloupe, 158 Mass. 146; Fox v. 4 Cush, (Mass.) 104; Sohler v. Sohler, 
 Peoples, 201 I'a. St. 9 ; Nestal f. Schmidt, 135 Cal. 323; Bispham's Prin. Eq. 
 29 N. J, Eq. 45S r Ostheimer v. Single, § 239. 
 
560 ESTATES IN REAL PBOPERTT. 
 
 § 398. (7) Constructive Trusts arising from Fraud presumed 
 or declared to eadst as affecting Third Parties- — In many in- 
 stances in which real property is conveyed or transferred in 
 such a manner as to injure the rights of third persons not 
 parties to the transactions, statutes or common-law rules or 
 both,' afford substantial remedies, without calling for any trust 
 or any application to a court of equity. That court, however, 
 will take cognizance of such cases and grant relief through 
 the medium of a constructive trust, the foundation of which is 
 fraud actual or presumed. And suits in equity, upon this 
 theory of a trust, are now the most ordinary methods of pro- 
 cedure for the redress of such grievances. The important 
 groups of fraud which give rise to them are fraud on pur- 
 chasers, fraud on creditors, fraud on marital rights and 
 fraud on powers. A few words as to each of these will be 
 sufficient. 
 
 § 399. Fraud on Purchasers. — If the owner of land make 
 a voluntary conveyance of it to one person, — i. e., a conveyance 
 without any valuable consideration, — and then convey it to 
 another person for value, the first taker is readily presumed 
 to be a fraudulent holder in trust for the second purchaser. 
 This was the i»ule in equity even before the matter was affected 
 by legislation.! By the statute of 27 Eliz. ch. 4, whicli was 
 made perpetual by the act of 39 Eliz. ch. 18,, § 31, it was 
 enacted that any conveyance, lease, or other transfer of any 
 lands, tenements, or hereditaments, for the purpose of defraud- 
 ing and deceiving persons who shall purchase the same for 
 valuable consideration, " shall be deemed, only against such 
 persons, to be wholly void, frustrate, and of none effect." This 
 statute has been substantially re-enacted or tacitly adopted in 
 all the states of this cotintry.^ And it affords a solid base for 
 a constructive trust, when the defrauded purchaser for value 
 seeks his remedy in equity.^ 
 
 There is, however, a radical distinction between the English 
 construction of this statute and its construction in America. 
 In England tlie purchaser or encumbrancer for value can have 
 the other taker declared a trustee, and his acquisition of the 
 property nullified, even though the former when he purchased 
 
 1 Perry-Herrick v. Attwood, 2 DeG. ^ I Stim. Amer. Stat. L. § 4592. 
 
 & .T. 21 ; Lloyda Hk. Limited v. Bullock ' Ellison v. Ellisou, 1 Lead. Cas. Eq. 
 
 (iSi)6), 2 Ch. 192, 198; Davis v. Bigler, p. *245, and notes; Cathcart v. Robin- 
 
 62 Fa. St. 242, 247 ; Kerr on Fraud and son, 30 U. S. (5 Pet.) 264, 279. 
 Mistake, 227 ; May, Pr. Conv. 3. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 561 
 
 had notice of the voluntary conveyance.^ The theory is that, 
 since the voluntary transfer is made void by the statute, it may 
 be -disregarded by a subsequent purchaser for value from the 
 same grantor.^ It is essential that such subsequent purchase 
 shall be from the same grantor. An heir or devisee can not 
 defeat his ancestor's or testator's voluntary conveyance, by 
 merely selling the same land for value to one who has notice.* 
 And when a voluntary taker has conveyed to another person for 
 value, the latter may hold the property against a subsequent 
 purchaser from the original grantor.* In this country, a pur- 
 chaser or encumbrancer for value, who has notice of a prior 
 transfer of the land without value, takes subject to the rights 
 of the voluntary grantee, unless tlie latter was privy to an in- 
 tended wrong ; and this is true whether tlae two conveyances 
 were made by tlie same person or by different persons.^ In 
 New York, and possibly in some other states, the statute ex- 
 pressly declares that this shall be the effect of such notice.^ (a) 
 The fact, moreover, that most conveyances and encumbrances, 
 
 (a) This statute, first enacted in 1787, and taken from 27 Eliz. ch. 4, 
 was contained in 2 J. & V. 88, § 3, and 2 R. S. 134, §§1,2; and now, in 
 Real Prop. L. § 262, reads as follows : " A conveyance of an estate or in- 
 terest in real property, or the rents and profits thereof, and every charge 
 thereon, made or created with intent to defraud prior or subsequent pur- 
 chasers or encumbrancers, for a valuable consideration, of the same real 
 property, rents, and profits, is void as against such purchasers and en- 
 cumhrancers. Such a conveyance or charge shall not be deemed fraudulent 
 in favor of a subsequent purchaser or encumbrancer, who, at the time of 
 his purchase or encumbrance, has actual or legal notice thereof, unless it 
 appears that the grantee in the conveyance, or the person to be benefited 
 by the charge, was privy to the fraud intended." The last sentence of 
 this statute was first added in 2 R. S. 134, § 2. See Matter of Jacobs, 98 
 N. Y. 98; Mosley v. Mosley, 15 N. Y. 334; Jackson v. Garnsey, 16 Johns. 
 189; Ames v. Blunt, 5 Paige, 13; Jackson v. Cad well, 1 Cow. 622; Youngs 
 V. Garten, 1 Abb. N. C. 136 ; Becknell u. Lancaster Ins. Co., 1 T. & ?. 
 215, 58 N. Y. 677; Ten Eyck v. Witbeck, 135 N. Y. 40. 
 
 1 Evelyn v. Templar, 2 Bro. Ch. 148 ; ^ Cathcart v. Robinson, 30 U. S. 
 Doe u. James, 16 East, 212; Hill v. (5 Pet.) 264, 279; Verplanck v. Sterry, 
 Bishop of Exeter, 2 Taunt. 69; Buckle 12 Johns. {N. Y.) 536; Roberts o. An- 
 V. Mitchell, 18 Ves. 100, lU ; Gooch's derson, 3 Johns. Ch. (N. Y.) 371; Lan- 
 Case, 5 Rep. 60. See Sterry v. Arden, caster v. Dolan, 1 Rawle (Pa ), 231 ; 
 I Johns. Ch. (N. Y.) 261, 268. Mayor w. Williams, 6 Md. 23.5, 242; 
 
 2 Cases cited in last preceding note ; Keeling v. Hoyt, 31 Neb. 453 ; 4 Kent's 
 Cathcart v. Robinson, 30 U. S. (5 Pet.) . Com. p. *463 et seq. 
 
 264, 279. ^ N. Y. L. 1909, ch. 52, § 262 ; 1 
 
 » Kerr on Fraud and Mistake, 229. Stim. Amer. Stat. L. § 4592. 
 * Ibid.; Bassett v. Nosworthy, 2 
 
 Lead. Cas. Eq. 1, and notes. 
 
 3G 
 
562 ESTATES IN REAL PROPERTY. 
 
 in this country are recorded, and thereby constructive notice 
 of them is given to subsequent purchasers and encumbrancers, 
 makes it very rare that constructive trusts arise here because of 
 such fraud on purchasers of real property. Still the principle is 
 here, and has been applied in some cases in which purchasers, 
 mortgagees, etc., for value have had no notice, by record or 
 otherwise, of prior conveyances to voluntary grantees.^ 
 
 § 400. Fraud on Creditors. — Upon the principle that a man 
 must be just before he is generous, the owner of property is 
 forbidden to give it away so as to impair the rights of his 
 creditors. This has been always true, of course, as a working 
 principle in both law and equity .^ But, probably because of 
 the frequent attempts to violate it, and the difficulties thrown 
 in the way of its enforcement, statutes were passed in very 
 early times, and have been re-enacted and rigidly enforced on 
 both sides of the Atlantic, for the protection of creditors 
 against such covinous transfers. Usually the best remedy for 
 a creditor, in these cases, is in equity, on the theory that the 
 holder of the legal estate is his constructive trustee.^ 
 
 Beginning as early as Edward III.,* these enactments cul- 
 minated in England in the celebrated statute of 13 Eliz. ch. 5, 
 which,' after reciting that feoffments, gifts, grants, etc., had 
 been contrived of malice, fraud, covin, etc., " to delay, hinder, 
 or defraud creditors or others of their just and lawful actions, 
 suits, debts, accounts," etc., provides in substance that every 
 transfer of lands, tenements, hereditaments, goods, and chattels, 
 or any of them, for any such intent or purpose, shall be utterly 
 void, as against the person and his heirs, successors, etc., whose 
 actions, suits, debts, etc., are or might be thereby disturbed, 
 
 ^ Caaes cited in last three preceding 639 ; Bearing v. McKinnon, etc. Co., 
 
 notes. Volnntary conveyances are good 165 N. Y. 78, 90. 
 between the immediate parties. But ^ Twyne's Case, 1 Smith's L. C. 1, 
 
 courts will not ordinarily aid any one 33, 49; Blenkinsopp v. Blenkinsopp, 
 
 to enforce an executory agreement to 1 DeG. M. & G. 495, 500; Hendricks 
 
 make a voluntary settlement or trans- v. Robinson, 2 Johns. Ch. (N. Y.) 283 ; 
 
 fer. Matter of James, 146 N. Y. 78, Weed v. Pierce, 9 Cow. (N. Y.) 722; 
 
 93; Wadd w. Hazleton, 137 N. Y. 215; Cook v. Johnson, 12 N. J. Eq. 51; 
 
 Pomeroy, Eq. Jur. § 1148; Story, Eq. Athey v. Knotts, 6 B. Mon. (Ky.) 24; 
 
 Jur. § 987. See Tarbox v. Grant, 56 People's Bk. v. Loeffert, 184 Pa. St. 
 
 N. J. Eq. 199; Landon u. Hutton, 50 164, 172; Botsford v. Beers, 11 Conn. 
 
 N. J. Eq. 500; Lawrence v. Lawrence, 370. 
 181 lU. 248; 1 Perry on Trusts, § 109. * Stat. 50 Edw. IIL v. 6; Stat. 
 
 2 Notes to Twyne's Case, 1 Smith's 3 Hen. VIL ch. 4 ; Stat. 2 Rich. II. 
 
 L. C. 1, 33 ; Clements v. Moore, 73 U. S. ch. 3 ; notes to Twyne's Case, 1 Smith's 
 
 299; Cadogan v. Kennett, 2 Cowp. 432. L. C. 1, 33. i 
 See Davis u. Schwartz, 155 U. S. 631, 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 663 
 
 hindered, delayed, or defrauded. Such is now, also, the statu- 
 tory law in most, if not all, of the United States.^ (a) 
 
 The conveyances, which are thus rendered voidable, are 
 those which are made with fraudulent intent.'^ If the motive 
 which actuated both parties to the transaction can be shown to 
 have been to hinder, delay, or otherwise injure creditors of the 
 grantor, those creditors may treat the grantee as their con- 
 structive trustee, and have the deed to him set aside, even 
 though he paid value, either in part or in full, for the property .^ 
 The cases, however, in which such relief is most readily obtain- 
 able, are those in which the conveyances are voluntary, or for 
 small or inadequate consideration. Hence these proceedings 
 
 (a) The New York statute, which was 2 R. S. 137, § 1, taken from 
 Jones and Varrick's revision of 1786-87 (2 J. & V. 88), in its turn taken 
 from 13 Eliz. ch. 5, is now Real Prop. L. § 263, which provides that 
 " A conveyance or assignment in writing or otherwise, of an estate, inter- 
 est, or existing trust in real property, or the rents or profits issuing there- 
 from, or a charge on real property, or on the rents or profits thereof, made 
 with the intent to hinder, delay, or defraud creditors, or other persons, of 
 their lawful suits, damages, forfeitures, debts, or demands, or a bond or 
 other evidence of debt given, suit commenced, or decree or judgment 
 suffered, with the like intent, is void as against every person so hindered, 
 delayed, or defrauded." See also §§ 264-268 ; L. 1897, ch. 417, §§ 7, 24- 
 29; L. 1902, ch. 528; Bearing v. McKinnon, etc. Co., 165 N. Y. 78; 
 Manning v. Beck, 155 N. Y. 577; Bristol v. Hull, 166 N. Y. 59; First 
 Nat. Bk. V. Miller, 163 N. Y. 164; Beuerlien v. O'Leary, 149 N. Y. 33; 
 Murphy v. Briggs, 89 N. Y. 446; Commercial Bk. i'. Sherwood, 162 
 N. Y. 310; Billings v. Russell, 101 N. Y. 226; Neuberger v. Keim, 134 
 N. Y. 35; Jacobs v. Morrison, 136 N. Y. 101 ; Seymour v. Wilson, 19 N. Y. 
 417; Galle .;. Tode, 148 N. Y. 270; Metcalf v. Moses, 161 N. Y. 587; 
 Albany Co. Sav. Bk. v. McCarthy, 149 N. Y. 71; Matteson v. Falser, 173 
 N. Y. 404; Jenkins v. Good C. & M. Co., 56 App. Div. 573, aff'd 168 
 N. Y. 679; Masch v. Grauer, 58 App. Div. 560; N. Y. Co. Nat. Bk. v. 
 Amer. Surety Co., 69 App. Div. 153. 
 
 1 N. Y. L. 1909, ch. 52, § 263, see also 99 ; Zerbe v. MiUer, 16 Pa. St. 488, 497 ; 
 
 §§ 264-268 ; 1 Stim. Amer. Stat. L. Gable v. Columbus Cigar Co., 140 Ind. 
 
 §§4591,4593; 2 Kent's Com. p.* 440; 563; Beasley v. Bray, 98 N. C. 266; 
 
 National Bankruptcy Act of 1898, ch. Beidler v. Crane, 135 HI. 92, 96. The 
 
 111. §§ 3, 60, 67. fraudulent purpose of the debtor is 
 
 ^ Zoeller v. Riley, 100 N. Y. 102; properly imputed to the creditor, if he 
 
 Metcalf V. Moses, 161 N. Y. 587 ; Wer- passively accepted the advantage of 
 
 ner v. Zierfuss, 162 Pa. St. 360; Fidler the debtor's wrong-doing, as by letting 
 
 V. John, 178 Pa. St. 112; Stewart v. him fraudulently confess judgment, etc. 
 
 Exch. Bank, 55 N. J. Eq. 795 ; Bouquet Metcalf v. Moses, 161 N. Y. 587 ; Green- 
 
 V. Heyman, 50 N. J. Eq. 114 ; Bump, wald v. Wales, 174 N. Y. 140. See Carr 
 
 Fraud. Conv. § 594. v. Briggs, 156 Mass. 78; Bump, -Fraud. 
 
 ' Twyne's Case, 1 Smith's L. C. 1, Conv. 197; Kerr on Praud and Mis- 
 
 33 ; Holmes v. Penney, 3 Kay & J. 90, take, 200. 
 
664 ESTATES IN REAL PROPEBTT. 
 
 are frequently spoken of as made to set aside " voluntary con- 
 veyances in defraud of creditors." ^ In the last analysis, 
 every transfer of property for less than its value is voluntary 
 in character ; there is a gift of so much as it is worth over 
 and above the consideration. The greater this difference be- 
 tween the price paid and the value, the more readily may the 
 vendor's creditors set aside the conveyance. But even the fact 
 that the transfer is wholly a gift is not, of itself, sufficient to 
 prove fraud.^ The question is one of fact, to be determined 
 from evidence of the circumstances of each case.^ A man may, 
 for example, make a valid gift to his wife, or to a relative or 
 friend, if he do not thereby materially impair his means of 
 paying all his debts.* But if suQh disposal of his property 
 leave him insolvent, it is difficult and usually impossible for 
 him to prove against his creditors that it was not fraudulent.^ 
 The criterion appears to be whether or not the " donor has, at 
 the time, the pecuniary ability to withdraw the amount of the 
 donation from his estate without the least hazard to his credi- 
 tors, or in any material degree lessening their prospects for 
 payment." ® A hona fide alienation for value, on the other hand, 
 may be sustained, even when made by an insolvent grantor,^ 
 and the 'value may be a past consideration.^ Thus, in the ab- 
 
 ^ Authorities cited in last three pre- ^ Metcalf u. Moses, 161 N. Y. 587; 
 
 ceding notes. 2 Kent's Com. 441. 
 
 2 Townsend v. Westcott, 2 Beav. 340 ; ' Jenkyn v. Vaughan, 3 Drew. 419, 
 
 Sexton V. Wheaton, 21 U. S. (8 Wheat.) 42.5 ; Thompson v. Webster, 4 Drew. 
 
 229; Nattingly v. Nye, 75 U. S. 370; 628; Kent w. Riley, 14 Eq. 190; Bump, 
 
 First Nat. Bk. v. Miller, 163 N. Y. Fraud. Conv. 291. 
 164, 167. In order to render a volun- ' Clements v. Moore, 73 U. S. 299, 
 
 tary conveyance void as to subsequent 312; Galle v. Tode, 148 N. Y. 270; 
 
 creditors, there must be affirmative Hancock v. Elmer, 61 N. J. Eq. 558; 
 
 evidence that it was made to defraud De Hierapolis v. Reilly, 44 N. Y. App. 
 
 them. Nattiugly v. Nye, 75 U. S. 370 ; Div. 22; Skirm v. Rubber Co., 57 N. J, 
 
 Buckley v. Duff, 114 Pa. St. 596 ; Todd Eq. 179 ; Beasley v. Bray, 98 N. C. 266 ; 
 
 V. Nelson, 109 N. Y. .316; Bouquet t. Van Baalte v. Harrington, 10) Mo. 
 
 Heyman, 50 N. J. Eq.' 114. 602. 
 
 * First Nat. Bk. v. Miller, 163 N. Y. » Commercial Bk. v. Sherwood, 162 
 
 164, 167; Bristol v. Hull, 166 N. Y. 59, N. Y. 310; Huntley v. Kiugman, 1.52 
 
 66; Bataviau. Wallace, 102 Fed. Eep. U. S. 527, 532; Dodge v. McKeclinie, 
 
 243; Jones v. Simpson, 116 U. S. 609; 156 N. Y. 514, 520; Eep. Chemical Co. 
 
 N. Y. L. 1896, ch. 457, § 229; Twyitf's v. Victor Co.. 101 Fed. Rep. 948. But 
 
 Case, 1 Smith's L. C. 33, 37, 40. see Nat. Bankruptcy Act, 1898, ch. Ill a, 
 
 « Hopkins v. Randolph, 2 Brock. 2; West Co.u. Lea, 174 U. S. 590; Gold- 
 
 (U. S. Cir. Ct.) 132; Casey v. Davis, man v. Smith, 93 Fed. Rep. 182; Nat. 
 
 100 Mass. 124, 130; Dawson v. Walte- Bk. & Loan Co. v. Spencer, 53 N. Y. 
 
 meyer, 91 Md. 328 ; 2 Bigelow on App. Div. 547 ; Snell's Eq. 68. 
 Fraud, 393. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 565 
 
 sence of positive statutory restrictions such as insolvent or 
 bankrupt laws, a debtor, acting in good faith, may exhaust his 
 assets in paying only one or a few of his many creditors ; or he 
 may use them in paying a just claim that has become barred by 
 the statute of limitations.^ It suffices, if he satisfy a present 
 moral obligation, which is founded upon an antecedent legal 
 obligation.^ So, he may validly convey his property for money, 
 or money's worth, or a marriage contracted as a quid pro quo 
 for the transfer, — these being the three forms of valuable con- 
 siderations. When such a consideration is proved, and no 
 fraudulent intent is established, the transaction is sustained.^ 
 
 The immediate parties to transactions which arc fraudulent 
 against creditors can not have them set aside, nor have any 
 trusts founded upon them, because they can not take advan- 
 tage of their own wrong.^ But the statutes give the remedy to 
 creditors and others who may be injured by the transaction. 
 All persons are thus included who have claims against the 
 donor or grantor which ought to be satisfied out of his prop- 
 erty.* Such, for examples, are a person entitled to a penalty 
 against him under the usury law,^ a party with a claim in tort 
 against him for injury to person or property ,'' and his wife suing 
 for divorce and alimony.^ Not only those who are creditors of 
 the grantor or donor at the time of the fraudulent conveyance, 
 but, by the weight of authority, also, those subsequent creditors, 
 whose rights are impaired by tlie transfer, may have the trans- 
 action declared fraudulent and set aside in their favor. Such 
 are those cases in which one about to enter upon a hazardous 
 financial enterprise, or to go into uncertain or reckless specula- 
 tion, disposes of his property by voluntary settlement, and then 
 by such business or speculative operations incurs debts which 
 his remaining assets will not discharge.'' 
 
 1 Bump, Fraud. Conv. 249, 250. * Twyne's Case, 1 Smith's L. C. 1, 
 
 " Clemens o. Moore, 73 U. S. 299, 33, and notes. 
 
 312; Galle V. Tode, U8 N. Y. 270; » Heath w. Page, 63 Pa. St. 108. 
 
 Delaney v. Valentine, 154 N. Y. 692, * Jackson d. Van Buren v. Myers, 
 
 704; Hiller v. Jones, 66 Miss. 636; 18 Johns. (N. Y.) 425; Bigelow v. 
 
 Sterry v. Arden, 1 Johns. Ch. (N. Y.) Cassidy, 26 N. J. Eq. 557 ; Thorg v. 
 
 261; Reade y. Livingston, 3 Johns. Ch. Leibrecht, 56 N. J. Eq. 499; Wait, 
 
 (N. y.) 481, 489; Bank v. Read, 131 Praud. Conv. § 90. And see Craft o. 
 
 Mo. 553; Snell's Eq. 68. Schlag, 61 N. J. Eq. 567 ; Jackson v. 
 
 ^ Blystone v. Blystone, 51 Pa. St. Seward, 5 Cow. (N. Y.) 67. 
 
 373; Bonsteel v. Sullivan, 104 Pa. St. ' Byrnes v. Volz, .53 Minn. 110; 
 
 9; Barwick v. Moyse, 74 Miss. 415; Houseman w. Grossman, 177 Pa. St. 453. 
 
 Harvey v. Varney, 98 Mass. 118; Wilt- ' Neuberger v. Keim, 134 N. Y. 35; 
 
 Bie on Mortgage Foreclosure, § 356. Guy v. Craighead, 46 N. Y. App. Div. 
 
566 ESTATES IN REAL PROPERTY. 
 
 It is required in England, and in most of the states of this 
 country, that, before a proceeding in equity can be sustained 
 to overthrow a conveyance as a fraud on creditors, the claimant 
 must have obtained a judgment at law for his demand, and had 
 execution on the same returned wholly or partly unsatisfied.^ 
 
 § 401. Fraud on Marital Rights. — If a man or woman about 
 to marry make a voluntary conveyance of property in such 
 manner as unfairly to deprive the intended wife or husband of 
 a legal interest, which otherwise would have come into exist- 
 ence by the marriage, this constitutes a fraud, on the ground 
 of which equity will declare a constructive trust against the 
 alienee and in favor of the injured spouse.^ Modern legisla- 
 tion, giving to married women large control over their property, 
 has made cases of this kind less frequent than they formerly 
 were. For many of them were brought against wives, who on 
 the eve of marriage secretly disposed of lands in defraud of the 
 intended husbands;^ and there is no fraud in their aliening 
 property before marriage, which they can readily dispose of 
 during coverture so as to exclude all marital rights in the 
 same.* But wherever the law is still such that marriage gives 
 to husband or wife a right or interest in the other's prop- 
 erty which that other alone can not take away, as is still true 
 of the wife's dower right in New York, New Jersey, and most 
 of the older states, a secret voluntary disposition of such prop- 
 erty just before the marriage will readily cause a constructive 
 trust.^ A transfer will be good and unassailable, however, if 
 
 614 ; Marshall v. Eoll, 139 Pa. St. 399 ; Eq. 405 ; Hunt v. Matthews, 1 Vern. 
 
 Jones V. Light, 86 Me. 437 ;, Kinsey v. 408; England u. Downs, 2 Beav. 622; 
 
 Feller, 51 Atl. Rep. (N. J.) 485 ; Blsp- Cheshire v. Payne, 16 B. Mon. (Ky.) 
 
 ham's Prin. Eq. § 245. And any trans- 618; Hinkle v. Landis, 131 Pa. St. 573; 
 
 fer, once shown to be fraudulent, may Tyler v. Tyler, 126 111. 525 ; Alkire v. 
 
 be attacked by subsequent creditors, as Alkire, 134 Ind. 350 ; Nichols v. Nich- 
 
 well as by those who were creditors at ols, 61 Vt. 426 ; Beers v. Beers, 79 
 
 the time. Marshall v. Roll, 139 Pa. St. Iowa, 555 ; 1 Perry on Trusts, § 213. 
 399 ; Jones v. Light, 86 Me. 437. » Strathmore v. Bowes, 1 Lead. Cas. 
 
 1 Southard v. Beiiner, 72 N. Y. 424; Eq. 405; England v. Downs, 2 Beav. 
 Eruit Co. V. Buck, 52 N. J. Eq. 219, 522, 528 ; Chambers v. Cnibbe, 34 Beav. 
 ^29; Wait, Fraud. Conv. §§ 73-88. See 457 ; Williams v. Carle, 10 N. J. Eq. 
 Neresheimer v. Smith, 167 N. Y. 202. 543; Tucker ». Andrews, 13 Me. 124; 
 While, in England, only lien creditors Kline v. Kline, 57 Pa. St. 120; Ferebee 
 can attack fraudulent donations after v. Pritchard, 112 N. C. 83; Murray v. 
 the donor's death ; in this country all Murray, 90 Ky. 1 ; Bispham's Prin. Eq. 
 kinds of creditors have, after his death, § 253. See Matter of Kidd, 188 N. Y. 
 practically the same rights that belonged 274, 27S. 
 
 tothem while he was living. Story, Eq. * Wrigley v. Swainson, 3 DeG. & 
 
 Jur. §§ 375, 376 ; N. Y. Pers. Prop. L. Sra. 458 ; Cole v. O'Neil, 3 Md. Ch. 174. 
 
 § 19. " Authorities cited in last three pre- 
 
 2 Strathmore v. Bowes, 1 Lead. Cas. ceding notes. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 66T 
 
 made for a valuable consideration,^ or with the acquiescence or 
 knowledge of the other party, no matter how short a time 
 before the marriage such knowledge may have been acquired ; ^ 
 and the party who alleges that it is fraudulent must prove 
 either an actual wrongful intent against him or her, or that the 
 transaction was of such a character that fraud must reasonably 
 be presumed.^ . The fact that the intended spouse did not know 
 of the existence of the property fraudulently disposed of before 
 the marriage will not change the result, if it can be shown that 
 the gift was made for the purpose of preventing any marital 
 right from attaching to the land.* 
 
 On the same principle, if a husband, pending a divorce suit 
 brought by his wife, dispose of property in order to avoid pay- 
 ment of alimony, a trust will attach to it for such claim as the 
 court may award to her against the husband.^ So, all ante- 
 nuptial -settlements are closely scrutinized by the courts ; and 
 when they are greatly disproportionate, or are not proved to be 
 just and equitable, a constructive trust is readily declared in 
 favor of the injured party .^ 
 
 § 402. Fraud on Powers. — A power affecting real property 
 is the right to dispose of a use therein, or in many states, by 
 virtue of modern statutes, to dispose of the legal estate.^ (a) 
 
 (a) " In New York, a power is an authority to do an act in relation 
 to real property, or to the creation or revocation of an estate therein, 
 
 1 Blanchet v. Foster, 2 Ves. Sr. 264. 290j St. George v. Wake, 1 Myl. & K. 
 See Atty.-Gen. v. Jncobs-Smith (189.^), 622; 1 Perry on Trusts, § 213. 
 
 2 Q. B. 341 ; Newstead v. Searles, L. R. ' Blenkinsopp v. Blenkinsopp, 1 De 
 
 9 App. Cas. 320, n. ; Green v. Goodall, G. M. & G. 495 ; Krupp v. Scholl, 10 
 
 1 Cold. (Tenn.) 404. A conveyance Pa. St. 193; 1 Perry ou Trusts, § 213. 
 made before the treaty of marriage is ' Graham v. Graham, 143 N. Y. 573 ; 
 
 commenced is not fraudulent. Bliss v. Lovesey v. Smith, L. R. 15 Ch. Div. 
 
 West, 58 Hun (N. Y.), 71. 655. And see Clark v. McMahon, 170 
 
 2 St. George v. Wake, 1 Myl. & K. Mass. 91 ; Hussey u. Castle, 41 Cal. 
 610 ; Fletcher v. Ashley, 6 Gratt. ( Va.) 239 ; Nance v. Nance, 84 Ala. 375 ; 
 332 ; Cheshire v. Payne, 1 6 B. Mon. Kinne v. Webb, 54 Fed. Rep. 34 ; Synge 
 (Ky.) 618. And the same is true «. Synge (1894), 1 Q, B. 466. 
 
 though the husband, who thus acquires ' A power, says Chancellor Kent, 
 
 notice, is an infant at the time. Slo- "is the mere right to limit a use; and 
 
 combe v. Glubb, 2 Bro. C. C. 545. the appointment in pursuance of it is the 
 
 ' England v. Downs, 2 Bear. 522 ; event on which the use is to arise." 
 
 St. George u. Wake, 1 Myl. & K. 610; 4 Kent's Com. p. *316. Employingthe 
 
 Bliss V. West, 58 Hun (N. Y.), 71. same form of expression, a power, as 
 
 * Goddard v. Snow, 1 Russ. 485 ; created by many modern statutes, may 
 
 Logan V. Simmons, 3 Ired. Eq. (N. C.) be defined as the right to limit (dis- 
 
 487. See Downes v. Jennings, 32 Beav. pose of) a legal estate. See 1 Stim. 
 
 Amer. Stat. L. §§ 1650, 1651. 
 
568 ESTATES IN REAL PROPERTY. 
 
 Thus, land may be granted or devised to A for such uses as B 
 shall appoint ; or, now by statute, B may be given the power of 
 disposing of, a legal estate, which is allowed in the meantime to 
 descend to heirs, oris given temporarily to A, it being intended 
 that the execution of the power shall take the property from the 
 heirs or from A and pass it on to other persons. The subject 
 of powers is discussed at length hereafter.^ It is sufficient for 
 explanation here to add that he who confers a power is called 
 the donor, the one to whom it is given the donee, and the act 
 of executing it an appointment.^ Under the common-law sys- 
 tem, when an appointment is made, by giving the use to some 
 one, the Statute of Uses then transfers to the appointee the 
 legal estate, "in the same quality, manner, form, and condi- 
 tion " in which he is given the use.^ 
 
 A fraud on a power is its improper execution, or other 
 unfair dealing concerning it, s,o as to injure those who should 
 justly be the beneficiaries of the appointment.* Thus, if land 
 were devised to A for life, with power in B to dispose of the 
 residue of the use (or the legal estate)' among A's three children, 
 and B should appoint all or the greater part of it to one of the 
 three, who paid him a bribe for so doing, or should give it to 
 one whom he could unduly influence to convey it to himself, 
 this would be a fraud on the power, which would enable the 
 other two children of A to have a constructive trust fastened 
 upon the property in the hands of the appointee.^ This they 
 might do also, if the donee in any way dishonestly executed 
 the power, though the appointee had no knowledge of the 
 fraud, and even though the donor of the power consented to 
 the improper appointment.^ The creation of the power con- 
 
 which the owner, granting or reserving the power, might himself lawfully 
 perform." New York Real Property Law (L. 1909, ch. 52), § 131, which 
 in substance was formerly 1 R. S. 732, § 74. 
 
 1 See also explanation of powers in ^ Dnke of Portland v. Topham, 1 1 
 trust, § 332, supra. H. L. Cas. 32 ; WcUesley v. Morning- 
 
 2 In some states, he who confers the ton, 2 Kay & J. 143 ; Marsden's Trust, 
 power, whether by deed or will, is called 4 Drew. 594, 601 ; In re Kirwan's Trust, 
 the " grantor," and he to whom it is L. R. 25 Ch. DIt. 373. 
 
 given, the "grantee." See N. Y. L. « Marsden's Trust, 4 Drew. 594, 601 ; 
 
 1896, ch. 547, § 112; Fowler's N. Y. Lee v. Fernie, 1 Beav. 483; Duke of 
 
 Real Prop. Law, p. 321. Portland v. Topham, 11 H. L. Cas. 32 ; 
 
 3 § 302, supra. In re Perkins (1893), 1 Ch. 283. See 
 ♦ Lane v. Page, Ambler, 233 ; Aleyn Smith v. Somes (1896), X Ch. 250. 
 
 V. Belchier, 1 Lead. Cas. Eq. 377 ; 
 Alarsden's Trust, 4 Drew. 594, 601. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 669 
 
 fers rights upon those who should properly be the recipients of 
 benefit from its execution ; and it is a fraud on the power to so 
 deal with it as to impair those rights. ^ 
 
 Constructive trusts and other media of redress arising from 
 fraud on powers have been much more numerous in England 
 than in this country, owing to the frequent employment of 
 powers there in arranging marriage settlements. But the 
 equitable principles governing the matter are the same in both 
 countries.^ " A person having a power must exercise it bona 
 fide for the end designed." ^ And if he so deal with it for his 
 own benefit, or even for the benefit of a stranger, as to work 
 injustice towards the legitimate beneficiaries, a constructive 
 trust will readily fasten upon the property.* 
 
 7. Constructive Trusts that Arise in the Absence 0/ Fraud. 
 
 § 403. Foundation and Forms of such Trusts. — On the broad 
 foundation of the maxim, " Equity looks upon that as done 
 which ought to be done," ^ constructive trusts emerge, with- 
 out the existence or presumption or even the apprehension 
 of fraud, whenever they are requisite to the working out of 
 the best measures of justice between the parties. For it is 
 upon the basal theory of the existence of a trust that the 
 most ancient equitable remedies, as well as those that are the 
 farthest reaching and most beneficient, such as specific per- 
 formance of contracts, injunction, and accounting, have been 
 originated and enforced.^ And, for the purpose of the remedy, 
 the operation .of the maxim frequently calls into being trusts 
 which were not within the contemplation of the parties, and in 
 connection with which there is not even the shadow of fraud. ^ 
 It would be futile to attempt to enumerate all of such cases. 
 Probably some of them have not yet been brought before any 
 
 1 Dnke of Portland v. Topham, 11 * Bispham's Prin. Eq. § 44; Fonbl. 
 H. L. Cas. 32 ; Lee v. Fernie, 1 Beav. Eq. Tr. B. 1, ch. 6, § 8. 
 
 483. « Green v. Smith, I Atk. 572 ; Wil- 
 
 2 See Williams's Appeal, 73 Pa. St. Hams v. Haddock, 145 N. Y. 144, 1 50 ; 
 249 ; Rowley v. Rowley, Kay, 242 ; 1 Spence, Eq, 1 08, 645 ; Bispham's Prin. 
 Turner's Estate, L. R. 28 Ch. Div. 205 ; Eq. § 479. 
 
 1 Perry on Trusts, §§ 211, 212, 254; ' Authorities cited in last preceding 
 
 Bispham's Prin. Eq. § 257. note. Also Teneick v. Elagg, 29 N. J. 
 
 ' Aleyn v. Belchier, 1 Lead. Cas. L. 25; Quigley v. Gridley, 132 Mass. 
 
 Eq. 377. 35, 39 ; 1 Perry on Trusts, § 231. 
 
 * Marsden's Trust, 4 Drew. 594, 
 601 ; 1 Perry on Trusts, § 211. 
 
670 ESTATES IN REAL PROPERTY. 
 
 court. The principle, which deals with them as they arise, is 
 that a trust will exist when it ought to do so in order to pro- 
 duce substantial justice. The discussion of a few of tlie most 
 important instances of its application will suffice. Such are 
 the constructive trusts which accompany contracts for the pur- 
 chase and sale of real property ; those which attach to land in 
 the hands of one who has taken the legal estate from a wrong- 
 doer without paying value and without notice of the fraud; 
 and those which exist in the form of vendors' or vendees' liens, 
 equitable liens for money loaned upon the faith of real estate 
 security, and the like, and which are also treated hereafter as 
 forms of equitable mortgages. 
 
 § 404. Contracts for the Purchase and Sale of Real Property. 
 — " The general rule in regard to contracts for the sale of 
 land is that the owner of the real estate from the time of the 
 execution of a valid contract for such sale is to be treated as 
 the owner of the purchase money, and the purchaser of the 
 land is treated as the equitable owner thereof." ^ After such a 
 contract is made, a short time usually elapses before the deed 
 is delivered and the legal estate is passed to the vendee. In 
 the mean time the title to the realty is examined by or for the 
 purchaser. During this period, the intended vendor holds the 
 land in trust for the intended vendee ; and the latter is con- 
 stantly said by the best courts, as is virtually done in the above 
 quotation, to hold the purchase money in trust for the former.^ 
 It is necessary to the existence of a trust, however, that there 
 be a definite and ascertainable fund or property as the subject- 
 matter.2 The land contracted to be sold is always such ; but 
 how, it has been pertinently asked, can the proposed vendee 
 hold the purchase money in trust in cases such as frequently 
 arise in which he has no purchase money at the time, or at 
 least none .distinctively set aside as the fund with which he is 
 to perform his part of the contract ? The answer is that, when 
 courts use expressions like that above quoted, they do so with 
 primary reference to the remedy, for which constructive trusts 
 are implied, — the land is literally held in trust for the con- 
 tracting purchaser; and he is to be treated, so far as the 
 
 1 Williams v. Haddock, 145 N. Y. U. S. 1, 10; Union Pac. E. Co. v. 
 14*. 150- Chicago, etc. R. Co., 163 U. % 564, 
 
 2 Green v. Smith, 1 Atk. 572 ; Dex- 600; 1 Perry on Trusts, § 231. 
 
 terw. Stewart, 7 Johns. Ch. (N.Y.) 52; si perry on Trusts, §§ 67-72; 
 
 Matter of Davis, 43 N. Y. App. Div. §§ 300, 327, supra. 
 331 ; Roberts v. Nor. Pac. R. Co., 158 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. .'S71 
 
 remedy against him is concerned, as if he actually had a fund 
 of money distinctively set aside in trust and devoted to the 
 purpose of buying the land. Therefore, the remedy of each 
 against the other, in case of failure duly to perform the 
 contract, is a specific performance suit — that ancient equita- 
 ble redress (which is essentially an injunction to prevent the 
 threatened violation of a trustee's duty^), whereby the delin- 
 quent vendor is compellable to convey the land and pay any 
 proximate damages caused by his default, or the vendee is re- 
 quired to take title to the realty and to pay to the vendor the 
 purchase price and any proximate damages occasioned by his 
 attempted breach of the contract.^ 
 
 The trust in real property, growing out of the contract for 
 its purchase and sale, continues to exist until either the con- 
 tract is executed by the delivery and acceptance of the deed, or 
 is mutually abandoned by the parties, or the realty passes from 
 the intended vendor to one who purchases it in good faith, for 
 a valuable consideration and without notice of the trust.^ 
 Upon the death of the contracting vendor, the legal estate 
 passes to his heirs or voluntary devisees burdened with the 
 trust. And if, pending the contract, he wrongfully convey it to 
 a third party, who has notice of the rights of the intended ven- 
 dee, the purcliaser holds it in trust for the latter.* Also, by 
 the weight of authority, if during this period the property be 
 destroyed or injured, by fire or other cause, without the fault 
 
 1 Willard's Eq. Jur. p. * 261. erty raises a use or trust in favor of the 
 
 2 Green v. Smith, 1 Atk. 572 ; Union proposed vendee, it should be executed 
 Pac. E. Co. 17. Chicago, etc. R. Co., 163 by the Statute of Uses and no subse- 
 U. S. 564, 600 ; Williams v. Haddock, quent deed should be necessary. But, 
 145 N. Y. 144 ; O'Connor v. Felix, 147 aside from the effect of the opposite in- 
 N. Y. 614; Higgins v. Eagleton, 155 tention of the parties so clearly shown 
 N. Y. 466 ; Reed v. Lukens, 44 Pa. St. , by the contract itself by its fixing the 
 200; Fry on Specific Performance, § 1. time for the delivery of the deed, that 
 While the theory of this remedy is the statute does not affect the implied trust, 
 existence of a, trust which should be The legal estate remains in the pro- 
 enforced, the primary reason for its posed vendor until the conveyance is 
 adoption by equity was because of the made by the parties. 
 
 inadequacy of the redress at law in such ' Wythes v. Lee, 3 Drew. 396 ; Dinn 
 cases; that redress being ordinarily only v. Grant, 5 DeG. & Sm. 451 ; Ten Eick 
 damages for breach of contract. Specific v. Simpson, 1 Sand, Ch. (N. Y.) 244. 
 performance " prevents the intolerable And see, as to rights of innocent pur- 
 travesty of justice involved in permit- chasersfor value without notice, §§ 406- 
 ting parties to refuse performance of 409, infra. 
 
 their contracts at pleasure by electing * Barker v. Hill, 2 Ch. Rep. 113; 
 
 to pay damages for their breach." Orlebar v. Fletcher, 1 P. Wins. 737; 
 
 Union Pac. R. Co. v. Chicago, etc, R. Moore v. Crawford, 110 U. S. 122, 133 ; 
 
 Co., 163 U. S. 564, 600. It might be Roberts i: Nor. Pac. R. Co., 158 U. S. 
 
 argued that, technically, as soon as any 1 ; Matter of Davis, 43 N. Y. App. Div. 
 
 contract to sell and purchase real prop- 331 ; Borie o. Satterthwaite, 180 Pa. 
 
672 ESTATES IN REAL PROPERTY. 
 
 of the vendor, the loss falls on the vendee ; and lie can not 
 defeat, because of it, an action for the purchase price or the 
 specific performance of the contract.^ 
 
 § 405. Legal Estate taken 'without Value and without Notice. 
 — A hona-fide purchaser for value, without notice of the wrong 
 on the part of the vendor, may acquire title to property unaf- 
 fected by any trust. The absence of valuable consideration is 
 looked upon by equity, however, as equivalent to notice. And, 
 therefore, however innocent of fraudulent intent or actual 
 knowledge of any wrong may be a mere donee, or voluntary 
 taker, of property, he takes it subject to any outstanding trust 
 or equity by which it may be affected.^ He may clear himself 
 from all possible imputation of fraud ; yet he holds the land as 
 a constructive trustee for those to whom it rightfully belongs. 
 It is proper at this place to notice, more fully than has yet 
 been done in this treatise, the facts which must co-exist in 
 order that a grantee may avoid this difficulty — that he may be 
 an innocent purchaser for value without notice. 
 
 § 406. Bona-fide Purchase for Value without Notice. — 
 Three things must concur to make one an innocent purchaser 
 for value without notice of any outstanding trust or equity 
 which may attach to the property.^ First. He must buy 
 without notice of the fraud, trust, or equity. Second. He must 
 purchase for a valuable consideration. Third. In most states 
 lie must pay all of the consideration, and acquire the legal 
 estate before receiving any notice of tlie fraud, trust, or equity. 
 The last of these requisites is chiefly explanatory of the other 
 two, but it conduces to clearness to discuss it separately. 
 
 § 407. First. Notice is " legal cognizance of a fact." 
 Positive knowledge is, of course, such cognizance ; and this 
 constitutes actual noticed A purchaser may be bound by such 
 notice as this, either if he personally have the knowledge, or if 
 
 St. 542; Haughwout v. Murphy, 22 N. 134; Phinizyt). Guernsey, 111 Ga. 346; 
 
 J. Eq. 531 ; Gloucester G. & Q. Co. v. Gould v. Murch, 70 Me. 288. 
 Kussia Co., 154 Mass. 92 ; Fry on Spe- ^ Le Neve v. Le Neve, 2 Lead. Cas. 
 
 cific Performance, § 135 ; 1 Perry on Eq. 35, note ; Pye v. George, 1 P. 
 
 Trusts, §231; Bispham's Prin. Eq. § 365. Wms. 128; Ten Eyck v. Witbeck, 135 
 
 1 Paine v. Meller, 6 Ves. 349 ; Sew- N. Y. 40; 1 Perry on Trusts, § 241. 
 ell V. Underbill, 127 N. Y. App. Div. " Bispham's Prin. Eq. § 263, 
 
 92, 93; Clarke v. Long Is. R. Co., 126 * Harper v. Ely, 56 111, 179, 194; 
 
 N. Y. App. Div, 282 ; Reed v. Lukens, Mayor v. Williams, 6 Md. 235 ; Jones 
 
 44 Pa. St. 200; Snyder v. Murdock, 51 v. Van Dosen, 130 U. S. 684, 691; 
 
 Mo. 175; 15 Harvard Law Rev. 733. notes to Le Neve t. Le Neve, 2 Lead. 
 
 See Thompsons. Gould, 20 Pick, (Mass.) Cas. Eq. 35. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS, 573 
 
 it can be proved to have been at the time in the mind of his 
 attorney or other agent who was properly acting for him in 
 carrying through the purchase. ^ And it is now agreed, by prac- 
 tically all the courts, that notice to such agent or attorney 
 binds the principal, if it were acquired in the very transaction 
 of buying the land, or in some other transaction sufficiently 
 recent and important so that it is reasonable to assume that it 
 was present in tlic agent's mind at the time of the purchase.^ 
 But knowledge so brought home to the agent is not notice to 
 his principal, if it were such that the agent had no legal right 
 to reveal it to the principal, or if the former were engaged in 
 connection with the purchase in a scheme to cheat or defraud 
 the latter.^ 
 
 Again, the information which is open to a purchaser by vir- 
 tue of the proper record of a deed of the land, or a mortgage 
 or other encumbrance thereon (the record being pursuant to 
 the statute which authorizes or requires the same), or by the 
 proper filing and indexing of a statutory lien or notice, such 
 as a mechanic's lien or notice of the pendency of an action 
 affecting the title to or possession of the land, is also such 
 cognizance, whether or not the purchaser actually know of the 
 existence of the record or of the filing ; and this is constructive 
 noticed Such notice is now generally the result of positive 
 statutes.^ But equity has always recognized llic principle that, 
 except as modified by statute, the mere pendency of an 
 action or suit affecting realty is notice to purchasers and 
 
 1 Le Neve v. Le Neve, 2 Lead. Cas. 715, 728; Amer. Surety Co. v. Pauly 
 
 Eq. 35; Astor v. Wells, 17 U. S. (4 (No. 1), 170 U. S. 133, 156; Indian 
 
 Wheat.) 466; Denton v. Ontario Co. Head Bank v. Clark, 166 Mass. 27; 
 
 Nat. Bk., 150 N. Y. 126; Hovey v. Cole v. Getzinger, 96 Wis. 559; Gun- 
 
 Bianchard, 13 N. H. 145. ster ». Scranton I. H. & 1'. Co., !81 Pa. 
 
 ^ Dresser w. Norwood, 17 C. B. (n. s.) St. 327; United States Security Co. v. 
 
 466; Blackburn v. Vigors, L. B. 12 Cent. Nat. Bk., 185 Pa. St. 586, 600. 
 
 App. Cas. 531 ; Tlie Distilled Spirits, See New York University v. Loomis 
 
 78 U. S. (11 Wall.) 356, 366; Constant Laboratory, 178 N. Y. 137. 
 ». Univ. of Rochester, 111 N. Y. 604; * Carpenter v. Dexter, 75 U. S. 
 
 Slatteryw. Schwannecke, 118N.Y. 543; (8 Wall.) 513, 532; Bispham's Prin. 
 
 McCutchen v. Dittraan, 164 N. Y. 355; Eq. § 270. 
 
 Willard v. Denise, 50 N. J. Eq. 482 ; ' New York L. 1896, ch. 547, §§ 240- 
 
 Hart w. Farmer's Bk., 33 Vt. 252 ; Sheri- 247; N. Y. Code Civ. Pro. §§ 1670- 
 
 dan t). Briggs, 53 Mich. 569, 572. See 1673; Fowler's Real Prop. L. of N. Y. 
 
 A'ciMjH in Mclntire t'. Pryor, 173 U. S. pp. 544-562; Gen. Stat. N. J. pp. 
 
 38, 52, that other transaction must have 855, 856, 882 ; 1 Stim. Amer. Stat. L. 
 
 been " for the same principal." §§ 1610-1632. It has been held that 
 
 ^ Kettlewell v. Watson, L. R. 21 Ch. such record once properly made, though 
 
 Div. 685, 707 ; Henry v. Allen, 151 thereafter destroyed, is constructive 
 
 N. Y. 1 ; Benedict v. Arnoux, 154 N. Y. notice. Tucker v. Shaw, 158 111. 326. 
 
574 
 
 ESTATES IN REAL PROPERTY. 
 
 encumbrancers thereof of all the rights that the parties to the 
 litigation may thereby establish.^ And the equitable doctrine 
 of constructive notice, independent of legislation, is still more 
 forcibly illustrated by the rule, well settled in many states, that 
 actual and open possession of real property under an unrecorded 
 deed or encumbrance is constructive notice of all the interest 
 and rights which the person in possession is able to establish 
 under such deed or encumbrance.^ If, therefore. A, relying 
 wholly on what appears upon the official records, buy land of 
 which B is at the time holding actual, open, and visible pos- 
 session under an unrecorded conveyance or mortgage, he is 
 bound by notice of all B's rights in the property .^ 
 
 Lastly, as to kinds of notice, when the purchaser or his agent 
 acquires knowledge of facts, which should lead him as a reason- 
 able person to suspect the existence of the outstanding trust or 
 equity, and to make inquiry concerning it, and it can be proved 
 that if he properly made the inquiry or investigation he would 
 thereby obtain knowledge of the facts concerning such trust or 
 equity, then he has, notice of it whether he make such investi- 
 gation or not; and this is presumptive or implied notice,^ which 
 
 1 Sorrell v. Carpenter, 2 P. Wms. 
 482; Murray v. Ballou, 1 Johne. Ch. 
 (N. Y.) 566 ; Cook v. Mancius, 5 Johns. 
 Ch. (N. Y.) 89; Enfield v. Jordan, 119 
 U. S. 680, 693; Armstrong v. Ashley, 
 204 U. S. 272, 280 ; Turner v. Hanpt, 53 
 N. J. Eq. 526 ; Snively v. HiteehBw, 59 
 Pa. St. 49; Adams's Doct. Eq. 157. 
 He who purchases property affected by 
 such litigation buys with notice of all 
 the rights established by the litigation, 
 whether or not any formal notice of its 
 existence is filed. But the statutes of 
 most states abolish this general doc- 
 trine of lis pendens, and require as 
 notice of an action a formal written 
 document, made as prescribed by the 
 statute, and duly filed and indexed. 
 See statutes cited in last preceding 
 note. 
 
 2 Phelau V. Brady, 119 N. Y. 587 ; 
 Smith V. Reid, 134 N. Y. 568; Marden 
 V. Dorthy, 1 60 N. Y. 39, 52 ; Kirby v. 
 Talmadge, 160 U. S. 379; Essex Co. 
 Bank i\ Harrison, 57 N. J. Eq. 91 ; 
 Scott V. Gallagher, 14 S. & K. (Pa.) 333. 
 Contra, Glass v. Hulbert, 102 Mass. 24, 
 34; Boggs V. Anderson, 50 Me. 161 ; 
 
 Harris v. Arnold, 1 R, I. 125; Bush v. 
 Golden, 17 Conn, 594. And, wherever 
 possession is treated as notice, it must 
 be actual, visible, and open occupation. 
 Holland v. Brown, 140 N. Y. 344; Cor- 
 nell V. Maltby, 165 N. Y. 557 ; Reagle 
 o. Reagle, 179 Pa. St. 89 ; Hodge v. 
 Amerman, 40 N. J. Eq 99 ; Batavia v. 
 Wallace, 78 Fed. Rep. 448 ; McAlpine 
 V. Resch, 82 Minn. 523. Possession is 
 not notice of rights by virtue of any 
 instrument under which the possession 
 was not taken or is not being clearly 
 held. Gibson i>. Thomas, 180 N. Y. 483. 
 
 8 Ibid. 
 
 * Le Neve v. Le Neve, 2 Lead. Cas. 
 Eq. 35, note ; Kettlewell v. 'Watson, 
 L. R. 21 Ch. Div. 704 ; Williamson v. 
 Brown, 15 N. Y. 354 ; Holland v. Brown, 
 140 N. Y. 344; Kirsch v. Tozier, 143 
 N. Y. 390; Anderson v. Blood, 152 
 N. Y. 285 ; Cornell v. Maltby, 165 N. Y. 
 557; Macon v. Mullahy, 145 111. 383; 
 Bailey v. Galpin, 40 Minn. 319 ; West- 
 inghouse v. German Nat. Bk., 188 Pa. St. 
 630 ; Swasey v. Emerson, 168 Mass. 118; 
 Batavia v. Wallace, 102 Fed. Rep. 240, 
 244; Foxworth y, Brown, 114 Ala. 299. 
 
EQUITABLE ESTATES. — CONSTRUCTIV E TRUSTS. 576 
 
 is often classified as a form of actual notice.^ Its two elements 
 are, the existence of the trust or other right against the land, 
 and knowledge by or notice to the purchaser sufficient to cause 
 him, as a reasonable person, to institute an investigation, which, 
 if properly prosecuted, would give him actual knowledge of the 
 trust or right.2 Thus, if a recorded deed in the chain of the 
 title to the land refer to another deed or mortgage of the same 
 property, although such other document is not recorded, this is 
 notice to the purchaser or encumbrancer of all the rights in 
 the land which a careful investigation would reveal as belong- 
 ing to the beneficiaries of the mortgage or deed so indicated.^ 
 And when one who is about to buy land is informed from a 
 credible source that the vendor is going to sell it in order to 
 defraud specific equitable lienors or creditors, he purchases 
 with notice of the equities of all such persons, which a reason- 
 able inquiry would have disclosed.* (a) 
 
 (a) In New York, presumptive notice, as explained in the text, does not 
 apply to the rights of creditors at large of the vendor, " having no special 
 lien or equity," nor to purchases and sales of commercial paper, and probar 
 bly not to those of other personal property. Without discussing this large 
 subject here in detail, it may be stated briefly that (1) A purchaser of per- 
 sonal property, in order to be affected by notice of fraud on the part of his 
 vendor, or any trust or equity attaching to the subject-matter, must have 
 actual notice — • knowledge or its equivalent by himself or his agent, Parker 
 V. Conner, 93 N. Y. 118, 127, and the same rule is shown in that case to 
 be followed in England ; (2) A purchaser of realty is not affected by the 
 rights of " creditors at large, having no special lien or equity," unless he 
 has actual knowledge of such rights, or its equivalent, Parker v. Conner, 
 93 N. Y. 118, 125; Stearns v. Gage, 79 N. Y. 102; Bush u. Roberts, 111 
 N. Y. 278 ; Jacobs v. Morrison, 136 K. Y. 101 ; Wilson v. Marion, 1-17 
 N. Y. 589, and (3) A purchaser of realty, who has knowledge sufficient to 
 put a reasonable person on inquiry as to any outstanding equity or specific 
 lien or right, has notice of it if by reasonable investigation he could 
 acquire actual knowledge of the same, Williamson v. Brown, 15 N. Y. 
 354; Ten Eyck v. Witbeck, 135 N. Y. 40 ; Anderson v. Blood, 152 N. Y. 
 285. " It is the duty of the purchaser of real estate to investigate the title 
 of his vendor, and to take notice of any adverse rights or equities of third 
 
 1 See Flagg v. Mann, 2 Sumn. (U. S. 271 ; Cambridge Valley Bk. v. Delano, 
 Cir. Ct.), 486, 556 ; Bisphara's Prin. Eq. 48 N. Y. 326 ; Reed v. Gannon, 50 N. Y. 
 § 268 ; Pomeroy's Eq. Jur. § 753. 345 ; Dingley v. Bon, 130 N. Y. 607 ; 
 
 2 Cornell v. Maltby, 165 N. Y. 557 ; Gerard on Titles to Real Estate (4th 
 Jacobs V. Morrison, 136 N. Y. 101 ; ed.), p. 664. 
 
 Wilson u. Marion, 147 N. Y. 589 ; Pome- * Williamson v. Brown, 15 N. Y. 
 
 ro/s Eq. Jur. § 784 ; 1 Perry on 354 ; Anderson v. Blood, 152 N. Y. 285 ; 
 
 Trusts, § 223. Milliken v. Graham, 72 Pa. St. 484 ; 
 
 ' Sweet V. Henry, 175 N. Y. 268; Cox v. Miller, 23 111. 476; Story, Eq. 
 
 Howard Ins. Co. ». Halsey, 8 N. Y. Jur. § 400 b. 
 
576 ESTATES IN BEAL PROPERTY. 
 
 It is to be added that, if a purchaser in good faith acquire tlie 
 legal estate for value and without notice, so that he holds free 
 and clear of the outstanding trust, he may convey as good a 
 title to any one who has either kind of the above-described 
 forms of notice,^ provided the latter has not before owned the 
 land bound by the notice.^ Thus, if A own the legal estate as 
 a constructive trustee, and convey to B, who pays a valuable 
 consideration and buys in good faith without notice of the 
 trust, B may transfer a clear title to C, and C to D, etc., al- 
 though all these latter are notified of the trust. Otherwise B 
 might occupy the anomalous position of having an unassailable 
 title, which he could not sell free and clear after the facts con- 
 cerning the trust became notorious.^ But, since A has already 
 been bound by the notice, he could not re-acquire the land 
 freed from it, no matter how perfect might be the title of his 
 immediate vendor.^ 
 
 §408. Second. Valuable Consideration A valuable consid- 
 eration here means something of worth, as money, money's 
 equivalent, or marriage (marriage in the sense of the entering 
 into the married state, and not an existing condition or status 
 of being married), which is " the real inducement of the grant." ^ 
 
 persons which he has the means of discovering and as to which he is put 
 on inquiry. If he makes all the inquiry which due diligence requires, and 
 still fails to discover the substantial right, he is excused; but if he fails to 
 use due diligence, he is chargeable, as matter of law, with notice of the 
 facts which the inquiry would have disclosed. . . . The questions in such 
 cases are first, whether the facts were sufficient to put the party on inquiry; 
 and second, did he fail to exercise due diligence in making the inquiry ? 
 An affirmative answer to these two questions charges the party with notice 
 as matter of law; but the notice, in all such cases to be found in the books, 
 relates to some actual outstanding title, lien, or equitable interest." Per 
 Kapallo, J., in Parker v. Conner, 93 N. Y. 118, 124. 
 
 1 Bumpus V. Platner, 1 Johns. Ch. * See last two preceding notes. 
 (N. Y.) 213; Fletcher v. Peck, 10 U.S. "Whenever the chain of conveyances 
 (6 Cranch) 87 ; Logan v. Eva, 144 Pa. St. reaches an innocent purchaser for value, 
 312 ; Rutgers v. Kingsland, 7 N. J. Eq. who takes the legal title, the doctrine 
 178,658; Bassett u. Nosworthy, 2 Lead. of notice no longer applies." Bispham's 
 Cas. Eq. 1,33, note; 1 Perry on Trusts, Prin. Eq. § 265, citing Demarest v. 
 § 222. Wynkoop, 3 Johns. Ch. (N. Y.) 129, 
 
 2 Taylor v. Russell (1891), 1 Ch. 8, 147. 
 
 27; Bovey v. Smith, 1 Vern. 149; « Ten Eyck u. Witheck, 135 N. Y. 
 
 Clarku.McNeal. 114N. Y. 287; Church 40, 47. These three terms," money, 
 
 V. Ruland, 64 Pa. St. 432, 441 ; Logan money's equivalent, or marriage " are 
 
 j;. Eva, 144 Pa. St. 312, 321; Williams t». here used as a terse summary of all 
 
 Williams, 115 Mich. 477; Cassidy v. those things that are a right, interest, 
 
 Wallace, 102 Mo. 575, 581. See N. Y. profit, or benefit accruing to the one 
 
 L. 1897, ch. 612, § 97. party, or some forbearance, detriment, 
 
 * Bumpus ('. Platner, 1 Johns. Ch. 
 (N. Y.) 213. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 577 
 
 In this connection, it is to be distinguished, not only from a 
 good or meritorious consideration, but also from one that is 
 merely nominal, such as one dollar, or any small sum, which is 
 insignificant in comparison with the fair market value of the 
 land, and is clearly not the actual moving cause of the convey- 
 ance. When such small sums are paid for properties worth 
 vastly more, the transaction is generally in substance a gift — 
 a transfer growing out of close relationship, or love and affec- 
 tion, or other actual consideration which is only " good," and 
 the amount recited in the deed, as one dollar, five dollars, and 
 love and affection, etc., is nominal and not valuable.^ In Ten 
 Eyck V. Witbeck,^ for example, the New York Court of Appeals 
 held that a father's deed to his daughter, of land worth twenty 
 thousand dollars, for ten dollars, actually paid, and her agree- 
 ment to hold the property in trust for her mother and brothers 
 and sisters, was not made for a valuable consideration. In the 
 opinion it was said : " We think it would be a perversion of 
 language to say that a father, who had conveyed to a daughter 
 property of the value of twenty thousand dollars for no greater 
 sum than ten dollars paid, had sold the property to this child, 
 or that she had bought it of him. The transfer would be 
 recognized by the popular, as well as the judicial mind, as pos- 
 sessing all the essential qualities of a gift." ^ Any amount of 
 money, however small, is in itself, of course, valuable. But 
 when it bears no reasonable proportion to the fair market price 
 of the land, and so is not " the real inducement of the grant," 
 it is only nominal ; and the grantee does not occupy the posi- 
 tion of an innocent purchaser for value. And even where the 
 parties regard and treat a nominal sum as the consideration, its 
 gross inadequacy is usually sufficient in itself to put the pur- 
 chaser on inquiry as to any outstanding trust or equity in fraud 
 of which the sale is being made, and so to prevent him from 
 being an innocent purchaser without noticed 
 
 loss, change of position, or responsi- ' Ibid. ; Doe v. Routlidge, 2 Cowp. 
 
 bility, given, suffered, or undergone by 705 ; Metcalfe u. Pulvertoft, 1 Ves. & 
 
 the other. Currie w. Misa, 10 Ex. 153, Bea. 180, 183; Murray v. Ballou, 1 
 
 162; Bassett v. Nosworthy, 2 Lead. Johns. Ch. (N. Y.) 566; 1 Perry on 
 
 Cas. Eq. 5, 103-109; City R. Co. u. Trusts, § 220. 
 
 Citizens St. R. Co., 166 U. S. 557, 566 ; 2 135 n. Y. 40.. 
 
 Corle V. Monkhouse, 50 N. J. Eq. 537, ^ Per Maynard, J., at p. 4-t. 
 
 540; Chilvers v. Race, 196 111. 71; * Wagstaff «. Read, 1 Ch. Cas. 156 ; 
 
 Steele v. Steele, 75 Md. 477 ; Selman Bullock v. Sadliev, Amb. 763, 764. 
 
 V. Lee, 69 Ky. 215, 222; Anson on Ejects of inadequacy of consideration, 
 
 Contracts, p. * 83. § 406, supra. It is for this reason that 
 
578 ESTATES IN EEAL PROPERTY. 
 
 In some of the United States, moreover, such as New York, 
 Vermont, Maryland, Michigan, and Arkansas, a conveyance of 
 land to a creditor of the grantor, made only in satisfaction of 
 or on account of the previously existing indebtedness, while 
 good between the parties to the deed, does not make the grantee, 
 as to outside claimants or lienors, an innocent purchaser for 
 value. In order to occupy that position, he must give a present 
 valuable consideration, advanced specially for the property.^ 
 The United States courts, however, and probably a majority 
 of those of the states, take the opposite view and treat a 
 conveyance or mortgage to individual creditors of the grantor 
 or mortgagor, when properly made for the purpose of satisfy- 
 ing or reducing the debt, as putting them in the position of 
 purchasers for value.^ But, with the exception of Pennsyl- 
 vania, and possibly one or two other states, this position is not 
 accorded anywhere to assignees in insolvency or trustees in 
 bankruptcy; but such takers, who acquire the land for pre- 
 existing debts and not for themselves, but for others, are 
 treated as mere volunteers.* 
 
 § 409. Third. Time of Notice and Payment. — Notice to the 
 vendee, at any instant before he has actually obtained his 
 conveyance and paid the consideration in full, prevents him 
 from being an innocent purchaser without notice. If he acquire 
 notice after the deed has been delivered and accepted, but be- 
 fore payment of the entire purchase price, or after part or all 
 of the consideration has been paid, but before the conveyance 
 has passed, and then he complete the purchase, he takes the 
 land subject to the interest or equity of which he thus obtained 
 
 a trustee can not convey a valid title to Bk. v. Morse, 163 Mass. 383 ; Longdale 
 
 a purchaser from him for a nominal Iron Co. v. Swift's Iron Works, 91 Ky. 
 
 consideration. Shriver v. Shriver, 86 191 ; Koch ». Roth, 1.50 lU. 212; Heitz- 
 
 N. Y. .575. feld v. Bailey, 103 Ala. 473 ; Moore v. 
 
 '■ Bay V. Coddington, 5 Johns. Ch. Holcombe, 3 Leigh (Va.), 597 ; Titcomb 
 
 (N. Y.) 34; Eodgers v. Bonner, 45 «. Wood, 38 Me. 561 ; 1 Perry on Trnsts, 
 
 N. Y. 379 ; Barnard v. Campbell, 58 § 239. 
 
 N. Y. 73 ; Amer. Sugar Refining Co. o. ' Donaldson v. Farwell, 93 TI. S. 
 
 Fancher, 145 N. Y. 552 ; Poor v. Wood- 631 ; Mitford v. Mitford,9 Ves. 87, 100; 
 
 burn, 25 Vt. 234 ; Ringgold v. Bryan, Chapman v. Tanner, 1 Vem. 267 ; 
 
 3 Md. Ch. 488; Ames Iron Works v. Goodwin v. Mass. Loan Co., 152 Mass. 
 
 Kalamazoo PnUey Co., 63 Ark. 87 ; 189, 199 ; Belding v. Frankland, 8 Lea 
 
 Schloss V. Feltns, 103 Mich. 525 ; Starr (Tenn.), 67 ; Burnett v. Bealmear, 79 Md. 
 
 V. Stevenson, 91 Iowa, 684. 36; Amer. Sugar Ref. Co. v. Fancher, 
 
 2 Bayley v. Greenleaf, 20 U. S. (7 145 N. Y. 552. See Bughman v. Cent 
 
 Wheat.) 46; Bughman v. Central Bk., Bk., 159 Pa. St. 94; Longdale Iron 
 
 159 Pa. St. 94 ; Goodwin v. Mass. L. & Co. v. Swift's Iron Works, 91 Ky. 191 ; 
 
 T. Co., 152 Mass. 189, 199 ; Nat. Revere Chance v. McWorter, 26 Ga. 315. 
 
KQUITABLB ESTATES. — CONSTRUCTIVE TRUSTS. 679 
 
 cognizance. This is the law as settled in England and most of 
 the United States.^ But, for the amount of money or other 
 value actually paid before he acquired any notice, he has on 
 the land a lien superior to the outstanding trust or equity of 
 which he was notified.^ And, in some of the American states, 
 such as Missouri, California, and probably Pennsylvania, he is 
 held to be a bona-fide purchaser for value of that proportion of 
 interest in the realty which the amount of consideration paid by 
 him before receiving notice bears to the entire contractual pur- 
 chase price.^ Thus, if A, who had agreed to buy a lot of land 
 from B for f 15,000, should receive notice, after taking the deed 
 and paying only $5,000 of the consideration, that B in selling 
 would violate a trust in favor of C, A would own, independent 
 of the trust, one-third of the land, if it were situated in Penn- 
 sylvania ; while, if it were New York realty, he would simply 
 have a valid lien on it for the $5,000.* 
 
 It is to be reiterated here that one who can not estab- 
 lish all the requisites to a bona-fide purchase for value is 
 usually a trustee to some extent of the land that he has bought ; 
 and, when he can prove all of them except the payment of a 
 valuable consideration, the trust does not arise from any fraud 
 on his part, either actual or presumed.^ (a) 
 
 § 410. Seeing to Application of Purchase Money. — So care- 
 ful were courts of equity of the rights of a cestui que trust, that 
 they early required a purchaser from^a trustee, who sold pur- 
 suant to a valid power, not only to be sure that the conveyance 
 was properly and fairly made, but also to see to it that the 
 purchase money was duly appropriated to the purposes of the 
 trust. This is known as the doctrine of " seeing to the appli- 
 
 (a) " An implied or resulting trust shall not be alleged or established, 
 to defeat or prejudice the title of a purchaser for a valuable consideration 
 without notice of the trust." N. Y. L. 1909 (Real Prop. L.), ch. 52, 
 § 95, which was formerly 2 R. S. 728, § 54. See also N. T. L. 1909, ch. 
 52, § 104. Wood V. Kobinson, 22 N. Y. 564, 567 ; Siemon v. Schurch, 
 29 N. Y. 598, 613; Baker v. Bliss, 39 N. Y. 70. 
 
 1 Tonrville v. Naish, 3 P. Wms. 307 ; * Juvenal v. Jackson, 14 Pa. St. 519 ; 
 BasSettw.Nosworthy, 2Lead.Cas. Eq. 1, Paul v. Fulton, 25 Mo. 156; Davis v. 
 35, 77, note ; Murray v. Ballon, 1 Johns. Ward, 109 Cal. 186 ; Florence v. Zeigler, 
 Ch. (N. Y.) 566; Patton v. Moore, 32 58 Ala. 221. See Haughwout w. Murphy, 
 N. H. 382; Florence v. Zeigler, 58 Ala. 21 N. J. Eq. 118, 121. 
 
 221 ; 1 Perry on Trusts, § 221. * Last two preceding notes. 
 
 2 Weaver v. Harden, 49 N. T. 286, ' § 405, supra. 
 293 ; Sargent v. Eureka S. P. Co., 46 
 
 Hun (N. Y.), 19, 21 ; Warren v. Wilder, 
 12 N. Y. St. Kep. 757, 759. 
 
580 ESTATES IN REAL PEOPERTT. 
 
 cation of the purchaser money." ^ It was a natural outgrowth 
 of the equitable theory that the land belonged to the bene- 
 ficiary of the trust. Hence the purchaser must either pay the 
 money to him, and obtain his valid receipt for the same, or, if, 
 as was generally the case, this could not be done because of the 
 incapacity of the cestui or otherwise, he must, if reasonably 
 practicable, see that it was actually and properly applied for 
 his benefit.^ If the vendee failed to do his duty in this re- 
 spect, however innocent and bona fide might otherwise be his 
 purchase, he held the realty as a constructive trustee for the 
 original beneficiaries.^ 
 
 This principle has never been enforced in such a manner as 
 to place an unreasonable burden upon the purchaser. When, 
 therefore, the trust is so general or uncertain in character that 
 -it would cause great inconvenience to the vendee to follow the 
 ■disposition of the purchase price, as, for example, in a trust to 
 pay all the creditors of the settler, or to hold and apply the 
 income to life beneficiaries, no court ever requires more than 
 a hona-fide payment to the trustee.* The rule is never appli- 
 cable except to a well-defined and limited trust, such as one to 
 sell and pay all the proceeds at once to a designated person, 
 or to deposit them in a specified bank, or to pay one or two 
 defined debts which are all that can participate in the fund.^ 
 
 In England this doctrine or principle was abolished by 
 statute in 1859;® and the same result has been reached, either 
 by statutes or by positive adjudications in most if not all of 
 the states of this country.^ The general form of such statutes 
 is that, " A purchaser who shall actually and in good faith 
 pay a sum of money to a trustee, which the trustee as such is 
 
 1 2 Perry on Trusts, §§ 789, 790 ; 24 Vict. ch. 145, § 29 ; 44 & 45 Vict. 
 Elliot V. Merryman, 1 Lead. Cas. Eq. ch. 41, §§ 36, 71. 
 
 p. * 59, and notes. ' N. Y. L. 1896, ch. 547, §. 88 ; 1 Stim. 
 
 2 Weatherby v. St. Giorgio, 2 Hare, Amer. Stat. L. § 1723 ; Woodward 
 «24 ; Clyde v. Simpson, 4 Ohio St. 445 ; v. Jewell, 140 U. S. 247 ; Austin v. 
 Eoster t>. Day, 27 N. J. Eq. 599. Hatch, 158 Mass. 198; Ind. etc. R. 
 
 8 2 Perry on Trusts, § 790. Co. v. SwanneU, 157 lU. 616 ; McArthur 
 
 * StronghiU v. Anstey, 1 DeGr. M. v. Eobinson, 104 Mich. 540 ; Bank v. 
 
 & G. 635 ; Conover v. Stothoff, 38 N. J. Looney, 99 Tenn. 278 ; Nat. Bk. of Com. 
 
 Eq. 55; Turner v. Hoyle, 95 Mo. 337; v. Smith, 17 B. I. 244. "It may be 
 
 Hughes V. Tabb, 78 Va. 313 ; 2 Perry stated that the strict English common- 
 
 on Trusts, §§ 794, 795. law rule is not favored by the American 
 
 ' Clyde V. Simpson, 4 Ohio St. 445 ; courts, although, in the absence of stat- 
 
 Elliot V. Merryman, 1 Lead. Cas. Eq. ntory regulation, they apply the doctrine 
 
 p. * 52, note. in cases where it can not be avoided." 
 
 « 22 & 23 Vict. ch. 35, § 23 ; 23 & 2 Perry on Trusts, § 798. 
 
EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 581 
 
 authorized to receive, shall not be responsible for the proper 
 application of the money, according to the trust." ^ (a) 
 
 § 411. Equitable Mortgages and Liens. — Whenever the 
 owner of real property holds it subject to an outstanding lien 
 or right which can be enforced only in equity, he is in a gen- 
 eral sense a trustee for the benefit of the owner of such right. 
 Many more instances might be given of the application of this 
 broad principle. But it is enough here to add that some writers 
 place equitable mortgages so called under the head of construc- 
 tive trusts. Such are vendor's liens, vendee's liens, interests 
 arising from the deposit of title-deeds as security for loans, 
 etc. But these will be better understood as discussed here- 
 after in connection with mortgages, to which topic they more 
 appropriately belong. 
 
 (a) This is the New York form, which adds : " And any right or title 
 derived by him from the trustee in consideration of the payment shall not 
 be impeached or called in question in consequence of a misapplication by 
 the trustee of the money paid." N. Y. L. 1909, ch. 52 (Real Prop. Law), 
 § 108, which was formerly 2 R. S. 730, § 66. Belmont v. O'Brien, 12 N. Y. 
 394; Thomas v. Evans, 105 N. Y. 601, 615; Dyett v. Central Trust Co., 
 140 N. Y. 54, 69; Kiioch v. Van Bermuth, 144 N. Y. 643, 645. But the 
 purchaser must, at his peril, take notice of the power of sale and of any 
 defect therein. If he have anything whatever to make him know or sur- 
 mise that a breach of trust is being committed or intended, or that the 
 power is not being properly executed, he loses the benefit of the statute. 
 Kirsch u. Tozier, 148 N. Y. 390 ; First Nat. Bk. v. Nat. B'way Bk., 156 
 N. Y. 459, 468; Moore v. Amer. L. & T. Co., 115 N. Y. 65, 79 ; Benedict v. 
 Arnoux, 7 App. Div. 1 ; Champlin u. Haight, 10 Paige, 274. 
 
 New York Real Property Trusts. 
 
 The preceding notes have explained the special features of the New 
 York system of trusts. These may be profitably summarized here as 
 follows : — 
 
 1. All passive express trusts are abolished; and an attempt to create 
 such an interest, otherwise valid, vests the legal estate in the ultimate 
 beneficiary or beneficiaries. 
 
 Z. For the purpose of preventing as far as possible all separation of the 
 legal and equitable estates, all forms of active express trusts except five 
 are converted into mere powers in trust. The grantee, as such, of a power 
 in trust does not hold the legal estate (as does a trustee), but it usually vests, 
 together with the equitable interest, in the beneficiaries of the power. 
 The four forms of active express trusts which were at first retained (and 
 in which, of course, the trustee has the legal estate), are : " (1) To sell 
 real property for the benefit of creditors; (3) To sell, mortgage, or 
 lease real property, for the benefit of annuitants or other legatees, or for 
 
 1 N. Y. L. 1909, ch. 52, § 108. 
 
582 ESTATES IN REAL PROPERTY. 
 
 the purpose of satisfying auy charge thereon ; (3) To receive the rents and 
 profits of real property, and apply them to the use of any person, during the 
 life of that person, or for any shorter terra, subject to the provisions of 
 law relating thereto ; (4) -To receive the rents and profits of real property, 
 and to accumulate the same for the purposes, and within the limits pre- 
 scribed by law." And to these was added a fifth form of active express 
 trust in 1893, in the restoration of (5) the charitable use or trust. See 
 note at end of Chapter XXI., pp. 493-503, supra. 
 
 3. All the four classes of resulting trusts, except one, are left substan- 
 tially unaffected by the statutes. The one affected is that which is gen- 
 erally discussed as the first form — where the purchase price of real 
 property is paid by one person and the legal estate is taken in the name of 
 another. No trust now arises in New York, in such a case, unless it must 
 be implied in order to prevent a fraud. § 360, note (a), supra. 
 
 4- The constructive trusts, as worked out and implied by equity, are 
 left practically unaffected by the statutes. Beyond the provision that a 
 hona-fide purchaser need not see to the application of the purchase money 
 (§ 410, note (a), supra) no one of the groups, classes, or forms is abolished; 
 and, in so far as legislation has dealt with them, it has been for the pur- 
 pose and with the result of making them more definite and certain. 
 
 The chief statutes that affect New Tork trusts in real property are now 
 grouped in the Real Property Law (L. 1909, ch. 52), §§ 90-117. 
 
CHAPTER XXIV. 
 
 (3) EQUITT .OP EEDEMPTION. 
 
 § 412. Its development in con- 
 nection with mortgages. 
 
 § 413. Its nature and extent. 
 
 § 412. Development of Equity of Redemption in Connection 
 with Mortgages. — A real estate mortgage is in form an abso- 
 lute conveyance, accompanied by a clause of defeasance to the 
 effect that if money be paid or some other act or condition be 
 performed on or before a designated day, — called the "law 
 day," — the conveyance shall become null and void, but other- 
 wise it shall remain in full force and effect. Before equity 
 took any cognizance of such a contract, the courts of common 
 law gave it a strict and rigid construction, and sustained a 
 forfeiture of the mortgagor's land if he let the law day pass 
 without duly performing the condition. It was in the process 
 of ameliorating the hardships thus frequently inflicted on mort- 
 gage borrowers that the courts of equity invented and carefully 
 fostered the third form of equitable estate, — the " equity of 
 redemption," — the interest remaining in the mortgagor in 
 consequence of the right being accorded him of redeeming the 
 land from the mortgage, after the law day, by paying the prin- 
 cipal of the debt and all accrued interest and costs down to 
 the date of such payment. Many and varied attempts have 
 been made by mortgagees to have this equitable right con- 
 tracted away by mortgagors. But, acting on their maxim 
 "once a mortgage always a mortgage," the courts of equity 
 have steadily and successfully resisted all such efforts. A 
 fuller account of their strenuous enforcement of that maxim 
 and their development of the modern mortgage is given here- 
 after.^ It is sufficient here to state briefly the nature of the 
 resultant equity of redemption. 
 
 § 413. Its Nature and Extent. — The equity of redemption 
 of a mortgagor still exists, as strictly and properly an equit- 
 
 1 Chapter XXVI. infra. 
 
584 ESTATES IN REAL PROPERTY. 
 
 able estate, in England, Massachusetts, and the New England 
 states generally. In those jurisdictions, the mortgagee owns 
 the legal estate in the land ; and all the remaining interest, 
 which continues even after the law day until the mortgage is 
 foreclosed or otherwise done away with, is the mortgagor's 
 equitable estate. Such an interest, as will be hereafter more 
 fully explained,' is subject to dower, curtesy, liability for debts 
 of its owner and in equity to the incidents generally of landed 
 property ownership. The process of evolving the modern mort- 
 gage has been carried to such an extent in the other American 
 states that the mortgagor retains the legal estate in the land, 
 the mortgagee has only a lien (which is personal property), and 
 so no equity of redemption properly so called exists. But that 
 form of estate, as it still remains in England and New Eng- 
 land, is here described for the sake of completeness, and is to 
 be understood as included with the uses and trusts when gen- 
 eral mention is hereafter made of " equitable estates." 
 
 1 Last preceding note. 
 
PART II. 
 
 ESTATES CLASSIFIED AS TO THEIR QUANTITY. 
 1. Freehold. 2. Less than Freehold. 
 
 1. FREEHOLD ESTATES. 
 (1) Freehold Estates of Inheritance — Fees. 
 
 CHAPTER XXV. 
 
 QUANTITIES OP ESTATES. 
 
 § 414. Estates freehold and less I § 415. Freehold estates of inheri- 
 than freehold. I tance. 
 
 § 414. Sstates Freehold and Less than Freehold. — The most 
 extensive classification of estates in real property is witli refer- 
 ence to their quantity, or duration. Their primary division, 
 from this point of view, is into, 1, Freehold estates and 2, Es- 
 tates less than freehold?- 
 
 1. Originally denoting merely the holding of something by 
 a free man, " freehold " gradually came to be used to describe 
 estates that are either heritable, or for life.^ An interest that 
 may be inherited is a fee of some kind. And for at least seven 
 centuries the common-law meaning of " freeholder " has been 
 one who owns realty for life or in fee.^ His interest is " an 
 estate of inheritance or for life in real property, whether it be 
 a corporeal or incorporeal hereditament,"* Thus, estates, to 
 A during his own life, to A while B lives, to A and the heirs 
 of his body, to A and his heirs so long as they continue to live 
 on the land, to A and his heirs forever, are all freeholds. 
 Such estates, moreover, are the only ones of which seisin, in its 
 
 1 See § 71, supra. ' Ibid. 
 
 2 Lit. § 57 ; 1 Poll. & Malt. Hist. * Blackst. Com. p. *104, Christian's 
 Eng. L. (2d ed.) p. 357. note. 
 
586 ESTATES IN REAL PKOPERTT. 
 
 ordinary technical sense, can be predicated ; and, as their name 
 indicates, the feudal law, at least in its original ideal conception 
 of them, allowed none but free men to hold them.^ Tersely, 
 then, a common-law freehold estate is one of which a, free man 
 may be seised, for life or in fee? Negatively considered, it is 
 an estate that is not measured by any definite space of time, 
 such as days, iponths, or years, and does not depend on the 
 will of any one other than its owner.^ It is in this negative as- 
 pect largely that it stands out distinct from estates less than 
 freehold. 
 
 2. An estate less than freehold is one which, in contemplation 
 of law, is not so great or important as a life estate. Such are 
 all interests in real property, which are measured by any defi- 
 nite period of time, however long or short, as hours, days, 
 weeks, months, or years ; and all those that depend for their 
 continuance on the will of any persons other than their owners. 
 Illustrations are, an estate to A for five years (or for any num- 
 ber of years, or days, or other interval measured by a definite 
 space of time), and to A as tenant at the will of his landlord, or 
 during the will of himself and his landlord.* These forms of 
 interests, which always involve the relation of landlord and 
 tenant, are of much later' development than are the freeholds.^ 
 Perhaps it was because tenants of realty, in the times when 
 their law was a-making (from the twelfth century downward), 
 were accustomed to spend large amounts of their capital in 
 purchasing and speculating with these temporary interests, 
 that they came to treat them as capital and to describe them as 
 chattels.^ Certain it is that these lesser estates have ultimately 
 
 1 Challis, E. P. 6 ; Digby, Hist. Law imply that tlje tenant does not hold 
 R. P. (5th ed.) p. 161. merely at the will of another, and that 
 
 2 Sometimes the expression " free- he does not hold for some definite space 
 hold estate " is restricted to mean only of time : a tenant at will is not a free- 
 an estate for life ; and " the freehold " holder, a tenant for years is not a free- 
 is thus frequently employed, as dis- holder." 1 Poll. & Mait. Hist. Eng. L. 
 tingnished from the fee, or estate of in- {2d ed.) p, 357. 
 
 heritance. Co. Lit. 266 b, Butler's notes; * See § 73, supra; § 561, infra. 
 
 1 Leake, Land Law, 43. 6 Digby, Hist. Law R. P. (5th ed.) 
 
 ' "We may well find that a man pp. 176, 244. 
 holds land and that there is no taint of ^ Ibid. ; 2 Poll. & Mait. Hist. Eng. 
 villeinage or unfreedom in the case, L. (2d ed.) pp. 106-U7. Speaking of 
 and yet that he has no freedom and is purchases of wardships and comparing 
 not a freeholder. These terms hare them with purchases of leaseholds, 
 begun to imply that the tenant holds the writer* last cited (p. 116) say : "Is 
 heritably, or for life. Perhaps we shall there any economic reason for this as- 
 be truer to history if we state the doc- similation of a term of years to a ward- 
 trine in a negative form : — these terms ship, and for the treatment of both of 
 
QUANTITIES OF ESTATES. 587 
 
 come to be regarded as so far inferior to the freeholds that, 
 whereas a freeholder owns a real-property interest which may 
 last for life or descend to his heirs, the interest of a tenant who 
 has only an estate less than freehold is a mere chattel, a part of 
 his personal property.^ The growth and great importance of 
 this distinction will more fully appear hereafter — in the dis- 
 cussion of estates for years. It will suffice here to reiterate 
 that estates less than freehold embrace, besides (1) estates for 
 years whicli are chattels real, three forms of chattel interests, 
 namely, (2) estates from year to year, including those from 
 month to month, from week to week, etc., (3) estates at will, 
 and (4) estates at sufferance.^ 
 
 With emphasis laid on the radical distinction between free- 
 hold estates and those less than freehold, the summary of the 
 order in which they are to be discussed in this treatise is, 1. 
 Freehold estates, which are (1) fees and (2) life estates, 2. 
 Estates less than freehold, which are (1) estates for years, (2) 
 estates from year to year, (3) estates at will and (4) estates at 
 sufferance, (a) 
 
 §415. Freehold Estates of Inheritance. — Dividing the free- 
 hold estates, as already explained, into (1) those of inheritance 
 and (2) those not of inheritance — fees and life estates — the 
 first of these present the interests of largest extent. They are 
 
 (rt) In New York, with respect to their quantity, "Estates in real 
 property are divided into estates of inheritance, estates for life, estates for 
 years, estates at will, and by sufferance. . . . Estates of inheritance and for 
 life shall continue to be termed estates of freehold ; estates for years are 
 chattels real; and estates at will or by sufferance continue to be chattel 
 interests, but not liable as such to sale on execution." Real Prop. L. (L. 
 19(J9, ch. 52) §§ 30, 33, originally 1 R. S. 722, § 1, 5. Practically these 
 are merely terse groupings of common-law classes of estates. This division 
 of the estates less than freehold is more fully examined hereafter. See 
 § 561, infra. 
 
 them as bequeathable chattels? We be- term of years, we believe that in the 
 
 lieve that there is, namely, the invest- twelfth century and yet later, this 
 
 ment of capital, and by the way we will stands often, if not generally, in the 
 
 remark that the word cataltum, if often same economic category. It is a bene- 
 
 it must be translated by our chattel, must ficial lease bought for a sum of ready 
 
 at others be rendered by our capital. . . . money ; it is an investment of capital, 
 
 Now it is very natural that a man who and therefore for testamentary purposes 
 
 invests a round sum should wish for a It is quasi catallum." 
 power of bequest. The invested sum ^ Bract, bk. ii, ch. ix. fol. 27; 2 
 
 is an utterly different thing from the Blackst. Com. p. *143. 
 landed estate which he would desire to ^ § 73, supra. 
 
 keep in his family. And then, as to the 
 
688 ESTATES IN REAL PBOPEETT, 
 
 capable of descending from ancestor to heir by the law of 
 descent. They are interests that may endure forever. And 
 although any individual owner can not enjoy them, of course, 
 for longer than during his life, yet they are vastly greatel- than 
 his life in their own duration or capability of duration.^ Such 
 an estate, when it is not only capable of perpetual duration but 
 is also devoid of any defeasible, conditional, or determinable 
 characteristic, so that its owner has an absolute dominion of 
 an endless interest, is a fee simple. It is an estate to one and 
 his heirs forever.^ On the other hand, an estate of inheritance, 
 which is not thus absolute but is defeasible or determinable be- 
 cause of some condition, qualification, or restriction, so that while 
 it may continue indefinitely beyond the life of its owner yet he 
 may not have an absolute dominion of an endless interest, is a 
 qualified fee. Such is an estate to A and the heirs of his body, 
 or to A and his heirs provided they do not sell intoxicating 
 liquor on the premises, or to A and his heirs so long as they 
 live on the land, or to A and his heirs till they cease to live 
 there and then to B and his heirs. These latter are fees, which 
 may descend to heirs ; but they are qualified fees because they 
 may not last forever.' Dividing, therefore, the fees or estates of 
 inheritance into their two natural classes, a. Fee simple ■ — the 
 highest and greatest in quantity, an absolute dominion of an 
 endless interest, and h. Qualified fees — determinable estates 
 of inheritance which may not amount to absolute dominion of 
 endless interests ; the former of these is to be first explained ; 
 and then the latter are to be discussed in their four divisions 
 of (a) fee tail, (b) fee on condition, (c) fee on limitation, and 
 (d) fee on conditional limitation.* 
 
 * Digby, Hist. Law R. P. (5th ed.) sion " base fee " is frequently, and per- 
 
 p. 72, note 9. haps most accurately, used to denote 
 
 2 § 72, supra. only a fee tail. See 1 Prest. Est. pp. 
 
 8 Various adjectives, such as limited, *2!5-*60 ; Chase's Blackst. pp. 293, 294; 
 
 base, restricted, determinable, qualified, Digby, Hist. Law E. P. (5th ed.) p. 
 
 etc., have been used by different writers 224. 
 
 to describe the fees which are not fees * Brief descriptions and illnstrations 
 
 simple. For the sake of clearness, the of these four forms of qualified fees are 
 
 word qualified is exclusively employed given at pp. 86, 87, supra. They are 
 
 in this treatise to describe them as a fully explained, in connection with qual- 
 
 large and distinct group. The exprea- ified estates generally, in ch. Iv, infra. 
 
CHAPTER XXVI. 
 
 a. ESTATES IN FEE SIMPLE. 
 
 § 416. Meanings of fee — Fee 
 simple. 
 
 § 417. Nature of estate in fee 
 simple. 
 
 § 418. Use of "Heirs " in creat- 
 ing or transferring fee simple — 
 Words of limitation. 
 
 §419. Common-law exceptions to 
 requirement of the word " Heirs." 
 
 § 420. Statutory changes as to 
 
 use of " Heirs," or other words of 
 inheritance. 
 
 § 421. Alienability of estates in 
 fee simple can not be materially re- 
 stricted. 
 
 § 422. Use and enjoyment of es- 
 tates in fee simple may be restricted. 
 
 § 423. Estates in fee simple have 
 ordinary incidents of real property 
 interests. 
 
 § 416. Meanings of Pee — Fee Simple. — The word " fee" is 
 primarily synonymous with " feud " or "fief." To hold in fee 
 meant originally to hold as the feudal vassal of another. But, 
 after all the land in England except that retained personally 
 by the king came to be held by tenure, and lawyers ceased to 
 discuss whether or not it was so held, fee gradually acquired 
 its present, secondary meaning of an estate of inheritance. 
 And such is now its uniform signification in the common law.^ 
 Since tlie end of the thirteenth century, it has also been settled 
 that such an estate, when unrestricted and indefeasible, sliall 
 be denominated a fee simple, or by some authorities a fee 
 simple absolute.^ But the word " absolute " adds nothing 
 to the expression "fee simple"; and to-day the single word 
 " fee," when no adjective or qualification is used, is com- 
 monly employed to mean a fee simple. When any other 
 kind of fee is meant, this appears from some restrictive 
 word or explanatory context.^ The estate, then, which is 
 
 1 Lit. § 1 ; 2 Blackst. Com. pp. *105, 
 *106; p. 344, supra. 
 
 ' 2 Poll. & Mait. Hist. Eng. L. (2d 
 ed.) pp. 13, 19. " Of fee simple," says 
 Lord Coke, " it is commonly holden 
 that there be three kinds, viz., fee 
 simple absolute, fee simple conditional. 
 
 and fee simple qualified, or a base fee." 
 1 Inst. 1, b. He thus uses /ee simple 
 in the sense in which fee alone is now 
 commonly employed. 
 
 8 Ibid. ; Cruise, Dig. tit. i. § 42 ; 
 Digby, Hist. Law E. P. (5th ed.) 
 p. 162. 
 
590 ESTATES IN REAL PROPEETY. 
 
 greatest in quantity — the entire and absolute interest and 
 property in the land — is the fee simple, sometimes though 
 not now common!}' styled a fee simple absolute, and ordi- 
 narily denoted by the single word fee when used without 
 any qualification, (a) 
 
 § 417. Nature of Estate in Fee Simple. — It is because the 
 lawyer contemplates an acre of land, or generally any other 
 piece of real property (object of ownership), as something 
 which will continue in existence forever, that estates in these 
 things form the subject-matter of so much law. Endless dura- 
 tion, and consequently endless varieties of interests, are inci- 
 dents of most real objects. And he who owns the limitless 
 interest in one of those objects has an estate in it in fee simptet^ 
 An unbroken straight line, stretching from the property away 
 to infinity, conceived of as time is frequently imaged, may be 
 suggested as the most adequate symbol of this greatest 
 of estates.^ Such a concept will clarify many problems of 
 real property law.^ Definite or finite pieces of that line, 
 to any number, may be cut- off and dealt with — many 
 lesser interests, such as life estates or estates for years, 
 may be carved out of the endless one, the fee simple — yet 
 the residue remains infinite in extent — is still a fee 
 simple.* "An estate in fee simple is the entire and absolute 
 interest and property in land ; from which it follows that 
 no ,one can have a greater estate. So that whenever a 
 person grants an estate in fee simple, he cannot make any 
 further disposition of it, because he has already granted 
 
 (a) The New York statute declares that, — " An estate of inheritance 
 continues to be termed a fee simple, or fee, and, when not defeasible or 
 conditional, a fee simple absolute, or an absolute fee." Keal Prop. L. 
 (L. 1909, ch. 52) § 31, originally 1 R. S. 722, § 2. But, as at common 
 law, so here still, notwithstanding the statute, the expressions "fee" 
 (when unrestricted), "fee simple" and "fee simple absolute" have all 
 the same meaning ; and they all stand opposed to a qualified fee. Jack- 
 son V. Van Zandt, 12 Johns. 169, 177; Lott v. WykofE, 2 N. Y. 355, 357. 
 
 1 Lit. § 11; 2 Blackst. Com. p. or potentially infinite, quantity ; we see 
 
 * 104. a difference in respect of duration, and 
 
 ^ " Proprietary rights in land are, this ia the one fundamental difference." 
 
 we may say, projected upon the plane 2 Poll. & Mait. Hist. Eng. L. (2d ed.) 
 
 of time. The category of quantity, of p. 10. 
 duration, is applied to them. The life ' See § 861, infra. 
 
 tenant's rights are a finite quantity; * 2 Poll. & Mait. Hist. Eng. L. (2d 
 
 the fee tenant's rights are an infinite,- ed.) p. 11. 
 
ESTATES IN PEE SIMPLE. 691 
 
 away the whole interest; consequently nothing remains in 
 him." 1 
 
 § 418. Use of " Heirs " in creating or transferring Pee Simple 
 — Words of Limitation. — An estate in fee simple is one gener- 
 ally conveyed to a person " and his heirs," or, as the usual 
 form is, to him " and his heirs forever." The essential word 
 here is " heirs," in the plural number. And in the ordinary 
 common-law creation or transfer of such an estate no synonym, 
 no expression of intent, no circumlocution can supply its 
 place.2 Thus, a deed of land to A, simply, or " to A and his 
 heir" (using the word "heir" in the singuljar),* or "to A and 
 his children or issue," or " to A forever," or " to A in fee 
 simple," or "to A and his children, descendants, relatives, 
 successors, executors, administrators and assigns forever," 
 transfers to A only a life estate, and not a fee of any kind, 
 unless he can base his claim to the greater interest on some 
 statutory abolition or change of this stringent demand for 
 "heirs."* The reason for so strict a requirement is found 
 in the growth of the power to alienate realty in feudal times. 
 The transfer of tenements to one " and his heirs," when first 
 employed, was regarded as giving them to him during his life, 
 and then to his heirs. And, in order to sell them, he must get 
 the consent of his heirs, apparent, or presumptive.^ But as 
 early at least as the first part of the thirteenth century this 
 restraint had disappeared ; and the use of the word " heirs " 
 in giving a man an estate had assumed the legal aspect which 
 still belongs to it — had come to indicate that he to whom the 
 land was thus conveyed was to have the perpetual ownership 
 of it, so that he might dispose of it without asking the consent 
 of any heir, and so that, upon his death still owning it, it 
 might descend by operation of law from him to his heirs.® 
 The phraseology to one " and his heirs " had not changed ; its 
 meaning had changed. And, accordingly, the common-law 
 
 1 Cruise, Dig. tit. i. § 44 ; Lott v. " lieirs." See 4 Kent's Com. p. *6, 
 
 Wykofi, 2 N. Y. 355, 357 ; Haynes v. note (b). 
 Bowen, 42 Vt. 686. * Clearwater v. Rose, I Blackf. 
 
 * Co.Lit. 8 b, 42 a; 2 Blackst. Com. (Ind.) 137; Miller v. McAlister, 197 
 
 p. *107; Wms. R. P. pp. *144, *145; 111. 72; Sedgwick v. Laflin, 10 Allen 
 
 Adams v. Ross, 30 N. J. L. 505; Mor- (Mass.), 430; TrusdeU v. Lehman, 47 
 
 risen v. Schorr, 197 111. 554. N. J. Eq. 218 ; Oyster v. KnuU, 137 Pa. 
 
 3 Ibid.; 2 Prest. Est. p. *8. And, St. 448; Chew v. Kellar, 171 Mo. 215; 
 
 althongh this has been questioned, it Holland v. Keyes, 24 R. I. 289. 
 seems still to be the rale, at least with ^ See § 276, supra. 
 
 the exception of cases in which " heir " "2 Poll. & Mait. Hist. Eng. L. (2d 
 
 is shown to be used in the sense of ed.) p. 13. 
 
592 ESTATES IN REAL PROPERTY. 
 
 judges have continuously insisted that the word " heirs," and 
 ordinarily no other form of word or words, shall be requisite 
 to the creation or transfer of an estate in fee simple.^ A con- 
 veyance to a man " and his right heirs" frequently mentioned 
 in the older books and cases, is the same as to him " and his 
 heirs." ^ It is td be noted with care, as explaining much of the 
 law of estates, that the word " heirs," thus used in its general 
 sense, does not indicate that the heir or heirs of the grantee 
 or donee take any interest in the property by or through the 
 instrument of transfer ; but it is the technical, legal term neces- 
 sary to express the fact that the donee or grantee himself 
 takes all the interest in fee simple — a grant " to A and his 
 heirs " gives nothing to A's heirs, but all to A.^ The formal 
 expression of this historical and important result is tliat 
 "heirs" so employed is a word of limitation, and not of 
 purchase} It explains, defines, or outlines, and in that sense 
 limits, the estate of the donee or grantee — the estate of A in the 
 above illustration — and gives to him a fee. If his heirs ever 
 obtain it, they will not do so as purchasers in this transaction, 
 this grant or gift to him', but by descent from him at the time 
 of his death, by another trahsaction, the operation of law in 
 casting it upon them as his heirs. In the meantime, since it 
 is all his, he may dispose of it if he wish, so that they may 
 never obtain it at all. A few comparative illustrations may help 
 to emphasize this far-reaching distinction.^ A deed of land 
 " to A and B " transfers a part of it to each of them ; and 
 both take their interests by purchase through the deed. A 
 devise " to A and his children " gives a share of it to A and 
 a share to each of his children as purchasers. So, a grant of 
 
 1 Last five preceding notes. ' and his heirs ' did not give the heir 
 
 2 Co. Lit. 22 b. any rights, did not decree that the heir 
 ' "One of the first points about must have the land. They merely 
 
 which the law has to make up its mind showed that the donee had ' an estate ' 
 is as to the meaning of a gift to a man that would endure at least so long as 
 ' and his heirs.' The growing power any heir of his was living." 2 Poll. & 
 of alienation has here raised a question. Mait. Hist. Eng. L. (2d ed.) p. 13. 
 Down to the end of the twelfth century * 2 Blackst. Com. p. *107; 1 Prest. 
 the tenant in fee who wished to alienate Est. p. *264; 4 Kent's Com. p. *215; 
 had very commonly to seek the consent Bisson v. West Shore R. Co., 143 N. Y. 
 of his apparent or presumptive heirs. 125, 130; Cole v. Lake Co., 54 N. H. 
 . . . But early in the next century this 242, 279 ; Lavis v. Sturgeon, 198 111. 520. 
 restraint silently disappeared. The ^ This is the principle of the famous 
 tenant in fee could alienate the land rule in Shelley's case, which is explained 
 away from his heir. This having been in connection with contingent remain- 
 decided, it became plain that the words ders, §§ 892-896, infra. 
 
ESTATES IN FEE SIMPLE. 593 
 
 realty to "A and his brothers," "to A and his partners," etc., 
 in and of itself causes each of the grantees named to own an 
 interest in it by purchase?- But, in the one unique case where 
 "heirs" as such are nominally grantees or donees, they are 
 not so in fact, they take nothing by the deed or devise ; and 
 a transfer " to A and his heirs " gives all to A and nothing 
 to his heirs, and simply uses the latter word to indicate that 
 fact — to designate the infinite limitation of A's fee simple.^ 
 Of course, this effect is not given to the word "heirs," when 
 it is not used in its technical sense, as meaning all those blood- 
 relatives of the grantee or donee, whether near or remote, who 
 could inherit real property from him.^ Thus, a grant or de- 
 vise " to A and his heirs," where the context shows, as it now 
 and then does in wills, and sometimes in other instruments, 
 that the meaning is " to A and his children" or to him and 
 certain known nephews, etc., so that "heirs" is employed 
 simply as personce designatce, gives only a part of the entire 
 estate to A, and the residue to the other donees thus indicated. 
 In such cases, which are infrequent, " heirs " is a word of 
 purchase.* 
 
 § 419. Common-law Ezceptions to Requirement of the ■word 
 "Heirs." — Upon the general rule, however, that the word" heirs " 
 is necessary to create an estate in fee, several exceptions have 
 been engrafted by the common law. And, ^rs^, in construing 
 wills, since the primary quest is for the testator's intention, if 
 it appear from the language employed that it was desired by 
 him that the devisee take a fee, that quantity of estate will 
 pass, though the word " heirs " be omitted.^ But the courts 
 will not strain after a fee even in a will ; and they give the 
 devisee no more than a life estate, unless the language of the 
 instrument itself shows the greater interest to be clearly in- 
 tended.^ Besides expressions which directly state that inten- 
 tion, such for example as a devise to one " in fee simple," or 
 
 1 See, also, title by purchase ex- ' Co. Lit. 9b; 2 Blackst. Com. 
 
 plained, § 995, infra. p. *I08 ; Holdfast v. Marten, 1 T. R. 
 
 * Last two preceding notes. 411; Barber w. Pittsburgh, etc. Railway, 
 ' "A class or denomination of per- 166 TJ. S. 83; Newkerk v. Newkerk, 
 
 sons to take in succession, from genera- 2 Cai. Rep. (N. Y. ) 345 ; Robinson v. 
 
 tion to generation." 1 Prest. Est. p. Randolph, 21 Fla. 629; 2 Sharsw. & 
 
 *264; 4 Kent's Com. p. *215. Budd, Lead. Caa. R. P. pp. 57-73. 
 
 * Luddington a. Kime, 1 Ld. Raym. " Ibid. ; Wright v. Page, 23 U. S. 
 203; De "Vaughn v. Hutchinson, 165 (10 Wheat.) 204; Jackson ii. WeUs, 
 P. S. 566, 572 ; Bisson v. West Shore 9 Johns. (N. Y.) 222 ; 4 Kent's Com. 
 R. Co., 143 N. Y. 125, 130. p. *7 ; 2 Jarm. Wills, ch. xxxiii. 
 
 38 
 
594 ESTATES IN REAL PBOPERTY. 
 
 " forever," or " absolutely," or of all the testator's estate, or 
 of all his property,^ a gift by will of realty accompanied 
 by an absolute power of disposition in the donee, or requiring 
 iinlimited control of the property to insure its adequate en- 
 joyment, transfers a fee simple.^ Thus, a devise of wild or 
 timbered land, which .a life owner ordinarily can not enjoy 
 without committing waste by cutting off the timber, confers 
 this greatest of estates.^ And so does a devise of realty, with 
 a charge on it of a designated amount of money to be paid by 
 the donee personalli/ ; for, if he had no more than a life tenancy, 
 he might not be able to get that amount out of the property 
 during the continuance of his estate.* But a mere charge on 
 the property devised, and not on the beneficiary personally, 
 does not show that his estate is intended to be a fee.^ Second, 
 in transfers of realty to corporations, whether made by deed 
 or will, the word " heirs " is not necessary to pass a fee simple. 
 This is because a corporation has no heirs ; and also because 
 a coi'poration aggregate, which is the only kind recognized in 
 this country, is regarded by the common law as having per- 
 petual existence, and so a life estate for it is an endless interest, 
 a fee simple.® A conveyance to a corporation sole, in England, 
 is made to it " and its successors," in order to confer a fee. 
 And in practice both there and here, though without any legal 
 requirement, the same expression is used in transfers in fee 
 simple to all kinds of corporations.^ Third, in the absence 
 of a contrary intent clearly evinced, a trustee takes as great 
 
 1 2 Blackst. Com. p. *108 ; Bridge- , * Doe «. Richards, 3 T. E. 356 ; 
 water v. Bolton, 6 Mod. 106, 109 ; Bar- Wright v. Page, 23 U. Si (10 Wheat.) 
 berw. Pittsburgh, etc. Railway, 166 U.S. 204, 231 ; Jackson v. Merrill, 6 Johns. 
 83, 100; Newkerk v. Newkerk, 2 Cai. (N. Y.) 185, 190; Parker v. Parker, 
 Rep. (N. Y.) 345; Jackson v. Merrill, 5 Met. (Mass.) 134 ; King w. Cole, 6 R. I. 
 6 Johns. (N. Y.) 185 ; Lincoln v. Lin- 584,; Funk v. Eggleston, 92 HI. 515 ; 
 coin, 107 Mass. 590; Forsaith v. Clark, Cruise, Dig. tit. xxxviii. eh. 13, §§ 28, 
 21 N. H. 409 ; Arnold v. Lincoln, 8 R. I. 33. 
 
 384. 6 Wright V. Pag6, 23 U. S. (10 
 
 2 Co. Lit. 9 b ; Barford v. Street, Wheat.) 204, 231 ; Jackson v. Bull, 
 16 Ves. 135 ; Terry v. Wiggins, 47 N. Y. 10 Johns. (N. Y.) 148 ; Cruise, Dig. tit. 
 512 ; Taggart v. Murray, 53 N. Y. 233, xxxviii. ch. 13, §§ 31-33. 
 
 238; Kelley v. Meins, 135 Mass. 231; « Co. Lit. 9 b; 2 Blackst. Com. 
 
 Second Ref. Presby. Ch. v. Disbrow, p. * 109 ; Wilkesbarre v. Wyoming 
 
 52 Pa. St. 219; Markillie o. Ragland, Hist. Soc, 134 Pa. St. 616; Wilcox v. 
 
 77 111. 98. Wheeler, 47 N. H. 488. 
 
 3 Sargent v. Towne, 10 Mass. 303. ' Ibjd. ; 2 Prest. Est. pp. *6, *43 ; 
 As to what constitutes waste, and how ' 4 Kent's Com. p. *7 ; Overseers of 
 readily such lands as these are wasted, Poor o. Sears, 22 Pick. (Mass.) 126. 
 see § 552, infra. 
 
ESTATES IN PEE SIMPLE. 695 
 
 an interest in the property as he needs in order to perform 
 the requirements of the trust, and no more. Therefore, the 
 word " heirs " is not demanded to give him a fee simple, it his 
 duties require him to own so great a legal estate ; and the 
 mere use of that word does not confer on him a fee when 
 it is not requisite to the due performance of his trust.^ This 
 exception is to be carefully understood as applying only to the 
 interest of the trustee, — to the legal estate in his hands. The 
 common-law rule requiring " heirs " to transfer a fee applies 
 to most equitable estates, including those of cestuis que trustent, 
 of executed trusts at least, as well as to most legal estates.'' 
 Fourth, joint tenants whose co-ownership of the real prop- 
 erty is in fee simple may, by mere releases to each other in 
 which the word " heirs " is not employed, obtain a divided 
 piece for each, to be thereafter owned separately in fee simple.* 
 And the same is true of a partition by judicial proceedings 
 among any kind of co-owners.^ But, because tenants in com- 
 mon do not each own all the property (as in theory of law 
 joint tenants do), but each owns only an undivided interest, 
 if they voluntarily partition it without the judgment or decree 
 of any court, the common law requires the use of " heirs," in 
 order that each may obtain a fee in tiie parcel thus assigned 
 to him.^ Fifth, the once-used but now discarded forms of 
 transferring real property by means of fines and common re- 
 coveries, which will be explained hereafter, operated to transfer 
 a fee without the use of " heirs. " ^ And legislative grants, and 
 
 1 See p. 496, supra. (N. Y.) 495; 1 Perry on Trusts, §§ 357- 
 
 2 Ibid.; Hopkins c.. Grirashaw, 165 359; ^ 309, supra. 
 
 U. S. 342, 352; Losey o. Stanlej'., 147 * Co. Lit. 9 b; 2 Prest, Est. pp. 
 
 N. Y. 560, 567 ; Crane v. BoUes, 49 N. J. *56, *58, *62 ; 4 Kent's Com. p. »7. 
 
 Eq. .373 ; Dorr i: Clapp, 160 Mass. 538 ; ^ Ibid. 
 
 Pliillipst;. Swank, 120 Pa. St. 76; Haw- « 2 Prest. Est. pp. *56, *58. It is 
 kins V. Chapman, 36 Md. 83 ; West v. more fully explained liereafter (§ 673) 
 Fitz, 109 111. 425 ; 1 Perry on Trusts, that eacli of several joint tenants in fee 
 §§ 312-320. simple is seised of the entire property in 
 ' Lucas V. Brandreth, 28 Beav. 274 ; fee simple; and therefore a relea.se to 
 McElroy v. McElroy, 113 Mass. 509; him by the others of any part of it, 
 1 Lewin on Trusts, p. *109. But, of though "heirs" be omitted from the 
 course, the word " heirs " is not needed instrument, leaves him still seised, but 
 in creating a trust implied by law. And now absolutely and alone, of that part 
 in executory trusts, and according to in fee simple. This is not true of ten- 
 some authorities in mo.st trust interests, ants in common ; but each of such 
 the general rule requiring "heirs" to owners is seised of an undivided interest 
 convey a fee is much relaxed by the only. 
 
 common law. See Ball «. Woolfolk, ^ 4 Kent's Com. p. *7 ; § 1174, in/r«- 
 175 Mo. 278 Fisher v. Fields, 10 Johns. 
 
596 ESTATES IN REAL PEOPEETT. 
 
 -conve3'ances by the crown or state generally, may now do the 
 same when such an intent is clear.^ And, lastly, rather by 
 way of qualification than- exception to the general rule, it is 
 to be noted . that, when a deed which omits " heirs " refers 
 back to anotlier deed in the chain of title and purports to 
 convey the same interest that it conveyed, and the latter deed 
 contains the word. " heirs " and so transferred a fee, the former 
 does the same, because it incorporates the latter into itself.'' 
 It is to be added also that, when the word " heirs " is omitted 
 from an instrument because of fraud or mistake, and no adverse 
 rights of innocent purchasers or encumbrancers for value have 
 intervened, a court of equity may reform it by spelling that 
 word into its proper place in the instrument.^ 
 
 § 420. statutory Changes as to Use of " Heirs " or Other 
 ■Words of Inheritance. — In England and most of the states of 
 this country, statutes have done away with the necessity for the 
 use of the word " heirs " in creating or conveying an estfite in fee 
 simple.* By devise in nearly all the states, and in a large ma- 
 jority of them by deed, the entire estate of the grantor or tes- 
 tator passes^_uiiless^^SS=rirt5ht to transter^arlessej^-iBtefest ap- 
 pears expressly or^by_nece^aryijmplication.^ Massachusetts, 
 Rhode Island, Connecticut, New Jersey, Pennsylvania, Dela- 
 ware and- South Carolina are among the few states that have 
 made this change as to wills, but not as to deeds.® Gf course, 
 none of these statutory modifications are or could be retro- 
 active. And, therefore, the examiner of title must note the 
 time of the change in the place where the land is situated, and 
 insist in the ordinary case on evidence of the use of the word 
 " heirs," to show that a fee was created or granted before that 
 date, (a) 
 
 (a) The New York Revised Statutes (1 R. S. 748, §§ 1, 2) reversed 
 the common-law presumption, as it is explained in the text that the sta;tutes 
 
 1 Eutherford v. Greene's Heirs, 15 §240; 1 Stim. Amer. Stat. L. §§ 1474, 
 IT. S. (2 Wheat.) 196. 2808. 
 
 2 Co. Lit. 9 b ; 2 Prest. Est. p. *2 ; » 11,;^, ; Grain v. Wright, 114 N. Y. 
 Lemon v. Graham, 131 Pa. St. 447; 307,310; Davis y. Ripley, 194 III. 399; 
 Evans v. Brady, 79 Md. 142. Griffiths W.Griffiths, 198 111. 632 ; Yocum 
 
 ' Glenorchy v. Bosville, 1 Lead. Cas. v. Siler, 160 Mo. 281 ; Sears v. Acker- 
 Eq. 20, note ; Chamberlain v. Thomp- man, 138 Cal. 583 ; Whitfield v. Gar- 
 son, 10 Conn. 243 ; McMillan v. Pish, riss, 131 N. C. 148. 
 29 N. J. Eq. 610; Tickers v. Leigh, 6 i gtim. Amer. Stat. L. §§ 1474, 
 104 N. C. 248; Bispham's Prin. Eq., 2808; Feit v. Richard, 64 N. J. Eq. 16; 
 §§468, 469. Akl v. Bosler, 175 Pa. St. 526; In re 
 
 * 1 Vict. ch. 26, §28; 44 & 45 Bella's Est., 176 Pa. St. 122 ; Dough- 
 
 Vict. ch. 41 ; N. Y. L. 1909, ch. 52, erty v. Wellinger, 207 Pa. St. 601. 
 
ESTATES IN FEE SIMPLE. 597 
 
 § 421. Alienability of Estates in Fee Simple can not be ma- 
 teriaUy Restricted. — It is because an estate in fee simple is all 
 the interest in the property — the sti-aight line of ownership 
 stretching away to infinity — and there can be nothing beyond, 
 that logically, and in most cases actually, he who disposes of it 
 can place no restraint on its subsequent alienation. He parts 
 with all that he has, and therefore his control over it should 
 cease.^ It has been heretofore explained, as a historical fact, 
 that this result emerged out of and superior to the feudal re- 
 strictions, chjefly by virtue of the statute of quia emptores? 
 That famous legislative landmark not only forbade subinfeuda- 
 tion, except by the king's tenants and with his consent, but it 
 also removed practically all power from a transferor of an es- 
 tate in fee simple to restrict the right of alienation by his trans- 
 feree.^ And therefore the statement is generally true, except 
 perhaps in the few jurisdictions in which the statute of quia 
 emptores is not in force, that the owner of such an estate must 
 have the right to dispose of it when and how he may please.* 
 He can not, for example, be prohibited from selling it without 
 the consent of his grantor ; nbr can he be required, when he 
 sells, to pay any portion of his purchase price as a fine or other 
 
 of 80 many states have done; and accordingly, since January 1, 1830, a 
 grantor or testator is regarded as conveying all the estate he has, unless he 
 indicates a contrary intent. The present form of the statute is as follows : 
 — " The term ' heirs,' or other words of inheritance, are not requisite to 
 create or convey an estate in fee. . . . Every instrument creating, transferring, 
 assigning, or surrendering an estate or interest in real property must be con- 
 strued according to the intent of the parties, so far as such intent can be 
 gathered from the whole instrument, and is consistent with the rules of 
 law." Real Prop. L. §240; Guernsey?;. Guernsey, 36 N. T. 267, 268; 
 Heath v. Barmore, 50 JST. Y. 302, 306 ; Grain v. Wright, 114 N. Y. 307. 
 But in practice nearly every grantor, intending to convey a fee, still em- 
 ploys the word " heirs," conveying to the grantee " his heirs and assigns 
 forever." And, although it might be omitted with impunity, the word 
 "heirs" is inserted in the short forms of deeds and mortgages which 
 since 1890 have been prescribed by the statutes. Keal Prop. L. § 258. 
 
 1 Co. Lit. 223 a; In re Kosher, 26 Ch. ^ § 280, supra. 
 
 Div. 801; Potter v. Couch, 141 U. S. ' Ibid.; § 291, jupra. 
 
 296, 315 ; Van Bensselaer v. Hays, 19 * Last three preceding notes. The 
 
 N. Y. 68 ; Mutual Benefit Life Ins. Co. formal statement of this radical princi- 
 
 V. Grace Church, 53 N. J. Eq. 413; pie is that attempted restrictions on the 
 
 Cashing v. Spalding, 164 Mass. 287; alienation of an estate in fee simple are 
 
 Hicks V. Pope, 129 N. C. 52 ; Prey v. void, because repugnant to the nature 
 
 Stanley, 110 Cal. 423. of the estate. 
 
598 ESTATES IN REAL PROPERTY. 
 
 return to his grantor.^ Neither can real property be given to 
 one in fee simple so that it can not be legally taken from him 
 involuntarily, as for example on execution for the payment of 
 his debts.^ 
 
 So far as legal estates in fee simple are concerned, this im- 
 portant incident is so absolute that its few exceptions, made by 
 some courts, are to be treated as departures, dictated by ex- 
 pediency or local requirement in particular instances.^ Thus, 
 because of the vital interest which a church society or organi- 
 zation has in the character and personnel of its pewholders, 
 it has been permitted to grant a pew right in fee simple and 
 validly to restrict or forbid the alienation of that right by the 
 grantee.* So, while an attempted prohibition against the trans- 
 fer of an interest in fee simple to any one other than a desig- 
 nated person or number of persons, or for a very long time, is 
 void practically everywhere ; yet it has been held by some 
 courts, though strongly denied by others, that restrictions pre- 
 venting sales to one or more certain persons named, or for a 
 short reasonable time, as for example until the grantee becomes 
 twenty-five years of age, should be enforced.^ 
 
 Equitable estates in fee simple are also generally subject 
 to this stringent principle which forbids restraints on their 
 alienability.^ But, in favor of effectual settlements in trust 
 for married women, courts of equity, since the beginning of the 
 
 1 In re Rosher, 26 Ch. Div. 801 , 806 ; for example, may restrain the grantee's 
 De Peyster v. Michael, 6 N. Y. 467 ; N. power of alienation. Schrimpscher ». 
 Y. Const. (1894), Art. I, § 14 ; Gray, Stockton, 183 U. S. 290, 294. See Ayl- 
 Kestraints on Alienation, §§ 25, 55. ward v. O'Brien, 160 Mass. 118. 
 
 2 In re Dugdale, 38 Ch. Div. 176 ; ^ In favor of the validity of such re- 
 Habn v. Hutchinson, 159 Pa. St. 133; strictions as these when reasonable, see 
 Van OsdeU v. Champion, 89 Wis. 661. Attwater v.' Attwater, 18 Beav. 330; 
 
 8 But see 1 Prest. Est. pp.*477,*478, Cowell v. Springs Co., 100 U. S. 55, 57 ; 
 
 " The right of alienation is an inherent Ex parte Watts, 130 N. C. 237 ; Wal- 
 
 and inseparable quality of an estate in lace v. Smith, 24 Ky. Law Rep. 139 ; 
 
 fee simple. In a devise of land in fee Winsor v. MiUs, 157 Mass. 362 ; Lit. 
 
 simple, therefore, a condition against § 361 ; Co. Lit. 223 ; 1 Prest. Est. pp. 
 
 all alienation is void, because repugnant *477, *478. Contra, Barnard's Lessee v. 
 
 to the estate devised. For the same Bailey, 2 Har. (Del.) ^; Good w. Fich- 
 
 reason, a limitation over, in case the thorn, 144 Pa. St. 287 ; 4vKent's Com. 
 
 first devisee shall alien, is equally void, p. *131. 
 
 whether the estate be legal or equit- " Potter v. Couch, 141 U. S. 296, 
 
 able." Potter v. Couch, 141 U. S. 296, 315; Sears v. Choate, 146 Mass. 395; 
 
 315. Taylor v. Harwell, 65 Ala. 1. But see 
 
 * French v. Old South Society, 106 Goe's Estate, 146 Pa. St. 431 ; Claflin 
 
 Mass. 479. So; a grant by the state or v. Claflin, 149 Mass. 19 ; Gunn v. Brown, 
 
 federal government, to incapacitated 63 Md. 96. 
 persons, such as improvident Indians 
 
ESTATES IN PEE SIMPLE. 599 
 
 nineteenth century ,i have permitted separate use estates to be 
 made for them in fee with the addition of the enforceable 
 " clfwise against anticipation." And, as heretofore explained, 
 this restriction is effectual in England, and most of the states 
 of this country, whenever and so long as the beneficiary is under 
 coverture.2 So, charitable trust interests, as heretofore ex- 
 plained, may be made in fee simple and inalienable.^ In 
 some states, such as New York, Michigan, Minnesota, and 
 Wisconsin, where the statutes prevent an express private trust 
 from being made in fee, of course no question as to restrain- 
 ing alienation of such an interest can be material.* And all 
 implied trusts are everywhere alienable, for in raising them 
 the law does not imply any restriction. 
 
 The alienability of estates less than a fee may generally be 
 restrained or prevented ; ^ and, of course, the contingent nature 
 of any interest may render its disposition impossible for a time, 
 as for example where a remainder in fee or of any lesser estate 
 is devised to an unborn person, and so can not be aliened while 
 that person is not in existence. But he who lives and cer- 
 tainly owns a fee simple must ordinarily own it together with 
 the absolute power of alienation, (a) 
 
 (a) In New York, before the adoption of the constitution of 1846, pro- 
 visions were frequently placed in conveyances of estates in fee, as well as 
 in those for years or for lives, by which the grantees or lessees were re- 
 strained from conveying their interests without paying to their grantors 
 or lessors a designated portion, as one-fourth, one-eighth, etc., of the pur- 
 chase money received on such re-sales. These were called quarter sales, 
 eighth sales, etc. Those restrictions were held to be valid, as affecting life 
 estates and estates for years ; but it was ultimately decided that they were 
 invalid, as to estates in fee simple. De Peyster v. Michael, 6 N. Y. 467, 
 which is good law on this point, though overruled (by Van Rensselaer v. 
 Hays, 19 N. Y. 68) in so far as it held that the statute of quia emptores 
 was not operative in New York ; Overbagh v. Patrie, 8 Barb. 28, aff'd 6 
 N. Y. 510. All such clogs on alienation of fees simple are now expressly 
 prohibited by a constitutional provision, which was first adopted in 1846, 
 and reads as follows: " All fines, quarter sales, or other like restraints upon 
 
 1 Soon after the decision of Pybus v. * Anderson v. Anderson, 164 Pa. St. 
 
 Smith (1796), 3 Bro. C. C. 340, in which 338; Lewis v. Lewis, 74 Conn. 630; 
 
 it was held that without any clause 4 Kent's Com. p. *131, note 1. But 
 
 against anticipation she might encum- this is denied, as to life estates, by 
 
 her her separate use estate. Parkes v. some authorities. See Pritchard v. 
 
 White, II Ves. 221 ; 2 Lewin on Trusts, Bailey, 113 N. C. 521 ; Case u. Green, 
 
 p. *781. 78 Mich. .540; 4 Kent's Com. p. * 131, 
 
 " § 336, supra. note 1 ; Gray, Restraints on Alienation 
 
 8 § 350, supra. (2d ed.), §§ 140, 269. 
 
 * See § 963, infra. 
 
600 ESTATES IN EEAL PEOPEETY. 
 
 § 422. Use and Enjoyment of Estates in Fee Simple may be 
 Restricted. — On the other hand, the enjoyment and use of 
 property conveyed in fee simple may be validly limited, so 
 long as it is left reasonably useful to its ov\rner for the pur- 
 poses for vFhich it was transferred to him. Covenants against 
 nuisances, so-called, forbidding designated kinds of trade or 
 business on the land, and restrictions as to the nature or loca- 
 tion of buildings to be erected are prominent and frequent ex- 
 amples of such restraints.^ Many concrete illustrations of 
 these have been heretofore given, in the discussion of equi- 
 table easements.^ 
 
 It is obvious that, accurately speaking, limitations on the 
 use of realty by one who has an estate in fee simple must 
 be in the form of covenants, rather than conditions. For, 
 when a condition subsequent is annexed to an estate conveyed 
 to one and his heirs, his interest becomes a fee on condition, and 
 not a fee simple.^ A grant of land to A and his heirs, with a 
 covenant in the deed that intoxicating liquor shall not be sold on 
 the premises, gives him a fee simple restricted as to its use. 
 But a grant to him, on condition that no intoxicating liquor shall 
 
 alienation, reserved in any grant of lands hereafter to be made, shall be 
 void." Const, of 1894, Art- 1) § 14. With the statute of quia emptores and 
 this positive constitutional declaration both in force, there can be no doubt 
 of the general alienability of estates in fee simple in New York. 
 
 1 Trustees v. Lynch, 70 N. Y. 440 ; engine, brass foundry, nail or other iron 
 Equitable Life Assurance Soc. v. Bren- factory, or any manufactory of gun- 
 nan, 148 N. Y. 661 ; Cowell v. Spring powder, glue, varnish, vitriol, ink, or 
 Co., 100 U. S. 55 ; Bronson v. Coffin, turpentine, or for the tanning, dressing, 
 108 Mass. 175, 118 Mass. 156; Lake or preparing of skins, hides, or leather, 
 Erie & W. R. Co. a. Priest, 131 Ind. nor any brewery, or distillery, nor any 
 413. A form of a stringent covenant stable of any kind, coal yard, meat shop, 
 of this character is as follows : " And tallow chandlery, or any manufactory 
 the party of the second part, for him- of glass or petrqleum, or any cooper's, 
 self, his heirs and assigns, doth hereby carpenter's or cabinet maker's shop, or 
 covenant to and with the said parties of any establishment for keeping skins, 
 the first part, their successors and as- sugar refinery, bakery, drinking or lager 
 signs, and with the owners for the time beer establishment, circus, menagerie, 
 being of the adjaceiit lots jointly and public show or exhibition of animals, 
 severally, that neither the said party of railroad depot or stable, car, engine or 
 the second part, nor his heirs or assigns, tenement house, nor any other noxious 
 shall or will, at any time hereafter, erect or offensive thing, trade or business." 
 any building within forty feet of the Such restrictions are very common in 
 front part of the premises, except of deeds of city lots. They are further 
 brick or stone, with roofs of slate or discussed hereafter, in the chapter on 
 metal, and will not erect or permit upon covenants in deeds, 
 any part of said premises, any slaughter- 2 §§ 148-152, su/ira. 
 house, smith-shop,forge, furnace, steam ^ §§ 82, 83, supra. 
 
ESTATES IN FEE SIMPLE. 601 
 
 ever be sold on the land, gives him a fee on condition and not 
 a fee simple.^ Hence, while it is everywhere held that any 
 such condition as the latter is valid, provided it does not 
 practically destroy all utility of the land ; ^ yet it is clear that, 
 in its very nature, it can not be a restriction on an estate in fee 
 simple. 
 
 § 423. Estates in Fee Simple have all ordinary Incidents of 
 Real-Property Interests. — Since a fee simple is the largest 
 possible interest, it has all the positive incidents and its owner^ 
 has all the rights and privileges, that may be associated^wlth 
 any estate in real property. Therefore, subject to any^estric- 
 tions under which he may have taken it, and subject also to the 
 mandate of the maxim sic utere tuo ut alienum non laedas, its 
 owner when in possession may use it for any purpose and in 
 any manner that he may choose ; ^ he may cut timber, open 
 and work mines, cultivate the soil even to exhaustion, build or 
 pull down houses, commit waste, or injure or destroy any part of it 
 as he may please.* Not only does he have the right ta sell or 
 otherwise to dispose of it as a whole, but he may grant or convey 
 out of it any inferior interests, such as estates for years, for life, 
 or in tail.^ He may devise it by his will, or let it descend to his 
 heirs on his dying intestate. If he leave no lineal descendant, 
 it may be inherited by his collateral or remote relatives, accord- 
 ing to the rules of descent.^ And when he dies owning it, 
 intestate and without heirs, it escheats to the crown in England, 
 and in this country to the state.'' The wife of an owner in fee 
 simple, who is seised of it, has dower in the property ; and the 
 husband of such an owner has curtesy.^ This greatest of 
 estates may be reached on execution for the debts of its owner ; 
 and after his death it may be sold to pay them, by judicial 
 decree.^ It may be disposed of by the public authorities for the 
 
 1 Ibid.; § in, infra. Wms. R. P. p. *79; 1 Leake, Land 
 
 2 Cowell V. Spring Co., 100 U. S. Law, 15. 
 
 55 ; Plnmb v. Tnbba, 41 N. Y. 442 ; » Wms. R. P. p. *79 ; Greenl. Cruise, 
 
 Trnstees of Union College i'. City of Dig. tit. i. §§ 44-50. 
 
 New York, 173 N. Y. 38 ; Smith v. ' Lit. §§ 1, 2; 2 Blackst. Com. pp. 
 
 Barrie, 56 Mich. 319; Sheppard's *208-*237; §91, supra ;§§ 985-987,tn/ra. 
 
 Tonchst. 129, 131. ' §§ 261, 290, supra. 
 
 ' Duke of Norfolk v. Arbuthnot, 4 ' See dower and curtesy defined, p. 
 
 C. P. Div. 290 ; Booth v. R. W. & O. 88, supra, and discussed, ch. xxx-xxxiv, 
 
 T. E. Co., 140 N. Y. 267 ; Bates v. infra. 
 
 Holbrook, 171 N. Y, 460; Westcott u. ° But, in most states, the personal 
 Middleton, 43 N. J. Eq. 478 ; Gar- property of the debtor must be first ex- 
 land i;. Towne, 55 N. H. 55. hausted. P. 9, supra; 3 Freeman, 
 
 4 Ibid. ; 3 Blackst. Com. p. ^223 ; Executions, § 372 et seq. 
 
602 ESTATES IN REAL PROPERTY. 
 
 payment of taxes, water rents, or assessments. And, when 
 needed for public purposes, it may be taken by the exercise 
 of the right of eminent domain.^ In a word, it is the great- 
 est of all the estates and has all the positive incidents of any 
 estate. 
 
 1 § 180, supra. 
 
CHAPTER XXVII. 
 
 h. QUALIFIED PEES. 
 
 § 424. Meaning and kinds of 
 qualified fees. 
 
 (a) Estates in Fee Tail. 
 
 § 425. Fee conditional, at com- 
 mon law. 
 
 § 426. The statute de donis con- 
 ditionalibus. 
 
 § 427. Fee tail, or estate tail 
 — Result of the statute de donis. 
 
 §428. Estates tail at first in- 
 alienable — Injurious results. 
 
 § 429. How estates tail were 
 made alienable. 
 
 § 430. Requisites and kinds of 
 estates tail. 
 
 § 431. Incidents of estates tail. 
 
 § 432. Estates tail at present 
 in England and in the United 
 States. 
 
 (b) Estates in Fee on Condition. 
 
 § 433. Nature and creation of 
 fees on condition. 
 
 § 434. Distinctive features of 
 fees on condition. 
 
 (c) Estates in Fee on Limitation. 
 
 § 435. Nature and creation of 
 fees on limitation. 
 
 § 436. Distinctive features of fees 
 on limitation. 
 
 (d) Estates in Fee on Conditional 
 Limitation. 
 
 § 437. Nature and creation of 
 fees on conditional limitation. 
 
 § 438. Distinctive features of 
 fees on conditional limitation — 
 Common-law objection to such 
 fees. 
 
 § 424. Meaning and Kinds of Qualified Fees. — It has been 
 shown how the word " heirs " came to be ordinarily required 
 by the common law in creating or transferring an estate in 
 fee simple.^ Apace with this requirement, grew the custom of 
 giving realty to one and a designated class of his heirs, as for 
 example to him " and the heirs of his body " ; and also of 
 placing other restrictions or limitations on the extent of his 
 fee, as by giving it to him " and his heirs so long as they 
 continue to live there," or to him " and his heirs provided they 
 consent to live there." ^ Thus there came to be recognized 
 and employed fees, estates of inheritance, which are not fees 
 
 ' § 41 8, supra. 
 
 2 2 Poll. & Mait. Hist. Eng. Law 
 (2d ed.) pp. 16, 17. Leake, Land Law, 
 
 35; Digby, Hist. Law R. P. (5th ed.) 
 pp. 263-265. 
 
604 ESTATES IN REAL PROPEETT. 
 
 simple, not absolute and indefeasible — less than the straight 
 line of ownership stretching away to infinity — interests greater 
 than life estates, because they can descend to heirs and the word 
 " heirs " is usually requisite at common law to their creation 
 or transfer, and yet interests that are not necessarily of endless 
 duration. Various adjectives, such as " base," " determinable," 
 " conditional," " limitational," " qualified," have been employed 
 by different writers to describe some or all of these lesser fees.^ 
 And the early jurists frequently speak of them as " fees simple 
 conditional," "fees simple qualified," etc.^ It will conduce to 
 clearness here to describe them all, as is uniformly done in 
 this treatise, by the expression, used in a general sensej 
 " qualified fees." ^ 
 
 The fourfold division of these " qualified fees " is into (a) 
 Fees conditional at common law, which by virtue of the statute 
 de donis conditionalihus became fees tail, (b) Pees on condition, 
 (c) Pees on limitation, or collateral limitation, and (d) Pees on 
 conditional limitation. The first of these four groups, the fee 
 tail, is to be explained in this chapter. The other three are 
 then to be briefly described ; but their more complete discus- 
 sion is postponed to the chapter on qualified estates in general.* 
 
 (a). Estates in Fee Tail. 
 
 § 425. Pee Conditional, at Common Law. — During the 
 first years of the thirteenth century, at the time when the 
 grantee of an estate " to himself and his heirs " had first 
 acquired the power of disposing of the property to the ex- 
 clusion of his heirs, an ancient but previously little employed 
 
 1 2 Blackst. Com. p. *109 ; 1 Prest. the authorities. A " qualified fee," in 
 Est. p. *24; 4 Kent's Com. pp. *9-*12; its narrower sense, means for many 
 1 Wash. R. P. (6th ed.) §§162-172; writers the same as a fee on limitation, 
 Gray, Perpetuities, §§ 32-36 ; Leonard or on " collateral " or " special " limitar 
 V. Burr, 18 N. Y. 96, 98; Hatfield v. tion as hereafter explained. 4 Kent's 
 Sneden, 54 N. Y. 285 ; First Universal- Com. p. *9 ; 1 Prest. Est. p. *28 ; Gray, 
 ist Society v. Boland, 155 Mass. 171, Perpetuities, § 32. But, since even the 
 174; Ohlfield v. Curtis, 229 111. 139; most accurate authors do not agree here 
 North V. Graham, 235 111. 178. in their nomenclature, confusion may be 
 
 2 Co. Lit. 18 a; Idle u. Cooke, 2 avoided by employing the word " quali- 
 Ld. Eaym'd, 1148, 1194; Willion a. fied " to describe generally all the lesser 
 Berkley, 1 Plowd. 223, 245. or restricted fees, and then denoting 
 
 ' This use of the word " qualified," each of them separately by a different 
 
 to describe generally all the fees that and well recognized name. See Chase's 
 
 are not fees simple, is adopted for the Blackst. p. 294, note ; ch. Iv, infra. 
 sake of perspicuity ; and it is clearly * Ch. Iv, infra. 
 
 recognized as not in harmony with all 
 
QUALIFIED PEES. 605 
 
 form of gift of realty to one " and the heirs of his body," or 
 to him and his wife " and the heirs of their bodies," became 
 prevalent and popular.^ Since a donee in fee simple had now 
 the ability to prevent the property from ever going to his heirs, 
 or back to the donor, it was sought, by this other form of gift 
 to make a lesser kind of fee, and so to provide certainly for 
 the issue of a marriage, or tlie restoration of the land to the 
 donor in case of the extinction of the donee's descendants.^ 
 
 The manifest intent of a landowner of that time, who created 
 such an estate — who gave, for example, the land to his son 
 " and the heirs of his body " — was that it should be held 
 and enjoyed by the donee without any power of alienation; 
 at his death it should descend to his issue, if any, and to their 
 issue in succession, to be owned in the same way ; and, if he 
 left no issue or his descendants ever ceased to exist, it should 
 revert to the donor or his heirs. The donee and his posterity, 
 as long as any of them survived, were to be indissolubly united 
 with the land. During that time, it was to be taken out of 
 the market — rendered absolutely inalienable.^ But the judges 
 frustrated this design by their construction of such gifts. They 
 held that the donee, at any time, even before he had a child, 
 might sell the property in such manner as to bar his issue 
 from ever acquiring it, though subject to revert to the donor 
 or his heirs on the ultimate extinction of the donee and his 
 issue.* And then they added the curious decision that, as soon 
 as a child was born to the donee, he might even dispose of the 
 property in fee simple and thus bar from ever acquiring it, not 
 only his own issue, but also the donor and his heirs. The birth 
 of his issue did not per se cause the donee to own it in fee 
 simple. But such birth made him capable of alienating, en- 
 cumbering, or forfeiting it in fee simple. /Thus, if land were 
 given to A " and the heirs of his body," he did not have it in 
 fee simple, nor would the birth of his issue in itself cause 
 him to do so; but after such birth he could sell it in fee 
 simple,,'raise money upon it and encumber it in fee simple, or 
 
 1 2 Blackst. Com. p. *110; 2 Poll. & was "contrary to minds of the givers, 
 Mail. Hist. Eng. L. (2ded.) pp. 16, 17; and contrary to the form expressed in 
 1 Spence, Eq. Jur. 21. the gift." Stat. Westm. II. (13 Edw. I.) 
 
 2 Ibid. ch. 1. 
 
 ' Crnise.Dig. tit. ii.ch.i. §4; Digby, * Cruise, Dig. tit. ii. ch. i. § 6; 2 
 
 Hist. Law R. P. (5th ed.) p. 223. The Poll. & Mait. Hist. Eng. L. (2d ed.) 
 
 opposite construction which was adopted p. 1 7. 
 by the courts, says the Statute de donis, 
 
606 ESTATES IN REAL PROPERTY. 
 
 have it taken from him in fee simple by forfeiture for his 
 misconduct.^ 
 
 The reason for this latter and apparently anomalous deci- 
 sion of the courts is doubtless twofold.. They favored free 
 alienation, and resisted its suspension as being against public 
 policy.^ /And they probably looked upon a gift to one " and 
 the heirs of his body " as in substance tlie same as a gift to 
 him " and his heirs forever, on condition that he have issue of 
 his body." 3 Therefore, they treated the estate as a, fee condi- 
 tional, and so named it.* While, then, the birth of his issue 
 alone did not confer on its owner an absolute fee simple, it did 
 enable him to make it a fee simple by selling it, and imme- 
 diately buying it back if he chose. •' And, of course, it quickly 
 became customary for the owner of a fee conditional — an es- 
 tate to him " and the heirs of his body " — as soon as he had^a 
 child born, to grant it to some one from whom he immediatela- 
 took a reconveyance to himself in fee simple.* /Thus, all thfe 
 purposes of tiie donor, in placing restrictions upon the fee by 
 limiting it to the heirs of the body of the donee, could be and 
 usually were frustrated as soon as issue was born to the latter. 
 
 It is to be carefully noted, however, that this fee conditional 
 would remain such, unless its owner alienated, forfeited, or 
 encumbered it in fee simple after he had issue. If he did 
 neither of these things, it could not pass at his death to any 
 heirs except those of his body. And, therefore, if he retained 
 it as a fee conditional and died without issue, or his issue ever 
 became extinct without having aliened it in fee simple, the 
 property reverted in fee simple to the donor or his heirs.^ It 
 was a " fee conditional " which could be transformed into a 
 fee simple after the birth of its owner's issue ; but failure thus 
 to transform it left it still conditional, so that at the extinction 
 of such issue the condition was broken and the property might 
 revert. / 
 
 § 426. The Statute De Donis Conditionalibus. — The courts' 
 odd construction of estates in fee conditional, running counter 
 as it did to the intentions of settlers, produced two results 
 
 1 Co. Lit. 19 a; 2 Blackst. Com. ' 2 Poll. & Mait. Hist. Eng. L. (2d 
 p. *1 10 ; Craise, Dig. tit. ii. ch. i. § 5 ; ed.) p. 18 ; Willion v. Berkley, 1 Plowd. 
 Digby, Hist. Law R. P. (5th ed.) p. 223 ; 223, 245. 
 
 Croxall K. Shererd, 72 U. S. (5 WaJl.) * Last three preceding notes. 
 
 268, 284. 6 Ibid. 
 
 2 2 Poll. & Mait. Hist. Eng. L. » 2 Blackst. Cora. p. *in ; Digby, 
 (2d ed.) pp. 18, 19 ; § 956, infra. Hist. Law. R. P. (5th ed.) p. 223. 
 
QUALIFIED PEES. 607 
 
 especially abhorrent to the great landowners, the domini capi- 
 tales. It prevented them from perpetuating property in their 
 own families — from indissolubly uniting the land and their 
 descendants. And it deprived the feudal lords of what other- 
 wise would have been their reversionary interests in case of 
 failure of issue of the donees : for, if A made a feoffment to 
 B and the heirs of his body, B, by selling the land in fee as 
 soon as he had a child, could prevent it from reverting to A 
 on failure of B's descendants. In order to remove these diffi- 
 culties, the famous statute de donis conditionalibus (or, more 
 briefly, de donis, 13 Edw. I. ch. 1, A.D. 1285) was passed. It 
 declared, in effect, that thereafter the will of the donor of such 
 an estate should be observed ; so that, among other things, 
 they to whom the property was given should have no power 
 to alienate it, but it must descend to their issue so long as any 
 existed, and on failure of such issue at any time must revert to 
 the donor or his heirs.^ Thus the nobility and great landed 
 proprietors were to be enabled to enforce continued ownership 
 of the land by their families as loug as their descendants sur- 
 vived, and to insure its ultimate return to the donors or their 
 heirs on failure of such descendants. This made a radical 
 change in the estate to one " and the heirs of his body," which 
 theretofore had been known as a fee conditional. And the 
 courts soon changed its name ; and ever since then it has been 
 called a " fee tail," or an " estate tail." ^ 
 
 ^ The Btatnte spoke of gifts to a man fore the Statute to recover land which 
 
 and his wife and the heirs of their two his tenant had conveyed' away for an 
 
 bodies, and of gifts to one and the heirs estate in fee without having had issue 
 
 of his body ; and recited the evils at- bom." Digby, Hist. Law R. P. (5th 
 
 tendant on the manner in which such ed.) pp. 223, 224. 
 
 donations were construed by the courts- * " It seems that the term fee tail 
 
 And it then provided that the alienation was already in use before the statute 
 
 of these fees conditional " should not was passed : it occurs iu the statute 
 
 defeat the devolution of the estate to (c. 4) though not in the famous first 
 
 the heir, but that in the event of the chapter. We have found it on a roll 
 
 tenant of a conditional estate alienat- slightly older than the statute; De 
 
 ing, the heir on the decease of his an- Banco Roll, Mich. 11-12, Edw. I. m. 
 
 cestor might recover the estate from 70 d : ' Emma non habuit . . . nisi feo- 
 
 the ieaS.ee, or any person claiming dum taUiatum secundum formam dona- 
 
 under him. It was further provided tionis praedictae.' At any rate it was 
 
 that when the tenant had made a feoff- in common use within a very few years 
 
 ment in fee, having had issue born, who afterwards." 2 Poll. & Mait. Hist. Eng. 
 
 had subsequently died, the original L. (2d ed.) p. 19, note 6. See 1 
 
 donor (or lord) might recover the land Spence, Eq. Jur. p. 21 ; Barringt. Stat, 
 
 from the feoffee by the same form of 113. 
 remedy as he might have employed be- 
 
608 ESTATES IN EEAL PROPERTY. 
 
 § 427. Fee Tail, or Estate Tall — Result of the Statute De 
 Donis. — Before the statute de donis was enacted, the donor of 
 a fee conditional retained no estate in the land, no right or in-^ 
 terest of which he could dispose ; but he had only a possibility 
 of obtaining such a right or interest, after the' death of the 
 donee and all his descendants, if the land had not been alien- 
 ated in fee simple by them.^ The donee took the fee ; and 
 the donor had only a possibility of reacquiring the property. 
 This was changed by the statute de donis by its preventing the 
 donee from alienating the land in fee simple. His decendants 
 would become extinct at some time in the future, and then the 
 property must revert to the donor or his heirs. Therefore, the 
 donor had now more than a mere possibility of regaining it ; it 
 was sure to return to him or his heirs, and his interest had 
 become by force of the statute a reversion, a future estate 
 which if he chose he could convey and vest in another per- 
 son.2 The interest of the donee, as it had been before the 
 statute, was accordingly decided to have been curtailed by the 
 passing of the statute. He now owned a lesser fee than he 
 had owned before. His interest had become one cut off from 
 the original fee simple of the dondr. And, tlierefore,; it was 
 called a "fee tail," or " estate t&W" /feudum talliatum, & portion 
 of an estate, taille — ^cut off — from the fee simple.^ Tlius, if 
 A owned an estate in fee simpl^ and conveyed the land to B 
 and the heirs of his body, a fee tail, a part of the fee simple, be- 
 came B's ; and the residue, the reversion in fee simple, was A's. 
 In technical language, B had an estate tail in possession, and 
 A had an estate in fee simple in reversion expectant upon the 
 determination of the fee tail.* And so the estate tail took its 
 position as an interest intermediate between a life estate and a 
 fee simple. And a grant or devise to A for life, and then to B 
 and the heirs of his body, and then to C and his heirs forever, 
 came to produce three distinct and well recognized interests — 
 a life estate for A, a fee tail for^B, and an ultimate fee simple 
 for C.5 
 
 § 428. Estates Tail at First Inalienable — Injurious Results. 
 — Among the chief purposes and effects of the statute de donis 
 
 1 Fearne, Cont. Rem. p. 381, Butler's §§ 9-12 ; Willion v. Berkley, 1 Plowd. 
 note ; Digby, Hist. Law R. P. (5th ed.) 223, 251. 
 
 pp. 225, 226. * Ibid. 
 
 2 Ibid. ; 2 Blackst. Com. p. *]12 ; ^ Digby, Hist. Law R. P. (5th ed.) 
 § 89, supra. p. 226. 
 
 2 Ibid. ; Cruise, Dig. tit. ii. ch. i. 
 
QUALIFIED FEES. 609 
 
 was the taking of the fee tail out of the market, by making it in- 
 alienable in the hands of the donee and his descendants. " The 
 statute de bonis was made in the reign of a prince who, from 
 the great number and excellence of his laws, has justly acquired 
 the title of the English Justinian. It is, therefore, highly prob- 
 able that he was induced by some motives unknown to modern 
 times to give his assent to a law, which, by allowing the no- 
 bility to entail their estates, made it impossible to diminish 
 the property of the great families, and at the same time left 
 them all means of increase and acquisition." ' The operation 
 of the statute was enlarged, rather than restricted, by the con- 
 struction of the judges. Wherever, by any form of words, 
 direct or indirect, the intention was expressed that the prop- 
 erty was to descend to the heirs who should be the issue of the 
 body of the donee — technically, whenever both word's of in- 
 heritance and words ol procreation were employed — the estate 
 was held to be a fee tail, practically inseparable from the first 
 taker and his descendants.^ And the landed proprietors pro- 
 ceeded rapidly to tie up in this manner most of the real prop- 
 erty in the realm.^ 
 
 As time went on, the injurious effects of such restrictions 
 were more and more apparent. Children, whose parents could 
 not disinherit them, became disobedient ; farmers were de- 
 prived of their leases at the death of their immediate land- 
 lords, because the latter could not lease such interests for 
 longer than their own lives ; creditors were defrauded of their 
 debts, because estates tail could not be charged with their pay- 
 ment; latent and forgotten entails were frequently produced 
 to deprive purchasers of titles for which they had fairly paid ; 
 and even treason, it is said, was encouraged, because estates 
 tail could not be forfeited for a longer time than during the 
 life of the tenant.* The industry and commerce of the nation 
 were being vastly impaired by these restricted fees and their 
 resulting inconveniences. These evils, says Lord Coke, were 
 
 1 Cruise, Dig. tit. ii.ch.i.§ 11. From ch. Ixx, tn/ra. But an estate tail does 
 
 the fact that the existence of an estate not now do so, because, as explained in 
 
 tail thns made the property inalienable, the next section, its owner may convey 
 
 the word " entail " has come to be used the land in fee simple, 
 often in a popular sense to describe the 2 2 Blackst. Com. p. *115 ; Digby, 
 
 taking of property out of the market — Hist. Law R. P. (5th ed.) p. 249. 
 rendering it inalienable — in any man- 3 Ibid. 
 
 ner. Trusts, powers, and future inter- ^ 2 Blackst. Com. p. *16 ; Wms. 
 
 ests may be so made as to do this to R, P. p. *44 ; Digby, Hist. R. P. (5th 
 
 some extent at the present time. See ed.) p. 252. 
 
 39 
 
610 ESTATES IN EEAL PROPERTY. 
 
 " attempted and endeavored to be remedied at divers parlia- 
 ments, and divers bills were exhibited accordingly (which I have 
 seen), but they were always on one pretence or another re- 
 jected." ^ The feudal aristocracy would not consent to any 
 repeal or modification of the statute de donis. And so for 
 nearly two hundred years its injurious results continued. ' 
 § 429. How Estates Tail were made Alienable. — It was not 
 until the decision of Taltarum's Case'^ (12 Edw. IV. (1473)), that 
 the grievances flowing from the statute de donis were removed. 
 The court, by an unparalleled instance of judicial legislation,'' 
 decided in that case that the owner of an estate tail, notwith- 
 standing the statute, might dispose of the property in fee 
 simple by means of a " common recovery." This was a collu- 
 sive and fictitious proceeding, which was thus applied by the 
 judges to bar entails and so to get rid of glaring evils left 
 unremedied by parliament.* The procedure may be here suffi- 
 ciently explained by a terse illustration. A, the owner of an 
 estate tail has agreed to sell the land to B in fee simple, but 
 can not do so directly because of the prohibition of the statute 
 de donis. B, alleging that the land is his own, brings an action 
 against A to obtain it in fee simple. A comes into court and 
 alleges that C gave it to him in fee tail with a warranty, and 
 that by virtue of the warranty it is C's duty to defend the 
 action. C is "thus called in, or " vouched in," as warrantor, 
 accepts the challenge, and is substituted as defendant instead 
 A.^ An " imparlance," an adjournment of the case, is then 
 
 1 Mildmay'a Case, 6 Rep. 40 a. not be the actual donor, with warranty, 
 
 ' Year Book, 12 Edw. IV. pi. 25, of the land in fee tail to A. Usually he 
 
 f. 19. This important case, which indi- was not. But the fact that he confessed 
 
 rectly settled tlie result stated in the that he was the warrantor was sufficient 
 
 text, is explained by Mr. Digby, Hist. for this collusive action. Then the 
 
 Law. R. P. (.5th. ed.) pp. 255-258. subtle effects of, a warranty of an estate 
 
 ' Mr. Speuce says that the judges of inheritance came into play, whereby 
 
 did this " in the exercise of their Pre- the warrantor, if duly notiiied and 
 
 torian authority." 1 Spence, Eq. Jur. " vouched in " to resist an adverse claim- 
 
 p. 143. ant, must defend the title of his war- 
 
 * Perhaps the common recovery had rantee, or if he fail successfully to do 
 
 been employed for this purpose before. so must recompense the warrantee for his 
 
 But Taltarum's Case gave it emphasis loss of the land. The obscure doctrine 
 
 as the means of effectually disposing of of warranty, as affecting the heirs both 
 
 an estate tail, so as to bar the heirs of the lineal and collateral of the warrantor, 
 
 tenant and the remainderman or rever- is hereafter explained. It suffices here 
 
 sioner and his heirs. Digby, Hist. Law to note that, C being treated in the 
 
 R. P. (5th. ed.) p. 254. common recovery as the owner of the 
 
 ^ C who came to be known as the property in fee simple in remaintler or 
 
 " common vouchee," might or might reversion and failing to defend the ao- 
 
QUALIFIED PEES. 611 
 
 taken; and, when the matter is again called in court, C makes 
 default, and B obtains judgment that he owns the land in fee , 
 simple. Judgment is also Awarded to A against C, for the 
 Talue of the land which A has thus lost because of C's default. 
 This latter judgment is practically ineffectual, because C is an 
 irresponsible person (usually the crier of the court), chosen as 
 such to be one of the dramatis per sonce of this proceeding which 
 is understood by the court and all the interested parties to be 
 collusive.^ In the meantime, B has paid A for the land the 
 price agreed on between them. And thus A has been enabled 
 to convey to B in fee simple the land which A owned in fee 
 tail. For the courts held that this common recovery bari'ed A 
 and his heirs and the donor and his heirs of all interests in the 
 property.^ 
 
 A shorter but less effective mode of disposing of estates tail 
 was subsequently resorted to, by the employment of a fine, at. 
 judicial proceeding long known and used in the common law, 
 but declared by the statute de donis to be ineffectual to bar or 
 transfer such estates. After some vacillation, it was settled by 
 the Statute 32 Hen. VIII. ch. 36 (1540), that, by this form of 
 action, the owner of a fee tail might so dispose of it as to bar, 
 not the ultimate reversioner or remainderman in fee simple, 
 but only his own issue.^ A fine may also be briefly illustrated. 
 
 tion as Teqnired by his warranty, both rantor, and he another, and so on ; so 
 
 he and his heirs (and they stood for and that he who nltimately assumed the 
 
 bonnd by this proceeding the actual defense and then made default might be 
 
 donor and his heirs) were divested of the third or fourth vouchee. Most com- 
 
 all interest in the land. The warranty monly, perhaps, he was the third ; for 
 
 of the ancestor was binding on the heir, at this one the fictions were thought to 
 
 and its breach precluded them. It had have been carried far enough to make 
 
 been early attempted by owners in tail the legal farce complete as a bar to 
 
 to alienate their estates by simply mak- everybody. The common recovery is 
 
 ing use of that principle — merely by describedwith elaboration by Mr. Cruise, 
 
 selling with warranty. But, after the Dig. tit. xxxvi. See, more tersely, 
 
 decision of Taltarum's Case, this was 2 Blackst. Com. pp. *357-*360; Wms. 
 
 abandoned in favor of the more thorough R. P. pp. *44-*46 ; Digby, Hist. Law 
 
 transfer afforded by a common recovery. K. P. (5th ed.) pp. 253-258. 
 2 Blackst. Com. pp. *300-*303 ; 2 Poll. 2 Ibid. In theory at least, all other 
 
 & Mait. Hist. Eng. L. (2d ed.) p. 312; claimants had been given their "day in 
 
 Digby, Hist. Law R. P. (5th ed.) pp. court," and had failed to establish or 
 
 251, 252. defend their claims successfully against 
 
 ^ ^ This is an attempt to describe, in the adverse demandant, B. And B had 
 
 terse, 20th century language, a med- the solemn judgment of the court, mad» 
 
 iaeval lawsuit which was often long and matter of record there, that the land 
 
 cumbersome and generally very expen- belonged to him in fee simple, 
 sive. The vouchee, C, might and fre- ' 2 Blackst. Com. p. *118; 1 Spence, 
 
 qnently did vouch in another as his war- Eq. Jur. p. 143. 
 
€12 ESTATES IN REAL PBOPEKTY. ^ 
 
 A, the owner of an estate tail has agreed to sell the land to B. 
 
 B, alleging that he owns it, begins an action against A to 
 obtain it. As soon as both parties are before the court, they 
 ast for leave to compromise their supposed dispute. This 
 being granted, they state to the court the terms of their com- 
 pact ; and the finalis concordia is entered into between them, 
 noted and made matter of record, whereby B's ownership of 
 the land is admitted and established.^ B has paid A for the 
 property, in the meantime. And thus B has acquired a perfect 
 title, against A and his issue, though not against the donor of 
 the fee tail or his heirs.^ 
 
 It is marvelous that, for over three centuries, these cum- 
 bersome and expensive proceedings — of which the common 
 recovery, being the more technical and complete, was the more 
 irequently employed — were the only methods of alienating an 
 €state tail. At length, in 1834, parliament intervened, abol- 
 ished fines and common recoveries by the Statute 3 & 4 Will. IV. 
 ch. 74, and, by the same law, provided a method by which the 
 owner of an estate in fee tail, by a deed enrolled in Chancery 
 within six months after its execution, may alienate the property 
 in fee simple or otherwise. A similar policy has been followed 
 
 1 Like the explanation of a common mon recoveries, the same as legal estates 
 recovery, given above, this is an attempt tail. And the procedure was the same 
 to describe, in the language of to-day, a as to both kinds of estates. Sugden's 
 technical and expensive procedure of the Gilbert, Uses & Trusts, p. 33. 
 middle ages. The fine is doubtless much ^ " The virtues of a fine, in the three 
 older than the common recovery, though points of view we have examined it, 
 not applied till later to bar entails. 2 namely, to extiuquish dormant titles, to 
 Coke, Inst. 511. The proceeding took bar the issue in tail, and to pass the inter- 
 its name from the final concord, which est of femes covert ; these constitute the 
 put an end {Jinem) to the genuine or col- more peculiar qualities, on account of 
 lusive (usually) litigation. The bar of which it is most usually, if not always, 
 the heirs of the tenant in tail was not resorted to." The agreement, or final 
 complete, howe/er, until they had had concord, " being reduced to writing, was 
 a year and a dajiiom the ending of the enrolled among the records of the court, 
 suit in which to file their adverse claims. where it was preserved by the proper 
 This time was afterwards extended in- ofiicer; by which means it was not so 
 definitely, and finally restricted to five liable to be lost or defaced as a charter 
 years. And they who did not make their of feoffment ; and being a record, would 
 claim within that time were said to be at all times prove itself. It had also 
 barred by "fine and non-claim." Blackst. another advantage; that being substi- 
 Com. pp. *348-*356 ; 2 Poll. & Mail. tuted in the place of the sentence which 
 Hist. Eng. L. (2d ed.) pp. 95-106; would have been given, in case the suit 
 Digby, Hist. Law R. P. (5th ed.) pp. had not been compounded, it was held 
 105-108; Cruise, Dig. tit. xxxv. ; Rose- to be of the same nature, and of equal 
 boom V. Van Vechten, 5 Denio (N. Y.), force, with the judgment of a court of 
 414, 420. Equitable estates tail could justice." Roseboom v. Van Vechten, 
 be aliened and barred by fines and com- 5 Denio (N. Y.), 414, 421. 
 
QUALIFIED PEES. 613 
 
 in this country, although fines and common recoveries were 
 recognized in the early history of some of the colonies and 
 states.! j^ikJ now, in the few states where the fee tail is 
 retained, an ordinary deed by the owner in tail is sufficient to 
 convey the property in fee simple.^ (a) 
 
 § 430. Requisites and Kinds of Estates Tail. — The most 
 ordinary and appropriate expression, for creating or conveying 
 an estate tail is, to one " and the heirs of his body." Thus are 
 employed both the word of inheritance, " heirs," and words of 
 procreation, " of his body." These are the technical, common- 
 law requisites to the production of such an interest. The word 
 "heirs" must still be used; unless the case is within one of 
 the exceptions, heretofore discussed, in which that word is not 
 necessary in creating a fee simple ; ^ and such an exception 
 affecting a fee tail most frequently appears in devises by will.* 
 And the words " of his body," or some equivalent expression — 
 words of procreation — clearly evincing a restriction of " heirs" 
 to his lineal descendants, must be employed.^ Thus, except in 
 a will in which the intent to give a fee tail is made clear,^ or 
 except as the result of positive statute or special rule, a grant 
 to a man "and his issue," or to him "and the issue of his 
 body," or to him "and his seed," or " descendants," gives him 
 a life estate only.' While a conveyance to one " and his heirs 
 
 (a) In New Tork, fines and common recoveries were retained, even after 
 estates tail were abolished (in 1782). 1 Greenl. L. 377 ; 1 R. L. (1813) 358 ; 
 Rosebooni v. Van Vechten, 5 Denio, 414 ; Lion v. Burtis, 20 Johns. 483, 
 490 ; Jackson ex. dem. Watson v. Smith, 13 Johns. 426 ; Van Ness v. 
 Gardiner, 1 Cai. Cas. 59. And an instance of a fine levied as late as 1827 
 is presented in McGregor i>. Comstock, 17 N. Y. 162. They were abolished 
 by the Revised Statutes in 1830. 2 R. S. 134, § 136. 
 
 1 Ibid. ; McGregor v. Comstock, 17 *115; 2 Prest. Est. p. *396; Adams v. 
 N. Y. 162 ; Lyie v. Richards, 9 S. & R. Ross, 30 N. J. L. 505. 
 
 (Pa.) 322; Hawley v. Inhab. of North- ^ Co. Lit. 20 b; 2 Blackst. Com. p. 
 
 ampton, 8 Mass. 3 ; Frost v. Cloutman, *U5; Cruise, Dig. tit. ii. ch. i. § 22; 
 
 7 N. H. 9 ; Croxall v. Shererd, 72 U. S. Doe v. Smeddle, 2 Barn. & Aid. 126 ; 
 
 (5 Wall.) 268, 283. _ Norris v. Beyea, 13 N. Y. 273, 280 ; Smith 
 
 2 1 Stlm. Amer. Stat. L. § 1313 (c) ; v. Scholtz, 68 N. Y. 41, 59 ; Nightingale 
 4 Kent's Com. p. *497, note (b). See 1 v. Burrell, 15 Pick. (Mass.) 104. 
 Wash. R. P. (6th ed.) p. 87, note 5; « Co. Lit. 27 a; 2 Blackst. Com. p. 
 McGregor v. Comstock, 17 N. Y. 162; *115; Cruise, Dig. tit. xxxviii. ch. xii. 
 Lawrence v. Lawrence, 105 Pa. St. 335 ; §§ 1-12 ; Denn v. Slater, 5 Term Rep. 
 CoUamore v. CoUamore, 158 Mass. 74; 335; Cuftee v. Milk, 10 Met. (Mass.) 
 Jillson u. Wilcox, 7 R. L 515. 366; Cooper v. Cooper, 6 R. I. 261; 
 
 ' § 419, supra. Doty v. Teller, 54 N. J. L. 163. 
 
 ^ Co. Lit. 20 a; 2 Blackst. Com. p. ^ Ibid. ; Co. Lit. 13 a, 20 b. 
 
614 ESTATES IN REAL PKOFERTY. / 
 
 who shall be his issue," or to him " and his descendants as his 
 heirs," conveys an estate tail, since there is the necessary 
 restriction of his heirs to those descended from hiniself.^ 
 
 The conception being fixed in the legal mind of a fee 
 limited to a specific class of heirs, and of that limitation pro- 
 duced by the addition of words of procreation to the technical 
 word of inlieritance "heirs," it was natural that that mind 
 should proceed to invent further resti'ictions as to the heii's who- 
 might inherit. Hence the different kinds or classes of estates 
 tail. They are either general or special. " Tail-genei-al is where 
 lands and tenements are given to one, and the heirs of his lody 
 begotten : which is called tail-general, because, how often 
 soever such donee in tail be married, his issue in general by all 
 and every such marriage is, in successive order, capable of 
 inheriting the estate tail, per formam doni. Tenant in tail 
 special is where the gift is restrained to certain heirs of the 
 donee's body, and does not go to all of them in general. And 
 this may happen several ways. I shall instance in only one; 
 as where lands and tenements are given to a man and the 
 heirs of his hody, on Mary his now wife to he begotten: 
 here no issue can inherit, but such special issue as is 
 engendered between them two; not such as the husband 
 may have by another wife ; and therefore it is called special 
 tail. And here we may observe, that the words of inheritance 
 (to him and his heirs) give him an estate in fee : but they being 
 heirs to be by him begotten, this makes it a fee-tail; and the 
 person being also limited, on whom such heirs shall be begotten 
 (vi^., Mary his present wife), this makes it a fee-tail special. 
 Estates in general and special tail, are farther diversified by 
 the distinction of sexes in such entails ; for both of them may 
 either be in tail male or tail female. As if lands be given to a 
 man and his heirs male of his body begotten, this is an estate in 
 tail male general ; but if to a man and the heirs female of his 
 body on his present wife begotten, this is an estate tail female 
 special. And in case of an entail male, the heirs female shall 
 never inherit, nor any derived from them ; nor, e converso, the 
 heirs male, in case of a gift in tail'female." ^ 
 
 1 Ibid. to a man and the heirs of his body to 
 
 " 2 Blackst. Com. pp. *113-*115. be begotten on a designated wife, and 
 
 Also, Lit. §§ 14, 16, 21-25 ; 2 Prest. she dies before him without issue, he 
 
 Est. pp. *397-*405. See Pelham- has an " estate tail after possibility of 
 
 Clinton v. Newcastle (1902), 1 Ch. 34. issue extinct." Since, then, he can 
 
 When land is given at common law have no issue which can inherit the 
 
QUALIFIED FEES. 615 
 
 § 431. Incidents of Estates Tail. — How estates tail became 
 alienable, first by means of common recoveries and fines, and 
 ultimately by virtue of statute, has been already explained. 
 The owner of such an interest may now readily convey the 
 property in fee simple. ^ If he fail to do so, however, and die 
 leaving heirs of his body, they take it, not properly by descent 
 from him, but by virtue of the original gift to him " and the 
 heirs of his body " ; they take per formam doni, as it is said, by 
 substitutional gift from the original donor.^ For this reason, 
 and also because generally the statutes only authorize alienation 
 inter vivos, the fee tail remains undevisable, as at common law.^ 
 Its owner must complete the alienation of the property in fee 
 simple while he lives ; or at his death it will pass per formam , 
 doni to his issue if any ; or, there being no such issue, it will 
 revert to the original donor or his heirs.* Neither can the ten- 
 ant in tail, except by virtue of statute, encumber the property 
 witli his debts for a period longer than his life.^ 
 
 A tenant in tail has the same right to use the property that he 
 would have if he owned it in fee simple. He is not bound to 
 regard the interest of any succeeding owner ; but may commit 
 waste on the land if he choose." He is not required to pay off 
 encumbrances, nor except in special cases to keep down the in- 
 terest on them. When, however, he discharges an encumbrance 
 either wholly or partly, he is presumed to do so in favor of the 
 estate ; and he can not charge against the estate the amount so 
 paid, unless he takes an assignment of the claim or otherwise 
 
 land — the only wife by whom such Allen u. Allen, 2 Dru. & War. 307 ; 
 
 issue could have been born being dead Grey v. Mannock, 2 Eden. 339 ; § 443, 
 
 — this interest must terminate at his infra, 
 
 death ; it is, therefore, in substance l § 429, supra. 
 
 only a life estate; and it is so treated ^ Cruise, Dig. tit. ii. ch. ii. § 18 ; I 
 
 by the law, except in the single fact Leake, Land Law, p. 63 ; Jones v. 
 
 that he is not liable for waste. Lit. Jones, 2 Har. & J. (Md.) 281. 
 
 §§ 32-34; Co. Lit. 27 b; 2 Blackst. ^ (Jq. Lit. ma; Cro. Eliz. 805; 
 
 Com. pp. *124-*I26. Wms. E. P. p. *56; Theological Sem- 
 
 The common law also presents a few inary v. Wall, 44 Pa. St. 353. 
 instances of a " quasi entail," in which * Ibid. ; Bac. Abr. tit. Estates in 
 
 real property is given to A and the Tail (D). 
 
 heirs of his body during the life of B. ° Cruise, Dig. tit. ii. ch. ii. §§ 29-34; 
 
 This does not make an estate tail, sine*" Jenkins v. Keymes, 1 Lev. 237 ; Whar- 
 
 not being an estate of inheritance it is ton u. Wharton, 2 Vern. 3, and note; 
 
 unaffected by the statute de donis. If Waters v. Margerum, 60 Pa. St. 39. 
 A died before B and left issue, and no « Co. Lit. 224 a ; 4 Kent's Com. p. 
 
 statute affected the matter, such issue *18 ; Jervis v. Bruton, 2 Vern. 251 ; 
 
 as " special occupants " would take the Farabow w. Green, 108 N. C. 339. See 
 
 property during the rest of B's life. Matthews v. Hudson, 81 Ga. 120. 
 See Diilon ... Dillon, 1 Ball & B. 77 ; 
 
616 ESTATES IN REAL PROPERTY. 
 
 shows an intent to keep it alive in his own favor.^ The wife 
 of an owner of an estate tail, who is seised of the property, has 
 dower in it; and the husband of such an owner has curtesy; 
 these rights being incident to a fee tail the same as to a fee 
 simple.^ 
 
 Ordinarily, if two estates in one piece of real property come 
 into the same hands at the same time and in the same right, 
 . the lesser is " merged," or destroyed, by the greater. Thus, if 
 the owner of a life estate purchase the fee simple or the fee tail 
 in the land in reversion, the life estate is usually merged in the 
 fee ; and, if one person acquire both an estate for years and a 
 life estate, the latter may merge the former.* But in order to 
 prevent evasion of the statute de donis, it was early decided, 
 and has uniformly been held, that, if one person acquire both 
 the fee simple and the fee tail in the same piece of land, no 
 merger occur^ but he continues to own the two interests sepa- 
 rate and distinct.* To have held otherwise would have been to 
 nullify the statute de donis, because then the tenant in fee tail 
 could have destroyed it and rendered the property freely alien- 
 able simply by purchasing the reversion in fee simple.^ 
 
 § 432. Estates Tail at Present in England, and in the XTuited 
 States. — Estates tail are retained in England, and are largely 
 used in making marriage and family settlements.^ A quite 
 ordinary disposition of land there, for illustration, is to a hus- 
 band for life, and then to the oldest son of the marriage in fee 
 tail, and if he die without issue to the next son in fee tail, and 
 so on, and to the daughters ultimately if there be no sons or all 
 of them die without issue. There is generally also a provision 
 for the support of the wife and daughters out of the income of 
 the property.^ The result is that, after the oldest son becomes 
 twenty-one years of age, he may alien all or any part of the 
 property in fee simple (with the consent of his father, the life 
 owner, if still living),* and then it may be re-purchased and 
 
 1 Cruise, Dig. tit. ii. ch. i. §§ 40-42 ; « /n re Fothergill's Estate (1903), 1 
 1 Wash. R. P. (6th ed.) § 210. Ch. 149 ; Milbank v. Vane (1893), 3 
 
 2 Co. Lit. 224 a; Scribner on Dower, Ch. 79 ; Wms. R. P. pp. * 50, *51. 
 ch. i. §§ 2, 3. 7 This is substantially the form of a 
 
 ' 2 Blackst. Com. p. *177 ; Cruise, " strict settlement," so-called. 1 Leake, 
 
 Dig. tit. viii. ch. ii. §§ 36-42. Land Law, p. 335 ; Digby, Hist. Law 
 
 < 2 Blackst. Com. p. *178; Roe v. R. P. (5th ed.) p. 358, note; 3 Wash. 
 
 Baldwere, 5 T. R. 104, 110; Wiscot's R. P. Appendix A. 
 Case, 2 Rep. 61 . Pool v. Morris, 29 Ga. s Digby, Hist. Law R. P. (5th ed.) p. 
 
 374. 254. 
 
 6 Ibid. 
 
QUALIFIED FEES. 617 
 
 settled again ; and this may occur at the time of the marriage 
 of the oldest son, or at such other time and in such manner as 
 circumstances may require or the parties may choose. The 
 property is most commonly re-settled as before, and so retained 
 continuously in the same family .^ 
 
 Estates tail were brought to this country by the colonists, 
 and retained until after the Revolutiou, together with the power 
 of barring them by fines and common recoveries.^ Such inter- 
 ests, however, do not adjust themselves so readily to American 
 land law as to that of England. Legislation and adjudication, 
 in dealing with them and the fee conditional out of which they 
 arose by force of the statute de donis, have produced at least 
 five different results in the United States. First, in one or two 
 states, such as South Carolina, the statute de donis has never 
 been in force, and estates in fee conditional at common law 
 still exist.^ Second, more states (but much jless than the 
 majority), of which Maine, Massachusetts, Rhode Island, and 
 Delaware are examples, have the fee tail substantially as it 
 exists in England, but employ it less, and by statutes permit 
 its owner to convey the property in fee simple.* Third, in a 
 few other states, such as Connecticut and Ohio, a conveyance 
 to A. and the heirs of his body gives A a fee tail while he lives, 
 and a remainder in fee simple to his issue.^ Fourth, in some 
 states, among which are New Jersey, Illinois, Arkansas, and 
 Colorado, such a conveyance — to A and the heirs of his body 
 — gives a life estate to A, and a remainder in fee simple to his 
 issue or heirs.^ Fifth, but most of the states. New York, 
 
 1 " Primogeniture, therefore, as it ob- CoUaraore v. CoUamore, 158 Mass. 74; 
 tains among the landed gentry of Eng- Lippitt v. Huston, 8 R. I. 415, 424 ; Sut- 
 land, is a custom only, and not a right ; ton v. Miles, 1 R. 1. 348 ; In re Tilling- 
 though there can be no doubt that the hast, 25 R. I. 338 ; Caulk's Lessee v. 
 custom has originated in the right, Caulk (Del.), 52 Atl. Rep. 340. See 
 which was enjoyed by the oldest son, Ralston u. TruesdeU, 178 Pa. St. 429; 
 as heir to his father, in those days when Simpson ;■. Reed, 205 Pa. St. 53. 
 estates tail could not be barred." Wms. * Conn. Gen. Stat. § 2952 ; St. John 
 R. P. p. *51. V. Dann, 66 Conn. 401, 407 ; Ohio Rev. 
 
 2 4 Kent's Com. p. *U ; § 429, SMpro, Stat. § 4200; Phillips v. Herron, 55 
 and notes. Ohio St. 478, 489. 
 
 3 Burnett v. Burnett, 17 S. C. 545; 6 i N. J. Gen. Stat. (1895) p. 1195, 
 Mattison v. Mattison, 65 S. C. 345; §11; James v. Du Bois, 16 N. J. L. 
 Holman u. Wesner, 67 S. C. 307. See 285; In re Dowe, 68 N. J. Eq. 11; 
 Pierson v. Lane, 60 Iowa, 60; Jordan Kurd's Rev. Stat. 111. (1899) p. 403, §6; 
 V. Roach, 32 Miss. 481, 617. i Peterson u. Jackson, 196 111. 40 ; Spen- 
 
 * 1 Stim. Amer. Stat. L. § 1313 (c) ; cer v. Spruell, 196 111. 119 ; Ark. Dig. 
 Whittaker w. Whittaker, 99 Mass. 366 ; Stat. (1894) § 700; Mills' Stat. Col. 
 Coombs V. Anderson, 138 Mass. 376; (1831) §432. And see Chew «. Kellar, 
 
618 ESTATES IN REAL PEOPEBTY. 
 
 Pennsylvania, Michigan, Indiana, Kentucky, Georgia, and Cali- 
 fornia being prominent illustrations, have abolished the fee tail 
 by making it a fee simple in the first taker — have made a con- 
 veyance to A and the heirs of his body give to A an estate in 
 fee simple.^ (a) And it seems to be safe to assume that, 
 
 (a) In New York, estates tail were abolished, by being converted into 
 fees simple, on the 12th day of July, 1782. L. 1782, oh. 2, improved by L. 
 1786, oh. 12, passed February 23, 1786. The effect was that a conveyance 
 of real property to A and the heirs of his body gave him an estate in fee 
 simple ; and any attempt of the donor to give it over to another on any 
 contingency was then void. Thus, if the gj-ant were " to A and the heirs 
 of his body, but if A die without issue then to B and his heirs," the at- 
 tempted gift over to^ was void and A took the fee simple absolutely. 
 Thus thek^law remainM until Janilary 1, 1830. The Revised Statutes 
 (1 R. S. 7^, §§ 3, 4),Vhicn; then took effect, provided substantially the 
 same on thiVmatter as Vhe present law, which is Real Prop. L. § 32, and 
 which reads as \pllows : " Estates tail have been abolished ; and every es- 
 tate which would be adjudged a fee tail, according to the law of this 
 State, as it existed before the twelfth day of July, seventeen hundred and 
 eighty-two, shall be deemed a fee simple ; and if no valid remainder be 
 limited thereon, a fee simple absolute. Where a remainder in fee shall be 
 limited on any estate which would be a fee tail, according to the law of 
 this State, as it existed previous to such date, such remainder shall be valid, 
 as a contingent limitation on a fee, and shall vest in^TCSSession on the death 
 of the first taker, without issue living at the time of such death." The 
 last sentence quoted changed the effects of such a gift as that above de- 
 scribed for A and B. And since Jauuary 1, 1830, therefgjw, a conveyance 
 being made "to A and the heirs of his body, but if A die without 
 issue then to B and his heirs "; if A die leaving issue at the time of his 
 death, such issue take the property in fee simple ; but if A leave no issue 
 at the time of his death, it goes to B or his heirs in fee simple. And it is, 
 of course, still true that a conveyance merely " to A and the heirs of his 
 body " gives A an indefeasible fee simple. Jackson v. Van Zandt, 12 
 Johns. 169; Lion v. Burtiss, 20 Johns. 483; Lott i-. Wykoff, 2 N. Y. 355; 
 Lytle V. Beveridge, 58 N. Y. 592 ; Buel v. Southwick, 70 N. Y. 581 ; Nellis 
 V. Nellis, 99 N. Y. 505, 511; Matter of Moore. 152 N. Y. 602, 608; Har-' 
 riot V. Harriot, 25 App. Div. 245 ; Van Rensselaer v. Kearney, 52 U. S. 
 (11 How.) 297. 
 
 171 Mo. 215 ; Sammet u. City Eealty & i N. Y. L. 1909, ch,' 52, § 32 ; 1 Stim. 
 
 B. Co., 106 S. W. Rep. 614 (Mo.); Amer. Stat. L. § 1313 ; 4 Kent's Com. 
 
 Garth v. Arnold, 1 15 Fed. Rep. 468. In p. *14 ; Jackson v. Van Zandt, 12 Johns. 
 
 New Jer^gy, while a conveyance to A (N. Y.) 169 ; Matter of Moore, 152 N., 
 
 and the heirs of his body gives A only Y. 602 ; Kimmel v. Shaffer, 219 Pa. St. 
 
 a life estate, yet the husband or wife of 375 ; Mcllhinny v. Mcllhinny, 137 Ind. 
 
 A has curtsey or dower in the property. 411; Chamberlain w. Runkle, 28 lud. 
 
 James v. Du Bois, 16 N. J. L. 285 ; App. D99 ; Davis v. Davis, 23 Ky. Law 
 
 Redstrake v. Townsend, 39 N. J. L. 372 ; Rep; 1132 ; Ewing v. Shropshire, 80 Ga. 
 
 Weart v. Cruser, 49 N. J. L. 475 ; In re 374. 
 Dowe, 68N. J. Eq. 11. 
 
QUALIFIED FEES. 619 
 
 where the statutes are silent and the matter has not been be- 
 fore the courts, estates tail will never be recognized ; but a 
 conveyance to one and the heirs of his body will give him a fee 
 simple.! Especially is this probable in such states as Kansas, 
 Nebraska, Oregon, and Washington, where by statutes, as in 
 many other states, words of inheritance are not necessary for 
 the creation or transfer of a fee.'^ 
 
 (5). Estates in Fee on Condition. 
 
 § 433. Nature and Creation of Fees on Condition. — Condi- 
 ditions affecting real property interests may be either prece- 
 dent or subsequent ; and these two forms produce materially 
 different kinds of estates.^ The former kind causes the estate 
 to be future and contingent until, if ever, the designated event 
 occurs. Tlius, a conveyance "to A and his heirs, provided, 
 however, that he is not to own it until he marries B," gives 
 him a contingent estate' in fee simple, which will become abso- 
 lute and indefeasible upon liis marrying B.* The full discus- 
 sion of this form of condition belongs to the chapters on future 
 estates.^ The latter kind, the condition subsequent, which 
 is the kind most ordinarily thought of when an estate in fee 
 on condition is mentioned, lets the ownership and enjoyment 
 of the property become vested, but makes it subject to be di- 
 minished or defeated by the happening of a subsequent event.® 
 Such a contingency, annexed to an estate granted to one 
 and his heirs, or so conveyed to him that otherwise he would 
 have a fee simple, makes a fee on condition. An illustration 
 is furnished by a deed of land " to A and his heirs, but if he 
 marry B then to him for his life only," or by a devise " to A 
 and his heirs, provided, however, that they shall lose it if they 
 sell intoxicating liquor on the premises." ^ 
 
 This species of qualified fee, then, is produced by the use of 
 hypothetical or conditional words, such as " if," " but if," " pro- 
 vided that," " if so be," " upon condition," " provided, however," 
 
 1 1 Stim. Amer.Stat. L. § 1313 (D); (Mass.) 297; Nevins v. Gourley, 95 HL 
 4 Kent's Cora. p. *14. 206 ; 2 Blackst. Com. p. *154.' 
 
 2 2 Gen. Stat. Kan (1897) p. 599, * Ch. Ixii-lxT, infra. 
 
 § 2; Comp. Stat. Neb. (1899) § 4143 ; « Co. Lit. 201 a; 2 Blackst. Com. p. 
 
 HiU'B Ann. Laws Or. § 3005 ; Balli- •154. 
 
 ger's Ann. Code, Wash. § 4525 ; N. Y. ' Lit. § 325 ; Trustees of Union Col- 
 
 L. 1909, ch. 52, § 240. lege v. City of New York, 173 N. Y. 38 ; 
 
 Lake Superior, etc. Co. v. Cunningham, 
 
 ' Sie §§ 714, 715, infra. 
 
 * See Weston v. Foster, 7 
 
 Met. 155 U. S. 354. 
 
620 ESTATES IN REAL PROPEKTY. 
 
 etc.* These terms differ from what may be called limitational 
 expressions, in that they never indicate the running along of 
 time, but simply refer to the happening or not happening of 
 some uncertain event.^ 
 
 § 434. Distinctive Features of Fees on Condition. — The im- 
 portant, distinctive characteristic of a fee on condition subse- 
 quent is that the mere breach of the condition does not in itself 
 defeat nor diminish the estate. It simply gives t6 the grantor, 
 or his heirs, or their successors in interest, the right to re-enter 
 and take back the property ; and this latter act, or its equiva- 
 lent, must be done before the title of the holder on condition is 
 divested.^ Thus, if land be conveyed to A and his heirs on 
 condition that they continue to live there, he does not lose it 
 merely by ceasing to live there ; but for such a breach the 
 grantor may re-enter and thus defeat the estate.* These two 
 events — breacii of the condition and re-entry or its equivalent 
 — must occur before such an estate is destroyed. And, when 
 both have occurred, the property goes back to the grantor or 
 his heirs or successors in interest ah initio ; that is, they re- 
 acquire the property in the same plight as if the estate on con- 
 dition had never existed, and all the liens aiid interests which 
 the holder on condition may have created are thereby entirely 
 swept away.^ In a word, a fee on condition is an estate to one 
 and his heirs, created by hypothetical or conditional expres- 
 sions, and such that in order to its being defeated both breach 
 of the condition and re-entry by the grantor or his heirs or 
 successors in interest are necessary. It is sufficient to explain 
 it thus far at this place. The characteristics of all forms of 
 estates on condition are discussed in a subsequent chapter.® 
 
 (c). Estates in Fee on Limitation. 
 
 § 436. Nature and Creation of Fees on Limitation. — A fee on 
 limitation (or collateral, or special, limitation, as it is more com- 
 monly described) is one made by the use of words denoting dura- 
 
 1 Lit. §§ 328-331; Portington's Case, 58 Me. 73; Bowen w. Bowen, i8_Conn. 
 10 Rep 35 a, 41 b ; Stanley i'. Colt, 72 asSjJJreen v. Pettingill, 47 nThTSTST^ 
 
 U. S. (5 Wall) 119; Laugley v. Cha^^-''''^* Ibid. 
 
 pin, 134 Mass. 82. 6 Moore v. Pitts, 53 N. Y. 85 ; McKel- 
 
 2 §§ 71 1, 723, infra. way v. Seymour, 29 N. J. L, 321 ; VVin- 
 
 8 United States v. Tenn. & C. R. Co. nepesaukee C. M. Ass'n v. Gordon, 67 
 
 1 76 U. S. 242 ; United States v. Lough- N. H. 98 ; Co. Lit. 201 a, n. 84 ; 1 Prest. 
 
 rey, 172 U. S. 206; Fonda v. Sage, 46 Est. p. *46. | i 
 
 Barb. (N, Y.) 109 ; Upington v. Corri- « Cli. Iv, infra. 
 
 gan, 151 N. Y. 143 ; Osgood v. Abbott. 
 
QUALIFIED PEES. 621 
 
 tion of time, such as " while," " during," " so long as," and the 
 like — expressions that are translations of donee} Words of in- 
 heritance are first employed (where necessary) to create a fee ; 
 and then it is added that the estate is to continue during the 
 running along of some designated period or series of occur- 
 rences. Illustrations are, a transfer of property " to A and his 
 heirs while they continue to live there " ; " to William Penn and 
 his heirs so long as the waters of the Delaware River shall 
 flow," and "to B and his heirs until C returns from Rome." ^ 
 The distinction in form between such fees and the fees de- 
 scribed in the preceding section — made by hypothetical or 
 conditional expressions — is plainly apparent.^ 
 
 § 436. Distinctive Features of Fees on Limitation. — The 
 important, distinctive characteristic of a fee on limitation is 
 that it ends naturally and instantly at the expiration of the 
 period indicated in its creation ; and no re-entry by any one is 
 needed to bring it to a termination. The property then returns, 
 or reverts, of itself to the donor or his heirs or successors in in- 
 terest.* Thus, when land is granted " to A and his heirs while 
 they live there," the title in fee simple goes back at once to 
 the grantor on A's moving away from tlie land ; aad if A con- 
 vey property " to B and his heirs until C returns from Rome," 
 it reverts to A on the instant of C's return.^ In a word, a fee 
 on limitation is one made to continue during the runninsr along 
 of some specified period; and is such that, at the expiration of 
 that period, the property is to return naturally and witliout any 
 other act to its original owner or his successors in interest. 
 Estates on limitation generally are also more fully discussed in 
 a subsequent chapter.® 
 
 (cZ). Estates in Fee on Conditional Limitation. 
 
 § 437. Nature and Creation of Fees on Conditional Limita- 
 tion. — A fee on conditional limitation is made by conveying 
 property to one person in fee, and then declaring that on the 
 
 1 Co. Lit. 214 b ; 2 Blackst. Com. p. ^ Last two preceding notes. 
 
 *I55 ; 1 Prest. Est. p. *28 ; Crabb, R. P. ^ Ibid. ; 1 Prest. Est. pp. *42-*44, 
 
 §2135. *440; Leonard v. Burr, 18 N. Y. 96; 
 
 ^ Ibid.; Chase's Blackst. p. 294 ; Hat- First Univ. Soc. of N. Adams v. Boland, 
 
 field w. Sneden, 54 N. Y. 280, 285. 155 Mass. 171; Owen v. Field, 102 
 
 » ' Portington's Case, 10 Rep. 35 a. Mass, 90; Morris C. &B. Co. v. Brown, 
 
 41 b ; Henderson v. Hunter, 59 Pa. St. 27 N. J. L. 13. 
 335, 340 ; Shep. Touchst. p. *125 ; §§ ^ Ch. Iv, infra. 
 
 723-726, infra. 
 
622 ESTATES IN REAL PROPEETT. 
 
 happening of some designated event it shall depart from him 
 and go over to another person in fee. When the event occurs, 
 the land is not to return to its original owner or his successors 
 in intei'est, but is to go over, or shift, to a third party .^ The 
 words which denote this may be either conditional or limita- 
 tional in form ; and the result will be the same. Thus, either a 
 grant of land " to A and his heirs, but if he cease to live there 
 then to B and his heirs " ; or a devise of realty " to A and his 
 heirs so long as they remain tenants of the manor of Dale, and 
 on their ceasing to be such tenants to B and his heirs," makes 
 a fee on conditional limitation.^ When such an interest as 
 this is properly created, the happening of the designated event 
 terminates the estate of the first holder ; and the title to the 
 property passes in fee simple to the other person, without any 
 entry or other act, either by him, or by the grantor or his heirs.^ 
 
 § 438. Distinctive Features of Fees on Conditional Limita- 
 tion — Common-La-w Objection to Such Fees. — The important, 
 distinctive characteristic of a fee on conditional limitation is 
 the fact that a third 'party is to take the property on the hap- 
 pening of the designated event. When a fee is on limitation, the 
 occurrence of the event alone takes it back to the grantor, or to 
 his heirs or successors in interest; when it is on condition, 
 such occurrence and re-entry by the grantor, or his heirs or 
 successors in interest,' take it back to them ; when it is on condi- 
 tional limitation, such occurrence per se takes it over to some 
 other person or persons,* 
 
 The fee on conditional limitation was objectionable to the 
 common-law courts; because it involved an attempt of the 
 grantor, after giving a fee simple to one person, to take it from 
 him in the future and bestow it on another. A fee, declared 
 the judges, could not be thus limited, or " mounted " on a fee.^ 
 The efforts of lawyers and landowners to overcome this diffi- 
 culty have given rise to some of the nicest and most technical 
 results in the law of real property.^ These are explained here- 
 after, in discussing shifting uses and executory devises — the 
 two methods whereby estates on conditional limitation could 
 be brought into being before they were allowed by modern 
 
 1 Cruise, Dig. tit. xvi. ch. ii. § 30 ; * Chase's Blackst. p. 294, n. ; 1 Preat. 
 Chase's Blackst. p. 294, n; Brattle Sq. Est. pp. *39-*60 ; §§ 727-730, infra. 
 
 >Church V. Grant, 3 Gray (Mass.), 142; ^ Co. Lit. 271 h; 2 Blackst. Com. p. 
 
 Hatfield v. Sneden, 54 N. Y. 280. *334; Cruise, Dig. tit. xvi. ch. ii. § 29 ; 
 
 2 Ibid. ; §§ 726, 727, infra. Hatfield v. Sneden, 54 N. Y. 280. 
 » Ibid. ; §§ 726, 727, infra. 6 § 730, infra. 
 
QUALIFIED PEES. 623 
 
 statutes.^ And it will be sufficient here to note that, by those 
 two methods, and, as the result of legislation in most jurisdic- 
 tions, by means of any ordinary form of conveyance also, a fee 
 on conditional limitation may now be created.^ (a) 
 
 (a) In New fork, since January 1, 1830, it has been possible to make 
 a fee on conditional limitation freely, by either devise or deed. Before 
 that date, it could be made only by devise, or by a deed which created it 
 in the form of a shifting use. The statutes, which were originally 1 E. S. 
 725, §§ 24, 27, and are now Real Property Law (L. 1909, ch. 52), §§ 50, 53, 
 provide as follows : — " Subject to the provisions of this article, ... a fee 
 or other lesser estate may be limited on a fee, on a contingency which, if it 
 should occur, must happen within the period prescribed in this article." . . . 
 " A remainder may be limited on a contingency, which if it happens, will 
 operate to abridge or determine the precedent estate ; and every such re- 
 mainder shall be a conditional limitation." The word "remainder" is 
 here employed in a broad, general sense. And the "provisions of this 
 article " mean the provisions which forbid too great a suspension of the 
 absolute power of alienation of the property. These are explained here- 
 after. Ch. Ixx, infia. It is sufficient at this point to note that such estates 
 have been possible, made by any ordinary form of conveyance, since Janu- 
 ary 1, 1830. See Hatfield v. Sneden, 54 N. Y. 280 ; Embury v. Sheldon, 
 68 N. T. 227; § 729, note (a), infra. 
 
 1 §§ 728-729, jn>a. N. Y. L. 1909, ch. 52, §§ 50, 53; 1 
 
 2 Stat. 40 and 41 Vict. ch. 33 ; Digby, Stim. Amer. Stat. L. §§ 1424, 1426. 
 Hist Law R. P. (5th ed.) pp. 362, 382 ; 
 
(2) Freehold Estates not of Inheritance — Life Estates. 
 CHAPTER XXVIII 
 
 NATURE AND KINDS OF LIFE ESTATES. 
 
 § 439. General nature of life es- I § 440. Classification of life es- 
 tates. I tates. 
 
 § 439. General Mature of Life Estates. — Among the most 
 ancient forms of interests in realty are the life estates.-^ The 
 hertefioium, or benefice, of early feudalism has been heretofore 
 noticed, as a grant for the life of the grantor or grantee.^ 
 Greater interests, the fees, were developed in time ; but the 
 life ownerships remained ; and they have always been treated 
 as worthy of a free man, just as they were in their original 
 form. They are the least of the freehold estates. He who 
 owns a piece of land for life is as truly a freeholder as is he 
 who owns a piece in fee simple.^ Indeed, the word " free- 
 hold" has sometimes been used to describe a life interest 
 merely, as distinguished from a fee.* But this meaning of 
 the word is not now common, in this country at least; and 
 where it is found the context usually makes it clear.^ (a) The 
 life-owner — or life-tenant, as he is commonly styled ® — more- 
 over, has more than the mere usufruct of the land ; he owns 
 
 (o) In New York, "Estates of inheritance and for life, shall con- 
 tinue to be termed estates of freehold; estates for years are chattels 
 real; and estates at will or by sufferance, continue to be chattel interests, 
 but not liable as such to sale on execution." Real Prop. L. § 33, origin- 
 ally 1 K. S. 722, § 5. 
 
 1 Wms. R. P. p.*17. « " And it is to te understood that 
 
 2 § 251, supra. there is a feoffor and feoffee, donor and 
 5 2 Blackst. Com. p. *120; Cruise, donee, lessor and lessee. Feoffor is 
 
 Dig. tit. iii. ch. i. § 1. properly where a man enfeoffes another 
 
 * Bracton, f. 17 b. Smith, Eeal & in any lands or tenements in fee simple, 
 
 Pers. Prop. p. 123. he which maketh the feoffment is called 
 
 s In this narrow sense it is more the feoffor, and he to whom the feoff- 
 
 frequently used in England than in ment is made is called the feoffee. And 
 
 this country. Smith, Eeal & Pers. the donor is properly where a man 
 
 Prop. p. 123. See 1 Stim. Amer. Stat. giveth certain lands or tenements to 
 
 L. § 1310. ' another in taile, he which maketh the 
 
NATURE AND KINDS OF LIFE ESTATES. 625 
 
 it in freehold as truly as does the fee-owner thus own his in- 
 terest.^ The fundamental difference between his interest and a 
 fee simple is in quantity — one is finite, the other infinite; 
 one is a straight line of ownership stretching away to infinity, 
 the other a straight line of ownership measured by a life or by 
 lives.^ The life estates are the freeholds not of inheritance. 
 
 The expression " life estates " is to be thought of as com- 
 prising a well-defined class of interests, some of which may 
 not continue during any specified life or lives, but all of which 
 are freehold estates not of inheritance. Any estate that may 
 last for a life or lives, that is not inheritable, and that is not 
 at will nor for any fixed period of time, is placed in this 
 category.^ For example, an interest granted to a widow so 
 long as she remains unmarried, or to a man while he continues 
 to live in a certain house, or to A until a designated tree falls, 
 is a life estate.* A woman, having land during her widow- 
 hood, may terminate her ownership, by marrying, the day after 
 she acquires it ; yet, for the twenty-four hours during which 
 it is hers, she has a life estate, subject to all the principles, 
 rights, and duties of life interests in realty.^ The indefinite 
 duration of the estate and the fact that it may continue for 
 life place it within that class. 
 
 § 440. Classification of Life Estates. — Life estates are 
 classified, according to the manner in which they are created, 
 into a, ponventional life estates, or those made by act, con- 
 tract, or convention of the parties ; and J, Legal life estates, 
 or those made by operation of law. a. As appears from the 
 preceding section, the first of these groups, the conventional 
 life estates, are naturally subdivided into : (a) An estate to 
 
 gift is called the donor, and he to whom potentially infinite, quantity ; we see a 
 
 the gift is made is called the donee. difference in respect to duration, and 
 
 And the lessor is properly where a man this is the one fundamental difference." 
 
 letteth to another lands or tenements 2 Poll. & Mait. Hist. Bng. L. (2d ed.) 
 
 for terme of life, or for terme of years, p. 10. 
 
 or to hold at will, he which maketh the ' Co. Lit. 42 a; 2 Blackst. Com. p. 
 
 lease is called lessor and he to whom *121 ; Hewlins v. Shippam, 5 B. & C. 
 
 the lease is made is called lessee.'' Lit. 221 ; McArthur v. Scott, 113 U. S. 340, 
 
 § 57 ; Wms. R. P. p. * 22. 377. 
 
 1 2 Poll. & Mait. Hist. Eng. L. (2d * Ibid.; 4 Kent's Com. p. *26 ; Peo- 
 ed.) p. 8. pie ■•■. Gillis, 24 Wend. (N. Y.) 201 ; 
 
 2 "Proprietary rights in land are, Mansfield v. Mansfield, 7^ Me. .509; 
 we may say, projected upon the plane Hayward v. Kinney, 84 Mich. 591 ; 
 of time. The category of quantity, Sims u. Gay, 109 Ind. 501. 
 
 of duration, is applied to them. The ^ Such interests are life estates on 
 
 life-tenant's rights are a finite quantity ; limitation, 
 the iee-tenant's rights are an infinite, or 
 
 40 
 
626 ESTATES IN REAL PROPERTY. 
 
 one for his own life, illustrated by an estate to A as long as he' 
 lives; (b) An estate per autre vie, or to one person during 
 the life of another, illustrated by an estate to X as long as Y 
 lives ; and (c) An estate for an uncertain period, which is not 
 inheritable nor at will and may last for life, illustrated by an 
 estate to X while a designated tree shall stand, or to Y so long 
 as he continues to live on the land} These naay be combined 
 or modified in various ways, as will more fully appear here- 
 after ; but they are all of the ultimate, logical classes of conven- 
 tional life interests. Of these three forms, the estate per autre 
 vie is regarded as the smallest ; and it has always been treated 
 as the least of all the freehold interests.^ b. All the legal life 
 estates arise — are implied by law — from the relationship of 
 husband and wife. They are : (a) Qurtesy — the l ife inter est 
 )i a husband in all the real property of which his wife was 
 beneficially seised of an estate of inheritance during the cover- 
 ture, provided a child was born of the marriage, born alive during 
 the life of the wife and capable of inheriting the property; 
 (b) Dower — the life interest of a wife in one third of the real 
 property of which her husband is beneficially seised of an estate 
 of inheritance during the coverture ; (c) Jointure — a provision 
 or settlement of property by or for a husband upon his wife, to 
 be taken by her in lieu of dower; and (d) Estates during mar- 
 riage — estates, exclusive of curtesy, dower, and jointure, which 
 husband and wife have , in each other's real property during 
 coverture ; such, for example, as the husband's common-law 
 interest in, and right to the income from, his wife's real property 
 during the married life.^ 
 
 In the discussion of these life interests, a chapter will first 
 be devoted to the creation and distinctive features of those that 
 are conventional. Then a separate discussion will be given to 
 the special characteristics of each of the four legal life estates. 
 And, finally, the rights and duties incident to all life tenancies, 
 however created, will be explained. Some of the most interest- 
 ing of all legal questions are presented by^ these lesser forms of 
 freehold estates in real property. 
 
 1 Lit. §56; Co. Lit. 42 a; 2 Blackst. the legal life estates. "This estate is 
 Com. p. *121 ; Cruise, Dig. tit. iii. ch. of an amphibious nature, partalcing 
 i. §§ 3-8. partly of an estate tail and partly of an 
 
 2 2 Blackst. Com. p. *121 ; Wms. R. estate for life." 2 Blackst. Com, pp. 
 P. pp. *17, *22; 1 Spence, Eq. Jur. p. *124, *125; Cruise, Dig. tit. iv. It is 
 144; Rosse's Case, 5 Rep. 13 a. of very little practical importance in 
 
 3 An estate tail after possibility of this country ; and is sufficiently ex- 
 issue extinct has been grouped with plained in the note to § 430, supra. 
 
CHAPTER XXIX. 
 
 a. CONVENTIONAL LIFE ESTATES. 
 
 § 441. Forms of conventional life 
 estates — Merger. 
 
 § 442. (a) Estates for one's own 
 life. 
 
 § 443. (6) Estates per autre vie. 
 
 § 444. (c) Estates for uncertain 
 periods, which are not inheritable 
 nor at will, but may last for life. 
 
 § 441. Forms of Conventional Life Estates — Merger. — The 
 three forms of conventional life estates — for one's own life, 
 for the life of another, and for an uncertain period which is not 
 inheritable nor at will but may last for life — have been briefly 
 described and illustrated. These may exist separately, and gen- 
 erally do so ; or they may be combined and so may make special 
 forms of life interests. Thus, real property may be conveyed 
 to A for the term of his own life and the life of B ; in which 
 case A's interest will continue until both he and B are dead, 
 , for he has one estate of freehold to last during the two lives 
 and the life of the survivor.^ So, an estate may be conferred 
 upon A during the lives of B and C ; and this will continue 
 during the life of the survivor of B and G, unless a contrary in- 
 tent is expressed. And an estate may be made to last during 
 the joint lives of B and C, so that it will terminate at the death 
 of that one of them who dies first.^ At common law, estates 
 measured by any number of lives in being may be created by 
 any of these forms of expression ; and they will fall within the 
 category of conventional life estates.* They are simply meas- 
 ured by, or associated with, more lives than one. They are 
 subject to the same legal rules and principles as are the simpler 
 forms of estates for life, (a) 
 
 (a) In New York, the number of possible, successive life estates, one in 
 remainder after the other, is practically restricted to two — for two persons 
 in being — by the statute which declares that : " Successive estates for life 
 
 Cadell V. 
 
 1 Rosse's Case, 5 Rep. 13 a. 
 
 2 1 Leake, Land Law, p. 190. 
 
 8 Duke of Norfolk's Case, 3 Ch. Cas. 
 
 1 ; 1 Veruon's Case, 165 ; 
 Palmer, 1 CI. & Fin. 372. 
 
628 ESTATES IN EEAL PROPERTY. 
 
 If a person obtain by separate transactions two distinct life 
 estates in the same land, one for his own life and the other per 
 'autre vie, since the former is regarded as the greater, it merges 
 and destroys the latter, unless a contrary intent is expressed. 
 Thus, if A who owns a lot of land for his own life should ac- 
 quire B's life interest in the same lot and fail to express an 
 intention to hold them separate, he would have only the estate 
 for his own life.^ "But this doctrine . . . does not prevent 
 the creation of one estate in a person with the several connected 
 limitations, both for his own life and the lives of others ; and 
 if he dies before the other persons on whose lives the estate de- 
 pends, the estate continues, as in the ordinary case of an estate 
 per autre vie." ^ That is, as above illustrated, an estate, created 
 by one transaction, to A for his own life and for the life of B, 
 endures as long as either of them lives. 
 
 These special and rare combinations of life estates having 
 been noticed, the way is cleared for a brief, separate discussion 
 of each of the primary forms of conventional life estates — (a) 
 the estate to one for his own life, (b) the estate per autre vie, 
 and (c) the estate for an uncertain period, which is not inherit- 
 able nor at will but may last for life. 
 
 § 442. (a) Estates for One's Own Life. — Of course, the most 
 natural method of giving one a life estate is by conveying the 
 property to him " for his life," or by using equivalent words. 
 And usually when the expression employed does not clearly 
 specify the life by which the interest is to be measured, as when 
 for example the grant is made by an owner in fee, to one " for 
 life," it is held that the grantee's life is meant.* This is be- 
 cause an estate for the grantee's own life is more valuable to 
 him than an estate for the life of another ; and the instrument 
 
 shall not be limited, except to persons in being at the creation thereof; and 
 ■where a remainder shall be limited on more than two successive estates for 
 life, all the life estates subsequent to those of the two persons first entitled 
 thereto, shall be void, and on the death of those persons, the remainder 
 shall take effect, in the same manner as if no other life estates had been 
 created." — A conveyance to A for life, then to B for life, then to C for 
 life, and then to D and his heirs (A, B, C, and D being all in being) gives a 
 life estate to A, a life estate to B, and a fee simple to D, but nothing to C. 
 Real Prop. L. § 43, ori^nally 1 R. S. 723, § 17. See Purdy v. Hayt, 92 
 N. Y. 446 ; Woodruff v. Cook, 61 N. Y. 638 ; Matter of Moore, 152 N. Y. 
 602 ; § 873, note (a) infra ; § 962, note (a), infra. 
 
 1 Bowles' Case, 11 Rep. 83 b; Co. « Shaner w. Wilson, 207 Pa. St. 550; 
 Lit. 41 b. See § 431 , supra ,■ §866, m/ro. Co. Lit. 42 a; 1 Leake, Land Law, p. 
 
 2 1 Leake, Land Law, p. 190. 191 ; Page on Wills, § 570. 
 
CONVENTIONAL LIFE ESTATES. 629 
 
 is construed most strongly against the grantor.^ But, when 
 one who himself owns onl}- a life estate or a fee tail transfers 
 the land to another for life without designating whose life, it 
 is taken to mean the life of the grantor, because otherwise it 
 might result in an attempt to interfere with the rights of the 
 succeeding ownei\^ 
 
 At common law, moreover, as was explained in discussing 
 estates in fee simple,'^ a mere conveyance of realty by an owner 
 in fee, without using words of inheritance (heirs) or restricting 
 the estate in time, gives to the grantee or devisee a life estate 
 only — a grant or devise " to A," or " to A forever," or " to A 
 and his assigns," made by a fee-owner (other than the owner 
 of a fee tail) confers upon A an estate during his own life* 
 But, here too, when the grantor has only a life estate or a fee 
 tail, such a grant makes an estate merely for the life of the 
 grantor.^ By modern legislation generally, and, in some states 
 where the statutes are silent, by the courts' construction, this 
 common-law creation of life estates is abolished; and he to 
 whom real property is conveyed takes all the interest of the 
 grantor or testator, unless an intent to transfer a different 
 estate is clearly expressed.^ (a) 
 
 Estates for one's own life may also arise by implication of 
 law, especially in the construction of wills. Thus, if A devise 
 land to his heir " after the death of B," since no one but A's heir 
 can take the property except through the will, and his rights 
 are postponed till the death ofB^it is held that^ meanj^ gift 
 oLihe-property to B for his lifeT^ So, wherTA devises realty to 
 C " after the death of my heir D," he gives to D by implication 
 an estate during D's own life.^ 
 
 In summary, it may be said that an estate for one's own life 
 
 (a) In New York, this change, as to both wills and deeds, took efEect 
 January 1, 1830. See this explained at § 420, note (a), supra. 
 
 1 Ibid. § 240; Stat. 1 Vict. ch. 26, § 28; 44 & 
 
 2 Ibid.; 2 Blackst. Com. p. •121 ; 45 Vict. ch. 41 ; 1 Stim. Amer. Stat. L. 
 Broom, Leg. Max. p. *458. §§ 1474, 2808 ; 1 Sharsw. & B. Lead. 
 
 8 § 418, supra. Cas. R. P. p. 145 et seq; § 420, supra. 
 
 * Co. Lit. 42 a; 2 Jarm. Wills, p. ' But, if the gift were to a stranger 
 
 1131 ; 1 Leake, Land Law, p. 191 ; In re to the testator, after the death of B, no 
 
 Sanford (1901), 1 Ch. 939; /nr^Sunder- such implication would arise, for the 
 
 land's Estate, 203 Pa. St. 155 ; Morrison property would then go to the testator's 
 
 V. Schorr, 197 111. 554. heir during B's life. 1 Jarm. Wills, 
 
 5 Ibid. pp. *466, *475. 
 
 6 This is especially true as to trans- ^ Ibid. See Anderson v. Anderson, 
 fers by wiU. N. Y. L. 1909, ch. 52, 191 111. 100. 
 
630 ESTATES IN REAL PEOPERTY. 
 
 is the courts' favorite among the conventional life estates ; and 
 such an interest vrill emerge whenever a life estate is created 
 bj the parties, expressly or by implication, and is not otherwise 
 moulded by special circumstances or declaration of intent. 
 
 § 443. (6) Estates Per Autre Vie. — It is probable that the 
 estate per autre, vie (for another's life) originated in assign- 
 ments by life owners of their interests to other persons.^ A, 
 holding land for his own life, would transfer it to B ; and so 
 B would become the owner of an estate during the life of A. 
 Such interests may be created, either in that manner, or by ex- 
 press conveyance of real property to one person during the life 
 of another.2 The person whose life is thus made to measure 
 the duration of the estate is called cestui que vie. 
 
 The most distinctive common-law feature of estates per autre 
 vie was their capability of giving rise to title by occupancy. 
 For, if the owner of such an interest died before cestui que vie, 
 there was ordinarily no one who had any absolute right to the 
 property during the rest of the latter's life. " It did not revert 
 to the grantor, though it formerly was supposed so to do ; for 
 he had parted with all his interest, so long as cestui que vie 
 lived : it did not escheat to the lord of the fee, for all escheats 
 must be of the absolute entire fee, and not of any particular 
 estate carved out of it; much less of so minute a remnant as 
 this : it did not belong to the grantee ; for he was dead : it did 
 not descend to his heirs ; for there were no words of inheri- 
 tance in the grant : nor could it vest in his executors ; for no 
 executors could succeed to a freehold." ^ Neither could it be 
 devised by his will.* If, then, the conveyance of the life estate 
 had been simply to A during the life of B, and A died before 
 B, the person who could first acquire possession of the land 
 after A's death would owij it for the rest of B's life, and was 
 called a " general occupant." But if the land had been con- 
 veyed to A and his heirs during the life of B, and A died before 
 B, A's heirs would take it for the residue of B's life as " special 
 occupants." That is, whenever the life tenant died before ces- 
 tui que vie, title by occupancy would pass to some person, who 
 took possession of the land, during the rest of the life of cestui 
 que vie ; it would be " special occupancy " if by right arising 
 
 1 Challis, R. P. p. 43. * The power to devise it was not 
 
 2 Co. Lit. 41 b ; Cruise, Dig. tit. iii. given by the statute of wills ; but this 
 ch. i. § 3 ; 4 Kent's Com. p. *25. was corrected by the statute of , frauds, 
 
 3 2 Blackst. Com. p. *259; Co. Lit. 29 Car. II, ch. 3. § 12. See history of 
 41 b. alienation by will, § 277, supra. 
 
CONVENTIONAL LIFE ESTATES. 631 
 
 from the words of the conveyance per autre vie that person 
 were the heir of the deceased life owner ; otherwise it would be 
 "general occupancy."^ 
 
 General occupancy was abolished in England by the statute 
 of frauds,^ which in this respect was substantially re-enacted 
 by the statute 14 Geo. II. ch. 20, and again by the Wills Act, 
 1 Vict. ch. 26. These statutes provide that an estate per autre 
 vie may be devised by its owner, and that, if not so devised, and 
 in the absence of any special occupancy, it shall pass to his ex- 
 ecutors or administrators and become assets in their hands in 
 the same manner as his personal property. Thus, li is a free- 
 hold estate while he lives, and, if not disposed of by his will, nor 
 taken by any special occupant, it becomes a chattel real, a part 
 of his personal assets, after his death.^ In many of the United 
 States, legislation lias gone even farther than this, and abolished 
 both forms of occupancy.* In most of the states where this has 
 occurred, such for example as New York, Michigan, Minnesota, 
 and Wisconsin, an estate per autre vie, whether conveyed to 
 one and his heirs or otherwise, is a freehold only during the life 
 of the grantee or devisee ; and after his death it is a chattel 
 real — an estate to A, or to A and his heirs, for the life of B, 
 is a life estate while both A and B live ; but if A die before B, it 
 becomes a chattel real in the hands of A's executors or ad- 
 
 1 Co. Lit. 41 b; 2 Blackst. Com. p. A and his executors or administrators 
 
 *259. But where the king had the re- during the life of B, A's executors or 
 
 version no occupancy was allowed, "be- administrators could take it as special 
 
 cause mullum tempus occurrit regi ; nor occupants. This has become merely an 
 
 could there be any general occupancy academic question, since the statute of 
 
 of incorporeal hereditaments, because frauds ; for if A sliould die before B 
 
 of these there could be no physical po.s- and not will away the life interest, in 
 
 session." Ibid. ; Cruise, Dig. tit. iii. England his executors or administra- 
 
 ch. i. §§ 43, 44. tors would take it anyhow, either as 
 
 A special occupant does not take the special occupants or by virtue of the 
 property by descent, since the interest statute ; and in this country the result 
 of his ancestor being only a life estate would be the same, except as it might 
 is not inheritable. It is the fact that he be affected by local legislation. See 
 is heir that enables him to take by pur- Co. Lit. 41 b ; Cruise, Dig. tit. iii. ch. i. 
 chase by virtue of the words of convey- §§ 49-56, tit. xxviii. ch. 2, § 7 ; Challis, 
 ance;)cr- autre vie to his ancestor and his R. P. p. 289 ; Atkinson v. Baker, 4 T. R. 
 heirs. Yet the ancestor may bar the 229 ; Ripley v. Waterworth, 7 Ves. 
 right of the heir by alienation of the 425 ; legislation settling the matter, ex- 
 entire estate per autre vie. 2 Blackst. plained in the following paragraph of 
 Com. p. *260 ; Challis, R. P. pp. 288- this section. 
 290. See §§ 91, 92, supra. 2 29 Car. IL ch. 3, § 12. 
 
 There has been some discussion, re- ' Stat. I Vict. ch. 26, § vi. 
 
 suiting in no absolute decision, as to ^1 Stim. Amer. Stat. L. §§ 1310, 
 
 whether, if property were conveyed to 1335. 
 
632 ESTATES in'keal peopertt. 
 
 ministrators.^ (a) In other states, of which Massachusetts and 
 North Carolina are illustrations, it is retained as a freehold in- 
 terest, and made descendible to the heirs of its owner in case 
 he dies before cestui que vie without willing it away — an estate 
 to A, or to A and his heirs, for the life of B, is not only a free- 
 hold for A while both he and B live, but it remains a freehold 
 for A's heirs or devisees in case he dies before B.^ The gen- 
 eral result, also, of the statutes in this country is that the 
 owner of an estate per autre vie, who dies before cestui que vie, 
 may will it away, whether it thus passes as a freehold interest 
 as it must in some of the states, or as a chattel real as it must 
 in others.^ 
 
 Because of the temptation for the owner of an estate per 
 autre vie to conceal the death of cestui que vie, and thus to pro- 
 long his own holding of the property, it was provided by the 
 statute 6 Anne, ch. 18, that the owner of any subsequent inter- 
 
 (o) In New York, " An estate for the life of a third person, whether 
 limited to heirs or otherwise, shall be deemed a freehold only during the 
 life of the grantee or devisee ; after his death it shall be deemed a chattel 
 real." Real Prop. L. § 34, originally 1 R. S. 722, § 6, which followed 
 closely 1 R. L. 365, § 4, and part of the statute 14 Geo. II. ch. 20, § 9. 
 Therefore, on the death of the owner of such an estate while cestui que vie 
 is living, the property passes, as a chattel real, to the executors or admin- 
 istrators of the deceased, and becomes assets of his estate, in the same man- 
 ner as his personal property. An estate per autre vie has probably always 
 bfeen devisable in that state, and was expressly declared to be so by L. 1813, 
 oh. 23 (1 R. L. 365, § 4). Gillis v. Brown, 5 Cow. 388; Wright v. Trustees 
 of M. E. Church, 1 Hoffm. Chan. 201, 225 ; Crooked Lake Nav. Co. v. 
 Keuka Nav. Co., 37 Hun, 9, 13 ; Powell on Devises, p. 138. 
 
 At common law, an estate /ler autre vie could be validly measured'by any 
 number of lives in being — it could be given tq A during the lives of B, C, 
 D, E, etc., and the survivors and survivor of them as long as any of them 
 should live. But the practical effect of the New York statutes is to restrict 
 its duration to not more than two lives in being; for "When a remainder 
 is created on any such life estate, and more than two persons are named as 
 the persons during whose lives the life estate shall continue, the remainder 
 shall take effect on the death of the two persons first named, as if no other 
 lives had been introduced." A conveyance to A during the lives of B, C, D, 
 and E, with remainder to X and his heirs, gives to A an estate /ler autre vie 
 measured by the lives of B and C only, and a remainder to X to be taken 
 in possession by him when B and C are both dead. Real Prop. L. § 45, 
 originaUy 1 R. S. 724, § 19. See § 962, note (a) infra. 
 
 IN. Y. L. 1909, ch. 52, § 34; 1 « Last three preceding notes ; 1 Stim. 
 
 Stim. Amer. Stat. L. § 1310. Amer. Stat. L. § 2630; 1 Wash. R. P. 
 
 2 Maes. Gen. Stat. (1882), ch. 125, (6tli ed.) p. 108 (p. •94), note. 
 § 1 ; McBryde v. Patterson, 78 N. 0. 412. 
 
CONVENTIONAL LIPE'^STATES. 633 
 
 est dependent on the life of another person may obtain from 
 the court of chancery an order for the production of such per- 
 son ; and, if he be not produced as required by the order, may 
 take possession of the property as if such person were dead.^ 
 And by the act of 19 Car. II. ch. 6, the absence of cestui que 
 vie for seven years, without being heard from or accounted for, 
 raises a presumption of his death, in any action or judicial pro- 
 ceeding concerning the property, in which his death comes in 
 question. Such statutes as the latter are common in the United 
 States.2 (a) 
 
 § 444. (c) Estates for Uncertain Periods, which are not 
 Inheritable nor at 'Will, but may last ior Life. — It is to be 
 reiterated and emphasized here that such interests as these are 
 life estates. Indefinite duration that may be during a life, in- 
 capability of being inherited, and indeterminability merely at 
 will usually place an ownership of realty within the category 
 of life interests.^ Such are estates, to A while he continues to 
 live on the land, to a man and his wife during coverture, to a 
 widow so long as she remains unmarried, to B until he ceases 
 to carry on a specified business, to X while a designated tree 
 stands, and to Y during his residence abroad.* Though such 
 an ownership may quickly terminate because of the happening 
 of the specified event, it is a life estate, governed by all the 
 rules and principles of life estates, as long as it continues.^ 
 
 In treating of tliis class of life estates, Coke and Littleton 
 make the following distinctions, which still exist. " If a man 
 make a lease of a manor that at the time of the lease made is 
 worth £20 per annum until £100 be paid, in this case, because 
 
 (a) The New York statute provides that : " A person upon whose life 
 an estate in real property depends, who remains without the United States, 
 or absents himself in the state or elsewhere for seven years together, is 
 presumed to be dead in an action or special proceeding concerning the 
 property in which his death comes in question, unless it is affirmatively 
 proved that he was alive within that time." Code Civ. Pro. § 841 ; Mat- 
 ter of Board of Education of New York, 173 N. Y. 321, 323; New York 
 Cent. & H. R. R. Co. v. Brennan, 12 App. Div. 103, 108. 
 
 1 Wms. K. P. p. *21 ; 1 Leake, Land People v. Gillis, 24 Wend. (N. Y.) 201 ; 
 
 Law, p. 196. Miller v. Gilbert, 144 N. Y. 68 ; Hay- 
 
 " N. Y. Code Civ. Pro. § 841 ; ward v. Kiuney, 84 Mich. 591 ; Fuller 
 
 1 Stim. Amer. Stat. L- § 2510. "• Wilbur, 170 Mass. 506 ; 2 Blackst. 
 
 ' § 439, supra. Com. p. * 121 ; 4 Kent's Com. p. * 26. 
 
 * Hewlins v. Shippam, 5 B. & C. ' Such interests are life estates on 
 
 221 ; McArthur v. Scott, 113 U. S. 340, limitation. 
 377; Evan's Appeal, 51 Conn. 435; 
 
634 ESTAT]B9^^tote^PR0PKBTT. 
 
 the annual profits of the manor are incertaine, he hath an 
 estate for life, if livery be made, determinable upon the levy- 
 ing of the £100. But if a man grant a rent of £20 'per annum 
 until £100 be paid, there he hath an estate for five years, for 
 there it is certain, and depends upon no incertainty. ... If a 
 man by his will in writing devise his lands to his executors for 
 payment of debts and until his debts be paid ; in this case the 
 executors have but a chattell, and an incertaine interest in the 
 land until his debts be paid ; for if they should have it for their 
 lives, then by their death their estate should cease, and the 
 debts unpaid." ^ That is, in such cases, whenever the period 
 of holding is uncertain, it is a life estate ; except that a gift to 
 executors, who as such can not take a freehold, until testator's 
 debts or specified debts are paid, gives only a chattel and not a 
 life interest.'^ 
 
 1 Co. Lit. 42 a. 2 Ibid. ; CrniseJ Dig. tit. iii. ch. i. 
 
 § 8 ; 1 Wash. R. P. (6th ed.) § 223. 
 
h. Leg-al Life Estates. 
 CHAPTER XXX. 
 
 (a) CURTESY. 
 
 § 445. Origin and meaning of 
 estates by curtesy. 
 
 § 446. Definition, requisites, and 
 forms of curtesy. 
 
 § 447. First — Lawful marriage. 
 
 § 448. Second — Beneficial seisin 
 by the wife of an estate of inheri- 
 tance during the coverture. 
 
 § 449. The wife's seisin — Seisin 
 in fact — How far required. 
 
 § 450. The wife's estate may be 
 either legal or equitable. 
 
 § 451. The wife's estate must be 
 one of inheritance. / 
 
 § 452. The/wife must be bene- 
 ficially seised^ 
 
 § 453. ThjB wife's seisin and 
 ownership must be continuous and 
 uninterrupted. 
 
 § 454. The wife's seisin and own- 
 ership must not be defeated by a 
 paramount claim or title — Curtesy 
 in qualified fees. 
 
 §455. Third — Birth of issue, 
 alive, during the lifetime of the 
 mother, and capable of inheriting 
 the property. 
 
 §456. Fourth — Death of the 
 wife. 
 
 § 457. Curtesy initiate. 
 
 § 458. Curtesy consummate. 
 
 § 459. How curtesy may be barred 
 or forfeited. 
 
 § 460. Curtesy in the United 
 States. 
 
 § 445. Origin and Meaning of Estates by Curtesy. — Origi- 
 nating probably in the husband's right of guardianship — guar- 
 dianship of the children of the marriage, and in its earliest 
 form guardianship of both the wife and the children ^ — his 
 interest in her estates of inheritance, after the birth ot living 
 issue of the marriage, came to be known as an estate " by the 
 law of England,"^ and later " by the curtesy (curialitas, cour- 
 tesie, civility, concession, or favor) of England " ; ^ because, 
 although a similar right existed in other countries such as 
 
 1 2 PoU. & Mait. Hist. Eng. L. (2d 
 ed.) p. 414. 
 
 ^ The husband was tenens per legem 
 Angliae. Digby, Hist. Law E. P. (5th 
 ed.)p. 174. 
 
 ' " This right bears two curious 
 names. The husband becomes tenant 
 ' by the law of England ' and tenant 
 
 ' by the curtesy of England.' The lat- 
 ter phrase seems to be much the newer 
 of the two. We do not read it in Latin 
 records ; it seems to make its first ap- 
 pearance in the French Year Boolts of 
 Edward I's age." 2 Poll. & Mait. Hist. 
 Eng. L. (2d ed.) p. 414. 
 
636 ESTATE8%& REAL PROPERTY. 
 
 Normandy, Scotland, and Ireland,^ yet in England it^as the 
 broadest and fullest in its extent and so was thought of by law- 
 yers as a " courteous " gift or " special favor " of English law.^ 
 The Norman husband would lose his curtesy, his veufete (vidvr 
 itas) as it was there called, if he married again ;^ the English 
 husband would not. Scottish law gave him " curtesy " (curia- 
 litas, curiality) only in landa which his wife had inherited;* 
 English law gave him curtesy in all her estates of inheritance, 
 no matter how acquired by her. In England, this interest 
 belonged to a second husband, as well as to a first; and it 
 deprived the lord of all right of wardship as long as it con- 
 tinued.^ It was not of feudal origin, but it availed for the time 
 being to set aside this one of the most oppressive of feudal 
 rights — the lord's right of wardship.^ The husband who had 
 curtesy took all his wife's realty for all his life. English jurists 
 knew that this was a peculiarly extensive right, believed that it 
 had its origin in some " specialty," and naturally called it an 
 estate, or tenancy, "by the curtesy of England."'^ It has there 
 retained that name. And in this country it is described as the 
 husband's "curtesy," or his "estate by the curtesy," or his 
 "tenancy by the curtesy."^ As a right, more or less exten- 
 sive, in the wife's estates of inheritance, it is possibly as old as 
 the sources of Anglo-Saxon law.^ 
 
 § 446. Definition, Requisites and Forms of Curtesy. — Curtesy 
 has been heretofore defined -as the life interest of a husband in 
 all the real property of which his wife was beneficially seised of 
 an estate of inheritance during the coverture, provided a child 
 be naturally born of the marriage, born alive and capable of 
 
 1 Co. Lit. 30 a ; Wright, Ten. " mirror " that the right of curtesy was 
 pp. 192, 193 ; 2 Blackst. Com. p. * 126 ; granted to husbands by the " curtesy " 
 Hale, Hist. Com. L. p. 180. of Henry J. See Digby, Hist. Law 
 
 2 This seems to be the natural and R. P. (5th ed.) p. 174 ; Mirror (Seld. 
 logical explanation of the phrase. And Soc), p. 14 ; 1 Kerr, R. P. §§ 708, 709. 
 it is the one strongly contended for by * Somma, p. 307. 
 
 Pollock & Maitland. Hist. Eng. L. (2d ' Fraser, Law of Husband & Wife 
 
 ed. vol. ii.) pp. 414, 415. The same (2d ed.), p. 1123. 
 
 learned writers opposed the view, held ^ 2 Poll. & Mait. Hist. Eng. L. {2d 
 
 by many, that the word "curtesy" is ed.) pp. 414, 416. 
 
 connected with curia, and indicates the ^ 2 Blackst. Cora. p. * 126; 2 Poll. 
 
 attendance of the husband as tenant of & Mait. Hist. Eng. L. (2d ed.) p. 416. 
 
 the land at the lord's court, for he nn- ' 2 Poll. & Mait. Hist. Eng. L. {2d 
 
 doubtedly did this before the birth of ed.) p. 416. 
 
 issue as well as after ; and they treat 8 4 Kent's Com. pp. * 27-* 29. 
 
 as possible, though without any very ' Grand Coustomier, ch. 121 ; Lit. 
 
 good authority, the explanation of the § 35. 
 
CURTESY. 637 
 
 inheriting the property .^ There are here involved four requi- 
 sites, three of which are essential to the existence of curtesy 
 initiate, and all of which must exist in order to give curtesy 
 consummate. They are : First, lawful marriage ; Second, ben- 
 eficial seisin by the wife of an estate of inheritance during the 
 covertiiire ; Third, birth of issue, alive, in the lifetime of the 
 mother, and capable 'of inheriting the property ; Fourth, death 
 of the wife.2 These are to be explained in the order stated. 
 And, in the discussion, the nature of the two stages or forms 
 through which a husband's curtesy may pass will be more fully 
 examined. 
 
 For, as already intimated, after the requisite birth of issue 
 he has curtesy initiate in his wife's estates of inheritance, while 
 she is still living ; and when she dies leaving him surviving, 
 the fourth essential having thus occurred, his life interest be- 
 comes complete as curtesy consummate.^ No act or ceremony 
 of any kind, by the husband or any one else, is needed to make 
 this change on the death of the wife. Curtesy consummate, 
 which is the important form of this interest and the form gen- 
 erally meant when no qualifying word is used, then instantly 
 devolves upon him by operation of law ; and no disclaimer on 
 his part, short of an actual release, will prevent it from vesting 
 in him.* It is thus importantly different in its development 
 from a widoV's dower interest, since she has no estate in her 
 husband's real property until her third has been set off and 
 assigned to her after his death.^ 
 
 The requisites of curtesy, as here stated, need not all exist 
 at the same time. Proof that all have existed is sufficient to 
 establish the right.* Thus, if the wife become seised of land 
 during the coverture, and then sell it or become disseised of it, 
 and subsequently her first child of that marriage be born, the 
 husband becomes entitled to curtesy in that land.^ And wlien 
 the only child of the marriage dies before its mother has seisin 
 of any realty, its father may have curtesy in the property of 
 
 1 § 72, supra. * Ibid. ; Jouea v. Davies, 5 H. & N. 
 
 2 2 Blackst. Com. pp. *127, *12R; 766; Witham i'. Perkins, 2 Me. 400; 
 Cruise, Dig. tit. v. ch. i. § 4; Ferguson Ball v. Woolfolk, 175 Mo. 378. 
 
 V. Tweedy, 43 N. Y. 543, 548 ; Comer v. ' See § 464, infra. 
 
 Chamberlain, 88 Mass. 166, 169. ° Co. Lit. 29 b; Paine's Case, 8 Rep. 
 
 ' 2 Blackst. Com. p. *1 27; Jackson w. 34; Comer v. Chamberlain, 88 Mass. 
 
 Johnson, 5 Cow. (N. Y.) 74, 95 ; Watson 166, 169. 
 
 V. Watson, 13 Conn. 77, 83 ; Phillips v. '' Ibid. ; Jackson v. Johnson, 5 Cow 
 
 Farley, 23 Ky. Law Rep. 2201. (N. Y.) 74, 95. 
 
638 ESTATES IN REAL PEOPERTY. 
 
 which she thereafter becomes seised of an estate of inheri- 
 tance.^ 
 
 § 447. First — Lawful Marriage. — A marriage is lawful, for 
 this purpose, when it is either absolutely valid and unassailable, 
 or merely voidable but not avoided during the life of the wife.^ 
 When a §o-called marriage is absolutely null and void, as for 
 example in a clear case of incest, there is, of course, no cur- 
 tesy.'* But when it is only voidable, as in the case of one of 
 the parties being under the age of consent at the time of its 
 solemnization, there may be curtesy unless the marriage is set 
 aside before the wife's death. A merely voidable marriage can 
 not be annulled after the death of either spouse.* 
 
 The validity of a marriage is usually determined by the lex 
 loci contractus. The generally accepted principle of private in- 
 ternational law is, a marriage valid where entered into is valid 
 everywhere.'^ But some exceptions to this rule have been dic- 
 tated by public policy. Thus, a marriage clearly incestuous by 
 the positive law of the state in which the land is situated must be 
 there declared void ; •* and so in most places must a marriage 
 which is bigamous or polygamous, though it was valid where 
 contracted.'' And, of course, a clear local statute, or rule of law, 
 determines the validity of a marriage as affecting the right to cur- 
 tesy in real property in the state or country in which it exists.* 
 
 § 448. Second — Beneficial Seisin by the Wife of an Estate of 
 Inheritance during the Coverture. — The essentials of the wife's 
 seisin and ownership of real property, in order that the husband 
 may have curtesy in it, are first to be briefly noted ; and then a 
 distinct section is to be devoted to the fuller discussion of each 
 of them. Tiie common law requires that her seisin shall be 
 in fact (or in deed) and not merely in law — entry on the prop- 
 erty, when possible, must be made or continued during cover- 
 
 1 Ibid. ; 4 Kent's Com. p. *27. ' Fentoii v. Heed, 4 Johns. (N. Y.> 
 
 2 Co. Lit. 30 a ; 2 Burns, Eccl. Law, 88 ; Price v. Price, 124 N. Y. 589 ; Raw- 
 p. 501 ; Cruise, Dig. tit. v. ch. i. § 5. son o. EawBon, 156 Mass. 578. 
 
 2 Turner v. Meyers, 1 Hag. Con. ' Last three preceding notes ; Chase's 
 
 414; Mcllvain v. Scheibley, 22 Ky. Blackst. pp. 143-148 and notes. Before 
 
 Law Rep. 942. See Price v. Price, 124 the year 1907, such a local rule was 
 
 N. Y. 589 ; § 469, infra. illustrated by the English prohibition 
 
 * Last two preceding notes. against an Englishman's marriage of 
 
 ^ Story, Conflict o£ Laws, §§ 110, his deceased wife's sister, even in a for- 
 
 112; Bishop, Mar. & Div. § 390; 19 eign country. Brooks u. Brooks, 9 H. 
 
 Amer. Law. Reg. N. S. 219. L. Cas. 193. But that law was abol- 
 
 " Ibid.; Sutton r. Warren, 10 Met. ished in 1907, by Stat. 7, Edw. VIL 
 
 (Mass.) 451 ; Mcllvain v. Scheibley, 22 ch. 47. 
 Ky. Law Rep. 942. 
 
CURTESY. 639 
 
 ture.^ The estate in the property of which she is thus seised 
 may be either legal or equitable.^ It must be an estate of in- 
 heritance.* She must be seised beneficially — for her own 
 benefit, and not as holder for another.* Her seisin must be con- 
 tinuous and uninterrupted — not broken in upon at her death 
 by the seisin of another person.^ And, finally, her seisin and 
 ownership must not be defeated by a paramount claim or title.^ 
 Each of these requisites has presented to the courts some nice 
 and interesting questions. 
 
 § 449. The Wife's Seisin — Seisin in Fact — How far Re- 
 quired. — The common law gave to a husband the right to the 
 possession and enjoyment of all his wife's r^l property during 
 the coverture. It was his fault, therefore, if she remained 
 seized in law only, and did not acquire seisin in fact, of any of 
 her realty which he could possess or enjoy. His failure to as- 
 sert his marital rights in this matter was laches on his part, 
 and might also be contributory to the loss of her title because 
 of disseisin and adverse possession by another person. For 
 these reasons, and also it was said, because there could be no 
 curtesy in interests which were not inheritable, and no one 
 could inherit real property except from an ancestor who was 
 "eised in fact ; the common law required the wife to be seised 
 n fact, during the coverture, in order to give curtesy to the 
 husband.^ In applying this requisite, however, it must be re- 
 membered that one is seised in fact of an incorporeal heredita- 
 ment, or of an equitable interest, who owns in it a freehold estate 
 and is in actual receipt of the income and profits ; ^ that posses- 
 sion of a tenant for years or at will is ordinarily deemed to be 
 the possession of his landlord;^ and that a vendee of the hus- 
 band — one who had purchased his right to enter upon the 
 wife's land — could make her seisin become one in fact by tak- 
 
 1 § 449, infra. Btructive possession or possession in law, 
 
 2 § 450, infra. has been defined to be one based upon 
 8 § 451, infra. an actual entry on the land and one 
 * § 452, infra. which requires or gives an occupation 
 6 § 453^ infra. as a demonstrative thing." Carr v. 
 6 § 454, infra. Anderson, 6 N. Y. App. , Dir. 6, 10. 
 ' Co. Lit. 29 a; 2 Blackst. Com. p. See § 28.3, supra. 
 
 *127, *128 ; Cruise, Dig. tit. v. ch. i. § 6 ; * P. 380, supra ; Cushiug v. Blake, 
 
 Churchill v. Onderdonk, 59 N. Y. 134 ; 30 N. J. Eq. 689 ; Withers v. Jenkins, 
 
 Boylston v. Wheeler, 61 N. Y. 521 ; 14 S. C. 597. 
 
 Borland's Lessee v. Marshall, 2 Ohio » Bract, book ii. ch. ix. fol. 27. 
 
 St. 308 ; Eager v. Fnrnivall, L. R. 17 Rowan v. Lytle, 11 Wend. (N. Y.) 616; 
 
 Ch. Div. 115. "Actual seisin or actual Landon v. Townshend, 129 N. Y. 166. 
 possession, as distinguished from con- 
 
640 ESTATES IN EEAL PROPERTY. 
 
 ing possession of that land during her coverture.^ And if a 
 wife acquire realty through a conveyance operating by virtue 
 of the statute of uses, and no one be holding it adverstely to 
 her, she is regarded as seised of it in fact, although neither she 
 nor any one else for her may have taken actual possession.^ 
 And wherever her seisin can thus be regarded as existing in 
 fact (or in deed as it is sometimes called) it is sufficient for pur- 
 poses of curtesy.^ The cliief cases, therefore, if not the only 
 ones, in which the common law denied this estate to the hus- 
 band because the wife though seised during the coverture was 
 not adequately seised, were those in which her title was not 
 wholly complete until she became seised in fact by means of 
 entry on or enjoyment of the property, either by herself or by 
 some one else for her benefit. Such instances arose when real 
 property, which descended or was devised to her, was left vacant 
 and unoccupied during her coverture and ownership.* 
 
 In a few of the more conservative states of this country, 
 such as New York and Kentucky, the common-law requirement 
 of seisin in fact as a prerequisite to curtesy still obtains.^ Most 
 of the states in which curtesy now exists permit the seisin to be 
 either in fact or lii law, provided there was no adverse posses- 
 sion.^ And some courts, of which those of Pennsylvania, Ohio, , 
 and Connecticut are representatives, have gone so far as to give 
 curtesy in Mnds which the wife owned in fee and on which she 
 had a right of entry during coverture, although throughout all 
 
 1 Vanarsdall v. FauntJeroy, 7 B. (requiring the wife to hare actua,! pos- 
 Mon. (Ky.) 401. So, seisin by her guar- session when possible) " did not apply 
 diaii is sufficient. Powell v. Gossom, 18 where a wife took by deed, but did apply 
 B, Mon. (Ky.) 175. where she took as heir or devisee." 
 
 2 Adair v. Lott, 3 Hill (N. Y.), 182 ; Carr v. Anderson, 6 N. Y. App. Div. 6, 
 Carpenter v. Garrett, 75 Va. 129; Barr 10. And such seems still to be the rule 
 V. Galloway, 1 McLean (U. S. Cir. Ot.), in that state. See Pond v. Bergh, 10 
 476. For description of conveyance op- Paige (N. Y.), 140 ; Ferguson v. Tweedy, 
 eratingby virtue of the Statute of Uses, 43 N. Y. 543 ; Boylston v. Wheeler, 61 
 see §§ 1050-1054, infra. N. Y. 521 ; Collins v. Russell, 184 N. Y. 
 
 8 Last three preceding notes. 74, 76. 
 
 * Jackson v. Johnson, 5 Cow. (N. Y.) « Davis v. Mason, 26 U. S. (1 Pet.) 
 
 74, 98; Adair v. Lott, 3 Hill (N. Y.), 503 ; Mercer's Lessee ». Selden, 42 U.S. 
 
 182; Collins v. Russell, 96 N. Y. App. (1 How.) 137; Martin v. Trail, 142 Mo. 
 
 Div. 136. And see Ferguson v. Tweedy, 85 ; Day v. Cochran, 24 Miss. 261 ; 
 
 43 N. Y. 543; Wass v. Buckman, 38 Mettler y. Miller, 129 111. 630; Luttrell 
 
 Me. 360 ; 1 Wash. R. P. (6th ed.) § 328. v. Reynolds, 63 Ark. 254 ; Mass. Pub. 
 
 ^ Ibid.; Neely v. Butler, 10 B. Mon. Stat. ch. 173, § 3; Doe d. Childersi-. 
 
 (Ky.) 48, 49 Ky. 48; Powell v. Gossom, Bumgarner, 53 N. C. 297 ; Den d. Hop- 
 
 18 B. Mon. (Ky.) 179. In New York, per u. Demarest 21 N, J. L. 525; Csr- 
 
 " it was said by Judge Bronson in Adair penter v. Garrett, 75 Va. 129. 
 V. Lott (3 Hill 182) that this doctrine" 
 
641 
 
 the time of her married life and ownership~theylvei'e4n the ad- 
 verse possession of another. i 
 
 In no jurisdiction can the husband have curtesy, if the wife 
 have neither seisin nor right of immediate entry. Therefore 
 it is that, when she owns only a reversion or remainder after 
 a preceding freehold estate, lie can have no curtesy .^ If, for 
 example, land be conveyed to A for life, remainder to B and 
 her heirs, BV husband can take no curtesy if she die while A 
 is still living and enjoying his life estate. For A has the 
 seisin ; and B has neither seisin nor right of entry .'^ If, how- 
 ever, the conveyance be to A for ten years (or any other term 
 — less than freehold), remainder to B and her heirs, her hus- 
 band may have curtesy ; because A has no seisin, but he holds 
 as tenant of B, and she is seised of an estate of inheritance.* 
 
 § 450. The Wife's Estate may be either Legal or Equitable. — 
 Before the statute of uses there was no curtesy in a use or 
 other equitable estate.^ But after that statute. had sought to 
 destroy uses and, chiefly through the decision in Tyrrel's case, 
 they had been retained and called passive express trusts, the 
 courts of Chancery, applying to them quite fully the maxim 
 " Eqjiity follows the law," allowed curtesy in them and ulti- 
 mately in all the forms of equitable estates.^ The husband of 
 her, who during the coverture owns in fee an equitable interest 
 in real property — a use, a trust, or an equity of redemption — 
 and is enjoying the income therefrom, may have his curtesy in 
 that property.'^ And it hardly needs to be added that curtesy 
 
 1 Stoolfoos 11. Jenkins, 8 S. & R. (Pa.) 
 167; Borland's Lessee K.MarsIiaU,2 Ohio 
 St. 304 ; Merritt's Lessee v. Home, 5 Ohio 
 St. 307 ; Bush v. Bradley, 4 Day (Conn.), 
 298 ; Kliue v. Beebe, 6 Conn. 494. And 
 see Mettler v. Miller, 129 111. 630. 
 
 2 Co. Lit. 29 a ; 2 Blackst. Com. p. 
 *127; Doe v. Rivers, 7 T. R. 272; 
 Stoddard v. Gibbs, 1 Sumn. (U. S. Cir. 
 Ct.) 263 ;■ Ferguson v. Tweedy, 43 N. Y. 
 543; Collins v. Russell, 184 N. Y. 74; 
 Shores v. Carley, 8 Allen (Mass ), 425; 
 Orford v. Benton, 36 N. H. 395 ; Cox v. 
 Boyce, 152 Mo. 576; Ward v. Ward, 
 74 Cir. Ct. App. 146 ; Watkins v. Thorn- 
 ton, 1 1 Ohio St. 367 ; Todd v. Oviatt, 
 58 Conn 174 ; Planter's Bank v. Davis, 
 31 Ala. 625. 
 
 8 tbid. 
 
 * De Grey v. Richardson, 3 Atk. 469 ; 
 Rowan ... Lytle, 11 Wend. (N. Y.) 616; 
 
 Landon o. Townshend, 129 N. Y. 166 ; 
 Lowry's Lessee v. Steele, 4 Ohio, 1 70 ; 
 Carter v. Williams, 43 N. C. 177 ; Ma- 
 lone V. McLanrin, 40 Miss. 161. 
 
 s Digby, Hist. Law R. P. (5th ed.) 
 p. 328 ; p. 417, supra. 
 
 « 2 Blackst. Com. p. *333 ; Watts v. 
 Ball, 1 P. Wms. 109 ; Morgan v. Mor- 
 gan 5 Madd. 408 ; Sweetapple v. Bin- 
 don, 2 Vern. 536 ; Davis v. Mason, 26 
 TJ. S. (1 Pet.) 503 ; Adair v. Lott, 3 Hill 
 (N. Y.), 182; De Camp u. Crane, 19 
 N. J. Eq. 166; Hart v. Chase,-46 Conn. 
 207 ; Tillinghaist v. CoggeshaU, 7 R. I. 
 383 ,- Gatewood v. Gatewood, 75 Va. 
 407 ; McTigue v. McTigue, 1 16 Mo. 138 ; 
 1 Roper, Husb. & Wife, p. 18 ; 2 Roper, 
 Husb. & Wife, p. 20 ; § 303, supra. 
 
 ' Ibid. Even when real property is 
 settled for the sole and separate use of 
 a woman, her husband may have curtesy 
 
 41 
 
642 ESTATES IN REAL PROPEETY. 
 
 \ 
 
 is permitted in all realty of which the wife is properly seised 
 of a legal estate of inheritance.^ 
 
 § 551. The Wife's Estate must be One of InheritEUice. — The 
 husband may have curtesy if the wife own a fee of any kind ; 
 but not if her interest be of a lesser quantity. An estate 
 that is not inheritable — a life estate, or one that is less than 
 freehold — can have no such incident.^ For, curtesy being re- 
 garded as a continuation of the wife's inheritance, it is. neces- 
 sary that, the instant the husband takes as tenant by the 
 curtesy, the inheritance subject to his interest shall be capable 
 of descending from the wife to her heirs. And this can occur 
 only when she owns a fee.^ When she has a fee simple, he 
 may acquire, of course, a complete curtesy interest. And the 
 same is true when she has a fee tail, even though for other 
 purposes and because of the failure of her issue her interest 
 terminates at her death.* In the other qualified fees there 
 may be curtesy, subject, however, to be terminated in some 
 instances as explained hereafter.® 
 
 § 452. The wife must be Beneficially Seised. — In order that 
 the husband may have curtesy, the wife must have the prop- 
 erty for her own benefit.^ If she hold it as trustee for another, 
 or if she acquire it merely as a medium or conduit to pass it to 
 
 in it, unless a contrary intent is clearly l When a legal estate in fee is con- 
 shown in the settlement. Appleton v. ferred on the wife, an attempt in its 
 Kowley, 8 Eq. 139 ; Cooper v. Mac- settlement to deprive the 'husband of 
 donald, L. R. 7 Ch. T)iv. 283 ; Richard- curtesy is void. Mildmay's Case, 6 Rep. 
 son V. Stodder, 100 Mass. 528; Luntz'o. 40; MuUany v. Mullany, 4 N^. J. Eq. 
 Greve, 102 Ind. 173; Gushing v. Blake, 16; Clancy, Eights of Women, p. 191. 
 29 N. J. Eq. 399, 30 N. J. Eq. 689 ; ^ gumner v. Partridge, 2 Atk. 47 ; 
 Bennet v. Davis, 2 P. Wms. 316 ; Pool Barker v. Barker, 2 Sim. 249 ; Mullany 
 V. Blakie, 53 111. 495 ; McCuUoch v. Val- v. MuUanv, 4 N. J. Eq. 16 ; Phillips v. 
 entine, 24 Neb. 215 ; 4 Kent's Com. La Forge, 89 Mo. 72 ; Graves v. True- 
 p. *31 ; § 336, supra. But in West blood, 96 N. C. 495. See Lamb «. Lamb, 
 Virginia there is no curtesy initiate in 14 N. Y. Supp. 206 ; Haynes v. Bourn, 
 a separate use estate. Guernsey v. La- 42 Vt. 686 ; Ward v. Ives, 75 Conn. .'598 ; 
 zear, 51 W. Va. 328. It has generally Waller v. Martin, 106 Tenn. 341. 
 been held, however, that curtesy may ^ Ibid. 
 
 be shut out from such an estate, by an * Paine's Case, 8 Rep. 36 a ; Holden 
 
 intent expressed in the instrument of v. Wells, 18 R. I. 802 ; Hay ». Mayer, 
 
 settlement; but such an intent must be 8 Watts (Pa.), 203 ; 4 Kent's Cojn. p. 
 
 clearly expressed. Eigler v. Cloud, 14 *32. 
 Pa. St. 361; Meacham v. Bunting, 156 ^ See § 454, infra. 
 
 ni. 586 ; Mason v. Deese, 30 Ga. 308; <> CheW v. Commissioners, 5 Bawle 
 
 Chapman i;. Price, 83 Va. 392; Grim- (Pa.), 160; Norton v. McDevit, 122 
 
 ball V. Patton, 70 Ala. 626 ; Cushing v. N. C. 755. See Bennet v. Davis, 2 P. 
 
 Blake, 30 N. J. Eq. 689; McBreen i: Wms. 318; Bartlett u. Tinsley, 1 75 Ma 
 
 McBreen, 154 Mo. 323; Ege v. Medlar, 319. 
 82 Pa. St. 100. 
 
CUKTESY. 643 
 
 a third person, her husband can have no curtesy.^ So, the 
 husband of a mortgagee as such is not 'entitled to his curtesy, 
 even in states where a mortgage is a conveyance of the land, 
 upless the mortgage has subsisted so long as to create a bar to 
 the equity pf redemption ; for " the rights existing in, or flowing 
 (from, the mortgagee, are subject to the claims of the equity of 
 redemption, so long as the same remains in force." ^ 
 
 When a wife is properly seised in fee of a piece of land for 
 her own benefit, it matters not how long or short her actual 
 ownership may be, so far as curtesy is concerned. So owning 
 it, if she purchase it one minute and sell it the next, or if she 
 die after having it thus for only an instant, his right may 
 attach.^ If beneficial to her, her seisin may be instantaneous, 
 and yet be sufficient for curtesy. • Hence, this distinction is to 
 be noted : a husband has no curtesy in land which his wife^ 
 holds in fee for a long time, but for the benefit of another, 
 or for the purpose of deeding it to another ; but he may have 
 curtesy in realty which she holds for herself, though she fails 
 to own it long enough for her to have any actual enjoyment.* 
 An ordinary illustration of an instantaneous seisin not wholly 
 beneficial is the wife's purchase of a piece of land, and receipt 
 of the deed, and her giving back a mortgage on the property 
 for all or a portion of the purchase money. This is treated, 
 in most states, as constituting but a single transaction ; and 
 the husband's curtesy is subject to the mortgage.^ 
 
 § 453. The Wife's Seisin and Ownership must be Contin- 
 uous and Uninterrupted. — The meaning of this requirement is 
 that the wife must own the property and be seised of it in such 
 manner that, at her death, it might pass instantly to her heirs 
 or devisees, but for the husband's intervening right. If this 
 could not occur, but the seisin is to pass to another for a time 
 
 1 Ibid.; Welch «. Chandler, 13 B. which tbeu descended from the father to 
 Mon. (Ky.) 420 ; Gritten v. Dickerson, the son — the son was beneficially seised 
 202 111. 372 ; McClnre v. Fairfield, 153 in fee during the short time that he out- 
 Pa. St. 41 1 . lived his father. Cro. Eliz. 503 ; Chase's 
 
 2 4 Kent's Com. p. *32; Foster v. Blackst. p. 315. 
 
 Dwinel, 49 Me. 44 ; Moore v. Esty, 5 * Last four preceding notes ; § 459, 
 
 N. H. 479 ; §§ 760, 761, infra. infra. 
 
 ' In a dower question in Wales, it ' And the same is true as to dower, 
 
 was found hy a jury that, where father when the husband so purchases the real 
 
 and son were hanged at the same time property. Boies v. Benhara, 127 N. Y. 
 
 and from the same cart, the son who , 620, 624 ; Brackett v. Baum, 50 N. Y. 8 ; 
 
 appeared to struggle the longer had Smith v. McCarty, 1 19 Mass. 519. And 
 
 outliyed the father ; and so the widow see §§ 489, 777, infra. 
 of the son was entitled to dower in land 
 
644 ESTATES IN REAL PROPERTY. 
 
 after her death, her seisin is not continuous ; and her husband 
 has no curtesy even though she may own the fee. If, for ex- 
 ample, A, the owner of a piece of land in fee simple, were to 
 oonvey it to B for her life, remainder (vested) to C for his life, 
 and then A were to die intestate leaving B as his only heir, A's 
 reversion in fee would descend to B, and she would thus 
 become the owner of the land in fee, but subject to the life 
 estate of C. Thus, the land would belong to B for life, then to 
 C for life, and then to B in fee. B would be seised, since she 
 had the life estate, and she would own the fee ; but the prop- 
 erty would not pass to her heirs or devisees immediately on 
 her death, since at that time C could take it for his life ; B's 
 seisin and ownership would not be continuous, and her husband 
 ■could have no curtesy in that land.^ The result would be 
 ■different, if, with no other change in this illustration, the estate 
 "to C were given for a term of years instead of for life. The 
 land would then belong to B for life, then to C for (say) ten 
 years, and then to B in fee ; B would become seised continu- 
 ously of the entire fee simple, since C owning only an estate 
 less than freehold could have no seisin ; and B's husband could 
 take curtesy, subject to the right of C to hold the land as his 
 tenant for ten years after B's death.^ 
 
 This demand for continuity of the wife's seisin and owner- 
 ship has given rise to some nice though logical distinctions, 
 which can not be thoroughly apprehended until contingent 
 remainders and the law of merger are understood.^ It is suffi- 
 cient here to note that at common law the demand is absolute. 
 Any arrangement which will cause the seisin to pass to a 
 stranger to the wife (one who is not her heir or devisee) at her 
 •death will preclude the right of curtesy.* The niceties and 
 subtleties arise from the effort to determine whether or not a 
 grant or gift of an intervening estate, similar to that conferred 
 ■on C in the above illustration, will have that effect. And 
 ■enough of subsequent discussions may be here anticipated to 
 say that, when such intervening estate is a contingent remain- 
 der between the two vested ones of the wife, and it and they 
 
 1 C Olson V. Colson, 2 Atk. 246 ; frequently brought into requisition, at 
 Crabb, R. P. §§ 1100-U02 ; Wash. R. P. common law, in settling such questions. 
 (6thed.) § 339; 1 Fearne, Cont. Rem. See § 895, in/ra. 
 
 p. 29. * Last two preceding notes; Davis 
 
 2 Landon v. Townshend, 129 N. Y. v. Mason, 26 U. S. (1 Pet.) 503 ; Mett- 
 166 ; Chaplin, Landl. & T. § 593. ler v. Miller, 129 111. 630. 
 
 * The rule in Shelley's Case is also 
 
CURTESY. 645 
 
 are not created by the same will, the contingent remainder is 
 defeated and destroyed by the merger of her two vested inter- 
 ests ; and so her seisin and ownership are continuous.^ Thus, 
 if A were to convey land to B for her life, remainder for life to 
 C, a young man, if he live to be fifty years of age, and then A 
 were to die intestate leaving B as his only heir, B, inheriting 
 the reversion in fee, would become the owner of the entire, 
 uninterrupted estate in fee simple, C's contingent remainder 
 for life would be destroyed by the merger of B's two vested 
 estates — would be squeezed out from between them — and B's 
 husband could have curtesy in the land.^ The courts would 
 never permit this curious result to accrue, but would keep the 
 two vested estates apart and preserve the intervening contin- 
 gent estate and so prevent curtesy from attaching, if all the 
 estates were created by the same will — if a testator were to 
 devise land to B, a married woman, for life, remainder for life 
 to C, a young man, if he live to be fifty years of age, remainder 
 to B and her heirs forever. The law's great deference to the 
 wish of a testator preserves C's contingent remainder in such a 
 case.^ And in some instances, the courts have done the same 
 where the three successive estates were all created by the same 
 deed.* But when the two vested estates come separately and 
 by different events, whether by act of the parties or by opera- 
 tion of law, to the same married woman, so that their merger 
 will give her a fee, any intervening contingent interest will 
 be ordinarily destroyed by their merger, her seisin and owner- 
 ship will thus become continuous, and her husband may have 
 curtesy.^ 
 
 § 454. The Wife's Seisin and Ownership must not be 
 defeated by a Paramount Claim or Title — Curtesy in Qualified 
 Pees. — A destruction of the wife's seisin and estate by a para- 
 mount claim, whether it occurs during her life or after her 
 death, defeats curtesy, of course, just as it defeats her interest. 
 When, for illustration, her seisin was tortious, because gained 
 by her act of disseisin, or under a defective title, and it is 
 defeated by an eviction under a judgment upon a title para- 
 mount, his claim of right must fall with hers.^ This result is 
 
 1 Archer's Case, 1 Kep. 66 ; Plunket * Hooker v.. Hooker, Cas. Lee temp. 
 0. Holmes, 1 Lev. 11 ; Cruise, Dig. tit. t. Hardw. 13. 
 
 ch. ii. § 24 ;' Crabb, R. P. §§ 1100, 1101. « Last eight preceding notes. See 
 
 2 Ibid. § 867, infra. 
 
 8 Ibid. ^ Co. Lit. 241 ; 1 Atk. Conv. p. 255 
 
 1 Roper, Husb. & W. pp. 36, 42. 
 
646 ESTATES IN REAL PBOPEETT. , V 
 
 very clear, both on principle and from the authorities. In ita 
 light, the right to curtesy in the different kinds of fees may 
 perhaps be most clearly discussed. 
 
 As already explained, an estate in fee simple owned by the 
 wife is clearly sufficient to confer curtesy upon the husband. 
 And the same is true of an estate in fee tail, even though the 
 wife die witliout leaving any issue living at the time of her 
 death.i 
 
 In a fee on condition subsequent, which requires for its de- 
 struction both a breach of the condition and re-entry by the 
 grantor or his heirs,^ there may be curtesy ; and if those two 
 events do not concur for the destruction of the fee, the curtsey 
 may continue during the life of the husband. But if the 
 grantor or his heirs re-enter for breach of' tlie conditioii, the 
 entire estate is thereby defeated ah initio, and with it all cur- 
 tesy disappears — if land be conveyed to a married woman and 
 her heirs provided no intoxicating liquor is sold thereon, her 
 husband has curtesy, which will be defeated by the sale of such 
 liquor on the land and re-entry by the grantor or his heirs for 
 this breach of the condition.^ 
 
 The nature and duration of curtesy in an estate in fee on 
 limitation (called also " collateral limitation ") * presents a ques- 
 tion not settled by the decisions. The weight of the opinions 
 of the best judges and text writers, in this country at least, is 
 that curtesy may attach to such an interest, but subject to be 
 terminated by the event which ends the fee on limitation — that, 
 if land be conveyed to a married woman and her heirs so long 
 as no intoxicating liquor is sold thereon, her husband has curtesy 
 which will be defeated ipso facto by the sale of such liquor on the 
 land.^ But the strong view of some good autliorities is that 
 curtesy may be had absolutely in such an estate', so as not to be 
 defeated by the running out of the limitation — that, in the 
 last illustration, curtesy once attached would continue during 
 the husband's life, even though intoxicating liquor was sold on 
 the premises.^ 
 
 1 § 451, supra. * See §§ 723, 726, infra. 
 
 ^ §179, in/ra. 5 ibid.; Co. Lit. 241 a, Butler's 
 
 ^ " For the donor reassumes his prior note, 170; 1 Atk. Conv. p. 255 ; Prest. 
 
 and paramount title, and all interme- Abst. iii. p. 384 ; 1 Scribner, Dower, p. 
 
 diate rights and encumbrances are de- 297. 
 
 stroyed." 4 Kent's Com. p. *33; 1 « See Buckworth w. Thirkell, 3 Bos. 
 
 ■Wash. R. P. (6th ed.) §323; 1 Scrib- & P. 652; Odom «. Beverly, 32 S. C. 
 
 ner. Dower, p. 291 ; Dictum in Hatfield 107; Park on Dower, pp. 172, 186; 
 
 V. Sneden, 54 N. Y. 280. Chase's Blackst. p. 309, note 4. 
 
CURTESY. 6-17 
 
 According to the great weight of authority, there may be 
 curtesy in a fee on conditional limitation, which is such that 
 the fee may pass to another on the death of tlie wife ; and this 
 estate of the husband is not defeated by the happening of the 
 event which so transfers the fee at her death — if land be con- 
 veyed to a married woman and her heirs, but if she die without 
 issue living at her decease it is to go over to X and his heirs, 
 her husband has curtesy if the other requisites concur, even 
 though she leaves no issue surviving her. — if X acquire the fee 
 because she dies without4eaving'a'ny living issue, he takes it 
 subject to the life estate of her"Surviving husband.^ There is 
 no harmony among the authorities as to the reason for this 
 generally accepted result. Perhaps the most satisfactory ex- 
 planation — which is adopted by the New York Court of 
 Appeals^ — is that a fee on conditional limitation, not being 
 known to tlie early common law but originating in the doc- 
 trines of shifting uses and executory devises, and now being 
 freely sanctioned in many states by statutes,' presented to the 
 courts when curtesy was demanded in it a question novel and 
 unaffected by the rule of stare decisis ; and the courts, regarding 
 the seisin of such an interest as not ending but merely shifting 
 from one fee owner to another, preferred to give to such a fee 
 the favored incidents of curtesy and dower. Chancellor Kent 
 says of such a fee that the event " merely shifts tlie estate from 
 one person to another, and leaves the prior seisin undisturbed. 
 The limitation over takes effect, and the estate next in expect- 
 ancy vests without entry, and the curtesy is preserved." * And 
 
 1 Buckworth u.Thirkell, 3 Bos. & P. » See §§ 727, 730, infra. 
 
 652, note ; Moody v. King, 2 Biiig. 447, * 4 Kent's Com. p. »33. He speaks 
 
 holding the same as to dower ; Hatfield of the estate as a " limitation " ; but the 
 
 V. Sneden, 54 N. Y. 280 ; Evans v. estate designated in this treatise and 
 
 Evans, 9 Pa. St. 190, also a dower case ; many others as a " conditional limitar 
 
 McMasters y. Negley, 152 I'a. St. 303 ; tion" is meant. His reasoning, if 
 
 Welch V. Brimmer, 169 Mass. 214, 215; pushed to its logical conclusion, would 
 
 Webb u. Trustees, etc., 90 Ky. 117; give curtesy in an estate on conditional 
 
 Withers v. Jenkins, 14 S. C. 597 ; Ken- limitation, even though it were such 
 
 nedy v. Kennedy, 29 N. J. L. 185, that the event might occur to shift 
 
 dower ; Co. Lit. 241 a, Butler's note, the fee from the wife to another before 
 
 170; 3 Prest. Abst. pp. *372, *384; her death. But probably no actual 
 
 4 ^Kent's Com. p. *33, note; Roper, decision has ever gone that far. The 
 
 Hush. & W. pp. 36-42. For opposing statements of the law uniformly restrict 
 
 dicta and discussions, see Webster v. the right of curtesy in such fees to those 
 
 Ellsworth, 147 Mass. 602 ; 2 Sugden, in which the event which is to shift the 
 
 Powers, p. 31 ; Park, Dower, pp. 177- fee must occur if at all at the time of 
 
 183; 1 Scribner, Dower, pp. 297-320. the death of the wife. 
 
 2 Hatfield o. Sneden, 54 N. Y. 280. 
 
648 ESTATES IN BBAL PROPERTY. 
 
 Mr. Washburn, supported by the New York decision of Hatfield 
 V. Sneden,^ after explaining that curtesy may be readily defeated in 
 estates on condition or limitation — estates " determinable by a 
 limitation which operates to defeat her estate at common law " — 
 adds, as an accurate summary certainly of the results : " But if the 
 limitation over be by way of springing use or executory devise 
 which takes effect at her decease, thereby defeating or deter- 
 mining her original estate before its natural expiration, and 
 substituting a new one in its place, which could not be done at 
 common law, the seisin and estate which she had . . . will give 
 the husband curtesy." ^ And he might have added that the 
 same reasoning is applied, and the same result attained, where 
 by virtue of modern statutes estates in fee on conditional lim- 
 •itations are now permitted to be made freely and directly by 
 deed and without resort to the doctrines of springing uses or 
 executory devises.^ 
 
 § 455. Third — Birth of Issue, Alive, during the Iiifetime of 
 the Mother, and Capable of Inheriting the Property. — The third 
 requisite of curtesy, in the absence of statutory change, is issue 
 of the marriage, born alive, during the lifetime of the mother, 
 and capable of inheriting the property in which the curtesy is 
 claimed.* The old common law is said to have demanded, as 
 proof that the child was born alive, that it should be heard to 
 cry, within four walls — "ipse postmodum, exae prolem susoi- 
 taverit, oujus clamor auditus fuerit inter quatuor parietes."^ 
 This special, strong proof of life is not now demanded, how- 
 ever ; but any other clear evidence will suffice.^ And although 
 the primitive notion of curtesy was a continuance of the wife's 
 inheritance, given to the husband for the benefit of the issue 
 of the marriage, yet it was soon settled that the length of the 
 
 1 54 N. Y. 280. clause, used in a writ in the elerenth 
 
 2 1 Wash. R. P. (6th ed.) § 326. year of Henry III. 1 Kerr, R. P. § 749. 
 ^ Such statutes are now found, both " This quaint demand for a cry within 
 
 in England and in the United States the four walls is explained to us in Ed- 
 
 generally. See § 730, infra. ward I's day as a demand for the testi- 
 
 * Co. Lit. 29 b, 30 a; Lit. § 52 ; 2 mony of males — the males who are not 
 
 Blackst. Com. pp. *127, *128 ; Cruise, permitted to enter the chamber wliere 
 
 Dig. tit. V. ch. i. § 15 ; Heath v. White, the wife lies, but stand outside listening 
 
 5 Conn. 228 ; Phillips v. Farley, 23 Ky. for the wail which will give the hns- 
 
 L. 2201 ; Day v. Cochran, 24 Miss. 261. band his curtesy." 2 Poll. & Mait. 
 
 Therefore, the adoption of a child is Hist. Eng. L. (2d ed.) p. 418 ; Cruise, 
 
 not sufficient to comply with this re- Dig. tit. v. ch. i. § 16. 
 quisite of curtesy. Murdock v. Mur- ^ 2 Blackat. Com. p. *127 ; Cruise, 
 
 dock, 74 N. H. 77. Dig. tit. v. ch. i. § 16. 
 
 ^ The idea probably arose from this 
 
CURTESY. 649 
 
 child's tife is immaterial, provided it is born alive ; and its 
 death before that of its mother does not take away the right 
 to curtesy.^ 
 
 The requirement that the child be born during the life of 
 the mother arises from the fact that the husband must be able 
 to take possession of the property, as tenant by the curtesy 
 consummate, instantly on the death of the wife. Otherwise it 
 may descend absolutely to her heirs, and they ought not to 
 be deprived of any part of it because of a subsequent birth of 
 issue.^ Therefore, when the wife ^dies in labor, and thereafter 
 the child is taken from her by the Cesarean operation, though 
 it may live, the husband is not entitled to curtesy;^ "because 
 the childe was not born during the marriage, nor in the life 
 of the wife, but in the meane time her land descended, and 
 in pleading he must alledge that he had issue during the 
 marriage." * 
 
 Since curtesy is a continuance of the wife's inheritance, the 
 child must also be capable of inheriting the property in which 
 the curtesy is claimed. Ordinarily, of course, it is so capable. 
 But, where estates tail are still retained, if lands were conveyed 
 to a woman and the heirs male of her body, her Imsband could 
 have no curtesy therein if only /ewiaZe issue were born; because 
 such issue could not inherit those lands.^ Estates tail special 
 are the only forms of fees that sometimes can not be inherited 
 by the legitimate issue of their owners. 
 
 In a number of the United States, such as Pennsylvania, 
 Ohio, Michigan, Nebraska, and Oregon, the requisite of issue of 
 the marriage, in order to give the right to curtesy, has been 
 abolished.^ 
 
 1 Ibid.; .2 Crabb, R. P. § 1090; Ben- now one of the common practices in 
 der V. Terwilliger, 48 N. Y. App. Div. " laparotomy," and she and the child 
 371 ; GofE V. Anderson, 91 Ky. 303. both live, the husband, it seems, is en- 
 The two cases last cited discuss well titled to his curtesy. Wharton's Law 
 the evidence and proof that the child is Lexicon, " Csesarean Operation " ; Bou- 
 bom alive. Where a statute malces vier's Law Diet., ibid. 
 
 marriage of parents legitimize their is- * Co. Lit. 29 b. 
 
 sue bom before marriage, such issue ^ Lit. § 52; Co. Lit. 29 b; 2 
 
 fulfils this requirement as to curtesy. Blackst. Com. p. *128 ; Cruise, Dig. 
 
 Hunter v. "Whitworth, 9 Ala. 965. tit. v.' ch. i. § 19. "In gavelkind lands, 
 
 2 Co. Lit. 29 b ; 2 Blackst. Com. pp. a husband may be tenant by the cur- 
 *127,*128. See Marsellis w. Thalhimer, tesy, without having any issue." 2 
 2 Paige (N. Y.), 42; Eyan v. Freeman, Blackst. Com. p. *128. 
 
 36 Miss. 175; Cleghorn v. Burrows " Dubs w. Dubs, 31 Pa. St. 154 ; Ohio 
 
 (1895), 2 Ch. 497. Eev. Stat. (1880) §4176; Bruner, v. 
 
 3 Ibid. When the operation is per- Briggs, 39 Ohio St. 478; 2 Mich, 
 formed during the life of the mother, Comp. L. ch. 89, § 30 ; Neb. Comp. 
 
650 ESTATES IN REAL PROPERTY. 
 
 § 456. Fourth — Death of the 'Wife. — The fourth and last 
 requisite to a complete title to curtesy is the death of the wife, 
 le&vipg the husband surviving.^ This means her natural death, 
 in this country, since here civil death even where recognized 
 does not divest nor change' property rights.^ It has been already 
 explained that at her death leaving him surviving his curtesy 
 initiate instantly changes into curtesy consummate, that this 
 occurs by operation of law, and that no formality or ceremony 
 of any kind is needed to confer on him the latter interest as an 
 absolutely vested life estate.^ A few words are called for as to 
 the nature of each of these forms of curtesy. 
 
 § 457. Curtesy Initiate. — After the birth of issue and while 
 the wife is still living, the husband has curtesy initiate in the 
 real property of which she is properly seised during the cov- 
 erture — he has this interest after the first three of the four 
 requisites to curtesy, as above explained, have occurred.* 
 
 At common law, unaffected by married women's legislation, 
 this curtesy initiate is a freehold (for his life) estate in the 
 realty ; ^ an interest, which he has power to convey," which may 
 be reached by judgment and sold on execution against him,'' for 
 which he may sue alone and in his own right if it be wrongfully 
 injured or taken from him,* and of which he can not be legally 
 deprived even by the state without due process of law and the 
 payment of just compensation.® By some prominent courts it 
 has been said that he is seised of this interest in the right of 
 his wife and jointly with her, so that if he be disseised the stat- 
 ute of limitations runs against her as well as against him while 
 
 Stat. (1881) ch. 23, § 29; Forbes v. Stewart w. Eoss, 50 Miss. 776 ; Boykin 
 
 Sweesy, 8 Neb 520; Oreg. Gen. L. ch. v. Rain, 28 Ala. 332 ; Co. Lit. 30 a. 
 XVII. tit. II. § 30. ' And no disclaimer of curtesy by 
 
 1 2 Blackst. Com. p. *128; Cruise, the husband can defeat this right of his 
 Dig. tit. r. cb. 1, § 24. creditors. Van Duzer v. Van Duzer, 6 
 
 2 Avery v. Everett, 110 N. Y. 317 ; Paige (N. Y.), 366 ; Watson v. Watson, 
 Woolridge i^. Lucas, 7 B. Mon. (Ky.) 13 Conn. 83 ; Canby's Lessee v. Porter, 
 49. At common law, her civil death 12 Ohio, 79 ; Rozarth v. Largent, 128 
 formerly made curtesy become consnm- lU. 95 ; McCaskiU v. McCormac, 99 
 mate. 1 Blackst. Com. p. *132 ; Bract. N. C. 548 ; Day v. Cochran, 24 Miss, 
 fol. 301 b, 421 b. 261. See Ball i: Woolfolk, 175 Mo. 378 ; 
 
 3 § 446, supra. - Staples o. Brown, 13 Allen (Mass.), 64. 
 * § 446, supra. » Shortall v. Hinckley, 31 111. 219; 
 5 Co. Lit. 30 a ; 2 Blackst. Cora. p. Costello v. Grand Trunk R. Co., 70 N. H. 
 
 »128; Foster v. Marshall, 22 N. H. 403. 
 
 491; Stewart v. Ross, 50 Miss. 776; ' Jackson v. Jackson, 144 111. 274; 
 
 Lancaster Co. Bk. v. Stauffer, 10 Pal Compare Hitz u. National Met. Bk., Ill 
 
 St. 398 ! Breeding v. Davis, 77 Va. 639. U. S. 722. 
 ^ Jackson v. Jackson, 144 III. 274; 
 
CURTESY. 651 
 
 they are both living.^ But the opposing view, which appears to 
 be the better and is certainly the more prevalent, is that he is 
 seised of common-law curtesy initiate in his own right, and 
 therefore while he is living adverse possession of the land by a 
 stranger does not affect the reversionary interest of the wife.^ 
 
 In many of the states of this country, of which New York, 
 Massachusetts, Pennsylvania, and probably New Jersey are illus- 
 trations, the " Married Women's Acts," which give wives such 
 sweeping control over their own property, have reduced curtesy 
 initiate, in realty acquired by wives since those acts, from a 
 vested interest to a mere status, "a simple possibility or expect- 
 ancy like that of an heir apparent." ^ As such, it may be mod- 
 ified or taken away at will by the state ;■ the wife, the owner of 
 the fee, may curtail or destroy it by her own act alone ; it can 
 not be separately mortgaged or transferred ; and the husband's 
 creditors can not reach it for payment of their claims.* It is 
 only the husband's chance of acquiring a life interest in his 
 wife's real property, in case it is not lost or disposed of 
 by her. 
 
 § 458. Curtesy Consummate. — On the death of the wife 
 leaving the husband surviving^ curtesy becomes ipso facto con- 
 summate by operation of law ; and therefore the husband can 
 not, by disclaimer or otherwise, refuse to accept it and thus 
 cause the estate to remain in any other person.^ Having thus 
 acquired it as an interest to continue during his own life, he has 
 it the same as he would own any other life estate, and subject 
 to the same incidents, rights, and duties as those that belong to 
 life estates in general.^ Thus, he may sell it, encumber it, 
 
 1 Melvin v. Proprietors of Locks and 74 ; Den d. Fagan v. Walker, 27 N. C. 
 Canals, etc., 16 Pick. (Mass.) 161 ; Kit- 634. 
 
 tiedge V. Proprietors of Locks and ' Albany Co. Sav..Bk. v. McCarty, 
 
 Canals, etc., 17 Pick. (Mass.) 246; Coe 149 N. Y. 71, 85; Staples v. Brown, 95 
 
 V. Wolcottville Mfg. Co., 35 Conn. 175; Mass. 64 ; Doyle v. Am. Co., 181 Mass. 
 
 Guion I). Anderson, 8 Humph. (Tenn.) 139; Williams v. Baker, 71 Pa. St. 
 
 298, 325 ; Weisinger o. Murphy, 2 476 ; Curry v. Bott, 53 Pa. St. 400 ; 
 
 Head (Tenn.), 674. See Jones t. Cof- Porch v. Pries, 18 N. J. Eq. 204; 
 
 fey, 109 N. C. 515. Breeding v. Davis, 77 Va. 639 ; Walker 
 
 2 Foster v. Marshall, 22 N. H. 491 ; u. Long, 109 N. C. 510. 
 
 Dawson v. Edwards, 189 111. 60; Short- * Ibid.; Myers v. Hansbrough, 202 
 
 all«. Hinkley, 31 111. 219; Stewart v. Mo. 495; Lloyd v. Planters' Mut. Ins. 
 
 Boss, 50 Miss. 776 ; Dyer v. Wittier, 89 Co., 80 Ark. 486. 
 
 Mo. 81; Co. Lit. 30 a, 124 b, 351 a. ^ Watson u. Watson, 13 Conn. 83; 
 
 See Coe v. Wolcotville Mfg. Co., 35 Witham !;. Perkins, 2 Me. 400. 
 Conn. 135 ; Ball v. Woolfolk, 175 Mo. ' Cruise, Dig. tit. v. eh. ii. § 26. 
 
 378 ; Jackson v. Johnson, 5 Cow. (N. Y.) 
 
652 ESTATES IN EEAL PROPEETT. 
 
 or lose it for his debts.^ He has emblements and estovers ; and 
 he must keep down encumbrances and not commit waste.^ He 
 does not lose it because of any second or subsequent marriage.*' 
 
 § 459. How Curtesy may be Barred or Forfeited. — At com- 
 mon law, when all four of the requisites of curtesy can be estab- 
 lished, no act or wrong on the part of the wife, either alone or in 
 conjunction with other persons than the husband, can bar or de- 
 feat that right.* In England, by vfrtue of the Married Women's 
 property act of 1882, the wife may now freely deprive the"husband 
 of all curtesy, by disposing of her property either by will or fey 
 act inter vivos? And, since so many modern statutes in this 
 country have conferred on her similar powers,® the subject of 
 what acts or omissions on the part of the husband will cause 
 him to forfeit curtesy has become far less important than it for- 
 merly was. It is, therefore, sufficient here to state briefly the 
 modes of barring curtesy at common law. Generally speaking, 
 dower also may be barred for the same reasons ; and since these 
 must be fully discussed in connection with that subject, and the 
 principles and results are substantially the same as to both 
 dower and curtesy, reference may be had to the modes of bar- 
 ring do^er for a fuller explanation of common-law barring of 
 curtesy.''_^ - 
 
 These common law causes for forfeiting or defeating curtesy 
 (and dower) are: an absolute divorce, for the fault or misco'n- 
 duct of either spouse ; ^ estoppel by deed — his uniting with her 
 in her conveyance or mortgage of the property, or making a 
 separate conveyance of his curtesy to her alienee ; ^ estoppel in 
 pais ■ — ^the precluding of himself by his conduct to claim cur- 
 tesy against her alienee ; ^^ a paramount ownership, by which 
 
 1 Bozarth v. Largent, 128 111. 95; Burgess u. Muldoon, 18 R. I. 607; 
 Stanley t!i Bonhara, 52 Ark. 354 ; Dem- Wheeler v. Hotchkiss, 10 Conn. 225. 
 ing V. Miles, 35 Neb. 739. See Vi^ait v. Wait, 4 N. Y. 95; Fallen 
 
 2 Ch. xxxviii, infra; Bajnsdall v. v. PuUen, 52 N. J. Eq 9; Meacham v. 
 Boley, 119 Fed. Rep. 191. Bunting. 156 111. 586; Doylei- Rolwing, 
 
 8 By the custom of Normandy, and 165 Mb. 231. A purchaser of the hus- 
 
 in gavelkind lands, he did lose it by a band's curtesy initiate does not lose it 
 
 subsequent marriage. Cruise, Dig. tit. v. because of a subsequent divorce. Gil- 
 
 ch. ii. § 26. lespie v. Worford, 2 Coldwell (Tenn.), 
 
 * Den d. Camp v. Quinby, 3 N. J. L. 632. 
 540; Huston v. Seeley, 27 lovra,, 183; ^ Hayden ti. Peirce, 165 Mass. 359; 
 
 Clay V. Mayr, 144 Mo. 376. Baker v Baker, 167 Mass. 575; Haines 
 
 5 Hope V. Hope (1892), 2 Ch. 336. v. Ellis, 24 Pa. St. 253; Campbell v. 
 
 6 See § 460, infra. McBee, 92 Va. 68. 
 
 ^ Infra. 1" See 2 Scribner, Dower, pp. 266- 
 
 8 Barrett v. Failing, 111 U. S. 523; 273. 
 
CURTESY. 653 
 
 her title also is defeated ; ^ the taking of the property by emi- 
 nent domain, or for taxes, etc., by the state ; ^ the statute of 
 limitations, running in favor of an adverse holder of the land ; ^ 
 and a contract between husband and wife, usually made just 
 before marriage, by which he expressly waives and relinquishes 
 all right of curtesy in her realty.* Also, if he were an alien, 
 the common law would give him no curtesy;^ and if he at- 
 tempted by a common-law transfer to convey his curtesy lands 
 in fee, he forfeited the interest that he owned ; ^ but practically 
 curtesy will not be forfeited anywhere to-day for either of these 
 two causes.' Neither did his eloping and living in adultery ever 
 bar curtesy,* although by the statute of Westminster II, Chapter 
 34, this wrong if committed by the wife was made a cause of 
 forfeiture of her dower.^ 
 
 § 460. Curtesy in the United States. — Much legislation has 
 affected this legal life estate of the husband. There may now 
 be said to be, in general, as the outcome of statutes and com- 
 mon-law principles, four different groups or classes of states, 
 within all the members of each of which curtesy has been 
 treated in substantially the same manner. 
 
 In the first of these groups, which includes, for examples. 
 New Hampshire and Vei'mont, common-law curtesy, practically 
 unaffected by statutes either directly dealing with it or in the 
 form of married women's legislation, is still retained.^" And it 
 is to be carefully noted again that, in such jurisdictions, the 
 wife can not alienate or encumber her property so as to inter- 
 fere with the husband's interest — if he can establish the requi- 
 sites above explained, and he has done nothing to bar his right, 
 he may have curtesy, not only in the realty as to which she 
 dies seised and intestate, but also in that which she disposed 
 of before her death or which she may attempt to will away 
 from him.^^ 
 
 1 § 453, supra. See Harvey v. Bris- ^ French v. Rollins, 21 Me. 372 ; 1 
 bin, 143 N. Y. 151. Wash. E. P. (6th ed.) § 350. 
 
 2 Jackson v. Jackson, 144 111. 274; ' §§ 500, 1092, infra. 
 
 § 505, infra. ' Greenl. Cruise, Dig. tit. v. ch. ii. 
 
 3 Crow V. Kightlinger, 25 Pa. St. § 33, & note. 
 343; Shortall v. Hinkley, 31 111. 219, » Ibid. 
 
 227. 1° N. H. Pub. Stat. (1891) p. 546, 
 
 * Luttrell V. Boggs, 168 lU. 361 
 McBreen v. McBreeu, 154 Mo. 323 
 Charles o. Charles, 8 Gratt. (Va.) 486 
 White V. White, 20 N. Y. App. Div. 560, 
 
 5 Foss V. Crisp, 20 Pick. (Mass.) 121 
 
 §9; Vt Stat. (1894) § 2542; 1 Stim. 
 Amer. Stat. L. § 3301 (A). 
 
 11 See Den d. Camp. v. Quinby, 3 
 N. J. L. 540; Huston v. Steele, 27 Iowa, 
 183; Clay v. Mayr, 144 Mo. 376. 
 
654 ESTATES IN EEAL PROPERTY. 
 
 The second group embraces those few states, such as Dela- 
 ware and Virginia, and perhaps New Jersey, in which while 
 curtesy is retained and the wife can not preclude the husband 
 from acquiring it in realty of which she dies seised, yet, by 
 virtue of the married women's legislation, she may bar or di- 
 minish his curtesy by conveying or encumbering her property 
 during her lifetime. She can not will it away from him. Her 
 alienation alone inter vivas is a bar. But, if he can establish tlie 
 four requisites, his right to curtesy is absolute in the real prop- 
 erty of which she dies seised — curtesy consummate in such 
 property is left intact, while curtesy initiate is reduced to a 
 mere chance or possibility.^ 
 
 In the third group, which is large and comprises such states 
 as New York, Massachusetts, Pennsylvania, Missouri and Wis- 
 consin,'-c'urtesy is also retained ; but, by virtue of the married 
 women's statutes, it may be defeated or diminished by the 
 wife's act alone, either by conveyance, mortgage, or other transfer 
 or encumbrance during her life, or by means of her will. She 
 can bar his curtesy by her act inter vivos or by her will. His 
 curtesy initiate is thus reduced to a mere chance or possibility ; 
 and he has no curtesy consummate except in real property of 
 which she dies seised and which she does not will away from 
 him.2 (a) The English law of curtesy is now substantially the 
 same as in this group of states.^ 
 
 (a) In New York, curtesy has always existed, and was expressly re- 
 served in the early statutes, L. 1782, ch. 2 ; 1 R. L. 52, § 4 ; 1 R. S. 754, 
 § 20, now a part of Deoed. Est. L. § 80. The married women's legisla- 
 tion of 1848 (L. 1848, ch. 200) enabled the wife to defeat the husband's 
 curtesy, by ner conveyance of the property by deed; and that of 1849 (L. 
 1849, ch. 375) gave her full power to bar.his curtSsy by her will. The net 
 result is that the only property in which he can have curtesy is tjaat of 
 which she dies seised and which she does not, devise to another. There- 
 fore, curtesy initiate " consists simply of a status, which is never a vested 
 right and is not separately alienable during coverture, but may be modified 
 or annulled at any time before it becomes consummate by the death of the 
 
 1 1 Stim. Amer. Stat. L. § 3301 ; 1 note ; 1 Kerr, R. P. §§ 828-832 ; Hat- 
 Wash. R. P. (6th ed.) § 354, note; field v. Sneden, 54 N. Y. 280; Harvey 
 Porch V. Fries, 18 N. J. Eq. 204 (see v. Brisbin, 143 N. Y. 151 ; Comer v. 
 dicta, in New Jersey, in Hall v. Otter- Chamberlain, 6 Allen (Mass.), 166; Sill 
 son, 52 N. J. Eq. 522, 526 ; Folwell's v. White, 62 Conn. 430 ; McMasters v. 
 Case, 67 N. J. Eq. 570, 574, reversed on Negley, 152'Pa. St. 313 ; Commissioners 
 other groflnds in 68 N. J. Eq. 728); etc. K. Directors of Poor, 169 Pa. St. 
 Moore w. Darby, 6 Del. Ch. 193 ; Breed- 116; Kingsley u. Smith, 14 Wis. 390; 
 ing V. Davis, 77 Va. 639. Neelly v. Lancaster, 47 Ark. 175> 
 
 2 1 Wash) R. P. (6th ed.) § 3.54, « Hope w. Hope (1892), 2 Ch. 336. 
 
CURTESY. 655 
 
 The fourth group comprises those states in which curtesy 
 is wholly abolished. This statutbry change has been made in 
 many states, among which are Maine, Ohio, Indiana, Illinois, 
 Michigan, Kansas, Iowa, Georgia and Florida.^ In some of 
 these, such as Illinois and Kansas, the husband is given an 
 estate similar to the wife's dower ;^ in others, such as Louis- 
 iana, Texas' and Washington, the " community system," by 
 which husband and wife hold land together, supersedes both 
 curtesy and dower ; ^ and in quite a number, other special, local 
 forms of rights are given to husband and wife in each other's 
 property in lieu of dower or curtesy or both.* 
 
 wife. . . . While merely initiate it is not an estate, but a simple possi- 
 bility or expectancy like that of an heir apparent. Either may be de- 
 stroyed at will by the owner of the fee."<vA.lbany Co. Sav. Bk. u. McCarty, 
 149 N. Y. 41, 85. Curtesy consummate, acquired after the wife dies 
 without disposing of the property, is an ordinary legal life estate. Adair 
 V. Lott, 3 Hill, 182. For the married women's legislation, and its con- 
 struction, especially as affecting curtesy, see L. 1848, ch. 200 ; L. 1849, ch. 
 375; L. 1860,'eh."90;'L. 1862, ch. 172; L. 1867, ch. 782; L. 1884, ch. 
 381; L. 1887, ch. 587; L. 1890, ch. 51, 284; L. 1892, ch. 594; L. 1909, 
 ch. 19, §§ 50, 51, 56 ;-f Hatfield v. Sneden, 54 N. Y. 280 ; Bertles v. Nunan, 
 92 N. Y. 152; Harvey v. Brisbin, 143 N. Y. 151;>Albany Co. Sav. Bk. v. 
 McCarty, 149 N. Y.'71; Wells v. Betts, 45 App. Div. 115; Spindler v. 
 Gibson, 75 App. Div. 444 ; Valentine v. Hutchinson, 43 Misc. 314. 
 
 1 1 Wash. R. P. (6th ed.) § 354, » 1 Stira. Araer. Stat. L. §§ 3400- 
 note; 1 Stim. Amer. Stat. L. §§ 3202, 3405; §§ 691, 692, infra. 
 
 3301. See Ex parte Watts, 130 N. C. * 1 Stira. Amer. Stat. L. §§ 3202, 
 
 237. 3301 ; 1 Wash. R. P. (6tli ed.) § 354, 
 
 2 Ibid. ; Jackson o. Jackson, 144 III. note ; 1 Kerr, R. P. §§ 828-832. 
 274. 
 
(6) DOWER. 
 CHAPTER XXXI. 
 
 HISTORT, NATURE, FORMS AND REQUISITES OP DOWER — 
 QUARANTINE. 
 
 § 461. Growth, and early forms, 
 of dower interests. 
 
 § 462. Definition, incident, forms 
 and requisites of dower. 
 
 § 463. The widow's quarantine. 
 
 Nature of dower, in its different farms 
 or stages. 
 
 § 464. Its three stages or forms. 
 
 § 465. First — Inchoate right of 
 dower. 
 
 § 466. Second — Dower after hus- 
 band's death, but before assign- 
 ment. 
 
 § 467. Third — Dower after as- 
 signment. 
 
 Requisites of Dower. 
 
 § 468. The requisites restated. 
 
 § 469. First — Lawful marriage. 
 
 § 470. Second — Beneficial seisin 
 by the husband of an estate of in- 
 heritance during the coverture. 
 
 § 471. The husband's seisin may 
 be either in law or in fact. 
 
 § 472. The husband's seisin of 
 equitable estates — Dower in equi- 
 table estates. 
 
 § 473. Third — Death of the hus- 
 band. I 
 
 § 474. Fourth — The estate of 
 inheritance of the husbapd must be 
 one which the issue of the marriage, 
 if any, may by possibility inherit. 
 
 § 461. Growth, and Early Forms, of Dower Interests. — 
 Marriage, in any civilized community, is naturally accompanied 
 by gifts of property, from husband to wife, or from wife to hus- 
 band, or both. Dower, as it developed in England, was, of 
 course, one of the outgrowths of this custom, but an out- 
 growth the exact process of which the most thorough inves- 
 tigation by historians and jurists has failed to make clear.^ 
 Tacitus noticed the contrast of Roman Law and Teutonic cus- 
 tom, in that the former had the wife bring a dowry to the 
 husband, while in the latter the husband conferred a gift, 
 dower, on the wife.^ The " bride price " of the early Ger- 
 manic tribes, the price paid by the intended husband to the 
 family of the intended bride,* came to be followed by the 
 
 1 2 Poll. & Mait. Hist. Eng. L. (2d 
 ed.) pp. 225, 226 ; I Scribner, Dower, 
 p. 1. 
 
 2 Germania, ch. 18. 
 
 3 Digby, Hist. .Law E. P. (5th ed.) 
 p. 127. This custom is very ancient. 
 
HISTORY, NATURE, ETC., OF DOWER. 657 
 
 " morning gift," a present of lands or chattels from husband 
 to wife on the morning after the marriage ; and the latter was 
 employed generally by the German races, and quite commonly 
 in England in Anglo-Saxon times.i Feudalism, in dealing with 
 such rights, " gave an air of nqvelty to an old institution." ^ 
 And common-law dower comes down to us with features which 
 those ancient Teutonic forms of gift here mentioned, whether 
 they were its progenitors or not, did not possess. Thus, " it 
 seems probable that in early times, if there was nothing in the 
 form of the gift to the contrary, the wife might, notwithstand- 
 ing the marriage, alienate the property so given to her. This 
 power of disposing of the dower, if it existed, had ceased in 
 Glanvill's time." ^ By the law of that age, the man was re- 
 quired to endow the woman, by a gift of realty made ad ostium 
 ecclesiae, at the church door — at the time of the solemnization 
 of the marriage. He might specify the amount which lie gave, 
 and this could be less than one third of the realty which he 
 then owned ; but if he failed to name the amount, it was such 
 third. If he gave more than the third, it was cut down to that 
 share at his death.* 
 
 Dower ad ostium ecclesiae, then, was at least a prominent 
 and impoi'tant form of such right in our early law.^ A similar 
 form was dower ex assensu patris, which was a gift to the wife 
 at the church door, made by the husband out of lands belonging 
 to his father and with the latter's consent.^ And the other 
 three kinds, of which Littleton tells us, and which took part in 
 the struggle for permanency in early feudal times, were : dower 
 by special custom, of which dower in gavelkind lands, being one 
 half during the life of the wife, is an illustration ; the common- 
 law dower, which is to be explained in detail ; and dower de la 
 plus belle, which was her endowment in some cases of the fair- 
 est portion of the property held by her as guardian in socage 
 of the minor son of herself and her deceased husband.^ The 
 
 Cribb. Hist. Eng. L. pp. 79, 80. In ^ aPoll.&Mait. Hist. Eng.L.{2ded.) 
 
 pleading for Jacob's daughter Dinah, p. 425. 
 
 Shechem said to Jacob and his sons : ' Digby. Hist. Law R. P. (5th ed.) 
 
 "Ask me never so much dowry and p. 129. 
 
 gift, and I will give according as ye * Ibid. ; Lit. § 39. 
 
 shall say unto me : but give me the ^ Ibid. ; 2 Poll. & Mait. Hist. Eng. L. 
 
 damsel to wife." Genesis xxxiv, 12. (2d ed.) pp. 374, 375. 
 
 1 2 Poll. & Mait. Hist. Eng. L. (2d ^ Ljt. §§ 40, 51 ; 1 Scribner, Dower, 
 
 ed.) p. 425 ; Digby, Hist. Law R. P. (5th ch. 1, § 28. 
 
 ed.) p. 128. ' Lit. § 51 ; 2 Blackst. Com. p. * 132. 
 
 " Dower de la pluis beale was wliere the 
 42 
 
658 ESTATES IN REAL PROPEETY. 
 
 common-law dower, to be next defined, outlived all the other 
 forms ; and is the kind now universally meant when " dower " 
 simply is mentioned. It is the only kind that exists in the 
 United States.^ 
 
 § 462. Definition, Incident, Forms and Requisites of So'vtrer. 
 — Dower has been heretofore defined as, the life interest of 
 a wife in one third of the real property of which her husband 
 was beneficially seised of an estate of inheritance during the 
 coverture.^ It carries with it, as an appendage or incident, the 
 widow's quarantine — her riglit to reside in the husband's chief 
 house for forty days (or some other period fixed by statute) 
 after his death, and in the meantime to have her reasonable 
 sustenance out of his estate.* Dower begins, as an inchoate 
 right, as soon as the husband is seised of the property during 
 the coverture ; at his death leaving her surviving it becomes a 
 chose in action, a right to compel the heir of the husband or 
 other owner in fee to assign or admeasure her third, her dower 
 land, and give her possession ; and, when such assignment is 
 properly made, it is a legal life estate in the property so 
 allotted.* There are always three requisites to the existence 
 of dower, two of which are essential to it as an inchoate right; 
 and all of which must exist in order to give dower consummate, 
 the legal life estate or the right to sue for the same. These 
 are : First, lawful marriage ; second, beneficial seisin by the 
 husband of an estate of inheritance during the coverture ; 
 third, death of the husband. And a fourth, strict requisite, 
 though now of practical application in only a few states, is that 
 the estate of inheritance of the husband shall be one which 
 the issue of the marriage, if any, may by possibility inherit.^ 
 These features of dower — quarantine, forms and requisites — 
 are to be discussed in the order here briefly stated. 
 
 § 463. The Widow's Quarantine. — Her one-third interest in 
 
 husband held a portion of his lands by to say, of the fairest portion of the tene- 
 knight service, and a portion in socage, ments held by her as guardian in so- 
 and died leaving a widow and a son cage." 1 ,Scribner, Dower, ch. 1,§ 29. 
 within the age of fourteen years, and ' i 1 Scribner, Dower, ch. 1, § 30. 
 the lord of whom the land was held in ^ g ■j2, supra. 
 knight's service entered upon that por- ' § 46.3, infra. 
 tion as guardian in chivalry during the * It thus differs essentially from cur- 
 nonage of the infant, and the widow tesy, which has only two forms, initiate 
 entered upon and occupied the residue while the wife is living and consummate 
 as guardian in socage. If, in such case, after her death. See §§ 457, 458, supra ; 
 she brought a writ to be endowed of the §§ 464-467, infra. 
 whole premises, she was compelled to ^ Lit. § 53 ; 2 Blackst. Com. pp. • 129- 
 endow herself de la pluis beale; that is * 131 ; 4 Kent's Com. p. *36. 
 
HISTORY, NATURE, ETC., OF DOWER. 65S 
 
 her husband's realty and her right of quarantine at his death 
 make the sum total of the wife's common-law rights and estates 
 growing out of his ownership of real property. Her quarantine, 
 which was sanctioned if not originated by Magna Gharta^ is 
 her right to occupy the chief house (residence) of her husband, 
 and to be supported therein out of his personal property for 
 forty days after his death.^ It is the duty of the heir, or other 
 owner of the fee, to admeasure and assign her dower lands 
 within this period.^ This appendage to dower is an emphatic 
 right at common law. And, by the statutes in this country, it 
 or a similar right is uniformly retained where dower still exists. 
 In a few states, the period is extended, being made in some as 
 long as a year, and in others caused to continue until her dower 
 land is actually assigned.* (a) 
 
 A widow has no right of quarantine in any property of 
 which she is not dowable. The husband's chief residence, for 
 this purpose, means the principal house in which he resided 
 and which he so owned in fee that out of it she might take 
 dower.^ If for any cause this house be uninhabitable at the 
 
 (a) In New York, the statute, which is substantially the same as in 
 Magna Charta, declares that, " a widow may remain in the chief house of 
 her husband forty days after his death, whether her dower is sooner as- 
 signed to her or not, without being liable to any rent for the same ; and in 
 the mean time she may have her reasonable sustenance out of the estate 
 of her husband." Real Prop. L. § 204, which was 1 R. S. 742, § 17, and 
 1 R. L. 56. This gives the widow the same right as does the English law 
 with the aid of Magna Charta. It assures to her, for forty days, her rea- 
 Bonahle sustenance, and a shelter from which the heir of the husband can 
 not expel her during that time. Siglar v. Van Riper, 10 Wend. 414 ; 
 Jackson v. O'Donaghy, 7 Johns. 247. It seems that, if .she accept a pro- 
 vision in her husband's will, in lieu of dower " and all statutory allow- 
 ances," she waives her quarantine. Matter of Mersereau, 38 Misc. 208. 
 See also, Bogardus «. Trinity Church, 4 Paige, 178, 198; Yates v. Paddock, 
 10 Wend. 529; Johnson v. Corbett, 11 Paige, 265;' Voelckner v. Hudson, 
 1 Sandf. 215; Matter of Wachter, 16 Misc. 137. 
 
 1 2 Blackst. Com. p. *134; 2 Poll. requires. Matter of Wachter, 16 N. Y. 
 
 & Mait. Hist. Eng. L. (2d ed.) p. 422. Misc. 137, 140. 
 
 ^ The word " quarantine " is " made ^ Ibid, 
 
 use of in law to signify the number of * 2 Scribner, Dower, ch. 3, §§ 3, 4. 
 
 forty days, whether applied to this oc- " * Therefore the right can not attach 
 
 casion, or otherwise." 2 Blackst. Com. to land of which the husband had only 
 
 p. *134. It " corresponds to the German a leasehold, nor to any of his personal 
 
 Dreissigste, the widow's month." 2 Poll. property. Voelckner v. Hudson, 1 Sandf. 
 
 & Mait. Hist. Eng. L. (2d ed.) p. 422, 215 ; Pizzala v. Campbell, 46 Ala. 35 ; 
 
 note 5, It includes her consumption Harrison v. Boyd, 36 Ala. 203. 
 of such personalty as she reasonably 
 
660 ESTATES IN REAL PROPERTY. 
 
 time of his death, she may have it made suitable for her resi- 
 dence, at the expense of his estate.^ ^.Modern statutes usually 
 permit her to occupy it by a tenant, if she clioose. ^ She need 
 make no repairs during her quarantine, nor is she required to 
 pay any taxes, assessments or other expenses.^^) Her right is 
 purely personal, and can not be taken by an execution against 
 her.* If she re-marry or vacate the premises within the period, 
 she forfeited her quarantine at common law ; ^ but it is at least 
 doubtful if such is the law in this country.^ 
 
 Nature of Bower in its Different Forms or Stages. 
 
 § 464. Its Three Forms or Stages. — It has been explained 
 that the wife's dower right and interest may pas^ through 
 three stages or forms: First, it is an inchoate right, while 
 both husband and wife are living and he is properly seised 
 of the realty ; second, when he dies leaving her surviving, it 
 becomes a chose in action, a right to sue for the assignment 
 or admeasurement of her dower land ; third, after her portion 
 is properly assigned, she has a legal life estate therein.^ Each 
 of these forms or stages requires a brief separate discussion. 
 
 § 465. First — Inchoate Right of Dower. — As SOOn as there 
 is a concurrence of marriage and proper seisin of the husband, 
 the wife has an inchoate right of dower. This does not amount 
 to an estate, or title ; and it is not property.** It is a contin- 
 gent right, a possibility or chance of acquiring dower land by 
 outliving the husband ; and yet it is a valuable, subsisting, 
 separate and distinct right, which is entitled to protection, 
 and for which in many jurisdictions she may have a separate 
 
 1 Nelson v. Baniett, 123 Mo. 564. ch. 31 ; Sherman v. Hayward, 98 N. Y. 
 
 " Craige v. Morris, 25 N. J. Eq. 468 ; App. Div. 2.54. 
 
 Oakley v. Oakley, 30 Ala. 131 ; White « Johnston v.- Vandyke, 6 McLean 
 
 V. Clarke, 7 T. B. Monr. (Ky.) 641. See (TJ. S. Cir. Ct.), 422; Richards v. Bel- 
 
 Casteel o. Potter, 176 Mo. 76; 2 Scrib- lingham Bay Land Co., 54 Fed. Eep. 
 
 ner, Dower, ch. 3, § 9. 209 (C. C. A.) ; Moore v. The Mayor, 
 
 5 Spinning v. Spinning, 41 N. J. Eq. etc., 8 N. Y. 110; Clifford v. Kampfe, 
 427; Graves ti. fcochran, 68 Mo. 74. 147 N. Y. 383; Flynn v. Flynn, 171 
 
 * Carnall v. Wilson, 21 Ark. 62 ; Mass. 312 ; Wheeler «. Kirtland, 27 
 
 Doe d. Cook v. Webb, 18 Ala. 814. N. J. Eq. 534 ; Virgin v. Virgin, 189 
 
 ° Co. Lit. 32 b, 34 b ; 1 Roper, Hush. 111. 144 ; Stitt v. Smith, 102 Minn. 253 ; 
 
 &W. p. 388. Bonfoey v. Bonfoey, 100 Mich. 84; 
 
 6 See Doe d. Sheldon v. Carroll, 16 Eeiff v. Horst, 55 Md. 42; Smith v. 
 Ala. 148 ; 2 Scribner, Dower, ch. 3, Howell, 53 Ark. 279 ; 2 Scribner, 
 § 16. Dowor, ch. 1, §§ 5, 6. 
 
 ' §462, supra; 1 Scribner, Dower, 
 
HISTORY, NATURE, ETC., OF DOWER, 
 
 661 
 
 action.^ It is " as much entitled to protection as tlie vested 
 rights of the widow." ^ It is so far substantial, and so attached 
 to the land, that its existence constitutes an encumbrance on 
 the title within the covenant against encumbrances or of 
 warranty.^ 
 
 Not being a vested interest or right, according to the view 
 of most courts, it may be changed, or taken away, or dimin- 
 ished, by the legislature at pleasure.* And, since it is not 
 property, the wife is not entitled to compensation from the 
 state or other institution that properly takes the land by the 
 power of eminent domain, or acquires it by dedication for 
 public use.® So, she can not transfer this right to one who 
 owns or acquires no other interest in the realty, even though 
 her husband join with her in the conveyance.* Nor can it be 
 
 I Ibid. In the first of these cases, 
 McLean, J., said : " It is not easy to 
 define the right of dower before the 
 death of the husband. ... It is not only 
 an inchoate right, but contingent. It 
 depends upon the death of the husband. 
 . . . Until the death of the husband, the 
 right — if it may be called a right — is 
 shadowy and fictitious, and, like aU 
 rights which are contingent, may never 
 become vested." In Clifford v. Kampfe, 
 147 N. Y. 383, Judge Haight said: 
 "Being inchoate and contingent, her 
 interest does not amount to an estate or 
 title, and yet she has an interest which 
 attaches to the land as soon as there is 
 a concurrence of marriage and seisin. 
 . . . The inchoate right of dower is a 
 valuable, subsisting, separate and dis- 
 tinct interest, which is entitled to pro- 
 tection, and for which the wife may 
 maintain a separate action." It is dif- 
 ficult to define this incipient right ac- 
 curately and comprehensively. But 
 such statements as these seem to be the 
 best judicial utterances as to its na- 
 ture. See Atwood v. Arnold, 23 R. I. 
 609; Higgins v. Ormsby, 156 Ind. 
 82; Mason v. Mason, 140 Mass. 63, 
 where it is called "a vested right of 
 value " ; Elmendorf v. Lockwood, 57 
 N. Y. 322 ; Mills v. Van Voorhies, 20 
 N. Y. 412 ; Venable v. W. W. R. Co., 112 
 Mo. 103 ; In re Alexander, 53 N. J. Eq. 
 96; Mc Arthur v. Franklin, 16 Ohio St. 
 193 ; 2 Scribner, Dower, ch. 1, §§ 13-20. 
 
 2 Campbell v. EUwanger, 81 Hun 
 (N. Y.), 259. See NewhaU v. Lynn 
 Savings Bk., 101 Mass. 431. 
 
 ' Shearer v. Ranger, 22 Pick. (Mass.) 
 447 ; Harrington v. Murphy, 109 Mass. 
 299 ; Jones v. Gardner, 10 Johns. (N. Y.) 
 266 ; Carter v. Denman's Executors, 23 
 N. J. L. 260; Russ v. Perry, 49 N. H. 
 547 ; 2 Scribner, Dower, ch. 1, § 3. 
 
 * Randall v. Kreiger, 90 U. S. (23 
 Wall.) 148 ; Richards v. Bellingham 
 Bay Land Co., 54 Fed. Rep. (C. C. A.) 
 209; Jackson v. Edwards, 7 Paige 
 (N. Y.), 391, 22 Wend. (N. Y.) 498; 
 Virgin v. Virgin, 189 111. 114 ; Melizet's 
 Appeal, 17 Pa. St. 449; Weaver v. 
 Gregg, 6 Ohio St. 547 ; Lee v. Lindell, 
 22 Mo. 202. Compare, Higgins v. 
 Ormsby, 156 Ind. 82; In re Alexander, 
 53 N. J. Eq. 96. 
 
 ^ Moore v. Mayor, etc. 8 N. Y. 110; 
 Flynn v. Flynn, 171 Mass. 312; French 
 V. Lord, 69 Me. 537 ; Venable v. W. W. 
 R. Co., 112 Mo. 103; Duncan v. City of 
 Terre Haute, 85 Ind. 104. Compare, 
 Wheeler v. Kirtland, 27 N. J. Eq. 534; 
 In re Central Park Extension, 16 Abb. 
 Pr. (N. Y.) 69 ; Royston v. Royston, 
 21 Ga. 161 ; 2 Scribner, Dower, ch. 1, 
 §§ 8-20. 
 
 * Moore ». Mayor, etc. 8 N. Y. 110; 
 Mason V. Mason, 140 Mass 63 ; Reiff v. 
 Horst, 55 Md. 47. But she may release 
 it to an owner or purchaser of the free- 
 hold, or toione who has owned the land 
 subject to her dower and has con- 
 
662 
 
 ESTATES IN REAL PROPERTY. 
 
 reached by an execution against her, nor by a creditor's bill,^ 
 nor by a mechanic's lien though filed for improvements for 
 which she had agreed to pay.'-* 
 
 But, because it is a substantial right entitled to protection, 
 it attaches to the compensation paid the husband when the 
 property is taken for public purposes ; ^ it gives her a right to 
 redeem from a mortgage on the land when it is not duly cut 
 off by a foreclosure of such mortgage ; * and, by the rule of 
 many decisions, it attaches to any surplus that may go to the 
 husband when it is properly removed from the land by such a 
 foreclosure.^ Likewise, if the land subject to dower be sold in 
 a partition suit oi- other judicial proceeding, which results in 
 a conveyance of the property free of her dower claim, she is 
 entitled to have one third of the share of the proceeds which 
 comes to her husband ,so secured, that she may be sure of the, 
 income for the rest of her life after his death, on that third 
 (dower) in case she outlives him.^ The relinquishment of 
 her inchoate right of dower to a purchaser or encum- 
 brancer of the land is a valuable consideration for a con- 
 tract between him and her." And she mav have her redress 
 
 veyed it with a warranty. Ibid.; Har- 
 liman v. Gray, 49 Me. 537 ; Chicago 
 Dock Co. V. Kinzie, 49 111. 289 ; § 503, 
 infra. 
 
 1 Sherman v. Hayward, 98 N. Y. 
 App. Div. 254. 
 
 ^ Johnston v. Dahlgren, 14 N. Y. 
 Misc. 623. 
 
 " That is, she can require one thirjd 
 of what is paid to him to be so invested 
 or held that, after his death,if she survive 
 him, she may obtain the income on that 
 third for the rest of her life. In re New 
 York and Brooklyn Bridge, 27 N. Y. 
 Supp. 597, 75 Han, 558 ; Simar o. 
 Canaday, 53 N. Y. 298. See Citizens' 
 Savings Bk. v. Mooney, 26 N. Y. Misc. 
 67 ; S. Y. Code Civ. Pro. § 2793, subd. 
 3. 
 
 * Campbell v. EUwanger, 81 Hun 
 (N. Y.),259. 
 
 ^ Ibid.; Vartie v. Underwood, 18 
 Barb. (N. Y.) 561, 564 ; Brackett v. 
 Banm, 50 N. Y. 8, 11 ; Hawley v. Brad- 
 ford, 9 Paige (N. Y.), 200 ; N. Y. Gen. 
 Rules Prac. No. 64 ; Vreeland v. Ja- 
 cobus, 19 N. J. Eq. 231 ; De Wolf v. 
 Murphy, 11 R. I. 630; Mandel v. Mc- 
 
 Clave,. 46 Ohio St. 407; 1 Scribner, 
 Dower, ch. 23, §§ 26-30 ; § 480, infra. 
 Contra, Kauftman v. Peacock, 115 111. 
 212 ; Newhall v. Lynn Savings Bk., 101 
 Mass. 431 ; Cook v. Dillon, 9 Iowa, 412 ; 
 ' Dean v. Phillips, 17 Ind. 409. 
 
 « N.Y. Code Civ. Pro. §§1570, 1571; 
 Race V. Gilbert, 102 N. Y. 300; Jordan 
 V. Van Epps, 85 N. Y. 427 ; Jackson v. 
 Edwards, 7 Paige (N. Y.), 386 ; Warren 
 V. TwiUey, 10 Md. 39 ; Greiner v. Klein, 
 28 Mich. 12; 1 Scribner, Dower, ch. 16, 
 §§ 18-33 ; 2 id. ch. 1, § 6. Contra, Lee 
 V. Lindell, 22 Mo. 202 ; Weaver v. Gregg, 
 6 Ohio St. 547. In cases in which the 
 inchoate right of dower thus attaches to 
 money or proceeds, it may, with the 
 consent of all the parties, be paid in a 
 gross suBa as computed by use of the 
 mortality and annuity tables. Jackson 
 V. Edwards, 7 Paige (N. Y.), 386, 408 ; 
 Bartlett v. Van Zandt, 4 Sandf. ch. 
 (N. Y.) 396. 1 Scribner, Dower, ch. 1, 
 §6. 
 
 ' Motley V. Sawyer, 38 Me. 68; Bul- 
 lard V. Briggs, 7 Pick. (Mass.) 533 ■ 
 Nims ■* Bigelow, 45 N. H. 343. 
 
HISTORY, NATURE, ETC., OF DOWER. 663 
 
 when the husband, either alone or in conjunction with others, 
 attempts to deprive her of this right, by alienation of the land 
 or otherwise.^ 
 
 While at common law she could not sue alone for the 
 enforcement or protection of her inchoate dower right, and 
 her only way of relinquishing it was by means of a fine levied 
 in connection with her husband, ^ yet modern statutes generally 
 have enabled her to transfer or release it by deed to an alienee 
 of the property ; ^ and, in the more liberal code states of this 
 country, she may sue alone for its protection when necessary, 
 even though she must make her husband a defendant in the 
 action.* But she can not anywhere sustain an action for the 
 enjoyment of her dower while inchoate, nor to prevent waste 
 of the land, nor to recover its possession from an adverse 
 holdei'.^ 
 
 § 466. Second — Dower after Husband's Death, but before 
 Assignment. — After the death of her husband, but before the 
 assignment of her dower third, the widow owns a chose in ac- 
 tion, which is a vested right, not subject to be abrogate^d or 
 modified at pleasure by the state." It is property, which can 
 not legally be taken from her by the power of eminent domain 
 without just compensation.'^ But it is not yet an estate or in- 
 terest in the real property. It is a mere right to sue some 
 , one, usually the heir or devisee of the husband, to acquire such 
 an estate.* 
 
 As the owner of this chose in action, the widow, it seems, 
 was always able to maintain a suit to protect the land which 
 her husband had owned from injury by the heir or other per- 
 
 1 Clifford V. Kampfe, U7 N. Y. 383 ; « Strong r. Clem, 12 Ind. 37 ; Bar- 
 Burns V. Lynde, 6 Allen (Mass.), 305; hour u. Barbour, 46 Me. 9; 2 Scribner, 
 Bonfoey v. Bonfoey, 100 Mich. 82 ; Kelly Dower, ch. ii. § 3. 
 
 V. McGrath, 70 Ala. 75. ' Ibid. ; Mutual Life Ins. Co. a. 
 
 2 2 Blackst. Cora. p. *I37 ; 2 Scrib- Shipman, 119 N. Y. 32.'i. 
 
 ner, Dower, ch. 12, § 2 ; Park, Dower, ^ Van Name v. Van Name, 23 How. 
 
 § 193. Pr. (N. Y.) 247 ; Wade v. Miller, 32 
 
 ' 2 Scribner, Dower, ch. 12. N. J. L. 296; Weaver v. Sturtevant, 
 
 * Mills u. VanVoorhies, 20 N. Y. 12 R. I. 537; -Best ^. Jenks, 123 III. 
 
 420; Clifford v. Kampfe, 147 N. Y. 383 ; 447 ; 2 Scribner, Dower, ch. ii. §§ 4-25. 
 
 Madigan !'. Walsh, 22 Wis. 478. Therefore, she has no right of entry 
 
 5 Taylor v. Laurence, 148 111. 388 ; during this stage of her dower claim. 
 
 Miller v. Pence, 132 111. 149 ; Boling v. Ibid. ; Heisen v. Heisen, 145 111. 658 ; 
 
 Clark, 83 Iowa, 481 ; Phelps v. Phelps, Johnson v. Shields, 32 Me. 424 ; Hil- 
 
 143 N. Y. 197 ; Durham v. Angier, 20 dreth v. Thompson, 16 Mass. 191 ; Park, 
 
 Me. 242; McArthur v. Franklin, 16 Dower, § 334. See article in 61 Alb. 
 
 Ohio St, 193 ; Williams v. Williams, L. J. 283. 
 
 89 Ky. 381. 
 
OUI JUBTATKH JIJN itKALi i'KUi'KKTI. 
 
 sons.^ And her right could now be released to the owner of 
 the fee, and so extinguished.^ But, at common law, she could 
 not assign it to any one else ; ^ nor could it be taken on exe- 
 cution against her.* A court of equity, however, would gener-. 
 ally recognize and enforce her transfer of it, and allow it to be 
 reached by a creditor's bill for the payment of her debts.^ 
 
 In a number of the states of this country, such as New 
 York, Missouri and Minnesota, the statutes which make choses 
 in action freely assignable have been held to reach to the widow's 
 dower right in this stage of its development. In such jurisdic- 
 tions, it may be transferred by her, so that her purchaser may 
 sue in his own name for its recovery ; and it may be reached 
 by attachment or taken on execution against her.^ But, in 
 other states, of which Maine, Rhode Island, Illinois and Arkan- 
 sas are illustrations, even though their statutes as to assign- 
 ment of choses in action are liberal, it is still held that at law 
 the widow's dower right before admeasurement of her third is 
 so purely personal that she can not transfer it to a stranger to 
 the title, nor have it taken from her in invitum for her debts.' 
 
 § 467. Third — Dower after Assignment. — The different 
 methods of assigning dower — admeasuring the widow's third 
 and giving her possession — are to be explained hereafter.* 
 When the assignment is made and she has taken possession, 
 and so she is enjoying the benefit of her dower property, she 
 has a freehold interest therein, an estate for her own life.* 
 
 1 Shepardu. Manhattan B. Co., 117 2 Scribner, Dower, ch. ii. §§ 37-41. 
 N. Y. 442 ; Rogers v. Potter, 32 N. J. See Payne v. Becker, 87 N. Y. 153 ; 
 L. 78; Hoxsie v. Ellis, 4 R. I. 123; McMahon v. Gray, 150 Mass. 291; 
 1 Wash. R. P. (6th ed.) § 484. Harper v. Clayton, 84 Md. 346. 
 
 2 Elmendorf v. Lockwood, 57 N. Y. e Payne l: Becker, 87 N. Y. 153 ; 
 322 ; Sloniger v. Sloniger, 161 111. 270; Mutual Life Ins. Co. v. Shipman, 119 
 Saunders v. Blythe, 112 Mo. 1 ; 2 Scrib- N. Y. 324 ; Higgins v. McConnell, 130 
 ner, Dower, ch. xii. §§ 51, 52. ^ N. Y. 482 ; Latourette v. Latourette, 52 
 
 ' Jack.son v. Vanderheyden, 17 N. Y. App. Div. 192; Cassity w. Pound, 
 
 Johns. (N. Y.) 167; Leavitt v. Lamp- 167 Mo. 605; Dobberstein v. Murphy, 
 
 rey, 13 Pick. (Mass.) 382 ; Union 64 Minn. 129 ; Strong v. Clem, 12 Ind. 
 
 Brewing Co. v. Meier, 163 111. 424 ; John- 37 ; Serry v. Curry, 26 Neb. 353. 
 
 son V. Shields, 32 Me. 424; Carnall v. ' Field v. Lang, 87 Me. 441 ; Ritt v. 
 
 Wilson, 21 Ark. 62 ; 2 Scribner, Dower, Dodge, 20 R. 1. 133 ; Union Brewing 
 
 ch. ii. §§ 33-36. Co. v. Meier, 163 111. 424; Sloniger t). 
 
 * Aikman v. Harsell, 98 N. Y. 186 ; Sloniger, 161 111. 270 ; Weaver v. Rush, 
 Gooch I). Atkins, 14 Mass. 378; Rausch 62 Ark. 51; Francis «. Sandlin, 150 Ala. 
 V. Moore, 48 Iowa, 611; 2 Scribner, 583; Pacific Bank w. Hannah, 32 Cir. 
 Dower, ch. ii. §§ 26-32. Ct. App. 522. 
 
 * Tompkins v. Fonda, 4 Paige (N. ^ Ch. xxxiii. infra. 
 
 Y.), 448; Potter v. Everitt, 42 N. C. ^ Rowley v. Poppenhager, 203 HI. 
 
 152; Boltz V. Stolz,»41 Ohio St. 540; 434; Park, Dower, § 339. 
 
HISTORY, NATURE, ETC., OF DOWER. 665 
 
 This interest, it is to be reiterated, is conferred upon her by 
 operation of law. And, no matter how late she may be in ac- 
 quiring it, it is treated when obtained by her as a continuation 
 of her deceased husband's estate. Her title relates back to his 
 death and is a continuation of his title.^ Therefore, though 
 the husband's heir or devisee enters on all his lands and holds 
 seisin of them for some time after his death, as soon as she 
 takes possession of her third her seisin defeats and destroys ab 
 initio the seisin of such heir or devisee as to that portion, 
 and he is, thereafter to be treated as never having been 
 seised thereof.^ She gets dower from her husband by operation 
 of law, and the law treats her seisin and his as one and 
 continuous.^ 
 
 Because of this principle, he who admeasures the dower 
 land is the mere instrument or medium, through whom in con- 
 templation of law the deceased husband makes the assignment. 
 The heir does not give her any dower. The husband gives it 
 to her, and the heir's hand in measuring it off is the liand of 
 the husband. The property thus passes to her for life, and is 
 then to revert to the husband's heir or devisee or his successor 
 in title.* There is no •privity of estate between her and such 
 reversioner.^ Both of them derive title from the husband, but 
 neither of them from the other. He simply acted for the hus- 
 band in staking off her property for her. Therefore, the as- 
 signment of dower is not a valuable consideration for any 
 promise made by the dowager to him who makes the assign- 
 ment.® And, by virtue of the requirement as to a remainder 
 that it and the preceding particular estate on which it depends 
 must be created in one and the same transaction,'' if the heir 
 assign dower to the widow, and by the same deed or transaction 
 attempt to grant to another person a remainder dependent on 
 her life estate and to take effect at her death, it has been de- 
 
 1 Co. Lit. 339 a ; Lawrence v. Brown, she is in of the landsassigned to her, by 
 5 N. Y. 394 ; Windham v. Portland, 4 her husband, and not by the person 
 Mass. 348. 2 Scribner, Dower, ch. xxx, making the assignment." 2 Scribner, 
 § 2. Dower, ch. xxx. § 2. See also id. § 5, 
 
 2 Ibid. ; Co. Lit. 241 a ; Lawrence v. which shows that the matter of tenure 
 Brown, 5 N. Y. 394 ; Powell v. Monson, here mentioned is unimportant in this 
 3 Mason (U. S. Cir. Ct.), 368 ; 4 Kent's country. 
 
 Com. pp. *62, »69. ' Park, Dower, § 341 ; 2 Scribner, 
 
 3 Ibid. Dower, ch. xxx. § 2. 
 
 * Ibid. ; Park, Dower, § 341. ' See this requisite explained at § 89 
 
 6 Adams «. Butts, 9 Conn. 79. " Al- (2), supra, and more fully at § 871, fourth, 
 
 though, in point of tenure, a dowress infra. 
 
 holds of the heir, yet in point of title 
 
666 ESTATES IN REAL PROPERTY. 
 
 clared that no remainder is thereby created, because the dower 
 interest, the particular estate so-called, is not really created in 
 that transaction but is given by the husband as at the time of 
 his death — the husband gives the dower, and no one else can 
 give a valid, common-law remainder to take effect at its 
 termination.^ 
 
 Requisites of Bower. 
 
 § 468. The Requisites restated. — The three ordinary requi- 
 sites of dower, as heretofore stated, are : Firit, lawful marriage ; 
 second, beneficial seisin by the husband of an estate of inheritance 
 during the coverture; third, death of the husband; &aA fourth, 
 as a strict requisite, though now of practical application in only 
 a few states, that the estate of inheritance of the husband 
 shall be one which the issue of tlie marriage, if any, may by 
 possibility inherit.^ Each of these requisites calls for a brief 
 discussion. 
 
 § 469. First — Lawful Marriage. — This requisite is in every 
 respect the same, as to both dower and curtesy. And it is suf- 
 ficient here to refer back to the discussion of it in connection 
 ■with curtesy.^ In terse summary, the marriage must be either 
 absolutely valid and unassailable ; or, being voidable, must not 
 be avoided during the life of the husband ; and its validity or 
 invalidity is generally to be determined by the law of the place 
 at which it is solemnized.* (a) 
 
 (a) In New York, before January 1, 1902, a marriage was not required 
 to be ceremonial. A common-law marriage, clearly proved, was valid. 
 Hynes v. McDermott, 82 N. Y. 41, 46, 91 N. Y. 451 ; Hayes v. The Peo- 
 ple, 25 N. Y. 390 ; Fenton v. Reed, 4 Johns. 52. See Lauderdale Peerage 
 Claim, 17 Abb. N. C. 439 ; Rose o. Clark, 8 Paige, 574, 579. But, since 
 that time, by virtue of L. 1901, oh. 339 (now in Domestic Relation Law, 
 L. 1909, ch. 19, §§ 10-25), a marriage which is not ceremonial is re- 
 quired to be evidenced by a writing executed at the fime, subscribed by the 
 parties and at least two witnesses, stating the residences of them all, ac- 
 
 • 1 Paprk, Dower, §§ 340, 341 ; 2 Scrib- See Nicoll v. N. Y. & E. R. Co., 12 N. 
 
 ner, Dower, ch. xxx. § 2 ; 1 Wash. E. Y. 121, 129 ; Heath v. Barmore, 50 N. 
 
 P. (6th ed.) § 486. The widow owning Y. 302, 306 ; Eckman v. Eckman, 68 Pa. 
 
 her dower and the heir his reversion, St. 460 ; Ward v. Wooten, 1f> N. C. 413 ; 
 
 the latter, of course, may sell his rever- Horton v. Sledge, 29 Ala. 478. 
 sion as such. And, undoubtedly, if he ^ § 462, supra. 
 
 clearly showed an intent to convey what ' § 447, supra. 
 
 he owned, his deed, in most jurisdic- * Ibid. ; Olmsted v. Olmsted, 190 N. 
 
 tions to-day, would transfer the rever- Y. 458, 467. 
 sion, although he called it a remainder. 
 
HISTORY, NATURE, ETC., OP DOWER. 667 
 
 § 470. Second — Beneficial Seisin by the Husband of an Es- 
 tate of Inheritance during the Coverture. — With two exceptions, 
 all the elements of this requisite are also the same in rc^gard to 
 both dower and curtesy. The two excejitions are : that, while 
 the wife mi'^it ordinarily be seised in fact (or in deed) in order , 
 that the husband may have curtesy,^ the law has never insisted 
 on such a seisin by the husband in order to give the wife 
 dower, but has been satisfied for this purpose with his seisin 
 either in law or in fact ; ^ and that dower in equitable estates 
 was permitted later and has been allowed less fully and with 
 more qualifications than curtesy in the same kinds of interests.^ 
 These distinctions are to be discussed more fully in the next 
 two sections. In all other respects, it is sufficient here to refer 
 -back to the discussion of this requisite in connection with cur- 
 tesy.* And, subject to the explanations there given, it may be 
 stated : that the husband's estate must be one of inheritance — a 
 fee of some kind ; ^ that he must be seised beneficially, and not 
 merely in trust for another, nor as only a conduit to pass the 
 property to another;^ that his seisin and ownership must be 
 
 knowledged so as to entitle it to be recorded, and duly recorded within six 
 months after its execution. The age of legal consent, for both sexes, is 
 eighteen years. Domestic Relation Law, § 4 ; Conte v. Conte, 82 App. 
 Div. 33.5. 
 
 When the marriage is illegal and void, no matter how innocent the 
 parties may be, there is no dower. Price i>. Price, 12'1 N. Y. 589; Olmsted 
 V. Olmsted, 190 N. Y. 458, 467. But,, while one who has been divorced in 
 New York for his own adultery is forbidden (except in certain cases stated 
 in the statute) to marry again in that state durino; the life of the one from 
 whom he was so divorced, and if he attempt to do so the marriage is void 
 and his act bigamy (Domestic Rel. li. § 8-2 R. S. 144, § 49), yet, if 
 he go to another state or country and contract a marriage that is valid 
 there, such marriage is recognized in New York, and the second wife may 
 have dower. Thorp v. Thorp, 90 N. Y. 602 ; "Van Voorhis v. Brintnall, 
 86 N. Y. 18. 
 
 1 g 449_ supra. no dower in realty which hefore the 
 
 2 See § 471, infra. marriage the husband contracted to sell. 
 * See § 472, infra. For he thereby becomes a trustee of 
 4 §§ 448-453, supra. such property. § 404,, supra ; Huukius 
 s § 448, swpra. It is provided by Stat- u. Hunkins, 65 N. H. 95; Chapman v. 
 
 ute in Massachusetts that estates for one Chapman's Trustees, 92 Va. 537 ; Aaron 
 hundred years or more, of which fifty v. Bayne, 28 Ga. 107. His contract to 
 years or more remain unexpired, are purchase realty, on the other hand, 
 subject to dower. Such estates for years makes him cestui que trust of the prop- 
 are declared by the statute to be free- erty; and dower attaches to this equita- 
 holds. Mass. Rev. Laws, ch. 129, § 1. Me interest. § 472, in/ro. 
 " § 452, supra-i. Therefore, there is 
 
668 ESTATES IN REAL PROPERTY. 
 
 continuous and uninterrupted — not broken in upon at his 
 death by the seisin of another person ; ^ and that his seisin and 
 ownership must not be defeated by a paramount claim or title.^ 
 In the preceding discussion of these matters in referenee to cur- 
 tesy, mutatis mutandis, the law on the same makers will be 
 found in regard to dower. Thus, it being decideo, that there 
 may be complete curtesy in a fee on conditional limitation,^ by 
 a parity of reasoning that is practically absolute, it must be 
 decided that there may be complete dower in the same kind of 
 a fee. And, it being held that the husband of a trustee has no 
 curtesy,* it logically follows that the wife of a trustee has no 
 dower. And the cases on both dower and curtesy, in refer- 
 ence to the matters discussed in this paragraph, are cited 
 interchangeably. 
 
 § 471. The Husband's Seisin may be either in Law or in Fact.. 
 — The common law ordinarily gives no curtesy to a husband 
 in property of which the wife was not seised in fact, because it 
 is due to his laches or default that she is not so seised wherever 
 such seisin is possible : he might give her seisin in fact, at any 
 time during the coverture, by entering on or occupying the 
 property.^ But this reasoning does not apply to the wife as a 
 claimant of dower. The law gives her no authority to confer 
 seisin in fact on him. And, if such seisin were essential to 
 dower, he might often deprive her of this right by failing to 
 enter on lands of which he was only seised in law. Therefore, 
 as a requisite to dower, his seisin may be either in fact or in 
 law. It is enough that he is s~feised in either manner during 
 the coverture.^ 
 
 The typical case usually mentioned of seisin in law is. that 
 of an heir, on whom the title to real property has descended, 
 against whom the land is not adversely held by another, but who 
 has not yet taken possession.' His widow may have dower in 
 such property.* And it seems to be safe to state generally that, 
 as the result of the modern operation of deeds as well as wills 
 in passing complete titks in fee without livery of seisin,^ he is 
 
 1 § 453, supra. 197 ; Atwood v. Atwood, 22 Pick. (Mass.) 
 
 2 § 453, supra. 283 ; Mann v. Edson, 39 Me. 25 ; Barnes 
 8 § 453, supra. ,u. Eaper, 90 N. C. 189. 
 
 * § 452, supra. ' § 283, supra. 
 
 6 § 449, supra. ' s Cq. Lit. 31 a; 2 Blackst. Com. p. 
 
 6 Co. Lit. 31a; 2 Blackst. Com. p. «13] ;" 2 Crabb. R. P. § 1124; Cruise, 
 
 *131 ; Green u. Liter, 12 U. S. (8 Cranch) Dig. tit. vi, ch. i, § 20 ; Dunham v. Os- 
 
 229, 247; Durando v. Durando, 23 N. borne, 1 Paige (N. Y.), 634. 
 
 Y. 331; Phelps v. Phelps, 143 N. Y. ^ See §§ 1039, 1041, !n>a. 
 
HISTORY, NATURE, ETC., OF DOWER. 669 
 
 sufficiently seised, for the purposes of his wife's dower, who 
 owns real property in fee, while no one else is holding and 
 claiming it in fee adversely against him, whether he acquired it 
 by inheritance, or deed, or will, or any other mode of purchase.^ 
 And lie is sufficiently seised who is a disseisor — who holds 
 and claims land in fee adversely to the rightful owner, — his 
 widow may have her dower, against all persons except such 
 rightful owner after he regains his seisin by entry or suit.^ 
 
 But, of course, he has no seisin who is a disseisee — against 
 whom an adverse holder is claiming to own the property in fee. 
 And the wife of a disseisee, who does not regain his seisin 
 during the coverture, has no dower, unless she acquires it by 
 virtue of some statute.^ In England and a few of the United 
 States, such as Virginia and Kentucky, it is now provided by 
 statute that a widow shall be dowable of lands which her hus- 
 band owned in fee during the coverture, although he was dis- 
 seised and had only a right of action or entry.* 
 
 § 472. The Husband's Seisin of Equitable Estates — Dovrer in 
 Equitable Estates. — From the time of the enactment of the stat- 
 ute of uses, curtesy has been allowed in equitable estates." But, 
 as heretofore explained, when the question arose in England as 
 to dower in such interests, it was decided that it could not be 
 permitted in them, because presumably the widow was already 
 provided for by a jointure or marriage settlement, and titles 
 would be disarranged by giving lier dower also.^ And this re- 
 striction was extended to all the kinds of equitable estates — 
 uses, trusts, and equities of redemption.' Such was the law of 
 that country, until the Dower Act of 1834 (3 and 4 Wm. IV. 
 oh. 105) removed this anomaly and added dower as an incident 
 to all equitable estates. In most of the United States, a widow 
 
 1 Green v. Liter, 12 IT. S. (8 Cranch) v. Phelps, 143 N. Y. 197 ; Poillon v. 
 247; Jackson v. Waltermire, 7 Cow. (N. Poillon, 90 N. Y. App. Div. 71 ; Ellis 
 Y. ), 353 ; Mclntyre v. Costello, 14 N. Y. v. Kyger, 90 Mo. 600 ; Thompson v. 
 St. Rep. 369 ; Griggs r. Smith, 12 N. J. Thompson, 46 N. C. 430 ; Cruise, Dig. 
 L. 22 ; Blood V. Blood, 23 Pick. (Mass.) tit. vi. ch. i. §§ 20-23. 
 
 80; Farwell o. Hogers, 99 Mass. 33; ■• Stat. 3 and 4, Wm. IV. ch. 105; 
 
 Mann v. Edson, 39 Me. 25 ; Gordon v. Challis, R. P. p. 281 ; 1 Stim. Amer 
 
 Dickison, 131 111. 141 ; Bartlett v. Tins- Stat. L. § 3211 ; 1 Scribner, Dower, ch. 
 
 ley, 175 Mo. 319 ; Day v. Solomon, 40 xii. §§ 18-21. 
 
 Ga. 32 ; Barnes v. Raper, 90 N. C. 189'; ^ § 303, supra. 
 
 Tate V. Jay, 31 Ark. 579; 1 Stim. Amer. « § 304, supra. 
 
 Stat. L. §§ 1400, 1401. ' Dixon u. Saville, 1 Bro, C. C. 326; 
 
 2 Park, Dower, § 37 ; 2 Scribner, Mayburry v. Brien, 40 U. S. (15 Pet.) 
 Dower, ch. iv. §§ 8-10. 21; 2 Crabb, R. P. § 1130; 4 Kent's 
 
 3 Last two preceding notes ; Phelps Com. p. *43. 
 
370 ESTATES IN REAL PROPERTY. 
 
 is dowable out of the equitable estates of her husband. ^ And in 
 quite a number of them this is expressly provided for by stat- 
 ute.2 (a) Therefore, it may now be stated, as a general proposition, 
 that the husband's seisin, in order to give dower, may be of either 
 a legal or an equitable estate.^ Bearing in mind the require- 
 
 (a) In New York, before the Revised Statutes took effect (Jan. 1, 1830), 
 there was no dower in equitable estates. Hawley v. James, 5 Paige 451, 
 452 ; Manhattan Co. v. Evertson, 6 Paige, 457 ; Germond v. Jones, 2 Hill, 
 569 ; 4 Kent's Com. p. *43. But, taking a liberal view of the general pro- 
 vision of those statutes (1 R. S. 740, § 1; now Real Prop. L. § 190), — "A 
 widow shall be endowed of the third part of all the lands whereof her hus- 
 band was seised of an estate of inheritance, at any time during the mar- 
 riage," — and of the reservation of a widow's dower in lands contracted to 
 be purchased by the husband, whose interest thus acquired is sold for the 
 payment of his debts after his death (2 R. S. 112, §§ 71, 72 ; now super- 
 ceded by Code Civ. Pro. § 2783), and of the provision making a deed, by a 
 sheriff, of an execution debtor's land who ^ies before the expiration of the 
 time to redeem, pass his interest subject to his widow's dower (2 R. S. 
 374, §§ 63, 64 ; now Code Civ. Pro. § 1473), the courts have decided that, 
 since Jan. 1, 1830, there has been dower in an equitable estate in fee, pro- 
 vided the husband died seised thereof. Hawley v. James, 5 Paige, 451, 453, 
 456; Starbucku. Starbuck, 62 App. Div. 437; Matter of McKay, 5 Misc. 
 123. And see Nichols v. Park, 78 App. Div. 95; Poillon v. Poillon, 90 App. 
 Div. 71. The only equitable estates, however, of which one can be seised 
 in fee, in this state, are the interests of the beneficiaries of implied (result- 
 ing and constructive) trusts. For passive express trusts are abolished (p. 
 493, supra); no private express trust can exist in fee (pp. 494-498, supra) ; 
 and a mortgagor owns not a mere equity, but the legal estate in the prop- 
 erty (§ 757, infra). Therefore, the summary of the law in this state, on this 
 matter, is that the equitable estates of which a widow may be endowed are 
 the interests, as cestui que trust, in the implied trusts of which the husband 
 dies seised in fee. But he may deprive her of dower in these by disposing 
 of them before his death. Hawley v. James, 5 Paige, 451, 453; Hicks v. 
 Stebbins, 3 Lans. 39 ; Nichols v. Park, 78 App. Div. 95. 
 
 1 § 304, supra; Davis i>. Green, 102 (Mass.), 533; Shearer v. Shearer, 98 
 
 Mo. 170; Robinson ». Miller, 40 Ivy. Mass. 117. See Goodheart w. Goodheart, 
 
 88 ; Fortune w. Watklns, 94 N. C. 304 ; 63 N. J. Eq. 746. 
 
 1 Scribner.Dower, ch. XX. §11. Contra, 2 1 Stim. Amer. Stat. L. § 3212; 1 
 
 in Maine and Massachusetts. Hamlin Scribner, Dower, ch. xjc. §§ 11-44. 
 V. Hamlin, 19 Me. 141 ; Reed v. Whit- ' Last two preceding notes. Seisin 
 
 ney, 7 Gray (Mass.), 533; Lobdell v. of an equitable estate, as here employed, 
 
 Hayes, 4 Allen (Mass.), 187; Simonds means the ownership of it in freehold 
 
 V. Simonds, 112 Mass. 164. But, as the (and the freehold must be a fee, to give 
 
 cases last cited show, an exception to dower) coupled with the right to the 
 
 the common-law rule is made in Mass- enjoyment of the income. He who is 
 
 achusetts, and the widow is dowable of the contractual vendee of a piece of land 
 
 lauds which the husband had contracted in fee, for example, has such seisin, 
 
 to buy, when he dies before completing See next succeeding note ; also § 283, 
 
 the purchase. Reed v. Whitney, 7 Gray supra. 
 
HISTORY, NATURE, ETC., OF DOWER. 671 
 
 raent that his ownership, whether legal or equitable, must be in 
 fee, a good and frequently cited illustration of an equitable estate 
 out of which dower may be had is the husband's interest as 
 beneficiary of a constructive trust in a piece of land which he 
 has contracted to purchase in fee, but the legal estate in wliich 
 has not yet been conveyed to him.i And another, of course, is 
 his interests as cestui que trust in property which another per- 
 son as a constructive or resulting trustee is holding for him.^ 
 
 The two things, to be noted carefully in regard to dower in 
 equitable estates, are : that the husband must have a clear equit- 
 able interest, and not merely an indefinite moral right,' or claim 
 which cannot be enforced as such ; ^ and that, in most states, it 
 is held that the husband alone may deprive his wife of dower in 
 an equitable estate, by disposing of it or suffering it to be taken 
 from him before his death — that she has dower in those equit- 
 able estates only of which he dies seised.* 
 
 The first of these is true, of course, as to legal and equitable 
 estates alike. There is no dower when the husband is not seised 
 of one or the other of these. But a mere moral claim, whether 
 real or supposed, is so apt to be confused with an equitable estate, 
 that the matter requires emphasis liert. Thus, in New York, 
 where the statute precludes the existence of a resulting trust 
 from the fact that one person voluntarily pays the purchase 
 money for real property and takes the title in the name of another, 
 it was held that the wife of such a purchaser had no dower right 
 whatever ; and this was because, no matter how strong might 
 be his moral right against the vendee, he had no estate legal or 
 equitable in the land.^ J 
 
 1 § 404, supra ; Church v. Church, 3 liams v. Kierney, 6 N. Y. St. Rep. 560 ; 
 
 Sandf. Ch. (N. Y.) 434; Young v. Young i). Young, 45 N. J, Eq. 27 ; Boweu 
 
 Young, 45 N. J. Eq. 27 ; Tink v. Walker, v. Lingle, 119 Ind. 560 ; Klutts v. Klutts, 
 
 148 111. 234; Bunting v. Foy, 66 N. C- 58 N. C. 80; Caroon v. Cooper, 63 N. 
 
 193; Hutchinson v. Alberding, 112 C. 386; Thompson v. Cochran, 26 
 
 N. W. Rep. 647 (Iowa) ; 1 Scribner, Tenn. 72 ; 1 Scribner, Dower, ch. xx. 
 
 Dower, ch. xx. §§ 37-44. Some courts §§ 37-44. 
 
 hold that the widow can have no dower, ^ ch. xxii. xxiii. supra; Otway v. 
 
 in such cases, unless the husband has Hudson, 2 Vern. 583 ; Yeo v. Mercereau, 
 
 paid all the purchase money before his 18 N. J. L. 387 ; 1 Scribner, Dower, ch. 
 
 death, so that he has a " perfect equity." xx. § 11 et seq. The subject of dower 
 
 Walters v. Walters, 132 111. 467 ; Harri- in connection with mortgages, and the 
 
 son V. Boyd, 36 Ala. 203 ; Morgan v, mortgagor's interest is discussed at 
 
 Smith, 25 S. C. 337. But, in most states, § 480, infra. 
 the widow is given dower in the propor- " Next succeeding note, 
 
 tionate part of the land, for which he * Second succeeding note, 
 
 had paid before his death. Church v. « Phelps <>. Phelps, 143 N. Y. 197. 
 
 Church, 3 Sandf. Ch. (N. Y.) 434 i Wil- ' See Nichols v. Park, 78 N. Y. App. Div. 
 
672 ESTATES IN REAL PROPERTT. 
 
 The second thing above mentioned, that the husband alone 
 may deprive his wife of dower in his equitable estates, is the 
 distinctive characteristic of dower in such interests. Emphasis 
 will be hereafter laid on the fact that generally common-law 
 dower can not be barred or defeated, except by some act or ac- 
 quiescence of the wife or widow.^ But, because of the less 
 definite nature of equitable estates, and probably more clearly 
 because of the late attaching of dower to them at all, the courts, 
 with only one or tw43 exceptions, have permitted the husband 
 alone to defeat her dower in them ; and have settled it that she 
 shall have dower in no equitable interests except such as the 
 husband is seised of in fee at the time of his death.^ 
 
 § 473. Third — Death of the Husband. — The third and ordi- 
 narily the last requisite of dower is the death of the husband, 
 leaving the wife surviving. This means his natural death, as is 
 true of the death of the wife in order to perfect the right to 
 curtesy .2 It has been already explained that his death causes 
 her right to become a chose in action, and that she may subse- 
 quently acquire a life estate in the real property by the admeas- 
 urement and assignment of her dower third.* 
 
 § 474. Fourth — The Estate of Inheritance of the Husband 
 must be One -which the Issue of the Marriage, if Any, may by 
 possibility Inherit. — This requisite generally exists if the other 
 requisites of dower exist. To establish a dower right it is not 
 required, as it is to sustain a claim to curtesy, that there shall 
 be issue born of the marriage. It is not even necessary that 
 the wife be able to bear issue.^ And almost everywhere it is 
 true to-day that the legitimate issue of any lawful wife may 
 Inherit any inheritable estate 'of her husband, its father. But 
 wherever estates tail are still recognized, it is possible for a man 
 to own an estate tail special, such that the issue of himself and 
 his wife can not inherit it. Thus, if land be there conveyed to 
 A and the heirs of his body by his wife Mary, and after Mary's 
 
 95 ; Poillon v. Poillon, 90 N. Y. App. Fray, 96 Va. 559. Contra, Lawson v. 
 
 Div. 71 ; Stroup v. Stroup, 140 Ind. 179, Morton, 6 Dana (Ky.), 471 ; Tenn. Code, 
 
 185. § 2398. See 1 Scribner, Dower, eh. xx. 
 
 1 § 496, infra. §§ 45-49. 
 
 2 Hawley v. James, 5 Paige (N. Y.), ' See § 456, supra. 
 451, 453 ; Mills v. Van Voorhis, 23 Barb. * § 464, supra. 
 
 (N. Y.) 133, 135 ; Starbuck v. Starbuck, « Co. Lit. 40 a, 40 b ; Roll. Abr. 657. 
 
 62 N. Y. App. Div. 437 ; Nichols v. Park, But the common law gave her no dower, 
 
 78 N. Y. App. Div. 95 ; Pritts v. Ritchey, if she were under the age of nine years. 
 
 29 Pa. St. 71 ; Rands v. Kendall, 15 2 Blackst. Cora. p. *131; 1 Scribner, 
 
 Ohio, 671; Building L. & W. Co. v. Dower, ch. xi. § 4. 
 
HISTORY, NATURE, ETC., OF DOWER. 673 
 
 death he marry Jane, Jane can have no dower in that land, 
 because it can not be inherited by her issue.^ This is the only 
 kind of estate as to which this requisite is important; for in all 
 other instances it is sure to be complied with, if the other requi- 
 sites of dower exist.^ And so it may be disregarded in all places 
 where estates tail are abolished. 
 
 1 Lit. § 53 ; 2 Blackst. Com. p. • 131 ; Northcut v. Whipp, 51 Ky. 65 ; 1 Scrib- 
 Ancotts V. Catherich, Cro. Jac. 615. ner, Dower, ch. xi. §§ 2, 3. 
 See Spangler v. Stanler, 1 Md. Ch. 36 ; " Ibid. 
 
CHAPTEE XXXII. 
 
 PEOPBRTT OP WHICH A WIDOW IS DOWABLE. 
 
 § 475. Special kinds of interests 
 afiecting dower. 
 
 § 476. No dowei: in real property ^ 
 held in joint tenancy. i 
 
 § 477. Dower in real property 
 held by tenants in common. 
 
 § 478. Dower in partnership real 
 property. 
 
 § 479. Dower in exchanged real 
 properties. 
 
 § 480. Dower claims in mort- 
 
 and mortgaged real prop- 
 erty. 
 
 § 481. Dower in real property 
 subject to judgments or other liens. 
 
 § 482. Dower in future estates. 
 
 § 483. Dower in inoorpoireal here- 
 ditaments. 
 
 § 484. Dower in mines and quar- 
 ries. 
 
 § 485. Dower in wild lands. 
 
 § 486. Dower rights in crops. 
 
 § 475.' Special Kinds of Interests affecting Dower — and Cur- 
 tesy. — It has been repeatedly stated, as to both curtesy and 
 dower, that they require for their existence beneficial seisin of 
 an estate of inheritance during the coverture. To such an in- 
 terest these legal life estates may usually attach as incidents. 
 But some estates of inheritance may be beneficially owned, in 
 such a manner as to preclude dower or curtesy either wholly or 
 partially. Such, for illustrations, are estates owned in joint 
 tenancy, partnership estates, and estates in lands exchanged for 
 other lands. These forms of interests, and others about which 
 interesting questions as to dower and curtesy have arisen, now 
 require discussion. The rules as to dower in them will ordi- 
 narily apply, mutatis mutandis, to curtesy in them also. And 
 so they were not specially dealt with in the chapter on curtesy. 
 They will be discussed with special reference to dower ; and 
 what is said may be understood as applying to curtesy also, 
 unless something to the contrary is stated. 
 
 § 476. No Dower in Real Property held in Joint Tenancy. — 
 The right of survivorship, which belongs to joint tenancy, pre- 
 vents dower from attaching.^ And this is true even as to the 
 
 1 "The reason for this diversity is by survivorship, which is above the title 
 for that the joint tenant, which surviveth, of dower." Co. Lit. 37 b; Lit. § 45; 
 claimeth the land by the feoffment, and 1 Scribner, Dower, ch. xvi. § 1 ; Brough- 
 
PROPERTY OF WHICH A WIDOW IS DOWABLE. 675 
 
 wife of one of the owners, who sells his interest and so severs the 
 joint tenancy : the purchaser acquires title free of the vendor's 
 wife's dower.i The wife or widow of the last survivor, however, 
 may have dower, in case the joint ownership is not dissolved and 
 one outlives all the others ; because, as soon as all his fellow 
 owners are dead, that one ceases to be a joint tenant and becomes 
 an owner in severalty .^ So, of course, if in any manner, whether 
 by partition or otherwise, one of them acquire an interest in the 
 property, other than as joint tenant, his wife may have dower 
 in that interest.^ In several states of this country, such as Ohio, 
 South Carolina^ Georgia, and Texas, the right of survivorship 
 among joint tenants has been abolished, or has never existed ; 
 and consequently dower may there attach to their estates.* 
 
 § 477. DoTiver in Real Property held by Tenants in Common. — 
 In tenancy in common there is no right of survivorship, to pre- 
 clude dower.^ Dower may, therefore, attach to the undivided 
 interest of a husband.® If, for example, a man own in fee an 
 undivided one fifth of a piece of land, as tenant in common with 
 others, his wife has dower in that portion — a one fifteenth of 
 the entire property for her life.^ And if partition be made 
 among the co-owners, the wife of each will have dower in the 
 distinct parcel allotted to him in severalty ; unless she can prove 
 that the partition was fraudulent as against her, in which case 
 she may take dower as if no partition had occurred.^ 
 ton V. Randall, Cro. Eliz. 503 ; Maybnrry ' See tenancy in commot explained, 
 
 V. Brien, 40 U. S. (15 Pet.) 21. This §§ 684-687, infra. 
 principle is retained by the Dower Act 6 Lit. §§ 44^ 45 ; Sutton v. Rolfe, 3 
 
 of England. 3 & 4 Wm. IV. ch. 1 05, Levinz, 84 ; Reynard v. Spence, 4 Bear. 
 §2. See joint tenancy explained, §§672, 103; Totten w. Stuyvesant, 3 Edw. Ch. 
 673, !n/ro. (N. Y.) 500; Jackson v. Edwards, 22 
 
 1 Ibid. ; Babbitt r. Day, 41 N. J. Eq. Wend. (N. Y.) 498 ; Lloyd v. Conover, 
 392 ; Cooper v. Whitney, 3 Hill (N. Y.), 25 N. J. L. 47, 52 ; Cook v. Walker, 70 
 95, 101 ; Cockrill v. Armstrong, 31 Ark. jle. 232 ; Whitney v. Whitney, 45 N. H. 
 580; 2 Scribner, Dower, ch. xii. § 33; 3II ; Lee w. Lindell, 22 Mo. 202. 
 Park, Dower, § 40. But if the joint 7 ibid. 
 
 tenant, who does not sell, be left sole- 8 xhe presumption of fairness in the 
 
 seised of his^portion of the property, his partition is stronger, of course, when it 
 
 wife, of course, may have dower in that is made by judicial proceedings, than 
 
 portion. See next succeeding note. when it is a partition out of court. 
 
 2 2 Crabb, R. P. § 1131 ; 1 Scribner, Wilkinson v. Parish, 3 Paige (N. Y.), 
 Dower, ch. xii. § 33 ; X Wash. E. P. 653 ; Totten v. Stuyvesant, 3 Edw. Ch. 
 (6th ed.) §370. (N. Y.) 500; Jordan u. Van Epps, 85 
 
 3 Last three preceding notes. And s. Y. 427; Greiner u. Klein, 28 Mich, 
 see § 477, infra. 12 ; 1 Scribner, Dower, ch. xvi. § 13. 
 
 * I Stim. Amer. Stat. L. § 1371; 1 SeeMosheru. Mosher, 32Me. 412; Lee 
 
 Scribner, Dower, ch. xvi. §§ 10-12; 1 u. Lindell, 22 Mo. 202 ; Holley w. Glover, 
 
 Wash. R. P. (6th ed.) § 857, note ; §'673, 36 S. C. 404 ; Gaffney v. Jefferips, 59 S. 
 
 infra. C. 565. When the land is sold pursuant 
 
676 ESTATES IN REAL PROPERTY. 
 
 § 478. Dower in Partnership Real Property. — " So long as 
 the partnership affairs remain unsettled, like all other assets of 
 the firm, its real estate is equitably pledged to creditors and 
 liable to be absorbed and disposed of in the process of liquidat- 
 ing the firm debts and satisfying the claims of the respective 
 parties as against each other. . . . Widows are not dowable in 
 real estate so situated." ^ And this is true, whether the realty 
 thus held — acquired with partnership funds for partnership 
 purposes — is regarded as converted into personalty so far only 
 as the partnership affairs require (which is the general view in 
 this country), or as held as a trust fund for paying its debts 
 and settling its accounts.^ But, after these purposes are accom- 
 plished, any surplus of such realty is owned by the partners as 
 tenants in common, and their wives have dower in their portions 
 respectively.^ Such are the generally accepted results as to 
 dower in connection with partnership real property, whether 
 title is taken in the name of the firm, or in the names of all the 
 partners individually, or by one or more of them for the benefit 
 of the firm.* It has been held in some cases, however, that the 
 partners may agree, expressly or impliedly, that lands so owned 
 shall be considered as converted into personalty for all purposes, 
 and so may shut out from it all dower rights.^ And, on the 
 other hand, where it is treated not as partnership realty, but 
 wholly as a tenancy in common by persons who happen to be 
 partners, so that it is collateral to the partnership, there may 
 be complete dower rights in it, independent of partnership 
 debts, even though it is bought with partnership funds.^ 
 
 to a judgment or decree in a partition som v. Moore, 106 Ind. 296; Paige v. 
 
 suit, in which the wife was properly made Paige, 71 Iowa, 318; Hill u. Cornwall, 
 
 a party, she is usually given dower in the 95Ky.512; 1 Scribner, Dower, ch. xxvi. 
 
 portion of the proceeds which passes to Compare, Parrish v. Parrish, 88 Va. 529 ; 
 
 her husband. Ibid. ; § 465, supra. See Hughes v. Allen, 66 Vt. 95. 
 
 N.y. Code Civ. Pro. §§1553, 1567-1576; * Ibid.; Hawley v. James, 5 Paige 
 
 1 Scribner, Dower, ch. xvi. §§ 18-33. (N. Y.), 451, 457; Coster v. Clarke, 3 
 
 1 Riddell v. Riddell, 85 Hun (N. Y.), Edw. Ch. (N. Y.) 428 ; Park, Dower, 
 
 482, citing Greenwood v. Marvin, 111 § 106; Story, Partnership, §§ 92, 93. 
 
 N. Y. 423 ; Fairchild v. Fairchild, 64 But, where the contract makes him who 
 
 N. Y. 471 ; Sagei). Sherman, 2 N. Y. 417. takes the title debtor to the others for 
 
 ^ See §695,in/ra, and next succeeding their proportion of the purchase price, 
 
 note. his wife may have dower, but not the 
 
 8 Clay V. Freeman, 118 U. S. 97; wives of the others. Ibid.; 1 Scribner, 
 
 Hauptmann v. Hauptmann, 91 N. Y. Dower, ch. xxvi. § 20. 
 
 App. Div. 197; Dyer v. Clark, 5 Met. ' Mallory u. Russell, 71 Iowa, 63; 
 
 (Mass.) 562; Campbell «. Campbell, 30 Lowe v. Lowe, 13 Bush (Ky.), 688;" 
 
 N. J. Eq. 415 ; Mowry v. Bradley, 1 1 Greene v. Greene, 1 Ohio, 535 ; 1 Sorib- 
 
 K. I. 370 ; Willet v. Brown, 65 Mo. 138 ; ner, Dower, ch. xxvi. § 5. 
 
 Trowbridge K. Cross, 117 111. 109; Gris- « Ratcliffe v. Mason, 92 Ky. 190; 
 
PROPERTY OP WHICH A WIDOW IS DOWABLE. 677 
 
 § 479. Dower in Exchanged Real Properties. — Since a wife 
 has dower generally in all the real properties of which her hus- 
 band is properly seised of an estate of inheritance during the 
 coverture,^ it follows that when during the marriage he sells 
 one piece of land of which he is so seised, and with the proceeds 
 purchases another piece of which he becomes seised in the same 
 manner, and then he sells that and buys another, and so on, and 
 she does nothing to bar her right, she may have dower in them 
 all, no matter how short his ownership of each parcel.^vBut 
 if, instead of thus selling one piece and buying another, he 
 " exchange " one for the other, in the technical, common-law 
 sense, she can not have dower out of botti, but after his death 
 may elect out of which to be endowed.'^^JShe may have dower 
 from both, unless the trade is such a technical exchange, " a 
 mutual grant of equal interests, the one in consideration of the 
 other," — * the estates transferred the one for the other must 
 be equal in quantity, not necessarily of value, but of interest, a 
 fee simple for a fee simple, a fee tail for a fee tail, etc.^ In 
 several states of this country, of which New York and Wiscon- 
 sin are illustrations, statutes, so far declaratory of the common 
 law, require this election in case of exchanged real properties, 
 and forbid the widow to take dower out of both parcels ; and 
 then they provide, as a matter in addition to the common-law 
 rules, that the widow shall be conclusively deemed to have 
 chosen to be endowed of the realty received by her husband in 
 exchange, unless within a designated time, usually one year, 
 she affirmatively elects otherwise.® (a) 
 
 (a) The New Yovk statute declares that, " If a husband seised of an 
 estate of inheritance in lands, exchanges them for other lands, his widow 
 shall not have dower of both, but she must make her election, to be en- 
 dowed of the lands given, or of those taken, in exchange ; and if her elec- 
 tion be not evinced by the commencement of an action to recover her 
 dower of the lands given in exchange, within one year after the death of 
 her husband, she is deemed to have elected to take her dower of the lands 
 received in exchange." Real Prop. L. § 171, originally 1 R. S. 740, § 3. 
 As explained in the text, the first part of this statute is declaratory of the 
 
 Ware v. Owens, 42 Ala. 212 ; Perin v. dall, 7 Barb. (N. Y.) 633 ; De Witt v. 
 
 Megibben, 53 Fed. Rep. 86 (C. C. A.) ; l)e Witt, 202 Pa. St. 255. 
 
 Hale 0. Pluramer, 6 Ind. 121 ; Wheatley ^ 2 Black.st. Com. p. *323. 
 
 V. Calhoun, 12 Leigh (Va.), 264. * n,id, ; Mosher v. Mosher, 32 Me. 
 
 1 § 462, supra. 412 ; Cass v. Thompson, 1 N. II. 65. 
 
 2 Ibid.; § 496, i'n/ra. « N. Y. Real Prop. L. § 171; Wis. 
 8 Co. Lit. 31 b ; Stevens v. Smith, 4 Ann. Stat, § 2159 et seq. ; Wash. R. P. 
 
 J. J. Marsh (Ky.), 64 ; Wikox v. Ran- (Gth ed.) § 489, note. 
 
678 ESTATES IN REAL PROPERTY. 
 
 § 480. Bo-wer Claims in Mortgages, and Mortgaged Heal 
 Property. — It has been explained that there is no curtesy in a 
 mortgage, even in those states in which the first mortgagee has 
 the legal estate in the land.^ The same is true of dower. Un- 
 der no theory of a mortgage, does the wife or widow of a mort- 
 gagee as such have dower.^ (a) 
 
 It is almost universally recognized, on the other hand, that 
 there may be dower in the mortgagor's interest in real prop- 
 erty ;^ and this is true whether he is regarded as owning the 
 legal estate, which is the theory of New York, Michigan, Wis- 
 consin, and many other states, or whether he has only an equi- 
 table interest, an equity of redemption, which is the theory of 
 England, Maine, Massachusetts, and several other states.* Min, 
 many instances, mortgaged property is subject to dower as if 
 
 common law ; the latter part is new. See also Reviser's Note to 1 R. S. 
 740, § 3; Wilcox v. Randall, 7 Barb. 633; Huntington v. Huntington, 9 
 Code Civ. Pro. Rep. 182. There is no provision for her to obtain an 
 extension of time to make her election, as there is when she is given a 
 jointure during marriage, or before martiage without her oon^ent, or a tes- 
 tamentary provision is made for her by the husband in lieu of dower. See 
 § 521, note (a), infra. 
 
 (a) In !New York, this is expressly declared by the following statute : — 
 " A widow shall not be endowed of the lands conveyed to her husband by 
 way of mortgage, unless he acquires an absolute estate therein, during the 
 marriage." Real Prop. L. § 195, originally 1 R. S. 741, § 7. In this state, 
 a mortgage is only a lien on the real property, both before and after the debt 
 is due, and even though the mortgagee as such takes possession of the land. 
 Kortright ;;. Csldy, 21 N. Y. 343, 365 ; Trimm „. Marsh, 54 N. Y. 599 ; 
 § 757, infra. This was practically settled before the first enactment of this 
 statute. Revisers' notes to 1 K. S. 741, § 7 ; Coles v. Coles, 15 Johns. 319 ; 
 Jackson v. Willard, 4 Johns. 41. The last clause of the statute means, of 
 course, that there is dower in favor of the mortgagee's wife, if he acquire 
 the mortgagor's interest, the legal estate in the land by foreclosure or other- 
 wise, at any time during the coverture. Given the New York theory of a 
 mortgage, this statute is sim{)ly and plainly declaratory of the natural, 
 common-law rules as to the existence of dower in the mortgagee's interest 
 
 1 § 452, snpra. 32 N. J. L. 296 ; Cox v. Garst, 105 111, 
 
 2 §§ 755, 762, infra; Foster v. Dwinel, 243 ; Jones v. Bragg, 33 Mo. 337 ; Dan- 
 49 Me. 44; Reed v. Shepley, 6 Vt. 602 ; iel v. Leitch, 13 Gratt. (Va.) 195; 4 
 Kortright v. Cady, 21 N. Y. 343, 364, Kent's Com. pp. *44, *45; 1 Scribner, 
 365 ; 4 Kent's Com. p. *43. Dower, ch. xxiii. §§ 1, 2 ; § 472, supra. 
 
 ^ Coles V. Coles, 15 Johns. (N. Y.) In England there was no dower in equi- 
 
 319 ; Mills v. Van Voorhies, 20 N. Y. ties of redemption, until the Dower 
 
 412; Brackett v. Baum, 50 N. Y. 8 ; Act, 3 & 4 Wm. IV. ch. 105; § 472, 
 
 Boies V Benham, 127 N. Y. 620; Snow supra. 
 
 V. Stevens, 15 Mass. 278; Manning v. * Ibid. ; §§ 756, 758, infra. 
 
 Laboree, 33 Me. 343 ; . Wade v. Miller, 
 
PHOPEBTT OF WHICH A WIDOW IS DOWABLE. 679 
 
 no mortgage existed. VSuch is the case, for example, in a com- 
 mon-law jtate, wRen a married man, owning unencumbered real 
 property, mortgages it without his wife's joining in the instru- 
 ment or doing any other act to affect her dower right.^ But 
 there are four classes of mortgages, which take precedence of 
 the claim of dower of a wife or widow, and leave her right to 
 attach subject to the mortgage — to attach to that interest only 
 which remains to the husband after the satisfaction of the mort- 
 gage debt out of the land. These, as claims which naturally 
 and fairly should be first satisfied, are : (a) those mortgages 
 which were made and became liens on the land before the mar- 
 riage of her who demands dower in it as the property of her 
 husband ; ^ (a), (b) those which were already liens on the land 
 when it was acquired by the husband ; ^ (c) those which were 
 given by the husband, when he bought the property, in whole 
 or part payment of the purchase money ; * (J) and (d) those 
 made by the husband or his successors in interest, in which the 
 wife voluntarily joined for the purpose of releasing her dower, 
 or in favor of the holders of which she voluntarily gave in any 
 manner a release of her dower right, or estopped herself to 
 deny the existence of such a release.^ 
 
 When, as belonging to one of these classes, a mortgage thus 
 has priority of the dower of the wife or widow of the owner of 
 the land, her right in the land itself may be completely barred 
 and removed by a foreclosure of the mortgage, by a proper pro- 
 ceeding to which she is duly made a party .^ And, in some 
 
 (a) For the New York statute, providing for dower as here stated, in 
 such cases,. see § 777, note (a), infra. 
 
 (V) For the New York statute, providing for dower as here stated, in 
 such cases, see § 777, note (6), infra. 
 
 1 House V. Jackson, 50 N. Y. 161 ; 63 S. C. 162 ; 1 Jones, Mortg. (3d ed.) 
 Sutherland v. Sutherland, 69 111. 481 ; p. 371, note 1. 
 
 Grissom v. Moore, 106 Ind. 296 ; Grady - ^ Nelson ./. Brown, 144 N. Y. 384, 
 
 V. McCorkle, 57 Mo. 172; 4 Kent's 389; Durnherr u. Ran, 135 N. Y. 219, 
 
 Com. p. * 50 ; § 777, infra. 222 ; Boorum v. Tucker, 51 N. J. Eq. 
 
 2 Coles' V. Coles, 15 Johns. (N Y.) 135 ; Sarver v. Clarkson, 156 Ind. 316 ; 
 319; Kursheedt v. Union Dime Sav. 4 Kent's Com. p.* 51 ; §§503-50.5, in/ra. 
 Inst., 118 N. Y.358; Virgin r. Virgin, 6 Stow u. Tifft, 15 Johns. (N. Y.) 
 189 111. 144 ; 4 Kent's Cora. p. * 50. 458 ; Nelson v. Brown, 144 N. Y. 384, 
 
 8 Ibid. 389; Swan v. Wiswall, 15 Pick. (Mass.) 
 
 4 Stow V. Tifet, 15 Johns. (N. Y.) 126; Andrews v. Stelle, 22 N. J. Eq. 
 
 458; Boies v. Benham, 127 N. Y. 620, 478 ; Watts v. Julian, 122 Ind. 124 ; 
 
 624; Hinds o. Ballon, 44 N. H. 619; Wiltsie, Mort. Forecl. §§ 135, 136 ; § 743, 
 
 Jones ti. Parker, 51 Wis. 218; Ehea i>. infra. 
 
 Rawle, 131 N. C. 453 ; Groce v. Ponder, 
 
680 ESTATES IN EEAL PROPERTY. 
 
 States ■where the mortgagor has only an equitable estate, an 
 equity of redemption, it has been decided that his wife's dower 
 may be defeated also by a foreclosure during his lifetime, to 
 which she is not made a party, or by any other disposition of 
 his equitable estate before his death.^ This is in harmony with 
 tlie general rule„,above stated, thafr^a widow is not dowable of 
 any equitable estates except those of which her husband dies 
 seised.^ In most places, and especially in those states in which 
 a mortgagor retains the legal estate, and in which in order to de- 
 prive his wife of dower by foreclosure not only must the mort' 
 gage be prior in right to her dower but she must also be made 
 a party to the foreclosure proceedings, it is generally provided 
 by statute, or declared by the courts in the absence of statute, 
 that she shall be endowed of the surplus moneys coming to her 
 husband after satisfaction of the claims which had precedence 
 of her dower in the land.^ (a) 
 
 When a mortgage, which has priority over a wife's dower, is 
 discharged by her husband, or by his personal representatives 
 
 (a) The New York statutes, after providing that a purchase money 
 mortgage shall take precedence of the purchaser's wife's dower, continue : — 
 " Where, in a case specified in theJast section, the mortgagee, or a person 
 claiming under him, causes the land mortgaged to be sold, after the death 
 of the husband, either under a power of saie contained in 'the mortgage, or 
 by virtue of a judgment in an action to foreclose the mortgage, and any sur- 
 plus remains, after payment of the money due on the mortgage and the 
 costs and charges of the sale, the widow is nevertheless entitled to the in- 
 terest or income of one-third part of the surplus for her life, as her dower." 
 Real Prop. L. § 194, originally 1 R. S. 741, § 6. The effect of this 
 statute and the adjudications, taken together, is to give the wife or widow 
 dower in the surplus moneys, whenever the result of foreclosing a mort- 
 gage, whether in court or by advertisement under a power of sale contained 
 in the mortgage (see §§ 835, 837, infra), is to bar her of dower in the land. 
 Revisers' Note to 1 R. S. 741, § 6 ; Matthews v. Duryee, 45 Barb. 69 ; Vartie 
 V. Underwood, 18 Barb. 561 ; Denton v. Nanny, 8 Barb. 618 ; Blydenburgh 
 V. Northrop, 13 How. Pr. 289 ; Brackett v. Baum, 50 N. Y. 8, 11 ; Boies v. 
 Benham, 127 N. Y. 620; Gen. Rules Prac. No. 64. 
 
 1 Heth V. Cocke, 1 Rand. { Va.) 344 ; Administrator, 20 N. J. Eq. 375 ; Unger 
 Folsom V. Rhodes, 22 Ohio St. 435 ; v. Leiter, 32 Ohio St. 210 ; N. Y. Real 
 Riddick v. Walsh, 15 Mo. 519 ; 1 Scrib- Prop. L. § 194, as to sale on foreclosure 
 ner. Dower, ch. xxiii. §§ 30, 33 ; 4 after husband's death ; 1 Stim. Amer. 
 Kent's Com. p.* 45. Stat. L. § 3216; 1 Scribner, Dower, 
 
 2 § 472, supra. ch. xxiii. § 30. See Newhall t. Lynn 
 » Mills V. Van Voorhies, 20 N. Y. Saw. Bk., 101 Mass. 428; Schmitt v. 
 
 412; De Wolff v. Murphy, 11 R. I. Willis, 40 N. J. Eti. 515; Sarver v. 
 630; Vreeland v. Jacobus, 19 N. J. Clarkson, 156 Ind. 316 ; 1 Wash. R. P. 
 Eq. 231; Cook's Executor v. Cook's (6th ed.) §§377,479; §465, supra. 
 
PROPERTY OF WHICH A WIDOW IS DOWABLE. 681 
 
 after his death, the obstacle in the way of his widow's right is 
 thus removed, and she may accordingly have dower as if the 
 mortgage had never been on the land.^ And the same result 
 follows, when one, who has purchased the mortgaged land from 
 the husband subject to her dower, discharges the mortgage pur- 
 suant to the terms of the contract of purchase, or with full 
 knowledge of her dower claim. ^ But, when such a purchaser 
 discharges the mortgage in ignorance of her rights, or under 
 such other circumstances that it would be unjust to him to 
 give her dower out pf all the value of the land, equity in his 
 favor will compel her to be endowed only of the residue over 
 and above the mortgage debt, as if the mortgage were still in 
 existence as a claim prior to her own.^ A concrete illustration 
 of the working of this equitable rule is given hereafter, in 
 discussing the discharge of mortgages by merger or extinguish- 
 ment.^ When other persons, such as the heirs, or devisees, of 
 the husband, or their successors in interest, discharge the mort- 
 gage after his death, the widow is ordinarily required to con- 
 tribute her pro rata share of the amount paid.^ 
 
 § 481. DoTwer in Real Property Subject to Judgments or 
 other Liens. — Because no act of the husband, either alone or 
 with others, without the wife's concurrence, can defeat dower, 
 his creditors, who have not reduced their claims to judgment 
 nor otherwise made them liens on his land before his marriage, 
 must, in the absence of statutory modifications, hold them sub- 
 ordinate to her dower right.® Like mortgage claims, these other 
 liens, such as docketed judgments, mechanics' liens, attachment 
 liens, etc' (other than rights of the state or general govern- 
 ment, which may shut out dower as elsewhere explained),^ are 
 inferior to dower and must yield to the widow's superior right, 
 
 1 Wedge 0. Moore, 6 Cush. (Mass.) Hinds v. Ballou, 44 N. H. 619; Mal- 
 8; Norris v. Morrison, 45 N. H. 490; lory w. Hitchcock, 29 Conn. 127 ; 1 Wash. 
 Selb V. Montagne, 102 HI. 446; Hitch- E. P. (6th ed.) § 407. 
 
 cock V. Harrington, 6 Johns. (N. Y.) « § 822, infra. 
 
 290; 1 Scribner, Dower, eh. xxiv. ' Swaine 7). Ferine, 5 Johns. Ch. 
 
 §§ 42-50. See § 817, infra ; I Scribner, (N. Y.) 482 ; Burnet v. Bnrnet, 46 N. J. 
 
 Dower, ch. xxlii. §§ 37-51. Eq. 144 ; Norris v. Morrison, 45 N. H. 
 
 2 Ibid.; McCabe v. Swap, 14 Allen 490; Selb v. Montague, 102 111. 446; 
 (Mass.), 188; Thompson v. Heywood, § 798, infra. 
 
 129 Mass. 401 ; Everson v. McMnUea, ' § 496, infra ; Grady v. McCorkle, 
 
 113 N. Y. 293; Hatch v. Palmer, 58 57 Mo. 172; Owen „. Blatter, 26 Ala. 
 Me. 271. 547. 
 
 3 Forbes v. Moffatt, 18 Ves. 384 
 James v. Morey, 2 Cow. (N. Y) 246 
 Carlton v. Jackson, 121 JIass. 592 
 
 ' Such liens, most of which are statu- 
 tory, are explained hereafter. 
 8 § 506, infra. 
 
682 ESTATES IN EEAL PROPEETY, 
 
 unless they have a natural and fair priority, by having attached 
 first to the property, or by reason of her estoppel to demand pre- 
 cedence of her dower. Therefore, liens that are on the land 
 before the marriage, or before the husband acquires it, or as to 
 which the wife in some manner waives or relinquishes her 
 dower, take priority, and leave her dower to attach to the resi- 
 due after they are satisfied.^ And, as dower may be completely 
 removed from the land by the proper foreclosure of a mortgage 
 to which the dower is subordinate, so it may be divested by the 
 due enforcemen,t of any of these other liens to which it is infe- 
 rior.2 And the wife's or widow's right may attach to the sur- 
 plus, in the same manner as after the satisfaction of a mortgage.* 
 So, the discharge of these liens removes the obstacle to dower, 
 and lets it attach to all the , realty, under substantially the 
 same circumstances as those above explained in reference 
 to mortgages.* : 
 
 § 482. Dower in Future Estates. — Questions as to dower 
 (or curtesy) in future estates — in reversions, remainders, and 
 executory interests ^ — are readily answered by remembering 
 and emphasizing two of the absolute requisites of dower. 
 These are that the husband must be seised during coverture, 
 and that he must be seised of an estate of inheritance.^ If, 
 therefore, a piece of land be owned by A for life, and hy B 
 as remainderman or reversioner in fee, there is no dower in it 
 for the wife of either of them ; for A has the seisin but no 
 estate of inheritance, and B has the estate of inheritance but 
 no seisin. Neither of them has both I'equisites ; and so neither 
 wife has any dower.'' If, on the other hand, realty be owned by 
 A for a term of years and by B as reversioner or remainder- 
 man in fee, B's wife has a dower right therein ; because he has 
 
 1 Sandford v. McLean, 3 Paige ' Ibid. 
 
 (N. Y.), 117; Robbins v. Bobbins, 8 * Ibid.; % S22, infra. 
 
 Blackf. (Ind.) 174; Trustees, etc. o. ^ See these explained"at §§88, 89, 
 
 Pratt, 10 Md. 5; Brown v. Williams, supra, and, ch. Ix. infra. 
 
 31 Me. 403 ; Roan v. Holmes, 32 Fla. ^ § 446, supra. 
 
 295 ; Brown v. Bronson, 35 Mich. 415 ; ' Duncomb v. Duncomb, 3 Lev. 437 ; 
 
 Nutter V. Pouch, 86 Ind. 451 ; 4 Kent's Durando v. Durando, 23 N. Y. 331 ; 
 
 Com. p.*50; 1 Scribner, Dower, ch. Leach v. Leach, 21 Hun (N. Y.), 381 ; 
 
 xxviii. §§ 29-33, ch. xxix. § 45. But in Collins v. Russell, 184 N. Y. 74; Baker 
 
 Pennsylvania dower is subordinate to the v. Baker, 167 Mass. 575; Kenyon v. 
 
 husbaud's debts. Directors o£ Poor w. Kenyon, 17 R. I. 539; Kirkpatrick v. 
 
 Royer, 43 Pa. St. 146 ; Lazear w. Porter, Kirkpatrick, 197 111. 144; Von J^ib v. 
 
 87 Pa. St. 513; Porter v. Lazear, 109 Thomas, 1 63 Mo. 33 ; 1 Scribner, Dower, 
 
 U. S. 84. ch. XV. § 1. 
 
 2 Ibid. ; § 480, supra. ' 
 
PROPERTY OP WHICH A WIDOW IS DOWABLE. 683 
 
 not only an estate of inheritance, but also the seisin, which, 
 though livery of it were made to A the tenant for years, can 
 not reside in A but goes past him to B the freeholder.^ The 
 formal statement of the result, which thus becomes apparent, 
 is that there is no dower in a reversion or remainder after a 
 preceding freehold estate ; but after an estate less than free- 
 hold there may be dower in a remainder or reversion In fee.^ 
 And even wliere the future estate follows a freehold interest, 
 if the later terminate during the coverture so that the husband 
 becomes the owner of a present estate in fee, his wife's dower 
 right, of course, at once attaches.^ Thus, when land is owned 
 by A for life and by B as remainderman in fee, and A dies 
 while B is still living and owning the remainder, B's wife 
 acquires dower in the property immediately on A's death. And 
 the same is true if B purchase A's interest, or in any other 
 manner become the owner of the present estate in fee.* 
 
 In the discussion of future estates hereafter, it is shown 
 that the only forms of tliem, of which the owners can ever be 
 said in any proper sense to be seised, are vested remainders and 
 reversions. There is no seisin of contingent or executory inter- 
 ests.^ Therefore, the summary as to dower in future estates is 
 that it does not attach to any of them, as such estates, except a 
 vested remainder or reversion which is not preceded by any 
 freehold particular estate.^ 
 
 § 483. Dower in Incorporeal Hereditaments. — Incorporeal 
 hereditaments owned by the husband in fee, and of which he 
 has seisin (^by means of his enjoyment of the income)^, are in 
 their inherent nature subject to dower. Thus, there is dower in 
 a perpetual rent, or a franchise, or aprofit a prendre, or any other 
 servitude that is not appurtenant to a dominant corporeal tene- 
 ment.8 These are real interests, which stand out by themselves 
 
 1 Ibid ; Co. Lit. 32 a ; Bates v. estate, both coming into the same hands 
 Bates, 1 Ld. Raym. 326 ; Boj'd v. at the same time and in the same right, 
 Hunter, 44 Ala. 705 ; Weir v. Tate, 39 will merge and so give a present estate 
 N. C. 264 ; 1 Scribner, Dower, ch. xi. in fee to which dower may attach, see 
 § 5. §§ 4.57, 470, supra. 
 
 2 Last two preceding notes ; 1 Scrib- ' § 283, supra. 
 
 ner, Dower, ch. xv. ' Co. Lit. 22 a ; 2 Blackst. Com. p. 
 
 3 Last three preceding notes. *132 ; Chaplin v. Chaplin, 3 P. Wms. 
 * Ibid. ; House v. Jackson, 50 N. Y. 229 ; Bedlow v. Still well, 158 N. Y. 
 
 161 ; Powers v. Jackson, 57 N. Y. 654. 292 ; Williams !-. Cox, 3 Edw. Ch. 
 
 See Stewart w. Neely, 139 Pa. St. 309 ; (N. Y.) 178; Chase's Case, 1 Bland. 
 
 Eldredge v. Forrestal, 7 Mass. 253. Ch. (Md.) 227 ; 1 Scribner, Dower, ch. 
 
 6 § 283, supra ; §§ 883, 91 2, 913, infra. x. § 3. 
 
 > As to when a present and future 
 
684 ESTATES IN REAL PROPERTY. 
 
 and may have such rights attached. But in technical, common- 
 law easements, which are always appurtenant to dominant 
 corporeal property, there can be no right to dower, apart from 
 the land to which they are appurtenant. They must adhere 
 to the land ; and a widow could not take a third of one of them 
 distinct therefrom.^ So, in case of a lease for years, she can 
 liave no dower in the rent, except as she may be endowed of 
 the landlord's reversion and take her share of the rent as 
 incident thereto.^ In a word, dower naturally belongs to 
 incorporeal hereditaments ; but no widow can have dower in 
 one of them, as a distinct entity, when it itself must remain 
 appurtenant to corporeal property. 
 
 § 484. Dower in Mines and Quarries. — In mines and 
 quarries owned by the husband in fee, which were opened and 
 worked during his life, his widow is entitled to dower, whether 
 they are within his land or the land of another.^ She may 
 work to exhaustion an open mine, set out to her as part or all 
 of her dower property ; and like any other life owner, she may 
 do the same as to such a mine in that portion of her husband's 
 land assigned to her for dower.* But she is also precluded, as 
 are other life tenants, from opening any new mine in her dower 
 property.^ 
 
 § 485. Dower in Wild Lands. — The common law denied 
 widows dower in wild and uncultivated wood and forest lands, 
 because the wood must be removed from them in order to make 
 them of any benefit to a life owner, and the cutting of it to 
 the extent necessary for this purpose would constitute waste.® 
 The law is generally the same in Maine, Massachusetts, and 
 New Hampshire, unless the wild land is used in connection with 
 
 1 Wyman v. Oliver, 75 Me. 421 ; Pick. (Mass.) 460 ; 1 Scribner, Dower, 
 Chouteau v. M. P. R. Co., 122 Mo. 375 ; ch. x. §§ 4-10. See Black v. Elkhorn 
 
 I Scribner, Dower, ch. x. § 3. Min. Co., 163 U. S. 445. 
 
 2 Ibid.; Co. Lit. 22 a; Stoughton w. * Ibid.; Priddy v. Griffith, 150 111. 
 Leigh, 1 Taunt. 402; Herbert v. Wren, 560; Clift v. Clift, 87 Tenn. 17; § 555, 
 
 II U.S. (7 Cranch) 378; Williams v. infra. 
 
 Cox, 3 Edw. Ch. (N. Y.) 178; Moriarta ^ Last two preceding notes. But in 
 
 r. McKea, 45 Hun (N. Y.), 564; Weiru. Michigan, by statute, the widow may 
 
 Tate, 39 N. C. 264 ; Duncan v. Navassa have dower in a mine not yet opened. 
 
 Phosphate Co., 137 U. S. 647 ; 4 Kent's In re Seager, 92 Mich. 186. A mine is 
 
 Com. p. *40 ; 1 Wash R. P. (6th ed.) opened and worked when any part of it 
 
 § 383. is opened and worked. See Billings ». 
 
 8 Stoughton w. Leigh, 1 Taunt. 402; Taylor, 10 Pick. (Mass.) 460; Coates 
 
 Coates f. Cheever, 1 Cow. ( N. Y. ) 460 ; v. Cheever, 1 Cow. (N, Y. ) 460 ; Moore u. 
 
 Sayers u. Hoskiuson, 110 Pa. St. 473; Rollins, 45 Me. 493 ; Lenfers u. Henke, 
 
 Gaines v. Green Pond Iron Min. Co., 33 73 111. 405. 
 
 N. J. Eq. 603; Billings v. Taylor, 10 ^ Bract. §315. 
 
PROPERTY OP WHICH A WIDOW IS DOWABLB. 685 
 
 improved realty for the supplying of timber, fuel, etc., for the 
 reasonable enjoyment of the farm.i But, throughout the rest 
 of this country, there is generally dower in such lands ; because, 
 under the liberal rules as to a life-tenant's removal of timber 
 in most of our states, they can be reasonably enjoyed without 
 the cominission of waste.^ 
 
 § 486. Dower Rights in Crops. — The annual crops, as well 
 as those that are perennial, growing on land when it'is assigned 
 to a widow for her dower, belong to her, and not to the per- 
 sonal representatives of her husband.^ Tlie common law gave 
 her this right, as an appendage to her dower interest ; and 
 then, in compensation to her husband's estate, forbade her 
 representatives to take any emblements from the land after 
 her death, but gave all the crops growing there at the time 
 of her death to the succeeding owner of the land.* The 
 Statute of Merton, eh. II, changed this latter rule, however; 
 and ever since then her representatives have been allowed to 
 take the emblements, the " away-going " annual crops, growfing 
 on the land at the time of iier death. The net result is, in 
 favor of dower, that she owns the annual crops — the crops 
 which are the result of annual cultivation — at both ends of 
 her ownership of the property. She may have those that are 
 growing there when she takes the land ; and her personal 
 representatives may bring to maturity, and harvest as a part 
 of her estate, or she may bequeath by her will, those that are 
 growing there at the time of her deatli.^ 
 
 1 Arid some of the states so provide Schnebly v. Schneblv, 26 111. 116; Chap- 
 by statute. See White v. Willis, 7 man v. Schroeder, 10 Ga. 321 ; 1 Scrib- 
 Pick.^Mass.) 143 ; Webb v. Townsend, ner, Dower, ch. x. §§ 21-24. 
 
 IPick. (Mass.) 21 ; Conner v. Shepherd, ' 2 Co. Inst. 81 ; Kain v. Fisher, 6 
 
 15 Mass. 164; Ford u. P^rskine, 50 Me. N. Y. 597, 598; Parker v. Parker, 17 
 
 227; Fuller «. Watson, 7 N. H. 341; 1 Pick. (Mass.) 236. 
 
 Stim. Amer. Stat. L. §3219; 1 Scrib- * Bract. §§ 2, 96 ; 2 Scribner, Dower, 
 
 ner, Dower, ch. x. §§ 11-20. ch. xxx. § 18. 
 
 2 Walker v. Schuyler, 10 Wend. ^ Last two preceding notes ; 2 Scrib- 
 (N. Y.) 480; Jackson v. Sellick, 8 ner, Dower, ch. xxx. §§ 15-20. For 
 Johns. (N. Y.) 262 ; Brown v. Richards, the subject o£ emblements, as belonging 
 17 N. J. Eq. 32 ; Brayton v. Jordan, 24 to life tenants generally, see §§ 542-546, 
 B. I. 6; AUen v. McCoy, 8 Ohio, 418; infra. 
 
CHAPTER XXXIII. 
 
 ASSIGNMENT OP DOWEE. 
 
 § 487. Meaning of assignment — 
 When to be made. 
 
 § 488. By whom dower should be 
 assigned. 
 
 § 489. Procedure to compel as- 
 signment of dower. 
 
 § 490. Demand for dower before 
 suit. 
 
 § 491. Methods of assigning dow- 
 er — EfEects. 
 
 § 492. Assignment of dower, of 
 common right. 
 
 §493. Assignment of dower, 
 against common right — Equitable 
 assignment — Statutory assignment. 
 
 § 494. Dower is one-third,.in value 
 — How ascertained. 
 
 § 495. Damages for detention of 
 dower. 
 
 § 487. Meaning of Assignment — When to be made. — Since 
 a widow's dower interest is her life estate in one-third of t^e 
 real property of which ,her husband was seised of an estate of 
 inheritance during the coverture, and she is not given the right 
 to choose the third for herself, there must be an admeasure- 
 ment and assignment — a clear designation for her of her por- 
 tion and putting her in possession — before she can own any 
 dower land distinctly as such. This " assignment " of dower 
 should be made during her quarantine.^ She is entitled to it 
 immediately on the death of her husband ; and, if her third be 
 not set out to her during the forty days of her quarantine, she 
 may have an action for its recovery .^ The nature of her pro- 
 ceeding for that purpose is explained hereafter.^ 
 
 § 488. By Whom Dower should be assigned. — The tenant 
 of the freehold, the person who holds a present freehold inter- 
 est in the property subject to the dower claim, is the one who 
 should make the assignment.^ And he is usually the heir, de- 
 visee, or alienee bf the husband. It is not necessary, however, 
 that such tenant be the rightful owner. The principle is that 
 the widow should not be delayed in acquiring her dower land ; 
 
 1 2 Blackst. Com. p. *135 ; 4 Kent's 
 Com. p. *63; 2 Crabb, R. P. § 1140; 
 § 463, supra. 
 
 2 Ibid. 
 
 8 § 489, infra. 
 
 * Cruise, Dig. tit. vi. ch. 3, § 3. 
 
ASSIGNMENT OF DOWER. 687 
 
 and an assignment made by the freehold tenant, in itself proper, 
 should be upheld.^ Therefore, a disseisor, abator, or intruder 
 may effectually set out her dower, if he make such an assign- 
 ment as the rightful owner had he been in possession might 
 have been compelled to make.^ So, an infant, who is tenant of 
 the freeliold, may assign dower, subject to correction by the 
 court if he make a mistake against his own interest.^ And, in 
 most jurisdictions, the guardian of such an infant may make a 
 valid assignment.* And, for the same reason, if either of two 
 or more joint tenants, or it would seem either of any other kind 
 of co-owners, assign dower in the manner in which they were 
 all compellable to assign it, it will be good as against them all.^ 
 
 § 489. Procedure to compel Assignment of Hovrer. — The 
 history of dower litigation presents at least six methods by 
 which widows have sued for their thirds. The first two of these 
 are by the old common-law writs, the third by ejectment, the 
 fourth by procedure in the probate court, the fifth by suit in 
 equity, and the sixth by action under the modern codes. 
 
 The common-law procedure is either by writ of right of 
 dower, or by writ of dower unde nihil habet. The former is for 
 the recovery of the residue of her interest when some part of it 
 has been already assigned ; and the latter for her entire dower, 
 none of which she has yet obtained.^ These were two of the 
 four real actions retained in England by the repealing act of 3 
 & 4 Wm. IV. ch. 27, § 36. And the procedure by writ ot 
 dower unde nihil habet is still substantially in use in a number 
 of the states of this country.' If tlie demandant succeed in this 
 action, she is entitled to a writ directed to the sheriff requiring 
 him to admeasure her dower on the land and deliver possession 
 to her.* This remedy is not ordinarily as satisfactory as that 
 in equity. 
 
 1 2 Scribner, Dower, ch. iv. §§ 8-10. Heisen v. Heisen, 145111. 658. At com- 
 
 2 He must be in possession, claiming mon law, a guardian in socage could not 
 title, and must make the assignment assign dower, but a guardian in chiv- 
 without fraud or covin. Ibid. ; Co. airy might do so. Co. Lit. 35 a ; 2 
 Lit. 35 a, 357 b ; Cruise, Dig. tit. vi. ch. Scribner, Dower, ch. iv. § 6. 
 
 iii. § 4. 6 Co. Lit. 35 a ; 2 Crabb, R. P. 
 
 3 Young V. TarbeU, 37 Me. 509 ; § 1 142. 2 Scribner, Dower, ch. iv. §§ 
 McCormick v. Taylor, 2 Ind. 336 ; 2 13-15. 
 
 Blackst. Com. p. *136 ; 2 Scribner, « 2 Scribner, Dower, ch. v. § 2 ; Ste- 
 
 Dower, ch. iv. § 11. See, contra, Bon- phens on Pleading, pp. *9, *10. 
 
 ner v. Peterson, 44 111. 253. ' 2 Scribner, Dower, ch. vi. ; 1 Stim. 
 
 4 Curtis i: Hobart, 41 Me. 230 ; Amer. Stat. L. § 3274. 
 
 Young V. TarbeU, 37 Me. 509 ; Boyers ^ For detailed description of the pro- 
 
 V. Newbanks, 2 Ind. 388. Contra, cedure, see 2 Scribner, Dower, ch. v. 
 
688 ESTATES IN REAL PEOPERTY. 
 
 The action of ejectment has been, ever since it arbse as a 
 remedy, a means by which a widow could recover her dower 
 land already assigned to her but held adversely by another per- 
 son. And this was its only use in acquiring dower at common 
 law.^ In some of the United States, it has been so extended in 
 its operation as to enable her to proceed in this manner to 
 compel the assignment.^ But whenever he whose duty it is to 
 assign dower is not in actual possession of the land, this mode 
 of procedure is ineffectual ; and therefore it is not always as 
 satisfactory a remedy as a suit in equity.^ 
 
 Many of our state statutes have provided for summary pro- 
 ceedings, usually in the probate court, for the admeasurement 
 of dower.* This is quite satisfactory in places where the stat- 
 ute authorizes such court to decide as to the widow's title, in 
 case it is disputed. But where this power is not conferred by 
 legislation on the probate tribunal, it can only determine what 
 part of the property she may have as dower, if she be entitled 
 to any dowes at all ; and the entire matter of her right and title 
 may have to be determined in another court.^ 
 
 Starting as a remedy auxiliary to that at law, by removing 
 the impediments to a complete determination of the, case, grant- 
 ing discovery, etc., dower suits in equity were gradually ex- 
 tended in their scope until they came to be the most efficacious 
 means of redress for the claimants.^ This mode of procedure, 
 which is now recognized everywhere as concurrent with that at 
 law,' has all the advantages of the legal remedies and avoids 
 most of their disadvantages. Especially, it enables the claimant 
 to reach equitable estates as well as the purely legal ones which 
 are alone recognized by law ; it retains the matter until all 
 questions and difficulties are settled in the one suit, and so it 
 avoids a multiplicity of actions ; it affords complete means of 
 discovery of the property, and obtaining an account of the 
 mesne profits ; and it enables all the interested parties to be 
 brought in and given their day in court.^ Except in states 
 
 1 2 Scribner, Dower, ch. ii. §T8. Matter of "Watkins, 9 Jolins. (N. Y.) 
 
 2 2 Scribner, Dower, ch. vi. §§ 16, 17. 245. 
 
 8 Ibid. ; Stephens on Pleading, p^ ^ i Kent's Com. p. *71 ; Bispham's 
 
 *11 ; Ellis V. Ellis, 4 K. I. 110; EUicott Prin. Eq. § 495 ; 2 Scribner, Dower, 
 
 V. Mosier, 7 N. Y. 201. ^ ch. vii. §§ 1-15. 
 
 4 1 Stim. Amer. Stat. L. §§ 3272, ' Ibid.; 1 Stim. Amer. Stat. L. § 
 3273. 3274. 
 
 5 Ibid.; French v. Crosby, 23 Me. « Bispham's Prin. Eq. §§ 496-500 ; 2 
 276; Sheafe v. O'Neil, 9 Mass. 9; Scribner, Dower, ch. vii. §§1-15. 
 Parks V. Hardey, 4 Bradf. (N. Y.) 15; 
 
ASSIGNMENT OF DOWER. 689 
 
 where positive statutes intervene, it is the method most com- 
 monly resorted to for the compulsory assignment of dower.^ 
 The proceeding is commenced by bill or petition ; and, when 
 the claimant's right has been established, the assignment is 
 effected by a master in chancery or commissioners appointed 
 for that purpose, who, acting as ordered by the court, set out 
 her share by metes and bounds and deliver possession to her. 
 When the court confirms their report of these proceedings, the 
 assignment of her dower becomes complete.^ 
 
 The action for dower under the modern codes, which com- 
 bine the practice of law with that of equity, proceeds substan- 
 tially the same as any other action.^ It is a remedy usually 
 based on that of equity, but with the addition of some impor- 
 tant modifications and advantages. Thus, the statutes usually 
 provide that a fixed annual sum of money may be awarded to 
 the widow, and made a charge on the realty, where it is im- 
 practicable to give her a specific third of the land. They also 
 authorize her to file a consent to receive a gross sum in lieu of 
 dower, and provide for the filing of a consent by the defendant 
 to pay such sum, which the court is to determine by a reference 
 or otherwise ; and usually also they prescribe proceedings, after 
 the filing of such a consent by the plaintiff, for a sale of all or 
 some of the property to obtain such sum, or for a transfer of a 
 part of it to her in fee simple in part settlement or settlement 
 in full of her dower claim.* (a) 
 
 (a) In New York, from the earliest times, a widow might proceed for 
 the recovery of her dower by a writ of dower unde nihil hahet ; and this 
 kind of action was recognized by the statutes of 1787 and the Revised 
 Laws of 1813. R. L. p. 57, § 3. By the Revised Statutes (Jan. 1, 1830), 
 the action of ejectment was substituted for the more ancient procedure. 
 2 R. S. 303, 343, § 24. By virtue of those statutes, also, she could proceed 
 by petition, for the admeasurement of her dower, in the Supreme Court, 
 or a County Court, or the Surrogate's Court, in the county in which the 
 land was situated. 2 R. S. 488, § 1. And her remedy in equity, if she 
 chose that preferable method, was always recognized. Badgley v. Bruce, 
 4 Paige, 98 ; Hazen v. Thurber, 4 Johns. Ch. 604 ; 4 Kent's Com. pp. *71, 
 •72. 2 Scribner, Dower, ch. vi. § 16, ch. vii. § 11, ch. viii. §§ 2-11. 
 
 The former Code of Procedure, §§ 307, 45.5, provided for dower actions. 
 And the present Code of Civil Procedure, §§ 1596-1625, regulates them 
 somewhat more in detail. This code remedy, which is the present mode 
 of suing for dower, is based on the procedure in equity, but adds several 
 
 1 Ibid. * N.Y. Code Civ. Pro. §§1617-1624; 
 
 2 Bispham's Prin. Eq. §§ 501, 502; 1 Stim. Amer. Stat. L. §§ 3274-3276. 
 2 Scribner, Dower, §§ 16-47. See 2 Scribner, Dower, ch. viii. 
 
 8 7Enc. PI. &Pr.p. 171. 
 
 44 
 
690 ESTATES IN REAL PROPERTY. 
 
 § 490. Demand for Dower before Suit. — The common law 
 does noi require a widow to make a demand for her dower, as 
 a prerequisite to her suit for its recovery.^ But, since statutes 
 have given her the ability to recover damages for the wrongful 
 withholding of her dower land, it is in many cases necessary 
 for her to make a demand before suing, in order that she may 
 recover such damages against the alienee of the husband or 
 of the husband's heirs.^ (a) In some states, moreover, stat- 
 utes preclude the recovery of any dower unless it has been 
 demanded before suit.? It is best, of course, in all cases, to 
 make demand for the dower, before proceeding in court for 
 its recovery. 
 
 The statutes do not prescribe any special requisites of such 
 a demand. It must describe the property and the claim with 
 sufficient certainty ; and must be made personally on the ten- 
 ant of the freehold if he can be reached.* But, as a rule, 
 neither the notice of the demand, nor the authority of any 
 agent who may make it^ is required to be in writing.^ In some 
 
 important advantages to that procedure. Thus, it provides that the 
 plaintiff may make and file a written consent to receive a gross sum in full 
 satisfaction and discharge of her right of dower ; that the defendant may 
 then apply to the court for leave to pay such sum ; and that the court may 
 proceed, by reference or otherwise, to ascertain the value of her dower 
 right, and to fix the amount to be paid, and may order that sum to be paid 
 and received in satisfaction of the dower- claim. §§ 1617, 1618. It further 
 provides that, when the plaintiff thus consents to receive a gross sum, and 
 a distinct parcel of the land can not be laid off for her without material 
 injury to the parties, the court may order a sale of the land, and the pay- 
 ment of a gross sum to her out of the proceeds ; or, when she so consents 
 and the court decides that it is best, a distinct parcel of the land may be 
 ordered to be transferred to her in fee simple, in whole or part satisfac- 
 tion of her dower claim. §§ 1619-1624. See Uobinson v. Govers, 138 
 N. Y. 425; Freeman v. Ahearn, 64 App. Div. 509; Everson v. McMuUen, 
 45 Hun, 578. 
 
 (a) In New York, when a widow sues for dower in land of which her 
 husband died seised, and the action is against any person other than' the 
 heir, she can not recover damages also, except from the time when she de- 
 manded her dower. Code Civ. Pro. § 1600. And see § 495, infra. 
 
 1 2 Scribner, Dower, eh. vi. § 1. " Bear v. Snyder, 11 Wend. (N. Y.) 
 
 2 Ibid.; Co. Lit. 32b; Hitchcock o. 592; Haynes v. Powers, 22 N. H. 590; 
 Harrington, 6 Johns. (N. Y.) 290 ; N. Y. Luce v. Stubbs, 35 Me. 92 ; Parker v. 
 Code Civ. Pro. § 1600 ; McClans^han v. Murphy, 12 Mass. 485. 
 
 Porter, 10 Mo. 746; Roan u. Holmes, * Ibid.; Co. Lit. 32 b; Watson u. 
 
 32 Fla. 302. Watson, 10 C. B. 3 ; Lothrop v, Foster, 
 
 8 2 Scribner, Dower, ch. vi. § 2. 51 Me. 369. 
 
ASSIGNMENT OP DOWER. 691 
 
 states, no actioil can be commenced until a designated time after 
 the demand is effectually made.^ 
 
 § 491. Methods of Assigning Dower — Effects. — When the 
 assignment is made by legal process, it is always to be done 
 " of common right." For there are two methods of assigning 
 dower, the one " of common right," ^ and the other " against 
 common right." ' The former mode consists in giving to the < 
 widow, out of tlie real property of which her husband was 
 seised during the coverture, the specific interest which she can 
 insist on having and can compel the heir or other assignor to 
 give, and which he can insist on her accepting in satisfaction 
 of her dower claim — her one-third, for her life, of the lands, 
 tenements, and hereditaments themselves that are subject to 
 her dower.* Thus, if the husband had owned a thirty-acre 
 tract of land, all of uniform quality and value, an assignment 
 of common right would result in her being given possession of 
 ten of those acres to hold and enjoy during the residue of her 
 life. This is done without any contract with her, or other 
 formality on her part; simply by the admeasurement of her 
 third, by the officer or other person whose duty it is to do 
 so, and giving her possession. The law confers upon her the 
 interest thus set out.* Assignment of dower " against common 
 right," on the other hand, is always the result of a contract 
 with her, whereby she accepts some interest or property other 
 than that which she could legally demand. It is not the law 
 that transfers to her such an interest, but an agreement be- 
 tween her and the tenant of the freehold ; and by her contract 
 she accepts it in lieu of her legal right.® For example, if the 
 husband had owned a thirty-acre tract of land, an assignment 
 against common right would result from her contract with his 
 heir, whereby she acquired a rent out of that land, or the owner- 
 ship in fee or otherwise of another piece of land which had 
 never belonged to her husband, or any other property real or 
 personal that she was willing to accept in lieu of her specific 
 legal dower interest.' Dower of common right is her legal 
 claim, perfected by law without her act ; dower against common 
 right is her contract acquisition in lieu of that which the law 
 would otherwise have given. 
 
 1 2 Scribner, Dower, ch. vi. §§ 2-4. * Ibid. 
 
 2 Or, " according to common right." ^ 2 Swibner, Dower, ch. i. § 2. 
 8 Or, " not according to common ^ Last three preceding notes. 
 
 right." I Wash. R. P. (6th ed ) § 456 ; ' <^o. Lit. 34 b ; Tud. Lead, Caa. R 
 
 2 Scribner, Dower, ch. iv. §§ 16-22. V- V- *52 ; llaugh v. Peirce, 97 Me, 281. 
 
692 ESTATES IN EEAL PROPERTY'. 
 
 For the widow, perhaps the most important practical differ 
 ence between these two ways of satisfying her demand for 
 dower is in the results for her in case she loses, because of de- 
 fect of title, that which has been assigned. When the assign- 
 ment is of common right, if the title fail to all or part of that 
 which, is thus given to her by operation of law and without any 
 agreement on her part, she' may have a new assignment from 
 the realty which the husband did actually own in fee.^ But, if 
 she lose because of invalid title all or some of the property that 
 she consents to have assigned to her against common right, she 
 has no redress in a further claim for dower. And this is be- 
 cause she is bound by her contract, relinquishing her specific 
 legal dower interest for that which she received instead.^ The 
 failure of the title, in such cases, may often give her a right of 
 action against him who made the assignment ; as when, for ex- 
 ample, he has defrauded her, or given her a warranty deed of 
 the land ; but her acceptance of an assignment against common 
 right effectually terminates her dower claim.^ 
 
 § 492. Assignment of Dower, of Common Right. — Dower of 
 common right must always be set out by metes and bounds — 
 by measuring off one-third of the specific land and giving the 
 widow possession — whenever this is practicable and fair.* 
 And in tlie parcel so admeasured she must be given a life estate, 
 without any condition, exception, or reservation. A condition 
 or restriction attempted to be annexed to her interest is void.^ 
 If the husband died seised of two or more distinct tracts of 
 land, and his heir or devisee still hold them all, it is not now 
 generally held necessary that she receive by metes and bounds 
 one-third of each parcel, though the common law gave her 
 dower from each piece;* but the sheriff, or heir, or other as- 
 signor, may fairly transfer to her out of one or more of them 
 
 1 French v. Pratt, 27 Me. 381 ; 2 ' Ibid. See 2 Sorlbner, Dower, ch. 
 Scribner, Dower, ch. xxix. § 1. And, xxix. §§ 4-9. 
 
 if the heir lose, because of defective * Lit. § 36 ; Cruise, Dig. tit. vi. ch. 
 
 title, all or some of the property left to iii, § 6 ; Smith v. Smith, 6 Lans. (N. Y.) 
 
 him after the assignment, he has a right 313 ; Pierce v. Williams, 3 N. J. L. 
 
 against her to a new assignment. Sin- 281 ; Skolfield v. Skolfield, 88 Me. 258 ; 
 
 gleton's Heirs v. Singleton's Executors, Sanders v. McMillan, 98 Ala. 146. 
 5 Dana (Ky.), 87; 1 Wash. R. P. (6th ^ Qq. Lit. 34 b, u. 217; Cruise, Dig. 
 
 ed.) § 478, tit. vi, ch. iii, § 14 ; Bullock v. Finch, 1 
 
 2 Scott V. Hancock, 13 Mass. 162; RoUe, Abr. 682; Austin v. Austin, 50 
 Mantz u. Buchanan, 1 Md. Ch. 202; Me. 74, 77. 
 
 2 Scribner, Dower, ch. xxix. § 4. ^ See 2 Scribner, Dower, ch. xxi. 
 
 §§ 17-20. 
 
ASSIGNMENT OF DOWER. 693 
 
 a quantity equal in value to one-third of them all.^ But when 
 the parcels are held separately, as by several grantees of the 
 husband, dower of common right must ordinarily be set out 
 from each piece.^ 
 
 It is often impracticable, or would be unjust, because of the 
 nature of the property or the way in which it is owned, to as- 
 sign dower by metes and bounds. This is true, for example, 
 when the property consists of a mill which should be managed 
 as an entire business establishment, or a dwelling house from 
 which one-third can not fairly be allotted, or a single ferry 
 right, or mine, or right of way ; or when the land is owned, 
 subject to the dower right, by two or more persons as joint 
 tenants or tenants in common. In such cases, the dowager 
 may be granted a proportionate part of the rents, profits, or in- 
 come, as one-third of the net returns from the ferry ,^ or every 
 third net toll dish from the mill ; * or she may be given the 
 right of occupation and enjoyment for one-third of the time ; ^ 
 or some similar special arrangement may be made which shall 
 assure to her during her life one-third of the net profits.® Her 
 dower of common right is to be set out by metes and bounds if 
 possible and just ; otherwise she is to have one-third of the net 
 returns in the best and most practical manner. 
 
 § 493. Assignment of Do'wer, against Common Right — Equi- 
 table Assignment — Statutory Assignment. — Dower assigned 
 against common right, being the outcome of an agreement 
 by which the widow accepts something other than her specific 
 dower interest,^ must result from a contract sufficient to release 
 and bar such specific interest. The contract, therefore, must 
 
 1 2 Scribner, Dower, ch. xxi. §§ 17- "^ Ibid. 
 
 20; 1 Stim. Amer. Stat. L. § 3277. * Last three preceding notes ; Cruise, 
 
 2^Droste v. Hall, 29 Atl. Rep. 437 ; Dig. tit. vi. ch. iii. §§ 6-12; 2 Scribner, 
 Park, Dower, 282 ; 2 Scribner, Dower, Dower, ch. xxiii. These principles hare 
 ch. xxii. §§ 2-4. Where, however, part received special attention in assigning 
 of the husband's land was aliened by dower in mines ; in which the widow is 
 him subject to dower, especially when entitled to one-third by metes and 
 he sold with warranty, the widow's bounds if practicable, otherwise to one- 
 dower should be set out from the resi- third of tlie net income, or even to a 
 due, of which he died seised, if that be larger share of other realty instead of 
 sufficient. Wood v. Keyes, 6 Paige any specific mining right. Stoughton 
 (N. Y.), 478; Lawson v. Morton, 6 Dana v. Leigh, 1 Taunt. 402 ; Billings v. Tay- 
 (Ky.), 471; Raynor w. Raynor, 21 Hun lor, 10 Pick. (Mass.) 450; Coates v. 
 (N. Y.), 36, 40. Cheever, 1 Cow. (N. Y.), 460; Lanfers 
 
 " Stevens v. Stevens, 3 Dana (Ky.), v. Henke, 73 Ifl. 405. 
 371. ' § 491, supra. 
 
 * Perkins, § 415; 2 Crabb, R. P. 
 § 1154. 
 
694 ESTATES IN REAL PROPERTY. 
 
 be made by deed, or other instrument in writing complying 
 ■with the requirements of the statute of frauds, by which her 
 absolute legal right in the property of her husband is- effectually 
 released.^ Otherwise, although the contract might be good in 
 itself, it would not be a valid assignment and satisfaction of 
 •dower. When it is sufficient as a transfer of property to her 
 and a release by her, it terminates all her right in her husband's 
 realty, eveii though she thus receive much less in value than 
 her specific dower interest.^ 
 
 By the doctrine of equitable conversion , money or other per- 
 sonal proceeds of land sold is sometimes regarded as realty, and 
 so is subject to the dower right which had attached to the land 
 ■conveyed.^ Such often, for example, are the surplus moneys 
 arising from the foreclosure of mortgages, or some or all of the 
 proceeds of sales of realty in partition, or of sales for the pay- 
 ment of decedents' debts.* Courts of equity early assigned dower 
 in such personal funds, by allotting to the widow annual interest 
 on one-third thereof ; ^ and this is the method still in force, ex- 
 cept as modifications are made by agreement of the parties or 
 by virtue of statutes.^ And, according to the weight of author- 
 ity, this is the only method in which the court unaided by 
 statute is absolutely authorized to proceed in such cases.''' But 
 the parties, if all are of age and competent, may agree that a 
 gross sum shall be paid to the widow as representing her dower 
 interest.^ The proper computation of such a sum is made by 
 finding the present worth of an annuity of onq-third of the an- 
 nual interest on the fund that is subject to the dower, for the 
 period of the expectation of life of the dowager as shown by the 
 mortality tables. Thus, if the fund were $30,000 on which, 
 therefore, interest at (say) five per cent would be $1,500 per 
 year, and the mortality tables showed her expectation of life 
 to be eighteen years, the gross sum representing her dower 
 
 1 Co. Lit. 34 b. n. (9) ; Vernon'a ^ 2 Scribner, Dower, ch. xxiii. §§ 13- 
 •Case, 4 Rep. 1 ; Eoper, Husband and 18. 
 
 Wife, 377, 410 ; 2 Scribner, Dower, * Last tjro preceding notes ; Higbie 
 
 ch. i|V. §§ 28-30. v. Westlake, 14 N. Y. 281 ; Hinchmau 
 
 2 Co. Lit. 32 b ; Jones v. Brewer, 1 v. Stiles, 9 N. J. Eq. 361 ; Harrison's 
 Pick. (Mass.) 314. Executors v. Payne, 32 Gratt. (Va.) 
 
 » § 42, supra. 387 ; Beavers v. Smith, 11 Ala. 20. 
 
 * Ibid.; Higbie v. Westlake, 14 N. ^ i^iij.; Herbert v. Wren, 11 TJ. S. 
 
 Y. 281 ; Wood V. PoweU, 3 N. Y. App. (7 Cranch) 369, 381. 
 biv. 318 ; N. Y. Code Ciy. Pro. §§ 8 ibid. ; Robinson v. Govers, 138 N. 
 
 1567-1569, 2795, 2800. Y. 425, 428. 
 
ASSIGNMENT OP DOWER. 69S 
 
 interest would be the present worth of an annuity of $500 for 
 eighteen years.^ 
 
 In many of the United States, the statutes facilitate the 
 computation and settlement of dower claims for gross sums of 
 money or amounts of other property. And, where one-third of 
 the realty subject to dower can not be readily allotted, these 
 commonly provide a means for selling the property and making 
 au apportionment of its proceeds.^ (a) 
 
 § 494. Dower is One-third, in Value — Homv ascertained. — 
 A widow's dower interest is one-third in value, and not merely 
 one-third in territorial extent, of the real property which is sub- 
 ject to her claim. The assignment must be so made that this 
 value shall be set out for her in a beneficial manner ; and this 
 means that the productive value is to be considered, and she is 
 to have such a share as will produce one-third of the income 
 fairly obtainable from all the property out of whicli she is 
 dowable.^ 
 
 In estimating values for this purpose, the two settled rules 
 of the early common law were : (1) if the husband died seised 
 of the property, so that it was held by his heir or devisee or his 
 successor in interest, the value should be taken as of the time 
 of the assignment, and so she should have her third of the bene- 
 fit of any increase in value, whether from natural or artificial 
 improvements, after lier husband's death, and should lose her 
 third of any decrease after that time, whether this came about 
 naturally or from any neglect or waste by tlie tenant of the free- 
 hold ;* and (2) if before the husband's death he had aliened the 
 property subject to her dower, so that he did not die seised of it, 
 the value should be taken as of the time of the alienation^ — 
 against the heir or devisee or his purchaser she took one-third 
 
 (a) For the New York statutes providing for such sales and apportion- 
 ment, see note (a), § 489, supra. 
 
 1 2 Scribner, Dower, ch. xxiv.; 2 James, 6 Johns. Ch. (N. Y.) 258,260; 
 Dembitz, Land Titles, p. 834, n. Catliu v. Ware, 9 Mass. 218 ; Husted's 
 
 2 N. Y. Code Civ. Pro. §§ 1617-1625; Appeal, 34 Conn. 488 ; McClanahan v. 
 1 Stim, Amer. Stat. L. § 3276. Porter, 10 Mo. 746 ; 2 Scribner, Dower, 
 
 ' Co. Lit. 32 a ; White v. Stor/, 2 ch. xxi. §§ 30-33. 
 Hill (N. Y.), 543, 547 ; Leonard v. Leon- * Perkins, § 328 ; Hargrave, Co. Lit. 
 
 ard, 4 Mass. 533 ; Skolfield v. Skolfield, 32 a, note 8 ; 4 Kent's Com. p. *65 ; 2 
 
 88 Me. 258 ; Fuller v. Conrad's Admr., Scribner, Dower, ch. xxii. §§ 5-7 ; Hale 
 
 94 Va. 233 ; Scribner, Dower, ch. i. §§ '•. James, 6 Johns. Ch. (N. Y.) '2AS ; 
 
 20, 21, ch. xxi. §§ 37, 38. Humphrey v. Pliinney, 2 Johns. (N. Y.) 
 
 * Co. Lit. 32 a; Powell «. Monson, 484; Turner v. Kuehnle, 64 Atl. Rep. 
 
 3 Mason (U. S. Cir. Ct.), 347 ; Hale v. 478 (N. J. Eq.). 
 
696 ESTATES IN REAL PROPERTY. 
 
 of the present value at the time of assignment, even though 
 there had been great advance or decrease in values, or erection 
 or destruction of expensive buildings, or other improvements, 
 after tlie husband's death ; against the alienee of the husband or 
 the successor in title of such alienee she took as much of the 
 property as was equal to one-third of its value at the time of 
 the husband's alienation, regardless of any improvement or de- 
 terioration between then and the time of the assignment.^ There 
 have been much discussion and criticism of these two rules; 
 and the decisions concerning them in the different states are 
 now widely divergent. The general outcome, however, may be 
 summarized as to each of them in a separate paragraph. 
 
 (1) When the husband died seised of the property, so that 
 his heir or devisee or his successor in title is the tenant of the 
 freehold, the rule of England and many of the states of this 
 country, such as Massachusetts, Connecticut, Pennsylvania, and 
 Missouri, is still that of the early common law — the widow 
 shares in all the increase and participates pro rata in all the 
 decrease, down to the time of the assignment, from whatever 
 cause these changes in value may have occurred.^ The dower 
 is to be set out from the estate as it then is, without regard to 
 past values. And, when the result 'is a loss to the widow because 
 the- property has b,een injured since tlie husbanci's death, her 
 proper remedy, if any, is not in any increase of dower, but in an 
 action for damages against the wrong-doer.^ But in some of 
 the United States, of which New York and Ohio are examples, 
 while a widow takes the risk of depreciation in value after her 
 husband's death and before assignment, and shares pro rata 
 in any natural increase — in the unearned increment — during 
 that time, the statutes or decisions preclude her from sharing 
 in the artificial erections and improvements made during that 
 period.* Thus, she gains by an advance in values due to the 
 
 1 Last two preceding notes. erty after the husband's death, this 
 
 2 Perkins, § 521 ; Doe v. Gwinnell, seems to be the logical and proper pro- 
 L. R. 1 Q. B. 688 ; Catlin v. Ware, 9 cedure, though Judge Story doubted 
 Mass. 218; Parker v. Parker, 17 Pick. her right to such remedy. 1 Roper, 
 (Mass.) 236'; Thompson v. Morrow, 5 Husband and 'Wife, 349; 2Crabb, R. P. 
 Serg. & R. (Pa.) 289 ; Husted's Appeal, § 1136; Campbell v. Murphy, 2 Jones, 
 34 Conn. 488 ; MeClanahan v. Porter, Eq. (N. C.) 357. See Doe v. Gwinnell, 
 10 Mo. 746; Price v. Hobba, 47 Md. L. R. 1 Q. B. 682 ; Powell v. Monson, 3 
 386. See Powell v. Monson, 3 Mason Mason (TJ. S. Cir. Ct.), 347, 368 ; Sanders 
 (U. S. Cir. Ct.), 347; Wolfe v. Larison, v. McMillan, 98 Ala. 149. 
 
 163 111. 552 ; 2 Scribner, Dower, ch. xxi. « N. Y. Code Civ. Pro. § 1609 ; Rev. 
 
 §§30-32. Stat. Ohio (1891), §5716; 2 Scribner, 
 
 ' When the heir has wasted the prop- Dower, ch. xxi. § 34. 
 
ASSIGNMENT OP DOWEE. 697 
 
 growth of the city or an improvement in the neighborhood; 
 but not by the addition of a dwelling house or a mill erected 
 after her husband's death.i (a) And in a third class of states, such 
 as New Hampshire and Kentucky, the value of the property is 
 taken at the time of the husband's death, and she can not share 
 in any subsequent improvements whether natural or artificial.''' 
 (2) When the husband did not die seised of the property, so 
 that his alienee or the survivor in title of such alienee is the ten- 
 ant of the freehold, the English rule now estimates dower accord- 
 ing to the value of the property at the time of the assignment, 
 and thus gives to the widow the benefit of all improvements made 
 by the husband's alienees.^ In this country, the uniform rule 
 is that the widow is not entitled to share in the benefit of such 
 improvements ; and the general statement of the law is that the 
 computation of her dower, in realty aliened by her husband 
 during the coverture, is to be made by giving her one-third of 
 its value at the time of the alienation* Such is the language of 
 the decisions of many of. the states. And New York, (6) New 
 Jersey, Massachusetts, Ohio, and Missouri may be mentioned as 
 examples.^ In some of the cases, however, while the general 
 
 (a) The New York Code prescribes that the commissioners who admeas- 
 ure dower "must take into consideration any permanent improvements 
 made upon the real property, after the death of the plaintiS's husband, or 
 after the alienation thereof by him ; and, if practicable, those improvements 
 must be awarded within the part not laid off to the plaintiff; or, if it is not 
 practicable so to award them, a deduction must be made from the part laid 
 off to the plaintiff, proportionate to the benefit which she will derive from 
 so much of those improvements as is included in the part laid off to her." 
 Code Civ. Pro. § 1609, subd. 2. 
 
 (ft) N. Y. Code Civ. Pro. § 1609, quoted in last preceding New York note. 
 
 1 Ibid. Stim. Amer. Stat. L. § 3279; 2 Scrib- 
 
 " N. H. Pub. Stat. (1891) p. 516 ; Gen. ner, Dower, ch. xxii. §§ 18-26. 
 
 Stat. Ky. (1881) p. 530, § 1 ; 2 Scribner, j ' Ibid. The reason assigned for this 
 
 Dower, ch. xxi. § 34. rule by Sir Matthew Hale is, " that the 
 
 ' Doe V, Gwinnell, L. R. 1 Q. B. heir is not bound to warrant, except ac- 
 
 682 ; 2 Scribner, Dower, ch. xxii. cording to the value of the land at the 
 
 §§ 5-17. time of the feoffment ; and if the widow 
 
 * Humphrey v. Phinney, 2 Johns. were to recover according to the im- 
 
 (N. Y.) 484; Walker v. Schuyler, 10 provedvalue, the feoffee would not have 
 
 Wend. (N. Y.) 480 ; N. Y. Code Civ. a complete remedy against the heir. 
 
 Pro. §1609; Catlin v. Ware, 9 Mass. which would not be reasonable." Hargr. 
 
 218; Van Dom v. Van Dorn, 2 Penning Co. Lit. 32 a, note 8 ; Walker w. Schuy- 
 
 (N. J.), 513; Thompson u. Morrow, 5 ler, 10 Wend. (N.Y.) 480,484. But this 
 
 Serg. & R. 289 ; Westcott v. Campbell, reasoning, though not the rule, is ques- 
 
 •1 1 R. I. 378 ; Allen v. McCoy, 8 Ohio, tioned by Justice Story in Powell v. 
 
 418; Sanders v. McMillan, 98 Ala. 144; Monson, 3 Mason (U. S. Cir. Ct.), 347- 
 
 McClanahan v. Porter, 10 Mo. 746; 1 369. 
 
698 ESTATES IN REAL PROPERTT. 
 
 rule is recognized which protects the alienee against her claim 
 to artificial improvements made by him, yet the value of the 
 property is taken at the time of the assignment, so far as 
 other changes — natural decrease or unearned increment — are 
 concei'ned.^ 
 
 § 495. Damages for Detention of Dower. — Prior to the 
 statute of Merton, which was enacted before the courts of equity 
 had assumed jurisdiction of dower suits except in special cases,' 
 a widow could not obtain damages for the past detention of her 
 dower.2 Tljat statute gave her the right to recover damages, 
 against the heir or abator or his or their assigns, for wrongfully 
 withholding her dower in property of which her husband died 
 seised.'^ The law judges construed the statute strictly, and so 
 enabled the defendant, by pleading that he had always been 
 ready to make the assignment, to succeed in the action for 
 damages, unless the widow proved that she had demanded her 
 dower> The equity tribunals, however, proceeding on the 
 theory that he who had actually received the widow's share of 
 the rents and profits of the premises held it in trust for her, 
 gave her relief although she had not made a formal demand.^ 
 And, unhindered by legal technicalities, she may now have in 
 courts of equity an accounting against the husband's heir or 
 devisee, or his successor in interest ; and in some of them the 
 same remedy is afforded even against the husband's alienee or 
 his successor in interest.® 
 
 In most of the states of this country, legislation, based on 
 the statute of Merton, provides for recovery of damages by the 
 widow for the wrongful detention by any one of her dower in 
 real property of which the husband died seised ; "^ and in a few 
 of them, such as New York, New Jersey, Massachusetts, Rhode 
 
 1 See Boyd v. Carlton, 69 Me. 200 ; the value of the use of one-third of the 
 Summers v. Babb, 13 111. 483 ; Johnston premises from the time of the death of 
 V. Van Dyke, 6 McLean (U. S. Cir. Ct.), her husband. Dobson v. Dobson, Cas. 
 422 ; Powell V. Mon^on, 3 Mason (U. S. temp. Hardw. 19 ; Johnson v. Thomas, 
 Cir. Ct.), 347 ; Beavers v. Smith, 11 Ala. 2 Paige (S. Y.), 377, 384. 
 
 20; Tod V. Baylor, 4 Leigh (Va.), 498; 5 Ibid.; Shields v. Hunt, 39 N. J. 
 
 Strayer v. Long, 86 Va. 557 ; Scott v. Eq. 485 ; Slatter v. Meek, 35 Ala. 528 ; 
 
 Ashlin, 86 Va. 581. Campbell v. Murphy, 55 N. C. 357; 4 
 
 2 Co. Lit. 32 b; Johnson v. Thomas, Kent, Com. pp. *70, *71. 
 
 2 Paige (N. Y.), 377, 384 ; 2 Scribner, « Ibid. ; Sellman v. Bowen, 8 Gill & 
 
 Dower, ch. xxv. § 1. J. (Md.) 50; Beavers v. Smith, 11 Ala. 
 
 8 20 Hen. III. ch. i. 32; Badgley v. Bruce, 4 Paige (N. Y.), 
 
 ' At law, if this plea of tout temps 98, 100; Bispham's Prin. Eq. § 498. 
 praiwerenotinterposed.orifsheproved ' 1 Stim. Amer. &tat. L. §3278; 2 
 
 a demand, she was entitled to recover Scribner, Dower, ch. xxv. § 5. 
 
ASSIGNMENT OP DOWER. 699 
 
 Island, and Illinois, it permits such recovery against the hus- 
 band's alienee or his successor in interest.^ The ordinary rule 
 is that, against the husband's heir or devisee, or his or their 
 successors in interest, the damages are to be estimated from 
 the time of the husband's death to the time of trial or 
 judgment ; while against the husband's alienee, when allowed, 
 they are to be estimated from the time when she demands 
 dower to the time of trial or judgment.^ But, by local statutes, 
 such as that of New York which prescribes three different 
 periods, applicable to different cases of detention of dower, (a) 
 
 (a) In New York, the Statute of Merton, as to damages for detention 
 of dower, was substantially adopted by L. 1787, ch. 4. This, with slight 
 modifications, was re-enacted by the Revised Statutes of 1830 ; 1 R. S. 
 742, § 19 ; and so the law stood until the adoption of §§ 1600-1603, Code 
 Civ. Pro., in 1880. By virtue of those sections, the widow's damages for 
 wrongful detention of her dower are one-third of the annual value of the 
 mesne profits of the property, with interest ; but they do not include any- 
 thing for the use of permanent improvements made after the death of the 
 husband, or after alienation by him in cases in which he did not die seised 
 of the property. In no case can such annual value for more than the six 
 years before its recovery be obtained. Subject to this limitation, the rules 
 for measuring the period for which the damages are to be computed are as 
 follows : (1) when the husband died seised of the property, and the action 
 is against his heir, the period is from the husband's death to the time of 
 trial or application for judgment, as the case may be; and, if the heir alien 
 the property before she obtains dower, the period for her recovery of dam- 
 ages against him, and for which she may have an action separate from her 
 dower action, is from the husband's death to the time of such alienation; 
 (2) when the husband died seised of the property, and the action is against 
 any person other than his heir — as a devisee or his alienee, or the alienee 
 of the heir — the period is from the time when she demanded her dower 
 of the defendant to the time of trial or application for judgment, as the 
 case may be ; (3) when the husband did not die seised of the property, 
 so that her action is against the husband's alienee or his successor in in- 
 terest, the period is from the commencement of the action to the time of 
 trial or application for judgment, as the case may be. The Code provides 
 that, in either of these cases, the recovery is to be had in her action for 
 dower, except that when the heir has aliened the property after the hus- 
 band died seised of it she may have a separate action against the heir 
 as stated above. But, in equity, though she die before completing her 
 dower action (or probably even if she die before beginning it), and so her 
 
 1 N. Y. Code Civ. Pro. § 1601 ; 2 129 Mass. 417 ; "Wells v. Beall, 2 Gill & 
 Scribner, Dower, ch. »xr. § 7. J. (Md.)468; Beavers w. Smith, 11 Ala. 
 
 2 1 Stim. Amer. Stat. L. § 3278; 20; Martin u. (Martin, 14 N. J. L. 129; 
 Jackson v. O'Donaghy, 7 Johns. (N. Y.) Munger v. Perkins, 62 Wis. 499 ; 1 
 247; N.Y.CodeCiv.Pro. §§1600-1603; Wash. R. P. (6th ed.) § 469 ; 2Scribner, 
 Armstrong v. Union College, 55 N. Y. Dower, ch. xxv. §§ 20, 21. 
 
 App. Div. 302, 306 ; Whitaker v. Greer, 
 
700 ESTATES IN REAL PROPERTY. 
 
 these computations are often materially modified.^ The dam- 
 ages thus allowed are one-third of the mesne profits of the 
 property with interest, " (after deducting outgoings) and such 
 additional sum as will compensate the widow for any further 
 loss she may have sustained by^ reason of the detention of her 
 dower." ^ , 
 
 When a widow dies, her dower as such terminates, of 
 course ; for it is only a life interest. And any pending ac- 
 tion merely for its recovery thereupon abates.^ But if, pur- 
 suant to statute, the parties to the action have agreed that she 
 shall receive a gross sum in satisfaction of her claim, and a 
 decision fixing the amount has been made by the court before 
 -her death, her representatives may recover the same, though 
 she dies before the formal entry of judgment.* So, as to dam- 
 ages for the wrongful detention of her dower, the common-law 
 courts have generally agreed that, since the dower itself is the 
 principal thing and the damages are the incident, her death 
 before admeasurement terminates all right to both.^ But " in 
 the English equity courts the rule is well established, that the 
 omission to obtain an actual assignment of dower will not 
 laffect the right of the widow, while living, to obtain payment 
 of mesne profits in equity, nor deprive her personal representa- 
 tives of them in the event of her death." ® Her right to the dam- 
 ages is in conscience the same, whether or not she has obtained 
 an actual assignment of dower ; and her death should not de- 
 prive her, or her representatives, of that which should there- 
 fore be treated as a vested interest.'^ Such is the conclusion, 
 also, of perhaps most of the equity tribunals of this country in 
 
 dower interest ends, her representatives may, nevertheless, recover the 
 damages which had accrued before her death. Johnson v. Thomas, 2 
 Paige, 377; Armstrong?;. Union College, 55 App. Div. 302, 310; Gorden 
 V. Gorden, 80 App. Div. 258; Kyle v. Kyle, 67 N. Y. 400; Witthaus u. 
 Schack, 31 Hun, 590, 595, 38 Hun, 560, 565; Price v. Price, 54 Hun, 349, 
 351. See the last paragraph of this section of the text. 
 
 1 2 Scribner, Dower, ch. xxv. §§ 20- Parks v. McClellan, 44 iJ. J. Law, 552 ; 
 34. 2 Scribner, Dower, ch. xxv. §§ 50-53. 
 
 ^ 2 Scribner, Dower, ch. xxv. § 8 
 
 N. Y. Code, Civ. Pro. § 1600; Johnson '" Kyle v. Kyle, 67 N. Y. 400, 405; 
 
 V. Thomas, 2 Paige (N. Y.), 377, 384 
 4 Kent's Com. p. * 65. 
 
 3 Mordant v. Thorold, 1 Salk. 252 
 Howell </. Newman, 59 Hun (N. Y.; 
 538 ; Mingay v. Lackey, 142 N. Y. 449 
 Hildreth v. Thompson, 16 Mass. 191 ; 
 
 * Robinson v. Covers, 138 N. Y. 425. 
 
 Atkins V. Yeomaus, 6 Met. (Mass.) 438 ; 
 2 Scribner, Dower, ch. xxv. §§ 50, 51. 
 
 ' 2 Scribner, Dower, ch. xxvi. §21. 
 
 ' Hamilton v. Mohun, 1 P. Wms. 
 118, 122; 2 Crabb, R. P. § 1208; 1 
 Roper, Husb. & W. 455. 
 
ASSIGNMENT OP DOWEB. 701 
 
 which the question has arisen.^ And in some of the states it 
 is so fixed by statutes.^ Some of the American courts, however, 
 have decided the other way.^ And most of them, that permit 
 damages to be recovered after her death, do so more readily in 
 a suit for dower and damages wliich was commenced before 
 she died.* " The conclusion of the whole matter," says Mc- 
 Clennan, J., in a carefully prepared opinion, " is that the repre- 
 sentatives of a deceased widow may recover the mesne profits of 
 her dower interest in lands of which her husband died seised, 
 although she may have died before such dower was assigned, 
 especially if suit was brought by her for that purpose in her 
 lifetime." « 
 
 1 Johnson U.Thomas, 2 Paige (N.Y.), Mo. (1879) § 2231 ; 2 Scribner, Dower, 
 377 ; Armstrong v. Union College, 55 ch. xxvi. § 22. 
 
 N. Y. App. Div. 302, 313 ; Paul's Ex'rs » Roan o. Holmes, 32 Fla. 295 ; 
 
 D. Paul, 36 Pa. St. 270; Harper v. Atkins v. Yeoman,s, 6 Met. (Mass.) 
 
 Archer, 28 Miss. 212; Steiger's Adm. 438; Tuck v. Fitts, 18 N. H. 171; 
 
 V. Hillen, 5 Gill & J. (Md.) 121; Pol-. Rowe v. Johnson, 19 Me. 146; Turney 
 
 litt V. Kerr, 49 N. J. Eq. 65 ; 2 Scribner, v. Smith, 14 111. 242. 
 
 Dower, ch. xxvi. § 22. * Last preceding note but two. 
 
 2 60 Ohio Laws, p. 10; Rev. Stat. ^ Armstrong w. Union College, 55 
 
 N. Y. App. Div. 302, 315. 
 
CHAPTER XXXIV, 
 
 HOW DOWER MAY BE LOST OR BARRED. 
 
 § 496. Generally, no bar of dower 
 in legal estates, except by the wife's 
 act or consent, or by an act of sov- 
 ereignty — Methods of barring. 
 
 § 497. Dower barred by elope- 
 ment and adultery of the wife. 
 
 § 498. Detinue of charters, as 
 barring dower. 
 
 § 499. Treason or felony of the 
 husband, as a bar of dower! 
 
 § 500. Alienism, as bar of dower. 
 
 § 501. Former destruction of 
 dower by the widow's attempt to 
 dispose of more than her life estate. 
 
 § 502. First — Divorce, as a bar 
 of dower. 
 
 § 503. Second — Dower baiTed 
 by release — Estoppel by deed. 
 
 § 504. Third — Dower barred by 
 judgment or decree — Estoppel of 
 record — Foreclosure. 
 
 § 505. Fourth — .Dower barred 
 by estoppel in pais. 
 
 § 506. Fifth — Dower barred by 
 eminent domain, or other exercise 
 of sovereignty. ^ 
 
 § 507. Sixth — iJower barred by 
 lapse of time — Statute of limita- 
 tions. 
 
 § 508. Seventh — Dower barred 
 by paramount title or interest — 
 Dos de dote peti non debet — Dower 
 in qualified fees. 
 
 § 509. Eighth — Dower barred 
 by jointure — Provisions in lieu of 
 dower. 
 
 § 496. Generally, no Bar of Dower in Legal Estates, ex- 
 cept by the Wife's Act or Consent, or by an Act of Sover- 
 eignty — Methods of Barring. — Common-law dower, whether 
 inchoate or consummate, is a vested riglit or interest, which 
 is not destructible by any act by or against' the husband. ^ 
 " The law," said Lord Bacon,! " favoreth life, liberty, and 
 dower." ^ The statute of Westminster II. emphasized that 
 favor ;^ and subsequent legislation has frequently reinforced 
 the common law in the same manner.* Therefore, wherever 
 
 1 Benson v. Scot, 3 Lev. 385, 386; 
 House o. Jackson, .50 N. Y. 161, 165; 
 Palmer v. Palmer, 162 N. Y. 131 ; Suth- 
 erland V. Sutherland, 69 111. 481 ; Gris- 
 som V. Moore, 106 Ind. 296; Rose v. 
 Eose, 63 N. C. 391 ; i Kent's Com. 
 p. *50. A few eases have found an 
 apparent exception to this rule in in- 
 stances in which the husband has dedi- 
 cated land for public use. See Venable 
 V. Wabash R. Co., 112 Mo. 121 ; Baker 
 
 V. Atchison, etc. R. Co., 122 Mo. 396; 
 Park, Dower, 246. But the better view 
 opposes even this exception. Nye v. 
 Taunton Branch R. Co., 113 Mass. 277. 
 See 1 Scribner, Dower, ch. xxix. 
 
 2 4 Bacon, Works, 345. 
 
 3 13 Edw. I. ch. 4. 
 
 « N. Y. 1 R. S. 742, §16; N. Y. L. 
 1909, ch. 52, § 203 ; 1 Stim. Amer. 
 Stat. L. §§ 3213; 3244, 3249 ; Clifford ». 
 Kampfe, 147 N. Y. 383, 385. 
 
HOW DOWER MAY BE LOST OB BARBED. 703 
 
 this emphatic principle has not been abrogated or modified by 
 positive statute, it is still true, as to legal estates, that, when 
 the wife's dower right has once attached to property by virtue 
 of the concurrence of coverture and the husband's proper seisin 
 in fee, that right can not be defeated nor impaired by any act, 
 deed, conveyance, or mortgage, executed or performed by him 
 alone or in connection with others, without her consent, nor 
 by any judgment or decree confessed by or recovered against 
 him, nor by his laches, default, covin, or crime.^ If the hus- 
 band's estate be defeasible, its destruction, of course, may 
 defeat her dower ah initio ^ ; the state may take her dower, 
 and while it is inchoate may do so without compensation;^ 
 the loss of the husband's merely equitable estate in realty 
 before his death, whether by his own act or otherwise, will 
 ordinarily deprive her of dower in that interest ; * in England 
 the Dower Act of 1834, restricted her interest to realty of 
 which the husband dies seised ; ^ and, in some of the states 
 of this country the English statute is substantially followed, 
 while in others all dower rights and interests as such have 
 been entirely taken away.^ But the common law of probably 
 most of the United States unswervingly retains dower in 
 absolute legal interests to which it has once validly attached, 
 unless it is taken or destroyed by sovereign authority, or 
 divested by some act or acquiescence of the wife or widowJ 
 
 1 Last three preceding notes ; El- order to defeat dower. Stat. 2 Westm. 
 
 mendorf v. Lockwood, 57 N. Y. 322, ch. 4 ; 1 Stim. Amer. Stat. L. § 3249 ; 
 
 324; Learned a. Cutler, 18 Pick. (Mass.) 4 Kent's Com. p. *48. 
 9 ; Maxon v. Gray, 14 R. I. 641 ; Grady » § 506, infra; § 465, mpra. 
 
 V. McCorkle, 57 Mo. 172; Scott v. Lane, * Hawley v. James, 5 Paige (N. Y.), 
 
 109 N. C. 154 ; McMahon v. Russell, 17 318, 453, 454; Nichols v. Park, 78 N. Y. 
 
 Fla. 698 ; Jewett v. Feldheiser, 68 Ohio App. Div. 95, 99 ; § 472, supra. 
 St. 523; Chrismau v. Linderman, 202 6 Stat.3&4 Wm.IV.ch. 105; Green. 
 
 Mo. 605; Martin v. Abbott, 95 N. W. wood v. Greenwood (1892), 2 Ch. 295. 
 Rep. 356 (Neb.) ; 1 Scribuer, Dower, « 1 Stim. Amer. Stat. L. §§ 3202 (B), 
 
 ch. xxix. §§ 1-3. The husband's con- 3202 (E), 3105 (A), 3109; Mathews v. 
 
 veyance of land before marriage, so that Mathews, 141 Mass. 511; Hunkins u. 
 
 she will get no dower in it, is not a Hunkins, 65 N. H. 95 ; Sutton v. Askew, 
 
 fraud on her dower right, if she marry 66 N. C. 172; Flowers v. Flowers, 89 
 
 with notice of such conveyance. Dani- Ga. 632 ; Beard v. Knox, 5 Cal. 253. 
 her y. Daniher, 201 111. 489, §401, supra. ' Sixth note above. In New Jersey, 
 
 ^ Warner v. Van Alstyne, 3 Paige if he devise his property away from her, 
 
 (N. Y.), 513, 515 ; Hammond v. Pennock, she loses dower unless she files a dissent. 
 
 61 N. Y. 14?; HinchlifEe v. Shea, 103 Gen. Stat. p. 1278, § 16. But she can 
 
 N. Y. 153; McClure v. Fairfield, 153 not be affected thus by his transfer zn(er 
 
 Pa. St. 411. But the defeating of his vivos. Ostheimer w. Single, 68 Atl. Rep. 
 
 estate must be bona fide, and not by 231 (N. J. Eq.). 
 fraud or coUusion with the husband, in 
 
704 ESTATES IN REAL PROPEETT. 
 
 And when there is no such act or acquiescence on her part, 
 whereby her claim is directly released or she is estopped to 
 assert it, the fact that a purchaser from the husband buys for 
 value and without notice of her right does not deprive her of 
 dower.^ 
 
 Therefore, a discussion of the different methods of barring 
 dower, otherwise than as the result of local statute, is an 
 examinatioh of the means by which this vested right or in- 
 terest is done away with, either by authority of the state, or 
 because of the wrongful conduct, release, estoppel, laches, or 
 other act or acquiescence, of the wife or widow. This dis- 
 cussion will embrace five ways of barring dower, which have 
 been known to the law but are not now generally or fully 
 recognized, namely ; by the wife's eloping and living in adul- 
 tery ; because of her detinue of charters ; because of her 
 husband's treason or felony ; because she was an alien ; and 
 by her attempt to dispose of more than her life estate in the 
 property. And the discussion will then deal with the eight 
 methods of barring dower, which are still genei'ally retained. 
 These are : First, divorce ; second, release — estoppel by deed ; 
 third, judgment or decree — estoppel of record; fourth, estoppel 
 in pais; fifth, eminent domain, or other exercise of sovereign 
 authority ; sixth, the statute of limitations ; seventh, paramount 
 title or interest ; eighth, jointure. These will be discussed in 
 the order here mentioned. "^ 
 
 § 497. DoTver Barred by Elopement and Adultery of the Wife; 
 — Because the common law refused to treat a wi fe's violation 
 of her marriage vows as a bar to dower,^ it was enacted by the 
 statute of Westminster II ^ thai, if a woman voluntarily elope 
 from her husband and live with an adulterer, she shall lose her 
 dower, unless thereafter her husband is voluntarily reconciled 
 to her. This means, in the first place, that,' either of her own 
 free will, whether with or without the consent of her husband, 
 she is to go away from him and his real property, or, if forcibly 
 taken, she is thereafter to remain away voluntarily ; * and, in 
 
 1 Williams o. Lambe, 3 Bro. Ch. band and wife voluntarily separate, or 
 264 ; Clifford v. Kampfe, 147 N. Y. 383 ; he " bargains and sells " her to the 
 Reel V. Elder, 62 Pa. St. 308 ; Mitchell adulterer, and she goes willingly and 
 V. Farrish, 69 Md. 235; Cruize v. Bill- lives in adultery, this is suiBcient as -a 
 mire, 69 Iowa, 397. bar. 2 Inst. 435, 436 ; Coot v. Berty, 
 
 2 Co. Lit. 32 a ; 2 Blackst. Com. 12 Mod. 232 ; Hethrington v. Graham, 
 p. * 130 ; -Cruise, Dig. tit. vi. ch. iv. § 4. 6 Bing. 135 ; Reynolds v. Reynolds, 24 
 
 8 13 Edw. L ch. 34. "Wend. (N. Y.) 193, 195; 2 Scribner, 
 
 * The wife's absence from her bus- Dower, ch. xviii. §§ 1-4, 7, 8. 
 band must be voluntary. If the hus- 
 
HOW DOWER MAT BE LOST OB BARRED. 705 
 
 the second place, that while so remaining away she is know- 
 ingly to commit adultery.^ Elopement alone, or commission 
 of adultery without eloping, will not affect her dower right.^ 
 
 Tiiat statute is still in force in England.^ And in a few of 
 our states, such as New Jersey, Pennsylvania, Ohio, Missouri, 
 Kentucky, Virginia, and North Carolina, it has either been 
 directly re-enacted or adopted by the courts as the law.* But 
 the generally prevailing doctrine in this country is otherwise ; 
 and the reason seems to be the conclusion that, since adultery 
 has uniformly been made a ground for absolute divorce and 
 such a divorce defeats dower, the husband should pursue that 
 remedy if he desire tlie wife to lose dower because of such mis- 
 conduct on her part.^ 
 
 § 498. Detinue of Charters, as Barring Dower. — The plea of 
 detinue of charters was frequently resorted to, in the ancient 
 English practice, to defeat or postpone the dower of a widow 
 who was alleged to be withholding from the heir the title deeds 
 of the property, so that he could not identify and admeasure 
 her dower land.^ While this is still a possible bar in England, 
 it is rarely if ever employed ; and in this country, because of 
 the uniform recording of title deeds and the consequent ease 
 with which the property of the husband may be identified, it is 
 wholly obsolete.'' It is simply mentioned here for the sake of 
 completeness. 
 
 § 499. Treason or Felony of the Husband, as a Bar of Dower. 
 — By the early common law, the wife of a man attainted of 
 treason or felony could not be endowed.® This restriction seems 
 
 ^ If she believe her husband is dead 15 ; Keel v. Elder, 62 Pa. St. 308 ; 
 
 and that she is lawfully married to the Ohio E. S. (1890) §4192; Mo. E. S 
 
 other man, or if he force her against (1889) § 4532; Wilson r. Craig, 175 
 
 her will, her cohabitation with him is Mo. 362; Gen. Stat. Ky. (1881) p. 528. 
 
 not a bar to dower. Green v. Harvey, § 3, p. 373, §§ 13, 14 ; Va. Code (1891), 
 
 1 Roll. Abr. 680 ; Co. Lit. 32 b ; 2 Scrib- p. 616, § 7 ; Walters v. Jordan, 35 N. C. 
 
 ner, Dower, ch. xviii. § 3 ; Payne v. 361 ; 1 Stim. Anier. Stat. L. § 3246. 
 
 Dotson, 81 Mo. 145. Nor is dower de- ^ Reynolds u. Eeynolds, 24 Wend, 
 
 feated by the husband's abandonment (N. Y.) 193, 196; Van Cleaf d. Burns, 
 
 of the wife, or his driving her away, and 118 N. Y. 549, 552; Lakin v. Lakin, 
 
 her subsequent commission of adultery. 2 Allen (Mass.), 45 ; Littlefield v. Paul, 
 
 Reel V. Elder, 62 Pa. St. 308 ; Walters 69 Me. 527 ; Bryan v. Batcheller, 6 K. 1. 
 
 V. Jordan, 35 N. C. 361 ; Rawlins «. But- 543 ; Smith v. Woodworth, 4 Dill. (U. 
 
 tel, 1 Houst. (Del.) 224; 2 Scribner, S. Cir. Ct.) 584; Rawlins v. Buttel, 1 
 
 Dower cli. xviii. § 5. Houst.(Del.)224;Chase'sBlackst. p.313. 
 
 2 Last two preceding notes. " 9 Co. 18 a, 18 b, 110 a; Perkins, 
 
 8 Woodward v. Dowse, 10 C. B. §§356-360. 
 
 (n. s.) 722. ^ 2 Scribner, Dower, ch. vi. § 58. 
 
 * 2 N. J. Gen. Stat. p. 1278, §§ 14, » "To the intent, says Staunforde, 
 
 45 
 
706 ESTATES IN REAL PROPERTY. 
 
 still to prevail iu England, as to treason, except in some special 
 cases.^ But it has never been adopted as a part of the law of 
 this country .2 
 
 § 500. Alienism, as a Bar of Dower. — Dower, being given by 
 operation of law, could not belong to an alien, except by virtue 
 of statute ; for the common law would confer no real property 
 right upon an alien.^ Positive legislation, however, has now 
 made it the rulei both in England and in this country gener- 
 ally, that, if an alien woman be naturalized, or become a citi- 
 zen, as she does by marriage to a citizen, she will be entitled 
 to dower.* An alien woman, moreover, who is the wife of an 
 alien, may now have dower and all other property rights- freely 
 in England ; ^ and such also is the statutory law of many if not 
 most of the United States.® But in some states, as for ex- 
 ample New York, in order for such a wife to have dower, the 
 husband must have declared his intention to become a citizen, 
 or she must be a citizen of a state or nation, such as England 
 for example, which confers on citizens of the United States full 
 privileges of taking, acquiring, holding, and conveying real prop- 
 erty within its domain.'^ (a) 
 
 * 
 (a) In New York, the first statute that gave alien wives a dower right 
 was chapter 49 of the laws of 1802. SutlifE v. Forgey, 1 Cow. 89, 95, 97, 
 5 Cow. 713. And, by the Revised Statutes of 1830 (1 R. S. 740,' § 2), the 
 resident widow of an alien husband might take dower in his property. 
 See also 1 R. S. 720, §§ 15, 16. But these provisions were partial or of 
 limited scope ; and, as affected by L. 1825, p. 427 (1 R. S. 720, §§ 16-19), 
 which required an alien, in order to hold real property free from the rights 
 of the state, to file a deposition of his or her intention to become a citizen, 
 they were declared to mean that, while the legislation had " conferred a right 
 of dower on the resident alien widow of an alien purchaser," it had " denied 
 the same right to an alien widow of either a natural born or naturalized 
 citizen, unless she file the proper deposition " — of her intention to become 
 a citizen. Connolly v. Smith, 21 Wend. 59, 62 ; Currin u. Finn, 3 Denio, 
 
 that if the love of a man's own life can- See Wallach v. Van Eiswick, 92 U. S. 
 
 not restrain him from such atrocious 202; Pike w. Wassell, 94 XJ. S. 711. 
 acts, the love of his wife and children 3 Co. Lit. 31b, 32 a ; 2 Blackst. 
 
 may ; though Britton gives it another Com. p. * 131 ; i Kent's Com. p. *36. 
 turn : viz., that it is presumed the wife * Stat. 7 & 8 Vict. ch. 66 ; 33 Vict, 
 
 was privy to her husband's crime." ch. 14, § 2 ; U. S. R. S. § 1994 ; Kelly 
 
 2 Blackst. Com. p. •130. v. Owen, 74 U. S. (7 Wall.) 496. 
 
 1 2 Blackst. Com. p. * 131 ; 1 Scrib- 5 gtat. 33 Vict. ch. 14, § 2. 
 
 ner. Dower, ch. xxix. §§ 46-50. « 1 Stim. Amer. Stat. , L. § 6017; 
 
 " Palmer v. Horton, 1 Johns. Cas. 1 Scribner, Dower, ch. ix. §§ 5-52. 
 (N. Y.) 27 ; Sewall v. 'Lee, 9 Mass. 363 ; ' Ibid. ; N. Y. L. 1909, ch. 52, §§ ip, 
 
 1 Scribner, Dower, ch. xxix. §§ 51-54. 13, 14. 
 
HOW DOWEB MAY BE LOST OE BARBED. 707 
 
 § 501. Former Destruction of Dower by the "Widow's At- 
 tempt to dispose of more than her Life Estate. — Like any other 
 life owner, a widow at common law, having had her dower land 
 set out for her, forfeited it by making a common-law convey- 
 ance (feoffment and livery of seisin, or fine, or common recov- 
 ery) of it in fee.^ This harsh rule was emphasized by the 
 statute of Gloucester, 6 Edward I. ch. 7. She could validly 
 transfer her own interest or less ; and her attempted convey- 
 ance of more, by a deed operating not by the common law but 
 under the statute of uses, as a deed of bargain and sale or 
 lease and release, would simply carry over her dower estate, 
 and work no forfeiture.^ The general use of the last-named 
 forms of deeds, the abolition of the common-law modes of trans- 
 
 229, 231. So the law stood until 1845, when by the general act of that year 
 (ch. 115, L. 1845), the wives of any alien residents of the state, seized of 
 real property, were given dower therein, whether such wives were aliens or 
 citizens. Goodrich v. Russell, 42 N. Y. 177, 181. By the federal statute 
 of 1855 (U. S. R. S. § 1904), marriage to a citizen ipso facto naturalizes an 
 alien woman, and of course entitles her to dower ; and so the right to dower 
 of women whose husbands, seised in fee of realty, were citizens or resident 
 aliens was made complete. The same is still true as to all wives of citi- 
 zens. But by the codification of 1909 (Real Prop. L. §§ 12, 13), after the 
 provision is re-enacted for the filing by a resident alien of his intention 
 to become a citizen (§ 12), it is said : " If a person who has filed such a 
 deposition dies within six years thereafter, and before he is admitted to 
 citizenship, his widow is entitled to dower in his real property," etc. And 
 by ch. 593, L. 1897, it is declared that, " Any citizen of a state or nation 
 which, by its laws, confers similar privileges on citizens of the United 
 States, may take, acquire, hold and convey lands or real estate within this 
 state in the same manner and with like effect as if such person were, at 
 the time, a citizen of thfe United States ; provided, however, that notbing 
 in this act contained shall affect the rights of the State in any case in 
 which proceedings for escheat have been or may be instituted before the 
 passage of this act." Now Real Prop. L. § 10. 
 
 The net result, at present, is that dower may belong to any wife who is 
 a citizen of the United States, or whose husband is an alien resident who 
 within six years past has declared his intention to become a citizen, or who 
 is herself a citizen of a state or nation (such as England for example), 
 which, by its laws, confers full rights to own real property on the citizens 
 of the United States. See, also, Wright v. Saddler, 20 N. Y. 320, 328 ; 
 Groefroy v. Riggs, 133 U. 8. 258, 266. General discussion of rights of 
 aliens, 1092, infra. 
 
 ' 2 Blackst. Com. p. * 274. " Such son entitled to the inheritance in rever- 
 
 an alienation, according to the law of sion or remainder." 4 Kent's Com. 
 
 feuds, amounted to a renunciation of p. *82. 
 
 the feudal relation, and worked a for- ^ Co. Lit. 329 a ; 4 Kent's Com. 
 
 feiture of the yassal's estate to the per- p. *83. 
 
708 ESTATES IN REAL PROPERTY. 
 
 fer, and the express provisions of statutes, both in England and 
 in many of the United States, have now entirely done away 
 with this cause of forfeiture.^ And the uniform rule of to-day 
 is, that a widow's attempted alienation in any manner of a 
 greater interest than her life estate results in nothing more 
 than a conveyance of that which she owns.^ 
 
 The methods of barring dower, which were once in force 
 but now operate only a little or not at all, having been consid- 
 ered, the way is cleared for the discussion of those methods 
 which are still generally recognized wherever common-law 
 dower is retained. As was heretofore stated, these ordinary 
 modes of defeating dower will also operate, mutatis mutandis, 
 to bar or defeat curtesy, where common-law curtesy not 
 destructible by any act or omission of the wife is still in 
 existence.^ 
 
 § 502. First — Divorce, as a Bar of Dower. — While, as an 
 essential to dower in legal estates, the common law does not 
 require the husband to be seised of the land at the time of his 
 death,* it does demand that the claimant of dower shalLhave 
 be0n his wife at that tinje.^ Therefore, in the absence of a 
 statutory provision to the contrary, an annulment of the mar- 
 riage, or a divorce a vinoulojjmjasi^ijsimi^, bars dower.^ The 
 local statutes that modify this rule, contain, of course, various 
 special provisions ; but their general result is to retain dower 
 for women who are divorced because of misconduct of their 
 husbands and not for any fault of their own.^ Some of the 
 statutes, such as those of Massachusetts, Maine, and Michigan, 
 so declare,'by explicitly retaining dower, either when the di- 
 vorce is for any wrong on the part of the Husband, or wlien it 
 is for some specifically mentioned misconduct by him, such as 
 adultery ; ^ and a few of these permit dower to be assigned im- 
 mediately after such a divorce, without waiting till he is dead.^ 
 
 1 8 and 9 Vict. ch. 106, § 4 ; N. Y. L. Price v. Price, 124 K Y. 589 ; Hood u. 
 1909, ch. 52, § 245; 1 Stim. Amer. Hood, 110 Mass. 463 ; Fletcher w. Mon- 
 Stat. L. § 1402; McKee v. Pfout, 3 U. roe, 145 Ind. 56. 
 
 S. (3 DaUas) 486; Thompson v. Simp- 7 N. Y. L. 1909, ch. 52, § 196 ; 1 
 
 son, 128 N. Y. 272, 285 ; Mason v. Stim. Amer. Stat. L. § 3246. 
 
 Mason, 140 Mass. 63. 8 2 Mass. Rev. L. (1902) p. 1356, 
 
 2 Ibid. § 24 ; How. Stat. (Mich.) § 6246; Hard- 
 8 § 459, supra. ing ti.Alden, 9 Me. 140; 1 Stim. Amer. 
 4 § 468, supra. Stat. L, § 3246 (C). 
 
 6 Co. Lit. 32a; 2 Blackst. Com. ' Ibid.; Davol u. Howland, 14Mass. 
 
 p. *130 ; 4 Kent's Com. p. *54 ; Bishop, 219 ; Percival v. Percival, 56 Mich. 297 ; 
 
 Mar. & Div. §§ 661, 662. Neb. Comp. Stat. ch. 25, § 23 ; Tatro v. 
 
 « Ibid. ; Barrett v. Failing, 111 U. S. Tatro, 18 Neb. 395. 
 523 ; Pullen v. Pillen, 52 N. J. Eq. 9 ; 
 
HOW DOWER MAY BE LOST OR BARRED. 709 
 
 Other statutes, of which those of New York, Illinois, and Ar- 
 kansas are illustrations, merely declare that a wife shall not be 
 endowed in case of a divorce dissolving the marriage for her 
 misconduct;! but this form is generally construed, like the 
 other, to mean that dower is not divested by a divorce obtained 
 because of the husband's fault.^ In favor of dower, moreover, 
 it is held in New York that a divorce, no matter where ob- 
 tained, will not defeat dower in real property of which the hus- 
 band was seised during the coverture, unless it is an absolute 
 divorce procured against^her for such misconduct on her part 
 as would be a ground for a judgment of such divorce in a New 
 York court; 3 and this means, in a word, that no woman's 
 dower that has once attached to New York realty is barred by 
 any divorce, other than one that is absolute and duly granted 
 against her because of her adultery.'^ (a) And this is true, 
 even if she marry again. ^ 
 
 (a) The New York statute declares that, " In case of a divorce, dissolv- 
 ing the marriage contract for the misconduct lof the wife, she shall not be 
 endowed." Real Prop. L. (L. 1909, ch. 52) § 196, which was originally 
 1 R. S. 741, § 8. As stated in the text, " misconduct," as here employed, 
 means adultery and nothing else; since adultery is the only ground for an 
 absolute divorce in New York. Code Civ. Pro. §§ 1756-1761. 
 
 In this state, as elsewhere, an annulment of a marriage which was void 
 or voidable, a setting of it aside and making it void db initio, as distin- 
 guished from a divorce for a cause arising after marriage, defeats all 
 right to dower, no matter for whose fault or disability the judgment or de- 
 cree is granted ; for it shows that there was no effectual coverture, no valid 
 marriage. Price v. Price, 124 N. Y. 589. A valid marriage, on the other 
 hand, or a voidable one that is never avoided ah initio, gives a dower right, 
 which is not affected by a subsequent dissolution either for any misconduct 
 of the husband, or for any misconduct of the wife other than adultery. 
 Such a marriage may be effectually dissolved, by the judgment of a com- 
 petent court of another state, for some statutory cause for absolute divorce 
 other than adultery ; and full faith and credit must be given by New York 
 to the judgment thus rendered, by recognizing the parties as no longer 
 husband and wife. U. S. Cont. Art. iv. Sec. i ; Atherton v. Atherton, 181 
 U. S. 155. But such a divorce, not being for the wife's adultery, does not 
 bar her dower in New York. Van Cleaf v. Burns, 118 N. Y. 549, 133 
 N. Y. 540. 
 
 It is to be added that, in order to bar dower in New York, a foreign di- 
 
 1 N. Y. L. 1909, ch. 52, §196; 1 Kirkpatrick, 197 111. 144. But see 
 Stim. Amer. Stat. L. § 3246 (C) ; Kirk- Wood u. Woorl, .59 Ark. 441. 
 
 Patrick V. Kirkpatrick, 197 111. 144; ^ Van Cleaf w. Burns, 118 N. Y. 549, 
 
 ■Wood V. Wood, .59 Ark. 441. 133 N. Y. 540. 
 
 2 Wait V. Wait, 4 N. Y. 95 ; Price u. * Ihid. 
 
 Price, 124 N. Y. 589, 599 ; Meacham v. ^ Van Voorhis v. Brintnall, 23 Hun, 
 
 Bunting, 156 111.586; Kirkpatrick v. 260, reversed on other grounds, 86 N. Y. 
 
 18. 
 
 \ 
 
710 ESTATES IN REAL PROPERTY. 
 
 Since a divorce a vinculo terminates the coverture, and since 
 one of the absolute essentials of dower is seisin of the property 
 by the husband during coverture, it follows that the woman 
 can have no dower in realty not acquired by the man until after 
 such a divorce.^ This clear proposition is not affected by the 
 statutes that retain dower after an absolute divorce for the hus- 
 band's misconduct — dower is retained in realty owned by him 
 before the divorce; it is not annexed to any property thereafter 
 acquired.^ i 
 
 It is to be added, also, that a partial divorce — a mensa et 
 thoro — since it does not dissolve the marriage contract, does 
 not bar dower.* In some states, by virtue of statutes, as here- 
 after explained, such a separation makes possible a release of 
 dower by the wife to the husband.* But a divorce, in order to 
 be of itself a bar of dower, must be 'absolute.® 
 
 § 503. Second — Do'wer barred' by Release — Estoppel by 
 Deed. — By far the most extensively employed means of barring 
 dower is by the wife joining with the husband in conveying the 
 property. The only regular way of doing this in England, be- 
 fore the dower act of 3 & 4 Wm. IV. ch. 105 (1884), was by 
 
 vorce, even for the cause of the wife's adultery, must be one which the 
 New York courts are required to recognize as valid; and that a divorce 
 rendered in another state where the parties were liot bona fide domiciled, 
 when there was no personal service of the court's process on the defendant 
 and no personal appearance of the defendant within the state rendering 
 the judgment, is not recognized in New York. Williams v. Williams, 130 
 N. Y. 193 ; McGoun v. McGoun, 19 App. Div. 368 ; Andrews v. Andrews, 
 188 U. S. 14. See Atherton v. Atherton, 181 U. S. 155 ; Haddock v. Had- 
 dock, 201 U. S. 562. It is also explained, in a note to this section of the 
 text, that, if a wife obtain a decree of absolute divorce against the hus- 
 band, in another state, though in such a manner that it is void or voidable 
 by him, she will not be heard to impeach it in New York, for the purpose 
 of obtaining dower in realty acquired by him after such decree was ren- 
 dered. Starbuck v. Starbuck, 173 N. Y. 503. 
 
 1 Maynard v. Hill, 125 TJ. S. 190, was rendered. Starbuck v. Starbuck, 
 214; Matter of Estate of Ensign, 103 173 N. Y. 503. See Atherton v. Ather- 
 N. Y. 284, 288; . Nichols w^ Park, 78 ton, 180 U. S. 155; Haddock v. Had- 
 N. Y. App. Div.~95, 99. " ^ dock, 201 U. S. 562. . 
 
 2 Ibid. And, if the wife obtain a ' Co. Lit. 32 a ; Day v. "West, 2 Edw. 
 (iecree of absolute diyorce against the Ch. (N.. Y.) 592; Taylor v. Taylor, 93 
 husband, but in such manner that it is N. C. 418; Jarnigan y. Jarnigan, 12 
 void or voidable as to him, and he might Lea (Tenn.), 292 ; Rich u. Rich, 7 Bush 
 have it set aside or ignore it in a state (Ky.), 53. And see Payne v. Dotson, 
 other than that in which it was granted, 81 Mo. 145 ; Halm v. Bealor, 132 Pa. St. 
 yet she will not be heard to impeach it, 242. 
 
 for the purpose of obtaining dower in * § 503, infra. 
 
 realty acquired by Hm after such decree \^ Last preceding note but one. 
 
HOW DOWER MAY BE LOST OR BARRED. 711 
 
 the husband and wife together levying a fine or suffering a 
 common recovery ; ^ but, as the result of that statute, the hus- 
 band alone, by deed, or devise, or declaration in his will, may 
 now deprive the wife of all dower interest. Fines and recov- 
 eries were never employed, to any extent at leakt, for the pur- 
 pose of barring dower in this country ;2 but, from the earliest 
 times, the ordinary method has been for the wife to release her 
 dower by deed, to the husband's purchaser, and usually by unit- 
 ing with the husband in his deed.^ " It is valmost a matter of 
 course, in this country, for the wife to unite with her husband 
 in all deeds and mortgages of his lands."* The release so 
 made operates as an estoppel hy deed against the wife or widow.^ 
 And, according to what appears to be the weight of authority, 
 it also operates, to the extent intended, as did the ancient fine 
 for which it is the American substitute, as a release,, as to all 
 persons and for all purposes, and so in favor of all who have 
 or acquire interests in the land, whether or not they claim as or 
 through the person to whom the deed was made.® Thus, her 
 uniting properly with the husband in conveying his equity of 
 redemption subject to a mortgage releases his dower in favor 
 of the mortgagee, althaugh he is not a party to the transaction 
 and his mortgage was a claim inferior to her dower before such 
 conveyance.'^ But, in some states, such as Maine, Massachu- 
 setts, and New Hampshire, her release by deed is treated strictly 
 as an estoppel, available only to him to whom it is made or to 
 those who claim through him.^ Under either theory, of course, 
 
 1 2 Blackst. Com. p. *137 ; Cruise, from the colonial act of 1644. Powell 
 Dig. tit. vi. ch. iv. § 13; 4 Kent's Com. v. Monson, 3 Mason (U. S. Cir. Ct.), 
 p. *51. In England, before the dower 347; 4 Kent's Com. p. *59; 1 Greenl. 
 act of 1834, several complicated and ab- Cruise, Dig. p. 202, § 14. 
 
 struse methods of settling property, with * 4 Kent's Com. p. *60. 
 
 powers or trusts annexed, were resorted ^ Elmendorf v. Lockwood, 57 X. Y. 
 
 to for the purpose of precluding dower. 322 ; Witthaus v. Schack, 105 N. Y. 332, 
 
 They are briefly explained in 4 Kent's 338; French v. Lord, 69 Me. ,537 ; Boo- 
 
 Com. pp. *51, *52. See 2 Scribner, rum v. Tucker, 51 N. J. Eq. 135; 2 
 
 Dower, ch. xii. §§ 1-7. Scribner, Dower, ch. xi. §§ 21-32. 
 
 2 4 Kent's Cora. p. *59 ; Elmendorf 6 Elmendorf v. Lockwood, 57 N. Y. 
 V. Lockwood, 57 N. Y. 322,' 324. 322, 325, 327 ; Witthaus u. Schack, 105 
 
 8 A custom of London allowed dower N. Y. 322, 338 ; Boorum v. Tucker, 51 
 to be barred by a deed of bargain and N. J. Eq. 135, 52 N. J. Eq. 587 ; John- 
 sale executed by husband and wife. son v. Van Velsor, 43 Mich. 208 ; Morton 
 The system employed in the United i>. Noble, 57 111. 176; Fletcher n. Shep- 
 States has been said by some to have herd, 174 111. 262. See 2 Scribner, 
 originated in that custom. Chase's Dower, ch. xi. § 32. 
 Case 1 Bland. Ch. (Md.) 206, 229; 7 Ibid.; Hoogland ... Watt, 2 Sand. 
 "Collection N. Y. Hist. Soc." for 1821, Ch. (N. Y.) 148. Contra, Littlefield v. 
 p 347. By others it is believed to Crocker, 30 Me. 192. 
 have taken its rise in Massachusetts, » Robinson v. Bates, 3 Met. (Mass.) 
 
712 
 
 ESTATES IN REAL PEOPERTT. 
 
 when the husband's deed in which she united is void, or is set 
 aside or superseded, so that it becomes inoperative, as for ex- 
 ample when it is avoided by his creditors as a fraud on them, 
 the release is ineffectual and her dower is not barred.^ 
 
 While the wife's doVer is inchoate, it can not be released 
 to a stranger to the title ; the release, to be effective, must be 
 to one who has or by the same transaction is acquiring a free- 
 hold interest in the property.^ She unites with the husband in 
 his conveyance ; o^- he and she subsequently join in a deed re- 
 leasing her dower to the purchaser or his successor in interest ; ^ 
 and, in a few states, such as New York, New Jersey, Rhode 
 Island, and Alabama, she may make a separate valid release to 
 such purchaser or successor, without the concurrence or consent 
 of the husband, and either at or after the time of the husband's 
 conveyance.* But her attempt to release or convey her inchoate 
 right of dower to a stranger, while the husband retains the free- 
 hold estate, is everywhere a nullity.^ After the death of the 
 husband, she may release her dower interest to an owner of the 
 freehold, whether or not her third has been assigned;^ after 
 
 40; Littlefield v. Crocker, 30 Me. 192; 
 French a. Lord, 69 Me. 537 ; Dearborn 
 V. Taylor, 18 N. H. 153. 
 
 i Sanford v. EUithorp, 95 N. T. 48, 
 51 ; Hinchliffe v. Shea, 103 N. Y. 153 ; 
 Wilkinson v. Paddock, 57 Hun (N. Y.), 
 191, afE'd 125 N. Y. 748; Richardson 
 V. Wyman, 62 Me. 280 ; Stinson v. Sum- 
 ner, 9 Mass. 143 ; Ridgway v. Masting, 
 23 Oliio St. 294 ; Bohannon v. Combs, 
 97 Mo. 446. 
 
 * Merchants' Bank u. Thomson, 55 
 N. Y. 7, 12; Witthans v. Schack, 105 N. 
 Y. 333, 336 ; Mason v. Mason, 140 Mass. 
 63; Penfold o. Warner, 96 Mich. 181; 
 Johnson v. Smith's Adm'r, 70 Ala. 108; 
 § 462, supra. She may release to one 
 who has bought Irom the husband, and 
 conveyed with a warranty, since he is in 
 privity as to the title by virtue of his 
 warranty. Chicago Dock Co. u. Kinzie, 
 49 ni. 289. 
 
 " PoweU V. Monson, 3 Mason (U. S. 
 Cir. Ct.), 347; Malloney v. Horan, 49 
 N. Y. Ill, 117; Marvin v. Smith, 46 
 N. Y. 571^ Witthaus v. Schack, 105 
 N. Y. 332; Frenth v. Peters, 33 Me. 
 396 ; Burge v. Smith, 27 N. H. 332 ; Ulp 
 u. Campbell, 19 Pa. St. 361 ; Fletcher 
 V. Shepherd, 174 HI. 262; 2 Scribner, 
 
 Dower, ch. xii. §§ 8-22. In states in 
 which she must unite thus with the hus- 
 band in order to convey her interest in 
 realty, if he die and she marry again, 
 the second husband must join in the 
 deed of release of her dower in the first 
 husband's property. Ibid. ; Osborn v. 
 Horine, 19 111. 124. See Fletcher v. 
 Shepherd, 174 111. 262. 
 
 * Merchants' Bank v. Thomson, 55 
 N. Y. 7, 12 ; Savage v. CriU, 19 Hun, 4, 
 afE'd 80 N. Y. 630; N. J. Gen. Stat, 
 p. 854, § 9; K. I. Pub. Stat. (1882) 
 p. 423, §§ 11, 12; Fowler t). Chadima, 
 134 Iowa, 210; Dooley ». Greening, 201 
 Mo. 343 ; Ala. Code, § 1509 ; Callahan 
 V. Nelson, 128 Ala. 671 ; Skinkel's As- 
 signees V. Bristow, 95 Ky. 84 ; 1 Stim. 
 Amer. Stat. L. § 3245 ; 2 Scribner, 
 Dower, ch. xii. §§ 18-22. 
 
 5 Last three preceding notes ; Sher- 
 man V. Hayward, 98 N. Y. App. Div. 
 254, 256 ; § 465, supra. 
 
 « Bostwick V. Beach, 103 N. Y. 414; 
 Freiot v. La Fountaine, 16 N. Y. Misc. 
 153; Thatcher v. Howland, 2 Met. 
 (Mass.) 41 ; 1 Stim. Amer. Stat. L. 
 § 3245 ; 2 Scribner, Dower, ch. xii. 
 §§ 51, 52. 
 
HOW DOWER MAY BE LOST OR BARRED, 713 
 
 her life interest has been assigned to her, she may convey It to 
 a stranger to the title, as may any other life owner ;^ and, as 
 was heretofore explained, the liberal statutes of many states 
 permit her to assign to a stranger the chose in action for re- 
 covery of her third, which she owns after the husband's death 
 and before her dower laud is admeasured.^ 
 
 The two essentials of a woman's personal release of dower 
 by deed are, tliat she shall be under no disability to make it, and 
 that it shall be properly executed. When the wife is an infant, 
 or insane, or otherwise incapacitated, tliere is, of course, no com- 
 mon-law way of divesting her of dower ; and no court has 
 inherent authority to grant relief, in such cases, when the hus- 
 band desires to sell his real property.^ But now, in most juris- 
 dictions, statutes provide for a judicial proceeding to remove 
 the dower encumbrance from realty aliened by the husband ; 
 and this results generally in a release by the wife's committee 
 or a special guardian appointed for that purpose by the court, 
 who, pursuant to the court's order made when it is decided to 
 be for tlie wife's advantage, unites with the husband in the con- 
 veyance, or gives a separate release to his purchaser.* A proper 
 execution of the deed by the wife herself, when she is under no 
 disability, requires, in many if not most states, the insertion in 
 the instrument of apt words to indicate her intent to relinquish 
 dower ; ^ and an acknowledgment of the deed by her before a 
 commissioner of deeds or other proper officer, wliich acknowl- 
 edgment is required in some states, such as New Jersey, Rhode 
 Island, Virginia, and Missouri, to accompany as at common 
 law her privy examination separately and apart from her hus- 
 band.® The demand for such separate examination and ac- 
 knowledgment, however, has been removed by the legislation 
 
 1 Ibid. ; § 539, infra. Scribner, Dower, ch. xii. §§ 27, 28. See 
 
 a 8 466, supra. Johnson v. Montgomery, 51 111. 185 ; 
 
 « Priest I'. Cummings, 16 Wend. Surge v. Smith, 27 N. H. 332. 
 (y. Y.) 617, 631, 20 Wend. 338; Mat- » 1 Stim. Amer. Stat. L. §§ 6500, 
 
 ter of Dunn, 64 Hun (N. Y.), 18; 6501, 6.504; 2 Scribner, Dower, ch. xiii. 
 
 Cason V. Hubbard, 38 Miss. 35 ; 2 §§ 1,2; N. J. Gen. Stat. p. 854, § 9; 
 
 Scribner, Dower, cb. xii. §§ 31-35. Sheppard t;. Wardell, 1 N. J. L. 452 ; 
 
 * N. Y. Code Civ. Pro. §§ 2348, Churchill v. Monroe, 1 R. I. 209; 
 
 2351, 2355, 2356, 2358, as amended Currie c. Page, 2 Leigh (Va.), 620; 
 
 bv L. 1893, ch. 639 ; N. J. Gen. Stat. McDowell r. Little, 33 Mo. 523 ; Grove 
 
 p! 1281; 2 Scribner, Dower, ch. xii. v. Todd, 41 Md. 633; Danglarde v. 
 
 §§ 31-35. Elias, 80 Cal. 65 ; HoUiugsworth <■. 
 
 6 Hall V. Savage, 4 Mason (U. S. Flint, 101 U. S. 591. See Lake v. Gray, 
 
 Cir. Ct.), 273; Lofkin t>. Curtis, 13 30 Iowa, 415; Stidham «. Matthews, 29 
 
 Mass. 2^3 ; Lothrop v. Foster, 51 Me. Ark. 650. 
 867 ; Davis v. Jenkins, 93 Ky. 353 ; 2 
 
714 ESTATES IN REAL PEOPERTY. 
 
 of many of the states.^ (a) And in quite a few of them, of 
 which New York, New Hampshire, and Illinois are illustra- 
 tions, it is no longer required that the deed in the execution of 
 which she unites, if it be in itself a proper grant or release, 
 shall explicitly refer to her dowfer, or even that her name shall 
 appear in the body of the instrument.^ None of the courts 
 require that dower be mentioned eo nomine in the deed ; ^ but 
 many of them, unaided by statutes, insist, as already stated, 
 that it shall describe her as a party and contain apt and ade- 
 quate words to show that she intends to release dower.* It 
 is generally held that, without express statutory authorization, 
 shecanjiot give a valid_j)0wer of attorne y to another person to 
 act for her in releasing dower.^ But several states, such as 
 New York, Massachiisetts, Rhode Island, Pennsylvania, and 
 Ohio, have statutes which permit her to give such a power.® 
 
 (a) In New York, before 1771, a wife's deed, it seems, did not have to 
 be separately acknowledged, to bar dower. YaflJKKJIjJdfi "• Constantine, 
 10 N. Y. 422 ; Albany Fire Ins. Co. v. Bay, 4 N. Y."9 ; Hardenburgh v. 
 Lakin, 47 N. Y. 109, 113. But such acknowledgment was required by the 
 act of Feb. 16, 1771. 2 Van Schaick, N. Y. L. 611, 765. And eo the 
 requirement was until 1879. 
 
 It was held that after the married women's legislation of 1848 (L. 1848, 
 eh. 200) such a woman could cdnvey her separate estate without any ac- 
 knowledgment. Wiles V. Peck, 26 N. Y. 42, 46 ; Yale v. Dederer, 18 N. Y. 
 265, 271; Hulse u. Bacon, 26 .Misc. 455, afi'd 40 App. Div. 89; Rich- 
 ardson V. Pulver, 63 Barb. 67; Allen v. Reynolds, 36 N. Y. Super. Ct. 297. 
 The same rule, however, does not seem to have applied to a release of 
 dower, to which the Revised Statutes of 1830 (1 R. S. 758, §§ 10, U), fol- 
 lowing the act of 1771, required a privy examination and separate acknowl- 
 edgment, except when she was not a resident of the state. This was 
 changed by L. 1879, oh. 249, as amended by L. 1880, ch. 300, which enar 
 bled her to execute and acknowledge all deeds the same as if she were 
 afemme sole. The last mentioned statute, as Real Prop. L. (L. 1909," 
 ch. 52) § 302, now reads as follows : " The acknowledgment or proof of a 
 conveyance of real property, within the State, or of any other written 
 instrument, may be made by a married woman the- same as if unmarried." 
 
 1 Ibid. ; N. Y. L. 1909, ch. 62, 9 ; Jones v. City of Dea Moines, 43 
 §§ 302, 303 ; 1 Wash. R. P. (6th ed.) Iowa, 209 ; Smith o. Handy, 16 Ohio, 
 note. 119 ; 2 Scribner, Dower, ch. xii. § 29. 
 
 2 Gillilan v. Swift, 14 Hun (N. Y.), * Ibid. ; fourth note, above. 
 
 574 ; Piatt V. Finck, 60 N. Y. App. Div. 5 Lewis v. Coxe, 5 Harrington (Del.), 
 
 312, 315 ;Burgeu. Smith, 27 N.H. 332; 401; Sumner v. Conaut, 10 Vt. 9; 
 
 Johnson i^. Montgoraery, 51 HI. 185; Dawson u. Shirley, 6 Blackf. (lud.) 531 ; 
 
 Fletcher v. Shepherd, 174 111. 262; 2 Scribner, Dower, ch. xii. § 23. 
 Dundas v. Hitchcock, 53 U. S. (12 « N. Y. L. 1896, ch. 547, § 187, orig- 
 
 How.) 256, 267. inally L. 1893, ch. 599; 2 Scribner, 
 
 ' Learned v. Cutler, 18 Pick. (Mass.) Dower, ch. xii. § 23. 
 
HOW DOWER MAT BE LOST OR BARRED. 7l£ 
 
 And in New York the attorney in fact may be her husband 
 himself, if she so desire.^ (a) 
 
 The common-law proliibition of a wife's release of dower to 
 her own husband is to be here emphasized.^ Wherever the 
 husband alone can not bar dower, this restriction is generally 
 retained as a rigid rule — the requisites of dower existing, 
 that right attaches to the realty so long as it is owned by the 
 husband.8 Statutes have slightly modified this emphatic prin- 
 ciple in some of the United States.* Thus, in New York and 
 Micliigan, after a divorce has occurred, whether it is total or 
 partial, she may release directly to him her dower in all the 
 real property that he then owns or may subsequently ac- 
 quire.^ (J) In New York, also, the wife may release to the 
 ' husband all her right in connection with hi's interest in realty 
 ordered to be sold in a partition suit ; ^ (c) and, if he and she 
 
 (a) It was settled In New York, by the case of Wronkow v. Oakley 
 (133 N. Y. 505), that, by virtue of tlie statute, L. 1878, ch. 800, a wife 
 could release dower through a power of attorney, given to her husband or 
 to a third party. Therefore the act of 1893 (ch. 509) merely gave expres- 
 sion to the law as it then already existed. That act, now Real Prop. L. 
 § 207, declares that, " A married woman of full age may release her 
 inchoate right of dower in real property by attorney in fact in any case 
 where she can personally release the same." Piatt v. f inck, 60 App. Div. 
 312. 
 
 (6) This New York statute provides that, " A woman who is divorced 
 from her husban3,~wKether such divorce be absolute or limited, or- granted 
 in his or her favor, by any court of competent jurisdiction, may release to 
 him, by an instrument in writing, sufficient to pass title to real estate, her 
 inchoate right of dower in any specific j-eal property theretofore owned by 
 him, or generally in all such real property, and such as he shall thereafter 
 acquire." Real Prop. L. § 206, which was L. 1892, ch. 616, repealing and 
 superseding L. 1890, ch. 502. 
 
 (c) The New York Code Civ. Pro., after providing for a sale of realty 
 in a partition suit, as the outcome of a proper report of the commissioners 
 or referee, says, at § 1571: " A married woman may release to her husband 
 
 1 Wronkow v. Oakley, 133 N. T. 52 Wis. 298; Pillow v. Wade, 31 Ark. 
 
 505; N. Y. L. 1909, ch. .52, § 207; 678; House ;>. Fowle, 20 Or. 163. See 
 
 Piatt 1). Finck, 60 N. Y. App. Div. §§ 505, 513-516, infra, as to how slie 
 
 312. may sometimes be estopped, by her 
 
 ^ Guidet V. Brown, 3 Abb. N. 0. contracts with her husband, or with 
 
 (N. Y.) 295; New York Life Ins. Co. v. hira and others, to claim dower. 
 Mayer, 14 Daly, 318, afiE'd 108 N. Y. * 2 Scribner, Dower, ch. xii. §§ 
 
 655; Hendricks v. Isaacs, 117 N. Y. 43-48. 
 
 411, 416 ; Rowe !•. Hamilton, 3 Me. 63 ; ^ N. Y. L. 1909, ch. 52, § 206 ; Bech. 
 
 2 Scribner, Dower, ch. xii. § 43. tel v. Barton, 147 Mich. 318. 
 
 » Ibid.; Wightman v. Schliefer, 45 « N. Y, Code Civ. Pro. § 1571. 
 
 N. Y. St. Rep. 698; Wilber v. Wilber, 
 
716 ESTATES IN REAL PROPERTY. 
 
 voluntarily partition between them real property owned by 
 them as joint tenants, tenants in common, or tenants by th^ 
 entirety, she may eflFectually release to him, in the partition 
 deed, her dower in the portion that thus goes to him in sev- 
 eralty, and he may likewise release to her his curtesy in the 
 portion that thus goes to her in severalty.^ (a) 
 
 § 504. Third — Dower barred by Judgment or Decree — 
 Estoppel of Record — Foreclosure. — A judgment or decree of 
 a competent court may establish the inability of a woman to 
 obtain dower, whicli otherwise might have been hers, whenever 
 the circumstances are such that she is duly bound by the judi- 
 cial proceedings ; and thus her dower may be bacred by estoppel 
 of record.^ Judgments divesting her husband's title ah initio^ 
 and foreclosure of mortgages, or enforcement of other liens, 
 which are superior in right to her dower claim,* are illus- 
 trations of sucli estoppels.^ 
 
 When, in a proceeding to which the wife is a party, it is 
 judicially determined that the husband never owned the real 
 property, she is of course precluded from acquiring any dower 
 
 her inchoate right of dower, in the property directed to be sold, by a written 
 instrument, duly acknowledged by her and certified, as required by law 
 with respect to the acknowledgment of a conveyance to bar dower; which 
 must be filed with the clerk. Thereupon, the share of the proceeds of the 
 sale, arising from her contingent interest, must be paid to her husband." 
 
 (a) The New York Domestic Relation Law, L. 1909, ch. 19, after pro- 
 viding- (§ 51) that a married woman inay freely take, hold, convey and deal 
 with property, both real and personal, the same as if she were single ; and 
 may freely contract with her husband, except that they can not contract 
 to alter or dissolve the marriage, or to relieve him of his liability to support 
 her, adds : (§ 56) " Husband and wife may convey or transfer real or per- 
 sonal property directly, the one to the other, without the intervention of a 
 third person ; and may make partition or division of any real pi-operty held 
 by them as tenants in common, joint tenants or tenants by the entireties. 
 If so expressed in the instrument of partition or division such instrument 
 bars the wife's right to dower in such property, and also, if so expressed, 
 the husband's tenancy by curtesy." See L. 1887, ch. 537. This states the 
 only circumstances under whicli, in New York, a woman can release dower 
 to her own husband, so that, while they remain husband and wife, and con- 
 tinue to live together as such, he may own the real property free and clear 
 of her dower right. 
 
 1 N. Y. L, 1909, oil, 19, §5 5\, 56. » § 509, infra. 
 
 2 1 Greenleaf, Kv, §§ 522 - 532 ; * Brackett v. Baum, 50 N. Y. 8 ; 
 Chase's Stephen's Dig, L, Ev, Art, 41 § 777 infra. 
 
 and notes; 1 Scribner, Dower, ,ch. ^ 2 Scribner, Dower, ch, xi. §§ 
 
 xxviii. §§ 29-S3. 21-23. 
 
HOW DOWER MAY BE LOST OR BARRED. 717 
 
 therein.! And, likewise, when under a judgment against the 
 husband a former owner of the land or his heirs or successors 
 in interest re-enter and regain the land because of breach of a 
 condition subsequent annexed to tlie husband's title, the latter's 
 interest is destroyed ab initio and his wife's dower is defeated 
 in that property .^ In such cases, the judgment estops the wife 
 or widow to as^ft that her husband ever had any seisin ortitle 
 in the real property thereby affected. 
 
 It has b^n heretofore explained that the four khids of mort- 
 gages that uniformly have precedence over dower are, those 
 made by husband and wife together or as to which she directly 
 releases her dower, those on the land before the marriage, those 
 on the land before it is acquired by the husband, and purchase 
 money mortgages given by the husband.^ Either of these forms 
 of mortgage, existing as a lien on the land, leaves the dower 
 claim of the landowner's wife in the equity of redemption so- 
 called — in the residuary value of the land over and above the 
 mortgage lien.* Thus, if the value of the land be f 20,000, and 
 the mortgage be for $12,000, the dower attaches to the remain- 
 ing $8,000 worth.^ If such a mortgage be properly foreclosed 
 and the wife duly made a party to the suit, thus giving her her 
 day in court to redeem the land from the mortgage if she choose, 
 herdower becomes wholly barred by the judgment of foreclosure 
 and the consequent disposition of the land.^ When such a 
 mortgage is foreclosed and she is not duly made a party to 
 the suit, her right to redeem is unaffected thereby, and she 
 may proceed to exercise that right even while her husband is 
 still livingJ The foreclosure of any other kind of mortgage — 
 
 1 Honse u. Jackson, 50 N. Y. 161, Scribner, Dower, ch. xiv. § 3 ; § 508, 
 165; McClure u. Fairfield, 153 Pa. St. infra. 
 
 411; Glos V. Gerrity, 190 111. 545; 2 » § 480, supra. 
 
 Crabb, R. P. § 1177. But the recovery * Ibid. ; § 777, infra. 
 
 against the husband by such a claim- " Ibid. 
 
 ant, in order to bar dower, must be « Matthews v. Duryee, 45 Barb. 
 
 bona fide, and not the result of any col- (N. Y.) 69; Pitts v. Aldrich, 11 Allen 
 
 Insion with the husband or any fraud or (Mass.), 39 ; Nottingham v. Calvert, 1 
 
 crime on his part. The common-law Ind. 527; Shope v. Schaffner, 140 111. 
 
 demand to this effect has been enforced 470 ; 1 Scribner, Dower, ch. xxiii. §§ 
 
 by the statutes Westm. II. ch. 4, and by 31-34. 
 
 several statutes in this country. N. Y. ^ Bell v. Mayor, 10 Paige (N. Y.), 
 
 L. 1909, ch.-S2, § 203 ; 1 Stim. Amer. 49; Haldane u. Sweet, 55 Mich. 196. 
 
 Stat. L. § 3249; 1 Scribner, Dower, ch. She may have an action, if necessary, 
 
 xxix. § 8. to redeem, under such circumstances ; 
 
 2 Emerson v. Harris, 6 Met. (Mass ) and in such action, she may, on applica- 
 475; Beardslee v. Beardslee, 5 Barb. tion of the defendant, be required to 
 (N. Y.) 324 ; 4 Kent's Com. p. * 49 ; 1 elect between receiving payment iu full 
 
718 ESTATES IN REAL PROPERTY. ' 
 
 any mortgage inferior in right to her dower claim— can not 
 affeot her dower, even though she be made a party to the suit,^ 
 unless she acquiesce in so being made a party and consent to 
 the disposition of the property free of her dower.^ In summary, 
 therefore, it may be said that, in order by foreclosure of a mort- 
 gage to bar dower without the consent or acquiescence of its 
 owner, the mortgage must be one of those which have priority 
 over the dower and the wife must be properly made a party to 
 the foreclosure suit.^ • And even when the dower is subordinate 
 to the mortgage, and she is a party to a foreclosure after her 
 husband's death (and in many states, such as New York and 
 New Jersey, before his death), she is given dower in the surplus 
 proceeds of the sale of the property.^ This is expressly pro- 
 vided for by statutes in several states, such as New York, (a) 
 Massachusetts, and Michigan.^ 
 
 (a) The New York statute "provides that " Where, in a case specified in 
 the last section, the mortgagee, or a person claiming under him, causes 
 the land mortgaged to be sold)^ after the death of the husband, either under 
 a power of sale contained in the mortgage, or by virtue of a judgment in 
 an action to foreclose the mortgage, and any surplus remains, after pay- 
 ment of the money due on the mortgage and the costs and charges of the 
 sale, the widow is nevertheless entitled to the interest or income of one- 
 third part of the surplus for her life, as her dower." N. Yl Real Prop. L. 
 (L. 1909, ch. 52) § 194, .which was originally 1 R. S. 741, § 6. See 
 Brackett v. Baum, 50 N. Y. 8 ; Matthews v. Duryee, 45 Barb. 69 ; Vartie 
 V. Underwood, 18 Barb. 561; Blydenburgh v. Northrop, 13 How. Pr. 289. 
 And the same right for the widow, in case of a sale of the husband's real 
 property after his death for the payment of his debts, is given by Code Civ. 
 Pro. § 2800. And rule No. 64 of the General Rules of Practice does the 
 same for her when his realty is sold for the payment of his debts before 
 his death. 
 
 for her dower interest (on her releasing 608 ; Duncan v. City of Terre Haute, 
 
 it) and redeeming the land by paying 85 Ind. 104 ; Venable v. Wabash, etc. R. 
 
 the mortgage debt in full if the defend- Co., 112 Mo. 103; 1 Scribner, Dower, 
 
 ant will not consent to pay for her ch. xxiii. §§ 24, 25. The rule of some 
 
 dower interest. Mackenna v. Fidelity states, which gives her this right though 
 
 Trust Co., 184 N. Y. 411. the foreclosure is before the husband's 
 
 1 Merchants' Bk. v. Thomson, 55 N. death, is just and reasonable. N. Y. 
 Y. 7; Pern v. Osterhout, 11 N. Y. App. Gen. Rules of Practice, No. 64; In re 
 Dir. 319; Walsh v. Wilson, 130 Mass. Central Park Extension, 16 Abb. Pr. 
 124; Dillraanu. Will Co. Nat. Bk., 138 (N. Y.) 69; Wheeler v. Kirtland, 27 
 111. 282. N. J. Eq. 534 ; Nye v. Taunton Branch 
 
 2 Ibid. ; § 480, supra. R. Co., 113 Mass. 277 ; Newhall v. Lynn, 
 8 Last four preceding notes. F. C. S. Bk., 101 Mass. 428 ; Kaufman 
 * Hawley v. Bradford, 9 Paige (N. v. Peacock, 115 111. 212. 
 
 Y.), 201 ; Hinchman v. Stiles, 9 N. J. ^ n. Y. L. 1909, ch, 52, § 194 ; N. 
 
 Eq. 361 ; Mandel u. McClave, 46 Ohio Y. Code Civ. Pro. § 2800 ; 1 Stim. 
 St. 407 ; Burrall v. Bender, 61 Mich. Amer. Stat. L. § 3216. 
 
HOW DOWER MAT BE LOST OR BARRED. 719 
 
 The foreclosure or proper enforcement of any other lien, 
 which is superior to dower, such as a judgment docketed against 
 the husband before the marriage, or a mechanic's lien already 
 on the land when he acquired it, will in like manner bar dower, 
 if the wife be duly made a party to the proceedings.^ And, 
 likewise, her dower claim will then attach to any surplus 
 moneys, after such prior liens are discharged. This latter re- 
 sult arises because such moneys are treated as converted back 
 into realty, so far as her right is concerned. 
 
 It is the fact that the wife's dower is subordinate to the 
 mortgage, or other lien, in the enforcement of which the judg- 
 ment or decree is obtained, that lays the foundation for the 
 estoppel of record in such cases as those discussed in this sec- 
 tion. And the principle is to be here again emphasized, that, 
 except as the result of special local law, such as that of Penn- 
 sylvania for example,^ dower can not be affected by any indebted- 
 ness of the husband alone, contracted during coverture, or not 
 reduced to judgment or otherwise made a lien on his land before 
 the marriage though contracted before that tirae.^ 
 
 § 505. Fourth — Dower Barred by Estoppel in Pais. — Not only 
 by her deed, or by judgment or decree against her, may a wife 
 or widow be estopped to assert her dower claim, but also by her 
 conduct, or sometimes by her acquiescence — matter in pais — 
 she may also be estopped.* It should be reiterated here that, 
 in order to produce an estoppel inpais against her, four elements 
 or circumstances must be established ; namely, that she made a 
 representation to the effect that she did not have or did not 
 claim to have any dower; that this was done with intent, or 
 reasonably presumable intent, that another should act on it ; that 
 such other did act on it; and that it would result in damage to 
 him to have the representation successfully denied.^ The most 
 important features to consider in dealing here with these ele- 
 ments are, her representation, and the fact that it is acted on 
 reasonably by some one interested in the title to the land in 
 which her dower is sought to be claimed. 
 
 1 Sandford v. McLean, 3 Paige (N. 43 Pa. St. 146 ; Porter v. Lazear, 109 
 Y.), 117 ; Brown v. Williams, 31 Me. U. S. 84. 
 
 403; Brown ^. Bronson, 35 Mich. 415; 3 Taylor v. Fowler, 18 Ohio, 567; 
 
 1 Scribuer, Dower, ch. xxviii. §§ 29-33. Nutter v. Fouch, 86 Ind. 451 ; Butler v. 
 
 See Sarver v. Clarkson, 156 Ind. 316. Fitzgerald, 43 Neb. 192 ; Roan w. Holmes, 
 
 2 In Pennsylvania, a wife's dower 32 Fla. 295 ; § 496, tsupra. 
 
 right is always subordinate to all her * 2 Scribuer, Dower, ch.xi.§§ 34-47; 
 
 husband's debts, and so it is defeated by next six succeeding notes, 
 
 the judgments or decrees obtained upon ' Ibid. ; Stephen's Dig. L. Ev. Art. 
 
 them. Directors of Poor, etc. u. Royer, 102; 2 Scribuer, Dower, ch. xi. §§ 34-47. 
 
720 ESTATES IN BEAL PROPERTY. 
 
 If, therefore, a wife state, or in any manner represent, to a 
 purchaser of real property from her husband, or aU encum- 
 brancer of that property, that she is not his wife, or will not 
 claim dower in the property conveyed, and the encumbrancer or 
 purchaser reasonably act on such representation in loaning his 
 money or acquiring the title, her dower is thereby barred in 
 favor of his interest in the property.^ And the same is true, as 
 to the representations made by a widow, when her deceased 
 husband's property is being purchased or encumbranced.^ So, 
 when the husband's real property is sold and the wife knowingly 
 receives or retains the proceeds, or her share thereof, she makes 
 a representation to the purchaser by inducing him to acquiesce 
 in her retention of such proceeds, and thereby estops herself to 
 claim dower in the realty .^ 
 
 The representation made by the owner of dower may not 
 only be direct and positive, but it may result from her conduct 
 known to the purchaser or encumbrancer.* It has been accord- 
 ingly held that her desertion of her husband and marriage to 
 another man precludes her from setting up dower against one 
 who, with knowledge of the facts, purchased real property from 
 her (first or real) husband.^ And some cases have even gone 
 to the extent of holding that, where the husband openly lived 
 with another woman as his wife and his real wife knowing of 
 this made no objection and failed to assert any claim in his 
 property before his death, the latter was barred of dower in land 
 which he had conveyed during his wrongful cohabitation.^ 
 
 Since the law greatly favors dower, however, mere silence 
 on the part of the wife or widow, where no dut/to speak of rests 
 upon her, will not consitute such a representation as to cause a 
 bar of dower by estoppel.^ To produce such a bar, she must 
 either do some unequivocal act, or remain silent when it is her 
 clear duty to speak.** Accordingly, when she stands by and 
 
 1 Deshler K. Beery, 4 Dall. (Pa.) 300 ; 6 Gilbert v. Reynolds, 51 111. 513. 
 Wright V. De GrofE, U Mich. 164; Contra, Martin v. Martin, 22 Ala. 86; 
 Sweaney w. Mallory, 62 Mo. 485. Reel v. Elder, 62 Pa. St. 308 ; Cruize v. 
 
 2 Ibid. ; Dongrey v. Topping, 4 Paige Billmire, 69 Iowa, 397. 
 
 (N. Y.), 94 ; 2 Scribuer, Bower, ch. xi. ' Lawrence v. Brown, 5 N. Y. 394 ; 
 
 § 36. * Sip V. Lawback, 17 N. J. L. 442 ; Owen 
 
 8 Wood V. Seely, 32 N. Y. 105 ; Reed v. Slatter, 26 Ala. 547. Compare Jeffer- 
 
 V. Morrison, 12 Serg. & R. (Pa.) 18; iea v. Allen, 34 S. C. 189; 2 Scribner, 
 
 Simpson's Appeal, 8 Pa. St. 199; 2 Dower, ch. xi. § 42. 
 
 Scribner, Dower, ch. xi. § 40. « Ibid. ; Martin v. Martin, 22 Ala. 86. 
 
 * Last three preceding notes. " There must be some unequivocal act 
 
 5 Lewis V. Parrett, 37 N. E. Rep. 330 on her part which would either ren- 
 
 (Pa.). der a claim of dower on her part clearly 
 
HOW DOWER MAT BE LOST OR BARRED. 721 
 
 sees her husband's property sold to a stranger and remains 
 passive, the purchaser takes the property subject to her dower.^ 
 And even when she herself, by virtue of an order of the court, 
 has sold land as her husband's administratrix, and has said 
 nothing about her own right in it, it has generally been held 
 that her dower interest was not precluded.^ When, however, 
 she is the trustee of the purchaser of her husband's realty, or 
 stands in a fiduciary relation to such purchaser, so that the 
 relationship ^er se or any other circumstance of the case makes 
 it her duty to reveal to him all the facts that she knows con- 
 cerning the title, her silence when she has an opportunity to 
 speak produces an estoppel in pais and deprives her of dower. ^ 
 Instances of the form of estoppel now under consideration 
 are found, also, in those cases in which a married woman's an- 
 cestor has conveyed her property with covenant (such as that 
 of warranty) which she as his heir, having received assets from 
 him, is bound to make good, and where she herself has conveyed 
 her husband's realty with warranty. In order to avoid circuity 
 of action, the courts have denied dower in property that has 
 come through such an ancestor and is affected by such a cove- 
 nant.* This latter form of estoppel is in one view more nearly 
 an estoppel by deed ; but, being applied as it is by the courts to 
 prevent circuity of action, it may be mentioned here for the 
 
 sake of completeness. 
 
 § 506. Fifth — Dower Barred by Eminent Domain, or Other 
 Exercise of Sovereignty. — In the reign of Henry III., the Great 
 Charter of King John was so amended as to preclude a wife 
 from taking dower in a castle belonging to her husband and 
 used or designed for warlike operations.^ Here we see fore- 
 shadowed the rule, subsequently followed without serious ques- 
 tion by both the English and the American courts, which 
 removes all right of dower from property passing from a hus- 
 
 nnjust, or subject her to damages equal ner, Dower, ch. xi. § 37 ; §§ 386-389, 
 
 to its value if claimed, where the court, supra. 
 
 to avoid circuity of action, would refiTse * Torrey v. Minor, 1 Smedes & M. 
 
 the claim." 1 Wash. R. P. (6th ed.) Ch. (Miss.) 489 ; Usher c Richardson, 
 
 8 435. 29 Me. 415 ; Russ v. Perry, 49 N. H. 
 
 i Hunt V. ReiUy, 24 R.' I. 68 ; Mad- 547 ; Rosenthal v. Mayhugh, 33 Ohio St. 
 
 son V. Madson, 69 Minn. 37. 155 ; Magee v. Mellon, 23 Miss. 585 ; 2 
 
 2 Sip y. Lawback, 17 N. J. L. 442 ; Scribner,Dower,ch. xi.§§21, 22. Com- 
 Lawrence v. Brown, 5 N. Y. 394 ; Owen pare, Marvin v. Smith, 46 N. Y. 571 ; 
 V. Slatter, 26 Ala. 547. Jackson v. Vanderheyden, 17 Johns. 
 
 3 Laflt four preceding notes ; 2 Scrib- (N. Y.) 1 67. 
 
 6 2 Co. Inst. 17. 
 
 46 
 
722 ESTATES IN EBAL PROPERTY. 
 
 band to the crown, or state, or municipality, or corporation, or 
 other institution taking it by virtue of the authority of the state.^ 
 It has been heretofore explained that, since an inchoate right 
 of dower is not property, but only a status of the wife or a 
 chance to acquire property in the future, the state may take it 
 without being required by its constitution to make compensation 
 to tlie wife.^ It is, accordingly, held everywhere that property 
 taken by eminent domain during the life of the husband is ac- 
 quired free and clear of the wife's dower.^ And this is true, 
 whether the power is exercised by the state directly, or by one 
 of its departments or instrumentalities, or by a railroad com- 
 pany or other corporation or institution on which the right of 
 eminent domain has been conferred.* After the death of the 
 husband, the widow's dower interest, having then become prop- 
 erty, must of course be paid for, if taken by any of these 
 methods.^ Again, if the husband dedicate land to the state, or 
 to a city, or to a railroad company, for public or quasi-public 
 purposes, even though in that case the passing of the land from 
 him is not in invitum, the wife is thereby deprived of her dower.® 
 It is the public purpose, and not the manner of passing of prop- 
 erty, that is kept constantly in mind by the courts in such cases. 
 So, when real property is sold because of non-payment of taxes, 
 assessments, water rates, or other public charges made liens 
 thereon, it is necessarily conveyed free of all dower rights and 
 interests.'' A state and its departments must have, and do 
 exercise, a right to shut out dower in all such instances.^ 
 
 1 1 Scribner, Dower, ch. xxvii. § 1 . " The rule fairly deducible from these 
 
 ^ § 565, supra. authorities would seem to exclude dower 
 
 ^ Moore v. City of N. Y., 8 N. Y. 110 ; in all cases where lands are dedicated to 
 
 Matter of New York & Bklyn. Bridge, the public for a legitimate purpose, and 
 
 89 Hun (N. Y.), 219. French v. Lord, the public have acquired a right to the 
 
 69 Me. 537 ; Duncan v. City of Terre enjoyment thereof, ^ or where they are 
 
 Haute, 85 Ind. 104. lawfully appropriated in virtue of the 
 
 * Ibid. ; 1 Scribner, Dower, ch. xxvii. right of eminent domain. The reason- 
 
 § 6. ing of the courts appears to apply as 
 
 ^ §§ 177-180, supra. well where lands are granted and used 
 
 " A conveyance to a railroad com- for public parks, public libraries, or 
 
 pany, for example, of a right of way other public use in a like character, as 
 
 through the grantor's land, and of as where th&j are devoted to the purposes 
 
 much land adjacent to such way as may of a market place or a public highway." 
 
 be necessary for the construction of the 1 Scribner, Dower, ch. xxvii. § 7. 
 
 road, is a dedication to public use, and ' Jones v. Devore, 8 Ohio St. 430; 
 
 the grantor's widow is deprived of dower Bidwell v. Greeashield, 2 Abb. N. C. 
 
 in the land so conveyed, though she (N. Y.) 427 ; 2 Scribner, Dower, ch. xi. 
 
 did not join in the deed. Venable u. § 33. 
 
 Wabash R. Co., 112 Mo. 103 ; Baker v. * Last two preceding notes. 
 
 Atchison & T. R. Co., 122 Mo. 396. 
 
HOW DOWER MAY BE LOST OR BARRED. 723 
 
 The apparent injustice to a wife, in having her inchoate right 
 of dower taken from her without compensation in either of 
 these cases, is obviated \)y her compensatory right in all, or 
 some portion, of the proceeds of the property. Thus, when the 
 husband's realty is taken by eminent domain, or conferred upon 
 the public by dedication, the compensation paid to him is equit- 
 ably converted (or reconverted) into realty, so that she may 
 assert her dower right against it as between herself and her 
 husband.i And the same is true as to any surplus moneys 
 received from a sale of lands for taxes or other public charges.^ 
 Her right in such moneys, as representing the real propei'ty 
 taken, has been heretofore explained.^ 
 
 § 507. Sixth — Dower Barred by Lapse of Time — Statute of 
 Limitations. — Strictly at common law, there is no time limit 
 on the right of a widow to claim dower in the real property of 
 which her husband was properly seised during the coverture. 
 The general statutes of limitations, moreover, which confer 
 title on a disseisor after a designated period of adverse holding 
 of the land (usually twenty years), are declared in some states 
 not to apply to a widow's dower not yet assigned, because, the 
 widow never having been seised, he who holds the property is 
 not actually a disseisor as to her. In other words, in such juris- 
 dictions the tenant of the freehold, who has refused or failed to 
 admeasure her dower land, has no adverse possession against 
 her except as his holding is made adverse by positive statutes.* 
 But, in other states, the general statute of limitations applies to 
 her demand of dower.^ By the Statute 3 and 4, Wm. IV. ch. 
 27, it is expressly provided that the widow's dower shall be 
 barred by her failure successfully to assert her right within 
 twenty years after the death of her husband. And the same 
 form of statute is found in most of the American states, but 
 with some differences as to the periods.^ Thus, in Kansas the 
 
 1 Matter of New York & Bklyn. * Jones v. Powell, 6 Johns Ch. 
 Bridge, 75 Hun, 558, 89 Hun (Ni Y.), (N. Y.) 194; Miller v. Pence, 132 111. 
 219 ; Citizens' Sav. lilc. v. Mooney, 26 151 ; Barnard v. Edwards, 4 N. H. 107 ; 
 N. Y. Misc. 67; Wheeler v. ICirtland, , Barkadale v. Garrett, 64 Ala. 280. 
 27 N. J. Eq. 534, See Clifford u. Where no statute applies, the widow's 
 Kampfe, 147 N. Y. 383. long delay in suing for her dower may, 
 
 2 2 Scribner, Dower, ch. xx. §§ 2, 5 ; on the ground of her laches, preclude 
 1 Wash. R. P. (6th ed.) § 449. her from obtaining relief in equity. 
 
 8 § 504, supra. Barnard r. Edwards, 4 N. H. 107; Gil- 
 < ConoTerv. Wright, 6 N. J. Eq. 613; bert r. Keynolils, 51 111. 513; Barksdale 
 Care v. Keller, 77 Pa. St. 487 ; Durham v. Garrett. 64 Ala. 280. 
 V. Angier, 20 Me. 242 ; Long v. Kansas '^ 2 Scribner, Dower, ch. xx. ; 1 Stim. 
 City Stock Yards Co., 107 Mo. 298; 1 Amer. Stat. L. § 3271. For a few in- 
 Wash. B. P. (6th ed.) § 449. stances of retention of the common-law 
 
724 ESTATES IX REAL PROPERTY. 
 
 period is only five years ; in Georgia seven ; in Alabama, in 
 favor of the husband's alienee, only three years ; ^ while in New- 
 York, New Jersey, Massachusetts, and most of the states it is 
 twenty years.^ (a). 
 
 It has been logically held that, since the widow's claim of 
 dower is essentially against the land rather than against the 
 tenant of the f reeliold, the statutory periods run, and her action 
 for dower becomes barred, even though such tenant is out of 
 the state a part or all qf the time designated by the statute.^ 
 
 The general rule is that the statute of limitations can not 
 begin to run against a woman's claim of dower until after 
 the death of her husband.* But it is to be carefully noted, 
 that, if anything occur to give the wife an immediate cause of 
 action based on her dower right, even while her husband is 
 
 (a) The New York statute is as follows : " An action for dower must 
 be commenced by a widow, within twenty years after the death of her hus- 
 band ; but if she is, at the time of his death, either : 1, within the age of 
 twenty-one years; or 2, insane; or 3, imprisoned on a criminal charge, 
 or in execution upon conviction of a criminal offence, for a term less than 
 for life : the time of such a disability is not a part of the time limited by 
 this section. And if, at any time before such claim of dower has become 
 barred by the above lapse of twenty years, the owner or owners of lands 
 subject to such dower, being in possession, shall have recognized such claim 
 of dower by any statement contained in a writing under seal, subscribed 
 and acknowledged in the manner entitling a deed of real estate to be re- 
 corded, or if by any judgment or decree of a court of record within the 
 same time and concerning the lands in question, wherein such owner or 
 owners were parties, such right of dower shall have been distinctly recog- 
 nized as a subsisting claim against said lands, the time after the death of 
 her husband, and pi'evious to such recognition by judgment or decree, is 
 not a part of the time limited' by this section." N. Y. Code Civ. Pro. 
 § 1596, which was originally 1 R. S. 742, § 18. This statute has been quite 
 strictly construed. And it has been held that, even though the owner of 
 the laud subject to the dower is out of the state during most or all of the 
 twenty years after the husband's death, the widow's dower becomes barred 
 in that period. Her action for dower is against the land. The owner can 
 be served by publication, and so § 401 of the Code of Civil Procedure, 
 which suspends the running of the statute in most cases when the defend- 
 ant is out of the state, does not apply. Wetyen i'. Fick, 178 N. Y. 223. 
 See Kyle v. Kyle, 67 N. Y. 400 ; Gerard, Titles to R. E. (4th ed.) p. 151. 
 
 rule see Chew v. Farmers' Bank, 2 Md. 3 Wetyen v. Fick, 178 N. Y. 223. 
 
 Ch. 231 ; Simonton v. Houston, 78 N. C. ^ Durham v. Angier, 20 Me. 242 ; 
 
 408 ; Spencer v. "Weston, 1 Dev. & Bat. Kyle v. Kyle, 67 N. Y. 400, 407 ; Moore 
 
 (N. C.) 213. V. Frost, "3 N. H. 126; 2 Scribner, 
 
 1 1 Stim. Amer. Stat. L. § 3271. Dower, ch. xx. § 28. ~ \ 
 
 2 Ibid.; N.Y. Code Civ. Pro. §1596; 
 Wetyen v. Fick, 178 N. Y. 223. 
 
HOW DO WEB MAY BE LOST OR BARRED. 725 
 
 living, the oj-dinary statute of limitations may run against 
 such cause of action and so bar all her dower right and inter- 
 est, though some or all of the period be during the life of her 
 husband.i This is clearly illustrated by the foreclosure of a 
 mortgage which is superior to her dower right (such as a mort- 
 gage on the husband's laud before her marriage, or a purchase 
 money mortgage given by him) ,2 and a failure of the plaintiff 
 properly to make her a party to the action. Such a foreclosure 
 leaves her the right to redeem the land from the mortgage in- 
 debtedness, and makes the purchaser as to her a mortgagee in 
 possession.^ The statute of limitations then at once begins to 
 run against her equity of redemption, and in favor of the pur- 
 chaser; and if she fail to exercise her right to redeem within 
 the statutory period thereafter, usually twenty years, such right, 
 and consequently all her dower claim in the property, are for- 
 ever barred.* And this will be true whether or not her hus- 
 band is still alive.° The cases that have involved this result 
 have thus far dealt with mortgages ; but the principle must be 
 the same as to the foreclosure of a mechanics' lien, or judg- 
 ment, or any other lien or claim which takes precedence of the 
 wife's dower. 
 
 § 508. Seventh — Dower Barred by Paramount Title or In- 
 terest — Dos de dote peti non debet — Dow^er in Qualified Fees. — 
 As is true in regard to any interest or claim in real property, 
 so a dower right may be defeated wholly or partially, or post- 
 poned, by a paramount ownership.® The instances in which 
 this occurs are naturally divided into three groups, namely ; 
 those cases in which the husband's assumed title and owner- 
 ship are wholly or partly defeated ; those in which a prior 
 dower right stands in the way of a subsequent one ; and 
 those which present important questions arising from the 
 nature of the fee owned by the husband. . Each of these groups 
 is to be briefly discussed. 
 
 Wlien the husband's seisin and title are defeated, either 
 before or after his death, by a paramount claimant and owner, 
 even though the husband thought that he owned the land, her 
 dower falls with his interest' So, if the husband's realty be 
 
 1 Mackenna v. Fidelity Trust Co., ^ Mackenna 1^. Fidelity Trust Co., 
 184 N. Y. 411 ; Campbell v. Ellwauger, 184 N. Y. 411. 
 
 81 Hun, 259, and cases cited. ♦ Last three preceding notes, 
 
 2 For the four classes of mortgages ^ Ibid. 
 
 that have priority over dower, see §480, ^ 2 Crabb, R. P. § 1177. \ 
 
 supra. ' Emerson u. Harris, 6 Met. (Mass.) 
 
726 ESTATES IN REAL PROPERTY. 
 
 sold on execution resulting from an indebtedness incurred and 
 made a lien on the land before the marriage, or incurred by both 
 the husband and the wife so as to become a lien on the land, or 
 accruing because of an indebtedness of the husband's ancestor 
 from whom he inherited the land, the wife's dourer is thereby 
 defeated.^ And, when the husband's real property is conveyed 
 either by him or by some other person as the donee of a power 
 emanating from a donor who held the land free of all dower 
 right, the purchaser acquires it unaffected by the wife's dower .^ 
 As will be more fully explained hereafter, the execution of such 
 a power makes the title thereby acquired relate back to the 
 creation of the power, and thus it goes around and shuts out all 
 subsequently accruing claim of dower.' These are the most 
 conspicuous instances of the destruction or barring of dower 
 by paramount title. It hardly needs to be added that, if 
 by any of these or similar means any part of the husband's 
 realty is taken from him, or from his apparent successors in in- 
 terest, her dower is proportionately reduced.* 
 
 Dos de dote peti non debet. This rule — that dower shall not 
 be sought out of dower — solves many conflicting claims of dif- 
 ferent widows in the same pieces of real property.^ She whose 
 right first accrues may insist that it shall not be interfered 
 with by her whose right is subsequent ; ® and the heirs of the 
 husband, whose widow is demanding dower, may frequently 
 prevail against her by proving that the existence of a prior 
 dower interest prevented her husband from acquiring such a 
 seisin as is requisite to the validity of her claim.'^ One or both 
 
 475 ; McClure v. Fairchild/ 153 Pa. St. Tate, 39 N. C. 264 ; 1 Scribner, Dower, 
 
 411; Glos V. Gerrity, 190 111. 545; ch. xiv. §§ 9-12. 
 
 2 Crabb, E. P. § 1177; 4 Kent's Com. » § 940, infra. 
 
 p. *48. ' Last four prece4ing notes. The 
 
 1 Sandford v. McLean, 3 Paige taking of the property from the hus- 
 (N. Y.), 117; Brown «. Williams, 31 band must be 6oiia_/!We, in order to bar 
 Me. 403 ; Mitchell v. Mitchell, 8 Pa. St. or diminish dower. When it is by col- 
 126 ; Greene v. Greene, 1 Ohio, 541 ; lusion with him, it leaves the wife's 
 
 1 Scr^)ner, Dower, ch. xxxviii. §§ 29- dower unaffected. Stat. Westm. ii. , 
 
 33. Compare Green v. Cansey, 10 Ga. , ch. 4 ; N. Y. L. 190^, ch. 52, § 203 ; 
 
 435. Bat sale on execution, on a debt 1 Stim. Amer. Stat. L. § 3249 ; 4 Kent, 
 
 incurred by the husband alone, daring Com. p. * 48 ; § 496, supra. 
 
 coverture does not afEect dower. Mar- * Glanv. Lib. 6 ch. 16 ; Co. Lit. 31 a; 
 
 tin V. Abbott, 95 N. W. Rep. 356 (Neb.) ; 4 Dane, Abr." 67i ; Bac. Abr. Dower & 
 
 Jewett V. Peldheiser, 68 Ohio St. 523; Jointure, E. 
 
 § 496, supra. « Ibid. 
 
 2 Ray V. Pung, 5 B. & Aid. 561 ; ' Co. Lit. 31 a; Safford v. Safford, 
 Greene w. Greene, 1 Ohio, 541 ; Mitchell 7 Paige (N. Y.), 259 ; McLeery v. Mc- 
 V. Mitchell, 8 Pa. St. 126; Weir v. Leery, 65 Me. 172; next two succeed- 
 ing notes. 
 
HOW DOWER MAY BE LOST OR BARRED. 727 
 
 of these two propositions — that a subsequent claim of dower 
 shall not intrude on a prior one, and that the existence of the 
 prior interest may preclude such seisin as is requisite to the 
 subsequent dower — supply the explanations of tiie questions 
 presented by the two kinds of cases which naturally emerge 
 from the maxim dos de dote peti non debet} Each of those 
 kinds of cases can be best understood by a brief illustration. 
 
 First — -A and B are ancestor and heir, or devisor and de- 
 visee, and both are married. A dies, leaving a widow ; and a 
 piece of land that A owned in fee simple descends, or is devised, 
 to B. B acquires it, subject to the dower of A's widow, which 
 is accordingly assigned to her. Subsequently B dies, and his 
 widow demands dower in the same property. She must be en- 
 dowed out of the two-thirds left after the assignment of dower 
 to A's widow ; that is, B's widow acquires a life interest in 
 two-ninths of the entire piece.^ The essential feature of this 
 illustration is the fact that, when dower was assigned to A's 
 widow, her title related back to the death of A and was a con- 
 tinuation of his.^ Therefore, B was never seised of the portion 
 of the land admeasured to and held by A's widow, and tho'ugh 
 A's widow die before B's, B's widow can never have any more 
 of the land for her dower.* A's widow's dower was always in 
 the way of the dower of B's widow, so long as A's widow lived ; 
 and the existence of the first dower, actually assigned, prevented 
 B from having such seisin as could ever afford dower in his 
 wife in that part of the property.^ It is to be carefully noted 
 that an actual assignment of her dower to the older widow, 
 before the assignment of that of the younger, is essential- to 
 this result. The mere existence of an unenforced right of 
 dower in A's widow does not affect the dower of B's 
 
 1 The last of these two propositions 1 Paige (N. Y.), 634 ; Durando v. Du- 
 is another method, and perhaps a clearer rando, 23 N. Y. 331; Leavitt v. Lam- 
 one in this connection, of stating the prey, 13 Pick. (Mass.) 382; Eldredge t'. 
 rule that there can be no dower in a re- Forrestal, 7 Mass. 253 ; Reitzel v. Eck- 
 version or remainder after a prior free- ard, 65 N. C. 673 ; 1 Scribner, Dower, 
 hold estate, hecause the husband who ch. xv. §§ 7-22. 
 owns such a future interest has no seisin. ^ §§ 464, 467, su/)ra. 
 § 482, supra. " ' Dower ought not to be * Last preceding note but one ; How- 
 sought out of dower ' — is an old and ells i;. McGraw, 97 N. Y. App. Div. 460, 
 familiar maxim of the law, so closely 464, a case of eui-tesy, but resting on 
 related to the law excluding dower from the same principle; Reynolds v. Rey- 
 reversionary estates, that it is difficult nolds, 5 Paige (N. Y.),,161 ; McLeery 
 to separate them." 1 Scribner, Dower, v. McLeery, 65 Me. 172 ; Stahl v. Stahl, 
 ch. XV. §7. 114 111.375. 
 
 ^ Co. Lit. 31 a; Dunham v. Osborn, ' Ibid. 
 
728 ESTATES IN REAL PROPERTY. 
 
 widow.i But the somewhat anomalous rule is settled that, if 
 after the death of both husbands B's widow have her dower as- 
 signed first, while it must yield (one-third) to A's widow when 
 her dower is thereafter assigned, yet if A's widow die before B's 
 the latter may then successfully demand her original tiiird of 
 the entire tract.^ When, however, A's widow has her dower 
 assigned first, whether before or after the death of B, her seisin 
 relates bacic to the death of her husband, and so precludes B's 
 widow from ever acquiring dower from more than two-thirds 
 of the entire tract of land.^ 
 
 Second — A and B are vendor and vendee, and both are 
 married. A conveys the land to B, without A's wife doing any- 
 thing to release her inchoate right of dower. B owns the land 
 and is seised of it subject to the inchoate right of dower in A's 
 wife and the inchoate right of dower of his own wife. A dies, 
 and one-third of the land is assigned to his widow for her dower. 
 Subsequently, B dies and his widow demands dower in the same 
 property. She must accept one-third of the portion left after 
 assignment of the dower to A's widow ; that is, B's widow gets 
 a life interest in two-ninths of the entire piece.* But in this 
 case, and here is where it differs radically from the case stated 
 in the preceding paragraph, B was seised of the entire piece of 
 property before A died, and the inchoate right of dower of B's 
 wife attached to it all, subject, however, to the dower right of 
 A's wife. The only obstacle in the way of the claim of B's 
 wife is the dower of A's wife. Therefore, when A's widow dies, 
 B's widow may have a new assignment and acquire enough ad- 
 ditional to make one-third of the entire property.^ The differ- 
 ence between this case and that in which A and B were ances- 
 tor and heir, or devisor and devisee, is thus apparent.^ 
 
 As in the preceding illustration, so here, where there are 
 
 1 Ibid.; Null W.Howell, 111 Mo. 273; (N. Y.) 598; Eeitzel v. Eckard, 65 
 Robinson v. Miller, 2 B. Mon. (Ky.) N. C. 673 ; Steele u. La Frambois, 68 
 284. For eases in which a judgment or 111. 456. 
 
 decree has been held to be equivalent ' Last four preceding notes. 
 
 to an assignment, see the next para- ■* Co. Lit. 31 a; Duraudoy. Durando, 
 
 graph of the text. 23 N. Y. 331 ; 1 Scribner, Dower, ch. 
 
 2 " The reason of this diversity " — to xv. §§ 7-22. First note of preceding 
 use the quaint language of Coke — is paragraph. 
 
 because the junior widow " had in it an ^ Co. Lit. 31 a, b ; Bustard's Case, 
 
 estate for term of Acr life, and the es- 4 Co. Kep. 122 a; Stahl u. Stahl, 114 
 
 tate for the life of the grandmother is 111. 375. 
 
 lesser in the eye of the law as to her ^ Ibid. ; 1 Scribner, Dower, ch. xv. 
 
 than her own life." 1 Scribner, Dower, §§ 23-26. 
 
 ch. XV. § 11 ; In re Cregier, 1 Barb. Ch. 
 
HOW DOWER MAY BE LOST OR BARRED. 729 
 
 two widows thus successively claiming dower in the same prop- 
 erty, the prior claim will not interfere with the subsequent one, 
 unless there has been an assignment of dower to the former 
 claimant.-^ But where an actual assignment is impracticable, 
 or suspended for a time for the adjustment of different rights, 
 as for example for proceedings in partition, foreclosure pro- 
 ceedings, etc., the judgment or decree of a competent court, 
 declaring a widow actually entitled to dower land, has been 
 ordinarily treated as equivalent to a specific admeasurement of 
 such land.^ It is also to be noted that, if the first claimant of 
 dower release her interest at such time and in such manner as 
 to let the husband of the second claimant become properly 
 seised, the prior dower right is thus removed as an impediment 
 to the subsequent one.* And in conclusion it is to be observed 
 that the same principles here explained are to be applied, in 
 determining the successive rights of any two or more of the 
 wives or widows demanding dower in the same piece of realty.* 
 Boiver in qualified fees. In fees that are not absolute and 
 unqualified, paramount rights frequently exist which may be 
 applied to bar dower. These have been heretofore explained 
 in the discussion of the kinds of interests in which curtesy or 
 dower may exist,^ but they may also be advantageously sum- 
 marized here. Dower attaches, of course, to an estate in fee 
 simple or fee tail. In an estate in fee on condition there is no 
 dower (nor curtesy) that will survive a breach of the condition 
 and re-entry by the grantor or his heirs.^ In a fee on limita- 
 tion there is no dower (nor curtesy) that will survive the hap- 
 pening of the event which terminates the limitation.^ In a fee 
 on conditional limitation there may be dower (or curtesy) for 
 
 ^ Fourth note, above. widow of C, of one-third of what re- 
 
 2 Dunham v. Osborn, 1 Paige (N. Y.), mains after deducting the dower of the 
 
 634 ; Safford v. Safford, 7 Paige (N. Y.), wives of A and B ; and so on to the wife 
 
 259 ; 1 Scribner, Dower, ch. xv. §§ 12- of D. And if we suppose the estate to 
 
 1 4 consist of nine acres, the wife of A would 
 
 8 Elwood V. Klock, 13 Barb. (N. Y.) be endowed of three acres ; the wife of 
 
 50 ; Atwood v. Atwood, 22 Pick. (Mass.) B, of two acres ; the wife of C, of one 
 
 283 ; I Scribner, Dower, ch. xv. §§ 21, acre and a third ; and the wife of D, of 
 
 22 oue-third of the remaining two acres 
 
 * " If A sells to B, and B to C, and and two-thirds." Reeves' Domestic Re- 
 
 to D, and D to E, and the husbands all lations, 58 ; 4 Kent's Com. p. *64, 
 
 die, leaving their respective wives liv- note (f) ; 1 Scribner, Dower, ch. xv. 
 
 ing, the widow of A is entitled to be en- § 20. 
 
 dowed of one-third, of the estate.; the « §§453, 468, supra. 
 
 widow of B is entitled to be endowed of ' Ibid, 
 
 one-third of what remains, after deduct- " Ibid, 
 ing the dower of the first wife; the 
 
730 ESTATES IN REAL PROPERTY. 
 
 the wife (or husband) of the first owner, and the happening of 
 the event and the shifting of the property to the second owner 
 do not interfere with such dower (or curtesy) — such a right 
 exists in the wife or husband of the first owner of a fee on con- 
 ditional limitation, in the same manner as if it were a fee 
 simple.^ 
 
 § 509. Eighth — Dov7er Barred by Jointure — Provisions in 
 lieu of Dower. — A jointure, or other provision in lieu of dower, 
 may result iii_a_aom.plete-ba,E.-QL,all_dower interest under some 
 circumstances, and under others it may put the widow to her 
 " election " betweenf the attempted gift and her dower claim. 
 The next succeeding chapter is devoted to a discussion of these 
 methods of affecting the property rights of a wife or widow ; 
 and, therefore, nothing is called for here beyond the terse 
 statement that one of the methods of losing or destroying 
 dower is by means of a gift, or settlement, or provision, to 
 take its place. 
 
 1 Ibid. 
 
CHAPTER XXXV. 
 
 (e) JOINTURE — PROVISIONS IN LIEU OF DOWER. 
 
 § 510. Nature and kinds of join- 
 ture. 
 
 First — Legal Jointure — Befjojr e 
 ^^^^LOrdage^ — After Marriage. 
 
 § 511. Development of legal 
 jointure. 
 
 § 512. Requisites of legal jointure 
 — as a complete bar to dower — to 
 require the widow to elect between 
 it and dower. 
 
 Second — Equitable Jointure — Be- 
 fore Marriage — After Marriage. 
 
 § 513. Development of equitable 
 jointure. 
 
 § 514. Requisites and distinctive 
 characteristics of equitable joiuture. 
 
 § 515. Jointure in the United 
 States — Usually equitable in form. 
 
 § 516. Failure of jointure or pro- 
 vision for wife — f orf eitur e. 
 
 Third — Testamentary Provision in 
 Lieu of Dower. 
 
 § 517. General nature and effects 
 of such a gift. 
 
 § 518. A gift by will to testator's 
 wife is presumed to be bounty. 
 
 § 519. How the husband's intent 
 to require an election may be shown. 
 
 § 520. Widow's election between 
 dower and a settlement in lieu 
 thereof — Requisites. 
 
 § 521. Time within which the 
 widow may elect. 
 
 § 522. How the widow's election 
 must be made — How evidenced. 
 
 § 523. Effects of the widow's 
 election between dower and a settle- 
 ment or testamentary gift. 
 
 § 524. Summary, as to provisions 
 in lieu of dower. ' ' 
 
 § 510. Nature and Kinds of Jointure. — The employment of a 
 provision, made by or on behalf of the husband for the wife, to 
 take the place of dower, is almost as old as common-law dower 
 itself. Such a provision is ordinarily called a jointure. Tak- 
 ing advantage of uses, English husbands began early to de- 
 prive their wives of dower ; and then the parents or relatives 
 of prospective brides retaliated by demanding settlements. 
 Those settlements developed, first into legal jointures, and sub- 
 sequently they took also the form of equitable jointures ; and 
 lastly, husbands resorted to wills, testamentary provisions, to 
 interfere wholly or partly with their wives' endowments.^ A 
 somewhat comprehensive view of the outcome requires discus- 
 sions of, First. Legal Jointure — Before Marriage — After 
 
 1 4 Kent, Com. pp. *54-*59 ; 2 Scrlbner, Dower, ch. 15 ; infra, residue of this 
 chapter. 
 
732 ESTATES IN REAL PROPERTY. 
 
 Marriage ; Second. Equitable Jointure — Before Marriage — 
 After Marriage; Third. Testamentary Provisions in Lieu of 
 Dower. These will be dealt with in the order named. 
 
 First. Legal Jointure — Before Marriage — After Marriage. 
 
 § 511. Development of Legal Jointure. — Soon after uses 
 were employed generally in England, prospective husbands be- 
 gan to convey their property before marriage, to other persons, 
 to hold for the use of such husbands after marriage. And, since 
 it was then held that there was no dower in a use, this method 
 of dealing with the property effectually barred wives of all in- 
 terest in their husband's realty .^ The parents or other rela- 
 tives of the prospective wives soon commenced to demand that 
 some compensatory provision should be' made for the women 
 about to marry. This demand was complied with by settle- 
 ments, ordinarily of real property, made before the marriage. 
 The intended husband conveyed some of his realty to a feoffee, 
 for himself and his intended wife jointly, for life or in fee tail ; 
 the provision being inserted in the instrument, or implied by 
 law if not so inserted, that the ultimate ownership should 
 belong to the survivor, at least for life.^ This custom of con- 
 veying jointly gave the name to the settlement.^ It was soon 
 held, also, that a provision for the intended wife alone, to take 
 effect in possession at the death of the husband, would accom- 
 plish the same result. And the name " jointure " was re- 
 tained for all of the provisions for the wife, thus made, whether 
 settled on her alone, or on him and her jointly.* 
 
 In preparing the Statute of Uses (27 Henry VIII. ch. 10),^ 
 it was plainly apparent to its fraraers that, since its purpose 
 was to execute all uses and thus to restore the legal estates to 
 those who owned the uses, the husbands, who had provided for 
 their wives by jointures before marriage, would by virtue of the 
 statute regain their legal estates; the wives would thereupon 
 become entitled to dower in those estates ; and thus the wives 
 
 1 2 Blackst. Com. pp. *331, *332; tenements to take effect in profit or pos- 
 § 301, supra. session presently after the death of the 
 
 2 Vernon's Case, 4 Co. Rep. 1 ; husband for the life of the wife at 
 Digby, Hist. LawR. P. (5thed.) p. 331. least." Co. Lit. 36 b; Digby, Hist. 
 
 8 Ibid. Law R. P. (5th ed.) p. 552, n.; 2 Scrib- 
 
 * A jointure was defined by Sir Ed- ner, Dower, ch; xt. §§ 1, 2. 
 
 ward Coke as " A competent livelihood ^ See § 302, supra. 
 
 of freehold in the wife of lands and 
 
JOINTURE — PROVISIONS IN LIEU OP DOWER. 733 
 
 would be doubly provided for, receiving, as ^hey would, both 
 jointure and dower.i In order to obviate this inequality, it was 
 provided by section 4 of the statute of uses that any wife, on 
 whom a jointure had been properly settled before marriage as 
 required by the statute, should be thereby deprived of dower in 
 all the remaining real property of her husband.^ And sections 
 5 and 7 of the statute further enacted that, in case such settle- 
 ment were made during coverture, she might elect between it 
 and dower, as is hereafter more fully explained ; and that if 
 she were evicted or otherwise deprived of her jointure or any 
 part thereof, she should be entitled to be endowed to an extent 
 to compensate her for the loss.^ Thus legal jointure, as it was 
 thereafter recognized and employed in England,, originated in 
 the so-called statute of jointures, which comprises sections 4, 5, 
 and 7 of the statute of uses.* 
 
 § 512. Requisites of Legal Jointure — as a Complete Bar to 
 Do'wer — ■ to Require the Widow to Elect Betvsreen it and Do-wer. — 
 The settlement on the intended wife, in order to comply with 
 the requirements of the statute of jointures, might be made 
 either by the prospective husband, or by some other person for 
 him.* The amount or proportion of property so to be bestowed 
 upon her is not designated by the statute. This could be con- 
 trolled, of course, by the woman before marriage, by her refusal 
 to marry if the settlement were not adequate. There are 
 however, five absolute requisites to such jointure. These are : 
 FirBt, the property settled shall be real — lands, tenements, or 
 hereditaments ; Second^ the settlement must be so made as to take 
 effect in possession immediately on the death of the husband — 
 she must be enabled to begin to occupy and enjoy the land at 
 his death, if not before ; Third, it must be for her life at least — 
 a greater estate would answer the requirement of the statute, but 
 an estate for years, or other interest less than one measured by 
 her own life, would not do so ; Fourth, the legal estate and in- 
 terest in the land must be given directly to her, and it would 
 not suffice to settle it in trust for her; Fifth, in the instrument 
 of conveyance, it must be clearly declared that the provision is 
 in full settlement and satisfaction of her dower.^ 
 
 1 § 302, supra; Vernon's Case, I Co. Scribner, Dower, ch. 1, 2, 26 ; 1 Roper, 
 Kep., 1 b, 2 a ; 2 Blackst. Com. p. *137. Husb. & W. 462. 
 
 2 Ibid. ; Digby, Hist. Law R. P. ^ Drury v. Drury, 2 Eden, 39. 
 (5th ed.) p. 351. * Co. Lit 36 b ; Vernon's Case, 4 Co. 
 
 8 Digby, Hist. Law R. P. (5th ed.) Rep. 1 ; Vance v. Vance, 21 Me. 364; 
 p_ 352. 2 Scribner, Dower, ch. xv. §§ 7-25. 
 
 * Last three preceding notes; 2 
 
734 ESTATES IN REAL PROPERTY. 
 
 A settlement or jointure that fulfilled all these requirements 
 might become an absolute bar to dower, or result in giving her 
 an election, according to the time when the settlement was 
 made. If it were properly made before marriage, and with her 
 knowledge or reasonable notice of its existence, it became an 
 absolute bar to dower.^ If, on the other hand, the husband 
 made the settlement during the coverture, then, as provided 
 by Section 7 of the statute, she might elect after his death to 
 accept the jointure and relinquish dower, or to insist on her 
 dower right and give up the proffered jointure.^ It may be 
 noted here generally that, except as the result of special local 
 statute, any settlement or attempted jointure made during 
 coverture does not produce an absolute bar to dower, but 
 only gives the widow a right to elect between it ,and dower.^ 
 The nature and requisites of such election, whenever it belongs 
 to her, are more fully explained hereafter.* 
 
 The fact is to be emphasized that legal jointure, as thus de- 
 veloped and still applied in England, if properly made before 
 marriage, is an absolute bar to dower, without any act or con- 
 sent on the part of the wife other than her marriage with 
 knowledge or means of knowledge of the existence of the set- 
 tlement.* In a few of the American states, such for example 
 as Maryland and Vermont, it is still possible to deprive her of 
 dower in this manner.^ But in most of the states, as is here- 
 after more fully explained, her express and unequivocal consent 
 to a settlement is usually an added prerequisite to its becoming 
 an absolute bar." (a) 
 
 (a) The New York Statute of Jointures is as follows : — " Where an 
 estate in real property is conveyed to a person and his intended wife, or 
 to the intended wife alone, or to a person in trust for them or for the 
 intended wife alone, for the purpose of creating a jointure for her, and 
 with her assent, the jointure bars her right or claim of dower in all the 
 
 1 Such a johiture for an infant wife, 2 Jbid.; Digby, Hist. Law R. P. 
 
 it seems, must be fair and reasonable. (5th ed.) p. 352. 
 
 " A pocket jointure, made upon a s Ibid.; McCartee v. Teller, 2 Paige 
 
 woman without her privity, or upon an (N. Y.), 556. 
 
 infant with her privity but without the * § 520, infra. 
 
 interposition of parents or guardians, 5 Last four preceding notes, 
 
 would be such an evidence of fraud as 6 Md. R. L. (1884) Art. 50, § 226; 
 
 woald be sufficient to condemn it." Vt. R. L. (1884) § 2219; 1 Stim. Amer. 
 
 Drnry v. Dniry, Wilmot's Opinions, Stat. L. § 3241 ; Vance t-. Vance, 21 
 
 177, 194, 202, 2 Eden, 39; Vernon's Me. 364. 
 
 Case, 4 Co. Rep. 1 ; 2 Scribner, Dower, ' N.-Y. L. 1909, ch. 52, §§ 197-199 ; 
 
 ch. XV. § 30 1 Stim. Amer. Stat. L. § 3241 ; 2 Scrib- 
 ner, Dower, ch. xv. § 31. 
 
JOINTURE — PROVISIONS IN LIEU OP DOWER, 735 
 
 Second. Equitable Jointure — Before Marriage — After 
 
 § 513. Development of Equitable Jointure. — Nothing but 
 real property can be the subject matter of legal jointure.^ After 
 the advantages of such settlements had been for some time 
 appreciated in England, a demand naturally arose for similar 
 adjustments with the use of other forms of property, and ulti- 
 mately the Court of Chancery permitted dower to be precluded 
 by settlements of either realty or personalty, made upon the 
 woman with her consent properly evidenced.^ In the famous 
 case of Drury v. Drury,^ it was decided that an annuity of 
 £600, conferred by an intended husband upon the infant 
 woman whom he was about to marry, and made with the con- 
 sent of herself and her father, resulted in equity in a complete 
 bar of her dower in the husband's real property ; and from the 
 time of that adjudication equitable jointure has been firmly 
 established.* Such jointure is a means of barring dower, 
 
 lands of the husband. The assent of the wife to such a jointure is evi- 
 denced, if she be of full age, by her becoming a party to the conveyance by 
 which it is settled ; if she be a minor, by her joining with her father or 
 guardian in that conveyance." " Any pecuniary provision, made for the 
 benefit of an intended wife and in lieu of dower, if assented to by her as 
 prescribed in the last section, bars her right or claim of dower in all the 
 lands of her husband." " If, before the marriage, but without her as- 
 sent, or, if after the marriage, real property is given or assured for the 
 jointure of a wife, or a pecuniary provision is made for her, in lieu of 
 dower, she must make her election whether she will take the jointure or 
 pecuniary provision, or be endowed of the lands of her husband ; but she 
 is not entitled to both." Real Prop. L. §§ 197-199, which were formerly 
 1 R. S. 741, §§ 9-12. See Akin v. Kellogg, 119 N. Y. 441; Lee o. Tower, 
 124 N. Y. 371. The contract must be in writing. And, because of the 
 close confidential relations of the parties, it will be examined by the courts 
 with the most careful scrutiny. There must be a valuable consideration 
 for her release of dower, and full disclosure to her of the facts relating 
 to the intended husband's property, and absolute fairness on his part. 
 Graham v. Graham, 143 N. Y. 573; Pierce v. Pierce, 71 N. Y. 154; Shel- 
 don u. Bliss, 8 N. Y. 31; Mundy v. Munson, 40 Hun, 304; Crousque v. 
 Quinn, 14 Abb. N. C. 9, note. And see Zachmann v. Zachmann, 201 111. 
 380; West v. Walker, 77 Wis. 577; Moran v. Stewart, 173 Mo. 207. 
 
 1 § 512, supra. Atk. 562, 563 ; McCartee v. Teller, 2 
 
 2 2 Scribner, Dower, ch. xv.§§ 33-35. Paige (N. Y.), 511; O'Brien v. Elliot, 
 « 2 Eden, 39. 15 Me. 125; Colbert v. Rings, 231 111. 
 * Ibid. ; Caruthers «. Caruthers, 4 404; Andrews v. Andrews, 8 Conn. 79; 
 
 Bro. Ch. 500 ; Hervey v. Hervey, 1 4 Kent, Com. p. *55. 
 
736 ESTATES IN REAL PROPERTY. 
 
 recognized in equity, and given general effe,ct also by the fact 
 that, when the settlement is properly made, that court will 
 issue an injunction when needed to restrain the enforcement 
 in law of any claim to dower in the husband's real property.^ 
 
 As in the case of legal jointure, so in that of equitable joint- 
 ure, one of two results may emerge according to the time of 
 the settlement. If properly made before marriage, it is a com- 
 plete bar to dower, being made so by an injunction if necessary 
 as above explained.'^ If made during coverture, it puts the 
 widow to her election, practically in the same manner as does a 
 legal jointure made during coverture.^ 
 
 § 514. Requisites and Distinctive characteristics of Equitable 
 Jointure. — The two esseijtial elements of distinction, between 
 legal jointure and equitable jointure, are that the latter may 
 employ property that is not real, and it requires the express 
 assent of the woman.* This assent may be made by her be- 
 coming a party to the instrument creating the jointure ; and in 
 some states, such as New York, Massachusetts, Michigan, and 
 Wisconsin, the statute requires that it shall be so made ; ^ or it 
 may be made by her proper execution ahd delivery of another 
 instrument for that purpose, or by some unequivocal act indi- 
 cating her intention.^ When she is an infant, the consent may 
 be executed for her by her father or guardian.^ 
 
 Since equitable jointure was created somewhat in derogation 
 of the strict requirements of the statute of jointures, it lias 
 always been carefully safeguarded by the court that brought it 
 into being. Because of the close confidential relation existing 
 between the contracting parties, moreover, it has always been 
 required that the settlement, in order to be a complete bar to 
 
 dower, shall be fair, adequate, and with the full knowledge and 
 
 / 
 
 I Ibid.; 1 Koper, Husb. & W. 486 ; 4 Ibid. ; Drury v. Drury, 2 Eden, 
 
 Atherly, Marriage Settlements, p. 553. 39 ; Caruthers v. Caruthers, 4 Bro, 
 
 ^ Last preceding note. Ch. 500 ; 4 Kent, Com. p. *55. 
 
 3 Last preceding section; Vernons' ^ N. Y. L. 1896, ch. 547, §§ 177, 
 
 Case, 4 Co. Rep. 1 ; Gosling k. Warhnr- 178; 1 Stim. Amer. Stat. L. §§ 3241, 
 
 ton, Cro. Eliz. 128 ; McCartee v. Teller, 3242. 
 
 2 Paige (N. Y), 511, 5.56; Newly v. « 2 Scribner, Dower, ch. xv. §§ 30-32. ' 
 
 Cox, 81 Ky. 58; Butts w. Trice, 69 Ga. ' Corbet c Corbet, 1 Sim. & St. 
 
 74; House !•. Fowle, 20 0r. 163; N. Y. 612; McCartee v. Teller, 2 Paige 
 
 L. 1896, ch. 547, §179; I Stim. Amer. (N. Y.), 511; N. Y. L. 1909, ch. 52, 
 
 Stat. L. § 3243; 2 Scribner, Dower, § 197; 1 Stim. Amer. Stat. L. § 3241 
 
 ch. XV. §§ 26, 27. See Hitner's Appeal, (3) ; 2 Scribner, Dower, ch. xv. §§ 67- 
 
 54 Pa. St. 110; Garbut «. Bowling, 81 81. 
 Mo. 214 ; Lively v. Paschal, 35 Ga. 
 218. 
 
JOINTURE — PROVISIONS IN LIEU OF DOWER. 737 
 
 voluntary acquiescence and assent of the prospective wife.^ If 
 it do not constitute a fair consideration for her attempted re- 
 lease of dower, the release can be set aside ; and if the man 
 fail to make full disclosure to her of the purpose and effects of 
 the contract, it is ineffectual.^ 
 
 § 515. Jointure in the United Stated Usually Equitable in 
 Form. — In most of the states of this country, the statutes 
 which provide for jointures authorize a settlement of either 
 real property or personalty, or prescribe generally any con- 
 sideration satisfactory to the woman, and require her to unite 
 in the instrument of settlement, or to express her assent in 
 some other unmistakable manner.^ (a) Thus, the form of the 
 ordinary American jointure is usually equitable ; but the effect 
 of the statute is generally that the jointure can be enforced as a 
 bar to dower in both law and equity, so that an injunction is 
 not demanded when she seeks dower at law.* It is frequently 
 stated by statute or adjudication that a " provision," or " settle- 
 ment," or "gift" may be accepted by the woman in lieu of 
 dower, etc., and the word jointure is omitted ; but the effect 
 of such statutes is the same as that of enactments which 
 directly declare that the provisions shall constitute jointures.^ 
 
 § 516. Failure of Jointure or Provision for "Wife — Forfeit- 
 ure. — When the settlement in lieu of dower, whether in form 
 a legal or an equitable jointure, fails wholly or partly, the 
 widow ceases to be bound thereby, and her right of dower 
 
 (a) The New York statute provides that: — " The assent of the wife 
 to such a jointure is evidenced, if she be of full age, by her becoming a 
 party to the conveyance by which it is settled ; if she be a minor, by her 
 joining with her father or guardian in that conveyance." Keal Prop. L. 
 § 197. See N. Y. note to § 514, supra. 
 
 1 Wilmot's Opinions, 194, 202; Roberts, 34 Me. 135 ; Johnson w. John- 
 Pierce •). Pierce, 71 N. Y. 154; Gra- son, 23 Mo. 561. Compare Freeland i;. 
 ham V. Graham, 143 N. Y. 573, 577; Freeland, 128 Mass. 509. See Andrews 
 Moran u. Stewart, 173 Mo. 207; Zach- v. Andrews, 8 Conn. 79; Forwood v. 
 mann v. Zachmann, 201 111. 380 ; West Forwood, 86 Ky. 114. 
 
 V. Walker, 77 Wis. 577. = N. Y. L. 1909, ch. 52, §§ 197-199 ; 
 
 2 Ibid. But it has generally been held 1 Stim. Amer. Stat. L. §§3241-3243; 
 in England thdt she is bound by her 4 Kent, Com. pp. *55-*57 ; 2 Scribner, 
 contract, though the amount of the Dower, § 36. 
 
 settlement be inadequate. Dyke u. * Ibid. 
 
 Kendall, 2 De Gex M. & G. 209 ; Cruise, ^ Ibid. ; Pierce v. Pierce, 71 N. Y. 
 
 Dig. tit.vii. ch. i. § 27. By the weight 154; Jenkins v. Holt. 109 Mass. 261; 
 
 of authority in this country, if the hus- Worrell v. Forsyth, 141 El. 22 ; Culber- 
 
 band fail to perform his" part of the son v. Culberson, 37 Ga. 296; Naill u. 
 
 agreement, it does not bar dower. Maurer, 25 Md. 532. 
 
 Sheldon v. Bliss, 8 N. Y. 31 ; Sargent v. 
 
 47 
 
738 ESTATES IN SEAL PROPERTY. 
 
 I 
 
 revives pro tanto} If, therefore, for any fraud or misrepre- 
 sentation of the husband or other party she be able to set aside 
 the jointure, she is at once restored to her dower right.^ It 
 has been said in a well-written opinion in New York that, if 
 she be induced by :^raud to accept a jointure worth less than 
 her dower, she may 1, keep what she got and sue for damages ; 
 or, 2, sue in equity to rescind the contract, offering to restore 
 what she has received ; or, 3, after the husband's death, sue 
 for the admeasurement of her dower.^ This is simply a type 
 of her remedies recognized in most jurisdictions. 
 
 On the other hand, in most states she may forfeit her joint- 
 ure (without regaining dower) by her own act, waiver, or 
 acquiescence. This law is frequently put into such a statutory 
 form as the following : " Every jointure, devise and pecuniary 
 provision in lieu of dower is forfeited by the woman for whose 
 benefit it is made, in a case in which she would forfeit her 
 dower." * (a) And the property designated in the jointure 
 agreement or settlement goes to those to whom it would 
 otherwise have gone on the ending of her interest therein by 
 her death.^ 
 
 Third. Testamentary Provision in Lieu of Dower. 
 
 § 517. General Nature and Effects of Such a Gift. — It was 
 explained above that, in the absence of statutory change, no 
 act or omission on the part of the husband alone can bar 
 dower. ^ It follows that a devise or bequest by the husband, 
 when unaffected by statute, can not absolutely deprive the 
 widow of her dower interest. The most that it can. accomplish 
 is to cause her to make an election between her dower and the 
 
 (a) This is from the New York statute, which continues, — " and on 
 such forfeiture, au estate so conveyed for jointure, or dei^ised, or a pecun- 
 iary provision so made, immediately vests in the person or legal represen- 
 tatives of the person in whom they would have vested on the determination 
 of her interest therein, by her death." Real Prop. L. § 202, which was 
 originally 1 R. S. 742, § 15. See Forrest v. Forrest, 3 Bosw. 661, 695. 
 
 1 Stat, of Uses, 27 Hen. VIII. ch. ^ Spannocchia u. Loew, 87 Hun 
 10, § 7; Drury v. Drury, 2 Eden, 39; (N. Y.), 167, 172. 
 
 1 Stim. Amer. Stat. L. § 3248; Gar- * N. Y. L. 1909, ch. .52, § 202; I 
 
 rard v. Garrard, 7 Bush (Ky.), 436 ; 2 Stim. Amer. Stat. L. § 3247. 
 
 Scribner, Dower, ch. xv. §§ 82-89. 5 Jbid. 
 
 2 Ibid. ; Graham v. Graham, 143 N. Y. 6 § 496, supra. 
 573; Moran v. Stewart, 173 Mo. 207. 
 
JOINTURE — PROVISIONS IN LIEU OF DOWEB. 739 
 
 testamentary provision.^ Therefore, the two most prominent 
 inquiries T^hich arise from a gift to a wife in her husband's 
 will are, did he intend to make the gift in lieu of dower, so that 
 she should not take both, but must elect; and, if he did so 
 intend, how shall her election be made and evidenced ? The 
 requirement of an election on her part, when the husband so 
 intends, arises from the principle, now recognized in botli law 
 and equity, that a person can not claim a benefit under an 
 instrument, such as a will, and also disappoint the maker of 
 the instrument by opposing or contravening its terms.^ 
 
 § 518. A Gift by Will to Testator's Wife is presumed to 
 be Boimty. — Both at common law and by the great majority 
 of statutes, a testamentary gift made by a husband to his wife 
 is presumed to be a pure gift, and not intended to be taken 
 in lieu of dower.^ The English Dower Act, 3 and 4 Wm. 
 IV. ch. 105, and the statutes of a few of the United States, 
 such as Massachusetts, Maine, Pennsylvania, Indiana, Mich- 
 igan, and North Carolina, have changed this general rule, so 
 that a devise to a widow, and in some states any gift by the will 
 of her husband, will defeat her dower, or will compel her to 
 elect between it and dower, unless a contrary intention is 
 declared by the will.* In a few states, of which New Jersey 
 and Delaware are illustrations, she can not be put to an 
 election by a testamentary provision, unless it is a devise and 
 the intent to give it in lieu of dower is clear.^ In most juris- 
 dictions, however, the common-law rule, as above stated, still 
 prevails; and the husband must make his intention clear, in 
 order to require his widow to elect between dower and -his 
 testamentary gift.^ (a) 
 
 (a) In New York, the statute declares that, — " If real property is 
 devised to a woman, or a pecuniary or other provision is made for her by 
 
 1 Vernon's Case, 4 Co. Rep. 1, 4 a; N. Y. App. Div. 338; Van Arsdale v- 
 Gosling V. Warburton, Cro. Eliz. 128 ; Van Arsdale, 26 N. J. L. 404 ; Nelson 
 Lee w. Tower, 124 N. Y. 371; Matter of v. Pomeroy, 64 Conn. 257; Durfee, 
 Gorden, 172 N. Y. 25; Chapiu v. Hill, Petitioner, 14 R. I. 47; Halferty v. 
 1 R. I. 446; Rubier v. Roberts, 49 Me. Scearce, 135 Mo. 428; In re Gotzian's 
 460; 4 Kent, Com. p. *58. Estate, 34 Minn. 159; 1 Stim. Amer. 
 
 2 Ibid.; Beetson v. Stoops, 91 N. Y. Stat. L. § 3244; 2 Scribner, Dower, ch. 
 App. Div. 185, 189; Bispham's Prin. xvi. §§ 2, 3. 
 
 Eq. §295; 1 Pomeroy, Eq. Jur. § 496. * 1 Stim. Amer. Stat. L. § 3244; 8 
 
 3 Birmingham v. Kirwan, 2 Sch. & Scribner, Dower, ch. xtI. §§ 110-113. 
 Lef. 444; Herbert v. Wren, 11 U. S. ^ i gtim. Amer. Stat. L. §3244 (B). 
 (7 Cranch) 370; Horstmann v. Flege, " Last preceding note but two. The 
 172 N. Y. 381, 384 ; Closs v. Eldert, 30 gift is conclusively presumed to be 
 
740 ESTATES IN REAL PROPERTY. 
 
 § 519. Hew- the Husband's Intent to Require an Election may- 
 be shown. — In those states, such as New York, New Jersey, 
 Illinois, and the large majority of the United States, in which 
 the husband must manifest a clear intent in order to put his 
 widow to her election, he may do this in express words, or by rea- 
 sonably necessary implication from all the language of his will.^ 
 Where he directly states that the devise or bequest is in lieu of 
 dower, or uses an equivalent expression, there can be, of course, 
 no doubt, and she must make her election. In the absence of 
 such explicit statements, there must be a clear implication that 
 he intended the gift to take the place of dower. Such an im- 
 plication most ordinarily arises when there is a manifest incom- 
 patibility between the gift and dower, or when her taking 
 dower would be clearly inconsistent with the scheme of the 
 will.2 Thus, if the husband give a part of his property to the 
 wife, and all the residue of his realty to others " free from all 
 •encumbrances," she is put to her election.^ A devise of his 
 real property, to her and others in equal shares, has sometimes 
 been held to require her to elect.* And she is put to her elec- 
 
 will in lieu of her dower, she must make her election whether she will take 
 the property so devised, or the provision so made, or be endowed of the 
 lands of her husband; but she is not entitled to both." Real Prop. L. 
 § 200, which was originally 1 R. S. 741, § 13. Under this statute, the 
 husband's intention to have her elect must be clear, or she will take both 
 dower and the gift. His intent, however, need not be expressly stated. 
 It may be manifested by any provision wholly inconsistent with a claim 
 of dower. Vernon v. Vernon, 53 N". Y. 351; Asche v. Asche, 113 N. Y. 
 232 ; Lee v. Tower, 124 N. Y. 371; Nelson v. Brown, 144 N. Y. 384, 390 
 Matter of Gorden, 172 N. Y. 25; Horstmann v. Flege, 172 N. Y. 381, 384 
 Plynn v. McDermott, 183 N. Y. 62; Closs v. Eldert, 30 App. Div, 338 
 Matter of Zahrt, 94 N. Y. 605, 609. Her right thus to elect is purely 
 personal; and on her death without electing, though within the year, and 
 though an action by her to set aside the will is theu pending, the right to 
 a legacy given to her by the will in lieu of dower vests in her personal 
 representatives. Flynn v. McDermott, 183 N. Y. 62. 
 
 bounty, unless the -will specifically Closs u. Eldert, 30 N.Y. App. Div. 338; 
 
 declares otherwise, or to give dower White v. White, 16 N. J. L. 202 ; Nelson 
 
 "would disturb other provisions of the u. Pomeroy, 64 Conn. 257; 2 Scribner, 
 
 manifest scheme of the will." Horst- Dower, ch. xvi. §§ 84-106. 
 
 mann v. Flege, 61 N. Y. App. Div, 518, » Kimbel v. Kimbel, 14 N. Y. App. 
 
 172 N. Y. 381, 384; Flynn v. McDer- Div. 570; Vernon s. Vernon, 53 N.Y. 
 
 mott, 183N. Y. 62. 351. 
 
 1 Ibid.; N. Y. L. 1909, ch. 52, § « Foster v. Cook, 3 Bro. C. C. 347; 
 200 ; 1 Stim. Amer. Stat. L. § 3244. Closs v. Eldert, 30 N .Y. App. Div. 338 ; 
 
 2 Incledon v. l^orthcote, 3 Atk. 430, Conner v. Watson, N. Y. App. Div. 54 ; 
 437 ; Asche v. Asche, 113 N. Y. 232 ; Lee v. Tower, 124 N. Y. 371 ; Colgate 
 Nelson u. Brown, 144 N. Y. 384, 390 ; o. Colgate, 23 N. J. Eq. 372. Compare, 
 
JOINTURE — PROVISIONS IN LIE0 OP DOWER. 741 
 
 tion when, after a fair provision for her by the will, the residue 
 of his property is devised absolutely to his children, or to other 
 people dependent upon him for support.^ But his mere use of 
 precatory words in making the gift to her, such as a request 
 or a suggestion that she relinquish dower ; or his devise to 
 her of a part of the lands out of which her dower would be 
 claimed ; or his gift of realty to her for her life or during her 
 widowhood, though the value be greater than her dower ; or 
 the gift to her of an annuity, or rent charged on his realty ; 
 in the absence of more explicit declaration on his part, does 
 not ordinarily put her to an election, but constitutes bounty, 
 over and above her dower interest.^ 
 
 § 520. "Widow's Election between Dower and a Settlement in 
 Lieu thereof — Requisites. — Before a widow can be required to 
 make an election between dower and a gift or settlement, she 
 must have full knowledge and information as to the nature, 
 extent, and value of her husband's property, and of all other 
 facts and circumstances which might affect her choice.^ If 
 she be deprived of such information, and ignorantly make her 
 election, she may subsequently retract, restore what she has 
 received, and insist on the admeasurement of her dower.* This 
 means that she must have full knowledge of the facts. Her 
 ignorance of her legal rights, growing out of the facts, will not 
 ordinarily excuse her act or afford her a right to retract.^ 
 
 Not only may the widow elect between dower and the gift, 
 as above explained, but, where a devise is made to her of lands 
 out of which she is dowable, she may elect in which capacity to 
 
 In re Hatch, 62 Vt. 300; 1 Pom. Eq. 144 N. Y. 384. And for a detailed dis- 
 
 Jur. 502 ; 2 Scribner, Dower, ch. xvi. cussion of such instances, see 2 Scribner, 
 
 §§ 92-94. Dower, ch. xvi. 
 
 1 Herbert u. Wren, 1 1 U. S. (7 ' Newman v. Newman, I Bro. C. C. 
 Cranch) 370; Ailing o. Chatfield, 42 186; Woodbnrn's Estate, 138 Pa. St. 
 Conn. 276 ; 2 Scribner, Dower, ch. xvi. 606 ; Stone u. Vandermark, 146 111. 
 § 102. 312. She may have a bill in equity to 
 
 2 Miller v. Miller, 22 N. Y. Misc. ascertain those facts and circumstances. 
 582 ; Lawrence v. Lawrence, 2 Vern. 2 Scribner, Dower, ch. xvii. § 1 . 
 
 365 ; Lefevre v. Lefevre, 59 N. Y. 434 ; * She nuist restore what she has re- 
 Lewis !.■. Smith, 9 N. Y. 502 ; Daugherty ceived as gift or settlement. Ibid. ; 
 V. Daugherty, 69 Iowa, 677 ; Evans v. Maeknet u. M.acknet, 29 N. J. Eq. 54 ; 
 Webb, 1 Yeates (Pa.),424 ; Horstmann Simonton v. Houston, 78 N. C. 408; 
 V. Flege, 172 N. Y. 381 ; Adsit v. Adsit, Dabney c. Bailey, 42 Ga. 521. 
 2 Johns. Ch. (N. Y.) 448; Birmingham « Ibid.; Light v. Liglit, 21 Pa. St. 
 V. Kirwan, 2 Sch. & Lef. 444. See 407; Bispham's Prin. Eq., §§ 186, 187. 
 Konvaliuka v. Schlegel, 104 N. Y. 1 25 ; See Sopwith v. Maughan, 30 Beav. 235 ; 
 White V. White, 16 N. J. L. 211 ; In re Spread v. Morgan, 11 H. L. Cas. 602. 
 Tranke, 97 Iowa, 704 ; Nelsuu v. Brown, 
 
742 ESTATES IN REAL PROPERTY. 
 
 take that portion which otherwise would have come to her as 
 dower.i Thus, if the husband devise all or most of his realty 
 to her, and die owing debts by which she is not bound, such, 
 for example, as an indebtedness on a mortgage made by liim 
 alone during coverture, then, by the weight of authority, she 
 may choose one-third of his real property as dower and thus 
 acquire it free of his debts, and take the residue as a gift 
 under the will and therefore subordinate to the claims of his 
 creditors.^. 
 
 The widow's right to elect between dower and a gift or set- 
 tlement in lieu thereof is purely personal to her. When she 
 dies or becomes permanently incapacitated before making the 
 choice, neither her personal representative nor any one else can 
 elect for her; and, in the majority of states, the gift takes 
 effect.^ If, however, she be an infant, and therefore a ward of 
 the court, tlie court may make the election for her.^ 
 
 § 521. Time within which the "Widow may Elect. — There 
 is no common-law time limit on the right of a widow tgi elect 
 between dower and a testanieh'tafy~gift.y But the courts of 
 equity, and now in most instances even those of law, will pre- 
 sume, after the husband has been dead for a long time and the 
 widow has not demanded dower, that she has chosen the gift.* 
 And in several cases it has been held that her right of election 
 terminates in a reasonable time after the death of the husband.^ 
 In probably a majority of the American states, the time for her 
 to elect is now fixed by statute.'^ Thus, in New York she is 
 conclusively presumed to have chosen the gift in lieu of dower, 
 unless she enters on her dower land or brings an action for its 
 recovery within one year after the husband's death, or within 
 
 1 Lewis V. Smith, 9 N. Y. 502, 512 ; Nelson, 56 Ind. 90. See Camardella v. 
 Mitchell 11. Mitchell, s'Ala. 414. Schwartz, 126 N. Y. App. »iv. 334; 
 
 2 Ibid. Brown u. Hodgdon, 31 Me. 65. 
 
 ' So emphatic is the law in insisting * Streatfield v. Streatfield, Cas. temp, 
 
 that this right of election shall remain Talb. 176 ; Davis v. Page, 9 Ves. 350. 
 
 personal that, even if the widow has And for details of election, see 2 Scrib- 
 
 hrought an action to set aside her hus- ner, Dower, ch. xvii. 
 
 band's wiU on the ground that it is not ^ 1 Pomeroy, Eq. Jur. § 513. 
 
 properly executed, and has died before " Reed v. Dickerman, 12 Pick, 
 
 the suit was completed, her personal (Mass.) 146; Noel v. Garnett, 4 Call 
 
 lepresentatives are entitled to the legacy (Va.), 92. See Zimmerman v. Lebo, 
 
 given in lieu of dower. Flynn v. Mc- 151 Pa. St. 345; 2 Scribner, Dower, ch. 
 
 Dermott, 183 N. Y. 62 ; Doty v. Hen- xvii. §§ 27-32. 
 
 drix, 16 N. Y. Supp. 284 ; Sherman v. ' 1 Stim. Amer. Stat. L. §§ 3264, 
 
 Newton, e Gray (Mass.), 307 ; Crozier's 3265; 2 Scribner, Dower, ch. xvii. 
 
 Appeal, 90 Pa. St. 384 ; Heavenridge !•. §§ 15-26. 
 
JOINTURE — PROVISION^ IN LIEU OP DOWER. 743 
 
 such extended period as a competent court may have granted her 
 for good cause shown by her as designated by the statute .^ (a) 
 Substantially the same limitation is found in Kentucky, Michi- 
 gan, Minnesota, and Wisconsin. In Maine, Massachusetts, New 
 Jersey, Maryland, and North Carolina, she is required to make 
 her election within six months after the probate of her hus- 
 band's will, and in Vermont, within eight montlis; or she is 
 conclusively presumed to have taken the gift in lieu of dower.^ 
 Such legislation, where found, has as a rule the force of an ab- 
 solute statute of limitations, which bars her dower in the time 
 designated, unless she can avoid its effect by the force of some 
 provision in the statute itself.* 
 
 (a) The New York statutes, after providing, in two sections, for a 
 widow's election when a settlement in lieu of dower is made on her during 
 coverture, or before marriage without her assent, or by a testamentary gift, 
 continue : — " Where a woman is entitled to an election, as prescribed in 
 either of the last two sections, she is deemed to have elected to take the 
 jointure, devise, or pecuniary provision, unless within one ye ar after the 
 death of her husband she enters upon the lands assigned to her for her 
 dower, or commences an action for her dower. But, during such period of 
 one year after the death of her said husband, her time to make such election 
 may be enlarged by the order of any court competent to pass on the ac- 
 counts of executors, administrators, or testamentary trustees, or to admeas- 
 ure dower, on an affidavit showing the pendency of a proceeding to contest 
 the probate of the will containing such jointure, devise or pecuniary provi- 
 sion, or of an action to construe or set aside such will, or that the amount 
 of claims against the estate of the testator can not be ascertained within 
 the period so limited, or other reasonable cause, and on notice given to such 
 persons, and in such manner, as such court may direct. Such order shall 
 be indexed and recorded in the same manner as a notice of pendency of 
 action in the office of the clerk of each county wherein the real property or 
 a portion thereof affected thereby is situated." Real Prop. L. § 201, 
 which was at first 1 R. S. 742, § 14, and was amended to its present form 
 by L. 1890, ch. 61. The latter act added the right to have the time extended 
 by the court. This statute is a positive statute of limitations, which must 
 be pleaded in order to be available. Before the amendment of 1890, there 
 was no way of having the time extended, even for fraud in preventing her 
 from ascertaining the facts on which her election should depend. Evans v. 
 Ogsbnry, 2 App. Div. 556 ; Akin v. Kellogg, 119 N. Y. 441 ; Jones v. Flem- 
 ing, 104 N. Y. 418; In re Zahrt, 94 N. Y. 605; Chamberlain v. Chamber- 
 lain, 43 N. Y. 424 ; Lee v. Timken, 10 App. Div. 213. 
 
 1 N. Y. L. 1909, ch. 52, § 201. 556; Lee v. Timken, 10 N. Y. App. 
 
 2 1 Stim. Amer. Stat. L. § 3265; 2 Div. 213. See N. Y. L, 1890, ch. 61, 
 Scribner, Dower, ch. xvii. § 16. providing for extension of her time to 
 
 8 Akin V. Kellogg, 119 N. Y. 441 ; elect, by order of court; 1 Stim. Amer. 
 Jones V. Fleming, 104 N. Y. 418, 432; Stat. L. § 3265. Therefore, where the 
 Evans v. Ogsbury, 2 N. Y. App. Div. statute of limitations must be pleaded in 
 
744 ESTATES IN REAL PROPERTY. 
 
 § 522. How the Wido-w's Election must be made — How 
 Evidenced. — The statutes, which require an election by the 
 widow, ordinarily prescribe how it shall be made and evidenced.^ 
 Thus, in New York she is deemed to have elected to take the 
 provision in lieu of dower, unless within the prescribed time 
 " she enters upon the lands assigned to her for her dower, or 
 commences an action for her dower." ^ (a) When the statute is 
 silent as to the mode of her election, the requirement is that it 
 shall be unequivocal, and, that the evidence of it shall be clear 
 and satisfactory.^ The strong tendency of the statutes and 
 courts is to give effect to the husband's will, and to make his 
 testamentary gift take the place of her dower, unless she acts 
 in such manner as to leave no reasonable doubt of her election 
 to the contrary and clear evidence is produced of such action 
 on her part.* In the absence of positive statutory requirement, 
 her election may be shown by acts in pais, as for example by 
 her retention of possession of the land settled upon her, as well 
 as by matter of record or her direct declaration.® 
 
 § 523. Effects of a "Widow's Election between Dower and a 
 Settlement or Testamentary Gift. — If, being put to an election, 
 the widow choose and obtain dower, it follows, of course, that she 
 relinquishes and loses all right to its attempted substitute. If 
 she choose the gift, it follows, with equal certainty, that she for- 
 feits her dower. And in most jurisdictions her dower is thereby 
 barred, not only in the real property of which her husband died 
 seised, but also in that which- he conveyed during coverture 
 without her uniting in the conveyance or otherwise relinquish- 
 ing at that time her inchoate right.^ In Pennsylvania, how- 
 ever, and perhaps in a few other states, it is held that her elec- 
 
 ^ (a) See last preceding New fork note. 
 
 order to be available as a defense, this ^ N. Y. L. 1909, ch. 52, § 201. 
 
 statute must be pleaded by those claim- » Akin v. Kellogg, 119 N. Y. 441; 
 
 ing the husband's real property against Chamberlain v. Chamberlain, 43 N. Y. 
 
 her. Ibid., especially Evans u. Ogs- 424 ; Bradfords v. Kents, 43 Pa. St. 474 ; 
 
 bury, 2 N. Y. App. Div. 556. If the Thompson v. Hoop, 6 Ohio St. 480; 4 
 
 widow let the prescribed time elapse, Kent, Com. pp. *58, *59. 
 
 without making any choice or taking * Last three preceding notes, 
 
 any other steps, she can not recover her ^ Ibid. ; 2 Scribner, Dower, ch. xvii. 
 
 dower on the ground that she was mis- §§ 27-36. 
 
 led or defrauded as to its value. Akin « Steele v. Fisher, 1 Edw. Ch. (N. Y.) 
 
 V. Kellogg, 119 N. Y. 441; 1 Stim. 435; Bnffinton ti. Fall River Nat. Bk., 
 
 Amer. Stat. L. §§ 3265-3267. 113 Mass. 246; Chapin v. Hill, 1 R. I. 
 
 1 1 Stim. Amer. Stat. L. §§ 3265- 446; Allen v. Pray, 12 Me. 138; Fair- 
 
 3267 ; 2 Scribner, Dower, ch. xvii. child v'. Marshall, 42 Minn. 14. 
 8S 15-36. 
 
JOINTURE — PROVISIONS IN LIEU OF DOWER. 745 
 
 tion to take a testamentary gift does not bar her dower claim 
 in any real property, except that of which her husband died 
 seised.i 
 
 A widow, who accepts any provision by her husband in lieu 
 of dower, is regarded as a purchaser of that provision.^ There- 
 fore, while all of the husband's property may ordinarily be 
 reached by his crecfitors, yet she may insist that all of his gifts 
 merely voluntary shall fail, and the money or land designed for 
 them be taken by his creditors, before the property so given to 
 her shall be available for the payment of his debts.^ Hence it 
 is that, if the gift be in the form of a bequest and the husband's 
 assets be insufficient tp pay all his gifts, her provision is not 
 usually required to abate with the other legacies, but may be 
 fully paid if the assets be sufficient, even though the result may 
 be that the other legatees obtain nothing.* 
 
 It is to be added that, generally, as the outcome of both stat- 
 utes and decisions, if a testamentary gift in lieu of dower, like 
 any other jointure, be defeated by paramount title or other 
 cause after the widow's election to take the gift has been made, 
 her election is thereby nullified ; and, in the absence of counter- 
 acting equity, her right to dower out of her husband's realty is 
 restored.* 
 
 § 524. Summary as to provisions in" Iiieu of Dov^er. — Tlie 
 foregoing discussion of jointure may be summarized as follows: 
 First, a legal jointure properly made before marriage, where 
 still recognized, is an absolute bar of dower ; second, a legal 
 jointure, made during coverture, puts the wife to her election be- 
 
 1 Borland v. Nichols, 12 Pa. St. 38 ; band may deprive his wife of dower by 
 Higginbotham v. Cornwell, 8 Gratt. selling his land or willing it away from 
 (Va.) 83. See Westbrook v. Vander- her, his legacy to her, though expressly 
 burgh, 36 Mich. 30. declared to he in lieu of dower, stands 
 
 2 Flynn v. McDermott, 183 N. Y. 62 ; on the same plane as other legacies and 
 Hathaway t'. Hathaway, 37 Hun (N. Y.), abates with them. Duret v. Charriere 
 265 ; 2 Scribner, Dower, ch. xvii. §§ 59- (1896), 1 Ch. 912. 
 
 64. See Tracy v. Murray, 44 Mich. ' § 516, supra; 1 Stim. Amer. 
 
 109. Stat. L. § 3248; Akin v. Kellogg, 119 
 
 8 Ibid. ; Isenhart v. Brown, 1 Edw. N. Y. 441 ; Hone v. Van Schaick, 7 
 
 Ch. (N. Y.) 411 ; Taylor's Estate, 175 Paige (N. Y.), 221 ; 2 Scribner, Dower, 
 
 Pa. St. 60 ; Bray v. Neill, 21 N. J. Eq. ch. xvii. §§ 56-58 ; Hastings v. Clifford, 
 
 343 ; Lord v. Lord, 23 Conn. 327 ; 32 Me. 132 ; Osmun u. Porter, 39 N. J. 
 
 Steele v. Steele, 64 Ala. 438. Eq. 141. But she can not be restored 
 
 4 Ibid. ; Borden u. Jenks, 140 Mass. to dower simply because her chosen gift 
 
 562 ; Security Co. v. Bryant, 52 Conn. proves to be of less value than dower 
 
 311 ; Moore v. Alden, 80 Me. 301 ; 2 would have been. Lee v. Tower, 124 
 
 Scribner, Dower, ch. xvii. §§ 59-64. N. Y. 370, 375. 
 But where, as now in England, a hus- 
 
746 ESTATES IN REAL PROPERTY. / 
 
 tween the attempted settlement and dower ; third, an equitable 
 jointure made befor,e marriage is an absolute bar to dower in 
 equity, and may be enforced as such a bar by an injunction 
 preventing a pit at law for the recovery of dower, and now in 
 many states of this country is available directly in both law and 
 equity to preclude all dower claim ; fourth, an equitable joint- 
 ure made during coverture puts the wife to her election ; and 
 fifth, a testamentary provision in lieu of dower must be clearly 
 expressed, in most states, as intended to preclude that interest, 
 or this must be shown by reasonably necessary implication, and 
 then such a gift puts the wife to her election ; and finally, 
 when the wife has an election between dower and a provision 
 made in lieu thereof, she is quite commonly required to indicate 
 and enforce her choice of dower within a prescribed time, or be 
 conclusively presumed to have accepted the provision made for 
 her to take its place. 
 
CHAPTER XXXVI. 
 
 (d) ESTATES DURING MARRIAGE — HOMESTEAD. 
 
 Estates during Marriage. 
 
 § 525. Common-law rights of 
 spouses in each other's realty. 
 
 § 526. The -wife's rights in equity. 
 
 § 527. Married women's statu 
 tory separate estates. 
 
 § 528. Conveyance of spouse's 
 realty — Conveyance between them. 
 
 § 529. Statutory life estates. 
 
 §530. 
 nature. 
 
 Homestead. 
 Its origin and two-fold 
 
 § 531. Who entitled to home- 
 stead — For whose benefit. 
 
 § 532. Character, amount, and 
 time of exemption. 
 
 § 533. Debts excluded— Form and 
 notice of such exclusion. 
 
 § 534. Termination of homestead 
 rights. 
 
 § 535. Conclusion as to kinds of 
 life estates. 
 
 Estates during Marriage. 
 
 § 525. Ccmmon-Law Sights of Spouses in Each Other's Realty. 
 — Outside of a wife's rights by virtue of the somewhat shadowy- 
 doctrine of reasonable parts, which during the feudal period of 
 English jurisprudence gave her a share of her husband's person- 
 alty,^ the only interest in his property conferred upon her by 
 the common law was dower.^ This latter, as a legal life estate, 
 has been already discussed.^ The husband, however, had im- 
 portant common-law rights in the property of his wife. By 
 virtue of the marriage, all her personal property in possession 
 became his, and all her choses in action which he reduced to 
 possession during the coverture ; while choses in action, not re- 
 duced to possession in her lifetime, belonged to him as her ad- 
 ministrator if as such he took them into his possession.* All 
 her chattels real became his to use and enjoy for the period of 
 their married life, and to dispose of and hold the proceeds if he 
 alienated them during the coverture.^ But if she outlived him, 
 
 4 Chase's Blackst. p. 154; 2 Kent, 
 Com. pp. *130-*143. 
 
 ^ liiid. They were also liable for hia 
 debts ; but he could not will them away. 
 Co. Lit. 351 a; 2 Blackst. Com. p. *434. 
 
 1 2 Blackst. Com. pp. *492, *493, 
 *495; SchouleroD Wills, § 14. 
 
 2 Ibid. ; Schouler on Wills, §§ 15-19. 
 • Ch. xxxi-xxxiv. supra. 
 
748 ESTATES IN REAL PROPERTY. 
 
 and her chattels real had not been disposed of, they became 
 absolutely hers.i ' In all her freehold estates in possession he 
 acquired the absolute usufruct, possession, and control during 
 the coverture, with power to sell the life interest that thus be- 
 came his, and with such an ownership in the freehold during 
 their joint lives that it might for that period be taken from him, 
 on execution.^ In her future estates, however, of which she did 
 not become seised during the coverture — her reversions or re- 
 mainders after freehold estates, or her executory interests — 
 he acquired no rights whatever by virtue of the marriage.^ 
 
 The interest of the husband in his wife's real property, being 
 an estate during coverture and for an uncertain period which 
 might last for his life, is therefore properly grouped with the 
 life estates.* In acquiring it, he did not become sole seised of 
 the property during the coverture, but the seisin was in him 
 and her jointly. His sole interest and rights were in the pos- 
 session, rents, profits, and income during the coverture.^ He 
 could not have compensation for any improvements made by 
 him upon the lands, because he was regarded as making them 
 for the benefit of his wife.^ He was liable for waste, and must 
 take care of the property the same as any other life owner.' 
 Being seised, however, jointly with his wife, he would lose all 
 interest, if before a child was born the property were forfeited 
 because of her treason or felony .^ His estate so held, as hereto- 
 fore stated, merged into and became an estate by curtesy after 
 the birth of a child in the manner already explained.^ 
 
 Since the common law regarded the possession and usufruct 
 of the wife's real property as belonging absolutely to the hus- 
 band, but the title and seisin as being vested in both of them, it 
 followed that a suit for the rents and profits, or any possessory 
 action, as for waste, or for use and occupation of the land by 
 
 1 Ibid. ; Co. Lit. 46 b, 300 a ; Moody ^ § 482, supra ; Shores v. Carley, 8 
 V. Matthews, 7 Ves. 174 ; Riley v. Riley, Allen (Mass.), 425. 
 
 19 N. J. Eq. 229; Allen v. Hooper, 50 * Last preceding note but one; 
 
 Me. 371 ; Barron v. Barron, 24 Vt. Roper, Husb. & W. 3. / 
 
 375; Lawes v. Lumpkin, 18 Md. 334; ^ Polyblank u. Hawkins, 1 Doug. 
 
 Schouler on Wills, § 45. 329 ; Melvin u. Proprietors, etc., 16 
 
 2 Co. Lit. 351 a, 325 b; Robertson v. Pick. (Mass.) 161 ; Nicholls v. O'Neil, 
 Norris, 11 Q. B. 916 ; Barber v. Root, 10 N. J. Eq. 88. 
 
 10 Mass. 260; Payne v. Parker, 10 Me. ^ § 549^ infra. 
 
 181 ; Eaton v. Whitaker, 18 Conn. 222 ; 7 §§ 551-553, infrff. 
 
 Van Note v. Downey, 28 N. J. L. 219; » Co. Lit. 351 a; 1 Bright, Husb. & 
 
 Wms. E. P. p. *223. W. 13. 
 
 ^ §§ 446, 455, supra. 
 
ESTATES DURING MARRIAGE — HOMESTEAD. 749 
 
 another, dui-iug coverture, should be brought by the husband 
 alone ; ^ but a suit for any injury to the inheritance, any wrong 
 that would make the property less valuable after the coverture 
 was ended, must be brought by him and her jointly .^ The fact 
 that their seisin was thus united gave rise to the ordinary rule 
 that a conveyance of real property in fee to husband and wife 
 makes them tenants by the entirety, and not technically joint 
 tenants, tenants in common, or any other kind of co-owners.^ 
 The forms of co-ownership, and the characteristics of them, 
 which may still be held by husband and wife, are explained 
 hereafter.* It will suffice, at this point, simply to remark that, 
 notwithstanding the extent to which legislation has enabled 
 married women to deal with their own property, yetj in the 
 absence of positive statute to the contrary, tenancy or owner- 
 ship by the entirety still exists in England and most of the 
 states of this country.* 
 
 § 526.- The 'Wife's Rights in Equity. — Because of the great 
 control and sometimes unfair disposition of the wife's property 
 by the husband, the court of equity early required, when the 
 husband was seeking in that tribunal to perfect his possession 
 and use of her property, that there should be an adequate settle- 
 ment made out of it for the support of her and her children. 
 This is designated her " equity to a settlement." ^ It was 
 originally said to be based on the maxim that " he who seeks 
 equity must do equity." But in the leading case of Elibank v. 
 Montolieu,'' it was settled that, even though the husband him- 
 self is not seeking a remedy, she may affirmatively apply to a 
 court of equity, when circumstances so require, and have settled 
 on her a fair share of the property for the support of herself 
 and her children. The wife's right to a settlement has always 
 been treated as personal, and therefore not enforcible by her 
 children or heirs after her death.** If obtained during her life, 
 
 1 Decker v. Livingston, 15 Johns. Buttlar v. Rosenblath, 42 N. J. Eq. 
 (N. Y.) 479; Clapp v. Inhabitants of 651; § 688, infra. 
 
 Stoughton, 10 Pick. (Mass.) 463 ; Mat- * §§ 688-«90, infra. 
 
 tocks V. Steams, 9 Vt. 326 ; 2 Kent, ^ Ibid. 
 
 Com. p. * 131. ° Elibank v. Montolieu, 1 Lead. Cas. 
 
 2 Polyblank v. Hawkins, 1 Doug. 329; Eq. 486 ; Kenny v. Udall, 5 Johns. Ch. 
 Melviu V. Proprietors, etc., ,16 Pick. (N. Y.)464; Page v. Estes, 19 Pick. 
 (Mass.) 161 ; NichoUs v. O'NeiU, 10 N. (Mass.) 269; Barron </. Barron, 24 Vt. 
 J. Eq. 88 ; Took u. Glascock, 1 Ed. 375 ; 2 Perry on Trusts, § 633 ; Bispham, 
 Saunders, 253, note. Prin. Eq. § 96 ; 2 Kent, Com. p. * 139. 
 
 3 Thornley u. Thornley (1893), 2 Ch. '5 Ves. 737, 1 Lead. Cas, Eq. 486. 
 229; Bertles v. Nunan, 92 N. Y. 152; « Ibid.; 2 Perry on Trusts, § 627; 
 
 Bispham, Prin. Eq. § 113. 
 
750 ESTATES IN REAL PEOPERTY. 
 
 and not disposed of, it belongs to them, of course, after her 
 death.i 
 
 Not only did the courts of equity work out this inaportant 
 advantage of a stettlement for the wife, but, in several other 
 instances also, they bestowed property rights upon her, such, as 
 law would not recognize. Thus, her separate use estate, already 
 explained in the discussion of trusts, arose from the same fun- 
 damental requirement that created her equity to a settlement.^ 
 When, moreover, the wife was an infant and so a ward of court, 
 or when, by the husband's misconduct or total insolven'cy, the 
 means of her support were vanishing, or when she was aban- 
 doned by him, or otherwise treated with signal unfairness, the 
 equity tribunals would intervene and compel an adequate settle- 
 ment upon her, even out of the property that had belonged to 
 him individually. ^ 
 
 The principles at the foundation of these equitable interests 
 and estates of a wife are as fully recognized in this country as 
 in England.* Thus, her equity to a settlement, wherever the 
 husband can obtain the control of her property, is sustained in 
 every state except New Hampshire and North Carolina.^ But 
 the demand for the application of these salutary rules has been 
 largely superseded by the married women's legislation, which 
 has so materially increased her control and enjoyment of her 
 own property. Those important changes are next to be briefly 
 explained. 
 
 § 527. Married Women's Statutory Separate Estates. — Legis- 
 lative enactments in most if not all of the United States 
 have resulted in doing away with the husband's marital rights 
 in all the real property owned by the wife before marriage. 
 She now retains such realty free from his debts and control, • 
 and can deal with it generally in the same manner as if she 
 were still a single woman.^ In a large majority of the states 
 also, statutes have given to married women absolute right to' 
 possession and control of their realty acquired or owned during 
 
 1 Ibid. Me. 124; Short v. Moore, 10 Vt. 446; 
 
 2 § 336, supra. Parsons v. Parsons, 9 N. H. 309 ; Lassi- 
 8 2 Perry on Trusts, § 627 ; Bispham, ter v. Dawson, 2 Dev. Eq. (N. C.) 383 ; 
 
 Prin. Eq. § 113. Bispham, Prin. Eq. § 110. 
 
 < § 336, supra; Bispham, Prin. Eq. « N. Y. L. 1909, ch. 19, §§ 50, 51, 
 
 §§ 110-113. 56, 59; 1 Stim. Amer. Stat. L. § 6420. 
 
 5 Howard v. Moffatt, 2 Johns. Ch. But see Weber v. Tanner, 23 Ky, L. 
 
 (N. Y.) 206; Page v. Estes, 19 Pick. Rep. 1107; Dietrich v. Hutchinson, 73 
 
 (Mass.) 269; Tucker v. Andrews, 13 Vt. 134. 
 
ESTATES DURING MARRIAGE — HOMESTEAD. 751 
 
 the coverture.i In a few of them, of which New York, (a) 
 Maine and Connecticut are examples, a wife may even deprive 
 her husband of curtesy, by granting the real property during 
 coverture, or devising it away from him at her death.2 (a) The 
 
 (a) In New York, before the Revised Statutes took effect (Jan. 1, 1830) 
 a married woman held and dealt with real property substantially as at 
 common law, the custom of London having been adopted, permitting her to 
 convey by a deed in which her husband joined. See New York note as to 
 barring dower by deed, § 503, supra. The Revised Statutes practically left 
 her stafus as to conveying by act inter vivos unchanged (see Macqueen, Husb. 
 & W. Ch. III. pt. 2), although by 1 R. S. 732, § 80, 735, § 110, and 736, § 117, 
 which are now combined in § 142 of the Real Property Law, there prob- 
 ably was intended some restriction as to the liusband's curtesy right in 
 property which she was authorized to convey by virtue of a power. The last- 
 named section states that, " A general and beneficial power may be given 
 to a married woman, to dispose, during her marriage and without concur- 
 rence of her husband, of real property conveyed or devised to her in fee." 
 See Leavitt v. PeU, 25 N. Y. 474, 478. The Revised Statutes certainly did 
 not enlarge a wife's ability to devise her realty ; but, recognizing her ca- 
 pacity to execute a power by her will, they required her, of course, to deal 
 with such powers only in the forms into which they had been remodelled 
 by the statutes themselves. See Beardsley u. Hotchkiss, 96 N. Y. 201; 
 Wadhams v. American Home Missionary Soc. 12 N. Y. 415. The net 
 result was that her control and power of disposal of her realty were possi- 
 bly restricted, rather than increased, by the legislation of 1830 ; and so her 
 status in this particular remained until 1848. Beginning with Ch. 200 of 
 the Laws of 1848, relative to her deeds, and Ch. 375 of the Laws of 1849, 
 relative to her wills, statutes from time to time, as was heretofore explained 
 (New York note to § 460, supra), have placed a married woman in a better 
 position with regard to her real property than that which is occupied by a 
 married man ; for, while he can not bar her dower in his realty without her 
 act or acquiescence, she can sell or devise any or all of her property, free 
 and clear of his curtesy and of all of his rights of every kind. This ability 
 is now found in the following codification of the various acts by which it has 
 been produced: "Property, real and personal, now owned by a married 
 woman, or hereafter owned by a woman at the time of her marriage, or 
 acquired by her as prescribed in this chapter, and the rents, issues, pro- 
 ceeds and profits thereof, continues to be her sole and separate property as 
 if she were unmarried, and is not subject to her husband's control or dis- 
 posal nor liable to his debts." . . . "A married woman has all the rights in 
 respect to property, real or personal, and the acquisition, use, enjoyment, 
 and disposition thereof, and to make contracts in respect thereto with any 
 person including her husband, and to carry on any business, trade or occu- 
 
 1 Ibid.; 1 Stim. Amer. Stat. L. §§ 117 Mass. 105; Levi u. Earl, 30 Ohio St. 
 
 6421, 6422; Aldrich v. Muirhead, 101 147; Martin v. Remington, 100 Wis. 
 
 U. S. 397 ; Bertles v. Nunan, 92 N. Y. 540 ; Robinson v. Queen, 87 Tenn. 445 ; 
 
 152; Mygatt v. Coe, 152 N. Y. 457; Wells v. Batts, 112 N. C. 283. 
 Stratton v. Bailey, 80 Me. 345 ; Hunter's ^ n. y. L. 1909, ch. 19, §§ 50, 51 ; 
 
 Appeal, 40 Pa. St. 194; Libby v. Chase, 1 Stim. Amer. Stat. L. § 6421. 
 
762 ESTATES IN REAL PROPERTY. 
 
 only advantage in the wife's real property in such states, of 
 which she may not legally deprive the husband if she will, is 
 his right to live with her upon the property if she live there, 
 or enjoy its income jointly with her as her husband.-' In other 
 words, the married women's statutes affecting her property 
 rights have not gone to the extent of interfering with their 
 family relationship. In some bf the American states, of which 
 Illinois, Indiana, Kentucky, and Missouri are illustrations, while 
 the wife's use and enjoyment of her property during the cover- 
 ture are made absolute, she is not authorized to dispose of it, 
 while her husband lives, without his concurrence or consent.^ 
 
 § 528. Conveyance of Spouses' " Realty — Conveyances be- 
 tween Them. — It has been heretofore explained that, as unaf- 
 fected by statute, the real property of the husband can not be 
 sold free and clear of his wife's dower, without some act or ac- 
 quiescence on her part ; that at common law the only method 
 of conveying her realty was by the joinder of him and her in a 
 fine or common recovery, and that it required modern statutory 
 law, following a custom of London, to enable lier to deed away 
 her realty.^ Most statutes of to-day now authorize her to con- 
 vey her real property; and in many. of the states she may do 
 this, and give a good title, without any act or acquiescence of 
 her husband.* 
 
 pation, and to exercise all powers and enjoy all rights in respect thereto and 
 in respect to her contracts, and to be liable on such contracts, as if she 
 were unmarried ; but the husband and wife can not contract to alter or 
 dissolve the marriage or to relieve the husband from his liability to support 
 his wife." Domestic Relation Law (L. 1909, ch. 19, Con. L. c. 14), §§ 50, 
 51. For a;:dsume of the various statutes here combined and the leading 
 cases which have construed them, see i^ew York note as to Curtesy, § 460, 
 supra. 
 
 1 Reagle v. Eeagle, 179 Pa. St, 89 ; from him at her death, so as to deprive 
 Cole V. Van Kiper, 44 111. 58 ; Snyder v. him of curtesy consummate. Vreelaud 
 The People, 26 Mich. 106; Stewart, «. Ryno, 26 N. J. Eq. 160; Middleton «. 
 Husb. & W. § 233. ■ Steward, 47 N. J. Eq. 295 ; Colgan v. 
 
 2 Cole V. Van Riper, 44 111. 58 ; Cook Pellens, 48 N. J. L. 27, 49 N. J. L. 694 ; 
 u.Walling, 117 Ind. 9; Weber ii. Tanner, Folwell's Case, 67 N. J. Eq. 570, 574, 
 23 Ky. L. Kep. 1107; Dietrich?). Hutch- reTersed on other grounds in 68 N. J. 
 inson, 73 Vt. 134 ; Sutton v. Casseleggi, Eq. 728. See § 459, supra. 
 
 77 Mo. 397 ; 1 Stim. Amer. Stat. L. § 8 §§ 496^ 503, supra. 
 
 6421 ; Schouler, Dom. Eel. § 133. In * Last four preceding notes. A dis- 
 
 New Jersey, a wife, it seems, may con- tinction has frequently been made in 
 
 vey her realty by deed or act inter vivos the forms of the legislation as follows : 
 
 with the consent of her husband though When the statement of the statute is 
 
 he does not join in the deed ; but, if she that the married woman may hold, or 
 
 die seised of it, she can not will it away possess, or enjoy, real property as if she 
 
ESTATES DURING MARRIAGE — HOMESTEAD. 753 
 
 "\/ It was also a common-law rule that husband and wife could 
 not convey real property directly from one to the other.^ A 
 court of equity would sometimes sustain such a transaction, 
 when justice so4emanded.2 But a transfer by both of them to 
 a third party as an intermediary, and a conveyance by him to 
 the spouse who was intended to acquire the realty, were, and in 
 the absence of positive statute still are, the one ordinary means 
 of passing realty between husband and wife.^ In a few of the 
 United States, legislation has now gone to the extent of per- 
 mitting a transfer of realty directly between husband and wife. 
 Such statutes are found in New York, (a) Maine, Minnesota, 
 and Iowa, and perhaps in a few other states.'' And where these 
 exist, it is held that a deed delivered by tlie husband to the 
 
 (a) In New York, this statute first took effect June 6, 1887, and was 
 Ch. 537, L. 1887. It is now found as § 56 of the Domestic Relations Law 
 (L. 1909, Ch. 19) as follows : " Husband and wife may convey or transfer 
 real or personal property directly, the one to the other, without the inter- 
 vention of a third person ; and may make partition or division of any real 
 property held by them as tenants in common, joint tenants, or tenants by 
 the entireties. If so expressed in the instrument of partition or division, 
 such instrument bars the wife's right to dower in such property, and also, 
 if so expressed, the husband's tenancy by curtesy." See Jones v. Jones, 40 
 Misc. 360; Hulse v. Ba9on, 26 Misc. 455, 457, 40 App. Div. 89. 
 
 were single, she is not thereby impliedly by a covenant with a third person to 
 aathorized to dispose of it without her stand seised to Her use." 1 Wash. R. P. 
 husband's consent. But when the form (6tb ed.) § 530 ; Voorhees v. Presby- 
 ofthe statute is that she may convey, terian Church, 17 Barb. (N. Y) 103; 
 or dispose, or alienate, the property as Martin u. Martin, 1 Me. 394. For ex- 
 it she were single, no act on his part is planation of the conveyances by means 
 requisite to her transfer of a valid title. of uses here mentioned, see §§ 1051- 
 This distinction is simply an application 1054, infra. 
 
 of the general rule of construction of 2 Jones v. Clifton, 101 U. S. 228 ; 
 married women's legislation; and that Moore v. Page, 111 U. S. 117; Hunt 
 rule is, generally^lthat any right which v. Johnson, 44 N. Y. 27, 37 ; Vonght 
 such a woman acquires by statute over v. Vought, 50 N. J. Eq. 177 ; .Tones v. 
 her property must be given plainly and Obenchain, 10 Gratt. (Va.) 259 ; Tur- 
 in unequivocal terms. Naylor v. Field, ner v. Shaw, 96 Mo. 22 ; 1 Wash. R. P. 
 29 N.J. L. 287; Moore v. Cornell, 68 (6th ed.) § 531. 
 
 Pa. St. 320; Beal v. Warren, 2 Gray s Last two preceding notes; Jack- 
 
 (Mass.), 447. And see Hatfield v. Sue- son v. Stevens, 16 Johns. (N. Y.) 110; 
 
 den, 54 N. Y. 280 ; Bertles v. Nunan, 92 Jewell v. Porter, 31 N. H. 34 ; Gehb v. 
 
 N. Y. 152. Rose, 40 Md. 387; McMillan v. Chee- 
 
 1 White V. Wager, 25 N. Y. 328; ney, 30 Minn. 519, 
 
 Shepard .. Shepard, 7 Johns. Ch. (N. Y.) * N. Y. L. 1909, ch. 19, § SR; Sav- 
 
 57: Luntz v. Greve, 102 Ind. 173; 1 age v. Savage, 80 Me. 472 ; Wilder u. 
 
 BlLkst Com. p. *442 ; 1 Roper, Hush. & Brooks, 1 Minn. 32 ; Robertson v. Rob- 
 
 W 53 " But the husband may do this by ertson, 25 Iowa, 350 ; Walker v. Long, 
 
 means of the statute of uses, by convey- 109 N. C. 510 ; Bubier v. Roberts, 49 
 
 ing to another to the use of the wife, or Me. 460. 
 
 48 
 
7;)4 ESTATES IN REAL PROPERTY. 
 
 wife, after the taking effect of the statute, passes the title prop- 
 erly, although the deed was drawn and executed before the 
 statute was enacted.^ 
 
 . § 629. statutory Life Estates. — Comparatively recent legisla- 
 tion has added some interests, in quite a true sense to be styled 
 estates, to the list that was made by the common law. These 
 are homestead rights and interests, and community owner- 
 ships. They cluster around the married relationship, though 
 the former does not necessarily arise therefrom. Community 
 property, an outgrowth of civil-law rules as recognized and 
 somewhat modified by statutes in a few of the Southern and 
 Western states, calls for its discussion in connection with that 
 of other co-ownerships of realty.^ Homestead aAd exemption 
 rights and interests, though not always constituting life estates, 
 may be examined as well here as anywhere in this treatise. 
 
 Homestead. 
 
 § 530. Its Origin and Two-fold Nature. — Homestead and 
 exemption laws, resting as they do entirely on statutes, demand 
 but a very brief discussion in a treatise of this character. Tlie 
 statutes themselves are to be consulted for details.^ There are 
 in this country two materially different forms of " homestead "• 
 legislation ; one the federal law, and the other the statutes of 
 the several states. The former provides for the acquisition of 
 land for a homestead, and incidentally exempts it from the 
 debts of the homesteader before he acquires Ms patent ;* the 
 latter authorize the head of a family to designate property 
 (when acquired, or as already owned) as a homestead ; and so 
 to exempt it from his future debts.^ Thus, so far as their reliev- 
 ing property from debts of its owner is concerned, the state 
 statutes begin where the federal statute ends. 
 
 The Revised Statutes of the United States® authorize the 
 head of a family, or a person twenty-one years old, who is a 
 citizen of the United States or has filed a declaration of his 
 intention to become such, to " acquire not more than one hun- 
 dred and sixty acres of land by occupying and inhabiting" it, 
 or a portion of it, for five years ; or he may gain it sooner by 
 
 1 As to effect of delivery of a deed, * U. S. R. S. § 2296. 
 gee § 1109, infra. « § 533, infra. 
 
 2 § 691, infra. 6 U. S. E. S. §§ 2289-2317. 
 
 3 See N. Y. Code Civ. Pro. §§ 1397- 
 1404 ; 1 Stim. Amer. Stat. L. §§ 83-87. 
 
ESTATES DURING MARRIAGE — HOMESTEAD, 755 
 
 making certain prescribed pajments.i During its acquisition 
 and before the patent (deed from the government) issues, such 
 property is not liable for debts of the homesteader.2 Within 
 that time, also, it is made exempt from state taxation. But it 
 may be mortgaged as soon as the right to the patent is com- 
 plete.3 When the patent issues to the owner, the federal 
 exemption terminates. And from that time onward, but not 
 before, it becomes possible for any existing state homestead 
 law to affect the property.* 
 
 The several state homestead and exemption statutes, while 
 varying in detail, agree substantially in authorizing a house- 
 holder, or head of a family, to designate realty of a prescribed 
 value as a homestead ; and thereafter to continue to own it free 
 from liability for his debts (except some privileged kinds) ; sub- 
 ject to pass to his widow (and sometimes the surviving hus- 
 band) and children with the same exemption in their favor, 
 such exemption usually to continue during the life of the widow 
 or the minority of the youngest child ; liable to be lost as a 
 homestead interest by improper use or letting to others ; and 
 subject to have such rigjit waived, abandoned, or disposed of, 
 in favor of creditors or some classes of creditors.^ The follow- 
 ing brief discussion is restricted to these points of resemblance 
 among the various local statutes, (a) 
 
 (a) The New York homestead statutes declare that, " A lot of land, 
 with one or more buildings thereon, not exceeding in value one thousand 
 dollars, owned, and occupied as a residence, by a householder having a 
 family, and heretofore designated as an exempt homestead, as prescribed by 
 law, or hereafter designated for that purpose, as prescribed in the next sec- 
 tion, is exempt from sale, by virtue of an execution, issued upon a judg- 
 ment, recovered for a debt contracted after the thirtieth day of April, 
 1850 ; unless the judgment was recovered wholly for a debt or debts, 
 contracted before the designation of the property, or for the purchase- 
 money thereof. But no property heretofore or hereafter designated as an 
 exempt homestead, as prescribed by law, or by the next section, shall be 
 exempt from taxation, or from sale for non-payment of taxes or assess- 
 ments." 
 
 "In order to designate property, to be exempted as prescribed in the 
 
 1 U. S. R. S. §§ 2289-2291 ; Clark u. « U. S. E. S. § 2296; Hesnard v. 
 Bayley, t> Or. 343 ; Seymour v. Sanders, Plunkett, 6 S. D. 73. As to acquisi- 
 3 Dill (tr, S. Cir. Ct.), 437 ; Jarvis v. tion generally of land from the United 
 Hoffman, 43 Cal. 314. States, by "public grant," and under 
 
 2 U. S. R. S. § 2296 ; Luhrz v. Han- the federal homestead law, see § 1065, 
 cock, 181 U. S. 567 ; Miller v. Little, 47 infra. 
 
 Cal. 348. ° These matters are more fnlly ex- 
 
 3 Carroll v. Safford, 44 TJ. S. (3 plained in the next succeeding four sec- 
 How.) 441 ; Nycum v. McAllister, 33 tioiis of the text. 
 
 Iowa, 374. 
 
§ 531. Who entitled to Homestead — For whose Benefit. — . 
 
 The state statutes declare that this right shall belong to " a 
 householder having a family," or tp the " head of a family," or 
 they use expressions of similar import ; and some of them give 
 the right to any resident of the state.^ The test generally ac- 
 
 last section, a conveyance thereof, stating, in substance, that it is designed 
 to be held as a holnestead, exempt from sale by virtue of an execution, 
 must be recorded, as prescribed by law ; or a notice, containing a full de- 
 scription of the property and stating that it is designed to be so held, must 
 be subscribed by the owner, acknowledged or prbved, and certified, in like 
 manner as a deed to be recorded in the county where the property is situ- 
 ated ; and must be recorded in the oiBce of the clerk of that county, in a 
 book kept for that purpose, and styled the 'homestead exemption book.'" 
 
 " A lot of land, with one or more buildings thereon, owned by a mar- 
 ried woman, and occupied by her as a residence, may be designated as her 
 exempt homestead, as prescribed in the last section ; and the property so 
 designated is exempt from sale, by virtue of an execution, under the same 
 circumstances, and subject to the same exceptions, as the homestead of a 
 householder, having a family." 
 
 " The exemption, prescribed by the last three sections, continues, after 
 the death of the person in whose favor the property was exempted, as fol- 
 lows : 
 
 " 1. If the decedent was a woman, it continues, for the benefit of her 
 surviving children, until the majority of the youngest surviving child. 
 
 " 2. If the decedent was a man, it continues, for the benefit of his widow 
 and surviving children, until the majority of the youngest, surviving child, 
 and until the death of the widow. 
 
 " But the exemption ceases earlier, if the property ceases to be occupied, 
 as a residence, by a person for whose benefit it may so continue, except as 
 otherwise prescribed in the next section." Code Civ. Pro. §§ 1397-1400. 
 It is also provided that temporary suspension of residence, for not more 
 than a year, shall not destroy the homestead right; and that, if the property 
 chosen exceed one thousand dollars in value, that much of the .value in it 
 may nevertheless be treated as a homestead ; also that the homesteader - 
 may cancel the exemption, by a notice made and recorded in the same 
 manner as that by which it was created; and the method of disposing of 
 property when it exceeds a thousand dollars in value, and parcelling the 
 proceeds among the creditors and those having the homestead rights, is 
 carefully prescribed. Code Civ. Pro. §§ 1401-1404. This statute is fairly 
 and liberally construed, in harmony with its humane and remedial pur- 
 pose. Stewart v. Brown, 37 N. Y. 350. Accordingly, a debtor can not 
 waive the exemption by a prospective agreement. Kneettle v. Newcomb, 
 22 N. Y. 249. But the exemption is from debts contracted ; and not from 
 other obligations, as for torts, or the costs of an action. See Schouton 
 V. Kilmer, 8 How. Pr. 527; Robinson v. Wiley, 15 N. Y. 489; Crawford 
 V. Lockwood, 9 How. Pr. 547 ; Peck v. Ormsby, 55 Hun, 265; Lathrop v. 
 Singer, 39 Barb. 396. 
 
 1 N. Y. Code Civ. Pro. § 1.397; Calhoun v. Williams, 32 Gratt. (Va.) 
 Sproul V. McCoy, 26 Ohio St. 577; 18; Dawley v. Ayers, 23 Cal. 108; 
 
ESTATES DURING MARRIAGE — HOMESTEAD. 757 
 
 cepted by the courts, as to who is the llead of a family, is that 
 this means one under a legal or moral duty to support a person 
 or persons living with him.^ Such is a husband living with his 
 wife, though they have no children ; or a son living with and 
 supporting his mother; or a brother his sister; or a woman 
 caring for and living with her illegitimate child.^ 
 
 With substantial uniformity, the statutes extend the favor of 
 this exemption, not only to the homesteader himself while he 
 lives, but also to his widow, so long as she survives him and 
 remains unmarried, and to his minor children while the young- 
 est is under twenty-one years of age ; ^ and in a number of 
 states, a surviving husband is given the same rights in the 
 homestead property of the wife, who even during coverture is 
 authorized to acquire a separate homestead.* 
 
 § 532. Character, Amount and Time of Exemption. — Estates, 
 both legal and equitable, are usually entitled to be brought 
 under these exemptions, and this whether they are in fee, for 
 life, or for years.* Equities of redemption are included, and 
 even rights emanating from contracts to purchase realty.® In- 
 terests in partnership property, as a rule, can not be desig- 
 nated as homesteads, nor can remainders or reversions after 
 freehold interests.'^ In some states, a very beneficent addition 
 is found, in the form of exemptions, in favor of surviving wife 
 Linton v. Crosby, 56 Iowa, 386 ; Wa- v. Lord, 87 Ga. 592 ; Hoppe ./. Foun- 
 ples, Homest. ch. 3; Thomp. Homest. tain, 104 Cal. 94; Thomp. Homest. & 
 & Exemp. 39, 52. Exemp..454, 476. 
 
 1 Meyer v. Drummond, 32 S. C. 165 ; * 1 Stim. Amer. Stat. L. § 87 ; Stults 
 Bank of VersaiUes v. Gnthrey, 127 Mo. o. Sale, 92 Ky. f>; Inre Lamb's Estate, 
 189; Blackwell v. Broughton, 56 Ga. 95 Cal. 397; Hall v. Fields, 81 Tex. 
 390 ; Lane v. Philips, 69 Tex. 240 ; 553. In New York, a married woman 
 Thomp. Homest. & Exemp. 46. See may acquire a homestead, which will 
 Whalen v. Cadman, 11 Iowa, 226; enure to the benefit of her surviving 
 Powers V. Sample, 72 Miss. 187. children till the youngest is twenty- 
 
 2 Ibid.'; Kitchell v. Burgwin, 21 HI. one; but there is no provision in favor 
 40 ; Cox ' V. Stafford, 14 How. Pr. of any surviving husband. N. Y. Code 
 (n! Y.) 519; Pierce v. Kusic, 56 Vt. Civ. Pro. §§ 1399, 1400. 
 
 418; Marsh v. Lazenby, 41 Ga. 153; ^ Bartholomew f.West, 2 Dill. (U. S. 
 
 Miller V. Einegan, 26 Fla. 29; Green- Cir. Ct.) 293; Doane v. Doane, 46 Vt. 
 
 wood V. Maddox, 27 Ark. 649; EUis v. 485 ; McKee v. Wilcox, 11 Mich. 358 ; 
 
 White 47 Cal. 73. But ordinarily it Maatta v. Kippola, 102 Mich. 116; Al- 
 
 does not include a person having no len w. Hawley, 66 111. 164; Alexander.-. 
 
 one dependent on him, and simply liv- Jackson, 92 Cal. 514 ; Tyler v. Jewett, 
 
 ing with hired servants. Ellis v. Davis, 82 Ala. 93 ; Waples, Homest. 108. 
 
 90 Ky. 183 ; Calhoun v. McLendon, 42 o Ibid. ; Fyffe v. Beers, 18 Iowa, II ; 
 
 Ga 405- Whitehead v. Nickelson, 48 Cheatham v. Jones, 68 N. C. 153. 
 
 .j.gx 517 7 Ibid.; Drake u. Moore, 66 Iowa, 
 
 3 N Y. Code Civ. Pro. § 1400; 1 53; Howell v. Jones, 91 Tenn. 402; 
 Stim. Amer. Stat. L. § 87 ; Fleetwood Kingsley v. Kingsley, 39 Cal. 665. 
 
758 ESTATES IN REAL PROPERTY. 
 
 or minor children, of property not made a homestead during 
 the life of the father or husband. This has been designated 
 probate homestead.^ 
 
 The amount of property which may be thus withdrawn from 
 creditors varies, of course ; one thousand dollars worth, as in 
 New York, being about an average amount.^ It is usually held 
 that, in estimating the value, improvements on the land shall be 
 included ; and it is quite generally insisted that the piece to be 
 taken as a homestead shall be one connected piece or tract, and 
 not made up of separated parcels.^ 
 
 v/The gist of these exemptions is to provide a home for a 
 debtor and his family. Therefore, the ordinary time for their 
 continuance is during his life, and the life of his surviving 
 widow or while she remains unmarried, and the minority of the 
 youngest child.^ And in some of the laws, which authorize a 
 married woman to acquire a homestead, a surviving husband is 
 given the same right during his life.^ 
 
 § 533. Debts excluded — Form and Notice of such Ezclu- 
 aion. — Most debts of a homesteader, contracted after the prop- 
 erty is duly designated and noticed as a homestead, can not 
 reach such property for their payment. The exceptions, called 
 privileged debts, are carefully specified by the statutes ; and 
 generally include obligations incurred for all or some portion of 
 the purchase money, of the homestead property, taxes, assess- 
 ments, and sales for taxes and assessments ; also quite usually 
 debts contracted for improving the property or for removing en- 
 cumbrances therefrom.^ Notice to those who may become 
 
 1 Mercier v. Chace, 9 Allen (Mass.), Messner, 30 Tex. 604. See Bank v. 
 242 ; Lindsey o. Brewer, 60 Vt. 627 ; Gale, 42 Vt. 27 ; Mayho v. Cotton, 69 
 Atkinson v. Atkinson, 40 N. H. 249 ; N. C. 289 ; Hodges v. Winston, 95 Ala. 
 Norris V. Morrison, 45 N. H. 490 ; How- 514. 
 
 ell V. Jones, 91 Tenn. 402; Steiner v. * N. Y. Code Civ. Pro. § 1400,; 1 
 
 McDaniel, 110 Ala. 409. Stim. Amer. Stat. L. § 87; Kerley v. 
 
 2 N. Y. Code Civ. Pro. §§ 1397, 1402, Kerley, 13 Allen (Mass.), 286 ; Hoppe 
 1403; 1 Stim. Amer. Stat. L. § 83; v. Fountain, 104 Cal. 94; .Tones v. Gil- 
 Vanstory v. Thornton, 110 N. C. 10; bert, 135 111. 27; Wilson v. Proctor, 28 
 Thomp. Homest. & Exemp. 100. Minn. 13 ; Dayton v. Donart, 22 Kan. 
 
 8 Ibid.; Adams u. Jenkins, 16 Gray 256; Hunter v. Law, 68 Ala. 365; 
 
 (Mass.), 146; True v. Morrill, 28 yt. Thomp. Homest. & Exemp. §§ 569- 
 
 672; Reynolds v. Hull, 36 Iowa, 394; 579; Waples, Homest. ch. 21. 
 
 Bunker u. Locke, 15 Wis. 635. Some ^ Henson v. Moore, 104 lU. 403; 
 
 statutes specify particularly means of Burns v. Keas, 21 Iowa, 257 ; Ellis v. 
 
 ascertaining value, and make careful Davis, 90 Ky. 183 ; In re Armstrong's 
 
 distinction between urban and rural Est. 80 Cal. 71. 
 
 properties in this particular. Frost, " N. Y. Code Civ, Pro. § 1397; 1 
 
 V. Rainbow, 85 Iowa, 289 ; Bassett v. Stim. Amer. Stat. L. § 83 ; Titus v. 
 
ESTATES DURING MARRIAGE — HOMESTEAD. 759 
 
 creditors after the property has become a homestead is required 
 in some states, as for example in New York, to be given by 
 deed, or written notice, duly acknowledged and recorded ; in 
 other jurisdictions, actual occupancy of the property as a home 
 for the owner and his family is sufficient.^ Perhaps tlie pre- 
 vailing theory of the statutes is that open, continued occupancy 
 by a family is sufficient notice of homestead rights ; but the 
 safe form of law is that which requires record of written notice.^ 
 
 The property to be held as a homestead may be selected by 
 the homesteader, and indicated by residence or notice as above 
 stated ; and it is usually provided that, when the specific piece 
 of land so chosen exceeds in value the authorized amount, tliat 
 much may be deducted and retained, practically as equitably 
 converted back into realty, for the benefit of the homesteader, 
 out of the larger amount obtained from the sale of the land for 
 payment of his debts.^ 
 
 § 534. Termination of Homestead Rights. — The favor con- 
 ferred by these important statutes may be lost by abandonment, 
 or waiver, or alienation of the property specifically free of the 
 claim. Failure to occupy the land as a home, continued for the 
 prescribed period, as in New York for over one year, causes its 
 loss by abandonment.* Obtaining or designating another piece 
 of property for a homestead does the same ; and so ordinarily 
 does leasing all or any portion of it for business purposes, or 
 letting it out for any purpose that tends to indicate a relin- 
 quishment of it as a home.^ The homesteader may waive the 
 exemption, either entirely, or in favor of specific debts when 
 they are contracted.^ The most careful statutes require this to 
 be done by the recording of a notice similar to that by which 
 
 Warren, 67 "Vt. 242 ; Henaey o. Hen- * In New York, because of injury to 
 
 sey, 92 Ky. 164 ; First Nat. Bk. v. or destruction of the dwelling house. 
 
 Bruce, 94 Cal. 77; Griffin v. Treut- N. Y. Code Cir. Pro. §§ 1400, 1401; 
 
 len, 48 Ga. 148; Thomp. Homest. & Loveless «. Thomas, 152 111. 479 ; Corey 
 
 Exemp. § 253. . v. Schuster, 44 Neb. 269; William 
 
 1 N. Y. Code Civ. Pro. § 1398; 1 Deering & Co. v. Beard, 48 Kan. 16; 
 
 Stim. Amer. Stat. L. § 86; McMonegal Thomp. Homest. & Exemp. § 218. 
 
 V. Wilson, 103 Mich. 264; Titman v. ^ Foster v. Leland, 141 Mass. 187; 
 
 Moore, 43 111. 169; Drake v. Root, 2 Drury v. Bachelder, 11 Gray (Mass.), 
 
 Colo. 685; Gregg v. Bostwick, 33 Cal. 214; Cahill v. Wilson, 62 111. 137; Her- 
 
 220; Thomp. Homest. & Exemp. rick «. Graves, 16 Wis. 163; Davis r. 
 
 §§ 198, 199. Andrews, 30 Vt. 678; Locke v. Eowell, 
 
 ' 2 Xbid, 47 N. H. 46; Kaes ;;. Gross, 92 Mo. 647. 
 
 3 N. Y. Code Civ. Pro. §§ 1402, 1403 ; " Hutching f. Huggins, 59 111. 29 ; 
 
 Amphlett v. Hibbard, 29 Mich. 298; Ferguson v. Kumler, 25 Minn. 183; 
 
 Miller's Appeal, 16 Pa. St. 300; May- Webster v. Trust Co., 93 Ga. 278; 
 
 field u. Maasden, 59 Iowa, 517. Thomp. Homest. & Exemp. § 384. 
 
760 ESTATES IN REAL PROPERTY. 
 
 the exemption is acquired.^ But, in the absence of such posi- 
 tive legislation, the waiver may be accomplished by agreement 
 with the creditor in the act of creating the debt, the debtor's 
 wife usually being required to join in the agreement.^ 
 
 Where written recorded notice of relinquishment of the 
 right is not demanded by the statute,^ it may be disposed of in 
 the process of selling the homestead property.* Where this is 
 possible, and it is so in most states, the statute generally re- 
 quires the wife of a homesteader to unite with him in the con- 
 veyance, or to express clearly in writing, or in some other way 
 designated by the statute, her relinquishment of her interest in 
 the homestead land." 
 
 These few general statements, as to homestead and exemp- 
 tion laws and interests, are probably all that can be of service 
 in a work of this character. Full discussions of the statutes 
 and their constructions may be found in such treatises as 
 Thompson on Homestead and Exemption Laws, Waples on 
 Homestead and Exemptions, and Smyth on Homestead and 
 Exemptions ; and in the treatment of the subject in the Ameri- 
 can and English Encyclopaedia of Law, and in The Cyclopaedia 
 of Law. 
 
 § 535. Conclusion as to kinds of Life Estates. — In this 
 chapter, some estates have been referred to which are not neces- 
 sarily for life. The proposition is generally true, however, that 
 most of the interests created by operation of law or statute 
 from the married relationship — curtesy, dower, jointure, es- 
 tates during marriage and homestead — are life estates ; and 
 the discussion of those that may extend to greater length, such 
 as some forms of jointure for example, logically belongs with 
 the treatment of life interests. All the life estates, both con- 
 ventional and legal, have now been explained, so far as their 
 origin and general character are concerned. It simply remains 
 to discuss, with regard to all of them, the rights and duties of 
 life owners of real property. Those matters are the topics of 
 the following chapter. 
 
 1 N. Y. Code Civ. Pro. § 1404 
 Thomp. Homest. & Bxemp. § 384. 
 
 2 Ibid. ; Beecher v. Baldy, 7 Mich, 
 488; Crum v. Sawyer, 132 111. 443 ; Lit- 
 tlejohn V. Bgerton, 76 N. C. 468. 
 
 » See N. Y. Code Civ. Pro. § 1404 
 
 * Ibid. ; Burnside t\ Terry, 51 Ga. 
 186; Gilbert u. Cowan, 3 Lea (Tenn.), 
 203 ; Fishback v. Lane, 36 111. 437 ; 
 Thomp. Homest. & Exemp. § 401. 
 
 s Ibid. ; Snyder v. People, 26 Mich. 
 106 ; Wallace v. Insurance Co., 54 Kan. 
 
 1 Stim. Amer. Stat. L. § 85. 442 ; Lamb v. Shays, 14 Iowa, 567 ; 
 
 Poland V. Vesper, 67 Mo. 727. 
 
CHAPTER XXXVII. 
 
 RIGHTS AND DUTIES OP LIFE TENANTS- 
 MENTS WASTE. 
 
 - ESTOVERS — EMBLE- 
 
 § 536. Nature of life estates — 
 Rights and duties of their owners 
 are relative. 
 
 RigliU of Life Tenants. 
 
 § 537. Life tenant's rights in 
 general. 
 
 § 538. Life tenant's right to the 
 use and enjoyment of the property 
 — Apportionment of rent. 
 
 §539. Life tenant's right to alien- 
 ate all or part of his interest. 
 
 § 540. Common-law forfeiture be- 
 cause of life tenant's attempted 
 alienation of more than his own 
 estate. 
 
 § 541. A life tenant's estovers. 
 
 § 542. Life tenant's emblements. 
 
 § 543. First, the estate of him 
 who obtains emblements must ordi- 
 narily be of uncertain duration. 
 
 § 544. Second, the crops to be 
 taken as emblements must be the 
 result of annual cultivation. 
 
 § 545. Third, emblements do not 
 belong to a life tenant who termi- 
 nates his own estate. 
 
 § 546. Fourth, emblements belong 
 to the life tenant who substantially 
 causes the crop to begin to grow. 
 
 Duties of Life Tenants. 
 
 § 547. A life owner's four duties. 
 
 § 548. A life tenant must protect 
 and not deny or impair the succeed- 
 ing owner's title. 
 
 § 549. A life owner must keep en- 
 cumbrances from increasing against 
 the property. 
 
 § 550. A life tenant must make 
 substantial repairs — Improvements 
 made by him. 
 
 § 551. A life tenant must abstain 
 from committing waste. 
 
 Waste. 
 Waste defined and ex- 
 Kinds of waste. 
 How waste may be com- 
 
 §552. 
 plained. 
 
 §553. 
 
 § 554. 
 mitted. 
 
 § 555. First, waste affecting the 
 soil or things that it contains. 
 
 § 556. Second, waste affecting 
 trees — Natural products of the soil. 
 
 § 557. Third, waste affecting arti- 
 ficial erections on the land. 
 
 § 558. Remedies for waste. 
 
 § 559. Conclusion as to freehold 
 estates. 
 
 § 536. Nature of Life Estates — Eights and Duties of their 
 Owners are Relative. — A life owner, or life tenant as the law 
 frequently designates him, has more than a mere jus in re 
 aliena — more than a umfruet of the land.^ From the time 
 
 1 2 Poll. & Malt. Hist. Eng. Law (2d ed.), p. 8. 
 
762 ESTATES IN REAL PROPERTY. 
 
 when history gives us the first glimpses of him, he has been re- 
 garded as an owner of the land, — a temporary owner, it is true, 
 but nevertheless an owner.^ Proprietary rights in realty have 
 always been projected by tlie common law upon the plane of 
 time. And, if we treat the fee simple as extending over that 
 plane in an infinite straight line, the life owner's interest is 
 simply a small piece of that line. The quantum of his estate is 
 finite. That of the fee-simple owner is infinite.^ The life 
 tenant, as has been heretofore explained, is a freeholder. He 
 has a legally protected seisin. He is' the representative of the 
 land in common-law litigation. It was only by gradual stages 
 that his obligations to the succeeding owner, as they are now 
 recognized, such, for example, as his liability for waste, were 
 fully developed.^ The life tenant, therefore, as distinguished 
 from a mere possessor or usufructuary, must be understood in 
 discussing his rights and duties as an owner, one to whom be- 
 longs a definite portion of the infinite straight line of owner- 
 ship of the property. 
 
 But, standing thus as a temporary proprietor, the life tenant ' 
 becomes obligated, as the common law unfolds, to recognize, 
 to conserve, and in large degree to defend the interests of 
 succeeding owners. These duties flow directly between the life 
 owner and the reversioner, because of the fealty which the 
 feudal system imposes upon the former ; and derivatively be- 
 tween the life owner and the remainderman, who, through the 
 rights derived from previous owners or through the provisions 
 of statutes, was gradually made able to enforce them.* There- 
 fore, with natural, inherent rights to deal with and dispose of his 
 interest as an owner, the life tenant holds those rights and that 
 interest in a position somewhat subordinate to the succeeding 
 owner, whose correlative rights he must respect. The solutions 
 of questions as to such a temporary owner's dealing with the land 
 will ordinarily be found in these general principles. The fur- 
 ther discussion of them calls for a division of the topics into, 
 first, rights of life tenants ; and second, duties of life tenants. 
 
 1 Ibid. ; Digby, Hist. Law E. P. Fox, 2 C. B. n. 8. 768 ; Goode k. Gaines, 
 (5th ed.) p. 28, note 1. 145 U. S. 141 ; Hall v. French, 165 Mo. 
 
 2 2 PoU. & Mait. Hist. Eng. Law 430 ; Anderson o. Messinger, 77 C. C. 
 (2d ed.), pp. 8-10. A. 179 ; 1 Prest. Est. pp. *45-*59, *207, 
 
 8 Ibid. ; §§ 72, 415, supra. »208 ; 2 Poll. & Mait. Hist. Eng. Law 
 
 * Co. Lit. a43a, 298 a ; Delaney v, (2d ed.), pp. 6-8 ; §§ 866, 872, infra. 
 
BIGHTS AND DUTIES OF LIFE TENANTS. 763 
 
 Rights of Life Tenants. 
 
 § 537. Life Tenant's Rights in General. — As a temporary 
 owner of the real property, with the general powers over it 
 which flow from such ownership qualified as they are by his 
 relation to the succeeding tenants, the life tenant lias rights 
 that may be grouped conveniently imder four heads or classes. 
 These are : his right to use, and enjoy the land ; his right to 
 alienate or dispose of all or part of his interest ; his right to 
 estovers ; and his right to emblements. A brief discussion of 
 each of these is required. 
 
 § 538. Life Tenant's Right to the Use and Zinjoyment of the 
 Property — Apportionment of Rent. — Subject to the law's pro- 
 hibition of waste,^ the tenant for life may have all the use and 
 enjoyment of the property, in the condition in which he re- 
 ceives it, that he can reasonably obtain during his ownership. 
 Thus, he may cultivate it and take the crops. He may lease it 
 out, for his entire period or less, and obtain the rents, profits, 
 and income. And when he is the temporary proprie1;or of 
 realty held under a lease made by a former owner, and so is 
 occupying by another's act the position of landlord to the 
 lessee, he may collect and retain all the rents and services 
 from such lessee during the continuance of his own estate.^ 
 
 It has been heretofore explained that, if a lease for yeai's be 
 for such a term that a life tenant is the landlord during a part 
 of the time, and on his death another will become the landlord, 
 any rent moneys or returns becoming due after the death of 
 the life tenant, though they^ partly accrued before that time, 
 would belong at common law entirely to the succeeding land- 
 lord.^ Thus, when A was tenant and B was his first landlord 
 during B's life, and after B's death C, as the fee owner^ became 
 his landlord, rent money, becoming due after B's death for a 
 period during a part of which B had lived, would all be col- 
 lected and retained by C at common law.* As was heretofore 
 explained, this unfairness in result has been uniformly done 
 away with by modern statutes ; and the representatives of the 
 life owner, after his death, may recover from the succeeding 
 
 y 
 
 1 For discdsBion of waste as an in- tions of a life owner's' right to use the 
 jury to the " inheritance " or succeeding land are found in the law of " waste," 
 interest, see §§ 551-558, infra. q. t. §§ 551-558, infra. 
 
 2 2 Blaokst. Com. pp. *122, *123 ; » § 110, supra. 
 Wms. K. P. pp. *23-*25. The limita- * Ibid. 
 
764 
 
 ESTATES IN REAL PROPERTY. 
 
 landlord the proportionate amount of the money thus paid, 
 which is represented by the period during which the life owner 
 was landlord.^ Thus the right of the life tenant to the appor- 
 tionment of rents has been made by modern legislation one of 
 his very material interests. 
 
 § 539. Life Tenant's Right to alienate All or Fart of his 
 Interest. — Being the owner of a temporary interest, a life 
 tenant, when not restricted by the terms of the conveyance to 
 him, may transfer or mortgage that interest or any part 
 thereof.^ But in this connection it must always be borne in 
 mind that one can not sell what he does nof own. The life 
 tenant, of course, can not alienate the property in fee. Thus, 
 if land be owned by A for life, remainder to B and his heirs, a 
 purchaser wh^o desires to acquire the fee must obtain a convey- 
 ance from both A and B. All that A can dispose of, without 
 B's concurrence or assistance, is that finite portion of the line 
 of ownership which is represented by his life.^ He may alienate 
 all of this, or he may lease it temporarily, or he may grant it 
 to another during such other's life, or he may convey it to one 
 and the heirs of his body and so create a quasi estate tail as 
 heretofore explained.* 
 
 1 Ibid. For general discussion of 
 apportionment of rent, see §§ 110, 118, 
 supra. 
 
 2 Jackson v. Van Hoesen, 4 Cow. 
 (N. Y.) 325 ; Criswell v. Grumbling, 
 i07 Pa. St. 408 ; Ridgely v. Cross, 83 
 Md. 161; 1 Cruise, Dig. tit. iii. ch. i. 
 §32. 
 
 ' Ibid. ; BramhaU v. Ferris, 14 N. 
 Y. 41 ; Brustmau v. Motrie, 118 N. Y. 
 App. Dir. 395 ;■ Dickinson v. Blake, 
 116 N. Y. App. Div. 545 ; McDonald v. 
 Woodward, 58 S. C. 554. 
 
 * § 430, supra. When a life tenant 
 conreys his entire interest, he thus 
 brings into being an estate per autre vie, 
 § 443, supra. Thus, if A, holding land 
 for his own life, transfer it to B, he, of 
 course, makes B the owner of it during 
 the life of A. This is a very ordinary 
 method of bringing an estate per autre 
 vie into existence. When a life owner 
 leases his interest, thus creating, for ex- 
 ample, an estate for five or ten or fifty 
 years, he does so subject to his own 
 limitations ; and the interest of the ten- 
 ant for years must terminate at the 
 
 death of the life owner, though the 
 time designated in his lease has not ex- 
 pired. It is for this reason that the 
 custom arose in the common law of 
 adding to the interests of life owners 
 powers to make leases for definite pe- 
 riods, usually twenty-one years, that 
 should continue though the lessors died. 
 Thus, if land were conveyed to A for 
 his life without any added power, and 
 A leased it for ten years, and died eight 
 months thereafter, the lease would im- 
 mediately terminate on A's death. But 
 if A were given in addition to his life 
 estate a power to make leases, say for 
 twenty-one years at a time, and he 
 leased for ten years by virtue of his 
 power, the lease would continue and 
 make the lessee the tenant of the subse- 
 quent owner of the land, even though A 
 died at the end of eight months, or at 
 any time within the ten-year period of 
 the lease. A power to lease so given to 
 a life tenant, or other temporary owner, 
 is a power appendant. For explana- 
 tion of such powers, see, § 924, infra. 
 
BIGHTS AND DUTIES OP LIFE TENANTS. 765 
 
 § 540. Common-Law Forfeiture because of Life Tenant's At- 
 tempted Alienation of more than his own Estate. — At common 
 law, an attempt by a life tenant to convey the real property in 
 fee by a common law method of transfer, i. e., by feoffment and 
 livery of seisin, or by fine or common recovery, was regarded 
 both as a renunciation of the feudal connection between him 
 and the lord of the fee, and as divesting the seisin of the right- 
 ful succeeding owner and turning it into a mere right«of entry 
 on the part of the latter. Therefore, such a tortious convey- 
 ance by the life tenant produced a forfeiture of his own estate.^ 
 A transfer merely by lease, however long, did not produce this 
 result, because it did not interfere with the seisin ; ^ nor did a 
 conveyance by an instrument operating by virtue of the statute 
 of uses, and without transmutation of possession, such as a 
 deed of bargain and sale, or covenant to stand seised, or lease 
 and release.^ 
 
 These rules and results were highly technical. And, while 
 in theory they may be found still operating in a few jurisdic- 
 tions where corrective legislation has not been passed, yet in 
 England, by virtue of the Statute 8 & 9 Vict. ch. 106, sec. 4, 
 in New York, Maine, Massachusetts, Michigan, and most of the 
 American states by positive legislation, and in practically all 
 others by tacit acquiescence of their courts, they have been 
 substantially abolished.* And the one wo'rking principle of 
 to-day is that he who owns any temporary estate, whether for 
 life, or years, or otherwise, transfers simply what he owns, 
 though by his instrument he essays to convey a greater 
 interest.^ (a) 
 
 (a) In New York, the common-law rule as to tortious conveyances ex- 
 isted until it was abolished by the Revised Statutes, Jan. 1, 1830. The 
 statute, in its present form, declares that, — "A conveyance wade by a 
 tenant for life or years, of a greater estate tlian he possesses, or can law- 
 fully convey, does not work a forfeiture of his estate, but passes to the 
 grantee all the title, estate, or interest which such tenant can lawfully con- 
 
 1 Lit. §§ 415, 416; Co. Lit. §§ 2.51, * N. Y. L. 1909, ch. 52, § 245 ; 1 
 
 252; 2 Blackst. Com. pp. *274, *275. Stim. Amer. Stat. L. § 1402 ; ^McKee v. 
 
 See § 287, supra. Pfout, 3 U. S. {3 Dall.) 486 ; Hurd v. 
 
 '^ Ibid. ; Locke v. Rowell, 47 N. H. 46. Cashing, 7 Pick. (M-ass.) 169 ; Quimby 
 
 8 Jackson v. Mancius, 2 Wend. (N. v. Dill, 40 Me. 528 ; Hotel Co. v. Marsh, 
 
 Y.) 357 ; Thompson v. Simpson, 128 N. 63 N. H. 230 ; Middleton v. Dougherty, 
 
 Y. 270, 285 ; Stevens v. Winship, 1 46 N. J. L. 350 ; Smith v. Cooper, 59 
 
 Pick. (Mass.) 318 ; 4 Kent, Com. p. •84. Ala. 494 ; Wms. R. P. p »146 ; 4 Kent, 
 
 For description of such conveyances. Com. p. *83 ; 1 Wash. R. P. (6th ed.) 
 
 and how they operate, see §§ 1052-1054, § 232, note 1. 
 
 infra. ^ Ibid. 
 
766 ESTATES IN REAL PROPERTY. 
 
 The grantor of a life estate may validly restrict its aliena- 
 tion. He may, for example, successfully provide that the life 
 interest shall terminate if its owner should attempt to convey 
 or encumber it, or if it be attached, or be sought to be taken 
 away from him on execution by his creditors.^ And it has been 
 heretofore shown how spendthrift trusts, and trusts for the sole 
 and separate use of married women, and some statutory trusts, 
 such as the third and fourth forms of active express trusts of 
 New York, may validly restrain the alienability of life interests.^ 
 It is simply to be added here that the only limitation, on the 
 part of the grantor, to restrain the alienability of life estates, 
 has been enunciated in the rule, that he can not successfully 
 provide merely that an attempt by the life owner to sell or 
 encumber his interest shall be void — he can not so fix it that 
 the life estate must remain intact, free from alienability ; for 
 that would be repugnant to the nature of the estate.^ 
 
 § 541. Life Tenant's Estovers. — Estovers, or "botes" in 
 Anglo-Saxon, are such and so much wood or timber as 
 life tenants and other temporary owners, such as tenants for 
 years or from year to year, have a right to take from the 
 land when needed for one or more of three purposes. Those 
 purposes are indicated by the names given to the three kinds 
 of botes, which are, house-bote or fire-bote, hay-bote or hedge- 
 bote,* and plough-bote. The first of these is wood taken from 
 the land sufficient for repairing the houses and burning as 
 fuel. The second is wood taken for the suitable repairing of 
 the hedges, gates, or fences upon the property. And tlie third 
 is wood for repairing ploughs and other agricultural imple- 
 
 vey." Real Prop. L. (L. 1909, ch. 52) § 217, which was originally 1 
 R. S. 739, § 145. Even before 1830, a conveyance by a tenant by curtesy, 
 in order to work a forfeiture, must have been by feoffment and livery of 
 seisin. Jackson v. Mancius, 2 Wend. 357. See Thompson ii. Simpson, 
 128 N. Y. 270; Moore v. Littel, 41 N. Y. 6G, 78; Sparrow u. Kingman, 1 
 N. Y. 242 ; Grout v. Townsend, 2 Hill, 554. 
 
 1 Lockyer c. Savage, 2 Stra. 947 ; 2 §| 335^ 335, and note p. 496, supra. 
 
 Nichols V. Eaton, 91 U. S. 716; De » Hallett v. Thompson, 5 Paige 
 
 Peyster v. Michael, 6 N. Y, 467, 491 ; (N. Y.), 586 ; Bramhall v. Ferris, 14 
 
 Jackson u. Silvernail, 15 Johns. (N. Y.) N. Y. 41, 44; Todd v. Sawyer, 147 
 
 278; Gray, Restr. Alien. Prop. §§ 78- Mass. 570; Hahn v. Hutchinson, 159 
 
 89. But one who grants an estate to Pa. St. 133 ; Bridge w. Ward, 35 Wis. 
 
 himself for life can not take away his Bfi^T; Gray, Restr. Alien. Prop. § 134. 
 own right to alienate. Gray, Restr. * The Anglo-Saxon word " hay " 
 
 Alien. Prop. §§ 90-99. See Schenck v. means hedge. 2 Blackst. Com. p. * 35. 
 Barnes, 156 N. Y. 316. 
 
BIGHTS AND DUTIES OF LIFE TENANTS. 767 
 
 men^s to be used upon the land.^ The privilege of a life tenant 
 to take enough timber for these purposes is as old as the com- 
 mon-law recognition of his estate, and is found in modern law 
 substantially as it has always existed.^ 
 
 The kinds of wood that may be taken for these purposes have 
 been carefully designated in England; and, without so much 
 exactness, are subject to some limitations in the United States. 
 In the mother country, the maxim early arose and has since 
 existed that "Oak, ash and elm are timber throughout the 
 realm " ; and such wood especially is entitled to be protected 
 and preserved. Wood, other than timber, can be taken without 
 such careful restriction, and the law of estovers applies prima- 
 rily to timber only.^ In this country this distinction has not 
 been recognized, and all kinds of wood are treated substantially 
 alike in applying the law of estovers.* On both sides of the 
 Atlantic, the life owner must not cut down living trees, when 
 there is sufficient deadwood for his purposes ; he must not 
 destroy fruit trees nor those that are ornamental, nor take 
 wood of a superior quality when that of an inferior quality on 
 the land will suflSce ; he must not fell more than is needed ; 
 and if he do so he will be guilty of waste.^ He is also guilty 
 of waste, probably everywhere, when he allows the fences or a 
 house on the land unreasonably to go to decay, and then for 
 the purpose of repairing cuts more wood than would otherwise 
 have been needed.® So, he is not permitted to take wood to 
 make improvements or additions which he is not legally re- 
 quired as life owner to make.'' And if, under the guise of 
 estovers, he cut wood for the purpose of selling it or exchang- 
 
 1 Co. Lit. 41 b, 53 b; 2 Blacist. son, 110 Pa. St. 473; Webster v. 
 Com. pp. *35, *122 ; Jackson v. Webster, 33 N. H. 26 ; Davis u. Clark, 
 Brownson, 7 Johns. (N. Y.) 227 ; Van 40 Mo. App. 515 ; Keeler v. Eastman, 
 Deusen v. Young, 29 N. Y. 9 ; Padel- U Vt. 293; 1 Taylor, Landl. & T. 
 ford V. Padelford, 7 Pick. (Mass.) 152; § 351. The extent to which trees may 
 Smith V. Jewett, 40 N. H. 530 ; Walters he cut by a life owner is further dis- 
 V. Hutchins, 29 Ind. 136. cussed, infra, under the subject of 
 
 2 Ibid. ; 4 Kent, Com. p. *73. waste. 
 
 8 Co. Lit. 53 a; Honywood v. Hony- ' Doe d. Foley v. Wilson, 11 East, 
 
 ■wood, L. R. 18 Bq. 306, in which oak, 56 ; Sarles r. Sarles, 3 Sand. Ch. 
 
 ash. and elm are said to make timber (N. Y.) 601 ; Van Deusen v. Young, 
 
 only when they are twenty years or 29 N. Y. 9, 30; BeUows v. McGiimis, 
 
 more of age and not too old to be usable 17 Ind. 64; White w. Cutler, 17 Pick, 
 
 wood. Dashwood v. Magniac (1891), (Mass.) 248; I Willard, R. P. 76 ; 1 
 
 3 Ch. 306. Taylor, Landl. & T. §§ 351-353. 
 
 < Livingston v. Reynolds, 26 Wend. ^ Ibid. ; Co. Lit. 53 b. 
 
 (N. Y.) 122; Jackson v. Brovrason, 7 ' Ibid. ; Miller w. Shields, 55 Ind. 71. . 
 Johns. (N. Y.) 227 ; Sayers v. Hoskin- 
 
768 ESTATES IN REAL PEOPERTT. ^ 
 
 ing it for other timber, though he use the latter for repairs on 
 the land, he is guilty of waste.^ 
 
 The right to estovers is an important incident of life estates, 
 and as such is assignable, or transferable, or capable of being 
 encumbered therewith. But it can not be separated from the 
 principal property to which it attaches and assigned as a dis- 
 tinct interest.^ 
 
 § 542. Life Tenant's Emblements. — Not only may the owner 
 of a life estate take from the land the annual crops which he 
 brings to maturity during his life, but also, after his death, or 
 at the prior termination of his estate by an event the time of 
 which was uncertain, he or his personal representatives are 
 entitled to crops of that nature which are growing there at 
 that time. Such crops are designated " emblements " ; ^ and 
 in some jurisdictions, such as England, Pennsylvania, and New 
 Jersey, where the right to them is extended by special custom, 
 they are denominated " away-going crops." * A life tenant's 
 interest in such crops not only permits him or his represen- 
 tatives, as the case may be, to take them after his death, but 
 also includes the privilege of going on the land and doing all 
 that is necessary to bring them to maturity and harvest them.^ 
 This is not an absolute ownership or tenancy of the land 
 after the life owner's death, but simply the right of using 
 and dealing with the property as far as is reasonably neces- 
 sary to produce and take away the annual crops.® The right 
 of eniblements presents a very definite branch of law, which 
 may be summarized by describing its four requisites. These 
 are : First, the estate of him who obtains emblements must be 
 uncertain in duration ; seeond, the crops must be the result of 
 annual cultivation ; third, the estate must not terminate by the 
 act or will of its owner ; a.nd fourth, he to whom the emblements 
 are to belong must have been the substantial cause or producer 
 of the crop. A few words as to each of these requisites. 
 
 1 Simmons v. Norton, 7 Bing. 640; (N. Y.) 108; Eeiff w. Reiff, 64 Pa. St. 
 Robinson v. Kime, 70 N. Y. 147 ; White 134 ; Thornton v. Bnrch, 20 Ga. 791 ; 
 V. Cutler, 17 Pick. (Mass.) 248 ; Miles «. 4 Kent, Com. p. * 122. 
 
 Miles, 32 N. H. 147 ; Armstrong v. * Wigglesworth v. Dalliaon, 1 Doug. 
 
 "Wilson, 60 111. 226; Davis v. Clark, 205; Shaw «. Bowman, 91 Pa. St. 414; 
 
 40 Mo. App. 515, Van Doren v. Ereritt, 5 N. J. L. 528; 
 
 2 Co. Lit. 54 b ; Roberts v. Whit- 4 Kent, Com. p. * 73, note (d). 
 
 ing, 16 Mas?. 186; 1 Wash. R. P. ' Co." Lit. 56 a; 2 Blackst. Com. 
 
 (6th ed.) § 253. p.* 122; Forsythe t. Price, 8 Watts 
 
 3 Co. Lit. 55b; 2 Blackst. Com. (Pa.), 282. 
 p. * 122 ; Graves v. Weld, 5 B. & Ad. 6 ibjd. 
 105 ; Stewart v. Doughty, 9 Johns. 
 
RIGHTS AND DUTIES OF LIFE TENANTS. 769 
 
 § 543. First. The Estate of him -who Obtains Emblements 
 must Ordinarily be of Uncertain Duration. — If a temporary 
 owner of real property know the exact time when his ten- 
 ancy is to terminate, it is his own folly if he begin to raise 
 a crop that can not mature before that time ; and therefore he 
 is not entitled to any interest in that crop after his estate ends.^ 
 But the owner of an estate uncertain as to time — an interest 
 which normally will terminate by the act of God, or the act of 
 some person other than its owner — not being able to know 
 whether or not the crop will mature before the expiration of 
 his tenancy, is generally entitled to emblements.^ Typical of 
 such an interest is a life estate.^ And others are those from 
 year to year and at will, when not terminated by act or wrong 
 of the tenant.* But a tenant at sufferance, though holding a 
 precarious interest, has never been allowed emblements ; and 
 this is because of the unimportant character of liis estate.^ 
 In England, New Jersey, Pennsylvania, and Delaware, and 
 possibly one or two other states, a special custom has been 
 recognized whereby tenants for years are given the right of 
 emblements. The products which such owners take after their 
 leases expire, in those jurisdictions specially, are designated 
 " away -going crops." ® 
 
 § 544. Second. The Crops to be taken as Emblements must 
 be the Result of Annual Cultivation. — The distinctions between 
 fructus naturales undfructus industriales have been heretofore 
 explained.'^ Fructus industriales — crops which are the result 
 
 I 
 
 1 2 Blackst. Com. p. * 145 ; Whit- Collins, i Bing. 202 ; Harris o. Frink, 
 marsh v. Cutting, 10 Johns. (N. Y.) 360 ; 49 N. Y. 24 ; Samson v. Rose, 65 N. Y. 
 Reeder w. Sayre, 70 N. Y. 180 ; Chesley 411; Ellis v. Paige, 1 Pick. (Mass.) 
 II. Welch, 37 Me. 106; Kittredge v. 43; Brown v. Thurston, 56 Me. 126; 
 Woods, 3 N. H. 503 ; Carmine v. Boweu, Howell v. Schenck, 24 N. J. L. 89 ; 
 104 Md. 198; 2 Taylor, Landl. & T. 2 Taylor, Landl. & T. §§ 534, 535. 
 
 § 534. But eyen such a tenant, inde- * Ibid. ; Doe d. Bennett v. Turner, 
 
 pendent of special custom, may have 7 M. & W. 226 ; Miller v. Cheney, 88 
 
 emblements when his estate is prema- Ind. 466, 470; 1 Wash. R. P. (6th ed.) 
 
 turely terminated without his act or § 259. 
 fault. Ibid. ; 4 Kent, Com. p. * 73. ^ Wigglesworth v. Dallison, 1 Doug. 
 
 2 Co. Lit. 55 b; 2 Blackst. Com. 205 ; Van Doren u. Everitt, 5 N. J. L. 
 p. * 122 ; Graves v. Weld, 5 B. & Ad. 528 ; Shaw v. Bowman, 91 Pa. St. 414 ; 
 105; Reeder v. Sayre, 70 N. Y. 180; Templeman v. Biddle, 1 Harr. (Del.) 
 Bradley v. Bailey, 56 Conn. 374 ; Keays 522 ; Foster v. Robinson, 6 Ohio St. 
 w.Blinn, 234111. 121; Hawkins v.Skegg, 90 ; 4 Kent, Com. p. * 73, note (d) ; 
 10 Humph. (Tenn.) 31 ; Reilly v. Ring- 2 Taylor, Landl. & T. § 538, Compare 
 land, 39 Iowa, 106; 2 Taylor, Landl. Harris v. Carson, 7 Leigh (Va.), 632; 
 & T. § 534. Howell V. Schenck, 24 N. J. L. 89. 
 
 8 Ibid. ' §§ 51-53, supra. 
 
 1 Co. Lit. 55 b, 56 a ; Kingsbury v. 
 
 49 
 
i70 
 
 ESTATES IN EEAL PROPERTY. 
 
 of annual cultivation, such as corn, peas, beans, or potatoes, are 
 those which may be successfully claimed as emblements.^ This 
 means ordinarily, of course, that they are crops which require 
 the planting of the seeds each year; but this is not always 
 essential. Hops, for example, will grow from old roots year 
 after year without the necessity of annual planting, but no 
 material crop can be obtained from them without careful culti- 
 vation.'^ A life owner who cultivates these may have emble- 
 ments, and it is the fact of his annual cultivation that gives 
 the right.8 This cultivation, moreover, must have for its sole 
 object the production of a crop for that one year. It must not 
 be designed permanently to improve ot\ e,|ihance the value of 
 the land. If the tree, bush, or vine be 
 planted will of itself bear successive cropi 
 ing is naturally calculated to increase tlj 
 itself; the product' of any one year can nl 
 tially to owe its existence to labor expend^ 
 and the right of emblements does not attach 
 crop, whether or not its seeds have to be 
 must depend absolutely on annual cultivatior 
 purpose and effect of that cultivation must be 
 crop for that year alone.^ 
 
 § 545. Third, Emblements do not belong to a Tenant who 
 terminates his Own Estate. — The ending of his interest by 
 the act of God, or the act of some person other than him- 
 self, is the third essential of a life owner's emblement.^ If he 
 culpably commit suicide while the crop is growing, or forfeit 
 his estate, he loses all interest therein. And a woman, who 
 holds an estate during her widowhood, forfeits her annual crop 
 by remarrying before its maturity.^ This principle applies, not 
 only to the life owner himself, but also to his assignee of the 
 growing crop ; and, therefore, if he sell only the corn standing 
 in the field and commit suicide before it is ripe, his purchaser 
 
 ich after being 
 
 ears, the plant- 
 
 [ue of the realty 
 
 lU be said essen- 
 
 ing that year, 
 
 n a word, the 
 
 ed annually, 
 
 nd the only 
 
 produce the 
 
 1 1 RoUe, Abr. 726, oh. 9 ; 1 Wash. 
 K. P. (6th ed.) § 2.56; Stewart v. 
 Doughty, 9 Johns. (N. Y.) 108; Reifl 
 V. EeifE, 64 Pa. St. 134. 
 
 2 Co. Lit. 55 b, note ; Evans v. Rob- 
 erts, 5 B. & C. 832; State v. Moore, 11 
 Ired. (N. C.) 70; Florala Sawmill Co. 
 V. Parrish, 46 So. Rep. 461 (Ala.) ; 
 Lewis V. McNatt, 65 N. C. 63 ; 2 Taylor, 
 Landl. & T. § 534, note 1. 
 
 8 Ibid. 
 
 * Ibid. Therefore, there is no right 
 to emblements in a crop of blackberries, 
 even in the year in which the bushes 
 are planted. Sparrow v. Pond, 49 Minn, 
 412, See Hetfield v. Lawton, 108 N. Y, 
 App. Div. 113. 
 
 6 Ibid. 
 
 6 2 Blackst. Com. p, * 123 ; 4 Kent, 
 Com. p.* 73. 
 
 ' Ibid. ; Debow v. Colfax, 10 N. J. 
 L, 128. 
 
EIGHTS AND DtJTIES OP LIFE TENANTS. 771 
 
 loses all interest tbecein.^ But the- assignee or sub-lessee of 
 the life tenant's estate in the land is not affected by this strin- 
 gent rule.2 Tlius, when A owns a farm for his life and sells 
 his life interest to B, who is raising corn or beans or potatoes 
 thereon, B4ias the emblements, though A voluntarily takes his 
 own life. And when a woman, holding land during her Widow- 
 hood, sublets it to one who plants corn upon it, the latter may 
 harvest and own the corn, though tlie widow remarry before it 
 is ripe.8 But he who thus holds the land can have no emble- 
 ments, if he participate in the act or cause that terminates the 
 estate.* 
 
 § 546. Fourth. Emblements belong to the Life Tenant who 
 substantially causes the Crop to begin to gro-w. — No amount of 
 preparation of the ground by a life owner will entitle his repre- 
 sentatives to embleiMents, if the seeds be not planted or the crop 
 be not growing at the time of his death.^ But when his labor 
 has already put the seeds into the ground, or results in the cul- 
 tivation of the vines (as for example those of hops growing up 
 from old roots),=;in such manner that a valuable crop will natu- 
 rally develop, he has then laid the foundation for emblements.® 
 This is the chief principle that decides contests, among succes- 
 sive temporary owners of land, during the growth of an annual 
 crop. Suppose, for example, that A, a life tenant, prepares the 
 soil for the planting of corn, but dies before the seeds are in 
 the ground. B, a succeeding life owner, plants the seeds and 
 dies soon after. C, the next owner for life, cultivates the corn 
 but dies just before it is I'ipe. The right of emblements be- 
 longs to the representatives of B, because at the time of his 
 death he already had the crop a-going." Likewise, if A fix 
 stakes and begin to cultivate hop vines growing from old 
 roots, and then death terminates his estate, his representa- 
 tives are entitled to emblements, no matter how many succes- 
 sive temporary owners may follow before the crop is matured ; 
 because, at the time of A's death, the crop was already growing.^ 
 
 ilbid. ; 1 Wash. R. P. (6th ed.) 6 Co. 2 Inst. 40 ; 1 Wash. R. P. (6th 
 
 § 264. ed.) § 258. 
 
 2 Oland V. Burdwick, Cro. Eliz. 460 ; " Ibid. ; Eeeder y. Sayre, 70 N. Y. 
 
 Davis u. Eyton, 7, BiDg. 154;Debowi'. 180 j Price i:. Pickett, 21 Ala. 741; 
 
 Colfax, 10 N. J. L. 128 See Gland's 2 Taylor, Landl. & T. § 537, note. 
 Case, 5 Co. Rep. 116 a. ' Ibid. ; Stewart v. Doughty, 9 Johns, 
 
 ' " Ibid.; Bittinger v. Baker, 29 Pa. (N. Y.) 108; Gee i/. Young, 1 Hayw. 
 
 St. V.6; Davis v. Eyton, 7 Bing. 154; (N. C.) 17. 
 2 Bla<;ki!t. Com. p. * 124. * Ibid. Last preceding section but 
 
 4 ^bid. one. 
 
772 ESTATES IN REAL PROPERTY. , 
 
 It is to be here noted that the right of emblements, arising 
 from and existing as an incident (to a life ownership, is a per- 
 sonal privilege of the tenant ; and it passes at his death, not to 
 his heirs, but to his personal representativ^es — his executors 
 or administrators.^ 
 
 Duties of Life Tenants. 
 
 § 647. A Life Qwner's Four Duties. — Because he is holding 
 and owning temporarily the property the infinite fee ownership 
 of which is in another, a life tenant must so deal with it as not 
 to injure the interest of that other.^ A fee owner in possession 
 is bound practically by no law of user, excepting that of the 
 maxim, sic utere tuo ut alienum non laedas.^ But when A holds 
 a piece of land for life and B is the succeeding owner, B has a 
 right to demand from A that, at A's death, the land shall come 
 to B with the title unimpaired and a value unreduced by any- 
 thing that A has done, omitted, or allowed.* The ramifications. 
 of this general proposition may be set forth in an examination 
 of the four important duties of a life tenant; namely, to pro- 
 tect and not to deny or impair the succeeding owner's title ; to 
 keep down encumbrances ; to make substantial repairs ; and to 
 abstain from committing waste. Each of these requires a sepa- 
 rate discussion. 
 
 § 548. A Life Tenant must protect, and not deny or impair, 
 the Succeeding Owner's Title. — A common-law real action lay 
 only against the freeholder in possession. On him the primary 
 writ, or praecipe, must be served.^ And, if he were a life 
 owner, it was his duty to defend the title successfully, or to 
 vouch in the reversioner or remainderman to do so. If he 
 failed to do this, and the demandant succeeded in the action, 
 the life owner had violated his duty to his successor in interest.^ 
 This matter is to-day largely obsolete learning; for now prac- 
 tically the only action for the recovery of land is ejectment, or 
 a substituted statutory action, and the fee owner is normally 
 brought into the suit by the plaintiff in the case, and the action 
 affects the interests of none but those who are parties and their 
 privies.^ But, going hand in hand with the old common-law 
 
 1 § 542, supra. ' « 1 Prest. Est. pp. *206-*208 ; 
 
 2 § 536, supra. Termes de la ley, " Aid." ' 
 
 « §§ 181, 425, supra. ' 3 & 4 Wm. IV. ch.27, § 36 ; ^:T.- 
 
 * 2 Crabb, R. P. §§ 1037-1042 ; 1 Code Civ. Pro. §§ 1496-1531 ; Lo'.'O v. 
 
 Wash. H. P. {6th ed.) §§ 236-246; Emerson, 48 111. 160; 1 Wash. ■'R. P. 
 
 §§ 548-550, infra. (6th ed.) § 236. 
 
 6 S '"'4. sHpra, note 1. . ] " 
 
RIGHTS AND DUTIE?- OP LIFE TENANTS. 773 
 
 rule, was the demand, which found its original conception 
 though not its origin in fealty (and though no longer feudal still 
 exists) that the life pwner shall protect the reversioner's title, 
 and not do nor permit anything that will cause its impairment.^ 
 
 § 549. A Life- O'wner must keep Encumbrances from increas- 
 ing against the ' Property. — The encumbrances and pecuniary 
 burdens whijch affect real property may be divided, for the pur- 
 pose of explaining a life tenant's duties, into two classes — 
 those that accrue periodically, such for example as taxes and 
 interest on mortgages, and the imposition of which does not 
 improve the land nor benefit its owner ; and those that are im- 
 po^d less regularly, such as assessments for public improve- 
 nsients and the principal indebtedness on mortgages, the placing 
 /of which as burdens on the realty results in either a benefit 
 thereto or an advantage to its owner. For convenience, we 
 may speak of the first group as periodical charges, and of the 
 second group as beneficial charges. 
 
 Periodical charges. — It is the duty of the life owner to de- 
 fray all of these. He must pay the taxes and water rates from 
 year to year ; and the interest on mortgages, and other liens, as 
 it becomes due from time to time.^ So far as the public charges 
 on the property are concerned, the succeeding owner has always 
 been able to enforce this obligation, either by standing ready to 
 purchase the propei'ty, freed of the life interest, when it was 
 sold because of their non-payment, or by maintaining an action 
 against the delinquent life owner after such a sale. Thus, if 
 taxes be left unpaid and the property be sold by public authority 
 for their payment, the remainderman or reversioner may pur- 
 chase it at the sale and so protect his own interest.* But the pay- 
 ment of interest on mortgages or other liens is, at common law, 
 a duty of imperfect obligation on the part of the life tenant. If 
 the succeeding owner himself discharge it, it is a voluntary 
 payment which he can not recover against the prior tenant. 
 Therefore, in many states, statutes have enabled him to pay 
 
 1 Delaney v. Fox, 2 C. B. n. s. 768 ; 17 N. J. Eq. 356 ; Irory v. Klein, 54 N. 
 Goode V. Gaines, 145 U. S. 141; 1 J. Eq. 379; Jenka k. Horton, 96 Mich. 
 Brest. Est. pp. *206-*208 ; § 866, infra. 13 ; Bowen v. Bi'ogan, 119 Mich. 218 ; 
 
 2 Erewen v. Law Life Ins. Soc. Hagan v. Varney, 147 111. 281 ; 2 Perry 
 (1896), 2 Oh. 511; Cogswell v. Cogs- on Trusts, § 552. 
 
 well, 2 Edw. Ch. (N. Y.) 231 ; Stevens = Burhans v. Van Zandt, 7 N. Y. 
 
 V. Melcher, 152 N. Y. 551; Deraismes 523; Dunn v. Snell, 74 Me. 22; Foley 
 
 «. Deraismes, 72 N. Y. 154; Plympton v. Kirk, 33 N. J. Eq. 170; Watkins v. 
 
 V. Boston, 106 Mass. 544; Varney u. Green, 101 Mich. 493; 1 Wash. R. P. 
 
 Stevens, 22 Me. 331 ; Thomas v. Thomas, ( 6th ed. ) § 243. 
 
774 ESTATES IN REAL PROPERTY. 
 
 such charges from time to time when due and not paid by the 
 life tenant, and then to have an action for the recovery of the 
 amounts so paid against, the latter who should have discharged 
 them in the first place.^ (a) 
 
 Beneficial charges. An assessment for public improvement, 
 or other charge made by proper authority for something done 
 that is advantageous to the land, is commonly designated a 
 "betterment charge."^ The principal sum obtained for a 
 mortgage or other lien on the land, which was put there as an 
 advantage at the time to its owner, is an encumbrance of the 
 same general character. Such charges against the property, 
 if allowed to remain, will produce interest periodically, which 
 must be kept down by the life tenant as above explained.^ The 
 payment of the principal of such beneficial charges will be of 
 advantage to both the life tenant and the succeeding owner. 
 Therefore, they must contribute ratably to their liquidation.* 
 The rule for computing such contributions, as ultimately worked 
 out practically everywliere, is based on the advantage which 
 the payment will afford to the life owner. That advantage will 
 arise from his being relieved of the payment of interest for the 
 rest of the time of the duration of his estate. Hence, his share 
 is the present worth of an annuity of the amount of the yearly 
 interest on the encumbrance, to run for the probable period of 
 his estate, as indicated by the mortality tables adopted and used 
 in the place where the real property is situated.^ (J) And the 
 
 (a) A New York statute provides that, " Whenever the real estate held 
 by any person or persons for life shall be incumbered by mortgage or other 
 lien, the interest on which should be paid by tke life tenant, and such life 
 tenant shall neglect or refuse to pay such interest, it shall be lawful for 
 the remainderman to pay such interest and to recover the amount so paid, 
 together with interest thereon from the time of such payment, in an action 
 against such life tenant whose dutv it was to have paid such interest." 
 N. Y. L. 1909, Ch. 52, § 269. 
 
 (h) In New York, the " Carlisle " mortality table is now adopted by 
 
 1 N. y. Real P. L. § 269 ; 2 Perry on Eq. 356 ; Bowen v. Brogan, 119 Mich. 
 
 Trusts, § 552 ; 1 Wash. R. P. (6th ed.) 218 ; 1 Story, Eq. Jur. § 487. 
 §§ 239-241, and notes. ° Ibid. ; Thomas v. Evans, 105 N. Y. 
 
 ^ They are charges for improve- 601 ; Outcalt v. Appleby, 36 N. J. Eq. 
 
 ments which enhance the value of the 73 ; Kocher v. Kocher, 56 N. J. Eq. 
 
 property. 1 Wash. R. P. (6th ed.) 545 ;_ Bey burn k. Wallace, 93 Mo. 326 ; 
 
 § 239 ; Sedgwick & W. Tr. Title, ch. 26 ; Melms v. Pabst Brewing Co., 93 Wis. 
 
 2 Kent, Com. p. *335, notes. 140 ; Keniston v. Gorrell, 74 N. H. 53 ; 
 
 8 Fifth note, supra. 1 Wash. E. P. (6th ed.) §§ 240, 241 ; 1 
 
 * Cogswell V. Cogswell, 2 Edw. Ch. Story, Eq. Jur. §§ 487-488 a ; 4 Kent, 
 
 (N. Y.) 231; Plympton w. Boston, 106 Com. pp. *74, *75; 2 Crabb, R. P. 
 
 Mass. 544 ; Thomas v. Thomas, 17 N. J. §§ 1037-1039. 
 
BIGHTS AND DUTIES OF LIFE TENANTS. 775 
 
 residue of the payment is to be made by the succeeding owner 
 or owners.^ If, for example, -the encumbrance which is wholly 
 paid consists of a mortgage for ten thousand dollars, drawing 
 interest at five per cent per annum, the share chargeable to the 
 life tenant is the present worth of an annuity of five hundred 
 dollars (the interest per year on the mortgage), during the num- 
 ber of years of life which the mortality tables ascribe to him.^ 
 The contributions here explained are ordinarily required, when- 
 ever any betterment or permanent charge is thus to be paid in 
 whole or in part; but one exception seems clearly to arise, 
 when the benefit of the payment will presumably not endure 
 for the property longer than during the life of the temporary 
 owner. In such a case, the onus of the entire debt is upon 
 him.2 
 
 § 550. A Life Tenant must make Substantial Repairs — Im- 
 provements made by him. — Theoretically the reversioner or 
 remainderman is entitled to receive the property, after the 
 termination of the life owner's estate, in as good condition as 
 when it came into the latter's possession, subject to necessary 
 wear and tear or deterioration by time. This is the practical 
 rule of law, at least in the United States generally. And this 
 means that the tenant must keep the buildings, fences and 
 other erections on the land in substantially as good condition 
 as they were when they came to him. Otherwise, he is guilty 
 of permissive waste.* There is no duty on him to add any 
 
 Rule No. 70 of the General Rules of Practice of the Supreme Court. For- 
 merly, the Northampton tables, so-called, were employed. But the rule was 
 amended to its present form on the 24th day of October, 1905. And, while 
 in terms it speaks only of computing share of income, it clearly applies in 
 the same way to the determination of payments required to be made. A 
 table of comparison of the Carlisle and other mortality tables is given in 
 Bender's Lawyers' Diary and Directory for 1905, pp. 301-303. 
 
 1 Ibid. ; Cairns v. Chabert, 3 Edw. life)." 1 Story, Eq. Jur. § 487, dis- 
 
 Ch. (N. Y.) 312 ; Plympton v. Boston, cussed in 1 Wash. R. P. (6th ed.) § 241. 
 etc., 106 Mass. 544. ' Hitner v. Ege, 23 Pa. St. 305; 
 
 2 Judge Story's rule for this computa- Wordln's Appeal, 71 Conn. 531; Rey- 
 
 tion is put in the following somewhat burn v. Wallace, 93 Mo. 326. 
 vague language : " The tenant shall * See the subject of permissive waste 
 
 contribute beyond the interest in pro- discussed, § 553, infra. In England, it 
 
 portion to the benefit he derives from is held that a life tenant, who holds 
 
 the liquidation of the debt, and the con- under a lease, is not liable for mere per- 
 
 sequent cessation of the annual pay- missive waste : and perhaps the same 
 
 ments of interest during his life (which, rule applies there to all life tenants. 
 
 of course, will depend upon his age and In re Cartwright, L. R. 41 Ch. Div. 
 
 the computation of the value of his 532 ; In re Hotchkys, L. R. 32 Ch. Div. 
 
776 ESTATES IN REAL PROPERTY. 
 
 value to the property ; and, ordinarily, when he does make im- 
 provements, he can not charge against the succeeding owner 
 any portion of their cost or value.^ A life tenant, however, is 
 entitled to finish a building which the preceding owner' had 
 commenced, and to charge against the reversioner or remain- 
 derman a proportionate share of the expense, to be computed 
 by the use of the mortality and annuity tables in the same 
 manner as their respective contributions towards permanent 
 charges.^ And also it has been said that, in equity at least, if 
 a life tenant act bona fide in the belief that he owns the fee 
 simple and make improvements on the land, he may recover 
 from the succeeding owner the latte'r's proportionate share of 
 the cost of such additions.^ The basal principle of all these 
 rules is the law's determination to adjust, fairly and ratably, 
 the charges and expenses accruing against real property which 
 belongs to successive owners. 
 
 § 551. A Life Tenant must abstain from committing Waste. — 
 The failure of a life tenant to make substantial repairs is now 
 usually regarded as waste; and his voluntary injury of the 
 property constitutes the same kind of wrong. It is clearly his 
 duty to refrain from producing or permitting such injury. This 
 is expressed by the statement that he must abstain from com- 
 
 418. And the same seems to be the that effect, does not enable a life owner 
 
 rule in some states here. Richards v. to recover for any improTements, which 
 
 Torbert, 3 Houst. (Del.) 172; Harvey i». he has made without any agreement 
 
 Harvey, 41 Vt. 373. But the American with succeeding owners for compensar 
 
 rule, in general, is as stated in the text. tion. Sohier v. Eldredge, 103 Mass. 
 
 Schulting V. Schnlting, 41 N. J. Eq. 345 ; Datesman's Appeal, 127 Pa. St. 
 
 130; Wilson !). Edmonds, 24 N. H. 517 ; 348; Hagan v. Varney, 147 111. 281; 
 
 Stevens v. Rose, 69 Mich. 259 ; Brough Miller v. Shields, 55 Ind. 71 ; Killmer 
 
 V. Higgins, 2 Grat. (Va.) 408. Miller v. Wuchner, 79 Iowa, 722; Bond v. 
 
 V. Shields, 55 Ind. 71; 1 Wash. R. P. Godsey, 99 Va. 564; Trimmier u. Dar- 
 
 (6th ed.) §§ 288-294. den, 61 S. C. 220; Falck v. Marsh, 88 
 
 1 " In most of the states, statutes,' Wis. 680 ; Moore v. Simonson, 27 Or. 
 known as ' Occupying Claimants' Acts,' 117; Wms. R. P. p. *29. 
 or ' Betterment Acts,' have been passed, ^ Parsons i: Winslow, 16 Mass. 361 ; 
 allowing one in adverse possession of Sohier ». Eldredge, 103 Mass. 345; 
 another's land, under color of title, who Broyles u. Waddel, 11 Heisk. (Tenn.) 
 has made improvements in good faith, 32. See preceding section and notes, 
 to recover their value, either by its ^ Plimpton v. Plimpton, 12 Cush. 
 assertion in an action by the owner to (Mass.) 458; Barrett e. Stradl, 73 Wis. 
 recover the land, or by a direct proceed- 385; I Pom. Eq. Jur. § 1241. Com- 
 ing for that purpose." 1 Tiffany, Mod- pare Bohn v. Hatch, 133 N. Y. 64, 68; 
 em Law R. P. § 241, citing 16 Amer. & King v. Thompson, 34 U. S. (9 Pet.) 
 Eng. Bncy. of L. 79 et seg.; Sedgwick 204; Taylor i>. Kemp, 86 Ga. 181; 
 & W. Tr. Title Land, ch. 26 ; 2 Kent, Henry v. Brown, 99 Ky. 13 ; Nineteenth 
 Com. 335, note. But such legislation, & Jefferson St. Presby. Ch. v. Fithian, 
 not having any express provision to 29 S. W. Rep. 143 (Ky.) ; § 47, supra. 
 
RIGHTS AND DUTIES OP LIFE TENANTS. 777 
 
 mitting waste. Most temporary owners are bound by tlie same 
 requirement; and therefore the following discussion of the law 
 of waste, though made here in completing the examination of 
 the incidents of life estates, is to be taken as applicable to the 
 duties of temporary owners in general. 
 
 Waste. -^ 
 
 § 552. "Waste defined and explained. — Waste is an un- 
 authorized act or omission of a life tenant, or other temporary 
 holder, which causes a diminution in value of the property as 
 it will pass to the succeeding owner — an injury to the inheri- 
 tance, the subsequent interest.^ It was at one tiniife.^eld in 
 England that a mere change in the character of property, such 
 that its identification by the succeeding owner might be en- 
 dangered, even though such change produced an actual en- 
 hancement in value, constituted waste. And when the result 
 was an actual betterment of the property, it was sometimes 
 spoken of as " meliorating waste." ^ ' But this view is now 
 practically discarded in England ; and it has never obtained 
 any foothold in the United States.^ When, moreover, the 
 detriment to the property is merely trifling, so that only 
 nominal damages could ever be obtained for it, the judgment 
 in an action based upon it is usually for the defendant, on the 
 theory that it is not really waste.* The nature of the property, 
 the condition of the locality, and all the surrounding circum- 
 stances are taken into account in determining whether or not 
 the interest of the succeeding owner has been injuriously 
 affected.^ And so, tersely and practically, the waste of to-day, 
 and especially in this country, may be said to be, substantial 
 injury to the interest of a succeeding owner.^ 
 
 § 553. Kinds of 'Waste. — The primary division of the kinds 
 
 1 2 Blackst. Com. p. *122; Win- Co., 104 Wig. 7; Lunn v. Oslin, 96 
 ship V. Pitts, 3 Paige (N. Y.), 262; Tenn. 28; Taylor, Landl. & T. § 345. 
 Pynchon v. Stearns, 11 Met. (Mass.) * Ibid.; Co. Lit. 54a; Grubb v. 
 304; Clemence v. Steere, 1 K. I. 272; Burlington, 5 B. & Ad. 507. 
 
 Proffitt V. Henderson, 29 Mo. 325. * And it is often a question of fact 
 
 2 Co. Lit. 53a, 53b ; Simmons v. for a jury whether or not the act com- 
 Norton, 7 Bing. 640; Kerr on Injunc- plained of has caused any real injury 
 tions 239. to ^^ land. McGregor v. Brown, 10 
 
 8 Doherty v. AUman, 3 App. Cas. N. Y. 114; Drown v. Smith, 52 Me. 
 
 709, 725 ; Winship v. Pitts, 3 Paige 141 ; King v. Miller, 99 N. C. 583. 
 (N. Y.), 262; McGregor v. Brown, 10 ^ Last three preceding notes. 
 
 K. Y. 114; Melms u. Pabst Brewing 
 
778 ESTATES IN REAL PROPEBTT. 
 
 of waste is jnto voluntary and permissive ; and the third form, 
 which is a sub-head of the former, is equitable waste. A word 
 as to each of these. 
 
 Voluntary waste, as the expression implies, includes any 
 positive or direct act, which diminishes the value of the 
 property for a succeeding owner. Tearing down buildings, un- 
 warrantably cutting timber, and removing the fertile soil from 
 the farm are illustrations.^ 
 
 Permissive waste is the negative side of the injury under 
 discussion. Failure properly to guard a fire, which therefore 
 causes damage, letting buildings go to decay, and suffering 
 strangers to despoil the property are illustrations.^ In England 
 there has always been some question as to whether or not life 
 owners could be held responsible for such permissive deterior- 
 ation, on the ground of waste ; or whether, in order to be so 
 held, they must be expressly bound by covenant to prevent the 
 injury.'' But the cases are quite clear, in tliis country, in hold- 
 ing the life owner responsible for permitting such a diminution 
 of value.* It is the duty of the temporary holder to protect 
 the property against trespassers and outside parties, and his 
 failure to do this reasonably is permissive waste,^ But he is 
 not liable for injury or destruction caused, without any negli- 
 gence on his part, by the act of God, or the public enemy, or 
 by operation df law.* Neither, according to the weight of 
 authority, is he responsible for loss occasioned by an acci- 
 dental fire, not in any way attributable to his own negligence." 
 
 1 Co. Lit. 53 a; Bonnett v. Sadler, Torbert, 3 Honst. (Del.) 172; Harvey 
 14 "Ves. .926; Agate v. Lowenbein, 57 v. Harvey, 41 Vt. 373. 
 
 N. Y. 604; Chase's Blackst. p. 304, « Co. Lit. 54 a; AttersoU u. Stevens, 
 
 note ; 1 Taylor, Landl. & T. § 348. 1 Taunt. 198 ; Manchester B. W. Co. v. 
 
 2 Co. Lit. 53 a ; Lothrop v. Thayer, Carr, L. R. 5 C. P. Div. 507 ; Austin v, 
 ,138 Mass. 466; /« re Steele, 19 N. J. Hudson Riv. R. Co., 25 N. Y. 334 ; Dix 
 Eq. 120; 1 Taylor, Landl. & T. § 349. v. Jaquay, 94 N. Y. App. Div. 554; 
 
 8 Co. Lit. 53, 53 a ; Harnett v. Mait- Moore v. Townshend, 38 N. J. L. 284 ; 
 
 land, 16 M. & W. 257; Leach v. Fay v. Brewer, 3 Pick. (Mass.) 203; 
 
 Thomas, 7 C. & P. 327 ; In re Hotchkys, Wood v. Griffin, 46 N. H. 230 ; 1 Taylor, 
 
 L. R, 32 Ch. Div. 418; Davies v. Landl. & T. § 349. 
 Davies, L. R. 38 Ch. Div. 499; In re " But he must not permit it to re- 
 
 Cartwright, L. R. 41 Ch. Div. 532; main in ruins. Ibid.; Co. Lit. 53 a; 
 
 Leighton w.Leighton (1896), W.N. 162. Saner v. Bilton, L. R. 7 Ch. Div. 815; 
 
 * Suydam v. Jackson, 54 N. Y. 450 ; United States v. Bostwick, 94 U. S. 53 ; 
 
 Schulting u. Schulting, 41 N. J. Eq. Earle v. Asbogast, 180 Pa. St. 409. 
 130; Wilson u. Edmunds, 24 N. H. 517; ' Last preceding note; Sampson v. 
 
 Stevens !). Rose, 69 Mich. 259 ; 1 Taylor, Grogan, 21 K. I. 174; Nave v. Berry, 
 
 Landl. & T. § 349. See Richards o. 22 Ala. 383. See Lothrop v. Thayer, 
 
 138 Mass. 466. 
 
RIGHTS AND DUTIES OP LIFE TENANTS. 779 
 
 But he is liable for any damp,ge to the inheritance, caused by 
 his negligence.^ These propositions are to be understood witli 
 the qualification that, in the absence of modifying contract or 
 statute, the temporary owner does not commit permissive 
 waste merely by allowing the property to remain substantially 
 in the condition in which it comes to him. He is not required, 
 for example, to put a i-oof on a house that was roofless when 
 his estate began ; nor need he fertilize and make productive 
 a field that was sterile at the beginning of his estate.'' 
 
 Equitable waste is a voluntary injury for which, originally 
 at least, there was no remedy except in a court of equity. In 
 the law of life estates, it may be described as such an injury as 
 will be enjoined and remedied in equity, when committed or 
 attempted by a life tenant who holds the property "without 
 impeachment of waste." ^ Amenability of life owners to an 
 action for waste came by gradual development, largely as the 
 result of statutes, in the English law ; and, as that develop- 
 ment went on, the custom arose of occasionally having property 
 conveyed to one for life, by an instrument which specifically 
 stated that he should hold it " without impeachment of waste" 
 (using these words or their equivalent) i. e., without being 
 sulpject to an action for damages for any injury that he might 
 inflict on the land — substantially that he might deal with it as 
 if he owned it in fee simple.* The courts of law adhered strictly 
 to the terms of such a provision ; and refused any remedy to 
 succeeding owners, no matter how aggravating the injury in- 
 flicted by the temporary holder upon the property.^ But the 
 rule soon became different in equity; and that tribunal pro- 
 ceeded to grant an injunction against the wrong-doing tempo- 
 rary owner, though he were apparently protected by the provision 
 that he should hold " without impeacliment of waste," whenever 
 he was found greatly injuring the property to the lasting detri- 
 ment of subsequent interests.® The waste thus being com- 
 
 1 Last five preceding notes; Robin- Barnard, 1 Salk. 161, 2 Vern. 738, a 
 son V. Wheeler, 25 N. Y. 252 ; Warder fine estate containing Raby Castle had 
 V. Henry, 117 Mo. 530. been conveyed to Lord Barnard for his 
 
 2 Co. Lit. 53a ; 2 Roll. Abr. 818, 1, 1 ; life, " without impeachment of waste," 
 Snydam v. Jackson, .54 N. Y. 450. remainder in fee to his nephew, Mr. 
 
 ' See 2 Story, Eq. Jur. § 915; Bis- Vane. Lord Barnard began to despoil 
 
 pham's Prin. Eq. § 434. the castle by taking out the windows, 
 
 * Bowles' Case, 11 Co. Eep. 79; removing the lead from the roofs, etc. ; 
 
 Bisphara's Prin. Eq. § 434. and Vane, finding himself without 
 
 s Ibid. remedy at law, applied for an injunc- 
 
 6 In the pioneer case of Vane v. Lord tion, which was granted. Thus was 
 
780 ESTATES IN REAL PBOPERTT. 
 
 mitted by him, unremediable at law but subject to be restrained 
 by equity, was therefore naturally designated " equitable 
 waste." ^ The law applicable to such waste has been uniformly 
 recognized in England ; ^ and, while it has been very little 
 called into requisition in this country, because the remedies at 
 law have generally been made very broad and efficacious, yet, 
 as a definite equitable principle, it has been as thoroughly 
 recognized here as in England.^ Where the succeeding owner's 
 interest is being permanently injured, especially by an act 
 which does the temporary owner no good, and there is no 
 remedy at law, equity will intervene, and is then said to 
 prevent equitable waste.* Not only life tenants, but other 
 holders of property, which may ultimately go over to other 
 persons, may be restrained from the commission of such waste. 
 Thus, a tenant in tail after possibility of issue extinct, and the 
 owner of a fee on conditional or executory limitation, subject to 
 pass by a future event to another person, have been enjoined 
 from the commission of such waste upon the land.^ 
 
 § 554. How "Waste may' be Committed. — The essential 
 nature of waste, and how it may be committed, may be best 
 understood by dealing with it in three divisions, namely : Firsts 
 as affecting the soil itself, or things that it contains; second^ 
 as affecting the natural or perennial products of the soil; and 
 third, as affecting the artificial erections on the land. These 
 will be examined in the order here named. 
 
 § 555. First — Waste affecting the Soil or Things that it 
 Contains. — A temporary owner may take from the soil, for 
 the purpose of repairing the structures on the land, as much 
 clay, stone, or other building material as is necessary.*" He 
 has this right the same as his right of estover; but, if he 
 
 put on a permanent foundation the 95 N. W. Eep. 702 (Neb.); Crowe v. 
 
 salutary doctrine of equitable waste. Wilson, 65 Md. 479 ; Crawford v. At- 
 
 The twin leading case with tliis oue is lantic Coast Lumber Corp., 77 S. C. 81. 
 
 Garth II. Sir John Hind Cotton, 3 Atk. * Last four preceding notes ; Brigham 
 
 751, 1 Lead. Cases Eq, 806. v. Overstreet, 128 Ga. 447 ; Pavkovich 
 
 1 Ibid. V. Southern Pac. R. Co., 150 Cal. 39. 
 
 2 Peirs V. Peirs, 1 Ves. Sr. 521 ; 5 Williams v. Day, Ch. Cas. 32 ; 
 Baker v. Sebright, L. R. 13 Ch. Dlv. Turner v. Wright, 2 De G. F. & J. 234 ; 
 179 ; Weld-Blundell v. Wolseley (1903), Abraham v. Bubb, 2 Free. Ch. 53 ; 
 2 Ch. 664. Fifer v. Allen, 228 HI. 507. 
 
 ' Hawley v. Clowes, 2 Johns. Ch. 6 Co. Lit. 53 b ; Coates v. Cheever, 
 
 (N. Y.) 122; Clement v. Wheeler, 25 1 Cow. (N. Y.) 460; Eeed v. Reed, 16 
 
 N. H. 361 ; Fifer v. AUen, 228 111. 507 ; N. J. Eq. 248 ; Potomac Dredging Co. 
 
 Belt V. Simkins, 113 Ga. 894; Stevens <i. Smoot, 69 Atl. Rep. 507 (Md.). 
 V. Rose, 69 Mich. 259 ; Wiley V. Wiley, 
 
RIGHTS AND DUTIES OF LIFE TENANTS. 781 
 
 depreciate the value of the property for the succeeding owner 
 by removing these substances from the land to a greater extent 
 than is needed for repairs, he is guilty of waste.^ So, in the 
 absence of express authority, he must not open new mines, 
 wells, or quarries (such as oil wells, for example), nor reopen 
 these, if having been once used they have been abandoned, or 
 closed by the prior holder, in such manner as to show that' the 
 land is to be employed for another purpose.^ But a life owner 
 may continue to work, even to exhaustion, mines, wells, or 
 quarries, which are already open and being used at the time 
 of the beginning of his estate, or which having once been 
 opened have never been closed or discontinued in such manner 
 as to indicate an intent not to have them worked again. Arid, 
 in operating an open mine, he may sink new shafts and make 
 additional openings into the same vein ; though he is not 
 authorized to open up any new veins.^ 
 
 It is waste for a life tenant^to remove the fertile top soil 
 from a farm, or to fail properly to fertilize it, or not to rotate 
 his crops, or in any other manner to misuse it as arable land, 
 or to omit to deal with it as required by the rules of good 
 husbandry.* His removal of manure, made on the land from 
 its own products, is ordinarily treated as waste.^ And so is his 
 taking away of the marl, loam, or gravel, which added materi- 
 ally to the permanent value of the land.^ 
 
 § 656. Second — 'Waste affecting Trees — Natural Products 
 of the Soil. — The life owner's removal of fruit trees, or trees 
 designed and still useful for ornament or shade, everywhere 
 constitutes waste.'' As a general rule, it may be further said 
 
 1 Ibid. V. Sarles, 3 Sand. Ch. (N. Y.) 601 ; 
 
 2 Ibid. ; Saunders" Case, 5 Co. Rep. Hubble v. Cole, 85 Va. 87 ; 1 Taylor, 
 12 a; In re Chaytor (1900), 2 Ch. 804; Landl. &T. § 356. 
 
 Marshall v. Mellon, 179 Pa. St. 371; * Cases cited, § 54, supra; Heald w. 
 
 Harlow v. Lake Superior Co., 36 Mich. Builders' Ins. Co., Ill Mass. 38; Perry 
 
 105; Owings v. Emery, 6 Gill (Md.), u. Carr, 44 N. H. 118; Lewis «. Jones, 
 
 260; 1 VTash. R. P. (6tli ed.) § 280. 17 Pa. St. 262; Taylor v. Newcomb, 
 
 See Gannon v. Peterson, 193 111. 372. 123 Mich. 637. 
 
 " Ibid. ; Co. Lit. 54 b ; Clavering v. ^ Last preceding note but one. See 
 
 Clavering, 2 P. Wms. 388 ; Gaines v. Tucker v. Linger, L. R. 21 Ch. Div. 18; 
 
 Green Pond Iron Co., 33 N. J. Eq. 603 ; Bispham's Prin. Eq. § 432. 
 
 Moore v. Rollins, 45 Me. 493 ; Billings ^ Co. Lit. 53 a, b ; Phillips v. Smith, 
 
 V. Taylor, 10 Pick. (Mass.) 460; Sayers 14 M. & W. 589 ; Hawley v. Wolverton, 
 
 V. Hoskinson, llOPa. St. 473; 1 Taylor, 5 Paige (N. Y.), 522 ; Duucombe v. Felt, 
 
 Landl. & T. § 346. 81 Mich. 332; Calvert v. Rice, 91 Ky. 
 
 * Brown v. Crump, 6 Taunt. 300; 533; Silva v. Garcia, 65 Cal. 591. So, 
 
 Powley V. Walker, 5 T. R. 373 ; People as a general rule is the cutting of wood 
 
 V. Alberty, 11 Wend. (N. Y.) 161 ; Sarles to sell. McGregor v. Brown, 10 N. Y. 
 
782 ESTATES IN REAL PROPERTY. 
 
 that it is waste for him to cut down any other kind of living 
 tree, to an extent greater than is authorized by his right 
 of estovers.! This restriction, however, is subject to modific- 
 ations by special circumstances or local requirements. Thus, in 
 England, as has been already explained, "Oak, ash and elm are 
 timber throughout the realm," though it has sometimes been 
 added that they became timber only after twenty years of 
 growth ; and a life tenant must not cut these at all, at any 
 rate when there is any other wood on the property available 
 for estovers. And he must not remove other kinds of wood, 
 beyond estovers, in such quantities or manner as to injure the 
 inheritance.^ 
 
 In this country the distinctive importance of " oak, ash and 
 elm " has never been recognized. All trees of value are pro- 
 tected by the rules against waste ; and the one working prin- 
 ciple is to designate as waste any removal of growing wood 
 from the property, beyond the right of estoviers, which injures 
 the succeeding interest.^ The needs of a new country, its rapid 
 development, and the demand for wood to aid its growth, have 
 made most of the courts somewhat lenient in regard to waste in 
 this respect ; and they give to life tenants, as a rule, the benefit 
 of any doubts as to the injurious effects of their taking of 
 wood.* The decisions have often been colored by the local con- 
 ditions. Thus, in some places it benefits the property to remove 
 the wood from it and turn it into arable land ; and such a removal 
 is clearly not waste.^ And the courts will be slow to interfere 
 
 114; Morehouse v. Cotheal, 22 N. J. L. * Sayers v. Hoskinson, 110 Pa. St. 
 
 521; Lester v. Young, 14 R I. 579; 473; Drown v. Smith, 52 Me. 145; 
 
 Smith V. Smith, 105 Ga. 106; 1 Taylor, Keeler v. Eastman, 11 Vt. 293 ; Clem- 
 
 Landl. & T. §§ 352, 353. ence «. Steere, 1 K. I. 272 ; King v. 
 
 1 § 541, supra; Perrot v. Perrot, 3 Atk. Miller, 99 N. C. 583 ; Dawson t'. Coff- 
 
 94 ; Dashwood v. Magniac (1891), 3 Ch. man, 28 Ind. 220 ; Wilkinson v. Wilkin- 
 
 306 ; Mooers «. Wait, 3 Wend. (N. Y.) son, 59 Wis. 557 ; 4 Kent, Com. p. * 76 ; 
 
 104 ; Torry v. Black, 58 N. Y. 185. 1 Taylor, Landl. & '^. §§ 350-353. 
 
 ^ § 541 , supra ; Co. Lit. 53 a ; Hony- ^ Ibid. ; Gardiner v. Deering, 1 Paige 
 
 wood w. Honywood, 18 Eq. 306; Berri- (N. Y.), 573; Loomis v. Wilbur, 5 
 
 man v. Peacock, 9 Bing. 386 ; Dashwood Mason (U. S. Cir. Ct.), 13 ; Jackson v. 
 
 V. Magniac (1891), 3 Ch. 306. Brownson, 7 Johns. (N. Y.) 227 ; Find- 
 
 8 § 552, supra. In the New England lay v. Smith, 6 Munf. (Va.) 134 ; i 
 
 courts, this rule has been enforced quite Webster v. Webster, 33 N. H. 25 ; 
 
 strictly, and with more tendency per- McCracken v. McCracken, 6 T. B. 
 
 haps to follow the English lead than is Monr. (Ky.) 342; Lynn's Appeal, 31 
 
 found in the other states. White v. Pa. St. 44; Davis v. Gilliam, 40 N. 0. 
 
 Cutler, 17 Pick. (Mass.) 248 ; Chase v. 308 ; Bispham's Prin. Eq. § 432. 
 Hazelton, 7 N. H. 171 ; Ford v. Erskine, 
 50 Me. 227. 
 
BIGHTS AND DUTIES OF LIFE TENANTS. 783 
 
 with the taking of timber from the soil which a life tenant 
 holds, when in any view of the case his act is not detrimental 
 to a succeeding owner of tlie property.^ 
 
 § 557. Third — Waste affecting Artificial Erections on the 
 Land. — Since the doctrine of meliorating waste has become 
 obsolete, a life tenant everywhere has been permitted to remove, 
 or to fail to repair, any buildings tliat are useless or a positive 
 detriment to the property ; and, in the absence of positive 
 restraining contract, his alteration of a structure, in such 
 manner as not to cause any injury to the succeeding" owner, is 
 nowhere treated as waste at the present time.^ So a temporary 
 owner is not liable for the natural deterioration of the buildings, 
 caused by his reasonable use. And the same is true as to the 
 permanent fixtures and appliances annexed to or used in 
 association with a house.^ But here the limit of his warrant- 
 able enjoyment of these structures is reached. He must not 
 completely remove, nor so materially alter as to impair, a 
 house or other artificial erection on the property.* And, while 
 the English courts have generally looked to an express covenant 
 on which to base an action for his failure to repair such 
 structures, the American tribunals uniformily treat his failure 
 to repair them properly as permissive waste.^ 
 
 A life tenant's erection of a new building upon the land, or 
 his construction of an addition to an old one, has presented 
 some interesting questions ; and has brought out, especially in 
 America, the fundamental principles of the law of waste. The 
 construction of a new house upon the land, in such manner as 
 to add permanent value, is certainly not waste. Neither is the 
 erection of a structure which will be useless to the succeeding 
 owner and have to be removed by him, if the materials of which 
 it is built will sell for enough to pay for removing it and 
 restoring the property to its original condition. But if a new 
 building be so placed on the land that a following owner will 
 
 1 Last two preceding notes ; Winship * Ibid.; Co. Lit. ."ia a ; United States 
 V. Pitts, 3 Paige (N. Y.), 262 ; 1 Taylor, v. Bostwick, 94 U. S. 53 ; Agate v. 
 Landl. & T. §§ 345, 353. Loweubein, 57 N. Y. 604 ; Chalmers 
 
 2 § 552, supra; Doherty v. Allman, v. Smith, 152 Mass. 561 ; McCuUough 
 3 App. Cas. 709 ; Winship v. Pitts, 3 v. Irvine, 13 Pa. St. 438 ; Davenport v. 
 Paige (N. Y.), 262 ; Melras v. Pabst Magoon, 13 Or. 3 ; Booly v. Stringham, 
 Brewing Co., 104 Wis. 7; Bewes, 4 Utah, 107; 1 Taylor, Landl. & T. 
 Waste, 11. § 348. . 
 
 3 Ibid. ; Saner v. Hilton, L. R. 7 Ch. ' Ibid. 
 Div. 815 ; Klie v. Van Broock, 56 N. J. 
 
 Eq. 18. 
 
784 ESTATES IN REAL PROPERTY. 
 
 naturally- remove it, and the removal will be an expense for 
 which the materials will not compensate, its erection and 
 retention on the property constitute waste. These distinctions 
 were carefully made by Chancellor Walworth, in the leading 
 case of Winship v. Pitts,^ which early placed the American law 
 of waste on a true and substantial foundation. 
 
 It is to be noted that, in any case of injury which in itself 
 would constitute waste, the temporary owner who causes it 
 avoids all difficulty, and precludes any successful action against 
 him for it, in either law or equity, by making full- repairs and 
 restoration before the termination of his own estate.^ ' 
 
 § 558. Remedies for Waste. — The common-law remedies for 
 waste were a writ of prohibition to prevent a threatened- injury, 
 and a writ of waste to recover damages for the wrong actually 
 done. These were available, however, against no temporary 
 holders of the realty, except owners of dower or curtesy in- 
 terests, and guardians in chivalry. The common-law theory 
 was that, if a remedy for waste were to be enforcible against 
 any other tenant, it should be stipulated for by express cove- 
 nant in the instrument by which he obtained his estate.^ 
 
 This inequality of redress was done away with, partly by the 
 statute of Marlbridge, 52 Hen. III. ch. 23, § 2 (1267), which 
 extended the writ of waste against temporary owners generally ; 
 and more fully by the Statute of Gloucester, 6 Bdw. I. ch. 5 
 (1278), which reiterated and completed the provisions of the 
 former enactment, provided for recovery of treble damages for 
 the injury, and added a writ for the reversioner or remainder- 
 man to enforce a forfeiture of the place wasted.* The latter 
 
 1 3 Paige (N. Y.), 262. See also * "The expression of the statute is, 
 
 § 552, supra ; Clemence v. Steere, 1 R. I. he shall forfeit the thing which he hath 
 
 272; Beers w. St. Johns, 16 Conn. 322; wasted; and it hath been determined 
 
 Bewes, Waste, 134 et seq. ; 1 Taylor, that under these words the place is also 
 
 Landl. & T. §§ 345, 348 ; 1 Wash. R. P. included. And if waste be done sparsim, 
 
 (6th ed.) § 286. or here and there, all over a wood, the 
 
 "\ Co, Lit. 53 a ; Jackson v. Andrew, whole wood shall be recovered ; or if in 
 
 18 J»ns. (N. Y.) 431 ; 1 Wash. R. P. several rooms of a house, the whole 
 
 (6th eiK^ii^§ 312. house shall be forfeited; because it is 
 
 » 2 Co.- Inst. 299 ; 2 Blackst. Com. impracticable for the reversioner to en- 
 
 p. *283; Chipman r. Emeric, 3 Cal. joy only the identical places wasted, 
 
 273 ; Moore v. Townshend, 33 N. J. L. when lying interspersed with the other. 
 
 284. In the action commenced by the But if waste be done only in one end of 
 
 writ of waste, the plaintiff, if successful, a wood (or perhaps in one room of a 
 
 recovered compensatory damages, and house, if that can be conveniently sepa- 
 
 if desired the appointment of a keeper rated from the rest),ihat part only is 
 
 of the property was made to prevent the locus vasiatus, or thing wasted, and 
 
 further injury. Ibid.; 1 Wash. R. P. that only shall be forfeited to the rever- 
 
 (6th ed.) §§ 295, 297. sioner." 2 Blackst. Com. pp.* 283, * 284. 
 
RIGHTS AND DUTIES OP LIFE TENANTS. 785 
 
 statute is the foundation of naost of the positive legislation 
 affecting waste in this country .1 But, following the lead of the 
 courts in disliking forfeitures, the statutes of probably a large 
 majority of the United States have simply prescribed for re- 
 covery of damages (frequently treble), and have not provided 
 for any termination of the temporary owner's estate on the 
 ground of waste.^ 
 
 The writ of waste is now abolished in England, and an action 
 on the case, for waste committed, has been substituted.^ In 
 most of the states of this country the same change has occurred, 
 either by positive legislation or by the decisions of the courts.* 
 This form of procedure is, of course, a common-law remedy ; 
 and its application to the redress of the wrong of waste is easy 
 and usually efficacious. In a number of the code states, the 
 statutes simply declare, in language similar to that of the 
 Statute of Gloucester, that damages (sometimes treble) may 
 be recovered in an action for waste. Such are the provisions, 
 for example, of the codes of New York, (a) Missouri, and 
 
 (a) The New York Code declares that " An action for waste lies against 
 a tenant by the curtesy, in dower, for life, or for years, or the assignee of 
 such a tenant, who, during his estate or term, commits waste upon the real 
 property held by him, without a special and lawful written license so to do ; 
 or against such a tenant, who lets or grants his estate, and, still retaining 
 possession thereof, commits waste without a like license." 
 
 " An heir or devisee may maintain an action for waste, committed in 
 the time of his ancestor or testator, as well as in his own time. The 
 grantor of a reversion may maintain an action for waste committed before 
 he aliened the estate." 
 
 " If the plaintiff recovers in an action for waste, other than an action 
 brought as prescribed in the next section " (the next section relates to 
 actions between co-owners), " the filial judgment must award to him treble 
 damages. Where the action is brought by some one next entitled to the 
 reversion, and it appears, in like manner, that the injury to the estate in 
 reversion is equal to the value of the tenant's estate or unexpired term, or 
 that it was done maliciously, the final judgment must also award to the 
 plaintifi the forfeiture of the defendant's estate and the possession of the 
 
 1 N. r. Code Civ. Pro. §§1651-1669; 21 R. I. 481 j 4 Kent, Com. pp. *8U 
 
 1 Stim. Amer. Stat. L. §§ 1332, 1343, *82. 
 3231, 3208. The question, whether or ^ Ibid. 
 
 not the old English statutes — Marl- » 3 & 4 Wm. IV. ch. 27, § 36 (1833) ; 
 
 bridge and Gloucester — as such, are in Greene v. Cole, 2 Saund. 252 ; Wms. 
 
 force in auy state of this country, is little R. P. p. * 24. 
 
 more than academic ; for a remedy for * Last preceding note but one 
 
 waste is uniformly provided, as here- McCullough v. Irvine, 13 Pa. St. 438 
 
 after explained. See Dozier v. Gregory, Moore v. Townshend, 33 N. .7. L. 284 
 
 46 N. C. 100; Thackeray v. Eldigan, Sackett y. Sackett, 8 Pick. (Mass.) 309 
 
 Randall v. Cleaveland, 6 Conn. 328. 
 
 50 
 
786 ESTATES IN REAL PROPERTY. 
 
 Wisconsin.^ The demand for treble damag<-:. - ^^xieiture is 
 now quite commonly discarded ; and where retained these 
 severe penalties are generally reserved for waste which is 
 malicious or intentionally wrong.^ 
 
 Two requirements, logical but unfortunate, interfered with 
 the practical utility of the common-law action for waste, and 
 have sometimes, though not generally, been carried over and 
 applied in the action of trespass on the case, for waste com- 
 mitted. These were the requirements that there should be 
 privity of estate between him who committed the waste and 
 the succeeding owner of the freehold, in order to enable the 
 latter to maintain the action; and that there must not exist 
 between these parties' interests in the land any intermediate 
 freehold estates — the plaintiff in the action must be a privy 
 of the defendant, and niust also own the next immediately suc- 
 ceeding freehold estate.^ These difficulties are now generally 
 removed by statutes, even in jurisdictions in which the courts 
 have not discarded them, in applying the action on the case for 
 waste committed.* (a) 
 
 place, wasted." • N. Y. Code Civ. Pro. §§ 1651, 1652, 1655; and further 
 generally as to waste see §§ 1653, 1654, 1656-1659, 1664-1669; Danziger v. 
 Silberthan, 21 N. Y. Civ. Pro. Rep. 283. The jury determine the actual 
 damages ; and, when proper, judgment is entered for the plaintiff for three 
 times the amount of the verdict. The damages fixed by the jury are to 
 compensate for all the injury resulting to the land — the difference in its 
 value to the plaintiff before and after being wasted. Evans v. Keystone 
 Gas Co., 148 N. Y. 112 ; Argotsinger v. Vines, 82 N. Y. 308 ; Dwight v. 
 E: C. & N. R. R. Co., 132 N. Y. 199 ; Connor v. State, 152 N. Y. 9 ; Jutte 
 V. Hughes, 67 N. Y. 267; Francis v. Schoellkopf, 53 N. Y. 152; Gold- 
 schmidt v. Mayor, 14 App. Div. 135 ; Chaplin, Landl. & T. §§ 304-320. 
 
 (a) In New York, this is accomplished by the Code provision as follows : 
 " A person, seized of an estate in remainder or reversion, may maintain an 
 action founded upon an injury done to the inheritance, notwithstanding 
 any intervening estate for life or for years." N. Y. Code Ciy. Pro. 
 
 1 N. Y. Code CiT. Pro. § 1651; 1 waste. N. Y. Code Civ. Pro. § 1665; 
 Stim. Amer. Stat. h. § IS^a. Freer v. Stotenbur, 2 Abb. Ct. App. 
 
 2 N.Y. Code Civ. Pro. §§1655, 1658;. Dec. 189; Hunt v. Hall, 37 Me. 363; 
 1 Stim. Amer. Stat. L,, § 1332 (B) ; Sager i^. Galloway, 113 Pa. St. 500. 
 
 4 Kent, Com. p.* 81. " * N. Y. Code Civ. Pro. § 1665; 
 
 « Co. Lit. 53 b, 218 b ; Com. Dig. 1 Stim. Amer. Stat. L. § 1353; Freer v. 
 
 " Waste" ; Walker's Case, 3 Co. Kep. Stotenbur, 2 Abb. Ct. App. Dec. 189 ; 
 
 23; Batesy.Shraeder, 13 Johns; (N.Y.) Eobin.son v. Wheeler, 25 N. Y. 252; 
 
 260. He must also have 3,vested future Foot v. Dickinson, 2 Met. (Mass.) 611 ; 
 
 estate, and not merely a contingent or Chase v. Hazelton, 7 N. H. 171; Du- 
 executory right or interest. And the ■ pree v. Dupree, 49 N. C. 387 ; 2 Taylor, 
 
 latter is usually a requirement still, in Landl. & T. §§ 687-690. 
 any action at law on the ground of 
 
EIGHTS AND DUTIES OP LIFE tENANTS. 787 
 
 Because of the technicalities and ofttimes inadequacies of the 
 common-law procedure, the courts of equity early intervened, 
 by an injunction, to prevent threatened waste, or to stop actual 
 and continuing injury ; and this remedy has come to be a favor- 
 ite and probably most frequently applied procedure in cases 
 of waste.-^ Not only will equity grant an injunction in proper 
 instances, but also, in order to do complete justice, it will 
 award damages for injury already done.^ This form of redress 
 is primarily applicable, of course, to voluntary waSte, arid not 
 to that which is merely permissive; though in some special 
 instances it has been made available against the latter form 
 of the wrong.^ An injunction may be obtained by any succeed- 
 ing owner, to restrain actual continuing injury, or to prevent 
 thatpnich is threatened, though no privity exists between him 
 and the wrongdoer, and generally though an intervening es- 
 tate of freehold is between the interests of the two parties.* It 
 may a^so»be granted, even when another remedy is given by 
 statute. But equity will not intervene when the injury is only 
 sligfit or immaterial, and no greater damage is threatened, or 
 when there is a complete and adequate remedy at law.^ It is, 
 
 § 1665. ^See^lso §§ 1664, 1666, 1669 ; Dix v. Jaquay, 94 App. Div. 554; 
 Ottinger v. N, Y. El. R. Co., 15 N. Y. Supp. 18; Robinson v. Wheeler, 25 
 N. Y. 252;'^ffompson v. Manhattan R. Co., 130 N. Y. 360; Freer v. 
 Stotenbur, 2 Abb. Ct. App. Dec. 189; Maoy v. Met. El. R. Co., 59 Hun, 
 365, afi'd 128 N. *". 624; Bouton v. Thomas, 46 Hun, 6; Chaplin, Landl. 
 & T. §§ 312-315. ^ 
 
 1 Birch-Wolfe v. Birch, 9 Eq. 683 ; Cotton, 1 Ves. Sr. 546 ; Jones v. Hill, 
 Kane v. Vajiderburgh, ^ Johns. Ch. 7 Taunt, 392; Kane v. Vanderburgh, 
 (N. Y.)ll; Watson w. M|er, 5 Johns. 1 Johns. Ch. (N. Y.) 11; Story, Eq. 
 Ch. (N. Y.) 169; Westmorelaa* Na*. Jur. § 913; Chaplin, Landl. & T. 
 Gas. Co. V. DeWitt, 130 Pa. St. 251 ; •* § 315. 
 
 Fortescne v. Bowler, 55' N. J. Eq. fflfl ; ^ Harris v. Thomas, 1 Hen. & M. 
 
 Camp V. Bates, 11 Conn. 51 ; >^s- (Va.) 18. See Cutting u. Carter, 4 Hen. 
 pham's Prin. Eq. § 431. »- ^. &M. (Va.) 424 ; 1 Wash. R. P. (6th ed.) 
 
 2 Sir Hugh Cairns's Act, 21 & 22 § 3|7. 
 
 Vict. ch. 27 ; Seagram v. Knight, L. R. " Hptt v. Gill, L. R. 7 Ch. App. 
 
 2 Ch. App. 628 ; Phillips v. Thompson, 699 ; Atkins s.Khilson, 7 Met. (Mass.) 
 
 1 Johns. Ch. (N. Y.) 150; Kempshall 398; Leighlpn w. Leighton, 32 Me. 399. 
 
 V. Stone, 5 Johns. Ch. (N. Y.) 193; See Livingst4Bi^. Reynolds, 26 Wend. 
 
 Klie V. Van Broock, 56 N. J. Eq. 18; (N. Y.) 1 1 5 ;.iij*Wash. R. P. (6th ed.) 
 
 Armstrong O.Wilson, 60111226; Story, §§ 308, 309 ; ^ Taylor, Landl. & T. 
 
 Eq. Jur. §§ 517, 518, 917 ; Bispham's §§ 690, 691. "Blie distinction has been 
 
 Prin. Eq. §§ 477, 478. formulated bfche Maryland Court of 
 
 8 Camion v. Barry, 59 Miss. 289 ; Chancery, and [undoubtedly is good law 
 
 Powya u. Blagrave, Kay, 495; Bis- everywhere, that an, lijunction will be 
 
 pham's Prin. Eq. § 432. refused to a succeeding i^wner between 
 
 * Williams v. Bolton, 3 P. Wms. Whom'a,nd the te|i^t committing the 
 
 268, note; Garth v. Sir John Hind waste there iis^ no g^Jy, unless the in- 
 
788 ESTATES IN REAL PROPERTY. 
 
 of course, within the sphere of " equitable waste," as above 
 explained, that the form of remedy here under discussion is 
 most absolutely demanded, and most thoroughly satisfactory 
 when invoked.^ 
 
 § 559. Conclusion as to Freehold Estates. — Estates of free- 
 hold — the fees and the life estates — the discussion of which 
 is here brought to a close, were the estates of feudalism and 
 the early common law, acquiring their name from the fact that 
 they were ^\e only interests worthy of a freeman's attention ; 
 and, being also the only forms of ownership of which seisin 
 can be predicated, they have always stood out as the most 
 prominent things in the law of real property. A long stretch 
 of history is to be closed, and a great mass of feudal pjij|iples 
 and deductions is to be left behind, in passing over' to the 
 estates less than freehold and the law of landlord and teiiant, 
 which are next to be investigated. * " 
 
 jury is irreparable ; but that, in cases remedy at law. Georges ^f^k Co. v. 
 
 where privity exists between the parties Detmold, 1 Md. Ch. ^71. See'f^V^ash. 
 
 to the suit, the court will be quicker to R. P. (6th ed.) § 309. 
 grant an injunction, regardless of how i § 553, " third," supra. 
 
 adequate or inadequate may be the