j r 2 7 (Sornell ICatu ^rijnnl IGihrari} KF 570B9i rne " Univerel,yLibrary t tJi|J5jS? ok of ,he law o* real property / 3 1924 018 763 619 DATE DUE i 1NTERI -I3RARY 1 -OAN i - . i j r ' GAYLORD PRINTEDIN U.- Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018763619 of Elementary Treatises on all the Principal Subjects of the Law ihe special features of these books are as follows: 1. A succinct statement of leading principles In black-letter type. 2. A more extended commentary, elucidating the principles. 3. Notes and authorities. Published in regular octavo form, and bound in buckram. Black on Bankruptcy. Black on Construction and Interpretation of Laws (2d Ed.). Black on Constitutional Law (3d Ed.). Black on Judicial Precedents. Bogert on Trusts. Burdick on Real Property. Chapin on Torts. Childs on Suretyship and Guaranty. Clark on Contracts (3d Ed.). Clark on Criminal Law (3d Ed.). Clark on Criminal Procedure (Id Fd.». Clark on Private Corporations (3d Ed.). Cooley on Municipal Corporations. Costigan on American Mining Law. Croswell on Executors and Administrators. Dobie on Bailments and Carriers. Eaton on Equity Jurisprudence (2d^Ed.). -Gardner on Wills (2d Ed.). Gilmore on Partnership. Hale on Damages (2d Ed.). Hughes on Admiralty (2d Ed.). Hughes on Federal Jurisdiction and Procedure (2d Ed.). McKelvey on Evidence (3d Ed.). Norton on Bills and Note? (4th Ed.). Shipman on Common-Law Pleading (3d Ed.). Shipman on Equity Pleading. Smith's Elementary Law. Tiffany on Agency. Tiffany on Banks and Banking. Tiffany on Persons and Domestic Relations (3d Ed.). Tiffany on Sales (2d Ed.). Vance on Insurance. Wilson on International Law. Hornbooks on the law of other subjects will be published fron time to time. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. C11517— k HANDBOOK OF THE LAW OF REAL PROPERTY BY WM. L. BURDICK A. B., A.M. (Wesleyan); Ph.D. (Grant); IX. B. (Yalb) at one time student in harvard graduate school. professor of law in the university of kansas. author of elements of sales; cases on sales; new trials and appeals; cases on real property; and contributor to CYC, stand- ard ENCYCLOPEDIA OF PROCEDURE. ETC. ST. PAUL, MINN. WEST PUBLISHING 'CO. 1914 l?ef U<-eme«ct" Copyright, 1914 BY WEST PUBLISHING COMPANY (Burd.Real Pbop.) To A. p. b. (v)« PREFACE Am, who have made a special study of real property law realize the difficulties involved in attempting to present with reasonable adequacy the principles of so great a subject within. the narrow confines of a single volume. The author's experience of more than twenty years, both as a practitioner and a teacher of this subject, has served to increase his consciousness of these difficulties. He has long been aware, however, that a one-volume work is more available and practical for the use of the average law student than a more extended treatise. Accordingly, when the writer of this book was' invited by its publishers to prepare a one-volume text upon the subject of real property, he came to the conclusion that, if personal theories and discursive digressions were omitted, the fundamental principles of the subject, profound though it is, could be stated in a single volume of reasonable length. At least, this is what he has tried to do. Montesquieu says that law can be understood only through the light of history. This is peculiarly true in the case of our land law, and some reference to English history is absolutely necessary in order to explain certain doctrines, and principles connected with our real property law of the present time. The Roman law may likewise, at times, afford enlightenment in the same way. For occasional refer- ence, therefore, to these sources of information, the author has no apology. His regret is that, in order to keep the size of the volume within the limits as planned, much tl\at could be drawn helpfully from the past had to be omitted. In working out the subject the author has endeavored to state, not only the early or the common law, but also, as more important, the law as it exists in this country at the present time. He has tried to make the book reliable from the standpoint of scholarship, and also useful to the practitioner from the standpoint of modern application. If it is found that to a fair degree he has succeeded in this effort, he will feel abundantly rewarded. To the student and also to the reader in general he wishes to say a word, however, with reference to such phrases as "modern law," the "practical side of the law," and other similar expressions too often emphasized with misleading effect. Mr. Cyprian Williams, in his ex- cellent edition of his father's admirable book on Real Property (Wil- liams Real Prop. [17th Ed.] p. 174) says: "The whole modern law of real property is nothing but a tangle of heterogeneous devices for (vU) , viii PEBFACB escaping the effect of the common-law rules regarding land. And it will yield up its reason to no one who lacks the patience to learn its history. I would therefore entreat the student to lay aside the no- tion that the study of what is obsolete in practice must necessarily be waste of time, and will beg him again to consider with me the law of bygone days," Although this language was addressed to English students, it applies even more importantly to the law students of our own country. The American student, however, should not, as many do, look upon the law of real property as "highly technical," "difficult," "cumbersome," "unreasonable," "arbitrary," or "abstruse." That the subject is a great one, all who enter upon if soon realize. That, how- ever, the student cannot become commendably proficient in the knowl- edge and understanding of its principles is not true. To enumerate all the sources of information to which the author is indebted in connection with the preparation of this volume would be an almost impossible task. The material has been accumulated during a number of years. While many writers, both ancient and modern, have been consulted, the text is built mainly upon the decided cases, and where, otherwise, statements are based upon recognized authority, pains have been taken to refer to the original source. Special men- tion should, however, be made of several means of assistance. The publishers of this book authorized the writer, in its preparation, to make use of such parts of Hopkins on Real Property, another of their publications, as, in the writer's judgment, might be available for his purpose. While the scope of the present work and the method of its treatment are quite different from Hopkins, yet in a number of its paragraphs the writer has drawn freely from Mr. Hopkins' ex- cellent and clear statements, and desires to acknowledge with sincere appreciation the use thus made of that author. He is also grateful -to the publishers for a large amount of digested case law placed by them at his service, and he is further under obligations to the Ameri- can Law Book Company for their highly prized permission to make use of such articles in the Cyclopedia of Law and Procedure as might prove of assistance in the preparation of this volume. This generous aid has been of great value in several instances, and various references have been made to articles in that work. A separate volume, consisting of selected cases for illustrative pur- poses, has been prepared by the author to accompany the text. An effort has also been made in this volume to furnish added service to the student and practitioner by citing, together with the older cases, late cases, as far as space would permit, in order that the text and its authorities may present the law of the present day. , Wm. L. Burdick. Univebsitt or Kansas, June, 1914. TABLE OF CONTENTS PART I THE NATURE OF REAL PROPERTY AND TENURE THEREOF CHAPTER Z INTRODUCTION Section # p age 1. The Law of Real Property j 2. Ownership and Property 1 3. Things Movable and Immovable 1 4. Lands and Goods 2 5. Real and Personal Property 2-7 ■ 6. Differences In Law of Real and Personal Property 7-9 CHAPTER II WHAT IS REAL PROPERTY 7. Meaning of Real Property ,, in 8. Land Includes What 10-17 9. Things Growing on Land '. .-. 17-19 10. Things Severed from the Land > 19-20 11. Incorporeal Hereditaments 21-22 12. Equitable Conversion 22-23 13. Personal, or Chattel, Interests in Land 24 CHAPTER III FIXTURES 14. Defined 25 15. Immovable and Movable Fixtures 25-26 16. Rules for Determining Fixtures 26-37 17. Time of Removal 38-39 18. Severance of Fixtures 39-40 CHAPTER IV ANGLO-SAXON AND FEUDAL LAND LAW 19. Anglo-Saxon Land Law 41-43 20. Feudalism 44-47 21. Tenure ' 47-55 22. Seisin 55-56 Bued.Real Peop. (lx) TABLE OF CONTENTS PART II EIGHTS IN REAL PROPERTY (A) OWNERSHIP CHAPTER V Section ESTATES, IN FEE SIMPLE Page 23. Ownership Defined • ET-5S 24. Estate Defined 59 25. Classification of Estates 69 26. Quantity of Estates 60-61 27. Estates in Fee Simple 61-62 28. Creation 62-65 29. Right of User 65-66 30. Alienation 66-67 CHAPTER VI ESTATES IN FEE TAIL 31. Definition of Estate Tail 68 32. Origin of Estates Tail 68-72 33. Classification of Estates Tail 72-73 34. Creation of Estates Tail 74-76 35. Incidents of Estates Tail 76-77 36. The Barring of Estates Tail 77-80 37. Tenant in Tail'after Possibility of Issue Extinct 81 38. Estates Tail In the United States 81-82 39. Quasi Entail 83 CHAPTER Vn ESTATES FOR LIFE 40. Life Estates Defined 84 41. Conventional and Legal Life Estates 84 42. Creation of Life Estates 85-87 43. Incidents of Life Estates 88-90 44. Rights and Liabilities of Life Tenant 90-100 45. Termination of Life Estates 100-101 CHAPTER VIII LIFE ESTATES ARISING FROM MARRIAGE 46. Classes of Legal Life Estates 102 47. Estate During Coverture 103-106 48. Curtesy 106-110 49. Estates Subject to Curtesy 110-113 50. Incidents 113-114 51. How Defeated 115-117 52. Statutory Changes 117 53. Dower : , 118-123 54. Estates Subject to Dower 123-1 32 55. Assignment of Dower — Quarantine 132-135 56. Procedure in Assignment 135-136 57. Actions to Compel Assignment . ... 136-141 58. Incidents of Dower 141-143 59. How Barred '..,','. 143-157 60. Statutory Changes ' '"' 157-158 TABLE OP CONTENTS Xi i CHAPTER IX Section HOMESTEADS p age 61. A Statutory Exemption 159 62. Duration of Exemption !!".'.'"""! 159-160 63. Who Entitled to Homestead ...'.','.'.'.".'.'.',.'. 161-163 64. How Acquired . . . '. ' 163-166 65. In What Estates or Interests '.!.'.!! 166-168 66. Amount, Extent, and Value of Exemption 168 67. Selection of, Homestead 169-171 68. Change of Homestead : " 171-172 69. Alienation or Mortgage of Homestead '. 172-174 70. .Loss of Homestead 174-178 71. Enforceable Debts 179-181 72. Federal Homestead 181-183 CHAPTER X ESTATES LESS THAN FREEHOLD— ESTATES FOR TEARS , 13. Estates for Years 184-187 74". Creation of Estates for Tears 187 75. Relation of Landlord and Tenant 187 76. Commencement and Duration 187-192 77. Leases 192-197 78. Rights and Liabilities of Landlord and Tenant 198-204 79. Under Implied Covenants 204-208 80. Independent of Covenants 208-216 81. Transfer of Estates for Tears 217-220 82. Termination of Estates for Tears t 220-227 CHAPTER XI ESTATES LESS THA'N FREEHOLDS (Continued)— TENANCIES AT WILL, FROM TEAR TO TEAR, AND AT SUFFERANCE 83. Tenancies at Will 228 84. Creation 228-230 85. Incidents 230-231 86. Termination ; 231-232 87. Tenancies from Tear to Tear 232 88. Creation 233-235 89. Incidents 236 90. Termination 236-238 91. Tenancies at Sufferance 238 92. Creation 238-239 93. Incidents 240 94. Termination 240-241 95. Renting Land on Shares 241-243 96. Letting of Lodgings 243-244 97. Licenses 244-246 98. Revocation of Licenses 246-248 CHAPTER XII JOINT OWNERSHIP OF ESTATES 99. Estates as to Number of Owners 249 100. Joint Estates lil~lf, 101. Joint Tenancies f?0 -254 102. Estates in Coparcenary 254-255 103. Estates in Entirety ?co _ 9cn 104. Tenancies in Common 258-260 105. Partnership Realty 260- 262 106. Joint Mortgagees 262- 263 107. Incidents of Joint Estates ,™ ,77 108. Partition 977~?7q 109. Community Property ui-u» Xii TABLE OF CONTENTS CHAPTER XITT Section CONDITIONAL. OR QUALIFIED ESTATES f> age 110. Estates as to Quality r ^J"^J 111. Estates upon Condition ;„,«»* 112. Void Conditions lltfrn 113. Termination of Conditional Estates ,«, «»• 114. Who may Enforce Forfeitures 287- 288 115. Estates upon Limitation oon 116. Estates upon Conditional Limitation 290 117. Modified Fees ^ ••• 290-293 CHAPTER XIV EQUITABLE ESTATES— USES AND TRUSTS 118. Legal and Equitable Estates 294-295 119. Uses— Definition 295-296 120. The Statute of Uses 297-298 121. Restrictions upon the Operation of the Statute 299-302 122. Origin of Trusts » 3u2 123. Trust Defined , 302-303 124. Classification of Trusts 303-304 125. Express Trusts 304 126. Executed and Executory Trusts 304 127. Implied Trusts 305 128. Resulting Trusts 305 129. Constructive Trusts 305 130. Passive and Active Trusts 305 131. Private and Public Trusts 305-307 L32. Creation of Express Trusts 307-316 133. Nature of Implied Trusts 317-326 134. Incidents of Equitable Estates 327-332 136. Charitable or Public Trusts 333-341 CHAPTER XV ESTATES IN EXPECTANCY 136. Estates as to Time of Enjoyment S42 137. Estates in Expectancy 342 138. Reversions 343 139. Possibilities of Reverter 343 140. Future Estates , 343-348 141. At Common Law (Remainders) 348-353 142. Acceleration of Remainders 353-354 143. Successive Remainders 354 144. Cross Remainders 354-355 145. Alternate Remainders 355-356 146. Vested Remainders 356-358 147. Contingent Remainders 359-363 148. Destruction of Contingent Remainders : 364-366 149. Rule In Shelley's Case 367-371 1 50. Under the Statute of Uses (Future Uses) 372-373 151. Taking Effect as Remainders 373 152. Springing Uses 374 153. Shifting Uses .- 374-375 154. Under the Statute of Wills (Executory Devises) 375-379 155. Incidents of Future Estates 379-380 156. Tenure of Future Estates 380 157. Protection of Future Estates 381-382 158. Alienation of Future Estates i 383-384 159. Devise of Future Estates 384 160. Descent of Future Estates ,,. 385 TABLE OP CONTENTS Xiii CHAPTER XVI Section THE RULE AGAINST PERPETUITIES 161. The Rule Stated 386-391 162. Estates and Interests Subject to the Rule! '.!'.'.'.'.'.'. 391 163. Exceptions to the Rule 391-400 164. Rule Against Accumulations '."."..'.'.'.!!!!!!.'."!!]!!!!!!'.! 400-401 (B) RIGHTS IN THE LAND OF OTHERS CHAPTER XVH EASEMENTS, PROFITS A PRENDRE, RENTS, AND FRANCHISES 165. Rights in Land Apart from Ownership 402-403 166. Easement Defined 403-405 167. Classification of Easements 405-408 168. Creation of Easements 408 169. By Grant 408-411 170. By Prescription ; 411-413 171. Incidents of Easements 414-416 172. Termination of Easements 416-419 173. Particular Easements 419 174. Rights of "Way 419-422 175. Highways 422-425 176. Light and Air 425-427 177. Lateral and Subjacent Support 427-429 178. Party Walls 429-433 179. Water Rights 433-440 180. Profits a Prendre 441-444 181. Rents 444-449 182. Franchises 449-453 PART IIJ MORTGAGES AND OTHER LIENS UPON REAL PROPERTY CHAPTER XVIII MORTGAGES (A) GBNEEAL PBINCIPLES 183. Mortgages In the Early English and Roman Law 454-4B7 184. Nature and Definition 458-461 185. Parties to a Mortgage • 461 186. Subject-Matter of Mortgage 461-463 187. Form of Mortgages 463-476 188. Consideration of Mortgages 477-479 189. Rights and Liabilities of Mortgagor and Mortgagee . . ,, 479 190. In General 479-481 191. Possession and Use of Mortgaged Premises 481-483 192. Accounting by the Mortgagee 483-486 193. Insurance and Taxes 486-490 194. Repairs and Improvements 490-491 XiV TABLE OF CONTENTS Section Pa S8 195. Injuries to the Premises 491-492 196. Sale of the Mortgaged Property 492-497 197. Assignment of Mortgages 497-502 CHAPTER XIX MORTGAGES (Continued) (b) peioeity and notice 198. The Doctrine Stated 603 199. Notioejjy Registration 503-518 200. Notice by Recitals in Deeds 519-520 201. Notice by Possession 520-522 202. Notice by Lis Pendens 522-523 CHAPTER XX MORTGAGES (Continued) (C) DISCHARGE AND FORECLOSURE 203. Discharge of Mortgage's 524 204. By Performance 524-529 205. Effect of Tender 529-530 206. Payment by Third Person — Subrogation 531-533 207.' By Merger '. 533-536 208. By Redemption 536-544 209. Form of Release of Mortgages 544-545 210. Foreclosure 545-550 211. Form of Remedy 550-565 212. Statutory Right of Redemption 565-566 CHAPTER XXI LD3NS OTHER THAN MORTGAGES 213. Mechanics' Liens 567-576 214. Judgment Liens 576-580 215. Other Liens 580-582 PART IV THE ACQUISITION AND TRANSFER OF REAL PROPERTY CHAPTER XXII TITLE— IN GENERAL 216. Title Denned 583-585 2W. Acquisition of Land by Nation or State 585-588 218. Acquisition of Land by Private Persons 588 219. Public Grant 589-599 220. Accretion ■ 599-601 221. Private Grant .....'.'.'..'. * 601 222. Conveyances 601-602 223. Common-Law Conveyances 602-61Q 224. Conveyances under Statute of Uses 610-613 225. Modern Conveyances 613-615 226. Transfers of Registered Titles ' 615-619 227. Title by Estoppel '. 619 228. Estoppel to Assert After-Acquired Title 619-628 TABLE OF CONTENTS XV Section > page 229. Adverse Possession 629-646 23 °- Against whom Possession is Adverse.. '.'.'. "!!"!!"!"" 646-647 23L Interest or Estate Acquired 648 232. Abandonment after Title is Acquired ..'...'.".'...'.'.' 648-649 CHAPTER XXIII TITLE BY DEVISE AND DESCENT 233. Title by Devise 650 234. What May be Devised ....'...'...'...'.'.'.'.'.'.'.'. 650 235. Operative Words " 650 236. Nature of Title 650 237. Extent of Title \ 651 238. Revocation of Devise [ 651 239. Lapsed Devises 651 240. What Law Governs 651-658 241. Title by Descent 659 242. Canons of Descent at Common Law 659 243. Prevailing Modern Rules 659-674 CHAPTER XXIV TITLE BY OFFICIAL GRANT 244. Meaning of "Official Grant" 675-676 245. Execution -Sales , 676-677 246. Conveyances under Judicial Orders or Decrees 677-679 247. Conveyances by Statutory or Judicial Permission 679-682 248. Tax Titles 682 249. Right of Redemption 1 682 250. Estate or Interest Acquired 682-689 251. Eminent Domain 689-692 CHAPTER XXV RESTRAINTS AND DISABILITIES OF TRANSFERS 252. Restraints on Alienation 693 253. Restraints Imposed by Early Common Law 693-695 254. Restraints Imposed In Favor of Creditors 696-700 255. Restraints Imposed in Favor of Subsequent Purchasers 700-701 256. Restraints Imposed in Creation of Estate 702-704 257. Restraints Imposed by Federal Bankrupt Act 705 258. Persons under Disabilities to Convey Title 705-706 259. Persons of Unsound Mind 706 260. Drunkards 706-708 261. Infants 708-710 262. Married Women 710-711 263. Aliens 711-712 264. Corporations , 712-713 265. Capacity to Take Title 713-717 CHAPTER XXVI THE CREATION OF INTERESTS IN LAND BY POWERS 266. Powers in General 718 267. General Classification of Powers 718-721 j 268. Powers of Appointment 721-726 269. Classification of Powers of Appointment as to Estate of the Donee..'.. 726-727 270. Powers Collateral 726 271. Powers Appendant and in Gross 726-727 272. Classification of Powers of Appointment as to the Appointees 728-730 273. General Powers 728 274. Special Powers • i ■ • • 728-730 275. Classification of Powers of Appointment as to Duty of Execution 730 276. Extinguishment of Powers 731-732 XVI TABLE OF CONTENTS Section Page 277. Rights of Creditors 733 278. Execution of Powers 734-740 279. Fraudulent Appointments 740-741 280. Codification of Powers 742 CHAPTER XXVII DEEDS AND THEIR REQUISITES 281. Deed Defined 743-745 282. Requisites of Deeds 745-750 283. Formal Parts of Deeds 750-754 284. Description of Property Conveyed 755-766 285. The Habendum, Tenendum, and Conclusion r. 766-774 286. Attestation of Deeds 774-775 287. Acknowledgment of Deeds 775-779 288. Recording of Deeds 779-780 289. Delivery and Acceptance of Deeds 780- 786 ' CHAPTER XXVIII CONDITIONS, COVENANTS, AND WARRANTIES IN DEEDS 290. Conditions in General 787-789 291. Condition or Covenant 790-792 292. Building Restrictions , , , 792-793 293. Remedies for Breach of Condition , '. 793-796 294. Covenants in General 796-801 295. Modern Covenants of Title 801-802 296. Covenant of Seisin 802-804 297. How Broken 804-806 298. Covenant of Right to Convey 806-807 299. Covenant against Incumbrances 807-810 300. Covenant for Quiet Enjoyment 810-811 301. Covenant of Warranty , 811 302. How Broken *. 811-819 303. Special Warranty...,. 812-819 CHAPTER XXIX ABSTRACTS OF TITLE 304. Definition and Nature 820-824 305. Duty of Attorney in Examining Abstracts 824-825 TABLE OF CASES CITED (Page 827) INDEX (Page 933) HANDBOOK ON THE LAW OF REAL PROPERTY PART I THE NATURE OF REAL PROPERTY AND TENURE THEREOF CHAPTER I INTRODUCTION 1. The La* of Real Property. 2. Ownership arid Property. 3. Things Movable and Immovable. 4. Lands and Goods. 5. Real and Personal Property. 6. Differences in Law of Real and Personal Property. THE LAW OF REAL PROPERTY 1. The law of real property means, in general, the law pertaining to land. OWNERSHIP AND PROPERTY 2. In a strict sense, the right of ownership and "property" are synonymous, and property, as a general term, means any- thing capable of ownership. THINGS MOVABLE AND IMMOVABLE 3. Things subject to ownership are naturally divided into thing* movable and things immovable. 3UBD.REAL PEOP. — 1 INTRODUCTION (Ch. 1 LANDS AND GOODS 4. In early English law, property was divided into (1) lands, ten- ements, and hereditaments;, and (2) goods and chattels. REAL AND PERSONAL PROPERTY 5. In modern English law, property is divided into real property and personal property,, the terms being derived from real and personal actions. , - N Law of Real Property The law of real property, as applied in modern times to English and American law, means, in general, the land law. 1 The term "real es- tate" is also, in this country, both by statute and common law, gen- erally used synonymously with real property 2 In distinction from real property all other property is called personal. 8 Ownership and Property "Property (from the Lat. proprius, meaning belonging to one; one's own) signifies, in a strict sense, one's exclusive right of own- ership of a thing." 4 In their strict meanings, therefore, the right of ownership and property are synonymous, each term signifying a bundle or collection of rights. In a secondary, meaning, however, the term "property" is applied to every kind of valuable right and interest that can be made the subject of ownership, 8 and in this sense, since it is the subject of ownership, land is called property. ' i The terms "real property" and "land" are here used In a popular sense. The term "real property" is broader than "land" in its legal sense, and is equivalent to lands, tenements, and hereditaments. The statutes may some- times distinguish between "real property" and "land," as, for example, in California. See MT. CARMEL FRUIT CO. v. WEBSTER, 140 Cal. 183, 187. 73 Pac. 826, Burdick Cas. Real Property. 2 Murphy v. Superior Court of Los Angeles County, 138 Cal. 69, 70 Pac. 1070; Gillett v. Gaffney, 3 Colo. 351, 364; Jackson ex dem. Cary v. Parker, 9 Cow. (N. ¥.) 73, 81. s See infra. * McKeon v. Bisbee, 9 Cal. 137, 142, 70 Am. Dec. 642 ; Chicago & N. W. Ry. Co. v. Cicero, 154 111. 656, 662, 39 N. E. 574; Jackson ex dem. Pearson v. Housel, 17 Johns. (N. Y.) 281, 283; Illinois, Cent. R. Co. v Mattoon, 161 111. 247, 251, 43 N. E. 1100; Waters v. Wolfe, 162 Pa. 153, 169, 29 Atl. 646, 42 Am. St. Rep. 815. o Rigney v. Chicago, 102 111. 64, 77 ; City of St. Louis v. Hill, 116 Mo. 527, 533, 22 S. W. 861, 21 L. R. A. 220; Wynehamer v. People, 13 N. X. 378, 433. § 5) SEAL AND PEBSONAL FBOPEETY 3 The term, therefore, includes both real and personal property, 8 and it is often thus expressly defined in statutes. 7 The word "property," however, may have different meanings, under different circum- stances, according to the manner in which it is used. 8 Moreover, the word "owner" as applied to land has no fixed legal meaning which can be applied under all circumstances, and to every statu- tory enactment." Things Movable and Immovable A natural or scientific division of things which may become the subject of ownership, or of property, is into things movable and things immovable. This- distinction is inherent from the very nature of things. In the Roman law, and its offspring, the 'modern civil law, we do not find the terms "real property" and "personal property," but the terms "movable things" and "immovable things." 10 Movable things are things which can be moved from place to place, without injury, and which are not attached to the soil. Immovable things in- clude lands, and things adherent thereto, either by nature, as trees, or by the hand of man, as buildings, and also things destined for the land. 11 While "movable things" of the civil law correspond, in general, to "personal property" of our law, and "immovable things" to our "real property," yet the terms are not strictly synonymous. 12 « Briggs v: Briggs, 69 Iowa, 617, 618, 29 N. W. 632 ; Mason v. Hackett, 35 Hun (N. T.) 238, 240 ; White v. Keller, 68 Fed. 796, 800, 15 C. C. A. 683. t Fears v. State, 102 Ga. 274, 279, 29 S. E. 463 ; Aurora Nat. Bank of Aurora v. Black, 129 Ind. 595, 598, 29 N. B. 396 ; State v. Topeka Water Co., 61 Kan. 547, 561, 60 Pac. 337; State v. Barr, 28 Mo. App. 84, 85; Wing v. Disse, 15 Hun (N. Y.) 190, 194. 8 See, for example, the following cases : Springfield Fire & Marine Ins. Co. v. AUen, 43 N. Y. 389, 395, 3 Am. Rep. 711 ; Wilson v. Beckwith, 140 Mo. 359, 372, 41 S. W. 985; Brawley v. Collins, 88 N. C. 605, 607; Hickman v. Ruff, . 55 Miss. 549, 550. o Coombs v. People, 198 111. 586, 64 N. E. 1056. io In the civil law, property is divided into movables and immovables. Pen- niman v. French, 17 Pick. (Mass.) 404, 28 Am. Dec. 309 ; Code Nap. art 516 ; Spanish Civil Code, art. 333. ii For example, by the French Code (art. 524), and Jiie law is the same in Louisiana, immovables include articles intended "by destination" for the use of the land. There is no such thing as a "chattel mortgage" in the system, and a mortgage of a plantation may include, for example, a mule placed ' thereon for the use of the cultivation of the land. By "destination" the mule becomes an immovable. See Moussier v. Zunts, 14 La. Ann. 15. See, also. Dicey, Confl. Laws (Moore's Ed.) 72. 12 STRONG v. WHITE, 19 Conn. 238, Burdick Cas. Real Property; Dickey, J., in Ohio & M. R. Co. v. Weber, 96 111. 448 ; Penniman v. French, 17 Pick. (Mass.) 404, 28 Am. Dec. 309. In Louisiana slaves were classed as "immova- bles," yet were held not to be "real estate." Girard v. New Orleans, 2 La. Ann. 897, 90L 4 INTRODUCTION (Ch. 1 Lands and Goods The term "real property" is not found in the mediaeval common law of England, 18 and when the early English colonies were planted in this country, at Jamestown and at Plymouth, the phrase was prac- tically unknown. 1 * The older writers, when speaking of "things real," or what we, in modern times, designate as "real property," use the words "lands, tenements, and hereditaments." 16 "Things personal" were designated by the phrase "goods and chattels." 1B A tenement is anything of a permanent nature that can be made the subject of feudal tenure; 17 that is, a tenancy. 18 It is a broader term than land, since it includes incorporeal rights, as, for example, rents and commons. 10 There must, however, be an estate of freehold 20 in or- der to constitute a tenement. 21 Hereditaments are things which can be inherited ; that is, which, on the death of the owner intestate, de- scend to the heir. The term "hereditament," according to Coke, 22 is by much the largest and most comprehensive expression, since it includes, not only lands and tenements, but whatsoever may be in- herited, be it corporeal or incorporeal, real, personal, or mixed. 2 * Thus heirlooms, although personal property, descend with the inher- n Holds. Hist Eng. Law, III, 22. 14 The use of the terms "real property" and "personal property" dates back only about three hundred years in English law. For one of the early cases using the term "real property," see Wind v. Jekyl, 1 P. Wins. 572, 24 Eng. Ke- print, 522 (1719). io2 Blk. Comm. 15, 16; Co. Litt. 4a to 6b. In re Althouse's Estate, 63 App. Div. 252, 255, 71 N. Y. Supp. 445. The term "real property" is coexten- sive with "lands, tenements, and hereditaments," and includes rights and in- terests in land, or interests growing' out of, or connected with, land, except mere chattel interests. 7 Words & Ph. p. 5939 et seq. ; Jackson ex dem. Cary v. Parker, 9 Cow. (N. Y.) 73, 81. i« Id. 17 2 Blk. Comm. 16 ; Potter, J., in Canfleld v. Ford, 28 Barb. (N. T.) 336 ; Hosmer, C. J., in Mitchell v. Warner, 5 Conn. 518. is Field v. Higgins, 35 Me. 339, 342. i»2 Blk. Comm. 17; Co. Litt, 6. so As to what constitutes a freehold, see post, 2i City of New York v. Mabie, 13 N. Y. 151, 159, 64 Am. Dec. 538 ; People v. .Westervelt, 17 Wend, (N. Y.) 674, 676. Contra, Merry v. Hallet, 2 Cow. (N. Y.) 497. See, in general, 2 Blk. Comm. 16, 17. 22 1 Inst. 6. 28 2 Blk. Comm. 17; Coke, Litt., 6a (quoted in City of New York v. Mabie, 13 N. Y. 151, 159, 64 Am. Dec. 538) ; Owens v. Lewis, 46 Ind. 488, 508, 15 Am. Kep. 295; Nellis v. Munson, 108 N. Y. 453, 458, 15 N. E. 739; Canfleld v.- Ford, 28 Barb. (N. Y.) 336, 338 ; Canal Com'rs v. People, 5 Wend. (N. Y.) 423, 453. Mixed Pboperty. — The older writers often spoke of property as real, per- sonal, or mixed. By mixed property is meant property which is essentially personal, but it partakes of the character of real property, as leaseholds, tomb- § 5) BEAL AND PEESONAL PROPERTY 5 itance. 24 Hereditaments are divided into two classes, corporeal and incorporeal. 25 Real and Personal Property In our modern law, property is classified either as real or personal. This classification is explained by the rules which de- fined the sphere of "real actions" and "personal actions" in the English common-law courts. 20 Not only did these actions give their respective names to the property with which they were connected, but the very legal principles which were applied to the ownership or possession of land, as distinguished from the principles applicable to movable property, were shaped by these different forms of action. 27 In fact, the mediaeval land law of England can be well understood only by a careful study of the ancient "real actions." 28 The terms "real actions" and "per- sonal actions," as used in English law, were borrowed by the early writers from the Roman law. 22 They did not, however, apply these terms in the sense in which they were used by the Roman jurists, and it would seem as if their real meaning had been entirely misconceived. In the Roman law, actions are either personal (actions in personam) or impersonal (actions in rem). In the former, the person against whom the action is brought was named. It was an action arising from an obligatory right, and in this action a breach of duty was alleged against some particular individual. Actions in rem, on the contrary, did not name the person of the defendant, because they were actions which could be enforced against everybody, and the plaintiff merely alleged that the "res" in question was his own. They were actions arising from ownership, paternal power, right of succession, or from stones, monuments in a church, and title deeds (in English law) to an estate. The term is practically obsolete in modern times. See 2 Blk. Comm. 428; Black, L. Diet.;' Bouv. L. Diet; Miller v. Worrall, 62 N. J. Eq. 776, 48 Atl. 686, 90 Am. St. Rep. 480 ; Minot v. Thompson, 106 Mass. 583, 585. 2* 2 Blk. Comm. 17. 2 b As to incorporeal hereditaments, see post 26 Holds. Hist Eng. Law, III, 2, 22. 2T Holds. Hist. Eng. Law, II, 67. 2s Holds. Hist Eng. Law, III, 1. The real actions of English law were abolished more than seventy-five years ago, and had fallen out of use about two centuries before. See 4 L. Q. R. 395, "The Terms Real and Personal in English Law." 2» The Roman jurist Labeo, the friend and adviser of Augustus, was prob- ably the author of the division of actions into "actiones in rem" and "actiones In personam," a division which, to this day, affects all juristic thought in mat- ters of private law. Sohm's Inst. Rom. Law (3d Ed.) 94. Braeton seems to be the first writer on English law to employ these terms. Lib. Ill, cap. Ill, par. 1, fot 101b. 6 INTRODUCTION (Ch. 1 rights of status. 80 It should be observed, further, that in the Roman law the term "res" (which has, with some inexactness, been trans- lated into English as "things") was applied to anything that could be the object of proprietary rights, and "things" (res) thus capable of ownership were divided into "things corporeal" and "things incor- poreal." The Roman jurists, however, gave to the word "res" a wider meaning than our word "thing" implies. With us, a "thing" is tangible, capable of sensual perception, and, consequently, an "incor- poreal thing" is an apparent contradiction. By "incorporeal things," however, the Roman jurists did not mean soul or spirit, in distinction from matter, but they meant "rights," such, for example, as rights of inheritance, usufruct, or rights growing out of obligations. In fact, an investigation of the Roman law will show that the jurists did not mean to discuss "things" even under the term "corporeal things." Un- der that term they discussed "ownership" (dominium), and under the term "incorporeal things" they discussed "rights." In an action for ownership the plaintiff claimed a thing (res); in an action for usu- fruct or servitude he claimed a right (jus). Both of these actions were known, however, as actions in rem. 31 The English writers who transferred these terms from the Roman law to English law certainly did not classify them in the same way as the Romans. Actions ■ in rem became, in time, "real actions," while actions in personam be- came "personal actions." In English law "real actions" came to mean actions for the specific recovery of land, enforceable against the land (the res), while personal actions were actions for damages enforcea- ble against the person. Actions were said to sound in the realty or in the personalty. It was but a short step to apply the name of the action to the property sought to be recovered, and the result was that it became, in time, common practice to speak of "lands, tenements, and hereditaments" as "real property," while, in contradistinction, "goods and chattels" were designated as "personal." In this way the terms became fixed in our judicial system. 32 All things which could so Just. Inst. 4, 6, 1; Hunter, Rom. Law, 133; Sohm's Inst. Rom. Law (3d Ed.) 263 et seq. si See, in general, Just. Inst II, 2; IV, 6, 1; Gaius, Inst. IV, 3; Sohm's Inst. Rom. Law (3d Ed.) 264, 265. 8 2 Personal actions, included actions for the specific recovery of goods and chattels, which might naturally be considered "real actions," since their ob- ject was the recovery of a "thing" (res), yet in such actions the defendant was not compelled to return the chattel, hut might reimburse the plaintiff in damages; consequently, such actions came to be looked upon as "personal." It accordingly came to pass that the term "real" was applied to the class of property recoverable in real actions, namely, lands, tenements, and heredita- ments, while the term "personal" was conveniently used by way of contra- distinction to designate goods and chattels. See P. & M.Hist. II, 46 et seq.* § 6) DIFFERENCES IN LAW OF REAL AND PERSONAL PROPERTY 1 be recovered in real actions were real property, and all other property- was personal. 88 In real actions there could be an actual recovery of the land itself, but in personal actions there could be no recovery of the thing, except in the action of replevin. In this action, however, the person detaining the chattel could not be compelled to deliver the identical thing, but might elect to pay damages. 84 The action was accordingly in personam to obtain damages, and the property involved was called "personal property." Leasehold interests — that is, terms for years — were not originally specifically recoverable, and for this technical reason^ they were classed as chattels, or, since they were de- rived from the realty, as "chattels real." 85 DIFFERENCES IN LAW OF REAL AND PERSONAL PROPERTY 6. Most systems of law apply different rules to different classes of property. In our system of law, however, a greater diver- gence exists between land law and personal property law than is found in any other system. To the student of comparative jurisprudence, one of the most strik- ing features in English and American law is the great difference be- tween the law relating to land and the law governing personal prop- erty. In no other legal system is there such a wide divergence of legal principles in property law. To a certain degree, perhaps, all systems of law must recognize the convenience of different rules for property that is fixed, immovable, or "real," and for property that is movable, transitory, or "personal." 38 The Roman and the later civil Booth on Real Actions, II, ch. IX ; Reeves' Hist. Com. Law (Pinlason Ed.) p. 336, note. For a valuable article upon "The Terms Real and Personal in Eng- lish Law," see 4 L. Q. R. p. 394, by Mr. Williams. Irf the case of Myers v. League, 62 Fed. 654, 659, 10 C. C. A. 571, the court, in speaking of land, says: "That species of property, which by its fixed situation and qualities, has en- grossed the term 'real' as its peculiar descriptive." This statement is, how- ever, more fanciful than historical. >» Co. Litt 121a, Butler & H. note 1; Bouv. Law Diet. tit. "Real Property." As previously pointed out, the term "mixed property" is used by some to cover those things which partake of the characteristics and qualities of both per- sonal and real property. 8* Dig. Real Prop. (4th Ed.) 71, note 2. See note 32, supra. so Bridgewater v. Bolton (1704) 6 Mod. 106, 107. 8« In the legal system "of Turkey, however, "no distinction is made between movable and immovable property. They are governed by the same rules. In the eye of the law the sale, hire, pledge, and devolution of a piece of land are subject to exactly the same incidents as the sale, hire, pledge, and devolu- tion of a piece of cloth." Legal System of Turkey, 25 L. Q. R. 24 (1909). 8 INTBODUCTION (Ch. 1 law recognize this fact, although not to the widely divergent extent that exists in our law. Among the many important differences be- tween our law of real property and personal property may be men- tioned the following: The modes of transferring real and personal property are different. The title to millions of dollars worth of per- sonal property " 7 may be transferred by mere oral agreement, while real property, no matter how trifling in value, can be conveyed, as a rule, only by a written instrument, executed with certain required for- malities. 38 The transfer, or mortgage, of real property is governed by the law,of the place where the land is situated, 39 while the sale, or mortgage, of personal property is governed, generally, by the place of contract. So, also, there are different requirements both as to the form and as to the recording of mortgages affecting real and personal property. 40 On the. death of the owner, realty passes at once to the heir or devisee, 41 while personalty goes to the personal representative, and through him to the distributee or legatee. 42 The personal prop- erty of a decedent must be used before the realty in paying his debts. 4 * There are differences in the form and place of bringing actions for damages to lands and to chattels. 44 There is also a difference in the law governing the taxation of the two kinds of property, 40 particularly as to the place of taxation. In some states, a will of personal prop- erty may be made at an earlier age than a will of real property can be " But few realize, perhaps, that in modern times our assessed valuation of personal property is in excess of real property. One illustration must suffice. The census of 1910 showed the reported value in this country of all farm lands, improvements, implements, and live stock thereon to be something in excess of forty-one billion dollars'. The corporation returns in 1912, under the federal Corporation Tax Law, showed the aggregate value of stocks and bonds, represented by the corporations thus reporting, to be over eighty-eight billion dollars. This class of personal property alone was consequently double, it is perceived, the value of' all the farm property of the country. as see Deeds, post. »» Post *« Stim. Am. St Law, arts. 185-194, 453; 1 Schouler, Pers. Prop. (2d Ed.) c. 6. 41 1 Woerner, Adm'n, pp. 15, 408. *2 1 Woerner, Adm'n, p. 409. There Is no present-day reason, of course, why the laws of descent and distribution should be different for different classes of property. In some states, as a matter of fact, all the property, both real and personal, of an intestate passes, by force of statute, to the heirs, sub- ject to the control of the court and to the possession of an administrator ap- pointed by the court. *s 2 Woerner, Adm'n, p. 1093. «* 1 Jag. Torts, p. 102 et seq. «e Cooley, Tax'n, pp. 270, 275; Stim. Am. St. Law, arts. 33, 35. As denned for the purposes of taxation, the term "real property" sometimes includes things which in a strict sense should be regarded as personal property. See Union Compress Co. v. State, 64 Ark. 136, 138, 41 S. W. 52. § 6) DIFFERENCES INLAW OF REAL AND PERSONAL PROPERTY 9 made, and wills known as nuncupative wills may be made of one's personal estate, although not of his real estate. In the law of Car- riage, the rights of the husband, at common law, are not the same with reference to the real property of the wife as in the case of her personal property, and the common-law estates of dower and curtesy apply to real property alone. These are not, by any means, all of the differences between the law of these two classes of property, yet they are sufficient to establish the fact of a wide difference. It has sometimes been said that the explanation of this difference in our land law and our personal property law is due to the fact that the former law is derived from the feudal system, while the laws reg- elating personal property are derived from the law merchant. While this statement is true in part, it is not entirely true, and, in any case, it does not really explain. Many important principles of our law ,of real property are in truth derived from feudalism, yet not all of them. For the beginning of our law of real property we must go beyond the days of the feudal system. The Normans changed the old local customs of the Anglo-Saxon land law into "tenures," but this "insured a wholesale reception of Old English land law by the French con- querors." *• Had feudalism never been introduced into England, nev- ertheless, our law of real property would have differed from our law of personal property. This would have been due partly to the in- herent differences between immovable and movable property, but more particularly to the fact, as already pointed out, that the different prin- ciples of law applicable to the ownership or possession of land, in contradistinction to the principles applicable to movable property, were considerably influenced by the ancient forms of actions. A complete discussion, however, of the questions relative to the explanation of the differences in our law of real property and our law of personal property, would involve a general review of many matters connected with the political, social, and economical history of the English people. «• Vlnogradoff, English Society, 224. 10 WHAT IB EEAL PKOPEBTT (Ch. 2 CHAPTER II WHAT IS REAL PROPERTY 7. Meaning of Real Property. 8. Land Includes What 9. Tilings Growing on Land. 10. Things Severed from the Land. 11. Incorporeal Hereditaments. 12. Equitable Conversion. 13. Personal, or Chattel, Interests in Land. y MEANING OF REAL PROPERTY 7. With reference to the subject-matter of property, real property includes land and things attached to land so as to become a part of it; with reference to rights of property or of ownership, real property means the estate, title, interest, or rights in land which continue for life or are inheritable, either of full ownership, or of some partial enjoyment of the land or its profits. LAND INCLUDES WHAT 8. Land, in general, includes the soil and minerals of the earth, its natural productions, and permanent structures erected upon it. Real Property The term "real property" may be used either with reference to the subject-matter of property, or with reference to the rights, the prop- erty rights, of an owner therein. As the subject-matter of property, real property includes land and things becoming a part of it by attach- ment ; x with reference, on the other hand, to property rights, real property means the estate, title, or interest in land which an owner may have. It is in the first sense, however, that the term is used at this time. 2 • i "Real Property," Laws of Eng. vol. 24, § 277 ; Bemis v. First Nat Bank, 63 Ark. 625, 628, 40 S. W. 127; Mound City Const. Co. v. Macgurn, 97 Mo. App. 403, 408, 71 S. W. 460 ; Mathes v. Dobschuetz, 72 111. 438, 441. 2 Property rights, or "real property" involving the possession of lands, are treated under the title of Estates, post § 8) LAND INCLUDES WHAT 11 Land L,and, in its legal sense, is a general term of very broad signifi- cance. 8 It includes the ground, soil, or surface of the earth, such as fields, meadows, pastures, woods, moors, waters, marshes, and heath.* It also includes all mines, minerals, and fossils beneath the surface, or imbedded in it ; 6 likewise houses and other buildings upon it, 6 such as fences T and bridges. 8 It includes the herbage, grass, trees, 9 rocks, and the natural or perennial products of the, soil. 10 It is also said to 8 2 Blk. Comm. 16; CANFIELD v. FORD, 28 Barb. (N. T.) 336, Burdick Cas. Real Property ; Ex parte Leland, 1 Nott & McC. (S. C.) 460, 463 ; Nessler v. Neher, 18 Neb. 649, 650, 26 N. W. 471 ; Goodhue v. Cameron, 142 App. Div. 470, 127 N. T. Supp. 120. In ancient times "land" appears to have meant arable land only. See Co. Litt. 4a ; Shep. Touch. (Preston's Ed.) 91 ; P. & M. II, 147. Land has been defined as follows : "In law, 'land' signifies any ground forming part of the earth's surface which can be held as individual property, whether soil or rock, or water-covered, and everything annexed to it, whether by nature, as trees, water, etc., or by the hand of man, as buildings, fences, etc." Century Diet, [quoted in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444, 448, 74 N. W. 656]. * Co. Litt. 4a ; 2 Blk. Comm. 17. o 2 Blk. Comm. 17 ; Smith, C. J., in Johnson v. Richardson, 33 Miss. 462, 464 ; Ray, C. J., in State v. Pottmeyer, 33 Ind. 402, 403, 5 Am. Rep. 224 ; Wil- liamson v. Jones, 39 W. Va. 231, 19 S. E. 436, 25 L. R. A. 222. « Stauffer v. Cincinnati, etc., R. Co., 33 Ind. App. 356, 70 N. E. 543, 544 ; People ex rel. International Nav. Co. v. Barker, 153 N. Y. 98, 100, 47 N. E. 46 ; Chicago, I. & R. R. Co. v. Knuffkee, 36 Kan. 367, 369, 13 Pac. 582 ; Union Cent Life Ins. Co. v. Tillery, 152 Mo. 421, 425, 54 S. W. 220, 75 Am. St. Rep. 480. 7 Bagley v. Columbus Southern Ry. Co., 98 Ga. 626, 627, 25 S. E. 638, 34 L. R. A. 286, 58 Am. St. Rep. 325 ; Mott v. Palmer, 1 N. T. 564, 569 ; Murray v. Van Derlyn, 24 Wis. 67. » Monmouth County v. Red Bank, etc., Turnpike Co., 18 N. J. Eq. 91, 94. Electric light poles and wires are real property. Keating Implement Co. v. Marshall Electric Light, etc., Co., 74 Tex. 605, 12 S. W. 489. » Marion County Lumber Co. v. Lumber Co., 84 S. C. 505, 66 S. E. 124, 877 ; Morgan v. O'Bannon, 125 La. 367, 51 South. 293 ; Gulf Red Timber Lumber Co. v. O'Neal, 131 Ala. 117, 135, 30 South. 466, 90 Am. St. Rep. 22 ; Fox v. Pearl River Lumber Co., 80 Miss. 1, 6, 30 South. 583. 10 See infra. The annual products of industry are treated as personal prop- erty. Co. Litt. 4 ; Bagley v. Columbus So. R. Co., 98 Ga. 626, 627, 25 S. E. 638, 34 L. R. A. 286, 58 Am. St. Rep. 325 ; Green v. Armstrong, 1 Denio (N. Y.) 550, 554; Pattison's Appeal, 61 Pa. 294, 297, 100 Am. Dec. 637. The owner of land may, to abate the nuisance, cut off the limbs of trees which overhang his boundary line without committing a trespass. Grandona v. Lovdal, 70 Cal. 161, 11 Pac. 623; Smith, J., in Countryman v. Lighthill, 24 Hun (N. Y.) 406. He does not, however, own such branches, and he has no right to the fruit on trees overhanging his land. Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645 ; Lyman v. Hale, 11 Conn. 177, 27 Am. Dec. 728. When a tree stand- ing on one man's land sends roots into the soil of an adjoining proprietor, the one on whose land the trunk stands owns all the tree and its fruit. Masters v. Pollie, 2 Rolle, 141; Holder v. Coates, 1 Moody & M. 112; Lyman v. Hale, 12 WHAT IS REAL PBOPEBTY (Ch. 2 include everything under it and everything over it, 11 extending upward indefinitely and downward to the center of the earth, giving rise to the maxim "cujus est solum ejus est usque ad cce'lum usque ad or- cum." 12 With reference to its ownership, however, land may be di- vided horizontally, so that one person may own the surface and an- other person may own the underlying strata, having the right to the minerals, 13 or to construct a tunnel therein. 14 Land may, of course, have, in any particular case, a restricted rather than a general mean- in, according to the construction of its special use in a deed, will, con- tract, or other instrument. 16 The term in some states is defined by statute. 16 Minerals and Fossils Mines are land, and minerals or fossils in their natural location in the earth area part of the land. 17 If severed, however, by other than 11 Conn. 177, 27 Am. Dec. 728; Hoffman v. Armstrong, 48 N. Y. 201, 8 Am. Rep. 537; Skinner v. Wilder, 38 Vt 115, 88 Am. Dec. 645. As holding that they are tenants in common when the tree stands on the line, see Griffin v. Bixby, 12 N. H. 454, 37 Am. Dec. 225 ; Dubois v. Beaver, 25 N. Y. 123, 82 Am. Dec. 326. ii State v. Pottmeyer, 33 Ind. 402, 408, 5 Am. Rep. 224 ; HTG6INS OIL & FUEL CO. v. SNOW, 113 Fed. 433, 438, 51 C. C. A. 267, Burdick Cas. Real. Property. 12 Langhorne v. Turman, 141 Ky. 809, 133 S. W. 1008, 34 L. R. A. (N. S.) 211 ; Slosson, J., in Sherry v. Frecking, 4 Duer (N. Y.) 452, 457 ; Welles, J., in Aiken v. Benedict, 39 Barb. (N. Y.) 401; Isham v. Morgan, 9 Conn. 374, 377, 23 Am. Dec. 361; CANFIELD v. FORD, 28 Barb. (N. Y.) 336, Burdick Cas. Real Property. See, however, the article Real Property, in Laws of Eng. vol. 24, § 305, note, where it is said: "The strict right of property does not ex- tend skyward without limit, so as to entitle the owner to sue in trespass (Pickering v. Rudd, 4 Camp. 219), and the advent of airships has shown that this would be impracticable." It is held, however, that the owner of land may rightfully object to the stretching of telegraph or telephone wires over his land. Boards of Works v. United Telephone Co., 13 Q. B. D. 904. 13 Lillibridge v. Coal Co., 143 Pa. 293, 22 Atl. 1035, 13 L. R. A. 627, 24 Am. St Rep. 544 ; Delaware, L. & W. R. Co. v. Sanderson, 109 Pa. 583, 1 Atl. 394, 58 Am. Rep. 743 ; Lee v. Bumgardner, 86 Va. 315, 10 S. E. 3 ; Byers v. Byers, 183 Pa. 509, 3S Atl. 1027, 39 L. R. A. 537, G3 Am. St Rep. 765; Caldwell v. Copeland, 37 Pa. 427, 78 Am. Dec. 436. i4 Central London Railway v. City of London, [1911] 2 Ch. 467, C. A. is Overton v. Moseley, 135 Ala. 599, 605, 33 South. 696. i« Missouri, K. & T. R. Co. v. Miami County, 67 Kan. 434, 439, 73 Pac. 103 ; People v. New York Tax Com'rs, 104 N. Y. 240, 248, 10 N. E. 437 ; Edwards & McCulloch Lumber Co. v. Mosher, 88 Wis. 672, 677, 60 N. W. 264; Hyatt v. Vincennes Nat. Bank, 113 U. S. 408, 414, 5 Sup. Ct 573, 28 L. Ed. 1009 ; Peo- ple v. Cassity, 46 N. Y. 46, 49; MT. CARMEL FRUIT CO. v. WEBSTER, 140 Cal. 183, .73 Pac. 826, Burdick Cas. Real Property. i? Appeal of Stoughton, 88 Pa. 198 ; Dunham v. Kirkpatrick, 101 Pa. 36, 47 Am. Rep. 696 ; Hartwell v. Camman, 10 N. J. Eq. 128, 64 Am. Dec. 448 ; Lone Acre Oil Co. v. Swayne (Tex. Civ. App. 1903) 78 S. W. 380. § 8) LAND INCLUDES WHAT 13 natural causes, they become personal property. 1 * A meteorite is also held to be a part of the realty, whether imbedded in the soil, 18 or mere- ly lying upon the land where it fell. 20 By the English common law, the right to gold and silver mines is in the crown. 21 In this country, however, it is held that this rule does not apply, but that the state or the United States own mines as they own other property, and not by the mere right of sovereignty. 22 The practical consideration of this question is with us, however, governed mainly by the laws pertaining to mineral deposits found upon the public lands. The federal stat- utes 2S provide for thelocation of mineral claims by discoverers, for the posting of a notice and the ' recording of the claim, for labor and improvements upon the claim as a condition for ,the continuance of the claimant's rights, 2 * and for the final entry, payment of the govern- ment price for the land, and the issuance of a patent. Oil and gas beneath the soil are properly classed as minerals, and while confined within the earth they belong to the owner of the land. 25 They are, however, of a fugitive and volatile nature, and a grant of either of them gives only an inchoate rightj becoming absolute only upon the reduction to possession. 28 The rights of an owner in the is Bender v. Brooks (Tex.) 127 S. W. 168 ; Murray v. Allred, 100 Tenn. 100, 43 S. W. 355, 39 L. R. A. 249, 66 Am. St. Rep. 740. i» Goddard v. Winchell, 86 Iowa, 71, 52 N. W. 1124, 17 L. R. A. 788, 41 Am. St Rep. 481. 20 Oregon Iron Co. v. Hughes, 47 Or. 313, 81 Pac. 572, 8 Ann. Cas. 556. aiAtty. Gen. v. Morgan (1891) 1 Ch. 432; Moore v. Smaw, 17 Cal. 199, 79 Am. Dec. 123. If the gold or silver was found together with baser metals, they all belonged to the king if the value of the precious metals was greater than the value of the others. But if the baser metals were more valuable than the gold or silver, then the owner of the soil took both. Case of Mines, Plowd. 310, 75 Eng. Reprint, 472 ; 3 Kent, Comm. 378, note ; 1 Blk. Comm. 294. The statutes of 1 Wm. & M. c. 30, and 5 Wm. & M. c. 6, provided, however, that royal ownership should not extend to copper, tin, iron, or lead mines by virtue of gold or silver being found therein. 22 Loney v. Scott, 57 Or. 378, 112 Pac 172, 32 L. R. A. (N. S.) 466; Heil v. Martin (Tex. Civ. App. 1902) 70 S. W. 430 ; Heydenfeldt v. Daney Gold, etc., Min. Co., 93 U. S. 634, 23 L. Ed. 995 ; Boogs v. Mining Co., 14 Cal. 279 ; Moore v. Smaw, 17 Cal. 199, 79 Am. Dec. 123 ; 1 Cooley, Blk. Comm. 294, note 4. Compare Gold Hill Quartz Min. Co. v. Ish, 5 Or. 104. 23 See Rev. St. U. S. §§ 2318-2352 (U. S. Comp. St. 1901, pp. 1423-1441). a* Not less than $100 worth of labor during each year until a patent has been issued. Rev. St. U. S. (1878) § 2324. 20Rupel v. Oil Co., 176 Ind. 4, 95 N. E. 225, 226, Ann. Cas. 1913E, 836; Kansas Natural Gas Co. v. Haskell, 172 Fed. 545 ; Lanyon Zinc Co. v. Free- man, 68 Kan. 691, 75 Pac. 995, 1 Ann. Cas. 403 ; Brown v. Spllman, 155 TJ. S. 665, 15 Sup. Ct 245, 39 L. Ed. 304 ; Manufacturers' Gas & Oil Co. v. Indiana Natural Gas, etc., Co., 155 Ind. 461, 57 N. E. 912, 50 L. R. A. 768. 20 Federal Oil Co. v. Western Oil Co., 112 Fed. 373, 375, affirmed 121 Fed. €74, 57 C. C. A. 428 ; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732. 14 WHAT IS REAL PEOPEKTT (Ch. 2 oil and gas of his land are similar to his rights in subterranean wa- ters." Water Water is included under the general 'term land, 28 and a pond or other standing body of water cannot be conveyed or possession there- of recovered by the name of water, but only by calling it land cov- ered with water. 29 Standing water and percolations' beneath the sur- face belong to the owner of the soil. 30 Running waters, however, are not owned by those who own the land over which they flow. 81 These riparian owners, as they are called, have only an easement in such waters, although these rights in water are treated as real property. 32 In any case, a man has the exclusive right to sail and fish in the wa- ters overlying his land. 83 There are no such exclusive rights, how- ever, in connection with navigable waters, 84 because the title to the soil under them is in the state. 30 This is, however, denied by some 27 See Easements, Subterranean Waters ; Manufacturers' Gas & Oil Co. v. Indiana Nat. Gas Co., 155 Ind. 461, 57 N.'E. 912, 50 L. R. A. 768. as Lux v. Haggin (1884), 69 Cal. 255, 4 Pac. 919, 920, 10 Pac. 674; State v. Pottmeyer, 33 Ind. 402, 403, 5 Am. Rep. 224; Co. Litt. 4a; 2 Blk. Comm. 18. Land comprehends tide-waters, lakes, and running streams, as so much land covered with water. Co. Litt 4; Coombs v. Jordan, 3 Bland (Md.) 284, 22 Am. Dec. 236, 259. 2» 2 Blk. Comm. 18. See Mitchell v. Warner, 5 Conn. 497, 518. 30 Ocean Grove Camp Meeting Ass'n v. Asbury Park, 40 N. J. Eq. 447, 3 Atl. 168 ; Village of Brooklyn v. Smith, 104 111. 429, 44 Am. Rep. 90 ; Alex- ander v. U. S., 25 Ct. CI. 87 ; Hills v. Bishop, 63 Hun, 624, 17 N. Y. Supp. 297 ; Walker v. Board, 16 Ohio, 540 ; People v. Piatt, 17 Johns. 195, 8 Am. Dec. 382. si "Running water in natural streams is not property and never was." City of Syracuse v. Stacey, 169 N. Y. 231, 245, 62 N. E. 354 ; Mitchell v. Warner, 5 Conn. 497, 518. 32 See Easements, post. 83 Shrunk v. Navigation Co., 14 Serg. & R. (Pa.) 70 ; Reece v. Miller, 8 Q. B. Div. 626; Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Am. Dec. 333; McFarlin v. Essex Co., 10 Cush. (Mass.) 304 ; Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386; Cobb v. Davenport, 32 N. J. Law, 369; Heckman v. Swett. 107 Cal. 276, 40 Pac. 420. si Carson v. Blazer, 2 Bin. 475, Fed. Cas. No. 2,461a ; Arnold v. Mundy, 6 N. J. Law, 1, 10 Am. Dec. 356 ; Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997 ; McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; Weston v. Sampson, 8 Cush. (Mass.) 347, 54 Am. Dec. 764; Chalker v. Dickinson, 1 Conn. 382, 6 Am. Dec. 250 ; Attorney General v. Chambers, 4 De Gex, M. & G. 206 ; Sollers v. Sollers, 77 Md. 148, 26 Atl. 188, 20 L. R. A. 94, 39 Am. St. Rep. 404. And see Bagott v. Orr, 2 Bos. & P. 472; Packard v. Ryder, 144 Mass. 440, 11 N. E. 578, 59 Am. Rep. 101. But cf. Anon., 1 Camp. 517, note ; Blundell v. Catterall, 5 Barn. & Aid. 268 ; Fleet v. Hegeman, 14 Wend. (N. Y.) 42. 3 5 Pacific Gas Imp Co. v. Ellert, 64 Fed. 421; Shively v. Bowlby, 152 H. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331 ; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224 r Poor v. McClure, 77 Pa. 214 ; Flannagan v. Philadelphia, 42 Pa. 219 : § 8) LAND INCLUDES WHAT 15 cases, which hold that the title to the bed of a navigable river is in the riparian proprietor. 86 Navigable rivers are those which are nav- igable in fact. 87 The English rule, that only those waters in which McManus v. Carmichael, 3 Iowa, 1; Tomlin v. Railway Co., 32 Iowa, 106, 7 Am. Rep. 176; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; Smith v. Levinus, 8 N. Y. 472 ; People v. Appraisers, 33 N. T. 461 ; Rumsey v. Railway Co., 130 N. Y. 88, 28" N. E. 763 ; Saunders v. Railway Co., 144 N. Y. 75, 38 N. E. 992, 26 L. R. A. 378, 43 Am. St. Rep. 729 ; State v. Pacific Guano Co., 22 S. C. 50; Bullock v. Wilson, 2 Port. (Ala.) 436; Goodwin v. Thompson, 83 Tenn. 209, 54 Am. Rep. 410 ; Concord Manuf g Co. v. Robertson, 66 N. H. 1, 25 Atl. 718, 18 L. R. A. 679; Illinois Cent. R. Co. v. Illinois, 146 TJ. S. 387, 13 Sup. Ct. 110, 30 L. Ed." 1018; Wainwright v. McCullough, 63 Pa. 66. But cf. Wilson v. Welch, 12 Or. 353, 7 Pac. 341 ; Coxe v. State, 144 N. Y. 396, 39 N. E. 400. That the title to the bed of such streams is not in the United States, see Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565. A riparian proprietor on a nonnavigable river owns the bed of the stream to the center. Ingraham v. Wilkinson, 4 Pick. (Mass.) 268, 16 Am. Dec. 342 ; Wiggenhorn v. Kountz, 23 Neb. 690, 37 N. W. 603, 8 Am. St. Rep. 150. In England, the fee to all land covered by navigable waters is, at common law, in the king. Brook- haven v. Smith, 98 App. Div. 212, 90 N. Y. Supp. 646. s« Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606, 56 Am. Rep. 642; Olson v. Merrill, 42 Wis. 203; Ensminger v. People, 47 111. 384, 95 Am. Dec. 495; Middleton v. Pritchard, 4 111. 510, 38 Am. Dec. 112; Houck v. Yates, 82 111. 179; Trustees of Schools v. Schroll, 120 111. 509, 12 N. E. 243, 60 Am. Rep 575 ; Gavit's Adm'rs v. Chambers, 3 Ohio, 496 ; Blanchard's Lessee v. Porter, 11 Ohio, 139; Commissioners of Canal Fund v. Kempshall, 26 Wend. (N. Y.) 404; Berry v. Snyder, 3 Bush (Ky.) 266, 96 Am. Dec. 219; Brown v. Chad- bourne, 31 Me. 9, 50 Am. Dec. 641 ; Keyport & M. P. Steamboat Co. v. Farm- ers' Transp. Co., 18 N. J. Eq. 13 ; Morgan v. Reading, 3 Smedes & M. (Miss.) 366; The Magnolia v. Marshall, 39 Miss. 109; Cates' Ex'rs v. Wadlington, 1 McCord (S. C.) 580, iO Am. Dec. 699; Mathis v. Board of Assessors, 46 La. Ann. 1570, 16 South. 454; Gibson v. Kelly, 15 Mont. 417, 39 Pac. 517. Cf. Buttenuth v. Bridge Co., 123 111. 535, 17 N. E. 439, 5 Am. St. Rep. 545 ; Ryan v. Brown, 18 Mich. 196, 100 Am. Dec. 154; State v. Black River Phosphate Co., 32 Fla. 82, 13 South. 640, 21 L. R. A. 189 ; Wool v. Town of Edenton, 115 N. C. 10, 20 S. E. 165. See Water Boundaries, Deeds. st State ex rel. Applegate v. Taylor, 224 Mo. 393, 123 S. W. 892 ; Con- neaut Lake Ice Co. v. Quigley, 225 Pa. 605, 74 Atl. 648; State of Maryland v. Miller, 180 Fed. 796 ; U. S. v. Turnpike Road, 183 Fed. 598 ; Asher v. Mc- Night, 129 Ky. 623, 112 S. W. 647; Weise v. Smith, 3 Or. 445, 8 Am. Rep. 621 ; Rhodes v. Otis, 33 Ala. 578, 73 Am! Dec. 439 ;. McManus v. Carmichael, 3 Iowa, 1; Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58; Spring v. Russell, 7 Greenl. (Me.) 273 ; American River Water Co. v. Amsden, 6 Cal. 443 ; Jones v. Johnson, 6 Tex. Civ. App. 262, 25 S. W. 650; Homochitto River Com'rs v. Withers, 29 Miss. 21, 64 Am. Dec. 126; Bayzer v. Mill Co., 105 Ala. 395, 16 South. 923, 53 Am. St. Rep. 133; The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999 ; The Montello, 20 Wall. 430, 22 L. Ed. 391 ; Chisholm v. Caines, 67 Fed. 285; Stover v. 7ack, 60 Pa. St. 339, 100 Am. Dec. 566; Heyward v. Mining Co., 42 S. C. 138, 19 S. E. 963, 20 S. E. 64, 28 L. R. A. 42, 46 Am. St. Rep. 702 ; Falls Mfg. Co. v. Scouts River Imp. Co., 87 Wis. 134, 58 N. W. 257. And see Volk v. Eldred, 23 Wis. 410 ; Lewis v. Coffee Co., 77 Ala. 190, 54 Am. Rep. 55; Rowe v. Bridge Corp., 21 Pick. (Mass.) 344; State v. Gilmanton, 16 WHAT IS REAL PROPERTY (Ch. 2 the tide ebbs and flows are navigable, 88 does not apply in this coun- try, 39 and although statutes, in some states, have declared certain streams navigable, yet it is held that such statutes are inoperative if the stream is not navigable in fact. 40 Ice Ice formed over the waters of ponds or streams belongs to the own- er of the land beneath the water. 41 The riparian owner has the right to cut and appropriate it. 42 Under the New England rule pertaining to ice on "great ponds," a riparian owner has, however, no exclusive right to the ice, but the right to take the same belongs to the public. 4 * 14 N. H\ 467 ; People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. Rep. 125; State v. Eason, .114 N. C. 787, 19 S. E. 88, 23 L. R. A. 520, 41 Am. St Rep. 811. That the stream must be navigable in its natural state, see Jeremy v. Elwell, 5 Obio Cir. Ct R. 379; Ten Eyck v. Town of Warwick, 75 Hun, 562, 27 N. Y. Supp. 536. so Murray v. Preston, 106 Ky. 561, 50 S. W. 1095, 21 Ky. Law Rep. 72, 90 Am. St. Rep. 232 ; People ex rel. Ricks Water Co. v. Elk River Mill, etc., Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. Rep. 125 ; Jones v. Pettibone, 2 Wis. 308. ss Fulton Light, Heat & Power Co. v. State, 200 N. Y. 400, 94 N. E. 199, 37 L. R. A. (N. S.) 307; Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Com. v. Alger, 7 Cush. (Mass.) 53; Black, Const. Law, 124; Weise v. Smith, 3 Or. 445, 8 Am. Rep. 621 ; Wilson v. Forbes, 13 N. C. 30 ; The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999. Cf . Veazie v. Durnel, 50 Me. 479 ; City of Chicago v. Mc- Ginn, 51 111. 226, 2 Am. Rep. 295 ; People v. Tibbetts, 19 N. Y. 523 ; Glover v. Powell, 10 N. J. Eq. 211. The great inland rivers and lakes in this country make the English common-law rule as to tide waters inapplicable. *»Runyard v. Ice Co., 142 Wis. 471, 125 N. W. 931; People ex rel. Ricks Water Co. v. Elk River Mill Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. Rep. 125 ; U. S. v. Union Bridge Co., 143 Fed. 377; Watk,ins v. Dorris, 24 Wash. 636, 64 Pac. 840, 54 L. R. A. 199 ;. Duluth Lumber Co. v. St. Louis Boom, etc., Co., 17 Fed. 419, 5 McCrary, 382. « Hoag v. Place, 93 Mich. 450, 53 N. W. 617, 18 L. R. A. 39 ; Hinckel v. Stevens, 165 N. Y. 171, 58 N. E. 879 ; State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224; Washington Ice Co. v. Shortall, 101 111. 40, 40 Am. Rep. 196; Brookville & Metamora Hydraulic Co. v. Butler, 91 Ind. 134, 46 Am. Rep. 580 ; Stevens v. Kelley, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813 ; Village of Brook- lyn v. Smith, 104 111. 429, 44 Am. Rep. 90. And see Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435 ; People's Ice Co. v. The Excelsior, 44 Mich. 229, 6 N. W. 636, 38 Am. Rep. 246 ; Howe v. Andrews, 62 Conn. 398, 26 Atl. 394. A railroad company has no right to the Ice formed along its right of way, when the fee to the land is owned by some other person. Julien v. Woodsman, 82 Ind. 568. 42 Myer v. Whitaker, 5 Abb. N. C. (N. Y.) 172 ; Id.; 55 How. Prac. (N. Y.) 376 ; Lawton v. Herrick, 83 Conn. 417, 76 Atl. 986 ; Oliver v. Olmstead, 112 Mich. 483, 70 N. W. 1036 ; Wright v. Woodcock, 86 Me. 113, 29 Atl. 953, 25 L. R. A. 499. 43 Carville v. Com., 192 Mass. 570, 78 N. E. 735, 6 L. R. A. (N. S.) 310, 116 Am. St. Rep. 220; Inhabitants of Town of Rockport v. Webster, 174 Mass. 385, 54 N. E. 852 ; Paine v. Woods, 108 Mass. 160 ; Inhabitants of West Rox- bury v. Stoddard, 1 Allen (Mass.) 158 ; Brastow v. Ice Co., 77 Me. 100 ; Wood- § 9) THINGS QEOWING ON LAND 17 Ice formed, however, on the lands of the state, and entirely surround- ed by other state land, belongs exclusively to the state.** THINGS GROWING ON LAND 9. Things, growing on land are either: (a) Natural products (fructus naturales) ; or (b) Annual crops (fructus industriales). Natural products are real property. Annual crops are generally regarded as personalty. Annual Crops — Emblements Everything growing upon the land, except annual crops, is realty.* The annual crops, however, are, as a rule, personal property. 46 The spontaneous or natural products of the land (known as "fructus nat- urales"), such as trees, perennial grass, and perennial bushes, are re- garded as a part of the soil, and pass with a conveyance of the land.* T Annual crops are the vegetable products of the earth, such as garden products, corn, grain, straw, hemp, hops,- and nursery stock. Being produced annually * 8 by labor and industry, they are called "fructus man v. Pitman, 79 Me. 456, 10 Atl. 321, 1 Am. St. Rep. 342 ; Barrett v. Ice Co., 84 Me. 155, 24 Atl. 802, 16 L. R. A. 774. See, also, Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330. ** Green Island Ice Co. v. Norton, 189 N. Y. 529, 82 N. E. 1126. « Flynt v. Conrad, 61 N. C. 190, 192, 45 Am. Dec. 588 ; Maples v. Millon, 31 Conn. 598; Batterman v. Albright, 122 N. T. 484, 25 N. E 856, 11 L. R. A. 800, 19 Am. St, Rep. 510 ; Adams v. Beadle, 47 Iowa, 439, 29 Am. Rep. 487 ; Wescott v. Delano, 20 Wis. 514 ; Cockrill v. Downey, 4 Kan. 426 ; Brackett v. Goddard, 54 Me. 309. * » Robinson v. Ezzell, J2 N. C. 231; Crine v. Tifts, 65 Ga. 644; Bloom v. Welsh, 27 N. J. Law, 177; Pickens v. Webster, 31 La. Ann. 870; Brittain v. McKay, 23 N. C. 265, 35 Am. Dec. 738; Polley v. Johnson, 52 Kan. 478, 35 Pac. 8, 23 L. R. A. 258 ; Mabry v. Harp, 53 Kan. 398, 36 Pac. 743. See, also, Wintermute v. Light, 46 Barb. (N. Y.) 278; Miller v. Baker, 1 Mete. (Mass.) 27 ; Batterman v. Albright, 122 N. Y. 484, 25 N. E. 856, 11 L. R. A. 800, 19 Am. St. Rep. 510. They pass, however, with a conveyance of the land. Back- enstoss v. Stahler, 33 Pa. 251, 75 Am. Dec. 592 ; Coman v. Thompson, 47 Mich. 22, 10 N. W. 62, 41 Am. Rep. 706 ; Powell v. Rich, 41 111. 466 ; Smith v. Price, 39 111. 28, 89 Am. Dec. 284 ; Terhune v. Elberson, 3 N. J. Law, 726 ; Tripp v. Hasceig, 20 Mich. 254, 4 Am. Rep. 388. As to matured crops, see 2 Jones, Real Prop. § 1621. And go to a devisee. Dennett v. Hopkinson, 63 Me. 350, 18 Am. Rep. 227 ; Bradner v. Faulkner, 34 N. Y. 347 ; Mr. Spencer's Case, Winch. 51 ; Cooper v. Woolfitt,^ Hurl. & N. 122. *t Sparrow v. Pond, 49 Minn. 412, 52 N. W. 36, 16 L. R. A. 103, 32 Am. St. Rep. 571 ; Smith v. Price, 39 111. 28, 89 Am. Dec. 284 ; McKenzie v. Shows, 70 Miss. 388, 12 South. 336, 35 Am. St. Rep. 654. is As to teasels, see Graves v. Weld, 5 Barn. & Adol. 105; Kingsbury v. Collins, 4 Bing. 202. Bubd.Real 1 j eop. — 2 , 18 WHAT IS REAL PEOPEBTY (Ch. 2 ^industriales" in distinction from "fructus naturales." *• Although re- garded generally as personalty, 60 yet some cases distinguish between growing and immature crops, and those that are mature and ready for the harvest. In connection with the conveyance of land, some states hold unripe crops to be real property, since they are still con- nected with the soil, drawing their sustenance therefrom. 61 If ripe, they are personal property, and do not pass with a grant of the land, unless so expressly declared. 62 Emblements, 68 in connection with the law of landlord and tenant, is a term used to describe such annual products, or f rucfcus industriales, as have resulted from a tenant's care and labor. They are sometimes called the "away-going crops," or the crops that a tenant has the right to take away after his tenancy has ended. 64 Whenever such crops are planted 6B by one having an interest of uncertain duration in the land, 6 " * » They include grain. Peacock v. Purvis, 2 Brod. & B. 362; Cooper v. Woolfitt, 2 Hurl. & N. 122 ; Forsythe v. Price, 8 Watts (Pa.) 282, 34 Am. Dec. 465. And the straw. Craig v. Dale, 1 Watts & S. (Pa.) 509, 37 Am. Dec. 477. Hemp. Co. Litt 55a. Hops. Latham v. Atwood, Cro. Car. 515. Clover and artificial grasses. Graves v. Weld, 5 Barn. & Adol. 105. Contra, Reiff v. Reiff," 64 Pa. 134; Evans v. Iglehart, 6 Gill & J. (Md.) 171. But not grow- ing grasses. Reiff v. Reiff, 64 Pa. 134. Nor young trees. Co. Litk 55a. But turpentine "scrape" may be. Lewis v. McNatt, 65 N. C. 63. And nursery stock. Brooks v. Galster, 51 Barb. (N. Y.) 196; King v. Wilcomb, 7 Barb. (N. T.) 263. See, also, Brackett v. Goddard, 54 Me. 309. oo Supra. oi Beckman v. Sikes, 35 Kan. 120, 10 Pac. 592 ; Goodwin v. Smith, 49 Kan. .351, 31 Pac. 153, 17 L R. A. 284, 33 Am. St. Rep. 373. s* Ellithorpe v. Reidesil, 71 Iowa, 315, 32 N. W. 238; Burleigh v: Piper, 51 Iowa, 650, 2 N. W. 520. A growing crop is said to be "a sort of legal species of chameleon," and there is no fixed rule by which to determine in every case when it is to be considered personal and when real estate. See Bagley v. Columbus Southern R, Co., 98 Ga. 626, 631, 25 S. E. 638, 34 L. R. A. 286, 58 Am. St. Rep. 325 ; Reed v. Johnson, 14 111. 257, 258 ; McCaU v. State, 69 Ala. 227, 228. 68 From Old French errible'er, to sow with corn. 04 Black, Law Diet Emblements. See Life Estates and Estates for Tears, post. oo The seed must be sown. Mere preparation of the ground is not sufficient. Price v. Pickett, 21 Ala. 741. > oe Harris v. Frink, 49 N. Y. 24, 10 Am. Rep. 318. A tenant from year to year is entitled to emblements. Clark v. Harvey, 54 Pa. 142 ; Reeder v. Sayre, 70 N. Y. 180, 26 Am. Rep. 567. A tenant at will. Davis v. Broeklebank, 9 N. H. 73; Davis v. Thompson, 13 Me. 209; Towne v. Bowers, 81 Mo. 491; Pfanner v. Stunner, 40 How. Prac. (N. Y.) 401;. Sherburne v. Jones, 20 Me. 70. A tenant for life. Poindexter v. Blackburn, 36 N. C. 286 ; Perry v. Ter- rel, 21 N. C. 441; Hunt v. Watkins, 1 Humph. (Tenn.) 498; Thornton v. Burch, 20 Ga. 791; Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746, 1 L. R. A. 427, 7 Am. St. Rep. 316. And his lessees. Bevans v. Briscoe, 4 Har. & J. (Md.) 139. When the interest is of definite duration, there' is no right to § 10) THINGS SEVERED FBOM THE LAND 19 and that interest terminates without his fault before the crops are harvested, he has a right to enter to cultivate, harvest, and remove them. 87 This right is given on the principle that the crops are not planted with any intention to benefit the one next entitled to the land, but with the expectation of reaping them. No one, however, is enti- tled to emblements who has terminated his estate by his own act. 68 The right to remove crops may be given in any case by express con- tract," and in some states the subject is regulated by statute. 60 THINGS SEVERED FROM THE LAND 10. By severance from the land, things which were formerly a part of the realty rriay, if such be the intention, become per- sonal property. Things which are a part of the realty may, nevertheless, by their severance from the land by the owner, with an intention on his part to change their character, become personal property. 61 Water; ice; emblements ; for Instance, under a tenancy for years. Whitmarsh v. Cutting, 10 Johns. (N. Y.) 360; Sanders v. Ellington, 77 N. C. 255; Dircks v. Brant, 56 Md. 500; Hendrixson v. Cardwell, 68 Tenn. 389, 40 Am. Rep. 93; Gossett v. Drydale, 48 Mo. App. 430. A custom, however, to the contrary will give the right. Stultz v. Dickey, 5 Bin. (Pa.) 285, 6 Am. Dec. 411 ; Biggs v. Brown, 2 Serg. & R. (Pa.) 14; Templeman v. Biddle, 1 Har. (Del.) 522; Van Doren v. Bveritt, 5 N. J. Law, 460, 8 Am. Dec. 615 ; Foster v. Robinson, 6 Ohio St. 90 ; Clark v. Banks, 6 Houst. (Del.) 584. Contra, Harris v. Carson, 7 Leigh (Va.) 632, 30 Am. Dec. 510. " Den ex dem. Humphries v. Humphries, 25 N. C. 362. 58 Debow v. Colfax, 10 N. J. Law, 128; Samson v. Rose, 65 N. Y. 411; Haw- kins v. Skeggs, 10 Humph. (Tenn.) 31; Gregg v. Boyd, 69 Hun, 588, 23 N. Y. Supp. 918; Carney v. Mosher, 97 Mich. 554, 56 N. W. 935; Orland's Case, 5 Coke, 116a; Davis v. Eyton, 7 Bing. 154. Cf. Carpenter v. Jones, 63 111. 517. So the right is iost by the assertion of a title paramount. Howell v. Schenck, 24 N. J. Law, 89; King v. Fowler, 14 Pick. (Mass.) 238. As by foreclosure of a mortgage executed before the lease. Lane v. King, 8 Wend. (N. Y.) 584, 24 Am. Dec. 105; Downard v. Groff, 40 Iowa, 597; Gilman v. Wills, 66 Me. 273. But see Cassilly v. Rhodes, 12 Ohio, 88. Cf. Lewis v. Klotz, 39 La. Ann. 259, 1 South. 539. , so Van Doren v. Everitt, 5 N. J. Law, 460, 8 Am. Dec. 615. «o 1 Stim. Am. St. Law, §§ 1334, 2064, 3233. si Goodrich v. Jones, 2 Hill (N. Y.) 142; Bishop v. Bishop, 11 N. Y. 123, 62 Am. Dec. 68 ; Leidy v. Proctor, 97 Pa. 486 ; Lykens Valley Coal Co. v. Dock, 62 Pa. 232 ; Higgins v. Kusterer, 41 Mich. 318, 2 N. W. 13, 32 Am. Rep. 160 ; In re Clever's Estate, 23 Pittsb. Leg. J. N. S. (Pa.) 358; Kier v. Peterson, 41 Pa 357 ; Lewis v. Rosier, 16 W. Va. 333 ; State v. Moore, 33 N. C. 70. Cf. State v. Stephenson, 2 Bailey (S. C.) 334. But see In re Mulholland's Estate, 154 Pa. 491, 26 Atl. 612. 20 WHAT IS REAL PEOPEETY (Ch. 2 metals; oil; gas; coal; natural or perennial products, including trees, 82 rock, stone, 83 and all other minerals ; buildings 8 * and all other structures— in fact, all things, even the soil itself, 65 which in their natural positions are parts of the land, may become personalty by severance. Manure generally is a part of the soil, 88 but itjnay be made personal property by severance. 87 In case parts of the land are severed by accident, the rule is that the character of the property is not changed. Thus, trees blown down by the wind, 88 or the fallen materials of a building destroyed by tempest or fire, 69 remain realty. In the case of trees, however, it is held that the severance of them by one in possession, although having no right to sever them, or sever- ance by even a trespasser, will change them into personal property. 70 In order to change by severance real property into personal, the sev- erance need not be an actual physical act, but may be constructive. 71 For instance, trees and the like can be made personal property by con- veying the land and reserving the trees, or by the owner selling the trees as they stand on the land. 72 Likewise, a house may be sold with the understanding that it is to be removed. This is sufficient to make it personalty. 78 62 Kimball v. Lohmas, 31 Cal. 154; Giles v. Simonds, 15 Gray (Mass.) 441, 77 Am. Dec. 373; Macomber v. Detroit, etc., R. Co., 108 Mich. 491, 66 N. W. 376, 32 L. R. A. 102, 62 Am. St Rep. 713 ; Pierrepont v. Barnard, 6 N. Y. 279 ; Brewer v. Fleming, 51 Pa. 102. ea Fulton v. Norton, 64 Me. 410. «* Hood v. Whitwell^ 66 Misc. Rep. 49, 120 N. Y. Supp. 372; Stackpole v. Eastern R. Co., 62 N. H. 493. «o See Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476; Riley v. Water Power Co., 11 Cush. (Mass.) 11. so Goodrich v. Jones, 2 Hill (N. Y.) 142 ; French y. Freeman, 43 Vt. 93. But when dropped in the street it is personalty. Haslem v. Lockwood, 37 Conn. 500, 9 Am. Rep. 350. a? French v. Freeman, 43 Vt. 93. «s Leidy v. Proctor, 97 Pa. 486." so Guernsey v. Phinizy, 113 Ga. 898, 39 S. E. 402, 84 Am. St. Rep. 270; Rogers v. Gilinger, 30 Pa. 185, 72 Am. Dec. 694. io Kimball v. Lohmas, 31 Cal. 154 ; Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Brewer v. Fleming, 51 Pa. 102.* Exception: Porch v. Fries, 18 N. J. Eq. 204. " Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173. As when owned by one who does not own the land. Jencks v. Smith, 1 N. Y. 90; Dayton v. Vandoozer, 39 Mich. 749; Warren v. Leland, 2 Barb. (N. Y.) 613. T2 Warren v. Leland, 2 Barb. (N. Y.) 613; Yale v. Seely, 15 Vt. 221; Kings- ley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173. But compare Brackett v. Goddard, 54 Me. 309. is Hood v. Whitwell, 66 Misc. Rep. 49, 120 N. Y. Supp 372 ; Stackpole v. Eastern R. Co., 62 N. H. 493. § 11) INCORPOREAL HEREDITAMENTS 21 , INCORPOREAL HEREDITAMENTS 11. Reed property also includes incorporeal hereditaments. An in- corporeal hereditament is anything that can be the subject of property which is inheritable but not tangible or visi- ble. It is a right issuing out of or annexed to a thing cor- poreal. It has already been pointed out that real property consists of lands, tenements, and hereditaments. 74 Hereditaments are things capable of being inherited. 76 Incorporeal hereditaments comprise certain inher- itable .rights which are not, strictly speaking, of a corporeal nature or land, although they are, by their own nature or use, annexed to cor- poreal inheritances, and are rights issuing out of them or concerning them. 76 They are not the object of sensation, nor can they be seen or handled. Their existence is merely in idea and abstract contempla- tion, though their effects and profits may be frequently objects of our bodily senses. 77 We have already seen that in the Roman law "things" (res) capable of ownership were divided into "things corporeal" and "things incorporeal." 78 It was also pointed out, in connection there- with, that by "things incorporeal" the Roman jurists meant "rights." The term was introduced from Roman sources into English law at an early date, 79 and Prof. Maitland tells us that the realm of mediaeval law was rich in incorporeal things. 80 According to Blackstone, 81 there were, in his time, ten kinds of incorporeal hereditaments, namely, advowsons, tithes, commons, ways, offices, dignities, fran- chises, corodies, or pensions, annuities, and rents. In addition to these, there are, says Washburn, 82 other incorporeal hereditaments, such as remainders and reversions dependent upon an intermediate freehold estate, and rights of way, or passage of water through an- i* Supra. 7B Ante. t« 3 Kent, Comm. 402. ttCo. Litt 9a; 2 Blk. Comm. 19-21; Whitlock v. Greacen, 48 N. J. Eq. 359, 21 AtL 944 ; Stone v. Stone, 1B.I. 425, 428. 7 8 Ante. 7« See Bracton '(Twiss Ed.) vol. I, 57, 83. At page 57, he says: "Incor- poreal things are such as rights which cannot be seen nor touched, as the right of going, or of driving, or of leading water, and such like." so p. & M. II, 123. Littleton says but little about incorporeal things. He mentions common's, advowsons, and rights that can be only appendant or appurtenant to land. §§ 183, 617. "In a feudal state where property and office are confused under a primitive legal system which has a highly de- veloped land law, but no theory of contract, the list of incorporeal things tends to expand." Holds. Hist, of Eng. Law, II, 300. si 2 Blk. Comm. 20. 82 Washburn, Real Property (6th Ed.) § 50. 22 WHAT IS SEAL PEOPERTY (Ch. 2 other's land, or of light and the like. In this country, however, there are no advowsons, tithes, dignities, nor corodies ; commons are rare ; offices are rare or unknown ; and annuities have no necessary con- nection with land. 88 In the development of the land law of England incorporeal things came to differ from corporeal in the fact that they were said "to lie in grant and not in livery." " Rights to the pos- session of land were transferable only by delivery of such posses- sion, while rights not involving possession of land were transfer- able by deed of grant. Corporeal hereditaments were therefore said to "lie in livery," 86 while incorporeal hereditaments were said to "lie in grant." 86 This distinction, however, is not now of practical importance, because, in modern law, corporeal as well as incor- poreal hereditaments are transferable without actual delivery of possession. 87 Incorporeal hereditaments are usually classified, in this country, as consisting of easements, profits a prendre, rents, and franchises. These rights will be discussed in a subsequent special chapter. 88 EQUITABLE CONVERSION 12. Equitable conversion is an implied change in the character of property, by means of which (a) Personal property is considered as real; and (b) Real property is considered as personal. By virtue of the maxim that equity regards that as done which ought to be done, courts of equity, in' order to carry out the intention of parties, will, for certain purposes, treat personal property as real property, and real property as personal property. 89 As was said by Sewell, Master of the Rolls, in the leading case of Fletcher v. Ash- burner : 90 'Nothing is better established than this principle that money 83 3 iKent, 402, 454. si "Bracton states this rule in Roman form, but it was long before it came to be the rule of English law." Holds. Hist. Eng. Law, II, 301. And see L Q. K. V. 36. 85 Drake v. Wells, 11 Allen (Mass.) 141; Huff v. McCauley, 53 Pa. 206, 91 Am. Dee. 203. ss Litt, §§ 183, 628; Co. Litt. 9a; 1. Washb. Real Prop. (5th Ed.) 37. 87 This is also in some jurisdictions expressly so provided by statute. For example, the Real Property Act of England of 1845 (8 & 9 Vict. c. 106) made all property which formerly lay in livery lie also in grant. ss See chapter XVII. es See Fetter, Eq. p. 67; Bisp. Eq. (4th Ed.) 370; 3 Pom. Eq. (2d Ed.) p. 1765. so l Brown, Ch. 499. § 12) EQUITABLE CONVERSION 23 directed to be employed in the purchase of land, 91 and land directed to be sold and turned into money, 02 are to be considered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given, whether by will, 88 by way of contract, marriage article, settlement, or otherwise ; 94 and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed." While there need be no express direction in the instrument, in order that land shall be treated as money and money as land, yet it is requisite in all cases that an intention shall be clearly and positively expressed that the land shall b§ sold, and turned into money, or that money shall be expended in the purchase of land. 90 The doctrine of equitable con- version applies, for the most part, to trusts created by wills and to contracts for the sale of lands. Equity will not, however^ assume a conversion either for or against a person not a party to the contract. 96 »i Kettleby v. Atwood, 1 Vera. 298 ; on rehearing, Id. 471 ; Chichester v. Bicherstaff, 2 Vern. 295; Sweetapple v. Bindon, Id. 526; Scudmore v. Scud- more, Prec. Ch. 544; Craig v. Leslie, 3 Wheat. 563, 4 L. Ed. 460; In re Becker's Estate, 150 Pa. 524, 24 Atl. 687 02 Fletcher v. Ashtmrner, 1 Brown, Ch. 497; Steed v. Preece, L. R. 18 Eq. 192; Evans v. Kingsberry, 2 Band. (Va.) 120, 14 Am. Dec. 779; Turner v. Davis, 41 Ark. 270 ; Fluke v. Fluke, 16 N. J. Eq. 478 ; Roy v. Monroe, 47 N. J. Eq. 356, 20 Atl. 481 ; Crane v. Bolles, 49 N. J. Eq. 373, 24 Atl. 237 ; In re Blauvelt, 60 Hun, 394, 15 N. Y. Supp. 586 ; Fraser v. Trustees, 124 N. Y. 479, 26 N. E. 1034 ; Bolton v. Myers, 146 N. Y. 257, 40 N. E. 737. But see In re Machemer's Estate, 140 Pa. 544, 21 Atl. 441. »3 Fletcher v. Ashburner, 1 Brown, Ch. 497; Craig v. Leslie, 3 Wheat. 563, 4 L. Ed. 460; Jones' Ex'rs v. Jones, 13 N. J. Eq. 236; Hyman v. Devereux, 63 N. C. 624; Magruder v. Peter, 11 Gill & J. (Md.) 217; Massey v. Modawell, 73 Ala. 421 ; Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103 ; Gould v. Orphan Asylum, 46 Wis. 106, 50 N. W. 422 ; Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585; Davenport v. Kirkland, 156 111. 169, 40 N. E. 304. The direction must be positive. Darlington v. Darlington, 160 Pa. 65, 28 Atl. 503 ; In re Ingersoll's Estate, 167 Pa. 536, 31 Atl. 858, 859, 860. 8* In re Hirst's Estate, 147 Pa. 319, 23 Atl. 455; Dobson's Estate, 11 Phila. (Pa.) 81; Evans v. Kingsberry, 2 Rand. (Va.) 120, 14 Am. Dec. 779; Master- son v. Pullen, 62 Ala. Ii6 ; Turner v. Davis, 41 Ark. 270 ; Hunter v. Anderson, 152 Pa. 386, 25 Atl. 538; Williams v. Haddock, 145 N. Y. 144, 39 N. E. 825. es Eaton, Equity, p. 224. se Eaton. Equity, p. 225. 24 WHAT IS BEAL PEOPEETT (Ch. 2 13. PERSONAL, OR CHATTEL, INTERESTS IN LAND There are certain interests in land which are treated as personal property, as, for example, chattels real, 97 which are estates less than freehold;' that is, estates for years, or leaseholds. 88 Chattel interests are, however, in some states made real property by statutory defini- tion." These and other personal interests in land, such as the inter- est of a mortgagor or mortgagee, will be treated of in other connec- tions. Corporate shares, moreover, are not real property, even though the property which constitutes the capital of the corporation is realty. 1 The ownership of this realty is in the corporation, and not in the in- dividual stockholders. Therefore their interests are personalty only.' A land certificate, 8 or a contract right to acquire land, is personal property, since there is a wide difference between the mere right to acquire land and the land afterwards acquired by virtue of such right.* »7 Chattels real are such as concern or savor of the realty. They are called "real" because they Issue out of or are annexed to real estate ; and "chattels" because they lack the quality of a sufficient legal Indeterminate duration. Putnam v. Westcott, 19 Johns. (N. T.) 73, 76. »8 Mark v. North, 155 Ind. 575, 577, 57 N. E. 902; In re Gay, 5 Mass. 419; Buhl v. Kenyon, 11 Mich. 249, 251, 83 Am. Dec. 738 ; In re Althause's Estate, 63 App. Div. 252, 255, 71 N. T. Supp. 445 [affirmed in 168 N. Y. 670, 61 N. E. 1127] ; Lycoming F. Ins. Co. v. Haven, 95 U. S. 242, 250, 24 L. Ed. 473; Keating v. Condon, 68 Pa. 75 ; Hellwig v. Bachman, 26 111. App. 165. »o Comer v. Light, 175 Ind. 367, 93 N. E. 660, 94 N. E. 325; Knapp v. Jones, 143 111. 375, 379, 32 N. E. 382 ; First Nat Bank v. Adam (111. 1890) 25 N. E. 576, 577 ; 1 Stim. Am. St. Law, § 1300. i See, in general, State v. Kidd, 125 Ala. 413, 420, 28 South. 480; Greenleaf v. Morgan County, 184 111. 226, 228, 56 N. E. 295, 75 Am. St Rep. 168 ; In re Jones, 172 N. Y. 575, 65 N. E. 570, 60 L. R. A. 476. 2 Bligh v. Brent, 2 Younge & C. Exch. 268 ; South Western Ry. v. Thoma- son, 40 Ga. 408 ; Arnold v. Ruggles, 1R.1. 165 ; Mohawk & H. R. Co. v. Clute, 4 Paige Ch. (N. Y.) 384; Toll Bridge Co. v. Osborn, 35 Conn. 7. But shares in a turnpike company were held realty in Welles v. Cowles, 2 Conn. 567 ; and in a water company, in Drybutter v. Bartholomew, 2 P. Wms. 127. And see Price v. Price's Heirs, 6 Dana (Ky.) 107; Codman v. Winslow, 10 Mass. 146. s McLain v. Pate (Tex. Civ. App.) 124 S. W. 718 ; Grosbeck v. Bodman, 73 Tex. 287, 11 S. W. 322. * "Collins v. Durward, 4 Tex. Civ. App. 339, 342, 23 S. W. 56L Ph. 3) FIXTURES 25 CHAPTER III FIXTURES 14. Defined. 15. Immovable and Movable Fixtures. 16. Rules for Determining Fixtures. 17. Time of Removal. 18. Severance of Fixtures. FIXTURES DEFINED 14. A fixture is a chattel that has been annexed to a building or to land, under such circumstances as to cause it to lose its original character of personal property, and to become a part of the realty. IMMOVABLE AND MOVABLE FIXTURES 15. By a confusion of terms, fixtures are sometimes said to be im- movable or movable. Immovable fixtures are fixtures proper, as defined above. Movable fixtures are personal chattels annexed to lands or buildings, but which do not become a part of the realty. Such so-called fixtures in- clude trade, agricultural, and domestic fixtures. Speaking literally, a fixture is anything that is fixed or attached to some other thing. In the law of real property, buildings erect- ed upon land and chattels annexed "to land or to buildings on the land are called "fixtures." 1 When the annexation is made by the owner in fee of the land, such fixtures become real property. 2 They may, however, again become personalty by being actually severed from the land with such intent. 8 Where, however, the annexation is made by the tenant of an estate less than a fee, it is not always easy to determine whether such articles become realty or remain personalty. Things annexed by a tenant some- i Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634 ; Capen v. Peckham, 35 Conn. 88 ; Potter v. Cromwell, 40 N. Y. 287, 100 Am. Dec. 485 ; Peirce v. God- dard, 22 Pick. (Mass.) 559, 33 Am. Dec. 764. And see Ferard, Fixt. (2d Am. Ed.) 2; Grady, Fixt. 1. 2 Harris v. Scovel, 85 Mich. 32, 48 N. W. 173 ; Dooley v. Crist, 25 111. 551 ; Sampson v. Cotton Mills, 64 Fed. 939. But see Jenkins v. McCurdy, 48 Wis. 630, 4 N. W. 807, 33 Am. Rep. 841. And cf. Green, J., in Stevens v. Railway Co., 31 Barb. (N. Y.) 597. « Bostwick v. Leach, 3 Day (Conn.) 476; Lee v. Gaskell, 1 Q. B. Div. 700. 26 fixtures (Ch. 3 times become realty, and sometimes do not. The question is of importance, because, if the chattels become realty, they cannot be lawfully severed or removed by the tenant, while if they re- main personalty, notwithstanding, their annexation, they may be removed by the tenant before the expiration of his term. There is great conflict in the cases over the question of what constitutes fixtures. This conflict is due largely to a loose use of the word "fixtures." The term is used in three senses: First, as meaning simply chattels which are annexed to realty, irrespective of wheth- er they may be removed or not; second, as meaning irremovable fixtures; and, third, as meaning removable fixtures.* The result- ing confusion of the cases is natural. Some writers have tried to avoid this confusion by calling those fixtures, which cannot be lawfully removed "real fixtures," because they have become realty, and calling fixtures which can be lawfully removed "chat- tel fixtures," because they remain personal property. 5 RULES FOR DETERMINING FIXTURES 16. The rules for determining fixtures are not in harmony. Speak- ing generally, however, whether or not articles affixed to the land are fixtures may be determined in the following ways: 1. By express contract of the parties concerned. 2. In some states by statutory provisions. 3. By the implied intention of the parties, as gathered from the following facts: (a) The mode or manner of the annexation. (b) The purpose of the annexation. (c)'The adaptation of the article to the realty, (d) The possibility of removing the article without serious injury. 4. By the character or relation of the party making the annex- ation, whether, for example, the owner in fee, tenant for life, or tenant for a term Jess than life. 5. By the nature of the chattels annexed, whether, for example, in the case of landlord and tenant, the articles are used for trade, agricultural, or domestic purposes. 4 Ewell, Fixt. 1 ; Tyler, Fixt. 35 ; Hopkins, Real Prop. p. 11. b See Voorhees v. McGinnis, 48 N. Y. 278 ; Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634. For a discussion of the general nature of fixtures, see CAN- NING v. OWEN, 22 R. I. 624, 48 Atl. 1033, 84 Am. St. Rep. 858, Burdick Cas. Real Property. § 16) RULES FOR DETERMINING FIXTURES 27 Express Contract Although there is great conflict as to the rules governing the tests to be applied for the purpose of determining the question of the intention of the parties, where the intention is merely one of implication, 6 nevertheless, the parties between whom the ques- tion is likely to arise may settle all doubts in advance by an ex- press contract. 7 This is, of course, an instance of expressed in- tention. For example, an agreement may be made between a landlord and his tenant that any or all articles annexed to the land or building may be removed by the tenant as his personal prop- erty. Such an agreement made before annexation may be made by parol, 8 but after the chattel is annexed and made a part of the realty, some cases hold that such a parol agreement is invalid," although there is other authority to the contrary. 10 Statutory Regulation In some states the question of fixtures has been made a matter of legislative enactment, and certain classes of annexations are • See infra. i Hines v. Anient, 43 Mo. 298; Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537 ; Hendy v. Dinkerhoff, 57 Cal. 3, 40 Am. Rep. 107 ; Mott v. Palmer, 1 N. Y. 564. See Ex parte Ames, 1 Low. 561, Fed. Oas. No. 323 ; Aldrich v. Hus- band, 131 Mass. 480; Taft v. Stetson, 117 Mass.' 471; Hunt v. Iron Co., 97 Mass. 279 ; Lake Superior Ship Canal, Ry. & Iron Co. v. McCann, 86 Mich. 106, 48 N. W. 692; Lansing Iron & Engine Works v. Walker, 91 Mich. 409, 51 N. W. 1061, 30 Am. St.- Rep. 488; Holly Mfg. Co. v. Water Co., 48 Fed. 879; New Chester Water Co. v. Manufacturing Co., 3 C. C. A. 399, 53 Fed. 19; Advance Coal Co. v. Miller, 4 Pa. Dist. R. 352; White's Appeal, 10 Pa. 252 ; Blanchard v. Bowers, 67 vi. 403, 31 Atl. 848. s See Woods v. Bank, 10 Cal. App. 93, 106 Pac. 730; Barnes v. Hosmer, 196 Mass. 323, 82 N. E. 27; Laclede Gaslight Co. v. Consumers' Ass'n, 127 Mo. App. 442, 106 S. W. 91; People ex rel. Interborough Rapid Transit Co. v. O'Donnel, 202 N. Y. 313, 95 N. E. 762 ; Condit v. Goodwin, 44 Misc. Rep. 312, 89 N. Y. Supp. 827 ; Bank v. Lewis, 12 Brit, Col. 398 ; Niagara Falls Hydrau- lic Power & Mfg. Co. v. Schermerhorn, 132 App. Div. 442, 117 N. Y. Supp. 10 ; Badger v. Manufacturing Co., 70 111. 302; Marshall v. Bacheldor, 47 Kan. 442, 28 Pac. 168 ; Handf orth v. Jackson, 150 Mass. 149, 22 N. E. 634; Hart- well v. Kelly, 117 Mass. 235 ; Tyson v. Post, 108 N. Y. 217, 15 N. E. 316, 2 Am. St Rep. 409 ; Wick v. Bredin, 189 Pa. 83, 42 Atl. 17 ; Hill v. Sewald, 53 Pa. 271, 91 Am. Dec. 209; Fuller-Warren Co. v. Harter, 110 Wis. 80, 85 N. W. 698, 53 L. R. A. 603, 84 Am. St. Rep. 867 ; Western Union Tel. Co. v. Rail- road Co., 11 Fed. 1, 3 McCrary, 130; Stephens v. Ely, 14 App. Div. 202, 43 N. Y. Supp. 762. » Equitable Guarantee & Trust Co. v. Knowles, 8 Del. Ch. 106, 67 Atl. 961 ; Johnston v. Trust Co., 129 Ala. 515, 30 South. 15, 87 Am. St. Rep. 75 ; Gibbs v. Estey, 15 Gray (Mass.) 587; Lacustrine Fertilizer Co. v. Fertilizer Co., 82 N. Y. 476. no Parker v. Blount County, 148 Ala. 275, 41 South. 923 ; Cronkhite v. Bank, 14 Ont. L. R. 270, 8 Ont. W. R. 18, 9 Ont. W. R. 326-; Hines v. Ament, 43 Mo. 298 ; Harlan v. Harlan, 20 Pa. 303. 28 FIXTURES (C"- * by statute declared to be fixtures, 11 and others to be removable chattels. 12 This arises particularly in the case of landlord and tenant, and a statute may provide that a "tenant may remove, at any time during his term; anything affixed by him to the premises for the purpose of trade, manufacturing, ornament, or domestic use, unless such removal would result in serious injury to the realty. 18 Presumed Intention The most important rule of determining whether or not certain property is a fixture is the presumed intention of the parties. The character of a fixture is largely a question of fact, and few general rules can be laid down for determining what personal property in the nature of fixtures is removable. 1 * The tendency, however, of modern cases is to make the intention with which a fixture is annexed the test of its character, 15 and to regard the circumstances of the annexation as evidence of that intention. 18 It is not, in other words, a secret intention which controls, but the intention which the law presumes from the acts and situ- ation of the party at the time of making the annexation. 1 ' 7 The facts that are of especial value as evidence are (1) the actual an- nexation of the article to the realty; (2) the immediate object or purpose of the annexation ; (3) the adaptability of the article for permanent or mere temporary use; (4) and whether or not the article can be removed without material injury to the property " See, In general, the statutes of California, Idaho, Louisiana, Montana, North Dakota, Oklahoma, and South Dakota. In these states there are stat- utory definitions of fixtures. See Morton Trust Co. v. Salt Co., 149 Fed. 540, construing Louisiana statute. 12 See, for example, Shafter Estate Co. v. Alvord, 2 Cal. App. 602, 84 Pac 279, construing Civ. Code Cal. § 1019. « See, for example, Wright v. Du Bignon, 114 Ga. 765, 40 S. E. 747, 57 L. R. A. 669; Rev. Laws Mass. 1902, c. 134, § 10; Code N. D. 1899, § 3492; Wil- son's Rev. & Ann. St Okl. 1903, § 4183. i* Ewell, Fixt. 9. is Farrar v. Chauffetete, 5 Denio (N. T.) 527; Reynolds v. New York Se- curity & Trust Co., 88 Hun, 569, 34 N. X. Supp. 890 ; Hill v. Sewald, 53 Pa. 271, 91 Am. Dec. 209 ; Seeger v. Pettit, 77 Pa. 437, 18 Am. Rep. 452 ; Meig's Appeal, 62 Pa. 28, 1 Am. Rep. 372 ; Hill v. Wentworth, 28 Vt. 428 ; Jones v. Ramsey, 3 111. App. 303 ; Kelly v. Austin, 46 111. 156, 92 Am. Dec. 243 ; Con- gregational Soc. of Dubuque v. Fleming, 11 Iowa, 533, 79 Am. Dee. 511 ; Copp v. Swift (Tex. Civ. App.) 26 S. W. 438; McDavid v. Wood, 5 Heisk. (Tenn.) 95; McFadden v. Crawford, 36 W). Va. 671, 15 S. E. 408, 32 Am. St. Rep.' 894; Strickland v. Parker, 54 Me. 263; Capen v. Peckham, 35 Conn. 88; Linahan v. Barr, 41 Conn. 47i ; Equitable Trust Co. v. Christ, 47 Fed. 756. is Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57, 24 Am. Rep. 719; Hutchins v. Masterson, 4,6 Tex. 551, 26 Am. Rep. 286. i' Rogers v. Brokaw, 25 N. J. Eq. 496. Cf. Linahan v. Barr, 41 Conn. 471. § 16) RULES FOR DETERMINING FIXTURES 29 t6 which it is annexed. It is not by the consideration of any one of these facts alone that the nature of the annexation is to be determined, but rather by a united consideration of all of them. Mode or Manner of Annexation In earlier times much importance was apparently attached to the mode or manner in which the article was annexed to the realty. As a matter of fact, this is of but little value. The exact length of the screws or nails used is immaterial. 18 "Whether the Pyramids of Egypt or Cleopatra's Needle is real or personal prop- erty does not depend upon the results of an inquiry by the anti- quarians whether they were originally made to adhere to their foundations by wafers, or sealing wax, or handfuls of cement." 19 The manner, however, in which a fixture is attached or annexed to the realty may be indicative of the intention with which it was placed there. It tends to show whether it was intended to be permanent or to be subsequently removed, 20 and some cases even make the manner of fastening a thing the test of its character as a fixture. 21 There may be, however, an attachment of a thing to the land by its weight alone; 22 as, for instance, a heavy statue on a pedestal, 23 a dry stone wall, 24 or other things made a part of the architectural scheme of a building. Purpose of Annexation Of more importance, however, than the manner or mode of annexation, is the object or purpose for which the annexation was made. This test is often applied in the case of "trade fixtures." 25 A trade or a business is personal in its nature, and articles affixed is Ward v. Taylor, [1901] 1 Oh. 523, 531, O. A. i» SNEDEKER v. WARRING, 12 N. Y. 170, Burdick Cas. Real Property. 20 Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634; Rogers v. Brokaw, 25 N. J. Eq. 496 ; Redlon v. Barker, 4 Kan. 445, 96 Am. Dec. 180 ; O'Donnell v. Hitchcock, 118 Mass. 401; Pennybecker v. McDougal, 48 Cal. 160; Cook v. Whiting, 16 111. 480; Sayles v. Purifying Co., 62 Hun, 618, 16 N. Y. Supp. 555; Jones v. Bull, 85 Tex. 136, 19 S. W. 1031; Kendall v. Hathaway, 67 Vt. 122, 30 Atl. 859 ; Chase v. Box Co., 11 Wash. 377, 39 Pac. 639 ; Roseville Alta Min. Co. v. Mining Co., 15 Colo. 29, 29 Pac. 920, 22 Am. St. Rep. 373 ; Strickland v. Parker, 54 Me. 263. 2i Rex v. Otley, 1 Barn. & Adol. 161; Wansbrough v. Maton, 4 Adol. & E. 884 ; Ex parte Astbury, 4 Ch. App. 630 ; Wadleigh v. Janvrin, 41 N. H. 503r 77 Am. Dec. 780 ; Carpenter v. Walker, 140 Mass. 416, 5 N. E. 160. But see Landon v. Piatt, 34 Conn. 517. 22 Smith v. Blake, 96 Mich. 542, 55 N. W. 978 ; Miller v. Waddingham, 3 Cal. Unrep. Cas. 375, 25 Pac. 688, 4 L. R. A. 510. 23 SNEDEKER v. WARRING, 12 N. T. 170, Burdick Cas. Real Property: Oakland Cemetery Co. v. Bancroft, 161 Pa. 197, 28 Atl. 1021, 24-Ewell, Fixt 31. Cf. Noble v. Sylvester, 42 Vt. 146. 25 infra. 30 fixtures (Ch- 3 to the premises for the purposes of trade retain, as a rule, their per- sonal character and do not become a part of the realty. 26 For example, where nursery stock is planted in the ground by a lessee, the object and purpose of the annexation make manifest the in- tention of the tenant. Adaptation for Vse with the Realty Another circumstance showing the intention with which a chattel is annexed is its adaptation for use with the realty. 27 Some cases even regard this a decisive test. 28 The principal application of this rule is to heavy machinery, engines, and boilers in mills and factories. Such articles are generally held to be fixtures, since they are adapted for the permanent use of the realty, and without them the business could not be carried on 39 There are many exceptions, however, in the case of trade fixtures, i and the rule is not usually extended to loose and movable machinery. 30 Such things, however, as duplicate rolls in an iron rolling mill have been held fixtures, because of their adaptation for use with the mill. 81 The same has been held of pans in salt works, 32 and shelves, drawers, and counters in a retail store. 33 The latter articles, how- 2« Forrman v. Geopper, 14 Ohio St 566. 27 Burnside v. Twitchell, 43 N. H. 394 ; Murdock v. Gifford, 18 N. Y. 28 ; Smith Paper Co. v. Servin, 130 Mass. 511; Ferris v. Quimby, 41 Mich. 202, 2 N. W. 9 ; Curran v. Smith, 37 111. App. 69 ; Wade v. Brewing Co., 10 Wash. 284, 38 Pac. 1009 ; Parsons v. Copeland, 38 Me. 537 ; MUELLER v. KAIL- ROAD CO., Ill Wis. 300, 87 N. W. 239, Burdick Cas. Real Property. 2« Green v. Phillips, 26 Grat. (Va.) 752, 21 Am. Rep. 323; Morris' Appeal, 88 Pa. 368 ; Huston v. Clark, 162 Pa. 435, 29 Atl. 866, 868 ; Shelton v. Ficklin, 32 Grat. (Va.) 727; Brennan v. Whjtaker, 15 Ohio St. 446; Parsons -v. Cope- land, 38 Me. 537. 28 W alk er v. Sherman, 20 Wend. (N. T.) 636 ; Wlnslow v. Insurance Co., 4 Mete. (Mass.) 306, 38 Am. Dec. 368; Voorhees v. McGinnis, 48 N. T. 278; Christian v. Dripps, 28 Pa. 271 ; Hill v. Hill, 43 Pa. 521 ; Laflin v. Griffiths, 35 Barb. (N. Y.) 58; McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12; Winslow v. Insurance Co., 4 Mete. (Mass.) 306, 38 Am. Dec. 368; Curran v. Smith, 37 111. App. 69 ; Keeler v. Keeler; 31 N. J. Eq. 181 ; Rice v. Adams, 4 Harr. (Del.) 332 ; Trull v. Fuller, 28 Me. 545 ; Davenport v. Shants, 43 Vt 54G ; Case Mfg. Co. v. Garven, 45 Ohio St 289, 13 N. E. 493 ; Citizens' Bank v. Knapp, 22 La. Ann. 117. so McKim v. Mason, 3 Md. Ch. 186; Cherry v. Arthur, 5 Wash. 787, 32 Pac. 744. See Burnside v. Twitchell, 43 N. H. 390. siPyle v. Pennock, 2 Watts & S. (Pa.) 390, 37 Am. Dec. 517; Voorhis v. Freeman, 2 Watts & S. (Pa.) 116, 37 Am. Dec. 490. And see Keating Imple- ment Co. v. Power Co., 74 Tex. 605, 12 S. W. 489; McFadden v. Crawford, 36 W. Va. 671, 15 S. E. 408, 32 Am. St. Rep. 894. as Lawton v. Salmon, 1 H. Bl. 259, note. 33 Tabor v. Robinson, 36 Barb. (N. Y.) 483. But see, "as to an ice chest, Park v. Baker, 7 Allen (Mass.) 78, 83 Am. Dec. 668. § 16) RULES FOR DETBEMINING FIXTURES 31 ever, may constitute mere trade fixtures. 84 Doors and windows are an essential part of a building, intended for permanent use, and are, consequently,' fixtures. Likewise, keys to a house and storm windows, though not at the time fastened to the house, will pass with a conveyance of the realty. 35 The same has been held as to saws and belts in a factory. 86 As to whether railway car,s are real or personal property the cases are conflicting, but the- tendency of the later cases is to consider them personalty, 87 and there are constitutional provisions to this effect in some states. 88 Some cases, however, apply the test of adaptability to the rolling stock of railroads, holding such property realty. 8 * Injury to the Realty When an article has been annexed to a building or land in such a way that it cannot be removed without causing serious damage to the premises, it tends to show that the party annexing it in- tended that it should be a permanent addition. 40 Trifling damage is not considered, but an actual injury to the building or land. Party Making the Annexation In the consideration of the law of fixtures, the character or the relation of the party making the annexation is the most important fact of all for the purpose of determining the probable intention »* Infra. 8 5 Ewell, Fixt 33. See, also, Wadleigh v. Janvrln, 4.1 N. H. 503, 77 Am. Dec. 780. as Bumside v. Twitchell, 43 N. H. 390; Farrar v. Stackpole, 6 Greenl. (Me.) 154, 19 Am. Dec. 201. i " See Williamson v. Railway Co., 25 N. J. Eq. 13 ; Stevens v. Railway Co., 31 Barb. (N. Y.) 590; Beardsley v. Bank, 31 Barb. (N. Y.) 619; Hoyle v. Railway Co., 54 N. Y. 314, 13 Am. Rep. 595 ; Chicago & N. W. Ry. v. Ft. How- ard, 21 Wis. 45, 91 Am. Dec. 458 ; Coe v. Railway Co., 10 Ohio St. 372, 75 Am. Dec. 51&; Midland Ry. Co. v. State, 11 Ind. App. 433, 38 N. E. 57 ; Hoyle v. Railway Co., 54 N. Y. 314, 13 Am. Rep. 595. 3si Stim. Am. St. Law, § 468. There are provisions, however, to the con- trary in other states. Id. § 2100. 39 For cases holding them realty, see Farmers' Loan & Trust Co. v. Hen- dricUson, 25 Barb. (N. Y.) 484 ; Palmer v. Forbes, 23 111. 301 ; Titus v. Mabee, 25 111. 257 ; Farmers' Loan & Trust Co. v. Railroad Co., 3 Dill. 412, Fed. Cas. No. 4,669 ; Baker v. Atherton, 15 Pa. Co. Ct. R. 471. *o Bewick v. Fletcher, 41 Mich. 625, 3 N. W. 162, 32 Am. Rep. 170; Mur- dock v. Gifford, 18 N. Y. 28 ; Ford v. Cobb, 20 N. Y. 344 ; Vanderpoel v. Van Allen, 10 Barb. (N. Y.) 157; Whiting v. Brastow, 4 Pick. (Mass.) 310; Swift v. Thompson, 9 Conn. 63, 21 Am. Dec. 718; Hunt v. Mullanpby, 1 Mo. 508, 14 Am Dec. 300 ; Lanphere v. Lowe, 3 Neb. 131 ; Fullam v. Stearns, 30 Vt. 443 ■ Bartlett v. Wood, 32 Vt. 372. But see Tifft v. Horton, 53 N. Y. 377, 13 Am' Rep. 537;' Morrison v. Berry, 42 Mich. 389, 4 N. W. 731, 36 Am. Rep. 446; Quinby v. Paper Co., 24 N. J. Eq. 260; Degraffenreid v. Scruggs, 4 Humph. (Tenn.) 451, 40 Am. Dec. 658; Thresher v. Water Works, 2 Barn. & C. 608. 32 fixtures (Ch- 3 with which the chattel was attached. Questions concerning fix- tures usually arise between such persons as landlord and tenant, grantor and grantee', an heir or . devisee and the personal repre- sentatives of the deceased, a remainderman and the life tenant, and between a mortgagor and mortgagee. Any other persons between whom the question arises may be shown to stand in a like •relation to each other as those in one of these classes.* 1 The rules governing fixtures, especially with reference to the right of re- moval, are not, however, the same in all these relations. Particu- larly, in the case of tenants, the rules have been considerably relaxed. It is obvious that one having only a short term of years in certain land will be less likely to make annexations with the intention of having them become permanent than if his interest was that of an owner in fee simple. Therefore a tenant is accorded considerable freedom in removing annexed chattels, and the ten- dency of modern cases seems to be towards a greater liberality in his favor, because the presumption is very strong that he made the annexation in order to secure a more complete enjoyment dur- ing his term, and not with the intention of benefiting his landlord. 42 Persons having life estates are, in many cases, tenants in dower or by curtesy, and, therefore, often closely related to one entitled to the next estate. It is accordingly not unnatural, in such cases, to presume an intention to make permanent annexations for the benefit of the estate. 43 The same reasons hold good in the case *i For other relations, see Raymond v. White, 7 Cow. (N. Y.) 319; Heffner v. Lewis, 73 Pa. 302 ; Havens v. Electric Light Co. (Sup.) 17 N. Y. Supp. 580 ; Parsons v. Copeland, 38 Me. 537 ; Bigler v. Bank, 26 Hun (N. Y.) 520 ; Cres- son v. Stout, 17 Johns. (N. Y.) 116 ; Gale v. Ward, 14 Mass. 352 ; Farrar v. Chauffetete, 5 Denio (N. Y.) 527, 8 Am. Dec. 373; Goddard v. Chase, 7 Mass. 432 ; Tudor Iron Works v. Hitt, 49 Mo. App. 472. 42 Youngblood v. Eubank, 68 Ga. 630 ; Thomas v. Crout, 5 Bush (Ky.) 37 ; Ambs v. Hill, 10 Mo. App. 108; Osgood v. Howard, 6 Greenl. (Me.) 452, 20 Am. Dec. 322. Cf. Deane v. Hutchinson, 40 N. J. Eq. 83, 2 Atl. 292. For cases of trade fixtures, see Raymond v. White, 7 Cow. (N. Y.) 319 ; Andrews v. Button Co., 132 N. Y. 348, 30 N. E. 831 ; Conrad v. Mining Co., 54 Mich. 249, 20 N. W. 39, 52 Am. Rep. 817 ; Hayes v. Mining Co., 2 Colo. 273 ; Powell v. Bergner, 47 111. App. 33 ; "Berger v. Hoerner, 30 111. App. 360 ; Lang v. Cox, 40 Ind. 142 ; Western N. C. Ry. Co. v. Deal, 90 N. C. 110 ; Cubbins v. Ayres, 4 Lea (Tenn.) 329; Brown v. Power Co., 55 Fed. 229. Domestic fixtures. Jen- kins v. Gething, 2 Johns. & H. 520; Gaflield v. Hapgood, 17 Pick. (Mass.) 192, 28 Am. Dec. 290. 43D'Eyncourt v. Gregory, L. R. 3 Eq. 382; Cannon v. Hare, 1 Tenn. Ch. 22; Cave v. Cave, 2 Vern. 508; Lawton v. Salmon, 1 H. Bl. 260, note; Mc- Cullough v. Irvine's Ex'rs, 13 Pa. 438; Glidden v. Bennett, 43 N. H. 306; Demby v. Parse, 53 Ark. 526, 14 S. W. 899, 12 L. R. A. 87 ; Lord Ellenbor- ough, C. J., in Elwes v. Maw, 3 East, 51. Some erections are, however, held removable. Lawton v. Lawton, 3 Atk. 12; Dudley v. Warde, Amb. 113; § 16) RULES FOB DETERMINING FIXTURES 33 of a tenant in tail. The assignees of life tenants and of tenants m tail are in the same situation, and are therefore accorded -no greater freedom in removing fixtures. 44 On the" same principle, when a question of fixtures arises between the heir and the per- sonal representatives of an owner in fee, the presumptions are all in favor of the former, 46 and the same is true between vendee and vendor, 46 or mortgagee and mortgagor, 47 because a tenant in fee is not likely to make annexations with any intention of removing them, but rather for the benefit of his property. It is not true, however, that all chattels pass with the realty, although annexed Overman v. Sasser, 107 N. 0. 432, 12 S. E. 64, 10 L. R, A. 722 ; Clemence v.. Steere, 1 R. I. 272, 53 Am. Dec. 621. So far as a tenant for life is individ- ually concerned, "his estate lasts forever. It is only terminated by his death. He can have no personal interest in the removal of fixtures at the end of his term. The only interest he can possibly take in the matter is the welfare of his heirs. Whatever addition he makes to the permanent betterment of the estate, he will be permitted to enjoy all his life, and therefore there is the same reason for finding that he intended such betterment to last and con- tinue through his term as there is in case of the owner in fee." Thomp. Fixt. & Easem. 31. 44 White v. Arndt, 1 Whart. (Pa.) 91 ; Haflick v. Stober, 11 Ohio St. 482 ; Demby v. Parse, 53 Ark. 526, 14 S. W. 899, 12 L. R. A. 87 ; Elam v. Parkhill, 60 Tex. 581. « Henry's Case, Y. B. 20 Hen. VII, p: 13, pi. 24; Anon., T. B. 21 Hen. VII, p. 26, pi. 4 ; Lawton v. Salmon, 1 H. Bl. 259, note ; , Fisher v. Dixon, 12 Clark & F. 312; Bain v. Brand, 1 App. Cas. 762; Gibbsv. Estey, 15 Gray (Mass.) 587- Stillman v. Flenniken, 58 Iowa, 450, 10 N. W. 842, 43 Am. Rep. 120; Kinsell v. Billings, 35 Iowa, 154 ; McDavid v. Wood, 5 Heisk. (Tenn.) 95. So of an annexation by a tenant in common. Baldwin v. Breed, 16 Conn. 60. Contra, Squier v. Mayer, Freem. Ch. 249. *e Noble v. Bosworth, 19 Pick. (Mass.) 314; Tabor v. Robinson, 36 Barb. (N. Y.) 483 ; Voorhees v. McGinnis, 48 N. Y. 278 ; Miller v. Plumb, 6 Cow. (N. T.) 665, 16 Am. Dec. 456 ; Leonard v. Clough, 133 N. T. 292, 31 N. E. 93, 16 L. R. A. 305; Cohen v. Kyler, 27 Mo. 122; Hutchins v. Masterson, 46 Tex. 551, 26 Am. Rep. 286 ; Pea v. Pea, 35 Ind. 387. But see Leonard v. Clough, 59 Hun, 627, 14 N. X. Supp. 339. • So one making erections on land which he holds un- der contract to purchase cannot remove them if he fails to carry out the con- tract. McLaughlin v. Nash, 14 Allen (Mass.) 136, 92 Am. Dec. 741 ; Hinkley & Kgery Iron Co. v. Black, 70 Me. 473, 35 Am. Rep. 346 ; Ogden v. Stock, 34 111. 522, 85 Am. Dec. 332 ; Michigan Mut. Life Ins. Co.. v. Cronk, 93 Mich. 49, 52 N. W. 1035 ; Miller v. Waddingham, 3 Cal. Unrep. Cas. 375, 25 Pac. 688, 11 L. R. A. 510; Hemenway v. Cutler, 51 Me. 407. 4 7 Winslow v. Insurance Co., 4 Mete. (Mass.) 306, 38 Am. Dec. 368 ; Ex parte Astbury, 4 Ch. App. 630 ; Climie v. Wood, L. R. 4 Exch. 328 ; Clary v. Owen, 15 Gray (Mass.) 522; Brennan v. Whitaker, 15 Ohio St. 446; Davenport v. Shants, 43 Vt 546; Burnside v. Twitchell, 43 N. H. 390; Tifft v. Horton, 53 N. T. 377, 13 Am. Rep. 537 ; McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12 ; Rogers v. Brokaw, 25 N. J. Eq. 496 ; Woodham v. Bank, 48 Minn. 67, 50 N. W. 1015, 31 Am. St. Rep. 622. As to machinery annexed for trade purposes, see Btjed.Real Pbop. — 3 34 FIXTURES (Ch. 3 by one owning the fee. For instance, carpets, pictures, and gas fixtures retain their character as personal property. 48 When chat- tels are annexed 'to the realty by a stranger without authority, they become the property of the owner of the soil.* 8 If put there, however, in good faith, the enhanced value of the land may be set off by the person making the annexation in an action against him for rent. 60 The same rules apply to trees set out and crops planted by one not the owner. 61 Nature of the Chattels Annexed — Trade Fixtures Chattels placed by a tenant upon leased premises for the pur- "pose of carrying on his business or trade are generally, as a rule, regarded as personal property. Annexations of. this kind are call- ed "trade fixtures," and their removal is permitted with consider- able freedom. Showcases, 62 counters and shelves, 63 engines, 64 Helm v. Gilroy, 20 Or. 517, 26 Pac. 851 ; Hathaway v. Insurance Co., 58 Hun, 602, 11 N. Y. Supp. 413 ; Calumet Iron & Steel Co. v. Lathrop, 36 111. App. 249 ; Phelan v. Boyd (Tex. Sup.) 14 S. W. 290. But for trade fixtures held remova- ble, see Rogers v. Brokaw, 25 N. J. Eq. 496 ; Johnson v. Mosher, 82 Iowa, 29, 47 N. W. 996. Cf. Padgett v. Cleveland, 33 S. C.,339, 11 S. E. 1069. The mort- gagee is entitled to fixtures erected after the execution of the mortgage as against an assignee of the mortgagor. Walmsley v. Milne,. 7 C. B. (N. S.) 115 ; Holland v. Hodgson, L E. 7 C. P. 328; Winslow v. Insurance Co., 4 Mete. (Mass.) 306, 38 Am. Dec. 368; ^Cooper v. Harvey, 62 Hun, 618, 16 N, T. Supp. 660 ; Snedeker v. Warring, 12 N. Y. 170 ; Kloess v. Katt, 40 111. App. 99 ; Seed- house v. Broward, 34 Pla. 509, 16 South. 425 ; Sands v.' Pf eiffer, 10 Cal. 258. is Jarechi v. Society, 79 Pa. 403, 21 Am. Kep. 78; McKeage v. Insurance Co., 81 N. Y. 38, 37 Am. Bep. 471 ; Towne v. Fiske, 127 Mass. 125, 34 Am. Kep. 353. Cf., however, Central Trust & Safe Deposit Co. v. Hotel Co., 26 Wkly. Law Bui. (Ohio) 149. ■ 49 Madigan v. McCarthy, 108 Mass. 376", 11 Am. Bep. 371; Inhabitants of First Parish in Sudbury v. Jones, 8 Cush. (Mass.) 184; Huebschmann v. Mc- Henry, 29 Wis. 655. Otherwise, when the owner consents. Fuller v. Tabor, 39 Me. 519; Gregg v. Railway Co., 48 Mo. App. 494; Merchants' Nat. Bank of Crookston v. Stanton, 55 Minn. 211, 56 N. W. 821, 43 Am. St Rep. 491. But see Histe'v. Buckley, 8 Ohio Cir. Ct. R.,470. so Green v. Biddle, 8 Wheat. (U. S.) 1, 5 L. Ed. 547; Hylton v. Brown, 2 Wash. C. C. 165, Fed. Cas. No. 6,983 ; Jackson v. Loomis, 4 Cow. (N. Y.) 168, - 15 Am. Dec. 347. / And see Oregon Railway & Nav. Co. v. Mosier, 14 Or. 519, ' 13 Pac. 300, 58 Am. Rep. 321. si Simpkins v. Rogers, 15 111. 397 ; Mitchell v. Billingsley, 17 Ala. 391 ; Boy- er v. Williams, 5 Mo. 335, 32 Am. Dee. 324.. 52 McCall v. Walter, 71 Ga. 287. 53 Guthrie v. Jones, 108 Mass. 191. But see O'Brien v. Kusterer, 27 Mich. 289. 6 4 Cook v. Transportation Co., 1 Denio (N. Y.) 91; Lemar v. Miles, 4 Watts (Pa.) 330; Robertson v. Corsett, 39 Mich. 777; Crane v. Brigham, 11 N. J. Eq. 29. § 16) RULES FOE DETERMINING FIXTURES 35 boilers, 65 machinery, 56 tanks in a distillery, 67 a bowling alley, 68 bar fixtures, and even buildings erected upon leased land, 68 have been held removable as trade fixtures. Various reasons have been laid down by the courts for these exceptions to the general rule. The reason usually assigned is that from the temporary nature of the tenure it is not to be presumed that one engaged in trade or manufacture will attach valuable chattels to the realty with the intention of making them permanent additions thereto. 60 It is also said that the right to remove such property does not .arise from any regard of intention, but that it is an indulgence shown by the law, by way of exception to the general rule, for the pur- pose of promoting trade. 61 Within the principle governing trade fixtures fall likewise certain mixed cases, where the annexation is made for purposes of trade and partly to secure the enjoyment of the demised estate, as in the case of engines erected in a col- liery 62 or brickyard, or trees set out in a nursery; 63 or it may be that the fixtures are partly for domestic use and convenience and partly for purposes of trade. 6 * Agricultural Fixtures Closely allied to, and sometimes included within, the term of trade fixtures, are agricultural fixtures. These are annexations «« Cooper v. Johnson, 143 Mass. 108, 9 N. B. 33; Conrad v. Mining Co., 54 Mich. 249, 20 N. W. 39, 52 Am. Eep. 817; Merritt v.'Judd, 14 Cal. 60; Kelsey v. Durkee, 33 Barb. (N. Y.) 410 ; Hayes v. Mining Co., 2 Colo. 273. o« Holbrook v. Chamberlain, 116 Mass. 155, 17 Am. Eep. 146; Moore v. Smith, 24 111. 512. 87 Chidley v. Churchwardens of West Ham, 32 Law T. (N. S.) 486. So vats of a soap boiler, but not partitions, etc., which were put up to complete the house, may be taken on execution. Poole's Case, 1 Salk. 368. 68 Hanrahan v. O'Reilly, 102 Mass. 201. bd Beers v. St. John, 16 Conn. 322; Walton v. Wray, 54 Iowa, 631, 6 N. W. 742; Kissam v. Barclay, 17 Abb.'Prac. (N. Y.) 360; Macdonough v. Starbird, 105 Cal. 15, 38 Pac. 510; West North Carolina E. Co. v. Deal, 90 N. C. 110; Security Loan & Trust Co. v. Manufacturing Co., 99 Cal. 636, 34 Pac. 321. But buildings, though erected solely for purposes of trade, may be of so substan- tial a character that they are irremovable. Whitehead v. Bennett, 27 Law J. Ch. 474. And cf. Felcher v. McMillan, 103 Mich. 494, 61 N. W. 791. «o Field v. Morris, 95 Ark. 268, 275, 129 S. W. 543, 545; Mining Co. v. Bish- op, 35 Can. S. Ct 539 ; McDavid v. Wood, 5 Heisk. (Tenn.) 95 ; Boyd v. Doug- lass, 72 Vt. 449, 48 Atl. 638. si Treadway v. Sharon, 7 Nev. 37. 02 Lawton v. Lawton, 3 Atk. 12. «s King v. Wilcomb, 7 Barb. (N. Y.) 263; Miller v. Baker, 1 Mete. (Mass.) 27. «* Van Ness v. Pacard, 2 Pet. (U. S.) 137, 7 L. Ed. 374, holding that a dwell- ing house erected by a dairyman and used as accessory to thaj, business was removable. . See, also, Wall v. Hinds, 4 Gray (Mass.) 256, 64 Am. Dec. 64 ; Capehart v. Foster, 61 Minn. 132, 63 N. W. 257, 52 Am. St. Eep. 582. 36 FIXTTJBES (Ch. 3 which are used in farming, and consist principally of barns, sheds, 85 and farm machinery, such as cotton gins. 66 In England agri- cultural fixtures are for the most part irremovable, 67 , but the rule is generally otherwise in the United States, 68 although it is not as liberal as in the case of trade fixtures proper. 69 Manure made on a farm becomes a part of the realty, and cannot be lawfully treated as personalty by one not the owner of the fee, 70 except when it is made from material not obtained on the premises, as in the case of a livery stable. 71 Manure usually passes with the freehold to a vendee of the land. 72 It cannot, moreover, be taken on execution against the personalty of the owner of the fee, unless he has made it personal property by severance. 7 * Domestic Fixtures Where the owner of real property adds articles to the premises for his greater convenience or enjoyment of the same, they will not, as a rule, pass to a grantee by deed, unless the evidence shows «5 Elwes v. Maw, 3 East, 38. «e McJunkin v. Dupree, 44 Tex. 500. But see Bond v. Coke, 71 N. C. 97. 87 See Elwes v. Maw, 3 East, 38, where an agricultural tenant, having erected several outbuildings of brick and mortar built into the ground was not permitted to remove them. Trees and plants, however, forming the stock in trade of nurserymen and gardeners, are removable as trade fixtures. Oakley v. Monck, L. R. 1 Exch. 159, 4 H. & C. 251. «s Wing v. Gray, 36 Vt. 261; Harkness v. Sears, 26 Ala. 493, 62 Am. Dec. 742; Dubois v. Kelly, 10 Barb. (N. Y.) 496; Holmes v. Tremper, 20 Johns. (N. Y.) 29, 11 Am. Dec. 238. so Tyler, Fixt. 271; Perkins v. Swank, 43 Miss. 349; Leland v. Gassett, 17 Vt. 403. 70 Perry v. Carr, 44 N. H. 118; Hill v. De Eochemont, 48 N. H. 87; Daniels v. Pond, 21 Pick. (Mass.) 367, 32 Am. Dec. 269; Middlebrook v. Corwin, 15 Wend. (N. Y.) 169. Manure in a heap is personalty, but when scattered upon the ground it becomes part of the realty. Yearworth v. Pierce, Aleyn, 31; Ruckman v. Outwater, 28 N. J. Law, 581 ; Eay v. Muzzey, 13 Gray (Mass.) 53, 74 Am. Dec. 619 ; Collier v. Jenks, 19 R. I. 137, 32 Atl. 208, 61 Am. St Rep. 741. And see Lassell v. Reed, 6 Greenl. (Me.) 222. It has been held, however, that manure may be taken on execution against a tenant at will without in- curring liability to the landlord. Staples v. Emery, 7 Greenl. (Me.) 201. 7i Carroll v. Newton, 17 How. Prac. (N. Y.) 189; Plumer v. Plumer, 30 N. H. 558; Gallagher v. Shipley, 24 Md. 418, 87 Am. Dec. 611. So manure made after the sale of a farm, where the vendor retains possession during the win- ter, but carries on no farming operations, may be sold by him. Needham v. Allison, 24 N. H. 355. But see Lassell v. Reed, 6 Greenl. (Me.) 222. Cf. Lewis v. Jones, 17 Pa. 262, 55 Am. Dec. 550. 72 Goodrich v. Jones, 2 Hill (N. Y.) 142; Daniels v. Pond, 21 Pick. (Mass.) 367, 32 Am. Dec. 269 ; Kittredge v. Woods, 3 N. H. 503, 14 Am. Dec. 393. Con- tra, Ruckman v. Outwater, 28 N. J. Law, 581. It may be reserved by a sep- arate agreement. Strong v. Doyle, 110 Mass. 92. " Sawyer v. Twiss, 26 N. H. 345. § 16) RULES FOE DETERMINING FIXTURES 37 that such additions were intended to be permanent. 74 Such an- nexations are generally classed as domestic fixtures, and where the relation of landlord and tenant exists, such articles' added to the premises by the tenant are generally removable by the tenant as in case of trade fixtures." Domestic fixtures include such things as mirrors, although attached with screws and spikes, 76 gas ranges, 77 stoves, 78 washtubs fastened to the house, 79 gas fix- tures, 80 chimney-pieces, 81 marble shelves, 82 and sheds. 88 In the annexation, however, of domestic fixtures, it is held that there is a stronger presumption of an intention to make them permanent additions to the realty than in the case of either trade or agricul- tural fixtures, and consequently less freedom of removal. 8 * t* Wright v. Du Bignon, 114 Ga. 765, 40 S. E. 747, 57 L. E. A. 669; Hunt v. Bullock, 23 111. 320; Leonard v. Stickney, 131 Mass. 541; Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 353. ts Wolff v. Sampson, 123 Ga. 400, 51 S. E. 335; Raymond v. Strickland, 124 Ga. 504, 52 S. E. 619, 3 L. R. A. (N. S.) 69 ; McLain Inv. Co. v. Cunningham, 113 Mo. App. 519, 87 S. W. 605; Webber v. Brewing Co., 123 App. Div. 465, 108 N. Y. Supp. 251 ; Excelsior Brewing Co. v. Smith, 125 App. Div. 668, 110 N. Y. Supp. 8. ts Cranston v. Beck, 70 N. J. Law, 145, 56 Atl. 121, 1 Ann. Cas. 686. " See Cosgrove v. Troescher, 62 App. Div. 123, 70 N. Y. Supp. 764, holding that gas ranges connected to the realty by a gas pipe and flue do not pass by a mortgage. ts Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 353. Grates. Aldine Manuf'g Co. v. Barnard, 84 Mich. 632, 48 N. W. 280; Gaffield v. Hapgood,, 17 Pick. (Mass.) 192, 28 Am. Dec. 290. And steam valves and radiators. National Bank of Catasauqua v. North, 160 Pa. 303, 28 Atl. 694. '9 Wall v. Hinds, 4 Gray (Mass.) 256, 64 Am. Dec. 64. See, also, KIrchman v. Lapp (Super. Buff.) 19 N. Y. Supp. 831. so Vaughen v. Haldeman, 33 Pa. 522, 75 Am. Dec. 622; Kirchman v. Lapp (Super. Buff.) 19 N. Y. Supp. 831 ; Manning v. Ogden, 70 Hun, 399, 24 .N. Y. Supp. 70. Contra, Johnson's Ex'r v. Wiseman's Ex'r, 4 Mete. (Ky.) 357, 83 Am. Dec. 475. si Winn v. Ingilby, 5 Barn. & Aid. 625. But see Spinney v. Barbe, 43 111. App. 585. So pictures and glasses put up instead of wainscot were given to the heir. Cave v. Cave, 2 Vern. 508. And see D'Eyncourt v. Gregory, L. R. 3 Eq. 382 ; Cahn v. Hewsey, 8 Misc. Rep. 384, 29 N. Y. Supp. 1107. 82 Weston v. Weston, 102 Mass. 514. And see Sweet v. Myers, 3 S. D. 324, 53 N. W. 187. ea Krouse v. Ross, 1 Cranch, C. C. 368, Fed. Cas. No. 7,939. s* See Buckland v. Butterfield, 2 Brod. & B. 54 (where a conservatory and pinery, erected for ornament and attached to the dwelling house, were held part of the realty) r Jenkins v. Gething, 2 Johns. & H. 520 ; State v. Elliot, 11 N. H. 540. But in Grymes v. Boweren, 6 Bing. 437, a tenant was permitted to remove a pump erected for domestic use, though quite firmly annexed to the freehold. 38 fixtures (Ch. 3 TIME OF REMOVAL 17. In the case of a tenant's removable fixtures, the weight of au- thority is that, where the tenant's interest is of definite duration, the removal must be before its termination. Where the interest is of indefinite duration, the removal may be within a reasonable time after its termination. Where a person's title to so-called fixtures is absolute, either by agreement or otherwise, some cases hold that the owner of the fixtures, as distinguished from the owner of the land, may recover them until barred by the statute of limitations. 85 Gen- erally, however, in the case of landlord and tenant, where the interest of the one making the annexation is "of definite duration, the right to remove fixtures must be exercised before the ter- mination of that interest or an abandonment of the right will be presumed ; 86 although in cases of an interest of uncertain duration, or in case of a tenancy at will, the removal may be within a reasonable time after the interest comes to an end. 87 These rules do not apply, however, when the removal of the fixtures is wrongfully prevented by injunction or otherwise. 88 Moreover, a tenant holding over with the consent of the landlord does not so See Welsh v. McDonald, 64 Wash. 108, 116 Pac. 589; Broaddus v. Smith, 121 Ala. 335, 26 South. 34, 77 Am. St Rep. 61 ; Holmes v. Tremper, 20 Johns. (N. T.) 29, 11 Am. Dec. 238 ; Shellar v. Shivers, 171 Pa. 569, 33 Atl. 95. Com- pare Gasaway v. Thomas, 56 Wash. 77, 105 Pac. 168, 20 Ann. Cas. 1337 ; Sagar v. Eckert, 3 111. App. 412 ; Lowenberg v. Bernd, 47 Mo. 297 ; Ingalls v. Rail- way Co., 39 Minn. 479, 40 N. W. 524, 12 Am. St Rep. 676. se Sampson v. Cotton Mills, 64 Fed. 939 ; White v. Arndt, 1 Whart. (Pa.) 91 ; Mackintosh v. Trotter, 3 Mees. & W. 184; Gibson v. Railway Co., 32 Law J. Ch. 337 ; Saint v. Pilley, L. R. 10 Exch. 137 ; Haflick v. Stober, 11 Ohio St. 482 ; Frledlander v. Ryder, 30 Neb. 783, 47 N. W. 83, 9' L. R. A. 700 ; Davis v. Buffum, 51 Me. 160 ; Josslyn v. McCabe, 46 Wis. 591, 1 N. W. 174 ; Thomas v. Crout, 5 Bush (Ky.f 37. Cf. Dubois v. Kelly, 10 Barb. (N. Y.) 496. Tr a lessee mortgages tenant's fixtures, and afterwards surrenders his lease, the mort- gagee has a right to enter and sever them. London & Westminster Loan & Discount Co. v. Drake, 6 C. B. (N. S.) 798. See, also, McKenzie v. City of Lex- ington, 4 Dana (Ky.) 130. 87 Where a landlord enters on his tenant for breach of condition, and there- by puts an end to the tenancy, the right to remove fixtures is gone. Pugh v. Arton, L. R. 8 Eq. 626; Weeton v. Woodcock, 7 Mees. & W. 14; Ex parte Brook, 10 Ch. Div. 100; Morey v. Hoyt, 62 Conn. 542, 26 Atl. 127, 19 L. R. A. 611. Cf. Dunman v. Railway Co. (Tex. Civ. App.) 26 S. W. 304 ; Antoni v. Bel- knap, 102 Mass. 193 ; Cooper v. Johnson, 143 Mass. 108, 9 N. E. 33 ; Berger v. Hoerner, 36 111. App. 360; Sullivan v. Carberry, 67 Me. 531; Turner v Kennedy, 57 Minn. 104, 58 N. W. 823 ; Martin v. Roe, 7 El. & Bl. 237. ssBircher v. Parker, 40 Mo. 118. § 18) SEVERANCE OF FIXTURES 39 lose his right of removal. 89 Fixtures wrongfully removed may be recovered by the person entitled to them, if in the hands of any one 90 not a bona fide purchaser. 91 If a tenant fails to take away the removable annexations made by him, they become technical fixtures, and as such become the property of the owner of the premises. If a tenant, however, accepts a new lease, he generally loses his right to remove his fixtures annexed during the con- tinuation of the former lease, unless the right of removal has been reserved by him. 92 A tenant in removing his fixtures must do so without material injury to the realty, because if this cannot be done they will generally be presumed to be permanent annexa- tions. 93 Questions of what is a reasonable time and whether an annexation can be removed without material injury to the premises are matters of fact for the jury. SEVERANCE OF FIXTURES 18. Fixtures may be severed from the realty With an intent to re- store them to the character of personal property. Chattels which have become realty by a permanent annexation may, nevertheless, be reconverted into personalty by being severed from the realty by the owner with an intent to produce that ef- fect. 94 A mere intention to sever is not, however, sufficient. 96 The 8» Lewis v. Pier Co., 125 N. Y. 341, 26 N. E. 301 ; Torrey v. Burnett, 38 N. J. Daw, 457, 20 Am. Rep. 421 ; Fitzgerald v. Anderson, 81 Wis. 341, 51 N. W. 554 ; Brown v. Power. Co., 55 Fed. 229. Cf. Free v. Stuart, 39 Neb. 220, 57 N. W. 991; Thorn v. Sutherland, 123 N. Y. 236, 25 N. E. 362. »o Ogden v. Stock, 34 111. 522, 85 Am. Dec. 332 ; Central Branch R. Co. v. Fritz, 20 Kan. 430, 27 Am. Rep. 175 ; Huebschmann v. McHenry, 29 Wis. 655 ; Sands v. Pfeiffer, 10 Cal. 259. Cf. Salter v. Sample, 71 111. 430 ; Hartwell v. Kelly, 117 Mass. 235. But see 2 Jones, Real Prop. § 1760. »i Peirce v. Goddard, 22 Pick. (Mass.) 559, 33 Am. Dec. 764. »2 Wadman v. Burke, 147 Cal. 351, 81 Pac. 1012, 1 L. R. A. (N. S.) 1192, 3 Ann. Cas. 330; Davis v. Manufacturing Co., 112 111. App. 112. See Precht v. Howard, 187 N. T. 136, 79 N. E. 847, 9 L. R. A. (N. S.) 483; Marks v. Ryan, 63 Cal. 107 ; Sanitary Dist. of Chicago v. Cook, 169 111. 184, 48 N. E. 461, 39 L. R. A. 369, 61 Am. St. Rep. 161 ; Watriss v. Bank, 124 Mass. 571, 26 Am. Rep. 694; Stephens v. Ely, 162 N. Y. 79, 56 N. E. 499. Contra, Daly v. Si- monson, 126 Iowa, 716, 102 N. W. 780; Thomas v. J. W. Gayle Co., 134 Ky. 330, 120 S. W. 290, 28 L. R. A. (N. S.) 767. »3 Supra. »* Morgan v. Varick, 8 Wend. (N. Y.) 587; Bliss v. Misner, 4 Thomp. & C. (N. Y.) 633; Gardner v. Finley, 19 Barb. (N. Y.) 317; Davis v. Emery, 61 Me. 140, 14 Am. Rep. 553. See, also, Taylor v. Townsend, 8 Mass. 411, 5 Am. Dec. 107. so Bratton v. Clawson, 2 Strob. (S. C.) 478. 40 FIXTUEE8 (Ch. 3 severance need not be actual, but may be constructive, as by the execution of a bill of sale or a chattel mortgage. 96 A mere tem- porary severance, however, although actual, will not change the character of a fixture. 97 For example, when machinery is taken from a mill for repairs, it does not thereby become personal prop- erty, 98 and the removal of soil from one part of the owner's land to another will not make it personalty, unless such was the inten- tion. 99 In general, moreover, the intention to convert a fixture into personal property must relate to the time the actual or construc- tive severance is made. 100 06 Davis v. Emery, 61 Me. 140, 14 Am. Rep. 553 ; Shaw v. Carb'rey, 13 Allen (Mass.) 462. See, however, Richardson v. Copeland, 6 Gray (Mass.) 536, 66 Am. Dec. 424 ; Dudley v. Foote, 63 N. H. 57, 56 Am. Rep. 489. •t Rogers v. Gilinger, 30 Pa. 185, 72 Am. Dec. 694; Wadleigh v. Janvrin, 41 N. H. 503, 77 Am. Dec. 780 ; Davis v. Emery, 61 Me. 140, 14 Am. Rep. 553. So fence boards, though temporarily removed, remain part of the realty, so as to pass to a vendee. Goodrich v. Jones, 2 Hill (N. Y.) 142; McLaughlin ▼. Johnson, 46 111. 163. But-see Harris v. Scovel, 85 Mich. 32, 48 N. W. 173. »s Wadleigh v. Janvrin, 41 N. H. 503, 77 Am. Dec. 780. " See Lacustine Fertilizer Co. v. Fertilizer Co., 82 N. T. 476; Goodrich v. Jones, 2 Hill (N. X.) 142. And compare Rogers v. Gilinger, 30 Pa. 185, 72 Am. Dec. 694. »oo People v. Jones, 120 Mich. 283, 284, 79 N. W. 177. Ch. 5) ANGLO-SAXON AND FEUDAL LAND LAW 41 CHAPTER IV ANGLO-SAXON AND FEUDAL LAND LAW 19. Anglo-Saxon Land Law. 20. Feudalism. 21. Tenure. 22. Seisin. ANGLO-SAXON LAND LAW 19. For the origin of many of our laws it is necessary to go beyond the Norman Conquest. In Anglo-Saxon times, in England, there was a common field sys- tem of agriculture. Ownership in land was of three kinds : (1) Folkland; (2) bookland; and (3) laenland. In the study of the principles of the English common law of real , property, many persons begin with the reign of William the Conqueror, and particularly with the feudal system developed by him in England. For the origin, however, of many of our laws, it is necessary to go beyond the Norman Conquest, 1 and it would be profitable, did space permit, to consider at some length the land law of the Anglo-Saxon days'. A very brief reference, however, to a few important things, is all that can be attempted in this connection* Danegeld — Domesday Book The Saxon period of English history extended from the landing of ' the Jutes z in 449 to the battle of Hastings in 1066. During the lat- ter part of this Saxon period, particularly in the ninth century, Eng- land was almost overwhelmed by the invasions of the Danes, and the later Saxon kings paid tribute to them. In fact, from 1016 to 1042 the kings were Danes. The tribute paid to buy off the Danish inva- sions was known as Danegeld. It was instituted about the year 991, in the time of Ethelred, and after the necessity of tribute had passed it was continued as a tax to maintain the defense of the kingdom.* This tax was levied upon the land, but, in the course of time, the levies became unequal and unjust, based as they were upon the old and inaccurate assessments. 4 Twenty years after William the Con- queror came to the throne, he caused "a grand survey" of the lands of England to be made, for the purpose of a more orderly system of i Holds. Hist Eng. Law, II, 2. » Domesday Studies, I, 10. * One of the German tribes of Jutland. * Holds! Hist. Eng. Law, II, 119. 42 ANGLO-SAXON AND FEUDAL LAND LAW (Ch. 4 taxation. The result was the compilation of a great rate book," called Domesday Book, a work of the highest value in connection with the study of early English land law. 8 The Anglo-Saxon Common Field System We can trace, says Holdsworth, 7 the presence of the Anglo-Saxon common field system of agriculture at all periods of our history, al- most up to the present day. It was so common in the seventeenth century, says another writer of authority, 8 that it was transplanted by the early colonists to New England. The system occupies a sort of middle ground between ideas which recognized no private property and those of later times which recognized individual ownership. 8 Under the common or open field system, the land of each township was divided into two or three open and uninclosed fields which were cultivated in rotation. There was a subdivision of each field into strips or sections of about an acre each in size. Each cultivator possessed a number of these scattered strips. There were also certain common rights that attached to these holdings. For example, the cattle of the people who lived in a village community were permitted to pasture over the fallow fields. There were also waste lands bordering upon the township where the 'cattle could graze at any time. In these rights we find the origin of common appendant. 10 Anglo-Saxon Land Ownership Anglo-Saxon land ownership is said to have been of three kinds, namely, folkland, bookland, and laenland. 11 Folkland is .the primitive form of land ownership, the land held by private persons who form part of the village community, and who cultivate it according to the folk or customary law. 12 The owners of such land were freemen, \ » Ballard, Domesday Boroughs, 3. e The "grand survey" of William the Conqueror, ordered by. him in 1086, did not mean a survey in the modern sense of that word, but it meant a de- scription of the lands as a basis for taxation. The names of the holders of the land were collected, also information as to the extent and value of the land. Domesday Book. — Consists of two volumes, a quarto, often referred to as the "Little Domesday," and a large folio, known as the "Great Domesday." The smaller book contains the records of but three counties; the larger book the record of the rest of England. From Domesday Book it may be seen how manors were held before the Conquest, also the area of such manors. It can also be seen what estate the tenants of manors had. Domesday Studies, I, 4. i Holds. Hist Eng. Law, II, 48. s Cunningham, Growth of English Industry, II, 366. N » Holds. Hist. Eng. Law, II, 64. io See Holds. Hist. Eng. Law, II, 46, 47, 48. "See Holds. Hist. Eng. Law, II, 57; P. & M. I, 38, 39; Vinogradoff, Eng- lish Society, 229-232. 12 P. & M. Hist. Eng. Law, I, 37; Vinogradoff, Manor, 142, 143; Holds. § 1.9) ANGLO-SAXON LAND LAW 43 they held the soil subject to no landlord, and it descended to their heirs. 18 Bookland was of ecclesiastical origin. The term "book," or "boc," signifies the written land charter, or grant, made by the king to bishops, religious houses, or to lay nobles. Vast tracts of land were sometimes granted, together with privileges connected therewith. Grants to the church were in the nature of pious gifts by the king. In these grants we see the origin of the strife which in later times cul- minated in the statutes of mortmain and the statute of uses. 14 Laen- land, or loanland, were leases or loans of land, made, usually, by the church out of the possessions that had been granted to it by the king. These loans or leases were made for limited periods, usually for one or more lives, three being a common term. 15 These loans were oral, and were made only to the great and powerful ; that is, to those who could render some service in return, or who were able to pay rent. 14 These loans were sometimes made by the church even to the king. 17 The actual tiller of the soil did not, therefore, hold his land by ei- ther bookland or laenland law. These kinds of land required cultiva- tors, however, and, in time, the village community gradually became dependant upon a lord, and converted into a manor; that is, an es- tate grouped around a hall, or manor house, with its vast appendant farm. 18 The great landholders, who hold by the book or laen, are to become the future landlords, and in the conditions that resulted we see the germs of tenure, and signs of many of the later doctrines re- lating to tenure. 1 " Hist. Eng. Law, II, 58. See, also, in general, Vinogradoff, Inquiries into the Social Hist of Medieval England. For a review of this work, see 4 L. Q. R, 266. , is Hofds. Hist. Eng. Law, II, 62. i* See Holds. Hist. Eng. Law, II, -59. in Hqlds. Hist. Eng. Law, II, 60. i« Holds. Hist. Eng. Law, II, 60. it Domesday Book & Beyond, 302. is Vinogradoff, Manor, 225. i» Holds. Hist. Eng. Law, II, 64, 65. 44 ANGLO-SAXON AND FEUDAL LAND LAW (Ch. 4 FEUDALISM 20. After the Norman Conquest, William the Conqueror developed in England a feudal system of land tenure. The tenure of all land was based on the theory that the land was granted as a feud by the king himself 'to his tenant. It was a sys- tem of military government. Feudalism The terms "feudal" and "feudalism" are derived from the word "feud"; 20 the terms "fee," "fief," and "feod" (Latinized into "feud- um" and "feodum") being, doubtless, all forms of the same word. The term "feud" (or fee) meant a grant of land by a monarchical chieftain to his follower, the grant implying certain mutual rights and duties. In general feudal law, or such as obtained in continental Eu- rope, the term "feud" seems to have been equivalent to the Roman "beneficium." 21 In England, however, feud came to mean a heritable, but dependent, right. Feudalism is a landholding relationship based upon the grant of a feud. The dominant idea in the relationship is that of lord and vassal. Many students of real property conceive the notion that feudalism was peculiar to England. The system or form of feudalism developed by William the Conqueror was indeed so, but feudalism, in general, belongs to no particular age and to no particular people. It is found as an incident to social conditions in the times of continued political demoralization. During the decadent years of 20 "The word 'feodum' is not found earlier than the close of the ninth cen- tury. But neither the etymology of the word nor the development of its sev- eral meanings can be regarded as certain." Stubbs, Const. Hist. I, 251. Ac- cording to the Encyclopedia Britannica (9th Ed.) : "Feodum, feudum, fief, or fee is derived from the German 'vieh,' cattle; in a secondary sense the word came to denote goods, money, property in general. The second syllable has been connected with another root, '6d,' also meaning property; the whole word denoting property held as a reward, or in consideration of special service." See 25 L. Q. R. 178, "The Effect of Tenure on Real Property Law." The au- thor of the article says : "Sir Henry Spelman (who died in 1641) was the first English writer who conceived the idea of treating the English law of tenures as a branch of the continental feudal law. * * * Coke never mentions the feudal system, and apparently never uses the word 'feudal.'" And see Maitland's Const. Hist'of Eng. 142, where he speaks of the "new learning," introduced by Sir Henry Spelman, and popularized and made orthodox by Blackstone in his easy, attractive manner." 21 Sometimes called a precarious benefice; that is, a beneficial grant of land continuing merely at the owner's will. A precarium in the Roman law was anything granted or lent to be returned at the will of the grantor. From the precarium was developed in the continental feudal law the beneficium, an es- tate upon a conditional tenure. § 20) FEUDALISM 45 the Roman Empire, the conditions were practically feudal. 2 * A power- ful system of feudalism existed among the Mohammedan chiefs, 24 and it was not until 1839 that feudalism was abolished in Turkey. 24 It flourished for centuries in Japan, and until very recent times. 20 "Feudalism is the natural result of the absence of efficient central government." 28 Upon the death of Charlemagne, in the early part of the ninth century, 27 there was a collapse of all efficient government, and feudalism arose on every hand. It flourished in Germany, France, and Italy. 28 In feudalism, no one authority is sufficiently powerful to exercise dominion over all the state. Groups of the more powerful assume control, 29 and the less powerful are content to submit to their authority in order to obtain protection. 80 The Feudal System in England Under the feudal system in France the result was "feudal govern- ment, a graduated system of jurisdiction based on land tenure, in which every lord judged, taxed, and commanded the class next below him; in which abject slavery formed the lowest, and irresponsible tyranny the highest, grade." S1 When William the Conqueror and his' barons came to England from Normandy, in France, they proba- bly knew no other kind of land tenure. William, however, believed in a strong, central government. The feudalism he developed in Eng- land 32 was not a feudal system of government, but a feudal system 22 De Coulanges, Les Origines du Systeme Feodale, 206 et seq. "After all It may be doubted," says Colquhoun, "if the system of feodation be not derived from the Roman custom of patron and client. At any rate the similarity is striking. If we consider the respective state of civilization of both, we shall probably admit the resemblance to be closer than it would at first appear; and if we refer it to the earlier period of Roman history, we shall find the plebeian was in a state little, if at all, better than the most favored class of German peasants." Civ. Law, § 124. 23 Esmein, Histoire du Droit Francais, 175. 24 Until 1839, when the system was abolished by Abdul Mejid, the tenure of the domain land in Turkey was purely feudal. Each feudatory was under an obligation to furnish to the Sultan a certain number of men at arms in time of war. This system was the basis of the Turkish army. 25 L. Q. R. 24, 37. 2 5 Esmein, Hist, du Droit Franeais, 175. 2 6 Holds. Hist. Eng. Law, II, 6. 27 a. D. 814. 2 8 Menzel (Ges. der Deut. c. 77) says that the system of feods is originally German, and that the old pagan Germans were wont to lend (leihen) parts of the alods to slaves, freedmen, or poor freemen, upon condition of certain services or other returns. Colquhoun, Giv. Law, § 120. 2 9 Holds. Hist. Eng. Law, II, 6. so Holds. Hist Eng. Law, II, 7. «i Stubbs, Const. Hist. 256. i , 82 "Probably the principle of tenure by military service was recognized in 46 ANGLO-SAXON AND FEUDAL LAND LAW (Ch. 4. of land tenure, differing, however, from the continental plan. On the continent, the military service of undertenants was due to the mesne lords, that is, to the actual feudal lord of each tenant ; in Wil- liam's system, this service was due directly to the king. 33 The tenure of all land was based on the presumption that it was granted as a feud by the king himself to his tenant. William's system was a system of military government, founded on the personal allegiance of the members of the organization to the king. Under his feudal system, > the king was surrounded by a body of men pledged to his support in war. The follower's of the king likewise had their own followers, bound to them in the same way, but all were bound to the king. The English lands were granted to the followers of William as a reward for past services and for services to be rendered in the future. That is, the lands were held on the condition that the tenants should per- form the military and other obligations owed by them on account of their positions as members of the feudal organization, and such other additional obligations as might be imposed in connection with the grant. Each tenant of the king subdivided his portion, distributing the greater part of it among subtenants on conditions of tenure sim- ilar to those which he himself was under obligation to perform to the sovereign. In this way a vast social structure was erected, with the king at the apex, his immediate tenants directly beneath him, and so on down, through the various classes of subtenants, until we reach the class which actually cultivated the soil. Under the feudal system there was, therefore, no absolute ownership of land. Land was not the subject of ownership, but of tenure. 3 * The land could not be held by a subject in absolute independent ownership as personal prop- erty is owned, for that was the exclusive prerogative of the king; but all land was held under obligation of duties and services, imposed either by. force of law or by express terms of the grant of the feud, whereby a relation, known as "tenure," was constituted and perma- nently maintained, between the tenant and the crown, characterized by the quality of the duties and services upon which the land was held. In like manner, the tenants of the crown might grant out parts . of their land to subtenants upon similar terms of services, thereby creat- ing a subtenure or relation of tenure between, themselves, as mesne or intermediate lords, and their grantees, as tenants, but without af- fecting the ultimate tenure under the crown as lord paramount. The infeudation or grant was effected by the ceremony of feoffment, or England before the Conquest, but according to the current view its definite establishment took place in the teign of William I." Laws of Eng. vol. 24, p. 140, c. 33 Laws of Eng. vol. 24, p. 140, c, « Laws of Eng. vol. 24, § 279. § 21) TENURE 47 delivery of the land by the lord to the tenant, to be held by him upon the terms then expressed or implied ; and the tenant was thereby in- vested with the seisin or actual possession of the land. 86 Every acre of England was brought within the feudal principle, although the king did not grant all of the land, but retained a part for his own use. This retained part became known as the "ancient demesne of the crown." S8 TENURE 21. Tenure signifies the holding of lands or tenements in subordi- nation to some superior, and also the terms of the hold- ing." Forms of Tenure — Free Tenure "Almost all the real property of England," says Blackstone, 88 "is by the policy of our laws supposed to be granted by, dependent upon, and holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled a tenement, the pos- sessors thereof tenants, and the manner of their possession a tenure." Under the feudal system, lands held by free tenure were held either by tenure by knight-service, or tenure in socage, or tenure in f rankal- moin. 38 "The most universal, and esteemed the most honorable, spe- cies of tenure, was that by knight-service," 40 otherwise known as tenure in chivalry. One who held by this tenure was bound to serve as a knight for forty days a year in the king's army, and to provide himself with the equipment necessary for such service* 41 Grand ser- jeanty 42 was another form of tenure in chivalry. 'The services in this case consisted in certain personal services rendered to the king or lord. "Tenure by grand serjeanty" designated the holdings of those who, in return for their lands, performed duties at the king's palace or in attendance on his person, as a marshal, a chamberlain, or a but- 3 6 Leake, Land Law, 17. »e P. & M. Hist. Eng. Law, I, 210, 366; Dig. Hist. Real Prop. (4th Ed.) 34; 2 Blk. Cbmm. 59; Co. Litt. la. And see Hopkins, Real Property, ch. II. 37 2 Blk. Comm. 59 ; Co. Litt. la. 88 2 Comm. 59. 3» See, in general, Laws of Eng. vol. 24, § 280; Littleton, Tenures, bk. II; 2 Blk. Comm. 60 et seq. *o 2 Blk. Comm. 62. 4i P. & M. Hist. Eng. Law, I, 230; Dig. Hist. Real Prop. (4th Ed.) 39, 61 n, 135 ; 2 Blk. Comm. 62 ; Co. Litt. 103. As a system of military organization, this tenure had but a short existence. P. & M. I, 231. 42 From Latin serviens. See P. & M. I, 262. 48 ANGLO-SAXON AND FEUDAL LAND LAW (Ch. 4 ler. 43 Tenancy by petty serjeanty was a form of socage tenure, and those who , held by this tenure were bound to do acts of the same nature as in the case of grand serjeanties, although the duties were not connected with the king's person or his palace. Instances of these services were to carry his letters in a certain district, or to provide a given number of arrows or other military supplies each year. 44 Most of the lands owned by the church were helH in "frankalmoigne," or free alms. The only services connected with this tenure were of a spiritual kind, such as prayers for the soul of the donor. 45 Every freehold tenure which was not in chivalry or in frankalmoin came to be classed as tenure in socage. 46 From tenants in socage no military service was due, 47 but the service seems to have been either a rent service, 48 or the tenant performed some definite agricultural service for his lord. 48 It was essential, however, that the services to be ren- dered should be definite and certain. 50 Service either in rent money or in labor does not, however, seem to have been a necessary incident of tenure in socage, since Littleton says that one who held by fealty alone, 61 although no rent was paid, was a tenant in socage. 52 Unfree Tenure The preceding forms of tenure were known as "free tenure" ; that is, they were tenures of freemen, and tenancies of "freehold." 63 The greater part of the land was, however, actually cultivated by men who held by unfree tenure. 54 The technical distinction between free and unfree tenure was that the common-law courts protected free tenure, 4s Litt. Tenures, §§ 153-158 ; Co. Litt. 105b ; 2 Blk. Comm. 73 ; P. & M. Hist Eng. Law, I, 262 ; Dig. Hist Real Prop. (4th Ed.) 39. ** Litt. Tenures, §§ 159-161; Co. Litt 108a; 2 Blk. Comm. 74, 81, 82; P. & M. Hist v Eug. Law, I, 262 ; Dig. Hist. Real Prop. (4th Ed.) 49. 46 Litt. Tenures, §§ 133-142; Co. Litt. 93b; 2 Blk. Comm. 101; P. & M. Hist. Eng. Law, I, 218, 240; Dig. Hist. Real Prop. (4th Ed.) 3a 4« Litt § 117. 47 Litt §§ 120, 121. 48 Litt § 117. 48 Litt. § 119; Co. Litt. 85a; 2 Blk. Comm. 78; P. & M. Hist Eng. Law, I, 271 ; Dig. Hist. Real Prop. (4th Ed.) 46. 6 Litt §§ 117-120. 6i As to fealty, see infra, Incidents of Tenure, note 66. 62 Litt. §§ 118, 131 ; 2 Blk. Comm. 80. "The term 'soc' is connected orig- inally with the word 'seek' ; that is, the socman must seek his lord's 'soke' or jurisdiction." In other words, he must seek his lord's court for certain remedies. "He is, therefore, dependent upon his lord. Socmen appear in Domesday in the Danish districts. Often they were bound to perform agri- cultural service and this no doubt led both Bracton and Littleton to the er- roneous belief that the word 'socage' was connected with the French soc, a ploughshare." Holds. Hist. Eng. Law, III, 45 ; Vinogradoff, Villeinage, 196. 63 Laws of England, vol. 24, § 289. »4 Holds. Hist. Eng. Law, III, 165. § 21) TENUEB 49 but did not protect unfree tenure, or, in other words, the ancient ac- tions, both proprietory and possessory, were available only for "free- holders." B0 The social distinction, speaking broadly, was. that, as a rule, ,unf ree tenants comprised the humblest classes, and were known as villeins. 86 The service distinction was that a free tenant paid rent, or rent and some labor; the service or duties of each tenant being individual, and different from another free tenant. Unfree tenants, on the other hand, consisted of groups of laborers, every man hold- ing, working, and paying exactly as his fellows. 57 While the partic- ular form of tenure was often connected with civil or social status, yet it was not necessarily so. A man might be, for example, a free- man, yet hold by a villein tenure, 08 or he might be a villein and yet hold by a free tenure. 69 The great mass of unfree tenants were, how- ever, villeins. In later times, however, tenure in villeinage became so thoroughly established by the custom of the manor that it was protected as a freehold, and became the copyhold tenure so well' known in England at the present time. 60 In further illustration of the fact that the form of tenure did not necessarily denote status or rank, it is Holds. Hist Eng. Law, III, 167; Laws of England, vol. 24, § 289. The tenant In villeinage had originally only such protection as he could obtain in his lord's court, the manorial court. This, however, gave him no protec- tion against the lord. Ultimately the custom of the manor confirmed him in his holding, and the king's courts allowed an action of trespass against the lord. P. & M. I. 342, 576; Digby, Hist Law of Real Prop. (5th Ed.) 291; Laws of Eng. vol. 24, § 289. se From the Latin villani (villa, a farm house). They were unfree peasants, or serfs, with reference to their lords, but free with reference to all other men. At a later period,, it was a general term applied to unfree tenants as a class. The villeins of the Norman period were not slaves, however. It is true that, as a class, they were irremovable cultivators of the soil ; but they could renounce their holdings and take refuge in 'a town, and there, if un- claimed for a year, could obtain the full rights of freemen. They could also obtain manumission by the intervention of the church. Stubbs, Const. Hist, of - Eng., passim. In the Saxon days, however, slavery was common in England; but Saxon slaves were more like agricultural serfs than the type of slaves known to the Komans.' Kemble, writing in' 1848, and speaking of the condi- tion of the slave in Saxon times, says : "It seems doubtful whether the labor of the serf was practically more severe, or the remuneration much less, than that of an agricultural laborer in this country, at this day." Kemble, Hist, of the Saxons, I, 214. Although the status of the Norman villein was not as debased as that of the Saxon slave, yet to all practical purposes he was the successor of the earlier serf. Serfdom and villeinage both died out gradually. 6T Vinogradoff, Villeinage, 334, 335. 5s p. & M. Hist. Eng. Law, I, 337; Dig. Hist. Real Prop. (4th Ed.) 51; 2 Blk. Comm. 90; Co. Litt. 116a. 5» Holds. Hist. Eng. Law, II, 209. eop. & M. Hist. Eng. Law, I, 351; Dig. Hist. Real Prop. (4th Ed.) 151; 2 Blk. Comm. 90; Co. Litt. 57b. Bued.Real Peop. — 4 50 ANGLO-SAXON AND FEUDAL LAND LAW (Ch. 4 was often the case that a man held land by a number of different ten- ures; for instance, one parcel by knight-service and another parcel by socage. 81 As time went on, the various kinds of services arising from tenure came to be regarded as due from the land, ^nd not from the person holding the land. Thus, so many acres were bound to fur- nish one knight, or owed certain work to the lord. In other words, tenure took on a real, rather than a personal, character. 62 A further development occurred when the various services were commuted for money payments, called "scutage." 83 These finally took the form of a rent. 64 In later times socage tenures gained the ascendancy, and military tenures were abolished. 65 Incidents of Tenure The personal relation between a lord and his tenant who held by knight's service was created by fealty and homage. By fealty was meant the obligation taken by a tenant, by special oath, to be faithful to his lord. 66 Homage was a solemn public ceremony by which a man acknowledged that he was the man, or vassal, of his lord, where- by he became entitled to his lord's protection and warranty. 67 Hom- age, it is said, "makes the tenant," while fealty is an acknowledgment of the service due. 68 Homage was not required in socage tenure, al- though the tenant was under the obligation of fealty. 69 There were, moreover, certain incidents, connected with military and with socage tenure, which constituted their chief importance, and continued to exist at a time when the services due on account of the tenure had fallen into disuse or had become unimportant. These incidents were aid, relief, escheat, wardship, and marriage. Aids were ransoms, or sums of money, which the tenant was bound to pay to secure the lord's release from prison, to help him knight his eldest son, and to provide «i P. & M. Hist. Eng. Law, I, 276. e2 p. & M. Hist. Eng. Law, I, 235. es Or the old French escuage. From the Latin scutum, a shield. Originally the fine levied upon a tenant of a knight's fee in lieu of the military service due. e* P. & M. Hist. Eng. Law, I, 245; Dig. Hist Eeal Prop. (4th Ed.) 129; 2 Blk. Comm. 74. «5 See infra. ee p. & M. Hist. Eng. Law, I, 227; Co. Litt. 67b. 67 Co. Litt. 64a; Bracton, f. 80; Litt. § 85. 68 Holds. Hist Eng. Law, III, 48; Year Books, 21 and 22 Edw. I (R. S.) 240. A tenant who held land of different lords could perform unconditional homage and swear fealty only to one lord. Such lord was known as the tenant's liege lord, and was usually the lord from whom the most ancient feoffment came. P. & M. Hist. Eng. Law, I, 279; Holds. Hist. Eng. Law, III, 48. 69 P. & M. Hist Eng. Law, I, 286. § 21) TENTJKE 51 a marriage portion for his eldest daughter. 70 A relief was a sum which an heir must pay the lord on succeeding to the inheritance. 71 In the case of socage tenements, this sum was fixed at one year's rent. 72 When an heir holding by knight's service was under age, the lord possessed the 'right of wardship, and under this right he had the custody of the infant's person and of his lands. The latter was a source of no small profit in the case of rich wards, because the lord was not required to account for the rents and profits of the estate. 7 * To wardship was added the power to dispose of the ward in marriage, or at least, to propose a marriage for the ward. If the ward refused the marriage, the guardian could claim a fine, as he could, also, if the ward married without his consent. 74 In socage, tenure, the lord was not entitled to the incidents of ward- ship and marriage. 75 The wardship of an infant heir who held in socage went to his nearest relative to whom the inheritance could not descend, and the guardian was accountable to the ward for the prof- its. 76 This guardianship in socage continued until the ward was four- teen years old. 77 Tenure in petty serjeanty, which was in effect a socage tenure, likewise did nof carry with it the rights of wardship and marriage. 78 In case a tenant had no heirs, or if the tenant became a felon, the land escheated to the lord. It was also liable to forfeiture to the king for treason. 79 Manors It has already been stated that the village community of Anglo- Saxon days developed into the manor. 80 One of the incidents of feu- dalism was the right of jurisdiction in civil matters that the lord had over his tenants. 81 In some instances, by special grant from the king, ro p. & M. Hist. Eng. Law, I, 330; Dig. Hist. Real Prop. (4th Ed.) 41, 48, 129; 2 BIk. Comm. 63, 87. 'i Litt. §§ 112, 113. The relief for a knight's fee was 100 shillings. P. & M. Hist Eng. Law, I, 289. 72 P. & M. Hist. Eng. Law, I, 288; Dig. Hist. Real Prop. (4th Ed.) 40, 48, 80, 120 ; 2 BIk. Comm. 65, 87 ; Co. Litt. 76a, 83a. 73 P. & M. Hist. Eng. Law, I, 299; Dig.- Hist. Real Prop. (4th Ed.) 41, 86, 136; 2 BIk. Comm. 67. 7* P. & M. Hist. Eng. Law, I, 299; Dig. Hist Real Prop. 41, 90, 123; 2 BIk. Comm. 70. 7 up. & M. Hist. Eng. Law, I, 275; 2 BIk. Comm. 80, 88 i Dig. Hist. Real Prop. (4th Ed.) 48. 7 6 p. & M. Hist Eng. Law, I, 303; Dig. Hist. Real Prop. (4th Ed.) 48; 2 BIk. Comm. 87. 7 7 See Litt. § 123. 78 Laws of Eng. vol. 24, § 283. 7 9 P. & M. Hist. Eng. Law, I, 332; P. & M. Hist. Eng. Law, II, 22, 464, 498; Dig. Hist. Real Prop. (4th Ed.) 43, 61, 91, 422; 2 BIk. Comm. 72, 89. so Supra. 81 P- & M. Hist. Eng. Law, I, 20, 21, 558. I 52 ANGLO-SAXON AND FEUDAL LAND LAW (Ch. 4 of by custom, the lord had criminal jurisdiction also. A great estate might have connected with it a number of free tenants, also unfree tenants, or villeins, likewise lands held by the lord himself, known as demesne lands. 82 Over these lands and tenants the lord exercised jurisdiction. Such an estate was called a manor, and the lord's court was known as the manorial court. 83 Subinfeudation — Statute of Quia Bmptores At a very early date in English law, a tenant who held lands in fee simple 8 * could alienate all his lands, and his grantee~would thus be- come tenant to the original lord, in place of the grantor. 85 By alienat- ing, however, a part (not the whole) of his lands, he could make the alienee his own tenant; that is, the grantor, since he could not re- quire his lord to accept a division of the service due him, still re- mained the tenant of the original (or superior) lord, although the gran- tor became the lord (mesne, or intermediate lord) of the person to whom he had granted a part of his lands. 86 The tenant thus created could do the same thing, as likewise, in turn, each successive tenant. 87 This gave rise to a series of sub-feuds; the process being known as subinfeudation. The result was that the feudal rights of the superior lord were diminished. He lost his rights of escheat, marriage, and wardship in the land thus aliened. 88 Due to the' growing practice of subinfeudation, much opposition was created against the custom, 89 finally culminating in the famous statute of quia emptores. 90 This' 82 A tenant who held directly from the crown t was known as a tenant In capite. Co. Litt. lOSa. 83 p. & M. Hist. Eng. Law, I, 584; Laws of Eng. vol. 24, § 285. When vil- lein tenure became in time copyhold tenure, there were two courts, one for the freeholders, known as the court baron, another for the copyholders, known as the customary court. Dig. Hist. Real Prop. (5th Ed.) 55. si See Estates, infra. ' so Co. Litt. 43a; Digby, Hist. Real Prop. (5th Ed.) 157; P. & M. Hist. Eng. Law, I, 310. ss Co. Litt. 43a; Hallam, Mid. Ages, ch. II, pt 2; Dig. Hist. Real. Prop., supra. ' s' P. & M. Hist. Eng. Law, I, 295, giving instance of eight successive subin- feudations. ss p. & M. Hist. Eng. Law, I, 311. so This is seen even in Magna Charta (1217) c. 39, where a freeman was forbidden to sell more of his land than would leave a residue sufficient for the service due the lord of the fee. »o Stat. (1290) 18 Edw. I, c. 1. The statute, framed in the law Latin of ' the times, takes its name from its introductory words: "Quia emptores ter- rarum * * * de foedis magnatum et aliorum * * * quibus libere ten- entes eorundem magnatum et aliorum terras vendiderunt, tenenda in feodo sibi et heredibus suis de feoffatoribus suis et nonde capitalibus dominis foedorum, per quod iidem capitales domini escaetas, maritagia, et custodia terrarum • * • sapius amiserunt," etc. The translation is as follows: § 21) TENUBB 53 I statute prohibited subinfeudation, and enacted that the grantee should hold immediately of the superior lord and not of the grantor. After this statute a conveyance passed all the grantor's interest to the gran- tee, and the grantor dropped out of the feudal chain between the tenant in possession of the land and the lord paramount, and had no further connection with the land granted. No new tenure in fee could be created. 81 The statute, however, expressly provided that it should extend "only to lands holden in fee simple"; 92 consequently an es- tate for life or in tail can be granted, under the statute, to be held of the grantor. 93 While the statute put an end to the subinfeudation of estates in fee simple, it established, on the other hand, the fight of free tenants to alienate their lands. It thus became one of the period points in the history of English law. 9 * The principles of this statute have, as a rule, to the extent that tenure has here existed, 96 been the law of this country, "as well during its colonial condition as after it became an independent state." * 6 In a few of our states, however, due either to the form of the original colonial grant, or to the theory that no tenures exist, it is said that the statute of quia emptores is not in force. 97 Whereas purchasers of lands of the feuds of great men and other lords * * * to whom the free tenants of such great men and others have sold their lands, to be holden in fee (to themselves and to their heirs) of their feoffors and not of the chief lords of the fees, whereby the same chief lords have too often lost their escheats, marriages, and wardships of lands, etc. »i Gray, Perp. 12, 16, 17, 18; Dig. Hist. Real Prop. (4th Ed.) 232; Van Rensselaer v. Dennison, 35 N. Y. 393; Van Rensselaer v. Hays, 19 N. Y. 68, 75, 75 Am. Dec. 278; Ingersoll v. Sergeant, 1 Whart. (Pa.) 337. Cf. Wallace v. Harmstad, 44 Pa. 492. The charter of North Carolina permitted subin- feudation. Hopkins, Real Prop. ch. II, note 25. »2 Chapter 3. "In feodo simpliciter tantum" is the language of the statute. 88 Litt. § 214 ; Laws of Eng. vol. 24, § 287. • 84 For a review of the effects of this statute, see Van Rensselaer v. Hays, 19 N. Y. 68, 75 Am. Dec. 278 (1859). ss See, infra, Tenure in the United States. se Denio, J., in Van Rensselaer v. Hays, 19 N. Y. 68, 75 Am. Dec. 278. See Gray, Perp. 16. a? Pennyslvania. — The charter of King Charles II, In granting the prov- ince of Pennsylvania to William Penn and his heirs, gave it to be held in free and common socage and by fealty only, for all. services. The charter also provided that purchasers from William Penn, his heirs or assigns, should hold either in fee simple, fee tail, or otherwise, as to the said William Penn, his heirs or assigns, should seem expedient, the statute of quia emptores in anywise notwithstanding. Ingersoll v. Sergeant, 1 Whart (Pa.) 337 (1836). See, ip general, Gray, Perp. §§ 24-28. New Yoek. — It is said that the statute of quia emptores was not in force within the colony of New York prior to the Revolution. A number of colonial grants was made (the patent to Killian Van Rensselaer being among the num- ber) by which manors were created within the province; and the patentees 54 ANGLO-SAXON AND FEUDAL LAND LAW (Ch. 4 Abolition of the Feudal System We have seenhow the payment of a rent, or scutage," became, in time, substituted for knight-service. 98 It was not, however, until the middle of the seventeenth century that the special incidents of tenure by knight-service were formally terminated in England. The statute of 1660 1 provided that wardships, marriages, fines for alienation, and homage should be abolished, and that lands held in tenure by knight- service should henceforth be held by free and common socage. 2 The statute further provided that all future grants of hereditaments should be held in socage tenure. 3 The other feudal tenures of frankalmoin and grand serjeanty gradually lost their importance, and at the pres- ent time, in England, all lands of inheritance are' held either by socage or copyhold tenure. 4 Tenure in the United States Our ancestors, in emigrating to this country, brought with them, it is said, such parts of the common law and such of the English stat- utes as were of a general nature and applicable to their situation. The law as to holding lands and transmitting the title thereto from one subject to another must have been a matter of the first importance in the colonies. 8 The early lands were holden under grants from the crown, 7 and, as the king was not within the statute quia emptores, a certain tenure, which, after the act of 12 Car. II abolishing military tenures, must have been that of free and common socage, was created were authorized to grant lands within 1 those manors, to be holden of them and their heirs as immediate lords, to whom, by the feudal tenures thus created, fealty was due. These manorial tenures could not have been created if the statute of quia emptores had extended to the province. Ruggles, C. J., in De Peyster v. Michael, 6 N. Y. 467, 57 Am. Dec. 470. 9 8 Supra. »» See P. & M. Hist. Eng. Law, I, 231. i St. 12 Car. if, c. 24 ; 2 Blk. Comm. 76. 2 12 Car. II, c. 24, §§ 1, 2. s Id. § 4. * P. & M. Hist, of Eng. Law, I, 330; Dig. Hist. Real Prop. (4th Ed.) 151, 392; 2 Blk. Comm. 90; Laws of Eng. vol. 24, pp. 147, 148. 6 1 Kent, Comm. 473 ; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178. « Denio, J., in Van Rensselaer v. Hays, 19 N. Y. 68, 75 Am. Dec. 278. ? The early colonies of this country were either royal or proprietary. In case of a royal colony, the right of soil, together with the power to convey the same, remained in the sovereign. Montgomery v. Doe, 13 Smedes & M. (Miss.) 161. See, also, In re Proprietary Claims, 10 Haz. Reg. (Pa.) 113. In a proprietary colony, the titje was vested in the proprietors, and could be disposed of by them. Montgomery v. Doe, 13 Smedes & M. (Miss.) 161; Conn v. Penn, Fed. Cas. No. 3,104, Pet. C. C. 496; Countz v. Geiger, 1 Call (Va.) 190. Questions connected with these early grants, while interesting historically, have but little, if any, importance, however, at the present time, except in rare instances. § 22) seisin 55 as between the king, and his grantee. 8 In a number of our states, however, all tenures have been abolished, either by statute or by force of judicial decisions. 9 Lands in such states are said to be allodial, 10 in distinction from a notion of feudal tenure implying some rights, at least, of a superior. 11 Allodial lands are, consequently, said to be held in absolute ownership, 12 the same as personal property. 13 Such forms of tenure as exist between landlord and tenant, or between the tenant for life and the reversioner or remainderman, will be considered in connection with those special topics. 14 SEISIN 22. Seisin is the possession of land by one who claims a freehold interest therein. It may be: (a) Seisin in deed (or fact) ; or (b) Seisin in law. s Van Rensselaer v. Hays, 19 N. Y. 68, 75 Am. Dec. 278 ; Chisholm v. Georgia, 2 Dall. (U. S.) 419, 1 L. Ed. 440; Cornell v. Lamb, 2 Cow. (N. Y.) 652; Combs v. Jackson, 2 Wend. (N. T.) 153, 19 Am. Dec. 568 ; In re Desllver's Estate, 5 Rawle (Pa.) Ill, 28 Am. Dec. 645. Cf. Martin v. Waddell, 16 Pet. (TJ. S.) 367, 10 L. Ed. 997; Johnson v. Mcintosh, 8 Wheat. (U. S.) 543, 5 L. Ed. 681. The tenure prescribed in all the early colonial charters or patents of this country was free and common socage, being "according to the free tenure of lands in East Greenwich in the county of Kent, in England, and not in capite or by knight's service." See Bradford's Colony Laws ; Story, Const. Law, § 172; 3 Kent, Comm. 571, note. » See Gray, Perp. §§ 13, 24 ; Matthews v. Ward, 10 Gill & J. (Md.) 443, 451 ; 1 Stim. Am. St. Law, §§ 400, 401, 1100-1103. 10 The term "allodial" is derived from the Anglo-Saxon alod (al, all ; od, ownership, property), meaning all ownership, all one's own. It corresponds to the folkland of the Anglo-Saxon period. See Vinogradoff, E. H. R. VIII, 11 ; Holds. Hist. Eng. Law, II, 58. Louisiana. — The feudal law, with its usages, never had a place in the ter- ritory while governed by Spain, and the common-law jurisprudence of real property is inapplicable to land titles in this state. In Louisiana all titles to land are allodial. Xiques v. Bujac, 7 La. Ann. 498. n That the notion of feudum in contrast with allodium does not imply, however, any inferiority of ownership, see Effect of Tenure on Real Property Law, 25 L. Q. R. 178. 12 That, speaking strictly, no private property can be held in absolute own- ership, see chapter V, § 23, post. 13 McLean, J., in Mayor, etc., of New Orleans v. United States, 10 Pet. (U. S.) 716, 9 L. Ed. 573; Cook v. Hammond, 4 Mason, 467, 478, Fed. Cas. No. 3,159; Minneapolis Mill Co. v. Tiffany, 22 Minn. 463. Cf. Taylor v. Porter, 4 Hill (N. Y.) 140, 40 Am. Dec. 274; Commonwealth v. Tewksbury, 11 Mete. (Mass.) 55; Bancroft v. City of Cambridge, 126 Mass. 438. i* See post, chapters VI and VII. 56 ANGLO-SAXON AND FEUDAL LAND LAW (Ctl. 4 Seisin 1 " meant, • originally, any kind of possession; that is, either of lands or of chattels. 16 Later, it came to mean a special kind of possession, namely, a possession of land, or such a status with refer- ence to the possession of land, as resulted from the feudal investiture known as "livery of seisin." 17 In this later sense, it was applied ex- clusively to freehold interests in land, and was distinguished from mere possession. 18 A freeholder was "seised" of his land, while a lessee for a term of years was not "seised," but had "possession." 10 Under the common-law theory of lands, there must always be some one in whom is the seisin. Seisin may be either seisin in deed (other- wise called seisin in fact), or seisin in law. 20 This distinction applies both to corporeal and incorporeal hereditaments. 21 Seisin in deed is the actual possession of the immediate freehold, "not, as sometimes mistakenly said, the actual possession of the land, since that may be in possession of a tenant for a term of years." " Seisin in law ap- plies to an heir at law of an ancestor who dies seised, and refers to the time intervening before the heir's entry in case the possession is vacant at the time. 23 When the heir enters, he is seised in fact, or in deed. 24 If, however, upon the death of the ancestor, a tenant is in possession, the heir is at once seised in deed, since the possession of the tenant is the possession of the heir. 2B Modern applications of the theory of seisin are made in connection with the estates of dower and curtesy, as will later appear. is From seize. For the history of seisin In English law, see, in general, P. & M. Hist. Eng. Law, II, 29 et seq. ; The Mystery of Seisin, 2 L. Q. R. 481 ; Seisin, 12 L. Q. R. 239. is That it was customary in early times to speak of the seisin of chattels, see Maitland, Seisin of Chattels, 1 L. Q. R. 324. if See, in general, P. & M. Hist. Eng. Law, II, 29 et seq. is See Litt. § 324, where he shows the proper use of the terms "seisin" and "possession." The distinction was coming into use about the time Littleton wrote. Holds. Hist Eng. Law, II, 492. See, also, Van Rensselaer v. Poucher, 5 Denio (N. Y.) 35 ; Sneed, J., in Upchurch v. Anderson, 3 Baxt (Tenn.) 411 ; Peters, C. J., in Ford v. Garner's Adm'r, 49 Ala. 603; Towle v. Ayer 8 N H. 57. i» Litt. § 324. 20 Co. Litt. 266b. See Jenkins v. Fahey, 73 N. Y. 362; De Hart v. Dean 2 MacArthur (D. C.) 63. 2i Challis, Real Prop. (3d Ed.) 233. 22 2 Min. Inst. 122, 123. 23 Laws of Eng. vol. 24, § 406. Likewise, a devisee, If the possession is vacant, has a seisin at law before entry. Co. Litt. Ilia. 2*1 Wash. Real Prop. 36. "Lyell v. Kennedy (1889) 14 App. Cas. 437, 456; Co. Litt 15a, 243a. PART II RIGHTS IN REAL PROPERTY (A) OWNERSHIP CHAPTER V ESTATES IN FEE SIMPLE 23. Ownership Denned. 24. Estate Defined. 25. Classification of Estates. 26. Quantity of Estates. 27. Estates in Fee Simple. 28. Creation. 29. Eight of User. 30. Alienation. OWNERSHIP DEFINED 23. Ownership is the right by which a thing belongs to an indi- vidual to the exclusion of all other individuals. It is do- minion over a thing. The Roman law term for ownership is "dominium," and was applied by- the Roman jurists to "corporeal things" (res corpo- rales), and it has been said that it "denotes a right, indefinite in point of user, unrestricted in power of disposition, and unlimited in point of duration, over a determinate thing." x Ownership has also been defined as the right by which, a thing belongs to an i Austin's Jurisprudence, 817. Strictly speaking, there can be no absolute ownership of private property. Each Individual owner holds it subject to the law of the land, including the right of eminent domain. ,It is also pertinent to add that there is no technical synonym in English law for the Roman law term "dominium." (57) 58 ESTATES UN FEE SIMPLE ' (Ch. 5 individual to the exclusion of all other persons,' one of its chief incidents being the right to sell or to dispose of the thing owned. 3 It has already been observed in a previous chapter * that owner- ship and property are synonymous, each term signifying a bundle or collection of rights. The term "owner," as applied to real property, is often under- stood to mean one who owns in fee simple. 5 There is, however, no fixed legal meaning to the word, and it may be used to indicate one having an interest in real property less than a fee 8 — one, in fact, who has any right, in law or in equity, which can be deemed an estate. 7 In the land law of the Anglo-Saxons there is practically no doc- trine of ownership or possession. At that period, the land was for the most part cultivated according to a customary routine. 8 In fact, it was not until the time of Edward I " that the land law became somewhat distinctly recognized as the law of property. 10 It was not until the feudal system 1X began to weaken that the notion of ownership was developed. 12 It came into use gradually, but was finally established. The doctrine, together with its at- tendant right of alienation was derived by the early English writers from Roman law sources. 18 2 Converse v. Kellogg, 7 Barb. (N. Y.) 590, 597. s Sherman v. Elder, 24 N. Y. 381, 384. For other definitions of ownership, see 6 Words & Ph. p. 5134 et seq. * Chapter I, subdivision "Ownership and Property." o St Paul & S. C. R. Co. v. Matthews, 16 Minn. 341 (Gil. 303) ; Page v. W. W. Chase Co., 145 Cal. 578, 583, 79 Pac. 278 ; Bowen v. John, 201 111. 292, 295, 66 N. E. 357 ; Coombs v. People, 198 111. 586, 588, 64 N. E. 1Q56. s Higgins v. San Diego, 131 Cal. 294, 308, 63 Pac. 470 ; Larimer County Ditch Co. v. Zimmermann, 4 Colo. App. 78, 34 Pac. 1111, 1112. i Mixon v. Stanley, 100 Ga. 372, 377, 28 S. E. 440. s Holds. Hist. Eng. Law, II, 66. » A. D. 1272-1307. io Holds. Hist Eng. Law, II, 292. ii See the preceding chapter. 12 The earliest known use of the word "owner" Is in the year 1340 ; and the earliest known use of the word "ownership" dates from the year 1583. P. & M. Hist Eng. Law, II, 151, note 2 ; Holds. Hist Eng. Law, II, 69. is See Bracton, ff. 45b, 46b. 25) CLASSIFICATION OF ESTATES 59 i ESTATE DEFINED 24. The quantity, degree, nature, or extent of interest which a per- son has in real property is called an "estate." We have already seen that the word "estate" is used in the sense of property, either real or personal, 14 and that the term "real es- tate" is frequently used as a synonym for "real property." This, however, is the broad and popular meaning of the word. In its technical meaning, the word "estate," or "state," 1B expresses a person's position with regard to the degree, quantity, nature, or extent of interest he has in land, 16 and, particularly, with ref- erence to quantity, whether a fee simple, a fee tail, for life, for a term of years or otherwise. 17 In Anglo-Saxon law there is no doctrine of estates, 18 but in Norman times the word came to have its technical meaning. 19 In its technical sense, therefore, the term "estate" is used only in connection with real property. There can properly be no estates in personalty. A person's interest in land may be, however, as absolute as the ownership of person- alty, or it may be for a limited time, or qualified by conditions. CLASSIFICATION OF ESTATES 25. Estates are usually classified : . (a) As to their quantity ; (b) As to their quality; (c) As to their legal or equitable character; (d) As to the time of their enjoyment; (e) As to the number of their owners. 1* The broad use of the word "estate" as meaning the aggregate of one's property as an entity, as, for example, "a decedent's estate," is familiar. And see Appleton, C. J., in Deering v. Tucker, 55 Me. 284. is From Latin status. i« 2 Blk. Comm. 103 ; Co. Litt 345a ; Clif t v. White, 12 N. Y. 519, 527 ; Mess- more v. Williamson, 189 Pa. 73, 78, 41 Atl. 1110, 69 Am. St Rep. 791 ; Bates v. Sparrell, 10 Mass. 323. it "State or estate signifieth such Inheritance, freehold, term for years, tenancy by statute merchant, staple, or the like, as any man hath in lands or tenements." Co. Litt. 345a. See 2 Blk. Comm. 160. is Holds. Hist Eng. Law, II, 67: i» The term is used frequently In the Year Books of Edward I. 60 ESTATES IN FEE SIMPLE (Ch. 5 QUANTITY OF ESTATES 26. The quantity of an estate is measured by its duration and ex- tent. As to quantity, estates are freeholds or less than freeholds. (a) Estates of freehold consist of two classes : (1) Estates of inheritance, which may be either: I. Estates in fee simple, or II. Estates in fee tail. (2) Estates not of inheritance, or life estates. (b) Estates less than freehold comprise: 1. Estates for years. 2. Estates at will. 3. Estates from year to year. 4. Estates at sufferance. As stated in the text above, estates as to their quantity, or dura- tion, are classed either as estates of freehold or estates less than freehold. 20 An estate of freehold 21 is defined by Britton 22 to be "the possession of the soil by a freeman." 23 Freeholds, or free tenements, were the only kind of property in land which was fully recognized and protected by the early common law. 2 * Freehold estates are either estates of inheritance or estates not of inheritance. 25 Estates of inheritance are either in fee simple, which are inheritable by heirs generally, or in fee tail, which are inherit- able only by particular heirs, exclusive of others, as the heirs of the donee's body. 26 Freehold estates not of inheritance exist for some definite period of uncertain duration, as where land is given to one to hold for his life, or the' life of another, or until some particular event shall happen. 27 Estates less than freehold arise where one gives land to another to hold for a certain period or 202 Bit. Comm. 104 ; New Orleans, J. & G. N. R. Co. v. Hemphill, 35 Miss. 17; Crawl v. Harrington, 33 Neb. 107, 49 N. W. 1118. 2i Called "liberum tenementum" in the ancient Latin pleadings. 22 Chapter 32. 23 And see 2 Blk. Comm. 104. 24 Williams, Real Prop. (17th Internat. Ed.) 21. 2 2 Blk. Comm. 104; Crawl v. Harrington, 33 Neb. 107, 112, 49 N. W. 1118. 2« 2 Blk. Comm. 104, 110; 4 Kent, Comm. 4; Crawl v. Harrington, 33 Neb. 107, 112, 49 N. W. 1118. 27 2 Blk. Comm. 104; Hanna, J., in Bradford v. State, 15 Ind. 353; People ex rel. Godwin v. Board of Education of Grand Rapids, 38 Mich. 95; Wyatt v. Irrigation Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St Rep. 280. For ques- tions of Ireehold, as determining the jurisdiction of a court, see Wilson v. § 27) ESTATES IN FEE SIMPLE 61 term, or at the donor's will only, or where one occupies another's land on sufferance. 28 In some states long terms of years are by statute declared to be freeholds, 28 and in others, estates for the life of another 80 are declared to be estates of inheritance. 81 Estates less than freehold are chattel interests in lands, and go to the personal representa- tive of the deceased owner, unless he has otherwise disposed of them by will. ESTATES IN FEE SIMPLE 27. A fee simple is a freehold estate in perpetuity. It is an estate limited to a man and his heirs forever. It is the largest possible estate in land. A man cannot have a greater estate of inheritance than fee simple. 32 The word "fee" is not used here in its original meaning of a "feud" or "fee," that is, land held of a superior, as distin- guished from allodial land, but it denotes an estate of inheritance, an estate that descends to a man's heirs. 33 The word "simple" means that the land descends to one's heirs generally, without being conditioned or restricted to any particular class of heirs. 8 * In other words, a tenant in fee holds the lands for himself and for his heirs, absolutely and simply. 36 A fee simple 8e is a freehold estate in perpetuity. 87 It may exist in incorporeal as well as in Dresser, 152 111. 387, 38 N. E. 888; Van Meter v. Thomas, 153 111. 65, 38 N. E. 1036 ; Hupp v. Hupp, 153 111. 490, 39 N. E. 124 ; Howe v. Warren, 154 111. 227, 40 N. E. 472 ; Moshier v. Reynolds, 155 111. 72, 39 N. E. 621. 28 Bract, ff. 26b, 27a, 207a; Litt. § 57; Co. Litt. 43b; 2 Blk. Comm. chs. VII-IX ; Williams, Real Prop. (17th Internat. Ed.) 70. 29 Stark v. Mansfield, 178 Mass. 76, 59 N. E. 643. And see 1 Stim. Am. St. Law, § 1310. so See Life Estates, post. ' si 1 Stim. Am. St. Law, § 1310. 82 Litt § 11; Bush v. Bush, 5 Del. Oh. 144; Brackett v. Ridlen, 54 Me. 426; Jecko v. Taussig, 45 Mo. 167. 33 Litt. § 1 ; Wright, Tenures, 148. s* Co. Litt. lb ; 2 Blk. Comm. 105 ; Haynes v. Bourn, 42 Vt. 686. 35 Stephen's Comm. (15th Ed.) vol. I, 145. 86 "Fee simple" means the same as "fee simple absolute," and generally "fee" alone is a sufficient designation. 2 Blk. Comm. 106 ; Co. Litt. lb ; Clark v. Baker, 14Cal. 612, 631, 76 Am. Dec. 449; Thompson, C. J., in Jackson ex dem. Hicks v. Van Zandt, 12 Johns. (N. Y.) 169. 37 Friedman v. Steiner, 107 111. 125 ; Jecko v. Taussig, 45 Mo. 167 ; 2 Blk. Comm. 106. An estate in fee simple may, however, be subject to some condi- tion or qualification which will put an end to it, in which case it is called a base or determinable fee. See post. 62 ESTATES IN FEE SIMPLE (Ch. 5 corporeal hereditaments. 88 A fee simple is, in theory, equal to absolute ownership, at least so far as there can be absolute owner- ship. Under the feudal system, however, no one except the sover- eign held a fee simple. Grants of land were made to tenants to hold "in demesne as of fee," but this was not the absolute fee simple of to-day. Under the feudal grant, an interest in the land still remained in the grantor or feudal lord, represented by his right to the feudal services due from the tenant. The fee simple might well be called our normal estate. It represents the whole ownership of the land. Out of the fee simple all other estates are carved. The powers incident to estates less than fee simple are in all cases less than those of this estate. In modern estates and conveyancing, the terms "fee," "fee simple," and "fee simple absolute," are substantially synonymous. 39 SAME— CREATION 28. To create a fee simple estate by deed, the word "heirs" must be used, unless — (a) The local statute makes this unnecessary, or (b) The owner of the fee conveys by a quitclaim deed. In case of a will, the intention of the testator governs, and, in absence of a contrary intention, a devise by the owner of a fee-simple estate passes the entire estate without techni- cal words of limitation. By statute, in many states, a fee simple is presumed to be intended, if not otherwise ex- pressed, when lands are devised. Creation by Deed Unless the statute otherwise provides, 40 in order to create an estate in fee simple by deed, it is the technical rule of the common law that the limitation, as it is called, must be to one "and his heirs";; otherwise, the grantee will take only a life estate. 41 No as 2 Blk. Comm. 106. In case of incorporeal hereditaments, the proper phrase was "seised as of fee." Id. so Jecko v. Taussig, 45 Mo. 167. *° See infra. « Adams v. Ross, 30 N. J. Law, 505, 82 Am. Dec. 237 ; Edwardsville R. Co. v. Sawyer, 92 111. 377; Stell v. Barham, 87 N. C. 62; Batchelor v. Whit- aker, 88 N. C. 350; Buff urn v. Hutchinson, 1 Allen (Mass.) 58; Jordan v. Mc- Clure, 85 Pa. 495 ; Arms v. Burt, 1 Vt 303, 18 Am. Dec. 680. Contra, Cole v. Lake Co., 54 N. H. 242. Heies and Assigns. — The words "heirs and assigns" are usually employed. This was necessary, originally, in order to give the grantee the power of § 28) CREATION 63 qther words will suffice, even though the meaning be the same and the intention clear.* 2 In granting a fee simple to a corporation sole, "successors" supplies the place of "heirs," and is the proper word to use, 43 but in the case of a corporation aggregate no words of limitation are necessary. 44 The technical words are not re- quired, however, in a strict quitclaim deed. 45 Thus, when one joint tenant or a coparcener 40 seised in fee simple releases his interest to his cotenant, no words of inheritance, as it is called, are neces- sary to 'pass a fee. 47 The rule is otherwise, however, in the case of a conveyance by a tenant in common " to a cotenant, 40 or where the reversion is released to the ^tenant for life. 60 In the alienation. P. & M. Hist. Eng. Law, II, 14. In modern times, however, the words "and assigns" give no added value to the estate. The power of aliena- tion exists without them. Milman v. Lane, [1901] 2 K. B. 745, C. A. Equitable Estates. — A distinction is made, however, in the necessary words of limitation in case of the grant of an equitable estate. See Equitable Estates, post And see FULLER v. MISSROON, 35 S. C. 314, 14 S. E. T14, Burdick Cas. Real Property. See, also,' North v. Philbrook, 34 Me. 532; Ewing v.. Shannahan, 113 Mo. 188, 20 S. W. 1065. *2 For instance, a life estate only was held to pass by the words "successors and assigns forever," Sedgwick v. Laflin, 10 Allen (Mass.) 430; "executors, administrators, and assigns," Clearwater v. Rose, 1 Blackf. (Ind.) 137; "and his generation so long as the waters of the Delaware run," Poster v. Joice, 3 Wash. C. O. 498, Fed. Cas. No. 4,974. But see Evans v. Brady, 79 Md. 142, 28 Atl. 1061 ; Engel v. Ayer, 85 Me. 448, 27 Atl. 352 ; Adams v. Ross, 30 N. J. Law, 505, 82 Am. Dec. 237. 43 Shaw, C. J., in Overseers of Poor of City of Boston v. Sears, 22 Pick. (Mass.) 126; Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985. As heirs take from the ancestor, so doth the successor from the predecessor. Co. Litt. 9b, 94b. ** Congregational Sqc. of Halifax v. Stark, 34 Vt. 243; Wilcox v. Wheeler, 47 N. H. 488. And see Beach v. Haynes, 12 Vt. 15 ; Wilkes-Barre v. Wyoming Historical & Geological Soc, 134 Pa. 616, 19 Atl. 809. Where land is settled upon or devised to a charity, it may happen that, when the corporation managing the charity comes to an end, and the charity itself becomes im- practicable, the land will return to the donor's heirs. Stanley v. Colt, 5 "" Wall. 119. And see 1 Bl. Comm. 484. Rutherford v. Greene's Heirs, 2 Wheat. 196, 4 L. Ed. 218, and Proprietors of Enfield v. Permit, 5 N. H. 280, 20 Am. Dec. 580, are often cited to the effect that technical words of limitation are not necessary to pass a fee in the case of legislative grants, but they do not support the proposition. Corporation Aggregate. — The word "successors" is not necessary, though usually inserted ; for, as the corporation never dies, s^uch estate is perpetual, or equivalent to a fee simple. Co. Litt. 9b, 94b. *» Since a quitclaim deed passes whatever interest the grantor himself has. See Deeds, post. 4« See post, Joint Ownership of Estates, chapter XII. *i Co. Litt. 9b ; Scott, J., in Rector v. Waugh, 17 Mo. 13, 28, 57 Am. Dec. 251. *8 See post, chapter XII. 49 Rector v. Waugh, 17 Mo. 13, 57 Am. Dec. 251. bo l Washb. Real Prop. (5th Ed.) 90. 64 ESTATES IN FEE SIMPLE (Ch. 5 case of a conveyance in which reference is made to another instru^ ment, if the necessary words of inheritance are used in the instru- ment referred to, their absence from the other will not prevent a fee simple passing. 61 When, however, a fee simple is intended to be conveyed, but adequate words are not employed, the deed may be reformed in equity, and made to express the intention of the parties. 52 This rule requiring the word "heirs" to be used has, in many states, been changed by statute, so that other expressions are adequate. to convey a fee simple; and in some states it is to be presumed that a fee simple was intended unless the contrary appears. 03 Creation by Will In order to create a fee simple estate by will, the word "heirs" is not required. In many states, there ,are express statutory pro- visions to the effect that a devise of lands shall be presumed to pass a fee simple, unless by express words, or manifest intent, it appears that a lesser estate .was intended. 64 However, without the aid of such statutes, even at common law, the rule requiring the word "heirs" in case of a conveyance by deed is relaxed in the case of limitations in wills, and the intention of the testator gov- erns, so that he can devise a fee simple without using the word "heirs," if the expression employed shows that a fee simple is intended, as, for example, a devise to one "forever," or "to one and his assigns forever," or to one "in fee simple." 6S That the gi Co. Litt. 9b ; Lemon v. Graham, 131 Pa. 447, 19 Atl. 48, 6 L. R. A. 663 ; Mercier v. Railway Co., 54 Mo. 506. But see Lytle v. Lytle, 10 Watts (Pa.) 259 ; Reaume v. Chambers, 22 Mo. 36 ; Garde v. Garde, 3 Dr. & War. 435. o? See Fetter, Eq. p. 314 ; Vickers v. Leigh, 104 N. C. 248, 10 S. E. 308. Cf . Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065 ; Def raunce v. Brooks, 8 Watts & S. (Pa.) 6T. 68 l stim. Am. St. Law, § 1474. Pennsylvania, New Jersey, Delaware, South Carolina, Florida, Ohio, and Wyoming have not dispensed with words of in- heritance in deeds. 1 Dembitz, Land Tit. 99. The latest statute should be consulted, however. England. — By the English Conveyancing Act of 1881 (44 & 45 Vict. c. 41) an estate in fee simple can be created by the word "heirs" or the words "in fee simple." Under this statute it is held, however, that the words "in fee" are not sufficient. Re Ethel's Contract, [1901] 1 Ch. '945. si 4 Kent, Comm. 8. >The local statutes should be consulted. See, also, 1 Stim. Am. St. Law, § 1474. England. — The law also, in England, is as stated in the text. See Wills Act, 1837 (7 Wm. IV & 1 Vict c. 26, § 28). 56 Litt. § 586; Coke, 1 Inst. 322b; 2 Blk. Comm. 108. And see the following cases: Ferguson v. Thomason, 87 Ky. 579, 9 S. W. 714; Lofton v. Murchison, 80 Ga. 391, 7 S. E. 322 ; Howze v. Barber, 29 S. C. 466, 7 S. E. 817 ; Webster's Trustee v. Webster (Ky.) 22 S. W. 920; Lockett v. Lockett, 94 Ky. 289, 22 S. W. 224; Mitchell v. Campbell, 94 Ky. 347, 22 S. W. 549; Thomson v. Peake, § 29) EIGHT OF USER 65 testator meant to give a fee simple may also be implied from a charge imposed on the devisee, because, as said, if he were required to pay out money, and received only a life estate, he might die before being reimbursed from the land. 60 If, however, the charge is imposed on the land, instead of on the devisee personally, such a presumption does not obtain. 57 A fee simple may also be pre- sumed from the nature of the land devised, if no other estate would be of any value to the devisee; for instance, a devise of wild lands, which would be of no value unless the timber could be cut, a tenant for life having no such right. 58 SAME— RIGHT OF USER 29. The owner of an estate in fee simple may, as a rule, use his land without any restrictions, provided he does not there- by cause injury to another. The owner of an estate in fee simple has, in general, an indefi- nite right of user of his land. He may exercise all kinds of acts of ownership, and may commit unlimited waste, such, for example, as opening and working mines, cutting timber, pulling down build- ings, or removing fixtures. 58 In fact, such acts are not technical "waste" at all, when done by an owner in fee simple. 60 In con- 38 S. C. 440, 17 S. E. 45, 725; Boutelle v. Bank, 17 R. I. 781, 24 Atl. 838; Campbell v. Carson, 12 Serg. & R. (Pa.) 54; In re Green's Estate, 140 Pa. 253, 21 Atl. 317; Armstrong v. Michener, 160 Pa. 21, 28 Atl. 447; Mills v. Franklin, 128 Ind. 444, 28 N. E. 60; Dilworth v. Gusky, 131 Pa. 343, 18 Atl. 899. In a devise it has been held that a fee simple passed by the words "all my right" or "property." Newkerk v. Newkerk, 2 Caines (N. Y.) 345; Jack- son ex dem. Pearson v. Housel, 17 Johns. (N. Y.) 281. Contra, Doe v. Allen, 8 Term. R. 497. "All my estate" (by one owning a fee simple), Godfrey v. Humphrey, 18 Pick. (Mass.) 537, 29 Am. Dec. 621. To A. "or his heirs," Wright v. Wright, 1 Ves. Sr. 409. To A. "forever," Heath v. Heath, 1 Brown, Ch. 147. And see BARNETT v. BARNETT, 117 Md. 265, 83 Atl. 160, Ann. Cas. 1913E, 1284, Burdick Cas. Real Property. s « Doe v. Richards, 3 Term R. 356; Jackson v. Merrill, 6 Johns. (N. Y.) 185, 5 Am. Dec. 213 ; Lithgow v. Kavenagh, 9 Mass. 161 ; Wait v. Belding, 24 Pick. (Mass.) 129; Blinston v. Warburton, 2 Kay & J. 400; Pickwell v. Spencer, L. R. 6 Exch. 190. 57 Jackson v. Bull, 10 Johns. (N. Y.) 148, 6 Am. Dec. 321; McLellan v. Turner, '15 Me. 436; Doe ex dem. Franklin v. Harter, 7 Blackf. (Ind.) 488; Funk v. Eggleston, 92 HI. 515, 34 Am. Rep. 136. And see Spraker v. Van Alstyne, 18 Wend. (N. Y.) 200. 68 Sargent v. Towne, 10 Mass. 303. »9 2 Blk. Comm. 282; A. G. v. Marlborough, 3 Madd. 498; Jervis v. Bruton, 2 Vern. 251. But see the Case of Mines, 1 Plow. 310, 336 ; Com. v. Tewksbury, 11 Mete. (Mass.) 55. eo See, however, Turner v. Wright, 2 De G., F. & J. 234, 246. Bokd.Real Pbop. — 5 66 ESTATES IN FEE SIMPLE (Ch. 5 nection, however, with other estates, such acts would amount to waste, and would, in consequence, be unlawful. While it .is true in a, general sense that the owner in fee simple may use his fend ,as he pleases, yet the maxim, "so use your own that you do not injure another," 61 applies to him as well as to the owners of other kinds of estates. His use of his land is not absolute. He has no right to maintain a nuisance upon his premises. 62 In case, more- over, the land is subject to restrictive covenants, 83 or to ease- ments, 6 * it must be used in conformity to the needs and require- ments of such incumbrances. SAME— ALIENATION 30. An estate in fee simple may be alienated either by a convey- ance inter vivos, or by a will. Such an estate may also be transferred by operation of law, as by ■ way of sale for debts or taxes, or when taken for public purposes under the power of eminent domain. Since the time of the statute of quia emptores, 66 the right of, an owner of aa estate in fee simple to alienate it has been an inherent incident of such an estate. At common law, estates in fee simple were not, however, devisable by will, 66 but since the statute of wills 67 the* owner of such an estate may dispose of it by will very much as he pleases. 68 An owner of land, however, although he holds it in fee simple, cannot create estates and forms of tenure unknown to the law, or which are prohibited by law. 69 Within this principle comes the rule against perpetuities, to be discussed hereafter, 70 which prevents the creation of estates to «i "Sic utere tuo ut alienum non laedas." «2 2 Jag. Torts, p. 748; 1 Wood, Nuis. (3d Ed.) 127; Bradford Corporation v. Pickles, [1895] A. C. 587, 598. «3 See post l 8* See chapter XVII, post. «5 A. D. 1290, 18 Edw. I. See ante. 66 By the custom of London, however, as also by the custom of other cities and boroughs, such estates were devisable before the statute of wills. See Litt. § 167 ; Co. Litt. Ilia. 67 A. D. 1540, 32 Hen. VIII, c. 1. 68 Under the statute of wills, tenants in socage could devise all their lands, but tenants by knight-service could devise only two-thirds of their holdings. The change of tenures by knight-service into tenures by socage resulted, in a right to'devise all lands held in fee simple. Co. Litt. 111b ; Laws of England, vol. 24, p. 168. The present English statute is known as the Wills Act of 1837 (7 Wm. IV & 1 Vict c. 26). so See Doebler's Appeal, 64 Pa. 9. to See chapter XVI, post § 30) ALIENATION 67 take effect, at a time too remote in the future. Moreover, an owner of land is not permitted to convey to others, and at the same time forbid them to dispose of it, for the law allows only very limited restraints to be imposed on alienation. 71 In some states also, there is a limitation oh the amount of land which a man can give by will for charitable purposes. 72 Furthermore, no one is allowed to dispose of his land in such a way that it is a fraud on his creditors ; 73 and, when an action is pending which involves the title to land, it cannot be conveyed away so as to prejudice the other party. 74 The most important exceptions, how- ever, to the power of alienation, are those arising from the rights of dower, curtesy, and homestead, which will be subsequently dis- cussed. 75 Transfer by Operation of Law In addition to the right of voluntary alienation by the owner,- an estate in fee simple may be transferred without the owner's consent, for it may be sold for taxes, or to pay his debts. 76 Land may also be taken from the owner under the power of eminent domain, but this can pnly be done on making compensation for the land so taken. 77 An estate, however,, may be so limited that it shall terminate upon any attempt at alienation, voluntary or involuntary, and in such case it will not be available to creditors.' 78 If the owner of an estate in fee simple does not dispose of it by conveyance or devise, it descends to his heirs in general, and vests in them without any act on their 'part. 78 ti See post. See, also, Blackstone Bank v. Davis, 21 Pick. (Mass.) 42, 32 Am. Dec. 241; Langdon v. Ingram's Guardian, 28 Ind. 360. Restrictions, how- ever, as to use may be valid. Cowell v. Springs Co., 100 TJ. S. 55, 25 L. Ed. 547. 72 1 Stim. Am. St Law, § 2618; Williams, Eeal Prop. (17th Am. Ed.) p. 95, note. 73 See chapter XXV, post, Restraints and Disabilities of Transfer. 74 See Lis Pendens, post. to See chapters VIII and IX, post. 7«Watkins v. Holman, 16 Pet. 25, 10 L. Ed. 873; Wyman v. Brigden, 4 Mass. 150; Nokes v. Smith, 1 Yeates (Pa.) 238. By different acts of congress a priority is given to the claims of the United States, and these acts are constitutional. TJ. S. v. Fisher, 2 Cranch, 358, 2 L. Ed. 304; Harrison v. Sterry, 5 Cranch, 289, 3 L. Ed. 104. Similar statutes exist in some states regulating the order of preference of claims. 2 Werner, Adm'n, 772. See, in general, chapter XXIV, post. 77 Taylor v. Porter, 4 Hill (N. T.) 140, 40 Am. Dec. 274. See post, chapter XXIV. 78 Nichols v. Eaton, 91 TJ. S. 716, 23 L. Ed. 254; Bramhall v. Ferris, 14 N. Y. 41, 67 Am. Dec. 113; Emery v. Van Syckel, 17 N. J. Eq. 564. And see post, chapter XIII. I 7 9 in re Estate of Donahue, 36 Cal. 329. 68 ESTATES IN FEE TAIL (Ch. 6 CHAPTER VI ESTATES IN FEB TAIL 31. Definition of Estate Tail. 32. Origin of Estates Tail. 33. Classification of Estates Tail. 34. Creation of Estates Tail. 35. Incidents of Estates Tail. 36. The Barring of Estates Tail. 37. Tenant in Tail after Possibility of Issue Extinct 38. Estates Tail in the United States. 39. Quasi Entail. DEFINITION OF ESTATE TAIL 31. An estate tail is an estate of inheritance which descends only to the heirs of the body of the donee or to some special class of such heirs. ORIGIN OF ESTATES TAIL 32. Such estates were created by the operation of the statute de donis conditionalibus upon fees conditional at common law. Definition An estate tail is a freehold estate of inheritance, with the peculiar- . ity that, on the death of the donee, only the heirs of his body, or some particular class of such heirs, can inherit. This limitation of the inheritance to the heirs of one's body, instead of to the general heirs, is the distinguishing feature of an estate tail. 1 Moreover, only heirs in the direct descending line can inherit. A brother, for example, of a tenant in tail cannot take, 2 since the inheritance is confined to the donee's issue; that is, his children, his grandchildren, and so on in the direct course of descent. Upon the extinction of the donee's line, i Fanning v. Doan, 128 Mo. 323, 328, 30 S. W. 1032 ; Prindle v. Beveridge, 7 Lans. (N. Y.) 225, 228; McArthur v. Allen, 15 Fed. Cas. No. 8,659; Rivard v. Gisenhof, 35 Hun (N. Y.) 247, 251; Goodright v Morningstar, 1 Yeates (Pa.) 313 ; Corbin v. Healy, 20 Pick. (Mass.) 514 ; Biggs v. Sally, 15 Me. 408. Cf. Reinhart v. Lantz, 37 Pa. 488. 2 2 Blk. Comm! 113. § 32) ORIGIN OF ESTATES TAIL , 69 the estate terminates. 3 It is apparent, therefore, that an estate tail is a lesser interest in land than an estate in fee simple. If the owner of an estate in fee simple makes a grant of an estate tail, an interest still remains in the grantor. This interest is called a reversion ; 4 that is, if at any time there is a failure of heirs within the description of those entitled to take under the gift, the property reverts to. the do- nor or his heirs. Where the donor of an estate tail, by the same in- strument which creates it, gives the interest which remains in him to a third person, the estate of such third person is called a "re- mainder." B Prior to the statute de donis conditionalibus, 6 estates tail were known as fees conditional at common law. 7 Fees Conditional at Common haw The chief characteristic of an estate in fee simple, as we have ,seen, is that it is an estate of inheritance that descends to one's heirs in general. 8 There is no restriction or condition as to any special class of heirs. An estate may, however, be limited, at common law, to one and to a special class of heirs, as, for example, to one and the heirs of his body or to one and the heirs of his body by a certain wife. An estate so limited was called, indifferently, a fee conditional, a con- ditional fee, a conditional gift, a fee conditional at common law, or a conditional fee simple. It was conditional not absolute, in the sense that a condition was imposed upon the inheritance. 9 The one who made the gift (donum), as it was called, was known as the "donor," and he to whom the estate was given was called the "donee." 10 In early feudal times, when estates first became hereditary, and were given to a man and his heirs, the word "heirs" was considered to mean lineal heirs, or the descendants of the body of the first taljer. 11 The collateral relations, such as brothers, sisters, and cousins, could not take. This was obviously to the advantage of the feudal lord or grantor; for, by confining the inheritance to the issue of his tenant, he was more likely to have profitable wardships and escheats than if 3 Butler v. Huestis, 68 111. 594, 599, 18 Am. Eep. JS9 ; Richardson v. Rich- ardson, 80 Me. 585, 593, 16 Atl. 250. * And therefore the statute of quia emptores does not apply to a fee tail, and tenure may exist between donor and donee. Dig. Hist. Real Prop. (4th Ed.) 248. " See, in general, chapter XV, post. tt'Infra. -■ Butler v. Huestis, 68 111. 594, 18 Am. Rep. 589 ; Pollock v. Speidel, 17 Ohio St. 439; Kirk v. Furgerson, 6 Cold. (Tenn.) 479; EWINQ v. NESBITT, 88 Kan. 708, 129 Pac. 1131, Burdick Cas. Real Property. « See preceding chapter. \ » Willion v. Berkley, Plowd. 222, 252 ; P. & M. II, 17. io 2 Blk. Comm. 110. ii Dig. Hist Real Prop. (4th Ed.) 220; P. & M. Hist. Eng. I^aw, 11. 70 ESTATES IN FEE TAIL (Ch. 6 collateral kinsmen were admitted. At this time the heir derived his title to the estate from the grantor by designation in the grant. As the tenant acquired, however, in course of time, the power of alienat- ing the fee, the interest of the heir became reduced "to a mere expecta- tion of succeeding, in the event of his ancestor not exercising that power. "The additional grant to the heirs was then referred wholly to the esta'te of the ancestor, as importing merely an estate of inheritance, an- essential incident of which was the power of transferring the land, and the heir no longer claimed as grantee by designation in the grant, but derived his title from the ancestor by descent. 12 The word "heirs" was also extended, so as to include collateral as well as lineal heirs. 13 It resulted, therefore, that if a donor of land desired to confine an estate to the lineal descendants of the donee, it was necessary to limit .the estate to the heirs of the donee's body. Moreover, since the ten- ants of land in fee simple were getting into the custdm of alienating their land without consulting their heirs, the donors of the land tried to prevent this alienation by expressly providing that the land should go to a particular class of heirs. 1 * These limitations, did not, how- ever, take the same form. Some, for example, were to a man and the heirs of his body; others to a man and the heirs of his body by a particular wife; others to a man and his heirs, providing he had an heir of his body. 16 The interpretations put upon these various forms of limitation were not always uniform. 16 In time, however, they were construed in accordance with the last form, namely, "to a man and his heirs, provided he had an heir of his body;" that is, an estate in fee simple upon the condition that an heir of the body was born. 17 The birth of issue was, therefore, held to discharge the estate of its condition, and thereupon, like a fee simple absolute, the tenant had power to alien or incumber it. 18 It was also liable to forfeiture for treason. 19 If the donee aliened the land before issue was born, the conveyance was effectual against both the donee and the donor during the donee's life. If issue was born to the donee subsequently to his conveyance, the grantee's estate became absolute, and all rights of the issue and of the donor were cut off thereby. 20 \ On the other hand, if the donee died without having had an heir of his body, or 12 Leake, Prop. Land. 33. is Williams, Real Prop. (17th Ed.) 101. 14 P. & M. II, 18; Holds. Hist. Eng. Law, III, 96. is See Bracton, ff. 17b, 47 ; Holds. Hist Eng. Law, III, 97, 98. i« Id. if Holds. Hist. Eng. Law, III, 98. i8Co.,Litt. i9a. i»Id. 20 Co. Litt. 19a; 1 Spence, Eq. Jur. p. 141. And see Nevil's Case, 7 Coke, 33a ; Willion v. Berkley, Plow. 223 ; Buckworth v. Thirkell, 3 Bos. & P. 652, note. § 32) OBIGIN OF ESTATES TAIL 71 if, leaving an heir to whom the land descended, his issue became at any future time extinct, the land reverted to the donor. The donor did not have a strict reversion, but only a possibility of a reverter. The fee was considered to be in the donee, subject to being di- vested by the failure of the condition. The limitation to the heirs of his body did not otherwise affect the rights and powers of a tenant, and in respect of these it remained a fee simple. So long as the fee lasted, the tenant for the time being had all such powers, including the power of alienation, as were the inseparable incidents of an estate of inheritance. It was, however, a condition necessary to the full effect of his alienation, so as to bar, not only his issue, but also the possi- bility of reverting to the grantor, that he should have heritable issue. 21 The Statute de Donis Ctmditionalibus The judicial construction put upon fees conditional at common law defeated the intention of the donors of land. Since it was held that the birth of issue fulfilled the condition, and that, upon such birth, conditional fees became estates in fee simple, with power of free alienation, the plans of donors to preserve the inheritance for the is- sue of donees were thwarted. The great landowners wished such gifts to be interpreted in accordance with their interests and with the plain meaning of their intention. 22 Consequently, in 1285, they se- cured the passage of the famous statute "de donis conditionali- bus," 28 or, as it is often called, the statute of Westminster II. The act provided that, "where any giveth his land to any man and his wife and to the heirs begotten of their bodies, * * * the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given under such condition shall have no power to aliene the land so given, but it shall remain unto the issue of them to whom it was given after their death, or shall revert^ unto the giver or his heirs if issue fail," etc. This statute, therefore, pre- vented the estate from becoming a fee simple absolute, and con- verted it into an estate of inheritance of a restricted nature, whence the estate was called "feudum talliatum," or an estate tail. 24 No forfeiture was imposed on a tenant who should alien his estate, but his conveyance was of no effect, after his death, against his heirs or the donor. The statute, in taking away from the tenant the power to alien the land, deprived his estate of that incident which chiefly 212 Blk. Comm. 110; 1 Spence, Eq. Jur. 141; Anon., Fitzh. Abr. "Forme- don," 65. 22 Holds. His. Eng. Law, III, 98. 23 13 Edw. I, St. 1, c. 1, § 2. See Dig. Hist. Real Prop. (5th Ed.) p. 226. 2* Litt. § 18; Co. Litt. 22a; Laws of Eng. vol. 24, § 442. 72 ESTATES IN FEE TAIL (Ch. 6 characterized it as a fee simple. 25 "Where an estate to one and to the heirs of his body was a fee simple before the statute, now since the statute it is taken that he has but a fee tail, and this is included in the statute although it is not expressed; for when the statute re- strained the donee from aliening the fee simple, or from doing other' acts which he that has a fee simple may do; it was presently taken that the fee was not in him, for it would be idle to adjudge it in him when he could not do anything with it, and therefore it was taken, by col- lection and implication of the act, that the fee simple continued in the donor. So. that he has orie inheritance, viz. a fee simple, and the donee has another inheritance of an inferior degree, viz. a fee tail. And immediately upon the making of the act it had this name given it." 26 It was so called from the inheritance being cut down, "tallia- tum," " to the line of heirs designated. The name was used for a restricted inheritance before the statute, but since the statute it is used distinctively for the new estate thereby created. 28 CLASSIFICATION OF ESTATES TAIL 33. Estates tail are divided into the following six classes: (1) Estates in tail general, the donee being the only parent named, and descending to heirs of either sex. (2) Estates in tail general male, only one parent named, but de- scending only to male heirs. (3) Estates in tail general female, only one parent named, but descending only to female heirs. (4) Estates in tail special, both parents named, and descending to heirs of either sex. (5) Estates in tail special male, both parents named, but descend- ing only to male heirs. (6) Estates in tail special female, both parents named, but de- scending only to female heirs. Where the estate is limited simply to the heirs of the donee's body, without restriction as to the spouse of the donee, the estate is an es- tate in tail general. 28 In such a case, any of the issue of the donee's body can inherit. 30 The inheritance, however, may be restricted to 2 6 Hill v. Hill, 74 Pa. 173, 15 Am. Rep. 545. 2« Willion v. Berkley, Plow. 251, per Dyer, C. J. 2i From the mediaeval Latin "talliare," to cut, to limit Compare the words "tailor," "tally." as Leake, Prop. Land, 37. , 29 Litt. § 14. so Co. Litt. §§ 14, 15; 2 Blk. Comm. 113; Lehndorf v. Cope, 122 111. 317 13 N. E. 505 ; Duffy v. Jarvis (C. C.) 84 Fed. 731. § 33) CLASSIFICATION OF* ESTATES TAIL 73 the heirs of the body of the donee and another person named, as "to A. and his heirs begotten on the body of his wife, B." 31 Or the limitation may be to two donees and the heirs of their two bodies. These cases, where both parents of the heirs who are to take are named, are called estates in tail special. 82 Such limitations are valid if the persons named are husband and wife, or if the?e is a possibility of their becoming lawfully married, 88 no matter how improbable it is that they ever will be. 84 If, however, the estate is given to a man and his heirs by a woman whom he cannot marry because she is with- in a prohibited degree of consanguinity, the limitation to the heirs is void, and the donee will take only a life estate, the reversion Remain- ing in the donor. 35 A limitation, however, in tail to two donees who are each married to other persons is good,' since they may become free, by reason of death or divorce, to marry each other. 39 Whenever there can be no issue who can take the estate according to the form of the gift — for example, because of the death of the wife named prior to the gift — then the donee will take only a life estate. 37 The inheritance of an estate in general or special tail may be fur- ther restricted to the males or females of the class of heirs designated. Examples of such estates are "to A. and the heirs male of his body," 38 and "to A. and his heirs male on the body of his wife, B., begotten." 89 Estates tail female are very rare. No one can inherit an estate in tail male who cannot trace his descent from the donee through males en- tirely. For this reason the son of a daughter of the donee cannot take the estate, because his mother could not. have inherited. The same principle applies in estates' tail female, so that only females and the female issue of females can take. 40 si2 Blk. Comm. 114; McArthur v. Allen, 15 Fed. Cas. No. 8,659. 3 2 Co. Litt § 16; Allen v. Craft, 109 Ind. 476, 478, 9 N. E. 919, 58 Am. Rep. 425. as Co. Litt. | 16. 34 But a contrary presumption may arise, as in case of two donees who have already been married and divorced. Co. Litt. 25b, note 2. 35 Co. Litt | 283 ; Jordan v. Roach, 32 Miss. 481, 603. as Co. Litt § 25; Horsley v. Hilburn, 44 Ark. 458. 37 That is, the donee has an estate tail after possibility of issue extinct. See infra. 3 6 Hulburt v. Emerson, 16 Mass. 241. s»Co. Litt. §25.. *o Co. Litt §§ 23, 24. 74 ESTATES IN FEE TAIL (Ch. 6 CREATION OF ESTATES TAIL 34. The proper way, at common law, to create an estate tail gen- eral, is to give the land to the donee and the heirs of his body, f Estates tail cannot be created out of chattel interests in land, or out of any personal property. Creation of Estates Tail Estates tail may be created either by deed or by will. 41 At common law, if the estate is created by deed, the phrase "to [the donee] and the heirs of his body" is the appropriate form of lim- itation. 42 The old form was, however, "to [the donee] and the heirs of his body begotten," although! the use of the word "begot- ten" is unnecessary. 43 The word "heirs" is necessary, however, and such words as "issue" or "seed" cannot be substituted for it. 44 The phrase "of his body" is, however, w not essential, since "the heirs of his flesh" is sufficient. 46 There must always be, however, some words which show that the heirs of the donee's body, or some class of them, are to inherit the estate. If words of inheritance are absent, the donee takes only a life estate, 46 while the omission of the words of procreation, provided the word "heirs" is used, gives the donee a fee simple. 417 Any words, however, which show that the word "heirs" is to be restricted to the heirs of the body, will suffice to restrict the inheritance to a fee tail. 48 In the case of wills there is the same relaxation of technical re- quirements as in the creation of a fee simple, and the intention of the testator governs, even though he does not use the technical words required in a deed. 49 Consequently the word "issue," 50 or *i Maslin v. Thomas, 8 Gill (Md.) 18. « Co. Litt. 26a. *s Co. Litt. 20b ; Doe v. Hallett, 1 M. & S. 124. <* Co. Litt. 20a; 2 Blk. Comm. 115; Wheeier v. Duke, 1 Cr. & M. 210. "Co. Litt 20b. 4 6 Co. Litt. 20b; 2 Blk. Comm. 115; Ford v. Johnson, 41 Ohio St. 366. Cf.' Lehndorf v. Cope, 122 111. 317, 13 N. E. 505. 47 2 Blk. Comm. 115; Co. Litt. 27a; Doe v. Smeddle, 2 Bam. & Aid. 126. 4 8 Hall's Lessee v. Vandegrift, 3 Bin. (Pa.) 374; Corbin v. Healy, 20 Pick. (Mass.) 514; Pollock v. Speidel, 17 Ohio St 439; Den ex dem. Holcomb v. Lake, 24 N. J. Law, 686 ; Morgan v. Morgan, L. R. 10 Eq. 99 ; Den ex dem. Ewan v. Cox, 9 N. J. Law, 10; Buxton v. Inhabitants of Uxbridge, 10 Mete. (Mass.) 87 ; Brown v. Hospital, 155 Mass. 323, 29 N. E. 625. 40Reinoehl t. Shirk, 119 Pa. 108, 12 Atl. 806; Arnold v. Brown, 7 R. I. "Clark v. Baker, 3 Serg. & R. (Pa.) 470; Taylor v. Taylor, 63 Pa. 481, 3 Am. Rep. 565. § 34) CREATION OP ESTATES TAIL '75 "children," 51 may be sufficient to create an estate tail, without using the word "heirs," if it appears from the context that the devisor sa intended. 82 In a will the expression "heirs male" has been held to pass a fee tail, although it would create a fee simple if usedin a deed. 68 A limitation to. A. and: to his heirs' male, or to A. and to his heirs female, creates an estate in fee simple, because it contains >no restriction to a particular line of issue. It is not limited by the gift of what body the issue male or female shall be. Inheritance by heirs general cannot be restricted to one sex ; there- fore, the words "males" and "females," having here no legal im- port, are rejected, and all the heirs, female as well as male, may inherit, because no man can institute a new kind of inheritance not allowed by law. 04 The intention to give a fee tail may appear, however, from a limitation over, as, for example, if the donee "die without heirs of his body," or similar expressions. This is called an "estate tail by construction." 00 In the case of estates in tail special, in which both parents are named, it is not necessary to name with particularity the second parent. A designation as of a class is sufficient. For example, in a recent English case, * a devise "to C, if he marries a fit and 189; Manwaring v. Tabor, 1 Root (Conn.) 79; Clark v. Baker, 3 Serg. & E. (Pa.) 470; Stone v. McMullen (May 3, 1881) 10 Wkly. Notes Cas. (Pa.) 541. But see IJill v. Hill, 74 Pa. 173, 15 Am. Kep. 545. "Heirs lawfully begotten" has been held, in a will, to mean "begotten by him." Pratt's Lessee v. Flamer, 5 Har. & J. (Md.) 10. oi Nightingale v. Burrell, 15 Pick. (Mass.) 104 ; Fletcher v. Fletcher, 88 Ind. 418. 52 See, also Braden v. Cannon, 24 Pa. 168; Gause v. Wiley, 4 Serg. & E. (Pa.) 509 ; Allen v. Markle, 36 Pa. 117 ; Wheatland v. Dodge, 10 Mete. (Mass.) 502. 53 See, however, Gilmore v. Harris (1693) Carth. 292, where the words "heirs male," in a deed, created an estate tail, there being circumstances showing that the words "of the body" were also intended. si Co. Litt. 13a ; Leake, Prop. Land, 171 ; Den ex dem. Crane v. Fogg, 3 N. J. Law, 819 ; Allin v. Bunce, 1 Boot (Conn.) 96 ; Welles v. Olcott,' Kirby (Conn.) 118; Den ex dem. James v. Dubois, 16 N. J. Law, 285; Giddings v. Smith, 15 Vt. 344; Pollock v. Speidel, 17 Ohio St. 439; 4 Kent, Comm. 12; 1 Shars. & B. Lead. Cas. Beal Prop. 94. See Jewell v. Warner, 35 N. H. i76. And see Murrell v. Mathews, 2 Bay (S. C.) 397 ; Wright v. Herron, 5 Rich. Eq. (S. C.) 441. 55 Allen v. Trustees, 102 Mass. 262; Appeal of Potts, 30 Pa. 168; Tate v. Tally, 3 Call (Va.) 354; Doe ex dem. See V. Craigen, 8 Leigh (Va.) 449; Den ex dem. Sanders v. Hyatt, 8 N. C. 247 ; Covert v. Robinson, 46 Pa. 274 ; Appeal of Smith, 23 Pa. 9; Willis v. Bucher, 3 Wash. C. C. 369, Fed. Cas. No. 17,769; Albee v. Carpenter, 12 Cush. (Mass.) 382; Perry v. Kline, 12 Cush. (Mass.) 118 ; Parkman v. Bowdoin, 1 Sumn. 359, Fed. Cas. No. 10,763 ; Brown v. Weaver, 28 Ga. 377 ; Child v. Baylie.'Cro. Jac. 459. oepelham Clinton v. Newcastle, 1 Ch."34 C. A.; A. C. (1903). And see Magee v. Martin, (1902) 1 I. R. 367, C. A. 76 ESTATES IN FEE TAIL (Ch. 6 worthy gentlewoman, and his issue male," was held to create a special tail male. Creation by Statute In England, the Conveyancing Act of 1881 " permits an estate tail to be created by the use of the words "in tail," as "to" A. in tail." The words "heirs of the body" are, therefore, no longer necessary. In the same way an estate in tail special may be created by the words "in tail male" or "in tail female." B8 Chattel Interests, etc. Incorporeal, as well as corporeal, hereditaments may be cre- * ated in tail, 08 but there can be no fee tail in personal property, 60 or in chattel interests, and an attempt to so limit an estate tail results in passing the donor's entire interest. 61 INCIDENTS OF ESTATES TAIL 35. The rights of the owner of a fee tail are the same, at common law, as the rights of one owning a fee simple, except as to alienation. At common law, a tenant in tail could not alien the estate ; 62 otherwise, the incidents of estates tail were the same as of those in fee simple. 68 The tenant in tail is not liable for waste, 64 and is not bound to pay off incumbrances or to keep down the inter- 57 44 & 45 Vict. c. 41. 6s Laws of Eng. vol. 24, § 450. bo 2 Blk. Coram. 113; 1 Washburn, R. Prop. (6th Ed.) 86. «o Norris v. Beyea, 13 N. Y. 273; Paterson v. Ellis' Ex'rs, 11 Wend. (N. Y.) 259. «i2 Blk. Comm. 113; Paterson v. Ellis' Ex'rs, 11 Wend. (N. Y.) 259; Stock- ton v. Martin, 2 Bay (S. C.) 471; Albee v. Carpenter, 12 Cush. (Mass.) 382. But cf. Burkart's Lessee v. Bucher, 2 Bin. (Pa.) 455, 4 Am. Dec. 457; Shoe- maker v. Huffnagle, 4 'Watts & S. (Pa.) 437 ; Duer v. Boyd, 1 Serg. & R. (Pa.) 203. 6 2 Frazer v. Peoria County, 74 111. 282; Williams v. McCall, 12 Conn. 328; Croxall v. Sherrerd, 5 Wall. (U. S.) 268, 18 L. Ed. 572. 63 Buxton v. Inhabitants of Uxbridge, 10 Mete. (Mass.) 87 ; Partridge v. Dorsey's Lessee, 3 Har. & J. (Md.) -302. 64 2 Blk. Comm. 116; 4 Kent, Comm. 12; Pollock v. Speidel, 17 Ohio St. 439 ; Hales v. Petit, Plow. 253 ; Secheverel v. Dale, Poph. 193 ; Liford's Case, 11 Coke, 46b ; Attorney General v. Marlborough, 3 Madd. 498/ But he cannot authorize it after his death. Liford's Case, supra. What is meant by "waste" will be treated of under "Life Estates," post § 36) THE BABEING OF ESTATES TAIL 77 est on them. 65 An estate tail is subject to dower es and curtesy. 67 The doctrine of merger, however, does not apply. to estates, tail, 68 .and such estates were not liable to forfeiture for treason or felony, nor chargeable with the debts of the tenant after his death. 68 A tenant in tail could convey, however, an estate during his life, 70 and at a later period the right to suffer a common recovery was an incident of all such estates. 71 THE BARRING OF ESTATES TAIL 36. Despite the positive provisions of the statute de donis, es- tates tail could, in the course of time, be terminated in various ways by methods known as barring the entail. These various modes were: (a) Common recovery. (b) Fine. (c) Lease. (d) Appointment to charitable uses. (e) Deed. f By the provisions of the statute de donis, 72 estates tail were made inalienable, and, as we have seen, 78 if the tenant in tail did convey them during his life, the issue in tail could re-enter, upon the death of the tenant, and recover the land. 74 Estates tail, however, soon began to prove very mischievous and productive of evil. Numerous efforts were made . to repeal the statute de «5 4 Kent, Comm. 18; 1 Washburn, R. Prop. (6th Ed.) 95; Amesbury v. Brown, 1 Ves. Sr. 477 ; Chaplin v. Chaplin, 3 P. Wms. 235. But see Burgess v. Mawby, 1 Turn. & R. 176. 66 2 Blk. Comm. 116; Kennedy v. Kennedy, 29 N. J. Law, 185; Appeal of Smith, 23 Pa. 9. 67 4 Kent, Comm. 12; Pollock v. Speidel, 17 Ohio St. 439; Voller v. Carter, 4 El. & Bl. 173 ; Anon., Fitzh. Abr: "Pormedon," 66. «8 2 Blk. Comm. 177 ; Wiscot's Case, 2 Coke, 60a ; Challis, Real Prop. c. 10 ; Den ex dem. Holcomb v. Lake, 24 N. J. Law, 686 ; Roe v. Baldwere, 5 T. R. . 104, 2 Rev. Rep. 550. 6»4 Kent, Comm. 13. The statute of 26 Hen. VIII, c. 13, made estates tail forfeitable for treason; and the statute of 33 Hen. VIII, c. 39, made them liable for certain debts due the crown. In Massachusetts, by statute, such es- tates are liable in general for the debts of the tenant in tail. Holland v. Cruft, 3 Gray (Mass.) 162. to That is, a base fee (see post), which the issue of the grantor might, after the grantor's death, defeat by re-entry. Whiting v. Whiting," 4 Conn. 179; Waters v. Margerum, 60 Pa. 39 ; Sharp v. Thompson, 1 Whart. (Pa.) 139. 71 See infra. 72 Supra. , ™ Supra. 7* Waters v. Margerum, 60 Pa. 39; Machell v. Clarke, 2 Ld. Raym. 778. 78 ESTATES IN FEE TAIL (Ch. 6 dohis, but they were unavailing. "The truth was that the lords and commons, knowing that their estates tail were not to be for- feited for felony or treason, as their estates of inheritance were, before the said act, * * * and finding that they were not answerable for the debts or incumbrances of their ancestors, * * * they always rejected such bills." TB Blackstone speaks of the evil results of such estates as follows : 76 "Children grew disobedient when they knew they could not be set aside; farmers were ousted of their leases made by tenants in tail ; * * , * creditors -were defrauded of their debts, * * * and treasons were encouraged." Common Recovery » In consequence of these conditions the courts, in the course of two centuries after the passage of the statute, overrode the de- clared intention of the legislature, and established a method known as "common recovery," whereby the tenant in tail could bar both the issue in tail and the remainders after the estates tail. 77 The case which is commonly cited as marking the beginning of this practice is the celebrated Taltarum's Case. 78 It is believed, how- ever, that the custom was older than this case, which pleads recovery as if it were a well-known expedient. 79 Common recovery consisted of a collusive suit, brought by the intended purchaser, called the "demandant," under a claim of paramount title against the tenant in tail. The latter did not defend, but claimed that his grantor had warranted the title to the lands, and asked that he be called upon to defend the suit. , This was termed "vouching to warranty," or recovery "with a single voucher." In "recovery with a double voucher," which was the more usual procedure, the tenant in tail , made a prelim- inary conveyance to a nominal tenant, known as the tenant to the praecipe, who was made the defendant in the action. There- upon the tenant to the praecipe vouched to warrant the tenant in tail, and he, in turn, vouched the common vouchee. The vouchee, who was a person without means, 80 suffered default to be entered TBMildmay's Case (1606) 6 Coke, 40. 76 2 Bik. Comm. 116, quoted in Orndoff v. Turman, 2 Leigh (Va.) 200, 21 Am. Dec. 608; also in SWING v. NBSBITT, 88 Kan. 708, 129' Pac. 1131, Burdick Cas. Real Property. " Laws of Eng. vol. 24, § 451. rs Decided in 1472, reported in T. B. 12 Edw. IV, fo. 19, pi. 25. The correct reading of the name is Talcarum or Talkarum. See 9 L. Q. R. 1; Holds. Hist. Eng. Law, III, 102. to Holds. Hist. Eng. Law, III, 102. And see Co. Litt. 361b. «o The common vouchee was usually the crier of the court, selected because § 36) THE BARRING OF ESTATES TAIL 79 against him, thus admitting the warranty. The lands were there- upon, judged to belong to the defendant, and judgment was enter- ed against the vouchee that he reimburse the tenant in tail with lands of equal value, according to the doctrine of warranty. 81 The entail was held to attach to this land, so that, in theory, the heirs and remaindermen would lose nothing. The vouchee, of course, had not in fact warranted the estate to the defendant, but was an irresponsible third person, called in to carry out the fiction, and the judgment against him was worthless. The pro- cedure was completed by the demandant conveying the land in fee to the tenant in tail, or as he might direct. 82 A common recovery, being suffered, not only cut off the issue in tail, but destroyed all remainders or reversions as well, and thus effectually put an end. to entailed estates; 83 that is, the tenant in tail had power to suffer a recovery, and no condition or restriction in the deed of gift could be devised which could prevent it. 84 The courts sanctioned this pia fraus, as Blackstone calls it, because they favored alienation, and in time the procedure was recognized by statute. 80 Common recoveries were recognized as a part of the common law by some of the early cases in this country. 88 Estates tail might also be barred by another kind of fictitious action called a "fine," made permissible" by statute. 87 Fines were actions for the recovery of lands on a claim of title, which were he was of no substance. Laws of Bng. vol. 24, § 452, note: Challis, Real Prop. (3d Ed.) 311. si As to the origin of warranty, see Digby, Hist. Real Prop. 80, note 1. See, also, post, chapter XXVIII. 82 Laws of Eng. vol. 24, § 452. For further accounts of common recovery, see 2 Blk. Comm. 358; Challis, Real Prop. (3d Ed.) 310; Washb. Real. Prop. (6th Ed.) § 186; Williams, Real Prop. (17th Ed.) p. 108. See, also, EWING v. NESBITT, 88 Kan. 708, 129 Pac. 1131, Burdick Cas. Real Property. 83 2 Blk. Comm. 361. A recovery could be suffered only by one in posses- sion as tenant in tail or with the consent of the person in possession. 1 Dem- bitz, Land Tit. 116. s* Mary Portington's Case, 10 "Coke, 35b; Dewitt v. Eldred, 4 Watts & S. (Pa.) 415. And see Waters v. Margerwn, 60 Pa. 39; Doyle v. Mullady, 33 Pa. 264; Elliott v. Pearsoll, 8 Watts & S. (Pa.) 38; Hall v. Thayer, 5 Gray (Mass.) 523. 86 14 Geo. II, c. 20, § 1 (1740). s« See Dow v. Warren, 6 Mass. 328; Dudley v. Sumner, 5 Mass. 438 ; Ransley v. Stott, 26 Pa. 126 ; Jewell v. Warner, 35 N. H. 176 ; Lyle v. Richards, 9 Serg. & R. (Pa.) 322; Carter v. McMichael, 10 Serg. & R. (Pa.) 429; Wood v. Bay- ard, 63 Pa. 320. 8T The statute de donis declared that fine should have no effect on estates tail, but this was changed by the statutes of 4 Hen. VII, c. 24, and 32 Hen. 80 ESTATES IN FEE TAIL , (Ch. 6 compromised by the parties with leave of the court, and the judg- ment record entered in the case became the record of title. . The effect of a fine was to bar the issue in tail, but not the remain- derman or reversioner. 88 This method of barring estates tail was also recognized by some jurisdictions in this country. 89 Leases — Charitable Uses Estates in tail might also be barred by certain leases per- mitted by statute, 80 and also, by virtue of another statute, 81 by being appointed to charitable uses. Deed — Modem Statutes ' Fines and recoveries were abolished in England in 1833. 92 They are also obsolete in this country. 83 By statute, however, in England, 94 and in a number of our states, 88 estates in tail may be barred by deed executed by the tenant in tail, and under such a statute the tenant in tail may mortgage the estate. 96 Even in the absence of express statute, it is held that, although fines and recoveries are obsolete, yet the substance of the proceeding, a conveyance, remains, and that such an estate may be barred by deed. 97 VIII, c. 36. Aa early as 1299, a statute authorized the transfer of land by means of fine without the actual transfer of seisin. 8 8 Seymor's Case, 10 Coke, 95b. They would also be barred unless they made claim within a period fixed by statute. Further formalities were after- wards required called "proclamations." 2 Blk. Comm.. 348 ; 1 Shep. Touch, c. 2. The proceedings were called fine (from the Latin "finis," end) because they were said to put an end to the alleged claim by a final amicable agree- ment. The plaintiff (called the conusee, or cognizee) was the person to whom, by previous agreement, the land was to be transferred. This plaintiff sued', the tenant (called the conusor, or cognizor) for an alleged violation of his agreement to convey. The parties, thereupon, by leave of the court, agreed to settle their differences (?), and they were settled by the conusor (the tenant) acknowledging the claim of the conusee. This agreement was then entered upon the record, and this judgment record operated as a conveyance of the land. Hence the controversy came to an "end." so See Roseboom v. Van Vechten, 5 Denio (N. Y.) 414; Orndoff v. Turman, 2 Leigh (Va.) 200, 21 Am. Dec. 608. »o 32 Hen. VIII, c. 28. »i 43 Eliz. c. 4. 92 3 & 4 Wm. IV, c. 74. 93EWIN6 v. NESBITT, 88 Kan. 70S, 129 Pac. 1131, Burdick Cas. Real Property. »* 3 & 4 Wm. IV, c. 74, § 3. 95 Collamore' v. Collamore, 158 Mass. 74, 32 N. E. 1034; Hall v. Thayer, 5 Gray (Mass.) 523; Seibert v. Wise, 70 Pa. 147; Doyle v. Muilady, 33 Pa. 204; Minge v. Gilmour, Fed. Cas. No. 9,631, Brunner Col. Cas. 383.- 96 Todd v. Piatt, 1 Har. & J. (Md.) 465. 97 EWING v. NESBITT, 88 Kan. 708, 129 Pac. 1131, Burdick Cas. Real Property. § 38) ESTATES TAIL IN THE UNITED STATES 81 TENANT IN TAIL AFTER POSSIBILITY OF ISSUE EXTINCT 37. A tenant in tail after possibility of issue extinct is a tenant in special tail in whose case it has become impossible for him to have issue who can inherit under the terms of the entail. If one is tenant in tail, and it has become impossible that there shall be issue who can inherit, he is called "tenant in tail after possibility of issue extinct." This condition can arise only in estates in special tail, as where, for example, the limitation is to "A. and his heirs begotten on the body of his wife, B.," and B. dies without issue.- 98 The presumption that the possibility of issue is extinct never arises, however, from the great age of the parties, and so there can never be a tenant in tail after possibility of issue extinct in case of an estate in general tail." The position of a tenant in tail after possibility of issue extinct is in some re- spects different from that of a tenant in tail. In quantity, his estate is an estate for life, -but in quality it remains an jestate tail, since the tenant is not punishable for waste, except equitable waste. 1 He cannot bar' the entail, and the doctrine of merger applies. 2 ESTATES TAIL IN THE UNITED STATES 38. In most of our states estates tail have been abolished or modi- fied by statutes. Some states have turned them into either — (a) Estates in fee simple; or (b) Life estates, with remainders in fee to the donee's heirs who would take under the entail ; or 1 (c) Estates tail in the donee, with estates in fee to the issue. In a fe,w states, estates tail still exist. "Estates tail," says Kent, 3 "were introduced into this country with the other parts of the English jurisprudence, and they sub- »s Co. Lttt. §§ 32-34; 2 Blk. Comm. 124. »» 2 Blk. Comm. 125. i Co. Litt. 27b, 28a ; Bowles' Case, 11 Coke, 79b ; A. G. v. Marlborough, 3 Madd. 498, 538. 2 Co. Litt. 28a. » 4 Comm. (14th Ed.) p. 14. Bttbd.Real Pbop. — 6 82 ESTATES IN FEE TAIL (Ch. 6 sisted in full force before our Revolution, subject equally to the power of being barred by a fine or common recovery." * Great changes, however, have been made by the statutes. In some of our states, estates tail have been abolished, and an in- strument attempting to limit an estate tail would create a fee simple in the donee who would be first entitled to the estate under -the form of the gift." In others, the first taker has a life estate, with remainder over in fee simple. 6 In still others, the estate re- mains as an estate tail in the first taker, but passes in fee simple to his issue. 7 In a few states, estates tail may exist until barred, 8 and this can be done by a simple deed pr by one acknowledged in a manner provided by the statute. 9 There are a number of states in which no statutory provisions as to estates tail exist. In these states, fees tail are as at common law, 10 unless, when the question comes before the courts, such estates are held not to he adapted to the genius of our institutions. 11 * See, also, Williams, Real Prop. (17th Am. Ed.) note 121. » Barnett v. Barnett, 104 Cal. 298, 37 Pac. 1049 ; Mcllhinny v. Mcllhinny, 137 Ind. 411, 37 N. B. 147, 24 L. R. A. 489, 45 Am. St Rep. 186; Nellis v. Nellis, 99 N. Y. 505, 3 N. B. 59; In re Robinson's Estate, 149 Pa. 418, 24 Atl. 297 ; Ray v. Alexander, 146 Pa. 242, 23 Atl. 383 ; Durant v. Muller, 88 Ga. 251, 14 S. E. 612; Pruitt v. Holland, 92 Ky. 641, 18 S. W. 852; Pritchard v. James, 93 Ky. 306, 20 S. W. 216; Lanham v. Wilson (Ky.) 22 S. W. 438; Nicholson v. Bettle, 57 Pa. 384; Duffy v. Jarvis (C. C.) 84 Fed. 731; Rhodes v. Bouldry, 138 Mich. 144, 101 N. W. 206. « Peterson v. Jackson, 196 111. 40, 63 N. E. 643 ; Fanning v. Doan, 128 Mo. 323, 30 S. W. 1032; Preston v. Smith (C. C.) 26 Fed. 884; WHEART v. CRUSER, 49 N. J. Law, 475, 13 Atl. 36, Burdick Cas. Real Property; Doty v. Teller, 54 N. J. Law, 163, 23 Atl. 944, 33 Am. St. Rep. 670; Clarkson v. Clarkson, 125 Mo. 381, 28 S. W. 446; Brown v. Rogers, 125 Mo. 392, 28 S. W. 630. In some states remainders after estates tail are preserved if they take effect on the death of the first taker without issue, the entail being extinct by that event 1 Dembitz, Land Tit 117. t St John v. Dann, 66 Conn. 401, 34 Atl. 110 ; Allyn. v. Mather, 9 Conn. 114 ; Phillips v. Herron, 55 Ohio St. 478, 45 N. E. 720 ; Pollock v. Speidel, 27 Ohio St. 86. s See Rev. Code Del. 1852, amended to 1893, c. 83, § 27 ; Rev. St. Me. 1903, c. 75, § 7 ; Code Pub. Gen. Laws Md. 1888, art. 21, § 24 ; Rev. Laws Mass. 1902, c 127, §§ 24-27 ; Gen. Laws R. I. 1896, c. 201, §§ 5, 14. » 1 Stim. Am. St. Law, § 1313 ; Williams, Real Prop. (17th Am. Ed.) note 121; 1 Washb. Real Prop. (5th Ed.) 117, note 2; 1 Shars. & B. Lead Cas. Real Prop. 109. As to barring the entail by deed, see Collamore v. Colla- more, 158 Mass. 74, 32 N. E. 1034. io EWING v. NESBITT, 88 Kan. 708, 129 Pac. 1131, Burdick Cas. Real Property. ii Jordan v. Roach, 32 Miss. 481. In some states it has been held that the statute de donis conditionalibus is not in force, and that limitations to a man and the heirs of his body create fees conditional at common law. Pierson v. Lane, 60 Iowa, 60, 14 N. W. 90; Rowland v. Warren, 10 Or. 129; Izard v. § 39) QUASI ENTAIL 83 QUASI ENTAIL 39. A limitation to one and the heirs of his body during the life of another person is sometimes called a "quasi entail." Such an estate is not affected, however, by the statute de donis conditionalibus. An estate may be limited to one and the heirs of his body during the life of another person. 12 The statute de'donis does not apply to such an estate. It is not a fee tail, but resembles more a fee conditional at common law. This form of limitation is sometimes called a "quasi entail." " Middelton, 1 Bailey, Eq. (S. C.) 228; Barksdale v. Gamage, 3 Rich. Bq. (S. C.) 279; Burnett v. Burnett, 17 S. O. 545. 12 Low v. Burron, 3 P. Wms. 262, 24 Eng. Reprint, 1055 ; Ex parte Sterne, 6 Ves. 156, 31 Eng. Reprint, 989. is Further, as to quasi entail, see Grey v. Mannock, 2 Eden, 339; Dillon v. Dillon, 1 Ball & B. 77 ; Allen v. Allen, 2 Dru. & War. 307 ; Campbell v. San- dys, 1 Schoales & L. 281. 84 ESTATES FOE LIFE (Ch. 7 CHAPTER VII ESTATES FOR LIFE 40. Life Estates Defined. 41. Conventional and Legal Life Estates. 42. Creation of Life Estates. 43. Incidents of Life Estates. .44. Rights and Liabilities of Life Tenant 45. Termination of Life Estates. LIFE ESTATES DEFINED 40. Life estates are freehold interests in land, not of inheritance. They include: (a) Estates for the tenant's own life. (b) Estates for the life of another — Pur autre vie. (c) Estates for an uncertain period, which may continue during a life or lives. Life estates are freehold interests in land, but not of inheritance. 1 In general terms, they are estates whose duration is limited by the length of a human life. Estates, however, of uncertain dura- tion, which may continue during a life or lives, are also regarded ,as life estates. 2 It is immaterial how improbable it is that the es- tate will last during a life, since it is sufficient if by possibility it may do so. 3 An estate, for example, to a woman during widow- ■ hood is a life estate. It may last during her life, but it cannot last longer.* CONVENTIONAL AND LEGAL LIFE ESTATES 41. As to their mode of creation, life estates are either: (a) Conventional, that is, created by act of the parties ; or (b) Legal, that is, created by construction and operation of law. Conventional life estates may be measured by one or more lives. i2 Blk. Comm. 120; CUMMINGS v. CUMMINGS, 76 N. J. Eq. 568, 75 Atl. 210, Burdick Cas. Real Property. . 2 2 'Blk. Comm. 121 ; 4 Kent, Comm. 26 ; Hurd v. dishing, 7 Pick. (Mass.) 169; Warner v. Tanner, 38 Ohio St. 118; Beeson v. Burton, 12 C. B. 647. Cf. Gilmore v. Hamilton, 83 Ind. 198. a Warner v. Tanner, 38 Ohio St 118. * Roseboom v. Van Vechten, 5 Denio (N. T.) 414. § 42) CREATION OF LIFE ESTATES 85 CREATION OF LIFE ESTATES 42. At common law no words of limitation need be added to the grantee's name to create a life estate. Estates pur autre vie arise by express limitations to a grantee for the life of another person, or by the assignment of an existing life estate. Estates for life are either conventional or legal life estates. 5 The former are those which the parties create by their acts, having the creation of such estates in view as the result of such acts, as where the owner of a fee simple grants another the land for so long as he lives." Legal life estates, on the other hand, result from the con- struction and operation of law, without any acts by the parties looking to such result, but from acts done for other purposes. For example, marriage may give both husband and wife life interests in the realty of the other, although nothing has been said, or no ex- press contract made, in relation to such realty. 7 A conventional life estate, however, cannot be created by parol, but only by a deed or will. 8 Conventional life estates may be measured by the tenant's own life, 8 or by the life of some other person ; that is, "estates pur autre vie." 10 They may also be measured by the tenant's own life and the life of one or more other persons. 11 An estate for one's own life is regarded, however, as of a higher nature than an estate pur autre vie. 12 Estates- during two lives, as "to A. and B., during their joint lives," or "to A., during the lives of B. and C," are in reality measured by a single life. A limitation during joint lives is in effect the same as during the life of the one dying first of those named, and one during two or more lives is equivalent to an estate during the life of the one who lives longest. 18 An estate for joint lives must, however, be expressly so limited. 14 6 2 Blk. Comm. 120; 4 Kent, Comm. 24. « 2 Blk. Comm. 120. By statute in several states, life estates "may be created in a term of years and a remainder limited thereon." 1 Stim. Am. St. Law, § 1427. ? See post, chapter VIII. s Smith v. May, 3 Pennewill (Del.) 233, 50 Atl. 59 ; Stewart v. Clark, 13 Mete. (Mass.) 79 ; Garrett v. Clark, 5 Or. 464. » Co. Litt. § 56. io Co. Litt § 56 ; 2 Blk. Comm. 120 ; 4 Kent, Comm. 25. ii Co. Litt. 41b ; 4 Kent, Comm. 26. 122 Blk. Comm. 121. is Brudnel's Case, 5 Coke, 9a. See Clark y. Owens, 18 N. T. 434 ; Dale's Case, Cro. Eliz. 182. 1* Brudnel's Case, 5 Coke, 9a. 86 i ESTATES FOE LIFE (Ch. 7 Creation of Life Estates Conventional life estates may be created either by express words 15 or by implication. 18 At common law, if an estate is granted to a man without adding any words of limitation, he takes a life estate. Therefore no special words need be used to create a life estate, 17 except where the statute provides that a fee simple is presumed to be conveyed unless otherwise restricted. 18 An ex- press life estate is not, however, enlarged to a fee by being cou- pled with a power to convey it. 19 Since an estate for one's own life is considered a higher interest than an estate pur autre vie, where the conveyance does not specify for whose life the grantee is to hold, he takes it for his own life. 20 Where, however, the grantor can give an estate only for his own life, as where he is himself a tenant for life or a tenant in tail, then the grantee will take only what the grantor can lawfully give, 21 that is, an estate for the grantor's life. 22 A life estate may also be created by im- plication, as by a devise of land to the testator's heirs after the death of B., from which it would be presumed that B. was to have the land during his life. 23 If, however, the devise is to a stranger «2 Blk. Comm. 121 ; 4 Kent, Comm. 25. *« Id. it Jackson ex dem. Newkirk v. Embler, 14 Johns. (N. T.) 198; Trusdell v. Lehman, 47 N. J. Eq. 218, 20 Atl. 391 ; Hunter v. Bryan, 5 Humph. (Tenn.) 47; Gray v. Packer, 4 Watts & S. (Pa.) 17; Jackson ex dem. Murphy v. Van Hoesen, 4 Cow. (N. Y.) 325; Kearney v. Kearney, 17 N. J. Eq. 59; Wusthoff v. Dracourt, 3 Watts (Pa.) 240 ; Bozeman v. Bishop, 94 Ga. 459, 20 S. E. 11. So a life estate may be created by a reservation. Doe ex dem. Smith v. Grady, 13 N. C. 395 ; Hodges v. Spicer, 79 N. G. 223 ; Richardson v. York, 14 Me. 216. Or by a quitclaim to a cotenant in common. McKinney v. Stacks, 6 Heisk. (Tenn.) 284. is See ante. As to what words will pass only a life estate, see Corby v. Corby, 85 Mo. 371 ; Leeper v. Neagle, 94 N. C. 338 ; Dew v. Kuehn, 64 Wis. 293, 25 N. W. 212; Lowrie v. Ryland, 65 Iowa, 584, 22 N. W. 686; Jones' Ex'rs v. Stills, 19 N. J. Eq. 324; Sheafe v. Cushing, 17 N. H. 508; Jossey v. White, 28 Ga. 265 ; Schaefer v. Schaefer, 141 111. 337, 31 N. E. 136 ; Robin- son v. Robinson, 89 Va. 916, 14 S. E. 916. And cf. Beall's Lessee v. Holmes, 6 Har. & J. (Md.) 205; Jackson v. Wells, 9 Johns. (N. Y.) 222; Wheaton v. Andress, 23 Wend. (N. Y.) 452; Moore v. Dimond, 5 R. I. 121; In re Fro^hingham, 63 Hun, 430, 18 N. Y. Supp. 695 ; Allen v. Boomer, 82 Wis. 364, 52 N. W. 426; Kiene v. Gmehle, 85 Iowa, 312, 52 N. W. 232. i» Walker v. Pritchard, 121 111. 221, 12 N. E. 336 ; Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311; Welsh v. Woodbury, 144 Mass. 542, 11 N. E. 762; Hinkle's Appeal, 116 Pa. 490, 9 Atl. 938. 20 Jackson ex dem. Murphy v. Van Hoesen, 4 Cow. (N. Y.) 325. 2i Jackson ex dem. McCrea v. Mancius, 2 Wend. (N. Y.) 357; Rogers v. Moore, 11 Conn. 553; Bell v. Twilight, 22 N. H. 500. 22 Jackson ex dem. Murphy v. Van Hoesen, 4 Cow. (N. Y.) 325. 23 Barry v. Shelby, 4 Hayw. (Tenn.) 229; Haskins v. Tate, 25 Pa. 249; Nicholson v. Drennan, 35 S. C. 333, 14 S. E. 719. § 42) CREATION OF LIFE ESTATES 87 after B.'s death, no such presumption arises, and the estate goes to the heir during B.'s life. 24 Estates pur Autre Vie An estate pur autre vie is the lowest estate of freehold. 25 An estate for the life of another usually arises when one who is tenant for life assigns his interest to another, who thereby becomes enti- tled to the land during the life pf the grantor. It may, however, be expressly limited for the life of a third person. The. one whose life limits the duration of the estate is called the "cestui que vie." 26 At common Jaw, if the tenant of an estate pur autre vie died before the cestui que vie, whoever first entered and took possession of the land could hold it for the remainder of the term. Such a person was called a "general occupant." 27 If, however, the tenant had leased or assigned his estate, 28 or words of limitation, as "heirs" or "executor," had been added in the creation of the estate, then these were entitled to the residue, and they were called "special occupants." 2B By the statute, however, of 29 Car. II, 80 general occupancy was abolished, and thereafter, when a tenant pur autre vie died without having disposed of his estate, then, if the term was not limited to the heirs, the executor took the residue, holding it as assets for the payment of debts. 31 This act also gave the owner power to dispose of it by will. 32 In this country, also, the question of occupancy is now usually regulated by statute. 38 The usual incidents of life estates in general, and the rights and lia- bilities of the life tenant, apply also to estates pur autre vie. 84 2« 1 Washb. Eeal Prop. (5th Ed.) p. 123. 25 4 Kent, Comm. 26. 2«2 Blk. Comm. 258; Co. Litt. 41b. It may, however, be for more than one life. Ante. In some states, however, if more than two other lives are named, the remainder nevertheless takes effect on the death of the two first named. 1 Stim. Am. St. Law, § 1422. • Cf. Clark v. Owens, 18 N. Y. 434. By St. 6 Anne, c. 18, If the one who claims an estate pur autre vie cannot produce the cestui que vie, it is presumed that he is dead, and the estate is terminated. 27 Co. Litt. 41b ; 2 Blk. Comm. 258 ; 4 Kent, Comm. 26. as Skelliton v. Hay, Cro. Jac. 554. 2 9Mosher v. Yost, 33 Barb. (N. Y.) 27T; Salter v. Boteler, Moore, 664; Bowles v. Poore, Cro. Jac. 282; Low v. Burron, 3 P. Wms. 262; JDoe v. S Luxton, 6 Term R. 289 ; Atkinson v. Baker, 4 Term R. 229 ; Doe v. Robinson, _ 8 Barn. & C. 296 ; Northern v. Carnegie, 4 Drew. 587 ; 2 Blk. Comm. 2,39 ; Kent, Comm. 26. so Ch. 3. And see 1 Stim. Am. St. Law, § 1310. si Doe v. Lewis, 9 Mees. & W. 662. And the balance for the estate. Ripley v. Waterworth, 7 Ves. 425. But see Wall v. Byrne, 2 Jones & L. 118. "32 4 Kent, Comm. 27. See, also, 1 Stim. Am. St.- Law, § 1335. 33 See 3 Washb. Real Prop. (6th Ed.) 66 ; 4 Kent, Comm. 27. See, also, 1 Stim. Am. St. Law, § 1335. si Co. Litt. 41b. 88 ESTATES FOE LEFB (Ch. 7 INCIDENTS OF LIFE ESTATES 43. (a) Life estates are alienable, either by the life tenant, or upon execution sale, (b) Life estates are subject to merger. Alienation The tenant of a life estate may sell, 86 mortgage, 88 or lease 87 his interest, providing there is no condition of restraint in the instru- ment creating his estate. 38 He cannot, however, create any great- er estate than the one he himself has. 39 At common law, if a ten- ant for life conveyed in fee by feoffment, fine, or recovery, he for- feited his estate, because such a conveyance was a renunciation of tenure, and worked a disseisin. 40 This rule did not apply, how- ever, to conveyances operating under the statute of uses, such as a deed of bargain and sale, or lease and release, 41 nor to a lease for years. 42 This rule of_forfeiture is no longer the law, however, and now, if a life tenant grants a fee, his grantee takes merely what the grantor has. 43 In some states the statutes a.lso thus expressly «» Ridgely v. Cross, 83 Md. 161, 34 Atl. 469 ; Jackson ex dem. Murphy v. Van Hoesen, 4 Cow. (N. Y.) 325; Jacobs .v. Rice, 33 111. 369; Hunter v. Hunter, 58 S. C. 382, 36 S. E. 734, 79 Am. St. Rep. 845. 86 Jermain v. Sharpe, 29 Misc. Rep. 258, 61 N. Y. Supp. 700. 3T 4 Kent, Comm. 73 ; Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 362 ; Van Deusen v. Young, 29 N. Y. 9; Mclntyre v. Clark, 6 Misc. Rep. 377, 26 N. Y. Supp. 744) ssCriswell v. Grumbling, 107 Pa. 408; Hay ward v. Kinney, 84 Mich. 591, 48 N. W. 170. And see Gray, Restraints Alien. Prop. § 78 ; Bull v. Bank, 90 Ky. 452, 14 S. W. 425, 12 L. R. A. 37; Nichols v. Baton, 91 U. S. 716, 23 L. Ed. 254 ; Rochf ord v. Hackman, 9 Hare, 475. s» Lehndorf v. Cope; 122 111. 317, 13 N. E. 505 ; Mclntyre v. Clark, 6 Misc. Rep. 377, 26 N. Y. Supp. 744; McLendon v. Horton, 95 Ga. 54, 22 S. E. 45; Fields v. Bush, 94 Ga. 664, 21 S. E. 827; Jackson ex dem. Murphy v. Van Hoesen, 4 Cow.. (N. Y.) 325. 40 2 Blk. Comm. 274; 4 Kent, Comm. 82, 427. See, also, McMichael v. Craig, 105 Ala. 382, 16 South. 883 ; Jackson ex dem. McCrea v. Manciuc, 2 Wend. (N. Y.) 357; Stump v. Findlay, 2 Rawle (Pa.) 168, 19 Am. Dec. 632; French v. Rollins, 21 Me. 372. *i Such conveyance merely conveyed whatever interest the grantor actually had. Goodman v. Malcom, 5 Kan. App. 285, 48 Pac. 439; Stevens v. Win- ship, 1 Pick. (Mass.) 318, 11 Am. Dec. 178; Grout v. Townsend, 2 Hill (N. Y.) 554 ; Jackson ex dem. McCrea v. Mancius, 2 Wend. (N. Y.) 357. 42 Locke v. Rowell, 47 N. H. 46. 43 Rogers v. Moore, 11 Conn. 553 ; Sanf ord v. Sanf ord, 55 Ga. 527 ; Goodman v. Malcom, 5 Kan. App. 285, 48 Pac. 439; Stevens v. Winship, 1 Pick. (Mass.) 318, 11 Am. Dec. 178; Rogers v. Moore, 11 Conn. 553; McCorry v. King's Heirs, 3 Humph. (Tenn.) 267, 39 Am. Dec 165; McKee's lessee v. Pfout, 3 § 43) INCIDENTS OF LIFE ESTATES 89 provide. 44 A life estate is liable for taxes, and the tenant's debts, 45 and may be sold under execution. 48 Merger Merger is the absorption of a lesser. estate into a greater, where two such estates, without any intermediate estate, meet in the same person. Consequently, where an estate for. years, or a life estate, and the fee meet in the same person, the smaller estate will be merged in the larger. 47 The same result will follow where an es- tate for years, or for life, and the next vested estate in remainder or reversion, provided the remainder or reversion is as large'as the preceding estate, 48 meet in the same person, 48 since one cannot be both tenant and reversioner, or landlord and tenant, in the same property. 60 For example, when a life tenant becomes the heir of the one who has the reversion or remainder in fee, or if he conveys his life interest to the owner of such reversion, a merger takes place, and the smaller estate loses its separate existence. 51 Where two estates meet in the same person and in the same right, it is immaterial, so far as merger is concerned, whether the union is produced by operation of law or by act of the parties. Where, however, the two estates vest in the same person in different rights by operation of law, merger will not ensue. Moreover, a joint in- terest in a life estate will not merge in a reversion owned in sev- Dall. (Pa.) 486, 1 L. Ed. 690; McMichael v. Craig, 105 Ala. 382, 16 South. 883. ** See the statutes of the different states. And see Edwards v. Bender, 121 Ala. 77, 25 South. 1010; Grout v. Townsend, 2 Hill (N. X.) 554; Patrick v. Sherwood, Fed. Cas. No. 10,804, 4 Blatchf. 112; 1 Stim. Am. St. Law, § 1402 (B). So, likewise, by statute in England, 8 & 9 Vict c. 106, § 4 (1845). " Wellington v. Janvrin, 60 N. H. 174 ; Pringle v. Allen, 1 Hill, Eq. (S. C.) 135. 46 Murch v. Manufacturing Co., 47 N. J. Eq. 193, 20 Atl. 213 ; Burhans v. Van Zandt, 7 N. Y. 523 ; Roberts v. Whiting, 16 Mass. 186 ; Wheeler v. Gor- ham, 2 Root (Conn.) 328; Ehrisman v. Sener, 162 Pa^ 577, 29 Atl. 719; Thomp- son v. Murphy, 10 Inti. App. 464, 37 N. E. 1094 ; American Mortg. Co. of Scot- land v. Hill, 92 Ga. 297, 18 S. E. 425. But see, as to the life tenant's lia- bility for special assessments, Stilwell v. Doughty, 2 Bradf. Sur. (N. Y.) 311. *? Bradford v. Griffin, 40 S. C. 468, 19 S. E. 76 ; Hovey v. Nellis, 98 Mich. 374, 57 N. W. 255. is Boykin v. Ancrum, 28 S. C. 486, 6 S. E. 305, 13 Am. St. Rep. 698; 4 Kent, Comm. 101. 4» Harrison v. Moore, 64 Conn. 344, 30 Atl. 55; Field v. Peeples, 180 111. 376, 54 N. E. 304; Pynchon v. Stearns, 11 Mete. (Mass.) 304, 312, 45 Am. Dec. 207, 210. 504 Kent, Comm. 99; Taylor, Landl. & Ten. 364; Fox v. Long, 8 Bush (Ky.) 551, 555. si2 Blk. Comm. 177; Co. Litt. 41b; Mudd v. Mullican (Ky.) 12 S. W. 263; Webster v. Gilman, 1 Story, 499, Fed. Cas. No. 17,335; Cary v. Warner, 63 90 ESTATES FOE LIFE (Ch. 7 eralty by one of the cotenants. 52 If an estate pur autre vie is, however, assigned to one who is a tenant for his own life, it may merge, since, as has been seen, the estate for one's own life is great- er than an estate pur autre vie. 53 Courts of equity may prevent estates from merging, and treat them as separate, when necessary to protect the fights of persons. 64 In general, two estates must-^ be of the same character, in order to produce a merger, and a legal estate will not merge in an equitable one, 55 although an equitable estate may merge in a legal, 58 unless, to protect equitable rights, it is essential that they be kept separate. 57 RIGHTS AND LIABILITIES OF LIFE TENANT 44. (a) The life tenant is entitled to the possession and use of the property during the life or lives by which his estate is measured. (b) He must pay the interest on incumbrances. (c) The tenant cannot recover compensation for improvements or repairs. (d) The tenant is entitled to estovers. '(e) There is a right to emblements on the death of a tenant for life, but he cannot claim them when he forfeits his estate. (f) A tenant must not commit waste; that is, any permanent and material injury to the inheritance. (g) The life tenant must, as a rule, pay the taxes during the continuance of his estate. Me. 571 ; Davis v. Townsend, 32 S. C. 112, 10 S. E 837 ; Bennett v. Trustees, 66 Md. 36, 5 Atl. 291 ; Shelton v. Hadlock, 62 Conn. 143, 25 Atl. 483 ; Harrison v. Moore, 64 Conn. 344, 30 Atl. 55. But see Browne v Bockover, 84 Va. 424, 4 S. B. 745 ; In re Butler's Estate, 14 Pa. Co. Ct. R. 667. 62 See Jameson v. Hay ward, 106 Cal. 682, 39 Pac. 1078, 46 Am. St Rep. 268. See post, chapter XII, for joint estates. 6s Boykin v. Ancrum, 28 S. C. 486, 6 S. E. 305, 13 Am. St. Rep. 698 ; 4 Kent, Comm. 101. But see Rosse's Case, 5 Coke, 13a; Snow v. Boycott, [1892] 3 Ch. 110. 6 4 Moore v. Luce, 29 Pa. 260, 72 Am. Dec. 629; Cole v. Grigsby (Tex. Civ. App. 1894) 35 S. W. 680. 66 Bassett v. O'Brien, 149 Mo. 381, 51 S. W. 107; Hopkinson v. Dumas, 42 N. H. 296 ; Litle v. Ott, Fed. Cas. No. 8,389, 3 Cranch, C. C. 416. 6 6 Welsh v. Phillips, 54 Ala. 309, 25 Am. s Rep. 679; Campbell v. Carter, 14 111. 286; Wills v. Cooper, 25 N. J. Law, 137; James v. Morey, 2 Cow. (N.T.) 246, 14 Am. Dec. 475 ; Robinson v. Codman, Fed. Cas. No. 11,970, 1 Sumn. 121. 6 7 Bassett v. O'Brien, 149 Mo. 381, 51 S. W. 107; James v. Morey, 2 Cow' (N. Y.) 246, 14 Am. Dec. 475; Earle v. Washburn, 7 Allen (Mass.) 95; Martin v. Pine, 79 Hun, 426, 29 N. T. Supp. 995. For equitable estates, see post chapter XIV. § 44) RIGHTS AND LIABILITIES OP LIFE TENANT 91 Possession and Use During the continuance of his estate, the life tenant is entitled to the possession and use of the property. 68 The income, rents, and profits of the land belong to him, 58 although, if a tenant under a lease is in possession of the land when the life tenancy begins, and continues in possession during the life estate, the life tenant dying before the rent is due, the administrator of the life tenant has no right to any of the rent, since it all belongs to the remainder- man or the reversioner. 80 Moreover, under the common-law rule, if the tenant for life make a lease reserving rent, and dies before the day the rent is due, the rent is not apportioned, and his per- sonal representative cannot recover the amount due when the les- sor died. 61 The English statutes of 11 Geo. II, c: 10, § 15, and 4 Wm. IV, c. 22, provided, however, for an apportionment of rent in case of such leases made by the life, tenant, 62 and similar, statutes have been enacted in some of our states. 88 The right of a life tenant to operate mines, quarriesf and oil or gas wells, is discussed under waste. 64 Interest on Incumbrances It is the duty of the tenant to keep down the interest on incum- brances during the continuance of his estate, 65 but he is not bound ss Wright v. Stice, 173 111. 571, 51 N. E. 71; Buck v. Binnlnger, 3 Barb. (N. T.) 391; McCall v. McCall, 2 Walk. (Pa.) 202. 5» Dwyer v. Wells, 5 Misc. Bep. 18, 25 N. YT Supp. 59; Scovel v. Roosevelt, 5 Redf. Sur. (N. Y.) 121; In re Ryder, 4 Edw. Ch. (N. Y.) 338; Koen v. Bartlett, 41 W. Va. 559, 23 S. E. 664, 31 L. B. A. 128, 56 Am. St. Bep. 884; Gairdner v. Tate, 110 Ga. 456, 35 S. E. 697; Noble v. Tyler, 61 Ohio St. 432, 56 N. E. 191, 48 L. R. A. 735. so Watson v. Penn, 108 Ind. 21, 8 N. E. 636, 58 Am. Rep. 26, eiClun's Case, 10 Coke, 127a; Hay v. Palmer, 2 P. Wms. 501, 24 Eng. Eeprints, 835 ; Van Hayes v. West, 3 Ohio Cir. Ct. E. 64, 2 O. C. D. 37 ; Hoagland v. Crum, 113 111. 365, 55 Am. Bep. 424; Noble v. Tyler, 61 Ohio St. 432, 56 N. E. 191, 48 L. B. A. 735. «2 Ex parte Smyth, 1 Swanst. 337, 36 Eng. Beprints, 412; 2 Blk. Comm. 124; Marshall v. Moseley, 21 N. Y. 280; Borie v. Crissman, 82 Pa. 125; 1 Washb. Beal Prop. (6th Ed.) 115. 63 Price v. Pickett, 21 Ala. 741 ; Borie v. Crissman, 82 Pa. 125 ; Henderson's Ex'r v. Boyer, 44 Pa. 220 ; Marshall v. Moseley, 21 N. Y. 280. See 1 Stim. Am. St. Law, § 2027. 94 See Infra. 65 Plympton v. Boston Dispensary, 106 Mass. 544; Bowen v. Brogan, 119 Mich. 218, 77 N. W. 942, 75 Am. St. Bep. 387 ; Damm v. Damm, 109 Mich. 619, 67 N. W. 984, 63 Am. St. Bep. 601; Wade v. Malloy, 16 Hun (N. Y.) 226; Gelston v. Shields, 16 Hun (N. Y.) 143; Ward's Estate, 3 Pa. Co. Ct. R. 224; Bourne v. Maybin, Fed. Cas. No. 1,700, 3 Woods, 724; Barnes v. Bond, 32 Beav. (Eng.) 653. 92 ESTATES FOE LIFE (Ch. 7 to pay off the principal. 68 However, if he does, he is entitled to con- tribution from the reversioner or remainderman. 67 If he fails to pay the interest, he is guilty of waste, and is liable to the remain- derman for any damage suffered. 68 If he pays the principal, the reversioner or remainderman should reimburse him with an amount equivalent to the difference between the sum paid and the present worth of the interest for which the life tenant would have been liable during his tenancy ; 69 the probable duration of, the life meas- uring the estate being determined by standard tables of mortality. 70 Improvements and Repairs The tenant for life is not bound to make improvements on the. property, 71 and he cannot ordinarily recover for any improvements which he may make. 72 He may, however, put buildings into ten- ««Plympton v. Boston Dispensary, 106 Mass. 544; Whitney v. Salter, 36 Minn. 103, 30 N. W. 755, 1 Am. St. Rep. 656; Thomas v. Thomas, 17 N. J. Eq. 356 ; Cogswell v. Cogswell, 2 Edw. Ch. (N. Y.) 231 ; Bourne v. Maybin. Fed. Cas. No. 1,700, 3 Woods, 724. «i Jones v. Gilbert, 135 111. 27, 25 N. E. 566; Boue v. Kelsey, 53 111. App. 295; Whitney v. Salter, 36 Minn. 103, 30 N. W. 755, 1 Am. St. Rep. 656; Downing v. Hartshorn, 69 Neb. 364, 95 N. W v 801, 111 Am. St. Rep. 550. 86 Wade v. Malloy, 16 Hun (N. Y.) 226. ' «»Callicott v. Parks, 58 Miss. 528; Thomas v. Thomas, 17 N. J. Eq. 356. 'o Present Value of Life Estate. — There are times when the present value of a life estate in comparison with the value of the reversion or re- mainder is of great importance. See Williams' Case, 3 Bland (Md.) 186, 221. This relative value has been, .at times, arbitrarily fixed at one-third of the whole value. Clyat v. Batteson, 1 Vern. Ch. 404, 23 Eng. Reprint, 546; Den- nison's Appeal, 1 Pa. 201 ; Datesman's Appeal, 127 Pa. 348, 17 Atl. 1086, 1100 ; Wright v. Jennings, 1 Bailey (S. C.) 277. The proper rule, however, is to determine the value by calculating the probable duration of the life estate •from tables of mortality, modified, in any particular case, by the peculiar circumstances. Steiner v. Berney, 130 Ala. 289, 30 South. 570; Williams' Case, supra ; Jones v. Sherrard, 22 N. C. 179 ; Abercrombie v. Riddle, 3 Md. Ch. 320 ; Bell v. New York, 10 Paige (N. Y.) 49 ; Foster v. Hilliard, supra ; ' Atkins v. Kron, 43 N. C. 1; Swaine v. Perine, 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318; Cogswell v. Cogswell, 2 Edw. Ch. (N. Y.) 231. But see note to Esta- brook v. Hapgood, 10 Mass. 313; Dorsey v. Smith, 7 Har. & J. (Md.) 345, 367. "Bradley's Estate, 3 Pa. Dist. R. 359; Tragbar's Estate, 2 Pa. Dist. R. 407 ; Id., 12 Pa. Co. Ct. R. 635. 72 Chilvers v. Race, 196 111. 71, 63 N. E. 701 ; Mayes v. Payne, 60 S. W. 710, 22 Ky. Law Rep. 1465 ; Sohier v. Eldredge, 103 Mass. 345 ; Smalley v. Isaac- . son, 40 Minn. 450, 42 N. W. 352 ; In re Very's Estate, 24 Misc. Rep. 139, 53 N. Y. Supp. 389, 28 N. Y. Civ. Proc. 163 ; Datesman's Appeal, 127 Pa. 348, 17 Atl. 1086, 1100 ; Hagan v. Varney, 147 111. 281, 35 N. E. 219 ; In re Lamb, 10 Misc. Rep. 638, 32 N. Y. Supp. 225 ; Merritt v. Scott, 81 N. C. 385 ; Corbett v. Laurens, 5 Rich. Eq. (S. C.) 301 ; Elam v. Parkhill, 60 Tex. 581 ; Van Bibber v. Williamson, 37 Fed. 756; MISSOURI CENTRAL BUILDING & LOAN ASS'N v. EVELER, 237 Mo. 679, 141 S. W. 877, Ann. Cas. 1913A, 486, Burdick Cas. Real Property. Cf. Datesman's Appeal, 127 Pa. 348, 17 Atl. 1086, 1100. § 44) EIGHTS AND LIABILITIES OF LIFE TENANT 93 antable condition at the expense of the estate, or complete a house begun by the donor under whom he holds. 78 He must make all ordinary repairs at his own expense, 74 but he is not required to replace buildings destroyed by the elements. 76 A neglect, however, by the life tenant to make necessary repairs, is waste. 76 Estovers A tenant for life has a right to estovers or botes. 77 By this is meant a right to take wood, or to cut timber, from the land for the necessary purposes of fuel, repairs, fences, agricultural imple- ments, and the like. 78 The word "bote" was frequently used in combination with some descriptive term, as: (1) House bote, or the right to cut wood for repairing buildings and to use for fuel, 7 " the latter sdmetimes being termed fire bote;' (2) plough bote, or the right to cut wood for repairing farming implements; 80 and (3) hay bote, or the right to cut wood for repairing fences. 81 The tenant is not entitled, however, to take more than is necessary for his reasonable needs, 82 and cannot cut timber for the purpose of selling it. 88 His right to estovers includes, however, what may be required for his servants. 8 * is Sohier v. Eldredge, 103 Mass. 345 ; Parsons v. Winslow, 16 Mass. 361 ; Dent v. Dent, 30 Beav. 363, 8 Jur. N. S. 786, 31 L. J. Ch. 436. Cf. Brough v. Higgins, 2 Grat. (Va.) 408; In re Laytin (Sur.) 20 N. Y. Supp. 72. 74 Smith v. Blindbury, 66 Mich. 319, 33 N. W. 391 ; St. Paul Trust Co. v. Mintzer, 65 Minn. 124, 67 N. W. 657, 32 L. R. A. 756, 6p Am. St. Rep. 444; In re Very's Estate, 24 Misc. Rep. 139, 53 N. Y. Supp. 389, 28 N. X. Civ. Proc. 163 ; In re Steele, 19 N. J. Eq. 120 ; Kearney v. Kearney, 17 N. J. Eq. 59 ; Wil- son v. Edmonds, 24 N. H. 517; Brooks v. Brooks, 12 S. C. 422. ts Miller v. Shields, 55 Ind. 71 ; Sampson v. Grogan, 21 R. I. 174, 42 Atl. 712, 44 L. R. A. 711. 7 6 St. Paul Trust Co. v. Mintzer, 65 Minn. 124, 67 N. W. 657, 32 L. R. A. 756, 60 Am. St. Rep. 444; Sarles v. Sarles, 3 Sandf. Ch. (N. T.) 601. 77 Estovers and bote are Old French words, meaning necessaries, aid, help. 78 4 Kent, Comm. 73; Zimmerman v. Shreeve, 59 Md. 357; Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 362 ; Beam v. Woolridge, 3 Pa. Co. Ct. R. 17. 79 White v. Cutler, 17 Pick. (Mass.) 248; Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705; Smith v. Jewett, 40 N. H. 530; Smith v. Poyas, 2 Desaus. (S. C.) 65. But see Padelford v. Padelford, 7 Pick. (Mass,) 152. Cf. Loomis v. Wilbur, 5 Mason, 13, Fed. Cas. No. 8,498. so 2 Blk. Comm. 35, 122. - si Elliot v. Smith, 2 N. H. 430. « 2 Smith v. Jewett, 40 N. H. 530; Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705. sa Modlin v. Kennedy, 53 Ind. 267 ; Van Syckel v. Emery, 18 N. J. Eq. 387 ; Glass v. Glass, 6 Pa. Co. Ct. R. 408 ; Beam v. Woolridge, 3 Pa. Co. Ct. R. 17. si Smith v. Jewett, 40 N. H. 530. But see Sarles v. Sarles, 3 Sandf. Ch. (N. T.) 601. 94 ESTATES FOE LIFE (Ch. 7 Emblements The personal representative of a tenant for life is entitled to emblements, that is, to the crops maturing after the death of the tenant, since the tenant's estate is one of uncertain duration. 86 The . tenant himself cannot claim them, however, if he forfeits his estate by not performing a condition, 88 although he can if his interest is terminated without his fault. 87 The lessee of a tenant for life is en- titled to emblements; 88 and likewise the lessee of one who holds during her widowhood, but terminates her estate by marriage. 89 If, however, she herself were in possession, she could not claim em- blements, because she terminated the estate by her own act. 90 Waste A life tenant must not commit waste, 91 Or, in other words, he must not cause or suffer any permanent and material injury to the inheritance. 92 He is liable for waste committed, not only by him- self, but also by a stranger, 98 since the one next entitled to the ss Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746, 1 L. R. A. 427, 7 Am. St. Rep. 316; Shaffer v. Stevens, 143 Ind. 295, 42 N. E. 620; Perry v. Terrel, 21 N. C. 441; Hunt v. Watkins, 1 Humph. (Tenn.) 498; Poindexter v. Black- burn, 36 N. C. 286 ; Spencer v. Lewis, 1 Houst (Del.) 223. But cf. Reiff v. Reiff, 64 Pa. 134. 86 2 Blk. Comm. 123; Oland's Case, 5 Coke, 116a; Hawkins v. Skeg^s Adm'r, 10 Humph. (Tenn.) 31; Bulwer v. Bulwer, 2 B. & Aid. 470, 21 Rev. Rep. 358. Cf. Debow v. Colfax, 10 N. J. Law, 128. 87 2 Blk. Comm. 123; 4 Kent, Comm. 73; Price v. Pickett, 21 Ala. 741; King v. Whittle, 73 Ga. 482. 88 2 Blk. Comm. 123; Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746, 1 L. R. A. 427, 7 Am. St. Rep. 316 ; Bevans v. Briscoe, 4 Harr. & J. (Md.) 139 ; King v. Poscue, 91 N. C. 116. 89 2 Blk. Comm. 124. »o Hawkins v. Skeggs' Adm'r, 10 Humph. (Tenn.) 31 ; Oland's Case, 5 Coke, 116a. »i Van Syckel v. Emery, 18 N. J. Eq. 387; Williamson v. Jones, 43 W. Va. 563, 27 S. E. 411, 38 L. R A. 694, 64 Am. St. Rep. 891. The restriction ap- plied only to a tenant in dower and curtesy until the statute of Marlebridge, 52 Hen. Ill, c. 23. A tenant in tail after possibility of issue extinct is not liable, however, for waste. Ante. »2 Wade v. Malloy, 16 Hun (N. Y.) 226; Jackson v. Brownson, 7 Johns. (N. Y.) 227, 5 Am. Dec. 258; McCullough v. Irvine's Ex'rs, 13 Pa. 438; Williamson v. Jones, 43 W. Va. 563, 27 S. E. 411, 38. L. R A. 694, 64 Am. St. Rep. 891. »3 4 Kent, Comm. 77 ; Wood v. Griffin, 46 N. H. 230 ; Fay v. Brewer, 3 Pick. (Mass.) 203; Cook v. Transportation Co., 1 Denio (N. Y.) 91; Austin v. Rail- way Co., 25 N. Y. 334 Cf. Beers v. Beers, 21 Mich. 464. Not, however, for injuries resulting from "act of God," the law, or the public enemy. Co. Litt 53a, 54a; Pollard v. Shaaffer, 1 DalL (Pa.) 210, 1 L Ed. 104, 1 Am. Dec. 239. Cf . AttersoU v. Stevens, 1 Taunt 198 ; Huntley v. Russell, 13 Q. B D 572. § 44) RIGHTS AND LIABILITIES OF LIFE TENANT 95 premises has a right to have them come to him without their value being impaired by any destruction of the corporeal thing. 94 It may, indeed, be provided, at the creation of the estate, that the tenant shall not be liable for waste, or, according to the old form, that he shall hold "without impeachment for waste." 9B Even then, wanton injury, or "equitable waste," will be restrained by a court of chancery. 06 Injury which occurs from positive acts of the tenant is "voluntary waste," and Injury resulting from his neglect of duty is "permissive waste." For example, permitting a build- ing to fall down from want of repair, as distinguished from pulling it down, would be permissive waste. 97 The English rules govern- ing waste are more strict than in this country, particularly with ref- erence to the use of land and the cutting of timber. 88 Moreover, owing to the great difference in conditions, the English rules are to a large extent inapplicable here. 99 Further, what would be waste in a thickly settled Eastern state might not be waste in a new and undeveloped locality. 1 In England, it is said to be waste to use land for a purpose other than its peculiar character or fit- ness makes most appropriate, as, for example, to convert arable »«Proffitt v. Henderson, 29 Mo. 327; Sackett v. Sackett, 8 Pick. (Mass.) 309 ; Dejarnatte v. Allen, 5 Grat. (Va.) 499 ; Huntley v. Russell, 13 Q. B. Div. 572, 588.' as 2 Blk. Comm. 283 ; Belt v. Simkins, 113 Ga. 894, 39 S. E. 430 ; Stevens v. Rose, 69 Mich. 259, 37 N. W. 205; Pyne v. Dor, 1 Term R. 55; Bowles' Case, 11 Coke, 79b. See, also, - Gent v. Harrison, 1 Johns. Eng. Ch. 517 ; Turner v. Wright, 2 De Gex, F. & J. 234. »« Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004; Stevens v. Rose, 69 Mich. 259, 37 N. W. 205; Vane v. Lord Barnard, 2 Vern. 738; Roet v. Somerville, 2 Eq. Cas. Abr. 759; Lushington v. Boldero, 15 Beav. 1. And see Marker v. Marker, 4 Eng. Law & Eq. 95. »'2 Blk. Comm. 281. As to permissive waste by a tenant at will, see Coun- tess of Shrewsbury's Case, 5 Coke, 13. And see Heme v. Bembow, 4 Taunt. 764. Cf. Townshend v. Moore, 33 N.' J. Law, 284. esKeeler v. Eastman, 11 Vt 293; Pynchon v. Stearns, 11 Mete. (Mass.) 304, 45 Am. Dec. 207 ; Jackson v. Brownson, 7 Johns. (N.'T.) 227, 5 Am. Dec. 258; Lynn's Appeal, 31 Pa. 44, 72 Am. Dec. 721; Drown v. Smith, 52 Me. 141; Crockett v. Crockett, 2 Ohio St. 180; Kidd v. Dennison, 6 Barb. (N. Y.) 9; Findlay v. Smith, 6 Munf. (Va.) 134, 8. Am. Dec. 733. And see Carpenter, J., in Morehouse v. Cotheal, 22 N. J. Law, 521. so Pynchon v. Stearns, 11 Mete. (Mass.) 304, 45 Am. Dec. 207; Disher v. Disher, 45 Neb. 100, 63 N. W. 868; McCay v. Wait, 51 Barb. (N. T.) 225; Williard v. Williard, 56 Pa. 119 ; Melms v. Brewing Co., 104 Wis. 9, 79 N. W. 738, 46 L. R. A. 478. i Morehouse v. Cotheal, 22 N. J. Law, 521; Webster v. Webster, 33 N. H. 18, 66 Am. Dee. 705 ; Davis v. Gilliam, 40 N. C. 308. < 96 ESTATES FOE LIFE ' (Cll. 7 land into a meadow,* or to plow up pasture land.* Such is surely not the rule in this country.* If, however, one holding farming lands as tenant for life cultivates in a way not sanctioned by the rules of good husbandry, he is guilty of waste." He should not, for instance, exhaust the land by constant tillage, without change of crop or the use of fertilizers, 6 nor should he permit brush to choke up meadow land. 7 On the other hand, in many cases, a question of fact is raised for the jury whether certain acts com- plained of are waste or not. 8 Buildings and Fences Formerly there was a very strict rule that almost any alteration in a building was waste. This rule is now relaxed, however, and the test of whether or not the reversion has been impaired is often applied. 10 It is waste, however, for the tenant to remove things made fixtures by annexation, 11 and it may be waste to demolish a building, even if it be untenantable. 12 Waste, also, in respect to buildings, may be committed by suffering them to become ruinous for want of repair. 18 This is, in fact, almost the only way in which 2 2 Blk. Comm. 282. See, also, Pynchon v. Stearns, 11 Mete. (Mass.) 304, 45 Am. Dec. 207 ; Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621. a Keepers, etc., of Harrow School v. Alderton, 2 Bos. & P. 86. * Proffitt v. Henderson, 29 Mo. 325 ; McCullough v. Irvine's Ex'rs, 13 Pa. 438 ; Clark v. Holden, 7 Gray (Mass.) 8, 66 Am. Dec. 450 ; Pynchon v. Stearns, 11 Mete. (Mass.) 304, 45 Am. Dec. 207; Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621 ; Alexander v. Fisher, 7 Ala. 514. Cf. Chase v. Hazelton, 7 N. H. 171. 5 Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601. Cf. Jackson ex dem. Van Rensselaer v. Andrew, 18 Johns. (N. T.) 431. « Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601. t Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621. s Webster v. Webster, 33 N. H..18, 66 Am. Dec. 705; McCay v. Wait, 51 Barb. (N. Y.) 225; King v. Miller, 99 N. C. 583, 6 S. E. 660. » This was on the ground that such change tended to destroy evidences of identity. Huntley v. Russell, 13 Q. B. Div. 572, 588. It made no difference that such change's increased the value of the building. City of London v. Greyme, Cro. Jac. 181. Cf. Douglass v. Wiggins, 1 Johns. Ch. (N. Y.) 435. io Agate v. Lowenbein, 57 N. Y. 604; Doe v. Earl of Burlington, 5 Barn. & Adol. 507; Young v. Spencer, 10 Barn. & C. 145; Hasty v. Wheeler, 12 Me 434. ii Stevens v. Rose, 69 Mich. 259, 37 N. W. 205 ; McCullough v. Irvine's Ex'rs, 13 Pa. 438 ; Dozier v. Gregory, 46 N. C. 100. Cf . Clemence v. Steere 1 R I 272, 53 Am. Dec. 621. "McCullough v. Irvine's Ex'rs, 13 Pa. 438; Dooly v. Stringham, 4 Utah, 107, 7 Pac. 405 ; Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621. is Abbot of Sherbourne's Case, Y. B. 12 Hen/lV, 5. Cf. Dozier v Gregory 46 N. c. ioa § 44) EIGHTS AND LIABILITIES OF LIFE TENANT 97 permissive waste occurs. As already stated, wood may be cut to keep the buildings and fences in repair ; but the duty to repair ex- ists, even when there is no wood. 14 However, the tenant is not bound to put in repair buildings which are ruinous when he takes the premises. 15 The tenant is also liable for negligent, but not for accidental, fires. 18 Cutting Trees As already stated, the strict English rule that the cutting of tim- ber is waste has been greatly modified in this country. 17 Generally, at common law, the tenant may take a reasonable amount of wood for estovers, 18 and in this country the right to cut timber may ex- tend to the clearing of woodland for the purposes of cultivation. 19 Whether, however, this or any other cutting of timber is waste de- pends in each case on the customs of the locality and the condition of the estate* 20 • A tenant for life cannot cut timber to sell, 21 except in cases where that has been the way of enjoying the land, 22 or where the timber is cut to clear the land for cultivation. 28 i* Co. Litt. 53a. is Wilson v. Edmonds, 24 N. H. 517; Clemence v. Steere, 1 R. I. 272, 53, Am. Dec. 621. i« Anon., Fitzh. Abr. "Waste," pi. 30; Cornish v. Strutton, 8 B. Mon. (Ky.) 586. i? Sayers v. Hoskinson, 110 Pa. 473, 1 Atl. 308. ispadelford v. Padelford, 7 Pick. (Mass.) 152; Calvert v. Rice, 91 Ky. 533, 16 S. W. 351, 34 Am. St. Rep. 240; Gardner v. Bering, 1 Paige (N. T.) 573; Smith v. Jewett, 40 N. H. 530; Miles v. Miles, 32 N. H, 147, 64 Am. Dec. 362. And see supra. i» Proffitt v. Henderson, 29 Mo. 325; Jackson v. Brownson, 7 Johns 1 . (N. Y.) 227, 5 Am. Dec. 258 ; Morris v. Knight, 14 Pa. Super. Ct. 324 ; Drown v. Smith, 52 Me. 141 ; Ward v. Sheppard, 3 N. C. 283, 2 Am. Dec. '625 ; Owen v. Hyde, 6 Yerg. (Tenn.) 334, 27 Am. Dec. 467; Disher v. Disher, 45 Neb. 100, 63 N. W. 368 ; Davis v. Clark, 40 Mo. App. 515. But cf . Chase v. Hazelton', 7 N. H. 171. And can sell the wood so , cut. Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 527; Keeler v. Eastman, 11 Vt. 293; Crockett v. Crockett, 2 Ohio St. 180 ; Davis v. Gilliam, 40 N. C. 308. 20 McCullough v. Irvine's Ex'rs, 13 Pa. 438 ; Keeler v. Eastman, 11 Vt. 293. Cf. Parkins v. Coxe, 3 N. C. 339.; Carr v. Carr, 20 N. C. 317. 2iModlin v. Kennedy, 53 Ind. 267; Learned v. Ogden, 80 Miss. 769, 32 South. 278, 92 Am. St. Rep. 621 ; Davis v. Clark, 40 Mo. App. 515 ; Johnson v. Johnson, 18 N. H. 594 ; Davis v. Gilliam, 40 N. C. 308 ; -Miller v. Shields, 55 Ind. 71; Parkins v. Coxe, Mart. & H. (N. C.) 517; Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621; Kidd v. Dennison, 6 Barb. (N. Y.) 9; Glass v. Glass, 6 Pa. Co. Ct. 408. 22 Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621; Ball en tine v. Poyner, Mart. & H. (N. C.) 268; Den v. Kinney, 5 N. J. Law, 552. And cf. Carr v. Carr, 20 N. C. 217. 23 See note 19, supra. Bubd.Real Peop. — 7 98 ESTATES FOE LIFE (Ch. 7 Mines, Quarries, Oil and Gas Wells The rule is well established that a life tenant cannot open new- mines, 2 * quarries, 26 or oil or gas wells; 26 but he may operate, ei- ther for his own use or even for profit, 27 those already opened at the beginning of his v tenancy. 28 The rule that prevents his own legal operation of new mines or wells also prevents him from giv- ing a valid lease to another for such a purpose. 29 Moreover, the one entitled to the next estate cannot work thymines and quarries on the land during the continuation of the life tenant's interest without the life tenant's consent. 30 Whether mines, quarries, and wells are new is a question of fact. An abandoned mine cannot, as a rule, be operated by the life tenant; 31 but a mere cessation of work, even for a long period, would not prevent his right to con- tinue it. 32 Remedies for Waste At early common law, the remedies, for waste were the writ of prohibition and attachment and the writ of waste. At first, how- ever, these writs were issuable only against tenants in dower and 24 Hook v. Coal Co., 112 Iowa, 210, 83 N. W. 963 ; Franklin Coal Co. v. McMillan, 49 Md. 549, 33 Am. Rep. 280; Maher's Adm'r v. Maher, 73 Vt. 243, 50 Atl. 1063. 25 Maher's Adm'r v. Maher, 73 Vt. 243, 50 Atl. 1063 ; Gaines v. Mining Co., 32 N. J. Eq. 86; Owings v. Emery, 6 Gill (Md.) 260. Cf. Coates v. Cheever, 1 Cow. (N. Y.) 460; Williamson v. Jones, 39 W. Va. 231, 19 S. E. 436, 25 L. R. A. 222; Childs v. Railway Co., 117 Mo. 414, 23 S. W. 373. 26 Marshall v. Mellon, 179 Pa. 371, 36 Atl. 201, 35 L. R. A. 816, 57 Am. St. Rep. 601; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891. 27 Neel v. Neel, 19 Pa. 323 ; Franklin Coal Co. v. McMillan, 49 Md. 549, 33 Am. Rep. 280. as Gaines v. Mining Co., 33 N. J. Eq. 603; HIGGINS OIL & FUEL CO. v. SNOW, 113 Fed. 433, 51 C. C. A: 267, Burdick Cas. Real Property; Astry v. Ballard, 2 Mod. 193; Neel v. Neel, 19 Pa. 323; Sayers v. Hoskinson, 110 Pa. 473, i Atl. 308. Cf. Russell v. Bank, 47 Minn. 286, 50 N. W. 228, 28 Am. St. Rep. 368; Billings v. Taylor, 10 Pick. (Mass.) 460, 20 Am. Dec. 533; Reed's Ex'rs v. Reed, 16 N. J. Eq. 248; Lynn's Appeal, 31 Pa. 44, 72 Am. Dec. 721. And see Irwin v. Covode, 24 Pa. 162. The life tenant is allowed new shafts into' old veins. Crouch v. Puryear, 1 Rand. (Va.) 258, 10 Am. Dec. 528; Clavering v. Clavering, 2 P. Wms. 388. 29 Hook v. Coal Co., 112 Iowa, 210, 83 N. W. 963; Gerkins v. Salt Co., 100 Ky. 734, 39 S. W. 444, 66 Am. St. Rep. 370 ; Marshall v. Mellon, 179 Pa ' 371 36 Atl. 201, 35 L R. A. 816, 57 Am. St. Rep. 601. so See Kier v. Peterson, 41 Pa. 357. si Hook v. Coal Co., 112 Iowa, 210, 83 N. W. 963 ; Gaines v. Mining Co., 33 N.' J. Eq. 603, reversing 32 N. J. Eq. 86. See Bagot v. Bagot, 32 Beav 509 8 Jur. N. S. 1022, 33 L J. Ch. 116. 82 id. § 44) RIGHTS AND LIABILITIES OF LIFE TENANT 99 by the curtesy and guardians in chivalry, 83 but later, by force of the statutes of Marlbridge 34 and Gloucester, 85 against those hold- ing for terms of life or for years. This latter statute enacted that the place wasted should be forfeited, and that the person "attainted of waste shall recompense thrice' so much as the waste shall be taxed at." 88 The writ of waste is now abolished in England, 37 and in that country a tenant for life is liable only for damages in an action for waste already done. 88 In this country, some states have held that the statute of Gloucester, providing .for forfeiture and treble damages, is in force, 89 while other states have held the contrary. 40 In some jurisdictions, an action on the case in the na- ture of waste is held a proper remedy, 41 although, in most states, actions for waste are regulated by the local statutes. 42 Threatened waste may be restrained by injunction ; 48 but an injunction may be denied where the injury complained of is such that an action for damages will afford adequate relief. 44 Trees or minerals, when unlawfully severed from the land by waste, belong to the rever- sioner or remainderman, and he may maintain trover or other ap- propriate action for their recovery. 46 „ 83 Co. Litt, 54; Townshend v. Moore, 33' N. J. Law, 284. s* 52 Hen. Ill, & 23, § 2 (A. D. 1267). as 6 Edw. I, c. 5 (A. D. 1278). sol Cruise, Dig. 119, §§ 25, 26; Sackett v. Sackett, 8 Pick. (Mass.) 313; Townshend v. Moore, 33 N. J. Law, 284. 37 St. 3 & 4 Wm. IV, c. 27, § 36. 38 Williams, Real Prop. (17th Interna t. Ed.) 128. s» Sackett v. Sackett, 8 Pick. (Mass.) 313 ; Dozier v. Gregory, 46 N. C. 100. 40 Moore v. Ellsworth, 3 Conn. 483 ; Woodward v. Gates, 38 Ga. 205. *i 4 Kent, Comm. 81 ; Townshend v. Moore, 33 N. J. Law, 284 ; Yocum v. Zahner, 162 Pa. 468, 29 Atl. 778. *2 See 1 Washb. Real Prop. (5th Ed.) p. 157 ; Smith v. Mattingly, 96 Ky. 228, 28 S. W. 503 ; Dodge v. Davis, 85 Iowa, 77, 52 N. W. 2 ; Hatch v. Hatch, 31 Wkly. Law Bui. (Ohio) 57 ; Donald v. Elliott, 11 Misc. Rep. 120, 32 N. Y. Supp. 821 ; 1 Stim. Am. St. Law, §§ 1332, 1353. *a Porch v. Fries, 18 N. J. Eq. 204; Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601 ; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891. See Fetter, Eq. 299; Obrien v. Obrien, Arab. 107; Perrot v. Perrot, 3 Atk. 94. See, also, Smyth v. Carter, 18 Beav. 78 ; Calm v. Hewsey, 8 Misc. Rep. 384, 29 N. Y. Supp. 1107; Arment v. Hensel, 5 Wash. 152, 31 Pac. 464; Webster v. Peet, 97 Mich. 326, 56 N. W. 558; Perry v. Hamilton, 138 Ind. 271, 35 N. E. 836. Cf. Jackson ex dem. Van Rensselaer v. Andrew, 18 Johns. (N. Y.) 431. 44 Greathouse v. Greathouse, 46 W. Va. 21, 32 S. E. 994. 45 Whitfield v. Bewit, 2 P. Wms. 240; Castlemain v. Craven, 22 Vin. Abr. 523, pi. 11. And see Bewick v. Whitfield, 3 P. Wms. 267 ; Bateman v. Hotch- kin, 31 Beav. 486 ; Honywood v. Hony wood, L. R. 18 Eq. 306 ; Nicklase v. Mor- 100 ESTATES FOE LIFE (Ch. 7 Taxes and Assessments Unless relieved by an agreement to the contrary/ 8 the life ten- ant must pay the taxes during the continuance of his estate. 47 A failure to pay taxes, with the consequent sale of the land for the same, will amount to waste. 48 In the case of assessments, the life tenant is bound to pay in full for temporary benefits enjoyed only by. himself ; 4S but for permanent improvements he is under obligation to pay only his equitable part of the'assessments, 80 and where he makes full payment of such assessments he is entitled to contribution. 51 TERMINATION OF LIFE ESTATES 45. Life estates are terminated by the death of the person by whose life the estate is measured. They may also be terminated by forfeiture for waste, by nonpayment of taxes, by breach of condition, by surrender, and by foreclosure sale. rison, 56 Ark. 553, 20 S. W. 414 ; Stowell v. Waddingham, 100 Cal. 7, 34 Pac. 436; Mooers v. Wait, 3 Wend. (N. Y.) 104, 20 Am. Dec. 667. 48 Abernethy v. Orton, 42 Or. 437, 71 Pac. 327, 95 Am. St Rep. 774; Griffin v. Fleming, 72 Ga. 697 ; Bruner's Estate, 6 Pa. Co. Ct R. 221. *f Wright v. Stice, 173 111. 571, 51 N. E. 71; Plympton v. Boston Dispensary, 106 Mass. 544 ; Jeffers v. Sydnam, 129 Mich. 440, 89 N. W. 42 ; St. 'Paul Trust Co. v. Mintzer, 65, Minn. 124, 67 N. W. 657, 32 L. R. A. 756, 60 Am. St. Rep. 444; Hall v. French, 165 Mo. 430, 65 S. W. 769; Sage v. Gloversville, 43 App. Div. 245, 60 N. Y. Supp. 791; Jewell's Estate, 11 Phila. (Pa.) 73; Pike v. Wassell, 94 U. S. 711, 24 L. Ed. 307 ; Jenks v. Horton, 96 Mich. 13, 55 N. W. 872 ; Watkins v. Green, 101 Mich. 493, 60 N. W. 44 ; Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 796 ; Disher v. Disher, 45 Neb. 100, 63 N. W. 368 ; Chaplin v. United States, 29 Ct. CI. 231 ; Varney v. Stevens, 22 Me. 331 ; Patrick v. Sher- wood, 4 Blatchf. 112, Fed. Cas. No. 10,804; Fleet v. Dorland, 11 How. Prac. (N. Y.) 489 ; Johnson v. Smith, 5 Bush (Ky.) 102. See Cochran v. Cochran, 2 Desaus. (S. C.) 521. 48 St. Paul Trust Co. v. Mintzer, 65 Minn. 124, 67 N. W. 657, 32 L. R. A. 756, 60 Am. St. Rep. 444; Clark v. MIddlesworth, 82 Ind. 240; Wade v. Malloy, 16 Hun (N. Y.) 226. 4» Reyburn v. Wallace, 93 Mo. 326, 3 S. W. 482; Hitner v. Ege, 23 Pa. 305. so Hutson v. Tribbetts, 171 111. 547, '49 N. E. 711, 63 Am. St. Rep. 275 ; Plympton v. Boston Dispensary, 106 Mass. 544; Reyburn v. Wallace, 93 Mo. 326, 3 S. W. 482 ; Chamberlin v. Gleason, 163 N. Y. 214, 57 N. E. 487 ; Peck v. Sherwood, 56 N. Y. 615 ; Gunning v. Carman, 3 Redf . Surr. (N. Y.) 69. 6i Reyburn v. Wallace, 93 Mo. 326, 3 S. W. 482; In re Bradley's Estate, 3 Pa. Dist. R. 359; Bobb v. Wolff, 54 Mo. App. 515; Moore v. Simonson, 27 Or. 117, 39 Pac. 1105. Cf. In re Wyatt's Estate, 9 Misc. Rep. 285, 30 N. Y. Supp. 275 (insurance premiums). § 45) TERMINATION OF LIFE ESTATES 101 A life estate is terminated by the death of the tenant where the estate is for his own life, 52 or by the death of the cestui que vie in case of a life estate pur autre vie. 08 In some states, the forfeiture of the estate may be a penalty for waste, 64 or for a failure to pay the taxes on the property. 65 For- feiture may also follow a breach of condition, where the instrument creating the estate so expressly provides. 50 The life tenant may surrender his estate to the reversioner or re- mainderman, 57 and foreclosure under a mortgage sale will termi- nate his interest. 58 02 Ratcllff v. Ratcliff, 12 Smedes & M. (Miss.) 134; Henderson v. Henderson, A Pa. Dist. R. 688 ; Sutton v. Hiram Lodge, 83 Ga. 770, 10 S. E. 585, 6 L R. A. 703 ; Flagg v. Badger, 58 Me. 258 ; In re Tracey, 136 Oal. 385, 69 Pac. 20 ; Avery v. Everett, 36 Hun (N. Y.) 6. "a Livingston v. Tanner, 14 N. Y. 64 ; Clarke v. Cummings, 5 Barb. (N. Y.) 339 ; Walker v. Fenner, 20 Ala. 192. b * City of Chauncy v. Brown, 99 Ga. 766; 26 S. E. 763; Kent v. Bentley, 10 Ohio Cir. Ct R. 132, 6 O. C. D. 457 ; Smith v. Mattingly, 96 Ky. 228, 28 S. W. 503. as Estabrook v. Rpyon, 52 Ohio St. 318, 39 N. E. 808, 32 L. R. A. 805, re- versing 5 Ohio Cir. Ct. R. 315, 3 O. C. D. 156. so Gilker v. Brown, 47 Mo. 105; Jackson ex dem. Stevens v. Silvernail, 15 Johns. (N. Y.) 278; Schroeder v. King, 38 Conn. 78; Moore v. Pitts, 53 N. Y. 85. 6 7 Curtis v. Hollenbeck, 92 111. App. 34; Livingston v. Potts, 16 Johns. (N. Y.) 28; Fisher v. Edington, 12 Lea (Tenn.) 189; Snook v. Munday, 90 Md. 701, 45 Atl. 1004. 68 Fidelity Ins., Trust & Safe-Deposit Co. v. Dietz, 132 Pa. 36, 18 Atl. 1090; Holmes v. Winler, 47 Fed. 257. 102 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 CHAPTER VIII LIFE ESTATES ARISING PROM MARRIAGE 46. Classes of Legal Life Estates. 47. Estate During Coverture. 48. Curtesy. 49. Estates Subject to Curtesy. 50. Incidents. 51. How Defeated. 52. Statutory Changes. • 53. Dower. 54. Estates Subject to Dower., 55. Assignment of Dower — Quarantine. 56. Procedure in Assignment. 57. Actions to Compel Assignment. 58. Incidents of Dower. 59. How Barred. 60. Statutory Changes. CLASSES OF LEGAL LIFE ESTATES 46. Legal life estates are life interests in land created by the con- struction and operation of law. In this country' all legal life estates of practical importance arise out of the marital relation. They are: I. At common law: (a) Estate during coverture, or by marital right. (b) Curtesy. (c) Dower. II. By force of statute: Homesteads. Legal life estates have already been denned as those created by act of law. In our system of law these estates all arise out of the marital relation, with the possible exception of an estate tail after possibility of issue extinct, 1 which is by some classed as a legal life estate. In England, there are also certain life estates held by persons subject to peculiar laws, as^ for example, life es- tates held by beneficed clergymen. These estates, however, are exceptions to the general law. 2 i See ante. * Williams, Real Prop. (17th Internat. Ed.) 147. § 47) ESTATE DURING OOVEETUEE 103 ESTATE DURING COVERTURE 47. The estate during coverture, or by marital right, is the right which the husband acquires at common law to the use and profits of his wife's real property, and to her chattels real. This right of the husband is qualified or abrogated by- (a) The equitable doctrine of the wife's separate property. (b) By statutory changes in nearly all the states. The Husband's Estate During Coverture v By the fact of marriage the husband acquires, at common law, a freehold interest, during the joint lives of himself and his wife, in all such freehold estates of inheritance as she was seised of at the time of the marriage, or in such as she may become seised of during the coverture. 3 Moreover, life estates in lands held by a woman, whether for her own life or during the life of some other person, inure upon her marriage to the benefit of her hus- band.* In all the freehold estates of the wife, husband and wife are jointly seised. 5 At the common law, the husband is entitled, during coverture, to all the uses, rents, and profits of his wife's lands. 8 To the extent of his life interest, 7 they belong to him s Co. Litt. 67a; FOSTER v. MARSHALL, 22 N. H. 491, Burdick Cas. Real Property; ROSE v. ROSE, 104 Ky. 48, 46 S. W. 524, 41 L. R. A. 353, 84 Am. St. Rep. 430, Burdick Cas. Real Property; Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618 ; Nicholls v. O'Neill, 10 N. J. Eq. 88 ; Shallenberger v. Ash- worth, 25 Pa. 152; Elliott v. Teal, Fed. Cas. No. 4,396, 5 Sawy. 249; Starr v. Hamilton, Fed. Cas. No. 13,314, 1 Deady, 268. His interest is a life es- tate, because it may last during his life ; i. e. if he should die before his wife. Co. Litt. 351a (Butl. & H. Notes) note 1; Babb v. Perley, 1 Me. 6; MeMn v. Proprietors, 16 Pick. (Mass.) 161 ; Nunn's Adm'rs v. Givhan's Adm'r, 45 Ala. 370. Parties in contemplation of marriage may by contract fix the rights which each shall have in the property of the other during life, or which the survivor shall have in the property of the other after his or her decease. Desnoyer v. Jordan, 27 Minn. 295, 7 N. W. 140. * 2 Kent, Comm. 134 ; Pringle v. Allen, 1 Hill, Eq. (S. C.) 135. = National Metropolitan Bank v. Hitz, 1 Mackey (D. C.) Ill ; Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618; Melvin v. Proprietors Merrimack River Locks, etc., 16 Pick. (Mass.) 161 ; Dyer v. Wittier, 14 Mo. App: 52. s Nunn's Adm'rs v. Givhan's Adm'r, 45 Ala. 370 ; Hayt v. Parks, 39 Conn. 357; Clapp v. Stoughton, 10 Pick. (Mass.) 463; Chancey v. Strong, 2 Root (Conn.) 369 ; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236 ; Lucas v. Rickerich, 1 ■t Brasfield v. Brasfield, 96 Tenn. 580, 36 S. W. 384 ; Lucas v. Rickerich, 1 Lea (Tenn.) 726; Trask v. Patterson, 29 Me. 499; Butterfleld v. Beall, 3 Ind. 203 ; Coleman v. Satterfield, 2 Head (Tenn.) 259. 104 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 absolutely, 8 may be assigned by him, and are liable for his debts. The wife's leasehold estates, or chattels real, also belong at com- mon law to the husband's use absolutely during coverture. 8 If, however, he does not dispose of- them during coverture, they vest absolutely in the wife, should she survive him, 10 but if he be the survivor they belong to him. 11 He cannot, however, dispose of them by will to the prejudice of the wife, since, should she survive him, she is entitled to them regardless of the will. 12 At common law, the husband, being a tenant for life, could not commit waste, 13 although the wife's remedy was imperfect, be- cause she could not sue him. 14 He might, however, be restrained by injunction. 15 When waste was committed by the husband's assignee, this difficulty as to the remedy did not exist. 18 Lea (Tenn.) 726 ; Royston v. Royston, 21 Ga. 161 ; Bishop v. Blair, 36 Ala. 80 ; Gray v. Mathis, 52 N. C. 502 ; Meriwether v. Howe, 48 Mo. App. 148. And he may assign his right. Edrington v. Harper, 3 J. J. Marsh. (Ky.) 353, 20 Am. Dec. 145; Bailey v. Duncan, 4 T. B. Mon. (Ky.) 256; Co. Litt. 351a; Burt v. Hurlburt, 16 Vt. 292 ; Barber v. Root, 10 Mass. 260. Separation does not ter- minate his right Haralson v. Bridges, 14 111. 37; Van Note v. Downey, 28 N. J. Law, 219; Decker v. Livingston, 15 Johns. (N. Y.) 479; Mattocks v. Stearns, 9 Vt. 326; Fairchild v. Chastelleux, 1 Pa. 176, 44 Am. Dec. 117; Fairchild v. Chastelleux, 8 Watts (Pa.) 412 ; Dold's Trustee v. Geiger's Adm'r, 2 Grat. (Va.) 98. eClapp v. Stoughton, 10 Pick. (Mass.) 463; Tracey v. Dutton, Cro. Jac. 617, Palm. 206. » Gunn v. Sinclair, 52 Mo. 327. See also, Wellborn v. Finley, 52 N. C. 228 : Lucas v. Brooks, 18 Wall. 436, 21 L. Ed. 779 ; Riley's Adm'r v. Riley, 19 N. J. Eq. 229; Packer v. Wyndham, Prec. Ch. 412; Sym's Case, Cro. Eliz. 33; Loftus' Case, Id. 279; Grute v. Locroft, Id. 287; Daniels v. Richardson, 22 Pick. (Mass.) 565; Mattocks v. Stearns, 9 Vt. 326; Meriwether v. Booker, 5 Litt. (Ky.) 254 ; Appleton, C. J., in Allen v. Hooper, 50 Me. 374 ; Robertson v. Norris, 11 Q. B. 916. But not by will, if he die first. Co. Litt. 351a. io Co. Litt 351a ; Bacon, Abr. tit "Baron & Feme," (c) 2 ; 2 Blk. Comm. 434 ; In re Bellamy, 25 Ch. D. 620, 53 L. J. Ch. 174, 49 L. T. Rep. N. S. 708, 32 Wkly. Rep. 358 ; Riley's Adm'r v. Riley, 19 N. J. Eq. 229. ii In re Bellamy, 25 Ch. D. 620, 53 L. J. Ch. 174, 49 L T. Rep. N. S. 708, 32 Wkly. Rep. 358; Hanchett's Case, 2 Dyer, 251a; Archer v. Lavender, I. R. 9 Eq. 220. 12 Doe v. Polgrean, 1 H. Bl. 535, Co. Litt. 351a ; Parsons v. Parsons, 9 N. H. 309, 32 Am. Dec. 362; Schuyler v. Hoyle, 5 Johns. Ch. (N. Y.) 196; Butter- field v. Beall, 3 Ind. 203; Coleman v. Satterfield, 2 Head (Tenn.) 259. is Stroebe v. Fehl, 22 Wis. 337. i* Davis v. Gilliam, 40 N. C. 308 ; Babb v. Perley, 1 Greenl. (Me.) 6. Cf . 1 Bish. Mar. Worn. 393. io See Mellen, C. J., in Babb v. Perley, 1 Greenl. (Me.) 9. Cf. Stroebe v. Fehl, 22 Wis. 337. ie Stroebe v. Fehl, 22 Wis. 337; Davis v. Gilliam, 40 N. C. 308; Dejarnatte v. Allen, 5 Grat (Va.) 499. Cf. Ware v. Ware, 6 N. J. Eq. 117. § 47) ESTATE DURING COVEKTUBB 105 The Wife's Separate Estate ' A married woman's separate estate is that from which the do- minion and control of the husband is excluded and from which •he is to derive no benefit by reason of the marital relation as at common law. 17 It may be equitable or statutory, according to the mode of its creation. 18 Equitable Separate Estate A married woman's equitable separate estate is a trust securing property to her sole and separate use during coverture, recognized and upheld by courts of equity to the exclusion of the husband's common-law rights. 19 If the words -of the instrument which cre- ates the trust, whether a deed, 20 or a will, 21 clearly show that it is the intention to exclude the common-law rights of the hus- band, 22 an equitable separate estate is created, and is thus dis- tinguished from an ordinary equitable estate held by her, to which the common-law marital rights of the husband attach. 23 In order to create an equitable separate estate, the words "to her sole and separate use"' are the most generally approved, 24 yet other expressions are also adequate to effect the purpose. 25 « Alston v. Rowles, 13 Fla. 117 ; Thompson v. McCloskey, 4 Ky. Law Rep. 899; Briggs v. Mitchell, 60 Barb. (N. Y.) 288. And see Bowen v. Sebree, 2 Bush (Ky.) 112. is Stone v. Gazzam, 46 Ala. 269 ; CoMn v. Currier, 22 Barb. (N. T.) 371. See McMillan v. Peacock, 57 Ala. 127 ; Lippencott v. Mitchell, 94 U. S. 767, 24 L. Ed. 315; Huff v. Wright, 39 Ga. 41. "Salter v. Salter, 80 Ga. 178, 4 S. B. 391, 12 Am. St. Rep. 249; Perkins v. Elliott, 23 N. J. Eq. 526; People's Sav. Bank v. Denig, 131 Pa. 241, 18 Atl. 1083. 20 Paul v. Leavitt, 53 Mo. 595. 21 Russell v. Andrews, 120 Ala. 222, 24 South. 573 ; Holliday v. Hively, 198 Pa. 335, 47 Atl. 988. 22 Lee v. Lee, 77 Ala. 412; Payne v. Pollard, 3 Bush (Ky.) 127; Paul v. Leavitt, 53 MO. 595; Tritt's Adm'r v. Colwell, 31 Pa. 228. And see Starr v. Hamilton, Fed. Cas. No. 13,314, 1 Deady, 268; Mutual Fire Ins. Co. v. Balti- more County v. Deale, -18 Md. 26, 79 Am. Dec; 673. 23 Pollard v. Merrill, 15 Ala. 169 ; Cushing v. Blake, 30 N. J. Eq. 689. And see Bell v. Watkins, 82 Ala. 512, 1 South. 92, 60 Am. Rep. 756; Lindell Real Estate Co. v. Lindell, 142 Mo. 61, 43 S. W. 368. 24 Goodrum v. Goodrum, 43 N. C. 313; Swain v. Duane, 48 Cal. 358; Brandt v. Mickle, 28 Md. 436; Beeman v. Cowser, 22 Ark. 429; Pollard v. Merrill, 15 Ala. 169 ; Morrison v. Thistle, 67 Mo. 596 ; Porter v. Bank, 19 Vt. 410. 2= Bland v. Dawes, 17 Ch. D. 794, 50 L. J. Ch. 252, 43 L. T. Rep. N. S. 751, 29 Wkly. Rep. 474; Lewis v. Mathews, L. R. 2 Eq. 177, 12 Jur. (N. S.) 542, 35 L. J. Ch. 638, 14 Wkly. Rep. 682; Prout v. Roby, 15 Wall. 471, 21 L. Ed. 58; Brandt v. Mickle, 28 Md. 436; Stuart v. Kissam, 2 BaTb. (N. T.) 493; Flour- noy v. Flournoy, 86 Cal. 286, 24 Pac. 1012, 21 Am. St. Rep. 39; Atwood v. Dolan, 34 W. Va. 563, 12 S. E. 688., Cf. Buck v. Wroten, 24 Grat. (Va.) 250; In re Quin's Estate, 144 Pa. 444, 22 Atl. 965. For expressions which are not 106 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 Statutory Changes — Married Women's Property Acts In all the American states, 26 and also in England," statutes have been passed modifying or abolishing the husband's common-law rights in the property of his wife, and making such property, with, varying details as to her control of it, and her contractual rights over the same, the separate property of the wife. For the local law, the statutes of each particular jurisdiction must, however, be consulted. 28 CURTESY 48. At common law, a husband is entitled to curtesy, which is an estate for the life of the husband in all the wife's estates of inheritance, provided the following requisites concur: (a) Valid marriage. (b) Issue born alive and capable of inheriting. (c) Sufficient seisin of the wife during coverture. (d) Death of wife before husband. Curtesy is said to be initiate when issue capable of inheriting is born alive, and consummate at the wife's death, pro- viding the other requisites have existed. The husband's estate during coverture in the lands of his wife lasted during their joint lives. 29 If no child was born of the mar- riage, the wife's inheritable realty descended, at common law, to her heirs. If, however, a child capable of inheriting her estate was born of the marriage, the husband, 'upon the wife's death, became entitled to a life estate in all the lands of which she was seised, either in fee simple or in fee tail. 30 This estate was call- sufficient, see Scott v. Causey, 89 Ga. 749, 15 S. E. 650; Hart v. Leete, 104 Mo. 315, 15 S. W. 976 ; Warren v. Costello, 109 Mo. 338, 19 S. W. 29, 32 Am. St Eep. 669. And see Gaston v. Wright, 83 Tex. 282, 18 S. W. 576 ; Pickens" Ex'rs v. Kniseley, 36 W. Va. 794, 15 S. E. 997 ; Cliffton v. Anderson, 47 Mo. App. 35. See, in general, the article Husband and Wife (by the author of this present work) in 21 Cyc. 1358. 2 8 See the statutes of the various states. Constitutional Provisions. — In some of the states* the constitution de- clares that the property of married women shall be held by them as separate estate, and directs legislative action for the protection of the same. 27 45 & 46 Vict. c. 75 (1882), known as the Married Women's Property Act. 2 8 See Husband and Wife, 21 Cyc. 1364 et seq. ; 1 Stim. Am. St Law, art. 642; Williams, Real Prop. (17th Ed.) Am. note, 373; 1 Washb. Real Prop. (5th Ed.) 346, note; Schouler, Husb. & W. 248; 2 Bish. Mar. Worn. 5. 2 » Supra. so Billings v. Baker, 28 Barb. (N. Y.) 343 ; Wescott v. Miller, 42 Wis. 454 ; Barr v. Galloway, Fed. Cas. No. 1,037, 1 McLean, 476; Stoddard v. Gibbs, 23 § 48) CURTESY 107 ed tenancy by "curtesy," or, by some of the older writers, "ten- ancy by the law of 1 England," or "by the curtesy of England." 81 The origin of the estate, and even of the word "curtesy," is, how- ever, obscure. 82 Requisites — Marriage The first requisite of curtesy is lawful marriage. If the mar- riage was absolutely void-, no curtesy will attach; but if it is only voidable, and is not annulled during the wife's life, then the husband will be entitled to the estate. 8 * Birth of Issue Another requisite of the common-law estate by curtesy is the birth of legitimate issue. 34 The issue must be born alive, 88 and it must be capable of inheriting the mother's estate. 88 Thus, the Fed. Cas. No. 13,468, .1 Sumn. 263; Co. Litt § 30a ; Schermerhorn v. Miller, 2 Cow. (N. Y.) 439; Adair v. Lott, 3 Hill (N. Y.) 182; Rawlings v. Adams, 7 Md. 26 ; Foster v. Marshall, 22 N. H. 491 ; Buckworth v. Thirkell, 3 Bos. & P. 652, note. The husband and wife are seised jointly. Guion v. Anderson, 8 Humph. (Tenn.) 298; Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618 ; Wass v. Bucknam, 38 Me, 356. si Britton, 1, 220; Co. Litt. 29a, § 35; 2 Blk. Comm. 126, 127. And see P. & M. II, 412, 413 ; Alexander v. Warrance, 17 Mo. 228. 82 Blackstone derives "curtesy" from "curialitas" ; that is, an attendance upon the lord's court or "curtis." 2 Blk. Comm. 126, 127. This derivation is very improbable, however. See P. & M. II, 412. Coke says that the estate is of English origin. Co. Litt. 29a, § 35. There was, however, an analogous custom in Normandy (P. & M. II, 413), and there is a possibility that the origin goes back to the Roman law. In the time of Constantine, the law gave the father a life interest in all property coming to the son, through the mother. See Scrutton, Roman Law and The Law of England, 98; Codex, 6, 60, 2; Wright, Ten. 194. The custom seems to be unknown in Saxon times. 33 2 Blk. Comm. 127; 1 Cruise, Dig. 107; 1 Washb. Real Prop. (6th Ed.) § 318 ; Wells v. Thompson, 13 Ala. 793, 48 Am. Dec. 76. 3* Schermerhorn v. Miller, 2 Cow. (N. T.) 439; Comer v. Chamberlain, 6 Allen (Mass.) 166; Ryan v. Freeman, 36 Miss. 175. A child born out of wed- lock, but made legitimate by force of statute, by a subsequent marriage, gives curtesy. Hunter v. Whitworth, 9 Ala. 965. Such is not, however, the English law. 3oNicrosi v. Phillipi, 91 Ala. 299, 8 South. 561; Marsellis v. Thalhimer, 2 Paige (N. Y.) 35, 21 Am. Dec. 66; Comer v. Chamberlain, 6 Allen (Mass.) 166 ; Brock v. Kellock, 30 Law J. Ch. 498 ; Goff v. Anderson, 91 Ky. 303, 15 S. W. 866, 12 Ky. Law Rep. 888, 11 L. R. A. 825; In re Winne, 1 Lans. (N. Y.) 508 ; Ryan v. Freeman, 36 Miss. 175 ; Doe ex dem. Barrett v. Roe, 5 Houst. (Del.) 14; Goff v. Anderson, 91 Ky. 303, 15 S. W. 866, 12 Ky. Law Rep. 8S8, 11 L. R. A. 825. s a Heath v. White, 5 Conn. 228; Sumner v. Partridge, 2 Atk. 47, 26 Eng. Reprint. 425; Day v. Cochran, 24 Miss. 261 ; Janney v. Sprigg, 7 Gill (Md.) 197, 48 Am. Dec. 557. 108 LIEE ESTATES ARISING FROM MARRIAGE (Ch. 8 birth of a daughter would give the husband no curtesy in lands of which the wife was tenant in tail male, because the daughter could not inherit the estate. 37 Moreover, the issue must be born during the wife's life; that is, it will not be sufficient, to give curtesy, if the mother die in childbirth, and the child is afterwards delivered by the Caesarean operation. 38 It is immaterial, however, whether the birth of issue is before or after the wife's estate is acquired. 39 Curtesy will not be defeated by the subsequent death of the issue, either in the mother's lifetime or after her death. 40 In several states the birth of issue is made unnecessary by stat- ute." Sufficient Seisin During Coverture By the strict common-law rule, in order that the husband might have curtesy, it was essential that the wife be seised in fact, 42 or, as otherwise expressed, that she have actual seisin, 43 and this rule is followed in some states at the present time.* 4 However, in many states, the rule as to seisin in fact has been relaxed, 45 87 Day v. Cochran, 24 Miss. 261 ; Heath v. White, 5 Conn. 228, 236 ; Barker v. Barker, 2 Sim. 249 ; Sumner v. Partridge, 2 Atk. 46. ss Co. Litt 29b; Marsellis v. Thalhimer, 2 Paige (N. Y.) 42, 21 Am. Dec. '66 ; In re Winne, 1 Lans. (N. Y.) 508 ; Paine's Case, 8 Coke, 34a. 89 Co. Litt. 29b ; 2 Blk. Comm. 128 ; Jackson ex dem. Swartwout v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Comer v. Chamberlain, 6 Allen (Mass.) 166; Guion v. Anderson, 8 Humph. (Tenn.) 307; Heath v. White, 5 Conn. 236; Witham v. Perkins, 2 Me. 400. Cf. Hathon v. Lyon, 2 Mich. 93. to Co. Litt 29b; 2 Blk. Comm. 128; Jackson ex dem. Swartwout v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Heath v. White, 5 Conn. 235; Foster v. Marshall, 22 N. H. 491. *i Forbes v.' Sweesy, 8 Neb. 520, 1 N. W. 571 ; Hershizer v. Florence, 39 Ohio St. 516 ; McMasters v. Negley, 152 Pa. 303, 25 Atl. 641 ; 1 Stim. Am. St Law, § 3301 B ; Kingsley v. Smith, 14 Wis. 360. * 2 Hopper v. Demar'est, 21 N. J. Law, 525; Wescott v. Miller, 42 Wis. 454. The reason assigned for this is that the husband can at any time perfect the wife's seisin by making an entry. 2 Ham. Blk. Comm. 233, note 32 ; Van- arsdall v. Fauntleroy's Heirs, 7 B. Mon. (Ky.) 401 ; Mercer v. Selden, 1 How. 37, 11 L. Ed. 38. 43 Co. Litt.' 29a; Stinebaugh v. Wisdom, 13 B. Mon. (Ky.) 467; Parker v. Carter, 4 Hare, 400, 416 ; Davis v. Mason, 1 Pet. 507, 7 L. Ed. 239. 44 See Petty v. Malier, 15 B. Mon. (Ky.) 591 ; Hopper v. Demarest, 21 N. J. Law, 525 ; Green v. Liter, 8 Cranch, 229, 3 L. Ed. 545. 45 Furguson v. Tweedy, 56 Barb. (N. Y.) 16S; Davis v. Mason, 1 Pet 503, 7 L. Ed. 239; Wass v. Bucknam, 38 Me. 356; Reaume v. Chambers, 22 Mo. 36, 54; Bush v. Bradley, 4 Day (Conn.) 298; Kline v. Beebe, 6 Conn. 494; Mitchell's Lessee v. Ryan, 3 Ohio St 377; Powell v. Gossom, 18 B. Mon. (Ky.) 179; Ellsworth v. Cook, 8 Paige (N. Y.) 643; Mercer v. Selden, 1 How. 37, 11 L. Ed. 38 ; McCorry v. King's Heirs, 3 Humph. (Tenn.) 267, 39 Am. Dec. 165 ; Adams v. Logan, 6 T. B. Mon. (Ky.) 175 ; Watkins v. Thornton, 11 Ohio St 367 ; Rabb v. Griffin, 26 Miss. 579 ; Childers v. Bumgarner, 53 N. C. 297. § 48) CURTESY 109 and seisin in law is held sufficient to give curtesy, particularly in the case of the wife's taking by descent,* 6 or where the land is wild and unoccupied,* 7 or where there is no adverse posses- sion. 48 The seisin of a lessee is regarded as the seisin of the wife, 49 as is also the seisin of a cotenant. 60 The seisin is sufficient if it occurs at any time during coverture, whether before or after the birth of issue. 51 The rule as to actual seisin does not apply, moreover, to incorporeal hereditaments, of which ho actual posses- sion is possible. 62 Death of Wife The fourth and final requisite is that the wife must die prior to the death of the husband. 03 *« Borland's Lessee v. Marshall, 2 Ohio St. 308 ; Day v, Cochran, 24 Miss. 261 ; Adair v. Lott, 3 Hill (N. Y.) 182 ; Jackson ex dem. Swartwout v. John- son, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Chew v. Commissioners, 5 Eawle (Pa.) 160; Stephens v. Hume, 25 Mo. 349; Harvey v. Wickham, 23 Mo. 115; Carr v. Givens, 9 Bush (Ky.) 679, 15 Am. Rep. 747; Ellis v. Dittey (Ky.) 23 S. W. 366; Merritt's Lessee v. Home, 5 Ohio St. 307, 67 Am. Dec. 298; Eager v. Furnivall, 17 Ch. Div. 115 ; Withers v. Jenkins, 14 S. C. 597 ; McKee v. Cottle, 6 Mo. App. 416. 4TFurguson v. Tweedy, 43 N. Y. 543; Wescott v. Miller, 42 Wis. 454; Mercer v. Selden, 1 How. 37, 11 L. Ed. 38; Jackson v. Sellick, 8 Johns. (N. Y.) 262 ; Green v. Liter, 8 Cranch, 249, 3 L. Ed. 545 ; Davis v. Mason, 1 Pet. 503, 7 L. Ed. 239 ; Mettler v. Miller, 129 111. 630, 22 N. E. 529 ; Barr v. Galloway, I McLean, 476, Fed. Cas. No. 1,037 ; Den ex dem. Pierce v. Wanett, 32 N. C. 446; McDaniel v. Grace, 15 Ark. 465; Day v. Cochran, 24 Miss. 261; Clay v. White, 1 Munf. (Va.) 162; De Grey v. Richardson, 3 Atk. 469; Lowry's Lessee v. Steele, 4 Ohio, 170 ; Wells v. Thompson, 13 Ala. 793, 48 Am. Dec. 76 ; Malone v. McLaurin, 40 Miss. 161, 90 Am. Dec. 320. Contra, Neely v. Butler, 10 B. Mon. (Ky.) 48. *s Todd v. Oviatt, 58 Conn. 174, 20 Atl. 440, 7 L. R. A. 693 ; Mettler v. Mil- ler, 129 111. 630, 22 N. E. 529; Stephens v. Hume, 25 Mo. 349; Buchanan v. Duncan, 40 Pa. 82. ' 49 De Grey v. Richardson, 3 Atk. 469. Or of a tenant at sufferance. Tayloe v. Gould, 10 Barb. (N. Y.) 388; Jackson ex dem. Swartwout v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Lowry's Lessee v. Steele, 4 Ohio, 170; Green v. Liter, 8 Cranch, 245, 3 L. Ed. 545; Powell v. Gossom, 18 B. Mon. (Ky.} 179; Day v. Cochran, 24 Miss. 261; Carter v. Williams, 43 N. C. 177; Wells v. Thompson, 13 Ala. 793, 48 Am. Dec. 76. so Carr v. Givens, 9 Bush (Ky.) 679, 15 Am. Rep. 747; Buckley v. Buckley, ' II Barb. (N. Y.) 43. 51 Comer v. Chamberlain, 6 Allen (Mass.) 166; Jackson ex dem. Swartwout v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Templeton v. Twitty, 88 Tenn. 595, 14 S. W. 435. But see Gentry v. Wagstaff, 14 N. C. 270. 52 Co. Litt. 29a; Davis v. Mason, 1 Pet. 507, 7 L. Ed. 239; Jackson v. Sel- lick, 8 Johns. (N. Y.) 262 ; Mercer v. Selden, 1 How. 37, 11 L. Ed. 38 ; Buck- worth v. Thirkell, 3 Bos. & P. 652, note. And see Eager v. Furnivall, 17 Ch. D. 115. 63 Wheeler v. Hotchkiss, 10 Conn. 225 ; Porch v. Fries, 18 N. J. Eq. 204 ; Jackson ex dem. Swartwout v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433. HO • LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 Curtesy Initiate and Consummate The husband's right to curtesy is said to be initiate as soon as there is issue of the marriage, such issue being capable of in- heriting. 64 When this right attaches to the lands of the wife, it is a vested interest, which cannot be taken away by the legisla- ture. 65 Upon the death of the wife, prior to the husband's decease, the husband's curtesy is consummate. 66 without any assignment or other formality. 57 Curtesy, having vested in the husband, cannot be defeated by a disclaimer. 68 SAME— ESTATES SUBJECT TO CURTESY 49. The husband is entitled to curtesy in the following estates : (a) Estates of inheritance, in general. (b) Equitable estates. (c) Estates in expectancy, when they vest in possession during the wife's life. (d) Joint estates, except joint tenancies. (e) Determinate estates, when they are determined by a shifting use or executory devise, and in all cases until they are defeated. Estates of Inheritance As already seen, a husband has curtesy only in the wife's estates of inheritance, since her estates not of inheritance end with the death of the wife, and there is nothing left out of which the husband could have curtesy. In other words, a fee simple or a fee tail in the wife gives the husband curtesy, 68 but a life estate B4 2 Blk. Comm. 127; FOSTER t. MARSHALI/, 22 N. H. 491, Burdick Cas. Real Property ; Nicholls v. O'Neill, 10 N. J. Eq. 88 ; Billings v. Baker, 28 Barb. (N. Y.) 343; Lancaster County Bank v. Stauffer, 10 Pa. 398; Scher- merhorn v. Miller, 2 Cow. (N. T.) 439 ; Comer v. Chamberlain, 6 Allen (Mass.) 166. A child born out of wedlock, but made legitimate by a subsequent marriage, gives curtesy. Hunter v. Whitworth, 9 Ala. 965. 5 5 Clay v. Mayr, 144 Mo. 376, 46 S. W. 157; Wyatt v. Smith, 25 W. Va. 813; Hitz v. National Metropolitan Bank, 111 TJ. S. 722, 4 Sup. Ct 613, 28 L. Ed. 577. se Jackson v. Jackson, 144 111. 274, 33 N. E. 51, 36 Am. St. Rep. 427; McNeer v. McNeer, 142 111. 388, 32 N. E. 681, 19 L. R. A. 256 ; Gamble's Estate, 1 Pars. Eq. Cas. (Pa.) 489. 7 Co. Litt. 30a; 2 Blk. Comm. 128. 5 8 Watson v. Watson, 13 Conn. 83. 5.o Northcut v. Whipp, 12 B. Mon. (Ky.)/ 65 ; Thornton's Ex'rs v. Krepps, 37 Pa. 391; Barker v. Barker, 2 Sim. 249; Sumner v. Partridge, 2 Atk. 47; Janney v. Sprigg, 7 Gill (Md.) 197, 48 Am. Dec. 557. If the wife was tenant § 49) CURTESY — ESTATES SUBJECT TO CURTESY 111 does not. 80 By statute, however, a husband may be entitled to curtesy in the_ leasehold estates of his wife. 61 The husband's curtesy attaches, likewise, to the wife's inheritable statutory sepa- rate estates, provided, where she is given power to dispose of the same, she leaves them undisposed of by will. 62 In her inheritable legal estates, settled upon her by express limitation, he has also his right of curtesy. 63 Equitable Estates ' Curtesy attaches to the beneficial interest of the wife in equitable estates of inheritance, as well as to legal interests, 64 and this rule in tail, and died leaving no issue, still the husband would take curtesy, pro- viding issue capable of inheriting had been born, because the estate had been one of inheritance. Paine's Case, 8 Coke, 34; Buehannan'g Lessee v. Sheffer, 2 Yeates (Pa.) 374; Hay v. Mayer, 8 Watts (Pa.) 203, 34 Am. Dec. 453; Buckworth v. Thirkell, 3 Bos. & P. 652, note; Holden v. Wells, 18 R. I. 802, 31 Atl. 265. «o Janney v. Sprigg, 7 Gill (Md.) 197, 48 Am. Dec. 557; Spencer v. O'Neill, 100 Mo. 49, 12 S. W. 1054 ; Adams v. Boss, 30 N. J. Law, 505, 82 Am. Dec. 237. «i Murdock v. Reed, 1 Disn. (Ohio) 274. 62 Brown v. Clark, 44 Mich. 309, 6 N. W. 679 ; Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142 ; Hatfield v. Sneden, 54 N. Y. 280 ; Burke v. Valen- tine, 52 Barb. (N. Y.) 412 ; Rouse's Estate v. Directors of Poor, 169 Pa. 116, 32 Atl. 541; Guernsey v. Lazear, 51 W. Va. 328, 41 S. E. 405; Kingsley v. Smith, 14 Wis. 360; Smith v. Colvin, 17 Barb. (N. Y.) 157; BOZARTH v. LARGENT, 128 111. 95, 21 N. E. 218, Burdick Cas. Real Property. 63 Luntz v. Greve, 102 Ind. 173, 26 N. E. 128; Rank v. Rank, 120 Pa. 191, 13 Atl. 827; Freyvogle v. Hughes, 56 Pa. 228. But s.ee Sayers v. Wall, 26 Grat. (Va.) 354, 21 Am. Rep. 303. 84 Meacham v. Bunting, 156 111. 586, 41 N. E. 175, 28 L. R. A. 618, 47 Am. St Rep. 239; Davis v. Mason, 1 Pet. 503, 7 L. Ed. 239; Payne v. Payne, 11 B. Mon. (Ky.) 138 ; Young v. Langbein, 7 Hun (N. Y.) 151 ; Alexander v. War- rance, 17 Mo. 228 ; Dubs v. Dubs, 31 Pa. 149 ; Ege v. Medlar, 82 Pa. 86 ; Raw- lings v. Adams, 7 Md. 26 ; Pierce v. Hakes, 23 Pa. 231 ; Baker v. Heiskell, 1 Cold. (Tenn.) 641; Norman's Ex'x v. Cunningham, 5 Grat. (Va.) 63; Tilling- hast v. Coggeshall, 7 R. I. 383; Robie v. Chapman, 59 N. H. 41; Nightingale v. Hidden, 7 R. I. 115; Sentill v. Robeson, 55 N. C. 510; Cushing v. Blake, 30 N. J. Eq. 689 ; Carson v. Fuhs, 131 Pa. 256, 18 Atl. 1017 ; Gilmore v. Burch. 7 Or. 374, 33 Am. Rep. 710; Ogden v. Ogden, 60 Ark. 70, 28 S. W. 796, 46 Am. St. Rep. 151. But see Hall v. Crabb, 56 Neb. 392, 76 N. W. 865. Receipt by the wife of the rents and profits is a sufficient seisin. Hearle v. Green- bank, 3 Atk. 717; Withers v. Jenkins, 14 S. C. 597; CURTESY — INCIDENTS 113 Joint Estates The husband is entitled to curtesy in estates held by his wife as a tenant in common or in coparcenary, 71 but not in her estates in joint tenancy. 72 Determinable Estates Estates of the wife which are determined, or terminated, at common law, by some limitation or condition, 78 before the time that they would otherwise naturally terminate, are not subject to curtesy if determined during the wife's life. 7 * If, however, the estate which arises and cuts off the wife's interest is a shifting use, 75 or an executory devise, 78 the husband is entitled to curtesy in the estate of which the wife was seised. 77 ' SAME— INCIDENTS 50. Estates by curtesy have the usual incidents of life estates. The usual incidents of life estates attach to curtesy, such, for example, as liability for waste and the right to emblements and estovers. 78 The husband is entitled to possession, 79 and to all Hatfield v. Sneden, 54 N. Y. 280; Gentry v. Wagstaff, 14 N. C. 270; Hitner v. Ege, 23 Pa. 305; Mackey v. Proctor, 12 B. Mon. (Ky.) 433; Watkins v. Thornton, 11 Ohio St. 367; Shores v. Carley, 8 Allen (Mass.) 425; Tayloe v. Gould, 10 Barb. (N. Y.) 388. 7i, Buckley v. Buckley, 11 Barb. (N. Y.) 43; Sterling v. Penlington, 2 Eq. Cas. Abr. 730; Wass v. Bucknam, 38 Me. 360; Vanarsdall v. Fauntleroy's Heirs, 7 B. Mon. (Ky.) 401 ; Carr v. Givens, 9 Bush (Ky.) 679, 15 Am. Bep. 747. - f2 Co. Litt. § 45. In joint tenancies, the surviving joint tenant has the right to the entire estate. See Joint Tenancies, post. 73 See Estates upon Condition, and Estates upon Limitation, chapter XIII, post. 7* Co. Litt. 241,. note; Grout v. Townsend, 2 Hill (N. Y.) 554; Wright v. Herron, 6 Rich. Eq. (S. C.) 406; Buckworth v. Thirkell, 3 Bos. & P. 652, note; Moody v. King, 2 Bing. 447; Hatfield v. Sneden, 54 N. Y. 285; Evans v. Evans, 9 Pa. 190 ; McMasters v. Negley, 152 Pa. 303, 25 Atl. 641 ; Webb v. Trustees, 90 Ky. 117, 13 S. W. 362; Withers v. Jenkins, 14 S. C. 597; Thorn- ton's Ex'rs v. Krepps, 37 Pa. 391; Weller v. Weller, 28 Barb. (N. Y.) 588; Harvey v. Brisbin, 143 N. Y. 151, 38 N. E. 108. 75 See post, chapter XV. 7 6 See post, Id. 7 7 Martin v. Renaker, 9 S. W. 419, 10 Ky. Law Rep. 469; Hatfield v. Sneden, 54 N. Y. 280 ; McMasters v. Negley, 152 Pa. 303, 25 Atl. 641. 7 8 Learned v. Ogden, 80 Miss. 769, 32 South. 278, 92 Am. St. Rep. 621; Barnsdall v. Boley, 119 Fed. 191 ; McCullough v. Irvine, 13 Pa. 438 ; Armstrong v. Wilson, 60 111. 226 ; Bates v. Shraeder, 13 Johns. (N. Y.) 260. 7» Jacobs v. Rice, 33 111. 369; Miller v. Early, 64 Mo. 478; Miller v. English, 61 Mo. 444. Bubd.Rbal Peop. — 8 114 LIFE ESTATES ARISING PEOM MARRIAGE (Ch. 8 the rents and profits of the property. 80 He takes his curtesy sub- ject, however, to all existing incumbrances on the land. 81 On the estate becoming initiate, the husband's interest is liable for his debts, 82 or he can sell and dispose of it, as he may see fit. 83 No alienation of the husband alone is effectual, however, for a longer period than his life, 84 nor does the disseisin of the husband bar the rights of the wife's heirs or devisees. 85 After the ter- mination of the husband's estate by his death, the realty is dis- posed of according to the testamentary direction of the wife, where the wife has executed a valid will, or it is governed by the usual rules of descent. « so Muldowney v. Morris, etc., R. Co., 42 Hud (N. Y.) 444; Bedford v. Bedford, 32 111. App. 455 ; Hart v. Chase, 46 Conn. 207. si Barker v. Barker, 2 Sim. 249. But when incumbrances are paid off, they will be apportioned. In re Freeman, 116 N. C. 199, 21 S. E. 110. 82 Gay v. Gay, 123 111. 221, 13 N. E. 813; Burd v. Dansdale, 2 Bin. (Pa.) 80; Watson v. Watson, i3 Conn. 83; Rose v. Sanderson, 38 111. 247; Canby's Lessee v. Porter, 12 Ohio, 79; Litchfield v. Cudworth, 15 Pick. (Mass.) 23; Roberts v. Whiting, 16 Mass. 186; Lancaster County Bank v. Stauffer, 10 Pa. 398 ; Wyatt v. Smith, 25 W. Va. 813 ; Hitz v. Bank, 111 U. S. 722, 4 Sup. Ct. 613, 28 L. Ed. 577 ; Jacobs v. Rice, 33 111. 369 ; Gardner v. Hooper, 3 Gray (Mass.) 398. But see Evans v. Lobdale, 6 Houst. (Del.) 212, 22 Am. St Rep. 358; Bruce v. Nicholson, 109 N. C. 202, 13 S. E. 790, 26 Am. St. Rep. 562; Van Duzer v. Van Duzer, 6 Paige, Ch. (N. T.) 366, 31 Am. Dec. 257. This has been changed in some states by statute. Curry v. Bott, 53 Pa. 400; Staples v. Brown, 13 Allen (Mass.) 64; Welsh v. Solenberger, 85 Va. 441, 8 S. E. 91; Churchill v. Hudson, 34 Fed. 14. See BOZARTH v. LARGENT, 128 111. 95, 21 N. E. 218, Burdick Cas. Real Property. ' 83 Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349 ; Jacobs v. Rice, 33 111. 369 ; Deming v. Miles, 35 Neb. 739, 53 N. W. 665, 37 Am. St. Rep. 464; Robertson v. Norris, 11 Q. B. 916; Shortall v. Hinckley, 31 111. 219; Central Bank of Frederick v. Copeland, 18 Md. 305, 81 Am. Dec. 597; Ward v. Thompson, 6 Gill & J. (Md.) 349; Hutchins v. Dixon, 11 Md. 29; Denton's Guardians v. Denton's Ex'rs, 17 Md. 403; Schermerhorn v. Miller, 2 Cow. (N. T.) 439; Koltenbrock. v. Cracraft, 36 Ohio St 584. 8*Flagg v. Bean, 25 N. H. 49; Meraman's Heirs v. Caldwell's Heirs, 8 B. Mon. (Ky,) 32, 46 Am. Dec. 537. 85 Foster v. Marshall, 22 N. H. 491; Robertson v. Norris, 11 o See post, Joint Tenancies, chapter XII. "Litt § 45; Co. Litt. 37b; Mayburry v. Brien, 15 Pet. (U. S.) 21, 10 L. Ed. 646; Coekrill v. Armstrong, 31 Ark. 580; Babbitt v. Day, 41 N. J. Eq. 392, 5 Atl. 275 ; Reed v. Kennedy, 2 Strob. (S. C.) 67. 42 Litt. § 45 ; Harvill v. Holloway, 24 Ark. 19 ; Ross v. Wilson, 58 Ga. 249 ; French v. Lord, 69 Me. 537 ; Hill v. Gregory, 56 Miss. 341 ; Smith v. Smith, 6 Lans. (N. Y.) 313; Hudson v. Steere, 9 R. I. 106; Davis v. Bartholomew, 3 Ind. 485. *3 Davis v. Bartholomew, 3 Ind. 485; Pynchon v. Lester, 6 Gray (Mass.) 314; Steltz v. Schreck, 60 Hun, 74, 14 N. Y. Supp. 106; Nutt v. Mechanics' Bank, Fed. Cas. No. 10,382, 4 Cranch, C. C. 102; 1 Stim. Am. St. Law, §§ 1371, 3211; 1 Scrib. Dower (2d Ed.) 338; Weir v. Tate, 39 N. C. 264; Davis v. Logan, 9 Dana (Ky.) 185. 44 Sisk v. Smith, 6 111. 503; McCraney v. McCraney, 5 Iowa, 232, 68 Am. § 54) t DOWEB — ESTATES SUBJECT TO DOWER 123 the wife has only a contingent interest, which, however, becomes vested if the husband dies before the wife.* 5 The husband's death may also be presumed by long absence, no knowledge of his ex- istence being possessed. 49 SAME— ESTATES SUBJECT TO DOWER 54. At common law, a widow has dower, in general, in the hus- band's estates of inheritance, providing the estate is one which issue of the wife could inherit. This right of dower extends to land, and to all incorporeal real hereditaments; that is, those which savor of the realty. (a) In some states the land must be capable of beneficial en- joyment as a life estate. (b) The estate must not be terminated by the happening of a contingency. (c) At common law, the husband's estate must he a legal one. At the present time, however, there may be dower in equities of redemption, and in many stated, by statute, in all equitable estates. (d) The husband must be seised in possession, not in expectancy. (e) The estate must be one not in joint tenancy. Estate of Inheritance The widow's dower attached, at common law, only to the hus- band's estates of inheritance ; that is, to a fee simple or a fee tail. 47 In the case of a fee tail, there may be dower, even though the estate be at an end, by failure of heirs, at the husband's death. 48 There D«c. 702; Wait v. Wait, 4 N. T. 95; Randall v.. Krieger, 23 Wall. (U. S.) 137, 23 L. Ed. 124. 45 Sutliffi v. Forgey, 1 Cow.' (N. X.) 89; Truett v. Funderburk, 93 Ga. 686, 20 S. E. 260. There must be natural death ; civil death will not give dower. Wooldridge v. Lucas, 7 B. Mon. (Ky.) 49 ; Platner v. Sherwood, 6 Johns. Oh. (N. T.) 129. In a few states divorce makes the right to dower consummate. 1 Stim. Am. St. Law, § 6251 A (1). So an assignment for creditors. Wright v. Gelvin, 85 Ind. 128. And in some states judicial sale of the husband's lands. 1 Stim. Am. St. Law, § 3204. And see Kelley v. Canary, 129 Ind. 460, 29 N. E. 11 ; Whitney v. Marshall, 138 Ind. 472, 37 N. E. 964 ; Huffmaster v. Ogden, 135 Ind. 661, 35 N. E. 512. Contra, Gatewood v. Tomlinson, 113 N. C. 312, 18 S. E. 318. 4« Sherod v. El well, 104 Iowa, 253, 73 N. W. 493. *t Litt § 36; 2 Blk. Comm. 131; 4 Kent, Coram. 41; Pinkham v. Pinkham, 55 Neb. 729, 76 N. W. 411 ; Kennedy v. Kennedy, 29 N. J. Law, 185 ; Johnson v. Jacob, 11 Bush (Ky.) 646; Chew v. Chew, 1 Md. 163. is Smith's Appeal, 23 Pa. 9 ; Moody v. King, 2 Bing. 447 ; Northcut v. Whipp, 12 B. Mon. (Ky.) 65. 124 life ESTATES ARISING FROM MARRIAGE (Ch. 8 is no dower, however, where an estate tail is by statute changed into a life estate and a remainder. 49 Nor is a widow dowable of her husband's life estates, 50 except where an estate pur autre vie is made an estate of inheritance. 51 A widow, moreover, is not en- dowable with leasehold estates, 52 no matter how long they may run, 53 unless some statute provides to the contrary. 5 * The estates of inheritance to which the right of dower attaches must also be, at common law, such estates as issue born of the wife might in- herit. 55 For example, if the husband was tenant in tail special, the heirs of his body by a certain wife being designated, such wife would be endowable, since her issue might have inherited. Should such wife die, however, and the husband again marry, the second wife would not be entitled to dower in such lands. 56 It is not nec- essary, however, that the wife should have issue, nor need there be a physical ability to bear offspring. 57 Dower thus differs from curtesy, for which birth of issue is necessary. 58 Land The widow's right of dower extends to all her husband's land. 59 This includes standing timber, 80 also crops growing at the time *» Trumbull v. Trumbull, 149 Mass. 200, 21 N. E. 366, 4 L. R. A. 117. And see Edwards v. Bibb, 54 Ala. 475. oo-Trumbull v. Trumbull, 149 Mass. 200, 21 N. E. 366, 4 L. R. A. 117; Burrls v. Page, 12 Mo. 358 ; Harriot v. Harriot, 25 App. Div. 245, 49 N. Y. Supp. 447 ; Gillis v. Brown, 5 Cow. (N. Y.) 388 (pur autre vie) ; Knickerbacker v. Seymour, 46 Barb. (N. Y.) 198; In re Watson's Estate, 139 Pa. 461, 22 Atl. 638; Thompson v. Vance, 1 Mete. (Ky.) 669; Edwards v. Bibb, 54 Ala. 475; Alexander v. Cunningham, 27 N. C. 430; Kenyon v. Kenydn, 17 R. I. 539, 23 Atl. 101, 24 Atl. 787. 6i See ante. And see Stall v. Graham, 60 Ark. 461, 31 S. W. 46. 62 Gaunt v. Wainman, 3.Bing. N. C. 69; Spangler v. Stanler, 1 Md. Ch. 36; Goodwin v. Goodwin, 33 Conn. 314; Whitmire v. Wright, 22 S. C. 446, 53 Am. Rep. 725. 53 Oliver v. Jones, 6 Ohio S. & C. PI. Dec. 194, 3 Ohio N. P. 129; Spangler v. Stanler, 1 Md. Ch. 36 ; Whitmire v. Wright, 22 S. C. 446, 53 Am. Rep. 725. 6 4 Lenow v. Fones, 48 Ark. 557, 4 S. W. 56; Rankin v. Oliphant, 9 Mo. 239. oo Spangler v. Stanler, 1 Md. Ch. 36; Butler v. Cheatham, 8 Bush (Ky.) 594. 6« Litt. § 53 ; Paine's Case, 8 Co. Rep. 34a. 6 7 Co. Litt. 40a; 1 Scrib. Dower (2d Ed.) 227. At common law, however, the widow cannot receive dower unless she is at least nine years old at the husband's death; such age being regarded as her minimum age of possibility of issue. A woman is never presumed, however, by the common law, to be too old to bear a child. Litt § 36; Co. Litt, 40a; 2 Blk. Comm. 131. 6 8 Ante. es 2 Blk. Comm. 132. »o Hallett v. Hallett, 8 Ind. App. 305, 34 N. E. 740. § 54) DOWBE — ESTATES SUBJECT TO DOWEB 125 dower is assigned, 81 and, likewise, mines that are open and in op- eration during coverture. 62 Corporate stock, however, in railway- companies, or other corporations dealing largely with land proper- ties, is generally regarded as personalty, and not subject to dow- er, 68 since the -dower right attaches only to real property. 64 Incorporeal Hereditaments i A widow, says Blackstone, 66 may be endowed of all her hus- band's lands, tenements, and hereditaments, corporeal or incorpo- real. Chitty, however, in his note upon this passage, says: "Our author, we may be sure, did not mean to intimate that a widow was entitled to dower out of all her husband's incorporeal heredita- ments, of what nature soever, but only out of such incorporeal her- editaments as savor of the realty." 66 Thus, dower extends to rents, 67 franchises, 88 and common appendant or in gross, 69 but not to' mere personal hereditaments. 70 For example, dower has been granted in a fishing right, 71 in a right of ferry, 72 and of wharfage. 78 If the husband is owner of a rent in fee or in tail, the widow can «i Ralston v. Ralston, 3 Greene (Iowa) 533 ; Parker v. Parker, 17 Pick. (Mass.) 236; Clark v. Battorf, 1 Thomp. & O. (N. Y.) 58; Davis v. Brown, 2 Ohio Dec. (Reprint) 644, 4 West, L. Month. 272. 6 2 Priddy v. Griffith, 150 111. 560, 37 N. E. 999, 41 Am. St. Rep. 397; Hendrix v. McBeth, 61 Ind. 473, 28 Am. Rep. 680; Adams v. Briggs Iron Co., 7 Cush. (Mass.) 361, 367; Coates v. Cheever, 1 Cow. (N. T.) 460; Sayers v. Hoskinson, 110 Pa. 473, 1 Atl. 308. «3 McDougald v. Hepburn, 5 Pla. 568; Johns v. Johns, 1 Ohio St. 350. And see Copeland v. Copeland, 7 Bush (Ky.) 349; Price v.. Price, 6 Dana (Ky.) 107. 6* Hallett v. Hallett, 8 Ind. App. 305, 34 N. B. 740; Brackett v. Leighton, 7 Me. 383 ; Buckerldge v. Ingram, 2 Ves. Jr. 652. The term "widow's thirds," designating her share of the husband's personal estate, is sometimes confused with dower, and is at other times included in a popular, or even a statutory, use of the word "dower." At common law, however, there is no such thing as dower in personal property. 6S2 Comm. 132. 6 6 Chitty, note to Blk. Comm. II, 132, and citing Buckerldge v. Ingram, 2 Ves. Jr. 664,. 30 Eng. Rep. 834. «7 Co. Litt. 144b; Chaplin v. Chaplin, 3 P. Wms. 229, 24 Eng. Reprint, 1040; Herbert v. Wren, 7 Cranch (TJ. S.) 370, 3 L. Ed. 374. See also, Williams v. Cox, 3 Edw. Ch. (N. Y.) 178. «8 Co. Litt 31b, 32a. 6» Co. Litt. 32a ; 2 Blk. Comm. 132. to Co. Litt. 32; Lyster v. Mahoney, 1 Dr. & War. 236; Aubin v. Daly, 4 B. & Aid. 59. TiBracton, 98, 208; Co. Litt. 32a; Fletcher, lib. 5, C. 23. And see Wyman v. Oliver, 75 Me. 421. 72 Stevens' Heirs v. Stevens, 3 Dana (Ky.) 371. 73 Bedlow v. Stilwell, 158 N. Y. 292, 53 N. E. 26 ; Gale v. Kinzie, 80 111. 132 ; Kingman v. Sparrow, 12 Barb. (N. Y.) 201. 126 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 have her dower in it; 7 * but not if it is merely for life.™ On the other hand, if the husband grants to another an interest in land, and reserves a rent, she will take her share of the rent as an inci- dent of the dower which she takes in the land itself. 76 Beneficial Enjoyment ' Although it is- generally said that a widow is dowable of all the real property of which her husband was seised during coverture, yet there are cases which hold that unless the land in question would be of benefit to the widow, but on the contrary would be a clog and expense to her, by reason of taxes, no dower therein can be as- signed to her. 77 For this reason, in some states, it has been held that dower does not attach to wild lands, since to clear them would be waste, 78 and not to clear them for cultivation would leave them useless for her enjoyment. 79 The general rule seems to be, how- ever, that even to wild and uncultivated lands her right of dower attaches. 80 At common law, however, a widow is not dowable of mines and quarries, unless they have been opened and thus made workable for her benefit. 81 t*2 Blk. Comm. 132; 1 Scrib. Dower (2d Ed.) 373. "I Scrib. Dower (2d Ed.) 3T4; Co. Lift. 32a. See, also, Chaplin v. Chap- lin, 3 P. Wms. 229. " Co. Litt. 32a; Stoughton v. Leigh, 1 Taunt. 402; Bland, Ch., in Chase's Case, 1 Bland (Md.) 227; 17 Am. Dec. 277; Weir v. Tate, 39 N. C. 264; Her- bert v. Wren, 7 Cranch, 370, 3 L. Ed. 374. " Conner v. Shepherd, 15 Mass. 164. ' i s Conner v. Shepherd, 15 Mass. 164; Webb v. Townsend. 1 Pick. (Mass.) 21, 11 Am. Dec. 132 ; White v. Cutler, 17 Pick. (Mass.) 248 ; Johnson v. Perley, 2 N. H. 56, 9 Am. Dec. 35 ; Kuhn v. Kaler, 14 Me. 409. But see Shattuck v. Gragg, 23 Pick. (Mass.) 88; White v. Willis, 7 Pick. (Mass.) 143; Mosher v. Mosher, 15 Me. 371; Stevens v. Owen, 25 Me. 94; Lothrop v. Foster, 51 Me. 367. This is not true where clearing wild lands is not waste. Allen v. Mc- Coy, 8 Ohio, 418; Schnebly v. Schnebly, 26 111. 116; Brown v. Richards 17 N. J. Eq. 32. 79 Ford v. Erskine, 50 Me. 227; Shattuck v. Gragg, 23 Pick. (Mass.} 88; White v. Willis, 7 Pick. (Mass.) 143 ; Puller v. Wason, 7 N. H. 341. so Schnebly v. Schnebly, 26 111. 116; In re Campbell, 2 Dougl. (Mich.) 141; Brown v. Richards, 17 N. J. Eq. 32 ; Walker v. Schuyler, 10 Wend (N X ) 480. si Rex v. Dunsford, 2 A. & E. 568, 593, 1 H. & N. 93, 4 L. J. M. C. 59, 4 N. & M. 349; Stoughton v. Leigh, 1 Taunt. 402, 11 Rev. Rep. 810; Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263 ; Coates v. Cheever, 1 Cow. (N. X.) 460 ; Billings v. Taylor, 10 Pick. (Mass.) 460, 20 Am. Dec. 533; Moore v. Rollins', 45 Me. 493; Hendrix v. McBeth', 61 Ind. 473, 28 Am. Rep. 680. Cf. Black v. Mining Co., 49 Fed. 549. But see, as to mining leases, Seager v. McCabe 92 Mich. 186, 52 N. W. 299, 16 L. R. A. 247; Priddy v. Griffith, 150 IU. 560,' 37 N. E. 999, 41 Am. St. Rep. 397. There is no dower in a mining claim' Black v. Mining Co., 3 C. C. A. 312, 52 Fed. 859. § 54) DOWEB — ESTATES SUBJECT TO DOWEB 127 Determinable Estates If the husband is seised of an inheritable estate, the fact that it may be determined, either by limitation or by a condition subse- quent, 82 does not in itself defeat the wife's right of dower; yet if the estate is terminated, by the happening of the event upon which it depends, her dower is defeated. In other words, if the event occurs before the husband's death, dower never becomes' consummate; if after his death, the enjoyment of the land as- signed as dower is cut off. 83 It is held, however, that in case of an executory devise, defeasible by the death of the devisee without issue, the widow of the devisee takes dower, even if there be no issue. 8 * Equitable Estates At common law, the husband must be seised of a legal estate in order to give the wife dower. 86 Moreover, the court of chancery, although it allowed a husband curtesy in a wife's equitable estate, did not grant a wife the privilege of dower out of the equitable estates of the husband. 86 This rule, however, has been changed in many states by statute. 87 , In other states, the common-law rule holds, and the widow has no dower in estates held in active ' trust by another for the benefit of the husband. 88 Where the hus- 82 As to determinable estates, see, post, chapter XIII. 83 1 Scribner, Dower, 289 ; 4 Kent, Coram. 49 ; Beardslee v. Beardslee, 5 Barb. (N. Y.)'324; Rhode Island Hospital Trust Co. v. Harris, 20 R. I. 408, 39 Atl. 750. s*Northcut v. Whipp, 12 B. Mon. (Ky.) 65; Moody v. King, 2 Bing. 447; Weller v. Weller, 28 Barb. (N. T.) 588; Clark v. Clark, 84 Hun, 362, 32 N. T. Supp. 325; Evans v. Evans, 9 Pa. 190; Pollard v. Slaughter, 92 N. C. 72, 53 Am. Bep. 402; Milledge v. Lamar, 4 Desaus. (S. C.) 617; Jones v. Hughes, 27 Grat. (Va.) 560; Medley v. Medley, 27 Grat. (Va.) 568. Contra, Edwards v. Bibb, 54 Ala. 475. se Rice v. Rice, 108 111. 199; Beebe v. Lyle, 73 Mich. 114, 41 N. W. 944; 1 Scribner, Dower, 386-398. See also, Stevens v. Smith, 4 J. J. Marsh. (Ky.) 64, 20 Am. Dec. 205; Chaplin v. Chaplin, 3 P. Wins. 229; Blakeney v. Ferguson, 20 Ark. 547; Gully v. Ray, 18 B. Mon. (Ky.) - 107; Stelle v. Carroll, 12 Pet. 201, 9 L. Ed. 1056 ; Williams v. Barrett, 2 Cranch, C. C. 673, Fed. Cas. No. 17,714 ; Hamlin v. Hamlin, 19 Me. 141 ; Mayburry v. Brien, 15 Pet. 21, 10 L. Ed. 646; Crawl v. i Harrington, 33 Neb. 107, 49 N. W. 1118. eel Roper, Husband and Wife, 354; Williams, Real Prop. (17th Ed.) 368. s'Atkin v. Merrill, 39 111. 62; McMahan v. Kimball, 3 Blackf. (Ind.) 1; Everitt v. Everitt, 71 Iowa, 221, 32 N. W. 273 ; Yeo v. Mercereau, 18 N. J. Law, 387; Hawley v. James, 5 Paige (N. Y.) 318; McClure v. Fairfield, 153 Pa. 411, 26 Atl. 446 ; Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864, 27 L. R. A. 523; Davis v. Green, 102 Mo. 170, 14 S. W. 876, 11 L. R. A. 90; Clark v. Clark, 147 N. Y. 639, 42 N. E. 275 ; 1 Stim. Am. St. Law, § 3212 ; 1 Shars. & B. Lead. Cas. Real Prop. 312 ; 1 Scrlb. Dower (2d Ed.) 401 ; also in England, by Dower Act, 3 & 4 Wm. IV, c. 105. as Stewart v. Stewart, 5 Conn. 317; Hill v. Hill, 81 Ga. 516, 8 S. E. 879; 128 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 band, moreover, holds the mere legal estate as a trustee for an- other, the wife is not entitled to dower. 89 The effect of the stat- ute of uses, 80 namely, the turning of uses into legal estates, ren- ders such estates, however, liable to dower, when vested in the husband. 91 ' ' Equities of Redemption In connection with the rule allowing no dower in equitable es- tates, the widow received, at common law, no dower in her de- ceased husband's equities of redemption. 92 At the present time, however, either by force of statute, or, in some states, even with- out an express statute, the general rule is that she is entitled to dower in such interests. 93 The widow of the mortgagor, who has released her dower, has, consequently, the right to redeem a mort- gage given by her husband, 9 * by paying the amount of the mort- gage debt. 90 The widow of a 'mortgagee, however, has no dower Lenox v. Notrebe, 15 Fed. Cas. 319, No. 8,246c, Hempst. 251; Shoemaker v. Walker, 2 Serg. & R. (Pa.) 554. so King v. Bushnell, 121 111. 656, 13 N. B. 245; Rice v. Rice, 108 HI. 199; Starbuck v. Starbuck, 62 App. Div. 437, 71 N. Y. Supp. 104 ; Kager v. Brenne- man, 47 App. Div. 63, 62 N. T. Supp. 339 ; Robison v. Codman, 1 Sumn. 121, Fed. Cas. 11,970; Derush v. Brown, 8 Ohio, 412; Bartlett v. Gouge, 5 B. Mon. • (Ky.) 152; Cowman v. Hall, 3 Gill & J. (Md.) 398; Cooper v. Whitney, 3 Sill (N. Y.) 95. »o See post, chapter XIV. si Williams, Real Prop. (17th Ed.) 370; Davenport v. Farrar, 2 111. 314; Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864, 27 L. R. A. 523. And see Tink v. Walker, 148 111. 234, 35 N. E. 765. Contra, Phelps v. Phelps, 143 N. Y. 197, 38 N. E. 280, 25 L. R. A. 625. sal Scribner, Dower, 463; Mayburry v. Brien, 15 Pet. 21, 10 D. Ed. 646; Powell v. Monson, etc., Mfg. Co., Fed. Cas. No. 11,357, 3 Mason, 459. 83 Cox v. Garst, 105 IU. 342; McMahan v. Kimball, 3 Blackf. (Ind.) 1; Newton v. Cook, 4 Gray (Mass.) 46; Snyder v. Snyder, 6 Mich. 470; Manning v.-Daboree, 33 Me. 343; Walker v. Griswold, 6 Pick. (Mass.) 416; Hinchman v. Stiles, 9 N. J. Eq. 361; Smith v. Eustis, 7 Me. 41; Eaton v. Simonds, 14 Pick. (Mass.) 98; Burrall v. Bender, 61 Mich. 608, 28 N. W. 731; White- head v. Middleton, 2 How. (Miss.) 692; Heth v. Cocke, 1 Rand. (Va.) 344; Woods v. Wallace, 30 N. H. 384; Roan v. Holmes, 32 Fla. 295, 13 South. 339, 21 L. R. A. 180; Matthews v. Duryee, 45 Barb. (6 N. Y.) 69; McGowan v. Smith, 44 Barb. (N. Y.) 232; Dubs v. Dubs, 31 Pa. 149; Van'Ness v. Hyatt, 13 Pet. (U. S.) 294, 10 L. Ed. 168. Compare Beebe v. Lyle, 73 Mich. 114 40 N. W. 944. 84 Barr v. Vanalstine, 120 Ind. 590, 22 N. E. 965; Hays v. Cretin, 102 Md. 695, 62 Atl. 1028, 4 L. R. A. (N. S.) 1039; Phelan v. Fitzpatrick, 84 Wis. 240, 54 N. W. 614. And see Davis v. Wetherell, 13 Allen (Mass.) 60, 90 Am. Dec! 177. The right extends to mortgages by the husband before marriage, Wheeler v. Morris, 2 Bosw. (N. Y.) 524; Coles v. Coles, 15 Johns. (N. Y.) 319; and to purchase-money mortgages, Mills v. Van Voorhies, 20 N. Y. 412. »5 That is, where the holder of the equity of redemption does not redeem, or where the widow redeems alone. See McCabe v. Bellows, 7 Gray (Mass.) § 54) DOWEB — ESTATES SUBJECT TO DOWEB 129 in the mortgaged premises unless the estate has become absolute by foreclosure. 98 Except as changed by statute, 97 the widow of one who, during coverture, has given a mortgage in which she has not joined has dower out of the whole estate; 98 but when she has joined in the mortgage, 99 or if it was executed by the husband before marriage, 1 she takes her dower subject to the mortgage. 2 If the mortgage is foreclosed, either before or after the husband's death, 148, 66 Am. Dec. 467; Wheeler v. Morris, 2 Bosw. (N. X.) 524. Where, how- ever, the heir, or the holder of the equity of redemption, redeems, the widow may, as a party, to the suit, redeem her dower interest by contributing her share of the mortgage debt. Cox v. Garst, 105 111. 342; Noffts v. Koss, 29 111. App. 301; Swaine v. Perine, 5 Johns. Oh. (N. T.) 482, 9 Am. Dec. 318; Bell v. Mayor, etc., 10 Paige (N. X.) 49; Mies v. Nye, 13 Mete. (Mass.) 135; Gibson v. Crehore, 5 Pick. (Mass.) 146; Woods v. Wallace, 30 N. H. 384; Richardson v. Skolfleld, 45 Me. 386. But see Shope v. Schaffner, 140 111. 470, 30 N. E. 872. For the method of computing her share, see Swaine v. Perine, 5 Johns. Ch. (N. X.) 482, 9 Am. Dec. 318; Gibson v. Crehore, 5 Pick. (Mass.) 146. When the mortgage is paid by the husband or by any other person in his place, the mortgage is extinguished, so that the widow is not required to contribute. Bolton v. Ballard, 13 Mass. 227 ; Hastings v. Stevens, 29 N. H. 564; Xoung v. Tarbell, 37 Me. 509; Mathewson v. Smith, 1 R. I. 22; Runyan v. Stewart, 12 Barb. (N. X.) 537 ; Harrison v. Eldridge, 7 N. J. Law, 392. » e. Foster v. Dwinel, 49 Me. 44; Crittenden v. Johnson, 11 Ark. 94; Reed v. Shepley, 6 Vt. 602; Waller v. Waller's Adm'r, 33 Grat. (Va.) 83; Weir v. Tate, 39 N. C. 264 ; Cooper v. Whitney, 3 Hill (N. X.) 95. »7 1 stim. Am. St. Law, § 3213. »8 Wedge v. Moore, 6 Cush. (Mass.) 8. »»Cox v. Garst, 105 111. 342; Smith v. Eustis, 7 Greenl. (Me.) 41; Mantz v. Buchanan, 1 Md. Ch. 202 ; Glenn v. Clark, 53 Md. 580 ; State Bank of Ohio v. Hinton, 21 Ohio St. 509 ; Schweitzer v. Wagner, 94 Ky. 458, 22 S. W. 883. i Carll v. Butman, 7 Me. 102 ; Holbrook v. Finney, 4 Mass. 566, 3 Am. Dec. 243; Denton v. Nanny, 8 Barb. (N. X.) 618; Heth v. Cocke, 1 Rand. (Va.) 344. ■ But see Shope v. Schaffner, 140 111. 470, 30 N. E. 872. 2 Mantz v. Buchanan, 1 Md. Ch. 202 ; Holmes v. Book, 1 Ohio N. P. 58. But not when a grantee has assumed the mortgage, she not joining in the conveyance to him. McCabe v. Swap, 14 Allen (Mass.) 188. Dower is also subject to a vendor's lien for the purchase price. Williams v. Woods, 1 Humph. (Tenn.) 408; Crane v. Palmer, 8 Blackf. (Ind.) 120; McClure v. Harris, 12 B. Mon. (Ky.) 261; Ellicott v. Welch, 2 Bland (Md.) 242; Warnei v. Van Alstyne, 3 Paige (N. X.) 513; Johnson v. Cantrell, 92 Ky. 59, 17 S. W. 206. Or a judgment recovered against the husband before marriage, where a judgment is a lien. Robbins v. Robbins, 8 Blackf. (Ind.) 174; Trustees of Poor of Queen Anne County v. Pratt, 10 Md. 5; Brown v. Williams, 31 Me. 403; Sandford v. McLean, 3 Paige (N. X.) 117, 23 Am. Dec. 773. But see Ingram v. Morris, 4 Har. (Del.) 111. Or a charge created by a testator on lands devised to the husband. Shiell v. Sloan, 22 S. C. 151. But dower is superior to a mechanic's lien for buildings on the husband's land. Bishop v. Boyle, 9 Ind. 169, 08 Am. Dec. 615 ; Van Vronker v. Eastman, 7 Mete. (Mass.) 157; Shaeffer v. Weed, 3 Gilman (111.) 511; Pifer v. Ward, 8 Blackf. Bued.Real Peop. — 9 130 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 she has dower in the surplus proceeds of the sale. 3 The widow has a right, moreover, to have the mortgage paid off out of the husband's personal estate. 4 Estates in Expectancy The husband must be seised in possession and not in expectan- cy." In other words, there can be no dower assigned" to the widow out of an estate that is still in reversion or remainder after a free- hold estate when the husband dies. 6 This rule may, however, be changed by statute, 7 and even at common law, if the preceding es- tate determines during coverture, the husband thus obtaining the (Ind.) 252. Contra, Nazareth Literary & Benevolent Institute v. Lowe, 1 B. . Mon. (Ky.) 257. aUnger v. Leiter, 32 Ohio St. 210; Titus v. Neilson, 5 Johns. Ch. (N. Y.) 452; Hartshorne v. Hartshorne, 2 N. J. Eq. 349; Thompson v. Cochran, 7 Humph. (Tenn.) 72, 46 Am. Deci 68; Mathews v. Duryee, 45 Barb. (N. Y.) 69 ; Culver v. Harper, 27 Ohio St. 464 ; Vreeland v. Jacobus, 19 N. J. Eq. 231 ; Jennison v. Hapgood, 14 Pick. (Mass.) 345. When foreclosure occurs before the death of the husband, the wife's right in the surplus will be secured to her by its investment. Denton v. Nanny, 8 Barb. (N. Y.) 618; Vartie v. Un derwood, 18 Barb. (N. Y.) 561; De Wolf v. Murphy, 11 E. I. 630; Vreeland v. Jacobus, 19 N. J. Eq. 231. Contra, Newhall y. Bank, 101 Mass. 428. 3 Am. Rep. 387. In certain states this right is given by statute. 1 Stim. Am. St. Law, § 3216. * Hawley v. Bradford, 9 Paige (N. Y.) 200, 37 Am. Dec. 390 ; Jennison v. Hapgood, 14 Pick. (Mass.) 345; Henagan y. Harllee, 10 Rich. Eq. (S. C.) 285; Caroon v. Cooper, 63 N. C. 386 ; Mantz v. Buchanan, 1 Md. Ch. 202. Contra, Peckham v. Hadwen, 8 R. I. 160. The right does not exist against creditors, Creecy v. Pearce, 69 N. C. 67; Rossiter v. Cossit, 15 N. H. 38; nor when the mortgage was assumed by the husband, Campbell v. Campbell, 30 N. J. Eq. 415. The right is given by statute in Vermont. R. L. 1880, § 2218; 1 Stim. Am. St. Law, § 3214. Where the husband dies seised of the equity of redemption, the widow may require redemption out of the assets. King v. King, 100 Mass. 224 ; Mathewson v. Smith, 1 R. I. 22 ; Henagan v. Harllee, 10 Rich. Eq. (S. C.) 285. s Supra. 6 Co. Litt. 32a ; Hill v. Pike, 174 Mass. 582, 55 N. E. 324~; Van Arb v. Thomas, 163 Mo. 33, 63 S. W. 94; Dudley v. Dudley, 76 Wis. 567, 45 N. W. 602, 8 L. R. A. 814; Robison v. Codman, 20 Fed. Cas. 1056, No. 11,970, 1 Sumn. 121; Kirkpatrick v. Kirkpatrick, 197 111. 144, 64 N. E. 267; Durando v. Durando, 23 N. Y. 331; Apple v. Apple, 1 Head (Tenn.) 348; Cocke's Ex'r v. Philips, 12 Leigh (Va.) 248; Gardner v. Greene, 5 R. I. 104; Brooks v. Everett, 13 Allen (Mass.) 457; Otis v. Parshley, 10 N. H. 403; Kellett v. Shepard, 139 111. 433, 28 N. E. 751, 34 N. E. 254; Young v. Morehead, 94 Ky. 608, 23 S. W. 511 ; Boothby v. Vernon, 9 Mod. 147. But, if the husband pur- chases the prior estate, the wife will have dower. House v. Jackson, 50 N. Y. 161. t Cote's Appeal, 79 Pa. 235 ; Starr's Estate, 16 Phila. (Pa.) 206. Compare Shoemaker v. Walker, 2 Serg. & R. (Pa.) 554. And see 1 Stim. Am. St Law, § 3211, as to Ohio. § 54) DOWEE — ESTATES SUBJECT TO DOWER 131 entire estate, the widow's dower attaches. 8 Where the preceding estate is merely for a term of years, the husband's reversion or re- mainder is regarded as an estate in possession, and dower attaches. Connected with the doctrine that dower is excluded from estates "in expectancy is the rule, or maxim, that dower cannot be assigned out of dower. 10 For example, lands may descend or be devised to a son, subject to a right of dower in his mother. 11 If the son dies before the mother, his wife cannot have dower out of the lands as- signed as his mother's dower. 12 If, however, the junior widow's dower is first' assigned, her right is only suspended by a subse- quent assignment to the mother; and if the mother dies first, the son's widow may re-enter upon the part taken from her. 18 'Joint Tenancies It has already been stated, in connection with the requisite of the husband's seisin, 14 that in a joint tenancy the possibility of sur- vivorship in the cotenants prevents dower from attaching. This, however, does not apply when the husband has survived his co- tenants, or there' has been partition of the estate. 16 Dower is also an incident of estates in coparcenary 18_ and likewise of estates in common.* 7 If partition is made of such an estate, the right of dow- er no longer exists in the whole land, but merely in the portion set s Strawn v. Strawn, 50 111. 33 ; House v. Jackson, 50 N\ Y. 161. And see Powers v. Jackson, 57 N. Y. 654; 1 Scrib. Dower (2d Ed.) 321. » Boyd v. Hunter, 44 Ala. 705; Sykes v. Sykes, 49 Miss.- 190; Sheaf v. Cave, 24 Beav. 259 ; Stoughton v. Leigh, 1 Taunt. 402.' io Stahl v. Stahl,114 111. 375, 2 N. E. 160; Leavitt v. Lamprey, 13 Pick. (Mass.) 382, 23 Am. Dec. 685: Null v. Howell, 111 Mo. 273, 20 S. W. 24; Elwood v. Klock, 13 Barb. (N. Y.) 50; Safford v. Safford, 7 Paige (N. Y.) 259, 32 Am. Dec. 633. ii Robinson v. Miller, 2 B. Mon. (Ky.) 284. If he take them by purchase, the rule is different. Co. Litt. 31a ; In re Cregier, 1 Barb. Ch. (N. Y.) 598, 45 Am. Dec. 416. But cf. Durando v. Durando, 23 N. Y. 331. 12 Reynolds v. Reynolds, 5 Paige (N. Y.) 161; Safford v. Safford, 7 Paige (N. Y.) 259, 32 Am. Dec. 633; Bear v. Snyder, 11 Wend. (N. Y.) 592; Manning v. Laboree, 33 Me. 343 ; Reitzel v. Eckard, 65 N. C. 673 ; Carter v. McDaniel, 94 Ky. 564, 23 S. W. 507 ; Peckham v. Hadwen, 8 R. I. 160. But possession under a right of quarantine does not prevent the heir's widow taking dower. Null v. Howell, 111 Mo. 273, 20 S. W. 24. 13 Steele v. La Frambois, 68 111. 456; In re Cregier, 1 Barb. Ch. (N. Y.) 598, 45 Am. Dec. 416. i* Supra. io 1 Scrib. Dower (2d Ed.) 337. But a sale by one tenant of his Interest is not such partition as gives his wife dower. Mayburry v. Brien, 15 Pet. 21, 10 L. Ed. 646; Cockrill v. Armstrong, 31 Ark. 580; Babbitt v. Day, 41 N. J. Eq. 392, 5 Atl. 2,75. is Jourdan v. Haran, 56 N. Y. Super. Ct. R. 185, 3 N. Y. Supp. 541 ; Baker v. Leibert, 125 Pa. 106, 17 Atl. 236 ; 1 Scrib. Dower (2d Ed.) 341. " Supra. 132 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 apart to the husband. 18 In estates of entirety, 19 the widow hag no dower, since she becomes vested with the whole estate by the right of survivorship. 20 In the case of partnership lands, the Eng- lish rule is that -no dower right attaches, since it is treated as per- sonal property. 21 In this country, however, the prevailing rule is that the widow of a deceased partner has dower in his share of the partnership realty which is left after the firm debts are paid. 23 SAME— ASSIGNMENT OF DOWER 55. At common law the widow cannot enter upon and occupy any part of her husband's lands until her dower is assigned to her. Assignment is the setting out to the widow of her share in the husband's lands. It is : (a) Of common right, which is an assignment of a life estate in one-third by metes and bounds. (b) Against common right, which is an assignment in some oth- er manner by agreement of the parties. is Potter v. Wheeler, 13 Mass. 504 ; Wilkinson v. Parish, 3 Paige (N. Y.) 653; Totten v. Stuyvesant, 3 Edw. Ch. (N. Y.) 500; Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262; Mosher v. Mosher, 32 Me. 412; Lloyd v. Conover, 25 N. J. Law, 47 ; Holley v. Glover, 36 S. O. 404, 15 S. E. 605, 16 L. R. A. 776, 31 Am. St. Rep. 883. So a sale in partition divests the wife's whole interest. Weaver v. Gregg, 6 Ohio St 547, 67 Am. Dec. 355. But see Coburn v. Herring- ton, 114 111. 104, 29 N. E. 478: 19 See post, chapter XII. 20Roulston v. Hall, 66 Ark. 305, 50 S. W. 690, 74 Am- St. Rep. 97; Mc- Creary v. McCorkle (Tenn. Ch. App. 1899) 54 S. W. 53. 2i Darrow v. Calkins, 154 N. Y. 503, 49 N. E. 61, 48 L. R. A. 299, 61 Am. St Rep. 637; Essex v. Essex, 20 Beav. 442; Phillips v. Phillips, 1 My. & K. 649. "Trowbridge v. Cross, 117 111. 109, 7 N. E 1 . 347; Grissom v. Moore, 106 Ind. 296, 6 N. E. 629, 55 Am. Rep. 742; Simpson v. Leech, 86 111. 2S6; Hale v. Plummer, 6 Ind. 121; Campbell v. Campbell, 30 N. J. Eq. 415; Dyer v. Clark, 5 Mete. (Mass.) 562, 39 Am. Dec. 697; Mowry v. Bradley, HE. I. 370 ; Free v. Beatley, 95 Mich. 426, 54 N. W. 910 ; Dawson v. Parsons, 10 Misc! Rep. 428, 31 N. Y. Supp. 78; Riddell v. Riddell, 85 Hun, 482, 33 N. Y. Supp. 99 ; Parrish v. Parrish, 88 Va. 529, 14 S. E. 325 ; Deering & Co. v. Kerfoot's Ex'r, 89 Va. 491, 16 S. E. 671; Young v. Thrasher, 115 Mo. 222, 21 S. W. 1104; Woodward-Holmes Co. v./Nudd, 58 Minn. 236, 59 N. W. 1010, 27 L. R. A. 340, 49 Am. St. Rep. 503; Holton v. Guinn, 65 Fed. 450. But see Rat- cliffe v. Mason, 92 Ky. 190, 17 S. W. 438; Shipp v. Snyder, 121 Mo. 155, 25 S. W. 900 ; Hughes v. Allen, 66 Vt. 95, 28 Atl. 882 ; Shearer v. Shearer, 98 Mass. 107; Greenwood v. Marvin, 111 N. Y. 423, 19 N. E. 228. §§ 55-57) DOWER— ASSIGNMENT OF DOWEB 133 QUARANTINE— Quarantine is the right, at common law, of a widow to remain in her husband's principal mansion house for forty days after his death, pending the assignment of her dower. The duration of quarantine has been extended by statutes in some states. Necessity and Duty of Assignment — Quarantine Immediately upon the death of the husband, the widow is en- titled to her dower. 28 It must, however, be assigned, or allotted, to her. Since before such assignment it is not an estate, 24 she has no right of entry, 25 and she cannot file a suit for partition. 28 Her right is practically a mere' chose in action. 27 At law, this right is not liable for the widow's debts, 28 nor can she transfer her right, 2 " although a transfer may be enforced in equity. 80 Her dower, should be assigned, at common law, within forty days after her husband's decease. During this period the widow has the right ss Austell v. Swann, 74 Ga. 278 ; Potter v. Worley, 57 Iowa, 66, 7 N. W. 685, 10 N. W. 298 ; Tenbrook v. Jessup, 60 N. J. Eq. 234, 46 Atl. 516. 2i Park, Dower, 334 ; Union Brewing Co. v. Meier, 163 111. 424, 45 N. E. 264 ; Sears v. Sears, 121 Mass. 267 ; Rayner v. Lee, 20 Mich. 384 ; Aikman v. Harsell, 98 if. Y. 186; Jones v. Hollopeter, 10 Serg. & R.' (Pa.) 326; Blodget v. Brent, 3 Cranch, C. O. 394, Fed. Cas. No. 1,553; Reynolds v. McCurry, 100 111. 356; Heisen v. Heisen, 145 111. 658, 34 N. E. 597, 21 L. R. A. 434. as Trask v. Baxter, 48 111. 406 ; Hildreth v. Thompson, 16 Mass. 191 ; Col- lins v. Warren, 29 Mo. 236; Jackson v. O'Donaghy,, 7 Johns. (N. T.) 247. 26 Reynolds v. McCurry, 100 111. 358; Coles v. Coles, 15 Johns. (N. T.j 319; Brown v. Adams, 2 Whart. (Pa.) 188. Cf. Jones v. Hollopeter, 10 Serg. & R. (Pa.) 326. 27 Newman v. Willetts, 48 111. 534; McMahon v. Grey, 150 Mass. 289, 22 N. E. 923, 5 L. R. A. 748, 15 Am. St. Rep. 202; Aikman v. Harsell, 98 N. Y. 186; Rayner v. Lee, 20 Mich. 384; Summers v. Babb, 13 111. 483; Weaver v. Sturtevant, 12 R. I. 537; Downs v. Allen, 10 Lea (Tenn.) 652. 28 Gooch v. Atkins, 14 Mass. 378; Petty v. Malier, 15 B. Mon. (Ky.) 591; Waller v. Mardus, 29 Mo. 25 ; Summers v. Babb, 13 111. 483 ; Nason v. Allen, 5 Greenl. (Me.) 479; Pennington's Ex'rs v. Yell, 11 Ark. 212, 52 Am. Dec. 262. But that it may be reached by creditors' bill, see Payne v. Becker, 87 N. Y. 153 ; Tompkins v. Fonda, 4 Paige (N. Y.) 448 ; Thomas v. Simpson, 3 Pa. 60; Shaupe v. Shaupe, 12 Serg. & R. (Pa.) 9; Boltz v. Stoltz, 41 Ohio St. 540. Contra, Maxon v. Gray, 14 R. I. 641. 29 Summers v. Babb, 13 111. 483; McDonald v. Hannah, 51 Fed. 73; Blain v. Harrison, 11 111. 384; Hoots v. Graham, 23 111. 81; Jackson v. Aspell, 20 Johns. (N. Y.) 411; Dillon, C. J., in> Huston v. Seeley, 27 Iowa, 198; Parton v. Allison, 109 N. C. 674, 14 S. E. 107; Saltmarsh v. Smith, 32 Ala. 404. But -she may mortgage it. Ferry v. Burnell, 14 Fed. 807 ; Pope v. Mead, 99 N. Y. 201, 1 N. E. 671 ; Herr v. Herr, 90 Iowa, 538, 58 N. W. 897. so Strong v. Clem, 12 Ind. 37, 74 Am. Dec. 200 ; Parton v. Allison, 109 N. C. 674, 14 S. E. 107. 134 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 1 to reside in the mansion house 81 'of her late husband, 32 and to be supported out of his estate. 33 This right is called the "widow's quarantine." 34 The right can be claimed, however, only as to property of which the widow is do'wable. 35 She can lease 3B the premises, but her quarantine right is not subject to sale or execu- tion. 37 By common law quarantine was forfeited by her mar- riage, 38 or by her departure from the house, during the forty days. 39 This latter rule does not obtain, however, in this country. 40 In some states the statutes give the widow a longer term of resi- dence, 41 and in some jurisdictions she is permitted to remain until her dower is assigned. 42 Assignment of Common Right anij, Against Common Right At common law, the assignment of dower is said to be either of common right, or against common right. Assignment of common right is where the widow's third is set out to her by metes and bounds. 43 She must be given an absolute and unconditional life si In some states the right has been extended to other property besides the house. 1 Was'hb. Real Prop. (5th Ed.) 282 ; Weaver v. Crenshaw, 6 Ala. 873 ; Stewart's Lessee v. Stewart, 3 J. J. Marsh. (Ky.) 49 ; Grimes v. Wilson, 4 Blackf. (Ind.) 331. See McKAIG v. McKAIG, 50 N. J. Eq. 325, 25 Atl. 181, Burdick Cas. Real Property. 32 Oakley v. Oakley, 30 Ala. 131. The right exists only against those claiming under the husband. Taylor v. McCrackin, 2 Blackf. (Ind.) 260. 33 Magna Charta, 1224 ; Co. Litt. 32b, 34b ; Lloyd v. Trimleston, 2 Mol. 81. 84 From the Latin quadraginta, forty. as Harrison v. Boyd, 36 Ala. 203. She cannot claim quarantine in the whole of a house held in common. Collins v. Warren, 29 Mo. 236. Except in states where such interests are made subject to dower, quarantine does not extend to leasehold estates. Voelckner v. Hudson, 1 Sandf. (N. Y.) 215 ; Pizzala v. Campbell, 46 Ala. 35. 30 Wallace v. Hall's Heirs, 19 Ala. 367; White v. Clarke, 7 T. B. Mon. (Ky.) 641 ; Craige v. Morris, 25 N. J. Eq. 467. Cf. Doe d. Caillaret v. Bernard, 7 Smedes & M. (Miss.) 319. And see, contra, Stokes v. McAllister, 2 Mo. 163. 37 Cook v. Webb, 18 Ala. 810. She need not pay the taxes on the premises. Branson v. Yancy, 16 N. C. 77. And see Roach v. Davidson, 3 Brev. (S. C.) 80; Bleecker v. Hennion, 23 N. J. Eq. 123. 38 2 Scrib. Dower (2d Ed.) 63. 39 Kettillesby v. Kettillesby, 1 Dyer, 76b. *o Shelton v. Carrol, 16 Ala. 148. 4i In several it is now one year. 1 Stim. Am. St Law, § 3278; 1 Shars. 6 B. Lead. Cas. Real Prop. 403 ; 1 Washb. Real Prop. (5th Ed.) 282. 42 1 Stim. Am. St. Law, § 3278; 1 Washb. Real Prop. (5th Ed.) 282; Pharis v. Lcachman, 20. Ala. 662; Rambo v. Bell, 3 Ga. 207; Graham's Heirs v. Graham, 6 T. B. Mon. (Ky.) 561, 17 Am. Dec. 166; Chaplin v. Simmons' Heirs, 7 T. B. Mon. (Ky.) 337; Stewart's Lessee v. Stewart, 3 J. J. Marsh. (Ky.) 48; Caillaret v. Bernard, 7 Smedes & M. (Miss.) 319. 43 2 Scrib. Dower (2d Ed.) 80; Stevens' Heirs v. Stevens, 3 Dana (Ky.) 371; Schnebly v. Schnebly 26 111. 116; Benner v. Evans, 3 Pen. & W. (Pa.) 454 ; French v. Pratt, 27 Me. 381. §§ 55-57) DOWEB — ASSIGNMENT OF DOWEB 135 estate in the ptemises assigned. 44 Assignment of common right is the method which must be adopted' by the tenant when he makes the assignment without the widow's consent," or by the sheriff or commissioners on the order of the' court. 48 In assignment 'against common right the widow receives some other share in lieu of one-third by metes and bounds. 47 This method of assignment is valid only by consent of parties ; 48 but they may agree upon a share in common, or any other method, provided the provision for the widow is out of the lands of which she is dowable. 48 When dower is assigned by a competent party, the assignment is con- clusive. 50 If the assignment has been made, however, by judicial proceedings, and subsequently a superior title is enforced against the widow's share, so that she loses it, she can call for a new as- signment; B1 and the same right exists in favor of the heir against the widow. 52 In many states the statute provides that no assign- ment by the tenant is binding upon the widow, unless the same is accepted by her. 53 56. PROCEDURE IN ASSIGNMENT— BY WHOM ASSIGNED — At common law, dower can be assigned only by the ten- / ant of the freehold. In many states, however, the assign- ment of dower is conferred, by statute, upon the probate court. SAME— ASSIGNMENT BY PAROL— At common law, dower may be assigned by parol. «* Went worth v. Wentworth, Cro. Eliz. 452. «2 Scrib. Dower' (2d Ed.) 80. *« 2 Scrib. Dower (2d Ed.) 582. it French v. Peters, 33 Me. 396 ; French v. Pratt, 27 Me. 381 ; Marshall v. McPherson, 8 Gill & J. (Md.) 333; Welch v. Anderson, 28 Mo. 293; Hale v. James, 6 Johns. Ch. (N. T.) 258, 10 Am. Dec. 328. 48 Jones v. Brewer, 1 Pick. (Mass.) 314; Welch v. Anderson, 28 Mo. 293. 4»2 Scrib. Dower (2d Ed.) 82; Hale v. James, 6 Johns. Ch. (N. T.) 258, 10 Am. Dec. 328; Marshall v. McPherson, 8 Gill & J. (Md.) 333; Fitzhugh v. Foote, 3 Call (Va.) 13. bo Co. Litt. 35a; Jones v. Brewer, 1 Pick. (Mass.) 314; Meserve v. Meserve, 19 N. H. 240; Campbell v. Moore, 15 111. App. 129; Kobinson v. Miller, 1 B. Mon. (Ky.) 88; Johnson v. Neil, 4 Ala. 166. Compare French v. Pratt, 27 Me. 381. si French v. Peters, 33 Me. 396-; Mantz v. Buchanan, 1 Md. Ch. 202 ; Hollo- man v. Holloman, 5 Smedes & M. (Miss.) 559; St. Clair v. Williams, 7 Ohio, pt. 2, p. 110, 30 Am. Dec. 194. 02 Singleton's Ex'r v. Singleton's Heirs, 5 Dana (Ky.) 87. 53 Consult the local statutes> And see Clark v. Muzzey, 43 N. H. 59. 136 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 SAME— METHOD OF DIVISION— Land subject to dower is divided by metes and bounds when practicable ; otherwise, it may be sold, and the proceeds divided, or there may be . a division of the rents and profits. SAME— VALUATION OF THE PROPERTY— In assigning • dower, both the quality and quantity of the lands should be considered. Against an heir, the value is estimated at the time of assignment; against a grantee of the husband, at the time of alienation, in most states; in some states, at the time of assignment. 57. ACTIONS TO COMPEL ASSIGNMENT— The procedure for the recovery of dower wrongfully detained varies greatly in the several states. In most states, however, no demand is necessary before bringing suit. Who may Assign Dower may be assigned, at common law, immediately upon the death of the husband, by the person authorized to make the as- signment; no judicial proceedings being required. 64 It can be vol- untarily assigned only by the tenant of the freehold; that is, by the heir, devisee, or grantee of the husband. 65 In other words, any one may voluntarily assign dower who could be compelled to as- sign by a suit. 56 An assignment by an infant 6T or by a guardian may be good, 68 although, if a minor heir has made an excessive as- 6*4 Kent, 63; Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263; Boyers v. Newbanks, 2 Ind. 388; Shattuck v. Gragg, 23 Pick. (Mass.) 88; Den ex dem. Miller v. Miller, 4 N. J. Law, 321 ; Aikmann v. Harsell, 98 N. T. 186. so Park, Dower, 265; Co. Litt. 34b, 35a; Pearce v. Pesirce, 184 111. 289, 56 N. B. 311 ; Hopper v. Hopper, 22 N. J. Law, 715 ; Hill's Adm'rs v. Mitchell, 5 Ark. 608; Drost v. Hall, 52 N. J. Eq. 68, 28 Atl. 81; Id. (N. J. Ch.) 29 Atl. 437 (a chattel interest gives no power to assign). But see 2 Scrib. Dower (2d Ed.) 76; Rutherford v. Graham, 4 Hun (N. Y.) 796. 6 6 Park, Dower, 265; Co. Litt. 34b, 35a; Robinson v. Miller, 1 B. Mon. (Ky.) 88; Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263; Meserve v. Meserve, 19 N. H. 240; Richardson v. Harms, 11 Misc. Rep. 254, 32 N. T. Supp. 808. And see, as' to parties to suit, Kenyon v. Kenyon, 17 R. I. 539, 23 Atl. 101, 24 Atl. 787 ; Parton v. Allison, 111 N. C. 429, 16 S. E. 415 ; Coburn v. Herring- ton, 114 111. 104, 29 N. E. 478. 67 2 Scrib. Dower (2d Ed.) 78; 1 Greenleafs Cruise, 195; McCormick v. Taylor, 2 Ind. 336; Jones v. Brewer, 1 Pick. (Mass.) 314; Curtis v. Hobart, ' 41 Me. 230. Contra, Bonner v. Peterson, 44 111. 253. 68 Robinson v. Miller, 1 B. Mon. (Ky.) 88; Id., 2 B. Mon. (Ky.) 284; Jones T. Brewer, 1 Pick. (Mass.) 314; Boyers v. Newbanks, 2 Ind. 388. But see Bonner v. Peterson, 44 111. 260. For assignment by a joint tenant, see 2 Scrib. Dower (2d Ed.) 79. §§ 55-57) DOWER — ASSIGNMENT OF DOWEB 137 signment, he may have a redistribution on reaching his majority. 58 In many states, however, it is provided by statute that dower may be assigned by the probate court in which the husband's estate is being settled. 60 Assignment by Parol A parol assignment of dower, whether the assignment be of common right or against common right, is good at common law. 81 A statute, however, may require some writing or even a sealed instrument. 62 Method of Allotment Whenever practicable, the widow's interest in dower lands is, ac- cording to common right, set out by metes and bounds. 63 This method of allotment is expressly provided for by statute in a num- ber of states. 6 * In assigning dower, however, the convenience and interests of all parties concerned should be considered, 66 and a widow may be given one of three parcels of land, instead of one- third of each. 66 If, however, the several parcels have been aliened to different persons by the husband, dower must at common law be assigned in each one. 67 If, on the other hand, only part of them 5 8 Young v. Tarbell, 37 Me. 509; Jones v. Brewer, 1 Pick. (Mass.) 314; Mc- Cormick v. Taylor, 2 Ind. 336. *> «o Draper v. Baker, 12 Cush. (Mass.) 288; Garris v. Garris, 7 B. Mon. 46J ; Woerther v. Miller, 13 Mo. App. 567; 1 Stim. Am. St. Law, § 3272; Serry v. Curry, 26 Neb. 353, 42 N. W. 97 ; Wood v. Sealy, 32 N. Y. 105 ; Brown's Ap- peal, 84 Pa. 457 ; Neeld's Appeal, 70 Pa. 113. si Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263 ; Johns v. Penton, 88 Mo. 64; Gibbs v. Esty, 22 Hun (N. Y.) 266; Johnson v. Neil, 4 Ala. 166; Curtis v. Hobart, 41 Me. 230; Meserve v. Meserve, 19 N. H. 240; Shattuek v. Gragg, 23 Pick. (Mass.) 88. 6 2 2 Scrib. Dower (2d Ed.) 74. 63 Co. Litt. 34b; Pierce Y. Williams, 3 N. J. Law, 709; James v. Fields, 5 Heisk. (Tenn.) 394; Leggett v. Steele, 15 Fed. Cas. 248, No. 8,211, 4 Wash. 305. 6 4 Sanders v. McMillian, 98 Ala. 144, 11 South. 750, 18 L. R. A. 425, 39 Am. St. Rep. 19"; Moore v. Dick, 134 111. 43, 24 N. E. 768 ; Gourley, v. Kinley, 66 Pa. 270; Leggett v. Steele, 15 Fed. Cas. 248, No. 8,211, 4 Wash. 305. 6 s Sanders v. McMillian, 98 Ala. 144, 11 South. 750, 18 L. R. A. 425, 3!) Am. St. Rep. 19; Moore v. Dick, 134 111. 43, 24 N. E. 768; Gourley v. Kinley, 66 Pa. 270. 66 Milton v. Milton, 14 Fla. 369; Compton v. Pruitt, 88 Ind. 171; Jones v. Jones, 44 N. C. 177; Rowland v. Carroll, 81 111. 224; Alderson's Heirs v. Henderson, 5 W. Va. 182. Contra, Hardin v. Lawrence, 40 N. J. Eq. 154. In some states, the statutes provide for such an equitable allotment. Long- shore v. Longshore, 200 111. 470, 65 N. E. 1081; Price v. Price, 41 Hun (N. Y.) 486, 11 N. Y. Civ. Proc. 359. 67 Walsh v. Reis, 50 111. 477; Jones v. Brewer, 1 Pick. (Mass.) 314; Coulter v. Holland, 2 Har. (Del.) 330; Cook v. Fisk, 1 Walk. (Miss.) 423; Ellicott 138 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 has been sold, then dower is to be assigned in what remains, if sufficient, and the alienees exonerated. 08 In some states, the dwell- ing house is by statute included in the widow's share; ° 9 but when her third does not entitle her to all of it, certain rooms may be as- signed, with a right to use the halls and stairs. 70 Where lands are held by the husband as a cotenant with others, dower may be , assigned in common. 71 Sometimes, as in case of a mine, mill, or ferry, the only practical method of assigning dower is to give alter- nate enjoyment 72 or to divide the profits. 73 In some states, when a division is impossible, or would cause considerable loss, the land subject to dower may be sold. 74 When there has been a sale, or when there is a sum of money in court subject to dower, there are two ways of making the assignment. In some jurisdictions, one- third is invested, and the proceeds paid to the widow, during her life. 75 In others, she is given a gross sum at once, equal to the present worth of an annuity for the probable duration of her life. 70 v. Mosier, 11 Barb. (N. Y.) 574; Thomas v. Hesse, 34 Mo. 13, 84 Am. Dec. 66 ; Fosdick v. Gooding, 1 Greenl. (Me.) 30, 10 Am. Dec. 25 ; Peyton v. Jeffries, 50 111. 143. e« 2 Scrib. Dower (2d Ed.) 637; Wood v. Keyes, 6 Paige (N. T.) 478; Law- son v. Morton, 6 Dana (Ky.) 471; Morgan v. Conn, 3 Bush. (Ky.) 58; Good- rum v. Goodrum, 56 Ark. 532, 20 S. W. 353. 6» Gregory v. Ellis, 86 N. C. 579; Latta v. Brown, 96 Tenn. 343, 34 S. W. 417, 31 L. K. A. 840 ; Taylor v. Lusk, 7 J. J. Marsh. (Ky.) 636 ; 1 Stim. Am. St. Law, § 3277 B. And see Christopher v. Christopher, 92 Tenn. 408, 21 S. W. 890. 70 White. v. Story, 2 Hill (N. Y.) 543; Stewart v. Smith, 39 Barb. (N. T.) 167; Patch v. Keeler, 27 Vt 252; Symmes v. Drew, 21 Pick. (Mass.) 278; Parrish v. Parrish, 88 Va. 529, 14 S. E. 325. 7i Parrish v. Parrish, 88 Va. 529, 14 S. E. 325. 72 Stoughton v. Leigh, 1 Taunt. 402, 11 Rev. Rep. 810; Priddy v. Griffith, 150 111. 560, 37 N. E. 999, 41 Am. St. Rep. 397 ; Billings v. Taylor, 10 Pick. (Mass.) 460, 20 Am. Dec. 533; Smith's Heirs v. Smith, 5 Dana (Ky.) 179; Coates v. Cheever, 1 Cow. (N. Y.) 460; McGowen v. Bailey, 179 Pa. 470, 36 Atl. 325. 73 Co. Litt. 32a; Park, Dower, 252; Stevens v. Stevens, 3 Dana (Ky.) 371; Priddy v. Griffith, 150 111. 560, 37 N. E. 999, 41 Am. St. Rep. 397; Hendrix v. McBeth, 61 Ind. 473, 28 Am. Rep. 680; Chase's Case, 1 Bland (Md.) 200. 17 Am. Dec. 277. And see Heisen v.- Heisen, 145 111. 658, 34 N. E. 597, 21 L R. A. 434. 74 Seethe statutes in the several states, and cases in the notes following; Post v. Post, 65 Barb. (N. Y.) 192 ; Card v. Pudney, 42 App. Div. 405, 59 N. Y. Supp. 278. See 1 Stim. Am. St. Law, § 3276. 75 Higbie v. Westlake, 14 N. Y. 281; Tabele v. Tabele, 1 Johns. Ch. (N. Y.) 45 ; Bonner v. Peterson, 44 111. 253. 76 Hogg v. Hensley, 100 Ky. 719, 39 S. W. 247, 19 Ky. Law Rep. 44; Herbert v. Wren, 7 Cranch (U. S.) 370, 3 L. Ed. 374;. Banks v. Banks, 2 Thomp. & C. (N. Y.) 483; Williams' Case, 3 Bland (Md.) 186, 221; Eagle v. Emmet, 4 Bradf. Sur. (N. Y.) 117; Sherard v. Sherard's Adm'r, 33 Ala. 488. For the §§ 55-57) DOWER — ASSIGNMENT OF DOWEB 139 Without the widow's consent, however, a gross sum cannot be al- lotted to her in lieu of dower, unless the statute so provides. 77 In many cases, where the land cannot be practically allotted by metes and bounds, the widow is given a third of the rents and profits of the property. 78 Valuation of Property In the assignment of dower, the widow's interest should be de- termined by the value of the rents and profits of the land, so that she may receive one-third of such valuation. 79 Both the quality and the quantity of the land should be taken into consideration. 80 Againstfthe husband's heirs the value is estimated as of the time of assignment, 81 and, if, the heir improves the land before assignment the widow has dower in the increased value. 82 If the husband has alienated the land, without a release of dower, the widow is entitled to her dower, measured in value at the time of the alienation. 83 Although, in this country, improvements made by an alienee of the husband are not subject to dower, 84 in some states, however, the calculation of this (and' the use of life* tables), see 2 Scrib. Dower (2d Ed.) 678 ; Brown v. Bronson, 35 Mich. 415 ; 70 Ga. Append. 843-848 ; Stein v. Stein, 80 Md. 306, 30 Atl. 703. T! Martin v. Wharton, 38 Ala. 637; Herbert v. Wren, 7 Cranch (TJ. S.) 370, 3 L. Ed. 374 ; Atkin v. Merrell, 39 111. 62. 7 8 Washburn, Real Prop^ (6th Ed.) § 473; Chase's Case, 1 Bland (Md.) 206, 17 Am. Dec. 277 ; Scammon v. Campbell, 75 111. 223. t a Conner v. Shepherd, 15 Mass. 164; Miller v. Miller, 12 Mass. 454; Hel- ler's Appeal, 116 Pa. 534, 8 Atl. 790. so Russell v. Russell, 48 Ind. 456; Conner v. Shepherd, 15 Mass. 164; Strict ler v. Tracy, 66 Mo. 465 ; In re Watkins, 9 Johns. (N. Y.) 245. si Co. Litt. 32a; Evertson v. Tappen, 5 Johns. Ch. (N. T.) 497; McGehe* v. McGehee, 42 Miss. 747; McClanahan v. Porter, 10 Mo. 746. It is so pro- vided in some states by statute. 1 Stim. Am. St. Law, § 3279 ; 2 Scrib. Dower (2d Ed.) 634. And see Verlander v. Harvey, 36 W. Va. 374, 15 S. E. 54. 8 2 Walsh v. Wilson, 131 Mass. 535; Humphrey v. Phinney, 2 Johns. (N. Y.) 484; Thompson v. Morrow, 5 Serg. & R. (Pa.) 289, 9 Am. Dec. 358; Jefferies v. Allen, 34 S. C. 189, 13 S. E. 365 ; Powell v. Monson, etc., Mfg. Co., Fed. Cas: No. 11,356, 3 Mason, 347 ; Larrowe v. Beam, 10 Ohio, 498 ; Price v. Hobbs, 47 Md. 359. It is otherwise by statute in some states. 2 Scrib. Dower (2d Ed.) 597. 83 Stearns v. Swift, 8 Pick. (Mass.) 532; Sidway v. Sid way, 52 Hun, 222, 4 N. Y. Supp. 920; Shirtz v; Shirtz, 5 Watts (Pa.) 255; Walker v. Schuyler, 10 Wend. (N. Y.) 480 ; Guerin v. Moore, 25 Minn. 462 ; Tod v. Baylor, 4 Leigh (Va.) 498. s* Stearns v. Swift, 8, Pick. (Mass.) 532; Young v. Thrasher, 115 Mo. -222, 21 S. W. 1104; Brown v. Brown, 4 Rob. (N. Y.) 688; Barney v. Prowner, 9 Ala. 901 ; Stookey v. Stookey, 89 111. 40 ; Scammon v. Campbell, 75 111. 223 ; Wilson v. Oatman, 2 Blackf. (Ind.) 223; Price v. Hobbs, 47 Md. 359; Thomp- son v. Morrow, 5 Serg. & R. (Pa.) 289, 9 Am. Dec. 358; Young v. Thrasher, 115 Mo. 222, 21 S. W. 1104 ; Morgan v. Hendrew, 102 Ala. 245, 14 South. 540 ; Shirtz v. Shirtz, 5 Watts (Pa.) 255; Peirce v. O'Brien, 29 Fed. 402. 140 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 widow is dowable, as against an alienee, of any increased value of the land, between the time of the alienation and the assignment. 85 Actions to Compel Assignment If dower is not assigned by the heir, devisee, or other person whose duty it is to assign it, or by the probate court in states where such jurisdiction is given, the widow may resort to the courts to compel an assignment. 86 The procedure varies in'the several states. It may be (1) by a proceeding at common law; (2) in equity; (3) by ejectment; or (4) by a summary proceeding provided by stat- ute. It is not generally necessary to make a demand before bring- ing suit for dower, 87 except as to damages; 8S but, in jurisdictions where a demand is required, 89 it must be of the tenant of the free- hold, 80 and should contain a general description Of the premises out of which dower is demanded. 91 The common-law remedies for the recovery of dower are the writ of dower unde- nihil habet and the writ of right of dower. 92 These old writs of dower were abolished, however, in England, by the Procedure Act of I860, 93 and they are but little known in the procedure of this country. Courts of equity have, in general, concurrent jurisdiction in the assignment of dow- 85 Summers v. Babb, 13 111. 483; Throp v. Johnson, 3 Ind. 343; Thornburn v. Doscher, 32 Fed. 810; Fritz v. Tudor, 1 Bust (Ky.) 28; McClanahan v. Porter, 10 Mo. 746 ; Dunseth 'v. Bank, 6 Ohio, 76 ; Walker v. Schuyler, 10 Wend. (N. Y.) 4S0. And conversely she must bear any depreciation in value. x Westcott v. Campbell, 11 K. I. 378 ; McClanahan v. Porter, 10 Mo. 746~; Brax- ton v. Coleman, 5 Call (Va.) 433, 2 Am. Dec. 592; Sanders v. McMillian, 98 Ala. 144, 11 South. 750, 18 L. R. A. 425, 39 Am. St. Rep. 19. se Brooks v. Woods, 40 Ala. 538; Palmer v. Casperson, 17 N. J. Eq. 204. The action must be brought where the land is situated. Lamar v. Scott, 3 Strob. (S. C.) 562. The rule is not uniform as to when the action may be commenced. See 1 Stim. Am. St. Law, § 3271; 2 Scrib. Dower (2d Ed.) 109. 87 Scrib. Dower, c. 6, § 1; Chiswell v. Morris, 14 N. J. Eq. 101; Jackson ex dem. Loucks v. Churchill, 7 Cow. (N. Y.) 287, 17 Am. Dec. 514; Hopper v. Hopper, 22 N. J. Law, 715. 88 Hopper v. Hopper, 22 N. J. Law, 715; Chiswell v. Morris, 14 N. J. Eq. 101; Cowan v. Lindsay, 30 Wis. 5S6. 6 9 2 Scrib. Dower (2d Ed.) 109. so Page v. Page, 6 Cush. (Mass.) 196; Strawn v. Strawn, 50 111. 256; Davis v. Walker, 42 N. H. 482. Cf. Young v. Tarbell, 37 Me. 509. si Sloan v. Whitman, 5 Cush. (Mass.) 532; Haynes v. Powers, 22 N. H, 590 ; Davis v. Walker, 42 N. H. 482 ; Ford v. Erskine, 45 Me. 484 ; Atwood v. Atwood, 22 Pick. (Mass.) 283. And see Falls v. Wright, 55 Ark. 562, 18 S. W. 1044, 29 Am. St Rep. 74. 82 4 Kent, Comm. 33; Park, Dower, 283. See Ship. Com. Law PI. (2d Ed.) p. 6; 2 Scrib. Dower (2d Ed.) 91; Williams, Real Prop. (17th Am. Ed.) p. 380, note. And see Hurd v. Grant, 3 Wend. (N. Y.) 340; Miller v. Beverly, 1 Hen. & M. (Va.) 368. as 23 & 24 Vicfc c. 126. § 58) . DOWEB — INCIDENTS OF DOWEB 141 er, 94 and, in England, actions for the recovery of dower are usually- brought in the Chancery Division of the King's Bench, as being better adapted for the conduct of the proceedings. 06 In some juris- dictions, the statutes provide for the recovery of dower by an ac- tion in ejectment. 96 In most states, however, a statutory proceed- ing, in addition to the remedy offered by equity, is expressly pro- vided. 97 SAME— INCIDENTS OF DOWER 58. The widow has, in the land assigned as her dower, the usual rights of a tenant for life. Dbwer is a legal life estate, 98 and therefore a freehold. 99 Being a life estate, it is subject to the usual incidents of such estates. 1 For example, the tenant in dower cannot commit waste. 2 She may work mines already opened, 3 but she cannot open new ones. 4 She is not bound to continue in possession of the lands, since her estate is nofdependent upon her continued occupancy. 6 , She may sell or lease the whole or any part of her interest. 6 She has the »4 See Potter v. Clapp, 203 111. 592, 68 N. E. 81, 96 Am. St. Rep. 322; Bee- man v. Kitzman, 124 Iowa, 86, 99 N. W. 171. The equitable remedy is some- times exclusive. McMahan v. Kimball, 3 Blackf. (Ind.) 1 ; Chiswell v. Morris, 14 N. J. Eq. 101 ; Davis v. Davis, 5 Mo. 183 ;\ Smart v. Waterhouse, 10 Terg. (Tenn.) 94. »5 Laws of Eng. vol. 24, p. 197. »e GaJbraith v. Fleming, 60 Mich. 408, 27 N. W. 583; Gourley v. Kinley, 66 Pa. 270 ; Ellicott v. Mosier, 11 Barb. (N. T.) 574, But not in some states be- fore assignment. 2 Scrib. Dower (2d Ed.) 115. o? Johnson v. Johnson, 84 Ark. 307, 105 S. W. 869; Diefenderfer v. Eshle- man, 113 Pa. 305, 6 Atl. 568 ; Thomas v. Thomas, 73 Iowa, 657, 35 N. W. 693 ; 1 Stim. Am. St Law, § 3274. as Rowley v. Poppenhager, 203 111. 434, 67 N. E. 975; Sell v. McAnaw, 158 Mo. 466, 59 S. W. 1003 ; Kunselman v. Stine, 183 Pa. 1, 38 Atl. 414 ; Whitmore v. Sloat, 9 How. Prac. (N. Y.) 317. ss Park, Dower, 339. , iWhyte'v. Mayor, etc., of Nashville, 2 Swan (Terin.) 364. 2 Co. Litt. 53, 54 ; Noyes v. Stone, 163 Mass. 490, 40 N„ E. 856 ; Van Hoozer v. Van Hoozer, 18 Mo. App. 19 ; Parker v. Chambliss, 12 Ga. 235. See Stetson v. Day, 51 M«. 434 ; Dicken v. Hamer, 1 Drew. & Sm. 284. ' s Stoughton v. Leigh, 1 Taunt. 402 ; Sherrill v. Connor, 107 N. O. 630, 12 S. E. 588. * Dicken v. Hamer, 1 Drew. & Sm. 284. 5 Rowley v. Poppenhager, 203 111. 434, 67 N. E. 975. « Blake v. Ashbrook, 91 111. App. 45 ; Summers v. Babb, 13 111. 483. Cf. Matlock v. Lee, 9 Ind. 298; Stockwell v. Sargent, 37 Vt. 16. A lease is ter- minated, however, by her death. Stockwell v. Sargent, 37 Vt. 16. !^ LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 usual right to emblements, 7 and she has also the crops sown on the dower land by her husband, 8 or by the heir before assignment. 8 She may take reasonable estovers, 10 and, when the land assigned consists of several parcels, she may take wood from one parcel for use in another. 11 It is her duty, at least, in some states, to keep fences and buildings in repair, 12 and this duty is specified by stat- ute in several states. 13 She must keep down her proportionate share of the interest on incumbrances, 14 and pay the taxes. 15 There can be no claim for improvements made by the widow or by her assignee. 16 If she has leased the premises, her personal rep- resentative is entitled to the rent due at her death. 17 The rever- sion or remainder of the estate in fee simple, after her life estate terminates, descends to the husband's heirs, or goes to his devisees, as the case may be. If the land was aliened by the husband by a conveyance not good against the wife, the grantee's estate is by the assignment of dower defeated during the life of the widow. On ' Co. Litt. 55. See Talbot v. Hill, 68 111. 106 ; Fisher v. Forbes, 9 Vin. Abr. 373, pi. 82. Any doubt as to this was removed by the statute of Merton (20 Hen. Ill, c. 2), A. D. 1235, which has been generally recognized or re-enacted in this country. 2 Scrib. Dower (2d Ed.) 779; 1 Stim. Am. St. Law, § 3233. s Parker v. Parker, 17 Pick. (Mass.) 236 ; Ralston v. Ralston, 3 G. Greene (Iowa) 533. Cf. Kain v. Fisher, 6 N. Y. 597; Street v. Saunders, 27 Ark. 554; Budd v. Hiler, 27 N. J. Law, 43. But see Davis v. Brown, 2 Ohio Dec. (Reprint) 644. » Parker v. Parker, 17 Pick. (Mass.) 236. % io Calvert v. Rice, 91 Ky. 533, 16 S. W. 351, 13 Ky. Law Rep. 107, 34 Am. St. Rep. 240 ; Garnett Smelting & Development Co. v. Watts, 140 Ala. 449, 37 South. 201; White v. Cutler, 17 Pick. (Mass.) 248. See King v. Miller, 99 N. C. 583, 6 S. E. 660. ii Van Hoozer v. Van Hoozer, 18 Mo. App. 19 ; Hastings v. Crunckteton, 3 Yeates (Pa.) 261. And see Lunn v. Oslin, 96 Tenn. 28, 33 S. W. 561; Childs v. Smith, 1 Md. Ch. 483. But cf. Cook v. Cook, 11 Gray (Mass.) 123; Noyes v. Stone, 163 Mass. 490, 40 N. E. 856. Woodlands may be cleared, in part, when necessary for the reasonable enjoyment of the estate. Van Hoozer v. Van Hoozer, 18 Mo. App. 19 ; King v. Miller, 99 N. C. 583, 6 S. E. 660. 12 Calvert v. Rice, 91 Ky. 533, 16 S. W. 351, 13 Ky. Law Rep. 107, 34 Am. St. Rep. 240 ; Padelford v. Padelford, 7 Pick. (Mass.) 152. is 1 Stim. Am. St. Law, § 3232. "Hodges v' Phinney, 106 Mich. 537, 64 N. W. 477; House v. House, 10 Paige (N. Y.) 158 ; Zinn v. Hazlett, 67 111. App. 410. is Austel v. Swann, 74 Ga. 278. And see, Graves v. Cochran, 68 Mo. 74 ; Harrison v. Peck, 56 Barb. (N. Y.) 251; Durkee v. Felton, 44 Wis. 467; Linden v. Graham, 34 Barb. (N. Y.) 316. So of assessments for street im- provements. Whyte v. Mayor, etc., of Nashville, 2 Swan (Tenn.) 364. By tbe old common law, the tenant in dower was subject to no tolls or taxes. 2 Blk. Comm. 138. i« Maddocks v. Jellison, 11 Me. 482 ; Bent v. Weeks, 44 Me. 45 ; Cannon v. Hare, 1 Tenn. Ch. 22. 1? 2 Scrib. Dower (2d Ed.) 781. § 59) DOWEB — HOW BARKED 143 her death, the reversioner, remainderman, or grantee is at once en- titled to possession of the land, subject to her right of emblements, if any exists. 18 SAME— HOW BARRED i 59. The right to dower may be barred or forfeited by : (a) Alienage of husband or wife, in some states. (b) Elopement and living in adultery by the wife, in most states. (c) Annulment of marriage. (d) Divorce, in mciny states. (e) Loss of husband's seisin. {f ) Conveyance by husband : (1) Before marriage. (2) After marriage, in some states, (g) Release by wife. , (h) Jointure. < (i) Settlement or agreement. (j) Widow's election to take a testamentary or statutory provi- sion in lieu of dower, (k) Estoppel. (1) Statute of limitations, in a number of states, (m) Laches in equity. (n) Waste after assignment, causing a forfeiture in some states. (o) Dedication to public use, or by exercise of eminent domain, (p) Declarations barring dower. In General The right to dower may be barred, released, or forfeited in vari- ous ways, as hereinafter set forth. In general, however, the wife's inchoate dower cannot be defeated after it has attached, except by some act of her own, in accord with the provisions of the statutes regulating dower. 19 After the death of the husband, and before the assignment of dower, the widow may likewise, by her voluntary acts or conduct, be barred from asserting her rights, as by estoppel or waiver, or by her election between dower and other provisions made for her. 20 Moreover, after the assignment of dower, her es- tate may possibly be forfeited for waste committed by her. 21 is 2 Scrib. Dower (2d Ed.) 785. Her personal representatives are entitled to emblements not disposed of by her. Keil, 125, pi. 84. is Gove v. Catber, 23 111. 634, 76 Am. Dec. 711 ; Hart v. McCollum, 28 Ga. 478; Scott v. Howard, 3 Barb. (N. Y.) 319. 20 Infra. " Infra. 144 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 Alienage At common law, dower could not attach when either husband or wife was an alien. 22 The statutes of many states have, however, changed the rule ; 2 « but their effect is not retroactive, so as to give dower in lands sold before the enactment. 24 Elopement and Adultery By the English statute of Westminster II, 2 ' which has been re- enacted, 20 or recognized as a part of our common law, 27 in a num- ber of states, a wife forfeits her dower if she elope and live in adul- tery, 28 unless there be a subsequent reconciliation. 29 In some states, however, the courts have refused to recognize these provi- sions of the English statute with reference to dower. 30 The wife's desertion of her husband does not, in itself, bar her dower, 31 al- though in a few states there are statutes to the contrary. 32 It has 22 2 Blk. Comm. 131 ; Co. Litt. 31b ; Calvin's Case, 7 Coke, 25a ; Wightman v. Laborde, Speer (S. C.) 525. 231 Stim. Am. St Law, §§ 102, 6013; 1 Scrib. Dower (2d Ed.) 156; 1 Washb. Real Prop. (5th Ed.) 80, note. In some states, by statute, lands conveyed by a nonresident owner are not subject to dower. See Ligare v. Semple, 32 Micb. 438. Cf . Bear v. Stahl, 61 Mich. 203, 28 N. W. 69 ; Bennett v. Harms, 51 Wis. 251, 8 N. W. 222. 2* Priest v. Cummings, 20 Wend. (N. T.) 338. Cf. White v. White, 2 Mete. (Ky.) 185. 25 13 Edw. I, c. 34 (1285, A. D.). 2« Owen v. Owen, 57 Ind. 291 ; Payne v. Dotson, 81 Mo. 145, 51 Am. Rep. 225 ; McAllister v. Novenger, 54 Mo. 251 ; 1 Stim. Am. St. Law, § 3246 A (1) ; 2 Scrib. Dower (2d Ed.) 535. 2 7 4 Kent, Comm. 53. And see Heslop v. Heslop, 82 Pa. 537; Reel v. Elder, 62 Pa. 30S, 1 Am. Rep. 414. 28 Adultery without elopement does not bar. Cogswell v. Tibbetts, 3 N. H. 41 ; Reel v. Elder, 62 Pa. 308, 1 Am. Rep. 414. Ondis v. Banto, 7 Kulp (Pa.) 309. If, however, there has been a separation for any cause whatever, a subsequent adultery will be a bar. Woodward v. Dowse, 10 C. B. (N. S.) 722; Hethrington v. Graham, 6 Bing. 135. Cf. Goss v. Froman, 89 Ky. 318, 12 S. W. 3S7, 8 L. R. A. 102 ; Walters v. Jordan, 35 N. C. 361, 57 Am. Dec. 558. If the husband drives the wife away, or deserts her, dower is not lost by adultery committed afterwards. Heslop v. Heslop, 82 Pa. 537; Rawlins v. Buttel, 1 Houst. (Del.) 224. And see Reynolds v. Reynolds, 24 Wend. (X. Y.) 193 ; Heslop v. Heslop, 82 Pa. 557 ; Stegall v. Stegall, Fed. Cas. No. 13,351, 2 Brock. 256. See, contra, Woodward v. Dowse (1S61) 10 C. B. (N. S.) 722. 28 Co. Litt. 32b; Sidney v. Sidney, 3 P. Wms. 269, 276. See 2 Scrib. Dower (2d Ed.) 539. so Lakin v. Lakin, 2 Allen (Mass.) 45 ; Bryan v. Batcheller, 6 R. I. 543, 78 Am. Dec. 454; Smith v. Woolworth, 22 Fed. Cas. 704, No. 13,130, 4 Dill. 584 ; Pitts v. Pitts, 52 N. Y. 593. ai Potier v. Barclay, 15 Ala. 439; Wiseman v. Wiseman, 73 Ind. 112. 3S Am. Rep. 115 ; Nye's Appeal, 126 Pa. 341, 17 Atl. 618, 12 Am. ^t. Rep. 873. 32 Thornburg v. Thornburg, 18 W. Va. 522 ; Stuart v. Neel'y, 50 W. Va. 508, 40 S. E. 441, 1 Stim. Am. St, Law, § 3246 B. § 59) DOWER — HOW BAEEED 145 been held in North Carolina that a wife who murders' her husband" does not thereby lose her right of dower. 38 Annulment of Marriage Since a valid marriage is a requisite of dower,* 4 when a mar- riage is terminated by a decree of nullity, dower is barred." It has already been pointed out, however, that a voidable marriage which is not annulled during coverture does not deprive the wife of her dower. 80 Divorce In many jurisdictions, an absolute divorce, whether obtained by the husband for the wife's misconduct, 87 or obtained by the wife for 'the husband's misconduct, 88 extinguishes the right to dower. 39 A judicial separation, however, or, in other words, a divorce a mensa et thoro, otherwise known as a limited divorce, does not affect a widow's dower rights, 40 unless so provided by statute. 41 In some states, divorce is no bar to dower, 4 * and in some other states, by statute, a divorce obtained by the wife for the husband's misconduct entitled her to dower at once, the same as if he were dead; 4S dower being barred, however, by divorce obtained by the husband for the wife's misconduct. 44 as Owens v. Owens, 100 N. C. 240, 6 S. E. 794. i« Supra. so Price v. Price, 124 N. Y. 589, 27 N. E. 383, 12 L. R. A. 359. See, also, cases in following note. s« Supra. And see the following cases: Bonham v. Badgley, 7 111. 622; Tomppert's Ex'rs v. Tomppert, 13 Bush (Ky.) 326, 26 Am. Rep. 197 ; Price v. Price, 124 N. T. 589, 27 N. E. 383, 12 L. R. A. 359 [reversing 54 Hun, 349, 7 N. Y. Supp. 474]. si Lash v. Lash, 58 Ind. 526; McCraney v. McOraney, 5 Iowa, 232, 68 Am. Dec. 702; Cheely v. Clayton, 110 U. S. 701, 4 Sup. Ct. 328, 23 L. Ed. 298. In England, also, for wife's misconduct. Frampton v. Stephens, 21 Ch. D. 164. See VAN CLEAF v. BURNS, 118 N. T. 549, 23 N. E. 881, 16 Am. St Rep. 782, Burdick Cas. Real Property. as Fletcher v. Monroe, 145 Ind. 56, 43 N. E. 1053; Calame v. Calame, 24 N. J. Eq. 440; Day v. West, 2 Edw. Ch. (N. Y.) 592; Burdick v. Briggs, 11 Wis. 126. Compare, however, Wait v. Wait, 4 N. Y. 95. 30 Kent v. McCann, 52 111. App. 305; Winch v. Bolton, 94 Iowa, 573, 63 N. W. 330 ; Price v. Price, 124 N. Y. 589, 27 N. E. 383, 12 L. R A. 359 ; Miltimore v. Miltimore, 40 Pa. 151 ; Barrett v. Failing, 111 U. S. 523, 4 Sup. Ct. 598, 28 L. Ed. 505. 40 Rich v. Rich, 7 Bush, 53; Crain v. Cavana, 62 Barb. (N. Y.) 109; Taylor v. Taylor, 93 N. C. 418, 53 Am. Rep. 460. 4i Gallagher v. Gallagher, 101 Wis. 202, 77 N. W. 145.'" 42 1 Stim. Am. St. Law, §§ 3246 C, 6251. And see Barrett v. Failing, 111 U. S. 523, 4 Sup. Ct. 598, 28 L. Ed. 505. 43 Cunningham v. Cunningham, 2 Ind. 233 ; Tatro v. Tatro, 18 Neb. 395, 25 N. W. 571, 53 Am. Rep. 820; Kirkpatrick v. Kirkpatrick, 197 111. 144, 64 N. E. 267. 44 Rendleman v. Rendleman, 118 111. 257, 8 N. E. 773 ; Price v. Price, 124 N. Y. 589, 27 N. E. 383, 12 L. R. A. 359 ; Mansfield v. Mclntyre, 10 Ohio, 27. Burd.Real Prop. — 10 14:6 LIFE ESTATES ARISING FROM MARRIAGE (Ch. S Loss of Husband's Seisin When the husband loses his estate by the enforcement of a para- mount title, the wife has. no dower. 46 Likewise, debts which had become charges on the land before , marriage defeat dower when enforced, as in case of judicial sale,* 8 leaving to the wife, however, her right of dower in the surplus over and above the amount of the liens. Conveyance by Husband — Before Marriage A conveyance or alienation by the husband, before marriage, if made in good faith, will prevent dower from attaching. 47 Like- wise where, before marriage, the husband has made a contract . for the sale of land, the actual conveyance being made after marriage, the equitable doctrine of conversion will operate to de- feat dower. 48 Conveyances, however, by a man before his mar- riage, for the purpose of depriving his intended wife of her interest in the lands so conveyed, are a fraud upon her, and upon marriage her dower rights will attach. 49 In case, however, a man before his 45 Toomey v. McLean, 105 Mass. 122; Stirbling v. Ross, 16 111. 122; McClure , v. Fairfield, 153 Pa. 411, 26 Atl. 446; Vickers v. Henry, 110 N. O. 371, 15 S. E. 115 ; Waller v. Waller's Adm'r, 33 Grat. (Va.) 83. *8 Cheek v. Waldrum, 25 Ala. 152; Armstrong v. McLaughlin, 49 Ind. 370; Gross v. Lange, 70 Mo. 45; Holden v. Boggess, 20 W. Va. 62; Sandford v. McLean, 3 Paige (N. Y.) 117, 23 Am. Dec. 773; Robbins v. Robbins, 8 Black'f. (Ind.) 174; Griffin v. Reeee, 1 Har. (Del.) 508. But see House v. Fowle, 22 Or. 303,^29 Pac. 890; Whiteaker v. Belt, 25 Or. 490, 36 Pac. 534; Dayton v. Corser, 51 Minn. 406, 58 N. W. 717, 18 L. R. A. SO. Bankruptcy of the husband during coverture is no bar. Porter v. Lazear, 109 U. S. 84, 3 Sup. Ot. 58, 27 L. Ed- 865; Lazear v. Porter, 87 Pa. 513, 30 Am. Rep. 380; In re Bartenbach, il N. B. R. 61, Fed. Cas. No. 1,068 ; In re Lawrence, 49 Conn. 411. Cf. Dudley v. Easton, 104 U. S. 99, 26 L. Ed. 668. The wife is, in some states, allowed dower on bankruptcy of husband as in case of death. Warford v. Noble (C. C.) 9 Biss. 320, 2 Fed. 202; Rhea v. Meridith, 6 Lea (Tenn.) 605. Where, however, the property is sold by judicial sale for debts during coverture, the purchaser takes subject to the wife's dower. BUTLER v. FITZGERALD, 43 Neb. 192, 61 N. W. 640, 27 L. R. A. 252, 47 Am. S.t. Rep. 741, Burdick Cas. Real Property. ** Daniher v. Daniher, 201 111. 489, 66 N. E. 239 ; Beckwith v. Beckwith, 61 Mich. 315, 28 N. W. 116; Brown v. Bronson, 35 Mich. 415; Oakley v. Oakley, 69 Hun (N. T.) 121, 23 N. Y. Supp. 267 ; Rawlings v. Adams, 7 Md. 26; Richardson v. Skolfield, 45 Me. 386; Kintner v. McRae, 2 Ind. 453; Gaines v. Gaines' Ex'r, 9 B. Mon. (Ky.) 295, 48 Am. Dec. 425; Firestone v. Firestone, 2 Ohio St. 415. But see In re Pulling's Estate, 97 Mich. 375, 56 N. W. 765. i*Chesnut v. Cnesnut, 15 111. App. 442; In re Pulling, 97 Mich. 375, 56' N. W. 765 ; Chapman v. Chapman, 92 Va. 537, 24 S. E. 225, 53 Am. St. Rep. 823 ; Madigan v. Walsh, 22 Wis. 501; Rawlings v. Adams, 7 Md. 26; Hunkins v. I-Iunkins, 65 N. H. 95, 18 Atl. 655. *» Higgins v. Higgins, 219 111. 146, 76 N. E. 86, 109 Am. St. Rep. 316; Wal- § 59) ( DOWEK — HOW BABBED 147 marriage conveys land in fraud of his creditors, dower will not sub- sequently attach, since if the conveyance is set aside the rights of the creditor have priority. 60 Same—zAfter Marriage At common law, no alienation or incumbrance made by the hus- band alone during the i coverture is good against the wife, 51 nor is a bona fide purchaser, ignorant of her dower right, protected. 02 By statute, however, in some states, the husband's alienations are made effectual against the wife, in connection with the doctrine that dower attaches only to lands of which the husband died seised. 61 In several states, if the husband make an exchange, during cov- erture, of one tract of land for another, his widow cannot have dower in both tracts. She must elect out of which she will claim. 54 lace v. Wallace, 137 Iowa, 169, 114 N. W. 913 ; Jones v. Jones, 213 111. 228, 72 N. E. 695. Such as a secret conveyance on the day before marriage. Stewart's Lessee v. Stewart, 3 J. J. Marsh. (Ky.) 48; Cranson v. Cranson, 4 Mich. 230, 66 Am. Dec. 534 ; Pomeroy v. Pomeroy, 54 How. Prac. (N. Y.) 228 ; Brewer v. Connell, 11 Humph. (Tenn.) 500; Brooks v. McMeekin, 37 S. C. 285, 15 S. E. 1019. bo King v. King, 61 Ala. 479; Whitehed v. Mallory, 4 Cush. (Mass.) 138; Adkins v. Adkins (Tenn. Ch. App. 1899) 52 S. W. 728; Gross v. Lange, 70 Mo. 45. 6i Haller v. Hawkins, 245 111. 492, 92 N. E. 299 ; Hyatt v. O'Connell, 130 Iowa, 567, 107 N. W. 599, 3 L. R A. (N. S.) 971; Rank v. Hanna, 6 Ind. 20; Thompson v. McCorkle, 136 Ind. 484, 34 N. E. 813, 36 N. E. 211, 43 Am. St. Rep. 334 ; Graves v. Fligor, 140 Ind. 25, 38 N. E. 853 ; Chase v. Van Meter, 140 Ind. 321, 39 N. E. 455; Venable v. Railway Co. (Mo.) 19 S. W. 45; Deans v. Pate, 114 N. C. 194, 19 S. E. 146 ; Stein v. Stein, 80 Md. 306, 30 Atl. 703 ; 1 Stim. Am. St. Law, § 3249. The grantee of the husband is estopped to deny the husband's title, Browne v. Potter, 17 Wend. (N. Y.) 164; but not when the conveyance is a quitclaim. Sparrow v. Kingman, 1 N. Y. 242. And see Coakley v. Perry, 3 Ohio St. 344; Gardner v. Greene, 5 R. I. 104; Delany v. Manshum, 146 Mich. 525, 109 N. W. 1051. Compare Coberly v. Coberly, 189 Mo. 1, 87 S. W. 957. "Dicktv. Doughten, 1 Del. Ch. 320. The purchaser's estate is defeated only as to one-third during the life of the dowress. Id. v 6 3 Stewart v. Stewart, - 5 Conn. 317; Hopkins v. Bryant, 85 Tenn. 520, 3 S. W. 827. And see McRae v. McRae, 78 Md. 270, 27 Atl. 1038. A voluntary conveyance, however, for the purpose of defeating dower will be ineffectual. Jiggitts v. Jiggitts, 40 Miss. 718; Mcintosh v. Ladd, 1 Humph. (Tenn.) 458; Thayer v. Thayer, 14 Vt. 107, 39 Am. Dec. 211. Contra, Flowers v. Flowers, 89 Ga. 632, 15 S. E. 834, 18 L. R. A. 75. 'And see Brandon v. Dawson, 51 Mo. App. 237. And cf. Jenny v. Jenny, 24 Vt 324; McGee v. McGee's Heirs, 26 N. C. 105. In England, a widow is not entitled to dower out of any lands which have been absolutely disposed of by her husband during coverture, or by his will. Dower Act 1833, 3 & 4 Wm. IV, c. 105. 6* Stevens v. Smith, 4 J. J. Marsh. (Ky.) 64, 20 Am. Dec. 205; Mahoney v. Young, 3 Dana (Ky.) 588, 28 Am. Dec. 114. And so by statute. 1 Stim. Am. St. Law, § 3218. But cf. Wilcox v. Randall, 7 Barb. (N. Y.) 633; Cass v. Thompson, 1 N. H. 65, 8 Am. Dec. 36. 148 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 Release by Wife In those states in which a conveyance by the husband alone is not effective against the wife, 66 the wife may, by her own voluntary act, release her inchoate right of dower, 66 by joining with her hus- band in a valid deed. 57 The form of the deed and the sufficiency of the wife's release of her dower are governed by the provisions of the local statutes, 68 with which there must be a substantial compli- ance. 69 The method of acknowledgment specified by statute must also be followed, 60 a separate acknowledgment of the wife apart from her husband being required under some statutes. 61 Although there are some cases. holding that the mere signature and acknowl- edgment of the wife to the deed of the husband will be sufficient to release her dower, 62 the great weight of authority, is to the ef- fect that the deed must also contain appropriate words of release. 66 It is not necessary, however, that the wife's name appear in the body of the deed as a grantor. 64 The wife releases her dower by 56 Supra. Be Stokes v. Stokes, 240 111. 330, 88 N. E. 829 ; Jack v. Hooker, 71 Kan. 652, 81 Pac. 203 ; Eslava v. Lepretre, 21 Ala. 504, 56 Am. Dec. 266. "Dooley v. Greening, 201 Mo. 343, 100 S. W. 43. See Baker v. Syfritt, 147 Iowa, 49, 125 N. W. 998; Taylor v. Lawrence, 148 111. 388, 36 N. E. 74; HINCHLIFFE v. SHEA, 103 N. Y. 153, 8 N. E. 477, Burdick Cas. Real Prop- erty; Warner v. Macknett, 3 Phila. (Pa.) 325; Bottomly v. Spencer (C. C.) 36 Fed. 732. Bs For the statutory provisions in general, see 1 Stim. Am. St. Law, §| 3245, 6504. And see Coburn v. Herrington, 114 111. 104, 29 N. E. 478. 6» Bush v. Piersol, 183 Mo. 500, 81 S. W. 1224. See Radley v. Radley, 70 N. J. Eq. 248, 62 Atl. 195; Atkin v. Merrell, 39 IU. 62; Bottomly v. Spencer (O. C.) 36 Fed. 732. eo Jack v. Hooker, 71 Kan. 652, 81 Pac. 203; Owen v. Bobbins, 19 111. 545; Maynard v. Davis, 127 Mich. 571, 86 N. W. 1051 ; Kirk v. Dean, 2 Bin. (Pa.) 341. See Genoway v. Maize, 163 Mo. 224, 63 S. W. 698. «i 1 Stim. Am. St. Law, § 6501 (1) ; 2 Scrib. Dower (2d Ed.) 321 ; Sibley v. Johnson, 1 Mich. 380; Kirk v. Dean, 2 Bin. (Pa.) 341. 62 Perley v. Woodbury, 76 N. H. 23, 78 Atl. 1073 ; Johnson v. Montgomery, 51 111. 185; Burge v. Smith, 27 N. H. 332; Dustin'v. Steele, 27 N. H. 431; Smith v. Handy, 16 Ohio, 192 ; Daly v. Willis, 5 Lea (Tenn.) 100. 6 3 Powell v. Manufacturing Co., 3 Mason, 347, 459, Fed. Cas. Nos. 11,356 and 11,357; Hall v. Savage, 4 Mason, 273, Fed.. Cas. No. 5,944; Lufkin v. Curtis, 13 Mass. 223 ; McFarland v. Febiger's Heirs, 7 Ohio, pt. 1, p. 194* 28 Am. Dec. 632; Carter v. Goodin, 3 Ohio St. 75; Stevens v. Owen, 25 Me. 94- Leavitt v. Lamprey, 13 Pick. (Mass.) 3S2, 23 Am. Dec. 685. Cf. Gray v'. McCune, 23 Pa. 447; Bartlett v. Bartlett, 4 Allen (Mass.) 440; Davis v. Bar- tholomew, 3 Ind. 485; Carter v. Goodin, 3 Ohio St. 75; Dundas v. Hitchcock, 12 How. (TJ. S.) 256, 13 L. Ed. 978. Contra, Johnson v. Montgomery, 51 111! 185 ; Goodheart v. Goodheart, 63 N. J. Eq. 746, 53 Atl. 135 ; GiUilan v Swift 14 Hun (N. T.) 574. e* Stearns v. Swift, 8 Pick. (Mass.) 532; Atkinson v. Taylor, 34 Mo Abp 442. § 59) DOWER HOW BARRED 149 joining in her husband's conveyance, and she cannot, without the sanction of a statute, release her right by a 'separately executed deed. 65 Moreover, she releases to her husband's alienee; 86 a re- lease by her to a stranger to the fee being of no effect. 67 At com- mon law, she cannot bar her dower by a release executed to her husbajid, 68 although this has been changed by statute in some states. 69 The statutes may also authorize a release by an infant wife, 70 as, likewise/by {he guardian of an insane wife. 71 Jointure' Strictly speaking, a jointure- signifies a joint estate' limited to both husband and wife; but in common acceptation it extends also «5 Lewis v. Apperson, 103 Va. 624, 49 S. E. 978, 68 L. B. A. 867, 106 Am. St. Rep. 903; Knox v. Brady, 74 111. 746; Page v. Page, 6 Cush. (Mass.) 196 ; Brown v. Brown, 47 Mo. 130, 4 Am. Rep. 320 ; Armstrong v. Armstrong, 1 N. Y. St. 529; Ulp v. Campbell, 19 Pa. 361; Powell v. Monson, etc., Mfg. Co., Fed. Cas. No. 11,356, 3 Mason, 347. 6e Fowler v. Shearer, 7 Mass. 14; Kirk v. Dean, 2 Bin. (Pa.) 341; Chi- cago Dock Co. v. Kinzie, 49 111. 289 ; Howlett v. Dilts, 4 Ind. App. 23, 30 N. E. 313; Ortman v. Chute, 57 Minn. 452, 59 N. W. 533; Saunders v. Blythe, 112 Mo. 1, 20 S. W. 319; Shinkle's Assignees v. Bristow,~95 Ky. 84, 23 S. W. 670. Cf. Stull v. Graham, 60 Ark. 461, 31 S. W. 46. If the husband's deed is avoided, her dower is restored. Robinson v. Bates, 3 Mete. (Mass.) 40; Woodworth v. Paige, 5 Ohio St. 71; Malloney v. Horan, 49 N. Y. Ill, 10 Am. Rep. 335 ; Morton v.' Noble, 57 111. 176, 11 Am. Rep. 7. But see Den v. Johnson, 18 N. J. Law, 87. 67 Geisendorff v. Cobbs, 47 Ind. App. 573, 94 N. E. 236. See Williams v. Merriam, 72 Kan. 312, 83 Pac. 976 ; Fletcher v. Shepherd, 174 111. 262, 51 N. E. 212; Harriman v. Gray, 49 Me. 537; Reiff v. Horst, 55 Md. 42; Marvin v. Smith, 46 N. Y. 571 ; Bethune v. McDonald, 35 S. C. 88, .14 S. E. 674. But cf. Robbins v. Kinzie, 45 111. 354 ; Flynn v. Flynn, 171 Mass. 312, 50 N. E. 650, 42 L. R. A. 98, 68 Am. St. Rep. 427 ; Elmendorf v. Lockwood, 57 N. Y. 322. es Crain v. Cavana, 36 Barb. (N. Y.) 410; Walsh v. Kelly, 34 Pa. 84; Flynn v. Flynn, 171 Mass. 312, 50 N. E. 650, 42 L. R. A. 98, 68 Am. St. Rep. 427; Carson v. Murray, 3 Paige (N. Y.) 483; Martin's Heirs v. Martin, 22 Ala. 86; Graham v. Van Wyck, 14 Barb. (N. Y.) 531; Wightman v. Schleifer, 63 Hun, 633, 18 N. Y. Supp. 551 ; In re Rausch, 35 Minn. 291, 28 N. W. 920 ; House v. Fowle, 22 Or. 303, 29 Pac 890. See, however, Doremus v. Doremus, 66 Hun, 111, 21 N. Y. Supp. 13 ; Chittock v. Chittock, 101 Mich. 367, 59 N. W. 655. But the husband may be her attorney in fact to release. Andrews, J., in Wronkow v. Oakley, 133 N. Y. 505, 31 N. E. 521, 16 L. R. A. 209, 28 Am. St. Rep. 661. eo Fisher v. Koontz, 110 Iowa, 498, 80 N. W. 551; Rhoades v. Davis, 51 Mich. 306, 16 N. W. 659. to Otherwise, not at common law. Oldham v. Sale, 1 B. Mon. (Ky.) 76; Mc- Intyre v. Costella, 47 Hun (N. Y.) 289 ; Schrader v. Decker, 9 Pa. 14, 49 Am. Dec. 538. TiEslava v. Lepretre, 21 Ala. 504, 56 Am. Dec, 266; Ex parte McElwain, 29 111. 442 ; Matter of Dunn, 64 Hun, 18, 18 N. Y. Supp. 723. See the statutes in the several states. 150 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 to a sole estate limited to the wife only. 72 Blackstone, after enu- merating various methods by which dower may be barred or pre- vented, says : 78 "The most usual method of barring dowers is by jointures, as regulated by the statute of 27 Hen. VIII, c. 10." Be- fore the passage of this statute", 74 known as the "statute of uses," 75 the largest part of the lands of England were conveyed to uses ; that is, conveyed to one person for the use of the other. Although a husband had the use of lands •in fee simple, yet the wife was not entitled to dower in this equitable estate. 78 Accordingly, to provide for the wife, in case she survived her husband, there arose a cus- tom of settling by express deed some estate upon the wife. 77 Such an estate was called a "jointure." The statute of uses changed the equitable estates of uses into legal estates, 78 but expressly pro- vided 78 that, in case a jointure before marriage had been settled on the wife, she should be forever barred of her dower in the legal estates thus created by the statute. 80 The substance of this statute has been re-enacted in many of our American states. 81 Four requi- sites of jointure were prescribed by the statute of uses: (1) It must take effect immediately on her husband's death ; 82 (2) l it must be an estate -for at least her own life ; 83 (3) it must be to her- self, and not in trust for her,' 84 and (4) it must be expressed in the deed to be in satisfaction of the whole dower. 88 Jointure is « 2 Blk. Comm. 137. ™ 2 Blk. Comm. 137. 73 2 Bik. Comm. 137. " Id. t* A. D. 1535. " See, post, chapter XIV. " See, post, chapter XIV, § 120. »• Section 6. so 2 Blk. Comm. 138. si McGee v. McGee," 91 111. 548 ; Hastings v. Dickinson, 7 Mass. 153r 5 Am. Dec. 34; Martien v. Norris, 91 Mo. 465, 3 S. W. 849; Graham v. Graham, 67 Hun, 329, 22 N. Y. Supp. 299 ; Whitehead v. Mtddleton, 2 How. (Miss.) 692. The former method of jointure, as a bar to dower, is now, however, obsolete in England, , by force of the provisions of the Dower Act of 1833. See Laws of Eng. vol. 24, § 366, note. 82 Hastings v. Dickinson, 7 Mass. 153, 5 Am. Dec. 34; Cram v. Cavana, 36 Barb. (N. Y.) 410 ; McCartee v. Teller, 2 Paige (N. Y.) 511 ; Vance v. Vance, 21 Me. 364; Grogan v. Garrison, 27 Ohio St. 50; Caruthers v. Caruthers, 4 Brown, Ch. 500. «3 Hastings v. Dickinson, 7 Mass. 153, 5 Am. Dec. 34 ; Vance v. Vance, 21 Me. 364 ; In re Pulling, 93 Mich. 274, 52 N. W. 1116 ; Gelzer v. Gelzer, Bailey, Eq. (S. C.) 387, 23 Am. Dec. 180; Vernon's Case, 4 Coke, 1. A term of years, or an estate pur autre vie, will not suffice. McCartee v. Teller, 8 Wend. (N. X.) 267. And see 1 Stim. Am. St Law, § 3241. si Co. Litt. 36b; Hervey v. Hervey, 1 Atk. 561. But now otherwise by statute in many states. 1 Stim. Am. St. Law, § 3241. 86 2 Blk. Comm. 138; Vernon's Case, 4 Coke, 1; Bryan v. Bryan, 62 Ark. 79, 34 S. W. 260; Perry v. Perryman, 19 Mo. 469; Pepper v. Thomas, 85 Ky 539, 4 S. W. 297. § 59) DOWEE — HOW BAEKED 151 said to be either legal or equitable. Legal jpinture is a provision »• consisting of land exclusively. 87 This provision may be made by a third person, since it is not necessary that it be made by the hus- band. 88 Legal jointure is a bar to dower, if made before marriage, whether the wife assent or not ; 89 but if made during coverture, she can elect to take the jointure or her dower. 80 In equity any reasonable provision, 91 or contract for her provision, 92 is good as a jointure, if the intended wife assents. 98 When made after mar- riage, there is the same right of election as in legal jointure. 94 If the widow be evicted from her jointure lands, she is let to her dower in proportion to the amount lost. 06 8« Coke says it must be a competent livelihood, but the law gives no test. Co. Iiitt. 36b ; McCartee v. Teller, 2 Paige (N. Y.) 511 ; Graham v., Graham, 67 Hun, 329, 22 N. Y. Supp. 299 ; Taylor v. Taylor, 144 111. 436, 33 N. E. 532. And see Brandon v. Dawson, 51 Mo. App. 237. 87 An annuity, unless charged on lands," would not be good as a Jointure. Vance v. Vance, 21 Me. 364 ; Gibson v. Gibson, 15 Mass. 106, 8 Am. Dec. 94 ; Caruthers v. Caruthers, 4 Brown, Ch. 500 ; Hastings v. Dickinson, 7 Mass. 153, 5 Am. Dec. 34; McCartee v. Teller, 2 Paige (N. Y.) 511. But see Drury v. Drury, 2 Eden, 38; Earl of Buckinghamshire v. Drury, Id. 00. But by stat- ute in many states a settlement of personalty is a good jointure. 1 Stim. Am. St Law, § 3242. Williams, Real Prop. (17th Am. Ed.) note 378. 88 2 Scrib. Dower (2d Ed.) 404; Ashton's Case, Dyer, 22Sa. Contra in Maryland, by statute, 2 Code Pub. Gen. Laws 1888, p. 1411, art. 93, § 296; 1 Stim. Am. St. Law, § 3241. so2 Scrib. Dower (2d Ed.) 403; McCartee v. Teller, 2 Paige (N. Y.) 511. Cf. Taft v. Taft, 163 Mass. 467, 40 N. E. 860. In some states her assent is made necessary by statute. 1 Stim. Am.* St. Law, § 3241. 'so McCartee v. Teller, 2 Paige (N. Y.) 511; Fraser v. Stokes, 112 Va. 335, 71 S. E. 545; Bottomly v. Spencer (C. C.) 36 Fed. 732; Vance v. Vance, 21 Me. 364; Townsend v. Townsend, 2 Sandf. (N. Y.) 711; Rowe v. Hamilton, 3 Greenl. (Me.) 63. For the general principle of equitable election, see Fetter, Eq. 50; Bisp. Eq. (4th Ed.) 361. »i McCartee v. Teller, 2 Paige (N. Y.) 511; Grogan v., Garrison, 27' Ohio St. 50 ; Dyke v. Rtndall, 2 De G., M. & G. 209 ; Thompson v. Watts, 2 John. & H. 291; Tinney v. Tinney, 3 Atk. 7; Andrews v. Andrews, 8 Conn. 79. But see Caruthers v. Caruthers, 4 Brown, Ch. 500; Blackmon v. Blackmon, 16 Ala. 633 ; Charles v. Andrews, 2 Eq. Cas. Abr. 388. 92 Vincent v. Spooner, 2 Cush. (Mass.) 467 ; Dyke v. Rindall, 2 De Gex, M. 6 G. 209. »s Tisdale v. Jones, 38 Barb. (N. Y.) 523 ; Worrell v< Forsyth, 141 111. 22, 30 N. E. 673 ; Logan v. Phillipps, 18 Mo. 22. »* Garrard v. Garrard, 7 Bush (I^y.) 436. 9 is Hastings v. Dickinson, 7 Mass. 153, 5 Am. Dec. 34; Ward v. Wilson, 1 Desaus. (S. C.) 401; 2 Scrib. Dower (2d Ed.) 432; Gervoyes' Case, Moore, 717. But see Beard v. Nutthall, 1 Vern. 427. But not for elopement and adultery, except as changed by statute. Sidney v. Sidney, 3 P. Wms. 269; Buchanan v. Buchanan, 1 Ball & B. 203. Jointure is now rare. It is in some states forfeited for the same causes as dower. See 1 Stim. Am. St Law, § 3247 A. 152 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 Settlement or Agreement Dower may also be barred by an antenuptial contract, whereby in lieu of dower a portion of the husband's estate is settled upon the wife, or whereby the intended wife, in consideration of mar- riage, surrenders her prospective right of dower. 98 Although some cases have held that dower cannot, at common law, be barred in this manner, 87 on the ground that a right cannot be barred before it accrues, 88 yet such antenuptial contracts, if reasonable and bona fide, are upheld m equity, 88 and many states have provided by ex- press statute that dower may be barred by a voluntary agreement entered into by the intended wife. 1 Postnuptial agreements be- tween husband and wife for the purpose of barring dower are in- valid at common law, owing to the wife's incapacity. 2 In equity, however, such agreements, if fair, 8 reasonable, voluntary, 4 and ex- ecuted, may be enforced, unless the wife surrenders the benefits re- served by her under such an agreement, 5 and under modern statutes, giving married women contractual powers, such postnuptial con- tracts are generally upheld. 9 »« Culberson v. Culberson, 37 Ga. 296; Forwood v. Forwood, 86 Ky. 114, 5 S. W. 361, 9 Ky. Law Rep. 415 ; Nalll v. Maurer, 25 Md. 532. Of Rieger v. Schaible, 81 Neb. 33, 37, 115 N. W. 560, 17 L. E. A. (N. S.) 866, 16 Ann. Cas. 700 ; Blackmon v. Blackmon, 16 Ala. 633 ; Gibson v. Gibson, 15 Mass. 106, 8 Am. Dec. 94. And see In re Pulling, 93 Mich. 274, 52 N. W. 1116. »s Blackmon v. Blackmon, 16 Ala. 633; Logan v. Phillipps, 18 Mo. 22. And see In re Pulling, 93 Mich. 274, 52 N. W. 1116. »» Brown v. Brown, 117 App. Div." 199, 102 N. Y. Supp. 291; Cummings v. Cummings, 25 R. I. 528, 57 Atl. 302 ; Worrell v, Forsyth, 141 111. 22, 30 N. B. 673; Freeland v. Freeland, 128 Mass. 509; Pierce v. Pierce, 71 N. Y. 154, 27 Am. Rep. 22; Shoch v. Shoch, 19 Pa. 252; Rice v. Waddill, 168 Mo. 99, 67 S. W. 6*05 ; Graham v. Graham, 143 N. Y. 573, 38 N. E. 722 ; Taylor v. Taylor, 144 111. 436, 33 N. E. 532 ; Hinkle v. Hinkle, 34 W. Va. 142, 11 S. E. 993. i See the statutes in the several states. And see Wentworth v. Wentworth, 69 Me. 247; Dudley v. Davenport, 85 Mo. 462; Graham vv Graham, 67 Hun, 329, 22 N. Y. Supp. 299. 2 Martin v. Martin, 22 Ala. 86; Emery v. Neighbour, 7 N. J. Law, 142, 11 Am. Dec. 541; Crain v. Cavana, 36 Barb. (N. Y.) 410; Kreiser's Appeal, 69 Pa. 194 ; Bottomly v. Spencer (C. C.) 36 Fed. 732. a Kreiser's Appeal, 69 Pa. 194. * Mitchell v. Mitchell, 8 Ala. 414; Bubier v. Roberts, 49 Me. 460; Swaine v. Perine, 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318. = Lively v. Paschal, 35 Ga. 218, 89 Am. Dec. 282 ; Kreiser's Appeal, 69 Pa. 194; Chaney v. Bryan, 15 Lea (Tenn.) 589. See, also, Wood v. Seely, 32 N. Y. 105 ; Roberts v. Walker, 82 Mo. 200. = In re Fennell, 207 Pa. 309, 56 Atl. 875 ; Chittock v. Chittock, 101 Mich. 367, 59 N. W. 655. But see, Pinkham v. Pinkham, 95 Me. 71, 49 Atl. 48, 85 Am. St. Rep. 392 ; Ireland v. Ireland, 43 N. J. Eq. 311, 12 Atl. 184 ; Garner v. Fry, 104 Iowa, 515, 73 N. W. 1079; Randies v. Randies, 63 Ind. 93; Woods v. § 59) DOWER — HOW BARKED 153 Widow's Election It frequently happens that a husband leaves by will property to his wife, thereby raising the question whether the widow may have both dower and the provision made for her by the will, or whether she is put to her election. In case the will Expressly declares that the testamentary provision is in lieu of dower, it is the rule gener- ally that she must elect Which she will take.' She must likewise elect if the devise is necessarily inconsistent with dower. 8 If, on the other hand, the testamentary provision does not expressly show that it was intended to be given in place of dower, it is the pre- vailing rule that the widow may take both, 8 although in some states she is put to her election unless the will affirmatively shows that she is to have both ; a devise to her being presumed to be in lieu of Woods, 77 Me. 434, 1 Atl. 193 ; Roberts v. Walker, 82 Mo. 200 ; Jones v. Flem- ing, 104 N. Y. 418, 10 N. B. 693 [reversing 37 Hun (N. Y.) 227J. ■> In re Johnson's Estate, 10 Pa. Co. Ct. R. 461 ; WARREN v. WARREN, 148 111. 641, 36 N. E. 611, Burdick Oas. Real Property ; Pellizzarro v. Reppert, 83 Iowa-, 497, 50 N. W. 19 ; Newman v. Newman, 1 Brown, Ch. 186. But see Boiling v. Boiling, 88 Va. 524, 14 S. E. 67. By some statutes she is presumed to elect dower; by others, the will. 1 Stim. Am. St. Law, § 3264. And see Stone v. Vandermark, 146 111. 312, 34 N. E. 150. So there may be a presump- tion of election from lapse of time. In re Gunyon's Estate, 85 Wis. 122, 55 N. W. 152; Pratt v. Felton, 4 Cush. (Mass.) 174; Hastings v. Clifford, 32 Me. 132; Thompson v. Egbert, 17 N. J. Law, 459; Collins v. Carman, 5 Md. 503; Malone v. Majors, 8 Humph. (Tenn.) 577; Allen v. Hartnett, 116 Mo. 278, 22 S. W. 717. Cf. Stone v. Vandermark, 146 111. 312, 34 N. E. 150; Duffy v. Duffy, 70 Hun,' 135, 24 N. Y. Supp. 408; Zimmerman v. Lebo, 151 Pa. 345, 24 Atl. 1082, 17 L. R. A. 536. In order that her election be binding, she must have knowledge of the values of the two estates. Hender v. Rose, 3 P. Wms. 124, note ; U. S. v. Duncan, 4 McLean, 99, Fed. Cas. No. 15,002 ; Goodrum v. Goodrum, 56 Ark. 532, 20 S. W. 353. As to effect of election to take under the will, see Kuydendall v. Devecmon, 78 Md. 537, 28 Atl. 412; Swihart v. Swihart, 7 Ohio Cir. Ct. R. 338 ; Schwatken v. Daudt, 53 Mo. App. 1 ; Truett v. Funderburk, 93 Ga. 686, 20 S. E. 260. The election must be by the widow herself, Boone's Representatives v. Boone, 3 Har. & McH. (Md.) 95 ; Sherman v. Newton, 6 Gray (Mass.) 307; Welch v. Anderson, 28 Mo. 293; unless she is insane, when her guardian may elect for her, Young v. Boardman, 97 Mo. 181, 10 S. W. 48. Contra, Lewis v. Lewis, 29 N. C. 72. If she elects to take under the will, lands aliened by the husband alone are freed from dower. Allen v. Pray, 12 Me. 138 ; Fairchild v. Marshall, 42 Minn. 14, 43 N. W. 563 ; In re Machemer's Estate, 140 Pa. 644, 21 Atl. 441 ; Spalding v. Hershfield, 15 Mont. 253, 39 Pac. 88. s McCullough v. Allen, 3 Yeates (Pa.) 10; Turner v. Scheiber, 89 Wis. 1, 61 N. W. 280 ; Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706 ; Church v. Bull, 2 Denio (N. Y.) 430, 43 Am. Dec. 754; Jackson v. Churchill, 7 Cow. (N. Y.) 287, 17 Am. Dec. 514 ; Savage v. Burnham, 17 N. Y. 561 ; Nelson v. Brown, 144 N. Y. 384, 39 N. E. 355 ; Cain v. Cain, 23 Iowa, 31 ; Tooke v. Hardeman, 7 Ga. 20; Helme v. Strater, 52 N. J. Eq. 591, 30 Atl. 333; Stewart v. Stewart, 31 N. J. Eq. 398 ; Bannister v. Bannister, 37 S. C. 529, 16 S. E. 612. » Stehlin v. Stehlin, 67 Hun, 110, 22 N. Y. Supp. 40; S,anford v. Jackson, 10 154 life: estates arising from marriage (Ch. 8 dower. 10 In some states, a widow must elect between dower and an intestate share given her by statute, 11 or between dower and homestead. 12 Estoppel A widow may be e'stopped to claim dower by covenants of war- ranty, 13 or by her conduct, as in inducing a purchaser to take the land, fraudulently representing it free from dower. 1 * Her mere si- lence, however, when lands in which she claims dower are sold, 16 or her acquiescence in an adverse possession of her husband's lands, 16 will not operate as an estoppel. She may, however, be es- Paige (N. T.) 266; Brown v. Caldwell, Speers, Eq. (S. C.) 322; Cunningham v. Shannon, 4 Rich. Eq. (S. C.) 135; Tooke v. Hardeman, 7 Ga. 20; Lord v. Lord, 23 Conn. 327 ; Cornell v. Ham, 2 Iowa, 552 ; Tobias v. Ketchum, 32 N. Y. 319; Lasher v. Lasher, 13 Barb. (N. Y.) 106; In re Blaney's Estate, 73 Iowa, 113, 34 N. W. 768; McGowen v. Baldwin, 46 Minn. 477, 49 N. W. 251; Hall v. Smith, 103 Mo. 289, 15 S. W. 621 ; Sumerel v. Sumerel, 34 S. C. 85, 12 S. E. 932; Carper v. Crowl, 149 111. 465, 36 N. E. 1040; Richards v. Richards, 90 Iowa, 606, 58 N. W. 926 ; Parker v. Hayden, 84 Iowa, .493, 51 N. W. 248; Nelson v. Pomeroy, 64 Conn. 257, 29 Atl. 534; Schorr v. Etling, 124 Mo. 42, 27 S. W. 395. io Crenshaw v. Carpenter, 69 Ala. 572, 44 Am. Rep. 539 ; WARREN v. WAR- REN, 148 111. 641, 36 N. E. 611, Burdick Cas. Real Property ; Stearns v. Perrin, 130 Mich. 456, 90 N. W. 297; Cooper v. Cooper, 56 N. J. Eq. 48, 38 Atl. 198. ii 1 Stim. Am. St Law, § 3264. Cf. Andrews v. Bassett, 92 Mich. 449, 52 N. W. 743, 17 L. R. A. 296; Payne v. Payne, 119 Mo. 174, 24 S. W. 781; Ford v. Ford, 88 Wis. 122, 59 N. W. 464 ; Draper v. Morris, 137 Ind. 169, 36 N. E. 714; Wilcox v. Wilcox, 89 Iowa, 388, 56 N. W. 517. 12 Venable v. Railway Co. (Mo.) 19 S. W. 45. Cf. Whited v. Pearson, 90 Iowa, 488, 58 N. W. 32. TBut see Godwin v. King, 31 Fla: 525, 13 South. 108. is This may be by her own covenants, 2 Scrib. Dower (2d Ed.) 261 ; Elmen- dorf v. Lockwood, 57 N. Y. 322; McKee v. Brown, 43 IU. 130; Rosenthal v. Mayhugh, 33 Ohio St 155; or by those of her ancestor, 2 Scrib. Dower (2d Ed.) 264; Torrey v. Minor, Smedes & M. Ch. (Miss.) 489; Russ v. Perry, 49 N. H. 547. "Deshler v. Beery, 4 Dall. (Pa.) 300, 1 L. Ed. 842; Dongrey v. Topping, 4 Paige (N. Y.) 94 ; Smiley v. Wright, 2 Ohio, 506 ; Sweaney v. Mallory, 62 Mo. 485; Magee v. Mellon, 23 Miss. 585; Cf. Heisen v. Heisen, 145 I1L 658, 34 N. E. 597, 21 L. R. A. 434 ; Boorum v. Tucker, 51 N. J. Eq. 135, 26 Atl. 456 ; McCreary v. Lewis, 114 Mo. 582, 21 S. W. 855 ; Whiteaker v. Belt, 25 Or. 490, 36 Pac. 534. But see McCreery v. Davis, 44 S. C. 195, 22 S. E. 178, 28 L R. A. 655, 51 Am. St Rep. 794; Ellis v. Diddy, 1 Ind. 561; Wood V. Seely, 32 N. Y. 105; Reed v. Morrison, 12 Serg. & R. (Pa.) 18; Foley v. Boulware, 86 Mo. App. 674; Allen v. Allen, 112 IU. 323; Dougrey v. Topping, 4 Paige (N. Y.) 94. Compare Whiteaker v. Belt, 25 Or. 490, 36 Pac. 534. io Beeman v. Kitzman, 124 Iowa, 86, 99 N. W. 171. Compare H. W. Wright Lumber Co. v. McCord, 145 Wis. 93, 128 N. W. 873, 34 L. R. A. (N. S.) 762, Ann. Cas. 1912B, 92; Foley v. Boulware, 86 Mo. App. 674; Motley v. Motley, 53 Neb. 375, 73 N. W. 738, 68 Am. St. Rep. 608. i« Rockwell v. Rockwell, 81 Mich. 493, 46 N. W. 8; Hunt v. Reilly, 24 R. I. 68, 52 Atl. 681, 59 L. R. A. 206, 96 Am. St"Rep. 707. § 59) DO WEB — HOW BABE ED 155 topped from claiming dower, when she has, with full knowledge of her rights, accepted arrangements in settling her husband's es- tate. 11 Statute of Limitations In a number of states it is provided by statute that the widow must bring action for her doWer within a certain time, if at all ; 18 also, by weight of authority, the general statutes of limitation are held to apply to dower, even though it is not expressly included. 19 In other states, however, the contrary is held. 20 Statutes govern- ing the time in which actions for the recovery of real property must be brought are usually applied to actions for dower, in absence of special statutes regulating the recovery of dower. 21 Adverse, pos- session, however, before the husband's death, has no effect upon dower right. 22 it Tarnow v. Carmiehael, 82 Neb. 1, 116 N. W. 1031 ; Gilmore v. Gilmore, 109 111. 277 ; Wilson v. Woodward, 41 S. C. 363, 19 S. E. 685. Compare Brown v. Brookhart, 146 Iowa, 79, 124 N. W. 882. is See the statutes of the several states. And see Elyton Land Co. v. Denny, 96 -Ala. 336, 11 South. 218; Hastings v. Mace, 157 Mass. 499, 32 N. E. 668 ; O'Gara v. Neylon, 161 Mass. 140, 36 N. E. 743. i» See Poole v. French, 83 Kan. 281, 111 Pac. 488 ; Jones v. Powell, 6 Johns. CIu (N. Y.) 194 ; Owen v. Peacock, 38 111. 33 ; Whiting v. Nicholl, 46 111. 230, 92 Am. Dec. 248; Proctor v. Bigelow,~38 Mich. 282; Care v. Keller, 77 Pa. 487; Tuttle v. Willson, 10 Ohio, 24; Moody v. Harper, 38 Miss. 599; Torrey v. Minor, Smedes & M. Ch. (Miss.) 489; Carmiehael v. Carmiehael, 5 Humph. (Tenn.) 96; Kinsolving v. Pierce, 18 B. Mon. (Ky.) 782; Null v. Howell, 111 Mo. 273, 20 S. W. 24 ; Conover v. Wright, 6 N. J. Eq. 613, 47 Am. Dec. 213 ; Berrien v. Conover, 16 N. J. Law, 107. The statute has been held not to begin to run until there is a denial of the widow's right. Bice v. Nelson, 27 Iowa, 148. And see Hart v. Randolph, 142-111. 521, 32 N. E. 517. The general rule, however, is that the statute begins to run from the husband's death. Thomp- son v. McCorkle, 136 Ind. 484, 34 N. E. 813, 36 N. E. 21}, 43 Am. St Rep. 334; Lucas v. White, 120 Iowa, 735, 95 N. W. 209, 98 Am. St. Rep. 380; Winters v. De Turk, 133 Pa. 359, 19 Atl. 354, 7.L. R. A. 658. aoFourche River Lumber Co. v. Walker, 96 Ark. 540, 132 S. W. 451; Sen- man v. Bowen, 8 Gill & J. (Md.) 50, 29 Am. Dec. 524; May v. Rumney, 1 Mich. 1; Owen v. Campbell, 32 Ala. 521; Jones v. Powell, 6 Johns. Ch. (N. T.) 194; Burt v. Sheep Co., 10 Mont. 571, 27 Pac. 399 ; Campbell v. Murphy, 55 N. C. 357; Spencer, v. Weston, 18 N. C. 213; Ralls v. Hughes, 1 Dana (Ky.) 407; Chapman v. Schroeder, 10 Ga. 321 ; Chew v. Farmers' Bank, 2 Md. Ch. 231. aiBritt v. Gordon, 132 Iowa, 431, 108 N. W. 319, 11 Ann. Cas. 407; Har- rison v. McReynolds, 183 Mo. 533, 82 S. W. 120; Owen v. Peacock, 38 111. 33; Moross v. Moross, 132 Mich. 203, 93 N. W. 247; Choteau v. Harvey (C. C.) 36 Fed. 541. 22 Poole v. French, 83 Kan. 281, 111 Pac. 488; Durham v. Angier, 20 Me. 242; Hart v. McCollum, 28 Ga. 478; Moore v. Frost, 3 N. H. 126; Taylor v. Lawrence, 148 111. 388, 36 N. E. 74; Boling v. Clark, 83 Iowa, 481, 50 N. W. 57. Compare Long v. Kansas City Stockyards Co., 107 Mo. 298, 17 S. W. S56, 28 Am. St. Rep. 413. 156 LIFE ESTATES ARISING FROM MARRIAGH (Ch. 8 Laches Where an action for the recovery of dower is brought in a court of equity, the statute of limitations may be held, in some jurisdic- tions, to apply. 28 Moreover, where such a statute is not applied in an equity suit, nevertheless laches on the widow's part will bar her right." Waste It'has already been pointed out that the widow, after dower as- signed, cannot commit waste. 26 An early English statute 26 pro- vided that dower should be forfeited for waste, and although this statute has been held to be no part of our common law, 27 yet stat- utes containing a similar provision have been passed in a number of our states. 28 Dedication — Eminent Domain . A dedication of land to public uses bars dower. 29 Likewise, by weight of authority, land taken during coverture, under the right of eminent domain, by a municipal or quasi public corporation, de- prives the wife of her dower rights therein. 80 After dower as- signed, the widow is entitled, upon condemnation proceedings, to her share in the proceeds of the land so taken, 81 and even in the 23 Shawhan v. Smith, 4 Ky. Law Rep. 440 ; Larrowe v. Beam, 10 Ohio, 498. But see Starry v. Starry, 21 Iowa, 254 ; Johns v. Fenton, 88 Mo. 64. ' 2* Ely ton Land Co. v. Denny, 108 Ala. 553, 18 South. 561. See, also, Jones v. Powell, 6 Johns. Ch. (N. Y.) 194; Tuttle v. Wlllson, 10 Ohio, 24; Barksdale v. Garrett, 64 Ala. 277, 38 Am. Rep. 6; Ralls v. Hughes, 1 Dana (Ky.) 407; Chew. v. Farmers' Bank, 9 Gill (Md.) 361. In England there is no statutory limitation on the widow's action for the assignment of dower. Where, how- ever, a widow makes no claim for twelve years, it is held she may be barred of her dower. Williams v. Thomas, [1909] 1 Ch. 713, C. A. 26 §upra. s« Statute of Gloucester, 6 Edw. I, c. 5. 27 See Stetson v. Day, 51 Me. 434. 28 Stetson v. Day, 51 Me. 434. See 1 Stim. Am. St. Laws § 3231 B. C. But see Willey v. Laraway, 64 Vt. 559, 25 Atl. 436. 20 Benton v. St. Louis, 217 Mo. 687, 699, 118 S. W. 418, 129 Am. St. Rep. 561 ; Moore v. New York, 8 N. Y. 110, 59 Am. Dec. 473 ; Orrick v. Ft. Worth (Tex. Civ. App. 1895) 32 S. W. 443. A dedication of land to public uses bars dower. Gwynne v. City of Cincinnati, 3 Ohio, 24, 17 Am. Dec' 576 ; Steel v. Board of Education, 31 Wkly. Civ. Law Bui. 84; Duncan v. City of Terre Haute, 85 Ind. 105; Venable v. Railway Co., 112 Mo. 103, 20 S. W. 493, 18 L. R. A. 68. And see Chouteau v. Railway Co., 122 Mo. 375, 22 S. W. 458 30 S. W. 299. so Arnold v. R. Co., 32 Pa. Super. Ct 452; Flynn v. Flynn, 171 Mass. 312, 50 N. E. 650, 42 L. R. A. 98, 68 Am. St Rep. 427; Moore v. New York, 8 N. Y. 110, 59 Am. Dec. 473; Baker v. Railway Co., 122 Mo. 396, 30 S. W. 301; French v. Lord, 69 Me. 537. But see Nye v., Railroad Co., 113 Mass. 277. m La very v. Hutchinson, 249 111. 86, 94 N. E. 6, Ann. Cas. 1912A, 74; In § 60) DOWEK — STATUTOEY CHANGES 157 case of inchoate dower it is held that the wife's interest in the award for compensation will be protected. 82 Declarations Barring Dower In England, prior to the Dower Act of 1833,~the usual method of barring dower was to convey land to a purchaser to uses to bar dower; that is, to such uses as the purchaser should appoint by deed, in default of such appointment, to himself for life, with re- mainder to a trustee and his heirs in trust for him during his life, in the event of the determination of the estate by any means during his life, with an ultimate remainder to the purchaser, his heirs and assigns. Under such limitations the purchaser had at no time dur- ing his life an estate of inheritance in possession to which the right of dower could attach. 83 Lands may also be disposed of by will for the benefit of a designated person, with a declaration that such person's wife shall have no dower therein. 84 SAME— STATUTORY CHANGES 60. Dower, as it exists at common law, has been abolished in some states, and in others largely modified by statute. In some states, dower has been expressly abolished by statute, and a specific part 80 of the husband's real property given in fee simple to the wife. 88 In other states, the doctrine of community property obtains. 87 In still other states, the common-law estate has been modified in many particulars. 88 The rights of a widow in re William St., 19 Wend. (N. Y.) 678; In re Hall, L. R. 9 Eq. 179, 39 L. J. Ch. 392. The dower right attaches to the proceeds. Bonner v. Peterson, 44 111. 253. 32 Matter of New York, etc., Bridge, 75 Hun, 558, 27 N. Y. Supp. 597; Wheeler v. Kirtland, 27 N. J. Eq. 534. See, also, In re A^xander, 53 N. J. Eq. 96, 30 Atl. 817. S3 Laws of Eng. vol. 24, p. 193, note. Williams, Real Prop. (21st Ed.) p. 390. For examples, see 2 Minor, Inst. 146; Ray v. Pung, 5 Barn. & Aid. 561. 34 Thompson v. Vance, 1 Mete. (Ky.) 669; Germond v. Jones, 2 Hill (N. Y.) 569. 35 One-half in several states. 1 Stim. Am. St. Law, §§ 3105, 3202 P. And see Pearson v. Pearson, 135 Ind. 377, 35 N. E. 288 ; Zachry v. Lockard, 98 Ala. 371, 13 South. 514 ; Wadsworth v. Miller, 103 Ala. 130, 15 South. 520. 36 Leavitt v. Tasker, 107 Me. 33, 76 Atl. 953 ; Graves v. Fligor, 140 Ind. 25, 38 N. E. 853 ; Hatch v. Small, 61 Kan. 242, 59 Pac. 262 ; Morrison v. Rice, 35 Minn. 436, 29 N. W. 168 ; Peirce v. O'Brien (C. C.) 29 Fed. 402. 37 Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125 ; Hamilton v. Hirsch, 2 Wash. T. 223, 5 Pac. 215. See, post, Community Property, Ch. XII. 38 1 Stim. Am. St. Law, § 3202 B; Williams, Real Prop. (17th Ed. Am. note) 377 ; 1 Washb. Real Prop. (5th Ed.) 196, note 2. For the constitutionality 158 LIFE ESTATES ARISING FROM MARRIAGE (Ch. 8 her deceased husband's real property are in all cases governed by the law of the place where the land is situated. For example, dow- er may have been abolished in the state of the domicile of the hus- band and wife, and yet the widow may have dower in lands owned by him in a state where dower still exists. 3 ' of laws changing the dower right, see Black, Const. Law, 431 ; Glenn v. Glenn, 41 Ala. 571 ; Shoot v. Galbreath, 128 111. 214, 21 N. B. 217 ; Sears v. Sears, 124 Mass. 267; Seager v. McCabe, 92 Mich. 186, 52 N. W. 299, 16 L. R. A. 247; Moore v. New York, 8 N. Y. 110, 59 Am. Dec. 473 ; Vensel's Appeal) 77 Pa. 71 ; Maytrarry v. Brien, 15 Pet. (TJ. S.) 21, 10 L. Ed. 646. s» Lamar v. Scott, 3 Strob. (S. C.) 562; Barnes v. Cunningham, 9 Rich. Eq. (S. C.) 475 ; Duncan y. Dick, Walk. (Miss.) 281 ; Jones v. Gerock, 59 N. C. 190. Ch. 9) HOMESTEADS . 159 CHAPTER IX HOMESTEADS 61. A Statutory Exemption. 62. Duration of Exemption. 63. Who Entitled to Homestead. 64. How Acquired. 65. In What Estates or Interests. 66. Amount, Extent, and Value of Exemption. 67. Selection of Homestead. 68. Change of Homestead. 69. Alienation or Mortgage of Homestead, 70. Loss of Homestead. 71. Enforceable Debts. 72. Federal Homestead. A STATUTORY EXEMPTION 61. In most states it is provided by statute that the family resi- dence, or home, owned and occupied as the law prescribes, shall be exempt from liability for certain debts. DURATION OF EXEMPTION 62. The homestead right is an exemption: (a) To the owner for life. (b) To the surviving spouse for life, in most states. (c) To the children during their minority, in some states. Homestead laws are strictly of American origin. 1 They are unknown to the common law, 2 but nearly every state now provides, either by its constitution or its statutes, that the family residence, or home, owned and occupied as the law prescribes, shall be exempt ' i See Barney v. Leeds, 51 N. H. 253, 261. 2 Sayers v. Childers, 112 Iowa, 677, 98 N. W. 038. Under the early English common law no real property was subject to sale to satisfy the claims of creditors. 3 Blk. Comm. 418; Lindley v. Davis, 7 Mont. 206, 213, 14 Pac. 717. The first statute which gave a judgment creditor a claim against a debtor's lands was passed in the reign of Edward I (13 Edw. I, c. 18, called the "Statute of Westminster II"), shortly before the statute of quia emptores (18 Edw. I, c. 1). Under this statute, however, only one-half of the debtor's land could be levied upon. Williams, Real Prop. (17th Ed.) p. 308. 160 . HOMESTEADS (Ch. 9 from execution sale for certain debts.* The homestead laws of the several states, while agreeing somewhat in their general nature and plan, differ much in wording and detail. Moreover, there is not much harmony in the interpretations which have been given by the courts of the different states to similar provisions of these acts. In every case the statutes and decisions of the state in question must be consulted. Although some states call the homestead interest a life estate,* others a freehold estate," or even a fee, 6 the prevailing view is that it is not an estate at all, but only an exemption. 7 It is an exemption, on grounds of public pol- icy, of a home to a debtor and his family. 8 The exemption con- tinues in general for the life of the owner and of the surviving spouse, and until the minor children, if any, reach majority;' that is, during a life or lives. The interest is therefore closely allied to legal life estates, and possesses many of the incidents of such estates. 10 s The earliest statute was enacted by the republic of Texas, January 26, 1839. The constitution of Texas, in 1845, guaranteed a homestead right, fol- lowed by Vermont, in 1849. Since then, every - state, excepting Delaware, Indiana, Maryland, Pennsylvania, and Rhode Island, have adopted similar laws. Cyc. Homestead, vol. 21, p. 459, note. * Bushnell v. Loomis, 234 Mo. 371, 137 S. W. 257, 260, 36 L. R. A. (N. S.) 1029 ; Helm v. Kaddatz, 107 111. App. 413 ; Sayers v. Childers, 112 Iowa, 677, 84 N. W. 938 ; Silloway v. Brown, 12 Allen (Mass.) 30. « Gillespie v. Gas Co., 236 111. 188, 86 N. B. 219 ; Snodgrass v. Copple, 203 Mo. 480, 493, 101 S. W. 1090; Swan v. Stephens, 99 Mass. 7; Snell v. Snell, 123 111. 403, 14 N. E. 684, 5 Am. St Rep. 526. e Hirsch v. Prescott (C. C.) 89 Fed. 52; Jones v. De Graffenreid, 60 Ala. 145. 7 Abbott v. Heald, 128 La. 718, 55 South. 28, 34; Ellinger v. Thomas, 64 Kan. 18P, 67 Pac. 529 ; Thomas v. Fulford, 117 N. C. 667, 23 S. E. 635 ; Jones v. Britton, 102 N. C. 166, 9 S. E. 554, 4 L. R. A. 178. s Hannon v. Railroad Co., 12 Cal. App. 350, 107 Pac. 335 ; Richardson v. Woodward, 104 Fed. S73, 44 C. C. A. 235, 5 Am. Bankr. Rep. 94 ; Cook v. Mc- Christian, 4 Cal. 24; Eagle v. Smylie, 126 Mich. 612, 85 N. W. 1111, 86 Am. St. Rep. 562 ; Capek v. Kropik, 129 IU. 509, 21 N. E 836 ; Franklin v. Coffee, 18 Tex. 413, '70 Am. Dec. 292. » See infra. lOKerley v. Kerley, 13 Allen (Mass.) 286; Hunter v. Law, 68 Ala. 365; Jones v. Gilbert, 135 111. 27, 25 N. E. 566; Wilson v. Proctor, 28 Minn. 13, 8 N. W. 830. It is also an estate upon condition, namely, that it continue to be occupied as a homestead. Locke v. Rowell, 47 N. H. 46. Homestead also un- der some statutes resembles the common-law tenancy in entirety, since the estate goes to the survivor, and both husband and wife must join in a con- veyance. See, post, chapter XIL 63) WHO ENTITLED TO HOMESTEAD 161 WHO ENTITLED TO HOMESTEAD 63. The homestead exemption can in most states be claimed only by the "head of a family." Some states secure the right to "householders," or to a "housekeeper with a family." Protection of the family home being the underlying principle of the homestead acts, 11 most of the statutes secure the exemption to the "head of a family." " Some statutes, however, employ the term "householder," " or a "housekeeper with a family." ** A number of cases hold that the test to determine whether one claiming, a homestead -is the head of a family is the existence of- a legal or moral duty to support dependent persons ljving" with him. 15 A husband and wife are such a family, although they have no children ; ie likewise a father or grandfather and his chil- dren or grandchildren. 1 ' A family does not consist, however, of ii Eastern Kentucky Asylum for Insane v. Cottle, 143- Ky. 719, 137 S. W. 235 ; Carroll v. Jeffries, 39 Tex. Civ. App. 126, 87 S. W. 1050 ; Stodgell v. Jack- eon, 111 111. App. 256. And see supra. 12 Thomp. Horn est. & Exemp. 39. Alienage does not exclude one from the benefit of homestead exemptions. Cobbs v. Coleman, 14 Tex. 594; People ex rel. Dobson v. McClay, 2 Neb. 7 ; Dawley v. Ayers, 23 Cal. 108 ; Sproul v. McCoy, 26 Ohio St 577. is Stodgell v. Jackson, 111 111. App. 256. "Kitchell v. Burgwin, 21 111. 40; Myers v. Ford, 22 Wis. 139; Rock v. Haas, 110 111. 528; Holburn v. Pfanmiller's Adm'r, 114 Ky. 831, 71 S. W. 940, 24 Ky. Law Rep. 1613 ; Pierce v. Kusic, 56 Vt. 418 ; Wike v. Garner, 179 111. 257, 53 N. E. 613, 70 Am. St Rep. 102. is In re Taylor, Fed. Cas. No. 13,775; Brokaw v. Ogle, 170 111. 115, 48 N. E. 394; Sykes v. Speer (Tex. Civ. App.) 112 S. W. 422; Thomp.. Homest. & Exemp. 46; Connaughton v. Sands, 32 Wis. 387; Wade v. Jones, 20 Mo. 75, 61 Am. Dec. 584; Blackwell v. Broughton, 56 Ga. 390; Mullins v. Looke, 8 Tex. Civ. App. 138, 27 S. W. 926 ; Whalen v. Cadman, 11 Iowa, 226 ; Marsh v. Lazenby, 41 Ga. 153 ; Sanderlin v. Sanderlin's Adm'r, 1 Swan (Tenn.) 441. See SHEEHY. v. SCOTT, 128 Iowa, 551, 104 N. W. 1139, 4 L. R. A. (N. S.) 365, Burdick Cas. Real Property. Instances are: A single man supporting his mother and dependent brothers and sisters, Marsh v. Lazenby, 41 Ga. 153 ; or dependent minor brothers and sisters, Greenwood v. Maddox, 27 Ark. 649; McMurray v. Shuck, 6 Bush (Ky.) Ill, 99 Am. Dec. 662; or widowed sister, with her dependent children, Wade v. Jones, 20 Mo. 75, 61 Am. Dec. 584; a widower supporting his widowed daughter and her children, Blackwell v. Broughton, 56 Ga. 390; or a grown-up daughter, Cox v. Stafford, 14 How. Prac. (N. T.) 519; single woman supporting her illegitimate child, Ellis v. White, 47 Cal. 73. ie Kitchell v. Burgwin, 21 111. 40 ; Wilson v. Cochran, 31 Tex. 680, 98 Am. Dec. 553. it Cross v. Benson, 68 Kan. 495, 75 Pac 558, 64 L. R. A. 560 ; Ragsdale, Bued.Real Peop. — 11 162 HOMESTEADS (Ch. 9 one person living alone, 18 or of a person and his mere servants. 1 ' 9 Upon the death of the husband owning a homestead, the right survives to the widow, 20 and, usually, to the minor children. 21 Some statutes give the widow a fee simple title; 22 others a life estate. 28 In some states, she loses the homestead by a subsequent marriage. 2 * In most states, the rights of the surviving children terminate at the respective majority of each. 25 In many states, Cooper & Co. v. Watkins, 76 S. W. 45, 25 Ky. Law Rep. 506 ; Dorrangton v. Myers, 11 Neb. 388, 9 N. W. 555. is Rock v. Haas, 110 111. 528; Keiffer v. Barney, 31 Ala. 192; Lomax v. Comstock, 50 Tex. Civ. App. 340, 110 S. W. 762. Contra, Bradley v. Rod- elsperger, 3 S. C. 226. . is Calhoun v. McLendon, 42 Ga. 405 ; Ellis v. Davis, 90 Ky. 183, 14 S. W. 74, 11 Ky. Law Rep. 983 ; Murdock v. Dalby, 13 Mo. App. 41 ; In re Lambson, 14 Fed. Cas.' No. 8,029, 2 Hughes, 233. soRaggio v. Palmtag, 155 Cal. 797, 103 Pac. 312; Garwood v. Garwood, 244 111. 580, 91 N. E. 672. See Weaver v. Bank, 76 Kan. 540, 94 Pac. 273, 16 L. R. A. (N. S.) 110, 123 Am. St. Rep. 155; Fleetwood v. Lord, 87 Ga. 592, 13 S. E. 574; Fore v. Fore, 2 N. D. 260, 50 N. W. 712/ But see Gowan v. Fountain, 50 Minn. 264, 52 N. W. 862 ; White's Adm'r v. White, 63 Vt. 577, 22 Atl. 602. But not in Georgia, unless there are minor children. Kidd v. Lester, 46 Ga. 231. Some cases hold that the widow must elect between her dower and homestead, Butterfleld v. Wicks, 44 Iowa, 310; or between her distributive share and homestead. Egbert v. Egbert, 85 Iowa, 525, 52 N. W. 478. And she may be compelled to choose between homestead and a devise, in a will which clearly requires such election. Meech v. Meech's Estate, 37 Vt. 414. And see Cowdrey v. Hitchcock, 103 111. 262. 2i In re Still's Estate, 117 Cal. 509, 49 Pac. 463 ; Zoellner v. Zoellner, 53 Mich. 620, 19 N. W. 556; Chapman v. McGrath, 163 Mo. 292, 63 S. W. 832; Walker v. Walker, 181 111. 260, 54 N. E. 956 ; Bdttey v. Barker, 62 Kan. 517, 64 Pac. 79, 56 L. R. A. 33. Undeb the Flobida Statutes, providing that the homestead exemption shall pass to his "heirs," it is held that the term "heirs" includes an adult son and an adult grandson. Miller v. Finegan, 26 Fla. 29, 7 South. 140, 6 L. R. A. 813. 22 Dickinson v. Champion, 167 Ala. 613, 52 South. 445; In re Fath's Estate, 132 Cal. 609, 64 Pac. 995 ; Murphy v. Richmond, 111 Va. 459, 466, 69 S. E. 442. 23 Brewington v. Brewing'ton, 211 Mo. 48, 109 S. W. 723; Roberson v. Tippie, 209 111. 38, 70 N. E. 584, 101 Am. St. Rep. 217; Holbrook v. Wightman, 31 Minn. 168, 17 N. W. 280 ; Carver yf Maxwell, 110 Tenn. 75, 71 S. W. 752. 2* In re Emmons' Estate, 142 Mich. 299, 105 N. W. 758 ; Anderson v. Coburn, 27 Wis. 558 ; Mitchell v. Mitchell, 69 Kan. 441, 77 Pac. 98 ; Dei v. Habel, 41 Mich. 88, 1 N. W. 964. And see Craddock v. Edwards, 81 Tex. 609, 17 S. W. 228. Contra, Fore v. Fore, 2 N. D. 260, 50 N. W. 712. 25 Kyle v. 'Wills, 166 111. 501, 46 N. E. 1121; Louden v. Martindale, 109 Mich. 235, 67 N. W. 133; Brewington v. Brewington, 211 Mo. 48, 109 S. W. 723 ; Hoppe v. Hoppe, 104 Cal. 94, 37 Pac. 894 ; Hall v. Fields, 81 Tex. 553, 17 S. W. 82 ; Tate v. Goff, 89 Ga. 184, 15 S. E. 30 ; Vornberg v. Owens, 88 Ga. 237, 14 S. E. 562 ; Lewis v. Lichty, 3 Wash. 213, 28 Pac. 356, 28 Am. St. Rep. 25. But see Haynes v. Scbaefer, 96 Ga. 743, 22 S. E. 327; Moore v. Peacock, 94 Ga. 523, 21 S. E. 144. § 64) HOW ACQUIRED 163 the surviving husband is entitled to the homestead right, 28 even though there are no children. 27 A husband, moreover, does not lose his homestead when his wife withdraws from the family under a decree of .divorce. 28 Children, during the life of the parent who owns the homestead property, have no rights against such parent, 29 although against a surviving parent, who does not own the property, they have. 30 Nonresidents are not, as a rule, within the privilege of the homestead laws, 81 and in some states a widow who is a nonresident is not entitled to the homestead upon the death of the husband. 32 It is not necessary, however, that a resi- dent should be a citizen of the, state. 38 HOW ACQUIRED 64. The homestead exemption is usually acquired by actual oc- cupancy, in good faith, of the premises as a home. In some states there must also be a recorded declaration that the premises are claimed as a homestead. 2« Payne v. Cummings, 146 Cal. 426, 80 Pac. 620, 106 Am. St. Rep. 47; Powell v. Powell, 247 111. 432, 93 N. E. 432; Silloway v. Brown, 12 Allen (Mass.) 30 ; McCarthy v. Van Der Mey, 42 Minn. 189, 44 N. W. 53, 27 Burns v. Keas, 21 Iowa, 257; Gray v. Patterson, 65 Ark. 373, 46 S. W. 730, 1119, 67 Am. St. Rep. 937;' Ellis v. Davis, 90 Ky. 183, 14 S. W. 74, 11 Ky. Law Rep. 893 ; In re Lamb's Estate, 95 Cal. 397, 30 Pac. 568 ; Stults v. Sale, 92 Ky. 5, 17 S. W. 148, 13 L. R. A. 743, 36 Am. St. Rep. 575. as Doyle r. Coburn, 6 Allen (Mass.) 71; Hall v. Fields, 81 Tex. 553, 17 S. W. 82. But see Arp v. Jacobs, 3 Wyo. 489, 27 Pac. 800. See, however, Cooper v. Cooper, 24 Ohio St. 489. Where the wife withdraws from the family, she loses her homestead right, if her withdrawal was not justified, Trawick v. Harris, 8 Tex. 312; Cockrell v. Curtis, 83 Tex. 105, 18 S. W. 436; but hot when the husband's conduct has forced her to withdraw, Meader v. Place, 43 N. H. 307; Atkinson v. Atkinson, 40 N. H. 249, 77 Am. Dec. 712; Curtis v. Cockrell, 9 Tex. Civ. App. 51, 28 S. W. 129. A divorced wife" cannot claim her "widow's exemption." Dobson's Adm'r v. Butler's Adm'r, 17 Mo. 87. But see Alexander v. Alexander, 52 111. App. 195. 2 9Thomp. Homest. & Exemp. 476; Bateman v. Pool, 84 Tex. 405, 19 S. W. 552. so Thomp. Homest. & Exemp. 475 ; Miller v. Marckle, 27 111. 405 ; Williams v. Whitaker, 110 N. C. 393, 14 S. E. 924; Hoppe v. Hoppe, 104 Cal. 94, 37 Pac. 894. si Lyons v. Adams, 30 Ky. Law Rep. 870, 99 S. W. 900 ; Leonard v. Ingra- ham, 58 Iowa, 406, 10 N. W. 804 ; Rock v. Haas, 110 111. 528 ; Farlin v. Sook, 26 Kan. 397; Black v. Singley, 91 Mich. 50, 51 N. W. 704. 82 Succession of Norton, 18 La. Ann. 36; Allen v. Manasse, 4 Ala. 554; Meyer v. Cl.aus, 15 Tex. 516 ; Black v. Singley, 91 Mich. 50, 51 N; W. 704. ssMcKenzie v. Murphy, 24 Ark. 155 (aliens); Williams v. Young, 17 Cal. 403 (mulattoes). Alienage does not exclude one from the benefit of homestead 164 HOMESTEADS (Ch. 9 The statutes generally prescribe the way in which a homestead can be acquired, and the mode thus set forth must be observed. 3 * In most states there must be an actual occupancy of the premises as a home when the question of the exemption arises. 85 A mere intent to occupy the premises is not sufficient ; the occupancy must be actual, 36 although a well-established, bona fide intent to occupy the premises within a reasonable time, 37 particularly, in some states, when coupled with acts of preparation, as, for example, improvements upon the premises, 38 may be sufficient. Actual oc- cupancy does not mean a constant habitation, with no temporary interruptions of personal presence.* 9 It does mean, however, a exemptions. Cobbs v. Coleman, 14 Tex. 594 ; People ex rel. Dobson v. MeClay, 2 Neb. 7; Davrley v. Ayers, 23 Cal. 108; Sproul v. McCoy, 26 Ohio St. 577. si Rosenthal v. Bank, 110 Cal. 198, 42 Pac. 640; Motley v. Jones, 98 Ala. 443, 13 South. 782; Burbank v. Kirby, 6 Idaho, 210, 55 Pac. 295, 96 Am. St Rep. 260 ; Security Loan & Trust Co. v. Kauffman, 108 Cal. 214, 41 Pac. 467. ssThomp. Homest. & Exemp. § 19S; Floyd County v. Wolfe, 138 Iowa, 749, 117 N. W. 32 ; Kennedy's Adm'r v. Duncan, 157 Mo. App. 212, 137 S. W. 299; Ancker v. McCoy, 56 Cal. 524; Fisher v. Cornell, 70 111. 216; INGELS v, INGELS, 50 Kan. 755, 32 Pac. 387, Burdick Cas. Real Property; Wisner v. Farnham, 2 Mich. 472; Cook v. Newman, 8 How. Prac. (N. Y.) 523; In re Buelow (D. C.) 98 Fed. 86 ; Villa v. Pico, 41 Cal. 469 ; Lee v. Miller, 11 Allen (Mass.) 37; Titman v. Moore, 43 111. 174; McCormick v. Wilcox, 25 111. 274; Reinbach v. Walter, 27 111. 393. s« Thomp. Homest. & Exemp. 199 ; Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec. 637; Kitchell v. Burgwin, 21 111. 40; Walters v. People, 21 111. 178; Tourville v. Pierson, 39 111. 446; True v. Morrill's Estate, 28 Vt 672; Mc- Monegle v. Wilson, 103 Mich. 264, 61 N. W. 495; Cahill v. Wilson, 62 111. 137; Campbell v. Ayres, 18 Iowa, 252 ; Coolidge v. Wells, 20 Mich. 79 ; Tillotson v. Millard, 7 Minn. 513 (Gil. 419), 82 Am. Dec. 112; Petty v. Barrett, 37 Tex. 84 ; Campbell v. Adair, 45 Miss. 170. For cases where the facts did not show sufficient occupancy, see Evans v. Caiman, 92 Mich. 427, 52 N. W. 787, 31 Am. St Rep. 606; Tromans v. Mahlman, 92 Cal. 1, 27 Pac. 1094, 28 Pac. 579. The requirement of actual occupancy is relaxed in the case of a widow or minor children surviving the owner. Titman v. Moore, 43 111. 169; Locke v. Rowell, 47 N. H. 46; Phipps v. Acton, 12 Bush (Ky.) 375; Brettun v. Fox, 100 Mass. 234; Wright v. Dunning, 46 111. 271, 92 Am. Dec 257; Booth v. Goodwin, 29 Ark. 633; Johnston v. Turner, 29 Ark. 280. 8 7 in re Malloy (D. C.) 179 Fed. 942; White v. Danforth, 122 Iowa, 403, 98 N. W. 136 ; McCrie v. Lumber Co., 7 Kan. App. 39, 51 Pac. 966 ; Evans v. Caiman, 92 Mich. 427, 52 N. W. 787, 31 Am. St. Rep. 606; Feurt v. Caster, 174 Mo. 289, 73 S. W. 576 ; INGELS v. INGELS, 50 Kan. 755, 32 Pac. 387, Burdick Cas. Real Property. as Webb v. Hollenbeck, 48 111. App. 514; Deville v. Widoe, 64 Mich. 593, 31 N. W. 533, 8 Am. St. Rep. 852 ; Gallagher v. Keller, 87 Tex. 472, 29 S. W. 647 ; Id. (Tex. Civ. App.) 30 S. W. 248. Contra, First Nat Bank of Stewart v. Hollinsworth, 78 Iowa, 575, 43 N. W. 536, 6 L. R. A. 92. 39 In re Malloy, 188 Fed. 788, 110 C. C. A. 494; Clark v. Dewey, 71 Minn. § 64) HOW ACQUIRED 165 bona fide occupancy of the premises as a home. 40 That, however, the motive or intent in acquiring a homestead was to secure a home that should be exempt from present debts does not prevent the homestead right from attaching. 11 The occupancy must be personal, and not by a tenant.* 2 There is, however, no stated length of time that the premises must be occupied before the ex- emption attaches. If actually occupied when the creditor seeks to enforce his claim against the property, it is sufficient. 48 The premises must be occupied, however, by the family as a home. 44 In some states, the use of a portion of the property for business purposes, provided the residence is established upon the premises, is permissible. 48 In other states, however, the contrary is held. 46 108, 73 N. W. 639 ; Bartle v. Bartle, 132 Wis. 392, 112 N. W. 471 ; Zukoski v. Mclntyre, 93 Miss. 806, 47 South. 435 ; Kitchell v. Burgwin, 21 111. 40 ; Wal- ters v. People, 21 111. 178 ; Potts v. Davenport, 79 111. 455 ; Herrick v. Graves, 16 Wis. 157; Jarvais v. Moe, 38 Wis. 440; Wetz v. Beard, 12 Ohio St. 431; Bunker v. Paquette, 37 Mich. 79. 40 Hostetler v. Eddy, 128 Iowa, 401, 104 N. W. 485; Tromans v. Mahlman, 92 Cal. 1, 27 Pac. 1094, 28 Pac. 579 ; Brokaw v. Ogle, 170 111. 115, 48 N. B. 391 ; Bowles v. Hoard, 71 Mich. 150, 39 N. W. 24 ; Lawrence v. Morse, 122 Mich. 269, 80 N. W. 1087; Lee v. Miller, 11 Allen (Mass.) 37; In re Lammer, Fed. Cas. No. 8,031, 7 Biss. 269. "Dowling v. Home, 117 Ala. 242, 23 South. 74; Simonson v. Burr, 121 Cal. 582, 54 Pac. 87; McPhee v. O'Rourke, 10 Colo. 301, 15 Pac. 420, 3 Am. St. Bep. 579. 42Maloney v.jHefer, 75 Cal. 422, 17 Pac. 539, 7 Am. St. Rep. 180'; Ashton v. Ingle, 20 Kan. 670, 27 Am. Rep. 197; Schoffen v. Landauer, 60 Wis. 334, 19 N. W. 95 ; Hoitt v. Webb, 36 N. H. 158 ; True v. Morrill's Estate, 28 Vt. 672. See, also, Kaster v. McWilliams, 41 Ala. 302; Elmore v. Elmore, 10 Cal. 224. 43 In re Malloy (D. C.) 179 Fed. 942 ; Nichols v. Sennitt, 78 Ky. 630 ; Jack- son v. Bowles, 67 Mo. 609 ; Villa v. Pico, 41 Cal. 469 ; Lee v. Miller, 11 Allen (Mass.) 37 ; Titman v. Moore, 43 111. 174 ; McCormick v. Wilcox, 25 111. 274 ; Reinbach v. Walter, 27 111. 393. 44 Spaulding v. Crane, 46 Vt. 298 ; McClary v. Bixby, 36 Vt. 254, 84 Am. Dec. 684; Dyson . v. Sheley, 11 Mich. 527; Moerlein v. Investment Co., 9 Tex. Civ. App. 415, 29 S. W. 162, 948; Bente v. Lange, 9 Tex. Civ. App. 328, 29 S. W. 813. 46 Hohn v. Pauly, 11 Cal. App. 724, 106 Pac. 266; Cowan v. Burchfield (D. C.) 180 Fed. 614; In re Lockey, 112 Minn. 512, 128 N. W. 833; Stevens v. Hollingsworth, 74 111. 202; Hoffman v. Hill, 47 Kan. 611, 28 Pac. 623; Palmer v. Hawes, 80 Wis. 474, 50 N. W. 341 ; Woodward v. Till, 1 Mich. N. P. 210. ' Adjacent Lots may constitute parts of the business homestead, if used in connection with the principal business, but not otherwise. Waggener v. Haskell, 89 Tex. 435, 35 S. W. 1. 46 True v. Morrill's Estate, 28 Vt. 672; Philleo v. Smalley, 23 Tex. 498; In re Allen, 78 CaL 293, 20 Pac. 679; Stanley v. Greenwood, 24 Tex. 224, 76 Am. Dec. 106. 166 HOMESTEADS (Ch. 9 In some states, one may claim a homestead in hotel property, 47 while in other jurisdictions this right is denied. 48 Declaration of Homestead The acquisition of a homestead by occupancy is based upon the theory that the use of the premises as a home is notice to the world of the existence of the exemption. 49 In some states, however, occupancy alone is not sufficient to create a homestead exemption. It is required, in addition, that there be a written declaration or certificate that. the premises are claimed as a homestead, 50 or the word "homestead" must be entered in the margin of the record of the title to the premises. 61 The declaration must be acknowl- edged and recorded in some states. 52 It is, of course, necessary that the homestead continue to be occupied as such after the dec- laration or recording of the notice, or the exemption will be lost. 53 IN WHAT ESTATES OR INTERESTS 65. As a rule, any estate in possession, legal or equitable, will sup- port a homestead. In some states, however, a homestead cannot be claimed in joint estates. It is not necessary that the head of a family, or other person entitled to a homestead, should be the absolute owner of the prop- " Bartle v. Bartle, 132 Wis. 392, 112 N. W. 471 ; Lazell v. Lazell, 8 Allen (Mass.) 575; Lamont v. Le Fevre, 96 Mich. 175, 55 N. W. 687; McKAT v. GESFORD, 163 Cai. 243, 124 Pac. 1016, 41 L. r. a. (N. S.) 303, Ann. Cas. 1913 E, 1253, Burdick Cas. Real Property. 48 Turner v. Turner, 107 Ala. 465, 18 South. 210, 54 Am. St. Rep. 110; Mc- Dowell v. His Creditors, 103 Cal. 264, 35 Pac. 1031, 37 Pac. 203, 42 Am. St Rep. 114; Lauglin v. Wright, 63 Cal. 113. 40 Christy v. Dyer, 14 Iowa, 438, 81 Am. Dec. 493 ; Williams v. Dorris, 31 Art. 466; Broome v. Davis, 87 Ga. 584, 13 S. E. 749. See, also, Grosholz v. Newman, 21 Wall. (U. S.) 481, 22 L. Ed. 471. so Boreham v. Byrne, 83 Cal. 23, 23 Pac. 212; Welch v. Spragins, 98 Ky. 279, 32 S. W. 943, 17 Ky. Law Rep. 884 ; Donaldson v. Winningham, 48 Wash. 374, 93 Pac. 534, 125 Am. St. Rep. 937. Compare Morris v. Pratt, 53 Tex. Civ. App. 181, 116 S. W. 646. si Leppel v. Kus, 38 Colo. 292, 88 Pac. 448 ; Goodwin v. Investment Co., 110 U. S. 1, 3 Sup. Ct. 473, 28 L. Ed. 47 ; Drake v. Root, 2 C61o. 685. 62 Hohn v. Pauly, 11 Cal. App. 724, 106 Pac. 266 ; Hookway v. Thompson, 56 Wash. 57, 105 Pac. 153 ; Burbank v. Kirby, 6 Idaho, 210, 55 Pac. 295, 96 Am. St. Rep. 260 ; Noble v. Hook,. 24 Cal. 638. Compare, under an earlier statute, Clements v. Stanton, 47 Cal. 60; Nevada Bank of San Francisco v. Treadway (C. C.) 17 Fed. 887, 8 Sawy. 456. 63 Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec. 637 ; Cole v. Gill, 14 Iowa, 527 ; Alley v. Bay, 9 Iowa, 509. § 65) IN WHAT ESTATES OK INTERESTS 167 erty in which a homestead is claimed, 5 * since the title or interest which the one claiming a homestead has in the land is not material to his creditors. 65 Some cases hold that possession coupled with a claim of homestead entitles one to exemption against creditors, 58 although the weight of authority is against such a view, it being held that there must be some interest in the land. 57 This interest, however, may be either legal or equitable. 58 Accordingly, an eq- uity of redemption, 58 or a contract to purchase, 60 will support a claim of homestead. So, also, will a life estate, 61 or a leasehold. 62 As to estates in joint tenancy or tenancy in common, the cases are in conflict, many jurisdictions holding that a cotenant may ac- quire a homestead in such property, 68 although some states hold o* Holliday v. Mathewson, 146 Mich. 336, 109 N. W. 669; Steiner v. Berney, 130 Ala. 289, 30 South. 570; Fitzgerald v. Fernandez, 71 Cal. 504, 12 Pac. 562; Deere v. Chapman, 25 111. 610, 79 Am. Dec. 350. o?Gaylord v. Place, 98 Cal. 472, 33 Pac. 484; Atkinson v. Atkinson, 40 N. H. 249, 77 Am. Dec. 712 ; Sears v. Hanks, 14 Ohio St. 298, 84 Am. Dec. 378. 5« Turner v. Browning's Adm'r, 128 Ky. 79, 85, 107 S. W. 318, 32 Ky. Law Rep. 891 ; Winston v. Hodges, 102 Ala. 304, 15 South. 528 ; Brooks v. Hyde, 37 Cal. 366; Spencer v. Geissman, 37 Cal. 96, 99 Am. Dec 248. 07 Kitchell v. Burgwin, 21 111. 40 ; Johnston v. McPherran, 81 Iowa, 230, 47 N. W. 60; Wisner v. Farnham, 2 Mich. 472; Stamm v. Stamm, 11 Mo. App. 598. 8 Tracy v. Harbin, 40 Tex. Civ. App. 395, 89 S. W. 999; Bailey v. Mercan- tile Co., 138 Ala. 415, 35 South. 451 ; Johnson v. May, Fed. Cas. No. 7,397. 09 White v. Horton, 154 Cal. 103, 97 Pac. 70, 18 L. R. A. (N. S.) 490; State v. Mason, 88 Mo. 222; Fellows v. Dow, 58 N. H. 21; Cheatham v. Jones, 68 N. C. 153; Doane's Ex'r v. Doane, 46 Vt. 485. Contra, Raber v. Gund, 110 111. 581. «« Alexander v. Jackson, 92 Cal. 514, 28 Pac. 593, 27 Am. St. Rep. 15S; Stafford v. Woods, 144 111. 203, 33 N. E. 539; Dreese v. Myers, 52 Kan. 12G, 34 Pac. 349, 39 Am. St. Rep. 336; Fyffe v. Beers, 18 Iowa, 11, 85 Am. Dec. 577; Gardner v. Gardner, 123 Mich. 673, 82 N. W. 522; Lee v. Welborne, 71 Tex. 500, 9 S. W. 471 ; Chopin v. Runte, 75 Wis. 361, 44 N. W. 258. si Steiner v. Berney, 130 Ala. 289, 30 South. 570 ; Stern v. Lee, 115 N. C. 426, 20 S. E. 736, 26 L R. A. 814 ; Donahue v. Insurance Co., 103 Ky. 755, 46 S. W. 211, 20 Ky. Law Rep. 357 ; Deere v. Chapman, 25 111. 610, 79 Am. Dec. 350; Potts v. Davenport, 79 111. 455. But thatxthe widow cannot have a homestead in such estate, see Ogden v. Ogden, 60 Ark. 70, 28 S. W. 796, 46 A.m. St. Rep. 151. 62Beranek v. Beranek, 113 Wis. 272, 89 N. W. 146; Thomas v. McKay, 143 Wis. 524, 128 N. W. 59; Hogan v. Manners, 23 Kan. 551, 33 Am. Rep. 199 ; Pelan v. De Bevard, 13 Iowa, 53 ; Conklin v. Foster, 57 111. 104 ; John- son v. Richardson, 33 Miss. 462; Maatta v. Kippola, 102 Mich. 116, 60 N. W. 300 ; In re Emerson's Homestead, 58 Minn. 450, 60 N. W. 23. But a tenancy at will is not sufficient. Berry v. Dobson, 68 Miss. 483, 10 South. 45. And see Colwell v. Carper, 15 Ohio St. 279. 83 McLaughlin v. Collins, 75 N. H. 557, 78 Atl. 623; Griffin v. Harris, 39 Tex. Civ. App. 586, 88 S. W. 493; Bartle v. Bartle, 132 Wis. 392, 397, 112 N. W. 471; Wike v. Garner, 179 111. 257, 53 N. E. 613, 70 Am. St. Rep. 102; 168 HOMESTEADS (Ch. 9 to the contrary. 84 Homestead rights in partnership realty are denied in most states, as' against other partners or partnership creditors, until the firm debts are paid. 66 In order to acquire a homestead, the estate 'or interest must be in possession, since future estates are not sufficient. 68 For this reason, a widow can- not have a homestead in lands to which the husband was entitled in remainder. 87 In many states, title in the wife will give a homestead, though the husband be living, 68 although other cases hold the contrary. 6 " Both, however, cannot claim a homestead. 70 AMOUNT, EXTENT, AND VALUE OF EXEMPTION 66. The amount, extent, and value of the homestead are limited by the statutes, which greatly vary. The statutes also distinguish between rural homesteads and urban home- steads. King v. Welborn, 83 Mich. 195, 47 N. W. 106, 9 L. R. A. 803; Johnson v. May, 13 Fed. Cas. No. 7,397. «■» Rosenthal v. Bank, 110 Cal. 198, 42 Pac. 640; Bank of Jeanerette v. Stansbury, 110 La. 301, 34 South. 452 ; Holmes v. Winchester, 138 Mass. 542 ; Cornish v. Frees, 74 Wis. 490,. 43 N. W. 507. 8 6 In re McCrary Bros. (D. C.) 169 Fed. 485; Trowbridge v. Cross, 117 111. 109, 7 N. E. 347; Michigan Trust Co. v. Chapin, 106 Mich. 384, 64 N. W. 334, 58 Am. St. Rep. 490 ; Kingsley v. Kingsley, 39 Cal. 665 ; Rhodes v. Williams, 12 Nev. 20; Drake v. Moore, 66 Iowa, 58, 23 N. W. 263; Hoyt v. Hoyt, 69 Iowa, 174, 28 N. W. 500; Chalfant v. Grant, 3 Lea (Tenn.) 118. Contra, Hewitt v. Rankin, 41 Iowa, 35; West v. Ward, 26 Wis. 579; McMillan v. Williams, 109 N. C. 252, 13 S. EL 764. ee Reeves & Co. v. Saxton, 145 Wis. 10, 129 N. W. 784; Murchison v. Plyler, 87 N. C. 79 ; Davis'v. Brown (Term. Ch. App. 1901) 62 S. W. 381 ; Loessin v. Washington, 23 Tex. Civ. App. 515, 57 S. W. 990. • t Howell v. Jones, 91 Tenn. 402, 19 S. W. 757. And see Roach v. Dance, 80 S. W. 1097, 26 Ky. Law Rep. 157. See, however, Stern v. Lee, 115 N., C. 426, 20 S. E. 736,- 26 L. R. A. 814. es Brichacek v. Brichacek, 75 Neb. 417, l66 N. W. 473; Ehrck v. Ehrck, 106 Iowa, 614, 76 N. W. 793, 68 Am. St. Rep. 330 ; Orr v. Shraf t, 22 Mich. 260 ; Crane v. Waggoner, 33 Ind. 83; Tourville v. Pierson, 39 111. 446; Partee v. Stewart, 50 Miss. 717; Murray v. Sells, 53 Ga. 257; Herdman v. Cooper, 39 111. App. 330. 6» Jackson v. Williams, 129 Ga. 716, 59 S. E. 776; Squire v. Mudgett, 61 N. H. 149 ; McClenaghan v. McEachern, 56 S. C. 350, 34 S. E. 627 ; Producers' Nat. Bank v. Lumber Co., 100 Tenn. 389, 45 S. W. 981. 70 Tourville v. Pierson, 39 111. 447; Gambette v. Brock, 41 Cal. 84; Mc- Adoo, J., in Holliman v. Smith, 39 Tex. 362. 67) SELECTION OF HOMESTEAD 169 SELECTION OF HOMESTEAD 67. In some states, the homestead may be selected by the one claiming the. exemption, or otherwise set off for him by order of court. In all the states the amount of which the homestead may con- sist is limited, either as to the number of acres, or the value of the premises, or both. 71 Under limitations of value, the value of improvements is added to the bare value of the land in estimat- ing the exemption, 72 unless the statute excludes improvements from the stated amount. 78 If the place occupied as a homestead exceeds the value fixed by statute, the excess will be liable for the owner's debts. 71 The same is true where a greater quantity of land than is allowed by law is claimed as a homestead. 76 The amount of the homestead exemption depends, under most statutes, on whether the homestead is urban or rural ; the former meaning a home in a town or city, and the latter a home in the country, with land used in agricultural pursuits. The fact, however, that the land is brought within the corporate limits of a town or city by the later extension of the limits does not make it an urban homestead, if it is used for agricultural purposes. 76 It may become changed, however, into an urban homestead by a change in its character, as, for example, being platted into town lots. 77 In " The amount fixed by statute cannot be exceeded. Holley v. Horton, 164 Mich. 31, 129 N. W. 6 ; Pickett v. Gleed, 39 Tex. Civ. App. 71, 86 S. W. 946 ; Powe v. McLeod, 76 Ala. 418 ; Acreback v. Myer, 165 Mo. 685, 65 S. W. 1015. '2 Ray v. Thornton, 95 N. C. 571 ; Richards v. Nelms, 38 Tex. 445 ; Williams v. Jenkins, 25 Tex. 306; Vanstory v. Thornton, 110 N. C. 10, 14 S. E. 637. 73 Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742. 7* Tibbetts v. Terrill, 44 Colo. 94, 96 Pac. 978, 104 Pac. 605 ; Reily v. John- ston, 119 La. 119, 43 South. 977. See Scott v. Keeth, 152 Mich. 547, 116 N. W. 1S3; Moriarty v. Gait, 112 111. 373; Kerr v. Park Com'rs, Fed. Cas. No. 7,733, 8 Biss. 276. 7 5 Kipp v. Bullard, 30 Minn. 84, 14 N. W. ,364; Ferguson v. Kumler, 27 Minn. 156, 6 N. W. 618. Compare Crow v. Whitworth, 20 Ga. 38. 7 8Topeka Water Supply Co. v. Root, 56 Kan. 187, 42 Pac. 715; Barber y. Rorabeck, 36 Mich. 399 ; In re Young, Fed. Cas. No. 18,149. 7 7 Jolly v. Diehl, 38 Tex. Civ. App. 549, 86 S. W. 965; Foster v. Rice, 126 Iowa, 190, 101 N. W. 771 ; Kiewert v. Anderson, 65 Minn. 491, 67 N. W. 1031, 60 Am. St. Rep. 487 ; In re Young, Fed. Cas. No. 18,149. The husband cannot, however, without the wife's consent, change a rural into an urban homestead by dividing it into town lots. Bassett v. Messner, 30 Tex. 604. Cf. Allen v. Whitaker (Tex. Sup.) 18 S. W. 160. 170 HOMESTEADS (Ch. 9 some states, the homestead may consist of parcels or tracts of tend not contiguous, provided they are so connected as to make them practically a part of the homestead. 78 Other cases, however, hold that the tracts must be contiguous. 78 An urban homestead may consist of adjoining lots, provided they do not exceed the amount or value specified by the statute. 80 Such adjoining lots must be used as a part of the homestead, however, since, if other- wise, they cannot be included. 81 Selection of Homestead In most states:, no formal selection of a homestead is necessary. The fact that the premises are occupied as a home is usually suffi- cient. 82 In some jurisdictions, however, a claimant is given the privilege of selecting a homestead, 83 or, in case of a waiver on his part, an allotment may be made by order of court. 84 In any case, however, the selection of a homestead, if made by a claimant, must ™ Gaar, Scott & Co. v. Reesor, 91 S. W. 717, 28 Ky. Law Rep. 1308; Lyon v. Hardin, 129 Ala. 643, 29 South. 777; In re Hunsecker's Estate, 6 Pa. Dist R. 202, 19 Pa. Co. Ct. R. 14; Mayho v. Cotton, 69 N. C. 289; Martin v. Hughes, 67 N. C. 293 ; Williams v. Hall, 33 Tex. 212 ; Perkins v. Quigley, 62 Mo. 498 ; West River Bank v. Gale, 42 Vt 27 ; Hodges v. Winston, 95 Ala. 514, 11 South. 200, 36 Am. St. Rep. 241 ; Webb v. Hayner (D. C.) 49 Fed. 601 ; Id. 605 ; Gris- wold v. Huffaker, 47 Kan. 690, 28 Pac. 696. f» Equitable Mortg. Co. v. Lowry (C. C.) 55 Fed. 165; In re Forbes, 186 Fed. 79, 108 C. C. A. 191; Hornby v. Sykes, 56 Wis. 382, 14 N. W. 278; Reynolds v. Hull, 36 Iowa, 394; Bunker v. Locke, 15 Wis. 635; Walters v. People, 18 111. 194, 65 Am. Dec. 730; True v. Morrill's Estate, 28 Vt 672; Adams v. Jenkins, 16 Gray (Mass.) 146 ; Linn County Bank v. Hopkins, 47 Kan. 580, 2S Pac. 606, 27 Am. St Rep. 309; McCrosky v. Walker, 55 Ark. 303, 18 S. W. 169; Williams v. Willis, 84 Tex. 398, 19 S. W. 6S3; Allen v. Whitaker (Tex. Sup.) 18 S. W. 160. so Marx v. Threet, 131 Ala. 340, 30 South. 831 ; Englebrecht v. Shade, 47 Cal. 627; King v. Welborn, 83 Mich. 195, 47 N. W. 106, 9 L. R. A. 803. A lot used by the owner for raising garden vegetables and fruits for the exclusive use of his family is part of the homestead, although located in a different part of the city from the owner's residence lot. Anderson v. Sessions, 93 Tex. 279, 51 S. W. 874, 55 S. W. 1133, 77 Am. St. Rep. 873. si Blair v. Trust Co. (Tex. Civ. App.) 130 S. W. 718 ; Sever v. Lyons, 170 111. 395, 48 N. E. 926. 82Hobson v. Huxtable, 79 Neb. 334, 112 N. W. 658; Moss v. Warner, 10 Cal. 296 ; Pollak v. McNeil, 100 Ala. 203, 13 South. 937 ; Evans v. Railroad Co., 68 Mich. 602, 36 N. W. 687; Wilson v. Proctor, 28 Minn. 13, 8 N. W. 830 ; Coates v. Caldwell, 71 Tex. 19, 8 S. W. 922, 10 Am. St. Rep. 725. 83 McKeithen v. Blue, 142 N. C. 360, 55 S. E. 285 ; Watkins Land Co. v. Temple (Tex. Civ. App.) 135 S. W. 1063. And see MacLeod v. Moran, 11 Cal. App. 622, 105 Pac. 932. s* Fischer v. Schultz, 98 Wis. 462, 74 N. W. 222. § 68) CHANGE OF HOMESTEAD 171 be reasonable and in good faith, and must conform to the statutory requirements. 85 A claimant cannot make an arbitrary selection. 88 When the premises occupied as a home by a debtor exceed in area or value the exemption allowed by statute, the debtor may select the part which he will claim as his homestead. He may do so after an execution has been issued against him, provided he has not made a selection previously. 87 If the debtor fails to make a selection, the court will direct the sheriff or a board of appraisers to make one for him. 88 In case division of the premises is impos- sible or inexpedient, 89 in some states, the premises may be sold, and the amount which is exempt paid over to the debtor. 80 CHANGE OF HOMESTEAD 68. A change of homestead is permitted under the laws of some states. Also, in some jurisdictions, the proceeds of sale of a homestead are exempt, provided they are to be reinvested in another homestead. The proceeds of insurance upon homestead property are generally exempt. as Hardin v. Hancock, 96 Ark. 579, 132 S. W. 910; Slappyv. Hanners, 137 Ala. 199, 33 South. 900 ; Williams v. Meyer (Tex. Civ. App, 1901) 64 S. W. 66 ; First Nat. Bank of Shakopee v. How, 61 Minn. 238, 63 N. W. 632. so Marx v. Threet, 131 Ala. 340, 30 South. 831 ; Englebrecht v. Shade, 47 Cal. 627; King v. Welborn, 83 Mich. 195, 47 N. W. 106, 9 L. R. A. 803; Clements v. Bank, 64 Ark. 7, 10, 40 S. W. 132, 62 Am. St. Rep. 149. sTMackey v. Wallace, 26 Tex. 526; Davenport v. Alston, 14 Ga. 271; Kent v. Agard, 22 Wis. 150. Cf. Palmer v. Hawes, 80 Wis. 474, 50 N. W. 341. And see Thomp. Homest, & Exemp. 533. For the debtor's right to select in states where there is a limitation on area, but not on value, see Thomp. Homest. & Exemp. § 533 ; Tumlinson v. Swinney, 22 Ark. 400, 76 Am. Dec. 432 ; Houston & G. N. R. Co. v. Winter, 44 Tex. 597. as Holden v. Pinney, 6 Cal. 234 ; Fogg v. Fogg, 40 N. H. 282, 77 Am. Dec. 715; Gary v. Eastabrook, 6 Cal. 457; Myers v. Ford, 22 Wis. 139; Hartwell v. McDonald, 69 111. 293; Lute v. Reilly, 65 N. C. 21; Anthony v. Rice, 110 Mo. 223, 19 S. W. 423. And see Pinkerton v. Tumlin, 22 Ga. 165. For pro- cedure in such cases, see Dillman v. Bank, 139 111. 269, 28 N. E. 946 ;, Ducote v. Rachal, 44 La. Ann. 580, 10 South. 933. so Where the lower floor of a building occupied by a debtor as his home is rented for a store, partition may be made horizontally, and the part used for tbe store sold on execution. Amphlett v. Hibbard, 29 Mich. 298 ; Rhodes v. McCormick, 4 Iowa, 368, 68 Am. Dec. 663; Mayfleld v. Maasden, 59 Iowa, 517, 13 N. W. 652. But see Wright v. Ditzler, 54 Iowa, 620, 7 N. W. 98. oo Dearing v. Thomas, 25 Ga. 223; Appeal of Miller, 16 Pa. 300; Appeal of Dodson, 25 Pa. 232 ; Chaplin v. Sawyer, 35 Vt 286. 172 HOMESTEADS (Ch. 9 In some states, the statutes permit a change of homestead, 91 and the owner of property occupied as a homestead may sell the same, and reinvest the proceeds in another homestead. 92 As a general rule, the proceeds of insurance upon homestead property are exempt, since they represent the property itself. 98 ALIENATION OR MORTGAGE OF HOMESTEAD 69. Unless the local statutes forbid, a homestead may be sold or mortgaged. In most states, however, husband and wife must join in the conveyance. In most jurisdictions, homestead premises may be sold or mort- gaged, and the grantees or mortgagees can hold them against the grantor's creditors. 9 * In most states, however, the husband and wife must both execute the conveyance, 96 and in such states the »i Holliman v. Smith, 39 Tex. 357 ; Thompson v. Pickel, 20 Iowa, 490. And see Tohermes v. Beiser, 93 Ky. 415, 20 S. W. 379, 14 Ky. Law Rep. 440 ; La Plant v. Lester, 150 Mich. 336, 113 N. W. 1115; Hair v. Davenport, 74 Neb. 117, 103 N. W. 1042 ; In re Baker, 182 Fed. 392, 104 C. C. A. 602 ; Oppenheimer v. Howell, 76 Va. 218. See ROUSE v. CATON, 168 Mo. 288, 67 S. W. 578, 90 Am. St. Rep. 456, Burdick Cas. Real Property. »2 Lutz v. Ristine & Ruml, 136 Iowa, 684, 112 N, W. 818 ; Snodgrass v. Cop- pie, 131 Mo. App. 346, 111 S. W. 845 ; In re Baker, 182 Fed. 392, 104 C. C. A. 602 ; Brandenburgh v. Rose, 110 S. W. 376, 33 Ky. Law Rep. 585 ; Macavenny v. Ralph, 107 111. App. 542; Green v. Root (D. C.) 62 Fed. 191. 03 Houghton v. Lee, 50 Cal. 101 ; Alvord Nat Bank v. Ferguson (Tex. Civ. App.) 126 S. W. 622; Reynolds v. Haines, 83 Iowa, 342, 49 N. W. 851. 13 L. R, A. 719, 32 Am. St. Rep. 311 ; Cooney v. Cooney, 65 Barb. (N. T.) 524. Contra, Smith v. Ratcliff, 66 Miss. 683, 6 South. 460, 14 Am. St Rep. 606. o* Soper v. Galloway, 129 Iowa, 145, 105 N. W. 399; Melton v. Beasley, 56 Tex. Civ. App. 537, 121 S. W. 574; Gee v. Mo6re, 14 Cal.' 472; Dawson v. Hayden, 67 111. 52 ; Hannon v. Sommer (C. C.) 10 Fed. 601, 3 McCrary, 126 ; Green, v. Marks, 25 111. 225; Fishback v. Lane, 36 111. 437; Lamb v. Shays, 14 Iowa, 5U7; Morris v. Ward, 5 Kan. 239; C. Aultman & Co. v. Salinas, 44 S. C. 299, 22 S. E. 465. This is the rule in states where judgments against the owner are not liens upon the homestead, but in other states such judg- ments are liens which remain in abeyance while the homestead right exists. The latter rule prevents a sale of the homestead, except subject to such judgment liens. Folsom v. Carll, 5 Minn. 333 (Gil. 264), 80 Am. Dec. 429; Tillotson v. Millard, 7 Minn. 513 (Gil. 419), 82 Am. Dec. 112. See, also, Hoyt r. Howe, 3 Wis. 752, 62 Am. Dec. 705 ; Allen v. Cook, 26 Barb. (N. Y.) 374 ; Jackson v. Allen, 30 Ark. 110. o» Davis v. Lumber Co., 151 Ala. 580, 44 South. 639 ; Swan v. Walden, 156 Cal. 195, 103 Pac. 931, 134 Am. St Rep. 118, 20 Ann. Cas. 194 ; Coon v. Wilson, 222 111. 633, 78 N. E. 900, 113 Am. St. Rep. 441; Lott v. Lott, 146 Mich. 580, 109 N. W. 1126, 8 L. R. A. (N. S.) 748; Grace v. Grace, 96 Minn. 294, 104 N. W. 969, 4 L R A. (N. S.) 786, 113 Am. St. Rep. 625, 6 Ann. Cas. 952; Wilburc § 69) ALIENATION OR MORTGAGE OF HOMESTEAD 173 husband's sole deed is void, and estops neither to claim a home- stead. 98 Where, however, the conveyance is to secure an enforce- able debt, 97 or if the homestead has not been selected, the convey- ance is good, because in such cases there is no homestead exemp- tion. 08 Upon the abandonment of the premises as a homestead, the husband may, as a rule, convey without the consent or joinder of the wife. 89 The homestead interest itself cannot, however, be sold separately from the premises out of which the right is claim- ed. 1 If the wife is under duress when she signed, 2 or if either hus- v. Land, 138 Wis. 36, 119 N. W. 803 ; Mundy v. Shellaberger, 161 Fed. 503, 88 C. C. A. 445 ; Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302 ; Ring v. Burt, 17 Mich. 465, 97 Am. Dec. 200; Wallace v. Insurance Co., 54 Kan. 442, 38 Pac. 489, 26 L. R. A. 806, 45 Am. St. Rep. 288. So a contract to convey must be signed by the wife. Ring v.' Burt, 17 Mich. 465, 97 Am. Dec. 200. The rule does not apply to conveyances to the wife and children. Riehl v. Bingen- heimer, 28 Wis. 84. See, also, Castle v. Palmer, 6 Allen (Mass.) 401 ; Malony v. Horan, 12 Abb. Prac. N. S. (N. Y.) 289 ; Turner v. Bernheimer, 95 Ala. 241, 10 South. 750, 36 Am. St. Rep. 207. Cf., however, Barrows v. Barrows, 138 111. 649, 28 N. E. 983. The statutes sometimes provide for acknowledgment by the wife separate and apart from the husband. Cross v. Everts, 28 Tex. 523-532 ; Lambert v. Kinnery, 74 N. C. 348. as Dye v. Mann, 10 Mich. 291; Amphlett v. Hibbard, 29 Mich. 298; Rich- ards v. Chace, 2 Gray (Mass.) 383; Williams v. Starr, 5 Wis. 534; Barton v. Drake, 21 Minn. 299; Wea Gas, Coal & Oil Co. v. Land Co., 54 Kan. 533, 38 Pac. 790, 45 Am. St. Rep. 297. It is void even as to the husband. Beecher v. Baldy, 7 Mich. 488; Phillips v. Stauch, 20 Mich. 369; Myers v. Evans, 81 Tex. 317, 16 S. W. 1060. Such a conveyance is valid as to any excess over the amount of the homestead. Hait v. Houle, 19 Wis. 472; Ring v. Burt, 17 Mich. 465, 97 Am. Dec. 200 ; Wallace v. Harris, 32 Mich. 398 ; Boyd v. Cudder- back, 31 111. 113 ; Smith v. Miller, 31 111. 157 ; Black v. Lusk, 69 111. 70. See, also, Smith v. Provin, 4 Allen (Mass.) 516. »7 Thacker v. Booth, 6 S. W. 460, 9 Ky. Law Rep. 745; Clements v. Lacy, 51 Tex. 150 ; Van Sandt v. Alvis, 109 Cal. 165, 41 Pac. 1014, 50 Am. St. Rep. 25 ; Kimble v. Esworthy, 6 111. App. 517; Sheldon v. Pruessner, 52 Kan. 579, 35 Pac. 201, 22 L. R. A. 709 ; Burnside v. Terry, 51 Ga. 186. In some states, the husband may convey the reversionary interest in his homestead. Gilbert v. Cowan, 3 Lea (Tenn.) 203. 8s People v. Plumsted, 2 Mich. 465; Homestead Building & Loan Ass'n v. Enslow, 7 S. C. 1. And see Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110; Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39. 99 vv^oodstock Iron Co. v. Richardson, 94 Ala. 629, 10 South. 144; Guiod v. Guiod, 14 Cal. 506, 76 Am. Dec. 440 ; Beranek v. Beranek, 113 Wis. 272, 89 N. W. 146 ; Brown v. Coon, 36 111. 243, 85 Am. Dec. 402 ; McDonald v. Cran- dall, 43 111. 231, 92 Am. Dec. 112; Vasey v. Trustees, 59 111. 188; Jordan v. Godman, 19 Tex. 273. i McDonald v. Crandall, 43 111. 231, 92 Am. Dec. 112 ; Chamberlain v. Lyell, 8 Mich. 458 ; Hewitt v. Templeton, 48 111. 367 ; Appeal of Bowyer, 21 Pa. 210. s Anderson v. •Anderson, 9 Kan. 112 ; Blumer v. Albright, 64 Neb. 249, 89 174 HOMESTEADS , (Ch. 9 band or wife was insane at the time of the execution of the con- veyance, 3 the transfer will be invalid. Where, however, the wife is fraudulently induced by the husband to sign, the grantee or mortgagee not being a party to the fraud, the conveyance may be upheld. 4 A fraudulent conveyance, however, set aside by the husband's creditors, does not, according to some decisions, estop the husband or the wife, although she joined in the deed, to claim a homestead in the premises." The contrary is held, however, by some courts. 9 LOSS OF HOMESTEAD 70. The homestead right may be lost: (a) By abandonment (b) By waiver. (c) By estoppel. (d) By divorce, in some states. Abandonment Homestead laws, being created as a matter of public policy, 1 are liberally construed in favor of the debtor. 8 Moreover, the N. W. 809; Kocourek v. Marak, 54 Tex. 201, 38 Am. Dec. 623; Hill v. Hite (C. C.) 79 Fed. 826. a Thompson v. Mortgage Security Co., 110 Ala. 400, 18 South. 315, 55 Am. St. Rep. 29 ; Alexander v. Vennum, 61 Iowa, 160, 16 N. W. 80 ; Adams v. Gil- bert, 67 Kan. 273, 72 Pac. 769, 100 Am. St. Rep. 456 ; Heidenheimer v. Thomas, 63 Tex. 287. See Shields v. Aultman, Miller & Co., 20 Tex. Civ. App. 345, 50 S. W. 219. * Stewart v. Whitloek, 58 Cal. 2 ; Miller v. Wolbert, 71 Iowa, 539, 29 N. W. 620, 32 N. W. 402; Peake v. Thomas, 39 Mich. 5'84; German Bank v. Muth, 96 Wis. 342, 71 N. W. 361. Effect of Ctjkative Legislation. — Fraud in procuring a wife's signature to a conveyance of the husband's land might be purged by a subsequent heal- ing act, rendering all such deeds valid. Hill v. Yarborough, 62 Ark. 320, 35 S. W. 433. o Thomp. Homest & Exemp. 352 ; Cox v. Wilder, 2 Dill. 45, Fed. Cas. No. 3,308 ; Sears v. Hanks, 14 Ohio St 298, 84 Am. Dec. 378 ; Castle v. Palmer, 6 Allen (Mass.) 401; Smith v. Rumsey, 33 Mich. 183; Murphy v. Crouch, 24 - Wis. 365 ; Muller v. Inderreiden, 79 111. 382. e Piper v. Johnston, 12 Minn. 60 (Gil. 27) ; Getzler v. Saroni, 18 111. 511 ; Appeal of Huey, 29 Pa. 219. ^ Richardson v. Woodward, 104 Fed. 873, 44 C. C. A. 235. s Donnelly v. Tregaskis, 154 Cal. 261, 97 Pac. 421 ; Floyd County v. Wolfe, 138 Iowa, 749, 117 N. W. 32; Deere v. Chapman, 25 111. 610, 79 Am. Dec. 350; Jaenicke *. Drill Co., 106 Minn. 442, 119 N. W. 60 ; In re Baker, 182 Fed. 392, 104 C. C. A. 602. Contra, Todd v. Gordy, 28 La. Ann. 666. § 70) LOSS OF HOMESTEAD 175 loss of homestead is not favored by the courts.' Where, however, there is a clear abandonment of the homestead, the right will be extinguished. 10 Loss by abandonment is in all cases a question of fact, 11 the question of intent being vital in determining the fact. 12 The intent to abandon may, however, be established by the acts and circumstances of the particular case. 18 Temporary absences, 1 * occasioned by necessity, 15 business, 18 ill health, 17 or plans for • Palmer v. Sawyer, 74 Neb. 108, 103 N. W. 1088, 12 Ann. Cas. 715; Hubbell v. Canady, 58 111. 425 ; Barrett v. Wilson, 102 111. 302 ; Mellen v. McMannis, 9 Idaho, 418, 75 Pac. 98. io Ungers v. Chapman, 146 Mich. 643, 109 N. W. 1124; Guiod v. Guiod, 14 Cal. 506, 76 Am. Dec. 440 ; Fisher v. Cornell, 70 111. 216 ; Blackburn v. Traffic Co., 90 Wis. 362, 63 N. W. 289; Kellerman v. Aultman (C. C.) 30 Fed. 888; Carr v. Rising, 62 111. 14. ii Thomp. Homest & Exemp. § 218 ; Teldes v. Duncan, 30 111. App. 469 ; Loveless v. Thomas, 152 111. 479, 38 N. E. 907; Stewart v. Brand, 23 Iowa, 477 ; Orman v. Orman, 26 Iowa, 361 ; Potts v. Davenport, 79 111. 459 ; Brennan v. Wallace, 25 Cal. 108 ; Shepherd v. Cassiday, 20 Tex. 24, 70 Am. Dec. 372 ; Bradford v. Trust Co., 47 Kan. 587, 28 Pac. 702; Robinson v. Swearingen, 55 Ark. 55, 17 S. W. 365 ; Metcalf v. Smith, 106 Ala. 301, 17 South. 537 ; Black- man v. Hardware Co., 106 Ala. 458, 17 South. ,629. i2Cushman v. Davis, 79 Vt. Ill, 64 Atl. 456; Sykes v. Spur (Tex. Civ. App.) 112 S. W. 422; Kennedy's Adm'r v. Duncan, 157 Mo. App. 212, 137. S. W. 299; Moore v. Smead, 89 Wis. 558, 62 N. W. 426; McMillan v. Warner, 38 Tex. 410; Shepherd v. Cassiday, 20 Tex. 24, 70 Am. Dec. 372; Gouhenant v. Cockrell, 20 Tex. 97 ; Potts v. Davenport, 79 111. 455 ; Lazell v. Lazell, 8 Allen (Mass.) 575 ; Kitchell v. Burgwin, 21 111. 40 ; Buck v. Conlogue, 49 111. 391; Titman v. Moore, 43 111. 169; Corey v. Schuster, 44 Neb. 269, 62 N. W. 470 ; Campbell v. Potter (Ky.) 29 S. W. 139 ; D. M. Osborne & Co. v. Schoon- maker, 47 Kan. 667, 28 Pac. 711 ; Gregory v. Oates, 92 Ky. 532, 18 S. W. 231. 13 Embry v. Bank, 125 La. 116, 51 South. 87 ; Drought & Co. v. Stallworth, 45 Tex. Civ. App. 159, 100 S. W. 188; Gadsby v. Monroe, 115 Mich. 282, 73 N. W. 367 ; In re Mayer, 108 Fed. 599, 47 C. C. A. 512. i* Guiod, v. Guiod, 14 Cal. 506, 76 Am. Dec. 440; Lynn V; Sentel, 183 111. 382, 55 N. E. 838, 75 Am. St Rep. 110; Robinson v. Charleton, 104 Iowa, 296, 73 N. W. 616; Sloss v. Sullard, 63 Kan. 884, 65 Pac. 658; Lazell v.' Lazell, 8 Allen (Mass.) 575 ; Hitchcock v. Misner, 111 Mich. 180, 69 N. W. 226 ; Duffey v. Willis, 99 Mo. 132, 12 S. W. 520 ; Rollins v. O'Farrel, 77 Tex. 90, 13 S. W. 1021 ; In re Harrington (D. C.) 99 Fed. 390. is Lawson v. Hammond, 119 Mo. App. 480, 94 S. W. 313 ; Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896 ; Herrick v. Graves, 16 Wis. 157 ; Pierson v. Truax, 15 Colo. 223, 25 Pac. 183. is Jaenicke v. Drill Co., 106 Minn. 442, 119 N. W. 60; McComas v, Curtis (Tex. Civ. App.) 130 S. W. 594; Bunker v. Paquette, 37 Mich. 79; Carroll v. Dawson, 103 Ky. 736, 46 S. W. 222, 20 Ky. Law Rep. 349. it Weatherington v. Smith, 77 Neb. 363, 109 N. W. 381, 13 L. R. A. (N. S.) 430, 124 Am. St. Rep. 855 ; Brokaw v. Ogle, 170 111. 115, 48 N. E. 394 ; Ayres v. Patton, 51 Tex. Cir. App. 186, 111 S. W. 1079 ; Hughes v. Newton, 89 Fed. 213, 32 C. C. A. 193. 176 HOMESTEADS (Ch 9 the education of children, 18 will not be construed as abandonment where there is an intention to return. On the other hand, long- continued absence may amount to an abandonment, particularly if there is no evidence of an intent to return. 18 Leasing the home- stead to a tenant is not conclusive evidence' of an abandonment, 20 but the acquisition of another homestead is. 21 Some statutes pro- vide that only certain named acts, or a written declaration of pur- pose, shall be evidence of abandonment. 22 Although no premises can be a homestead unless they are used as such, 28 yet the use of part of the premises for business purposes does not take away the exemption. 2 * In most states it is held, however, that separate is Brandenburgh v. Rose (Ky.) 110 S. W. 376; Campbell v. Adair, 45 Miss. 170 ; Phillips v. Root, 68 Wis. 128, 31 N. W. 712. is Gist v. Lucas, 122 Ala. 557, 25 South. 41 ; Lyons v. Andry, 106 La. 356, 31 South. 38, 55 L. R. A. 724, 87 Am. St Rep. 299; Fyffe v. Beers, 18 Iowa, 7, 85 Am. Dec. 577 ; Dunton v. Woodbury, 24 Iowa, 74 ; Cabeen v. Mulligan, 37 111. 230, 87 Am. Dec. 247; William Deering & Co. v. Beard, 48 Kan. 16, 28 Pac. 981. soHerrick v. Graves, 16 Wis. 163; Austin v. Stanley, 46 N. H. 51; Camp- bell v. Adair, 45 Miss. 170 ; Wetz v. Beard, 12 Ohio St 431 ; Pardo v. Bittorf, 48 Mich. 275, 12 N. W. 164 ; Wiggins v. Chance, 54 111. 175 ; Buck v. Conlogue, 49 111. 391 ; Myers v. Ford, 22 Wis. 139 ; Eckman v. Scott, 34 Neb. 817, 52 N. W. 822. But see In re Phelan's Estate, 16 Wis. 76;- Fisher v. Cornell, 70 111. 216; Davis v. Andrews, 30 Vt 678; Warren v. Peterson, 32 Neb. 727, 49 N. W. 703; Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110; Malone v. Kornrumpf, 84 Tex. 454, 19 S. W. 607. 2i Randolph v. Wilhite, 78 Kan. 355, 96 Pac. 492; Smith v. Knerr, 203 111. 264, 67 N. E. 780 ; Woodbury v. Luddy, 14 Allen (Mass.) 1, 92 Am. Dec. 731 ; Blackburn v. Traffic Co., 90 Wis. 362, 63 N. W. 289 ; Wolf v. Hawkins, 60 Ark. 262, 29 S. W. 892. Cf. Davis v. Kelley, 14 Iowa, 523; Brewer v. Wall, 23 Tex. 5S5, 76 Am. Dec. 76;Titman v. Moore, 43 111. 169. But see Ross v. Porter, 72 Miss. 361, 16 South. 906; McMillan v. Warner, 38 Tex. 410. And see ROUSE v. CATON, 168 Mo. 288, 67 S. W. 578, 90 Am. St Rep. 456, Bur- dick, Cas. Real Property. -22 civ. Code Cal. §§ 1243, 1244. And see In re Winslow's Estate, 121 Cal. 92, 53 Pac. 362 ; Tipton v. Martin, 71 Cal. 325, 12 Pac. 244 ; Kennedy v. Gloster, OS Cal. 143, 32 Pac. 941 ; Waggle v. Worthy,, 74 Cal. 266, 15 Pac. 831, 5 Am. St Rep. 440; Dulanty v. Pynchon, 6 Allen (Mass.) 510; Locke v. Rowell, 47 X. H. 46 ; Cross v. Everts, 28 Tex. 533 ; Jarvais v. Moe, 38 Wis. 445. 23 Hoitt v. Webb, 36 N. H. 158 ; Stanley v. Greenwood, 24 Tex. 224, 76 Am. Dec. 106 ; PhiUeo v. Smalley, 23 Tex. 499 ; Kelly v. Baker, 10 Minn. 154 (Gil. 124) ; Tillotson v. Millard, 7 Minn. 513 (Gil. 419), 82 Am. Dec. 112; Grosholz v. Newman, 21 Wall. (TJ. S.) 481, 22 L Ed. 471. A man can have only one homestead. Wright v. Dunning, 46 111. 271, 92 Am. Dec. 257. In Texas there may be an exemption of a "business homestead," also. Lavell v. Lapowski, 85 Tex. 168, 19 S. W. 1004 ; Webb v. Hayner (D. C.) 49 Fed. 601 ; Id., 605. But see Houston v. Newsome, 82 Tex. 75, 17 S. W. 603. 2 4 Kelly v. Baker, 10 Minn. 154 (Gil. 124) ; Phelps v. Rooney, 9 Wis. 70, 76 Am. Dec. 244 ; Orr v. Shraf t, 22 Mich. 260 ; Palmer v. Hawes, 80 Wis. 474, 50 N. W. 341 ; In re Ogburn's Estate, 105 Cal. 95, 38 Pac. 498 ; Groneweg y. Beck, § 70) LOSS OF HOMESTEAD 177 buildings rented to tenants will not be exempt, although they are on the homestead lot." Waiver When supported by an adequate consideration, 26 the homestead exemption may be expressly waived, at the time a debt is created ; the waiver being made by the persons competent to sell the home- stead. 27 The wife must, however, join in the waiver to make it effectual, 28 and, in some states the waiver must be acknowledged and recorded. 28 It is, moreover, held, in some jurisdictions, that an express waiver of the homestead right is necessary in order to make a valid mortgage of such property. 80 Estoppel In a number of states, 81 although not in all, 82 there must be a positive claim or notice of a homestead exemption in connection with judicial sales, or, otherwise, a purchaser at such sales will 93 Iowa, 717, 62 N. W. 31. But see Rhodes v. McCormack, 4 Iowa, 368, 68 Am. Dec. 663 ; Garrett v. Jones, 95 Ala. 96, 10 South. 702. soThomp. Homest & Exemp. 113; Casselman v. Packard, 16 Wis. 114, 82 Am. Dec. 710; McDonald v. Clark (Tex. Sup.) 19 S. W. 1023. Cf. Martin Clothing Co. v. Henly, 83 Tex. 592, 19 S. W. 167. But see Milford Sav. Bank v. Ayers, 48 Kan. 602, 29 Pac. 1149 ; Layson v. Grange, 48 Kan. 440, 29 Pac. 585. 26 Hubbard v. Improvement Co., 81 Miss. 616, 33 South. 413. "Zeno v. Adoue, 54 Tex. Civ. App. 36, 117 S. W. 1039; Jones v. Dillard, 70 Ark. 69, 66 S. W. 202; Chamberlain v. Lyell, 3 Mich. 448; Bunker v. Coons, 21 Utah, 164, 60 Pac. 549, 81 Am. St. Rep. 680; Beecher v. Baldy, 7 Mich. 488; Hutchings v. Huggins, 59 111. 29; Ayers v. Hawks, 1 111. App. 600; Ferguson v. Kumler, 25 Minn. 183; Moore v. Reaves, 15 Kan. 150; Webster v. Trust Co., 93 Ga. 278, 20 S. E. 310. The proceeds of sale are not exempt Moursund v. Priess, 84 Tex. 554, 19 S. W. 775. 2 8 Allen v. Crane, 152 Mich. 380, 116 N. W. 392, 16 L. R. A. (N. S.) 947; Stodalka v. Novotny, 144 111. 125, 33 N. E. 534; Ayers v. Hawks, 1 111. App. 600 ; Beavan v. Speed, 74 N. C. 544 ; Beecher v. Baldy, 7 Mich. 488. 2 8 Stodalka v. Novotny, 144 111. 125, 33 N. E. 534; Crout v. Sauter, 13 Bush (Ky.) 442. 30 Neal v. Perkerson, 61 Ga. 345 ; Ives v. Mills, 37 111. 73, 87 Am. Dec. 238 ; Wing v. Cropper, 35 111. 256. Compare Franks v. Lucas, 14 Bush (Ky.) 395. holding that, if the owner of a homestead right embracing two tracts of land executes a mortgage on the tract on which his dwelling house is situated, he does not thereby waive his homestead right in the other. siArd v. Pratt, 61 Kan. 775, 60 Pac. 1048; Livermore v. Bou telle, 11 Gray (Mass.) 217, 71 Am. Dec. 708^ Herschfeldt v. George, 6 Mich. 456; Miller v. Sherry, 2 Wall. (U. S.) 237, 17 L. Ed. 827; Rogers v. Lackland, 117 Ala. 599, 23 South. 489 ; Sears v. Hanks, 14 Ohio St. 298, 84 Am. Dec. 378 ; Jones v. Olson, 17 Colo. App. 144, 67 Pac. 349. 32 Castle v. Palmer, 6 Allen (Mass.) 401; Ferguson v. Kumler, 25 Minn 183 ; Hoppe v. Goldberg, 82 Wis. 660, 53 N. W. 17 ; Griffin v. Nichols, 51 Mich. 575, 17 N. W. 63. Btjbd.Real Peop. — 12 178 HOMESTEADS (Ch. 9 take the property freed from the right. Likewise one may be estopped to claim subsequently a homestead, where in a suit he might have pleaded a right of homestead, but failed to do so. 33 In other instances, the conduct of the owner of a homestead, whereby he has caused another to understand that the property was not a homestead, may operate as an estoppel. 3 * The doctrine of estoppel by deed also applies to homestead rights. 35 Divorce Upon the dissolution of the marriage, by divorce, it is held, in a number of cases, that the wife, since she ceases to be a member of the husband's family, loses her rights to the homestead. 38 The decree may, however, in the distribution of the property, reserve to her the right, 37 and, if she is the owner of the homestead, she may continue to occupy it as such. 38 The mere desertion of the husband, 39 or wife, 40 by the other spouse, will not, in itself, de- stroy the character of the homestead, although an entire dissolu- tion of the family will do so.* 1 S3 Stanley v. Ehrman, 83 Ala. 215, 3 South. 527 ; Wright v. Dunning, 46 111. 271, 92 Am. Pec. 257 ; Bemis v. Conley, 95 Mich. 617, 55 N. W. 387 ; Lath- rop v. Singer, 39 Barb. (N. T.) 396 ; Miller v. Sherry, 2 Wall. (U. S.) 237, 17 L. Ed. 827. a* Ward v. Baker (Tex. Civ. App.) 135 S. W. 620; Osman v. Wisted, 78 Minn. 295, 80 N. W. 1127 ; Andruss v. Saving Ass'n, 94 Fed. 575, 36 C. O. A. 336 ; In re Haake, 11 Fed. Cas. No. 5,883, 2 Sawy. 231; Linn v. Ziegler, 68 Kan. 528, 75 Pac. 489; Thompson Sav. Bank v. Gregory, 36 Tex. Civ. App. 578, 82 S. W. 802. 35 Scottish-American Mortg. Co. v. Scripture (Tex. Civ. App. 1897), 40 S. W. 210 ; Leslie v. Elliott, 26 Tex. Civ. App. 578, 64 S. W. 1037 ; Foss v. Strachn, 42 N. H. 40 ; Watkins v. Little, 80 Fed. 821, 25 C. C. A. 438. so Rendleman v. Rendleman, 118 111. 257, 8 N. E. 773 ; Skinner v. Waiker, 98 ' Ky. 729, 34 S. W. 233 ; Brady v. Kreuger, 8 S. D. 464, 66 N. W. 1083, 59 Am. St Rep. 771. See Burns v. Lewis, 86 Ga. 591, 13 S. E. 123. a? Holland v. Zilliox, 38 Tex. Civ. App. 416, 86 S. W. 36; Jackson v. Shelton, 89 Tenn. 82, 16 S. W. 142, 12 L. R. A. 514. 38 City Store v. Cofer, 111 Cal. 482, 44 Pac. 168; Kern v. Field, 68 Minn. 317, 71 N. W. 393, 64 Am. St Bep. 479 ; Burkett v. Burkett, 78 Cal. 310, 20 Pac. 715, 3 L. R. A. 781, 12 Am. St Rep. 58. 3» Weatherington v. Smith, 77 Neb. 369, 112 N. W. 566; New England Trust Co. v. Nash, 5 Kan. App. 739, 46 Pac. ^987; Griffin v. Nichols, 51 Mich. 575, 17 N. W. 63. Compare Buckingham v. Buckingham, 81 Mich. 89, 45 N. W. 504. 40 Winkles v. Powell, 173 Ala. 46, 55 South. 536; Metz v. Schneider, 120 Mo. App. 453, 97 S. W. 187; Lynn v. Sentel, 183 I1L 382, 55 N. E. 838, 75 Am. St. Bep. 110 ; Gardner v. Gardner, 123 Mich. 673, 82 N. W. 522 ; Keyes v. Scanlan, 63 Wis. 345, 23 N. W. 570. Contra, Finley v. Saunders, 98 N. C. 462, 4 S. E. 516. 4i Santa Cruz Bank of Savings v. Cooper, 56 Cal. 339 ; Matthews v. Jeacle. § 71) ENFORCEABLE DEBTS 179 ENFORCEABLE DEBTS 71. The homestead is exempt from liability for most debts. There are certain debts, however, that are enforceable against it. They are, generally, as follows: (a) Public debts, in most cases. (b) Liabilities for torts, in some states. (c) Debts contracted before the passage of the homestead laws. (d) Debts contracted and liens attaching before the acquisition of the homestead, in many states. (e) Debts contracted in removing incumbrances, in a few states. _ (f) Liens for the improvement, or preservation of the property, in many states. i From liability for most debts of the owner a homestead is exempt. 42 Some debts, however, are privileged, and these are enforceable against the homestead. Generally the homestead is not exempt from taxes,* 8 but it is held, on the other hand, that a homestead is exempt from debts due the state or the United States, unless the statute makes an express exception as to such debts. 4 * As to fines for public offenses, 40 or liability on official bonds, 48 the decisions are not uniform. Some states make the home- 61 Fla. 686, 55 South. 865; Gaar, Scott & Co. v. Wilson (Iowa, 1901) 88 N. W. 332 ; Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529. « Clarke v. Sherman, 128 Iowa, 353, 103 N. W. 982 ; Sweet v. Lyon, 39 Tex. Civ. App. 450, 88 S. W. 384; Frier v. Lowe, 232 111. 622, 83 N. E. 1083; In re Mussey (D. C.) 179 Fed. 1007; Ayres v. Grill, 85 Iowa, 720, 51 N. W. 14; Perry v. Ross, 104 Cal. 15, 37 Pac. 757, 43 Am. St. Rep. 66 ; Anthony v. Rice, 110 Mo. 223, 19 S. W. 423; Webb v. Hayner (D. C.) 49 Fed. 601; Id., 605; Walters v. Association, 8 Tex. Civ. App. 500, 29 S. W. 51 ; Hofman v. Demple, 53 Kan. 792, 37 Pac. 976. 43 Davis v. State, 60 Ga. 76 ; Hubbell v. Canady, 58 111. 426 ; Morris v. Ward, 5 Kan. 239 ; Commonwealth v. Lay, 12 Bush (Ky.) 284, 23 Am. Rep. 718. But see Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770. *i Loomis v. Gerson, 62 111. 11 ; Hollis v. State, 59 Ark. 211, 27 S. W. 73, 43 Am. St. Rep. 28; Fink v. O'Neil, 106 V. S. 272, 1 Sup. Ct. 325, 27 L. Ed. 196. In Georgia and Texas Taxes are expressly excepted from the operation of the homestead law (Colquitt v. Brown, 63 Ga. 440 ; Davis v. State, 60 Ga. 76; Hayes v. Taylor, 17 Tex., Civ. App. 449, 43 S. W. 314) ; but if the home- stead land is sold for taxes illegally assessed against it, the sale is void (Hayes v. Taylor, 17 Tex. Civ. App. 449, 43 S. W. 314). •46 Exempt: Hollis v. State, 59 Ark. 211, 27 S. W. 73,' 43 Am. St. Rep. 28; Loomis v. Gerson, 62 111. 11; Clark v. Allen (D. C.) 114 Fed. 374. Not ex- empt : Williams v. Bowden, 69 Ala. 433 ; McClure v. Braniff, 75 Iowa, 38, 39 N. W. 171. 4« Holding that there is no exemption: McWatty v. Jefferson County, 76 180 HOMESTEADS (Ch. 9 stead subjeet to liability for torts and for the costs of such ac- tions. 47 Debts contracted before the passage of a homestead act are privileged in all cases, since otherwise the constitutional pro- hibition against impairing the obligation of contracts would be infringed. 48 . Debts contracted prior to the acquisition of the home- stead and pre-existing liens are, however, in most states, enforce- able against the homestead. 48 They include debts for unpaid purchase money, 60 and vendors' liens for the same. 61 Sorrie stat- utes give a privilege to debts contracted in removing incum- brances from the homestead property. 62 Debts are generally priv- ileged when contracted in improving 63 or preserving the home- Ga. 352 ; Hudson's Adm'rs v. Combs, 110 Ky. 762, 62 S. W. 709, 23 Ky. Law Eep. 231 ; Schuessler y. Dudley, 80 Ala. 547, 2 South. 526, 60 Am. Uep. 124. Holding that an exemption exists: Trustees of Schools v. Hovey, 94 111. 394; Ren v. Driskell, 11 Lea (Tenn.) 642. 47 Gunn v. Hardy, 130 Ala. 642, 31 South. 443 ; Robinson v. Wiley, 15 N. T. 489; Lathrop v. Singer, 39 Barb. (N. T.) 396; McLaren v. Anderson, 81 Ala. 106, 8 'South. 188; Dunagan v. Webster, 93 Ga. 540, 21 S. B. 65. Contra, Conroy v. Sullivan, 44 111. 451, 452; Mertz v. Berry, 101 Mich. 32, 59 N. W. 445, 24 L. R. A. 789, 45 Am. St. Rep. 379 ; In re Radway, Fed. Cas. No. 11,523, 3 Hughes, 609. is Gunn v. Barry, 15 Wall. (U. S.) 610, 21 L. Ed. 212; Tally v. Thompson, 20 Mo. 277. ■ * 9 Hall v. Glass, 123 Cal. 500, 56 Pac. 336, 69 Am. St. Rep. 77; Chappell v. Spire, 106 111. 472 ; Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529 ; Hensey v. Hensey's Adm'r, 92 Ky. 164, 17 S. W. 333 ; Titus v. Warren, 67 Vt. 242, 31 Atl. 297 ; Robinson v. Leach, 67 Vt 128, 31 Atl. 32, 27 L. R. A. 303, 48 Am. St. Rep. 807. But see Ontario State Bank v. Gerry, 91 Cal. 94, 27 Pac. 531 ; First Bank of San Luis Obispo v. Bruce, 94 Cal. 77, 29 Pac. 488. so See, in general, the constitutional and statutory provisions of the various states. And see Harris v. Glenn, 56 Ga. 94 ; Skinner v. Beatty, 16 Cal. 156 ; New England Jewelry Co. v. Merriam, 2 Allen (Mass.) 390; Farmer v. Simp- son, 6 Tex. 303; Stone v. Darnell, 20 Tex. 11; Barnes v. Gay, 7 Iowa, 26; Skinner v. Beatty, 16 Cal. 156; Christy v. Dyer, 14 Iowa, 438, 81 Am. Dec. 493. But see Loftis v. Loftis, 94 Tenn. 232, 28 S. W. 1091; Lone Star Brewing -Co. v. Felder (Tex. Civ. App.), 31 S. W. 524. As to what is purchase money, see Thomp. Homest. & Exemp. § 285; Allen v. Hawley, 66 111. 164; Gruhn v. Richardson, 128 111. 178, 21 N. E. 18. si White v. Simpson, 107 Ala. 386, 18 South. 151; Longmaid v. Coulter, 123 Cal. 208, 55 Pac. 791 ; Bush v. Seott, 76 111. 524. But see Schmidt v. Schmidt's Estate, 123 Wis. 295, 101 N. W. 678. 52 Newbold v. Smart, 67 Ala. 326 ; Shinn v. Macpherson, 58 Cal. 596 ; Cassell v. Ross, 33 111. 244, 85 Am. Dec. 270. See Eyster v. Hatheway, 50 111. 521, 39 Am. Dec. 537 ; Dreese v. Myers, 52 Kan, 126, 34 Pac. 349, 39 Am. St. Rep. 336; Griffin v. Treutlen, 48 Ga. 148; Shroeder v. Bauer, 140 111. 135, 29 N. E. 560; Hensel v. Association, 85 Tex. 215, 20 S. W. 116; Watkins v. Spoull, 8 Tex. Civ. App. 427, 28 S. W. 356. 03 Hurd v. Hixon, 27 Kan. 722 ; Converse v. Barnard, 114 Mich. 622, 72 N. W. 611 ; Nickerson v. Crawford, 74 Minn. 366, 77 N. W. 292, 73 Am. St. Rep. 354; Commercial & Sav. Bank v. Corbett, Fed. Cas. Nqs. 3,057, 3,058, 5 Sawy. § 72) FEDERAL HOMESTEAD 181 stead. They include, in general, materials furnished; also the wages of clerks, servants, laborers, and mechanics. 54 Homesteads are exempt from liability on judgments for alimony as in case of other judgments," but the decree may make the award a lien upon the premises. 58 Liability upon Termination of Homestead Upon the termination of the homestead, either by abandon- ment," or by the death of the surviving spouse and the attaining of majority by all the children, 58 some cases hold that the property re- verts to the estate of the deceased owner, charged with liability for his debts. 59 FEDERAL HOMESTEAD 72. A homestead under the federal law is quite different from a homestead under a state law. The federal homestead act merely provides for the acquisition of title to public lands by actual settlers, and exempts the land from liability for debts contracted before the patent is issued. 172; United States Inv. Co. v. Phelps & Bigelow Windmill Co., 54 Kan. 144, 87 Pac. 982; Building & Loan Ass'n of Dakota v. Logan, 14 C. C. A. 133, 66 Fed. 827. Under the Georgia constitution and code, the homestead is sub- ject to a lien only for purchase-money and taxes, and cannot be sold for improvements made upon it. Wilcox v. Cowart, 110 Ga. 320, 35 S. E 283. "Tyler v. Jewett, 82 Ala. 93, 2 South. 905; Bagley v. Pennington, 76 Minn. 226, 78 N. W. 1113, 77 Am. St. Rep. 637. See Chopin v. Runte, 75 Wis. 361, 44 N. W. 258 ; Tyler v. Johnson, 47 Kan. 410, 28 Pac. 198 ; Farinholt v. Luckhard, 90 Va. 936, 21 S. E. 817, 44 Am. St. Rep. 953. 66 Whitcomb v. Whitcomb, 52 Iowa, 715, 2 N. W. 1000; Biffle v. Pullam, 114 Mo. 50, 21 S. W. 450 ; Stanley v. Sullivan, 71 Wis. 585, 37 N. W. 801, 5 Am. St. Rep. 245. And see Rogers v. Day, 115 Mich. 664, 74 N. W. 190, 69 Am. St. Rep. 593. 6« Johnson v. Johnson, 66 Kan. 546, 72 Pac. 267; Fraaman v. Fraaman, 64 Neb. 472, 90 N. W. 245, 97 Am. St. Rep. 650; Stanley v. Sullivan, 71 Wis. 585, 37 N. W. 801, 5 Am. St. Rep. 245. st Garibaldi v. Jones, 48 Ark. 230, 2 S. W. 844; Gardner v. Baker, 25 Iowa, 343 ; Northrup v. Horville, 62 Kan. 767, 64 Pac. 622. 6 8 McAndrew v. Hollingsworth, 72 Ark. 446, 81 S. W. 610; Barrett v. Dur- ham, 80 Ga. 336, 5 S, E. 102; Lewis v. McGraw, 19 111. App. 313. And see Wolf v. Ogden, 66 111. 224. 6 Miller v. Marx, 55 Ala. 322; McAndrew v. Hollingsworth, 72 Ark. 446, 81 S. W. 610 ; Fleetwood v. Lord, 87 Ga. 592, 13 S. E. 574 ; Robinson v. McDowell, 133 N. C. 182, 45 S. E. 545, 98 Am. St. Rep. 704; Groover, Stubbs & Co. v. Brown, 118 Ga. 491, 45 s! E. 310. In some states, however, the homestead descends to the widow or children free from all claims of creditors, and so is not a life estate, but embraces the whole interest of the owner. Parker v. Dean, 45 Miss. 408 ; Fletcher v. Bank, 37 N. H. 369 ; Plate v. 'Koehler, 8 Mo. App. 396 ; Schneider v. Hoffmann, 9 Mo. App. 280 ; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916. 182 HOMESTEADS (Ch. 9 The object of the federal homestead act is very different from the state homestead laws. The state laws provide that the home of the family shall be exempt from certain debts. The federal law provides for the acquisition of title to the public lands by actual, bona fide settlers, in order that such lands may be cultivated and improved. 60 Incidentally, the federal law also provides for certain exemptions during the acquisition. Under certain acts of Congress, 61 every head of a family, or a person twenty-one years old and a citizen of the United States^ or who has filed his declaration of intended citizenship, is, if not the owner elsewhere in the United States of one hundred and sixty acres of land, and if he has not previously obtained a federal home- stead, entitled to a quarter section, or less, of the public land. 82 Three things are necessary: 63 (1) An affidavit showing that the applicant comes under the law ; 64 (2) a formal application ; and (3) payment of the land office charges. 65 These requisites being performed, and the certificate of entry delivered to the applicant, the entry is made. 66 Thereupon actual residence upon 67 «o United States v. Richards (D. C.) 149 Fed. 443. «iRev. St. §§ 2289, 2309 (U. S. Comp. St. 1901, pp. 13S8, 1418). And see infra. «2 The federal act of 1909 (Act Feb. 19, 1909, c. 160, 35 Stat. 639 [U. S. Comp. St. Supp. 1911, p. 601]), amended 1912 (Act June 13, 1912, c. 166, 37 Stat 132), provides that a qualified entryman may enter upon 320 acres of land in certain states, providing such lands are susceptible of successful ir- rigation. 63 Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct 112, 33 L. Ed. 363. 64 A homestead entry may be made by the presentation, to the land office of the district in which the desired lands are situated, of an application prop- erly prepared on blank forms prescribed for that purpose, and sworn to be- fore either the register or the receiver, or befbre a United States commission- er, or a judge, or a clerk of a court of record, in the county or parish in which the land lies. The application must recite, among other things, that it is made honestly and in good faith to obtain a home for the applicant, and not for the benefit of any other person or corporation. Circular No. 224, Gen- eral Land Office, 1913. 6 5 These charges are five dollars for entry upon 80 acres or less, or ten dol- lars for more than 80 acres. In addition to this entry fee, commission of one dollar for each 40-acre tract entered outside the limits of a railroad grant, and two dollars for each 40-acre tract entered within such limits. This commission is charged both at time of application and at final proof. On all final proofs, the register and receiver are entitled to 15 cents for each 100 words reduced to writing. Circular No. 224, par. 41, General Land Office, 1913; Rev. St. § 2290, as amended 1891 (U. S. Comp. St. 1901, p. 1389). «6 Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363. 67 Entryman must establish residence upon the land within six months after date of entry. Circular No. 224, General Land Office, 1913. § 72) FEDERAL HOMESTEAD 183 and cultivation 6S of the land for a period of three years •• entitles the entryman to a patent. 70 The lands so acquired are not liable for any debts "contracted prior to the issuing of a patent there- for." 71 Such a homestead may, however, be mortgaged as soon as the right to a patent is complete, although the patent has not been issued ; and exemption from state taxation terminates at the same time. 72 •* Not less than one-sixteenth of the area beginning with the second year, and not less than one-eighth beginning with the third year. The Secretary of the Interior may reduce the required area of cultivation. Act June 6, 1912, c. 153, 37 Stat 123. «»Act June 6, 1912, c. 153, 37 Stat. 123. Entryman Is entitled to a con- tinuous leave of absence for a period not exceeding five ufonths In each year. Id. J" See section 2291, Rev. St. U. S., as amended June 6, 1912, 37 Stat. 123. Or he may obtain title, after fourteen months from date of entry by electing to pay the minimum price of the land. Rev. St. § 2301, amendment of 1891 (U. S. Comp. St. 1901, p. 1406). The ordinary price is $1.25 per acre, or $2.50 per acre if within the limits of certain railroad grants. Price of certain ceded Indian lands varies according to location. Clark v. Bayley, 5 Or. 343. In case of his death, the widow may thus commute. Perry v. Ashby, 5 Neb. 291 ; Jarvis v. Hoffman, 43 Cal. 314. See Rev. St. § 2307 (U. S. Comp. St. 1901, p. 1417). There are also certain exceptions as to the time required in case of persons having served in the army or navy. See Rev. St. §§ 2304, 2305, amended 1901 (U. S. Comp. St. 1901, p. 1413). ti Rev. St. U. S. 1878, § 2296. And see Dickerson v. Cuthburth, 56 Mo. App. 647; Miller v. Little, 47 Cal. 348. Both a state and a federal home- stead cannot be held exempt at the same time. Hesnard v. Plunkett, 6 S. D. 73, 60 N. W. 159. " Nycum v. McAllister, 33 Iowa, 374 ; Bellinger v. White, 5 Neb. 399 ; Axtell v. Warden, 7 Neb. 182; Carroll v. Safford, 3 How. (U. S.) 441, 11 L>. Ed. 671. And see Weare v. Johnson, 20 Colo. 363, 38 Pac. 374. 184 ESTATES LESS THAN FREEHOLD ESTATES FOB YEARS (Ch. 10 CHAPTER X ESTATES LESS THAN FREEHOLD— ESTATES FOR YEARS 73. Estates for Years. 74. Creation of Estates for Years. 75. Relation of Landlord and Tenant. 76. Commencement and Duration. 77. Leases. 78. Rights and Liabilities of Landlord and Tenant. 79. Under Implied Covenants. 80. Independent of Covenants. 81. Transfer of Estates for Years. 82. Termination of Estates for Years. ESTATES FOR YEARS 73. An estate for years is an estate created for a definite time, measured by one or more years or fractions of a year. The grantor of an estate for years is called the "lessor," or "landlord" ; the grantee is called the "lessee" or "tenant." A contract creating an estate for years is called a "lease." Estates in land less than freeholds have long been classified as of three sorts: (1) Estates for years; (2) estates at will; (3) and estates by sufferance. 1 Under the feudal system, the only interest in land that could be created was a freehold; that is, an estate at least for life. 2 In time, however, there grew up a cus- tom of granting the use of land to tenants for stipulated periods or terms. These terms were originally of but short duration, only a few years in length, and anciently a lease for a longer term than forty years was held to be void. 3 They gradually increased in length, however, until in modern times leases for ninety-nine years are not uncommon. In fact, leases for nine hundred and ninety-nine years,* and even for ten thousand years, are not un- known. 5 At common law, estates for years, no matter how long, i 2 Blk. Coram. 139. « Supra. » Co. Litt. 45b, 46a ; Theobalds v. Duffoy, 9 Mod. 101. * Illinois Starch Co. v. Hydraulic Co., 125 111. 237, 17 N. E. 486. b Cadwalader v. App, 81 Pa. 194. The statute may limit the length of leases (see, for example, Code Ala. 1907, § 3418, limiting the period to twenty years) ; but in absence of such a statute there is no limitation to the extent of a term of years for which a lease may be made. See Tayl. Landl. & Ten. (9th Ed.) §§ 73, 74. § 73) ESTATES FOE TEARS 185 are but chattel interests, and not real property.* By force of stat- ute, however, in some states, terms exceeding a certain number of years, usually three, are treated as real property for some pur- poses, as, for example, under the laws regulating the attachment and descent and distribution of property. 7 Regardless, however, of the length of the term, estates for years are of less dignity, by common law, than life estates, although a life tenant would not live as long as the designated period. As above defined, estates for years include all terms for a defi- nite, ascertained period. It may be any period of time, as any number of years, a single year, a month, or a week. 8 The word "years," as used in these estates, means merely a unit of time. The only requirement as to the term is that it must be for a defi- nite, fixed period. By statute, however, in some states, estates for years cannot be created for more than a limited number of years. 8 Although, technically speaking, a lease is a deed, 10 and although the term "lease" may be applied to instruments creating estates in fee, or for life, where a rent is reserved, 11 yet the ordinary meaning of "a lease of land" is that an estate for years in the property is granted to the lessee. 12 Moreover, although, in feudal times, a landlord was the lord or proprietor of the land, while the person who had the use and possession of the land, in return for services rendered, was the vassal, or tenant, yet, by the crea- tion and development of estates for years, the modern relation of landlord and tenant became established between the lessor and « Jeffers v. Easton, Eldridge & Co., 113 Cal. 345, 45 Pac. 680 ; Goodwin v. Goodwin, 33 Conn. 314 ; Field v. Howell, 6 Ga. 423 ; Shipley v. Smith, 162 Ind. 526, 70 N. E. 803 ; Chapman v. Gray, 15 Mass. 439 ; Brewster v. Hill, 1 N. H. 350 ; Northern Bank of Kentucky v. Roosa, 13 Ohio, 334. . i Lenow v. Fones, 48 Ark. 557, 4 S. W. 56. s Stoppelkamp v. Mangeot, 42 CaL 316 ; Brown's Adm'rs v. Bragg, 22 Ind. 122. o Infra. i» See Deeds, post, chapter XXVII. Lease Distinguished feom a Demise. — The general signification of the word "demise" is that it is a conveyance in fee for life or for years. „ It de- notes something more than a mere letting or lease — as, for instance, a grant. It would seem that it means more to the lessee than a mere letting by the landlord or the mere taking by the lessee, generally embraced in the terms "to lease" or "to let." These latter words, it would appear, can have rela- tion only to the mere term. A "demise" embraces a fee, and it seems particu- larly designed to use to impart to the agreement between a landlord and tenant implied covenants on the part of the lessor of good right and title to make the lease and an implied covenant of quiet enjoyment. Mershon v. Williams, 63 N. J. Law, 398, 44 Atl. 211. ii Warner v. Tanner, 38 Ohio St. 118. 12 Mayberry v. Johnson, 15 N. J. Law, 116. 186 ESTATES LESS THAN FREEHOLD ESTATES FOR TEARS (Ch. 10 lessee, in consideration, generally, of a certain rent in money, to be paid by such lessee or tenant. Protection of Termor's Interest Two hundred years ago, high judicial authority in England said: "The law is very different now, as to terms for years, from what it was formerly ; in ancient times there were no leases for years, but what were, for short terms, which were very lit- tle regarded ; this was the reason why, if a real action were brought against the person who had the freehold, and a recovery was there- upon had, yet the lessee for years, whose estate was precedent to the freehold, was bound by the recovery." 13 Owing to the fact that a tenant for years had no seisin, he could not protect his pos- session by the ancient writ of novel disseisin, since this remedy belonged only to a freeholder. He could, it is true, repel force by force, if one attempted to dispossess 14 him of the land ; but all the legal remedy he had when ejected was a personal action against his lessor for damages for breach of covenant. More- over, he did not have even this remedy against the lessor, unless his interest in the lands rested on a covenant by deed. It had been the, practice, however, from very early times, to grant leases by deed, and in such a case, if the lessor wrongfully ejected the lessee, the lessee had his remedy by action on the covenant, as in the case of any other covenant under seal. In the course of time, however, a new writ was introduced, which afforded the lessee a remedy against his lord, whether the lease was by deed or not, and also gave him a right to protection against ejectment by a third person. Later the writ was extended to include an additional remedy, the recovery of the possession of the land, in- stead of mere damages for the breach of the covenant. This writ was known as the "writ of ejectio firmse," which by a series of fictions, was further extended till, in the form of the action of ejectment, it became the appropriate means of asserting the right to the' possession of land, under whatever title, and took its place in modern times as the statutory substitute for all forms of real actions for the recovery of lands. The interest of the termor or iessee for years, therefore, instead of resting upon a covenant with his lessor, and enforceable only as a jus in personam against him, became a right of property, a jus in rem, which could be enforced against any wrongdoer, by a remedy analogous to that provided is Lord Chancellor Parker, in Wind v. Jekyl, 1 P. Wms. 572 (1719). And see Coke's Inst. I, 46. I* 2 P. & M. 106. § 76) COMMENCEMENT AND DUKATION 187 for a wrongful ouster of a freeholder from his possession. In this way these interests became rights of property in land. 15 CREATION OF ESTATES FOR YEARS 74. Estates for years are usually created by contract, and never by operation of law. RELATIONSHIP OF LANDLORD AND TENANT 75. The creation of such estates by contract usually gives rise to the relationship of landlord and tenant. When such a relation is created, the landlord retains an interest or resi- due known as the landlord's reversion. COMMENCEMENT AND DURATION 76. Estates for years may be created to begin in futuro, and their commencement and duration will generally depend upon the terms of the contract. As a rule, they may continue any number of years. How Created Estates for years never arise by mere operation of law, but only by some act of the parties. 18 They almost always arise by a lease, 17 although, at common law, there were three modes of cre- ating such estates, namely, by deed, by writing not under seal, and by parol. 18 The creation of an estate for years usually results, also, in the formation of the relation of landlord and tenant. lo Dig. Eeal Prop. (4th Ed.) 175 ; Holds. Hist, of Eng. Law, III, 180. ie Poppers v. Meagher, 148 111. 192, 35 N. E 805 ; Board of Sup'rs of Cass County v. Cowgill, -97 Mich. 448, 56 N. W. 849 ; Sawyer v. Hanson, 24 Me. 542 ; Loring v. Taylor, 50 Mo. App. 80. But see Roe v. Ward, 1 H. Bl. 97 ; Bishop v. Howard, 2 Barn. & C. 100 ; Skinner v. Skinner, 38 Neb. 756, 57 N. W. 534. And see, infra. it Jackson ex dem. Webber v. Harsen, 7 Conn. 323, 17 Am. Dec. 517 ; Little v. Libby, 2 Greenl. (Me.) 242, 11 Am. Dec. 68; Boone v. Stover, 66 Mo. 430; Berridge v. Glassey, 112 Pa. 442, 3 Atl. 583, 56 Am. Rep. 322. i? Smith, Land. & Ten. 60 ; Den ex dem. Mayberry v. Johnson, 15 N. J. Law, 116; Washb. Real Prop. (6th Ed.) § 617. Devise. — An estate for years may be also created by devise, and, inasmuch As such interests were regarded as mere chattels,, they were disposed of by will even prior to the time that estates in land could be devised. 2 P. & M. 115, 329. 188 ESTATES LESS THAN FREEHOLD ESTATES FOE YEABS (Ch. 10 The Relation of Landlord and Tenant The modern relation of landlord and tenant may exist in con- nection with different kinds of tenancy, s'uch as tenancies for years, from year to year, 19 at will, 20 and at sufferance. 21 Since estates for years are usually created by a lease, and give rise thereby to this relation, it should be considered at this time. This relation- ship has been well defined as one that arises by contract, either express or implied, 22 whereby one person has the possession of lands or tenements of another, in consideration of a certain rent; the tenant occupying the premises in subordination to the rights of his landlord. 23 Although a reservation of rent is usually made, yet it is well settled that the relationship may exist without a rent being reserved. 24 The fact, however, that one is in lawful possession of the land of another does not necessarily imply a relation of landlord and tenant. 26 One may, for example, be in possession as a mere lodger; 26 or as the servant, 27 or agent 28 of the owner; or under a contract to purchase; 29 or as a mort- gagee; 30 or the relationship between the parties may be that of partners, instead of landlord and tenant. 31 Whether the relation- ship of landlord and tenant exists is, in general, a question of fact. 32 The Landlord's Reversion Although the relation of landlord and tenant does not depend upon the landlord's title, 33 since one may be a lessor of lands, al- io Infra. 20 Infra. *i Infra. 22 Leonard v. Kingman, 136 Mass. 123 ; Snyder v. Carfrey, 54 Pa. 90. 23 Central Mills Co. v. Hart, 124 Mass. 123 ; Adams v. Gilchrist, 63 Mo. App. 639. a* Gillespie v. Hendren, 98 Mo. App. 622, 73 S. W. 361; Allen v. Koepsel, 77 Tex. 505, 14 S. W. 151. 26 Cummings v. Smith, 114 111. App. 35 ; Curtis v. Treat, 21 Me. 525 ; Ed- monson v. Kite, 43 Mo. 176. 26 White v. Maynard, 111 Mass. 250, 15 Am. Rep. 28; Wilson v. Martin, 1 Denio (N. Y.) 602. And see infra. 27 DAVIS v. WILLIAMS, 130 Ala. 530, 30 South. 488, 54 L. R. A. 749, 89 Am. St. Rep. 55, Burdick Cas. Real Property; Richason v. Railway Co., 150 111. App. 38; Tucker v. Burt, 152 Mich. 6S, 115 N. W. 722, 17 L. R. A. (N./S.) 510; Snedaker v. Powell, 32 Kan. 396, 4 Pac. 869; Kerrains v. People, 60 N. T. 221, 19 Am. Rep. 158. 2 8 Todhuriter v. Armstrong (1898) 6 Cal. Unrep. Cas. 27, 53 Pac. 446. 2» Green v. Dietrich, 114 111. 636, 3 N. E. 800 ; Glascock v. Robards, 14 Mo. 350, 55 Am. Dec. 108 ; Smith v. Stewart, 6 Johns. (N. T.) 46, 5 Am. Dec. 186. so See Matter of Hosley, 56 Hun, 240, 9 N. Y. Supp. 752. si Norton v. Wiswall, 26 Barb'. (N. Y.) 618. 82 McKenzie v. Sykes, 47 Mich. 294, 11 N. W. 164; Milling v. Becker, 96 Pa. 182. But see Howard v. Carpenter, 22 Md. 10; DOYLE v. RAILROAD CO., 147 TJ. S. 413, 13 Sup. Ct. 333, 37 L. Ed. 223, Burdick Cas. Real Property. 83 Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451, 69 S. E. 734; Wilcoxen v. Hybarger, 1 Ind. T. 138, 38 S. W. 669. § 76) COMMENCEMENT AND DURATION 189 though he is not the owner of the same, 84 yet the relationship of landlord and tenant implies that the lessor has always remaining in him some interest or. residue over and above the interest he has granted to his lessee. 85 This interest is known as the land- lord's reversion. Moreover, for many purposes, the possession of the tenant of the leased premises is the possession of the land- lord/ and for this reason a tenant, during his tenancy, cannot claim the land by adverse possession against his landlord. 87 Attornment of Tenant The owner of leased property may assign his reversion to a third person, 88 and it is not necessary that the tenant should con- sent to such a transfer. Moreover, the landlord's grantee will have the same rights and liabilities towards the tenant as the former owner had. 89 Under the English feudal system, however, the lord of the land could not transfer his reversion, known as his seigniory, without the consent of his vassal or tenant, since the tenant could not be compelled, against his will, to perform a tenant's duties of fealty and service to a new lord. 40 In case the tenant did consent, •he, was said to attorn " to the new lord, or grantee. By his at- tornment, therefore, the tenant became the tenant of the new owner. This early law has long since been abrogated by statute in England, 42 and was never recognized as a part of our American common law. 48 It has been held, however, in some states, that attornment is necessary in order to enable a landlord's grantee to sue for rents in his own name. 44 »* Strickland v. Styles, 107 Ga. 308, 33 S. B. 85 ; Cheever y. Pearson, 16 Pick. (Mass.) 266. as McMurphy v. Minot, 4 N. H. 251. se Raynor v. Drew, 72 Cal. 307, 13 Pac. 866 ; Pharis v. Jones, 122 Mo. 125, 26 S. W. 1032 ; Schuylkill & D. Imp. & R. Co. v. McOreary, 58 Pa. 304. 87 See infra. as Crosby v. Loop, 13 111. 625; Beal v. Car Spring Co., 125 Mass. 157, 28 Am. Rep. 216; Peterman v. Kingsley, 140 Wis. 666, 123 N. W. 137, 133 Am. St Rep. 1107. so Rising Sun Lodge y. Buck, 58 Me. 426; Hovey v. Walker, 90 Mich. 527, 51 N. W. 678. *o Co. Litt. 310b. See, also, Vigers v. St. Paul, 14 Q. B. 909. 41 From old French, atorner, to turn or transfer allegiance to another. 42 St. 4 Anne, c. 16, §§ 9, 10. 48Keay v. Goodwin, 16 Mass. 1; Jones v. Rigby, 41 Minn. 530, 43 N. W. 390; Griffin v. Barton, 22 Misc. Rep. 228, 49 N. Y. Supp. 1021. 44Marney v. Byrd, 11 Humph. (Tenn.) 95; Fisher v. Deering, 60 HI. 114. See, however, Howland v. White, 48 111. App. 236, where the former rule is changed by statute. 190 ESTATES LESS THAN FREEHOLD ESTATES FOE YEARS (Ch. 10 Commencement of Term , Although an estate of freehold cannot be created to commence •in the future, a term of years may be so granted, 46 provided the time is not postponed beyond the period allowed by the rule against perpetuities. 46 An estate of freehold cannot be so limited at common law, because freehold estates were transferred by feoffment and livery of seisin; that is, by transfer of possession. This was a present act, and livery could not be made to operate at some future time. The creation of an estate for years, to begin in futuro, does not violate this common-law rule, since the only right the tenant has is a contract right to have possession at a future time. The seisin remains in the landlord, and the tenant takes no present estate. The commencement of the term should be clearly specified in the lease. It is held sufficient, however, in case of a lease to begin in the future, if the time is so designated that it can be ascertained in the future. Thus a lease for a term of years, to begin when a certain building is erected and ready for occupancy, is good, since the time of commencement can be made certain. 47 As a general rule, the commencement of a term for years depends upon the construction of the lease, taking into con- sideration its terms and the circumstances surrounding the con- tract. 48 A lease to take effect "from" a certain day may, or may not, include such day according to the construed intention of the parties. 49 Where a lease ran from a blank date in a specified year, it was held that it would commence from the last day of such year. 60 Interesse Termini At common law, the relationship of landlord and tenant was not perfected until the tenant entered into possession of the prop- erty. Where the term is to begin in the future, the interval between the making of the lease and the entry into possession may be considerable. At any rate, the right which the tenant *o Colclough v. Carpeles, 89 Wis. 239, 61 N. W". 836; Cadell v. Palmer, 1 Clark & F. 372 ; Field v. Howell, 6 Ga. 423 ; Whitney v. Allaire, 1 N. Y. 305 ; Weld v. Traip, 14 Gray (Mass.) 330. 4« See Gomez v. Gomez, 81 Hun, 566, 31 N. T. Supp. 206. As to the rule against perpetuities, see post, chapter XVI. 47 Hammond v. Barton, 93 Wis. 183, 67 N. W. 412. iscarmichael v. Brown, 97 Ga. 486, 25 S. E. 357; Pendill v. Neuberger, 67 Mich. 562, 35 N. W. 249; Feyreisen v. Sanchez, 70 111. 105. 49 Fox v. Nathans, 32 Conn. 348; Budds v. Frey, 104 Minn. 481, 117 N. W. 158, 15 Ann. Cas. 24; I. X. L. Furniture & Carpet Installment House T. Berets, 32 Utah, 454, 91 Pac. 279. so Huffman v. McDaniel, 1 Or. 259. § 76) COMMENCEMENT AND DURATION . 191 had to enter into possession of the land when his term commenced was called, in the law Latin of the Jime, the tenant's interesse termini. In other words, it is the mere interest in a future term of years which the lessee has in distinction from a term in pos- session. 61 This interest, however, is assignable, 02 and as soon as, by the terms of the lease, the lessee is entitled to possession, he may maintain ejectment. 58 This right of entry, moreover, is hot destroyed by the death of the lessor or of the lessee. 64 A tenant, however, who neglects or fails to enter upon his term at its com- mencement, will not, for that reason, be relieved from his obliga- tion to pay rent, since that obligation rests upon his contract, and not upon the fact of entry. Duration of Term The terms of the lease will generally govern the duration of the term. 66 Cases of doubt will be construed in favor of the tenant. 66 As a rule, a lease "to" a certain day co'ntinues during the whole of such day, 67 although custom, 68 or a statute, 69 may control to the contrary. A term may also continue during the option of either of the parties, to be terminated upon notice by the party exercising the option. 80 In some states estates for years may be created for any length of time, but in a few states there are stat- utes which forbid their creation for more than limited periods, ranging from 10 to 20 years. 61 Estates for years must be so lim- 6i Co. Litt. 345 ; 2 Blk. Comm. 144, 341 ; 4 Kent, Comm. 97. »2l Wood, Landl. & Ten. (2d Ed.) 452; Soffyns' Case, 5 Coke, 123b; Wood v. Hubbell, 10 N. Y. 488. 53 Doe v. Day, 2 Q. B. Div. 156 ; Gardner v. Keteltas,. 3 Hill (N. X.) 332, 38 Am. Dec. 637 ; Trull v. Granger, 8 N. X. 115 ; Whitney v. Allaire, 1 N. X. 305, 311. 6*1 Wood, Landl. & Ten. (2d, Ed.) 452; 1 Tayl. Landl. & Ten. (8th Ed.) 14; Co. Litt. 46b. 6 6 Surles v. Milikin, 97 Ga. 485, 25 S. E. 322; Burris v. Jackson, 44 111. 345. 6« Commpnwealth v. Philadelphia County, 3 Brewst. (Pa.) 537 ; Murrell v. Lion, 30 La. Ann. 255. 6T People v. Robertson, 39 Barb. (N. X.) 9. 6 8 Germania Fire Ins. Co. v. Myers, 4 Lane. Law Rev. (Pa.) 151, holding that tenancy to a particular day expires by custom at noon of the day des- ignated. 6» Spies v. Voss (Com. PI.) 9 N. X. Supp. 532. so King v. Ransom, 86 Wis. 496, 56 N. W. 1084. Cf. Clifford v. Gressinger, 96 G^. 789, 22 S. E. 399. And see, as to privilege of renewal, Pearce v. Turner, 150 111. 116, 36 N. E. 962 ; Robinson v. Beard, 140 N. X. 107, 35 N. E. 441 ; Bullock v. Grinstead, 95 Ky. 261, 24 S. W. 867 ; Hughes v. Windpfen- nig, 10 Ind. App. 122, 37 N. E. 432; Dix v. Atkins, 130 Mass. 171; Anderson v. Critcher, 11 GUI & J. (Md.) 450, 37 Am. Dec. 72. 8i 1 Stim. Am. St. Law, § 1341. In many states, leases for more than a certain number of years must be recorded. 1 Stim. Am. St. Law, § 1624. 192 ESTATES. LESS THAN FREEHOLD— ESTATES FOB YEARS (Ch. 10 ited, however, that they will terminate at a definite time, or at a time which can be made certain. 62 However, a condition by which the estate may. be determined before the expiration of the time for which it is limited does not make it invalid. For instance, a demise to a man for ninety-nine years, if he lives so long, is good. 63 LEASES 77. No particular words are required in order to create a lease. The intention of the parties is the test. The parties must be competent to enter into the contract. At common law a lease may be made by parol. The statutes, however, require, leases to be made in writing if the term is for a longer time than a period specified by the statutes. As previously stated, the contract creating a term for years, or any other tenancy existing between the landlord and tenant, is called a "lease." No particular words are necessary, and the word "lease" need not be used. Any words that express the agreement of the parties will be sufficient, if the meaning is clear. 64 The usual words that have long been used, however, for the creation of a present lease of a term for years are "lease," "demise," and "farm let." 6B A written lease usually contains the date, names -of the par- ties, the consideration, the description of the premises, and also the covenants and conditions, if any. Distinguished from an Agreement for a Lease The distinction, however, between a lease and an agreement for a lease should be noted. Where this question is in doubt, the test And see Toupin v. Peabody, 162 Mass. 473, 39 N. B. 280. An estate for years may be for a single year, or even a less period. Brown's Adm'rs v. Bragg, 22 Ind. 122. ea Murray v. Cherrington, 99 Mass. 229; Horner v. Leeds, 25 N. J. Law, 106; Cargar v. Fee, 140 Ind. 572, 39 N. E. 93; Goodright v. Bichardson, 3 Term B. 462. For the method of computing time under a lease, see Atkins v. Sleeper, 7 Allen (Mass.) 487 ; Deyo v. Bleakley, 24 Barb. (N. T.) 9 ; Sheets v. Seldon, 2 Wall. (U. S.) 177, 17 L. Ed. 822. 63 1 Tayl. Landl. & Ten. (8th Ed.) 86. And see Lacey v. Newcomb, 95 Iowa, 287, 63 N. W. 704. 64 Alcorn v. Morgan, 77 Ind. 184; Doe v. Bies, 8 Bihg. 178; Eoe v. Ashburn- er, 5 Term B. 163; Jackson ex dem. Bulkley v. Delacroix, 2 Wend. (N. T.) 433; Watson v. O'Hern, 6 Watts (Pa.) 362; Moore v. Miller, 8 Pa.' 272; Moshier v. Beding, 12 Me. 478 ; Smith v. Hubert, 83 Hun, 503, 31 N. Y. Supp. 1076. A lease of "a building" is a lease of the land on which it stands. Lan- pher v. Glenn, 37 Minn. 4, 33 N. W. 10. eo2 Blk. Comm. 317, 318; Averill v. Taylor, 8 N. Y. 44; Wright v. Treve- Bant, 3 Car. & P. 441 ; Doe v. Benjamin, 9 Adol. & E. 644. § 77) LEASES 193 in all cases is the intention of the parties." The distinction is important, because a written lease, fully executed, cannot be va- ried by parol, while, if it is only a contract for lease, omitted terms and conditions may be supplied, according to the intention of the parties. 87 Moreover, under a lease the lessee has an actual interest in the land, while in case of a mere agreement for a lease he has merely a right to a lease, a right to have a contract executed, for the breach of which he has merely an action for damages. 68 As a rule, if the instrument contains words of present demise, such as "lets," "hereby lets," and even "agrees to let," eo it will be deemed a lease in praesenti, instead of an agreement for a lease in futuro, unless the instrument as a whole shows a contrary in- tention. 70 Moreover, in general, if the agreement contains all the requisites of a lease, leaving nothing incomplete, it. will operate as a present lease. 71 A lease should also be distinguished from a license. Under a lease, a tenant is entitled to the possession of the property, while a license merely gives the licensee a right to use the property in a certain way, the possession remaining with the owner. Who may Make a Lease "Any person who by law may hold real estate, and who is under no legal disability, may make a lease of lands that accords with his estate or interest therein. 72 Leases by, and to, infants, 73 lunatics, and intoxicated persons, are voidable, rather than void. 74 At common law, leases by a married woman of her lands are eeGoodtitle v. Way, 1 Term R. 735; Bacon v. Bowdoin, 22 Pick. (Mass.) 401 ; Western Boot & Shoe Go. v. Gannon, 50 Mo. App. 642 ; Poole v. Bentley, 12 East, 168 ; Arnold v. R. Rothschild's Sons Co., 164 N. Y. 562, 58 N. E. 1085 ; Hinckley v. Guyon, 172 Mass. 412, 52 N. E. 523; Martin v. Davis, 96 Iowa, 718, 65 N. W. 1001. «' 1 Washb. Real Prop. (5th Ed.) 483 ; McFarlane v. Williams, 107 111. 33. «s Pittsburgh Amusement Co. v. Ferguson, 100 App. Div. 453, 91 N. T. Supp. 666 ; Sausser v. Steinmetz, 88 Pa. 324. But see Eaton v. Whitaker, 18 Conn. 222, 44, Am. Dec. 586, where specific performance was decreed. 89 Doe v. Benjamin, 9 Ad. & El. 644. to Merki v. Merki, 212 111. 121, 72 N. E. 9; Shaw y. Farnsworth, 108 Mass. 357 ; Averill v. Taylor, 8 N. Y. 44. 71 Does v. Ries, 8 Bing. 178. 72 1 Wood, Landl. & Ten. (2d Ed.) § 80. 73 Clark, Cont. 210; Field v. Herrick, 101 111. 110; Grifiith v. Schwender- man, 27 Mo. 412. 74 1 Tayl. Landl. & Ten. (8th Ed.) 107; I Wood, Landl. & Ten. (2d Ed.) 228. Cf. Nichol v. Thomas, 53 Ind. 42. But when the lunatic is under guardianship his leases are void. See Elston v. Jasper, 45 Tex. 409. And see Van Deusen v. Sweet, 51 N. X. 378. Burd.Reai. Prop. — 13 194 ESTATES LESS THAN FREEHOLD ESTATES FOB YEARS (CK. 10 void, 75 the husband having the sole power to lease such lands. 78 , Moreover, although, even at common law, a lease may be made by a third person to a married woman, subject to the husband's rights of property therein, 77 it is only where she has the ability to make contracts that she can bind herself to pay rent for the same. 78 As now changed by statute, however, a married woman, by virtue of her general contractual powers, or by reason of her right to make contracts in relation to her separate estate, may be able to make a valid lease, under the statutory requirements, if any, as to her husband's consent or joinder. 79 Leases may be made by agents, 80 guardians, 81 executors to whom land is devis- ed, 82 and trustees. Where, however, the beneficiary of the trust does not join, a lessee, who has notice of the trust, will also hold as a trustee. 83 As -a rule, the lessor must be in possession of the property at the time the lease is made. No lease of land is valid where the lessor has been disseised, and the land is held adverse- ly. 84 Tenants for life, as in , dower, by curtesy, and pur autre vie, can make demises of the land which are valid until the ter- mination of the life estate. 86 Likewise joint tenants, 80 tenants in common, 87 and coparceners 88 can lease their undivided portions without the consent of the co-owners. 88 Leases made by. a mort- ™ 1 Wood, Landl. & Ten. (2d Ed.) 216; 1 Tayl. Landl. & Ten. (8th Ed.) Ill; Murray v. Emmons, 19 N. H. 483. 7 6 Allen v. Hooper, 50 Me. 371 ; Eoss v. Adams, 28 N. J. Law, 160; Andriot v. Lawrence, 33 Barb. (N. Y.) 142. "Cruzen v. McKaig, 57 Md. 454; Baxter v. Smith, 6 Bin. (Pa.) 427. 7 8 Morrison v. Price, 130 Ky. 139, 112 S. W. 1090; Worthington v. Cook, 52 Md. 297; Vanderberg v. Gas Co., 126 Mo. App. 600, 105 S. W. 17. '9 Parent v. Callerand, 64 111. 97; Pearcy v. Henley, 82 Ind. 129; Voss v. Sylvester, 203 Mass. 233, 89 N. E. 241 ; Vandevoort v. Gould, 36 N. Y. 639. so 1 Tayl. Landl. & Ten. (8th Ed.) 148; 1 Wood, Landl. & Ten. (2d Ed.) 267. si Hughes' Minors' Appeal, 53 Pa. 500; Hicks v. Chapman, 10 Allen (Mass.) 463. Leases by guardians must not be for an unreasonable length of time, as beyond the minority of the ward. Ross v. Gill, 4 Call (Va.) 250 ; Van Doren v. Everitt, 5 N. J. Law, 460, 8 Am. Dec. 615. 82 l Wood, Landl. & Ten. (2d Ed.) 238; 1 Tayl. Landl. & Ten. (8th ES.) 144.. 8 3 l Wood, Landl. & Ten. (2d Ed.) 312; 1 Tayl. Landl. & Ten. (8th Ed.) 141. si 1 Tayl. Landl. & Ten. (8th Ed.) 96; 1 Wood, Landl. & Ten. (2d Ed.) 325. so 1 Tayl. Landl. & Ten. (8th Ed.) 122; Mclntyre v. Clark, 6 Misc. Rep. 377, 26 N. Y. Supp. 744 ; Sykes v. Benton, 90 Ga. 402, 17 S. E. 1002 ; Coakley v. Chamberlain, 1 Sweeny (N. Y.) 676. so See post, chapter XII. 87 See post, chapter XII. ' 8« See post, chapter XII. 8» 1 Tayl. Landl. & Ten. (8th Ed.) 123. Cf. Tainter v. Cole, 120 Mass. 162. And see Grabfelder v. Gazetti (Tex. Civ. App.) 26 S. W. 436. § 77) LEASES 195 gagor prior to the mortgage are valid against the mortgagee, 80 but not if subsequent to the execution of the mortgage, where the mortgagee does not join. 91 Must be in Writing When At common law, an estate for years could be created by parol. 02 By the English statute of frauds, passed in 1676, 93 all leases of lands, tenements, or hereditaments were required to be in writing and signed by the parties making the same, or by their duly au- thorized agents. This statute also provided that leases not in writing should have the force and effect of leases at will only. 94 The statute expressly excepted, however, from its provisions leases not exceeding three years from the making. 05 The provisions of the English statute have been copied, more or less literally, in all our American states ; 9B the excepted term varying, how- ever, all the way from one year to seven. 07 In some states, however, no exception for a short term is made, and all leases for 1 a term of years must be in writing; verbal leases creating merely tenancies at will. 98 Some 1 of the American statutes follow the English model in providing that the excepted period shall be reckoned "from the making" of the lease, and this is the general rule followed in computing the time for a valid parol lease. Where, however, the statute provides that a parol lease for more than one year "from the time of entry" shall be void, a parol lease for a year to begin at some future date, would be good. In any case, however, the statute of the particular state should be consulted. Although, at law, under the statute of frauds, a verbal agree- so 1 Tayl. Landl. & Ten. (8th Ed.) 129; Moss v. Gallimore, 1 Doug. 279; Rogers v. Humphreys, 4 Adol. & E. 299. »i 1 Tayl. Landl. & Ten. (Sth Ed.) 128; 1 Wood, Landl. & Ten. (2d Ed.) 254. »2Hisey v. Troutman, 84 Ind. .115; Bakker v. Fellows, 153 Mich. 428, 117 N. W. 52; Young v. Dake, 5 N. Y. 463, 55 Am. Dec. 356; 1 Tayl. Landl. & Ten. § 27. 9 3 29 Car. II, c. 3. 94 Section 1. 9 5 Section 2. 96 Elliott v. Bankston, 159 Ala. 462, 49 South. 76; Creighton v. Sanders, 89 111. 543 ; Ragsdale v. Lander, 80 Ky. 61, 3 Ky. Law Rep. 562 ; Miles v. Jan- vrin, 200 Mass. 514, 86 N. E. 785 ; Barrett v. Cox, 112 Mich. 220, 70 N. W. 446 ; Wilder v. Stace, 61 Hun, 233, 15 N. Y. Supp." 870 ;' Gladwell v. Holcomb, 60 Ohio St. 427, 54 N. E. 473, 71 Am. St. Rep. 724 ; Sausser v. Steinmetz, 8S Pa. 324. In Louisiana a lease may be made either orally or In writing. 97 One year in most states; two years in Florida; three in Indiana, New Jersey, and Pennsylvania; five in Virginia; and seven in Maryland.' 9s So in Maine, Massachusetts, Missouri, New Hampshire, New Mexico, Ohio, Vermont, Washington, unless changed by recent statute. See MATH- EWS v. CARLTON, 189 Mass. 285, 75 N. E. 637, Burdick Cas. Real Property. 1D6 ESTATES LESS THAN FREEHOLD ESTATES FOR TEARS (Ch. 10 ment to give a lease may be void, yet equity may decree specific performance where there has been substantial performance, es- pecially where the tenant has entered and made valuable im- provements." Moreover, an action will lie for the use and occu- pation of premises entered upon and retained by a tenant under an oral lease, 1 and some cases' even hold that such a tenant will be liable for the entire term. 2 It is the general rule, however, that neither oral leases nor oral assignments of leases are valid, at law, against a lessor, by reason of possession and payment by a lessee, 3 although some cases hold that possession, coupled with valuable improvements made by the lessee, will take the lease out of the statute of frauds. 4 In addition to section 1 of the English, statute of frauds, which provides that all leases (excepting terms not exceeding thre6 years), and other estates and interests in real property, shall "have the effect of leases at will only, unless put in writing; another section of the same, statute 6 (also generally copied by the statutes of this country) provides that no action shall be brought upon any oral agreement not to be- performed within one year from the making thereof. In some states this section of the statute is held to apply to parol leases for a year or more; it being held that such leases are unenforceable. 6 In other states, however, it is held that this section of the statute has no application what- ever to oral agreements to lease real property. 7 In the states »s Browder v. Phinney, 30 Wash. 74, 70 Pac. 264; Ladd v. Brown, 94 Mich. 136, 53 »N. W. 1048 ; Mortimer v. Orchard, 2 Ves. 243 ; Butcher v. Stapley, 1 Vern. 363 ; Bonaparte v. Thayer, 95 Md. 548, 52 Atl. 496 ; Nunn v. Fabian, L. R. 1 Ch. 35 ; Grant v. Ramsey, 7 Ohio St 165 ; Jackson ex dem. Smith- v. Pierce, 2 Johns. (N. T.) 221 ; Walker v. Walker, 2 Atk. 98. i Warner v. Hale, 65 111. 395 ; Moore v. Beasley, 3 Ohio, 294. 2 Rosser v. Harris, 48 Ga. 512; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938; Edwards v. Spalding, 20 Mont. 54, 49 Pac. 443 ; Sorrells v. Goldberg, 34 Tex. Civ. App. 265, 78 S. W. 711. a Cochran v. Ward, 5 Ind. App. 89, 29 N. B. 795, 31 N. E. 581, 51 Am. St. Rep. 229 ; O'Leary v. Delaney, 63 Me. 584 ; Nally v. Reading, 107 Mo. 350, 17 S. W. 978. But see Browder v. Phinney, 30 Wash. 74, 70 Pac. 264. * Bard v. Elston, 31 Kan. 274, 1 Pac. 565 ; Deisher v. Stein, 34 Kan. 39, 7 Pac. 608. s Section 4. « Simons v. Trust Co., 80 Conn. 263, 67 Atl. 883, 11 Ann. Cas. 477 ; Wheeler v. Frankenthal, 78 111. 124 ; Wolf v. Dozer, 22 Kan. 436 ; Delano v. Montague, 4 Cush. (Mass.) 42; Ray v. Blackman, 120 Mo. App. 497, 97 S. W. 212; Czermak v. Wetzel, 114 App. Div. 816, 100 N. T. Supp. 167. t Steininger v. Williams, 63 Ga. 475 ; Worley v. Sipe, 111 Ind. 238, 12 N. E. 385 ; Rooks v. Booth, 160 Mich. 62, 125 N. W. 69 ; Ward v. Hasbrouck, 169 N. Y. 407, 62 N. E. 434 ; Stem v. Nysonger, 69 Iowa, 512, 29 N. W. 433. § 77) LEASES 197 "where the section in question is held applicable to leases, some cases have held that a part performance of the agreement, as evi- denced, for example, by the payment of rent and the making of improvements, will take the oral agreement from the operation of the statute. 8 In other states of the same class, however, this doctrine as to part performance is rejected. 8 Execution and Delivery A written lease must be signed, 10 and delivered to the lessee. 11 Whether or not a seal is required will depend upon the jurisdic- tion, since some statutes require a "deed" for leases for more than a specified term, 12 and, under the statute of frauds, the writing requir- ed is not the same thing as a deed. 18 The English Real Property Act of 1845 provides, however, that a lease required by law to be in writing shall . be void unless made by deed. Consequently, in England, a lease for a term longer than three years from its date must be under seal. 14 Also, in Delaware, under a statute provid- ing that no lease of lands for a longer term than one year shall be valid, except as evidenced by a deed, it is held that a lease for a term of five years, if not sealed, is of no validity except as a lease from year to year. 16 » Wallace v. Scoggins, 18 Or. 502, 21 Pac. 558, 17 Am. St. Rep. 749 ; Stein- inger v. Williams, 63 Ga. 475 ; Steel v. Payne, 42 Ga. 207. o Warner v. Hale, 65 111. 395. io Fleming v. King, 100 Ga. 449, 28 S. B. 239; Rice v. Brown, 81 Me. 56, 16 Atl. 334 ; Clemens v. Broomfield, 19 Mo. 118 ; Kuntz v. Mahrenholz (Sup.) 88 N. T. Supp. 1002; Winslow v. Railroad Co., 188 U. S. 646, 23 Sup. Ct. 443, 47 L. „Ed. 635. nOneto v. Restano, 89 Cal. 63, 26 Pac. 788; Reynolds v. Greenbaum, 80 111. 416 ; Rhone v. Gale, 12 Minn. 54 (Gil. 25) ; Witman v. Reading, 191 Pa. 134, 43 Atl. 140. 12 See 1 Stim. Am. St. Law, § 1471. And see Bratt v. Bratt, 21 Md. 578. But cf ., as to the other terms, Doe v. Bell, 5 Term R. 471 ; Doe v. Stratton, 4 Bing. 446; Richardson v. Gifford, 1 Adol. & E. 52. In the absence of such a deed, the lessee is tenant from year to year. Clayton v. Blakey, 8 Term R. 3. is See Oliver v. Insurance Co. (1887) 82 Ala. 417, 2 South. 445, holding that a note for rent given by a lessee under a parol lease is, with letters referring to it, a sufficient memorandum in writing to take the lease out of the statute as against the lessee. i* Laws of England, vol. 18, p. 384. is Stewart v. Apel, 5 Houst. (Del.) 189; Id., 4 Houst. (Del.) 314. 198 ESTATES LESS THAN FREEHOLD ESTATES FOE TEARS (Ch. 10 RIGHTS AND LIABILITIES OF LANDLORD AND TENANT 78. The rights and liabilities of landlord and tenant may, for con- venience of treatment, be divided into three classes: (a) Rights under express covenants. (b) Rights under implied covenants. (c) Rights independent of covenants. RIGHTS UNDER EXPRESS COVENANTS— By express covenants the parties may vary their rights and liabil- ities almost at will. Express covenants are either: (a) Personal; or (b) Such as run with the land. / Covenants Covenants are express or implied. An express covenant is one that is explicitly stated in words. 16 An implied covenant is one that is inferred or imputed in law from the words used. 17 Black- stone defines a covenant as an agreement in a deed whereby either party stipulates for the truth of certain facts, or binds himself to perform something for the other. 1 * Since a deed requires, at com- mon law, a seal, 19 an express covenant has been defined as an agreement under seal. 20 The same term, however, is used in those states where seals are abolished. The most usual covenants by the lessor are for quiet enjoyment, 21 against incumbrances, 22 to repair, 23 and to renew the lease. 24 The lessee generally covenants i« Anderson, Law Diet " 2 Blk. Comm. 304; 3 Blk. Comm. 155. 17 Id- i» See Deeds, post. 20 1 Tayl. Landl. & Ten. (8th Ed.) 2, 94. 2» Shelton v. Codman, 3 Cush. (Mass.) 318; Markland v. Crump, 18 N. C. 94, 27 Am. Dec. 230 ; Suydam v. Jones, 10 Wend. (N. Y.) 180, 25 Am. Dee. 552 ; Hunt v. Arnidon, 4 Hill (N. T.) 345, 40 Am. Dee. 2S3 ; Friedland v. Myers, 139 N. T. 432, 34 N. E. 1055 ; Campbell v. Lewis, 3 Barn. & Aid. 392. Cf . Hoch- enauer v. Hilderbrant, 6 Colo. App. 199, 40 Pac. 470 ; Sheets v. Joyner, 11 Ind. App. 205, 38 N. E. 830. 22 Ober v. Brooks, 162 Mass. 102, 38 N. E. 429; Sprague v. Baker, 17 Mass. 580 ; Gilbert v. Bulkley, 5 Conn. 262, 13 Am. Dec. 57 ; Pillsbury v. Mitchell, 5 Wis. 17 ; Redwine v. Brown, 10 Ga. 311. 23 John Morris Co. v. South worth, 154 111. 118, 39 N. E. 1099; Thompson- Houston Electric Co. of New York v. Improvement Co., 144 N. Y. 34, 39 N. E. 7 ; Clapper v. Kells, 78 Hun, 34, 28 N. Y. Supp. 1018 ; Dunn v. Bobbins, G5 Hun, 625, 20 N. Y. Supp. -341 ; Clifton v. Montague, 40 W. Va. 207, 21 S. E. 858, 33 L. R. A. 449, 52 Am. St Rep. S72 ; Mumf ord v. Brown, 6 Cow. (N. Y.) 475, 10 Am. Dec. 440; Post v. Vetter, 2 E. D. Smith (N. Y.) 248; Benja- 24 See note 24 on following page. § 78) EIGHTS AND LIABILITIES OF LANDLORD AND TENANT 199 to pay rent, 20 to insure, 20 and not to assign, 27 or underlet. 28 The parties may agree, of course, to do or to perform any other lawful thing in connection with the leasing of the premises. 29 For ex- ample, covenants are sometimes inserted binding the tenant to repair, 80 to reside on the premises, 81 not to engage in certain trades, 82 to build in. a prescribed manner, 83 or, if a farm lease, to cultivate in a certain way. 84 No precise or technical language is required to constitute a covenant, since any words that amount to an agreement will be sufficient. 85 Upon a breach of a cove- nant, a cause of action accrues for all damages sustained by rea- son of the breach. 86 min v. Heeney, 51 111. 492. The landlord must be notified that repairs are needed. Ploen v. Staff, 9 Mo. App. 309 ; Walker v. Gilbert, 2 Rob. (N. Y.) 214 ; Wolcott v. Sullivan, 6 Paige (N. T.) 117. 2* Piggot v. Mason, 1 Paige (N. Y.) 412; Renoud v. Daskam, 34 Conn. 512; Blackmore v. Boardman, 28 Mo. 420; Kolasky v. Michels, 120 N. Y. 635, 24 N. E. 278. A covenant for perpetual renewal is good.' Blackmore v. Board- man, 28 Mo. 420. But see Western Transp. Co. of City of Buffalo v. Lansing, 49 N. Y. 499. 20 Hurst v. Rodney, 1 Wash. C. C. 375, Fed. Cas. No. 6,937 ; Main v. Feath- ers, 21 Barb. (N. Y.) 646; Jacques v. Short, 20 Barb. (N. Y.) 269; Demarest v. Willard, 8 Cow. (N. Y.) 206; Thomson-Houston Electric Co. v. Improve- ment Co., 144 N. Y. 34, 39 N. E. 7. 28 Vernon v. Smith, 5 Barn. & Aid. 1 ; Doe v. Peck, 1 Barn. & Adol. 428 ; Thomas' Adm'r v. Von Kapff's Ex'rs, 6 Gill & J. (Md.) 372. 27 Williams v. Earle, 9 Best & S. 740; Matthews v. Whitaker (Tex. Civ. App.) 23 S. W. 538. 28 Kew v. Trainor, 150 111. 150, 37 N. E. 223. 2» See Postal Telegraph Cable Co. v. Telegraph Co., 155 111. 335, 40 N. E. 587 ; Keating v. Springer, 146 111. 481, 34 N. E. 805, 22 L. R. A. 544, 37 Am. St Rep. 175; Pewaukee Milling Co. v. Howitt, 86 Wis. 270, 56 N. W. 784; Leydecker v. Brintnall, 158 Mass. 292, 33 N. E 399; McManus v. Clothing Co., 60 Mo. App. 216, 1 Mo. App. Rep'r, 73; Cargill v. Thompson, 57 Minn. 534, 59 N. W. 638. so Scott v. Brick Co., 135 N. Y. 141, 31 N. E. 1102. Cf. Standen v. Chris- mas, 10 Q. B. Div. 135. But see 1 Stim. Am. St. Law, § 2045. The covenant to repair is always implied. ^ si Tatem v. Chaplin, 2 H. Bl. 133. 82 Miller v. Prescott, 163 Mass. 12, 39 N. E. 409, 47 Am. St. Rep. 434. And see Kugel v. Painter, 166 Pa. 592, 31 Atl. 338 ; Round Lake Ass'n v. Kellogg, 141 N. Y. 348, 36 N. E. 326. ' 83 Cittf of New York v. Insurance Co., 41 Barb. (N. Y.) 231 ; City of New York v. Insurance Co., 10 Bosw. (N. Y.) 537. 84 Cockson v. Cock, Cro. Jac. 125. See, also, Callan v. McDaniel, 72 Ala. 96. 8 5 Lovering v. Lovering, 13 N. H. 513. It may be in the form of a condi- tion. Surplice v. Farnsworth, 7 Man. & G. 576. Or an exception. Russel v. Gulwel, Cro. Eliz. 657; South Congregational Meeting House in Lowell v. Hilton, 11 Gray (Mass.) 407. Or a recital. Penn v. Preston, 2 Rawle (Pa.) 14 ; Vaughan v. Matlock, 23 Ark. 9. se Miller v. Benton, 55 Conn. 529, 13 Atl. 678; Cole v. Hardware Co., 139 200 ESTATES LESS THAN FREEHOLD ESTATES FOE TEARS (Ch. 10 Quiet Enjoyment The landlord's covenant for quiet enjoyment binds him to se- cure the tenant against any hindrance or disturbance of his pos- session and enjoyment of the premises either on the part of the persons deriving their title from the landlord, or from a par- amount title. 87 There must be an eviction of the tenant, but the eviction may be either actual 8S or constructive. 39 A tenant may be constructively evicted when the acts of the landlord, either of commission or omission, make the occupation of the premises practically impossible. 40 A failure of the landlord's title,' however, unless followed by an ouster, will not constitute a breach of this covenant, 41 and an eviction, to have the effect of a breach, must be under a legal title. 42 The landlord does not covenant, under this contract, against trespassing or other wrongful disturbance by strangers. 48 Iowa, 487, 117 N. W. 746, 18 L. R. A. (N. S.) 1161, 16 Ann. Cas. 846 ; Kalkhoff v. Nelson, 60 Minn. 284, 62 N. W. 332 ; Levy v. Roosevelt, 131 App. Div. 8, 115 N. T. Supp. 475 ; Gibson v. Oliver, 158 Pa. 277, 27 Atl. 961. 8T Ellis v. Welch, 6 Mass. 246, 4 Am. Dec. 122 ; Jackson v. Paterno, 58 Misc. Rep. 201, 108 N. Y. Supp. 1073 ; Blodgett v. Jensen, 2 Neb. Unof. 543, 89 N. W. 399 ; Pabst Brewing Co. v. Thorley, 127 Fed. 439. ss The common-law rule was that the eviction must be an actual one. St. John v. Palmer, 5 Hill (N. Y.) 599; Kerr v. Shaw, 13 Johns. (N. Y.) 236; Schuylkill & D. Imp. & R. Co. v. Schmoele, 57 Pa. 271. as McDowell v. Hyman, 117 CaL 67, 48 Pac. 984; Berrington v. Casey, 78 111. -317; Boyer v. Investment Co., 110 Iowa, 491, 81 N. W. 720; Brown v. Water-Power Co., 152 Mass. 463, 25 N. E. 966, 23 Am. St. Rep. 844; City of New York v. Mabie, 13 N. Y. 151, 64 Am. Dec. 538 ; Tucker v. Du Puy, 210 Pa. 461, 60 Atl. 4. 40 Leadbeater v. Roth, 25 111. 587 ; Harford v. Taylor, 181 Mass. 266, 63 N. E. 902; Feist v. Peters (Sup.) 120 N. Y. Supp. 805; Oakford v. Nixon, 177 Pa. 76, 35 Atl. 588, 34 L. R. A. 575 ; Silber v. Larkin, 94 Wis. 9, 68 N. W. 406. « 1 Tayl. Landl. & Ten. (8th Ed.) 355; 1 Wood, Landl. & Ten. (2d Ed.) 771; Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376; Stanard v. Eldridge, 16 Johns. (N. Y.) 254 ; Mills v. Sampsel, 53 Mo. 360. Even a recovery in eject- ment is no breach, unless it is followed by an ouster. Kerr v. Shaw, 13 Johns. (N. Y.) 236. 42 Morse v. Goddard, 13 Mete. (Mass.) 177, 46 Am. Dec. 728; Ross v. Dysart, 33 Pa. 452; Moore v. Weber, 71 Pa. 429, 10 Am. Rep. 708; Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 506. *3 Kiernan v. Music Co., 229 111. 494, 82 N. E. 410 ; Cornell-Andrews Smelting Co. v. R. Corp., 202 Mass. 585, S9 N. E. 118 ; Loughran v. Ross, 45 N. Y. 792, 6 Am. Rep. 173. A mere trespass by the lessor would not be a breach, as it is not an eviction. City of New York v. Mabie, 13 N. Y. 151, 64 Am. Dec. 538 ; Hayner v. Smith, 63 111. 430, 14 Am. Rep. 124 ; Avery v. Dougherty, 102 Ind. 443, 2 N. E. 123, 52 Am. Rep. 680. But see Bennet v. Bittle, 4 Rawle (Pa.) 339. § 78) EIGHTS AND LIABILITIES OF LANDLORD AND TENANT 201 Incumbrances — Repairs The lessor may expressly covenant against incumbrances; that is, that no third persons have any easements or other rights in the premises which will disturb, or interfere with, the tenant's exclusive right of possession.* 4 In the absence of such an express covenant, the tenant takes the property subject to whatever serv- itudes or other incumbrances may burden the property at the time of the lease. 46 Concerning repairs, the general rule is that a land- lord is under no obligation to make them, in absence of a statute, or of an express agreement on his part. 46 He may, however, bind himself to make repairs, 47 although such covenants will not by construction 'be extended beyond their fair intent. 48 In some states, there are statutes requiring lessors, particularly in the leas- ing of dwelling houses, to keep the premises in ordinary repair, in absence of any express agreement to the contrary. 49 Where a building is leased, however, to various tenants, who use in com- mon a hallway, stairway, elevator, or other common parts of the premises under the control of the landlord, he will, by weight of authority, be liable for injuries received from his neglect to make necessary repairs in such common entrances, even though he has made no agreement to do so. 00 "Woodburn v. Renshaw, 32 Mo. 197; McManus v. Clothing Co., 60 Mo. App. 216. "Hobson v. Silva (1902) 137 Cal. xix, 70 Pac. 619; Thompson v. Flathers, 45 La. Ann. 120, 12 South. 245. *s Gallagher v. Button, 73 Conn. 172, 46 Atl. 819; Cromwell y. Allen, 151 111. App. 404; Voss v. Sylvester, 203 Mass. 233, 89 N. E. 241; Sawyer v. Adams, 140 App. Div. 756, 126 N. Y. Supp. 128; Medary v. Cathers, 161 Pa. 87, 28 Atl. 1012. v ■" Culver v. Hill, 68 Ala. 66, 44 Am. Rep. 134 ; Neglia v. Lielouka, 32 Misc. Rep. 707, 65 N. Y. Supp. 500; Rife v. Reynolds, 137 Mo. App. 290, 117 S. W. 652. 48Cowell v. Lumley, 39 Cal. 151, 2 Am. Rep. 430; Vale v. Trader, 5 Kan. App, 307, 48 Pac. 458 ; Bennett v. Sullivan, 100 Me. 118, 60 Atl. 886 ; Zbarazer Realty Co. v. Brandstein, 61 Misc. Rep.' 623, 113 N. Y. Supp. 1078 ; Clark v. Babcock, 23 Mich. 164 ; Hollidaysburg Male & Female Seminary Co. v. Gray, 45 Pa. Super. Ct. 426. 4» Dougherty v. Taylor & Norton Co., 5 Ga. App. 773, 63 S. E. 928; Edmison v. Aslesen, 4 Dak.. 145, 27 N. W. 82; Landt v. Schneider, 31 Mont. 15, 77 Pac. 307 ; Torreson v. Walla, 11 N. D. 481, 92 N. W. 834 ; Tucker v. Bennett, 15 Okl. 187, SI Pac. 423. soFairmount Lodge No. 590, A. F. & A. M., v. Tilton, 122 111. App. 636; Watkins v. Goodall, 138 Mass. 533; Olson v. Schultz, 67 Minn. 494, 70 N. W. 779, 36 L. R. A. 790, 64 Am. St. Rep. 437 ; Peters v. Kelly, 129 App. Div. 290, 113 N. Y. Supp. 357 ; Lewin v. Pauli, 19 Pa. Super. Ct. 447. 202 ESTATES LESS THAN FREEHOLD ESTATES FOR JEARS (Ctl. 10 Assigning and Subletting In the absence of an express covenant to the contrary, the lessee of a term for years may assign, 51 or sublet B2 his term, unless some statute prevents. 53 An assignment is tc be distinguished, however, from a subletting. In an assignment, the tenant transfers his entire term, retaining no reversionary interest. 54 A subletting occurs when a tenant leases any part of his term less than the whole. 55 " For example, if a tenant for a term of five years sublets to another person for a term of one year, or for any length of time less than the entire five years, the transfer is a subletting, and not an assignment. It consequently follows that a covenant not to assign is not broken by a subletting, 56 and it is also held that a covenant not to sublet is not broken by an assignment. 67 Real and Personal Covenants Covenants are either real or personal. A real covenant is one that "runs with the land," or, in other words, is binding upon the assignee, the burden passing with the land to every one to whom the term is from time- to time assigned. 58 In the same manner, the benefits of covenants relating to the land, entered into by the lessor, will pass to the assignee. 59 Covenants that run with the land cannot be separated from the land and transferred with- out it, but they go with the land, as being annexed to the estate, and bind the parties in respect to the privity of the estate. 60 They bi Garner v. Byard, 23 Ga. 289, 68 Am. Dec. 527 ; Gillespie v. Gas Co., 236 111. 188, 86 N. E. 219; Lynch v. Hotel Co. (Sup.) 112 N. Y. Supp. 915; Phila : delphia & E. R. Co. v. Railroad Co., 53 Pa. 20; Cooney v. Hayes, 40 Vt 478, 94 Am. Dec. 425. caMaddox v. Westcott, 156 Ala. 492, 47 South. 170, 16 Ann. Cas. 604; Martin v. Sexton, 112 111. App. 199; Weatherly v. Baker, 25 La. Ann. 229; Schenkel v. Lischinsky, 45 Misc. Rep. 423, 90 N. Y. Supp. 300. es Bass v. West, 110 Ga. 698, 36 S. E. 244; Gano v. Prindle, 6 Kan. App. 851, 50 Pac. 110; Pierce, Ceugin & Co. v. Meadows (Ky.) 86 S. W. 1127; Roth Tool Co.' v. Spring Co., 93 Mo. App. 530, 67 S. W. 967 ; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481. 6* Hicks v. Martin, 25 Mo. App. 359; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481 ; Murdock v. Fishel, 67 Misc. Rep. 122, 121 N. T. Supp. 624 ; Stewart v. Railroad Co., 102 N. Y. 601, 8 N. E. 200, 55 Am. Rep. 844. 65 Shumway v. Collins, 6 Gray (Mass.) 227; Geer v. Zinc Co., 126 Mo. App. 173, 103 S. W. 151; Hudgins v. Bowes (Tex. Civ. App.) 110 S. W. 178. 6« Den ex dem. Bockover v. Post, 25 N. J. Law, 285;. Jackson ex dem. Welden v. Harrison, 17 Johns. (N. Y.) 66 ; Hargrave v. King, 40 N. C. 430. 6 7 Field v. Mills, 33 N. J. Law, 254; Murdock v. Fishel, 67 Misc. Rep. 122, 121 N. Y. Supp. 624 ; Lynde v. Hough, 27 Barb. (N. Y.) 415. 6 8 Williams, Real Prop. p. 567. b» Id. eo The assignee is bound by privity of estate, while the personal repre- sentative is bound by privity of contract. 1 Tayl. Landl. & Ten. (8th Ed.) § 78) EIGHTS AND LIABILITIES OF LANDLORD AND TENANT 2Q3 are exceptions to the rule of the common law that choses in action cannot be assigned. 61 If a covenant touches or concerns the thing demised, and there is privity of estate between the parties, it runs with the land. 62 If it relates to something in existence when the lease was executed, the assignees may enforce it without being named in the lease. 63 If, however, it relates to something not in existence at that time, the assignees must be named in the cove- nant, or they cannot enforce it. 84 In no case, however, are the lessee's assigns bound by personal covenants between the original parties. 66 Covenants to repair, 66 pay rent, 67 cultivate in a certain mode, for quiet enjoyment, 68 to insure, 69 or covenants restricting 308; Spencer's Case, 5 Coke, 16. See, also, Minshull v. Oakes, 2 Hurl. & N. 793 ; Martyn v. Clue, 18 Q. B. Div. 661 ; Hansen v. Meyer, 81 111. 321, 25 Am. Rep. 282. «i 4 Kent, Comm. 472. Assignees of the lessor could not enforce covenants against the lessee or his assignees until the statute of 32 Hen. VIII, c. 34. «2 1 Tayl. Landl. & Ten. (8th Ed.) 308; Morse v. Aldrich, 19 Pick. (Mass.) 449; Piggot v. Mason, 1 Paige (N. T.) 412; Norman v. Wells, 17 Wend. (N. T.) 136; Wooliscroft v. Norton, 15 Wis. 198; Blackmore v. Boardman, 28 Mo. 420 ; Gordon v. George, 12 Ind. 408 ; Tatem v. Chaplin, 2 H. Bl. 133 ; Vernon v. Smith, 5 Barn. & Aid. 1; Vyvyan v. Arthur, 1 Barn. & C. 410; Williams v. Earle, L. R. 3 Q. B. 739. And see, for covenants running with the land, between parties not lessor and lessee, National Union Bank at Dover v. Segur, 39 N. J. Law, 173; Hurd v. Curtis, 19 Pick. (Mass.) 459; Lyon v. Parker, 45 Me. 474. esCoburn v. Goodall, 72 Cal.' 498, 14 Pac. 190, 1 Am. St. Bep. 75; Scheldt v. Belz, 4 111. App. 431; Leominster Gas Light Co. v. Hillery, 197 Mass. 267, 83 N. E. 870 ; Storandt v. Vogel & Binder Co., 140 App. Div. 671, 125 N. Y. Supp. 568 ; McClung v. McPherson, 47 Or. 73, 81 Pac. '567, 82 Pac. 13. Parken- ham's Case, Y. B. 42 Edw. Ill, c. 3, pi. 14 ; Anon., Moore, 179, pi. 318. e< Hansen v. Meyer, 81 111. 321, 25 Am. Rep. 282; Ovingtbn Bros. Co. v. Henshaw, 47 Misc. Rep. 167, 93 N. Y. Supp. 380; Bream v. Dickerson, 2 Humphr. (Tenn.) 126 ; Spencer's Case, 5 Coke, 16 ; Masury v. Southworth, 9 Ohio St 340 ; Doe v. Seaton, 2 Cromp., M. & R. 730 ; Verplanck v. Wright, 23 Wend. (N. Y.) 506 ; Wakefield v. Brown, 9 Q. B. Div. 209. 65 Mayor, etc., of Congleton v. Pattison, 10 East, 130 ; Dolph v. White, 12 N. Y. 296; Curtis v. White, Clarke, Ch. (N. Y.) 389; Inhabitants of Plymouth v. Carver, 16 Pick. (Mass.) 183 ; Spencer's Case, supra ; Gray v. Cuthbertson, 2 Chit. 482. Cf. Mayho v. Buckhurst, Cro. Jac. 438 ; Dolph v. White, 12 N. Y. 296. 66 Herboth v. Radiator Co., 145 Mo. App. 484, 123 S. W. 533 ; Silberberg v. Trachtenberg, 58 Misc. Rep. 536, 109 N. Y. Supp. 814; Pollard v. Shaaffer, 1 Dall./(Pa.) 210, 1 L. Ed. 104, 1 Am. Dec. 239; Congham v. King, Cro. Car. 221 ; Twynam v. Pickard, 2 Barn. & Aid. 105. 6 7 Salisbury v. Shirley, 66 Cal. 223, 5 Pac. 104; Patten v. Deshon, 1 Gray (Mass.) 325; Trask v. Graham, 47 Minn. 571, 50 N. W. 917; Van Rensselaer v. Dennison, 35 N. Y. 393 ; Fennell v. Guffey, 139 Pa. 341, 20 Atl. 1048. as Shelton v. Codman, 3 Cush. (Mass.) 318; Hamilton v. Wright's Adm'r, 28 Mo. 199 ; 1 Tayl. Landl. & Ten. (8th Ed.) 313. 6 9 Vernon v. Smith, 5 B. & Aid. 1, 24 Rev. Rep. 257, 7 E. C. L. 13; Douglass v. Murphy, 16 U. C. Q. B. 113. 204 ESTATES LESS THAN FREEHOLD ESTATES FOE YEARS (Ch. 10 the use of the premises, 70 run with the lancL as do also all implied covenants; 71 while covenants purely ^personal, such as an agree- ment to pay the lessee for a, building to be erected by him, do not run with the land. 72 So a covenant to build a wall in a certain place may not bind an assignee of the term. 73 A lessee is bound by an express covenant, even though he has assigned the term, 7 * and. so is the lessor. 76 SAME— RIGHTS UNDER IMPLIED COVENANTS 79. The principal implied covenants in a lease are: (a) By the lessor, for quiet enjoyment and to pay .taxes. (b) By the lessee, to pay rent, not to commit waste, to culti- vate farm land properly, and, at common law, to repair. Implied covenants always run with the land. By the Lessor Besides express covenants, there are others which are implied by law from the execution of the lease. 78 It is held that the words "demise" or "grant" imply a covenant by the lessor for quiet enjoyment. 77 There is also an implied covenant by the lessor that he will pay all taxes and assessments levied on the premises demised. 78 There is,, however, no covenant implied that io Wheeler v. Earle, 5 Cush. (Mass.) 31, 51 Am. Dec. 41; Norman v. Wells, 17 Wend. (N. Y.) 136; Granite Bldg. Corp. v. Greene, 25 R. I. 586, 57 Atl. 649; Fleetwood v. Hull, 23 Q. B. D. 35, 54 J. P. 229, 58 L. J. Q. B. 341. " 1 Tayl. Landl. & Ten. (8th Ed.) 313. 72 Thompson v. Rose, 8 Cow. (N. Y.) 266; Bream v. Dickerson, 2 Humph. (Tenn.) 126; Hansen v. Meyer, 81 111. 321, 25 Am. Rep. 282; Mayor, etc., of Congleton v. Pattlson, 10 East, 138; Sampson v. Easterby, 9 Barn. & C. 505. Cf. Thomas v. Hayward, L. R. 4 Exch. 311. Such a covenant may be enforced by an assignee of the lessee. Hunt v. Danforth, 2 Curt. 592, Fed. Cas. No. 6,887. 73 Spencer's Case, 5 Coke, 16a. And see Norman v. Wells, 17 Wend. (N. Y.) 136; Masury v. Southworth, 9 Ohio St. 340. t* Barnard v. Godscall, Cro. Jac. 3Q9. 7 5 Jones v. Parker, 163 Mass. 564, 40 N. E. 1044, 47 Am. St. Rep. 485. 7»1 Tayl. Landl. & Ten. (8th Ed.) 301; 1 Wood, Landl. & Ten. (2d Ed.) 691. 7 7Duncklee v. Webber, 151 Mass. 408, 24 N. E. 1082; Grannis v. Clark, 8 Cow. (N. Y.) 36; Barney v. Keith, 4 Wend. (N. Y.) 502; Tone v. Brace, 8 Paige (N. Y.) 597 ; Stott v. Rutherford, 92 U. S. 107, 23 L. Ed. 486 ; Maule v. Ashmead, 20 Pa. 482; Hamilton v. Wright's Adm'r, 28 Mo. 199; Wade v. Halligan, 16 111. 507. But see Sedberry v. Verplanck (Tex. Civ. App.) 31 S. W. 242 ; Groome v. City Corporation, 10 Utah, 54, 37 Pac. 90. 7 8 Stubbs v. Parsons, 3 Barn. & Aid. 516; Watson v. Atkins, Id. 647. If § 79) EIGHTS UNDEB IMPLIED COVENANTS 205 the premises are in a tenantable : condition, or even reasonably suitable for occupation. The rule of caveat emptor applies. 79 Moreover, there is no implied covenant that premises are fit for the use or purpose intended, 80 and this general rule is held to apply also to the lease of a dwelling house. 81 It has been held, however, that where a furnished house is leased there is an implied agreement that it is fit for immediate habitation. 82 By the Lessee — Rent Although a valid term of years may be created without the res- ervation of a rent, 83 yet, whenever a rent is reserved, there is an implied covenant on the part of the lessee to pay it, whether he ever takes possession or not. 8 * Where, also, there is an express covenant to pay, a destruction of the demised premises will not relieve him. 86 When, however, the tenant is evicted from part the lessor falls to do so, the lessee may pay them, to prevent the loss of his estate, and deduct the amount from the rent." McPherson v. Railroad (Jo., 66 Mo. 103. '9 Cromwell v. Allen, 151 111. App. 404; Rand v. Adams, 185 Mass. 341, 70 N. E. 445 ; Benett v. Sullivan, 100 Me. 118, 60 Atl. 886 ; Reeves v. McComes- key, 168 Pa. 571, 32 Atl. 96; Blake v. Dick, 15 Mont. 236, 38 Pac. 1072, 48 Am. St. Rep. 671 ; DOYLE v. RAILWAY CO., 147 V. S. 413, 13 Sup.. Ct. 333, 37 L. Ed 223, Burdick Cas. Real Property ; Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438; Fisher v. Lighthall, 4 Mackey (D. C.) 82, 54 Am. Rep. 258;- Lucas v. Coulter, 104 Ind. 81, 3 N. E. 622 ; Blake v. Ranous, 25 111. App. ( 486; Stevens v. Pierce, 151 Mass. 207, 23 N. E. 1006. , so Rubens v. Hill, 115 111. App. 565 ; Voss v. Sylvester, 203 Mass. 233, 89 N. E. 241; Wilkinson v. Clauson, 29 Minn. 91, 12 N. W. 147; Scheffler Press v. Perlman, 130 App. Div. 576, 115 N. Y. Supp. 40; Hazlett v. Powell, 30 Pa. 293 ; Koen v. Brewing Co., 69 W. Va. 94, 70 S. E. 1098. si DALY v. WISE, 132 N. Y. 306, 30 N. E. 837, 16 L. R. A. 236, Burdick Cas. Real Property; Lucas v. Coulter, 104 Ind. 81, 3 N. E. ,622; McKeon v. Cutter, 156 Mass. 296, 31 N. E. 389; Blake v. Dick, 15 Mont. 236, 38 Pac. 1072, 48 Am. St. Rep. 671; Plannery v. Simons, 47 Misc. Rep. 123, 93 N. Y. Supp. 544. Contra, Thompson v. Walker, 6 Ga. App. 80, 64 S. E. 336. 8 2 Such is the English rule. See Smith v. Marrable, 11 Mees. & W. 5; Wilson v. Hatton, 2 Exch. Div. 336. See, also, INGALLS v. HOBBS, 156 Mags. 348, 31 N. E. 286, 16 L. R. A. 51, 32 Am. St. Rep. 460, Burdick Cas. Real Property. The weight of authority, however, in this country, is to the con- trary. See note to 38 Am. St. Rep. 479. 8 3 Sherwin v. Lasher, 9 111. App. 227; Hunt v. Comstock, 15 Wend. (N. Y.) 665. Cf . Hooton v. Holt, 139 Mass. 54, 22 N. E. 221 ; Osborne v. Humphrey, 7 Conn. 335. If no rent is reserved, there may be a recovery for use and oc- cupation, according to the real value of the premises, unless a contrary in- tention of the parties is shown. 1 Tayl. Landl. & Ten.. (8th Ed.) 434; 2 Wood, Landl. & Ten. (2d Ed.) 1328. « * McGlynn v. Brock, 111 Mass. 219 ; Mechanics' & Traders' Fire Ins. Co. v. Scott, 2 Hilt. (N. Y.) 550 ; McMurphy v. Minot, 4 N. H. 251. as 1 Tayl. Landl. & Ten. (8th Ed.) 436; Peck v. Ledwidge, 25 111. 109; Hal- lett v. Wylie, 3 Johns. (N. Y.) 44, 3 Am. Dec. 457 ; Fowler v. Bott, 6 Mass. 63 ; 206 ESTATES LESS THAN FREEHOLD ESTATES FOR YEARS (Ch. 10 or all of the premises by a title paramount, his liability for rent ceases in proportion. 88 Moreover, when he is evicted by the land- lord, even from a part, the whole liability for rent is at an end. 87 It is customary to reserve a right of re-entry for nonpayment of rent. 88 Waste — Husbandry Waste and good husbandry have been previously explained in connection with estates for life. 89 The same general principles, in connection with these incidents, apply to tenants for years as to life tenants. The law imposes an obligation, even in absence of express covenant, and, in fact, independent of covenants, 80 upon a lessee to surrender the premises, at the close of his term, in as good condition, reasonable wear and tear excepted, as when he received them. In other words, he must so treat the property that no substantial injury be done to it by his negligence. 91 French v. Richards, 6 Phila. (Pa.) 547; Holtzapffel v. Baker, 18 Ves. 115. This rule may be changed, however, by statute. See GAY v. DAVEY, 47 Ohio St. 396, 25 N. B. 425, Burdick Cas. Real Property. so Frommer v. Roessler, 12 Misc. Rep. 152, 33 N. Yr Supp. 13; Lansing v. Van Alstyne, 2 Wend. (N. Y.) 561; Carter v. Burr, 39 Barb. (K. Y.) 59; Fillebrown v. Hoar, 124 Mass. 580 ; Stevenson v. Lambard, 2 East, 575 : .Friend v. Supply Co., 165 Pa. 652, 30 Atl. 1134. Cf. M'Loughlin v. Craig, 7 Ir. Com. Law, 117 ; F_olts v. Huntley, 7 Wend. (N. Y.) 210 ; Morse v. Goddard, 13 Mete. (Mass.) 177, 46 Am. Dec. 728 ; Big Black Creek Imp. Co. v. Kemmerer, 162 Pa. 422, 29 Atl. 739; Sylvester v. Hall, 47 111. App. 304. But see Ray v. Johnson, 98 Mich. 34, 56 N. W. 1048 ; Miller v. Maguire, 18 R. I. 770, 30 Atl 966. «' Coulter v. Norton, 100 Mich. 389, 59 N. W. 163, 43 Am. St. Rep. 458; Snow v. Pulitzer, 142 N. Y. 263, 36 N. B. 1059 ; City Power Co. v. Water Co., 55 Minn. 172, 56 N. W. 685, 1006; Leishman v. White, 1 Allen (Mass.) 489; Christopher v. Austin, 11 N. Y. 216 ; Graham v. Anderson, 3 Har. (Del.) 364 ; Bennet v. Blttle, 4 Rawle (Pa.) 339 ; Lewis v. Payn, 4 Wend.' (N. Y.) 423 ; Colburn v. Morrill, 117 Mass. 262, 19 Am. Rep. 415; McClurg v. Price, 59 Pa. 420, 9S Am. Dec. 356. See, also, Grabenhorst v. Nicodemus, 42 Md. 236. See, also, Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322 ; Hoeveler v. Flem- ing, 91 Pa. 322. But cf. Smith v. Raleigh, 3 Camp. 513 ; Lawrence v. French, 25 Wend. (N. Y.) 443 ; McKenzie v. Hatton, 141 N. Y. 6, 35 N. E 929 ; Ogilvie v. Hull, 5 Hill (N. Y.) 52 ; Edgerton v. Page, 20 N. Y. 281 ; De Witt v. Pier- son, 112 Mass. 8, 17 Am. Rep. 58 ; Townsend v. Wharf Co., 117 Mass. 501. 8 8 When no right of re-entry is reserved, the landlord's only remedy for a breach of covenant is an action for damages. Brown v. Kite, 2 Overt, (Tgnn.) 233 ; Den ex dem. Bockover v. Post, 25 N. J. Law, 285. as Ante. so Infra. »i Franklin v. Triplett, 79 Ark. 82, 94 S. W. 929; Bryan v. French, 20 La. Ann. 3G6 ; Sigur v. Lloyd, 1 La. Ann. 421 ; Genan v. District of Columbia, 20 Ct. CI. 389. § T9) EIGHTS UNDER IMPLIED COVENANTS 207 In the case of farm lands, there is an implied covenant that no waste shall be committed^ and that the land shall be cultivated in a husbandlike manner. 82 Repairs At common law, there is an implied covenant on the part of the tenant to repair, 83 and his failure to do so constitutes permis- sive waste. 84 This implied duty is connected with his obligation to deliver the premises, at the expiration of his term, in ,good con- dition ; consequently the duty extends only to keeping a house wind and water tight, 06 and he is not liable for deteriorations resulting from ordinary wear and tear. 86 It is not his duty, for example, to paint, whitewash, or to paper, buildings or rooms, nor to shingle a roof, or to make substantial repairs of any sort re- quiring the substitution of new material for worn-out parts. 87 In case of the accidental destruction of the premises, by fire or other- wise, a tenant is under no implied obligation to rebuild the same. 88 »2 Chapel y. Hull, 60 Mich. 16T, 26 N. W. 874; Manly v. Pearson, 1 N. J. Law, 377 ; Wing v. Gray, 36 Vt. 261 ; Hubble v. Cole, 85 Va. 87, 7 S. E. 242 : Walker v. Tucker, 70 111. 527; Aughinbaugh v. Coppenheffer, 55 Pa. 347; Powley v. Walker, 5 Term R. 373 ; Legh v. Hewitt, 4 East, 154 ; Dalby v. Hirst, 3 Moore, C. P. 536. »3 Demarest v. Willard, 8 Cow. (N. T.) 206; Shelby v. Hearne, 6 Yerg. (Tenn.) 512; Pollard v. Shaaffer, 1 Dall, (TJ. S.) 210, 1 I/. Ed. 104; United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65 ; Miller v. Shields, 55 Ind. 71 ; Turner v. Townsend, 42 Neb. 376, 60 N. W. 587. The lessor is never bound to repair unless there is a stipulation to that effect. Nor must he rebuild a house, if it burns down, without a covenant to do so. Sheets v. Selden, 7 Wall. (U. S.) 423, 19 L. Ed. 166; Leavitt v. Fletcher, 10 Allen (Mass.) 121; Gill v. Middle- ton, 105 Mass. 478, 7 Am. Pep. 548; Doupe v. Gerrin, 45 N. T. 119, 6 Am. Rep. 47; Little v. Macadaras, 29 Mo. App. 332; Id., 38 Mo. App. 187; Heintze v. Bentley, 34 N. J. Eq. 562; Medary v. Cathers, 161 Pa. 87, 28 Atl. 1012; Cowell v. Lumley, 39 Cal. 151, 2 Am. Rep. 430; Jones v. Millsaps, 71 Miss. 10, 14 South. 440, 23 L. R. A. 155. The duty is imposed by statute in several states. 1 Stim. Am. St.. Law, § 2041. 4 l Tayl. Landl. & Ten. (8th Ed.) 408; 1 Wood, Landl. & Ten. (2d Ed.) 980; Lothrop v. Thayer, 138 Mass. 466, 52 Am. Rep. 286, and cases cited. 9 6 Parrott v. Barney, Deady, 405, Fed. Cas. No. 10,773a ; Kastor v. New- house, 4 E. D. Smith (N. T.) 20 ; Auworth v. Johnson, 5 Car. & P. 239. 9 8Torriano v. Young, 6 Car. & P. 8. 9T Johnson v. Dixon, 1 Daly (N. Y.) 178; Long v. Fitzsimmons, 1 Watts & S. (Pa.) 530. 98 United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65; Smith v. Kerr, 10S N. Y. 31, 15 N. E. 70, 2 Am. St. Rep. 362 ; Earle v. Arbogast, 180 Pa. 409, 36 Atl. 923 ; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446 ; Eagle v. Swayze, 2 Daly (N. Y.) 140. And see Payne v. James, 45 La. Ann. 381, 12 South. 492. Cf., however, Peck v. Manufacturing Co., 43 111. App. 360. 208 ESTATES LESS THAN FREEHOLD ESTATES FOE TEARS (Ch. 10 Taxes — Insurance — Assigning Covenants on the part of a tenant to pay taxes," to insure, or not to assign are never implied. 1 SAME— RIGHTS AND LIABILITIES INDEPENDENT OF COVENANTS 80. As incidents of the relation, and independent of any covenants, the parties have the following rights : (a) The landlord has a right to protect the reversion. (b) He may distrain for rent. (c) The tenant is entitled to exclusive possession. (d) He is liable for waste. (e) He may take estovers. (f) He is entitled to emblements, when his estate is cut off by some contingency, without his fault. (g) The lessee, and all persons claiming under him, are estop- ped to deny the lessor-'s title. The Landlords Rights and Liabilities Irrespective of covenants, either express or implied, there are certain rights and liabilities, on the part of the landlord, and also on the part of the tenant, that arise from the very fact of the rela- tion. The landlord has the right to protect his reversion by main- taining actions against all persons doing permanent injury to the .property. 2 This does not mean that the landlord may sue for an injury merely to the tenant's possession, 3 but for wrongs that »9 Except by statute. 1 Stim. Am. St. Law, § 2042. iWood, Landl. & Ten. (2d Ed.) 701, 709; 2 Wood, Landl. & Ten. (2d Ed.) 954; 1 Tayl. Landl. & Ten. (8th Ed.) 398, 477, 479; Church v. Brown, 15 Ves. 258. t 2 Lachman v. Deisch, 71 111. 59 ; Brown v. "Bridges, 31 Iowa, 138 ; Fitch v. Gosser, 54 Mo. 267 ; Arneson v. Spawn, 2 S. D. 269, 49 N. W. 1066, 39 Am. St. Rep. 783; Starr v. Jackson, 11 Mass. 519; French v. Fuller, 23 Pick. (Mass.) 104 ; Little v. Palister, 3 Greenl. (Me.) 6 ; Austin v. Railroad Co., 25 N. T. 334 ; Aycock v. Railroad Co., S9 N. C. 321 ; City of Cartersville v. Lyon, 69 Ga. 577 ; Jesser v. Gifford, 4 Burrows, 2141 ; Gulf, C. & S. F. Ry. Co. v. Smith, 3 Tex. Civ. App. 4S3, 23 S. W. 89 ; Missouri, K. & T. Ry. Co. v. Ful- inore (Tex. Civ. App.) 26 S. W. 238. But see Anthony v. Railway Co., 162 _ Mass. 60, 37 N. E. 780. a The tenant alone can sue for injuries to the possession. Seaboard Air Line R. Co. v. Brown, 158 Ala. 630, 48 South. 48 ; Southern R. Co. v. State, 116 Ga. 276, 42 S. E. 508 ; Walden v. Conn, 84 Ky. 312, 1 S. W. 537, 4 Am. St. Rep. 204; Van Ness v. Telephone Co., 78 N. J. Law, 511, 74 Atl. 456; Moody v. King, 74 Me. 497. § 80) BIGHTS AND LIABILITIES INDEPENDENT OF COVENANTS 209 affect the permanent value of the property, . his reversionary in- terests. 4 The owner of leased property may also sell the same, or he may assign the lease. 5 A landlord is liable to strangers for injuries resulting from the dangerous condition of the premises at the time the lease was executed. 6 In case, however, of injuries received by strangers from the negligence of the tenant, the landlord is not liable. 7 While a statute may make it the duty of landlord to keep the side- walk's of leased premises in repair, yet, in absence of such legis- lation, it is not his duty to keep such places in safe condition, nor to remove snow and ice therefrom. 8 In some states a landlord, by force of statute, must provide suitable fire escapes from the * Heilbron v. Water Ditch Co., 75 Cal. 117, 17 Pac. 65 ; Bulkley v. Dolbeare, 7 Conn. 232 ; Sayers v. Railroad Co., 82 Kan. 123, 107 Pac. 641, 27 L. R. A. (N. S.) 16S; Western Maryland R. Co. v. Martin, 110 Md. 554, 73 Atl. 267; Cramer v. Groseclose, 53 Mo. App. 648 ; Logan v. Telephone Co., 40 Pa. Super. Ct. R. 644. s Infra. « House v. Metcalf , 27 Conn. 631 ; John Morris Co. v. Southworth, 154 111. 118, 39 N. B. 1099; Albert v. State, 66 Md. 325, 7 Atl. 697, 59 Am. Rep. 159; Maloney v. Hayes, 206 Mass. 1, 91 N. E. 911, 28 L. R. A. (N. S.) 200; Herdt v. Koenig, 137 Mo. App. 589, 119 S. W. 56 ; Lusk v. Peck, 132 App. Div. 426, 116 N. T. Supp. 1051; Kirchner v. Smith, 207 Pa. 431, 56 Atl. 947; Marshall v. Heard, 59 Tex. 266 ; City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507. So the landlord may be liable to the tenant for injuries, where the former retains control of part of the tenement. Elliott v. Pray, 10 Allen (Mass.) 378, 87 Am. Dec. 653; Watkins v. Goodall, 138 Mass. 533; Payne v. Irvin, 144 111. 482, 33 N. E. 756; Davis v. Power Co., 107 Cal. 563, 40 Pac. 950, 48 Am. St. Rep. 156; Montieth v. Finkbeiner ; 66 Hun, 633, 21 N. Y. Supp. 28S; Phillips v. Library Co., 55 N. J, Law, 307, 27 Atl. 478; Brunker v. Cummins, 133 Ind. 443, 32 N. E. 732. But see Moynihan v. Allyn, 162 Mass. 270, 38 N. E. 497 ; Freeman v. Hunnewell, 163 Mass. 210, 39 N. E. 1012; McLean v. Warehouse Co., 158 Mass. 472, 33 N. E. 499; Daley v. Quick, 99 Cal. 179, 33 Pac. 859. The tenant, while he has control of the prem- ises, is liable to strangers for negligence. Stickney v. Munroe, 44 Me. 195; Pickard v. Collins, 23 Barb. (N. T.) 444; Anbeuser-Busch Brewing Ass'n v. Peterson, 41 Neb. 897, 60 N. W. 373 ; Lee v. McLaughlin, 86 Me. 410, 30 Atl. 65, 26 L. R. A. 197. So he may be liable to the landlord for injury to the premises. Stevens v. Pantlind, 95 Mich. 145, 54 N. W. 716; Wilcox v. Cate, 65 Vt. 478, 26 Atl. 1105 ; Olsen v. Webb, 41 Neb. 147, 59 N. W. 520. * Bailey v. Dunaway, 8 Ga. App. 713, 70 S. E. 141 ; Wheeler v. Car Co., 131 111. App. 262 ; Pope v. Boyle, 98 Mo. 527, 11 S. W. 1010 ; Boss v. Jarmulows- ky, 81 App. Div. 577, 81 N. T..Supp. 400; Wunder v. McLean, 134 Pa. 334, 19 Atl. 749, 19 Am. St. Rep. 702; Louisville & N. Terminal Co. v. Jacobs, 109 Tenn. 727, 72 S. W. 954, 61 L. R. A. 188. s Gardner v. Rhodes, 114 Ga. 929, 41 S. E. 63, 57 L. R. A. 749 ; Coman v. Alles, 198 Mass. 99, 83 N. E. 1097, 14 L. R. A. (N. S.) 950; City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E.' 937, 10 L. R. A. 393, 20 Am. St. Rep. 760; Shindelbeck v. Moon, 32 Ohio St. 264, 30 Am. Rep. 584; Atwill v. Blatz, 118 Wis. 226, 95 N. W. 99. Bukd.Real Prop. — 14 210 ESTATES LESS THAN FREEHOLD ESTATES FOR TEARS (Ch. 10 upper floors of certain buildings, particularly in case of factories and workshops. 9 For injuries received by a tenant, 10 or by a subtenant, 11 guest, or servant 12 of the tenant, and resulting from defects in the premises, a landlord will be liable, as a general rule, only when, having knowledge of latent defects, he conceals them from his tenant. In the absence of a statute, 13 or of an agreement with his tenant, 14 a landlord has, generally, no right to enter upon the leased premises for the purpose of making repairs. 16 He may enter, however, to prevent waste, 18 or for the purpose of putting the premises in safe condition to protect himself from actions based upon his negligence. 17 , Distress for Rent' At common law, a landlord may seize or distrain personal prop- erty found upon the leased premises, in case the rent is in arrear. 18 b Carrigan v. Stillwell, 97 Me. 247, 54 Atl. 389, 61 L. R. A. 163 ; Ziebig v. Chemical Co., 150 Mo. App. 482, 131 S. W. 131. And see Lee v. Smith, 42 Ohio St. 458, 51 Am. Rep. 839; Keely v.'O'Conner, 106 Pa. 321. io Miner v. McNamara, 81 Conn. 690, 72 Atl. 138, 21 L. R. A. (N. S.) 477; Lazarus & Cohen v. Parmly, 113 111. App. 624; Moore v. Parker, 63 Kan. 52, 64 Pac. 975, 53 L. R. A. 778; May wood v. Logan, 78 Mich. 135, 43 K. W. 1052, 18 Am. St Rep. 431; Smith v. Donnelly, 45 Misc. Rep. 447, 92 N. Y. Supp. 43 ; Davis v. Smith, 26 R. I. 129, 58 Atl. 630, 66 L. R. A. 478, 106 Am. St. Rep. 691, 3 Ann. Cas. 832; DOYLE v. RAILROAD CO., 147 TJ. S. 413, 13 Sup. Ct 333, 37 L. Ed. 223, Burdick Cas. Real Property. ii Smith v. State, 92 Md. 518, 48 Atl. 92, 51 L. R. A.. 772 ; McLean v. Ware- house Co., 158 Mass. 472, 33 N. E. 499; Peterson v. Smart, 70 Mo.. 34; Dood v. Rothschild, 31 Misc. Rep. 721, 65 N. ¥. Supp. 214; Burns v-. Luckett, 7 Ohio Dec. 483. 12 Davis v. Power Co., 107 Cal. 563, 40 Pac. 950, 48 Am. St. Rep. 156; Fisher v. Jansen, 128 111. 549, 21 N. E. 598 ; Copley v. Balle, 9 Kan. App. 465, 60 Pac. 656 ; Nash v. Webber, 204 Mass. 419, 90 Nr E. 872 ; Sciolaro v. Asch, 198 N. T. 77, 91 N. E. 263, 32 L. R. A. (N. S.) 945; Defiance Water Co. v. Olinger, 54 Ohio St. 532, 44 N. E. 238, 32 L. R. A. 736; Godley v. Hagerty, 20 Pa. 387, 59 Am. Dec. 731. is Dwyer v. Carroll, 86 Cal. 298, 24 Pac. 1015; Campbell v. Porter, 46 App. Div. 628, 61 N. Y. Supp. 712 ; Bonnecaze v. Beer, 37 La. Ann. 531. i* Marks v. Gartside, 16 111. App. 177; White v. Mealio, 37 N. Y. Super. Ct. 72; Rowan v. Kelsey, 18 Barb. (N. Y.) 484; Clark v. Lindsay, 7 Pa. Super. Ct. 43; HAYNES v. ALDRICH, 133 N. Y. 287, 31 N. E. 94, 28 Am. St. Rep. 636, Burdick Cas. Real Property. ib Spades v. Murray, 2 Ind. App. 401, 28 N. E. 709; Goebel v. Hough, 26 Minn. 252, 2 N. W. 847 ; Hahs v. Railroad Co., 147 Mo. App. 262, 126 S. W. 524; Bedlow v. Dry-Dock Co., 112 N. Y. 263,' 19 N. E. 800, 2 L. R. A. 629; Wunder v. McLean, 134 Pa. 334, 19 Atl. 749, 19 Am. St Rep. 702. i« Sulzbacher v. Dickie, 51 How. Prac. (N. Y.) 500. See, also, Simpson v. Moorhead, 65 N. J. Eq. 623, 56 Atl. 887. • it Dawson v. Brouse, Wils. (Ind.) 441; •Anderson v. Dickie, 26 How. Prac. (N. Y.) 105. 18 2 Tayl. Landl. & Ten. (8th Ed.) 168; 2 Wood, Landl. & Ten. (2d Ed.) § 80) EIGHTS AND LIABILITIES INDEPENDENT OF COVENANTS 211 This^ is a right growing out of the relation of landlord and tenant, and is not dependent upon agreement, 19 and this remedy lies for all rents reserved which are certain. 20 At common law, the distraint may be made by the lessor, or the assignee of the reversion, for all the rent due. 21 It is now required, however, in most states, that a warrant be executed by a proper officer. 22 At common law, any chattels 23 found upon the premises could be distrained, wheth- er belonging to the tenant, or to others. 2 * An exception^ how- ever, was made in favor of goods brought there in course of trade. 25 The tendency of modern decisions and statutes is to restrict the right of distraining to the property of the lessee. 2 " There can be no distress for rent unless the relationship of land- lord and tenant actually exists, 27 and also an express contract to pay rent. 28 Under the common law, the landlord had merely the 1305 ; Newman v. Anderton, 2 Bos. & P. (N. R.) 224. Cf. Beeszard v. Capel, 8 Barn. & C. 141 ; Prescott v. Boucher, 3 Barn. & Adol. 849. io In Colorado distress for rent does not exist in the absence of an express agreement Herr v. Johnson, 11 Colo. 393, 18 Pac. 342. 20 Stewart v. Gregg, 42 S. C. 392, 20 S. E. 193. Cf. Tutter v. Fryer, Winch, 7; Paxton v. Kennedy, 70 Miss. 865, 12 South. 546. 2i Slocum v. Clark, 2 Hill (N. Y.) 475; Lathrop v. Clewis, 63 Ga. 282. But not by executor for rent accruing in decedent's lifetime. Prescott v. Bouch- er, 3 Barn. & Adol. 849. Cf. v. Cooper, 2 Wils. 375; Parmenter v. Webber, 8 Taunt. 593. 22 For the details and procedure, the local statutes must be consulted. 23 Unless of a perishable nature. Morley v. Pincombe, 2 Exch. 101. And see Van Sickler v. Jacobs, 14 Johns. (N. Y.) 434. 24 Swartzw. Brewing Co., 109 Md. 393, 71 Atl. 854, 16 Ann. Cas. 1156; Al- len v. Agnew, 24 N. J. Law, 443 ; Weidman v. Rieker, 44 Pa. Super. Ct 85 ; Himely v. Wyatt, 1 Bay (S. C.) 102; Hughes v. Smallwood, 25 Q. B. D. 306 ; 59 L. J. Q. B. 503 ; Blanche v. Bradford, 38 Pa. 344, 80 Am. D,ec. 489 ; ' Spencer v. McGowen, 13 Wend. (N. Y.) 256. And see Paine v. Lock Co., 64 Miss; 175, 1 South. 56 ; Davis v. Payne's Adm'r, 4 Rand. (Va.) 332. 2 5, Brown v. Stackhouse, 155 Pa. 582, 26 Atl. 669, 35 Am. St. Rep. 908; Cadwalader v. Tindall, 20 Pa. 422; Knowles v. Pierce, 5 Houst. (Del.) 178; Block v. Latham, 63 Tex. 414. 2oEobelen v. Bank, 1 Marv. (Del.) 346, 41 Atl. 80; Kennedy v. Lange, 50 Md. 91; Kleber v. Ward, 88 Pa. 93; 2 Tayl. Landl. & Ten. (8th Ed.) 197; Connah v. Hale, 23 Wend. (N. Y.) 475 ; Peacock v. Purvis, 2 Brod. & B. 362. 27 Sims v. Price, 123 Ga. 97, 50 S. E. 961; Murr v. Glover, 34 111. App. 373; Paxton v. Kennedy, 70 Miss. 865, 12 South. 546 ; Grier v. McAlerney, 148 Pa. 587, 24 Atl. 119; Selby v. Greaves, L. R. 3 C. P. 594, 37 L. J. C. P. 251. 28 Melick v. Benedict, 43 N. J. Law, 425. But see Stewart v. Gregg, 42 S. C. 392, 20 S. E. 193. In many states the remedy is incorporated within the law of liens and attachments. See 1 Stim. Am. St. Law, §§ 2031-2036. And see Willard v. Rogers, 54 111. App. 583; Rogers v. Grigg (Tex. Civ. App.) 29 S. W. 654; Belser v. Youngblood, 103 Ala. 545, 15 South. 863; Manhattan Trust Co. v. Railroad Co., 68 Fed. 72; Smith v. Dayton, 94 Iowa, 102, 62 212 ESTATES LESS THAN FREEHOLD ESTATES FOB TEARS (Ch. 10 right to keep the goods until the rent was paid. 29 He could not, moreover, use them for his own benefit. 30 Under the statutes, however, the goods may be sold, upon due notice, if they are not redeemed within the time fixed by the statutes. 31 The rem- edy of distress for rent still exists in a number of our states, 32 although the proceedings based thereon have been much modified by statute. 33 In some jurisdictions, the remedy is held by judicial decisions to be obsolete. 3 * In other states, it has been expressly abolished by statute. 3 B N. W. 650; Toney v. Goodley, 57 Mo. App. 235; Ballard v. Johnson, 114 N. O. 141, 19 S. E. 98. 2» Curtis v. Bradley, 75 111. 180; Lamotte v. Wisner, 51 Md. 543; Davis v. Davis, 128 Pa. 100, 18 Atl. 514; Smith v. Ambler, 1 Munf. (Va.) 596. ao Weber v. Vernon, 2 Pennewill (Del.) 359, 45. Atl. 537; Bagshawe v. Goward, Cro. Jac. 147 ; Chamberlayn's Case, 1 Leon. 220. si The power to sell was first conferred by the statute of 2 ff. 4 M. c 5, § 2, which provided that, unless the tenant or owner replevied the property within 5 days after the distress and notice thereof, the person distraining was authorized to have the distress appraised, and after such appraisement to sell the same toward the satisfaction of the rent and expenses incident to the distress. This statute has been copied in many of the United States. See Cahill v. Lee, 55 Md. 319 ; Butts v. Edwards, 2 Denio (N. Y.) 164 ; Rich- ards v. McGrath, 100 Pa. 389. 32 Blanchard v. Raines' Ex'x, 20 Fla. 467 ; Keller v. Weber, 27 Md. 660 ; Toland v. Swearingen, 39 Tex. 447; Flury v. Grimes, 52 Ga. 341. 3 3 The local statuses must, of course, be consulted for any particular state. Examples of other remedies may be seen in the following cases: For rent: Debt, Bordman v. Osborn, 23 Pick. (Mass.) 295 ; assumpsit, Smith v. Stewart, 6 Johns. (N. Y.) 46, 5 Am. Dec. 186; Chambers v. Ross, 25 N. J. Law, 293; Brolasky v. Ferguson, 48 Pa. 434; covenant, Gale v. Nixon, 6 Cow. (N. Y.) 445. Actions to prevent waste, Watson v. I-Iunter, 5 Johns. Ch. (N. Y.) 169, 9 Am. Dec. 295; and for damages, Harder v. Harder, 26 Barb. (N. Y.) 409. To recover possession are: Ejectment, Jackson v. Brownson, 7 Johns. (N. Y.) 227, 5 Am. Dec. 258; Penn's Lessee v. Divellin, 2 Yeates (Pa.) 309; Cobb v. Lavalle, 89 111. 331, 31 Am. Rep. 91 ; Colston v. McVay, 1 A. K. Marsh. (Ky.) 251 ; and summary proceeding given by statute in most states, Lewis v. Shel- don, 103 Mich. 102, 61 N. W. 269; Marsters v. Cling, 163 Mass. 477, 40 N. E. 763. The lessee's actions are: Replevin, for wrongful distress, Hunter v. Le Conte, 6 Cow. (N. Y.) 728; trespass, for interference with his possession, Taylor v. Cooper, 104 Mich. 72, 62 N. W. 157; Hey v. Moorhouse, 8 Scott, 156; Van Brunt v. Schenck, 11 Johns. (N. Y.) 385; Lunt v. Brown, 13 Me. 236; case, for excessive distress, ' Hare v. Stegall, 60 111. 380 (and see Fish- burne v. Engledove, 91 Va. 548, 22 S. E. 354) ; and covenant, 2 Taylor, Landl. & Ten. (8th Ed.) 260. For the action of forcible entry and detainer, see 2 Tayl. Landl. & Ten. (8th Ed.) 396; 2 Wood, Landl. & Ten. (2d Ed.) 1374; Willard v. Warren, 17 Wend. (N. Y.) 257 ; Toby v. Schultz, 51 111. App. 4S7. 34 Folmar v. Copeland, 57 Ala. 588 ; Crocker v. Mann, 3 Mo. 472, 26 Am. Dec, 684; Welch v. Ashby, 88 Mo. App. 400; Howland v. Forlaw, 108 N. C. 567, 13 S. E. 173 ; Smith v. Wheeler, 4 Okl. 138, 44 Pac. 203. 35 See Scruggs v. Gibson, 40 Ga. 511; Dutcher v. Culver, 24 Minn. 5S4; § 80) EIGHTS AND LIABILITIES INDEPENDENT OF COVENANTS 213 The Tenants Rights and Liabilities — Possession The tenant has a right to the exclusive possession of the leased premises. 86 This includes the right to enjoy all easements 37 servient to the property. 88 For injuries to the tenant's possession, as distinguished from injuries to the landlord's reversion, 39 the tenant alone has the right of action, 40 and a tenant may sue even the landlord for a trespass that affects the possession. 41 A ten- ant, however, cannot put the property to any uses not intended by the lease, 42 and, as previously stated, he will be liable for waste, either by acts of commission or omission, if he uses the property, or permits it to be used, in any way or manner that results in injury to buildings or lands ibeyond the reasonable wear and tear of the same. 43 A tenant may remove his trade, agricultural, or domestic fixtures, 44 without any express provision to that effect in the lease. 4 " Patty v. Bogle, 59 Miss. 491. Right of distress for rent was abolished In New York by act of May 13, 1846 (Laws 1846, c. 274). so Kansas Inv. Co. v. Carter, 160 Mass. 421, 36 N. E. 63 ; Phelps v. Ran- dolph, 147 111. 335, 35 N. B. 243. And see Bentley v. City of Atlanta, 92 Ga. 623, 18 S. E. 1013. Any right of re-entry in the lessor is entirely a reserved right. Heermance v. Vernoy, 6 Johns. (N. Y.) 5; Dixon v. Clow, ^24 Wend. (N. Y.) 188; Parker v. Griswold, 17 Conn. 288, 42 Am. Dec. 739; State v. Piper, 89 N. C. 551. "As to easements, see post, chapter XVII. as Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28. And see Marsh v. McNider, 88 Iowa, 390, 55 N. W. 469, 20 L. R. A. 333, 45 Am r St. Rep. 240. The tenant is bound by any easements to which the land is subject. McDermott v. Rail- road Co., 28 Hun (N. Y.) 325; Prescott v. White, 21 Pick. (Mass.) 342, 32 Am. Dec. 266. s 9 Supra. ! 40 Seaboard Air Line R, Co. v. Br6wn, 158 Ala. 630, 48 South. 48 ; Southern R. Co. v. State, 116 Ga. 276, 42 S. E. 508 ; Walden v. Conn, 84 Ky. 312, 1 S. W. 537, 4 Am. St. Rep. 204; Van Ness v. Telephone Co., 78 N. J. Law, 511, 74 Atl. 456; Eno v. Del Vecchio, 6 Duer (N. Y.) 17. 4i Shaft v. Carey, 107 Wis. 273, 83 N. W. 288. *2 Chamberlain v. Brown, 141 Iowa, 540, 120 N. W. 334; Junction Mining Co. v. Coal Co., 122 111. App. 574 ; Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052, 18 L. R. A. 756 ; Hersey v. Chapin, 162 Mass. 176, 38 N. E. 442 ; Mudge v. Brewing Co., 68 Misc. Rep. 362, 125 N. Y. Supp. 15; Heise v. Rail- road Co., 62 Pa. 67 ; Anderson v. Miller, 96 Tenn. 35, 33 S. W. 615, 31 L. R. A. «04, 54 Am. St. Rep. 812; Lovett v. United States, 9 Ct. CI. 479. 43 Brooks v. Rogers, 101 Ala. Ill, 13 South. 386; Nave v. Berry, 22 Ala. 382; Miles v. Lauraine, 99 Ga. 402, 27 S. E. 739; Grabenhorst v. Nicodemus, 42 Md. 236; Richardson v. Richardson, 9 Gray (Mass.) 213; Murphy v. Type Foundry, 29 Mo. App. 541 ; Klie v. Von Broock, 56 N. J. Eq. 18, 37 Atl. 469 ; Guth v. Mehling, 84 App. Div. 586, 82 N. Y. Supp. 1018 ; Walsh v. The Bourse, 15 Pa. Super. Ct. 219. 44 See Fixtures, chapter III. *» Mason v. Fenn, 13 111. 525 ; Moore v. Wood, 12 Abb. Prac. (N. Y.) 393 ; 214 ESTATES LESS THAN FREEHOLD ESTATES FOE TEARS (Ch. 10 Estovers — Bmblemen ts At common law, a tenant is entitled to estovers. 48 By this it is meant that a tenant of farm land has the right to take and use such material found upon the land, providing it is suitable for the purpose, as may be necessary for the repair of buildings and fences, and agricultural implements, and also the dead and fallen timber for fuel. 47 He cannot, of course, use shrubbery and- orna- mental trees for such purposes, nor, as a rule, cut standing timber, since such acts would constitute waste. 48 The term "emblements," in the law of landlord and tenant, has a special meaning, namely, "the waygoing crop." Of course, as long as a tenant is in posses- sion, he has the right to gather his crops from year to year; but in the case of a tenant for years, where the termination of the lease is fixed, the outgoing tenant is not entitled to the crops left growing on the land at the end of his term. 49 He may be entitled, however, to such emblements if his interest is terminated, with- out his fault, by some contingency happening during the term. 60 If he causes a forfeiture, his subtenant is entitled to emblements. 51 Bircher v. Parker, 40 Mo. 118; Chandler v. Oldham, 55 Mo. App. 139. Cf. Davidson v. Manufacturing Co., 99 Mich. 501, 58 N. W. 475; PendlU v. Maas, 97 Mich. 215, 56 N. W. 597; Wright v. Macdonnell, 88 Tex. 140, 30 S. W. 907; Goedeke v. Baker (Tex. Civ. App.) 28 S. W. 1039. *o Hubbard v. Shaw, 12 Allen (Mass.) 120; Walters v. Hutchrns' Adm'x, 29 Ind. 136 ; Harris v. Goslin, 3 Har. (Del.) 340 ; Van Deusen v. Young, 29 N. Y. 9 ; Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705 ; Wright v. Roberts, 22 Wis. 161. *' Anderson v. Cowan, 125 Iowa, 259, 101 N. W. 92, 68 L. R. A. 641, 106 Am. St. Rep. 303. « See Anderson v. Cowan, supra; Co. Litt 53; McCullough v. Irvine's Ex'rs, 13 Pa. 438. 49Chesley v. Welch, 37 Me. 106; Bain v. Clark, 10 Johns. (N. Y.) 424; Sanders v. Ellington, 77 N. C. 255; Andrews v. Jones, -36 Tex. 149; Carney v. Mosher, 97 Mich. 554, 56 N. W. 935 ; Gossett v.- Drydale, 48 Mo. App. 430 ; Baker v. Mclnturff, 49 Mo. App. 505 ; Maclary v. Turner, 9 Houst. (Del.) 281, 32 Atl. 325 ; Monig's Adm'x v. Phillips (Ky.) 29 S. W. 970. And see 1 Stim. Am. St. Law, § 2064. so Thus some jurisdictions hold that the tenant of a mortgagor is entitled to the crop against the purchaser at a foreclosure sale. First Nat. Bank of Clay Center v. Beegle, 52 Kan. 709, 35 Pac. 814, 39 Am. St Rep. 365; Gray v. Worst, 129 Mo. 122, 31 S. W. 585 ; Monday v. O'Neil, 44 Neb. 724, 63 N. W. 32, 48 Am. St Rep. 760 ; Hubbard v. Berry, 10 Ind. App. 594, 38 N. E. 77. See, contra, Howell v. Schenck, 24 N. J. Law, 89 ; Samson v. Rose, 65 N. Y. 411. si Bevans v. Briscoe, 4 Har. & J. (Md.) 139. But see Samson v. Rose, 65 N. Y. 411. They cannot be claimed by a mortgagee of the lessee. Gregg v. Boyd, 69 Hun, 588, 23 N. Y. Supp. 918. And one holding an estate for years as lessee of a tenant for life may claim emblements. Dorsett v. Gray, § 80) EIGHTS AND LIABILITIES INDEPENDENT OF COVENANTS 215 Estopped to Deny Landlord's Title Where the relation of landlord and tenant exists, whether the tenancy be for years, or at will, or at sufferance, the tenant will be estopped to deny the landlord's title. 52 Under the earlier com- mon law, the doctrine of estoppel applied only in case of a lease under seal; that is, an estoppel by deed. 68 The modern rule, however, is of an equitable origin, an estoppel in pais, and is based upon public policy. 6 * It applies to a tenant holding under a parol agreement, and also to a tenant holding over his term." Even though a lease be void, the rule is not affected. 58 Where, however, the relationship of landlord and tenant is induced by fraud, duress, or mistake, the rule does not apply." The estop- 98 Ind. 273 ; Bevans v. Briscoe, 4 Har. & J. (Md.) 139 ; Marshall, J., in Miller v. Shackleford, 4 Dana (Ky.) 277. 52 Cleveland v. Alba, 155 Ala. 468, 46 South. 757; DAVIS v. WILLIAMS, 130 Ala. 530, 30 South. 488, 54 L. R. A. 749, 89 Am. St. Rep. 55, Burdlck Cas. Real Property; Washington v. Moore, 84 Ark. 220, 105 S. W. 253, 120 Am. St. Rep. 29 ; Thomas v. Young, 81 Conn. 702, 71 Atl. 1100 ; Chambers v, Irish, 132 Iowa, 319, 109 N. W. 787 ; Milliken v. Lockwood, 80 Kan.- 600, 103 Pac. 124; Binney v. Chapman, 5 Pick. (Mass.) 124; Moore v. Gair, 108 App. Div. 23, 95 N. Y. Supp. 475; Bertram v. Cook, 32 Mich. 518; Townsend v. Boyd, 217 Pa. 386, 66 Atl. 1099, 12 L. R, A. (N. S.) 1148 ; Gray v. Johnson, 14 N. H. 414; Hamilton v. Pittock, 158 Pa. 457, 27 Atl. 1079; Sexton v. Carley, 147 111. 269, 35 N. E. 471; McKissick v. Ashby, 98 Cal. 422, 33 Pac. 729; Voss v. King, 38 W. Va. 607, 18 S. E. 762; Dixon v. Stewart, 113 N. C. 410, 18 S. E. 325 ; Hackett v. Marmet Co., 3 C. C. A. 76, 52 Fed. 268. But see Lakin v. Dolly, 53 Fed. 333 ; Chicago & A. R. Co. v. Keegan, 152 111. 413, 39 N. E. 33 ; McKinnis v. Mortgage Co., 55 Kan. 259, 39 Pac. 1018 ; Suddarth v. Robert- son, 118 Mo. 286, 24 S. W. 151. The rule has been extended to adjoining lands gained by the tenant by disseisin. Doe v. Jones, 15 Mees. & W. 580; Doe v. Rees, 6 Car. & P. 610; Andrews v. Hailes, 2 El. & Bl. 349. The old common-law rule that a disclaimer of the landlord's title would cause a forfeiture is no longer the law. Fusselman v. Worthington, 14 111. 135 ; New- man v. Rutter, 8 Watts (Pa.) 51; Greeno v. Munson, 9 Vt. 37, 31 Am. Dec. 605 ; Jackson ex dem. Van Schaick v. Vincent, 4 Wend. (N. Y.) 633. But see Newman v. Rutter, 8 Watts (Pa.) 51. Refusal to pay rent will not cause a forfeiture. Doe v. Wells, 10 Adol. & E. 427; Kiernan v. Terry, 26 Or. 494, 38 Pac. 671. ea Co. Litt. 47b. ni Voss v. King, 33 W. Va. 236, 10 S. E. 402; 1 Tayl. Landl. & Ten. § 89; Den ex dem. Howell v. Ashmore, 22 N. J. Law, 261; Smythe v. Henry, 41 Fed. 705 ; Vernam v. Smith, 15 N. Y. 327. os Voss v. King, supra. oa Crawford v. Jones, 54 Ala. 459; Maudlin v. Cox, 67 Cal. 387, 7 Pac. 804 ; Heath v. Williams, 25 Me. 209, 43 Am. Dec. 265 ; Byrne v. Beeson, 1 Dougl. (Mich.) 179. Unless the lease is void as against public policy, in which case the rule is otherwise. See Dupas v. Wassell, 8 Fed. Cas. No. 4,182, 1 Dill. 213 ; Welder v. McComb, 10 Tex. Civ. App. 85, 30 S. W. 822. 57 Farris v. Houston, 74 Ala. 162; Simon Newman Co. v. Lassing, 141 Cal. 174 74 Pac. 761 ; Carter v. Marshall, 72 111. 609 ; Suddarth v. Robertson, 118 216 ESTATES LESS THAN FREEHOLD— ESTATES FOB YEARS (Ch. 10 pel extends, moreover, to all claiming under the lessee." It can be set up by the heirs or assignees of the lessor, 69 but the lessee can controvert the fact of an assignment." So, against the heir, he may show that the reversion was devised to a third person. 61 Against the lessor, he may show that the latter has parted with his interest since making the lease, 62 for the lessee may have pur- chased the reversion from the lessor, 63 or have paid the rent to the lessor's assignee. 64 The tenant, however, cannot assert an outstanding title which he has brought in, 65 nor can he accept a lease from a stranger. 66 However, if there is an eviction under a paramount title, the tenant may take a new lease from the holder of such title, and it is not necessary that he be actually expelled from the premises, to justify him in so doing. It will be suffi- cient if the right to evict is asserted by one entitled to the pos- session, and the tenant in good faith accepts a new lease to avoid eviction. 67 Mo. 286, 24 S. W. 151; Ingraham v. Baldwin, 9 N. Y. 45; Boyer v. Smith. 5 Watts. (Pa.)' 55. 08 Rose v. Davis, 11 Cal. 133 ; Russell v. Irwin's Adm'r, 38 Ala. 44, 50 ; Derrick v. Luddy, 64 Vt 462, 24 Atl. 1050 ; McLennan v. Grant, 8 Wash. 603, 36 Pac. 682. Cf. Swan v. Busby, 5 Tex. Civ. App. 63, 24 S. W. 303. oaBlantin v. Whitaker, 11 Humph. (Tenn.) 313; Russell v. Allard, 18 N. H. 225 ; State v. Votaw, 13 Mont 403, 34 Pac. 315. ooDespard v. Walbridge, 15 N. T. 377; Beall v. Davenport, 48 Ga. 165, 15 Am. Rep. 656. 8i Despard v. Walbridge, supra. And see Lane v. Young, 66 Hun, 563, 21 N. T. Supp. 838. «2 Wolf v. Johnson, 30 Miss. 513; Horner v. Leeds, 25 N. J. Law, 106; Robinson v. Mining Co., 55 Mo. App. 662; Winn v. Strickland, 34 Fla. 610, 16 South. 606; Robertson v. Biddell, 32 Fla. 304, 13 South. 358; West Shore Mills Co. v. Edwards, 24 Or. 475, 33 Pac. 987. «3 Elliott v. Smith, 23 Pa. 131; George v. Putney, 4 Cush. (Mass.) 355, 50 Am. Dec. 788 ; Camley v. Stanfield, 10 Tex. 546, 60 Am. Dec. 219. «4 Stedman v. Gassett, 18 Vt. 346; Welch v. Adams, 1 Mete. (Mass.) 494; Magill v. Hinsdale, 6 Conn. 464a, 16 Am. Dec. 70. «b Sharpe v. Kelley, 5 Denio (N. Y.) 431; Drane v. Gregory's Heirs, 3 B. Mon. (Ky.) 619; Elliott v. Smith, 23 Pa. 131; Marley v. Rodgers, 5 Yerg. (Tenn.) 217; Anderson v. Anderson, 104 Ala. 428, 16 South. 14. And see Barlow v. Dahm, 97 Ala. 414, 12 South. 293, 38 Am. St. Rep. 192. ee Doe ex dem. Kennedy's Heirs v. Reynolds, 27 Ala. 364, 376; Russell' v. Fabyan, 34 N. H. 223; Ragor v. McKay, 44 111. App. 79. But see Nash v. Springstead, 72 Hun, 474, 25 N. Y. Supp. 279. 6 t Morse v. Goddard, 13 Mete. (Mass.) 177, 46 Am. Dec. 728; Simers v. Saltus, 3 Denio (N. Y.) 217. And see Delaney v. Fox, 2 C. B. (N. S.) 775. § 81) TRANSFER OF ESTATES FOB TEARS 217 TRANSFER OF ESTATES FOR YEARS 81. After an estate for years has been created, the interests of the parties are transferable. The transfer may be : (a) By act of parties, as where : (1) The lessor assigns the rent or the reversion, or both. (2) Or where the lessee (I) Assigns his term, in which case the assignee is liable on all covenants running with the land. (II) Or where the lessee sublets his term, in which case the sublessee is liable only to the sublessor. (b) By operation of law, as where: (1) The interest of either party is taken on execution. (2) Or where, on the lessor's death, his interest gaes to his heirs or devisees. (3) Or where, on the lessee's death, his interest goes to his personal representative. Transfer by Lessor Unless restrained by express covenants, or by a statute in case of the lessee, 68 either the lessor or the lessee may transfer his interest under a lease. 68 The landlord may sell the entire property during the tenant's term, 70 or he may assign the reversion without transferring the rent, 71 or he may assign the rent without the reversion. 72 The landlord may transfer the reversion either to the tenant, or to a third party. In the former case, the two interests would merge. 73 He may also assign the rent to one man, and es Or by statute, as lessee Is In a few states. 1 Stim. Am. St. Law, § 2043. «9 Dixon v. Buell, 21 111. 203; Webster v. Nichols, 104 111. 160; Crommelin v. Thiess, 31 Ala. 412, 421, 70 Am. Dec. 499 ; Woodhull v. Rosenthal, 61 N. Y. 382 ; Gould v. School Dist, 8 Minn. 427 (Gil. 382) ; Indianapolis Mfg. & Car- penters' Union v. Railway Co., 45 Ind. 281 ; Rex v. Inhabitants of Aldborough, 1 East, 597. to Crosby v. Loop, 13 111. 625; Marley v. Rodgers, 5 Terg. (Tenn.) 217; Peterman v. Kingsley, 140 Wis. 666, 123 N. W. 137, 133 Am. St. Rep. 1107. 7i Real v. Car Spring Co., 125 Mass. 157, 28 Am. Rep. 216; Demarest v. Willard, 8 Cow. (N. T.) 206. '2 Wineman v. Houghson, 44 111. App. 22 ; Watson v. Hunkins, 13 Iowa, 547 ; Root v. Trapp, 10 Kan. App. 575, 62 Pac. 248; Brownson. v. Roy, 133 Mich. 617, 95 N. W. 710 ; Iowa Sav. Bank v. Frink, 1 Neb. Unof. 14, 26, 92 N. W. 916 ; Thomson v. Ludlum, 36 Misc. Rep. 801, 74 N. T. Supp. 875. 73 Carroll v. Ballance, 26 111. 9, 79 Am. Dec. 354 ; Hudson Bros. Commis- sion Co. v. Gravel Co., 140 Mo. 103, 41 S. W. 450, 62 Am. St. Rep. 722 ; Ker- shaw v. Supplee, 1 Rawle (Pa.) 131. 218 ESTATES LESS THAN FREEHOLD ESTATES FOR YEARS (Ch. 10 the reversion to another. He may also split up the reversion into parcels, but the rent cannot be made payable to several without the consent of the tenant. 74 An assignee of the reversion is entitled to receive the rents from the tenant after giving notice of the assignment. TB Such assignee can also enforce, and is liable on, covenants running with the land. 78 Transfer by Lessee The tenant's right either to assign or to sublet his term has already been considered, together with the distinction between an assignment and a subletting. 77 He may also mortgage his interest. 78 The requirements of the statutes as to written agree- ments are the same for an assignment or a subletting as in case of the original lease. 79 There may be an assignment of part of the premises. 80 In the case of a sublease, the subtenant is not liable, for refit to the original lessor, or on the covenants of the original lease. 81 An assignee, however, is liable to the original lessor on all the covenants which run with the land. 82 The lessee continues liable, after he has assigned, on express covenants ; 8S but an assignee may avoid future obligation by assigning over, whether "Ryerson v. Quackenbush, 26 N. J. Law, 254; Ards v. Watkin, Cro. Eliz. 637. " Hunt v. Thompson, 2 Allen (Mass.) 341 ; O'Connor v. Kelly, 41 Cal. 432; Moffatt v. Smith, 4 N. Y. 126; Childs v. Clark, 3 Barb. Ch. (N. Y.) 52, 49 Am. Dec. 164; Watson v. Hunkins, 13 Iowa, 547; Page v. Culver, 55 Mo. App. 606. Prior to the statute of 4 Anne, c. 16, § 9 (which has been generally adopted in the United States), it was necessary that the tenant should agree to accept the assignee of the reversion as his landlord. This was known as "attornment," and has already been considered. See supra. 76 Astor v. Miller, 2 Paige (N. Y.) 68; Stevenson v. Lambard, 2 East, 575; Burton v. Barclay, 7 Bing. 745; Van Home v. Crain, 1 Paige (N. Y.) 455; Sutherland v. Goodnow, 108 111. 528, 48 Am. Rep. 560; Campbell v. Lewis, 3 Barn. & Aid. 392 ; King v. Jones, 5 Taunt 418. 11 Supra. ts Menger v. Ward, 87 Tex. 622, 30 S. W. 853. And see Barrett v. Trainor, 50 111. App. 420; Drda v. Schmidt, 47 111. App. 267; Menger v. Ward (Tex. Civ. App.) 28 S. W. 821. Contra, as to a lease on shares. Lewis v. Sheldon, 103 Mich. 102, 61 N. W. 269. ™ Bedford v. Terhune, 30 N. Y. 453, 86 Am. Dec. 394. 80 Cook v. Jones, 96 Ky. 283, 28 S. W. 960. But see Shannon v. Grindstaff, 11 Wash. 536, 40 Pac. 123. si 1 Tayl. Landl. & Ten. (8th Ed.) § 16 ; 1 Wood, Landl. & Ten. (2d Ed.) 181 ; Trustees of Dartmouth College v. Clough, 8 N. H. 22. But he may pay rent to avoid eviction. Peck v. Ingersoll, 7 N. Y. 528. 82Fennell v. Guffey, 155 Pa. 38, 25 Atl. 785; Sanders v. Partridge, 108 Mass. 556. But cf. Dey v. Greenebaum, 82 Hun, 533, 31 N. Y. Supp. 610. sa Grommes v. Trust Co., 147 111. 634, 35 N. E. 820, 37 Am. St. Rep. 248 ; Wineman v. Phillips, 93 Mich. 223, 53 N. W. 168 ; Conrady v. Bywaters (Tex. Civ. App.) 24 S. W. 961; Bouscaren v. Brown, 40 Neb. 722, 59 N. W. 385; § 81) TRANSFER OF ESTATES FOE TEARS 219 there is an express covenant or not. 84 The lessee and his assignee or sublessee may insert any covenants they -choose in the instru- ment of transfer, and so regulate their obligations to each other, as in case of the original landlord and tenant.. Transfer by Operation of Law Both the reversion and the term are subject to involuntary alienation, such as sale on execution, and a purchaser assumes the rights and liabilities of an assignee. 85 An assignee in bank- ruptcy or insolvency, however, does not become liable as assignee of a term owned by his assignor until he has had a reasonable time" to ascertain whether it is an available asset. Before then he is not presumed to accept. 80 A lessee may dispose of his estates for years by will, 87 but if he fail to do so they pass on his death to his personal representative, who thus becomes an assignee. 88 The reversion, if not disposed of, is subject to the ordinary rules governing the descent of realty; and the rent follows the rever- sion, unless it has been separately assigned. 88 As a general rule, an agreement not to transfer is not broken by a transfer by opera- tion of law. 90 Consequently, unless it be done fraudulently, 91 a transfer of a lease upon execution sale, 92 foreclosure, 93 or bank- Charless v. Froebel, 47 Mo. App. 45; Pittsburg Consol. Coal Co. v. Greenlee, 164 Pa. 549, 30 Atl. 4S9; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 93S; Walker's Case, 3 Coke, 22a ; Calborne v. Wright, 2 Lev. 239. s^McBee v. Sampson, 66 Fed. 416; Armstrong v. Wheeler, 9 Cow. (N. Y.) 88; Childs v. Clark, 3 Barb. Ch. (N. Y.) 52, 49 Am. Dec. 164; Tibbals v. Iffland, 10 Wash. 451, 39 Pac. 102. But see Consolidated Coal Co. v. Peers, 150 111. 344, 37 N. E. 937 ; Drake v. Lacoe, 157 Pa. 17, 27 Atl. 538 ; Lindsley v. Brewing Co., 59 Mo. App. 271. ss McNeil v. Ames, 120 Mass. 481; Lancashire v. Mason, 75 N. C. 455. 8« Pratt v. Levan, 1 Miles (Pa.) 358; Bagley v. Freeman, 1 Hilt. (N. T.) 196; Copeland v. Stephens, 1 Barn. & Aid. 594; Carter v. Warne, 4 Car. & P. 191. 8 7 They pass by a devise of "personal estate." Brewster v, Hill, 1 N. H. 350. 8 8 Martin v. Tobin, 123 Mass. 85; Sutter v. Lackmann, 39 Mo. 91; Mur- dock v. Ratcliff, 7 Ohio, 119, pt, 1; Charles v. Byrd, 29 S. C. 544, 8 S. B. 1. The rule is otherwise in a few states, by statute. The lessee's estate con- tinues liable for the rent. Hutchings v. Bank, 91 Va. 68, 20 S. E. 950. ss Lewis v. Wilkins, 62 N. C. 303. so Powell v. Nichols, 26 Okl. 734, 110 Pac. 762, 29 L. R. A. (N. S.) 8S6; Charles v. Byrd, 29 S. C. 544, 8 S. E. 1 ; Horton v. Horton, Cro. Jac. 74. 8i Jackson ex dem. Stevens v. Silvernail, 15 Johns. (N. Y.) 278; Jackson v. Corliss, 7 Johns. (N. T.) 531; Doe v. Carter, 8 Term R. 300. «2Farnum v. Hefner, 92 Cal. 542, 28 Pac. 602; Medinah Temple Co. v. Currey, 58 111. App. 433; Jackson ex dem. Stevens v. Silvernail, supra. 83 Dunlop v. Mulry, 85 App. Div. 498, 83 N. Y. Supp. 477, 1104 ; Riggs v. Pursell, 66 N. Y. 193. Contra, West Shore R. Co. v. Wenner, 70 N. J. Law, 220 ESTATES LESS THAN FREEHOLD ESTATES FOB YEARS (Ch. 10 ruptcy proceedings " will not amount to a breach of a covenant not to assign or to sublet, unless a provision to such effect is in- serted in the lease. 96 A devise of a term is not, however, a trans- fer by operation of. law, and is held to violate an agreement not to assign. 98 TERMINATION OF ESTATES FOR YEARS 82. An estate for years may be terminated : (a) By expiration of the term. (b) By merger. (c) By destruction of the premises (in some cases). (d) By surrender. (e) By eviction. (f) By forfeiture. (g) By an exercise of the power of eminent domain, or by other operation of law (in some cases). Expiration of Term Estates for years in most cases determine by the mere expiration of the term of the tenancy; that is, the period for which the lease was made. Upon such lapse of time, the term is thereby at an end, without notice by either party, 97 unless, in case of an op- tional termination, notice may be necessary. 98 In case the ter- 233, 57 Atl. 408, 103 Am. St Rep. 801, 1 Ann. Cas. 790; Id., 71 N. J. Law, 682, 60 Atl. 1134. »*Randol v. Scott, 110 Cal. 590, 42 Pac. 976; Bemis v. Wilder, 100 Mass. 446 ; In re Bush, 126 Fed. 878 ; Philpot v. Hoare, 2 Atk. 219, 26 Eng. Reprint, 535. Contra, In re Breck, Fed. Cas. No. 1,822, 8 Ben. 93. so Davis v. Byton, 7 Bing. 154, 4 M. & P. 820, 20 E. C. LI 77; Doe v. Clark, 8 East, 185, 9 Rev. Rep. 402 ; Roe v. Galliers, 2 Term R. 133, 1 Rev. Rep. 455. so Berry v. Taunton, Cro. Eliz. 331; Knight v. Mory, Cro. Eliz. 60; Barry v. Stanton, Cro. Eliz. 330. »t State v. Burr, 29 Minn. 432, 13 N. W. 676; Philip v. McLaughlin, 24 N. Brunsw. 532 ; Smith v. Snyder, 168 Pa. 541, 32 Atl. 64 ; Bedford v. McElher- ron, 2 Serg. & R. (Pa.) 49; Ackland v. Lutley, 9 Adol. & E. 879; Poppers v. Meagher, 148 111. 192, 35 N. E. 805 ; Dunphy v. Goodlander, 12 Ind. App. 609, 40 N. E. 924; Williams v. Mershon, 57 N. J. Law, 242, 30 Atl. 619; Mont- gomery v. Willis, 45 Neb. 434, 63 N. W. 794. And the tenant becomes a wrong- doer if he refuses to surrender possession. Frost v. Iron Co., 12 Misc. Rep. 348, 33 N. Y. Supp. 654; Jackson ex dem. Van Courtlandt v. Parkhurst, 5 Johns. (N. Y.) 128; Ellis v. Paige, 1 Pick. (Mass.) 43; Bedford v. McElherron, 2 Serg. & R. (Pa.) 49. »8 Bernstein v. Koch, 52 Misc. Rep. 550, 102 N. Y. Supp. 524; Henderson v. Manufacturing Co., 24 Pa. Super. Ct 422; Ashhurst v. Phonograph Co., 166 Pa. 357, 31 Atl. 116. § 82) TERMINATION OP ESTATES FOE TEARS 221 mination of the lease is in doubt between two days, the tenant may elect the day of expiration, 09 and where the termination is made optional, without specifying at whose option, it will be the tenant's option. 1 As a rule, a lease for a year expires on the anniversary of the ,day preceding the day of its commencement. 2 A lease "to" a certain day expires at midnight on the preceding day. 3 A lease expiring "on" a particular day includes the whole of such day.* Custom and usage, however, may affect these gen- eral rules in particular localities. 8 Merger The acquisition of the landlord's fee by the tenant will merge the lesser estate in the greater. 6 Such a termination of an estate for years applies to a merger by deed, 7 descent, 8 devise, 9 or by purchase at an execution sale. 10 A merger does not take place, however, where there is an intervening estate. 11 An estate for years will merge, however, in a life estate, 12 or in another term for years. 18 A term for years will also usually merge in case . the tenant conveys his interest to the landlord, 14 particularly when 1 »» Murrell v. Lion, 30 La. Ann. 255. i Commonwealth v. Philadelphia County, 3 Brewst. (Pa.) 537. 2 Buchanan v. Whitman, 76 Hun, 67, 27 N. Y. Supp. 604 ; Marys v. Ander- son, 24 Pa. 272. s People v. Robertson, 39 Barb. (N: Y.) 9. * People v. Robertson, supra. " Wilcox v. Wood, 9 Wend. (N. Y.) 346 ; American Academy of Music v. Bert, 8 Pa. Co. Ct. R. 223 ; Martyn v. Clue, 18 Q. B. 661, 22 L. J. Q. B. 147, 83 E. C. L 661. « Jackson ex dem. Webb v. Roberts, 1 Wend. (N. Y.) 478; Carroll v. Bal- lance, 26 111. 19, 79 Am. Dec. 354; McMahan v. Jacoway, 105 Ala. 585, 17 South. 39. Merger will also destroy covenants Incident to the reversion. Webb v. Russel, 3 Term R. 393 ; Thorn v. Woolcombe, 3 Barn. & Adol. 586. ■> Story v. Ulman, 88 Md. 244, 41 Atl. 120 ; Burnett v. Scribner, 16 Barb. (N. Y.) 621 ; Mixon v. Coffield, 24 N. C. 301. s Matter of Hughey, 7 N. Y. St. Rep. 732. » Starr v. Church, 112 Md. 171, 76 Atl. 595 ; Debozear v. Butler, 2 Grant Cas. (Pa.) 417. io Moston v. Stow, 91 Mo. App. 554; Reed v. Munn, 148 Fed. 737, 80 C. C. A. 215. ii Simmons v. MacAdaras, 6 Mo. App. 297; Burton v. Barclay, 7 Bing. 745, 5 M. & P. 785, 20 E. C. L. 331. 12 Even though the term be longer than the life estate can possibly last. 1 Washb. Real Prop. (5th Ed.) 586. is 4 Kent, Comm. (12th Ed.) 99. The second term need not be as long as the term to be merged. Stephens v. Bridges, 6 Madd. 66. i* Smiley v. Van Winkle, 6 Cal. 605; Shepard v. Spalding, 4 Mete. (Mass.) 416 ; Sutliff v. Atwood, 15 Ohio St. 186. Where the Intention of the parties is not to merge the estate, no merger results. Spencer v. Austin, 38 Vt. 258. 222 ESTATES LESS /THAN FREEHOLD ESTATES FOE TEARS (Ch. 10 in connection therewith the premises are surrendered. 16 A convey- ance, however, by a tenant to one of several lessors will not operate as a merger. 16 Destruction of Premises At common law, a lease of land on which there is a building is not terminated by "the destruction of the building. 17 Where, how- ever, a room, or a building, is leased apart from the land, the destruction of the premises, in absence of a covenant to rebuild, will end the term. 1 . 8 The matter is regulated by statute in a num- ber of states, provision being made that, in absence of an agree- ment to the contrary, the destruction of leased premises, without fault on the tenant's part, may, at the tenant's option, operate as a termination of the lease. 19 The parties may, of course, stipu- late what effect, if any, the destruction, or the injury, of the prem- ises shall haveupon the lease. 20 Surrender A surrender will terminate an estate for years. 21 By surrender is meant the yielding up of the leasehold to the landlord in accord- is Kower v. Gluck, 33 Cal. 401. " Sperry v. Sperry, 8 N. H. 477. "Moran v. Bergin, 111 111. App. 313; Lanpher v. Glenn, 37 Minn. 4, 33 N. W. 10; Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S. W. 1007. is McMillan v. Solomon, 42 Ala. 356, 94 Am. Dec. 654; Gavan v. Norcross, 117 Ga. 356, 49 S. E. 771; Austin v. Field, 7 Abb. Prac. N. S. (N. T.) 29; Stockwell v. Hunter,. 11 Mete. (Mass.) 448, 45 Am. Dec. 220; Hecht v. Herr- wagen, 13, Misc. Rep. 316. 34 N. T. Supp. 456 ; Graves v. Berdan, 26 N. T. 498; Ainsworth v. Ritt, 38 Cal. 89; Buschman v. Wilson, 29 Md. 553. This is regulated by statute in some states. 1 Stim. Am. St. Law, § 2062. And see Craig v. Butler, 83 Hun, 286, 31 N. T. Supp. 963 ; Fleischman v. Toplitz, 134 N. Y. 349, 31 N. E. 1089. i» Reynolds v. Egan, 123 Da. 294, 48 South. 940; Fleischman v. Toplitz, 134 N. Y. 349, 31 N. E. 1089 ; Viterbo v. Friedlander, 22 Fed. 422. And see GAY v. DAVEY, 47 Ohio St. 396, 25 N. E. 425, Burdick Cas. Real Property. soTedstrom v. Puddephatt, 99 Ark. 193, 137 S. W. 816, Ann. Cas. 1913A, 1092; Woodside v. Talley, 135 Ga. 337, 69 S. E. 492; Weeber v. Hawes, 80 Minn. 476, S3 N. W. 447; Wall v. Hinds, 4 Gray (Mass.) 256, 64 Am. Dec. 64 ; Einstein v. Levi, 25 App. Div. 565, 49 N. Y. Supp. 674 ; Beham v. Ghio, 75 Tex. 87, 12 S. W. 996. 2i Conway v. Carpenter, 80 Hun, 428, 30 N. Y. Supp. 315; Hooks v. Forst, 165 Pa. 238, 30 Atl. 846; Wolf v. Guffey, 161 Pa. 276, 28 Atl. 1117; Barn- hart v. Lockwood, 152 Pa. 82, 25 Atl. 237; May v. Oil Co., 152 Pa. 518, 25 Atl. 564; Williams v. Vanderbilt, 145 111. 238, 34 N. E. 476, 21 L. R. A. 489, 36 Am. St. Rep. 486 ; Smith v.' Pendergast, 26 Minn. 318, 3 N. W. 97S ; Nelson v. Thompson, 23 Minn. 508. See Burnham v. O'Grady, 90 Wis. 461, 63 N. W. 1049 ; Aderhold v. Supply Co., 158 Pa. 401, 28 Atl. 22 ; National Union Bldg. Ass'n v. Brewer, 41 111. App. 223. The surrender must be accepted. Joslin v. McLean, 99 Mich. 480, 58 N. W. 467 ; Stevens v. Pantlind, 95 Mich. 145, 54 N. W. 716 ; Lane v. Nelson, 167 Pa. 602, 31 Atl. 864 ; Reeves v. McComeskey, § 82) TERMINATION OF ESTATES FOE YEARS 223 ance with a mutual agreement th^t it shall be extinguished. 22 A surrender may be express, 28 or it may result as an operation of law. 24 There must be a consideration in order to support a sur- render. 25 When the parties to the lease act in a way entirely inconsistent with the relationship of landlord and tenant, a surrender may be implied by law. 28 For example, a conveyance of the leased prem- ises by the lessor to- the lessee amounts to a surrender. 27 The ac- ceptance of a new lease during the term may operate as a surren- der of the former lease. 28 There is also a surrender by operation of law, when the landlord, by a new lease, with the consent of the tenant, substitutes a new tenant for the former. 28 A sublessee or assignee of the lease cannot, however, without the consent of the original tenant, surrender the term to the original landlord, so as to affect the original tenant. 80 Eviction The relation of landlord and tenant will be terminated by an actual eviction of the tenant by a title paramount, and will relieve 168 Pa. 571, 32 Atl. 96; Rees v. Lowy, 57 Minn. 381, 59 N. W. 310; Stern v. Thayer, 56 Minn. 93, 57 N. W. 329. 22 Martin v. Stearns, 52 Iowa, 345, 3 N. W. 92; Sammis v. Day, 48 Misc. Rep. 327, 96 N. Y. Supp. 777; Greider's Appeal, 5 Pa. 422. 23 McKinney v. Reader, 7 Watts (Pa.) 123. 24 McKinney v. Reader, supra ; Acheson v. McMurray, 41 TJ. O. Q. B. 484. 2B Creighton v. Finlayson, 46 Neb. 457, 64 N. W. 1103; Wallace v. Patton, 12 CI. & F. 491, 8 Eng. Reprint, 1501. See, also, Goldsmith v. Schroeder, 93 • App. Div. 206, 87 N. Y. Supp. 558. so Churchill v. Lammers, 60 Mo. App. 244; Buffalo County Nat Bank v. Hanson, 34 Neb. 455, 51 N. W. 1035 ; Miller v. Dennis, 68 N. J. Law, 320, 53 Atl. 394; Levitt v. Zindler, 136 App. Div. 695, 121 N. Y. Supp. 483; Beall v. White, 94 U. S. 382, 24 L. Ed. 173. 27 O'Dougherty v. Remington, 7 Hun (N. Y.) 514; Doe v. Hunter, 4 TJ. C. Q. B. 449. 2 8 West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 111. 288, 43 N. E. 393 ; Bowman v. Wright, 65 Neb. 661, 91 N. W. 580, 92 N. W. 580 ; Douglaston Realty Co. v. Hess, 124 App. Div. 508, 108 N. Y. Supp. 1036; Reading Trust Co. v. Jackson, 22 Pa. Super. Ct. 69 ; Wade v. Oil Co., 45 W. Va. 380, 32 S. E. 169 ; Walker v. Githens, 156 Pa. 178, 27 Atl. 36 ; Evans v. McKanna, 89 Iowa, 362, 56 N. W. 527. But see Witmark v. Railroad Co., 76 Hun, 302, 27 N. Y. Supp. 777. Cf. Beal v. Car Spring Co., 125 Mass. 157, 28 Am. Rep. 216. 20 Hoerdt v. Hahne, 91 111. App. 514; Donahoe v. Rich, 2 Ind. App. 540, 28 N. E. 1001 ; Weiner v. Baldwin, 9 Kan. App. 772, 59 Pac. 40 ; Drew v. Billings- Drew Co., 132 Mich. 65, 92 N. W. 774 ; Bowen v. Haskell, 53 Minn. 4S0, 55 N. W. 629; Gutman v. Conway, 45 Misc. Rep. 363, 90 N. Y. Supp. 290; Com- mercial Hotel Co. v. Brill, 123 Wis. 638, 101 N. W. 1101. so Firth v. Rowe, 53 N. J. Eq. 520, 32 Atl. 1064; Baynton v. Morgan, 22 Q. B. D.-74, 53 J. P. 166, 58 L. J. Q. B. 139. 224 ESTATES LESS THAN FREEHOLD ESTATES FOR TEARS (Ch. 10 the tenant from an obligation tp pay the subsequent rent. 81 ^ It is not necessary, however, that there should be an actual physical eviction. Any act on the part of the landlord which permanently deprives the tenant of the use and enjoyment of the premises will amount to an eviction. 32 There must be, however, an aban- donment of the premises in order to give rise to a constructive eviction. 33 The right to rent would be restored, moreover, if the tenant should return and occupy the premises. 8 * An eviction from a part of the premises does not necessarily put an end to the lease, 85 although it would relieve the tenant, pro rata, from his lia- bility' for rent. 88 Forfeiture When the lease expressly provides that the landlord may treat the lease as terminated upon the breach of a condition, or of a covenant, his election to do so puts an end to the term. 37 For- feitures for such breaches are not favored, however, by the courts, 38 and when the breach is due to accident or mistake, and can be compensated in damages, as it usually can be in the case of rent, relief will be granted the tenant. 88 The relief doe's not extend si Wright v. Lattin, 38 111. 293; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Pridgeon v. Boat Club, 66 Mich. 326, 33 N. W. 502; Holmes v. Guion, 44 Mo. 164; Lester v. Griffin, 57 Misc. Rep. 628, .108 N. Y. Supp. 580; Murphy v. Marshell, 179 Pa. 516, 36 Atl. 294. 32 Fleming v. King, 100 Ga. 449, 28 S.- E. 239; Jennings v. Bond, 14 Ind. App. 282, 42 N. B. 957; McCall v. Ins. Co., 201 Mass. 223, 87 N. E. 582, 21 L. R. A. (N. S.) 38; Pox v. Murdock, 58 Misc. Rep. 207, 109 N. Y. Supp. 108; Hoeveler v. Flemming, 91 Pa. 322. 33 Anderson v. Winton, 136 Ala. 422, 34 South. 902 ; Fred K. Higbie Co. v. Charles Weeghman Co., 126 111. App. 97; Mahoney v. Malting Co., 57 Misc. Rep. 430, 108 N. Y. Supp. 237; Talbott v. English, 156 Ind. 299, 59 N. E. 857 ; Witte v. Quinn, 38 Mo. App. 681 ; Sutton v. Foulke, 2 Pa. Co. Ct. R. 529. 34 Martin v. Martin, 7 Md. 368, 61 Am. Dec. 364; Mackubin v. Whetcroft, 4 Har. & Mc. (Md.) 135 ; Cibel v. Hill, 4 Leon. 110. 3 5 Smith v. McEnany, 170 Mass. 26, 48 N. E. 781, 64 Am. St Rep. 272; Leishman v. White, 1 Allen (Mass.) 489. 3 6 Seabrook v. Moyer, 88 Pa. 417; Stokes v. Cooper, 3 Campb. 513. 37 See Miller v. Havens, 51 Mich. 482, 16 N. W. 865 ; Lowther Oil Co. v. Guffey, 52 W. Va. 91, 43 S. E. 101 (failure to work an oil lease) ; Carnegie Nat. Gas Co. v. Philadelphia Co., 158 Pa. 317, 27 Atl. 951 ; Heinouer v. Jones, 159 Pa. 228, 28 Atl. 228. In a few states the statutes require a short notice. 1 Stim. Am. St Law, §§ 2054, 2055. ss Patterson v. Trust Co., 231 111. 22, 82 N. E. 840, 121 Am. St. Rep. 299; Bacon v. Furniture Co., 53 Ind. 229; Cole v. Johnson, 120 Iowa, 667, 94 N. W. 1113 ; Miller v. Havens, supra ; Tate v. Crowson, 28 N. C. 65. And see Sommers v. Reynolds, 103 Mich. 307, 61 N. W. 501 ; Drake v. Lacoe, 157 Pa. 17, 27 Atl. 538. s» Baxter v. Lansing, 7 Paige (N. Y.) 350; Gregory v. Wilson, 9 Hare; 683; § 82) TERMINATION OF ESTATES FOR TEARS 225 to cases, however, where the damage is not a mere matter of computation, as .where there is a breach of a covenant not to assign, or a covenant to repair. 40 In order to effect a forfeiture there must be some provision in the lease for such a result, or a right of re-entry upon the breach. 41 In some jurisdictions it is provided by statute, however, that the breach of certain covenants, as, for example, a failure to pay rent, 42 or an agreement not to as- sign or sublet, 48 will authorize the landlord to terminate the lease, irrespective of any express covenant to that effect. To create a forfeiture for nonpayment of rent, there must be, at common law, a demand for its payment upon the most notorious place of the premises. 44 Under the statutes, however, the requirement of such a demand is dispensed with by giving, in lieu thereof, a notice to quit. 46 Re-entry for forfeiture is optional with the lessor. 48 The lessee cannot insist upon it, and so avail himself of Notes v. Gibbon, 3 Drew. 681. But see Rolfe v. Harris, 2 Price, 206, note; Cage v. Russel, 2 Vent 352. *o 2 Tayl. Dandl. & Ten. (8th Ed.) 81. *i Denecke v. Miller, 142 Iowa, 486, 119 N. W. 380, 19 Ann. Cas. 949; Peo- ple, to Use of Wilkinson Co., v. Gilbert, 64 111. App. 203 ; Phillips v. Tucker, 3 Ind. 132;"Vanatta v. Brewer, 32 N. J. Eq. 268; Doe v. Godwin, 4 M. & S. .265, 16 Rev. Rep. 463. 42 See Brown v. Thompson, 45 Ind. App. 188, 90 N. E. 631; Chadwick v. Parker, 44 111. 326; Hendrickson v. Beeson, 21 Neb. 61, 31 N. W. 266. 4s See Bernero y. Allen, 68 Cal. 505, 9 Pac. 429; Wray-Austin Mach. Co. v. Flower, 140 Mich. 452, 103 N. W. 873 ; Markowitz v. Theatrical Circuit Co. (Tex. Civ. App.) 75 S. W. 74. 44 McGlynn v. Moore, 25 Cal. 384; Chapman v. Wright, 20 111. 120; Jenkins v. Jenkins, 63 Ind. 415, 30 Am. Rep. 229; Chapman v. Harney, 100 Mass. 353; Blackman v. Welsh, 44 Mo. 41 ; Jewett v. Berry, 20 N. H. 36 ; Van Rensselaer v. Jewett, 2 N. Y. 141, 51 Am. Dec. 275 ; Prout v. Roby, 15 Wall. (U. S.) 471, 21 L. Ed. 58. At common law, the demand must be made on the land, at the front door of the house, if there is a house, and at a convenient time before sunset of the very day the rent falls due, unless a demand is dispensed with by the terms of the lease. 2 Tayl. Landl. & Ten. § 493 ; Smith v. Whitbeck, 13 Ohio St. 471; Jackson ex dem. Welden v. Harrison, 17 Johns. (N. T.) 66; Van Rensselaer v. Snyder, 9 Barb. (N. Y.) 302; Connor v. Bradley, 1 How. (V. S.) 211, 11 L. Ed. 105; Paylor v. Brice, 7 Ind. App. 551, 34 N. E. 833. Cf. Haynes v. Investment Co., 35 Neb. 766, 53 N. W. 979. Even if no person be upon the land, the old rule was that the demand should be made of the land itself as the principal debtor. Kidwelly v. Brand, Plowd. 70. 4o Wm. J. Lemp Brewing Co. v. Lonergan, 72 111. App. 223 ; Woods v. Soucy, 166 111. 407, 47 N. E. 67; Cockerline v. Fisher, 140 Mich. 95, 103" N. W. 522 ; Van Renssalaer v. Ball, 19 N. T. 100 ; Bowyer v. Seymour, 13 W. Va. 12 ; Skinner's Co. v. Knight, 2 Q. B. 542, 56 J. P. 36, 60 L. J. Q. B. 629. 48 Hopkins v. Levandowski, 250 111. 372, 95 N. E. 496 ; Kansas Natural Gas Co. v. Harris, 79 Kan. 167, 100 Pac. 72; Morrison v. Smith, 90 Md. 76, 46 Atl. 1031 ; Small v. Clark, 97 Me. 304, 54 Atl. 758 ; Trask v. Wheeler, 7 Allen Burd.Eeal Pbop. — 15 226 ESTATES LESS THAN FREEHOLD ESTATES FOE TEAKS (Ql. 10 his own breach.* 7 Acceptance of rent accruing after a breach will be a waiver of the forfeiture, 48 but acceptance of rent due before the breach will not. 49 Other acts of the landlord, with knowledge of the breach, showing an intentidn to treat the lessee as his ten- ant, will also operate as a waiver. 50 Eminent Domain , If the demised premises are taken under the power of eminent domain, the relation of landlord and tenant comes to an end, 61 particularly where the lease so provides. 52 If only a part is taken, both lessor and lessee can claim compensation for the taking, and (Mass.) 109; Simon v. Sehmitt (Mun. Ct.) 118 N. Y. Supp. 326; Cochran v. Pew, 159 Pa. 184, 28 Atl. 219. Or his assignee, who may also claim it. 2 Tayl. Landl. & Ten. (Sth. Ed.) 75. And see. Wilson v. Goldstein, 152 Pa. 524, 25 Atl. 493. 47 Gibson v. Oliver, 158 Pa. 277, 27 Atl. 9C1; Brady v. Nagle (Tex. Civ. App.) 29 S. W. 943; Arnsby v. Woodward, 6 Barn. & C. 519; Reid v. Parsons, 2 Chit. 247. 48 Jackson ex dem. Norton v. Sheldon, 5 Cow. (N. Y.) 448 ; Bleecker v. Smitb, 13 Wend. (N. T.) 530; Gomber v. Hackett, 6 Wis. 323, 70 Am. Dec. 467; Newman v. Butter, 8 Watts (Pa.) 51; Doe v. Bees, 4 Bing. N. C. 384; Koehler v. Brady, 78 Hun, 443, 29 N. Y. Supp. 388; Brooks v. Bodgers, 99 Ala. 433, 12 South. 61. The landlord must have knowledge of the breach. , Jackson ex dem. Lewis v. Schutz, 18 Johns. (N. Y.) 174, 9 Am. Dec. 195 ; Peo- ple's Bank of City of New York v. Mitchell, 73 N. Y. 406 ; Garnhart v. Fin- ney, 40 Mo. 449, 93 Am. Dec. 303 ; Roe v. Harrison, 2 Term B. 425 ; Barber v. Stone, 104 Mich. 90, 62 N. W. 139 ; Stover v. Hazelbaker, 42 Neb. 393, 60 N. W. 597 ; Bowling v. Crook, 104 Ala. 130, 16 South. 131. But see Miller v. Prescott, 163 Mass. 12, 39 N. E. 409, 47 Am. St. Bep. 434. * » Jackson ex dem. Blanchard v. Allen, 3 Cow. (N. Y.) 220; Hunter v. Osterhoudt, 11 Barb. (N. Y.) 33; Conger v. Duryee, 24 Hun (N. Y.) 617; Prazier v. Caruthers, 44 111. App. 61 ; Carraher v. Bell, 7 Wash. 81, 34 Pac. 469. so Hopkins v. Levandowski, 250 111. 372, 95 N. E. 496 ; Heitz v. Telephone Co., 46 Ind. App. 485, 92 N. E. 1040 ; Montant v. Moore, 135 App. Div. 334, 120 N. Y. Supp. 556; Norris v. Morrill, 43 N. H. 213; People's Bank of City of New York v. Mitchell, 73 N. Y. 406 ; ' Lynch v. Gas Co., 165 Pa. 518, 30 Atl. 984; Deaton v. Taylor, 90 Va. 219, 17 S. E. 944; Little Bock Granite Co. v. Shall, 59 Ark. 405, 27 S. W. 562. But see Cleminger v. Gas Co., 159 Pa. 16, 28 Atl. 293 ; Williams v. Vanderbilt, 145 111. 238, 34 N. E. 476, 21 L. B. A. 489, 36 Am. St. Bep. 486 ; Jones v. Durrer, 96 Cal. 95, 30 Pac. 1027 ; Moses v. Loomis, 156 111. 392, 40 N. E. 952, 47 Am. St. Bep. 194. A notice to quit at the end of a certain time, given after the breach, may constitute a waiver. Doe v. Miller, 2 Car. & P. 348 ; Doe v. Allen, 3 Taunt. 78. « City of Chicago v. Messier, 38 Fed. 302; Board of Levee Com'rs v. John- son, 66 Miss. 248, 6 South. 199; Barclay v. Picker, 38 Mo. 143; Biddle v. Hussman, 23 Mo. 597. Compare City of Chicago v. Garrity, 7 111. App. 474. 52 Goodyear Shoe Mach. Co. v. Terminal Co., 176 Mass. 115, 57 N. E. 214; United States v. Inlots, Fed. Cas. No. 15,441a. § 82) TERMINATION OF ESTATES FOB YEAR3 227 the tenancy continues, 63 although the relation of landlord and tenant will be terminated pro tanto." A lease will also be terminated by other acts of law, as for example, by a mortgage foreclosure sale, where the mortgage antedated the lease, 56 or by an execution sale upon a judgment rendered before the lease was made. 66 " Parks v. City of Boston, 15 Pick. (Mass.) 198; Workman v. Mifflin, 30 Pa. 362; City of Chicago v. Garrity, 7 111. App. 474; Foote v. City of Cin- cinnati, 11 Ohio, 408, 38 Am. Dec. 737. And see Corrigan v. City of Chicago, 144 111. 537, 33 ,N. E. 746, 21 L. K. A. 212. « Kingsland v. Clark, 24 Mo. 24 ; Gillespie v. New York, 23 Wend. (N. Y.) 643 ; Workman v. Mifflin, 30 Pa. 362. "Barelii v. Szymanski, 14 La. Ann. 47; Oakes v. Aldridge, 46 Mo. App. 11 ; Burr v. Stenton, 52 Barb. (N. Y ) 377. «« Smith v. Aude, 46 Mo. App. 631. 228 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 CHAPTER XI i ESTATES LESS THAN FREEHOLDS (Continued)— TENANCIES AT WILL, FROM YEAR TO YEAR, AND AT SUFFERANCE 83. Tenancies at Will. 84. Creation. , 85. Incidents. 86. Termination. 87. . Tenancies from Year, to Year. 88. Creation. 89. Incidents. 90. Termination. 91. Tenancies at Sufferance. 92. Creation 93. Incidents. 94. Termination. 95. Renting Land on Shares. 96. Letting of Lodgings. 97. Licenses. 08. Revocation of Licenses. TENANCIES AT WILL 83. A tenancy at will is a letting of land to be held during the joint will of the parties. SAME— CREATION 84. Tenancies at will are created : (a) At common law, by letting for an indefinite period, not in 'a form to pass a freehold, and without a reservation of rent. (b) By express agreement. (c) By implication of law. (d) By holding over a definite term in some jurisdictions, with the assent of the landlord. Tenancies at will, although not anciently classed as estates,, were recognized by the time of Littleton. 1 That author defines a tenant at will as "where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor; by force of i A. D. 1422-1481. § 84) CREATION 229 which lease the lessee is in possession." a It was determined very early, however, that estates at will, were equally at the will of either party, 8 and, as defined above, an estate at will is one that a tenant who has made entry thereon holds during the joint will of both the lessor and the lessee. 4 The tenancy is not created, however, until the lessee enters. 5 A genera} letting without 'lim- itation as to duration of a term (not being in a form to pass an estate of freehold), or a mere permission to enter and occupy, creates a tenancy at will, provided no rent is reserved. 8 Although the reservation of a rent raises a presumption that the tenancy is from year to year, 7 and while the payment of rent will gen- erally operate to turn a tenancy at will into a tenancy from year to year, yet a reservation of rent not referable to a year, or any definite part of a year, will not, produce such a result, 8 and by express agreement a tenancy may remain one at will, even if rent is paid. 9 A tenancy at will may be created not only by express agreement, 10 but it may also arise by' implication of law. 11 In such cases the entry is usually for 'some other purpose than to create a tenancy. Thus one who enters under a contract to pur- chase, and remains after the negotiation has fallen through, be- comes a tenant at will. 12 So a vendor or lessor, by continuing 2 Litt, § 68; Co. Litt. 55a; 2 Blk. Comm. 145. s Co. Litt. 55a ; 2 Blk. Comm. 145 ; HUNTER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Cas. Real Property. * Bright v. McQuat, 40 Ind. 521 ; Martin v. Knapp, 57 Iowa, 336, 10 N. W. 721; Cheever v. Pearson, 16 Pick. (Mass.) 266; Shaw v. Hoffman, 25 Mich. 162 ; Mhoon v. Drizzle, 14 N. C. 414 ; Beauchamp v. Runnels, 35 Tex. Civ. App. 212, 79 S. W. 1105. e Hardy v. Winter, 38 Mo. 106 ; Pollock v. Kitrell, 4 N. C. 585. « Jones v. Shay, 50 Cal. 508 ; Michael v. Curtis, 60 Conn. 363, 22 Atl. 949 ; Bedell v. Clark, 151 111. App. 419 ; Gardner v. Hazelton, 121 Mass. 494 ; Haines v. Beach, 90 Mich. 563, 51 N. W. 644; Powell v. Plank, 141 Mo. App. 406, 125 S. W. 836 ; Pfanner v. Sturmer, 40 How. Prac. (N. T.) 401 ; Lyons v. Railroad Co., 209 Pa. 550, 58 Atl. 924. i Fuller v. Sweet, 30 Mich. 237, 18 Am. Rep. 122 ; Dumn v. Rothermel, 112 Pa. 272, 3 Atl. 800; Morgan v. Williams, 39 Pa. Super. Ct. R. 580; Hel- lams v. Patton, 44 S. C. 454, 22 S. E. 608 ; Silsby v. Allen, 43 Vt. 172. s Braithwaite v. Hitchcock, 2 Dowl. P. C. N. S. 444, 6 Jur. 976, 12 L. J. Exch. 38, 10 M. & W. 494; Richardson v. Landridge, 4 Taunt. 128, 13 Rev. Rep. 570. a Waring v. Railroad Co. (C. C.) 19 Fed. 863 ; Larkin v. Avery, 23 Conn. 304; Leake, Land. 208. Cf. Doe v. Cox, 11 Q. B. 122. io Den ex dem. McEowen v. Drake, 14 N. J. Law, 523; McFarland Real Estate Co. v. Hotel Co., 202 Mo. 597, 100 S. W. 577. ii Willis v. Harrell, 118 Ga. 906, 45 -S. E. 794; Sullivan v. Enders, 3 Dana (Ky.) 66; Den ex dem. McEowen v. Drake, 14 N. J. Law, 523; Utah Optical Co. v. Keith, 18 Utah, 464, 06 Pac. 155. 12 WEED v. LINDSAY, 88 Ga. 686, 15 S. E. 836, 20 L. R. A. 33, Burdick 230 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 in possession, may become a tenant at will. 13 Likewise, an oc- cupancy under an invalid lease is, for the time being, a tenancy at will ; 14 and occupancy under an invalid parol lease, made for a longer term than is permitted by the statute of frauds, makes the tenant merely one at will. 10 In some states, moreover, the only tenancy that can be created without writing is a tenancy at will. 18 SAME— INCIDENTS 85. The principal incidents of a tenancy at will are the following: (a) The tenant is entitled to emblements, unless he terminates the tenancy himself, {b) He must not commit waste, (c) His interest cannot be sold on execution. Cas. Real Property; Dunne v. Trustees, 39 111. 578; Doe v. Chamberlaine, 5 Mees. & W. 14; Doe v. Miller, 5 Car. & P. 595; Gould v. Thompson, 4 Mete. (Mass.) 224; Manchester v. Doddridge, 3 Ind. 360. Entry under a parol contract to purchase creates a tenancy at will. Hall v. Wallace, 88 Cal. 434, 26 Pac. 360. But if the sale is not consummated, by fault of the vendee, he becomes a mere trespasser, and liable only in tort for the mesne profits. Prentice v. Wilson, 14 111. 91 ; Howard v. Shaw, 8 Mees. & W. 118 ; Smith v. Stewart, 6 Johns. (N. Y.) 46, 5 Am. Dec. 1S6; Clough v. Hosford, 6 N. H. 231; Glascock v. Robards, 14 Mo. 350, 55 Am. Dec. 108. A tenancy at will also arises when possession is taken under an agreement for a lease. Childers v. Lee, 5 N. M. 576, 25 Pac. 781, 12 L. R. A. 67. is Hall v. Henninger, 145 Iowa, 230, 121 N. W. 6, 139 Am. St Bep. 412 ; Leavitt v. Maykel, 203 Mass. 506, 89 N. E. 1056, 133 Am. St. Rep. 323 ; Leggett v. Exposition Co., 157 Mo. App. 108, 137 S. W. 893 ; Altschuler v. Lipschitz, 113 N. Y. Supp. 1058 ; Bennett v. Robinson, 27 Mich. 26 ; Tarlotting v. Bokern, 95 Mo. 541, 8 S. W. 547; Brooks v. Hyde, 37 Cal. 366; Sherburne v. Jones, 20 Me. 70. So of a debtor remaining in possession after execution sale. Nichols v. Williams, 8 Cow. (N. Y.) 13. But see Tucker v. Byers, 57 Ark. 215, 21 S. W. 227 ; Groome v. Almstead, 101 Cal. 425, 35 Pac 1021. The English rule required assent of the landlord or some new agreement, express or im- plied, to continue the tenancy under the lease. i* Mcintosh v. Hodges, 110 Mich. 319, 68 N. W. 158, 70 N. W. 550 ; Goodwin v. Clover, 91 Minn. 438, 98 N. W. 322, 103 Am. St. Rep. 517; Lehman v. Nolting, 56 Mo. App. 549; Israelson v. Wollenberg, 63 Misc. Rep. 293, 116 N. Y. Supp. 626 ; Jennings v. McComb, 112 Pa. 518, 4 Atl. 812. is Packard v. Railway Co., 46 111. App. 244 ; Danforth v. Cushing, 77 Me. 1S2; Sprague v. Quinn, 108 Mass. 553; Barrett v. Cox, 112 Mich.' 220, 70 N. W. 446 ; McParland Real Estate Co. v. Hotel Co., 202 Mo. 597, 100 S. W. 577; TALAMO v. SPITZMILLER, 120 IT. Y. 37, 23 N. E. 980, 8 L. R. A. 221, 17 Am. St Rep. 607, Burdick Cas. "Real Property. i« See Whitney v. Swett, 22 N. H. 10, 53 Am. Dec. 228; MATHEWS v. CARLTON, 189 Mass. 285, 75 N. E. 637, Buraick Cas. Real Property. § 86) • TERMINATION 231 . Every particular tenant who has an estate uncertain, as a ten- ant for life or at will, is, at common law, entitled to the annual productions of his labor. 17 If, however, the tenant at will puts an end to the relation of lessor and lessee, he is not entitled to emble- ments; 18 but he is so entitled when the lessor causes the ter- mination of the tenancy. 10 The ancient statutes relating to waste did not apply to the tenant at will, but the landlord might sue in trespass if the tenant committed voluntary waste. 20 It is held, however, that a tenant at will is bound to care for farm land in a husbandlike manner, 21 and other cases hold that the tenant's in- terest is forfeited for waste. 22 A tenant at will has no certain assignable interest, and no interest that can be sold on execution. 23 A sublease may, however, .be good between the immediate par- ties. 21 SAME— TERMINATION 86. A tenancy at will may, at common law, be terminated at any time by either party without notice. The parties may, however, agree to give notice, and, in many states, notice is required by statute. At common law, the parties to a strict tenancy at will may ter- minate it at any time either one chooses to do so, and without giving any previous notice of such intention to the other party. 25 it Litt. §§ 68, 69 ; Co. Litt. 55b ; Reilly v. Ringland, 39 Iowa, 106 ; Brown v. Thurston, 56 Me. 126, 96 Am. Dec. 438 ; Rising v. Stannard, 17 Mass. 282 ; Harwood v. Williams, 161 Mich. 368, 126 N. W. 475 ; Dale v. Parker, 143 Mo. App. 492, 128 S. W. 510; Harris v. Frink, 49 N. T. 24, 10 Am. Rep. 318; Reiff v. Reiff, 64 Pa. 134. is Carpenter v., Jones, 63 111. 517. i» Sherburne v! Jones, 20 Me. 70; Davis v. Thompson, 13 Me. 209; Simp- kins v. Rogers, 15 111. 397 ; Harris v. Frink, 49 N. T. 24, 10 Am. Rep. 318. 20 Holds. History Eng. Law, III, 107; Co. Litt. 57a (§ 71). si Turtle v. Langley, 68 N. H. 464, 39 Atl. 488. 22 Pettengill v. Evans, 5 N. H. 54; Daniels v. Pond, 21 Pick. (Mass.) 367, 32 Am. Dec. 269; Phillips v. Covert, 7 Johns. (N. Y.) 1; Rapallo, J., in Har- ris v. Frink, 49 N. Y. 33, 10 Am. Rep. 318. And see Perry v. Carr, 44 N. H. 118. 23 Packard v. Railway Co., 46 111. App. 244 ; Holbrook v. Young, 108 Mass. 83 ; Austin v. Thomson, 45 N. H. 113 ; Eeckhow v. Schanck, 43 N. Y. 448 ; Say v. Stoddard, 27 Ohio St. 478. And see 1 Stim. Am. St. Law, § 1344. 2* Holbrook v. Young, 108 Mass. 83; Meier v. Thiemann, 15 Mo. App. 307. so Herrell v. Sizeland, 81 111. 457; McGee v. Gibson, 1 B. Mon. (Ky.) 105; Curl v. Lowell, 19 Pick. (Mass.) 25 ; Jackson ex dem. Van Denberg v. Bradt, 2 Caines (N. Y.> 169. See HUNTER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Cas. Real Property. 232 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 The parties may, however, by agreement, provide for any kind of a notice they choose, and for any length of time before terminating the tenancy. 20 The statutes of many states now- require a notice before a tenancy at will can be terminated. 27 Where such notice is not required, and the parties have not stipulated for one, either landlord or tenant may put an end to the tenancy by almost any act which shows such an intention. 28 Any act on the part of the lessor which shows his intention to assert his right to possession terminates the tenancy. 29 An assignment by the tenant of his interest destroys the tenancy, at the landlord's option; so likewise a denial of the landlord's title. 81 TENANCIES FROM YEAR TO YEAR 87. A tenancy for an indefinite period, with an annual rent, pay- able yearly, or at aliquot periods of a year, is a tenancy from year to year. so Roth Tool Co. v. Spring Co., 93 Mo. App. 530, 67 S. W. 967; Currier v. Perley, 24 N. H. 219; Humphries v. Humphries, 25 N. C. 362; Doe v. Bell, 5 T. R. 471, 2 Rev. Rep. 642. 2 7 The length of notice required ranges from a few days to six months. See the following cases: Carteri v. Roberts, 140 Cal. 164, 73 Pac. S18; West- ern Union Tel. Co. v. Fain, 52 Ga. 18 ; Betz v. Maxwell, 48 Kan. 142, 29 Pac. 147 ; Gilbert v. Gerrity, 108 Me. 258, 80 Atl. 704 ; Sanf ord v. Harvey, 11 Cush. (Mass.) 93 ; Haines v. Beach, 90 Mich. 563, 51 N. W. 644 ; Larned v. Hudson, 60 N. T. 102 ; Richardson v. Langridge, 4 Taunt. 128, 13 Rev. Rep. 570. 2a Bennock v. Whipple, 12 Me. 346, 28 Am. Dec. 186 ; Ellis v. Paige, 1 Pick. (Mass.) 43 ; Chamberlin v. Donahue, 45 Vt. 50. But see Parker v. Constable, 3 Wils. 25 ; Jackson ex dem. Livingston v. Bryan, 1 Johns. (N. T.) 322. Death of either party terminates the tenancy. James v. Dean, 11 Ves. 383; Rising v. Stannard, 17 Mass. 282; Manchester v. Doddridge, 3 Ind. 360; Say v. Stoddard, 27 Ohio St 478. But the tenant has a reasonable time to remove his property. Ellis v. Paige, 1 Pick. (Mass.) 43. 2» Such as selling the premises, Howard v. Merriam, 5 Cush. (Mass.) 563 Jackson, ex dem. Phillips v. Aldrich, 13 Johns. (N. T.) 106; Curtis v. Galvin 1 Allen (Mass.) 215 ; or leasing them, Clark v. Wheelock, 99 Mass. 14 ; Grous tra v. Bourges, 141 Mass. 7, 4 N. E. 623. So does a demand of possession. Doe v. McKaeg, 10 Barn. & C. 721 ; Den ex dem. Howell v. Howell, 29 N. C 496 ; or acts which would otherwise be trespass, Turner v. Doe, 9 Mees. & W. 64.3 ; as an entry upon the land, Moore v. Boyd, 24 Me. 242. so King v. Lawson, 98 Mass. 309; Abbott v. Lapoint, 82 Vt. 246, 73 AG. 166 Doak v. Donelson's Lessee, 2 Terg. (Tenn.) 249, 24 Am. Dec. 485; Cooper v. Adams, 6 Cush. (Mass.) 87; Packard v. Railway Co., 46 111. App. 244. Den ex dem. Howell v. Howell, 29 N. C. 496. And see Hersey v. Chapin, 162 Mass. 176, 38 N. E. 442. si Tillotson v. Doe, 5 Ala. 407, 39 Am. Dec. 330 ; McCarthy v. Brown, '113 Cal. 15, 45 Pac. 14; Farrow's Heirs v. Edmundson, 4 B. Mon. (Ky.) 605, 41 Am. Dec. 250; Currier v. Earl, 13 Me. 216; Appleton v. Ames, 150 Mass. 34, 88) TENANCIES FROM TEAR TO YEAE — CREATION 233 SAME— CREATION 88. A tenancy from year to year generally arises whenever there is a reservation of rent in a letting which would otherwise be a tenancy at will. Tenancies from year to year are the creation of judicial deci- sions, based upon principles of policy and justice, out of what were anciently tenancies at will. 82 The inconveniences of tenancies at will induced the tribunals to provide some means of giving greater security to a tenant who held under no regular lease for years, 8 * and estates from year to year, with the right on each side of notice to quit, are a species of judicial legislation tempering the strict let- ter of the law by the spirit of equity. 84 At first, especially where an annual rent was reserved, the only rule was that the notice to quit should be a reasonable one; but later the courts adopted six months as a reasonable time. 86 It is now definitely settled that a general letting for no determinate period of time, but by which an annual rent is reserved, payable quarterly or otherwise, is a lease from year to year so long as both parties please, 86 unless, of course, it is the intention of the parties that a strict tenancy at will be created. 87 As between tenancies at will and, tenancies from year to year, the principal distinction is that a reservation of rent makes a general letting a tenancy from year- to year, 38 which, without a rent reserved, is at will; 88 that is, a tenancy 22 N. E. 69, 5 L. R. A. 206; Jackson ex dem. Haverly v. French, 3 Wend. (N. Y.) 337, 20 Am. Dec. 699. ss 1 Wood, Landl. & Ten. (2d Ed.) 85; 1 Tayl. Landl. & Ten. (8th Ed.) 62; HUNTER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Cas. Real Property. The only estate known to modern law which does not appear in Littleton's book, because it is of later origin, is the estate of the tenant from year to year. Holds. History of Eng. Law, II, 490. as Digby, Hist. Real Prop. c. 5, § 1. ' 8* 4 Kent, Comm. 115. 8 6 HUNTER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Cas. Real Prop- erty; 2 Blk. Comm. 147, note: "This kind of a lease was in use as long ago as the reign of Henry VIII, where half a year's notice seems to have been required to determine it," Citing Year Book, Tr, 13 Henry VIII, 15, 16. so Williams v. Hall Co., 80 Conn. 503, 69 Atl. 12; Tanton v. Van Alstine, 24 111. App. 405 ; Idalia Realty & Development Co. v. Norman, 232 Mo. 663, 135 S. W. 47, 34 L. R. A. (N. S.) 1069; Pugsley v. Aikin, 11 N. Y. 494; Hey v. McGrath, *81 Pa. 310. See Sharswood's Blk. Comm. II, 147. 87 See supra. 88 See supra. But cf. Richardson v. Langridge, 4 Taunt. 128. as Herrell v. Sizeland, 81 111. 457; Cheever v. Pearson, 16 Pick. (Mass.) 266; Burns v. Bryant, 31 N. Y. 453 ;' Sarsfleld v. Healy, 50 Barb. (N. Y.) 245; Cross 234 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 from year to year arises from a general letting with a reservation of rent, 40 or when possession is taken under a void lease for years, followed by a periodical rent. 41 The indefiniteness of the number of fixed rental periods is what distinguishes an estate from year to year, or from month to month 42 from an estate for years. A definite term for a year,* 3 or for a month,* 4 is a "tenancy for years, and not a tenancy from year to year, or from month to month. Speaking strictly, a tenancy "from year to year" is based upon a yearly rental; that is, a lease for a year certain, with a grow- ing interest during each successive year, springing out of the original contract. 46 Where the rent is an annual one, the fact that the rent is payable from quarter to quarter, 46 or from" month to month,* 7 does not change its character. 48 On the other hand, there may be created a tenancy from month to month, where a lease for v. Upson, 17 Wis. 618; Amick v. Brubaker, 101 Mo. 473, 14 S. W. 627; Le Tourneau v. Smith, 53 Mich. 473, 19 N. W. 151 ; Blanchard v. Bowers, 67 Vt. 403, 31 Atl. 848; Den ex dem. Humphries v. Humphries, 25 N. G. 362. And see Murray v. Cherrington, 99 Mass. 229 ; Sanf ord v. Johnson, 24 Minn. 172 ; Goodenow v. Allen, 68 Me. 308. 40 Mcintosh v. Hodges, 110 Mich. 319, 68 N. W. 158, 70 N. W. 550; TALAMO v. SPITZMILLER, 120 N. Y. 37, 23 N. E. 9S0, 8 L. R. A. 221, 17 Am. St. Rep. 607, Burdick Cas. Real Property; Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615; Second Nat Bank v. O. E. Merrill Co., 69 Wis. 501-, 34 N. W. 514; Hunt v. Morton, 18 111. 75 ; Ganson v. Baldwin, 93 Mich. 217, 53 N. W. 171 ; Lesley v. Randolph, 4 Rawle (Pa.) 123. But see Union Depot Co. v. Railway Co., 113 Mo. 213, 20 S. W. 792. *i Lockwood v. Lockwood, 22 Conn. 425 ; Farley v. McKeegan, 48 Neb. 237, 67 N. W. 161; Karsch v. Kalabza, 144 App. Div. 305, 128 N. Y. Supp. 1027; Baltimore & O. R. Co. v. West, 57 Ohio St. 161, 49 N. E. 344; Arbenz v. Exley, Watkins & Co., 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957. 42 See infra. 43 Brown's Adm'rs v. Bragg, 22 Ind. 122 ; Harley v. O'Donnell, 9 Pa. Co. Ct R. 56. *4 Id. 46 HUNTER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Cas. Real Property; Pugsley v. Aikin, 11 N. Y. 494; Snowhill v. Snowhill, 23 N. J. Law, 447; Hunt v. Norton, 18 111. 75. And see Lockwood v. Lockwood, 22 Conn. 425. 4« City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. St Rep. 763. , 4 7 Anderson v. Prindle, 23 Wend. (N. Y.) 616; Sebastian v. Hill, 51 111. App. 272; Lehman v. Nolting, 56 Mo. App. 549; Rogers v. Brown, 57 Minn. 223, 58 N. W. 981; Backus v. Sternberg, 59 Minn. 403, 61 N. W. 335. See, also, Cox v. Bent, 5 Bing. 185 ; Tress v. Savage, 4 El. & Bl. 36. 48 Schneider v. Lord, 62 Mich. 141, 28- N. E. 773. See, also, Price v. Ray- mond, 80 Conn. 607, 69 Atl. 935, and Johnson v. Albertson, 51 Minn. 333, 53 N. W. 642. § 88) TENANCIES FROM YEAR. TO TEAR — CREATION 235 an indefinite term with monthly reservation of rent is made.* This distinction is important sometimes, since a tenant for a year or more, who holds over his term without any new agreement, may be treated as a tenant from year to year, 60 and the tenancy be subject to the covenants in the original lease. 61 Moreover, un- less otherwise changed by statute or express agreement, a tenant who holds over is liable for rent for a term of the sarrfe length as the preceding term, 62 and a tenant from month to month, who holds over with the consent of his landlord, continues only as a mere tenant from month to month. 68 Such a tenant does not, moreover, become a tenant "from year to year" by continuing in possession for more than a year. 61 In some states tenancies "from year to year" have been abolished by statute. 66 *» Wall v. SHmpson, 83 Conn. 407, 76 Atl. 513 ; Thompson v. Baxter, 107 Minn. 122, 119 N. W. 797, 21 L. R. A. (N. S.) 575; Broadway Bldg. Co. v. Fergusson, 116 N. Y. Supp. 630; Wall v. Ullman, 2 Chest. Co. Rep. (Pa.) 178. bo Streit v. Pay, 230 111. 319, 82 N. B. 648, 120 Am. St. Rep. 304 ; Pyle v. Telegraph Co., 85 Kan. 24, 116 Pac. 229; Ganson v. Baldwin, 93 Mich. 217, 53 N. W. 171; Hartnett v. Korscherak, 59 Misc. Rep. 457, 110 N. Y. Supp. 986 ; Bakewell v. Turner, 36 Pa. Super. Ct 283. bi Goldsborough v. Gable, 140 111. 269, 29 N. E. 722, 15 L. R. A. 294; Gard- ner v. Commissioners, 21 Minn. 33; Stevens v. City of New York, 111 App. Div. 3G2, 97 N. Y. Supp. 1062 ; Laguerenne v. Dougherty, 35 Pa. 45. So, too, a tenancy from year to year may arise by holding over after the expira- tion of an estate for years. If the acts of the" parties show an intention to continue the- relation of landlord and tenant, the provisions of the old lease will govern, as far as they are applicable. Ashhurst v. Phonograph Co., 166 Pa. 357, 31 Atl. 116; Patterson v. Park, 166 Pa. 25, 30 Atl. 1041; Kleespies v. McKenzie, 12 Ind. App. 404, 40 N. E. 648 ; Johnson v. Doll, 11 Misc. Rep. 345, 32 N. Y. Supp. 132; Conway v. Starkweather, 1 Denio (N. Y.) 113; Hyatt v. Griffiths, 17 Q. B. 505 ; Amsden v. Atwood, 67 Vt. 2S9, 31 Atl. 448 ; Voss v. King, 38 W. Va. 607, 18 S. E. 762. But see Campau v. Michell, 103 Mich. 617, 61 N. W. 890; Chicago & S. E. Ry. Co. v. Perkins, 12 Ind. App. 131, 38 N. E. 487 ; Montgomery v. Willis, 45 Neb. 434, 63 N. W. 794 ; Golds- brough v. Gable, 49 111. App. 554. B2 Byxbee v. Blake, 74 Conn. 607, 51 Atl. 535, 57 L. R. A. 222; Kelly v. Armstrong, 139 111. App. 467; Commercial Wharf Corp. v. Boston, 194 Mass. . 460, 80 N. E. 645 ; Myers v. Dairy Co., 132 App. Div. 710, 117 N. Y. Supp. 569; Snyder v. Henry, 32 Pa. Super. Ct. 167. 6 3 Marraiche v. Roumieu, 11 La. Ann. 477; Backus v. Sternberg, 59 Minn. 403, 61 N. W. 335; Smith v. Smith, 62 Mo. App. 596; Baker v. Kenny, 69 N. J. Law, 180, 54 Atl. 526 ; Ward v. Hlnklenian, 37 Wash. 375, 79 Pac. 956. B* Jones v. Willis, 53 N. C. 430; Hollis v. Burns, 100 Pa. 206, 45 Am. Rep. 379 ; Spidle v. Hess, 20 Lane. Law Rev. (Pa.) 385. bb Semmes v. United States, 14 Ct. CI. 493. See 1 Stim. Am. St. Law, § 2005. 236 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 SAME— INCIDENTS 89. The principal incidents of estates from year to year are the following : (a) The tenant may take estovers. (b) He is entitled to emblements when the landlord terminates the tenancy. (c) At common law, he must repair. (d) The interests of the parties are assignable. The incidents and qualities of estates from year to year are for the most part the same as of estates for years. 58 The tenant is entitled to estovers, and to emblements, when the tenancy is ter- minated by the landlord, 87 but not when the tenant terminates it. The tenant's common-law duty to repair extends to keeping the premises wind and water tight. 68 'Either party may assign his interest, 69 and on the death of the tenant his interest goes to his personal representative. 60 After the termination of the tenancy has been fixed by notice, it becomes, in effect, equal to a term for years which has nearly expired. 61 SAME— TERMINATION f 90. A tenancy from year to year may be terminated, at common law, by either party by a notice given six months before the end of any year. It is also the rule that such a ten- ancy may be terminated by a notice equal to the length of the periods when the tenancy is for periods of six months or less. These rules, however, do not apply when a different notice has been provided for: (a) By agreement of the parties ; or (b) By statute, as is the case in most states. b« Washb. Real Prop. (5th Ed.) § 637. 07 2 Tayl. Landl. & Ten. (8th Ed.) § 134; Kingsbury v. Collins, 4 Bing. 202. 08 See, supra, Estates for Years. See, also, 2 Wood. Landl. & Ten. (2d Ed.) 992 ; 1 Tayl. Landl. & Ten. (8th Ed.) 401. As to waste by a tenant from year to year, see 2 Wood, Landl. & Ten. (2d. Ed.) 992; Torriano v. Young, 6 Car. & P. S. 68 Botting v. Martin, 1 Camp. 317; Cody v. Quarterman, 12 Ga. 386. «o Doe v. Porter, 3 Term R. 13; Cody v. Quarterman, 12 Ga. 386; Pugsley v. Aikin, 11 N. Y. 494. ei 1 Washb. Real Prop. (5th Ed.) 637; HUNTER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Cas. Real Property; Parrott v. Barney, Eed. Cas. No. 10,773a. § 90) TENANCIES FROM TEAR TO YEAR — TERMINATION 237 At common law, under a rule developed by the courts, a ten- ancy from year to year may be terminated by a six months' notice by the party wishing to terminate it. 62 This notice, moreover, must be so given that the six months will expire by the end of a year, 63 and, in general, whatever, length of notice may be required, a tenancy from year to year is terminated only by a notice to take effect at the end of the current year. 04 It' is also the general rule that notice equal to the length of the periods is requisite in case of tenancies measured by shorter periods. 86 The length of notice is now in most states regulated by statutes, 68 and in some states the statutes provide for a shorter notice of termination in case the tenant fails to pay the rent. 67 As a general rule, a tenant is required to give nptice in order to terminate the tenancy, the same, as in case of the landlord. 68 The statute may, however, confine the requirement of notice to the landlord ; no notice being required from the tenant. 69 The termination of the tenancy may, of course," be fixed by agreement between the parties. 70 In such a case, the time must be clearly stated, and it must be at the «2 Hall v. Myers, 43 Md. 446; Ellis v. Paige, 2 Pick. (Mass.) 71, note; HUN- TER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Cas. Real Property; Brady v. Flint, 23 Neb. 785, 37 N. W. 647 ; Hankinson v. Blair, 15 N. J. Law, 181 ; Brown v. Kayser, 60 Wis. 1, 18 N. W. 523. ,, «3 Doe v. Watts, 7 Term R. 83; Jackson ex dem. Livingston v. Bryan, 1 Johns. (N. T.) 322; Den ex dem. McEowen v. Drake, 14 N. J. Law, 523; Morehead v. Watkyns, 5 B. Mbn. (Ky.) 228 ; Critchfield v. Remaley, 21 Neb. 178, 31 N. W. 687 ; Right v. Darby, 1 Term R. 159 ; Bessell v. Landsberg, 7 Q. B. 638. But see Logan v. Herron, 8 Serg. & R. (Pa.) 459. «4 Usher v. Moss, 50 Miss. 208 ; Coudert v. "Cohn, 118 N. T. 309, 23 N. E. 298, 7 L. R. A. 69, 16 Am. St. Rep. 761;, Borough of Phcenixville v. Walters, 147 Pa. 501, 23 Atl. 776 ; Peehl v. Bumbalek, 99 Wis. 62, 74 N. W. 545. 6 6 Stewart v. Murrell, 65 Ark. 471, 47 S. W. 130; Seem v. McLees, 24 111. 192; People v. Darling, 47 N. Y. 666; Hollis v. Burns, 100 Pa. 206, 45 Am. Rep. 379 ; Steffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 214 ; Sanford v. Harvey, 11 Cush. (Mass.) 93; Prescott v. Elm, 7 Gush. (Mass.) 346. And see Grunewald v. Schaales, 17 Mo. App. 324 ; Doe v. Hazell, 1 Esp. 94. 66 The time required by the statutes varies from thirty days to a year. See the following cases: Ganson v. Baldwin, 93 Mich. 217, 53 N. W. 171; Ware v. Nelson, 4 Kan. App. 258, 45 Pac. 923 ; HUNTER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Oas. Real Property; Dumn v. Rothermel, 112 Pa. 272, 3 Atl. 800. And see 1 Stim. Am. St. Law, § 2052. 67 Leary v. Meier, 78 Ind. 393; Judd v. Fairs, 53 Mich. 518, 19 N. W. 266; Bowman v. Harrison, 59 Wash. 56, 109 Pac. 192. es Tanton v. Van Alstine, 24 111. App. 405 ; Nelson v. Ware, 57 Kan. 670, 47 Pac. 540; Huntington v. Parkhurst, 87 Mich. 38, 49 N. W. 597, 24 Am. St Rep. 146 ; Jones v. Herald Co., 44 S. C. 526, 22 S. E. 731. 60 Nelson v. Ware, 57 Kan. 670, 47 Pac. 540. io Woolsey v. Donnelly, 52 Hun, 614, 5 N. Y. Supp. 238. 238 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Chv 11 end of one of the periods. 71 Unless the statute, or the agree- ment of the parties, provides otherwise, the notice to terminate an estate from year to year need not be in writing. 72 It must, however, be certain and definite, 78 and the notice should be per- sonally served. 74 Although the tenancy comes to an end at the expiration of the notice, 76 yet the parties may waive its effect, and continue the relation. This may be done by express agree- ment, 78 or by acts showing such intention, 77 as, for instance, ac- ceptance by the landlord of rent accruing after the expiration of the notice. 78 TENANCIES AT SUFFERANCE 91. A tenancy at sufferance is a wrongful holding over of lands after the expiration of a previous lawful possession. ' SAME— CREATION 92. To create a tenancy at sufferance, the tenant must have come in by agreement, and not as a trespasser, and he. must hold without agreement. ti Brown v. Kayser, 60 Wis. 1, 18 N. W. 523; HUNTER v. FROST, 47 Minn. 1, 49 N. W. 327, Burdick Cas. Real Property; Finkelstein v. Herson, 55 N. J. Law, 217, 26 Atl. 688 ; Steffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 214 ; Logan v. Herron, 8 Serg. & R. (Pa.) 459 ; Prescqtt v. Elm, 7 Cush. (Mass.) 346; Sanford v. Harvey, 11 Cush. (Mass.) 93. But see Currier v. Barker, 2 Gray (Mass.) 224. "Timmins v. Rowlinson, 3 Burrows, 1603, 1 W. Bl. 533; Doe v. Crick, 5 Esp. 196 ; Eberlein v. Abel, 10 111. App. 626. 73 Doe v. Morphett, 7 Q. B. Div. 577; Doe v. Smith, 5 Adol. & E. 350; Ay res v. Draper, 11 Mo. 548; Steward v. Harding, 2 Gray (Mass.) 335; Granger v. Brown, 11 Cush. (Mass.) 191; Hanchet v. Whitney, 1 Vt. 311; Huyser v. Chase, 33 Mich. 102. t* Doe v. Williams, 6 Barn. & C. 41; Jackson v. Baker, 10 Johns. (N. Y.) 270. But see Walker v. Sharpe, 103 Mass. 154 ; Bell v. Bruhn, 30 111. App. 300; Doe v. Dunbar, Moody & M. 10. Notice to a subtenant is not sufficient. Pleasant v. Benson, 14 East, 234. It is sufficient, however, if actual knowl- edge of the notice is shown, for the required length of time. Alford v. Vick- ery, Car. & M. 280. 75 Hoske v. Gentzlinger, 87 Hun, 3, 33 N. Y. Supp. 747. 7« Supplee v. Timothy,, 124 Pa. 375, 16 Atl. 864. 77 See Tuttle v. Bean, 13 Mete. (Mass.) 275; Doe v. Palmer, 16 East, 53. 7s Goodright v. Cord went, 6 Term R. v 219; Collins v. Canty, 6 Cush. (Mass.) 415; Prindle v. Anderson, 19 Wend. (N. Y.) 391. Mere demand of rent so accruing will not necessarily be a waiver, Blyth v. Dennett, 13 C. B. 178; nor acceptance ,of rent due before the expiration of the notice, Kimball v. Rowland, 6 Gray (Mass.) 224; Norris v. Morrill, 43 N. H. 213. And see Graham v. Dempsey, 169 Pa. 460, 32 Atl. 408 ; Conner v. Jones. 28 Cal. 59. § 92) TENANCIES AT SUFFERANCE — CREATION 239 A tenancy at sufferance arises where one, after the expiration of his lawful possession, wrongfully holds over, without either the assent or dissent of the owner. 79 Such a tenancy may arise in various ways, as, for example, where a tenant for 'a fixed term holds over without any agreement, 80 or where a grantor of land wrongfully continues in possession after hi6 conveyance. 81 A tenant at sufferance is not a trespasser, 82 unless made so by stat- ute, 88 since his entry was lawful; but he is a wrongdoer, and, holds merely because the owner neglects to put him out. 8 * A tenant at will is a tenant by permission of his landlord, 88 but a tenant at sufferance continues in possession without such per- mission. 86 Such a tenant must, however, have come in originally by agreement, 87 and not by operation of law. A guardian, for example, in possession by operation of law, becomes a trespasser by continuing to hold his ward's land after the ward is of age. 88 There is, moreover, no tenancy at sufferance where the holding over is by agreement, either express or implied, 89 and a tenant at, sufferance may at any time become a tenant at will, or from year to year, by agreement with the landlord. 90 7» Co. Litt. 57b; Doe v. Hull, 2 Dosol. & R. 38; RUSSELL v. FABTAN, 34 N. H. '218. Burdlek Cas. Real Property ; Eichengreen v. Appel, 44 111. App. 19 ; TJridias v. Morrell, 25 Cal. 31 ; Willis v. Harrell, 118 Ga. 906, 45 S. E. 794 ; Finney's Trustees v. St Louis, 39 Mo. 177. soHauxhurst v. Lobree, 38 Cal. 563; Willis v. Harrell, supra; Brown v. Smith, 83 111. 291; Sanders v. Richardson, 14 Pick. (Mass.) 522; Jackson ex dem. Anderson v. McLeod, 12 Johns. (N. Y.) 182; Jackson ex dem. Van Courtlandt v. Parkhurst, 5 Johns. (N. Y.) 128. So a subtenant, after the ter- mination of the original lease, Simkin -v. Ashurst, Jl Cromp., M. & R. 261 ; or a tenant at will, whose estate has been terminated, Co. Litt. 57b ; Benedict v. Morse, 10 Mete. (Mass.) 223. And see Kinsley v. Ames, 2 Mete. (Mass.) 29. si Work v. Bray ton, 5 Ind. 396; Bennett v. Robinson, 27 Mich. 26. s 2 Rising v. Stannard, 17 Mass. 282. 83 In New York it is now provided by statute that a tenant who holds over a definite term for a brief period without the consent of his landlord does not thereby become a tenant at sufferance, but a trespasser. Smith v. Little- field, 51 N. Y. 539. si Willis v. Harrell, 118 Ga. 906, 45 S. E. 794; RUSSELL, v. FABYAN, 34 N. H. 218, Burdick Cas. Real Property. so Bush v. Fuller, 173 Ala. 511, 55 South. 1000; Finney's Trustees v. St. Louis, 39 Mo. 177; Willis v. Harrell, supra. soKuhn v. Smith. 125 Cal. Gin. 58 1'nc. 204. 73 Am. St. Repl 79; Salas v. Davis, 120 Ga. 95, 47 S. E. 044 ; Guenther v. Jar Co., 28 Pa. Super. Ct. 232. 8 7 Cook v. Norton, 48 111. 20. So the entry must be lawful. Reckhow v. Schanck, 43 N. Y. 448 ; Cunningham v. Holton, 55 Me. 33. as Johnson, J., in Livingston v. Tanner, 14 N. Y. 69. 8 9 Emmons v. Scudder, 115 Mass. 367; Johnson v. Carter, 16 Mass. 443. But see Appeal of Landis, 13 Wkly. Notes Cas. (Pa.) 226. »o Hoffmann. Clark, 63 Mich. 175, 29 N. W. 695; Emmons v. Scudder, 115 Mass. 367 ; Den ex dem. Decker v. Adams, 12 N. J. Law, 99. 240 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 SAME— INCIDENTS 93. The principal incidents of a tenancy at sufferance are as fol- lows: (a) The tenant is estopped to deny the landlord's title. (b) He is not liable for rent, at common law. (c) He is not entitled to emblements. A tenant at sufferance has no title, no interest, that he can assign. 91 He is, moreover, estopped to deny his landlord's title. 92 At common law, a tenant at sufferance is not liable for the rents and profits, 93 although the landlord may have his action for the use and occupation of the premises. 94 In some states, by force of statute, a tenant at sufferance may also be liable for rent. 95 The tenant at sufferance has no permanent rights in the lands " 8 and cannot claim emblements, even though the landlord terminates the tenancy before the tenant has harvested his crop. SAME— TERMINATION 94. At common law, a tenancy at sufferance may be terminated at any time, by either party, without notice. In some states, however, a notice is required by statute. A tenant at sufferance is not entitled, at common law, to a notice to quit, 97 although he is entitled to a sufficient time to remove " Reckhow v. Schanck, 43 N. X. 448. »2Kelley v. Kelley, 23 Me. 192; Towne v. Burterfield, 97 Mass. 105; Grit- fin v. Sheffield', 38 Miss.. 390, 77 Am. Dec. 646 ; Jackson ex dem. Anderson v. McLeod, 12 Johns. (N. Y.) 182. »3 2 Blk. Comm. 150; Martin v. Allen, 67 Kan. 758, 74 Pac. 249; Flood v. Flood, 1 Allen (Mass.) 217; Delano v. Montague, 4 Cush. (Mass.) 42. In several states he is made liable for rent by statute. 1 Stim. Am. St. Law, § 2022. • And see Cof ran v. Shepard, 148 Mass. 582, 20 N. E. 181. In many states a tenant who holds over when his interest is ended, and after demand by the landlord, becomes liable for statutory penalties. 1 Stim. Am. St. Law, § 20G0. »* Ibbs v. Richardson, 9 Adol. & E. 849; National Oil Refining Co. v. Bush, 88 Pa. 335 ; Hogsett v. Ellis, 17 Mich. 351. But see Merrill v. Bullock, 105 Mass. 486. »s Martin v. Allen, 67 Kan. 758, 74 Pac. 249; Flood v. Flood, 1 Allen (Mass.) 217. o« Benton v. Williams, 202 Mass. 1S9, 88 N. E. 843; International & G. N. Ry. Co. v. Ragsdale, 67 Tex. 24, 2 S. W. 515. or Lee Chuck v. Quan Wo Chong, 91 Cal. 593, 28 Pac. 45; Reed v. Reed, 48 § 95) BENTING LAND ON SHARES 241 from the premises. 98 In some states, however, the statutes require that a notice shall be given." In absence of such a statutory provision, the landlord may enter at any time, and after such entry may treat the tenant as a trespasser. 1 Some cases hold that the landlord may expel the tenant by force, 2 although the landlord in so doing may be liable to a criminal prosecution under the stat- utes relating to forcible entry and detainer. 8 The landlord, how- ever, according to the weight of authority, will not be liable to the tenant in a civil action for the latter's forcible expulsion, 4 although, by force of statutes providing summary remedies for the speedy recovery of his premises, other cases hold that the land- lord will not be justified in using violence in order, to expel his tenant, and, if he. does, the tenant may bring his action for dam- ages. 6 RENTING LAND ON SHARES 95. A renting of land on shares may, according to the character of the contract, give rise to different relations between the parties. Thus they may be: (1) Employer and employe. (2) Tenants in common of the crop. (3) Landlord and tenant. (4) Partners. Me. 388; Moore v. Moore, 41 N. J. Law, 515; Hooton v. Holt, 139 Mass. 54, 29 N. E. 221; Jackson ex dem. Van Courtlandt v. Parkhurst, 5 Johns. (N. Y.) 128; Jackson ex dem. Anderson v. McLeod, 12 Johns. (N. T.) 182; Livingston v. Tanner, 14 N. T. 64. And see Kinsley v. Ames, 2 Mete. (Mass.) 29 ; Benedict v. Morse, 10 Mete. (Mass.) 223. as Poole v. Johnson, 101 S. W. 955, 31 Ky. Law Rep. 168; Pratt v. Farrar, 10 Allen (Mass.) 519. so Livingston v. Tanner, 14 N. X. 64; Eichengreen v. Appel, 44 111. App. 19; 1 Stim. Am. St. Law, § 2050. And see Minard v. Burtis, 83 Wis. 267, 53 N. W. 509. il Wood, Landl. & Ten. (2d Ed.) 26; 1 Tayl. Landl. & Ten. (8th Ed.) 74. a Eichengreen v. Appel, 44 111. App. 19 ; Adams v. Adams, 7 Phila. (Pa.) 160; Wilde v. Cantillon, 1 Johns. Cas. (N. X.) 123; Overdeer v. Lewis, 1 Watts & S. (Pa.) 90, 37 Am. Rep. 440; Allen v. Keily, 17 R. I. 731, 24 Atl. 776, 16 L. R. A. 798, 33 Am. St. Rep. 905 ; Stearns v. Sampson, 59 Me. 568, 8 Am. Rep. 442; Todd v. Jackson, 26 N. J. Law, 525. Contra, Reeder v. Purdy, 41 111. 279; Wilder v. House, 48 111. 279; Dustin v. Cowdry, 23 Vt. 631. a Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272. * Stone v. Lahey, 133 Mass. 426 ; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80 ; Allen v. Keily, 17 R. I. 731, 24 Atl. 776, 16 L. R.' A. 798, 33 Am. St. Rep. 905 ; Adams v. Adams, 7 Phila. (Pa.) 160. e Entelman v. Hagood, 95 Ga. 390, 22 S. E. 545 ; Hubner v. Feige, 90 111. 208 ; Bued.Reai. Peop. — 16 242 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 Land is often cultivated under an agreement by which both the owner and the cultivator are to share in the crop. Such an agree- ment may establish the relation of employer and employe between the parties, a share of the crops being given in lieu of wages, 6 or they may be tenants in common of the crop,' or the transaction may constitute a leasing with a rent payable in crops, and the usual incidents of the relation of landlord and tenant exist. 8 As a rule, an ordinary contract to cultivate land on shares does not make the parties partners, 9 yet such a relation may be created if the parties so intend. 10 Exactly what relation js created between Brock v. Berry, 31 Me. 293; Graham v. Womack, 82 Mo. App. 618; Dustin v. Cowdry, 23 Vt. 631. « De Loach v. Delk, 119 Ga. 884, 47 S. E. 204 ; Chandler v. Thurston, 10 Pick. (Mass.) 205; Tanner v. Hills, 48 N. Y. 662; Steel v. Frick, 56 Pa. 172; Chase v. McDonnell, 24 111. 236; Gray v. Robinson, 4 Ariz. 24, 33 Pac. 712; Haywood v. Rogers, 73 N. C. 320; Neal v. Bellamy, 73 N. C. 384. But see Harrison v. Ricks, 71 N. C. 7; State v. Jones, 19 N. C. 544. Possession and property in the crop remain in the owner of the land. Adams v. McKesson's Ex'x, 53 Pa. 81, 91 Am. Dec. 183; Appling v. Odom, 46 Ga. 583. ' Loomis v. O'Neal, 73 Mich. 582, 41 N. W. 701 ; Black v. Scott (1904) 104 Mo. App. 37, 78 S. W. 301; Walker v. Fitts, 24 Pick. (Mass.) 191; Creel v. Kirkham, 47 111. 344 ; De Mott v. Hagerman, 8 Cow. (N. Y.) 220, 18 Am. Dec. 443; Dinehart r. Wilson, 15 Barb. (N. Y.) 595; Wilber v. Sisson, 53 Barb. (N. Y.) 258; Edgar v. Jewell, 34 N. J. Law, 259. And see Wood v. Noack, 84 Wis. 398, 54 N. W. 785; Caswell v. Districh, 15 Wend. (N. Y.) 379; Jones v. Durrer, 96 Cal. 95, 30 Pac. 1027; Lowe v. Miller, 3 Grat (Va.) 205, 46 Am. Dec. 188; Moser v. Lower, 48 Mo. App. 85. The usual incidents of a tenancy in common attach to such holdings. McLaughlin v. Salley, 46 Mich. 219, 9 N. W. 256; Otis v. Thompson, Lalor's Supp. (N. Y.) 131; Daniels v. Brown, 34 N. H. 454, 69 Am Dec. 505; Ferrall v. Kent, 4 Gill (Md.) 209; Hurd v. Darling, 14 Vt. 214. F° r tenancy in common, see post, chapter XII. s Walworth v. Jenness, 58 Vt. 670, 5 Atl. 887 ; Yates v. Kinney, 19 Neb. 275, 27 N. W. 132; Alwood v. Ruckman, 21 111. 200; Dixon v. Niccolls, 39 111. 372, 89 Am. Dec. 312 ; Jackson ex dem. Colden v. Brownell, 1 Johns. (N. Y.) 267 ; Johnson v. Hoffman, 53 Mo. 504. Cf. Barry v. Smith, 69 Hun, 88, 23 N. Y. Supp. 261 ; Rich v. Hobson, 112 N. C. 79, 16 S. E. 931. The right of the landlord to the crop attaches only on delivery. Burns v. Cooper, 31 Pa. 426; Caswell v. Districh, 15 Wend. (N. Y.) 379; Butterfield v. Baker, 5 Pick. (Mass.) 522; Alwood v. Ruckman, 21 111. 200; Dixon v. Niccolls, 39 111. 384, 89 Am. .Dec. 312; McLellan v. Whitney, 65 Vt. 510, 27 Atl. 117. But see Moulton v. Robinson, 27 N. H. 550 ; Horseley v. Moss, 5 Tex. Civ. App. 341, 23 S. W. 1115; Gray v. Robinson, 4 Ariz. 24, 33 Pac. 712; Consolidated Land & Irrigation Co. v. Hawley, 7 S. D. 229, 63 N. W. 904. The rent is only due at harvest time. Lamberton v. StoufEer, 55 Pa. 284; Cobel v. Cobel, 8 Pa. 342. But see Dixon v. Niccolls, 39 111. 372, 89 Am. Dec. 312. s Smith v. Schultz, 89 Cal. 526, 26 Pat 1087 ; Perrine v. Hankinson, 11 N. J. Law, 181; Gregory v. Brooks, 1 Hup (N. Y.) 404; Day v. Stevens, 88 N. C. 83, 43 Am. Rep. 732 ; Brown v. Jaquette, 94 Pa. 113, 39 Am. Rep. 770. io Somers v. Joyce, 40 Conn. 592 ; Adams v. Carter, 53 Ga. 160 ; Richard- son v. Hughitt, 76 N. Y. 55, 32 Am. Rep. 267; Curtis v. Cash, 84 N. C. 41; Leavitt v. Investment Co., 54 Fed. 439, 4 C. C. A. 425. § 96) LETTING OP LODGINGS 243 the parties may, at times, be difficult to determine ; but the inten- tion of the parties, as shown by the language used and the circum- stances of the transaction, will control. 11 If the owner is to re- ceive a certain part of the crops as rent, the relation of landlord and tenant will be created. 12 In some states, the question is determined by statute; the parties being treated as landlord and tenant, 18 or employer and employe, 14 according td the circum- stances of the particular case." Moreover, in other jurisdictions, the ordinary contract of renting on shares is held, in the absence of statute, to create the relation of landlord and tenant. 19 LETTING OF LODGINGS 96. An ordinary agreement for lodgings, where the owner of the house retains possession and control, does not create the relation of landlord and tenant. Although the letting of a number of rooms, or even a single room, may, if under the separate control of the lessee, give rise to the relation of landlord and tenant, 17 yet such a relation does not arise when there is merely a letting of lodgings, with a reten- tion by the owner of full' possession and control of the house. 18 , ii Paige v. Akins, 112 Cal. 401, 44 Pac. 666; Johnson v. Hoffman, 53 Mo. 504 ; Steel v. Prick, 56 Pa. 172 ; Dixon v. Mccolls, 39 111. 384, 386, 89 Am. Dec. 312; Lewis v. Lyman, 22 Pick. (Mass.) 437; Armstrong v. Bicknell, 2 Lans. (N. T.) 216; Moulton v. Robinson, 27 N. H. 550. But see Birmingham v. Rogers, 46 Ark. 254. 12 Reeves v. Hannan, 65 N. J. Law, 249, 48 Atl. 1018; Rowlands v. Voech- ting, 115 Wis. 352, 91 N. W. 990; Hoskins v. Rhodes, 1 Gill & J. (Md.) 266 ) Newcomb v. Ramer, 2 Johns. (N. T.) 421, note; Dockham v. Parker, 9 Greenl. (Me.) 137, 23 Am. Dec. 547. And see Caruthers v. Williams, 58 Mo. App. 100. is Redmon v. Bedford, 80 Ky. 13 ; Kennedy v. McDiarmid, 157 Ala. 496, 47 South. 792. See Hansen v. Hansen, 88 Neb. 517, 129 N. W. 982. i* Adams v. State, 159 Ala. 115, 48 South. 795; Garrick v. Jones, 2 Ga. App. 382, 58 S. E. 543; Rogers v. Frazier Bros. & Go. (Tex. Civ. App.) 108 S. W. 727. is The distinction made by the Alabama statute is based upon the fact whether the cultivator furnishes both labor and teams, or merely labor ; the former constituting the relation of landlord and tenant. i6 Clarke v. Cobb, 121 Cal. 595, 54 Pac. 74; Wentworth v. Railroad Co., 55 N. H. 540; Reynolds v. Reynolds, 48 Hun (N. T.) 142; Mann v. Taylor, 5 Heisk. (Tenn.) 267; Sowles v. Martin, 76 Vt. ISO, 56 Atl. 9.79. it Porter v. Merrill, 124 Mass. 534 ; Oliver v. Moore, 53 Hun, 472, 6 N. T. Supp. 413 ; Monks v. Dykes, 4 M. & W. 567. is White v. Maynard, 111 Mass. 250, 15 Am. Rep. 28 ; Wilson v. Martin, 1 Denio (N. Y.) 602 ; Ash,ton v. Margolies, 72 Misc. Rep. 70, 129 N. Y. Supp. 244 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Oh. 11 In such cases there is only a contract relation. 19 The letting of "flats" does not come within this rule, however, since they are separate dwellings, and the hirer is a lessee, even though there is but a single outer door to the building. 20 Reasonable notice is all that is necessary in order to terminate the holding of the lodger. 81 LICENSES 97. A license is an authority to do some act or a series of acts on the land of the licensor. A license is not an estate, and is not assignable. In connection with the law of real property, a license, as de- fined above, is an authority to do some act, or a series of acts, upon the land of another, 22 without giving the licensee any estate or interest in the land. 23 It is a purely personal right, 2 * and cannot be assigned by the licensee. 26 In fact, an attempted assignment of a license operates as a revocation of it, 26 since one may give a 617 ; Mead v. Owen, 80 Vt 273, 67 Atl. 722, 13 Ann. Cas. 231. As to who are lodgers, see Morton v. Palmer, 51 Law J. Q. B. 7. i» Wilson v. Martin, 1 Denio (N. T.) 602; White v. Maynafd, 111 Mass. 250, 15 Am. Rep. 28 ; Cochrane v. Tuttle, 75 111. 361. 20 Musgrave v. Sherwood, 53 How. Prac. (N. Y.) 311 ; Young v. City of Boston, 104 Mass. 95; Porter v. Merrill, 124 Mass. 534; Swain v. Mizner, 8 Gray (Mass.) 182, 69 Am. Dec. 244. 2il Tayl. Landl. & Ten. (8th Ed.) 78; 1 Wood, Landl. & Ten. (2d Ed.) 133. But see Huffell v. Armitstead, 7 Car. & P. 56. 22 Emerson v. Bergin, 76 Cal. 197, 18 Pac. 264 ; Howes v. Barmon (1905) 11 Idaho, 64, 81 Pac. 48, 69 L. R. A. 568, 114 Am. St. Rep. 255; Cook v. Stearns, 11 Mass. 533 ; Bagg v. Robinson, 12 Misc. Rep. 299, 34 N. Y. Supp. 37; Baldwin v. Taylor, 166 Pa. 507, 31 Atl. 250. as Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675 ; Cook v. Stearns, supra ; Baltimore & H. R. Co. v. Algire, 63 Md. 319 ; Jackson ex dem. Hull v. Bab- cock, 4 Johns. (N. Y.) 418. For the distinction between a license and an easement, see chapter XVII, post. 24 East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248 ; Mumford v. Whitney, 15 Wend. (N. Y.) 381, 30 Am. Dec. 60; Dolittle v. Eddy, 7 Barb. (N. Y.) 74; Ex parte Coburn, 1 Cow. (N. Y.) 568 ; Blaisdell v. Railroad Co., 51 N. H. 483. 2 6Ruggles v. Lesure, 24 Pick. (Mass.) 187; Ward v. Rapp, 79 Mich. 469, 44 N. W. 934 ; Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484 ; Pearson v. Hart- man, 100 Pa. 84; Mumford v. Whitney, 15 Wend. (N. Y.) 381, 30 Am. Dec. GO; Mendenhall v. Klinck, 51 N. Y. 246; Jackson ex dem. Hull v. Babcock, 4 Johns. (N. Y.) 418; De Haro v. United States, 5 Wall. (U. S.) 599, 18 L. Ed. 681. 2 6 An attempted sale of the land by the licensor determines the license. Blaisdell v. Railroad Co.. 51 N. H. 483. § 97) LICENSES 245 \ privilege upon his land to one person which he would not give to another. 27 A license is to be distinguished from a- lease. In a lease, the tenant has exclusive possession of the premises, while under a license the owner retains the possession ; the licensee being given merely a privilege, under the owner, to use or occupy the land in a certain specified way. 28 In other words, the effect of a license is to permit the licensee to do acts upon the land which, in ab- sence of a license, would be trespass. 29 How Created Licenses may be created either by express agreement, or by implication. 80 An example of the latter is the implied license granted by business men to the public to enter , their stores or offices during business hours. 81 So a license may be implied from other acts or representations of the owner of the land. 82 The grant of a license carries with it the right to use the necessary and proper means to accomplish the object. 83 The licensee is lia- ble for all damages resulting from negligent or improper execution « Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732. ss Roberts v. Ice Co., 187 Mass. 402, 73 N. B. 523; Funk v. Haldeman, 53 Pa. 229. And see Holladay v. Power Co., 55 111. App. 463 ; Kabley v. Light Co., 102 Mass. 392; Smith v. Simons, 1 Root (Conn.) 318, 1 Am. Dec. 48; Heywood v. Fulmer, 158 Ind. 658, 32 N. E. 574, 18 L. R. A. 491. A license dif- fers from an easement in not being created by deed. Morse v. Copeland, 2 Gray (Mass.) 302 ; Mumford V. Whitney, 15 Wend. (N. Y.) 381, 30 Am. Dec. 60 ; Wiseman v. Lucksinger, 84 N. T. 31, 38 Am. Rep. 479 ; Wolfe v. Frost, 4 Sandf. Ch. (N. T.) 72; Foot v. New Haven & Northampton Co., 23 Conn. 214. Cf. W. U. Tel. Co. v. Bullard, 67 Vt. 272, 31 Atl. 286. 2» Blaisdell v. Railroad Co., 51 N. H. 483 ; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep.. 80; Miller v. Railway Co., 6 Hill (N. Y.) 61. so Cutler v. Smith, 57 111. 252; Harmon v. Harmon, 61 Me. 222; Lakin v. Ames, 10 Cush. (Mass.) 198 ; Syron v. Blakeman, 22 Barb. (N. Y.) 336 ; Adams v. Burton, 43 Vt. 36. si Gibson, C. J., in Gowen v. Exchange Co., 5 Watts & S. (Pa.) 143, 40 Am. Dec. 489. And see Kay v. Railroad Co., 65 Pa. 273, 3 Am. Rep. 628; Cutler v. Smith, 57 111. 252; Sterling v. Warden, 51 N. H. 217, 12 Am. ( Rep. 80; Heaney v. Heeney, 2 Denio (N. Y.) 625. So a sale of chattels gives an im- plied license to enter to remove them. Wood v. Manley, 11 Adol. & E. 34. 3 2 So there is an implied license to go to a private residence to make social calls. Martin v. Houghton, 45 Barb. (N. Y.) 258; Adams v. Freeman, 12 Johns. (N. Y.) 408, 7 Am. Dec. 327. And see Gibson v. Leonard, 143 111. 182, 32 N. E. 182, 17 L. R. A. 588, 36 Am. St. Rep. 376. ss Woodruff v. Beekman, 43 N. Y. Super. Ct. 282 ; Clark v. Glidden, 60 Vt. 702, 15 Atl. 358 ; Commonwealth v. Rigney, 4 Allen (Mass.) 316 ; Driscoll v. Marshall, 15 Gray (Mass.) 62. As to employ men to help remove a ponderous object from the licensor's land. Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80. 246 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 of the license, 34 but not for damages which are the natural result of the acts licensed. 30 Although a license may be created by a written instrument," yet, since it grants no interest in land, it may in all cases be cre- ated by parol, 37 unless the local statute may otherwise provide. 88 SAME— REVOCATION OF LICENSES 98. Licenses are generally revocable in all cases, except: (a) When coupled with an interest. (b) When affecting only an easement of the licensor. (c) In some states, when the licensee, relying on the authority given, has erected improvements on the licensor's land. Licenses, being mere personal privileges, are generally revocable at the will of the licensor. 88 A license, however, coupled with an interest, is not. 40 For example, if personal property is sold, and a license given to go upon the land of the vendor to remove the goods, it cannot be revoked. 41 A license, moreover, to do acts a* Selden v. Canal Co., 29 N. T. 634; Eaton v. Winnie, 20 Mich. 156, 4 Am. Rep. 377; McKnight v. Eatcliff, 44 Pa. 156; Dean v. McLean, 48 Vt 412, 21 Am. Rep. 130. so Selden v. Canal Co., 29 N. Y. 634. 38 Freeman v. Underwood, 66 Me. 229. 37 Collins Co. v. Marcy, 25 Conn. 239; Woodward v. &eely, 11 111. 157, 50 Am. Dec. 445 ; Jacob Tome Institute of Port Deposit v. Davis, 87 Md. 591, 41 Atl. 166; Freeman v. Headley, 33 N. J. Law, 523; Walter v. Post, 4 Abb. Prac. (N. Y.) 3S2; Lockhart v. Geir, 54 Wis. 133, 11 N. W. 245. 3 8 People v. Macy, 22 Hun (N. Y.) 577. ' so Hibbard, Spencer, Bartlett & Co. v. Chicago, 173 111. 91, 50 N. W. 256, 40 L. R. A. 621 ; Classen v. Guano Co., 81 Md. 258, 31 Atl. S08 ; Pitzman v. Boyce, 111 Mo. 387, 19 S. W. 1104, 33 Am. St. Rep. 536 ; Brown v. New York, 176 N. Y. 571, 68 N. E. 1115; Thoemlce v. Fiedler, 91 Wis. 386, 64 N. W. 1030; Baldwin v. Taylor, 166 Pa. 507, 31 Atl. 250; Bass v. Power Co., Ill N. C. 439, 16 S. E. 402, 19 L. R. A. 247; Minneapolis W. Ry. v. Railway Co., 58 Minn. 128, 59 N. W. 983 ; Kremer v. Railway Co., 51 Minn. 15, 52 N. W. 977, 38 Am. St. Rep. 468 ; Carley v. Gitchell, 105 Mich. 38, 62 N. W. 1003, 55 Am. St Rep. 428; Shirley v. Crabb, 138 Ind. 200, 37 N. E. 130, 46 Am. St. Rep. 376. A ticket to a theater is a license, and may be revoked, McCrea v. Marsh. 12 Gray (Mass.) 211, 71 Am. Dec. 745; or to a horse race, Wood v. Lead- bitter, 13 Mees. & W. 838. 40 Barney v. Lincoln Park, 203 111. 397, 67 N. E. 801; Long v. Buchanan, 27 Md. 502, 92 Am. Dec. 653 ; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80; Funk v. Haldeman, 53 Pa. 229. *i Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152; Wood v. Manley, 11 Adol. & E. 34; Carter v. Wingard, 47 111. App. 296. But see Fish v. Capwell, 18 R. I. 667, 29 Atl. 840, 25 L. R. A. 159, 49 Am. St. Rep. 807. It may be lost by abandonment. Patterson v. Graham, 164 Pa. 234, 30 Atl. 247. § 98) REVOCATION OF LICENSES 247 which obstruct or destroy an easement of the licensor, cannot be revoked after it is executed, so long as the easement is in force.* 2 In some states, where the licensee, acting under "the authority given him, has expended money or has made valuable improvements on the land, equity, regarding the authority either as an easement or an oral agreement to grant an easement, will protect the licensee, and will not suffer the authority to be revoked. 43 Ac- cording to the weight of authority, however, where the authority is, in fact, a mere oral license, it can be revoked, regardless of the expenditures or improvements made, since to hold otherwise would transfer, in effect, an interest in land by parol. 44 Some courts, however, hold the licensor estopped to revoke, 45 w'hile others re- quire him to place the licensee in statu quo, by compensating him for his expenditures. 46 Where the license is in the nature of a contract, for a definite time, the licensee may be protected by awarding .him specific performance. 47 The mere iact, however, that the licensee has given a valuable consideration for a license, does not as a rule make it irrevocable, 48 although some cases do *2 Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154; Dyer v. Sanford, 9 Mete. (Mass.) 395, 43 Am. Dec. 399 ; Morse v. Copeland, 2 Gray (Mass.) 302 ; Addison v. Hack, 2 Gill (Md.) 221, 41 Am. Dec. 421. « Kastner v. Benz, 67 Kan. 486, 73 Pac. 67 ; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732 ; Russell v. Hubbard, 59 111. 335 ; Hiers v. Mill Haven Co., 113 Ga. 1002, 39 S. E. 444 ; Plickinger v. Shaw, 87 Cal. 126, 25 Pac. 268, 11 L. R. A. 134, 22 Am. St. Rep. 234 ; Grimsh'aw v. Belcher, 88 Cal. 217, 26 Pac. 84, 22 Am. St. Rep. 298; Saucer v. Keller, 129 Ind. 475, 28 N. E. 1117; FERGUSON v. SPENCER, 127 Ind. 66, 25 N. E. 1035, Burdick Cas. Real Property ; McBroom v. Thompson, 25 Or. 559, 37 Pac. 57, 42 Am. St. Rep. 806 ; Duke of Devonshire v. Eglin, 14 Beav. 530; Rerick v. Kern, 14 Serg. & R. (Pa.) 267, 16 Am. Dec. 497 ; White v. Railway Co., 139 N. Y. 19, 34 N. E. 887. Cf. City Council of Augusta v. Burum, 93 Ga. 68, 19 S. E. 820, 26 L.'R. A. 340. ** West Chicago St. R. Co. v. People, 214 111. 9, 73 N. E. 393 ; Whittemore v. Railroad Co., 174 Mass. 363, 54 N. E< 867; Nowlin Lumber Co. v. Wilson, 119 Mich. 406, 78 N. W. 338; Taylor v. Gerrish, 59 N. H. 569; Rodefer v. Railroad Co., 72 Ohio St. 272, 74 N. E. 183, 70 L. R. A. 844 ; Wood v. Lead- bitter, 13 Mees. & W. 838 ; Bridges v. Purcell, 18 N. C. 492. *5Risien v. Brown, 73 Tex. 135, 10 S. W. 661; School Dist. v. Lindsay, 47 Mo. App. 134'; Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439. But see Churchill v. Hulbert, 110 Mass. 42, 14 Am. Rep. 578 ; Lake Erie & W. R. Co. v. Kennedy, 132 Ind. 274, 31 N. E. 943. 4« Addison v. Hack, 2 Gill (Md.) 221, 41 Am. Dec. 421 ; Woodbury v. Parsh- ley, 7 N. H. 237, 26 Am. Dec. 739. The licensee has in all cases a reasonable time to remove his property from the land after the revocation. Barnes v. Barnes, 6 Vt. 38S. 47 Williamston & T. R. Co. v. Battle, 66 N. C. 540 ; Veghte v. Power Co., 19 N. J. Eq. 142. 48 Minneapolis Mill Co. v. Railway Co., 51 Minn. 304, 53 N. W. C39 ; Cook v. Perbert, 145 Mo. 462, 46 S. W. 947; White v. Railway Co., 139 N. T. 19, 34 N. E. S87; Baldwin v. Taylor, 166 Pa. 507, 31 Atl. 250. 248 ESTATES LESS THAN FREEHOLDS — TENANCIES AT WILL (Ch. 11 so hold. 48 A license is also revoked by the death, 60 or insanity 51 of either party, by the expiration of the time for which it was given, 82 by abandonment or nonuser, 68 by a sale of the premises, 5 * or by the exercise of the right of eminent domain. 65 The owner of the land may exercise his right of revocation by giving notice to the licensee, allowing him a reasonable time to remove his property, if any, from the premises. 68 "Van Ohlen v. Van Ohlen, 56 111. 528; Harlan v. Gas Co., 133 Ind. 323, 32 N. E. 930 ; Martin v. O'Brien, 34 Miss. 21. o°Ruggles v. Lesure, 24 Pick. (Mass.) 187; Estelle v. Peacock, 48 Mich. 469, 12 N. W. 659 ; Eggleston v. Railway Co., 35 Barb. (N. Y.) 162 ; Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675 ; Blaisdell v. Railroad Co, 51 N. H. 483. " Berry v. Potter, 52 N. J. Eq. 664, 29 Atl. 323. 52 Mason v. Holt, 1 Allen (Mass.) 45; Glynn v. George, 20 N. H. 114; Gil- more v. Wilson, 53 Pa. 194 ; Detroit & B. Plank Road Co. v. Railway Co., 103 Mich. 585, 61 N. W. 880. • 53 Lake Erie & W. Ry. Co. v. Michener, 117 Ind. 465, 20 N. E. 254; Fischer v. Johnson, 106 Iowa, 181, 76 N. W. 658. "Entwhistle v. Henke, 211 111. 273, 71 tt. E. 990, 103 Am. St. Rep. 196; Worthen v. Garno, 182 Mass. 243, 65 N. E. 67 ; White v. Railway Co., 139 N. Y. 19, 34 N. E. 887; Taylor v. Gerrish, 59 N. H. 569; Bruley v. Garvin, 105 Wis. 625, 81 N. W. 1038, 48 L. R. A 839. so Cfepp v. Boston, 133 Mass. 367. oe Pluker v. Railroad Co., 81 Ga. 461, 8 S. E. 529, 2 L. R. A. 843, 12 Am. St. Rep. 328; Forbes v. Balenseifer, 74 HI. 183; Ruggles v. Lesure, 24 Pick. (Mass.) 187; Troxell v. Iron Co., 42 Pa. 513. Ch. 12) JOINT OWNERSHIP OF ESTATES 249 s CHAPTER XII JOINT OWNERSHIP OF ESTATES 99. Estates as to Number of Owners. 100. Joint Estates. 101. Joint Tenancies. 102. Estates in Coparcenary. 103. Estates in Entirety. 104. Tenancies in Common. 105. Partnership Realty. 106. Joint Mortgagees. 107. Incidents of Joint Estates. 108. Partition. 109. Community Property. ESTATES AS TO NUMBER OF OWNERS 99. Estates are divided according to the number of owners who are entitled to possession at the same time into — (a) Estates in severalty; and (b) Joint estates. JOINT ESTATES 100. Joint estates are those which are owned by two or more per- sons. The joint estates at common law are : (a) Joint tenancies. (b) Tenancies in common. (c) Estates in coparcenary. \ (d) Estates in entirety. Joint Ownership The interests in land hitherto considered have been those in which the ownership, at one and the same time, was in one per- son. Such interests are called estates in severalty. Estates, how- ever, of the same quantity, quality, and time of enjoyment as es- tates in severalty, may be held by two or more persons in an undivided ownership, that is, in joint ownership, and when so held they are called joint estates. Although the highest form of ownership in land is naturally associated with the notion of sole dominion over it, an ownership severed from all other persons, or, in other words, an ownership in severalty, yet in all systems of land law, after the doctrine of individual ownership, with the 250 JOINT OWNERSHIP OF ESTATES (Ch. 12 right of inheritance, becomes established, and the right to alienate the land, either in whole or in part, becomes recognized, the natural justice and the logical necessity of two or more persons having at the same time equal rights or interests in the same par- cel of land becomes apparent. We are not referring, of course, to tribal or community ownership of land, which, historically speaking, preceded individual ownership, but to an exclusive own- ership by two or more persons, who unite in their joint inter- ests all the rights of an individual ownership, and hold in such joint ownership the property against all the rest of the world. In the English common law, estates held in co-ownership 'were early recognized. Such ownership is likewise known to the civil law, and also to the older Roman law. 1 In- English law, the differences between various kinds of joint ownership developed gradually, but by the time of the reign of Edward I the distinction between joint tenancy and tenancy in common was becoming apparent. 2 When Littleton wrote, in the fifteenth century, he distinguished four kinds of joint estates,' namely, joint tenancy, coparcenary, tenancy by entireties, and tenancy in common. 8 To these may be added, for modern consideration, partnership realty, the inter- ests held by joint mortgagees of land, and community property. SAME—JOINT TENANCIES 101. A joint tenancy is an ownership of land in equal undivided shares by virtue of a grant or a devise which imports an intention that the tenants shall hold one and the same estate. The interests of all the tenants go to the last survivor. For the existence of a joint tenancy the follow- ing unities are necessary : (a) Unity of interest. (b) Unity of title. (c) Unity of time. (d) Unity of possession. Definition — How Created An estate in joint tenancy arises where lands or tenements are granted to two or more persons, to hold in fee simple, fee tail, i See, in general, Hunter, Rom. Law, pp. 337-340, 519, 553. The Roman law term for joint ownership is "condominium." 2 Holds. Hist. Eng. Law, III, 109 ; T. B. 2, 3 Edw. II (S. S.) 144. s Litt. §§ 277-324. § 101) . JOINT TENANblES 251 for life, for years, or at will-* Joint tenancy is further defined as a simple estate, owned in equal shares by two or more persons, other than husband or wife, under title by purchase. It may be created by a conveyance, 8 or by devise, 7 but can exist only by act of the parties, and never arises by descent or act of the law. 8 Its creation depends on the wording of the deed or devise under which the tenants claim, and where an instrument gives an estate to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, a joint tenancy arises at common law. 9 In fact, the early common law favored joint tenancies by reason of the right of survivorship which was incident to such estates. 10 The policy of the law was averse to the division of tenures, because it resulted in a weakening of the efficiency of feudal service. 11 Consequently all joint estates were presumed to be joint tenancies, unless there was a contrary provision in the instrument creating them. 12 In later times, however, after the abolition of tenures, the courts following the lead of equity, iooked with but little favor upon joint tenancies, by reason of the harsh- ness of the doctrine of survivorship. 18 Consequently the rule became established that, where the words of the instrument will permit, an intention to create a tenancy in common will, if pos- sible, be imported, rather than an intention to create a joint ten- ancy. 14 A joint tenancy was anciently said to be held "per my et '*2 Blk. Comm. 180; THORNBURG v. .WIGGINS, 135 Ind. 178, 34 N. E. 999, 22 L. R. A. 42, 41 Am. St. Rep. 422, Burdick Cas. Real Property. o Stimpson v. Batterman, 5 Cush. (Mass.) 153 ; Blair v. Osborne, 84 N. O. 417; Gee v. Gee, 2 Sneed (Tenn.) 395. « Gaunt v. Stevens; 241 111. 542, 89 N. E. 812; Webster v. Vandeventer, 6 Gray (Mass.) 428. i Wills v. Foltz, 61 W. Va. 262, 56 S. E. 473, 12 L. R. A. (N. S.) 283; Sher- wood v. Sberwood, 3 Bradf. Sur. (N. Y.) 230. s 2 Blk. Comm. ISO ; Equitable Loan & Security Co. v. Waring, li7 Ga. 599, 44 S. E. 320, 62 L. R. A. 93, 97 Am. St. Rep. 177 ; SIMONS v. McLAIN, 51 Kan. 153, 32 Pac. 919, Burdick Cas. Real Property ; Colson v. Baker, 42 Misc. Rep. 407, 87 N. Y. Supp. 238; Lockhart v. Vandyke, 97 Va. 356, 33 S. E. 613. « Greer v. Blanchar, 40 Cal. 194"; Noble v. Teeple, 58 Kan. 398, 49 Pac. 598; Martin v. Smith, 5 Bin. (Pa.) 16, 6 Am. Dec. 395; Farr v. Grand Lodge A. O. U. W., 83 Wis. 446, 53 N. W. 738, 18 L. R. A. 249, 35 Am. St. Rep. 73. io Infra. ii 4 Kent, Comm. 361. 12 Martin v. Smith, 5 Bin. (Pa.) 16, 6 Am. Dec. 395 ; Spencer v. Austin, 3S Vt. 258; Crooke v. De Vandes, 9 Ves. Jr. 197, 32 Eng. Reprint, 577. ' 13 Infra. 14 Noble v. Teeple, 58 Kan. 398, 40 Pac. 598; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334, 9 An,. Dec. 306; Sturm v. Sawyer, 2 Pa. Super. Ct, 254; Spencer v. Austin, 38 Vt. 258. 252 JOINT OWNERSHIP OF ESTATES (Ch. 12 per tout," 1B meaning "by the moiety (or half, or, equal share) and by all." This meant that the tenants were seised of the whole for the purpose of tenure and survivorship, while for the purpose of individual alienation each tenant had only a particular share or part. 18 The Essential XJnihx. For the existence of a joint tenancy there must be present the four unities, as they are called. 17 These are interest, 18 title,** time, 20 and possession. 21 By unity of interest, in reference to joint tenancy, is meant a similarity of estate, as regards its extent or duration, in each joint tenant. 22 Since joint tenants hold under a grant of a single estate, their interests are necessarily the same in extent. Thus, one cannot be tenant in fee simple and the others in tail, or for life, or for a term of years. But where two or more are joint tenants for life, one of them may have the inheritance in severalty, subject to the joint estate; as where land is granted to A. and B. for their lives, and to the heirs or heirs of the body of A. By unity of the title of joint tenants is meant the creation of their interests by one and the same act; that is, by the same grant or devise. Joint tenants cannot be acquired under different titles. 23 And, at common law, unity of time of commencement of the title was requisite; that is, the interests of the tenants must have vested at one and the same time. 2 * Thus, if the fee simple in remainder after a life estate were limited to the heirs of A. and the heirs of B., A. and B. being alive at the time of the limitation, but subsequently dying at different times, their respective heirs would not be joint tenants, but tenants in common, since their interests would not have arisen at the same moment. By means, "Bracton, f. 13; Britton, I, 232, 233; WILKINS v. YOUNG, 144 Ind. 1, 41 N.- B. 68, 590, 55 Am. St. Rep. 162, Burdick Cas. Eeal Property. i« 4 Kent, Comm. 460; 2 Blk. Comm. 182; WILKINS v. TOUNG, 144 Ind. 1, 41 N. E. 68, 590, 55 Am. St. Rep. 162, Burdick Cas. Real Property. 17 2 Blk. Comm. 180; City of Louisville v. Coleburne, 108 Ky. 420, 56 S. W. 681. is Wiscot's Case, .2 Coke, 60b ; Putney t. Dresser, 2 Mete. (Mass.) 583 ; Jones v. Jones, 1 Call (Va.) 458. 19 De Witt v. San Francisco, 2 Cal. 289. , 20 Strattan v. Best, 2 Brown, Ch. 233 ; Sammes' Case, 13 Coke, 54. 2i Thornton v. Thornton, 3 Rand. (Va.) 179. 22 Case v. Owen, 139 Ind. 22, 38 N. E. 395, 47 Am. St. Rep. 253; Colson v. Baker, 42 Misc. Rep. 407, 87 N. Y. Supp. 238. x 23 Richardson v. Miller, 48 Miss. 311 ; Young v. De Bruhl, 11 Rich. (S. C.) 638, 73 Am Dec. 127. 2* Case v. Owen, 139 Ind. 22, 38 N. E. 395, 47 Am. St. Rep. 253; McPherson v. Snowden, 19 Md. 197. § 101) JOINT TENANCIES 253 however, of limitations operating by way of springing or shifting use, or executory devise, the interests of joint tenants maybe made to arise at different times. 20 Unity of possession means only a joint right to possession, which is essential to all joint estates. Although, in a joint tenancy, each tenant must have the entire possession of every parcel of the property as well as of the whole. 26 Survivorship The chief incident of a joint tenancy is the right of survivorship, by which the interest of a joint tenant does not pass to his heirs, but vests, after his death, in his cotenant, or, if there be more than one, it vests in all of them. Therefore, where a joint tenancy exists, either at common law or by force of statute, and one of the joint tenants dies, the survivors take the whole estate. 27 This doctrine of survivorship is applied, where there are several joint tenants, until only one joint tenant remains, and on his death the whole estate goes to his heirs. 28 Severance of the Tenancy Upon the happening of any act which destroys one of the four essential unities, a joint tenancy is severed or terminated. 29 This may arise, for example, where a joint tenant conveys, mortgages, or leases his interest, thus destroying the unity of title. 80 Also, a partition of the land into estates in severalty destroys the unity of possession. 31 A joint tenant cannot convey the whole estate or any distinct portion of it by metes and bounds, so as to affect the rights of his cotenants, 82 yet such a conveyance may operate 26 4 Kent, Comm. 359; Powell v. Powell, 5 Bush (Ky.) 619, 96 Am. Dec. 372. 2« Case v. Owen, 139 Ind. 22, 38 N. B. 395, 47 Am. St. Rep. 253; Colson v. Baker, 42 Misc. Bep. 407, 87 N. Y. Supp. 238. 27 WILKINS v. YOUNG, 144 Ind. 1, 41 N. E. 68, 590, 55 Am. St. Rep, 162, Burdick Oas. Keal Property ; Kinsley v. Abbott, 19 Me. 430 ; Farrelly v. Bank, 92 App. Dlv. 529, 87 N. Y. Supp. 54; Redemptorist Fathers v. Lawler, 205 Pa. 24, 54 Atl. 487; United States v. Robertson, 183 Fed. 711, 106 C. O. A. 149. 28 4 Kent, Comm; 360; Overton v. Lacy, 6 T. B. Mon. (Ky.) 13, 17 Am. Dec. Ill ; Spencer v. Austin, 38 Vt. 258 ; Herbemont's Ex'rs v. Thomas, Cheves, Bq. (S. C.) 21. 28 2 Blk. Comm. 185; Witherington v. Williams, 1 N. C. 89; WILKINS v. TOUNG, 144 Ind. 1, 41 N. B. 68, 590, 55 Am. St. Rep. 162, Burdick Cas. Real Property. so Davidson's Lessee v. Heydom, 2 Teates (Pa.) 459; Simpson's Lessee v. Amnions, 1 Bin. (Pa.) 175, 2 Am. Dec. 425. ai Roddy v. Cox, 29 Ga. 298, 74 Am. Dec. 64 ; Postell v. Skirving's Ex'rs, 1 Desauss. (S. C.) 158. .32 Porter v. Hill, 9 Mass. 34, 6 Am. Dec. 22 ; Richardson v. Miller, 48 Miss. 311 ; Fitch v. Boyer, 51 Tex. 336. 254 JOINT OWNERSHIP OF ESTATES (Ch. 12 as an estoppel against the grantor. 33 He may, however, convey his undivided" share or interest, and such a conveyance causes a severance of the tenancy; 34 that is, when a joint tenant mortgages or conveys his part or interest to a stranger, it turns the joint tenancy into a tenancy in common so far as that share is concern- ed, although the other owners as to each other continue to hold as joint tenants, with all the incidents of joint tenancy. 36 Abolished by Statute In most states, common-law joint tenancies have been modified or entirely abolished by fetatute. Many jurisdictions provide that, unless the instrument expressly declares or clearly shows an in- tention to create a joint tenancy, the tenancy shall be regarded as a tenancy in common. 36 In most states, the common-law right of survivorship is abolished either by force of such statutes abolish- ing joint tenancies or by express provision. 37 In some states, however, the statutes expressly abolishing the incident of surviv- orship except from their provisions those cases where the instru- ment shows an express intention to create a joint tenancy, 38 or where a joint tenancy is created in a trust estate. 39 SAME— ESTATES IN COPARCENARY 102. An estate in coparcenary is a joint ownership of land in un- divided shares by coheirs. Unities of interest, title, and possession are alone necessary. The doctrine of surviv- orship does not apply. S3 Varnum v. Abbott, 12 Mass. 474, 7 Am. Dec. 87; McKey's Heirs v. Welch's Ex'x, 22 Tex. 390. s* Frans v. Young, 24 Iowa, 375; Neuforth v. Hall, 6 Kan. App. 902, 51 Pac. 573 ; Yank v. Bordeaux, 23 Mont 205, 58 Pac. 42, 75 Am. St Rep. 522 ; Messing v: Messing, 64 App. Div. 125, 71 N. Y. Snpp. 717. 35 Richardson v. Miller, 48 Miss. 311; Simpson's Lessee v. Ammons, 1 Bin. (Pa.) 175, 2 Am. Dec. 425 ; Brown v. Raindle, 3 Ves. 256. 86 Greer v. Blanchar, 40 Cal. 194; Equitable Loan & Security Co. v. Waring, 117 Ga. 599, 44* S. E. 320, 62 L. R. A. 93, 97 Am. St Rep. 177; Morris v. McCarty, 158 Mass. 11, 32 N. E. 938; Johnston v. Johnston, 173 Mo. 91, 73 S. W. 202, 61 L. R. A. 166, 96 Am. St. Rep. 486; Commercial Bank v." Sher- wood, 162 N. Y. 310, 56 N. E. 834; Bank of Green Brier v. Effingham, 51 W. Va. 267, 41 S. E. 143. a? Hay v. Bennett, 153 111. 271, 38 N. E. 645; Boyer v. Sims, 61 Kan. 593, 60 Pac. 309 ; Day v. Davis, 64 Miss. 253, S South. 203 ; Jones- v. Cable, 114 Pa. 586, 7 Atl. 791; Telfair v. Howe, 3 Rich. Eq. (S. C.) 235, 55 Am. Dec. 637; Lockhart v. Vandyke, 97 Va. 356, 33 S. E. 013. 38 Redemptorist Fathers v. Lawler, 205 Pa. 24, 54 Atl. 487 ; Sturm v. Sawyer, 2 Pa. Super. Ct. 254. 3» Parsons v. Boyd, 20 Ala. 112; Boyer v. Sims, 61 Kan. 593, 60 Pac. 309. § 103) ESTATES IN ENTIKETT 255 At common law, coparceners, or parceners, so called because they may be compelled to make partition, 40 are persons taking by descent lands of inheritance. 41 An estate in coparcenary is the joint estate thus acquired. Under the 'English law of primogeni- ture, whereby lands descend to the oldest male heir to the exclu- sion of the other heirs, estates in coparcenary apply only to female heirs taking by descent from the same ancestor. 42 By gavelkind custom, however, of the county of Kent, male heirs took as co- parceners. 43 The estate resembles a joint tenancy. The three unities of interest, title, and possession are always present, and also, generally, the unity of time, although this latter unity is not essential. 44 Coparceners may hold, however, unequal interests, because some of them may be children and others grandchildren. Estates in coparcenary differ from joint tenancies, in that the doc- trine of survivorship does not apply, and that they arise by descent, while joint tenancies arise only by purchase. 45 Estates in co- parcenary have been recognized in some of our older states, both male and female heirs, under our rules of descent, being copar- ceners. 46 Such estates are, however, practically abolished in this country; heirs, under our statutes, taking generally as tenants in SAME— ESTATES IN ENTIRETY 103. An estate in entirety is one conveyed to a man and his wife to hold jointly. The doctrine of survivorship applies to these estates. Estates in entirety have been abolished in many states. At common law, owing to the doctrine of identity of husband and wife, a conveyance or devise of lands to them during cover- ture does not create a joint tenancy, or a tenancy in common, but 40 2 Blk. Comm. 189. « Hoffar v. Dement, 5 Gill (Ma.) 132, 46 Am. Dec. 628. 42 Burrill, Law Diet. tit. "Estates in Coparcenary"-; Chitty, Descents, 76. 48 4 Kent, Comm. 366 ; Buller v. Exeter, 1 Ves. 340, 27 Eng. Reprint, 1009. 44 2 Blk. Comm. 188. 4 5 Co. Litt. 163b, 164a; Hoffar v. Dement, 5 Gill (Md.) 132, 46 Am. Dec. 628. 46 O'Bannon v. Roberts' Heirs, 2 Dana (Ky.) 54; Gilpin v. Hollingsworth, 3 Md. 190, 56" Am. Dec. 737; Stevenson v. Cofferin, 20 N. H. 150; Hoffar v. Dement, 5 Gill (Md.) 132, 46 Am. Dec- 628; Gilpin v. Hollingsworth, 3 Md. 190, 56 Am. Dec. 737 ; 1 Stim. Am. St. Law, § 1375. 474 Kent, Comm. 367; 1 Washb. Real Prop. 414; Stevenson v. Cofferin, 20 N. H. 150. And see the statutes of the several states. 256 JOINT OWNERSHIP OF ESTATES (Ch. 12 creates an estate in entirety. 48 This estate is confined to the rela- tion of husband and wife, and takes its name from the fact that neither spouse takes by shares, that is, by moieties, but each is seised of the whole, or per tout and not per my, or, in other words, of the entire estate. 49 In some jurisdictions, however, even in the absence of statutes upon the subject, estates in entirety have never been recognized ; B0 joint conveyances or devises to husband and wife being recognized as joint tenancies or tenancies in common. 61 Moreover, there are cases holding that by force of .express words of grant, where there is a manifest intention to create a joint tenancy or a tenancy in common, the husband and wife will take as joint tenants or tenants in common, 52 although other cases hold that, irrespective of such express intention, they take an estate in entirety. 63 When lands are conveyed to husband and wife and to some third person, the husband and wife take, at common law, an un- divided half of the estate, which they hold as tenants in entirety, while' the third person takes the other half, holding it in common, or as a joint tenancy, as the case might be, with the husband and « Strawn v. Strawn's Heirs, 50 111. 33; Simons v. Bollinger, 154 Ind. 83, 56 N. E. 23, 48 L. E. A. 234; Shinn v. Shinn, 42 Kan. 1, 21 Pac. 813, 4 U R. A. 224 ; Pray v. Stebbins, 141 Mass. 219, 4 N. B. 824, 55 Am. Rep. 462 ; Frost v. Frost, 200 Mo. 474, 98 S. W. 527, 118 Am. St Rep. 689; Newlove v. Cal- laghan, 86 Mich. 297, 48 N. W. 1096, 24 Am. St. Rep. 123 ; Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337; 30 L. R. A. 305, 43 Am. St. Rep. 762; Hoover v. Patter, 42 Pa. Super. Ct 21. *»Maitten v. Barley, 174 Ind. 620, 92 N. E. 738; Morris v. McCarty, 158 Mass. 11, 32 N. E 938 ; Hardenbergh v. Hardenbergh, 10 N. J. Law, 42, IS Am. Dec. 371 ; Miner v. Brown, 133 N. Y. 308, 31 N. E. 24 ; Gillan's Ex'rs v. Dixon, 65 Pa. 395. BoWhittelsey v. Fuller, 11 Conn. 337; Semper v. Coates, 93 Minn. 76/ 100 N. W. 662 ; Kerner v. McDonald, 60 Neb. 663, 84 N. W. 92, 83 Am. St. Rep. 550; Farmers' & Merchants' Nat. Bank v. Wallace, 45 Ohio St 152, 12 N. E. 439. See Hoffman v. Stigers, 28 Iowa, 302. oi Whittelsey v. Fuller, supra. B2 Donegan v. Donegan, 103 Ala. 488, 15 South. 823, 49 Am. St Rep. 53 ; Fladung v. Rose, 58 Md. 13 ; Fulper v. Fulper, 54 N. J. Eq. 431, 34 Atl. 1063, 32 L. R. A. 701, 55 Am. St. Rep, 590 ; Miner v. Brown, 133 N. T. 308, 31 N. E. 24 ; Stalcup v. Stalcup, 137 N. C. 305, 49 S. E. 210. So bj\ force of statute in some states. See WILKINS v. .YOUNG, 144 Ind. 1, 41 N. E. 68, 590, 55 Am. St. Rep. 162, Burdick Cas. Real Property ; THORNBURG v. WIGGINS, 135 Ind. 178, 34 N. E. 999, 22 L. R. A. 42, 41 Am. St. Rep. 422, Burdick Oas. Real Property. 63 Young's Estate, 166 Pa. 645, 31 Atl. 373 ; Johnson v. Hart, 6 Watts & S. (Pa.) 319, 40 Am. Dec. 565. See Scott v. Causey, 89 Ga. 749, 15 S. E. 650; Wilson v. Frost, 186 Mo. 311, 85 S. W. 375, 105 Am. St. Rep. 619, 2 Ann. Cas. 557. § 103) ESTATES IN ENTIRETY 257 wife. 54 So, if there were more than three persons to whom the conveyance was made, the husband and wife would together take only one share. 55 The doctrine of survivorship applies to estates in entirety, and they go to the heirs of the survivor only; the heirs of the first deceased taking nothing. 56 During the joint lives of the husband and wife the husband has the entire control of the joint estate, 57 and a conveyance made by him will be effectual during his life ; 5S but if he die first, she may avoid the convey- ance. 59 Lands held by this tenancy may, by weight of authority, be levied on by the husband's creditors; but such a conveyance will be no more effectual against a surviving wife than a volun- tary alienation. 80 Moreover, on the other hand, some states hold that during coverture there can be no sale of any part or execution against either. 61 In England, and in some of our states, modern statutes have abolished estates in entirety, 62 although in some states they still exist. 68 In a number of states, however, the stat- 54 Barber v. Harris, 15 Wend. (N. T.) 615; Johnson v. Hart, supra. But see Hampton v. Wheeler, 99 N. O. 222, 6 S. E. 236. ss Barber v. Harris, 15 Wend. (N. X.) 616; Johnson y. Hart, 6 Watts & S. (Pa.) 319, 40 Am. Dec. 565. so Baker v. Stewart, 40 Kan. 442, 19 Pac. 904, 2 L. R. A. 434, 10 Am. St. Rep. 213 ; Jacobs v. Miller, 50 Mich. 119, 15 N. W. 42 ; Bains v. Bullock, 129 Mo. 117, 31 S. W. 342 ; Bertles v. Nunan, 92 N. X. 152, 44 Am. Rep. 361 ; Long v. Barnes, 87 N. C. 329 ; Stuckey v. Keef e's Ex'rs, 26 Pa. 397. Of. Thornton v. Thornton, 3 Rand. (Va.) 179. 67 Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824, 55 Am. Rep. 462; Washburn v. Burns, 34 N. J. Law, 18 ; French v. Mehan, 56 Pa. 286 ; Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S. W. 1000, 30 L. R. A. 315, 49 Am. St Rep. 921 ; Bennett v. Child, 19 Wis. 362, 88 Am. Dec. 692. 68 Barber v. Harris, 15 Wend. (N. X.) 616 ; Bennett v. Child, 19 Wis. 362, 88 Am. Dec. 692; Ames v. Norman, 4 Sneed (Tenn.) 683, 70 Am. Dec. 269. 6 » Pierce v. Chace, 108 Mass. 254; McCurdy v. Canning, 64 Pa. 39; Chand- ler v. Cheney, 37 Ind. 391 ; Washburn v. Burns, 34 N. J. Law, 18. 60 Litchfield v. Cudworth, 15 Pick. (Mass.) 23; Mich/Beef & Provision Co. v. Coll, 116 Mich. 261, 74 N. W. 475; Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302; Brown v. Gale, 5 N. H. 416; Farmers' & Mechanics' Bank of Rochester v. Gregory, 49 Barb. (N. X.) 155. And see McCurdy v. Canning, 64 Pa. 39. «i Almond v. Bonnell, 76 IU. 536 ; THORNBURG v. WIGGINS, 135 Ind. 178, 34 N. E. 999, 22 L. R. A. 42, 41 Am. St. Rep. 422, Burdick Cas. Real Property ; Shinn v. Shinn, 42 Kan. 1, 21 Pac. 813, 4 L. R. A. 224 ; Vinton v. Beamer, 55 Mich. 559, 22 N. W. 40; Farmers' Bank v. Corder, 32 W. Va. 232, 9 S. E. 220. 62 Hannon v. Railroad Co., 12 Cal. App. 350, 107 Pac. 335 ; Lott v. Wilson, 95 Ga. 12, 21 S. E. 992 ; Mittel v. Karl, 133 111 65, 24 N. E. 553, 8 L. R. A. 655; Holmes v. Holmes, 70 Kan. 892, 79 Pac. 163; Robinson's Appeal, 88 Me. 17, 33 Atl. 652, 30 L. R. A. 331, 51 Am. St. Rep. 367 ; Stilphen v. Stilphen, 65 N. H. 126, 23 Atl. 79. «s Carver v. Smith. 90 Ind. 222, 46 Am. Rep. 210 ; Dowllng v. Salliotte, P3 Bukd.Reax Pkop. — 17 258 JOINT OWNERSHIP OF ESTATES (Ch. 12 utes -expressly provide that joint conveyances to husband and wife shall create tenancies in common. 6 * SAME— TENANCIES IN COMMON 104. A tenancy in common is a joint ownership of lands, to which the principle of survivorship does not apply. The only unity necessary for a tenancy in common is that of pos- session. Definitions A tenancy in common is where two or more persons hold the same land with interests accruing under different titles, or accru- ing under the same title, but at different periods, or conferred by words of limitation importing that the grantees are to take in distinct shares. 66 It has also been denned as the holding of an estate in land by several persons, by several and distinct titles. 66 Again, tenants in common are said to be such as hold, not by joint title, but by several and distinct titles, although by unity of pos- session; and because none knoweth his own severalty, they there- fore all occupy in common. 67 Or, as elsewhere said, "joint ten- ants hold by one joint title and in one right, whereas tenants in common hold by several titles, or by one title and several rights." 68 Distinguished from Joint Tenancies Tenancies in common are further distinguished from joint ten- ancies as follows. In, joint tenancies, there must exist the four unities. In a tenancy in. common, only the unity of possession is essential. 69 The other unities may exist in a tenancy in common, Mich. 131, 47 N. W. 225 ; Frost v. Frost, 200 Mo. 474, 98 S. W. 527, 118 Am. St. Rep. 689; Marat v. Scharmach, 65 Misc. Rep. 124, 119 N. Y. Supp. 449; In re Bramberry's Estate, 156 Pa. 628, 27 Atl. 405, 22 L. R. A. 594, 36 Am. St. Rep. 64. s* Bader v. Dyer, 106 Iowa, 715, 77 N. W. 469, 68 Am. St Rep. 332; Robin- son's Appeal, 88 Me. 17, 33 Atl. 652, 30 L. R. A. 331, 51 Am. St Rep. 367; Clark v. Clark, 56 N. H. 105; Farmers' & Merchants' Nat. Bank v. Wallace, 45 Ohio St 152, 12 N. B. 439 ; American Nat Bank of Washington, D. C, v. Taylor, 112 Va. 1, 70 S. E. 534, Ann. Cas. 1912D, 40. os 1 Steph. Comm. 323. «e Manhattan Real Estate & Building Ass'n v. Cudlipp, 80 App. Div. 532, 80 N. T. Supp. 993. And see, further, CARVER v. FEXNIMORE, 116 Ind. 236, 19 N. E. 103, Burdick Cas. Real Property. 6 7 Litt § 292; 2 Blk. Comm. 191. ., es 5 Bacon, Abr. 240. 69 Blessing v. House's Lessee, 3 Gill & J. (Md.) 290; Laughlin v. O'Reiley, 92 Miss. 121, 45 South. 193; Sutton v. Jenkins, 147 N. C. 11, 60 S. E. 643; Bush v. Gamble, 127 Pa. 43, 17 Atl. 865. § 104) TENANCIES IN COMMON 259 but their presence is immaterial. 70 Moreover, the right of surviv- orship exists in joint tenancies, but not in a tenancy in common." Again, at common law a joint tenant may convey his interest to a cotenant by a release; 72 but this a tenant in common cannot do, since each tenant in common stands, towards his own undi- vided share, in the same relation as, if he were sole owner of the whole, he would stand towards the whole. Accordingly one tenant in common must convey his share to another by somt assurance which is proper to convey an undivided hereditament and he cannot so convey by release. 78 How Created At common law, tenancies in common could not be created by descent, 74 but only by conveyances expressly creating such es- tates, 76 or by necessary implication, 78 as, for example, where one-half of a parcel of land is conveyed without metes and bounds, or where a certain number of acres out of a larger tract are con- veyed without the particular part being designated. 77 In all cases of tenancies in common, the share of each tenant, whatever the number of tenants may be, is presumed to be equal to the shares of the others, 78 unless it is otherwise expressly provided, or cir- cumstances, such as unequal contributions to the purchase price, rebut such a presumption. 79 It has already been stated, in connec- tion with joint tenancies, 80 that in modern times joint estates will, if possible, be presumed to be tenancies in common, unless the contrary appears, 81 and generally, either by force of statute or to Silloway v. Brown, 12 Allen (Mass.) 30; Taylor v. Millard, 118 N, Y. 244, 23 N. E. 376, 6 L. R. 'A. 667. 7i5 Bacon, Abr. 240; Redemptorist Fathers v. Lawler, 205 Pa. 24, 54 Atl. 487. 72 Id. 73 Cnallis, Real Prop. 336, 337. 74 Jackson ex dem. Garnsey v. Livingston, 7 Wend. (N. Y.) 136; Pruden v. Paxton, 79 N. C. 446, 28 Am. Rep. 333; Fisher v. Wigg.'l P. Wms. 14, 24 Eng. Rep. 275. 7 5 See Emerson v. Cutler, 14 Pick. (Mass.) 108; Martin v. Smith, d Bin. (Pa.) 16, 6 Am. Dec. 395. 78 Jackson ex dem. Garnsey v. Livingston, Pruden v. Paxton, and Fisher v. Wigg, supra. 77 Preston v. Robinson, 24 Vt. 583; Seckel v. Engle, 2 Rawle (Pa.) 68; Wal- lace v. Miller, 52 Cal. 655. 7 8 See Campau v. Campau, 44 Mich. 31, 5 N. W. 1062; Gregg v. Patterson, 9 Watts & S. (Pa.) 197. 7» Rankin v. Black, 1 Head (Tenn.) 650. so Supra, note 14. si See 1 Stim. Am. St. Law, § 1371; Case v. Owen, 139 Ind. 22, 3S N. B. 395, 47 Am. St. Rep. 253. 260 JOINT OWNERSHIP OF ESTATES (Ch. 12 judicial construction, a tenancy in common is created whenever an estate is concurrently owned by two or more persons, provided the creating instrument, either expressly or by necessary implica- tion, does not otherwise provide. 82 Consequently, at the present time, tenancies in common may arise by will, conveyance, 83 de- scent, 84 mortgage, 86 prescription, 88 or by levy of execution. 87 The individual interests may be held by several and distinct ti- tles, 88 and these titles may be acquired in different ways. 89 SAME— PARTNERSHIP REALTY 105. Where title to realty is taken by partners of a firm, they hold, at law, as tenants in common. Where title to partnership realty is taken by one or more of the partners, it is held, in equity, in trust for the partnership. Where land is purchased with partnership funds and held by the members of a partnership for partnership purposes, equity will regard the land, for the benefit of creditors, as a part of the personal property of the firm. Although the phrase "estate in partnership" is a convenient one at times, yet there is no such estate at common law. A partnership is not an artificial person, as is a corporation, and there can be no common-law conveyance to a mere firm name. However, such 82 Wittenbrock v. Wheadon, 128 Cal. 150, 60 Pac. 664, 79 Am. St. Rep. 32 ; Barnum v. Landon, 25 Conn. 13T ; Rogers v. Tyley, 144 111. 652, 32 N. B. 393 ; Goell v. Morse, 126 Mass. 480 ; Valade v. Masson, 135 Mich. 41, 97 N. W. 59 ; McPhillips v. Fitzgerald, 177 N. Y. 543, 69 N. B. 1126 ; Bush v. Gamble, 127 Pa. 43, 17 Atl. 865. 83 Haven v. Mehlgarten, 19 111. 91 ; Brskin v. Wood, 77 Kan. 577, 95 Pac 413 ; Higbee v. Rice, 5 Mass. 344, 4 Am. Dec. 63 ; Ferris v. Nelson, 60 App. Div. 430, 69 N. Y. Supp. 999; Coleman's Appeal, 62 Pa. 252; Green v. Can- nady, 77 S. C. 193, 57 S. B. 832. s* Brumback v. Brumback, 198 111. 66, 64 N. B. 741 ; German v. Heath, 139 Iowa, 52, 116 N. W. 1051; Fenton v. Miller, 94 Mich. 204, 53 N. W. 957; Cruger v. McLaury, 41 N. Y. 219. so Smith v. Rice, 56 Ala. 417; Brown v. Bates, 55 Me. 520, 92 Am. Dec. 613; Welch v. Sackett, 12 Wis. 243. soinglis v. Webb, 117 Ala. 387, 23 South. 125; Brock v. Benness, 29 Ont 468. 8 7 Young v. Williams, 17 Conn. 393; Leonard v. Scarborough, 2 Ga. 73; Strickland v. Parker, 54 Me. 263 ; Barney v. Leeds, 51 N. H. 253. ssMittel v. Karl, 133 111. 65, 24 N. E. 553, 8 L. R. A, 655; Spencer v. Austin, 38 Vt 258; Griswold v. Johnson, 5 Conn. 363. They may arise by descent, but not at common law. Fenton v. Miller, 94 Mich. 204, 53 N. W. 957. so 2 Blk. Comm. 192. And see Putnam v. Ritchie, 6 Paige (N. Y.) 390. § 105) PARTNERSHIP EEALTT 261 an attempted conveyance would not be void, since, while no legal title would pass, an equitable title would be vested in the members of the firm. 90 The purchase of land by two or more persons who are partners, when such land is not intended for partnership pur- poses or uses, and where the rights of partnership creditors are not affected, presents no new aspects of joint ownership, since such property is not partnership property, but merely the individ- ual property of the purchasers, and they usually take as ordinary tenants in common. 91 In order that land may be held as part- nership property, it must be purchased with partnership funds, and for partnership purposes. 02 The legal title may be in one partner, 93 or in all the partners, and in the latter case the partners are, at law, either joint tenants or tenants in common. In either case, however, where land is purchased with partnership money and for partnership use, equity will regard the holder or holders of the legal title as holding the same in trust for the firm". 94 More- over, for the benefit of creditors of the firm, the land will be regarded, under the doctrine of equitable conversion, as personal property. In England, it is regarded as personal property for all purposes ; 90 but the prevailing American rule is that as between the partners themselves, and also as between a surviving partner and the heirs of a deceased partner, it is realty, but as to partner- ship debts it is personalty. 90 In other words, with respect to »o Woodward v. McAdam, 101 Cal. 438, 35 Pac. 1016; Tidd. v. Rines, 26 Minn. 201, 2 N. W. 497 ; New Vienna Bank v. Johnson, 47 Ohio St. 306, 24 N, B. 503, 8 L. R. A. 614 ; Frost v. Wolf, 77 Tex. 455, 14 S. W. 440, 19 Am. St Rep. 761. »i La Societfi Francaise de Bienfaisanee Mutelle de Los Angeles v. Weid- mann, 97 Cal. 507, 32 Pac. 583; Alkire v. Kahle, 123 111. 496, 17 N. E. 693, 5 Am. St. Rep. 540; Allen v. Logan, 96 Mo. 591, 10 S> W. 149; Schaeffer v. Fowler,' 111 Pa. 451, 2 Atl. 558; Johnson v. Rankin (Tenn. Ch. App.) 59 S. W. 638. ' 92 Hosie v." Carr, 1 Sumn. 173, Fed. Cas. No. 6,802 ; Alkire v. Kahle, 123 111. 496, 17 N. E. 693, 5 Am. St. Rep. 540; Buchan v. Sumner, 2 Barb. Ch. (N. Y.) 165, 47 Am. Dec. 305. «3 Williams v. Shelden, 61 Mich. 311, 28 N. W. 115; Fairchild v. Fairchild, 64 N. Y. 471. »* Pepper v. Pepper, 24 111. App. 316; Buffum v. Buffum, 49-Me. 108, 77 Am. Dec. 249 ; Harney v. First Nat. Bank, 52 N. J. Eq. 697, 29 Atl. 221 ; Page v. Thomas, 43 Ohio St. 38, 1 N. E. 79, 54 Am. Rep. 788 ; Fairchild v. Fairchild, 64 N. Y. 471; Dyer v. Clark, 5 Mete. (Mass.) 562, 39 Am. Dec. 697; Paige v. Paige, 71 Iowa, 318, 32 N. W. 360, 60 Am. Rep. 799. s>6 Waterer v. Waterer, L. R. 15 Bq. 402, 21 Wkly. Rep. 508; Essex v. Essex, 20 Beav. 442, 52 Eng. Reprint, 674. See Brit Partn. Act (1890) § 22. 9 6 Morrill v. Colehour, 82 111. 618; Shearer v. Shearer, 98 Mass. 107; Corn- stock v. McDonald, 126 Mich. 142, 85 N. W. 579; Darrow v. Calkins, 154 N. 262 JOINT OWNERSHIP OF ESTATES (Ch. 12 creditors, it is regarded as converted into personal property ; " but, after the debts of the firm have been paid, then for the pur- poses of distribution or dissolution it regains its priginal charac- ter of realty. 88 SAME— JOINT MORTGAGEES 106. In some jurisdictions joint mortgagees present some of the aspects of joint tenants. Generally they are regarded as tenants in common. In jurisdictions where a mortgage conveys the legal title to the mortgagee — that is, where a mortgage is an absolute conveyance with a condition subsequent" — two or more mortgagees become thereby joint owners of the estate, and consequently some of the rules governing joint estates apply to them. 1 Thus, where the con- sideration for the mortgages proceeds jointly from two or more persons, and a mortgage is given to them jointly, then, for the purposes of foreclosure, the doctrine of survivorship applies, and the survivor may foreclose without making the heirs or the per- sonal representatives of the deceased mortgagee parties to the action. 2 The survivor is regarded in equity, however, as the trustee of the representatives of the deceased comortgagee, and the decisions holding that joint mortgagees are joint tenants, with the right of survivorship, do not carry the analogy beyond the purposes of remedies, that is, for the purpose of bringing actions or of being sued thereon, 3 since as to the mortgagees themselves they are regarded as tenants in common. 4 Where, moreover, co- Y. 503, 49 N. E. 61, 48 L. B. A. 299, 61 Am. St. Rep. 637; Moore v. Wood, 171 Pa. 365, 33 AH. 63; Shanks v. Klein, 104 TJ. S. 18, 26 L. Ed. 635. 7 Dupuy v. Leavenworth, 17 Cal. 262; Burchinell v. Koon. 8 Colo. App. 463, 46 Pac. 932 ; State ex rel. Bogey v. Neal, 29 Wash. 391, 69 Pac. 1103. »8 Carpenter v. Hathaway, 87 Cal. 434, 25 Pac. 549 ; Cooper v. Frederick, 4 G. Greene (Iowa) 403; Comstock v. McDonald, 126 Mich. 142, 85 N. W. 579 ; Molineaux v. Raynolds, 54 N. J. Eq. 559, 35 Atl. 536 ; Haeberly's Appeal, 191 Pa. 239, 43 Atl. 207. »» See Mortgages, post. i Reeves, Real Prop. § 696. 2 Williams v. Hilton, 35 Me. 547, 58 Am. Dec. 729 ; Lannay v. Wilson, 30 Md. 536 ; Blake v. Sanborn, 8 Gray (Mass.) 154 ; Appleton v. Boyd, 7 Mass. 131. For ttie application of the principle of survivorship to the mortgage debt, see 2 Jones, Mortg. (5th Ed.) § 1382. sWall v. Bissell, 125 U. S. 382, 8 Sup. Ct. 979, 31 L. Ed. 772; In re Al- brecht, 136 N. Y. 91, 32 N. E. 632, 18 L. R. A. 329, 32 Am. St. Rep. 700; Freeman, Coten. §§ 16, 42. * Goodwin v. Richardson, 11 Mass. 469 ; Appleton v. Boyd, 7 Mass. 131 ; § 107) INCIDENTS OF JOINT ESTATES 263 mortgagees are not joint creditors, but take a joint mortgage for the purpose of securing their separate and several claims, they are not regarded as joint tenants, and no doctrine of survivorship applies. In such a case they hold as tenants in common. 6 INCIDENTS OF JOINT ESTATES 107. The rights and liabilities of tenants of joint estates may be treated under the following heads : (a) Possession and disseisin. (b) Accounting between cotenants. (c) Repairs and waste. (d) Transfer of joint estates. (e) Actions affecting joint estates. Possession and Disseisin The owners of joint estates have in general all the rights of owners in severalty, except the right of sole possession-. 6 In the case of joint tenants there is a unity of possession, and each has a right to the enjoyment of the whole property to the extent of his interest. 7 Likewise, tenants in common have an equal right to the use and enjoyment of the common property, 8 and it is only by partition that a tenant in common can obtain the sole and exclusive possession of his interest, 9 since each tenant is in posses- sion of the whole. 10 It follows, therefore, that the possession of People v. Keyser, 28 N. T. 226, 84 Am. Dec. 338 ; In re Albrecht, 136 N. X. 91, 32 N. E 632, 18 L. B, A. 329, 32 Am. St. Rep. 700 ; Wall v. Bissell, 125 U. S. 382, 8 Sup. Ct. 979, 31 L. Ed. 772 ; Freeman, Coten. §§ 16, 42. s Burnett v. Pratt, 22 Pick. (Mass.) 556; Brown v. Bates, 55 Me. 520, 92 Am. Dec. 613 ; In re Albrecht, 136 N. X. 91, 32 N. E. 632, 18 L. R. A. 329, 32 Am. St. Rep. 700. s Wood v. Phillips, 43 N. X. 152 ; Erwin v. Olmsted, 7 Cow. (N. X.) 229 ; Gower v. Quinlan, 40 Mich. 572. 7 Clark v. Railroad Co., 136 Pa. 408, 20 Atl. 562, 10 L. R. A. 238 ; Valentine v. Johnson, 1 Hill, Eq. (S. C.) 49. » Adams v. Manning, 51 Conn. 5 ; Haden v. Sims, 127 Ga. 717, 56 S. E. 989; Boley v. Barutio, 120 111. 192, 11 N. E. 393; Peabody v. Minot, 24 Pick. (Mass.) 329; McElroy v. O'Callaghan, 112 Mich. 124, 70 N. W. 441; Hudson v. Swan, 83 N. X. 552 ; Kline v. Jacobs, 68 Pa. 57. » Thompson v. Sanders, 113 Ga. 1024, 39 S. E. 419; Carter v. Bailey, 64 Me. 458, 18 Am. Rep. 273 ; Pickering v. Moore, 67 N. H. 533, 32 Atl. 828, 31 L. R. A. 698, 68 Am. St. Rep. 695 ; Osborn v. Schenck, 83 N. X. 201 ; Thompson v. Silverthorne, 142 N. C. 12, 54 S. E. 782, 115 Am. St. Rep. 727 ; Heller v. Hufsmith, 102 Pa. 533. io Ord v. Chester, 18 Cal. 77 ; Gossom v. Donaldson, 18 B. Mon. (Ky.) 230, 68 Am. Dec. 723; Knox v. Silloway, 10 Me. 201; Country Club Land Ass'n v. Lohbauer, 187 N. X. 106, 79 N. E. S44. 264 JOINT OWNERSHIP OF ESTATES (Ch. 12 one tenant of a joint estate is not adverse to his cotenants, 11 since the possession of one will be presumed, in the absence of positive adverse claims, to be for the benefit of all. 12 Adverse pos- session and ouster may, however, arise by an actual disseisin of the other tenants, such as an open denial of their rights, under circumstances showing a claim to exclusive possession. 13 The exclusive enjoyment of rents and profits, 14 or the mere delay of a cotenant not in possession to demand possession, 16 will not, however, in itself, amount to a disseisin. One cotenant may, how- ever, disseise the others by an unauthorized conveyance to a stranger of the whole" land, or any particular part thereof by metes and bounds, providing the grantee takes possession under adverse claim against the other tenants. 18 One cotenant cannot, however, purchase the joint, property for himself upon a sale for delinquent taxes. 17 Neither can he set up any other adverse title in himself or in another. 18 11 Clapp v. Bromagham, 9 Cow. (N. Y.) 530 ; Challefoux v. Ducharme, 4 Wis. 554. 12 Lambert v. Hemler, 244 111. 254, 91 N. E 435; Weare v. Van Meter, 42 Iowa, 128, 20 Am. Rep. 616; Schoonover v. Tyner, 72 Kan. 475, 84 Pac. 124; Whiting v. Dewey, 15 Pick. (Mass.) 428; Nickey v. Leader, 235 Mo. 30, 138 S. W. 18 ; Stull v. Stull, 197 Pa. 243, 47 Atl. 240. is Steele v. Steele, 220 111. 318, 77 N. B. 232 ; Blankenhorn v. Lennox, 123 Iowa, 67, 98 N. W. 556 ; Rand v. Huff, 6 Kan. App. 45, 51 Pac. 577 ; McClung v. Ross, 5 Wheat. (U. S.) 116, 5 L. Ed. 46; Puckett v. McDaniel, 8 Tex. Civ. App. 630, 28 S. W. 360; Cameron v. Railway Co., 60 Minn. 100, 61 N. W. 814; Liscomb v. Root, 8 Pick. (Mass.) 376; Cummings v. Wyman, 10 Mass. 464; Blackmore v. Gregg, 2 Watts & S. (Pa.) 182; Feliz v. Feliz, 105 Cal. 1, 38 Pac. 521. There must be an actual ouster. Mansfield v. McGinnis, 86 Me. 118, 29 Atl. 956, 41 Am. St. Rep. 532. i* Long v. Morrison, 251 111. 143, 95 N. E. 1075 ; Higbee v. Rice, 5 Mass. 344, 4 Am. Dec. 63 ; Rodney v. McLaughlin, 97 Mo. 426, 9 S. W. 726 ; Lewitsky v._ Sotoloff, 224 Pa. 610, 73 Atl. 936 ; McGee v. Hall, 26 S. C. 179, 1 S. E. 711. is Ball v. Palmer, 81 111. 370 ; Bader v. Dyer, 106 Iowa, 715, 77 N. W. 469, 68 Am. St. Rep. 332; Lefavour v. Homan, 3 Allen (Mass.) 354; Abrams v. Rhoner, 44 Hun (N. Y.) 507; Rider v. Maul, 46 Pa. 376. is Clapp v. Bromagham, 9 Cow. (N. Y.) 530 ; Kinney v. Slattery, 51 Iowa, 653, 1 N. W. 626. But see Noble v. Hill, 8 Tex. Civ. App. 171, 27 S. W. 756 ; Caldwell v. Neely, 81 N. C. 114; Price v. Hall, 140 Ind. 314, 39 N. E. 941, 49 Am. St. Rep. 196. Such a conveyance must be followed by possession, or there will be no ouster of the other tenants. New York & T. Land Co. v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 206. Such a purchaser from one co-tenant is not estopped to* set up a title adverse to that of the joint owners. Watkins v. Green, 101 Mich. 493, 60 N. W. 44. it Muthersbaugh v. Burke, 33 Kan. 260, 6 Pac. 252; Knolls v. Barnhart, 71 N. Y. 474 ; Davis v. King, 87 Pa. 261 ; Miller v. Donahue, 96 Wis. 498, 71 N. W. 900 ; Dubois v. Campau, 24 Mich. 360 ; Page v. Webster, 8 Mich. 263, 77 is See note 18 on following page. § 107) INCIDENTS OF JOINT ESTATES 265 Accounting Between Cotenants At common law, a joint tenant was not accountable to his cotenants for the receipt of more than his share of the rents and profits of the joint estate. 19 This rule, however, has long been otherwise under the effect of statutes requiring an accounting. 20 Likewise a tenant in common is bound to account to his cotenants for what he receives above his share of the income of the common property. 21 In the absence of a statute to the contrary, a tenant in common is not liable for rent, however, to his cotenants, unless by agreement, for his sole use and occupation of the land. 22 The rule is .otherwise by statute in some states, 28 and it is also held that there may be a recovery if the land has been leased, and the whole of the rent has been collected by one tenant 24 As a rule, one tenant in common cannot maintain trespass or trover against a cotenant for taking the crops or for cutting the timber, 25 Am. Dec. 446 ; Conn v. Conn, 58 Iowa, 747, 13 N. W. 51 ; Clark v. Rainey, 72 Miss. 151, 16 South. 499. And see Bracken v. Cooper, 80 111. 221; Montague v. Selb, 106 111. 49. is Weaver v. Wible, 25 Pa. 270, 64 Am. Dec. 696; Rothwell v. Dewees, 2 Black (TJ. S.) 613, 17 L. Ed. 309 ; Van Home v. Fonda, 5 Johns. Ch. (N. Y.) 388; Davis v. Givens, 71 Mo. 94. An adverse title purchased by one tenant inures to the benefit of the others only when they pay their proportion of the cost. McFarlin v. Leaman (Tex. Civ. App.) 29 S. W. 44. When the co- tenants hold in remainder, the purchase of the preceding life estate by one tenant does not inure to the benefit of the others. McLaughlin v. McLaugh- lin, 80 Md. 115, 30 Atl. 607. Cf. Roberts v. Thorn, 25 Tex. 728, 78 Am. Dec. 552; Kirkpatrick v. Mathiot, 4 Watts & S. (Pa.) 251. See, also, Palmer v. Young, 1 Vern. 276 ; Hamilton v. Denny, 1 Ball & B. 199. io Shiels v. Stark, 14 Ga. 429 ; Ward v. Ward, 40 W. Va. 611, 21 S. B. 746, 29 L. R. A. 449, 52 Am. St. Rep. 911. » 20 Conroy v. Waters, 133 Cal. 211, 65 Pac. 387; Stokes v. Hodges, 11 Rich. Eq. (S. C.) 135; Wiswall v. Wilkins, 5 Vt. 87; White v. Stuart, 76 Va. 546. 2i Regan v. Regan, 192 111. 589, 61 N. E. 842 ; Peck v. Carpenter, 7 Gray (Mass.) 283, 66 Am. Dec. 477; Lloyd v. Turner, 70 N. J. Eq. 425, 62 Atl. 771; Clark v. Piatt, 39 App. Div. 670, 58 N. Y. Supp. 361; Keisel v. Earnest, 21 Pa. 90. "Fraser v. Gates, 118 111. 99, 1 N. E. 817; O wings v. Owings, 150 Mich. 609, 114 N. W. 393; Kline v. Jacobs, 68 Pa. 57; McLaughlin v. McLaughlin, 80 Md. 115, 30 Atl. 607 ; Sargent v. Parsons, 12 Mass. 149 ; Woolever v. Knapp, 18 Barb. (N. Y.) 265;. Valentine v. Healey, 86 Hun, 259, 33 N. Y. Supp. 246; Thomas v. Thomas, 5 Exch. 28; Henderson v. Eason, 17 Q. B. 701. One tenant may take a lease from his cotenants. Valentine v. Healey, 86 Hun, 259, 33 N. Y. Supp. 246. 23 1 Stim. Am. St. Law, § 1378. And see McParland v. Larkin, 155 111. 84, 39 N. E. 609. 24 Miner v. Lorman, 70 Mich. 173, 38 N. W. 18 ; Reynolds v. Wilmeth, 45 Iowa, 693 ; CARVER v. FENNIMORE, 116 Ind. 236, 19 N. E. 103, Burdick Cas. Real Property. 25 Carr v. Dodge, 40 N. H. 403 ; Roston v. Morris, 25 N. J. Law, 173 ; 266 JOINT OWNERSHIP OF ESTATES (Ch. 12 although some cases, under special circumstances, hold the con- trary, 26 and it is held that a tenant may recover his share if the whole has been sold by another tenant. 27 A cotenant has no claim for improvements which he has made on the common property, 28 although he may be given the benefit of them in a partition of the land. 29 Repairs and Waste As a rule, a joint tenant cannot compel contribution for repairs or improvements made without the consent of a cotenant. 80 Where, however, the property is in need of repairs to prevent its decay, it has been held that a joint tenant who makes the neces- sary repairs may enforce contribution from another cotenant. 81 At common law, moreover, an exception was made in the case of necessary repairs to a house or mill; a joint tenant being permit- ted to compel another joint tenant to unite in such expense by a writ of de reparatione facienda, where the cotenant had refused to join in making the repairs. For repairs already made, however, no recovery could be enforced. 82 If a cotenant agrees or consents to repairs, then generally he is liable for his proportionate share. 33 The rule is the same as to tenants in common. They have an equal duty to repair, 3 * and where there is an agreement to share the expense of repairs one tenant may compel contribution from Deavitt v. Ring, 73 Vt. 298, 50 Atl. 1066 ; Filbert v. Hoff, 42 Pa. 97, 82 Am. Dec. 493. 2« Delaney v. Root, 99 Mass. 546, 97 Am. Dec. 52; Reed v. McRill, 41 Neb. 206, 59 N. W. 775 ; Le Barren v. Babcock, 46 Hun (N. Y.) 598 ; Lewis v. Clark, 59 Vt 363, 8 Atl. 158. 2' Abbey v. Wheeler, 85 Hun, 226, 32 N. T. Supp. 1069 ; McGahan v. Bank, 156 U. S. 218, 15 Sup. Ct 347, 39 L. Ed. 403 ; Hayden v. Merrill, 44 Vt. 336, 8 Am. Rep. 372; Richardson v. Richardson, 72 Me. 403. But see Calhoun v. Curtis, 4 Mete. (Mass.) 413, 38 Am. Dec. 380. 28 Rico Reduction & Mining Co. v. Musgrave, 14 Colo. 79, 23 Pac. 458 ; Scott v. Guernsey, 48 N. T. 106. Compare, however, CARVER v. FENNIMORE, 116 Ind. 236, 19 N. E. 103, Burdiek Cas. Real Property. 2s> Kurtz v. Hibner, 55 111. 514, 8 Am. Rep. 665; Alleman v. Hawley, 117 Ind. 532, 20 N. E. 441. so Pickering v. Pickering, 63 N. H. 468, 3 Atl. 744; Crest v. Jack, 3 Watts (Pa.) 238, 27 Am. Dec. 353; Ward v. Ward's Heirs, 40 W. Va. 611, 21 S. E. 746, 29 L. R. A. 449, 52 Am. St. Rep. 91L si Alexander v. Ellison, 79 Ky. 148. 32 Bowles' Case, 11 Coke, 79b; 4 Kent, Comm. 370; Cooper v. Brown, 143 Iowa, 482, 122 N. W. 144, 136 Am. St. Rep. 768. 33 Young v. Polack, 3 Cal. 208 ; Sears v. Munson, 23 Iowa, 380 ; Houston v. McCluney, 8 W. Va. 135. si Wolfe v. Childs, 42 Colo. 121, 94 Pac. 292, 126 Am. St Rep. 152; Adams v. Manning, 51 Conn. 5; Taylor v. Baldwin, 10 Barb. (N. Y.) 582; Henrikson v. Henrikson, 143 Wis. 314, 127 N. W. 962, 33 L. R. A. (N. S.) 534. § 107) INCIDENTS OF JOINT ESTATES 267 the others. 85 A similar rule applies to expenses incurred in the care and management of the property for the common benefit. 86 As a rule no lien is created on the land to secure such expendi- tures; 87 although special circumstances will give rise to an equitable lien. 88 At common law a joint tenant was not liable for waste, 89 although he has been made liable by statutes.* A tenant in com- mon is not liable to his cotenants for the natural wear and tear arising from his reasonable use of the property, but he is liable for acts which amount to its abuse, 41 and acts by less than all of the tenants which result in the permanent injury of the property constitute waste.* 2 The technical rules of waste, however, do not apply. There must be some actual, injury to the estate, or the liability is not incurred.* 8 A tenant in possession may, moreover, be restrained by injunction from malicious injury to the property.** Transfer of Joint Estates A joint tenant may transfer his interest to a cotenant," a release being the proper common-law conveyance for such a purpose.* 6 Likewise a tenant in common may convey his interest to his s» Nelson's Heirs v. Clay's Ileirs, 7 J. J. Marsh. (Ky.) 138, 23 Am. Dec. 387; Holt v. Couch, 125 N. C. 456, 34 S. B. 703, 74 Am. St. Rep. 648; Reed v. Jones, 8 Wis. 421. s° Gardner v. Diedrichs, 41 111. 158; Carroll v. Carroll, 188 Mass. 558, 74 N. E. 913; Gay v. Berkey, 137 Mich. 658, 100 N. W. 920; Matter of Robinson, 40 App. Div. 23, 57 N. Y. Supp. 502; Dech's Appeal, 57 Pa. 467; Stewart v. Stewart, 90 Wis. 516, 63 N. W. 886, 48 Am. St. Rep. 949. a? Cotton v. Coit (Tex. Civ. App.) 30 S. W. 281; Branch v. Makeig, 9 Tex. Civ. App. 399, 28 S. W. 1050. as Patrick v. Y. M. C. A., 120 Mich. 185, 79 N. W. 208 ; Hogan v. McMahon, 80 Md. 195, 80 Atl. 695, Ann. Cas. 1912C, 1260 ; Jones v. Duerk, 25 App. Div. 551, 49 N. Y. Supp. 987; Torrey v. Martin (Tex. Sup.) 4 S. W. 642. , 89 See Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsh. (Ky.) 138, 23 Am. Dec. 387. 4° Shiels v. Stark, 14 Ga. 429. And see Nelson's Heirs v. Clay's Heirs, supra. 4i Trammell v. McDad^e, 29 Tex. 360 ; Bodkin v. Arnold, 48 W. Va. 108, 35 S. B. 980; Dodge v. Davis, 85 Iowa, 77, 52 N. W. 2; Childs v. Railroad Co., 117 Mo. 414, 23 S. W. 373; Wilkinson v. Haygarth, 12 Q. B. 837. But see Wait v. Richardson, 33 Vt. 190. The amount of recovery is apportioned ac- cording to the interests of the several owners. MeDodrill v. Lumber Co., 40 W. Va. 564, 21 S. E. 878. *2 Nevels v. Lumber Co., 108 Ky. 550. 56 S. W. 960, 49 L. R. A. 416, 94 Am. St. Rep. 388 ; Shepard v. Pettit, 30 Minn. 119, 14 N. W. 511 ; Dodd v. Watson, 57 N. C. 48, 72 Am. Dec. 577. 43 Martyn v. Knowllys, 8 Term R. 145. 4* Ballon v. Wood, 8 Cush. (Mass.) 48. But see Hihn v. Peck, 18 Cal. 640; Obert v. Obert, 5 N. J. Eq. 397. 45 Moser v. Dunkle, 1 Woodw. Dec. (Pa.) 388; Eustace v. Scawen, Cro. Jac. 696. 40 Chester v. Willan, 2 Saund. 96a; Gilbert, Tenures, 72. 268 JOINT OWNERSHIP OF ESTATES (Ch. 12 fellow tenant, 47 not, however, by release, at common law, but by feoffment and livery of seisin. 48 This is explained by the fact that joint tenants hold by a joint title, and, consequently, one joint tenant cannot give any further title by way of feoffment to a fellow joint tenant. The only way, therefore, by which he can transfer his interest, is by a release. 4 ' 8 A tenant in common, on the other hand, has a distinct and separate freehold from his cotenant, and this he conveys at common law, not by release, but by feoffment and livery of seisin. 60 A tenant in common may also convey to a cotenant by a deed operating under the statute of uses. 61 In modern times, one tenant in common may convey to a cotenant by any ordinary mode of conveyance, a quitclaim deed being frequently used; and in a partition of a tenancy in common each tenant may obtain an estate in severalty by mutual conveyances. When a tenant in common conveys to a cotenant, he conveys, of course, only his undivided interest, since he has no specific part of the land which he can convey by metes and bounds. A conveyance, however, in which he does describe the land by metes and bounds, has been held to transfer his undivided interest; the specific description being disregarded. 62 With reference to third persons, all the cotenants of a joint tenancy may jointly convey the land, 63 and one joint tenant may convey his interest to a stranger. 84 A joint tenant cannot, however, convey to a third person by metes and bounds. 65 Likewise a tenant in common may convey his undivided interest to a stranger. 66 A tenant in com- mon cannot, however, devise or convey any particular part of the common property by metes and bounds, so as to give such devisee or .grantee any right to such part of the land against the wishes 47 Snell v. Harrison, 104 Mo. 158, 16 S. W. 152; Woodlief v. Woodlief, 136 N. C. 133, 48 S. E 583 ; First Nat. Bank v. Bissell, 4 Fed. 694. *« See post ; Gilbert, Tenures, 74. 4 9 As to the nature of a release, see post. oo Gilbert, Tenures, 74. And see post, as to feoffment and livery of seisin. oi 2 Minor's institutes, 500. And see post. 02 Woods v. Early, 95 Va. 307, 28 S. E. 374. And see Eaton v. Tallmadge, 24 Wis. 217. 6 3 Putnam v. Wise, 1 Hill (N. T.) 234, 37 Am. Dec. 309. o* Neuforth v. Hall, 6 Kan. App. 902, 51 Pac. 573; Sneed's Heirs v. Waring, 2 B. Mon. (Ky.) 522; Tank v. Bordeaux, 23 Mont. 205, 58 Pac. 42, 75 Am. St. Rep. 522 ; Messing v. Messing, 64 App. Div. 125, 71 N. Y. Supp. 717. so Porter v. Hill, 9 Mass.>34, 6 Am. Dec. 22; Richardson v. Miller, 48 Miss. 311 ; Fitch v. Boyer, 51 Tex. 336. oo Jones v. Way, 78 Kan. 535, 97 Pac. 437, 18 L. R. A. (N. S.) 1180; Reinick- er v. Smith, 2 Harr. & J. (Md.) 421; Pellowv. Iron Co., 164 Mich. 87..12S N. W. 918, 47 L. R. A. (N. S.) 573, Ann. Cas. 1912B, 827; Mersereau v. Norton, 15 Johns. (N. Y.) 179. § 107) INCIDENTS OF JOINT ESTATES ' 269 or consent of the other tenants in common. 67 Such a devise or conveyance -yvill operate, however, as an estoppel against the de- visor or grantor with reference to his interest in the described part. 68 Since he cannot convey by metes and bounds, a tenant of a joint estate cannot dedicate land to the public for a street. 60 It has already been said that one joint tenant, by conveying to a stranger, severs the joint tenancy; 80 but such a tenant cannot devise his share, unless he be_ the last survivor. 81 A coparcener, however, may pass his interest by devise. 62 Actions Affecting Joint Estates In actions affecting joint tenancies, it is the general rule, at common law, that all the tenants should be joined, whether parties plaintiff or parties defendant. 68 The statute may, however, permit joint tenants either to sue or to be sued separately, 84 and even in the absence of a controlling statute it is held that as against a trespasser one joint tenant may sue alone. 66 Relative to actions betweeji joint tenants, one tenant cannot sue another for ejectment unless some act amounting to an ouster has been committed, since all are equally entitled to the possession. 66 As to tenants in common, in connection with actions with third " Hartford & S. Ore. Co. v. Miller, 41 Conn. 112 ; Duncan v. Sylvester, 24 Me. 482, 41 Am. Dec. 400; Peabody v. Minot, 24 Pick. (Mass.) 329; Hunt v. Crowell, 2 Edin. Sel. Cas. (N. Y.) 385 ; Boggess v. Meredith, 16 W. Va. 1. 5 8 Mahoney v. Middleton, 41 Cal. 41; Kenoye v. Brown, 82 Miss. 607, 35 South. 163, 100 Am. St. Rep. 645 ; Edwards v. Bishop, 4 N. Y. 61 ; Dennison v. Foster, 9 Ohio, 126, 34 Am. Dec. 429. oo Scott v. State, 1 Sneed (Tenn.) 629. Cf. Stevens v. Town of Norfolk, 46 Conn. 227, and Stevens v. Battell, 49 Conn. 156. eo Supra. oi WILKINS v. YOUNG, 144 Ind. 1, 41 N. E. 68, 590, 55 Am. St. Rep. 162, Burdick Cas. Real /Property ; Duncan v. Forrer, 6 Bin. (Pa.) 193. But see Nichols v. Denny, 37 Miss. 59. The interest of a joint tenant may be sold on execution. Midgley v. Walker, 101 Mich. 583, 60 N. W. 296, 45 Am. St Rep. 431; Wilkins v. Young, supra. 62 1 Washb. Real Prop. (5th Ed.) 684. ea Milne v. Cummings, 4 Yeates (Pa.) 577; Mobley v. Bruner, 59 Pa. 481, 98 Am. Dec. 360; Decker v. Livingston, 15 Johns. (N. Y.) 479; De Puy v. Strong, 37 N. Y. 372; Daniels v. Daniels, 7 Mass. 135; Gilmore v. Wilbur, 12 Pick. (Mass.) 120, 22 Am. Dec. 410 ; Wheat v. Morris, 21 D. C. 11 ; Marshall v. Palmer, 91 Va. 344, 21 S. E. 672, 50 Am. St. Rep. 838 ; Webster v. Vandeventer, 6 Gray (Mass.) 428; Dewey v. Lambier, 7 Cal. 347. But see Lowery v. Rowland, 104 Ala. 420, 16 South. 88 ; Hayden v. Patterson, 51 Pa. 261. 64 Webster v. Vandeventer, 6 Gray (Mass.) 428. 65 King v. Bullock, 9 Dana (Ky.) 41 ; Rabe v. Fyler, 10 Smedes & M. (Miss.) 440, 48 Am. Dec. 763 ; Presley v. Holmes, 33 Tex. 476. «6 Lawton v. Adams, 29 Ga. 273, 74 Am. Dec. 59; Eads v. Rucker, 2 Dana (Ky.) Ill; Den ex dem. Obert v. Bordine, 20 N. J. Law, 394; Jones v. Weathersbee, 4 Strobh. (S. C.) 50, 51 Am. Dec. 653. 270 JOINT OWNERSHIP OF ESTATES (Ch. 12 persons, one tenant may sue alone for the protection of his in- dividual interest. 67 For injuries, however, to the common proper- ty, they should all join. 68 Thus they should join in suits to re- cover rent, 69 or the. purchase price of the land. 70 They are not required to join, but may do so, however, in actions for waste, 71 or for nuisance. 72 At common law, tenants in common could not join in the action of ejectment, 73 but they may do so under the statutes. 74 As to the amount of recovery, however, there is a conflict in the cases. Many authorities hold that one tenant in common may, in ejectment or trespass, recover the entire prop- erty. 70 On the other hand, many cases limit the recovery to the interest of the plaintiff. 76 In many jurisdictions, the joinder or nonjoinder of tenants in common, in connection with all actions, is governed by the statutes, which should, of course, be consulted in each case. 77 Tenants in common, are not persons "united in interest," however, within the code requirement that such persons should join for the recovery of property. 78 «7 Bowser v. Cox, 3 Ind. App. 309, 29 N. E. 616, 50 Am. St. Rep. 274; Peck v. McLean, 36 Minn. 228, 30 N. W. 759, 1 Am. St Rep. 665 ; Stall v. Wilbur, 77 N. Y. 158 ; De Coursey v. Safe Deposit Co., 81 Pa. 217 ; HaU v. Leigh, 8 Cranch (U. S.) 50, 3 L. Ed. 484. esGilmore v. Wilbur, 12 Pick. (Mass.) 120, 22 Am. Dec. 410; Lane v. Dobyns, 11 Mo. 105 ; Jackson v. Moore, 94 App. Div. 504, 87 N. Y. Supp. 1101 ; Morgan v. Hudnell, 52 Ohio St. 552, 40 N. E. 716,. 27 L. R. A. 862, 49 Am. St. Rep. 741 ; Halliday v. Manton, 29 R. I. 205, 69 Atl. 847. «9 Dorsett v. Gray, 98 Ind. 273; Webb v. Conn, 1 Litt. (Ky.) 82, 13 Am. Dec. 225 ; Blanton v. Vanzant, 2 Swan (Tenn.) 276. 'oGilmore v. Wilbur, 12 Pick. (MassJ 120, 22 Am. Dec. 410; Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309; Irwin's Adm'r v. Brown's Ex'rs, 35 Pa. 331. 7i Greenly v. Hall's Ex'r, 3 Har. (Del.) 9. 72 Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310. 73 De Johnson v. Sepulbeda, 5 Cal. 149; Hillhouse v. Mix, 1 Root (Conn.) 246, 1 Am. Dec. 41 ; Doe ex dem. Gaines v. Buford, 1 Dana (Ky.) 481. 74 Swett v. Patrick, 11 Me. 179; Corbin v. Cannon, 31 Miss. 570; Gray v. Givens, 26 Mo. 291 ; Poole v. Pleeger, 11 Pet. (U. S.) 185, 9 L. Ed. 6S0. 76 Chipman v. Hastings, 50 Cal. 310, 19 Am. Rep. 655; Horner v. Ellis, 75 Kan. 675, 90 Pac. 275, 121 Am. St Rep. 446; Lamb v. Lamb, 139 Mich. 166, 102 N. W. 645; Sherin v. Larson, 28 Minn. 523, 11 N. W. 70; Waggoner v. Snody, 98 Tex. 512, 85 S. W. 1134 ; Hardy v. Johnson, 1 Wall. (U. S.) 371, 17 L. Ed. 502. 76Butrick v. Tilton, 141 Mass. 93, 6 N. E. 563; Baber v. Henderson, 156 Mo. 566, 57 S. W. 719, 79 Am. St. Rep. 540 ; Hasbrouck v. Bunce, 3 Thomp. & C. (N. Y.) 309 ; Mobley v. Bruner, 59 Pa. 481, 98 Am. Dec. 360 ; Marshall v. Palmer, 91 Va. 344, 21 S. E. 672, 50 Am. St. Rep. 838. 77 See Morehead v. Hall, 126 N. C. 213, 35 S. E. 428. 7 8 Mather v. Dunn, 11 S. D. 196, 76 N. W. 922, 74 Am. St. Rep. 788. § 107) INCIDENTS OF JOINT ESTATES 271 In connection with their mutual rights and liabilities, tenants ' in common have the action of account against cotenants who have received more than their just share of the rents and profits of v the common estate, 79 and where the remedy at law is not adequate equity will afford the requisite relief. 80 In a proper case, one ten- ant in common may also sue another to obtain contribution for im- provements and repairs, the old common-law writ de reparatione facienda being supplanted by the modern remedies of a bill in equity for contribution, 81 or, in other jurisdictions, by an action at law. 82 In case of waste by a cotenant, the remedy is case, or the special remedy afforded by the statute, 83 although the tort action may be waived, and proceedings for an accounting may be instituted. 84 Where there is actual or constructive eviction of one tenant in common by another, the wronged tenant may main- tain an action in ejectment, 86 or, in some jurisdictions, an action of trespass to try title. 88 Trespass quare clausum cannot ordina- rily, however, be maintained by one tenant in common against another, 87 and, unless the statute provides otherwise, trespass does not lie unless there has been an ouster of possession. 88 " Brady v. Brady, 82 Conn. 424, 74 Atl. 684; Woolley v. Schrader, 116 111. 29, 4 N. E. 658; Morefand v. Strong, 115 Mich. 211, 73 N. W. 140, 69 Am. St. Rep. 553 ; Ayotte v. Nadeau, 32 Mont. 498, 81 Pac. 145 ; Gedney v. Gedney, 16.0 N. Y. 471, 55 N. E 1. so Henson v. Moore, 104 111. 403; Carter v. Bailey, 64 Me. 458, 18 Am. Bep. 273 ; Dyckman v. Valiente, 42 N. Y. 549 ; Harrington v. Oil Co., 178 Pa. 444, 35 Atl. 855 ; Leach v. Beattie, 33 Vt. 195. siMcDearman v. McClure, 31 Ark. 559; Kenopsky v. Davis, 27 La. Ann. 174; Ward v. Ward's Heirs, 40 W. Va. 611, 21 S. E. 746, 29 L. E. A. 449, 52 Am. St. Rep. 911. 8* Fowler v. Fowler, 50 Conn. 256. 8s Shiels v. Stark, 14 Ga. 429; Jenkins v. Wood, 145 Mass. 494, 14 N. E. 512 ; Clow v. Plummer, 85 Mich. 550, 48 N. W. 795 ; Hoolihan v. Hoolilian, 193 N. Y. 197, 85 N. E. 1103, 15 Ann. Cas. 269; Bush v. Gamble,. 127 Pa. 43, 17 Atl. 865. si Darden v. Cooper, 52 N. C. 210, 75 Am. Dec. 461; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216 ; McGahan v. Bank, 156 U. S. 218, 15 Sup. Ct. 347, 39 L. Ed. 403. ssNorris v. Sullivan, 47 Conn. 474; Graham v. Ford, 125 111. App. 578; King v. Dickerman, 11 Gray (Mass.) 480; Gilman v. Gilman, 111 N. Y. 265, 18 N. E. 249; Ricks v. Pope, 129 N. C. 52, 39 S. E. 638; Penrod v. Danner, 19 Ohio, 218; Clay v. Field, 115 U. S. 260, 6 Sup. Ct. 36, 29 L. Ed. 375. so Williams v. Sutton, 43 Cal. 65; Murray v. Stevens, Richi Eq. Cas. (S. C.) 205; Gilmer v. Beauchamp, 40 Tex. Civ. App. 125, 87 S. W. 907. st Jones v. Chiles, 8 Dana (Ky.) 163 ; Duncan v. Sylvester, 13 Me. 417, 29 Am. Dec. 512 ; Todd v. Lunt, 148 Mass. 322, 19 N. E. 522 ; Wait v. Richardson, 33 Vt. 190, 78 Am. Dec. 622. 8 8 Mills v. Richardson, 44 Me. 79; Bennett v. Clemence, 6 Allen (Mass.) 272 JOINT OWNERSHIP OP ESTATES (Ch. 12 The remedy of injunction may be open to tenants in common for the purpose of protecting their rights td the proper enjoyment of the property, providing there is no ample legal remedy. 89 This equitable remedy is particularly appropriate in cases of waste. 90 PARTITION 108. Partition is the dividing of land held by the owners of joint estates into distinct portions, so that each may hold his share in severalty. There may be partition of all kinds of joint estates, except ten- ancies in entirety. Partition may be voluntary or compulsory. Definition Partition means a dividing, a separating, and, as applied to the law of real property, means a division into severalty of property held jointly or in common. 91 In early English law, the joint estate of parcenary, the estate taken by coheirs, derived its name from the fact that any one of the heirs could demand a partition. 92 In this respect, estates of parcenary differed from joint tenancies and tenancies in common, which could not, at common law, be parti- tioned unless all the cotenants consented. 93 Since, however, in modern times, estates in joint tenancy and tenancy in common are subject to partition, and' since, in this country, at least, estates in parcenary are generally not recognized, 94 partition has been aptly defined as "a separation between joint owners or tenants in common of their respective interests in land, and setting apart such interests, so that they may enjoy and possess the same in severalty." 96 It is not essential, however, that each tenant should 10; Boynton v. Hodgdon, 59 N. H. §47; King v. Phillips, 1 Lans. (N. Y.) 421 ; Bush v. Gamble, 127 Pa. 43, 17 Atl. 865. s» Mills v. Hart, 24 Colo. 505, 52 Pac. 680, 65 Am. St. Rep. 241; Daniel v. Daniel, 102 Ga. 181, 28 S. B. 167 ; Williams v. Rogers, 110 Mich. 418, 68 N. W. 240; Butte & B. Consol. Min. Co. v. Purchasing Co., 25 Mont 41, 63 Pac. 825; Van Bergen v. Van Bergen, 3 Johns. Ch. (X. Y.) 282, 8 Am. Dec. 511. »o Fenton v. Miller, 108 Mich. 246, 65 N. W. 966; Leatherbury v. Mclnnis, 85 Miss. 160, 37 South. 1018, 107 Am. St. Rep. 274 ; Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642 ; Morrison v. Morrison, 122 N. C. 598, 29 S. E. 901. »i Webster's Dictionary. »2 Supra. ssBracton, ff. 72 et seq. ; Year Book, 19 Edw. Ill, 12, 14; Holds. Hist, of Eng. Law, III, 109. »* Supra.- 85 Meacham v. Meacham, 91 Tenn. 532, 19 S. W. 757. § 108) PARTITION 273 take his individual interest in severalty, since, where there are three or more cotenants, a partition of the estate arises when even one has obtained his share in severalty, although the remaining tenants may still hold, in common. 88 Voluntary Partition — How Obtained Partition may be either voluntary, or compulsory; that is, it may be brought about either by the mutual agreement of the parties interested, or any one of the parties may resort to the courts in order to compel it. Voluntary partition, at common law, could be made by parol in case of parceners and tenants in com- mon, although in the latter estate livery of seisin was necessary.* 7 Joint tenants, however, could obtain estates in severalty, except in estates for years, only by deed. 98 Since the statute of frauds, requiring interests in land to be evidenced by writing, some cases hold that no partition can be obtained by parol, 88 although the weight of authority* is to the effect that a parol partition, when followed by possession of the shares in severalty, will protect each partitioner in his respective share. 1 In practice, however, a volun- tary partition is usually made either by a single written instrument, executed by all the cotenants, describing the allotment or share each one is to take, and vesting in each one, in turn, the title to his designated share, 2 or mutual conveyances are executed, whereby, in turn, all the cotenants, save the particular grantee, convey or release to each other. Such conveyances, however, are considered merely as parts of one instrument. 3 Another method is sometimes employed, where the cotenants unite in a conveyance to some third party, such grantee reconveying to each of his grantors their so Infra. »7 Brooks v. Hubble (Va.) 27 S. E. 585; Boiling v. Teel, 76 Va. 487; Paine v. Ryder, 24 Beav. 151, 53 Bng. Reprint, 314. os Id. 9 Duncan v. Dunca'n, 93 Ky. 37, 18 S. W. 1022, 40 Am. St. Rep. 159; Porter v. Hill, 9 Mass. 34, 6 Am. Dec. 22 ; Lioyd v. Conover, 25 N. J. Law, 47 ; Melvin v. Bullard, 82 N. C. 33 ; Buzzell v. Gallagher, 28 Wis. 678. i Adams v. Spivey, 94 Ga. 676, 20 S. B. 422; Sontag v. Bigelow, 142 111. 143, 31 N. E. 764, 16 L. R. A. 326 ; Edwards v. Latimer, 183 Mo. 610, 82 S. W. 109 ; Wood v. Fleet, 36 N. Y. 499, 93 Am. Dec. 528 ; Byers v. Byers, 183 Pa. 509, 38 Atl. 1027, 39 L R. A. 537, 63 Am. St. Rep. 765. 2 Center v. Davis, 113 Cal. 307, 45 Pac. 468, 54 Am. St. Rep. 352 ; Staples v. Bradley, 23 Conn. 167, 60 Am. Dec. 630. a Mitchell v. Smith, 67 Me. 338 ; King v. King, 7 Mass. 496 ; Norris v. mil, 1 Mich. 202 ; Whitsett v. Wamack, 159 Mo. 14, 59 S. W. 961, 81 Am. St. Rep. 339 ; Carter v. Day, 59 Ohio St. 96, 51 N. E. 967, 69 Am. St. Rep. 757. Bubd.Real Prop. — 18 "74 JOINT OWNERSHIP OF ESTATES (Ch. 12 separate interests. Of course, the cotenants may unite in selling the land, and divide the proceeds, if desired, among themselves.* Compulsory Partition Joint estates may be so created that partition of them cannot be had; 5 but, in absence of such a provision, any joint estate, except estates in entirety, 8 may be divided at the suit of one of the tenants without the consent of the others. 7 When, however, compulsory partition is sought, it must be for the whole estate, and not for part of it. 8 At common law, partition could be compelled against the consent of the cotenants only in the case of copar- cenary. 8 The right to compel partition between joint tenants and tenants in common, by an action at law, was first given by the statutes of 31 Hen. VIII, c. 1, and 32 Hen. VIII, c. 32 (1540 and 1541) ; the former applying to estates of inheritance, and the latter to estates for life or for years. 10 Similar statutes have been re-enacted. in most of the United States." Jurisdiction In the absence of statutes giving courts of law jurisdiction, par- tition suits are regularly brought in courts of equity, or on the equity side of courts having a united jurisdiction. 12 In some states, « Porter v. Depeyster, 18 La. 351 ; Bray's Ex'x v. Bray, 16 La. 352 ; Carey's Estate, 10 Kulp (Pa.) 227. Rights op Creditors. — Tenants in common cannot make a voluntary par- tition after a Judgment lien is levied upon the undivided property. Simmons v. Gordon, 98 Miss. 316, 53 South. 623, Ann. Cas. 1913A, 1143. « Winthrop v. Minot, 9 Cush. (Mass.) 405 ; Hunt v. Wright, 47 N. H. 396, 93 Am. Dec. 451. So there may be a valid agreement not to partition. Pole- man v. Coleman, 19 Pa. 100, 57 Am. Dec. 641; Eberts v. Fisher, 54 Mich. 294, 20 N. W. 80; Avery v. Payne, 12 Mich. 540. But see Mitchell v. Star- buck, 10 Mass. 5 ; Kean v. Tilford, 81 Ky. 600. « Merritt v. Whitlock, 6 Lack. Leg. N. (Pa.) 76 ; Ketehum v. Walsworth, 5 Wis. 95, 68 Am. Dec. 49. 7-Willard v. Willard, 145 U. S. 116, 12 Sup. Ct. 818, 86 L. Ed. 644; Rohn v. Harris, 130 111. 525, 22 N. E. 587; Danville Seminary v. Mott, 136 111. 289, 28 N. E. 54 ; Smith v. Smith, 10 Paige (N. Y.) 470. » Duncan v. Sylvester, 16 Me. 388. » 1 Washb. Real Prop. (5th Ed.) 710. io Hanson v. Willard, 12 Me. 142, 28 Am. Dec. 162; Coleman v. Coleman, 19 Pa. 100, 57 Am. Dec. 641 ; Willard v. Willard, 145 TJ. S. 116, 12 Sup. Ct. 818, 36 L. Ed. 644. ii 1 Washb. Real Prop. (5th Ed.) 711. And see Hall v. Piddock, 21 N. J. Eq. 311 ; Ford v. Knapp, 102 N. Y. 135, 6 N. E. 283, 55 Am. Rep. 782. isPoulter v. Poulter, 193 111. 641, 61 N. E. 1056; Nash v. Simpson, 78 Me. 142, 3 Atl. 53 ; Hoffman v. Beard, 22 Mich. 59 ; Jenkins v. Van Schaack, 3 Paige (N. Y.) 242 ; Mercur v. Jackson, 3 Pa. Co. Ct R. 387. § 108) PAKTITION 275 however, the remedy is at law. 18 Where the proceedings are made statutory, without designating the character at the suit, the pre- vailing view is that the proceedings are, nevertheless, equitable in their nature. 14 In some states, probate courts are given power to make partitions, especially in connection with the settlement of the estates of decedents. 18 Estates Subject to Partition From the very nature of things, an estate must be held in coten- ancy in order to be the subject of partition; 16 but partition may be made of any kind of an interest or estate in lands, whether of inheritance, or for life, 17 or for years. 18 None but estates in pos- session, however, can be partitioned, unless otherwise provided by statute. 19 Thus, there can be no partition of mere joint estates in reversion or remainder, 20 without some express statutory au- thority covering such cases. 21 In New York state, the statute per- mits the partition of vested remainders or reversions. 22 It is not necessary, however, that the estate should be a legal one, since equitable estates may also be partitioned. 28 is Tate v. Goff, 89 Ga. 184, 15 S. B. 30; Rutherford v. Jones, 14 Ga. 521, 60 Am. Dec. 655; Husband v. Aldrich, 135 Mass. 317. i*Metcalf v. Hoopingardner, 45 Iowa, 510; McClure v. McClure, 1 Phila. (Pa.) 117; Deery v. MeClintock, 31 Wis. 195. is Shorten v. Judd, 56 Kan. 43, 42 Pac. 337, 54 Am. St. Rep. 5S7; Chris- man v. Divina, 141 Mo. 122, 41 S. W. 920; Appeal of Wistar, 115 Pa. 241, 8 Atl. 797 ; Hurley v. Hamilton, 37 Minn. 160, 33 N. W. 912 ; Robinson v. Fair, 128 U. S. 53, 9 Sup. Ct. 30, 32 L. Ed. 415. is Brand v. Coal Co., 219 111. 543, 76 N. E. 849; Rice v. Osgood, 9 Mass. 38 ; State v. Rickey, 8 N. J. Law, 50 ; Strong v. Harris, 84 Hun, 314, 32 N. Y. Supp. 349 ; Seiders v. Giles, 141 Pa. 93, 21 Atl. 514. it Hawkins v. McDougal, 125 Ind. 597, 25 N. E. 807 ; Kinkead v. Max- well, 75 Kan. 50, 88 Pac. 523 ; Morris v. Morris, 45 Tex. Civ. App. 60, 99 S. W. 872; Piano Mfg. Co. v. Kindschi, 131 Wis. 590, 111 N. W. 680, 11 Ann. Cas. 1039. i s Cowden v. Cairns, 28 Mo. 471 ; Duke v. Hague, 107 Pa. 57 ; Heaton v. Deardon, 16 Beav. 147, 51 Eng. Reprint, 733. i» Evans v. Bagshaw, L. R. 5 Ch. 340, 39 L. J. Ch. 45. 20 Fry v. Hare, 166 Ind. 415, 77 N. E. 803; Hunnewell v. Taylor, 6 Cush. (Mass.) 472; Maxwell v. Goetschins, 40 N. J. Law, 3S3, 29 Am. Rep. 242; Sullivan v. Sullivan, 66 N. Y. 37 ; Ziegler v. Grim, 6 Watts (Pa.) 106. 2i Miller v. Lanning, 211 111. 620, 71 N. E. 1115; Hayes v. McReynolds, 144 Mo. 348, 46 S. W. 161; Roarty v. Smith, 53 N. J. Eq. 253, 31 Atl. 1031; Kerner's Estate, 12 Pa. Dist. R. 718. 22 Hovey v. Kelleher, 36 App. Div. 201, 56 N. Y. Supp. 8S9. 2 8 Fitch v. Miller, 200 111. 170, 65 N. E. 650; Welch v. Anderson, 28 Mo. 293 ; Herbert v. Smith, 6 Lans. (N. Y.) 493 ; Owens v. Owens, 25 S. C. 155 ; Leverton v. Waters, 7 Coldw. (Tenn.) 20. 276 JOINT OWNERSHIP OF ESTATES (Ch. 12 The Proceedings — In General In many states, the steps of procedure in partition suits, are outlined in the statutes. In equity, a bill for a partition is filed, 2 * while under the codes the suit is generally begun by a complaint or petition. All the cotenants must be made parties, 26 as well as all other persons interested in the lands, such as lienholders, or they will not be bound by the action. 26 The action is a local action in rem, 27 but questions of title cannot be settled in an action for partition. 28 The actual division of t the land is usually made by commissioners appointed by the court. 29 If an equitable division cannot be made, one of the cotenants may be given a larger share than the other, and be decreed to pay the other a sum of money called the owelty of partition. 30 This cannot be done, however, without his consent. 31 When on« cotenant has made improve- ments on the joint property, for which the others have not con- tributed, the' court may, in its discretion, give him the land on 'which those improvements stand. 32 Two or more cotenants may have their interests set off to them, to be held in severalty as regards the other tenants, but jointly between themselves. 33 If the estate to be partitioned consists of a number of parcels, each parcel need not be divided, but the partition may be made by as- signing the separate parcels to different tenants. 34 Some kinds of property, such as mills and factories, cannot be divided, in which case either an owelty of partition must be paid by the one who takes the whole property, or the property must be sold and the 2* Hall v. Condon, 164 Ala. 393, 51 So. 20; Larkin v. Mann, 2 Paige (N. Y.) 27. 26 Holman v. Gill, 107 111. 467. 2 8 De Uprey v. De Uprey, 27 Cal. 330, 87 Am. Dec. 81; Bogert v. Bogert, 53 Hun, 629, 5 N. Y. Supp. 893; Cornish v. Gest, 2 Cox, Ch. 27. But cf. Sebring v. Mersereau, 9 Cow. (N. Y.) 344; Stewart v. Bank, 101 Pa. 342. s' In re Bonner, '4 Mass. 122; Corwithe v. Griffing, 21 Barb. (N. Y.) 9. 28 Fen ton v. Circuit Judge, 76 Mich. 405, 43 N. W. 437; Fuller v. Montague, 8 C. C. A. 100, 59 Fed. 212. Cf., however, Welch's Appeal, 126 Pa. 297, 17 Atl. 623; Hayes' Appeal,, 123 Pa. 110, 16 Atl. 600. 29 Enyard v. Nevius (N. J. Ch.) 18 Atl. 192; Dondero v. Vansickle, llNev 389. so Green v. Arnold, 11 R. I. 364, 23 Am. Rep. 466 ; Dobbin v. Rex, 106 N. C. 444, 11 S. E. 260. And see Marks v. Sewall, 120 Mass. 174; Stewart v. Bank, 101 Pa. 342. 3i Whitney v. Parker, 63 N. H. 416. And see Corrothers v. Jolliffe, 32 W. Va. 562, 9 S. E. 889, 25 Am. St. Rep. 836. 32 Town v. Needham, 3 Paige (N. Y.) 545, 24 Am. Dec. 246; St. Felix v. Rankin, 3 Edw. Ch (N. Y.) 323 ; Brookfield v. Williams, 2 N. J. Eq. 341. 33 Abbott v. Berry, 46 N. H. 369. And see Colton v. Smith, 11 Pick. (Mass.) 311, 22 Am. Dec. 375. s* nagar v. Wiswall, 10 Pick. (Mass.) 152. § 109) ' COMMUNITY PEOPEETT 277 money divided." After voluntary partition, if the title to the part which one cotenant has received fails, such tenant has no remedy against his former cotenants. 38 If, however, the partition is com- pulsory, each cotenant is in the position of a warrantor of the title of the shares of the others, and, in the event of a failure of title, a new partition may be compelled, or there may he a reliance on the warranty. 37 It follows, therefore, that one cotenant can- not set up an adverse title against the others after partition. 3 ' COMMUNITY PROPERTY 109. In some of our states, owing to the law of the early French and Spanish settlers, there exists a sort of partnership property between husband and wife, known as "communi- ty property." The creation and incidents of this form of joint ownership are now governed by the local statutes. Nature of System The general principle underlying the system of community prop- erty is that all property acquired during marriage, by the indus- try and labor of either the husband or the wife, or both, together with the produce and increase thereof, belongs beneficially to both during the continuance of the marital relation. 38 The system is established by statute in the states of Arizona,- California, Idaho, Louisiana, New Mexico, Nevada, Texas, and "\yashington. Hav- ing become established in the laws of Spain and France, the system was transplanted by those countries to their American colonies. 40 Under the system, the property of married persons is either com- munity property or separate property. 41 Community property is as King v. - Reed, 11 Gray (Mass.) 490; Higginbottom v. Short, 25 Miss. 160, 57 Am. Dec. 198 ; Crowell v. Woodbury, 52 N. H. 613. But see Hills v. Dey r 14 Wend. (N. Y.) 204 ; Miller v. Miller, 13 Pick. (Mass.) 237. s«Weiser v. Weiser, 5 Watts (Pa.) 279, 30 Am. Dec. 313; Beardsley v. Knight, 10 Vt. 185, 33 Am. Dec. 193 ; Morrice's Case, 6 Coke, 12b. 37 But that a new partition cannot be compelled against an alienee after partition, see 1 Washb. Real Prop. (5th Ed.) 723. as Venable v. Beauchamp, 3 Dana (Ky.) 321, 28 Am. Dec. 74. But cf. Cole- man v. Coleman, 3 Dana (Ky.) 398, 28 Am. Dec. 86. 3»Crary v. Field, 9 N. M. 222, 50 Pac. 342; Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Dixon v. Sanderson, 72 Tex, 359, 10 S. W. 535, 13 Am. St. Rep. .801. For a general consideration of this system, see the article Community Property in 21 Cyc. 1633, by the author of this present work. 40 Packard v. Arellanes, 17 Cal. 525 ; Saul v. His Creditors, 5 Mart N. S. (La.) 569, 16 Am. Dec. 212; BARNETT v. BARNETT, 9 N. M. 205, 50 Pac. 337, Burdick Cas. Real Property; Strong v. Eakin, 11 N. M. 107, 66 Pac. 539 ; Cartwright v. Hollis, 5 Tex. 152. *i The statutes of the state in question should be consulted. 278 JOINT OWNERSHIP OF ESTATES (Ch. 12 of two kinds, legal and conventional. The legal community is fixed by law; the conventional community results from express agree- ment of the parties. Separate Property Property owned by either husband or wife at the time of the marriage remains the separate property of each. 42 Likewise, prop- erty acquired during marriage by devise, bequest, or descent, by either spouse, is separate property,* 3 as is also, generally, property acquired by either spouse by gift or donation from third persons. 44 In Louisiana, however, donations made jointly to husband and wife become a part of the community. 46 In that state, moreover, the wife's separate property is called either dotal or extradotal; dotal property being that which is brought by the wife to the husband to assist in bearing the household expenses. 48 All other separate property of the wife is extradotal, or, as more frequently called, her paraphernal property. 47 Community Property With the exception of such property as is expressly designated as separate, the statutes generally provide that all other property acquired by husband or wife during marriage, whether by pur- chase (unless purchased with separate property), by profits from business, or by the earnings of either, become a part of the com- munity. 48 It is a general rule of the system that .the husband has the control and management of all the community property, 49 and he may, in general, sell and dispose of the same, providing no *2 In re Granniss' Estate, 142 Cal. 1, 75 Pac. 324 : Welder v. Lambert, 91 Tex. 510, 44 S. W. 281 ; Nelson v. Frey (Tex. App.) 1G S. W. 250. 43 Bollinger v. Wright, 143 Cal. 292, 76 Pac. 1108 ; Troxler v. Colley, 33 La. Ann. 425; Lake v. Bender, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74; Stock- still v. Bart, 47 Fed. 231. ** Peck v, Vandenberg, 30 Cal. 11; Savenat v. Le Breton, 1 La. 520; Lake v. Bender, supra; Hershberger v. Blewett, 46 Fed. 704. is Civ. Code La. art. 2402. 46Nalle v. Young, 160 IT. S. 624, 16 Sup. Ct. 420, 40 L. Ed. 560; Fleitas v. Richardson, 147 U. S. 550, 13 Sup. Ct. 495, 37 L. Ed. 276. 47 Bouligny v. Fortier, 16 La. Ann. 209 ; Hannie v. Browder, 6 Mart O. S. (La.) 14 ; Nalle v. Young, 160 U. S. 624, 16 Sup. Ct. 420, 40 L. Ed. 560. 48 Fennell v. Drinkhouse, 131 Cal. 447, 63 Pac. 734, 82 Am. St. Rep. 361 ; Pior v. Giddens, 50 La. Ann. 216, 23 South. 337 ; Succession of Manning, 107 La. 456, 31. South. 862; Adams v. Baker, 24 Nev. 375, 55 Pac. 362; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 8J ; Sherlock v. Denny, 28 Wash. 170, 68 Pac. 452. 49 Spreckels v. Spreckels, 116 Cal. 339, 48 Pac. 228, 36 L. R. A. 497, 58 Am. St. Rep. 170; Succession of Boyer, 36 La. Ann. 506; Martin v. McAllister, 94 Tex. 567, 63 S. W. 624, 56 L. R. A. 585. § 109) COMMUNITY PROPERTY 279 fraud be committed upon the rights of the wife. 80 In Washington, however, the husband cannot sell or incumber the real property unless the wife joins in the execution of the deed. 61 The com- munity property is liable for community debts, 52 and every debt contracted during marriage is presumed to be a community debt. 83 In some of the states, however, the husband alone is primarily liable for all necessaries and family expenses. 04 The community is dissolved by death," divorce," 6 and, in Louisiana, by a judicial decree following a suit for a separation of property. 57 Upon the death of either, the general rule is, in absence of antenuptial agree- ments to the contrary, that one-half of the community property vests in the surviving spouse, and one-half, in the absence of tes- tamentary disposition, in the heirs of the deceased.^ 8 In some jurisdictions, however, the surviving husband takes all, 69 although the surviving wife takes only a half interest. 60 If there are no heirs, the survivor is entitled to the entire community. 61 The stat- utes have varied, however, from time to time, and the rights of the surviving spouse and heirs are governed by the law in force at the time of the other spouse's decease. 62 »o Lord v. Hough, 43 Cal. 581; Wilson v. Wilson, 6 Idaho, 597, 57 Pac. 708; Cotton v. Cotton, 34 La. Ann. 858; Moore v. Moore, 73 Tex. 382, 11 S. W. 396. 5i Kimble v. Kimble, 17 Wash. 75, 49 Pac. 216; Wortman v. Vorhies, 14 Wash. 152, 44 Pac. 129. 52 Succession of Kerley, 18 La. Ann. 583 ; Moor v. Moor, 31 Tex. Civ. App. 137, 71 S. W. 794; Barnett v. O'Loughlin, 14 Wash. 259, 44 Pac. 267. oa Kennedy v. Bossiere, 16 La. Ann. 445 ; Brown v. Lockhart, 12 N. M. 10, 71 Pac. 1086; Calhoun v. Leary, 6 Wash. 17, 32 Pac. 1070. 04 In re Weringer's Estate, 100 Cal. 345, 34 Pac. 825; Hall v. Johns, 17 Idaho, 224, 105 Pac. 71; Richburg v. Mcllwaine, Knight & Co. (Tex. Civ. App.) 131 S. W. 1166. 05 Thompson v. Vance, 110 La. 26, 34 South. 112; Hill v. Young, 7 Wash. 33, 34 Pac. 144; King, v. McHendry, 30 Can. Sup. Ct. 450. osBiggi v. Biggi, 98 Cal. 35, 32 Pac. 803, 35 Am. St. Rep. 141; Bedal v. Sake, 10 Idaho, 270, 77 Pac. 638, 66 L. R. A. 60 ; BARNETT v. BARNETT, 9 N. M. 205, 50 Pac. 337, Burdick Cas. Real Property ; Moor v. Moor, 24 Tex. Civ. App. 150, 57 S. W. 992. 57Nuss v. Nuss, 112 La. 265, 36 South. 345; Walmsley v. Theus, 107 La. 417, 31 South. 869 ; Nott v. Nott, 111 La. 1028, 36 South. 109. os Payne v. Payne, 18 Cal. 291; McHardy v. McHardy's Ex'r, 7 Fla. 301; <3eorge v. Delaney, 111 La. 760, 35 South. 894 ; Sims v. Hixon (Tex. Sup.) 65 S. W. 35 ; Wortman v. Vorhies, 14 Wash. 152, 44 Pac. 129. so Ballinger v. Wright, 143 Cal. 292, 76 Pac. 1108; Jacobson v. Concentrat- ing Co., 3 Idaho, 126, 2S Pac. 396. oo Burdick's Estate, 112 Cal. 387, 44 Pac. 734 ; Matter of Clark, 17 Nev. 124, 28 Pac. 238. «i Cartwright v. Moore, 66 Tex. 55, 1 S. W. 263 ; McCown v. Owens, 15 (Tex. Civ. App.) 346, 40 S. W. 336. •2 Johnston v. Sav. Union, 75 Cal. 134, 16 Pac. 753, 7 Am. St. Rep. 129. 280 CONDITIONAL OB QUALIFIED ESTATES (Ch. 13 CHAPTER XIII CONDITIONAL OK QUALIFIED ESTATES 110. Estates as to Quality. , 111. Estates upon Condition. 112. Void Conditions. 113. Termination of Conditional Estates. 114. Who may Enforce Forfeitures. 115. Estates upon Limitation. 116'. Estates upon Conditional Limitation. 117. Modified Fees. ESTATES AS TO QUALITY 110. Estates as to quality are either absolute or qualified. Absolute estates are estates without modifications or conditions. Qualified estates are estates that are subject to certain modifica- tions or conditions. Under qualified estates may be classed r (a) Estates upon condition, (b - ) Estates upon limitation, (c) Estates upon conditional limitation, (d) Modified fees, including: (1) Qualified, base, or determinable fees; and (2) Conditional fees. Estates as to Quality • The estates thus far considered have been distinguished by the limit, or time, prescribed for their duration, or, in other words, by their quantity. Estates, however, may have imposed upon them certain modifications or conditions, by force of which they may be determinable before attaining their regular limits of duration. 1 In other words, estates may be absolute, that is, clear of any condi- tion or restriction, or they may be qualified by the addition of such modifications. For example, the owner of an estate in lands may have his interest modified or destroyed by the happening of an event 'which may or may not occur. -. Likewise, the vesting of an estate may depend upon such a contingency. The existence of such a condition does not, however, affect the quantity of the estate, nor the owner's powers of dealing with it. He may use the land, sell or mortgage it, just as if his interest was absolute, instead of qual- i Leake, Land Law, 16L § 111) ESTATES UPON CONDITION 281 ified. 2 Any alienation or incumbrance will be defeated, however, if the estate is terminated by the happening of the contingency on which it depends. 8 A strictly logical classification of qualified estates would, per- haps, consist of (1) qualified estates of inheritance, or qualified fees, and (2) qualified estates not of inheritance. Moreover, "es- tates upon condition" are not, properly speaking, a distinct species of estates in themselves, since any quantity of interest, a fee, a life estate, or a term of years, may have conditions imposed upon it, and thus be qualified.* It is customary, however, to make "estates upon condition" a particular class of qualified estates, and they may, perhaps, be more conveniently considered in this way. ESTATES UPON CONDITION 111. An estate upon condition is one which is created or defeated, enlarged or diminished, on the happening of some uncer- tain event. Estates upon condition are divided into : (a) Estates upon condition precedent; and (b) Estates upon condition subsequent. Conditions precedent are conditions which must be fulfilled be- fore the" estate to which Jthey are attached can vest or be enlarged. Conditions subsequent are .conditions upon the fulfillment or nonfulfillment of which an estate previously vested is defeated. An estate upon condition depends upon the happening or not happening of some uncertain event, whereby an estate may be ei- ther originally created, or enlarged, or finally defeated. 6 ' Estates upon condition, says Blackstone, 6 are of two sorts: (1) Estates upon condition implied by law ; and (2) estates upon condition expressed. Estates upon condition implied by law are where the grant of an estate has a condition annexed to it inseparably from its essence, although no condition be expressed in words. 7 Thus, 2 Taylor v. Sutton, 15 Ga. 103, GO Am. Dec. 682 ; Shattuck v. Hastings, 99 Mass. 23 ; Chapman v. Pingree, 67 Me. 198. But see Slegel v. Lauer, 148 Pa. 236, 23 Atl. 996, 15 L. R. A. 547. » Gray v. Blanchard, 8 Pick. (Mass.) 284. *2 Blk. Comm. 152; Leake, Land Law, 161. 6 Co. Litt. 201a; 2 Blk. Comm. 152; WARNER y. BENNETT, 31 Conn. 468, Burdick Cas. Real Property. «2 Blk. Comm. 152. ' rid. 282 CONDITIONAL OK QUALIFIED ESTATES (Ch. 13 prior to the statute of quia emptores, 8 the grant of an estate in fee ' simple to be held of the grantor implied a condition that the ten- ant should perform certain services. 9 An estate on condition ex- pressed in the grant, or devise, is where an estate is granted either in fee simple or otherwise, with an express qualification annexed, whereby the estate shall either commence, be enlarged, or be de- feated upon performance or breach of such qualification or condi- tion. 10 Estates on condition expressed are either precedent or subse- quent. Conditions precedent must happen or be performed before the estate to which they apply can arise, or before already exist- ing estates can be enlarged. 11 If the contingency does not occur, the grant or devise containing the condition never becomes oper- ative. 12 Such conditions relate only to the time of the commence- ment of estates, and do not affect estates in respect to their duration: "Conditions precedent occur in contingent remainders, 13 in limi- tations by way of springing and shifting uses, 14 and in executory devises." 1B A condition subsequent diminishes or destroys the es- tate to which it is attached. 16 One of the oldest illustrations of a s 18 Edw. I, c. 1 (1290). » Litt. § 378 ; Co. Litt. 233b ; Fearne, Contingent Remainders (9th Ed.) p. 382, note. io Co. Litt. 201; 2 Blk. Comm. 154 j 4 Kent, Coram. 125; WARNER v. BENNETT, 31 Conn. 468, Burdick Cas. Real Property. ii Upington v. Corrigan, 69 Hun, 320, 23 N. Y. Supp. 451; In re Howard's Estate, 5 Misc. Rep. 295, 25 N. T. Supp. 1111 ; Richards v. Richards, 90 Iowa, 006, 58 N. W. 926 ; Hurd v. Shelton, 64 Conn. 496, 30 Atl. 766 ; Moore v. Perry, 42 S. C. 369, 20 S. E. 200 ; City of Stockton v. Weber, 98 Cal. 433, 33 Pac. 332 ; Tilley v. King, 109 N. C. 461, 13 S. E. 936. Examples of conditions precedent are: That a devise shall not vest until the devisee's debts are paid. Nichol v. Levy, 5 Wall. 433, 18 L. Ed. 596. That a child shall be born to the grantees. Karchner v. Hoy, 151 Pa. 383, 25 Atl. 20. That a devisee shall abstain from the use of intoxicating liquors for five years. In re Steven's Estate, 164 Pa. 209, 30 Atl. 243. That the grantee support the grantors during their lives. Lashley v. Souder (N. J. Ch.) 24 Atl. 919. That a grant is conditioned upon the payment of the. purchase price on or before a certain day. Brannan v. Mesick, 10 Cal. 95. i2Donohue v. McNichoh 61 Pa. 73; Mizell v. Burnett, 49 N. C. 249, 69 Am. Dec. 744. is See chapter XV. "Id. ib Leake, Land Law. 161. As to executory devises, see chapter XV. ie Rice v. Railroad Corp., 12 Allen (Mass.) 141; Harrison v. Foote, 9 Tex. Civ. App. 576, 30 S. W. 838 ; Mills v. Railway Co., 10 Wash. 520, 39 Pac. 246 ; Reichenbach v. Railway Co., 10 Wash. 357, 38 Pac. 1126 ; Bank of Suisun v. Stark, 106 Cal. 202, 39 Pac. 531 ; Ritchie v. Railway Co., 55 Kan. 36, 39 Pac. 718 ; McClure v. Cook, 39 W. Va. 579, 20 S. E. 612. But see Baker v. Mott, 78 Hun, 141, 28 N. T. Supp. 968 ; Kilpatrick v. Baltimore, 81 Ma 179, 31 Atl. § HI) ESTATES UPON CONDITION 283 condition subsequent is the defeasance clause in a common-law mortgage deed. 17 The distinction between conditions precedent and subsequent depends on the intention of the parties as gathered from the whole instrument, and the attendant circumstances. 18 The courts, however, construe conditions as subsequent, rather than as precedent, 10 and it is held, in cases of doubt, that an estate vests at once, subject to its defeat by nonperformance of conditions, rather than that the grantee must perform before he is entitled to the estate. 20 The time within which the condition must be per- formed is usually expressly stated ; but, if it is not, the grantee has for its performance a reasonable time, 21 or his whole life, accord- ing to the circumstances of the case and the intention of the par- ties. 22 No particular words are required to create a condition. Such phrases as "upon condition," "on condition that," "provided always," or "if it shall happen," are customarily used ; 23 but they 805, 27 L. R. A. 643, 48 Am. St. Rep. 509; Studdard v. Wells, 120 Mo. 25, 25 S. W. 201 ; Elyton Land Co. v. South & North Alabama R. Co., 100 Ala. 396, 14 South. 207. The following are conditions subsequent: Devise of real estate to a town for the purpose of building a school house, "provided it is built with- in 100 rods of the place where the meetinghouse now stands." HAYDEN v. STOUGHTON, 5 Pick. (Mass.) 528, Burdick Cas. Real Property. Devise to A. and his heirs, if he live to 21. Edwards v. Hammond, 3 Lev. 132. Devise to one provided he supports the grantor for life. Spaulding v. Hallenbeck, 39 Barb. (N. Y.) 79. That the land conveyed shall not be used for certain pur- poses, Hayes v. Railway Co., 51 N. J. Eq. 345, 27 Atl. 648 ; Odessa Imp. & Irr. Co. v. Dawson, 5 Tex. Civ. App. 487, 24 S. W. 576; Hopkins v. Smith, 162 Mass. 444, 38 N. E. 1122 (but see Jenks v. Pawlowski, 98 Mich. 110, 56 N. W. 1105,~22 L. R. A. 863, 39 Am. St. Rep. 522) ; or shall be built upon only inr a certain manner, Ogontz Land & Imp. Co. v. Johnson, 168 Pa. 178, 31 Atl. 1008 ; Reardon v. Murphy, 163 Mass. 501, 40 N. E. 854. " Litt. § 332 et seq. As to the defeasance clause of a mortgage deed, see chapter XVIII, post. is PRANK v. STRATFORD-HANDCOCK, 13 Wyo. 37, 77 Pac. 134, 67 L. R. A. 571, 110 Am. St. Rep. 963, Burdick Cas. Real Property; Under hill v. Railway Co., 20 Barb. (N. T.) 455; Burnett v. Strong, 26 Miss. 116; Jones v. Railway Co., 14 W. Va. 514. is> Martin v, Ballou, 13 Barb. (N. Y.) 119; Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. And see Webster v. Cooper, 14 How. 488, 14 L. Ed. 510; Taylor v. Mason, 9 Wheat. 325, 6 L. Ed. 101; Sackett v. Mallory, 1 Mete. (Mass.) 355; Tallman v. Snow, 35 Me. 342. 20 Finlay v. King, 3 Pet. 346, 7 L. Ed. 701. 2i Hamilton v. Elliqtt, 5 Serg. & R. (Pa.) 375; Allen v. Howe, 105 Mass. 241. As in a case where he is to pay off a mortgage, no time being expressed. Rowell v. Jewett, 69 Me. 293. 22 Marshall, C. J., in Finlay v. King, 3 Pet. 346, 7 L. Ed. 701. 23 Co. Litt. 203b, 204b; Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502; Bigelow, C. J., in Rawson v. School Dist, 7 Allen (Mass.) 125, 83 Am. Dec. 670 ; Gray v. Blanchard, 8 Pick. (Mass.) 284; WARNER v. BENNETT, 31 Conn. 468, Burdick Cas. Real Property; Hooper v. Cummings, 45 Me. 359. 284 CONDITIONAL OE QUALIFIED ESTATES (Ch. 1 3 are not essential, provided the instrument shows an intent to create a condition. 2 * Moreover, "it is to be observed that many- words in a. will ,do make a condition in law that make no condi- tion in a deed." " SAME— VOID CONDITIONS 112. Conditions which are illegal or impossible of performance are void. When precedent, void conditions prevent estates depending on them from vesting. When subsequent, they are inoperative and of no effect. » A condition to be effective must be lawful, 2 " and not all condi- tions which may be imposed are so. A condition may be invalid because its performance is impossible, 27 or because it is illegal or contrary to public policy. 28 The illegal conditions most frequently imposed are those in restraint of alienation and of marriage. Con- ditions in restraint of alienation are discussed in a subsequent chapter. 29 Conditions in general restraint of marriage are void. Partial restrictions, however, on marriage, such as not to marry a 2* Hapgood v. Houghton, 22 Pick. (Mass.) 480 ; Attorney General v. Mer- rimack Manuf'g Co., 14 Gray (Mass.) 586; Watters v. Bredin, 70 Pa. 235; TJnderhill v. Railroad Co., 20 Barb. (N. Y.) 455; Gibert v. Peteler, 38 N. Y. 165, 97 Am. Dec. 785; Worman's Lessee v. Teagarden, 2 Ohio St. 380; Wheel- er v. Walker, 2 C«nn. 196, 7 Am. Dec. 264 ; Bacon v. Huntington, 14 Conn. 92. But see Packard v. Ames, 16 Gray (Mass.) 327; Jennings v. O'Brien, 47 IOwa, 392; Gadberry v. Sbeppard, 27 Miss. 203. Nor does the use of the words given in all cases raise a condition. Episcopal City Mission v. Apple- ton, 117 Mass. 326; Sohler v. Trinity Church, 109 Mass. 1; Chapin v. Har- ris, 8 Allen (Mass.) 594. Estates on condition may be created by will or deed. Wheeler v. Walker, 2 Conn. 196, 7 Am. Dec. 264. In some states it Is provided by statute that conditions merely nominal shall be disregarded. 1 Stim. Am. St. Law, § 1361. as Co. Litt. 236b; 2 Jarman, Wills, 84L 2« Co. Litt. 206b. 2f A condition may become impossible by act of God, Thomas v. Howell, 1 Salk. 170; or by act of law, Board of Com'rs of Mahoning Co. v. Young, 59 Fed. 96, 8 C. C. A. 27 ; Scovill v. McMahon, 62 Conn. 378, 26 Atl. 479, 21 L. B. A. 58, 36 Am. St Kep. 350. as MANN v. JACKSON, 84 Me. 400, 24 Atl. 886, 16 L. R. A. 707, 30 Am. St. Rep. 358, Burdick Cas. Real Property; Conrad v. Long, 33 Mich. 78; Hawk v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391 ; Brown v. Peck, 1 Eden, 140, 28 Eng. Reprint, 637. 2» See chapter XXV, post See, also, Jenner v. Gurner, 16 Ch. Div. 188; Hodgson v. Halford, 11 Ch. Div. 959; Graydon's Ex'rs v. Graydon, 23 N. J. Eq. 229; Phillips v. Ferguson, 85 Va. 509, 8 S. E. 241, 1 L. R. A. 837, 17 Am. St Rep. 78; Hogan v. Curtin, 88 N. Y. 162, 42 Am. Rep. 244; Keily v. Monck, 3 Ridg. App. 205 ; Maddox v. Maddox's Adm'r, 11 Grat (Va.) 804. § 113) TEEMINATION OF CONDITIONAL ESTATES 285 named person, or any one of a named family, are generally sus- tained, even without a limitation over, but are narrowly inter- preted. 80 The same is true with reference to conditions against marrying without the consent of parents, or of those who stand in loco parentis. 31 A condition may also be void for uncertainty, 82 as, likewise, because repugnant to the estate limited. 38 Conditions may also, it is said, 34 be possibly invalid if they violate the rule against perpetuities. 30 On the other hand, it is contended that common-law conditions are older than the rule against perpetui- ties, and, for that reason, do not fall within its application. 86 A void condition, if precedent, prevents the estate depending on it from vesting at all ; 87 but, if subsequent, the condition is of no ef- fect, and the estate becomes absolute, discharged of the condition. 88 SAME— TERMINATION OF CONDITIONAL ESTATES 113. An estate on condition subsequent may come to a natural ter- mination without, a breach of the condition. Moreover, in general, an estate on condition subsequent is not deter- mined by a breach of condition until there has been an entry or claim, except as follows : (a) Commencing an action of ejectment is equivalent to an en- try. (b) If the grantor is in possession, the forfeiture is complete when a breach occurs. (c) An estate for years can, at common law, be defeated by the breach itself. so Phillips v. Ferguson, 85 Va. 509, 8 S. E. 241, 1 L. R. A. 837, 17 Am. St. Rep. 78. si Denfield, Petitioner, 156 Mass. 265, 30 N. B. 1018. 32 Sheppard's Touchstone, by Preston, 128; Fearne, Contingent Remainders, 255. sa Outland v. Bowen, 115 Ind. 150, 17 N. E. 281, 7 Am. St. Rep. 420; Black- stone Bank v. Davis, 21 Pick. (Mass.) 42, 32 Am. Dec. 241; De Peyster v. Michael, 6 N. Y. 467, 57 Am. Dec. 470. 3* See Laws of England, vol. 24, p. 170; In re Hollls' Hospital Trustees, [1899] 2 Ch. 540; In re Da Costa, [1912] 1 Ch. 337. 3 6 See, post, chapter XVI. so See Challis, Law of Real Property (3d Ed.) 187, 207. 8 7 Stockton v. Weber, 98 Cal. 433, 33 Pac. 332; Roundel v. Currer, 2 Brown, Ch. 67; Priestley v. Holgate, 3 Kay & J. 286. But see In re Moore, 39 Ch. Div. 116. 3 8 Jones v. Doe, 2 111. 276; Parker v. Parker, 123 Mass. 584; Thomas v. Howell, 1 Salk. 170; Lowther v. Cavendish, 1 Eden, 99; Peyton v. Bury, 2 P. Wms. 626; Collett v. Collett, 35 Beav. 312; Booth v. Meyer, 38 Law T. (N. S.) 125; O'Brien v. Barkley, 78 Hun, 609, 28 N. T. Supp. 1049; Hoss v. IIoss, 140 Ind. 551, 39 N. E. 255. 2S6 CONDITIONAL OB QUALIFIED ESTATES (Ch. 13 Estates may be subjected to conditions without losing their dis- tinctive character, 39 as, for example, estates in fee simple, estates for life, or estates for years. Consequently an estate on condition subsequent may expire under the form of the limitation, the same as an absolute estate. For example, where a life estate is given on condition, the death of the life tenant puts an end to the estate, al- though the condition has never been broken. Moreover, the breach of a condition subsequent does not, of itself, defeat, as a rule, the estate, not even if the instrument expressly provides that the es- tate shall thereupon terminate and be void. 40 The estate, upon the breach, is not void, but voidable only by entry,* 1 or claim equiva- lent to entry, 42 at the option of the grantor or his heirs. 43 This rule applies, however, at common law, only to estates of freehold. 44 It does not apply to incorporeal hereditaments, 45 nor to estates for years. 46 A freehold estate, created, at common law, by livery of seisin, cannot be divested under a condition without a resumption of the seisin by entry. 47 A lease for years, however, does not, upon condition broken, require an actual entry, unless there is an express stipulation to that effect. 48 In case of a rever- sion or a remainder, which do not lie in livery of seisin, there must "» Leake, Land Law, 161. *° Co. Litt. 214b, 218a ; Leake, 169. 4i WARNER v. BENNETT, 31 Conn. 468, Burdick Cas. Real Property; Bowen v. Bowen, 18 Conn. 535; Hubbard v. Hubbard, 97 Mass. 188, 93 Am. Dec. 75 ; Guild v. Richards, 16 Gray (Mass.) 309 ; Adams v. Lindell, 5 Mo. App. 197; Kenner v. Contract Co., 9 Bush (Ky.) 202; Tallman v. Snow, 35 Me. 342 ; Sperry v. Sperry, 8 N. H. 477 ; Memphis & C. R. Co. v. Neighbors, 51 Miss. 412; -Phelps v. Chesson, 34 N. C. 194. But see Schlesinger v. Rail- road Co., 152 U. S. 444, 14 Sup. Ct. 647, 38 L. Ed. 507. A right of entry need not be expressly reserved. Gray t. Blanchard, 8 Pick. (Mass.) 284; Thomas v. Record, 47 Me. 500, 74 Am. Dec. 500. 42 Infra. 4s WARNER v. BENNETT, 31 Conn. 468, Burdick Cas. Real Property ; PROPRIETORS OP CHURCH IN BRATTLE SQDARE v. GRANT; 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property. It is not neces- sary that any damage to the grantor has been caused by the breach. Sioux City & St. P. R. Co. v. Singer, 49 Minn. 301, 51 N. W. 905, 15 L. R. A. 751, 32 Am." St. Rep. 354. The grantee cannot insist that he has forfeited his es- tate by a breach. Davenport v. Reg., 3 App. Cas. 115 ; Rede v. Farr, 6 Maule & S. 121. As to what constitutes a breach, see Razor v. Razor, 142 ill. 375, 31 N. E. 678; Rose v. Hawfey, 141 N. Y. 366, 36 N. E. 335; City of Quincy v. Attorney General, 160 Mass. 431, 35 N. E. 1066 ; Hurto v. Grant, 90 Iowa, 414, 57 N. W. 899 ; Crawford v. Wearn, 115 N. C. 540, 20 S. E. 724 ; Madigan V. Burns, 67 N. H. 319, 29 Atl. 454. 44 Laws of England, vol. 24, p. 169, note. 46 A. G. v. Cummins, [1906] 1 I. R. 406, 408. 4« Co. Litt. 214b. 47 Co. Litt. 214b; Pennant's Case, 3 Co. 64a; Leake, Land Law, 169. 4 8 Co. Litt. 214b; Doe v. Baker, 8 Taunt. 241; Leake, Land Law, 170. § 114) WHO MAY ENFORCE FORFEITURES 287 be a claim before the estate can be revested, and the claim must be made upon the land. 49 The common-law rule that an estate for years can be made ipso facto void by a breach of condition 50 has been changed, however, under the doctrine of the later cases, which hold that, even in leases, a condition broken gives the lessor mere- ly an option to terminate the lease, and that notice on his part of such intention is necessary. 61 The exceptions to the rule requiring an, entry, namely, the bringing of an action in ejectment, or the possession of the land by the grantor at the time a breach of con- dition occurs, together with certain statutory remedies for the. recovery of the land, are considered elsewhere in this volume, to which the reader is referred. 62 The questions of waiver of con- ditions, and equitable relief from forfeiture for their breach, are also taken up in the same connection. BB SAME— WHO MAY ENFORCE FORFEITURES 114. An entry to enforce a forfeiture for a breach of condition can usually be made only by the grantor, or his heirs. EXCEPTION — The assignee of a reversion after a leasehold estate can, however, enforce covenants which run with the land. , At common law, since the grant of an estate exhausts the fee, the right of entry for breach of condition, to defeat an estate, can- not by way of remainder be limited to a third person, but can only be reserved as a possibility of reverter to the grantor and his heirs. 64 Nor, at common law, can it be assigned or transferred with a grant *» Co. Litt, 218a. bo Co. Litt. 214b. si Moore v. Ulcoats Mining Co., [1908] 1 Ch. 575; Liddy v. Kennedy, L. E. 5 H. L. 134 ; Walker v. Engler, 30 Mo. 130 ; Cannon v. Wilbur, 30 Neb. 777, 47 N. W. 85. 52 See post, chapter XXVIII. 63 Id. 64 WARNER v. BENNETT, 31 Conn. 468, Burdick Cas. Real Property ; Fonda v. Sage, 46 Barb. (N. T.) 109; Van Rensselaer v. Ball, 19 N. T. 100; Marwick v, Andrews, 25 Me. 525. Contra, McKissick v. Pickle, 16 Pa. 140. And see Pinkum v. City of Eau Claire, 81 Wis. 601, 51 N. W. 550. Nor can a stranger raise the question of a forfeiture. Board of Education of Normal School Dist v. Trustees of First Baptist Church of Normal, 63 111. 204; Schulenberg v. Harriman, 21 Wall. 44, 22 L. Ed. 551 ; Rector, etc., of King's Chapel v. Pelham, 9 Mass. 501; Smith v. Brannan, 13 Cal. 107; Dewey v. Williams, 40 N. H. 222, 77 Am. Dec. 708 ; Norris v. Milner, 20 Ga. 563. Hold- ing that a devisee of the grantor cannot enforce a forfeiture, see Den ex dem. Southard v.' Railroad Co., 26 N. J. Law, 13. Contra, Austin v. Cambridge- port Parish, 21 Pick. (Mass.) 215. 288 CONDITIONAL OB QUALIFIED ESTATES (Ch. 13 of the reversion. 5 " These rules, however, do not apply to lease- hold estates; for in such cases the assignee of the reversion can enforce covenants which run with the land. 58 ESTATES UPON LIMITATION 115. An estate upon limitation is one which is collaterally limited by the words of its creation to endure until the happening of a certain contingency. The estate ends as soon as the contingency happens, although, otherwise, it would con- tinue for its natural duration. The word "limitation" in the law of real property is used in sev- :ral senses. Primarily, it means marking out, or defining, the quantity of an estate, as illustrated in the phrase, "words of limi- ation," as, for example, "to A. and his heirs," or to "A. and the neirs of his body," or when we say that, at common law, a grant of land "without words of limitation" will convey only a life es- tate. The word limitation is also used in the sense of "estate," as, for example, "a limitation to A. for life, remainder to B.," or, in case of the determination of a preceding estate, "a limitation over to B." As used, however, in the phrase "estates upon limitation," the word means a termination upon the happening of a contingency. It defines the time when an estate will end, namely, ipso facto upon the event of the expressed contingency, regardless of whether it would otherwise continue as a fee, an estate for life, or an estate for years. To distinguish the use of the word "limitation" in defining estates, some writers use the words "direct" and "collateral," des- ignating such phrases as "heirs" and "heirs of the body" as "words of direct limitation," and the words used in estates upon limitation as "words of collateral limitation." " The term "special limita- tion" has also been applied to estates upon limitation. 08 bb Vermont v. Society for Propagation of Gospel, 2 Paine, 545, Fed. Cas. No. 16,920; Rice v. Railroad Co., 12 Allen (Mass.) 141 ; .. Nicoll v. Railroad Co., 12 N. T. 121 ; Underbill v. Railroad Co., 20 Barb. (N. Y.) 455 ; WARNER v. BENNETT, 31 Conn. 468, Burdick Cas. Real Property. Under statutes, h6w- ever, a right of re-entry may be transferred. See Conditions, post, chapter XXVIII. so See chapter X, ante. See, also, Conditions, chapter XXVTII, post, for further discussion of persons affected by breach of conditions. B7 1 Preston on Estates, 42. See Challis, Real Property (3d Ed.) 252. B8 See Tiffany, Real Prop. p. 188. There is considerable divergence among the writers in the designation of estates which are usually, in this country at § 115) ESTATES UPON LIMITATION 289 An estate on limitation is, therefore, one which is determined, rather than defeated, by the happening of a contingency, "as when land" (quoting Coke and Blackstone) "is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made five hundred pounds, and the like." " The' words used to create an estate on limitation all refer to time; for example, "until," "while," "during," "as long as," etc. 60 However, neither the use of these words, nor their ab- sence, is conclusive ; S1 and the distinction between estates upon limitation and estates upon condition lies, not in the exact terms used, but upon the intention of the parties and the effect of the language. 62 Estates upon limitation are distinguished from estates upon condition, in that in the former the estate ends absolutely as soon as the contingency happens, no entry being necessary as in case of an estate upon condition, but the next vested remainder, or reversion, takes effect in immediate possession. 6 ? The limitation specifies the utmost time of continuance, and the condition marks some event upon which the estate may be defeated. 64 least, called "estates upon limitation." Some call them "determinable fees," when the words of direct limitation create a fee. See Laws of England, vol. 24, p. 170. Littleton calls the qualification "a condition in law." Section 380. Coke calls such an estate, when a fee, "a fee simple, limited and qualified." Seymour's Case, 10 Co. Rep. 95b. Butler , calls it "a limited fee." Fearne, Contingent Remainders (9th Ed.) 382n. Leake calls the limitation "a condi- tional limitation." Digest of the Law of Property in Land (2d Ed.) 168. Challis speaks of "determinable limitations." Real Prop. (3d Ed.) 252. See, further, Base or Determinable Fees, infra. 6» 2 Blk. Comm. 155; Portington's Case, 10 Co. Rep. 41. "Co. Litt. 234b; Challis, Real Prop. (3d Ed.) 255-260; In re Machu, 21 Ch. Div. 838, 843; Henderson v. Hunter, 59 Pa. 335; Bennett v. Robinson, 10 Watts (Pa.) 348 ; Vanatta v. Brewer, 32 N. J. Eq. 268. oi Chapin v. Harris, 8 Allen (Mass.) 594; Owen v. Field, 102 Mass. 90; Wheeler v. Walker, 2 Conn. 196, 7 Am. Dec. 264 ; Camp v. Cleary, 76 Va. 140 ; Stearns v. Godfrey, 16 Me. 158. « 2 Portington's Case, 10 Co. Rep. 41; Leake, Land Law, 168. «3 Leake, Land Law, 168; Scheetz v. Fitzwater, 5 Pa. 126; Henderson v. Hunter, 59 Pa. 335; Ashley v. Warner, 11 Gray (Mass.) 43; Miller v. Levi, 44 N. Y. 489 ; Stearns v. Godfrey, 16 Me. 158. An example of the importance of this distinction arises in connection with conditions in restraint or marriage. Thus an estate to A. until she marries is valid as an estate on limitation. But an estate to A. provided she does not marry is void because it is an estate on condition, and the condition is in restraint of marriage. Bennett v. Rob- inson, 10 Watts (Pa.) 348; MANN v. JACKSON, 84 Me. 400, 24 Atl. 886, 16 L. R. A. 707, 30 Am. St. Rep. 358, Burdick Cas. Real Property ; Jones v. Jones, 1 Q. B. Div. 279. 6*4 Kent, Comm. 126; PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real -Property. Bubd.Real Prop. — 19 290 CONDITIONAL OB QUALIFIED ESTATES (Ch.13 ESTATES UPON CONDITIONAL LIMITATION 116. A conditional limitation is an estate limited to take effect after the determination of an estate, which, in the absence of a limitation over, would have been an estate upon condition. "Conditional limitations," as the term is here used, 65 were un- known to the common law, since such future estates could not be created prior to the statute of uses. 68 They arise, however, since that statute, under the iorms of shifting uses, 67 and also, since the statute of wills, under the forms of executory devises. 68 As defined m the headnote, 69 estates on conditional limitation are limitations over 70 to a third person upon the termination of an estate upon condition caused by the breach of the condition. 71 They combine, therefore, the qualities of a condition and a limitation. 72 When the condition is broken, the next particular estate passes to the per- son in whose favor the limitation is made. 73 Such estates are, how- ever, subject to the rule against perpetuities. 74 MODIFIED FEES 117. Estates in fee are subject at common law to certain special modifications. When thus modified, or qualified, they are variously known as qualified, conditional, base, or deter- minable fees. 65 The phrase "conditional limitations" is used in various senses by differ- ent writers. See Gray, Restraints on Alienation, § 22, note. ee Horton v. Sledge, 29 Ala. 4T8 ; Outland v. Bow,en, 115 Ind. 150, IT N. E. 281, 7 Am. St. Rep. 420. See Estates in Expectancy, chapter XV, post. «7 See chapter XV, post. es PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property. See, post, chapter XV, as to executory devises. «» See Outland v. Bowen, 115 Ind. 150, 17 N. E. 281, 7 Am. St. Rep. 420. For other definitions, see PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property ; Horton v. Sledge, 29 Ala. 478. io See the explanation of this term in Estates on Limitation, supra. 7i4 Kent, Comm. 127; PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property. "4 Kent, Comm. 127; PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, suprg,, Burdick Cas. Real Property. 73 Fowlkes v. Wagoner (Tenn.) 46 S. W. 586; PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, supra, Burdick Cas. Real Property. 744 Kent, Comm. 267; 1 Jarman, Wills, 221; Nightingale v. Burrell, 15 Pick. (Mass.) 111. § 117) MODIFIED FEE8 291 Qualified fees are obsolete. Conditional fees were turned into estates tail by the statute de donis. A base or determinable fee is a fee simple, which may be ter- minated by the happening of a contingency specified in its creation. Estates upon condition, as also estates upon limitation, may be created in connection with estates of any quantity, as already pointed out. 75 There are, however, various modifications of es- tates that apply peculiarly to estates in fee, and these remain to be considered. Qualified Fees < Instead of limiting an estate to a man and his heirs, an estate may be limited to a man and the heirs of an ancestor whose heir he is, for the purpose, it is said, of tracing the descent, when re- quired, from such ancestor. 78 Such an estate is called a qualified fee simple. 77 They are also said, however, to be either obsolete in England, or, at least, too rare to be of importance. 78 In a num- ber of cases in this country, however, the term "qualified fee" is used synonymously with base or determinable fee. 79 Conditional Fees In connection with estates tail 80 it was explained that at the early common law, prior to the passage of the statute de donis conditionalibus, 81 estates limited to particular heirs were known as "conditional fees," or fees conditional at common law. 82 It was also stated that, by force of that statute, such fees were turned into estates tail. 83 The statute affected, however, only freehold lands, and conditional fees may still exist, particularly in England, with reference to other hereditaments, as, for example, in case of copyhold land or customary tenure, where there is no custom of entail, or to an annuity in fee. 84 " Supra. i» Litt. § 354. " Laws of England, vol. 24, p. 172; Chains, Real Prop. (3d Ed.) a XIX. re Laws of England, vol. 24, p. 173, note. t»2 Blk. Comm. 109; Wiggins Ferry Co. v. Ohio, etc., R. Co., 94 111. 83. so Supra. ' 8113 Edw. I, c. 1 (1285). 82 2 Blk. Comm. 110; 4 Kent, Comm. 11; Frazer v. Peoria Co., 74 111. 282; Owings v. Hunt, 53 S. C. 187, 31 S. E. 237 ; Kirk v. Furgeson, 6 Cold. (Tenn.) 479; Orndoff v. Turman, 2 Leigh (Va.) 200, 21 Am. Dec. 608. 83 See chapter VI, ante. si Laws of England, vol. 24, p. 172; Stafford v. Buckley, 2 Ves. Sr. 170; 2 Blk. Comm. 154; Challis, Real Prop. (3d Ed.) 62; Leake, p. 26. 292 CONDITIONAL OB QUALIFIED ESTATES (Ch.13 Base or Determinable Fees In connection with estates tail we have seen that one method of barring the entail was by fine. 86 A fine, however, barred only the issue in tail, and not the remaindermen. 86 The grantee, in such a case, took what was called a base fee, a fee determinable by failure of the issue in tail; the land passing, in such event, to the remaindermen. A determinable fee is an estate in fee simple, which, however, may be terminated by the happening of some contingency expressed in the instrument creating the estate. 87 In many cases, and by many writers, the terms "base fee,'* and "qual- ified fee" are used interchangeably with "determinable fee." 88 A determinable fee is, however, only a form of an estate upon limitation. 89 The future event must, however, be of such a nature that it may possibly never happen at all. 90 No remainder can, however, be limited upon such an estate, and since the fee is grant- ed there is merely a possibility of reverter in the grantor. 91 A determinable fee during its continuance has all the incidents of a fee simple absolute. 92 It is descendible ss and assignable. 94 Up- on the determination, however, of the estate, the land reverts to the grantor. 96 ' If, on the other hand, the happening of the contin- gency becomes impossible, the determinable fee will be converted ss Chapter VI, ante. s« Leake, Land Law, 28 ; Seymour's Case, 10 Co. Rep. 95b. 87 For definitions, see Farnsworth v. Perry, 83 Me. 447, 22 AU. 373; HALL v. TURNER, 110 N. C. 292, 14 S. E. 791, Burdick Cas. Real Property ; Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen (Mass.) 159; Union Canal Co. v. Young, 1 Whart. (Pa.) 410, 30 Am. Dec. 212; LTFORD v. CITY OF LA- CONIA, 7,5 N. H. 220, 72 AH. 1085, 22 L. R. A. (N. S.) 1062, 139 Am. St Rep. 680, Burdick Cas. Real Property. ss Wiggins Ferry Co. v. Ohio, etc., R. Co., 94 111. 83; First Universalist Soc/ of North Adams v. Boland, 155 Mass. 171, 29 N. E. 524, 15 L. R. A. 231 ; HALL v. TURNER, 110 N. C. 292, 14 S. E. 791, Burdick Cas. Real Property; LY- FORD v. CITY OF LACONIA, 75 N. H. 220, 72 Atl. 1085, 22 L. R. A. (N. S.) 1062, 139 Am. St. Rep. 680, Burdick Cas. Real Property. 8» See note 58, supra. »o l Preston on Estates, 479. »i Co. Lltt. 18a; Challis, Real Prop. (3d Ed.) 83; Laws of England, vol. 24, p. 171 ; PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property; Slegel v. Lauer, 148 Pa. 236, 23 Atl. 996, 15 L. R. A. 547. 02 Whiting v. Whiting, 4 Conn. 179; State (Morris Canal & Banking Co., Prosecutor) v. Brown, 27 N. J. Law, 13. 03 Farnsworth v. Perry, 83 Me. 447, 22 Atl. 373 ; HALL v. TURNER, 110 N. C. 292, 14 S. E. 791, Burdick Cas. Real Property. o* Farnsworth v. Perry, supra ; Grout v. Townsend, 2 Denio (N. Y.) 336. o»2 Blk. Comm. 109; Slegel v. Lauer, 148 Pa. 236, 23 AU. 996, 15 L. R. A. 547. § 117) MODIFIED FEES 293 into a fee simple absolute. 98 It is also held that the rule against perpetuities does not apply to such an estate, 07 on the ground, it is suggested, that the limitation determines, instead of originat- ing, an estate. 98 The most familiar cases, in modern times, of such estates, are the granting of land in fee for a specified use, to revert, however, to the grantor when the use ceases. 98 <>« In re Leach, [1912] 2 Ch. 422, 427; 1 Preston on Estates, 432, 442; Challis, Real Prop. (3d Ed.) 256. »'A. G. v. Cummins, [1906] 1 I. R. 406; Gray, Perp. (2d Ed.) p. 312. »8 Laws, of England, vol. 24, p. 171, note. o» As for school purposes, Board of Education of Incorporated Village of Van Wert v. Inhabitants of Village of Van Wert, 18 Ohio St. 221, 98 Am. Dec. 114, or for public streets, Gebhardt v. Reeves, 75 111. 301 ; Helm v. Web- ster, 85 111. 116. And see People v. White, 11 Barb. (N. Y.) 26; Morris Canal & Banking Co. v. Brown, 27 N. J. Law, 13 ; Henderson v. Hunter, 59 Pa. 335 ; Boiling v. Mayor, etc., 8 Leigh (Va.) 224; Thayer v. McGee, 20 Mich. 195. It is asserted by authorities of/ great weight that since the statute of quia emptores a valid determinable fee cannot be created, since a grant of a fee puts an end to any right of reverter. For a discussion of this view, see Gray, Perp. (2d Ed.) 31, 556; 1 Sanders, Uses and Trusts (5th Ed.) 208; Pollock, Land Laws, 213. Contrary, however, to this view, see Challis, Real Prop. (3d Ed.) 437; also 2 L. Q. R. 394, article by Sir Howard Elphinstone. In practice, however, it is said in Laws of Eng. vol. 24, p. 171, determinable fees are obsolete, the same object being obtained by shifting uses and executory devises, thereby allowing a limitation to third- persons. In this country, at least, 'the validity of such limitations has been accepted as settled in a num- ber of decisions, and it has been held that such limitations were not affected by the statute of quia emptores. See cases in preceding notes. See, also, First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, 29 N. E. 524, 15 L. R. A. 231 ; LYFORD v. CITY OF LACONIA, 75 N. H. 220, 72 Atl. 10S5, 22 L. R. A. (N. S.) 1062, 139 Am. St. Rep. 680, Burdick Cas. Real Property ; Slegel v. Lauer, 148 Pa. 236, 23 Atl. 996, 15 L. R. A. 547 ; Scheetz v. Fitzwater, 5 Pa. 126 ; Pennsylvania R. Co. v. Parke, 42 Pa. 31 ; Rowland v. Warren, 10 Or. 129; Stuart v. Easton, 170 U. S. 383, 18 Sup. Ct. 650, 42 L. Ed. 1078. 294 EQUITABLE ESTATES — USES AND TBUSTS (Ch. 14 CHAPTER XIV EQUITABLE ESTATES— USES AND TRUSTS 118. v Legal and Equitable Estates. 119. Uses — Definition. 120. The Statute of Uses. 121. Restrictions upon the Operation of the Statute. 122. Origin of Trusts' 123. Trust Defined. 124. Classification of Trusts. 125. Express Trusts. 126. Executed and Executory Trusts. 127. Implied Trusts. 128. Resulting Trusts. 129. Constructive Trusts. 130. Passive and Active Trusts. 131. Private and Public Trusts. 132. Creation of Express Trusts. 133. Nature of Implied Trusts. 134. Incidents of Equitable Estates. 135. Charitable or Public Trusts. LEGAL AND EQUITABLE ESTATES 118. Estates in land, both as to quantity and quality, may be either legal or equitable. Legal estates are such as were recognized by the common law. Equitable estates are interests in land which were originally recognized only in courts of equity. Estates or interests in land are further classed as legal or equi- table. Estates known to the common law and subject to the prin- ciples of feudal tenure are known as "legal estates." These we have already considered. In addition to these estates, however, there are estates or interests in land which, although not recog- nized by the common-law courts, have been from very early times recognized and protected in courts of equity. To such estates or interests- the term "equitable estates" is applied. 1 These estates may be of the same quantity and quality as legal estates. For ex- ample, an equitable estate may be created in fee simple, in fee tail, for life, or for years. 2 They descend, in case of intestacy, the same i Mcllvaine v. Smith, 42 Mo. 45, 56, 97 Am. Dec. 295. 2 Digby, History of Real Property, c. VII, § 4. § 119) USES — DEFINITION 295 as legal estates. They are subject to the rights of dower and cur- tesy, as already pointed out. 3 Equitable future estates in remainder and executory interests may also be created, and under such limita- tions, moreover, as would not be possible in common-law estates. 4 Under the doctrine of equitable estates or interests in land, a very important part of the modern law of real property has been de- veloped, namely, the law relating to trusts. USES— DEFINITION 119. A use may be defined as an equitable right to the beneficial enjoyment of an estate, the legal title to which is held by another person. Owing to the strict rules of feudal tenure, including, among other things, military service, forfeitures, escheats, and restraints on alienation, there arose in early times, in England, a desire to create a beneficial ownership in land which should not be subject to these incidents." One of the chief causes that promoted this desire was the statute against mortmain. 6 This statute prohib- ited gifts of land in mortmain; that is, to religious corporations. 7 It owed its origin to the fact that grants of land to such bodies were not favored by the great lords, since under such alienations the lord got a tenant who never died, who was never under age, who could never marry, and who could never commit felony. 8 The lords, therefore, were deprived of their escheats, wardships, and forfeitures, the incidents that were to them most profitable under the feudal system. ' In order that these various burdens and restrictions might be avoided, the practice of conveying lands to uses was introduced. The religious orders which settled in England at a very early period, especially the mendicant friars of St. Dominic and St. Francis, seem to have been the first to employ this method of transferring and holding land. 9 The owner of the land conveyed the legal estate to another, upon trust and confidence that the per- son to whom he so conveyed it would permit either the grantor, or » Ante, chapter VIII. * See Future Uses, post, chapter XV, a 1 Stephen's Comm. Laws of England (15th Ed.) p. 238. « De Viris Religiosis, 7 Edw. I, stat. 2, c. 3 (1279). "■ Mortmain means, literally, dead hand; ecclesiastics being in the early law deemed to be civilly dead. s Holds. Hist. Bng. Law, II, 294. » 1 Stephen's Comm. 238. 296 EQUITABLE ESTATES USES AND TRUSTS (Ch. 14 other person, to have the . beneficial enjoyment of the land, that is, its use, 10 and that the grantee holding the legal title would execute estates according to the direction of the person who had the use, known as the cestui que use. 11 Such a transfer was orig- inally called a feoffment to uses, and was introduced in England before the end of the thirteenth century. 12 The person to whom the land was thus conveyed "in trust and confidence" was called the feoffee to uses. In the eyes of the courts of law he was the legal owner, and the only owner. Such conveyances soon met with a very favorable construction, how- ever, from the courts of equity, the chancellor in those days being usually a clergyman, and the clergy thought the statute of mort- main contrary to natural justice. 13 Consequently equity granted, upon application, a subpcena in chancery by which such confidences were enforced. 14 In this way a dual system of ownership arose; the legal title to the land being held by one person, and all the beneficial rights arising out of it belonging to another. These equitable interests were held free from most of the burdens at- tached to common-law estates. For example, they could be con- veyed without a feoffment, or could be disposed of by will, which was not true of a legal estate. 16 10 There is some similarity between the fidei commlssum of the Roman law and the "use" of the English law. From the further fact that the clergy were more or less familiar with the Roman law, it 6as often been said that the "use" was adopted from the Roman law. See Bacon, Uses, Tracts, 314; 4 Kent, Comm. 289; Perry, Trusts (6th Ed.) § 2; Story, Eq. Jur. (13th Ed.) | 965. The weight of later research is, however, against this view. See Scruton, Roman Law Influence, 2l8 ; Ames, The Origin of Uses and Trusts, 21 Harv. L. Review, 261s Holmes, Early English Equity, 1 L. Q. R. 162. In 2 Pol. & M. Hist. Eng. Law, 226, it is said : "The English word 'use' when it is employed with a technical meaning in legal documents, is derived, not from the Latin word 'usus,' but from the Latin word 'opus,' which in old French becomes 'os' or 'oes.' True, that the two words are in course of time con- fused, so that if by a Latin document land is to be "conveyed to the use of John, the scribe of the charter will write 'ad opus Johannis' or 'ad usum Johannis' indifferently, or will perhaps adopt the fuller formula 'ad opus et ad usum' ; nevertheless the earliest history of 'the use' is the early history of the phrase 'ad opus.' " ii Go. Litt. 272b ; Gilbert, Law of Uses, 175 ; Bacon's Abridgment, X, 111. 12 1 Stephen's Comm. 239. is Bacon, Abridgment, X, 113. i* See Dig. Hist. Real Prop. (4th Ed.) 313 ; Anon., T. B. 14 Hen. VIII, 4 PI. 5 ; 2 Washb. Real Prop. (5th Ed.) 409. is 2 Pol. & M. Hist. Eng. Law, 226 ; Burgess v. Wheate, 1 W. BL 123 ; Chud- ieigh's Case, 1 Coke, 120a. § 120) THE STATUTE OP USES 297 THE STATUTE OF USES 120. The statute of uses enacted that, whenever any person should be seised of any lands to the use, confidence, or trust of another, the latter should be deemed in lawful seisin of a legal estate of a like quantity and quality as he had in the use. The statute of uses is in force in many of the United States. , So far as the religious orders themselves were concerned, con- veyances to uses were of little avail, since they were crushed in their infancy by the mortmain statute of 1391, 16 which provided that uses should be subject to the statutes of mortmain. 17 Uses, however, sprang into favor with all ranks and conditions of men, especially during the civil wars between the Houses of Lancaster and York, in order to protect their possessions, since uses were not forfeitable for treason or felony, as was true of feudal estates. 18 Uses were, however, attended with many inconveniences. 18 They made title - uncertain, and were very unpopular with the great landowners of England, because they were deprived of many of the incidents attached to feudal estates. A number of statutes were passed, attempting to prevent these results, 20 but they prov- ed ineffectual. Finally the famous statute pf uses 21 was enacted, which provided "that where any person or persons stand, or be seised, or at any time hereafter shall happen to be seised of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments to the use, confi- dence, or trust of any other person or persons or of any body poli- tick by reason of any bargain, sale, feoffment, fine, recovery, cove- nant, contract, agreement, will or otherwise, by any manner of means whatsoever it be, that in every such case, all and every such per- son and persons * * * shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin,- estate, and posses- sion of and in the same honours, castles, manors," etc., " * * * i« 15 Ric. II, c. 5. " 1 Stephen's Comm. 239. is Bacon's Abridgment, X, 113. 1 Stephen's' Comm. 239. is The inconveniences arising from lands being conveyed to uses are recited in the preamble of the statute of uses. See Lloyd v. Spillet, 2 Atk. 148. And see Bacon, Use of the 'Law (Spedding's Ed.) VII, 497. 20 50 Edw. Ill, c. 6 (1376) ; 1 Ric. II, c. 9 (1377) ; 4 Hen. IV, c. 7 (1402) ; 11 Hen. VI, c. 3 (1433) ; 11 Hen. VI, c. 5 (1433) ; 1 Ric. Ill, c. 1 (1483) ; 4 Hen. VII, c. 17 (1488) ; 19 Hen. VII, c," 15 (1503). And see 1 Stephen's Comm. 242. 2i 27 Hen. VIII, c. 10 (1535). 298 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 to all intents, constructions and purposes in the law, of and in such like estates as they had or shall have and in use, trust or con- fidence of or in the same." " The statute contained other provi- sions, all intended to produce the effect that, whenever a person was entitled to the beneficial interest in land, the legal title should be vested in him. An exception was made, however, so that wives on whom a jointure had been settled would not be entitled to dow- er in equitable estates of their husbands which should be Executed by the statute. 23 The statute of uses had a very important effect on conveyancing, because it became possible to convey the legal title to lands by methods unknown to the common law. 21 Statute of Uses in the United States The statute of uses has been re-enacted in a number of our states, either in terms or in substance, and in some others it is held to exist as part of the common law. 26 In other states, how- ever, by virtue of statutory provisions or judicial decisions, the statute is not recognized. 26 Some states, moreover, following the lead of New York, have abolished, by statute, all uses and trusts, except in certain specified cases. 27 22 Broughton v. Langley, 2 Salk. '679; Lord Altham v. Earl of Anglesey, Gilb. Cas. 16. The possession passes immediately. Anon., Cro. Eliz. 46 ; Heelis v.- Blain, 18 C. B. (N. S.) 90. But see Orme's Case, L. R 8 C. P. 281. 23 27 Hen. VIII, c. 10, § 6. 2* Lutwich v. Milton, Cro. Jac. 604; Roe v. Tranmer, 2 Wils. 75. See, also, Sammes' Case, 13 Coke, 54. See chapter XXII, post 25 2 Washb. Real Prop. (5th Ed.) p. 465; 1 Stim. Am. St Law, § 1702; 1 Perry, Trusts, § 299, note; Kay v. Scates, 37 Pa. 31, 78 Am. Dec. 399, note. Webster v. Cooper, 14 How. (U. S.) 488, 14 L. Ed. 510; Morgan v. Rogers, 79 Fed. 577, 25 C. C. A. 97 ; Tindal v. Drake, 51 Ala. 574 ; Bryan v. Bradley, 16 Conn. 474; Myers v. Myers, 167 111. 52, 47 N. E. 309; Moore v. Shultz, 13 Pa. 98, 53 Am. Dec. 446 ; Reeves v. Brayton, 36 S. C. 384, 15 S. E. 658 ; Sul- livan v. Chambers, 18 R. I. 799, 31 Atl. 167; KIRKLAND v. COX, 94 111. 400, Burdlck Cas. Real Property. 26 See McCurdy v. Otto, 140 Cal. 48, 73 Pac. 748 ; Farmers' & Merchants' Ins. Co. v. Jensen, 58 Neb. '522, 78 N. W. 1054, 44 L. R. A. 861 ; Helfenstlne's Lessee v. Garrard, 7 Ohio, 275, pt 1; Gorham v. Daniels, 23 Vt 600. And see 1 Perry, Trusts, § 299, note. 27 See the statutes of New York, Michigan, Minnesota, South Dakota and Wisconsin. For trusts not within the statute, see Cowen v. Rlnaldo, 82 Hun, 479, 31 N. Y. Supp. 554. See, also, In re Fair's Estate, 132 Cal. 523, 60 Pac. 442, 64 Pac. 1000, 84 Am. St. Rep. 70; Shananan v. Kelly, 88 Minn. 202, 92 N. W. 948; Beekman v. People, 27 Barb. (N. Y.) 260. § 121) RESTRICTIONS UPON THE OPERATION OP THE STATUTE 299 SAME— RESTRICTIONS UPON THE OPERATION OF THE STATUTE 121. By reason of the terms of the statute of uses, and also by judicial constructions, the statute of uses was held not to apply to: (a) Chattel interests. (b) Active uses. (c) Estates for the separate use of married women. (d) A use upon a use. ' (e) Uses to grantees of legal estates. "The statute of uses was made with the object of converting uses into legal estates, and so far as it operated it was effectual; but the operation of the statute was restricted by the terms in which it was framed, and further by the judicial construction with which it was applied." 2S The uses to which the statute was held not to apply, and, therefore, not executed by it, were so many and so important that the statute fell far short of what had been ex- pected of it. Thus it was held that the statute did not apply to chattel interests, 29 that is, to interests or estates for a term of years, because the language of the statute is "where any person or persons stand or be seised," and a tenant for years is not "seis- ed"; seisin being possible only in connection with the legal pos- session of a freehold. 30 Consequently a use declared upon a term of years is not within the statute, 31 although a use for a term of years declared upon a seisin of freehold would be. 32 The language of the statute likewise, according to one theory, excluded contin- gent uses, 33 because the grantee, to. uses could not have more than a fee simple to uses, and, when that was spent in serving the prior vested uses, there was no seisin to serve future contingent uses when they should arise. 3 * According to another view, how- / zs Leake, Digest of Law of Property In Land, 97. 29 Williams v. McConico, 36 Ala. 22 ; Merrill v. Brown, 12 Pick. (Mass.) 216; Galliers v. Moss, 9 Barn. & C. 267 ; J Hopkins v. Hopkins, 1 Atk. 581; Ure v. Ure, 185 111. 216, 56 N. E. 1087 ; Slevin v. Brown, 32 Mo. 176. so Ante, chapter IV, Seisin. si Anon., Dyer, 369a; KIRKLAND v. COX, 94 111. 400, Burdick Cas. Real Property. 32 Heyward's Case, 2 Coke, 35a. as See, post, Future Uses, chapter XV. 34 See Wyman v. Brown, 50 Me. 139 ; Proprietors of Town of Shapleigh v. PilGbury, 1 Greenl. (Me.) 271; Savage v. Lee, 90 N. C. 320, 47 Am. Rep. 300 EQUITABLE ESTATES USES AND TEUSTS (Ch. 14 ever, it was said that a possibility of seisin remained in the gran- tees to uses, and that this was sufficient to serve or execute con- tingent uses. 80 A very important restriction upon the operation of the statute was that a use was not executed if the first taker had any active duties to perform in regard to the estate. 36 In other words, a dis- tinction was made by the courts between active and passive uses. Where the feoffee to uses had no duties to perform, but merely held the legal title for the benefit of the cestui que use, the stat- ute was held to operate. 87 When, however, anything was to be done by the feoffee to 'uses in relation to the trust property, such as collecting the rents and profits, or selling the property, the statute did not operate," because the first taker could not perform these duties unless he held the title to the land. 88 The former was called a passive, and the latter an active, use, and very slight duties imposed on the trustee were sufficient to raise an active use, and prevent the operation of the statute. 89 Lands conveyed 'to the separate use of a married woman are also held not within the scope of the statute, because, if the legal title should vest in her, her husband would thereupon become entitled to the control of the estate, thus producing an effect con- trary to the intention with which such uses were created. 40 Un- 523; Gilbert, Uses, by Sugden, 78, 79; Leake, Digest Law of Property in Land, 90. as See Chudleigh's Case, 1 Coke, 120a; Fearne, Contingent Remainders, 300; Gilbert, Uses, by Sugden, 296 note. The statute 23 & 24 Vict. c. 38, s. 7, removed all controversy, in England, over this question, by providing that all uses, including contingent uses, should take effect out of the original seisin, and that scintilla juris shall not be deemed necessary for A the support of future, contingent, or executory uses. 36 Perry, Trusts (6th Ed.) § 6; Story, Eq. Juris. (13th Ed.) § 970; KIRK- LAND v. COX, 94 111. 400, Burdick Cas. Real Property. st Posey v. Cook, 1 Hill (S. C.) 413; Ware v. Richardson, 3 Md. 505, 56" Am. Dec. 762 ; Sullivan v. Chambers, 18 R. I. 799, 31 Atl. 167. as Fay v. Taft, 12 Cush. (Mass.) 448; Appeal of Barnett, 46 Pa. 392, 86 Am. Dec. 502; Gott v. Cook, 7 Paige (N. Y.) 521; Morton v-. Barrett, 22 Me. 257, 39 Am. Dec. 575; Posey v. Cook, 1 Hill (S. C.) 413; Schley v. Lyon, 6 Ga. 530 ; KIRKLAND v. COX, 94 111. 400, Burdick Cas. Real Property. 39 Morton v. Barrett, 22 Me. 257, 39 Am. Dec. 575. As soon as the active duties of the trustee are performed, the statute vests the legal estate in the cestui que trust Feigner v. Hooper, 80 Md. 262, 30 Atl.. 911. *<> Steacy v. Rice, 27 Pa. 75, 67 Am. Dec. 447; Pullen v. Rianhard, 1 Whart. (Pa.) 514; Bowen v. Chase, 94 U. S. 812, 24 L. Ed. 184; Richardson v. Stod- der, 100 Mass. 528; Appeal of Bush, 33 Pa. 85; Nevil v. Saunders, 1 Vern. 415 ; Harton v. Harton, 7 Term R. 653 ; Ware v. Richardson, 3 Md. 505, 56 Am. Dec. 762 ; "Walton v. Drumtra, 152 Mo. 489, 54 S. W. 233 ; Pittsfleld Sav. Bank v. Berry, 63 N. H. 109 ; Dean v. Long, 122 111. 447, 14 N. E. 34. § 121) BESTKIOTIONS UPON THE OPERATION OF THE STATUTE 301 der modem statutes, however, which give married women full rights of disposition over their property, freed from the. common- law marital rights of their husbands, the reason for this rule does not obtain, and it has been held that the statute does apply in such cases, unless the property is conveyed under an active trust. 41 The most important decision of the courts on the statute of uses, however, and the decision which had the greatest influence in nullifying the statute, was in Tyrrell's Case,* 2 decided, in 1557, by the common-law judges, twenty-two years after the statute was passed. It was held, in this case, that a use upon a use was not within the terms of the statute ; that is, where an estate was conveyed to A. for the use of B. for the use of C. Before the enact- ment of the statute, under such a conveyance, the use to C. would be void. A use could not be engendered of a use, it was said. After the statute, however, it was held that the legal title would be execut- ed in B., but that then the force of the statute would be exhausted, and the use limited to. C. remained unexecuted. 43 In other words, the courts of law treated the first use as executed by the statute, and the second as void. Such a construction evidently defeated the intention of the grantor, and consequently equity interposed, ' and gave effect to the second use. Therefore all that was neces- sary to avoid the effect of the statute was to add a second use. 44 This result caused a lord chancellor 40 to say : "A statute made upon great consideration, introduced in a solemn and pompous manner, by a strict construction, has had no effect than to add at most three words to a conveyance." The statute of' uses, moreover, did not operate upon uses limited to the grantee of a legal estate. It seems to have been common practice, in early times, for men to intrust their lands to feoffees to their own use, 46 as, for example, a grant to A. and his heirs, ! 4i Bratton v. Massey, 15 S. C. 277 ; Sutton v. Aiken, 62 Ga. 733 ; Bayer v. Cockerill, 3 Kan. 282 ; Georgia, C. & N. Ry. Co. v. Scott, 38 S. C. 34, 16 S. E. 185, 839. *2 Dyer, 155a. *s 1. Sanders, Uses, 275. See Doe v. Passingham, 6 Barn. & C. 305 ; Cooper v. Kynock, L. R. 7 Ch. 398; KIBKLAND v. COX, 94 111. 400, Burdlck Cas. Real Property. 44Durant v. Ritchie, Fed. Cas. No. 4,190 ;, Hutchins v. Heywood, 50 N. H. 491; Reid v. Gordon, 35 Md. 183; Croxall'v. Shererd, 5 Wall. (U. S.) 268, 18 L. Ed. 572 ; Jackson ex dem. White v. Cary, 16 Johns. (N. Y.) 302 ; Jackson ex dem. Ludlow v. Myers, 3 Johns. (N. T.) 388, 3 Am. Dec. 504; Guest v. Farley, 19 Mo. 147. This rule has been abolished by statute in Georgia, and the use is executed to the last beneficiary. See 1 Stim. Am. St Law, § 1701 ; Code Ga. 1882, § 2315. 45 Lord Hardwicke, in Hopkins v. Hopkins, 1 Atk. 591. 4« Bacon on Uses, 21, 22. 302 EQUITABLE ESTATES— USES AND TRUSTS (Ch. 14 to the use of A. and his heirs. This was an express declaration of a use. The statute of uses, however, in its terms is restricted to the cases of a person or persons being seised to the use "of another person"; consequently a use to the grantee seised of the legal estate is not within the statute. 47 In addition to uses expressly declared, there was another class of uses, known as resulting uses, or uses by implication. 48 For example, if a feoffment were made without declaring any use, and without any consideration, a use arose by implication in the feoffor's, or grantor's favor. 4 ' On the other hand, if the feoffee, or grantee, did give some consideration, no express use being declared, the law raised an implied use in the feoffee's favor. 60 In the first case, the legal estate being in the feoffee and the im- plied use in the feoffor, the statute of uses executed the use, and the feoffor got back instantly all that he gave. The use was said to result to himself. 61 In the second case, the legal estate and the use were both in the feoffee, in one and the same person, and such cases, as we have seen, are not within the statute, the law being the same with reference to implied uses as of uses expressly declared. 6 * ORIGIN OF TRUSTS 122. Modern trusts are, practically, uses not within, or not execut- ed by, the statute of uses. Such uses courts .of equity continued to enforce under the name of "trusts." TRUST DEFINED 123. A trust has been denned as an obligation under which a per- son who has the legal title to property is bound, in equity, to deal with the beneficial interests, or use, therein in a particular manner, in favor of another person. As shown in the preceding paragraph, there were many uses which were excluded from the operation of the statute of uses, and 47 l Sanders, Uses, 89. Leake, Digest of Law of Property in Land, 92; Meredith v. Joans, Cro. Car. 244; Peacock v. Eastland, L. R. 10 Eq. 17. 48 Bacon, Abridgment, X, 176. 49 Bacon, Abridgment, X, 176; Litt. §§ 463, 464; Y. B. l^Hen. IV, 52, pi. 30. bo l Sanders, Uses, 61, 62. * "I Sanders, Uses, 96, 352; Leake, Digest of Law of Property in Land, 83; Beckwith's Case, 2 Coke, 58a; Williams, Real Prop. (19th Ed.) 206; Arm- strong v. Wolsey, 2 Wils. 19 ; Van der Volgen v. Yates, 9 N. T. 219. 52 See Williams, Real Prop. (19th Ed.) 206. § 124) CLASSIFICATION OF TRUSTS 303 which by the courts of law were rejected as "uses." 5 ' Courts of equity, however, held that, although they were not uses at law, yet they were "trusts," which must be carried out by the persons, the "trustees," who had the legal estate." Consequently a trust was, practically, a use not executed by the statute of uses. 65 The term "trust" was not, however, a new word, since, in the crea- tion of "uses," the terms "use," "trust," and "confidence" were syn- onymously employed. 58 A trust has been variously defined, and many writers have de- fined a trust in the same terms employed for the definition of a use. 57 It would seem, however, that a "use" is the beneficial in- terest enjoyed by a beneficiary, or the cestui que trust, while a "trust" is the equitable obligation imposed upon the trustee ; in other words, the terms are not identical, but correlative. Accord- ingly, others have more accurately defined a trust as an obliga- tion under which a person who has the legal estate to property is bound, in equity, to deal with the beneficial interest, or use, therein for the benefit of another, called the "beneficiary," or the "cestui que trust." 58 CLASSIFICATION OP TRUSTS 124. Trusts, according to the manner of their creation, are divided into: (a) Express trusts. (b) Implied trusts. Trusts are usually, and properly, divided into two classes, ex- press and implied. 59 There is, however, much variance and con- fusion in the books and cases in regard to the terms used in the. sal Stephen's Comm. 247. , 54 Ware v. Richardson, 3 Md. 505, 56 Am. Dec. 762; Farmers' Loan & Trust Co. v. Carroll, 5 Barb. (N. Y.) 613; 4 Kent, Comm. 302. 65 4 Kent, Comm. 303. Fisher v. Fields, 10 Johns. (N. Y.) 495; Fuller v. Missroon, 35 S. C. 314, 14 S. B. 714. se Teller v. Hill, 18 Colo. App. 509, 72 Pac. 811 ; Nease v. Capehart, 8 W. Va. 95. 5 7 Supra. And see Farmers' Loan & Trust Co. v. Carroll, 5 Barb. (N. Y.) 613. See, also, Smith, Eq. § 224 ; Story, Bq. Juris. § 964. 58 See Underhill, Trusts, 1; Eaton, Equity, 346; Willard Eq. Juris. 186; Car- ter v. Gibson, 29 Neb. 324, 45 N. W. 634, 26 Am. St. Rep. 381. so O'Bear Jewelry Co. v. Volfer, 106. Ala. 205, 17 South. 525, 28 L. R. A. 707, 54 Am. St. Rep. 31; Rice v. Dougherty, 148 111. App. 368; Gorrell v. Alspaugh, 120 N. C. 362, 27 S. E. 85; Jones v. Wadsworth, 11 Phila. (Pa.) 227; Kaphan v. Toney (Tenn. Ch. App.) 58 S. W. 909. 304 EQUITABLE ESTATES USES AND TRUSTS (Ch. 14 classification of trusts. 60 This has arisen principally from the varying use of the word "implied." Some courts, as well as text-writers, recognize four classes of trusts, namely, "express," "implied," "resulting," and. "constructive." 61 They use the term "implied" to designate certain express trusts, in the creation of which the language of the settlor is obscure, and his intention has to be inferred by the courts from the words used. 62 Such trusts, however, can in no proper sense be termed "implied," because the only question that arises is one of construction. It is suffi- cient to call attention at this point to the confusion which has arisen from the improper use of this word. 63 In examining the cases, however, it should be borne in mind that the language of the courts in many cases cannot be relied upon in determining the kind of trust in question. However, "it makes no difference in the decision of any given case by a court of equity," as said by the Tennessee Court of Chancery Appeals, 64 "what designation shall be given to the particular trust, nor that the subdivisions thereof be kept clearly in view. If a given case comes within the definition of any of these, or even if the elements of all be .blended, the right of recovery is no less complete." SAME— EXPRESS TRUSTS ' 125. Express trusts are those which are created by the direct and positive acts of the parties. They are usually divided into : (a) Executed trusts; and (b) Executory trusts. 126. EXECUTED AND EXECUTORY TRUSTS— An executed trust is one in which the terms and limitations of the trust estate are definitely and completely declared by the in- strument creating it. An executory trust is one in which the limitations are not com- pletely declared, the donor's intention being expressed only in general terms, and something remains to be done by the trustee, by way, usually, of some future convey- ance, in order to perfect the trust. «o Currence v. Ward, 43 W. Va. 367, 369, 27 S. E. 329. «i Kayser v. Maugham, 8 Colo. 232, 6 Pac. 803; Weer v. Gand, 88 111. 490; Bateman v. Ward (Tex. Civ. App.) 93 S. W. 508; Gottstein v. Wist, 22 Wash 581, 61 Pac. 715. 62 Burks v. Burks, 7 Baxt (Tehn.) 353; Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985. See, also, Stevens v. Fitzpatrick, 218 Mo. 708, 118 S. W. 51. 63 Currence v. Ward, supra, •* Kaphan v. Toney (Tenn. Ch. App. 1899) 58 S. W. 909, 913. § 131) PBIVATE AND PUBLIC TEUST8 3t)5 SAME— IMPLIED TRUSTS 127. Ifhplied trusts are those which, without being expressed, are created by implication or in order to do justice between the parties. They are either: (a) Resulting trusts; or (b) Constructive trusts. 128. RESULTING TRUSTS— Resulting trusts are those which arise by implication or construction of law, in order to carry out the presumed intention of the parties. The principal classes of resulting trusts are: (a) Those where the grantor conveys only the legal estate. (b) Those where the object of the trust fails in whole or in part, or is not declared. (c) Those where a conveyance is taken in the name of another than the one paying the consideration. This class is the most frequent of resulting trusts. 129. CONSTRUCTIVE TRUSTS— Constructive trusts arise en- tirely by construction of equity, independently of any ac- tual or presumed intention of the parties, and often con- trary* to their intention, for the purpose of promoting justice, or frustrating fraud. SAME— PASSIVE AND ACTIVE TRUSTS 130. Trusts are also classified as passive and active trusts. A pas- sive trust is one where the trustee has no duties to per- form. He is the mere passive depositary of the legal title. An active trust is one in which the trustee has active duties to perform for the benefit of the cestui que trust. SAME— PRIVATE AND PUBLIC TRUSTS 131. A further classification of trusts is that of private and public trusts. Private trusts are those in which the benefi- cial interest is vested absolutely in some individual, or individuals, who are, or who may be, definitely ascer- tained. Public trusts, also called "charitable trusts," are those in which the public at large, or some descriptive part of the public, have the beneficial interest. Bued.Real Prop. — io 306 EQUITABLE ESTATES USES AND TRUSTS (Ch. 14 Expr-ns Trusts — In General Express trusts are sometimes called direct, 65 or declared, trusts. 86 They are created by the positive acts of the parties, by express declarations in some written instruments, as a deed, or a will, 67 or by words showing an intention, either expressly or impliedly, to create a trust. 68 Executed Trusts The term "executed," as applied to trusts, does not have any reference to the statute of uses, 69 or to the fact that no duties are to be performed by the trustee. 70 The term refers to the complete- ness of the creation of the trust. 71 In an executed trust the lim- itations and terms of the trust estate are fully declared. 72 In other words, a trust is executed when the instrument creating it con- tains all the terms of the trust, and is in its final form,, nothing remaining to be done but to carry out the terms as therein de- clared. 73 Executory Trusts Tn an executed trust the full intention of the donor is contained in the instrument creating it, 7 * but in executory trusts the do- nor's intentions are imperfectly declared, being expressed only in general terms, so that something remains to be done in order to complete the trust. 76 Thus they may direct the trustee to settle or dispose of the land for the estates and interests required by the «b See Currence v. Ward, 43 W. Va. 367, 27 S. B. 329. «« Id. ot Caldwell v. Matthewson, 57 Kan. 258, 45 Pac. 614; Lafferty v. Turley, 3 Sneed (Tenn,) 157; Kapban v. Toney (Tenn. Ch. App.) 58 S. W. 909; Jones v. Byrne (C. C.) 149 Fed. 457. As to the necessity of writing, see Cre- ation of Express Trusts, Statute of Frauds, post. esTennant v. Tennant, 43 W. Va. 547, 27 S. E. 334; Currence v. Ward, supra. 6 9 Martling v. Martling, 55 N. J. Eq. 771, 39 Atl. 203. 70 Miles v. Miles, 78 Kan. 382, 96 Pac. 481; Corn well v. Orton, 126 Mo. 355, 27 S. W. 536; Cushlng v. Blake, 30 N. J. Eq. 689; Smith's Estate, 144 Pa. 428, 22 Atl. 916, 27 Am. St. Rep. 641 ; Tillinghast v. Coggeshall, 7 R. I. 383. 7i Cornwell v. Orton, supra ; Laguerenne v. Farrar, 25 Tex. Civ. App. 404, 61 S. W. 953 ; Perry, Trusts (6th Ed.) § 359. 72 Martling v. Martling, 55 N. J. Eq. 771, 39 Atl. 203. 73 in re Fair's Estate, 132 Cal. 523, 60 Pac. 442, 64 Pac. 1000, 84 Am. St. Rep. 70 ; Cornwell v. Orton, supra ; Cushing v. Blake, supra. 7* Wright v. Pearson, 1 Eden, 125 ; Austen v. Taylor, Id. 361 ; Jervoise v. Duke of Northumberland, 1 Jac. & W. 559. 75 Gay lord v. Lafayette, 115 Ind. 423, 17 N. E. 899 ; Morris v. Linton, 74 Neb. 411, 104 N. W. 927; Austen v. Taylor, 1 Eden, 361; Neves v. Scott, 9 How.-(TJ. S.) 196, 13 L. Ed. 102; Cushing v. Blake, 30 N. J. Eq. 689; Tallman «-. Wood, 26 Wend. (N. X.) 9 ; In re SMITH'S ESTATE, 144 Pa. 428, 22 Atl. § 132) CREATION OF EXPRESS TRUSTS 807 trust. 78 They are so called because they have to be executed by some other instrument, conveying or settling the land for the es- tates and limitations intended, as distinguished from trusts direct- ing the trustee to hold the property upon trusts then executed, in the sense of being then perfectly limited and defined. 77 In other words, "they are called executory, not because the trust is to be performed in the future, but because the trust instrument itself is to be molded into form and perfected according to the # outlines or instructions made or left by the settlor or testator." 78 They are often expressed in general or abridged terms, by way of instructions for the limitations directed to be made, without set- ting out the limitations at length, as by directing that the prop- erty shall be conveyed or settled in some particular way. 7 * Even where an executory trust is expressed in technical terms of lim- itation, the terms are not necessarily construed with the same strictness as is applied to ordinary legal limitations; but, having regard to the directory character of the trust, the technical mean- ing is held subordinate to the general object required to be car- ried out. 80 In the construction of executed trusts the legal oper- ation of the words used in the instrument controls, while in execu- tory trusts the courts seek to give effect to the intentions of the creator.* 1 < CREATION OF EXPRESS TRUSTS 132. No particular or technical words are necessary to create an express trust. Any language which shows with reasonable certainty an intention to create a trust, and which desig- nates the property, the beneficiary, and the purpose of the trust, is sufficient. Under the statute of frauds, an express trust must be evidenced by writing. The parties to the creation of a trust are : 916, 27 Am. St. Rep. 641, Burdick Cas. Real Property ; Wright v. Pearson, 1 Eden, 125 ; Jervoise v. Duke of Northumberland, 1 Jac. & W. 559. t« Wiley v. Smith, 3 6a. 551, 559. T7 Carradine v. Carradine, 33 Miss. 698, 729. 7« Perry, Trusts (6th Ed.) § 359. "Neves v. Scott, 9 How. (U. S.) 196, 211, 13 L. Ed. 102; Morris v. Lin- ton, 74 Neb. 411, 416, 104 N. W. 927. s«Tallman v. Wood, 26 Wend. (N. Y.) 9; McElroy v. McElroy, 113 Mass. 509 ; Cushing v. Blake, 30 N. J. Eq. 689 ; Wight v. Leigh, 15 Ves. 564 ; Stam- ford v. Hobart, 3 Bro. P. C. 33. si Houston v. Bryan, 78 Ga. 1S1, 1 S. E. 252, 6 Am. St Rep. 252; TVlcNew v. Vert, 43 Ind. App. 83, 86 N. E. 969; Collins v. Phillips, 91 Iowa, 210, 59 N. W. 40; Bliss v. Fosdick (Sup.) 24 N. Y. Supp. 939; McCandless v. War- ner, 26 W. Va. 754. 308 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 (a) The feoffor, creator, or settlor. (b) The feoffee, or trustee, who holds the legal title. (c) The cestui que trust, or beneficiary. It has been said that in the creation of an express trust three things are necessary, namely, sufficient words, a definite subject, and a certain ascertained object. 82 While, however, there must . be clear evidence of the declaration of a trust, 83 no formal or tech- , nical words are necessary, since if the intention to create a trust, the subject-matter, the purpose, and the beneficiary are set forth with reasonable certainty, it will be sufficient. 84 It is not neces- sary to use the words "use, confidence, or trust," or in fact any technical expression. 85 It is sufficient if from the whole instru- ment an intention appears to create a trust. 86 In fact, the intention of the settlor may be shown by what are called "precatory words" ; that is, by such expressions as "desire," "request," "entreat," "trust and confide." 87 No definite rule can be laid down as to when the use of such words will be sufficient to create a trust, but 82 Floyd v. Smith, 59 Fla. 485, 51 South. 537, 37 D. R. A. (N. S.) 651, 138 Am. St. Rep. 133, 21 Ann. Cas. 318 ; Harris Banking Co. v. Miller, 190 Mo. 640, 89 S. W. 629, 1LE.A. (N. S.) 790; Gough v. Satterlee, 32 App. Div. 33, 52 N. Y. Supp. 492 ; In re SMITH'S ESTATE, 144 Pa. 428, 22 Atl. 916, 27 Am. St Rep. 641, Burdick Cas. Real Property. 88 O'Neil v. Greenwood, 106 Mich. 572, 64 N. W. 511 ; McKee v. Allen, 204 Mo. 655, 103 'S. W. 76; Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, 6L.E. A. 403, 15 Am. St. Rep. 531. s*Plaut v. Plaut, 80 Conn. 673, 70 Atl. 52; Anderson v. Crist, 113 Ind. 65, 15 N. E. 9 ; Carpenter v. Cushman, 105 Mass. 417 ; Chadwick v. Chadwick, 59 Mich. 87, 26 N. W. 288; Putnam v. Safe Deposit Co., 191 N. Y. 166, 83 N. E. 789. ss Johnson v. Cook, 122 Ga. 524, 50 S. E. 367; Wright v. Douglass, 7 N. Y. 564; Raybold v. Raj-bold, 20 Pa. 308; Ready v. Kearsley, 14 Mich. 215; White v. Fitzgerald, 19 Wis. 480 ; Zuver v. Lyons, 40 Iowa, 510. so Toms v. Williams, 41 Mich. 552, 2 N. W. 814; Taft v. Taft, 130 Mass. 461 ; McElroy v. McElroy, 113 Mass. 509 ; Kintner v. Jones, 122 Ind. 148, 23 N. E. 701 ; In re SMITH'S ESTATE, 144 Pa. 428, 22 Atl. 916, 27 Am. St. Rep. 641, Burdick Cas. Real Property. 87 Warner .v. Bates, 98 Mass. 274 ; Knox v. Knox, 59 Wis. 172, 18 N. W. 155, 48 Am. Rep. 487; Webster v. Morris, 66 Wis. 366, 28 N. W. 353, 57 Am. Rep. 278; McRee's Adm'rs v. Means, 34 Ala. 349; Erickson v. Willard, 1 N. H. 217 ; Collins v. Carlisle's Heirs, 7 B. Mon. (Ky.) 13 ; Bull v. Bull, 8 Conn. 47, 20 Am. Dec. 86; Hunter v. Stembridge, 12 Ga. 192. But see, for ex- pressions held not to raise a trust, Hopkins v. Glunt, 111 Pa. 287, 2 Atl. 183 ; Burt v. Herron's Ex'rs, 66 Pa. 400; Bowlby v. Thunder, 105 Pa. 173; Colton v. Colton (C. C.) 10 Sawy. 325, 21 Fed. 594 ; Sears v. Cunningham, 122 Mass 538. § 132) CREATION OF EXPRESS TEUSTS 309 it will depend in each case on the construction of the whole instru- ment, and the intention of the settlor appearing therefrom. 88 Consideration A completely executed trust requires no consideration to sup- port it. 88 Equity, however, will not enforce an executory agree- ment to create a trust in the absence of a consideration. 00 Some cases, however, hold that such an agreement will be enforced in favor of a wife or child, though not for other relatives. 91 Even where a consideration is necessary in order to support an execu- tory trust, it is not necessary that it should be recited in the in- strument creating the trust, 92 yet the fact that a consideration is stated may be of weight in determining whether or not a trust was intended to be created. 93 Moreover, the presence or absence . of a consideration is an important element in the case of resulting trusts, because, if the legal title is conveyed to one who pays no consideration, a presumption may arise that such grantee was not intended to take the beneficial interest. 94 It should also be noted that conveyances in trust made without consideration as 1 Perry, Trusts (4th Ed.) § 114. See cases cited in last riote. Of this same nature are "trusts for maintenance." When property is given to a parent, or to one standing in that relation, and expressions as to support and education of the grantee's children are used, the property will be impressed with> a trust, if it appears that such wa"s the grantor's or testator's intention. Whiting v. Whiting, 4 Gray (Mass.) 240; Andrews v. President, etc., 3 Allen (Mass.) 313 ; Rittgers v. Rittgers, 56 Iowa, 218, 9 N. W. 188 ; Babbitt v. Bab- bitt, 26 N. J. Eq. 44. But there will be no trust if the expressions as to 'main- tenance were used merely to show the motive. Rhett v. Mason's Ex'x, 18 Grat. (Va.) 541. s»Hall v. Hall, 76 Kan. 806, 93 Pac. 177; Bennett v. Littlefield, 177 Mass. 294, 58 N. E. 1011; Bunn v. Winthrop, 1 Johns. Ch. (N. T.) 329; Ownes v. Ownes, 23 N. J. Eq. 60; Massey v. Huntington, 118 111. 80, 7 N. E. 269; Brunson v. Henry, 140 Ind. 455, 39 N. E. 256; Anon., Brooke, 89. But see Beeman v. Beeman, 88 Hun, 14, 34 N. Y. Supp. 484; Hamilton v. Downer, 152 111. 651, 38 N. E. 733. The instrument of creation must be executed and de- livered. Govin v. De Miranda, 9 Misc. Bep. 684, 30 N. Y. Supp. 550. oo Moore v. Ransdel, 156 Ind. 658, 59 N. E. 936, 60 N. E. 1068; Fisher v. Transportation Co., 136 Mich. 218, 98 N. W. 1012, 112 Am. St. Rep. 358; Brannock v. Magoon, 141 Mb. App. 316, 125 S. W. 535 ; Beeman v. Beeman, 88 Hun, 14, 34 N. Y. Supp. 484 ; Bennett v. Fulmer, 49 Pa. 155. oi Hayes-v. Kershow, 1 Sandf. Ch. (N. Y.) 258; Bunn v. Winthrop, 1 Johns.. Ch. (N. Y.) 329; Buford's Heirs v. McKee, 1 Dana (Ky.) 107. See Landon v. Hutton, 50 N. J. Eq. 500, 25 Atl. 953. »2 Arms v. Ashley, 4 Pick. (Mass.) 71; Jackson v. Fish, 10 Johns. (N. Y.) 456; Sprague v. Woods, 4 Watts & S. (Pa.) 192. »s Appeal of Selden, 31 Conn. 548; Hay ward v. Cain, 110 Mass. 273; Kel- ly v. Babcock, 49 N. Y. 318. »* Infra. 310 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 may be fraudulent and void as against creditors and subsequent purchasers. 95 Subject-Matter Any property, real or personal, legal or equitable, may be the subject of a trust. 88 The requirements as to the description of the property conveyed are matters, however, of conveyancing, and they are discussed in a subsequent chapter. The subject-matter of a trust must, however, be designated with certainty in the creation of the trust." Extent of Trustee's Estate When the subject-matter of the trust is real property, and the transfer of the property to the trustee is made by deed, the general rules governing the execution of deeds apply, 98 and the deed must contain operative words of conveyance. 99 In limiting the legal estate, however, to a trustee, the strict requirements as to the use of technical words in conveying legal estates are relaxed, and the trustee takes an estate sufficient to carry out the purposes of the trust. 1 For example, if the cestui que trust is given the beneficial interest in fee, and only a life estate is given to the trustee, the latter's estate will be enlarged to a fee, if it is necessary to carry out the settlor's intention. 2 In other words, the trustee, in any case, will take the fee, without words of limitation or inheritance, when necessary for the trust. 3 Thus, an absolute power to sell *' See post, Restrictions upon Alienation, chapter XXV. »«Leland v. Collver, 34 Mich. 418; 1 Perry, Trusts (4th Ed.) §§ 67-69; 2 Washb. Real Prop. (5th Ed.) p. 416. But a trust cannot be created in a mort- gage, where it is only a lien, though there may be a trust in the mortgage debt Merrill v. Brown, 12 Pick. (Mass.) 216. »7 Roth v. Michalis, 125 111. 325, 17 N. E. 809 ; McCandless v. McCandless' Adm'rs, 33 Ky. Law Rep. 790, 111 S. W. 302; Seabrook v. Grimes, 107 Md. 410, 68 Atl. 883, 16 L. R. A. (N. S.) 483, 126 Am. St Rep. 400; Renz v. Stall, 94 Mich. 377, 54 N. W. 276, 34 Am. St Rep. 358 ; In re Eshbach's Es- tate, 197 Pa. 153, 46 Atl. 905. »s See Deeds, post, chapter XXVII. o» Viser v. Bertrand, 16 Ark. 296; Kelly v. Parker, 181 111. 49, 54 N. E. 615; Becker v. Stroeher, 167 Mo. 306, 66 S. W. 1083. i Drake v. Steele, 242 111. 301, 89 N. E. 1018 ; Brown v. Reeder, 108 Md. 653, 71 Atl. 417 ; Neilson v. Lagow, 12 How. (U. S.) 98, 13 L. Ed. 909 ; Fish- er v. Fields, 10 Johns. (N. Y.) 495; Gould v. Lamb, 11 Mete. (Mass.) 84, 45 Am. Dec. 187; Newhall v. Wheeler, 7 Mass. 189; Angell v. Rosenbury, 12 Mich. 241. But see Cooper v. Franklin, Cro. Jae. 400. 2 Newhall, v. Wheeler, 7 Mass. 189. s Lord v. Comstock, 240 111. 492, 88 N. E. 1012 ; Packard v. Railroad Co., 168 Mass. 92, 46 N. E. 433; Angell v. Rosenbury, 12 Mich. 241; Wright v. Delafield, 23 Barb. (N. Y.) 498; Webster v. Cooper, 14 How. (U. S.) 488, 14 L. Ed. 510 ; KIRKLAND v. COX, 94 111. 400, Burdick Cas. Real Property. § 132) / CREATION OJ! EXPRESS TRUSTS 311 real property , gives the trustee the fee, although no words of inheritance are used in' the conveyance to him.* A trustee, on the other hand, takes no greater estate than the purposes of the trust require, 5 even though granted in fee to the trustee, 6 and the estate conveyed to him will be cut down to what is sufficient for the purposes of the trust. In most cases, the object or purpose of the trust being executed, the trustee's estate, if greater than was required, terminates, and the legal title be- comes vested in the beneficiary. 7 In case, however, the trust should fail for any reason, a resulting trust in favor of the creator, or his heirs, would arise. 8 Designating the Beneficiary In the creation of a trust, the beneficiary must be clearly and definitely designated. 9 A deed of trust, for example, for the bene- fit of certain persons, or either of them, is void for uncertainty. 10 Beneficiaries may, however, be designated as a class, if clearly de- fined, instead of pointing them out by name. 11 Purpose or Object of Trust ' The purpose or object of a trust should be stated with reason- able certainty. The purpose need not be stated, however, in the *McFall v. Kirkpatrlck, 236 111. 281, 86 N. B. 139; Merritt v. Disney, 48 Md. 344; Cotnwell v. Wulff, 148 Mo. 542, 50 S. W. 439, 45 L. R. A. 53; Ful- bright v. Yoder, 113 N. C. 456, 18 S. EL 713; KIRKLAND v. COX, 94 111. 400, Burdick Cas. Real Property. ( b Allen v. Hughes, 106 Ga. 775, 32 S. E. 927 ; Olcott v. Tope, 115 111. App. 121 ; Haydel v. Hurck, 5 Mo. App. 267 ; Brown v. Richter, 25 App. Div. 239, 49 N. Y. Supp. 368; Smith v. Proctor, 139 N. C.,314, 51 S. E. 889, 2 L. R. A. (N. S.) 172. « Brillhart v. Mish, 99 Md. 447, 58 Atl. 28 ; Numsen v. Lyon, 87 Md. 31, 39 Atl. 533 ; Young v. Bradley, 101 U. S. 782, 25 L. Ed. 1044. . t Brown v. Reeder, 108 Md. 653, 71 Atl. 417 ; Temple v. Ferguson, 110 Tenn. 84, 72 S. W. 455, 100 Am. St. Rep. 791; Norton v. Norton, 2 Sandf. (N. Y.) 296; Appeal of Bush, 33 Pa. 85; Renziehausen v. Keyser, 48 Pa. 351. But see Lewis v. Rees, 3 Kay & J. 132. And see KIRKLAND v. COX, 94 111. 400, Burdick Cas. Real Property, where it is held that where the legal title is vested in the trustee, nothing short of a reconveyance can place the legal title back in the grantor or his heirs, subject to the qualification, that, under certain circumstances, such reconveyance will be presumed. » See Resulting Trusts, infra. » Christian v. Highlands, 32 Ind. App. 104, 69 N. E. 266 ; Filkins v. Se- vern, 127 Iowa, 738, 104 N. W. 346 ; Chamberlain v. Stearns, 111 Mass. 267 ; Guental v. Guental, 113 App. Div. 310, 98 N. Y. Supp. 1002 ; Appeal of Dyer, 107 Pa. 446. 10 Wright v. Pond, 10 Conn. 255. ii Turner v. Improvement Co., 77 Mich. 603, 43 N. W. 1062 ; Cathcart v. Nelson's Adm'r, 70 Vt 317, 40 Atl. 826 ; Heermans v. Schmaltz (C. C.) 7 Fed. 566. And see Cestui que Trust, or Beneficiary, infra. 312 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 exact words of the statute in a state where trusts are allowed only for certain specified purposes, providing trie language used shows clearly that the purpose is one within the statutory permission. 12 Unless prohibited by statute, a trust may be created for almost any purpose the creator desires, 18 providing it would not be con- trary to public policy. 14 In some states, however, trusts can be created only for such purposes as are specified by the statutes. 16 Thus, in New York, 16 and also in several other states adopting similar statutes, 17 trusts in real property are prohibited except for the following purposes: (1) To sell real property for the bene- fit of creditors; 18 (2) to sell, mortgage, or lease real property for the benefit of annuitants or other legatees, 19 or for the purpose of satisfying any charge thereon ; 20 (3) to receive the rents and profits of real property, and apply them to the use of any person, during the life of that person, or for any shorter term, subject to the provision of law relating thereto ; 21 (4) to receive the rents and profits of real property, and to accumulate the same for the purposes and within the limits prescribed by law; that is, for the benefit of minors then in being, and during their minor- ity. 22 In such states, a trust for a purpose not enumerated by statute is invalid, 23 although it is also provided by some of the statutes that where a trust is created for a purpose otherwise ' lawful, yet 12 Morse v. Morse, 85 N. Y. 53; Donovan v. Van De Mark, 78 N. T. 244. is Ross v. Vertner, Freem. Ch. (Miss.) 587; Link v. Link, 90 N. C. 235; In re Spring's Estate, 216 Pa. 529, 66 Atl. 110 ; Wells v. McCall, 64 Pa. 207. i* Lemmond v. Peoples, 41 N. C. 137. is McCurdy v. Otto, 140 Cal. 48, 73 Pac. 748; Shanahan v. Kelly, 88 Minn. 202, 92 N. W. 948; Beekman v. People, 27 Barb. (N. Y.) 260; Murphey v. Cook, 11 S. D. 47, 75 N. W. 387. ie See Real Property Law (Laws 1896, c. 547; Consol. Laws, c. 50) art. 4, § 99. i' See the statutes of Michigan, Wisconsin, Minnesota, California, and the Dakotas. is Cooper v. Whitney, 3 Hill (N. Y.) 95. io Savage v. Burnham, 17 N. Y. 561; Russell v. Hilton, 80 App. Div. 178, 80 N. Y. Supp. 563. 2" Toms v. .Williams, 41 Mich. 552, 2 N. W. 814; Becker v. Becker, 13 App. Div. 342, 43 N. Y. Supp. 17 ; Rogers v. Tilley, 20 Barb. (N. Y.) 639. 21 In re Hey wood's Estate, 148 Cal. 184, 82 Pac. 755; Salisbury v. Slade, L60 N. Y. 278, 54 N. E.,741; Staples v. Hawes, 39 App. Div. 548, 57 N. Y. Supp. 452 ; Simmons v. Morgan, 25 R. I. 212, 55 Atl. 522. 22 Boynton v. Hoyt, 1 Denio (N. Y.) 53. «8 Wittfield v. Forster, 124 Cal. 418, 57 Pac. 219; Weeks v. Corn well, 104 N. Y. 325, 10 N. E. 431 ; Hagerty v. Hagerty, 9 Hun (N. Y.) 175. § 132) CREATION OF EXPRESS TRUSTS 313 not within the statutory authorization, such a trust, while not valid, may nevertheless be upheld as a power in trust. 24 Statute of Frauds In the absence of a statute to the contrary, it is not necessary that an express trust should be in writing, 25 since, at common law, an express trust may be created by parol. 26 The statute of frauds, 27 however, provides, that all creations of trusts in lands shall be manifested and proved by some writing signed by the creator of the trust, or by his last will in writing, or else they shall be utterly void. In states, therefore, where this statute pre- vails, either as part of the common law or by re-enactment,' trusts must be evidenced in writing, not necessarily created in writing, but their existence, if denied, proved by some writing. 28 For this purpose any writing signed by the person against whom the trust is so to be enforced will be sufficient, if it clearly shows the existence of the trust. 20 If, however, the statute of frauds is not set up, and the trust is admitted, it can be enforced, although created by parol, since no evidence of its existence is necessary in such case. 30 In some states, however, it is provided by statute that trusts in or concerning real property must be cre- ated and declared in writing. 81 When a trust is created by will, 2*Consol. Laws N. T. c. 50, art. 4, § 99. The California statute to this effect was repealed in 1874, and consequently, If an instrument is invalid as a trust, it is also invalid as a power in this jurisdiction. In re Fair's Estate, 132 Cal. 523, 60 Pac. 442, 64 Pac. 1000. See Powers, post, chapter XXVI. 25 Pierson v. Pierson, 5 Del. Ch. 11; Smith v. Smith (Ky.) 121 S. W. 1002; ISaylord v. Gaylord, 150 N. C. 222, 63 S. E. 1028; Harvey v. Gardner, 41 Ohio St. 642; Henderson v. Rushing, 47 Tex. Civ. App. 485, < 105 S. W. 840. 2« Fleming v. Donahue, 5 Ohio, 255. 2' St. 29 Car. II, c. 3, § 7. , • as Throckmorton v. O'Reilly (N. J. Ch.) 55 Atl. 56; 29 Car. II. c. 3, § 7; Moore v. Horsley, 156 111. 36, 40 N. E. 323 ; Callard v. Callard, Moore, 687 ; Movan v. Hays, 1 Johns. Ch. (N. T.) 339 ; Sherley v. Sherley, 97 Ky. 512, 31 S. W. 275 ; Acker v. Priest, 92 Iowa, G10. 61 N. W. 235 ; Ranney v. Byers, 219 Pa. 332, 68 Atl. 971, 123 Am. St. Rep. 660. » 2 9 Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 753; Nolan v. Garrison, 151 Mich. 138, 115 N. W. 58;. Steere v. Steere, 5 Johns. Ch. (N. Y.) 1, 9 Am. Dec. 256 ; Barrell v. Joy, 16 Mass. 221 ; McClellan v. McClellan, 65 Me. 500; Appeal of Dyer, 107 Pa. 446. so Whiting v. Gould, 2 Wis. 552 ; Thornton v. Vaughan, 2 Scam. (111.) 219 ; Trustees of Schools v. Wright, 12 111. 432; Woods v. Dille, 11 Ohio, 455. 3i Eaton v. Barnes, 121 Ga. 548, 49 S. E. 593; Thacher v. Churchill, 118 Mass. 108 ; Hutchison v. Hutchison, 84 Hun, 482, 32 N. Y. Supp. 390 ; 1 Stim. Am. St. Daw, § 1710 ; Whiting v. Gould, 2 Wis. 552 ; Bibb v. Hunter, 79 Ala. 351; Dunn v. Zwilling, 94 Iowa, 233, 62 N. W. 746. But see Pinnock v. Clough, 16 Vt. 508, 42 Am. Dec. 521 ;' Jenkins v. Eldredge, 3 Story, 181, Fed. Cas. No. 7,266 ; McClellan v. McClellan, 65 Me. 500. 314 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 the same formalities in the execution of the will are required as for a valid devise of lands. 32 The statute of frauds applies to pub- lic 'or charitable trusts, as well as to private, 33 although it does not apply to resulting, 3 * or constructive, 35 trusts. Parties The person who creates or establishes a trust is variously call- ed the "feoffor," "settlor," 36 "donor," "grantor," "creator," "trust- or," 3T or "founder." 3S Any person owning land, who has ca- pacity to make a contract or a will, can create a trust. 39 A state 40 or a corporation, if the latter is permitted by its charter, may be a feoffor. 41 The capacity of married women, infants, and aliens to create trusts is the same as their capacity to deal with real prop- erty." The person who holds the legal estate for the use or benefit of another is known as the "trustee." 43 , There must be a trustee in every trust; but a court of equity will not permit a trust to fail, if otherwise sufficiently declared, for want of a trustee, since the court will appoint a trustee. 44 Any one may be a trustee who 82 1 Perry, Trusts (4th Ed.) §§ 90-94; Thayer v. Wellington, 9 Allen (Mass.) 283, 85 Am. Dec. 753. as Thayer v. Wellington, 9 Allen (Mass.) 283, 85 Am. Dec. 753. 3* De Mallagh v. De Mallagh, 77 Cal. 126, 19 Pac. 256; Brennaman v. Schell, 212 111. 356, 72 N. E. 412; Culp v. Price, 107 Iowa, 133, 77 N. W. 848; Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52; McMurray v. McMurray, 180 Mo. 526, 79 S. W. 701; Helms v. Goodwill, 64 N. Y. 642; Stafford v. Wheeler, 93 Pa. 462; Hendrichs v. Morgan, 167 Fed. 106, 92 C. C. A. 558; McDON- OUGH v. O'NIEL, 113 Mass. 92, Burdick Cas. Real Property. as Hilt v. Simpson, 230 111. 170, 82 N. E. 588; Catalani v. Catalani, 124 Ind. 54, 24 N. E. 375, 19 Am. St. Rep. 73 ; Pratt v. Clark, 57 Mo. 189 ; Bran- nin v. Brannin, 18 N. J. Eq. 212; Wood v. Rahe,x96 N. T. 414, 48 Am. Rep. 640 ; Schrager v. Cool, 221 Pa. 622, 70 Atl. 889. 3 6 Lewin, Trusts, 21. 87Dillenbeck v. Pinnell, 121 Iowa, 201, 203, 96 N. W. 860; Black, Law. Diet. 38 Anderson, Law Diet. s»Reiff v. Horst, 52 Md. 255; Skeen v. Marriott, 22 Utah, 73, 61 Pac. 296 ; 1 Perry, Trusts (4th Ed.) § 28. , *o Commissioners of Sinking Fund v. Walker, 6 How. (Miss.) 143, 38 Am. Dec. 433; Buchanan v. Hamilton, 5 Ves. 722. *i Dana v. Bank, 5 Watts & S. (Pa.) 223; Barry v. Exchange Co., 1 Sandf. Ch. (N. T.) 280; Hopkins v. Turnpike Co., 4 Humph. (Tenn.) 403; State v. Bank, 6 Gill & J. (Md.) 205, 26 Am. Dec. 561. 42 See post, chapter XXV. 43 See Glengary Consol. Min. Co. v. Boehmer, 28 Colo. 1, 3, 62 Pac. 839. 44 Appeal of Treat, 30 Conn. 113 ; Bennett v. Bennett, 217 111. 434, 75 N. E. 339, 4 L. R. A. (N. S.) 470 ; In re Freeman's Estate, 146 Iowa, 38, 124 N. W. 804 ; Neville v. Association, 104 Mich. 149, 62 N. W. 169 ; Burrill v. Sheil, 2 Barb. (N. Y.) 457 ; Ash v. Ash, 1 Phila. (Pa.) 176. §132) CEEATION OF BXPEESS TRUSTS 315 is capable of taking the legal title to realty. 48 The United States and the states may be trustees, although they cannot be sued, with- out their consent, for the enforcement of the trust. 46 Corporations, unless prohibited by statute, may, within their corporate, objects, hold lands as trustees, 47 and many trust companies now do so. 48 A married woman may be a trustee, and cannot plead her incapac- ity to deal with the title to land when a trust is sought to be enforced against her. 49 The appointment of a married woman as trustee,' however, is often attended with inconveniences, owing to her limited power, in some states,/of dealing with property. For similar reasons, an infant cannot act effectively as a trustee, al- though a trust may be enforced against him, and his infancy will not furnish a means of defrauding his beneficiary. 50 Even an insane person may take title as a trustee. 81 An alien may act as a trustee in jurisdictions where he is permitted to hold realty, and where he is not he may act until "office found," upon which the legal title would escheat to the state, but would still be held for the benefit of the cestui que trust. 62 A bankrupt or insolvent person may be a trustee, 63 and, if he became a trustee before his *s STEARNS v. FRALEIGH, 39 Fla. 603, 23 South. 18, 39 L. R. A. 705, Burdlck Cas. Real Property; Commissioners of Sinking Fund v. Walker, 6 How. (Miss.) 143, 38 Am. Dec. 433 ; 1 Perry, Trusts (4th Ed.) § 39. *« Briggs v. Light Boat Lower Cedar Point, 11 Allen (Mass.) 157 ; Appeal of Tale College, 67 Conn. 237, 34 Atl. 1036 ; 1 Perry, Trusts (4th Ed.) § 41 ; McDonogh v. Murdoch, 15 How. (U. S.) 367, 14 L. Ed. 732; Shoemaker v. Commissioners, 36 Ind. 175. By statute, a city may be a trustee to adminis- ter a public trust CITY OF OWATONNA v. .ROSEBROCK, 88 Minn. 318, 92 N. W. 1122, Burdick Cas. Real Property. " Commissioners of Sinking Fund v. Walker, supra; Columbia Bridge Co. v. Kline, 6 Pa. Law J. 317; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401. is Trustees of Phillips Academy v. King, 12 Mass. 546. So municipal cor- porations may be trustees. Vidal v. Girard, 2 How. (U. S.) 127, 187, 11 L. Ed. 205. It was formerly held that a corporation could not be a trustee, be- cause the subpoena of the chancellor operates only upon the conscience of the trustee, and corporations were said to have no souls. 1 Perry, Trusts (4th Ed.) § 42. A mere voluntary association, however, has no power to act as a trustee. Guild v. Allen, 28 R. I. 430, 67 Atl. 855. And see Childs v. Waite, 102 Me. 451, 67 Atl. 311. ~ * » Livingston v. Livingston, 2 Johns. Ch. (N. Y.) 537; Clarke v. Saxton, 1 Hill, Eq. (S. C.) 69; Berry v. Norris, 1 Duv. (Ky.) 302. With reference to married women acting as trustees, see Husband and Wife, 21 Cyc. 1305, ar- ticle by author of this work. no Jevon v. Bush, 1 Vern. 342. oi Eyrick v. Hetrick, 13 Pa. 488; Caswell v. Sheen, 69 L. T. Rep. N. S. 854. 02 1 Perry, Trusts (4th Ed.) § 55. os Rankin v. Bancroft, 114 111. 441, 3 N. E. 97; Shryock v. Waggoner, 28 Pa. 430 ; Conn v. Ward, 32 W. Va. 34, 9 S. E. 41. 316 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 insolvency, an assignment by him of his property for the benefit of creditors would not carry with it any right to the enjoyment of the property, unless the assignor had also some beneficial in- terest in it. 54 A creator of a trust may make himself a trustee. 65 Public officers are not infrequently made trustees, and the cases hold that, when designated as trustees, they hold as individuals, 58 and that the trust does not devolve upon their successors in of- fice." The person for whose benefit the trust is created is called the "cestui que trust," or the "beneficiary." BS It is necessary in the creation of a trust that there should be a living beneficiary, 09 or one who comes into being during the life of the trustee. 60 In general, any person who has capacity to take a legal title to lands may be a beneficiary. 61 The statutes, however, in some states, restrict trusts to certain classes of beneficiaries, as, for example, to persons who are not sui juris. 62 Unless the statute forbids trusts for the sole benefit of the creator of them,* 8 a trust may be created by one for his own benefit. 64 \ " Carpenter v. Marnell, 3 Bos. & P. 40; Kip v. Bank, 10 Johns. (N. Y.) 63; Ontario Bank v. Mumfo'rd, 2 Barb. Ch. (N. T.) 596. 5 Yokem v. Hicks, 93 111. App. 667; Compo v. Iron Co., 49 Mich. 39, 12 N. W. 901 ; Emery v. Chase, 5 Greenl. (Me.) 232 ; Brewer v. Hardy, 22 Pick. (Mass.) 376, 33 Am. Dec. 747; Hayes v. Kershow, 1 Sandf. Ch. (N. Y.) 258; IN RE SMITH'S ESTATE,' 144 Pa. 428, 22 Atl. 916, 27 Am. St Rep. 641, Burdick Cas. Real Property; Adams v. Adams, 21 Wall. (U. S.) 185, 22 L. Ed. 504. . 5 6 Dunbar v. Soule, 129 Mass. 284; Delaplaine v. Lewis, 19 Wis. 476; Inglis v. Sailors' Snug Harbor, 3 Pet (U. S.) 99, 7 L. Ed. 617. 67 Id. oaGindrat v. Gas-Light Co., 82 Ala. 596,- 2 South. 327, 60 Am. Rep. 769; Dillenbeck v. Pinnell, 121 Iowa, 201, 96 N. - W. 860 ; Larkin v. Wikoff, 75 N. J. Eq. 462, 72 Atl. 98, 79 Atl. 365. o» Festorazzi v. Church, 104 Ala. 327, 18 South. 394, 25 L. R. A. 360, 53 Am. St. Rep. 48 ;" Thompson v. Womack, 9 La. Ann. 555 ; Haxtun v. Corse, 2 Barb. Ch. (N. Y.) 506. «o,Asbhurst v. Given, 5 Watts & S. (Pa.) 323; Salem Capital Flour Mills Co. v. Canal Co. (C. C.) 33 Fed. 146. «i 1 Perry, Trusts (4th Ed.) § 60; Neilson v. Lagow, 12 How. (U. S.) 107, 13 L. Ed. 909. 02 Lester v. Stephens, 113 Ga. 495, 39 S. E. 109; First Nat Bank v. Trust Co. (Tenn. Ch. App.) 62 S. W. 392. us Carpenter v. Cook, 132 Cal. 621, 64 Pac. 997, 84 Am. St Rep. 118; Sar- gent v. Burdett, 96 Ga. Ill, 22 S. E. 667; Hotchkiss v. Elting, 36 Barb. (N. Y.) 38. 64 LAWRENCE v. LAWRENCE, 181 111. 248, 54 N. E. 918, Burdick Cas. Real Property ; Kelley v. Snow, 185 Mass. 288, 70 N. E. 89; Appeal of Ash- hurst 77 Pa. 464 ; Heermans v. Schmaltz (C. C.) 7 Fed. 566. 8 133) NATUEB OF IMPLIED TEUST8 317 NATURE OF IMPLIED TRUSTS 133. As previously stated, implied trusts are created by operation of law. They are deducible from the transactions of the parties, either as presumed matters of intent, although unexpressed, or, regardless of any intent, construed as trusts as a matter of justice and equity, in order to pre- vent, or to counteract, fraud. Implied trusts arise by operation of law." As stated in the headnote, they are deducible from the transactions of the parties, 66 either as presumed matters of intent, although not expressed, or, regardless of the intention of the parties, construed as trusts as matters of justice, in . order to prevent, or to protect against, fraud. 67 Trusts created by operation of law are not executed by the statute of uses, nor are they within the statute of frauds, 68 because from their nature they must be established by evidence outside of the instrument by which the legal title is transferred. 69 In implied trusts there is no element of permanency, as in the case of express trusts, since there is a certain hostility between the person who is entitled to the beneficial use of the property and the person who has the legal title. 70 Strictly speaking, they are not trusts in the ordinary sense, 71 since the beneficiary is entitled at once to the legal estate. 72 Implied trusts are divided into two classes, resulting and con- structive. 65 Cone v. Dunham, 59 Conn. 145, 20 Atl. 311, 8 D. R. A. 647; Gorrell v. Alspaugh, 120 N. C. 362, 27 S. E. 85; Cook t. Fountain, 3 Swanst, 585, 36 Eng. Reprint, 984. «« Caldwell v. Matthewson, 57 Kan. 258, 262, 45 Pac. 614. 8' Cone v. Dunham, supra; Boskowitz v. Davis, 12 Nev. 446; Gorrell v. Alspaugh, supra. es Supra. The original Statute of Frauds, § 8, expressly exempts trusts "which may arise or result by implication or construction of law." This clause has been re-enacted in many of our states. e^Kayser v. Maugham, 8 Colo. 232, 6 Pac. 803; Bohm v. Bohm, 9 Colo. 100, 10 Pac. 790; Kennedy's Heirs v. Kennedy's Heirs, 2 Ala. 571; Connolly v. Keating, 102 Mich. 1, 60 N. W. 289; Cooksey v. Bryan, 2 App. D. C. 557; Rozell v. Vansyckle, 11 Wash. 79, 39 Pac. 270. to Butts v. Cooper, 152 Ala. 375, 384, 44 South. 616. 7i 1 Perry, Trusts (4th Ed.) § 166 ; 2 Pom. Eq. Jur. (2d Ed.) § 1058; Ap- peal of Greenwood, 92 Pa. 181 ; Lathrbp v. Bampton, 31 Cal. 17, 89 Am. Dec. 141; Hammond v. Pennock, 61 N. Y. 145; Johnson v. Johnson, 51 Ohio St. 446, 38 N. E. 61. 72 Cone v. Dunham, 59 Conn. 145, 20 Atl. 311, 8 L. R. A. 647. 318 EQUITABLE ESTATES USES AND TRUSTS (Ch. 14 Resulting Trusts — Nature and Classification Resulting trusts are founded upon the presumed intention of the parties. 73 They never arise out of contract, or expressed inten- tion of the parties, 74 but are implied by law from their conduct, or from facts and circumstances existing at the time the legal estate is conveyed. 76 In every case in which a resulting trust arises, there is a transfer of the legal title to land to one who is presumably not intended to hold the beneficial interest, or at least not all of it. 78 The classes into which resulting trusts are divided are various- ly enumerated by the different text-writers and v the courts. 77 Some authorities, for example, include cases where one standing in a fiduciary relation uses fiduciary funds to purchase property in his own or in another's name. 78 . Also, in other instances, it is said that a resulting trust will arise in connection with certain fraudulent dealings with property. 79 While the mere form of classification is unimportant, so far as the legal consequences are concerned, nevertheless such transac- tions as above referred to are generally treated as constructive trusts. 80 The principal classes of resulting trusts, as more correctly enu- merated, are those where the grantor conveys only the legal es- tate, there being no reason to infer that he intended to part with the beneficial interest; those where the object or purpose of the trust '3 Cook v. Patrick, 135 111. 499, 26 N. E. 658, 11 L. R. A. 573; Klamp v. Klamp, 51 Neb. 17, 70 N. W. 525; 2 Pom. Eq. Jur. (2d Ed.) § 1031. Fraud Is not a necessary element Talbott v. Barber, 11 Ind. App. 1, 38 N. E. 487, 54 Am. St. Rep. 491. And see Thompson v. Marley, 102 Mich. 476, 60 N. JW. 976. 7* Potter v. Clapp, 203 III. 592, 68 N. E. 81, 96 Am. St. Rep. 322; Byers v. McEniry, 117 Iowa, 499, 91 N. W. 797 ; Stevens v. Fitzpatrick, 218 Mo. 708, 118 S. W. 51. 'o Sanders v. Steele, 124 Ala. 415, 26 South. 882; Cunningham v. Cunning- ham, 125 Iowa, 681, 101 N. W. 470 ; Potter v. Clapp, supra ; Portland Trust Co. v. Coulter, 23 Or. 131, 31 Pac. 280 ; Feely v. Hoover, 130 Pa. 107, 18 Atl. 611 ; Engstrom v. Livingston (C. C.) 11 Fed. 370. ™ Lloyd v. Spillet, 2 Atk. 150; 1 Perry, Trusts (4th Ed.) § 125; 2 Pom. Eq. "Jur. (2d Ed.) § 1031. ' " See Lloyd v. Spillet, supra, where Lord Chancellor Hardwicke- names t two classes ; Pomeroy, Eq. Jur. § 7 ; Eaton, Eq. 399 ; Bishop, Eq. 125 ; 1 Perry, Trusts, § 125. 78 Perry, Trusts, § 125; Williams v. Williams, 108 Iowa, 91, 78 N. W. 792: Avery v. Stewart, 136 N. C. 426, 48 S. E. 775, 68 L. R. A. 776. 7»Trapnall's Adm'x v. Brown, 19 Ark. 39; Walker v. Bruce, 44 Colo. 109, 97 Pac. 250 ; Lloyd v. Spillet, 2 Atk. 148, 26 Eng. Reprint, 493. eo 2 Pom. Eq. Jur. (2d Ed.) § 1053; Moore v. Crawford, 130 TJ. S. 122, 9 Sup. Ct. 447, 32 L Ed. 878; Dewey v. Moyer, 72 N. T. 70; Huxley v. Rice, 40 Mich. 73 ; Kayser v. Maugham, 8 Colo. 232, 6 Pac. 803. And see infra. § 133) NATURE OF IMPLIED TRUSTS 319 fails entirely or in part; and those where one person pays the pur- 'chase money, but the title is taken in the name of another person. Same — Grantor Disposing of Legal Title Only When a conveyance is made without consideration, and it ap- pears that it was intended that the grantee should take only the- legal estate, a resulting trust arises S1 in favor of the grantor. The mere fact that there was no consideration will not in itself raise a resulting trust, 82 but if the circumstances are such that a gift is not to be presumed, a resulting trust will ordinarily be created. 83 A conveyance, however, to a wife or child, or to one to whom the grantor is under legal or moral obligation, will be presumed, as a rule, to convey the beneficial interest also, and no resulting trust arises. 84 If, however, one transfers the legal title to land to one who is not entitled to the beneficial interest, the equitable title remains in the grantor, and the grantee is a mere trustee for him. 85 Such cases were frequent, even before the statute of uses, and were called "resulting uses." 86 The reason for the rule is that a court of equity will not presume an intention to convey the beneficial interest in lands to a stranger without any consideration. If, however, there is any consideration, 87 or »i Williams v. Williams, 108 Iowa, 91, 78 N. W. 792 p Hogan v. Strayhorn, 65 N. C. 279 ; Paice v. Archbishop of Canterbury, 14 Ves. 364 ; Levet v. Need- ham, 2 Vera. 138 ; Cooke v. Dealey, 22 Beav. 196. sa McClenahan v. Stevenson, 118 Iowa, 106, 91 N. W. 925; Philbrook v. Delano, 29 Me. 410. » s Bennett v. Hutson, 33 Ark. 762; Russ v. Mebius, 16 Cal. 350; Mc- Dermith v. Voorhees, 16 Colo. 402, 27 Pac. 250, 25 Am. St. Rep. 286;" Giffen v. Taylor, 139 Ind. 573, 37 N. E. 392. This rule may be changed by statute, in some states. See Campbell v. Noble, 145 Ala. 233, 41 South. 745. s* Ripley v. Seligman, 88 Mich. 177, 50 N. W. 143; In re Camp, 56 Hun, 647, 10 N. X. Supp. 141 ; Gaylord v. Gaylord, 150 N. C. 222, 63 S. E. 1028 ; Hill v. Bishop of London, 1 Atk. 620. so 1 Perry, Trusts (4th Ed.) § 150; Armstrong v. Wolsey, 2 Wils. 19. And see Burt v. Wilson, 28 Cal. 632, 87 Am. Dec. 142. as Farrington v. Barr, 36 N. H. 86 ; Philbrook v. Delano, 29 Me. 410. 8T An actual consideration will prevent a trust resulting. Hogan v. Jaques, 19 N. J. Eq. 123, 97 Am. Dec. 644. The consideration need not be expressed in the instrument of conveyance. Bank of U. S. v. Housman, 6 Paige (N. Y.) 526 ; Miller v. Wilson, 15 Ohio, 108. A good consideration is sufficient. Groff v. Rohrer, 35 Md. 327; Sharington v. Strotton, 1 Plow. 298. Cf. Mildmay's Case, 1 Coke, 175. But not friendship. Warde v. Tuddingham, 2 Rolle, Abr. 783, pi. 5. The earlier cases hold a mere nominal consideration sufficient to rebut the presumption. Barker v. Keete, Freem. 249. And see Sandes' Case, 2 Rolle, Abr. 791. The recital of a valuable consideration in the deed, even if the consideration is not paid, will prevent a resulting trust. Verzier v. Convard, 75 Conn. 1, 52 Atl. 255 ; Gregory v. Bowlsby, 115 Iowa, 327, 88 N. W. 822 ; Farrington v. Barr, 36 N. H. 86. 320 EQUITABLE pSTATES^USES AND TRUSTS (Ch. 14 in the conveyance the use is declared tb be to the grantee, as in the case of modern conveyances operating under the statute of uses, the beneficial interest passes to the grantee. 88 A use is held to result, however, only in cases where the fee is conveyed. If any ■less estate is transferred, the presumption that the grantor did not intend to benefit the stranger is rebutted, and the grantee takes the beneficial interest. 89 Same — Failure of Trust Where lands are conveyed upon an express trust for declared purposes, and the trust fails, either in whole or in part, by rea- son of illegality, or of some defect in the instrument declaring it, or the trust is otherwise terminated, a resulting trust arises in favor of the creator, or his heirs, or residuary devisee, of so much of the property as remains at the time of the failure or termina- tion. 90 Likewise, where the instrument disposing of the property, either a deed or a will, fails to declare the purpose of the trust, or the trust is only partially declared, as where, for example, property is conveyed to a person "in trust," or "upon the trusts hereafter to be declared,", or "for the, purpose I have before named/' 91 and no trusts are in fact declared, or' where trusts are declared as to only a part of the- estate so conveyed, 82 a resulting trust arises in favor of the creator or those claiming under him. 98 Same — Purchase Price Paid by Another The most frequent illustration of a resulting trust is where the consideration or purchase price of property -is paid by one person,^ but the title thereto is taken in the name of another person. 94 For *« See post Cf. Dillaye v. Greenough, 45 N. T. 438; Squire v. Harder, 1 Paige (N. Y.).494, 19 Am. Dec. 446; Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 266 ; Blodgett v. Hildreth, 103 Mass. 484 ; Stevenson v. Crapnell, 114 111. 19, 28 N. E. 379 ; McKinney v. Burns, 31 Ga. 295. 8» Shortridge v. Lamplugh, 2 Salk. 678; Anon., Brooke, 89. oo Millard v. Bray ton, 177 Mass. 533, 59 N. E. 436, 52 L. R. A. 117, 83 Am. St. Rep. 294; Hargadine v. Henderson, 97 Mo. 375, 11 S. W. 218; Blount v. Walker, 31 S. C. 13, 9 S. E. 804 ; Appeal of Gumbert, 110 Pa. 496, 1 Atl. 437 ; Stevens v. Ely, 16 N. C. 493 ; Hawley v. James, 5 Paige (N. Y.) 318 ; Russell v. Jackson, 10 Hare, 204; Pilkington v. Boughey, 12 Sim. 114; Williams v. Goade, 10 Ves. 500. »i Mayor of Gloucester v. Wood, 3 Hare, 131. And see In re Schmucker's Estate v. Reel, 61 Mo. 592. »2 Vander Volgen v. Tates, 9 N. Y. 219; Robinson v. McDiarmid, 87 N. C. 455. »8 Sturtevant v. Jaques, 14 Allen (Mass.) 523; Morice v. Bishop of Durham, 10 Ves. 521 ; Dawson v. Clarke, 18 Ves. 247. And see cases in preceding note. »* Costa t. Suva, 127 Cal. 351, 59 Pac. 695 ; Worrell v. Torrance, 242 111. § 133) NATURE Or IMPLIED TEUSTS 321 example, "if A, purchases an estate with tiis own money, and takes the deed in the name of B., a trust results to A., because he paid the money." 06 In such cases equity presumes- that it was the intention that the one who paid the money should hold the bene-. ficial estate. 96 In order, however, that this presumption may arise, the payment must be. actually made," or a present obliga- tion to pay incurred, at the time of the conveyance, 0,8 and the pay- ment must be made as a purchase, and not as a loan. 90 A pay- ment of part of the purchase price will also raise a resulting trust, in proportion to the amount paid. 1 An important application of this third class of resulting trusts is made in cases of joint purchase, where the title is taken in the name of one only. 2 Even if the title is taken in the name of them all jointjy, yet if they contributed unequally to the purchase price, a trust results to each purchaser in proportion to his contribu- i 64, 89 N. E. 693 ; Howe v. Howe, 199 Mass. 598, 85 N. E. 945, 127 Am. St. Rep. 516; Malin v. Malin, 1 Wend. (N. Y.) 625; Evans v. McKee, 152 Pa. 89, 25 Atl. 148 ; McDONOUGH v. O'NIEL, 113 Mass. 92, Burdick Cas. Real Property. »5 Chancellor Kent In Botsford v. Burr, 2 Johns. Ch. (N. Y.) 408. »« Galbralth v. Galbraith, 190 Pa. 225, 42 Atl. 683 ; Sayre v. Townsend, 15 Wend. (N. T.) 647; Kendall v. Mann, 11 Allen (Mass.) 15; Latham v. Hen- derson, 47 111. 185 ; Mathis v. Stufflebeam, 94 111. 481 ; Moss v. Moss, 95 111. 449; McLenan v. Sullivan, 13 Iowa, 52i; Rogan v. Walker, 1 Wis. 527; Gashe v. Young, 51 Ohio St. 376, 38 N. E. 20 ; , Lee v. Patten, 34 Fla. 149, 15 South. 775; Hews v. Kenney, 43 Neb. 815, 62 N. W. 204. When a co-tenant takes the legal title to the whole tract, a resulting trust arises. Rogers v. Donnellan, 11 Utah, 108, 39 Pac. 494. For evidence held insufficient to es- tablish this form of trust, see Throckmorton v. Throckmorton, 91 Va. 42, 22 S. E 162. •t Barnet v. Dougherty, 32 Pa. 371; Perkins v. Nichols, 11 Allen (Mass.) 542 ; Alexander v. Tams, 13 111. 221 ; Whiting v. Gould, 2 Wis. 552 ; Sullivan v. McLenans, 2 Iowa, 442, 65 Am. Dec. 780 ; Howell v. Howell, 15 N. J. Eq. 75. »s Gilchrist v. Brown, 165 Pa. 275, 30 Atl. 839 ; Whaley v. Whaley, 71 Ala, 159; Pain v. Parson, 179 111. 185, 53 N. E. 579; Bailey v. Hemenway, 147 Mass. 326, 17 N. E. 645 ; Midmer v. Midmer's Ex'rs, 26 N. J. Eq. 299. 9 Davis v. Davis, 88 Ga. J91, 14 S. E. 194; Smith v. Wildman, 194 Pa. 294 45 Atl. 136; Bell v. Edwards, 78 S. C. 490, 59 S. E. 535; Francestown v. Deerlng, 41 N. H. 438. Of. McGowan v. McGowan, 14 Gray (Mass.) 119, 74 Am. Dec. 668 ; Cramer v. Hoose, 93 111. 503 ; Berry v. Wiedman, 40 W. Va 36, 20 S. E. 817, 52 Am. St. Rep. 866. i Livermore v. Aldrich, 5 Cush. (Mass.) 431 ; Chadwick v. Felt, 35 Pa. 305 ; Miller v. Miller, 99 Va. 125, 37 S. E. 792 ; Smith v. Smith, 85 111. 189 ; Bots- ford v. Burr, 2 Johns. Ch. (N. Y.) 405 ; Sayre v. Townsend, 15 Wend. (N. Y.) 647 ; Latham v. Henderson, 47 111. 185. 2 Robarts v. Haley, 65 Cal. 397, 4 Pac. 385 ; Paige v. Paige, 71 Iowa, 318, 82 N. W. 360, 60 Am. Rep. 799. And see cases in the preceding note. Bukd.Real Peop. — 21 322 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 tion.* It will be presumed, however, in absence of evidence to the contrary, that joint purchasers contributed equally.* In a number of states statutes have been passed abolishing re- * suiting trusts, where the consideration is paid by one person and the title is taken by another. 6 In such jurisdictions the benefi- cial interest as well as the legal title vests in the person named as the grantee, except where the title is taken in the name of an- other person without the consent of the person paying the pur- chase price, 6 or where the grantee has taken the title in violation of some trust. 7 It is also provided that the creditors of the per- son paying the consideration may, in case of fraud upon them, enforce against the property a resulting trust in favor of them- selves, to the extent of their legal demands. 8 Same — Deed to Member of Family An exception to the general rule that a resulting trust occurs when the title is taken in the name of a person other i:han the person paying the consideration often arises where a conveyance is made to a member of the family of the person paying the con- sideration; the presumption being in such cases that a gift or an advancement was intended. 9 For example, where the legal title is taken in the name of the wife 10 or a child X1 of the purchaser, usually no trust in favor of the husband or parent results. » Lewis v. Association, 70 Ala. 276 ; Van Buskirk v. Van Buskirk, 148 111. 9, 35 N. E. 383 ; Baker v. Baker, 75 N. E. Eq. 305, 72 Atl. 1000 ; Union Col- lege v. Wheeler, 61 N. Y. 88 ; Speer v. Burns, 173 Pa.' 77, 34 Atl. 212. * Shoemaker v. Smith, 11 Humph. (Tenn.) 81. s Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52 ; Smith v. Smith' (Ky.) 121 S W. 1002 ; Waldron v. Merrill, 154 Mich. 203, 117 N. W. 631 ; Leary v. Corvin, 181 N. Y. 222, 73 N. E. 984, 106 Am. St. Rep. 542, 2 Ann. Cas. 664 ; Tobin v, Tobin, 139 Wis. 494, 121 N. W. 144. 6 1 Stim. Am. St Law, § 1706 ; Haaven v. Hoaas, 60 Minn. 313, 62 N. W. 110; Noe v. Boll, 134 Ind. 115, 33 N. E. 905; Ball v. Weatherford, 12 Bush (Ky.) 505; Connolly v. Keating, 102 Mich. 1, 60 N. W. 289; Schierloh v. Schierloh, 148 N. Y. 103, 42 N. E. 409. 7 Toney v. Wendling, 138 Ind. 228, 37 N. E. 598 ; Linsley v. Sinclair, 24 Mich. 3S0; Angermiller v. Ewald, 133 App. Div. 691, 118 N. Y. Supp. 195; Nelson v. Nelson (Ky.) 96 S. W. 794. 8 Chantland v. Bank, 66 Kan. 549, 72 Pac. 230 ; McGraw v. Daly, 82 Mich. 500, 46 N. W. 671 ; Connelly v. Sheridan, 41 Minn. 18, 42 N. W. 595, 1 Stim. Am. St. Law, § 1706. But see McCahill v. McCahill, 11 Misc. Kep. 258, 32 N. Y. Supp. 836 ; Gage v. Gage, 83 Hun, 362, 31 N. Y. Supp. 903. » Cartwright v. Wise, 14 111. 417 ; Guthrie v. Gardner, 19 Wend. (N. Y.) 414; Seibold v. Christina n, 75 Mo. 308; Bailey v. Dobbins, 67 Neb. 548, 93 N. W. 6S7 ; Hamilton v. Steele, 22 W. Va. 348. io Wright v. Wright, 242 111. 71, 89 N. E. 789, 26 L, R. A. (N. S.) 161; Staples v. Bowden, 105 Me. 177, 73 Atl. 999; Cairns v. Colburn, 104 Mass. 274 ; Scott v. Calladine, 79 Hun, 79, 29 N. Y. Supp. 630. ii Wright v. Wright, supra; Brown v. Brown, 62 Kan. 666, 64 Pac. 599; § 133) NATURE OF IMPLIED TRUSTS 323 The presumption, however, in favor of a gift or an advancement may be rebutted, and in this way a resulting trust may be estab- lished. 12 Where on the other hand, the purchase money is furnished by a wife or child, and the title is taken in the name of the husband or father, a resulting trust does usually arise, in favor of the. wife ia or of the child, 11 * in absence of evidence showing a contrary in- tention. Moreover, there is no presumption in favor of a gift when the purchase price is paid by a sister or brother, and the property is conveyed to another sister or brother. 15 Same — What Law Governs In connection with resulting trusts in general, whether a re- sulting trust arises or not is a question to be determined by the law of the state in which the land is situated. 1 * Constructive Trusts — In General The second class of implied trusts is known as "constructive trusts." As previously stated, they arise entirely by construction of law, independently of any actual or presumed intention of the parties, and often directly contrary to their intention. 17 They are raised by courts of equity in order to do justice, or for the pur- pose of frustrating fraud. 18 In fact, fraud, or misrepresentation, ot concealment, or abuse of fiduciary relations is always a necessary Waterman v. Seeley, 28 Mich. 77 ; Partridge v. Havens, 10 Paige (N. T.) 618 ; Wheeler v. Kidder, 105 Pa. 270. 12 Guthrie v. Gatdner, 19 Wend. (N. Y.) 414; Jackson ex dem. Benson v. Matsdorf, 11 Johns. (N. T.) 91, 6 Am. Dec. 355 ; Persons v. Persons, 25 N. J. Eq. 250; Taylor v. Taylor, 4 Gilm. (Til.) 303; Butler v. Insurance Co., 14 Ala. 777 ; Dudley v. Bosworth, 10 Humph. (Tenn.) 9, 51 Am. Dec. 690 ; Cooley v. Cooley, 172 Mass. 476, 52 N. E. 631; McMurray v. McMurray, 180 Mo. 526, 79 S. W. 701. is Wright v. Wright, 242,111. 71, 89 N. E. 789, 26 L. E: A. (N. S.) 161; Heward v. Howard, 52 Kan. 469, 34 Pac. 1114; Hayward v. Cain, 110 Mass. 273 ; Lloyd v. Woods, 176 Pa. 63, 34 Atl. 926. i* Champlin v. Champlin, 136 111. 309, 26 N. E. 526, 29 Am. St. Rep. 32.3 ; Stevens v. Fitzpatrick, 218 Mo. 708, 118 S. W. 51; Johnson v. Dougherty, 18 N. J. Eq. 406 ; O'Neill v. O'Neill, 227 Pa. 334, 76 Atl. 26. io Harris v. Mclntyre, 118 111. 275, 8 N. E 182 ; Camden v. Bennett, 64 Ark. 155, 41 S. W. 854 ; Wilson v. Owens, 26 Grant, Ch. (U. S.) 27. But see Printup v. Patton, 91 Ga. 422, 18 S. E. 311. is Acker v. Priest, 92 Iowa, 610, 61 N. W. 235; Pensenneau v. Pensenneau, 22 Mo. 27. « Robinson v. Pierce, 118 Ala. 273, 24 South. 984, 45 L. R. A. 66, 72 Am. St. Rep. 160; Williams v. Williams, 108 Iowa, 91, 78 N. W. 792; Avery v. Stewart, 136 N. O. 426, 48 S. E. 775, 68 L. R. A. 776. i« Scadden Flat Gold-Min. Co. v. Scadden, 121 Cal. 33, 53 Pac. 440 ; Wil- liams v. Williams, supra; Lewis v. Lindley, 19 Mont. 422, 48 Pac. 765; Springer y. Young, 14 Or. 280, 12 Pac. 400. 324 EQUITABLE ESTATES USES AND TRUSTS (Ch. 14 element of constructive trusts. 19 Their forma are much more numerous than resulting trusts, and are as various as the frauds by which property may be obtained. 20 The fraud, however, need not be actual, 21 but may be implied, such as fraud which is presum- ed from the relation of the parties. 22 Where, for example, prop- erty which, is held in trust is acquired by a purchaser who has notice of the trust, 23 or by one who pays no consideration for the transfer, the transferee will hold the property subject to a con- structive trust in favor of the one beneficially entitled. 2 * This same result obtains where the title is transferred by operation of law, as where it descends to the heirs of the trustee. 25 In this class of constructive trusts no actual fraud is necessary. More- over, in general, whenever any person acquires property by fraud, concealment, or imposition, or under circumstances which would make it unjust or inequitable for him to retain it, he will be deem- ed, in equity, to hold it in trust for the person who is equitably entitled to it. 28 For example, where a trustee or other fiduciary purchases property with fiduciary funds, and takes title in his own name, or in the name of a third person, he holds the property « Alexander v. Spaulding, 160 Ind. 181, 66 N. E. 694; Rogers v. Richards, 67 Kan. 706, 74 Pac. 255 ; Pierce v. Pierce, 55 Mich. 629, 22 N. W. 81 ; 1 Per- ry, Trusts (4th Ed.) § 166. See Frick Co. v. Taylor, 94 Ga. 683, 21 S. E. 713 ; Farris v. Farris (Ky.) 29 S. W. 618 ; Lawson v. Hunt, 153 111. 232, 38 N. E. 629; Goldsmith v. Goldsmith, 145 N. T. 313, 39 N. E 1067. 20 Barker v. Hurley, 132 Cal. 21, 63 Pac. 1071, 64 Pac. 480; Barnes v. Thuet, 116 Iowa, 359, 89 N. W. 1085;, Frick Co. v. Taylor, 94 Ga. 683, 21 S. E. 713 ; Smith v. Wright, 49 111. 403 ; Cook v. Bason, 164 Mo. 594, 65 S. W. 227 ; Luse v. Rankin, 57 Neb. 632, 78 N. W. 258 ; Reynolds v. Insurance Co., 160 N. Y. 635, 55 N. E. 305 ; Appeal of Danzeisen, 73 Pa. 65. 2i Barnes v. Thuet, 116 Iowa, 359, 89 N. W. 1085. See, also, cases in pre- ceding notes. 22 See Fetter, Eq. p. 142; 1 Perry, Trusts (4th Ed.) § 194; Roggenkamp v. Roggenkamp, 15 C. C. A. 600, 68 Fed. 605 ; Cobb v. Trammell, 9 Tex. Civ. App. 527, 30 S. W. 482 ; Haight v. Pearson, 11 Utah, 51, 39 Pac. 479. But see Brown v. Brown, 154 111. 35, 39 N. E. 983. 2sWormley v. Wormley, 8 Wheat. (U. S.) 421, 5 D. Ed. 651; Oliver v. Piatt, 3 How. (U. S.) 333, 11 L. Ed. 622; Caldwell v. Carrington, 9 Pet (U. S.) 86, 9 L. Ed. 60 ; James v. Cowing, 17 Hun (N. T.) 256 ; Ryan v. Doyle, 31 Iowa, 53 ; Smith v. Walser, 49 Mo. 250 ; Smith v. Jeffreys (Miss.) 16 South. 377. 24 Caldwell v. Carrington, 9 Pet. (U. S.) 86, 9 L. Ed. 60. 2 6 Randall v. Phillips, 3 Mason, 378, Fed. Cas. No. 11,555; Caines v. Grant's Lessee, 5 Bin. (Pa.) 119. 2« Donnelly v. Rees, 141 Cal. 56, 74 Pac. 433; Dorsey v. Wolcott, 173 111. 539, 50 N. E. 1015; Newell v. Newell, 14 Kan. 302; Dime Sav. Bank v. Fletcher, 158 Mich. 162, 122 N. W. 540, 35 L. R. A. (N. S.) 858; Putnam v. Safe Deposit Co., 191 N. Y. 166, 83 N. E. 789 ; Tetlow v> Rust, 227 Pa. 292, 76 Atl. 22. § 133) NATUBE OF IMPLIED TRUSTS 325 so purchased in trust for the person or persons entitled to the funds with which the property was purchased. 27 Many writers and cases treat this foregoing form of trust as a /'resulting trust," -although it would seem more appropriate to class it as a constructive trust, since some element of fraud, either actual or implied, is usually present. 28 However, where a fiduciary, whether a trustee, guardian, corporation director, £gent, partner, administrator, executor, or any other person- occupying a position of confidence and trust with relation to another per- son, takes advantage of the information obtained by him by reason of such position, and by fraud acquires title to any property con- nected with his trust, it is generally agreed that a constructive trust arises in favor of the person beneficially interested. 29 Thus, if one holding a fiduciary position renews a lease to lands held by his beneficiary, the renewal will operate to the latter's benefit,, as where leases are renewed by trustees or partners. 30 Likewise, if a man appropriates another's property, or wrongfully converts it into a changed form, the person wronged may treat the other as holding the property in trust for him. This is the case where an agent embezzles money and invests it in land. So long as the money can be traced, a trust may be established in favor of the one defrauded. 81 Another class of cases where constructive trusts are raised is where the trustee acquires the trust property by purchase at his own sale of the property, 82 or by purchase or gift from the cestui que trust. 83 Moreover, if any person, fraudulently causes a judi- " Buffalo, N. T. & B. R. Co. v. Lampson, 47 Barb. (N. Y.) 533 ; Barker v. Barker, 14 Wis. 131; Rice v. Rice, 108 111. 199; Weaver v. Fisher, 110 111. 146; Murphy v. Murphy, 80 Iowa, 740, 45 N. W. 914; Bverly v. Harrison, 167 Pa. 355, 31 Atl. 668 ; Morgan v. Fisher's Adm'r, 82 Va. 417 ; Pillars v. M<~ Connell, 141 Ind. 670, 40 N. E. 689 ; Merket v. Smith, 33 Kan. 66, 5 Pac. 394 ; Thompson v. Hartline, 105 Ala. 263, 16 South. 711. 28 l Pom. Eq. Jur. § 1049, note; Eaton, Eq. 413. 29 Stahl v. Stahl, 214 111. 131, 73 N. E. 319, 68 L. R. A. 617, 105 Am. St. Rep. 101, 2 Ann. Cas. 774 ; Phipps v. Phipps, 39 Kan. 495, 18 Pac. 707 ; King v. Remington, 36 Minn. 15, 29 N. W. 352 ; Peck v. Peck, 110 N. T. 64, 17 N. E. 383 ; Barrett v. Bamber, 81 Pa. 247. so Featherstonhaugh v. Fenwick, 17 Ves. 298 ; Ex parte Grace, 1 Bos. & P. 376. aiFoote v. Colvin, 3 Johns. (N. Y.) 216, 3 Am. Dec. 478; Oliver v. Piatt, 3 How. (U. S.) 333, 11 L. Ed. 622 ; Grouch v. Lumber Co. (MissO 16 South. 496. 82 Sypher v. McHenry, 18 Iowa, 232 ; Bush v. Sherman, 80 111. 160. Cf. Hawley v. Cramer, 4 Cow. (N. T.) 717. as Ber&meyer v. Kellerman, 32 Ohio St. 239, 30 Am. Rep. 577; Johnson v. Bennett, 39 Barb. (N. Y.) 237 ; Kern v. Chalfant, 7 Minn. 487 (Gil. 393) ; 2 Pom. Eq. Jur. (2d Ed.) § 1053. 326 EQUITABLE ESTATES USES AND TRUSTS (Ch. 14 cial sale, and becomes a purchaser, at such sale, he may be charg- ed with a constructive trust. 31 Another form of constructive trust may arise where a testator or an ancestor leaves property to a devisee or an heir, induced by a false and fraudulent promise of the devisee or heir that he will hold the property for the benefit of another person. The courts^ will enforce such a promise by making the devisee a trus- tee of the property for such person. 35 Also, if one by fraud %r other inequitable conduct induces another not to acquire certain land, promising that he will purchase and hold tlje land for such other person, but, on the contrary, purchases the land for him- self, he will be treated as a trustee for such other person. 86 Like- wise, where one at a judicial sale falsely represents that he is buy- ing for another, who has an interest in the property, the land so purchased may be charged with a constructive trust. 37 This class of cases is illustrated by one who falsely claims to be purchasing for the mortgagor at a foreclosure sale. 38 A mere verbal promise, accompanied with no fraud, to buy and hold land for another, will not raise, however, a constructive trust in the land so pur- chased. 89 Constructive trusts may also arise through mistake, as where one by reason of some mistake obtains title to land belonging to another. 40 Equity will give relief in such cases, in order to do justice between the parties, since otherwise it would work a fraud upon the rightful owner of the property. 8* Huxley v. Rice, 40 Mich. 73; Massey v. Young, 73 Mo. 260; Peck v. Peck, 110 N. T. 64, 17 N. E 383 ; Uzzle v. Wood, 54 N. C. 226. as Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713, 93 Pac. 339; In re O'Hara's Will, 95 N. Y. 403, .47 Am. Rep. 53; Church v. Ruland, 64 Pa. 432; Williams v. Vreeland, 29 N. J. Eq. 417 ; Dowd v. Tucker, 41 Conn. 197. And see Trustees of Amherst College v. Ritch, 10 Misc. Rep. 503, 31 N. Y. Supp. S85. ss Wheeler v. Reynolds, 66 N. Y. 227; Bardon v. Hartley,»112 Wis. 74, 87 N. W. 809. See, also, Eimer v. Wellsand, 93 Minn. 444, 101 N. W. 612. , sTMcRarey v. Huff, 32 Ga. 681; Roach v. Hudson, 8 Bush (Ky.) 410; Mc- New v. Booth, 42 Mo. 189 ; Marlatt v. Warwick, 18 N. J. Eq. 108. ss Sheriff v. Neal, 6 Watts (Pa.) 534; Ryan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696 ; Dennis v. McCagg," 32 111. 429 ; Vanbever v. Vanbever, 97 Ky. 344, 30 S. W. 983, 17 Ky. Law Rep. 242. so Taylor v. Kelley, 103 Cal. 178, 37 Pac. 216; "Ryder v. Ryder, 244 111. 297, 91 N. E. 451 ; Wheeler v. Reynolds, 66 N. Y. 227 ; Shallcross v. Ma whin- ny, 8 Sadler (Pa.) 142, 7 Atl. 734. 40 Cole v. Fickett, 95 Me. 265, 49 Atl. 1066 ; Smith v. Walser, 49 Mo. 250 ; Lamb v. Schiefner, 129 App. Div. 684, 114 N. Y. Supp. 34; School Directors of Tyrone Tp. v. Dunkleberger, 6 Pa. 29. § 134) INCIDENTS OF EQUITABLE ESTATES &27 INCIDENTS OF EQUITABLE ESTATES 134. A trustee is the holder of the legal title. The beneficiary or the cestui que trust is the beneficial owner. The rights and duties of the trustee and the beneficiary depend, largely, upon the nature and terms of the trust. The beneficial estate is subject to the same incidents as attach to similar legal estates. The distinction between a trustee and a beneficiary or cestui que trust has been previously pointed out. 41 In every active trust there is a separation of the legal and equitable estate ; " the legal estate being in the trustee, and the equitable estate being vested in the beneficiary. In the case, however, of passive trusts, other- wise called "dry or naked trusts," in which the trustee is charged with no duties, 43 and which are executed by the statute of uses, 44 the legal and equitable estates unite in the, cestui que trust. On the other hand, active trusts, which require the performance of duties by the trustee in order to carry out the purposes of the trust, 46 are not executed by the statute of uses, 46 and the legal title remains in the trustee until the duties of his trust are com- pleted. 47 Whenever the legal and equitable titles are united in the same person, there is a merger, if the estates are of the same quantity. 48 No merger takes place, however, if it is contrary to *i See Creation of Express Trusts, Parties, .supra. « Allen v. Rees, 136 Iowa, 423, 110 N. W. 583, 8 L. R. A. (N. S.) 1137 ; Sims v. Morrison, 92 Minn. 341, 100 N. W. 88 ; Hospes v. Gar Co., 48 Minn. 174, 50 N. W. 1117, 15 L. R. A.' 470, 31 Am. St Rep. 637 ; Merz v. Mehner, 57 Wash. 324, 106 Pac. 1118. 43 Drake v. Steele, 242 111. 301, 89 N. E. 1018; Everts v. Everts, 80 Mich. 222, 45 N. W. 88 ; * Cornwell v. Wulff, 148 Mo. 542, 50 S. W. 439, 45 L. R. A. 53; Verdin v. Slocum, 71 N. Y. 345; Appeal of Rodrigue (Pa.) 15 Atl. 680. 4* Prince v. Prince, 162 Ala. 114, 49 South. 873 ; Watkins v. Bigelow, 93 Minn. 210, 100 N. W. 1104 ; Wolters v. Shraft, 69 N. J. Eq. 215, 66 Atl. 39S ; Jacoby v. Jacoby, 188 N. Y. 124, 80 N. E. 676 ; Wilson v. Heilman, 219 Pa. 237, 68 Atl. 674 ; Milton v. Pace, 85 S. C. 373, 67 S. E. 458. See, also, supra. 46 Harris v. Ferguy, 207 111. 534, 69 N. E. 844 ; Hunt v. Hunt, 124 Mich. 502, 83 N. W. 371 ; Newell v. Nichols, 75 N. Y. 78, 31 Am. Rep. 424 ; In re Forney's Estate, 161 Pa. 209, 28 Atl. 1086. 4 6McFall v. Kirkpatrick, 236 111. 281, 86 N. E.139; Lima v. Cook, 197 Mass. 11, 83 N. E. 12; Parker v. McMillan, 55 Mich. 265, 21 N. W. 305; Dyett v. Trust Co., 140 N. Y. 54, 35 N. E. 341 ; Appeal of Barnett, 46 Pa. 392, 86 Am. Dec. 502. 47 Lord v. Comstock, 240 111. 492, 88 N. E. 1012 ; Danahy v. Noonan, 176 Mass. 467, 57 N. E. 679; In re Forney's Estate, 161 Pa. 209, 28 Atl. 1086; Webb v. Hayden, 166 Mo. 39, 65 S. W. 760. «s James v. Morey, 2 Cow. (N. Y.) 246, 14 Am. Dec. 475; Mason v. Mason's 328 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 the intention of the parties, or would work a wrong. 48 In pas- sive trusts the beneficiary is entitled to the possession of the prem- ises, and the exercise of all the rights of an actual owner. 60 The legal estate vests immediately and directly in the beneficiary, 51 and he may in his own name bring and defend actions relating to it. 62 In active or special trusts, on the other hand, the various duties imposed upon trustees, such as those to convey lands held in trust to a certain person or persons, to sell the lands, to invest the trust funds, and to hold the property and receive the rents and profits for the benefit of the cestuis que trustent, require that the legal estate remain in the trustees. Moreover, it is often neces- sary that a trustee should retain the possession in order that he may perform the duties of his trust. 08 Rights and Duties of Trustees The extent of the estate taken by a trustee has been previously considered, 64 and this is to be determined by the terms of the in- strument creating the trust. 66 Likewise the rights and powers of a trustee, 66 as well as his duties, 57 are measured and limited by the special terms and provisions of the trust instrument. At law, the trustee is regarded as the real owner of the property, since Ex'rs, 2 Sandf. Ch. (N. T.) 432 ; Healey v. Alston, 25 Miss. 190 ; Den ex dem. Wills v. Cooper, 25 N. J. Law, 137. But see, where the estates are not equal, Donalds v. Plumb, 8 Conn. 447. 49NELLIS v. RICKARD, 133 Cal. 617, 66 Pac. 32, 85 Am. St. Rep. 227, Burdick Cas. Real Property ; Gardner v. Astor, 3 Johns. Ch. (N. Y.) 53, 8 Am. Dec. 465; Starr v. Ellis, 6 Johns. Ch. (N. Y.) 393; Hunt v. Hunt, 14 Pick. (Mass.) 374, 25 Am. Dec. 400 ; Lewis v. Starke, 10 Smedes & M. (Miss.) 120. so Campbell v. Prestons, 22 Grat. (Va.) 396 ; Harris v. McElroy, 45 Pa. 216; Stevenson v. Lesley, 70 N. Y. 512. Retention of possession by the grantor does not invalidate the trust. Williams v. Evans, 154 111. 98, 39 N. E. 698. si Silverman v. Kristufek, 162 111. 222, 44 N. E. 430 ; Bayer v. Cocherill, 3 Kan. 282; Thompson v. Conant, 52 Minn. 208, 53 N. W. 1145; McGoon v. Scales, 9 Wall. (U. S.) 23, 19 L. Ed. 545. " Welch v. Allen, 21 Wend. (N. Y.) 147; Holmes v. Pickett, 51 S. C. 271, 29 S. E. 82. 63 Matthews v. McPherson, 65 N. C. 189 ; Young v. Miles' Ex'rs, 10 B. Mon. (Ky.) 290 ; Appeal of Shankland, 47 Pa. 113 ; Appeal of Barnett, 46 Pa. 392, 86 Am. Dec. 502; McCosker v. Brady, 1 Barb. Ch. (N. Y.) 329. s* Extent of Trustee's Estate, supra. 6 6 Paddock v. Wallace, 117 Mass. 99; Hawkins v. Chapman, 36 Md. 83; Southern Pac. R. Co. v. Doyle (C. C.) 11 Fed. 253. 5 6 Floyd v. Davis, 98 Cal. 591, 33 Pac. 746; Hattie v. Gehin, 76 N. J. Eq. 340, 76 Atl. 4; In re Riley's Estate, 4 Misc. Rep. 338, 24 N. Y. Supp. 309; In re Markle's Estate, 182 Pa. 378, 38 Atl. 612. 6 7 Russell v. Peyton, 4 111. App. 473; Murphy v. Delano, 95 Me. 229, 49 Atl. 1053, 55 L. R. A. 727 ; In re Fish, 45 Misc. Rep. 298, 92 N. Y. Supp. 394. § 134) INCIDENTS OE EQUITABLE ESTATES 329 the legal estate, the only one recognized at law, is vested in him, 68 and as the legal owner he must bring and defend all actions affect- ing the legal title. 68 If the cestui que trust is in possession, he may, however, maintain trespass. 00 Likewise, under ,the law the- ory, the trustee may sell or devise the property as his own. 61 In equity,' however, the beneficiary is regarded as the real owner, and any dealings with the property by the trustee for other than trust purposes are disregarded, 62 and all assignees of the trustee's title take it subject to the rights of the beneficiary, if they have notice of the trust, or do not pay a valuable consideration. 63 The general duties imposed upon trustees are to manage and control the trust property and to collect the rents and profits. Generally, moreover, a trustee has the right of possession, even against the beneficiary. 6 * A trustee may also be given power to sell, mort- gage, or to lease the property. In the absence, however, of an express or implied power to sell, a trustee has usually no power to sell, 65 without an order of a court of equity. 68 Likewise a trustee has generally no power to mortgage property in absence of such authority in the trust instrument. 67 There is, however, "Martin v. Poague, 4 B. Mon. (Ky.) 524; Denton's Guardians v. Denton's Ex'rs, 17 Md. 403; Chapin v. Society, 8 Gray (Mass.) 580. o»Mackey's Adm'r v. Coates, 70 Pa. 350; Warland v. Col well, 10 R. I. 369; Stearns v. Palmer, 10 Mete. (Mass.) 32; Second Congregational Soc. v. Waring, 24 Pick. (Mass.) 309. eo Cox v. Walker, 26 Me. 504. «i Shortz v. TJnangst, 3 Watts & S. (Pa.) 45; Den ex dem. Canoy y. Trovft- man, 29 N. C. 155 ; Perry, Trusts, § 321. As to the words which, in a general devise, will carry estates of which the testator holds the legal title as trustee, see Taylor v. Benham, 5 How. (U. S.) 233, 12 L. Ed. 130; Jackson ex dem. Livingston v. De Lancy, 13 Johns. (N. Y.) 537, 7 Am. Dec. 403; Merritt v. Loan Co., 2 Edw. Ch. (N. T.) 547; Ballard v. Carter, 5 Pick. (Mass.) 112, 16 Am. Dec. 377. 62 Perry, Trusts, § 321 ; Spratt v. Livingston, 32 Fla. 507, 14 South. 160, 22 L. R. A. 453; Stearns v. Palmer, 10 Mete. (Mass.) 32; Arnold v. Lumber Co. (Tex. Civ. App.) 123 S. W. 1162. ea Cruger v. Jones, 18 Barb. (N. Y.) 468; Lahens v. Dupasseur, 56 Barb. (N. Y.) 266. See Constructive Trusts, ante. 6*Thieme v. Zumpe, 152 Ind. i?59, 52 N. E. 449; Mee v. Fay, 190 Mass 40, 76 N. E. 229 ; Simmons v. Hadley, 63 N. J. Law, 227, 43 Atl. 661 ; Appeal of Alsop, 9 Pa. 374. «5 Moll v. Gardner, 214 111. 248, 73 N. E. 442; Berner v. Bank, 125 Iowa, 438, 101 N. W.. 156 ; Bremer v. Hadley, 196 Mass. 217, 81 N. E. 961 ; Lahens v. Dupasseur, 56 Barb. (N. Y.) 266; McCreary v. Bomberger, 11 Pa. Co. Ct R, 68. 6« Burwell v. Bank, 119 Ga. 633, 46 S. E. 885 ; Murray v. Rodman, 76 S. W. 854, 25 Ky. Law Rep. 978 ; Thomson v. Peake, 38 S. C. 440, 17 S. E. 45, 725. 67 Turtle v. Bank, 187 Mass. 533, 73 N. E. 560, 105 Am. St. Rep. 420; 330 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 an implied power to lease premises customarily leased, in order to carry out the purpose of the trust. 68 j Upon the death of a trustee, his legal title to trust property in lands descends to his heirs. 69 Under statutes, however, the title may vest in the courts of equity until a new trustee is appointed. 70 Trust estates are often given to two or more trustees jointly, and when the instrument creating the trust is obscure such a con- struction is favored. 71 " Joint trustees, however, cannot have par- tition, 72 and upon the death of one the title remains in the survivor or survivors, 73 and statutes abolishing the rule of survivorship in joint tenancies usually except trust estates. 74 A trust will never be allowed to fail, however, for want of a trustee, for the court will appoint one to carry out the trust. 76 Questions relating to appointment and removal of trustees relate more properly to treatises on equity, and are not considered here. 76 Interest and Rights of Beneficiaries In a court of law, as distinguished from a court of equity, the beneficiary under a trust has no standing in his own person. Since the legal title is in the trustee, the beneficiary can assert his rights only in a court of equity. 77 As shown, however, in the preceding section, in equity, and under the doctrine now generally prevailing, a beneficiary is re- Cruger v. Jones, 18 Barb. (N. Y.) 467 ; Seborn v. Beckwith, 30 W. Va. 774, 5 S. B. 450. ea Ohio Oil Co. v. Daughetee, 240 111. 361, 88 N. E. 818, 36 L. R, A. (N. S.) 110S ; In re Hubbell Trust, 135 Iowa, 637, 113 N. W. 512, 13 L. R. A. (N. S.) 496, 14 Ann. Cas. 640; Geer v. Bank, 132 Mich. 215, 93 N. W. 437; Corse v. Corse, 144 N. T. 569, 39 N. E. 630. oo LAWRENCE v. LAWRENCE, 181 111. 248, 54 N. E. 918, Burdick Cas. Real Property ; Woodruff v. Woodruff, 44 N. J. Eq. 349, 16 Atl. 4, 1 L. R. A. 3S0; Cameron v. Hicks, 141 N. C. 21, 53 S. E. 728, 7 L. R. A. (N. S.) 407; Appeal of Carlisle, 9 Watts (Pa.) 331. ">Lecroix v. Malone, 157 Ala. 434, 47 South. 725; Dwenger v. Geary, 113 Ind. 106, 14 N. E. 903 ; Collier v. Blake, 14 Kan. 250 ; Royce v. Adams, 123 N. Y. 402, 25 N. E. 386. 71 Saunders v. Schmaelzle, 49 Cal. 59. 72 Baldwin v. Humphrey, 44 N. Y. 609. "Reichert v. Coal Co., 231 111. 238, 83 N. E. 166, 121 Am. St. Rep. 307; Oxley Stave Co. v. Butler County, 121 Mo. 614, 26 S. W. S67; Lewine v. Gerardo, 60 Misc. Rep. 261, 112 N. Y. Supp. 192 ; Appeal of Carlisle, supra. 7*Boyer v. Sims, 61 Kan.. 593, 60 Pac. 309; Oxley Stave Co. v. Butler County, supra. 75 Adams v. Adams, 21 Wall. (U. S.) 185, 22 L. Ed. 504; Tainter v. Clark, 5 Allen (Mass.) 66; Shepherd v. McEvers, 4 Johns. Ch. (N. Y.) 136, 8 Am. Dec. 5G1. ?« See Fetter, Eq. p. 200; 1 Perry, Trusts, § 259; 2 Pom. Eq. Jur. § 1059. 7 7 Denton's Guardians v. Denton's Ex'rs, 17 Md. 403. § 134) INCIDENTS OF EQUITABLE ESTATES 331 garded as the real owner of the trust property. The trustee, in fact, is regarded as having no actual prop.erty right, but a duty to be performed for the benefit of the cestui que trust. 78 The estate or interest of a beneficiary under an express trust is determined by the terms of the instrument creating the trust. 79 The rules governing the limitations of legal estates apply, 80 and a beneficiary takes the same equitable estate in duration as he would take if the estate were a legal one. 81 Under a passive trust the beneficiary is, in equity, treated as an absolute owner. 82 Unless otherwise prohibited by force of statute, 88 he may assign his equitable interest, and compel a conveyance by the trustee, 8 * and some cases hold that the beneficiary may convey the property and give good title thereto without the intervention of the trus- tee. 85 Under a special or active trust, the rights of the beneficiary consist principally in his power to compel the trustee to perform the trust. Equitable estates are, in general, subject to the same incidents as attach to similar legal estates. 86 Ordinarily the beneficiary may' alienate or mortgage his interest 8T without the consent' of the trustee, 88 unless such rights are forbidden by the instrument is Spratt v. Livingston, 32 Fla. 507, 14 South. 160, 22 L. R. A. 453; Arnold v. Lumber Co. (Tex. Civ. App.) 123 S. W. 1162. ™ Floyd v. Forbes, 71 Cal. 588, 12 Pac. 726; Padfleld v. Padfield, 68 111. 210; Codman v. Krell, 152 Mass. 214, 25 N. B. 90; In re Knowle's Estate, 208 Pa. 219, 57 Atl. -518; Ward v. Funsten, 86 Va. 359, 10 S. E. 415. so Sweet v. Dutton, 109 Mass. 589," 12 Am. Rep. 744; Smith v. Baxter, 62 N. J. Eq. 209, 49 Atl. 1130; Vashon's Ex'x v. Vashon, 98 Va. 170, 35 S. E. 457; Blake v. O'Neal, 63 W. Va. 483, 61 S. E. 410, 16 L. R. A. (N. S.) 1147. si McFall v. Kirkpatrick, 236 111. 281, 86 N. E. 139 ; Reardon v. Reardon, 192 Mass. 448, 78 N. E. 430 ; Hunter v. Hunter, 17 Barb. (N. Y.) 25 ; Appeal of Fowler, 125 Pa. 388, 17 Atl. 431, 11 Am. St. Rep. 902. 82 Bowditch v. Andrew, 8 Allen (Mass.) 339. 83 As in New York and a few other states. See 1 Stim. Am. St. Law, § 1720. s* Sherman v. Dodge's Estate, 28 Vt. 26 ; Waring's Ex'r v. Waring, 10 B. Mon. (Ky.) 331; Winona & St. P. R. Co. v. Railroad Co., 26 Minn. 179, 2 - N. W. 489. Where it was the duty of the trustee to convey at the request of his cestui, a conveyance may be presumed, in order to give security to titles, although in fact none has ever been made. Moore v. Jackson, 4 Wend. (N. Y.) 58. 85 Witham v. Brooner, 63 111. 344; Fellows v. Ripley, 69 N. H. 410, 45 Atl. 138 ; Seidelbach v. Knaggs, 44 App. Div. 169, 60 N. Y. Supp. 774 ; Lamar's Ex'rs v. Simpson, 1 Rich. Eq. (S. C.) 71, 42 Am. Dec. 345. seBadgett v. Keating, 31 Ark. 400; Cornwell v. Orton, 126 Mo. 355, 27 S. W. 536. See, also, Paine v. Forsaith, 86 Me. 357, 30 Atl. 11. ~ 87 Beuley v. Curtis, 92 Ky. 605, 18 S. W. 357 ; Hancock v. Ship, 1 J. J. Marsh: (Ky.) 437. esDibrell v. Carlisle, 51 Miss. 785; Foster v. Friede, 37 Mo. 36; Burnett v. Hawpe's Ex'r, 25 Grat. (Va.) 481. 332 EQUITABLE ESTATES USES AND TRUSTS (Ch. 14 creating the trust, 89 or unless the statutes otherwise provide. 90 Equitable estates are also subject to the payment of the debts of the cestui que trust, 91 if he has a vested interest, .with right of present enjoyment, 92 and power of alienation. 98 Where, how- ever, the rents and profits are to be applied to the support of the cestui que trust, and he has no power of alienation, his creditors cannot reach his interest. 9 * An equitable estate may also be lost by adverse possession, since the statutory period sufficient to bar the legal estate of the trustee also bars the equitable estate of the cestui que trust. 95 Possession by the trustee, however, is the possession of the cestui que trust, and the statute will not run in favor of a trustee of an express trust against the beneficiary be- fore the trust terminates, 98 or before the trustee has repudiated his trust. 97 The rights of curtesy and dower in equitable estates have been previously considered. 98 8» Wenzel v. Powder, ,100 Md. 36, 59 AtL 194, 108 Am. St Rep. 380; Wright v. Leupp, 70 N. J. Eq. 130, 62 AtL 464; Carmichael v. Thompson, 8 Sadler (Pa,.) 120, 6 AtL 717 ; Stratton v. McKlnnie (Tenn. Ch. App.) 62 S. W. 636. »o Blackburn v. Webb, 133 Gal. 420, 65 Pac. 952 ; Weaver v. Van Akin, 71 Mich. 69, 38 N. W. 677 ; Noyes v. Blakeman, 6 N. Y. 567. »i Woodward v. Stubbs, 102 Ga. 187, 29 S. E. 119 ; Farmers' Nat Bank v. Moran, 30 Minn. 165, 14 N. W. 805; Jackson ex dem. Ten Eyck v. Walker, 4 Wend. (N. Y.) 462; Hutchins v. Heywood, 50 N. H. 491. 82 Bronson v. Thompson, 77 Conn. 2J.4, 58 Atl. 692; Bergmann v. Lord, 194 N. Y. 70, 86 N. E. 828; McKimmon v. Rogers, 56 N. C. 200: Hutchinson v. Maxwell, 100 Va. 169, 40 S. E. 655, 57 L. R. A. 384, 93 Am. St Rep. 944. ss Bergmann. v. Lord, supra; TJllman v. Cameron, 92 App. Div. 91, 87 N. Y. Supp. 148. o* Huntington v. Jones, 72 Conn. 45, 43 Atl. 564; Russell v. Milton, 133 Mass. 180; Harvey v. Brisbin, 143 N. Y. 151, 38 N. E. 108. 86 Walton v. Ketchum, 147 Mo. 209, 48 S. W. 924; Crook v. Glenn, 30 Md. 55 ; Clayton v. Cagle, 97 N. C. 300, 1 S. E. 523 ; Kane v. Bloodgood, 7 Johns. Ch. (N. Y.) 90, 11 Am. Dec. 417 ; Hubbell v. Medbury, 53 N. Y. 98 ; Halsey v. Tate, 52 Pa. 311; Keel v. McElhenny, 69 Pa. 300; Robertson v. Wood, 15 Tex. 1, Go Am. Dec. 140. »o Gapen v. Gapen, 41 W. Va. 422, 23 S. E. 579. »7 Chicago & E. I. R. Co. v. Hay, 119 111. 493, 10 N. E 29; Kansas City Inv. Co. v. Fulton, 4 Kan. App. 115, 46 Pac. 188; Lammer v. Stoddard, 103 N. Y. 672, 9 N. E. 328; Zacharias v. Zacharias, 23 Pa. 452; Seymour v. Freer, i 8 Wall. (U. S.) 203, 19 L. Ed. 306; Boone v. Chiles, 10 Pet. (U. S.) 177, 9 L. Ed. 388; Oliver v. Piatt, 3 How. (U. S.) 333, 11 L. Ed. 622; Davis v. Coburn, 128 Mass. 377. But see Halsey v. Tate, 52 Pa. 311; Neel v. McEl- henny, 69 Pa. 300. ss Ante, chapter VIII. 135) CHARITABLE OB PUBLIC TBUSTS 333 CHARITABLE OR PUBLIC TRUSTS 135. Charitable or public trusts are trusts created for the benefit of the public at large, or of some descriptive part of it. They are established for the benefit of an indefinite num- ber of persons, and the individuals to be benefited are uncertain. The general purposes for which public trusts are created are: (a) The relief of poverty and distress. (b) Religion. (c) The promotion of education. Charitable trusts, as distinguished from private trusts, differ principally in that: (a) Less certainty of description in designating the object and beneficiaries is required. (b) A public trust may be perpetual, and a gift from one charity to another may be valid, although on a con- tingency which would be too remote, under the rule against perpetuities, in the case of a private trust. (c) By the cy pres doctrine, adopted in some states, trust funds, in case the original purpose is impracticable or fails, may be applied to some other object as near to the original plan as may be practicable. Definition Charitable or public trusts are also frequently designated by the technical term "charities." This term, however, does not mean charity in its narrow or popular sense, the relief of poverty and distress, but means charity in its legal sense. Lord Camden, one of the Lord Chancellors of England, defined a charity to be : "A gift to a general public use, which extends to the poor as well as to the rich." 8S Mr. Binney, in his celebrated argument in the Girard Will Case, 1 defined a charitable gift to be: "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 person- al, private, or selfish." * »» Jones v. Williams, Ambl. 651, quoted in the following cases: Appeal of Strong, 68 Conn. 527, 37 Atl. 395; Troutman v. Association, 66 Kan. 1, 71 Pac. 286 ; Dexter v. College, 176 Mass. 192, 57 N. E. 371 ; People ex rel. New York Institution for the Blind v. Pitch, 154 N." Y. 14, 47 N. B. 983, 38 L. K. A. 591 ; Perin v. Carey, 24 How. (U. S.) 465, 16 L. Ed. 701. i Vidal v. Philadelphia, 2 How. (U. S.) 127, 11 L. Ed. 205. 2 Quoted in the following cases: Garrison v. Little, 75 111. App. 402; Ford 334 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 Perhaps, however, the most frequently appoved definition of a public trust, or a charity, at least in this country, is the definition given by Mr. Justice Gray, in a leading Massachusetts, case. 3 The definition therein given is as follows: "A charity, in a legal sense, may be more fully defined as a gift to be applied, consistent- ly with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influ- ence of education or religion, by relieving their bodies from dis-, ease, suffering, or constraint, by assisting them to establish them- selves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. 4 Origin Gifts for charitable or pious purposes were well known to the Roman or civil law, 5 and English law derived its law of charities from that source. 8 It was, however, at one time assumed that trusts for charities took their origin from the English statute of 43 Elizabeth, 7 known as the "Statute of- Charitable Uses." 8 It has been established, however, that courts of equity, in England, exercised jurisdiction in such matters before the passage of this statute, 8 and it is now held by the great weight of authority that equity has original and inherent jurisdiction over charities in- dependently of the statute. 10 The preamble of the statute cori- v. Ford's Ex'r, 91 Ky. 572, 16 S. W. 451 ; JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Property; Miller v. Porter, 53 Pa. 292; Ould v. Hospital, 95 U. S. 303, 24 L. Ed. 450. s JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Prop- erty. 4 PEOPLE EX REL. ELLERT v. COGSWELL, 113 Cal. 129, 45 Pac. 270, 35 L. R. A. 269, Burdick Cas. Real Property; Hoeffer v. Clogan, 171 111. 462,. 49 N. E. 527, 40 L. R. A. 730, 63 Am. St. Rep. 241; Livesey v. Jones, 55 N. J. Eq. 204, 35 Atl. 1064 ; Webster v. Wiggin, 19 R. I. 73, 31 Atl. 824, 28 L. R. A. 510 ; Stuart v. Easton, 74 Fed. 854, 21 C. C. A. 146. s They took the name of "pious uses." See Sohm's Inst Rom. Law (2d Ed.) 208-210 ; Poth. Pand. lib. 30-32, Nos. 57-62 ; Code, lib. 1, tit 2, cc. 15, 19; 2 Kent. Comm. (6th Ed.) 257 ; 2 Story, Eq. Jur. §§ 1137-1141. « JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Proper- ty; White v. White, 1 Bro. Ch. 12; Fielding v. Bound, 1 Vern. 230. 7 See 1 Spence, Eq. 589 ; Philadelphia Baptist Ass'n v. Hart, 4 Wheat (U. S.) 1, 4 L. Ed. 499 ; Gallego's Ex'rs v. Attorney General, 3 Leigh (Va.) 450, 24 Am. Dec. 650. s 43 Eliz. c. 4. Vidal v. Girard, 2 How. (U. S.) 128, 11 L. Ed. 205. See Bispham, Eq. (7th Ed.) 188; , Protestant Episcopal Education Soc. v. Churchman's Representa- tives, 80 Va. 718 ; Trustees- of General Assembly of Presbyterian Church v. Guthrie, 86 Va. 125, 10 S. E. 318, 6 L. R, A. 321. io Lackland v. Walker, 151 Mo. 210, 52 S. W. 414; Levy v. Levy, 33 N. Y. 97; Vidal v. Girard, 2 How. (U. S.) 127, 11 L. Ed, 205; Going v. Emery, 16 § 135) CHARITABLE OK PUBLIC TBUSTS 335 tains, however, an enumeration of many charitable uses, 11 and has often been cited for the purpose of determining the scope of charities, 12 yet by the prevailing American doctrine the enumer- ation therein is not conclusive, and charitable trusts may be cre- ated for other purposes than those specified by the statute. 18 Beneficiaries Charitable trusts are created for the benefit of the public in gen- eral, or of some descriptive part or class of it, as, for example, seamen, laborers, or "the poor" of a certain place. 14 Thus, a gift "to the poor" generally, 16 or to the poor of a particular town, city, or of a particular age, sex, or race, may be a good charitable gift; 18 a bequest "to the poor" of a certain county meaning those whom the county is legally liable to support. 17 Charitable trusts may also be created for such other special classes as widows, orphans, children, and abandoned wives. 18 In this country, moreover, as a rule, unincorporated or voluntary societies may be the beneficiaries of a public trust. 18 In some states, however, this is not true, since in some jurisdictions the beneficiary must be definitely ascertained. 20 Other classes of beneficiaries enumerated by the statute of 43 Pick. (Mass.) 107, 26 Am. Dec. 645 ; Gilman v. Hamilton, 16 111. 225 ; Sowers v. Cyrenius, 39 Ohio St. 29, 48 Am. Rep. 418; Harrington v. Pier, 105 Wis. 485, 82 N. W. a45, 50 L. R. A. 307, 76 Am. St. Rep. 924. ii See Eaton, Eq. p. 386; Bispham, Eq. (7th Ed.) 189. 12 See Drury v. Natick, 10 Allen (Mass.) 169, 177. is Garrison v. Little, 75 111. App. 402; Everett v. Carr, 59 Me. 325; Town of Hamden v. Rice, 24 Conn. 350 ; Stuart v. Easton, 74 Fed. 854, 21 C. 0. A. 146 ; Heiskell V. Lodge, 87 Tenn. 668, 11 S. W. 825, 4 L. R. A. 699. i* Burbank v. Burbank, 152 Mass. 254, 25 N. E. 427, 9 L. R. A. 748; KENT v. DUNHAM, 142 Mass. 216, 7 N. E. 730, 56 Am. Rep. 667, Burdick Cas. Real Property. is Nash v. Morley, 5 Beav. 177, 6 Jur. 520; Attorney General v. Peacock, Finch, 425 ; Attorney General v. Matthews, 2 Lev. 167. ie JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Prop- erty ; Saltonstall v. ' Sanders, 11 Allen (Mass.) 455-461 ; Chambers v. St. Louis, 29 Mo. 543 ; Attorney General v. Goodell, 180 Mass. 538, 62 N. E. 962 ; "McLoughlin v. McLoughlin, 30 Barb. (N. T.) 458. it Peter v. Carter, 70 Md. 139, 16 Atl. 450. is Guilfoil v. Arthur, 158 111. 600, 41 N. E. 1009; In re Botsford, 23 Misc. Rep. 388, 52 N. Y. Supp. 238 ; Burd Orphan Asylum v. School Dist., 90 Pa. 21 ; Heiss v. Murphey, 40 Wis. 276. i»Tomlin v. Blunt, 31 111. App. 234; Byam v. .Bickford, 140 Mass. 31, 2 N. E. 687 ; White v. Rice, 112 Mich. 403, 70 N. W. 1024 ; Hadden v. Dandy, 51 N. J. Eq. 154, 26 Atl. 464, 32 L. R. A. 625. 20 Rizer v. Perry, 58 Md. 112; Lane v. Eaton, 69 Minn. 141, 71 N. W. 1081, 38 L. R. A. 669, 65 Am. St. Rep. 559 ; Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568 ; Rhodes v. Rhodes, 88 Tenn. 637, 13 S. W. 590. And see infra. 336 EQUJ.TABLH ESTATES — USES AND TRUSTS (Ch. 14 Elizabeth, and generally upheld, are the aged and impotent, sick and maimed soldiers and mariners, scholars in universities, trades- men, handicraftsmen, and persons decayed, and prisoners. 21 While a charitable trust must be for a general public use, yet it must also be applied for the benefit of an indefinite number of persons, which number may include the rich as well as the poor. 22 Asa rule, the individuals who may benefit are indefinite in number and uncertain. 23 "If a trust is for any particular persons, it is not a charity. Indefiniteness is of its essence." 2 * Thus a gift to aid free public schools is valid, the beneficiaries being uncertain, 25 and the fact that the state has made provision for the maintenance of such schools within the place to be benefited ^oes not affect its validity. 28 Purposes The purposes for which charitable trusts may be created have been, in a general way, already suggested by the classes of their beneficiaries. However, the most usual objects for which charities are established are trusts for the relief of poverty and distress, religion, and the promotion of learning. Among the trusts falling within the first of these classes may be mentioned gifts for the poor and gifts for hospitals, asylums, and orphanages. 27 Trusts for the purposes of religion include gifts for the building and repair of churches and the propagation of religious doctrines. 28 The re- « 43 Eliz. c. 4. 22 Hoeffer v. Clogan, 171 111. 462, 49 N. E. 527, 40 L. R. A. 730, 63 Am. St Eep. 241; JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Property; Philadelphia v. Fox, 64 Pa. 169; Fontain v. Ravenel, 17 How. (U. S.) 369, 15 L. Ed. 80. 23 As to the rule in some states, requiring designated and ascertained bene- ficiaries, see infra; PEOPLE EX REL. ELLERT v. COGSWELL, 113 Cal. 129, 45 Pac. 270, 35 L. R. A. 269, Burdick Cas. Real Property. 2* Sharswood, J., in Philadelphia v. Fox, 64 Pa. 169, 182. And see KENT v. DUNHAM, 142 Mass. 216, 7 N. E. 730, 56 Am. Rep. 667, Burdick Cas. Real Property. 20Hatheway v. Sackett, 32 Mich. 97; In re John's Will, 30 Or. 494, 47 Pac. 341, 50 Pac. 226, 36 L. R. A. 242 ; Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. 26 Green v. Blackwell (N. J. Ch.) 35 Atl. 375. 27 Attorney General v. Society, 13 Allen (Mass.) 474; Shotwell v. Mott, 2 Sandf. Ch. (N. T.) 46; Chambers v. St Louis, 29 Mo. 543; In re Trim's Estate, 168 Pa. 395, 31 Atl. 1071; Derby v. Derby, 4 R. I. 414. 2 8 Alden v. St. Peter's Parish, 158 111. 631, 42 N. E 392, 30 L. R. A. 232; Kelley v. Welborn, 110 Ga. 540, 35 S. E. 636; Andrews v. Andrews, 110 111. 223; Bridges v. Pleasants, 39 N. C. 26, 44 Am. Dec. 94; Attorney General v. Wallace's Devisees, 7 B. Mon. (Ky.) 611; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct 336, 27 L. Ed. 40L § 135) CHARITABLE OB PUBLIC TRUSTS 337 ligious purpose must be general, however, and a gift for the main- tenance of a private, chapel is not a public trust. 29 Gifts for the promotion of learning, science, and the useful arts are charities. 30 In this class are included free public libraries, 81 and the establishment of scholarships in a college. 32 Trusts for education may be created, also, for a particular class of persons, as/ for example, the education of young, women, 83 or for the edu- cation of the children of a certain locality. 8 * Distinguished from Private Trusts While public trusts are created in the same way as private trusts, 85 yet the requisites of private and public trusts are ma- terially different. In a private trust, there must be a certain specified beneficiary; in a public trust, the beneficiaries are un- certain. 36 In a private trust, the gift fails and reverts to the donor o'r his 'heirs when the beneficiaries cannot be identified ; while a public trust is said to begin only when uncertainty in the bene- ficiary begins. 37 In other words, public trusts differ from private trusts in that they are favored by the courts in the construction of instruments creating them, and less certainty, of description in designating the purpose of the trust and the persons intended to be benefited is permitted. 38 This must necessarily be the case, 2» Hoare v. Hoare, 56 L. I. Rep. N. S. 147. ' And see Church Extension of M. E. Church v. Smith, 56 Md. 362. a o Price v. School Directors," 58 111. 452; Dexter v. College, 176 Mass. 192, 57 N. E. 371 ; Taylor's Ex'rs v. College, 34 N. J. Eq. 101 ; Almy v. Jones, 17 R. I. 265, 21 Atl. 616, 12 L. R. A. 414 si Cary Library v. Bliss, 151 Mass. 364, 25 N. E. 92, 7 L. R. A. 765 ; East- man v. Allard, 149 Mass. 154, 21 N. E. 235; Maynard v. Woodard, 36 Mich 423 ; St. Paul's Church v. Attorney General, 164 Mass. 188, 41 N. E. 231. 8 2lngraham v. Ingraham, 169 111. 432, 48 N. E. 561, 49 N. E. 320; KENT v. DUNHAM, 142 Mass. 216, 7 N. E. 730, 56 Am. Rep. 667, Burdick Cas. Rea) Property ; Webster v. Morris, 66 Wis. 366, 28 N. W. 353, 57 Am. Rep. 278. as Appeal of Curran, 4 Penny. (Pa.) 331; Curran v. Trust Co., 15 Phila (Pa.) 84. a* Van Wagenen v. Baldwin, 7 N. J. 'Eq. 211; Iseman v. Myres, 26 Hue (N. T.) 651 ; Clement v. Hyde, 50 Vt. 716, 28 Am. Rep. 522 ; Russell v. Allen, 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397. so Olliffe v. Wells, 130 Mass. 221. They are not executed by the statute of uses, because the trustees generally have actual duties to perform, and the beneficiaries are uncertain. Beckwith v. Rector, etc., 69 Ga. 564. ssPennoyer v. Wadhams, 20 Or. 274, 278, 25 Pac. 720, 11 L. R. A. 210; Troutman v. Association, 66 Kan. 1, 71 Pac. 286; KENT v. DUNHAM, 142 Mass. 216, 7 N. E. 730, 56 Am. Rep. 667, Burdick Cas. Real Property. 87 id. as JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Prop- erty ; Bartlet v. King, 12 Mass. 537, 7 Am. Dec. 99 ; Saltonstall v. Sanders, 11 Allen (Mass.) 446 ; Inglis v. Harbor, 3 Pet. (U. S.) 99, 7 L. Ed. 617. Bued.Reai. Peop. — 22 338 EQUITABLE ESTATES — USES AND TRUSTS (Ch. 14 for those who are to be the cestuis que trustent are generally unknown, and incapable of being pointed out specifically, 39 as, for instance, in a trust for the benefit of the "poor" of a certain county. 40 There must be a clear designation of the class of per- sons to be benefited; but, when this is done, uncertainty as to the individuals to be benefited is a necessary element of a public trust. 41 In some states, ■ however, greater strictness is required in designating the beneficial class than in other states. 42 More- over, in a few states, either by statute or judicial decision, the English law of charitable trusts does not obtain, and in such juris- dictions all beneficiaries in trusts must be definite and certain. 43 Formerly, in New York, every perpetual trust was void unless the beneficiary was ascertained ; 44 but the statute of 1893 of that state provides -that no gift to religious, charitable, or benevolent uses shall be deemed invalid by reason of the indefiniteness o'r uncertainty of the "beneficiaries. 46 A further distinction between a private and public^trust exists in the fact of their perpetuities. 46 A private trust cannot be cre- ated so that it will continue forever. 47 A public trust, on the other hand, may be made perpetual. 48 Public trusts must vest within «» Burke v. Roper, 79 Ala. 142; Holland v. Alcock, 108 N. T. 312, 16 N. B. 305, 2 Am. St Rep. 420. . 40 state ex rel. Wardens of Poor of Beaufort County v. Gerard, 37 N. C. 210. 4i PEOPLE EX REL. ELLERT v. COGSWELL, 113 Cal. 129, 45 Pac. 270, 35 L. R. A. 269, Burdick Cas. Real Property; Newson v. Starke, 46 Ga. 88; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401. For a designation held sufficiently definite, see CITY OF OWATONNA v. ROSE- BROCK, 88 Minn. 318, 92 N. W. 1122, Burdick Cas. Real Property. *2 See Appeal of Strong, 68 Conn. 527, 37 Atl. 395 ; Hayden v. Hospital, 64 Conn. 320, 30 Atl. 50. 48 See the statutes of Maryland, Michigan, Minnesota, North Carolina, Vir- " ginia, West Virginia, and Wisconsin. See, also, Lane v. Eaton, 69 Minn. 141, 71 N. W. 1031, 38 L. R. A. 669, 65 Am. St Rep. 559 ; Wheelock v. Society, 109 Mich. 141, 66 N. W. 955, 63 Am. St. Rep. 578; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, 50 L. R. A. 307, 76 Am. St. Rep. 924; Fifield v. Van Wyck's Ex'r, 94 Va. 557, 27 S. E. 446, 64 Am. St Rep. 745 ; Morris' Ex'r v. Morris' Devisees, 48 W. Va. 430, 37 S. E. 570. 44 Edwards v. Woods, 131 N. Y. 350, 30 N. E. 237; Fosdick v. Hempstead, 125 N. T. 581, 26 N. E. 801, 11 L. R. A. 715. 45 See Kelly v. Hoey, 35 App. Div. 273, 55 N. Y. Supp. 94; In re Scott's Estate, 31 Misc. Rep. 85, 64 N. Y. Supp. 577. 48 See post. And see Troutman v. Association, 66 Kan. 1, 71 Pac. 286. 47 In re Bartlett, 163 Mass. 509, 40 N. E. 899 ; St. Paul's Church v. Attor- ney General, 164 Mass. 188, 41 N. E. 231; KENT v. DUNHAM, 142 Mass. 216, 7 N. E. 730, 56 Am. Rep. 667, Burdick Cas. Real Property ; Parks' Adm'r v. Society, 62 Vt. 19, 20 Atl. 107. 4 8 Mills v. Davidson, 54 N. J. Eq. 659, 35 Atl. 1072, 35 L. R. A. 113, 55 Am. § 135) CHARITABLE OR PUBLIC TRUSTS 339 the time required for private trusts ; 4S but a gift over from one charity to another may be valid, although made on a contingent limitation which in the case of a private trust would be too remote under the rule against perpetuities. 50 In such a case, the rule against perpetuities does not apply. 61 The oft-repeated statement, however, that charitable trusts are not within the rule against per- petuities, is too general, and is. also misleading. 02 Doctrine of Cy Pres Charitable trusts are further distinguished from private trusts in connection with the doctrine of cy pres. 58 This doctrine assum- ed two forms in England; one being a royal prerogative, and the other being the exercise of judicial authority on the part of the chancellor. 5 * Under the former, the chancellor, with delegated royal authority, and by the use of the royal signature (the sign manual), arbitrarily applied charitable gifts to other public *bene- ficiaries" when the public trust as originally created was illegal, or designated beneficiaries when gifts ' were made to charity in general without any trust being . specified. 55 This power of dis- posal of charitable gifts, in direct opposition, in some cases, to the declared intention of the creator, arose, probably, from the author- ity vested in the king as head of the church, 56 or was derived from the doctrine of the Roman law in imperial times, when the em- peror was supreme legislator. 57 This prerogative form of the cy pres doctrine is not recognized, however, by the courts in this country. 58 St. Eep. 594 ; Sherman v. Baker, 20 R. I. 446, 40 Atl. 11, 40 L. K. A. 717 ; Gray, Perp. c. 18 ; Perry, Trusts (5th Ed.) § 38-1. * » Christ Church v. Trustees, 67 Conn. 554, 35 Atl. 552; Hopkins v. Grim- shaw, 165 U. S. 342, 17 Sup. Ct. 401, 41 L. Ed. 739. And see Rule Against Perpetuities, post, chapter XVI. oo Id. si Gray, Perp. § 592. 02 See, post, chapter XVI. os Cy pres is old French, and is pronounced "se pra," meaning "as nearly" (as may be). See Taylor v. Keep, 2 111. App. 368; Stratton v. College, 149 Mass. 505, 21 N. E. 874, 5 L. R. A. 33, 14 Am. St. Rep. 442. 54 JACKSON t. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Prop- erty. eis JACKSON v. PHILLIPS, supra; In re Payne (1903) 1 Ch. 83; Mog- gridge v. Thackwell, 1 Ves. Jr. 469. se JACKSON v. PHILLIPS, supra ; Rex v. Portington, 1 Salk. 162. Br Digest 33, 2, 17; 50, 8, 4; Codex, 1, 2, 19; JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Property. BsHeuser v. Harris, 42 111." 425; Grimes' Ex'rs v. Harmon, 35 Ind. 198, 9 Am Rep. 690; Mason v. Perry, 22 R. I. 475, 48 Atl. 671; Johnson v. Johnson, 92 Tenn. 559, 23 S. W. 114, 22 L. R, A. 179, 36 Am. St Rep. 104. 340 EQUITABLE ESTATES USES AND TRUSTS (Ch. 14 The other form of the cy pres doctrine, or the judicial form, is stated as follows : When a gift is made to trustees for a charita- ble purpose, the general nature of which is pointed out, and which is lawful and valid at the time of the death of the testator, and no intention is expressed to limit it to a particular institution or mode of application, and afterwards, either by change of circum- stances the scheme of the testator becomes impracticable, or by change of law becomes illegal, the fund, having once vested in charity, does not go to the heirs at law as a resulting trust, but is to be applied by the court of chancery, in the exercise of its jurisdiction in equity, as near the testator's particular directions' as possible (cy pres), to carry out his general charitable intent. 69 A good illustration of thei application of this doctrine is presented by the case of Jackson v. Phillips. 80 In that case a trust was created, having for its object the creating of a public sentiment by means of lectures and publications that would lead to the abo 1 lition of negro slavery. After the death of the testator, and while the will in question was being litigated, slavery was abolished. The purpose, therefore, having failed, the income from the trust property was applied to the education of the freed slaves, as car- rying out the testator's general intention. The judicial doctrine of cy pres is recognized in the federal courts, 61 and in a number of the state courts. 82 In a number of other states, however, the doctrine is rejected. 63 In examining the cases, care is necessary, " Mr. Justice Gray in JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Bur- dick Cas. Real Property. See, also, Mr. Justice Gray in Russell v. Allen, 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397. And see Attorney General v. Rector, etc., 9 Allen (Mass.) 422; Glasgow College v. Attorney General, 1 H. L. Cas. 800. Cf. Marsh v. Renton, 99 Mass. 132. 8» Supra. •i Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U. S. 1„ 10 Sup. Ct. 792, 34 L. Ed. 481 ; Russell v. Allen, 107 U. S. 163, 2 Sup. Ct. 327, 27 L. Ed. 397; Philadelphia Baptist Ass'n v. Hart, 4 Wheat (U. S.) 1, 4 L. Ed. 499 ; Perin v. Carey, 24 How. (U. S.) 465, 16 L. Ed. 701. Cf. Wheeler v. Smith, 9 How. (U. S.) 55, 13 L. Ed. 44. «2 JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, Burdick Cas. Real Prop- erty; Moore's Heirs v. Moore's Devisees, 4 Dana (Ky.) 354, 29 Am. Dec. 417; Gass v. Wilhite, 2 Dana (Ky.) 170, 26 Am. Dec. 446; Curling's Adm'rs v. Curling's Heirs, 8 Dana (Ky.) 38, 33 Am. Dec. 475; Marsh v. Renton, 90 Mass. 132; Attorney General v. Rector, etc., 9 Allen (Mass.) 422; Derby v. Derby, 4 R. I. 414. The cy pres doctrine is recognized by statute in Cali- fornia, Pennsylvania, and New York. See In re Royer's Estate, 123 Cal. 614, 56 Bac. 461, 44 L. R. A. 364 ; In re Tenth Presbyterian Church, 8 Pa. Dist R. 323 ; N. Y. Laws 1901, c. 291. 6 3 Methodist Episcopal Church' of Newark v. Clark, 41 Mich. 730, 3 N. W. 207; Little v. Willford, 31 Minn. 173, 17 N. W. 282; Grimes' Ex'rs v. Harmon, 35 Ind. 198, 9 Am. Rep. 690 ; Holland v. Alcock, 108 N. Y. 312, 16 N. E. 305, 2 § 135) CHARITABLE OR PUBLIC TRUSTS , 341 however, since there exists some confusion as to the real meaning of the doctrine of cy pres. In many cases nothing more is meant by it than that the courts are favorable to the establishment of charitable . trusts, and will construe instruments creating them liberally in order to carry out the intention of the one creating the trust." Am. St. Rep. 420; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, 50 L. B. A. 307, 76 Am. St. Rep. 924; Holland v. Peck, 37 N. C. 255. «* 2 Perry, Trusts (4th Ed.) | 727. 342 ESTATES IN EXPECTANCY (Cll. 15 CHAPTER XV ESTATES IN EXPECTANCY 136. Estates as to Time of Enjoyment. 137. Estates In Expectancy. 138. Reversions. 139. Possibilities of Reverter. 140. Future Estates. 141. At Common Law (Remainders). 142. Acceleration of Remainders. 143. Successive Remainders. 144. Cross Remainders. 145. Alternate Remainders. 146. Vested Remainders. 147. Contingent Remainders. 148. Destruction of Contingent Remainders. 149. Rule in Shelley's Case. 150. Under the Statute of Uses (Future Uses). 151. Taking Effect as Remainders. 152. Springing Uses. 153. Shifting Uses. 154. Under the Statute of Wills (Executory Devises). 155. Incidents of Future Estates. 156. Tenure of Future Estates. 157. Protection of Future Estates. 158. Alienation of Future Estates. 159. Devise of Future Estates. - 160. Descent of Future Estates. ESTATES AS TO TIME OF ENJOYMENT 136. Estates classified with regard to the time of their enjoyment are divided into: (1) Estates in possession ; and (2) Estates in expectancy. • ESTATES IN EXPECTANCY 137. Estates in expectancy are divided into: (1) Reversions; and (2) Future estates. § 140) FUTUBE ESTATES 343 REVERSIONS 138. A reversion is the residue of the estate which remains in the grantor after he has granted away part of his estate. The. estate granted is called the particular estate. The rever- sion commences in possession after the termination of the particular estate. There may be a reversion after any es- tate except a fee. POSSIBILITIES OF REVERTER 139. After the conveyance of a fee on condition subsequent, or the creation of a qualified fee, the interest remaining in the grantor is called a "possibility of reverter." , FUTURE ESTATES 140. A future estate is an estate limited to commence in possession in the future, either upon the termination of a precedent estate created at the same time, or without any precedent estate. Future estates may be classed as: (1) Those known .to the common law. (2) Those arising under the statute of uses. ■ (3) Those arising under the statute of wills. Estates in Possession and. Expectancy The estates previously considered have been, for the most part, estates which entitle their owners to the immediate possession of the land ; that is, they have been present estates, or estates in posses- sion. Mention, however, has been made incidentally, in several plac- es, of expectant estates, or estates where the right to their enjoy- ment in possession is postponed to a future time. 1 For this reason, in modern times, such estates are often called, indiscriminately, "fu- ture estates," although we have here distinguished reversions from future estates proper. 2 To the mediaeval common law there were known two kinds of estates in expectancy, namely, reversions and remainders, 8 based upon the peculiar English notions of tenure and estate. The Roman law did not recognize separate rights of future i Moore v. Littel, 41 N. Y. 66 ; Palmer v. Dunham, 52 Hun, 468, 6 N. Y. Supp; 46 ; Livingston v. N. Y. Life Ins. Co., 59 Hun, 622, 13 N. Y. Supp. 103. 2 Infra. * Infra. 344 ESTATES IN EXPECTANCY' (Ch. 15 and present enjoyment of the same subject-matter existing, at the same time, in different persons, except, perhaps, in the case of "dominium" and "jura in re aliena" (as, for example, "usufructus" or "emphyteusis"), where the interest of the dominus was somewhat analogous to the English reversion.* Reversions — Nature of a Reversion A reversion is defined as "the residue of an estate left in the gran- tor, to commence in possession after the determination of some par- ticular .estate granted out by him." B It is also defined as "the re- turn of an estate to the grantor and his heirs, after the grant is over." ° A. reversion, therefore, is never created by deed or other writing, but arises only by construction of law. 7 It is true that, at common law, if a "remainder" is limited to the heirs of a grantor or a testator, the "remainder" takes effect as a reversion ; but this is not an exception to the rule that a reversion canndt he created by a deed or other writing, since the attempted creation of the "re- mainder" is no remainder at all, 8 and, there being no remainder, the land devolves upon the heirs of the grantor, or testator, by descent, creating, therefore, by operation of law, a reversion in the grantor. 9 A reversion, therefore, is the residue of his estate, which the grantor does not part with, or, as Coke says, "a reversion is where the residue of the estate always doth continue in him that made the particular estate." 10 Origin of Reversions — Feudal Escheat The statute of quia emptores 11 gave the right of free alienation of lands in fee simple, but abolished all mesne tenures, and provided that the feoffee should hold the land of the chief lord. Since the passing of that statute, if a tenant in fee simple dies, leaving no * See Dig. Hist. Real Prop. c. 5, § 3. »2 Blk. Comm. 175; Alexander v. De Kennel, 81 Ky. 345, 5 Ky. Law Rep. 382 ; Barber v. Brundage, 50 App. Div. 123, 63 N. Y. Supp. 347 ; Powell v. Dayton, etc., R. Co., 16 Or. 33, 16 Pac. 863, 8 Am. St. Rep. 251. o 4 Kent, Comm. (13th Ed.) 353; HOBSON v. HUXTABLE, 79 Neb. 340, 116 N. W. 278, Burdick Cas. Real Property ; Booth v. Terrell, 16 Ga. 20, 25. The term "reversion" has two significations: First, as designating the estate left in the grantor during the continuance of a particular estate; 'and, second, the returning of the land to the grantor or his heirs after the grant is over. Powell v. Dayton, etc., R. Co., 16 Or. 33, 16 Pac. 863, 8 Am, St. Rep. 251. » 2 Blk. Comm. 175 ; 4 Kent, Comm. 354 ; Alexander v. De Kermel, 81 Ky 345, 5 Ky. Law Rep. 382. 8 Infra. oAkers v. Clark, 184 111. 136, 56 N. E. 296, 75 Am. St. Rep. 152; Fearne, Contingent Remainders, 50, 51; Bingham's Case, 2 Co. 91b; Godolphin v. Abingdon, 2 Atk. 57. io Co. Litt 22b. ii 18 Edw. I, c. 1 (1290). See supra. § 140) FUTUKE ESTATES 345 heirs, his land escheats to the lord of whom it is held. 1 ? • If, how- ever, the interest of a tenant of an estate less than fee expires, the land reverts to the donor. The words "escheat" and "revert" were used, therefore, to mean that the land went back to the lord, in one case, and to the donor, in the other. The right of escheat, however, was not an estate, merely a possibility. The right of reversion, on the other hand, was regarded as an estate, an interest in land. It is an expectant estate, becoming an estate in possession upon the termination of the tenant's estate. 13 This doctrine of feudal es- cheats, as distinguished from reversions, is of modern interest, since upon it is based the. asserted common-law rule that the lands of a dissolved corporation return to the grantor, and do not escheat to the lord; that is, the crown, or state. 14 With reference, however, to stock corporations, this doctrine is held not to apply ; the pro- ceeds of the land being divided among the stockholders. 10 From What Estates A reversion may arise out of any estate, except an estate at will or at sufferance. Out of the latter estates there can be no reversion, because in creating a reversion the grant of a particular estate is necessary, and no alienation is possible of the x whole or of part of an estate at will or at sufferance. Any number of particular estates may be created by one owning a fee simple, and, still a reversion • may remain so long as the fee itself is not disposed of. For ex- ample, the owner of a fee may grant a' fee tail, aVid on failure of the specified heirs the estate will revert to the grantor or his heirs. So out of a fee tail a life estate might be granted, and there would be a reversion, or out of a life estate there might be a reversion after an estate for years. The owner of an estate for years may grant to another a term for a shorter time than his own, and the balance may revert to him ; but, if he grants an estate of as long duration as his own, it will be an assignment, and there will be nothing to revert. 16 Reversions may exist, also, after estates created by op- eration of law; for instance, after an estate of dower. 17 So, too, 12 Holds. Hist. Eng. Law, III, 115. is Holds.- Hist, of Eng. Law, III, 115. 2 Pol. & M. 23, note 1. As to the early use of the word "remainder," in contrast with "reversion," see infra. i* Co. Litt. 13b; 1 Blk. Comm. 484; State Bank v. Indiana, 1 Blackf. (Ind.) 267, 12 Am. Dec. 224. 16 Heath v. Barmore, 50 N. Y. 302; Owen v. Smith, 31 Barb. (N. Y.) 641. But see People v. Trustees, 38 Cal. 166; 2 Morawetz, Corp. § 1032. 16 See, as to reversions generally, Cook v. Hammond, 4 Mason, 467, Fed. Ca's. No. 3,159; State (Morris Canal & Banking Co., Prosecutor) v. Brown, 27 N. J. Law, 13 ; McKelway v. Seymour, 29 N. J. Law, 321. ii See, ante, chapter VIII. 346 ESTATES IN EXPECTANCY (Ch. 15 there are Teversionary interests in equitable estates, as where there is a resulting trust to the grantor after an equitable life estate in another person. 18 In each case the estate which precedes the re- version is called a "particular- estate." Incidents of a Reversion . A reversion descends to one's heirs, and may be conveyed by deed, or given by will, the same as an estate in possession. 10 The transfer may be, also, a part of the reversion. 20 At common law, a reversion could not be conveyed by feoffment, however, unless the particular estate was less than a freehold ; 21 but at the present time reversions may be conveyed by any form of deed operating under the statute of uses. 22 One's interest in a reversion may also be levied upon and sold on execution. A reversion descends to the heirs of the reversioner; but at common law it was subject to the rule that no one could take a reversion as heir, unless he could trace his descent as heir of one last actually seised of the reversion. 23 ' If the reversion is transferred, the transferee becomes a new stock, from whom subsequent persons claiming the reversion as heirs must trace their descent. 2 * This rule has been abolished in many states by statute. 25 At common law, fealty and rent were the usual in- cidents of a reversion. 20 Thus, it was customary, when a feud was granted to one for life, to reserve rent or service for the benefit of him who had the reversion. 27 The feudal incident of fealty is, df course, unknown in this country ; 28 but the right of the reversioner, ' or landlord, to rent in case of a lease, that is, after an estate less than a freehold has been granted, is familiar, and has already been considered, as have, likewise, the rights and liabilities of the par- ties on covenants contained in the lease. 29 The rent incident to a reversion may, however, by special words, be granted away, re- serving merely the reversion, and the reversion may be granted away, reserving the rent, although a general grant of the reversion is Loring v. Eliot, 16 Gray (Mass.) 568 ; Read v. Stedman, 26 Beav. 495. is Fowler v. Griffin, 3 Sandf. (N. Y.) 385; Barber v. Brundage, 50 App. Div. 123, 63 N. Y. Supp. 347. 20 Doe v. Cole, 7 Barn. & C. 243.. 2i Co. Litt 48b. 22 See post 23 2 Blk. Comm. 209 ; Miller v. Miller, 10 Mete. (Mass.) 393 ; Cook v. Ham- mond, 4 Mason, 467, Fed. Cas. No. 3,159. 24 2 Washb. Real Prop. (5th Ed.) 803 ; West v. Williams, 15 Ark. 6S2. 2sPrescott v. Carr, 29 N. H. 453, 61 Am. Dec. 652; Doe v. Roe, 2 Har. (Del.) 103, 29 Am. Dec. 336; Cook v. Hammond, 4 Mason, 467, Fed. Cas. No. 3,159. 26 2 Blk. Comm. 176; 4 Kent, Comm. 355. « Id. 28 4 Kent, Comm. 355. *» Ante, chapter X. § 140) FUTUBE ESTATES 347 carries the rent with it, as incident thereto. 80 Accordingly, the dev- isee of a reversionary interest is entitled to the rents belonging to it.* 1 Rights and Liabilities of the Reversioner The reversioner may bring action for any injury done to the in- heritance, 82 and he has also his equitable remedies to protect his rights. 83 During the term, however, of the tenant of the particular estate, the reversioner has no right of possession, and may be held li- able for trespass. 8 * The disseisin of the tenant does not, -however, of itself, affect the reversioner, because he has no immediate right . of entry, and the statute of limitation under such disseisin does not begin to run until the reversioner becomes entitled to possession upon the termination of the preceding estate. 85 Merger When both the particular estate and the reversion are united in the same person, they will merge. 88 This is true, whether the es- tates are freehold or leasehold, 87 provided the estate in reversion is as large as the preceding estate. 88 A particular estate for years consisting of a longer term will merge in a shorter reversion, and the former estate will be destroyed, leaving only the shorter term, 89 and any term of years will merge in an estate for life. 40 By the statute de donis, estates in fee, tail were exempted from the doctrine of merger, and one may have, as separate rights, an estate tail and a reversion in fee. 41 so Burden v. Thayer, 3 Mete. (Mass.) 76, 37 Am. Dec. 117; Kimball v. Pike, 18 N. H. 419; York v. Jones, 2 N. H. 454; Johnston v. Smith, 3 Pen. & W. (Pa.) 496, 24 Am. Dec. 339; 2 Blk. Comm. 176; 4 Kent, Comm. 356. si Lewis v. Wilkins, 62 N. C. 303. aa Randall v. Cleaveland, 6 Conn. 328; Ashley v. Ashley, 4 Gray (Mass.) 197; Lane v. Thompson, 43 N. H. 320; Brown v. Bowen, 30 N. Y. 519, 86 Am. Dec. 406. 8 3 Simmons v. McKay, 5 Bush (Ky.) 25. »* Lane v. Thompson, 43 N. H. 320 ; Anderson v. Nesmith, 7 N. H. 167. »b Tilson v. Thompson, 10 Pick. (Mass.) 359 ; Wallingford v. Hearl, 15 Mass. 471 ; Jackson ex dem. Hardenbergh v. Schoonmaker, 4 Johns. (N. Y. 390. 86 2 Washb. Real Prop. (5th Ed.) 806. 87 See Martin v. Tobin, 123 Mass. 85. ssBoykin v. Ancrum, 28 S. C. 486, 6 S. E. 305, 13 Am. St. Rep. 698; 4 Kent, Comm. 401. 8» Hughes v. Robotham, Cro. Eliz. 302 ; Stephens v. Bridges, 6 Madd. 66 ; Washb. Real Prop. (6th Ed.) 458. *o 3 Preston, Conv. 220. *i Holcomb v. Lake, 24 N. J. Law, 686 ; Roe v. Baldwere, 5 T. R. 104, 2 Rev. Rep. 550; 2 Blk/ Comm. 177. 348 ESTATES IN EXPECTANCY (Ch. 15 Possibilities of Reverter As has been seen, a reversion may exist after any particular es- tate less than a fee. Where, however, a fee is granted, and a right of entry reserved for the breach of a condition, no reversion exists.* 2 There is only what is called a quasi reversion, or a possibility of reverter. 43 The same is true of a qualified fee. It may exist for- ever, or it may revert to the grantor. This possibility, however, arising in the case of conditional and qualified fees, is not an inter- est in the land; it is a mere contingency. At common law, there was nothing remaining in the grantor that could be conveyed, al- though it is held, in modern times, that in equity, or by the doc- trine of estoppel, a possibility of reverter may be transferred.**' Contrary to the English rule,* 6 it is generally held in this country, however, that a possibility of reverter is a vested right, and that the rule against perpetuities does not apply to it. At common law, be- fore the statute de donis (1285), there was only a possibility of re- verter upon a conveyance in fee conditional; the possibility de- pending upon the failure of heirs of the body of the grantee.* 8 After the passing of that statute, however, and fees conditional became changed into estates tail, a reversion was created by operation of law.*' SAME— AT COMMON LAW (REMAINDERS) 141. The only future estates or interests possible under the com- mon law are remainders. A remainder is a remnant of an estate in land, depending upon a preceding particular estate, created by the same instru- ment, and limited to arise immediately on the termina- tion of the preceding estate, but not in abridgment of it. Remainders are either: (a) Vested; or (b) Contingent. «2 4 Kent, Comm. 353; Hopper v. Barnes, 113 Oal 636, 45 Pac. 874; Carney v. Kain, 40 W. Va. T58, 23 S. E. 650. 4s Slegel v. Lauer, 148 Pa. 236, 23 Atl. 996, 15 L. R. A. 547 ; Nlcoll v. Kail- road Co., 12 N. Y. 121 ; PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property. «* Slegel v. Lauer, 148 Pa. St. 236, 23 Atl. 996, 15. L. R. A. 547; Scheetz v. Fitzwater, 5 Pa. 126. Contra, Nicoll v. Railroad Co., 12 N. Y. 126. « Minor, Institutes, § 672. «« See, ante, chapter VI. *i 2 Washb. Real Prop. (5th Ed.) 801. §§ 141-149) FUTUBE ESTATES — AT OMMON LAW 349 Estates in Futuro Future estates have previously been defined *• as estates limited to commence in possession in the future, either without the inter- vention of a precedent estate, or upon the termination of a precedent estate created at the same time. 48 This latter class' of future es- tates are called "remainders." B0 They are, moreover,, the only kind of future estates possible under the common law, 61 and, as before stated, they constitute, with reversions, the two common-law forms of estates in expectancy. 02 At common law there was a rule that no limitation of an estate was v^lid which would put the freehold in abeyance ; or, as it was otherwise expressed, a freehold could not be created to commence in futuro. 68 This was due to the technical doctrine that there must always be some one seised of the freehold." This rule did not ap- ply, as has been seen, 011 to the creation of chattel interests, that is, of leaseholds, because for them no seisin was required; the only thing transferred to the tenant being the possession. And there is the further reason that a leasehold to begin in the future is p. con- tract to create an estate for years, which is executed by the lessee taking possession. It was possible, however, at common law, .to create remainders, because, although they were future estates, their creation did not put the freehold in abeyance, since the seisin could be delivered to the tenant of a particular life estate; such livery inuring to the benefit of those who took in remainder. 66 Hence arose the v rule that the particular estate which precedes a remainder must be a freehold. - By statute, however, in many states, freeholds may now be limited to commence in futuro, with or without a pre- ceding, estate, 67 »and freeholds in futuro may be created by convey- ances not operating at common law ; that is, by conveyances operat- ing under the statute of uses or the statute of wills. Such future es- tates are known as springing and shifting uses and executory devises. « Supra. *» L'Etourneau v. Henquenet, 89 Mich. 428, 50 N. W. 1077, 28 Am. St. Rep. 310 ; Dana v. Murray, 122 N. Y. 604, 26 N. E. 21 ; Moore t. Littel, 41 N. Y. 66. eo Id. si Buckler v. Hardy, Cro. Eliz. 585 (1597). 62 Holds. Hist. Eng. Law, III, 114. ea Buckler v. Hardy, Cro. Eliz. 585; Barwick's Case, 5 Co. Rep. 93b, 94b; Freeman v. West, 2 Wils. 265 ; 2 Blk. Comm. 165 ; 1 Preston on Estates, 217, 219, 253. 6* See Seisin, ante, Ch. IV. 66 See Creation of Estates for Years, ante. 6« Gray, Rule against Perpetuities, § 8; 1 Leake, Digest of Law of Property In Land, 33, 227 ; 4 Kent, Comm. 234. , 6T l stim. Am. St Law, § 1421. 350 ESTATES IN EXPECTANCY (Ch. 15 They take effect without a particular estate to support them, or in derogation of such an estate. Remainders, however, cannot exist in either of such cases. If limitations of future estates are valid as re- mainders, they will be so construed; 08 and if a limitation takes effect as a remainder, it cannot subsequently operate as a springing of shifting use, or an executory devise, when it has failed as a remain- der. 09 Origin of Future Estates in Remainder As already defined, a remainder is a remnant (not necessarily "the remnant,"' since there may be successive remainders, 60 and there may also be' a reversion after a remainder) of an* estate in land, depending upon a particular preceding estate, created at the same time, and by the same instrument, and limited to arise im- mediately on the determination of that estate, but not in derogation (i. e., abridgment) of it. 61 Historically, however, the word "remain- der" did not originally signify a residue of an estate, or, in other words, did not convey any notion of a remnant of an estate left over after a particular estate had been subtracted. In early times, the word "revertit" signified what would happen if a lease for life ex- pired. The land "returns" (reverts) to the grantor. 62 In contrast with the word "revertit," the word "remanet" was used, and this signified that the land, instead of returning, would "remain away" from the grantor, or would "remain to" or "continue for" some oth- er designated person- In time, however, these future interests came to be regarded as "estates," and the terms "reversion" and "re- mainder" were applied to the expectant interests themselves, and have so been used in this sense for several centuries. 63 Essential Characteristics From the definition of a remainder above given, it will be noted that it differs from a reversion, in that the residue of the estate re- is 8 Hawley v. Northampton, 8 Mass. 3, 5 Am. Dec. 66; Parker v. Parker, 5 Mete. (Mass.) 134; Stehman v. Stehman, 1 Watts (Pa.) 466; Manderson v. Lukens, 23 Pa. 31, 62 Am. Dec. 312; Doe v. Selby, 2 Barn. & C. 926; Hasker v. Sutton, 1 Bing. 500. bo Manderson v. Lukens, 23 Pa. 31, 62 Am. Dec. 312; Crozier v. Bray, 39 Hun, 121 ; Doe v._Howell, 10 Barn. & 0. '191 ; Purefoy v. Rogers, 2 Saund. 380. But see Doe v. Roach, 5 Maule & S. 482. 80 Infra. «i Co. Litt. 143a ; 4 Kent, Comm. 197 ; Achorn v. Jackson, 86 Me. 215, 29 Atl. 989; Wood v. Griffin, 46 N. H. 230; Bennett v. Garlock, 10 Hun (N. T.) 328; HOBSON v. HUXTABLB, 79 Neb. 349, 116 N. W. '278, Burdick Cas. Beal Property. «2 Supra. 63 See 2 Pol. & M. 21; Holds. Hist Eng. Law, III, 114; Challis, Real Prop: 73, note. §§ 141-149) FUTUKE ESTATES — AT COMMON LAW 351 maining after the particular estate does not, as in the case of a re- version, go back to the grantor or his heirs, but is limited over to a third person. 64 Remainders, moreover, are always created by ex- press limitation, and can never arise by operation of law. 66 A re- mainder must always be created by the same instrument as the particular estate which precedes it. 66 This is, in effect, an assign- ment^ the reversion at the time of the creation of the particular estate. But, if the reversion is assigned at a subsequent time, it is still called a reversion, and not a remainder. A remainder must always be so limited as to take effect at once on the termination of the particular estate on which it depends, 67 although it is held that a child in ventre sa mere at the termination of the preceding estate is capable of taking a remainder which vests then. 68 A re- mainder must not take effect in derogation of the particular estate on which it depends ; that is, the vesting of the remainder must not -cut short the preceding estate. 68 Such a limitation can take effect only as a shifting use or a shifting devise. 70 There may, however* be a remainder after an estate on limitation ; 71 that is, when an es- tate is given to determine absolutely on the happening of an event, a valid remainder may be limited to begin on the termination of that estate. For example, an estate may be given to A. and his heirs until B. returns from Rome, and then the remainder given to C. This would be valid, since the remainder does not cut short the prior estate. If, however, the limitation were to A. and his heirs, but, if B. returns from Rome, then to C, the estate could not take effect as a remainder, since the preceding estate, being one on condi- tion, is cut short by the event on which it is attempted to cause the re- mainder to vest. 72 Any estate as to quantity may be created in re- mainder ; that is, a fee, fee tail, life estate, or estate for years. In limiting such estates, the technical words to be used are the same as w,hen creating estates in possession. 78 A remainder may also be «* Booth v. Terrell, 16 Ga. 20; Phelps v. Phelps, 17 Md. 120. «» See Dennett v. Dennett, 40 N. H. 498. ee 2 Washb. Real Prop. (6th Ed.) § 1526. 67 Hennessy v. Patterson, 85 N. Y. 91; Doe ex dem. Poor v. Considine, 6 Wall. 458, 474, 18 L. Ed. 869. 68 See Burdet v. Hopegood, 1 P. Wms. 486. e»2 Washb. Real Prop. (5th Ed.) 601. In New York, Michigan, and some, other states contingent remainders are not bad because they may defeat the preceding estate. 1 Stim. "Am. St. Law, § 14260. And see Gillespie v. Allison, 115 N. C. 542, 20 S. E. 627. to Infra. »i See Estates on Limitation, ante. 12 See PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property. is Phelps v. Phelps, 17 Md. 120, 134; Nelson v. Russell, 135 N. Y. 137, 31 352 ESTATES IN EXPECTANCY ' (Ch. 15 , created out of an equitable estate; 74 the term "equitable remain- der" being sometimes applied to such an interest. 76 The Particular Estate From the very nature of a remainder, there must be a preceding particular estate less than a fee." Remainders, as before stated, cannot be created to begin in futuro," and the particular estate and the remainder, the one in possession and the other in expect- ancy, are regarded as parts of only one estate. 78 Thus, where there is an estate to A. for life, with remainder to B. in fee, B.'s remainder in fee passes from the grantor at the same time that seisin is de- livered to A. of his life estate in possession. 79 At common law, the particular estate must be less than a fee simple, 80 since there can be no remainder after the whole estate is disposed of, 81 and this rule applies equally to a fee conditional, 82 or to a base or qualified fee. 83 The particular estate' may, however, be a fee tail, 8 * or, as is gen- erally the case, an estate for life. 89 A mere tenancy at will or by N. E. 1008; Livingston v. Greene, 52 N. X. 118; Jones v. Swearingen, 42 S. C. 58, 19 S. E. 947 ; Doren v. Gillnm, 136 Ind. 134, 35 N. E. 1101. r* Scofield v. Alcott, 120 111. 362, 11 N. E. 351. "Challis, Real Prop. Ill; Mallory v. Mallory, 72 Conn. 494, 45 Atl. 164; Clarkson v. Pell, 17 R. I. 646, 24 AG. 110; Hawkins v. Bohling, 168 111. 214, 48 N. E. 94. 7« Hudson v. Wadsworth, 8 Conn. 348; Outland v. Bowen, 115 Ind. 150, 17 N. E. 281, 7 Am. St. Rep. 420; 2 Bit. Comm. 165. 7 7 Doe ex dem. Poor v. Considine, 6 Wall. 458, 474, 18 L. Ed. 869; Brown v. Lawrence, 3 Cush. (Mass.) 390, 398; Wilkes v. Lion, 2 Cow. (N. X.) 333. And see IN RE KENTON, 17 R. I. 149, 20 Atl. 294, Burdick Cas. Real Prop- erty. 7 8 Bush v. Bush, 5 Del. Ch. 144; 2 Blk. Comm. 164; 4 Kent, Cqmm. 198.. 7» 2 Blk. Comm. 167. soHorton v. Sledge, 29 Ala. 478; Macumber v. Bradley, 28 Conn. 445; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584. si2 Blk. Comm. 164; 4 Kent, Comm. 199; Outland v. Bowen, 115 Ind. 150, 17 N. B. 281, 7 Am'. St. Rep. 420; Say ward v. Say ward, 7 Me. 210, 22 Am. Dec. 191; IN RE KENXON, 17 R. I. 149, 20 Atl. 294, Burdick Cas. Real Property. 82 Outland v. Bowen, supra; Bedon v. Bedon, 2 Bailey (S. C.) 231; Deas v. Horry, 2 Hill, Eq. (S. C.) 244. as SULLIVAN v. GARESCHE, 229 Mo. 496, 129 S. W. 949, Burdick Cas. Real Property. And see Outland v. Bowen, supra. As to the effect of stat- utes, and also as to "Alternate Remainders," see infra. si Hall v. Priest, 6 Gray (Mass.) 18; Wilkes v. Lion, 2 Cow. (N. X.) 333; Taylor v. Taylor, 63 Pa. 481, 3 Am. Rep. 565 ; Driver v. Edgar, 1 Comp. 379. ss Litt. 215; Co. Litt. 143a; Fearne, Cont.' Rem. 3, Butler's note, c. 1; Taylor v. Taylor, 63 Pa. 481, 3 Am. Rep. 565; Dorr v. Johnson, 170 Mass. 540, 49 N. E. 919. A particular estate pur autre vie will support a remainder. IN RE KENYON, 17 R. I. 149, 20 Atl. 294, Burdick Cas. Real Property. §§ 141-149) FUTURE ESTATES — AT COMMON LAW 353 sufferance, being too precarious, is not such' a particular estate as will support a remainder, 86 and while there may be a so-called re- mainder after ah estate for years, 87 yet such a limitation is not technically a remainder, since it takes effect at once, subject merely to the termination of the lease. 88 Where a so-called remainder in freehold was limited on an estate for years, it was necessary; at common law, that the lessee for years should have livery of seisin in order to take the freehold from the grantor, not for the sake of the estate for years, but in order that the livery made to the tenant in possession might relate and inure to the one in remainder, since the estate for years and the remainder in freehold were, but one es- tate in law. 89 The particular estate which is required to support a remainder cannot be created by operation of law. For instance, an heir, in assigning dower, cannot limit a remainder to begin on the termination of the widow's life estate. 90 As a general rule, there can be no remainder where there can be no reversion, 91 although there may be reversion where there can be no remainder. 142. ACCELERATION OF REMAINDERS— A remainder may be accelerated where the time for its vesting in possession is shortened by an earlier termination of the particular es- tate, or where the particular estate does not take effect. If the particular estate on which a remainder is predicated never takes effect, as, for example, where the designated life tenant is le- gally incapable of taking, 92 or where he refuses to accept, 93 or where a devisee for life dies before the testator and the remainderman survives him, 94 the remainder, if vested, takes effect at once. This is known as the acceleration of remainders. 95 In the case, how- se 2 Blk. Comm. 166. 8 7 Frazer v. Frazer, 74 S. W. 259, 24 Ky. Law Rep. 2517. So stated' in PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property. as Challis, Real Prop. 77; 1. Leake, Land Law, 320; Tiffany, Real Prop. § 119. »»2 Blk. Comm. 167. »o Cook v. Hammond, 4 Mason, 467, Fed.. Cas. No. 3,159. »i See 2 Washb. Real Prop. (5th Ed.) 586. ' 02 See Blatchford v. Newberry, 99 111. 11; Fox v. Rumery, 68 Me. 121; Jull T. Jacobs, 3 Ch. Div. 703, 35 L. T. Rep. N. S. 153. 83 Fox v. Rumery, supra; Randall v. Randall, 85 Md. 430, 37 Atl. 209; Parker v. Ross, 69 N. H. 213, 45 Atl. 576 ; Adams v. Gillespie, 55 N. C. 244. 84 Mercer v. Hopkins, 88 Md. 292, 41 Atl. 156; Taylor v. Wendell, 4 Bradf. Sur. (N. Y.) 324. »6 Darcus v. Crump, 6 B. Mon. (Ky.) 363; Macknet's Ex'rs v. Macknet, 24 N. J. Eq. 277 ; Yeaton v. Roberts, 28 N. H. 459. But see Blatchford v. New- berry, 99 III. 11. Bubd.Rbai Peop. — 23 354 ESTATES IN EXPECTANCY (Ch. 15 ever, of contingent remainders, 98 which depend upon the happening of some designated contingency, the shortening or the failure oi the preceding estate does not work an acceleration. 97 143. SUCCESSIVE REMAINDERS— One remainder may be lim- ited to take effect after another, until the fee is exhausted. Such limitations are called "successive remainders." One remainder may be limited to take effect after another, and so on until the fee is exhausted. 98 For example, there may be an es- tate given to A. for life, with remainder to B. for life, with remainder to C. for life ; and, if no further disposition of the estate be made on the death of C, the estate will revert to the grantor or his heirs. Successive remainders must, however, like other remainders, take effect immediately after each other. 99 144. CROSS-REMAINDERS— Remainders after two or more par- ticular estates in different persons, which upon the ter- mination of any one of the preceding estates go over to the survivor of the particular tenants, are called "cross-re- mainders." Where a particular estate is given to two or more persons as ten- ants in common, or particular estates in various parcels of the same land or in different lands are given to different persons in severalty, and upon the termination of the interest of any one of them his share is to remain over tq the rest, the remainders so limited over are called "cross-remainders." * Thus if black acre is given to A. and B., in common, for life, remainder in fee to the survivor, "or a devise of black acre is made to A., and white acre to B., in tail, and if either dies without issue, the survivor to take, in either case A. »« Infra. »7 Purdy v. Hoyt, 92 N. Y. 446. See, also, Dale v. Bartley, 58 Ind. 101; Augustus v. Seabolt, 3 Mete. (Ky.) 155. »»2 Washb. Real Prop. (5th Ed.) 589. o» Whitcomb v. Taylor, 122 Mass. 243. 1 1 Preston, Estates, 94 ; 2 Blk. Comm. 381 ; 4 Kent, Comm. 201 ; Challis, Real Prop. 241; 2 Washburn, Real Property, 233; Hall v. Priest, 6 Gray (Mass.) 18; Allen v. Tr. of Ashley School Fund, 102 Mass. 265; Hawley v. Northampton, 8 Mass. 3, 5 Am. Dec. 66; Seabrook v. Mikell, 1 Cheves Eq. (S. C.) 80. But see, for cases where the whole does not go to the last sur- vivor, McGee v. Hall, 26 S. C. 179, lS.fi 711; Reynolds v. Crispin (Pa.) 11 Atl. 236. §§ 141-149) FUTURE ESTATES — AT COMMON LAW 355 and B. have cross-remainders by express terms. 2 If, however, the devise of the different lands had been to A. and B., and remainder over, on the death of both of, them, to C, A. and B. have cross- remainders by implication. 8 Cross-remainders in a deed can be giv- en only by express limitation, and can never be implied ; * but they may be raised by implication in a will." It was said, in former times, that cross-remainders could never arise between more than two, owing to the great confusion it would create. 6 This doctrine is, however, exploded. Whether or not cross-remainders are im- plied in a will is a question of the testator's intention, upon a con- struction of the whole instrument. 7 While cross-remaindermen re- semble in some respects joint tenants, yet it is not necessary that the four unities which are required in joint tenancies be present in the case of cross-remainders. 145. ALTERNATE REMAINDERS— When remainders are so limited after a particular estate that only one of them can ever take effect, they are called "alternate remainders." Although a remainder cannot be limited after a fee simple, yet, even at common law, two or more concurrent fees by way of re- mainder, one as an alternative for the other, can be limited. 8 One remainder is not limited upon or after the other, since only one of them can ever take effect. 9 For example, land may be given to A. for life, and, if he have issue male, then to such issue male and his heirs forever, but, if he die without issue male, then to B. and his * 4 Kent, Comm. 201. » Baldrick v. White, 2 Bailey (S. C.) 442 ; Wall v. Maguire, 24 Pa. 248. * Bohon v. Bohon, 78 Ky. 408 ; Cole v. Levingston, 1 Ventr. 224 ; Doe v. Dorvell, 5 Term B. 521; Doe v. Wainwright, 5 Term B. 427; Doe v. Wors- ley, 1 East, 416. « Purdy v. Hayt, 92 N. T. 446 ; Turner v. Fowler, 10 Watts, 325 ; Atherton -v. Pye, 4 Term B. 710. Cf. Doe v. Cooper, 1 East,, 229. In a will they may arise by implication. Watson v. Foxon, 2 East, 36; Doe t. Webb, 1 Taunt. 234 ; Ashley v. Ashley, 6 Sim. 358. 6 Cro. Jac. 655 ; Shaw v. Weigh, 2 Jon. 82. i Taafe v. Conmee, 10 H. L. C. 64, 11 Eng. Beprint, 949. » Bichardson v. Noyes, 2 Mass. 56, 3 Am. Dec. 24 ; Micheau v. Crawford, 8 N. J. Law 90; Allison v. Allison, 101 Va. 537, 44 S. E. 904, 63 L. B. A. 920. And see Deinill v. Beid, 71 Md. 175, 17 AH. 1014; Taylor v. Taylor, 63 Pa. 481, 3 Am. Bep. 565 ; Beckley v. Leffingwell, 57 Conn. 163, 17 Atl. 766 ; Mer- cantile Bank of New York v. Ballard's Assignee, 83 Ky. 481, 4 Am. St. Bep. 160. / 9 Woollen v. Frick, 38 Md. 428. See. also, Doe v. Selby, 2 B. & C. 926, 28 Bev. Bep. 585. 356 ESTATES IN EXPECTANCY (Ch. 15 heirs forever. 10 In this case only one remainder could take effect, and the pther would be absolutely void ; or, in other words, an al- ternative remainder in fee can be limited to take effect in place of another, but not subsequently to it. Limitations of this character are called "alternate remainders in fee," "substitutional fees," and "remainders on a contingency with a double aspect." ll Alternate remainders are necessarily both contingent. 1 * 146. VESTED REMAINDERS — A vested remainder is one where neither the right to the possession of the estate upon the determination of the preceding estate, nor the person en- titled, is uncertain; the only uncertainty is the time of en- joyment. Remainders are either vested or contingent. 18 Vested remain- ders are sometimes termed executed, 14 and contingent remainders executory, 15 A vested remainder is a remainder limited to a cer- tain person and on a certain event, so as to possess a present ca- pacity to take effect in possession, should the possession become vacant. 18 The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in re- mainder determines, universally distinguishes a vested remainder from one that is contingent. 17 In other words, a vested remainder is a present right to the future enjoyment of an estate, and will vest in possession as soon as the particular estate determines. 18 No amount of uncertainty as to enjoyment makes a remainder con- io Terrell v. Reeves, 103 Ala. 264, 16 South. 54; Loddington v. Kime, 1 Salk. 224 ; Goodright v. Dunham, Doug. 264 ; Smith v. Horlock, 7 Taunt. 129. nFearne, Cont Rem. 373; Whlte^ldes v. Cooper, 115 N. C. 570, 20 S. E. 295. 12 Luddington v. Kime, 1 Ld. Raym. 203. is Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, 3LB.A. 690; Dana v. Murray, 122 N. Y. 604, 26 N. E. 21 ; Palmer v. Dunham, 52 Hun, 468, 6 N. Y. Supp. 46. i* Hudson v. Wadsworth, 8 Conn. 348, 359; Richardson v. Richardson, 152 N. O. 705, 68 S. E. 217. is Hudson v. Wadsworth, supra. is Lantz v. Massie, 99 Va. 709, 40 S. E. 50 ; Wallace v. Minor, 86 Va. 550, 10 S. E. 423 ; Chipps v. Hall, 23 W. Va. 504, 515. ifFearne, Cont. Rem. p. 216; Parkhurst v. Smith, Willis, 337. is Croxall v. Shererd, 5 Wall. 268, 288, 18 L. Ed. 572; Ha ward v. Peavey, 128 111. 430, 21 N. E. 503, 15 Am. St. Rep: 120; Marvin v. Ledwith, 111 111. 144 ; Hill v. Bacon, 106 Mass. 578 ; In re Young, 145 N. Y. 535, 40 N. E. 226 ; Crews' Adm'r y. Hatcher, 91 Va. 37S, 21 S. E. 811. §§ 141-149) FUTURE ESTATES 1 — AT COMMON LAW 357 tingent. For instance, a vested remainder may be given to A. for life, to take effect after an estate tail in B. In this case, if A. is a person in being, the remainder is vested, although he will probably never enjoy his estate. 19 A contingent remainder becomes vested upon the happening of the event which makes it contingent, and it is then in all respects like other vested remainders. 20 It is the uncer- tainty of the right of enjoyment, and not the uncertainty of its ac- tual enjoyment, which renders a remainder contingent. 21 The law favors vested estates, and in doubtful cases remainders are con- strued as vested, rather than as contingent. 22 Accordingly, in con- struing wills, for the purpose of determining whether a remainder is vested or contingent, while the court will seek to give effect to the intention of the testator, 23 yet, where there is any ambiguity, the remainder will be construed as vested." Remainders to a Class A remainder to a class of persons, as, for example, to children, grandchildren, brothers and sisters, is usually a vested remainder, in case of a conveyance, provided there are members of the desig- nated class living at the time of the delivery of the deed ; and, in case of a will, the remainder will ordinarily vest in those who are in existence at the time of the testator's death, subject, in either case, to its opening and letting in those afterwards born, or other- wise coming within the. designated class, provided they are born, or otherwise come in,, before the particular estate determines, or before the period of distribution. 25 In case of a devise, if there is i» Kemp v. Bradford, 61 Md. 330; Gourley v. Woodbury, 42 Vt 395. 20 Doe ex dem. Poor v. Considine, 6 Wall. 458, 18 L. Ed. 869; Wendell v. Crandall, 1 N. Y. 491; Van Giesen v. White, 53 N. J. Eq. 1, 30 Atl. 331 ; -Doe v. Perryn, 3 Term R. 484. 214 Kent, Comm. 203, note. 22 Scofield v. Olcott, 120 111. 362, 11 N. E. 351; Wedekind v. Hallenberg, 88 Ky. 114, 10 S. W. 368 ; Anthony v. Anthony, 55 Conn. 256, 11 Atl. 45 ; Weath- erhead v. Stoddard, ,58 Vt. 623, 5 Atl. 517, 56 Am. Rep. 573 ; Dlngley v. Ding- ley, 5 Mass. 535 ; Moore v. Lyons, 25- Wend. (N. T.) 119 ; IN RE KENYON, 17 R. I. 149, 20 Atl. 294, Burdick Cas. Real Property. 23 Freeman v. Freeman, 141 N. 0. 97, 53 S. E. 620; In re Moran's Will, 118 Wis. 177, 96 N. W. 367. 24Mettler v. Warner, 243 111. 600, 90 N. E. 1099, 134 Am. St. Rep.' 388; Conger v. Lowe, 124 Ind. 368, 24 N. E. 889, 9 L. R. A. 165 ; Gray v. Whitte- more, 192 Mass. 367, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246; Canfield v. Fallon, 43 App. Div. 561, 57 N. Y. Supp. 149; McCall v. McCall, 161 Pa. 412, 29 Atl. 63. 2o Mitchell v. Mitchell, 73 Conn. 303, 47 Atl. 325; Thomas v. Thomas, 247 111. 543, 93 N. E. 344, 139 Am. St. Rep. 347 ; Minot v. Doggett, 190 Mass. 435, 77 N. E. 629 ; Johnson v. Valentine, 4 Sandf. (N. Y.) 36 ; Irvine's Estate, 31 Pa. Super. Ct. 614. 358 ESTATES IN EXPECTANCY (Ch. 15 no member of the class in existence at the time of the testator's death, -the remainder is contingent for the time being, 20 although it will become vested as soon as a member of the designated class .comes into existence. 21 In any case, however, although members of the class may be in existence, at the time of the delivery of a deed, or of a testator's death, the remainder will be contingent if the in- strument shows that the vesting in any of the class is to depend upon some future event, 28 or that the members are to be ascertained at some future time. 29 For instance, where a remainder is given "to children of A. living at his death," the remainder is contingent, and does not vest until A.'s death, because up to that time the persons who are to take cannot be ascertained. 30 Where a remainder is given "to the children of A.," a living person, and becomes vested by the fact that A. has children, a conveyance by the children in whom the re- mainder had vested would not bar the rights of other children of A. subsequently born, not even if the conveyance was made by a guardian of the children under an order of court. 81 Destruction of Vested Remainders A vested remainder may be subject to be defeated by a. contin- gency ; that is, a vested remainder may be limited as an estate on condition or on limitation. 32 Vested remainders, moreover, are de- stroyed by merger, 33 and, when limited after estates tail, may be barred in the same way as the entail. 34 In no other case, however, will acts of the tenant of the particular estate defeat a vested re- mainder. 36 28 Anthracite Sav. Bank v. Lees, 176 Pa. 402, 35 Atl. 197; In re Fetrow's Estate, 58 Pa. 424 ; Cooper v. Hepburn, 15 Grat. (Va.) 551. 27 Phillips v. Johnson, 14 B. Mon. (Ky.) 172; Wootten v. Shelton, 6 N. C. 188;- Anthracite Sav. Bank v. Lees, 176 Pa. St 402, 35 Atl. 197; Cooper v. Hepburn, supra. 2 8 Smith v. Rice, 130 Mass. 441. 2 9 Thomas v. Thomas, 247 111. 543, 93 N. E. 344, 139 Am. St. Rep. 347; Crapo v. Price, 190 Mass. 317, 76 N. E. 1043 ; Schwencke v. Haffner, 22 Misc. Rep. 293, 50 N. T. Supp. 165 ; Forrest v. Porch, 100 Tenn. 391, 45 S. W. 676. so Dwight v. Eastman, 62 Vt. 398, 20 Atl. 594; Kansas City Land Co. v. Hill, 87 Tenn. 589, 11 S. W. 797, 5 L. R. A. 45 ; Chambers v. Chambers, 139 Ind. Ill, 38 N. E. 334 ; Crews' Adm'r v. Hatcher, 91 Va. 378, 21 S. E. 811. si Graham v. Houghtalin, 30 N. J. Law, 552. »2 Roome v. Phillips, 24 N. T. 463; Doe v. Moore, 14 East, 601. 8 3 See Merger, ante. There is no merger, however, when the particular estate is equitable and the remainder legal. IN RE KENXON, 17 R. I. 149, 20 Atl. 294, Burdick Cas. Real Property. 34 Gray, Perp. § 111. sb Kohn v. Harris, 130 111. 525, 22 N. E. 587; Whitney v. Salter, 36 Minn. 103, 30 N. W. 755, 1 Am. St. Rep. 656 ; Allen v. De Groodt, 98 Mo. 159, 11 S. W. 240, 14 Am. St Rep. 626 ; Varney v. Stevens, 22 Me. 331. • But see Fidelity Ins. Trust & Safe-Deposit Co. v. Dietz, 132 Pa. 36, 18 Atl. 1090. §§ 141-149) FUTURE ESTATES 1 — AT COMMON LAW 359 147. CONTINGENT REMAINDERS— A contingent remainder is one where there is an uncertainty either as to the right to the estate, or as to the person entitled, or as to both. A contingent remainder depends on an event or condition which may never happen or be performed, or which may not happen or be performed till after the termination of the preceding estate. The early English law required that, on a grant by deed of a particular estate and remainder, the remainder must immediately vest in the grantee of that estate. 36 In other words, the remainder came to be allowed at common law only by relaxation of this early rule. 37 It was not, however, till the times of Henry VI (1421-1471) that any relaxation of the rule was allowed ; the earliest decision upon the subject appearing to be that a remainder to an heir of a living person was valid if such living person died before the pre- ceding estate terminated. 38 This did not mean, of course, that all contingent remainders were valid, and, as a matter of history, it was only by slow steps that contingent remainders were generally rec- ognized — in fact, not before the latter part of the sixteenth cen- tury. 39 In the case of a vested remainder, we have seen that the seisin was conceived of as being between the particular tenant and the remainderman — the former being seised of the land; the latter, of the remainder. A contingent remainder was not conceived of, however, as being invested with any part of the seisin, and there are various quaint notions expressed by the early writers upon the subject as to where the seisin was, in case of a contingent remain- der, pending its vesting upon the happening of the contingent event. Thus, we are told that it was "in the clouds," or "in the bosom of the law." 40 It should be clear, however, that the seisin, so far as not disposed of by the creation of the particular estate, remains in the grantor as a reversion, although he has created a contingent remainder; such reversion to be divested and to take effect, by op- eration of law, as a vested remainder upon the happening of the contingency upon which the contingent remainder depended. 41 The general definition of a remainder, already given, 42 namely, «« Litt § 721 ; Co. Litt. 378a. »t Laws of England, vol. 24, § 416, n. »s Holds., Hist of English Law, III, 117; Y. B. 9 Hen. VI, Trin. pi. 19. «» Holds., Hist, of Eng. Law, III, .117; Gray, Perp. (2d Ed.) 111. «o Co. Litt. 342b; 1 P. Wms. 515, 516. *i Town of Shapleigh v. Pilsbury, 1 Me. 271. Cf. Wilson v. Denig, 166 Pa. 29, 30 Atl. 1025. See Egerton v. Massey, 3 C. B. N. S. 338, 91 E. C. L. 338. « Supra. 360 ESTATES IN EXPECTANCY . . (Ch. 15 that it is a remnant of an estate in land, depending upon a preced- ing particular estate, created by the same instrument, and limited to arise immediately upon the termination of the preceding estate, but not in abridgment of it, applies equally to contingent remain- ders as well as to vested remainders. Thus, a contingent remain- der must vest at, or before, the termination of the particular estate which precedes it, although a child en ventre sa mere is regarded as in being, so that a remainder may vest in it; 4S and the contingency on which a remainder is to vest must in no case be in derogation of the preceding estate. 44 A contingent remainder will be void, how- ever, if it is made to depend on an unlawful condition, or one against public policy. 45 For example, a remainder to illegitimate children, to be subsequently conceived, is void. 49 With these exceptions, a remainder may be made to depend on any contingency which the ingenuity of the person creating the remainder may devise. Distinguished from Vested Remainders It is either the uncertainty of the happening of the event upon which the remainder depends, or the uncertainty of the person who is to take, that makes a remainder contingent. 47 In contingent re- mainders, as distinguished from vested, there is an uncertainty as to vesting of the right or title, as well as to the vesting of the pos- session. 48 For a vested remainder there must be some certain, de- fined person, in esse and ascertained, who answers, the description of remainderman at some time during the continuance of the par- ticular estate, and not merely at its termination ; and the remainder must, of course, be capable of taking effect in possession immediate- ly on the termination of the preceding particular estate. 49 For ex- *s Eeeve v. Long, 3 Lev. 408 ; Doe v. Clarke, 2 H. Bl. 399 ; Blasson v. Blasson, 2 De Gex, J. & S. 665. So by statute in some states. 1 Stim. Am. St Law, § 1413. "PROPRIETORS OP CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 149, 63 Am. Dec. 725, Burdick Cas. Real Property; Green v. Hewitt, 97 111. 113, 37 Am. Rep. 102. But see Goodtitle v. Billington, 1 Doug. 753. "2 Washb. Real Prop. (5th Ed.) 629. A contingent remainder may be void for remoteness. See rule against perpetuities, chapter XVI, post. "Blodwell v. Edwards, Cro. Eliz. 509; Lomas v. Wright, 2 Mylne & K. 769. *i Shannon v. Bonham, 27 Ind. App.,369, 60 N. B. 951; SULLIVAN v. GARESCHE, 229 Mo. 496, 129 S. W. 949, Burdick Cas. Real Property. 48 Temple v. Scott, 143 111. 290, 32 N. E 366 ; L'Etourneau v. Henquenet, 89 Mich. 428, 50 N. W. 1077, 28 Am. St. Rep. 310 ; Loddington v. Kime, 1 Salk. 224 ; Goodright v. Dunham, Doug. 264. Where a devise is made to a woman, and, if she "die childless," remainder over, the remainder is contingent until her death. Furnish v. Rogers, 154 111. 569, 39 N. E. 989. *o Blanchard v. Blanchard, 1 Allen (Mass.) 223. And see Thomson v. Hill, 87 Hun, 111, 33 N. T. Supp. 810. §§ 141-149) FUTURE ESTATES — AT COMMON LAW 361 ample, a limitation to A. for life, with remainder to the eldest son of B., becomes vested as soon as B. has a son ; but, if the remainder had. been to the eldest, son of B. living at A.'s death, the remainder would have been contingent, and could not possibly vest until A.'s death, which in this case is also a termination of a particular es- tate. This remainder is contingent, because the person who is to take can be ascertained only at the termination of the particular estate ; yet, if B. has a son, the remainder is capable of vesting in possession at any time the particular estate may be determined. 60 As said by Fearne : B1 "It is not the uncertainty of ever taking ef- fect in possession that makes a remainder contingent, for to that every remainder for life or in tail is. and must be liable; as the remainder- man may die, or die without issue, before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in re- mainder determines, universally distinguishes a vested remainder from a contingent." 62 Classes of Contingent Remainders As already stated, a contingent remainder depends either upon the uncertainty of the happening of some event, or upon the un- certainty of the remainderman. 63 This classification is made, in fact, by Blackstone, 54 who says that contingent remainders may be limited (1) to a dubious and uncertain person; or (2) upon a du- bious and uncertain event. Mr. Fearne, however, presents a more analytical division; 55 and his classification of contingent remainders has been generally ac- cepted. 56 He divides contingent remainders into four classes. 57 They may be summed up as follows : bo And see Kichardson v. Wheatland, 7 Mete. (Mass.) 169; Olney v. Hull, 21 Pick. (Mass.) 311; Thomson v. Ludlngton, 104 Mass. 193; Colby v. Dun- can, 139 Mass. 398, 1 N. E. 744 ; In re Callahan's Estate, 13 Phlla. (Pa.) 230 ; Craige's Appeal, 126 Pa. 223, 17 Atl. 585. But see Smith v. West, 103 111. 332. si Charles Fearne (pronounced Fttrn), 1742^1794, author of celebrated and masterly work on Contingent Remainders. 62 Fearne, Contingent Remainders, 216. os Shannon v. Bonham, 27 Ind. App. 369, 60 N. E. 95L 54 2 Blk. Comm. 169. so Fearne, Contingent Remainders. 6 6 Laws of England, vol. 24, § 416, n. 67 Fearne, Contingent Remainders, 5. For statement and Illustration of Fearne's four classes of contingent remainders, see SULLIVAN v. GAR- ESCHE, 229 Mo. 496, 505, 129 S. W. 949, Burdlck Cas. Real Property; Rich- ardson v. Richardson, 152 N. C. 705, 68 S. E. 217. 362 ESTATES IN EXPECTANCY (Ch. 15 (1) Where the Remainder Depends Entirely upon a Contingent De- termination of the- Preceding Estate Itself This is illustrated by a limitation to A. till a specified event, which may or may not happen, and, on its happening, then to B; in fee. 68 In such a case, A. has by implication a life v estate determinable upon the happening of the event, while B.'s remainder is contingent on the happening oLthe same event during the life of A. The remain- der cannot become vested during the continuance of the particular estate, since it vests, if at allj only upon the determination of the preceding estate, and then immediately. It will also be noted that it does not cut short the preceding estate, and thus complies with the requirement of a good remainder. If, however, there is a limi- tation to A. for life, with a condition that if a certain event happen the estate shall go to B., the interest of B. is not a remainder, since it abridges the preceding estate. Such a limitation would not be good at common law, but it would be good as a shifting use, or, in a will, as an executory devise. 59 Such a limitation is also called a conditional limitation. 60 (2). Where the Contingency is Independent of the Determination of the Preceding Estate Thus, suppose a limitation to A. for life, remainder to B. for life, but, if B. die before A., remainder to C. for life. The remainder to C. is contingent upon the death of B. before A., but this Contingen- cy is independent of the determination of A.'s life estate. If B. survives A., the remainder to C. can never take effect. 81 x (S) Where the Contingency is Certain to Happen, but may Not Hap- pen till After the Determination of the Particular Estate This third class of Mr. Fearne's contingent remainders is illus- trated as follows : A limitation to A. for life, and after the death of B., to C. in fee. Although the death of B. is certain, yet it, may not happen till after the death of A., thus making the remainder to C. a contingent one, since, should B. outlive the life estate in A., the remainder to C. would not vest, owing to the fact that a re- mainder must arise immediately on the termination of the preceding estate. 62 6 8 Boraston's Case (1587) 3 Co. Eep. 19a. Laws of England, vol. 24, § 416. e» See infra. «o Laws of England, vol. 24, § 416, n. ; Egerton v. Brounlow, 4 H. L. Cas. 1, 186. ei Laws of England, vol. 24, § 416, n. oa See Definition of Remainder. §§ 141-149) FUTURE ESTATES — AT COMMON LAW 363 (4) Where the Person to Whom the Limitation is Made is Not Ascer- tained or is Not in Being Thus, where there is a limitation to A. for life, remainder to the heirs of B., the remainder is contingent, since there can be no heirs of B. till his death, for "no one is the heir of the living." 6S The Preceding Estate Where a contingent remainder is an estate of freehold, it must have some vested estate of freehold to precede and support it. 64 There must be some one to take the seisin, and for this a freehold is necessary. 66 For example, if land be given to A. for 25 years, if he lives so long, with remainder after his death to B., the remainder' to B. is contingent, since A. may not die until after the expiration of the 25 years, and therefore is invalid, because there is no free- hold to support it, and the remainder will not be ready to vest in possession on the expiration of the term. 68 If, however, the term of years given to A. is so long — for instance, 80 years — that there is no probability of A.'s living' until the expiration of the time, it is held that the remainder is good, because A. really has an estate for life. 67 Where, however, a contingent remainder is merely an es- tate for years, it is not necessary that the preceding estate should be a freehold. 68 In any case, however, the preceding estate must con- tinue until the contingent remainder vests; otherwise, the remain- der can never take effect. In other words, every remainder, whether vested or contingent, must vest either during the preceding estate or else immediately upon its termination. 69 «s Co. Litt. 378a ; Laws of England, vol. 24, •§ 416. And see statement of this fourth class of contingent remainders in SULLIVAN v. GARESCHE, 229 Mo. 496, 129 S. W. 949, Burdick Cas. Real Property. o* Laws of England, vol. 24, § 417, note. «6 Doe ex dem. Poor v. Considine, 6 Wall. 458, 474, 18 L. Ed. 869. And see supra. In some states this has been changed by statute. 1 Stim. Am. St. Law, § 1424. oa Beverly v. Beverly, 2 Vern. 131. 87 Fearne, Cont. Rem. p. 20 et seq. ; 2 Washb. Real Prop. (5th Ed.) 615 ; Weale v. I,ower, Poll. 55, 67 ; Napper v. Sanders, Hut. 118. * "Apparently the length of the term should depend upon the age of the particular tenant. Thus, if he were forty at the date of the conveyance, a sixty years term should suffice. But this is not so, and the term must be at least eighty years, whatever the age of the life." Laws of Eng. vol. 24, § 412, note, citing Bever- ly v. Beverly, 2 Vern. 131. 88 Fearne, Contingent Remainders, p. 285; Laws of Eng. vol. 24, § 417. e» Doe ex dem. Poor v. Considine, 6 Wall. 458, 18 L. Ed. 869; Irvine v. New- lin, 63 Miss. 192; Festing v. Allen, 12 Mees. & W. 279; Price v. Hall, L. R. 5 Eq. 399; Astley v. Micklethwait, 15 Ch. Div. 59; Holmes v. Prescott, 33 Law J. Ch. 264 ; Rhodes v. Whitehead, 2 Drew. & S. 532 ; Fearne, Contingent Remainders, pp. 307, 310. 364 ESTATES IN EXPECTANCY (Ch. 15 148. SAME— DESTRUCTION OF CONTINGENT REMAIN- DERS — 1. At common law, contingent remainders may be destroyed: (a) By the expiration of the particular estate before the re- mainder vests. (b) By the destruction of the particular estate. (c) By merger of the particular estate and the next vested re- mainder. (d) By forfeiture of the particular estate. The destruction of contingent remainders may be prevented by limitations "to trustees to preserve contingent remain- ders." In many states the liability of contingent remainders to destruc- tion has been removed by statute. In the absence of statutes to the contrary, a contingent re- mainder is liable to be destroyed, not only by its not being able to take effect in possession upon the natural determination of the preceding estate, 70 but also by any means which prematurely de- feat or determine such estate, as, for example, forfeiture, surren- der, or merger. 71 This is not the case, however, when the legal fee is outstanding, and the particular estate and remainder are' both equitable. 72 At common law, the tenant of the particular estate, by surrendering his title to the one having the next vested remainder, could cause his particular estate to be merged, and thus cut out all contingent remainders intervening between his estate and the vested remainder. 73 Merger occurs, and thus destroys intervening contingent remainders, whenever the particular estate and the next vested remainder are united in the same person by act of law or of the parties. 74 This is not the case, however, when the two estates are so limited by the instrument creating them. 76 At common law, if the tenant of the particular estate to Laws of Eng. vol. 24, § 419 (g). See BAILS v. DAVIS, 241 111. 536, 89 N. E. 706, 29 L. R. A. (N. S.) 937, Burdick Cas. Real Property. 1 1 Fearne, Contingent Remainders, 316 et seq. ; Laws of Eng. vol. 24, § 419, (h) (i) ; Doe v. Gatacre, 5 Blng. N. C. 609; Archer's Case, 1 Coke, 66b. As to the effect of a disseisin of the tenant of the particular estate, see 1 Stim. Am. St. iLaw, § 1403b. 72 Abbiss v. Burney, 17 Ch. Div. 211; Berry v. Berry, 7 Ch. Div. 657; Mar- shall v. Gingell, 21 Ch. Div. 790 ; Astley v. Micklethwait, 15 Ch. Div. 59. And see Laws of Eng. vol. 24, § 419, (j) (k). 7 s See Fisher v. Edington, 12 Lea (Tenn.) 189. 7* Jordan v. McClure, 85 Pa. 495; Craig v. Warner, 5 Mackey (D. O.) 460, 60 Am. Rep. 381. 7 Dennett v. Dennett, 40 N. H. 498. See, however, Egerton v. Massey, 3 O. B. (N. S.) 338 ; Bennett v. Morris, 5 Rawle (Pa.) 9. §§ 141-149) FUTURE ESTATES — AT COMMON LAW 365 asserted a greater right or title than he had, as by making a tor- tious feoffment, it caused a forfeiture of his estate, and thus de- stroyed any contingent remainders depending thereon. 78 To have this effect, however, there must have been an entry by the one entitled to the next vested remainder, or by the reversioner. 77 The tortious effect of a feoffment no longer obtains. 78 Trustees to Preserve Contingent Remainders The liability of contingent remainders to destruction by the pre- mature determination of the preceding estate was avoided by the insertion in the 'instrument of limitations to trustees to preserve contingent remainders. An estate in remainder was vested in the trustees for the life of the tenant for life, to commence when his estate determined. 78 Thus, after the limitation of a particular es- tate, for instance, an estate to A. for life, the remainder was given to trustees to preserve contingent remainders during the life of A., and then other remainders over as in the usual limitations. In these cases, if by any means A.'s life estate was determined before his death, the trustees would hold the estate until his death, when the other remainders would take effect as though A. had not lost his estate. The trustees were held to take vested remainders under these limitations ; otherwise, their estate would have been destroy- ed, like other contingent remainders. 80 Instead, however, bf giving the trustees a vested remainder, the estate might be conveyed directly to a trustee and his heirs, in trust for the tenant of the particular estate, and upon the further trust to preserve the con- tingent remainder. 81 In such cases, the statute of uses does not execute the trust; the legal estate remaining in the trustees. 82 If the trustees should do anything to destroy their own estate, there- by defeating the contingent remainder depending thereon, they would ordinarily be guilty of a breach of trust, and liable for the damage suffered by the remaindermen. 83 to Archer's Case, 1 Coke, 66b ; Doe v. Howell, 10 Barn. & C. 191. it Williams v. Angell, 7 R. I. 145. 7 8 Ante. ■ T9 Fearne, Contingent Remainders, p. 325 et seq. ; 2 Blk. Comm. 171. so Smith v. Packhurst, 3 Atk. 135. si Vanderheyden v. Crandall, 2 Denio (N. T.) 9; Moody v. Walters, 16 Ves. Jr. 283, 33 Eng. Reprint, 992. ■ 82 Vanderheyden v. Crandall, 2 Denio (N. T.) 9. ■83 2 Blk. Comm. 171; Else v. Osborn, 1 P. Wms. 387, 24 Eng. Reprint, 437; Blscoe v. Perkins, 1 Ves. & B. 485, 35 Eng. Reprint, 188; Winnington v. Foley, 1 P. Wms: 536, 24 Eng. Reprint, 505. For a full account of trustees- to preserve contingent remainders, see Webster v. Cooper, 14 How. 488, 14 I>. Ed. 510. 366 ESTATES IN EXPECTANCY (Ch. 15 Statutory Modifications of Remainders By express statutes in England, and in most of our states, it is now provided that contingent remainders shall not be destroyed by acts of the tenant of the particular estate, nor by the termination of the particular estate bef6re the remainder vests. 84 Such statutes do away, of course, with the necessity of trustees to preserve con- tingent remainders. The English statute upon contingent re- mainders is very sweeping. 86 This statute provides that every contingent remainder created by any instrument executed after August 2, 1877, or by any will or codicil revived or republished by any will or codicil executed after that date, in tepements or heredit- aments of any tenure, which would have been valid as a springing or shifting use or executory devise or other limitation, had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect as a spring- ing or shifting use or executory devise or other executory limita- tion. 86 There are other statutes, in our various states, upon the subject of remainders, which must be taken into consideration in any par- ticular jurisdiction, since these statutes have modified many of the common-law rules. Some of these statutes, by their very definition of "remainders," have departed from the common-law definition, and include, in some of them, executory interests ; 87 that is, future estates, which do not depend upon a preceding estate. 88 More- over, other statutes permit the limitation of a fee upon a fee, ' also the limitation of a "remainder" on a contingency which may operate to abridge the preceding estate. 89 It should also be fur- ther stated* that, even in the absence of statutes, the common-law requirements relating to remainders are not so important as they once were, since, under the statute of uses and the statute of wills, future estates, although not good as remainders, may, neverthe- less, take effect as future uses or executory devises. 90 84 1 SOm. Am. St. Law, §§ 1403, 1426. And see Ritchie v. Ritchie, 171 Mass. 504, 51 N. E. 132; L'Etourneau v. Henquenet, 89 Mich. 428, 50 N. W. 1077, 28 Am. St. Rep. 310. 8 5 Contingent Remainders Act, 1877 (40 & 41 Vict. c. 33). «6 Laws of Eng. vol. 24, § 421. As to springing or shifting uses and ex- ecutory devises, see infra. 87 See infra. as Consult the various statutes. See, e. g., Code Ga. 1895, § 3098. And see laws of New York, Michigan, Wisconsin and Minnesota. ss> See 1 Stim. St, L. § 1421 et seq. no See infra. §§ 141-149) FUTURE ESTATES — AT COMMON LAW 3C7 149. RULE IN SHELLEY'S CASE— Where, under a conveyance or devise, the ancestor takes an estate of freehold, and in the same instrument an estate is limited by way of remain- der, either mediately or immediately, to his heirs or to his heirs in tail, the word "heirs" is a word of limitation and not of purchase, and the ancestor takes a fee simple or in tail, as the case may be. In connection with the subject of remainders, it is important to consider a famous rule in the English common law, known as "the rule in Shelley's Case." Probably no other principle or rule in our law of real property has provoked more discussion, elicited more learning, caused more litigation, aroused more antagonism, and, with it all, been more vehemently assailed and, at the same time, more zealously defended, than this one. 91 It has been bitter- ly opposed in many quarters, and has been expressly repealed by statute, in a number of our states, on the ground that it overrides the expressed intention of the grantor or testator. The difficul- ties and technicalities with which it is said to abound arise main- ly, however, from the lack of harmony on the part of the courts in applying the rule, and also, frequently, from the complicated cases themselves in which the rule is invoked. As to the state- ment of what the rule is, no difficulty is presented. It may be shortly expressed in the words above set forth. 92 By "a word of limitation," as used in the rule, is meant a word that limits or defines an estate; that is, measures the duration, the bounds, or the limits of the estate the ancestor takes. 88 By a word of "pur- 01 Ware v. Richardson, 3 Md. 505, 56 Am. Dec. 762; Spader v. Powers, 56 Hun (N. Y.) 153, 9 N. T. Supp. 39 ; Settle v. Settle, 10 Humph. (Tenn.) 474 ; Doyle v. Andis, 127 Iowa, 36, 102 N. W. 177, 69 L. R. A. 953, 4 Ann. Cas. 18 ; Gross v. Sheeler, 7 Houst. (Del.) 280, 31 Atl. 812. And see HARDAGE v. STROOPE, 58 Ark. 303, 24 S. W. 490, Burdick Cas. Real Property. 82 See, also, the following cases: Kleppner v. Laverty, 70 Pa. 70; Carson v. Funs, 131 Pa. 256, 18 Atl. 1017 ; Butler v. Huestis, 68 111. 594, 18 Am. Rep. ' 589 ; Hageman v. Hageman, 129 111. 164, 21 N. E. 814 ; Leathers v. Gray, 101 N. C. 162, 7 S. E. 657, 9 Am. St. Rep. 30; Waters v. Lyon, 141 Ind. 170, 40 N. E. 662 ; Taney v. Fahnley, 126 Ind. 88, 25 N. E. 882 ; Langley v. Baldwin, 1 Eq. Cas. Abr. 185. Cf. Turman v. White, 14 B. Mon. (Ky.) 560; Pratt v. Leadbetter, 38 Me. 9; Hamilton v. Wentworth, 58 Me. 101; HARDAGE v. STROOPE, 58 Ark. 303, 24 S. W. 490, Burdick Cas. Real Property; BAILS v. DAVIS, 241 111. 536, 89 N. E. 706, 29 L. R A. (N. S.) 937, Burdick Cas. Real Property. 93 "The word 'limitation' has two well-defined and distinct meanings. In ■ the one, the primary meaning signifies the marking out of the bounds or limits of an estate created. In the other, it signifies simply the creation of an estate." Starnes v. Hill, 112 N. C. 1, 16 S. E. 1011, 22 L. R. A. 598. 368 ESTATES IN EXPECTANCY (Ch. 15 chase" is meant the manner, in contradistinction from "descent," in which an estate is acquired by designated persons. All deriva- tive titles are said to be either "titles by purchase" or "titles by descent." 9 * The word "purchase" in its popular sense means the acquisition of property by bargain and sale for some valuable con- sideration; but purchase, 96 .in its legal sense, includes every method of coming to an estate other than by inheritance, including a gift or a devise. 88 ■ With this explanation, it will be readily seen that the rule in Shelley's Case means that the word "heirs" defines the quantum, or the character, of the estate given to the grantee or devisee, 97 and that the heirs of the grantee or devisee do not take any estate at all by purchase, that is, by the conveyance or by the will, but if they do take eventually, upon the death of the ancestor, they will take only by descent. In an ordinary case, when a life estate is given to one person, and in the same instru- ment a remainder is given to another person, the particular estate and the remainder are separate estates, and each person, the par- ticular tenant and the remainderman, takes by "purchase," as distinguished from, descent. It is only where the persons described as taking the "remainder" are generally described as the "heirs" of the taker of the particular estate that such a descriptive term is construed as a word of limitation of the estate of the first taker. 98 The estate for life limited to the ancestor may be followed im- mediately by a remainder to his heirs, or another remainder may be limited between the life estate and the remainder to the heirs. In this latter case, the remainder to the heirs is said to be limited "mediately," and the ancestor has two separate estates, a life estate in possession, and an estate of inheritance in remainder. 99 Shelley's Case The celebrated case from which the rule receives its name was the case of Wolfe v. Shelley. 1 The case involved a number of points not necessary for our present consideration, but, for our immediate purpose, it may be briefly stated as follows: Edward Shelley and his wife were seised of certain lands in special tail, with remainder ta the said Edward Shelley and his heirs male. Two sons, Henry and Richard, were born to Edward and his wife. »* See Title, post, chapter XXII. bs Lat., perquisitio. seLitt. § 12; 2 Blk. Comm. 201. 07 Fullagar v. Stockdale, 138 Mich. 363, 101 N. W. 576. »s Laws of Eng. vol. 24, § 422. »8 Laws of Eng. vol. 24, § 422 (v). 1 15S1, 1 Co. Rep. 93b. See HARDAGE v. STROOPE, 58 Ark. 303, 24 S. W. 490, Burdick Cas. Real Property. §§ 141-149) FUTUKB ESTATES — AT COMMON LAW 369 Edward's wife died. Henry, the elder son, married, 'and died leav- ing his wife enceinte. Edward Shelley died before the birth of his grandchild, and after Edward's death Richard, the younger son, entered as heir. Soon after, Henry Shelley, the grandson of Ed- ward, was born. Richard leased the lands to Wolfe. Henry Shel- ley, the grandson, entered and ejected Wolfe. Thereupon Wolfe, claiming under Richard, sues to recover from Henry. The question was. whether or not Henry Shelley, the grandson of Edward and posthumous son of Henry, Edward's older son, was entitled to the property. In holding that Henry was entitled to the property, the court reaffirmed a rule of long standing, namely, that where a freehold is given to an ancestor for life, and in the same gift an estate is limited to his heirs in fee or in tail, the word "heirs" is a word of limitation; that is, the "heirs" take by descent, and not by purchase. This distinction was all-important in the Shelley Case, since if the heir (the oldest male heir, according to the Eng- lish rule of primogenture) did take by purchase, then Henry Shel- ley, the grandson, could not take, since in order to take by pur- chase it would have been necessary that he should have been in esse — that is, born — at the time of his grandfather's death. For the purpose of title by "purchase" a child in ventre sa mere is not considered in esse. 2 However, for the purposes of descent, such an unborn child is in esse, 3 and, consequently, Henry, the grandson, as oldest son of Henry, Edward's older son, would take before his uncle, Richard, Edward's younger son. Origin of the Rule , The "rule" laid down in Shelley's Case did not originate, how- ever, in that case. As early as Bracton's day, it was settled that a grant to a man and his heirs gave nothing to the heirs.* The word "heirs" was merely a word of limitation. Further, it is clear that a grant "to A. and to his heirs," and a grant "to A. for life, and after his decease to his heirs," according to the primitive force and effect of the expressions, were manifestly identical. They were still construed as identical, notwithstanding the change in the position and interest of the heir consequent upon the enlarged power of alienation in the ancestor. The limitation "to the heirs," in both cases, ceased to confer directly any estate upon the persons answering to that designation, and was referred to the estate of the ancestor, whichi though expressed to be, in the first place, for 2 4 Kent, Comm. 248 ; ChaUis, Real Prop. 140, 155. s Challis, Real Prop. 139, 155. * Buacton's Note Book Case, 1054 ; 2 Pol. & M. 307 ; Holds., Hist of Eng. Law, III, 92. Btjed.Reai. Prop. — 24 370 ESTATES IN EXPECTANCY (Ch. 15 life, it enlarged to an estate of inheritance, so that the heir took only by descent. The rule, according to Holdsworth, 6 preceded Shelley's Case by more than two centuries. Legal opinion in- clined to it during the reign of Edward II. 8 "It is. laid down clearly in 1365, 7 and was made the basis of a decision in 1367. 8 The cases show that it was based partly upon the policy of ren- dering land alienable, partly upon the fact that any other interpre- tation might have defrauded the lord of his relief" 9 — that is, of the fruits of his seigniory, or the lord's rights to the rents and services attached to land which would still be his in case of descent. 10 Application of the Rule The rule in Shelley's' Case applies to leaseholds, as well as to freeholds. 11 The limitations must be all in one instrument, 12 but for this purpose a resulting use in the first taker is suf- ficient. 13 A will and a codicil are regarded as the same in- strument, however, for the purpose of the rule. 1 * The estate lim- ited to the ancestor must be an estate of freehold; but. the estate need not be expressly limited, since it may arise by implication. 16 The rule applies, although the remainder to the heirs has further words of limitations added to it, provided the course of descent under the superadded words is npt inconsistent with that defined by the previous words. 16 Thus, if the word "heirs" is added to the first word "heirs," as where the limitation is to A 1 , for life, remain- der to his heirs and to their heirs forever, the second word "heirs" is of no effect, and A. takes a fee simple. 17 The rule operates upon o Holds. Hist of Brig. Law, III, 93. •I. B. 16 Edw. Ill (R. S.) II, 212, 214. Sir William Blackstone, in his opinion in Perrin v. Blake, 1 W. Bl. 672, cites a case in 18 Edw. II. See, also, HARDAGE v. STROOPE, 58 Ark. 303, 24 S. W. 490,'Burdick Cas. Real Property. i T. B. 38 Edw. Ill, Mich. pi. 26. s Y. B. 40 Edw. Ill, Hil. pi. 18. » Holds., Hist, of Eng. Law, III, 94. . io Van Grutten v. Poxwell, F. C. 658, 668 (1897) ; ChrysUe v. Phyfe, 19 N. T. 344. ii Ogden's Appeal, 70 Pa. 501; Hughes v. Nicklas, 70 Md. 484, 17 Atl. 398, 14 Am. St. Rep., 377; Seeger v. Leakin, 76 Md. 500, 25 Atl. 862; Home v. Lyeth, 4 Har. & J. (Md.) 431. 12 Adams v. Guerard, 29 Ga. 651, 76 Am. Dec. 624; Moor v. Parker, 4 Mod. 316 ; Laws of England, vol. 24, § 229 (r). is Pibus v. Mitford, 1 Vent 372. 1* Haynes v. Foorde, 2 W. Bl. 698. io Laws of Eng. vol. 24, § 423 (h) (i). i« Laws of Eng. vol. 24, § 423 (n). 17 Mills v. Seward, 1 Johns. & H. 733. §§ 141-149) FUTURE ESTATES — AT COMMON LAW 371 limitations of equitable estates, as well as of legal; but both the remainder and the particular estate must be of the same kind. 1 * In a devise, the word "children," "sons," or "issue" may be equiva- lent to the word "heirs"; and, if such appears to be the intention of the testator,»the rule will operate the same as if the word "heirs" had been used. 19 On the other hand, the word "heirs" may be used as a word of purchase, where it designates certain ascertained per- sons, as children. In these cases the rule does not apply, and the person designated as heir takes a remainder. 20 Nor is the rule applicable when the remainder is limited to the heirs of another than the person who takes the particular estate; for instance, where a life estate is given to A., with a remainder to the heirs of A. and B., his wife. 21 An express direction in the deed or will, containing a limitation of a form within the rule in Shelley's Case, that the rule shall not operate, will be ineffectual, and the one who takes the preceding estate may convey a fee simple, or a fee tail; as the case may be, without regard to the heirs. 22 The heirs will take the estate by inheritance only in case the ancestor does not dispose of it in his lifetime, or by will. In some states the rule in Shelley's Case has been abolished by statute, 28 especial- ly in the case of wills, and the heirs take a contingent remainder, according to the form of the limitation. 24 In England, however, and in a majority of our states, the rule is still in force. is Ward v. Butler, 239 111. 462, 88 N. B. 189, 29 L. R. A. (N. S.) 942 ; Baker v. Scott, 62 111. 86 ; Croxall v. Shererd, 5 Wall. 268, 18 L. Ed. 572 ; Ward v. Amory, 1 Curt. 419, Fed. Cas. No. 17,146; Balle v. Coleman, 2 Vera. 670; Garth v. Baldwin, 2 Ves. Sr. 646; BAILS v. DAVIS, 241 111. 536, 89 N. B. 706, 29 L. R. A. (N. S.) 937, Burdick Cas. Real Property. i» Jackson v. Jackson, 127 Ind. 346, 26 N. E. 897; Roe v. Grew, 2 Wils. 322; Doe v. Cooper, 1 East, 229. But see Adams v. Ross, 30 N. J. Law, 505, 82 Am. Dec. 237 ; Henderson v. Henderson, 64 Md. 185, 1 Atl. 72. zoRighter v. Forrester, 1 Bush (Ky.) 278; Mitchell v. Simpson, 88 Ky. 125, 10 S. W. 372; Papillon v. Voice, 2 P. Wms. 471; Jordan v. Adams, 9 C. B. (N. S.) 483; Cowell v. Hicks (N. J. Ch.) 30 Atl 1091. But see Jesson v. Wright, 2 Bligh, 1. 2i Shaw v. Robinson, 42 S. C. 342, 20 S. B. 161 ; Frogmorton v. Wharrey, 2 W. Bl. 728. Cf. Archer's Case, 1-Coke, 66b. And see BAILS v. DAVIS, 241 111. 536, 89 N. E. 706, 29 L. R. A. (N. S.) 937, Burdick Cas. Real Property. 22 Cf. Thong v. Bedford, 4 Maule & S. 362. But see Jenkins v. Jenkins, 96 N. C. 254, 2 S. E. 522 ; Fields v. Watson, 23 S. C. 42 ; Earnhart v. Earnhart, 127 Ind. 397, 26 N. E. 895, 22 Am. St. Rep. 652. 23 1 Stim. Am. St. Law, § 1406. 24 Richardson v. Wheatland, 7 Mete. (Mass.) 169; Moore v.,LIttel, 41 N. Y. 66; GODMAN v. SIMMONS, 113 Mo. 122, 20 S. W. 972, Burdick Cas. Real Property. k 372 ESTATES IN EXPECTANCY. (Ch. 15 SAME— ARISING UNDER THE STATUTE OF USES (FUTURE USES) 150. Future estates arising under the statute of uses are: (a) Uses taking effect as remainders. (b) Springing uses. (c) Shifting uses. Future Uses We have already seen, in connection with equitable estates," that long before the statute of uses 26 courts of equity made a distinction between a legal estate in land and the use in land. 27 This division of the title made it possible to create, in equity, fu- ture estates in land which could not be raised at common law. The only future estates, at common law, as we have seen, 28 are remainders, which require a .preceding estate, and which must arise without an abridgment of such preceding estate. Equity, however, never recognized such requirements, and future uses could be created which would spring into existence without any preceding estate, or .which would defeat or cut short a preceding estate. Thus, for example, land could be conveyed to B. for the use of C. to commence ten years hence, or the owner could retain the seisin and make a covenant to stand seised for the use of B. v in futuro; or, again, a grant could be made, for example, to the use of A. for life, and if B. shall marry before a specified date, then to the use of B. for life. Uses, however, can be limited to take effect in the future by way of remainder, and, if so, they come under the requirements of common-law remainders, namely, that they must have a preceding estate, that they arise upon its ter- mination, and not in abridgment of it, as, for example, a grant to the use of A. for life, remainder to B. for the use of C. This last class is sometimes called "future uses," in' distinction from the preceding classes, which are called springing and shifting uses ; but they are all "future" uses, in distinction from uses in posses- sion. ■» Consequently it is more accurate to say that future uses may be created by way of remainder, or by way of executory interests; the latter not being subject to the rules governing remainders. The statute of uses provided that the beneficiary of a use should have a legal estate in the land corresponding to as Ante, chapter XIV. « 27 Hen. VIII, c. 10 (1535). !7 This distinction started soon after the statute quia emptores. - 2 8 Supra. §§ 150-153) FUTURE USES 373 his equitable interest. 28 The statute did not put a stop to the cre- ation of uses, but merely converted uses into legal estates; that is, if the use was vested, the legal title was executed^ in the beneficia- ries,' and contingent uses were executed as soon as they became vested. In this way legal estates could be created which were impossible be- fore the statute, and the same ease and freedom with which such in- terests had been created in equity were now available for the creation of estates at law. 151. TAKING EFFECT AS REMAINDERS— Future uses hav- • ing preceding particular estates to support them may take effect as common-law remainders. Where a conveyance is made of the uses of the entire estate, by way of a preceding estate and remainder, each estate, if executed by the statute of uses, becomes a legal estate, and the remainder tp uses takes effect as a common-law remainder. Future uses, which take effect as remainders, are sometimes called "contingent uses." This is incorrect, however, since such uses may take effect as vested remainders, as well as contingent. 80 ' Remainders arising under the statute of uses have the same inci- dents as those at common law. 31 Such a use must have a preced- ing particular estate to support it, and must not take effect in derogation of that estate. If these requisites fail, the 1 limitation will take effect as a springing or shifting use. 82 Contingent uses by way of remainder may be defeated the same as contingent remainders. 33 For example, a grant to the use of A. for life, remainder to the use of the heirs of B., is a contingent remainder arising under the statute of uses, and, unless some statute other- wise provides, will be defeated in case A. dies before B. 3 * 20 Ante, chapter XIV. so Adams v. Terre-Tenants of Savage, 2 Salk. 679; Davies v. Speed, Id. 675 ; Southcote v. Stowell, 1 Mod. 238 ; Cole v. Sewell, 4 Dru. & War. 1 ; Gore v. Gore, 2 P. Wins. 28. si2 Washb. Real Prop. (5th Ed.) 663; Rogers v. Fire Co., 9 Wend. (N. Y.) 611; State v. Trask, 6 Vt. 355, 27 Am. Dec. 554. So they cannot be limited after an estate for years. Adams v. Savage, 2 Ld. Raym. 854 ; Raw- ley v. Holland, 22 Vin. Abr. 189, pi. 11. az Gore v. Gore, 2 P. Wms. 28; Davies v. Speed, 2 Salk. 675. sa See Davies v. Speed, 2 Salk. 675. 84 1 Sanders, Uses and Trusts (4th Ed.) p. 136 et seq. 374 ESTATES IN EXPECTANCY (Ch. 15 152. SPRINGING USES— Springing uses are future uses which take effect without any preceding estate to support them. When a future use, not limited by way of remainder, does not defeat a previous estate expressly limited by the same instrument,' it is called a "springing use." 3B It is otherwise defined as "a use, either vested or contingent, limited to arise without any preceding limitation." 36 It receives its name from the fact that it springs up as a separate and independent interest in lands, cutting short no preceding use. 37 A limitation to the use of B. and his heirs after the death of A., 38 or a limitation to A. in fee for the use of B. in fee after ten years, are examples of springing uses. .When there is a limitation of a springing use, there is also a resulting use in fee in the grantor, until the springing use takes effect, so that in reality the springing use operates on the preceding result- ing use in the grantor in the same way that a shifting' use does upon the particular estate which precedes it 38 A springing use may be contingent as well as vested. 40 153. SHIFTING USES— Shifting uses are future uses which take effect in derogation of a preceding estate. When a future use, not limited by way of remainder, defeats a previous estate expressly limited by the same instrument, it is called a "shifting use." " The use is said to shift from the first taker to the second. For this reason, shifting uses are also called "secondary uses." A limitation, for example, to the use of A. for life, and if B. shall marry 'before a specified date, then to the use asMcKee v. Marshall (Ky.) 5 S. W. 415; Wyman v. Brown, 50 Me. 139: Bgerton v. Brownlow, 4 H. L. Cas. 1, 205; Laws of England, vol. 24, § 505; Sugden's Gilbert on Uses and Trusts, p. 161. And see PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property. 3« Cornish, Uses, 91. »t Sugden's Gilbert on Uses and Trusts, p. 153. s s Jackson v. Dunsbagh, 1 Johns. Cas. (N. Y.) 92; Mutton's Case, 3 Dyer, 274. 39 Town of Shapleigh v. Pilsbury, 1 Me. 271; Nicolls v. Sheffield, 2 Brown, Ch. 215. *o Town of Shapleigh v. Pilsbury, 1 Me. 271. « Sugden's Gilbert on Uses and Trusts, pp. 153, 2S6 ; Fogarty v. Stack, 86 Tenn. 610, 8 S. W. 846 ; Battey v. Hopkins, 6 U. I. 443 ; Buckworth v. Thir- kell, 3 Bos. & P. 652, note; Mutton's Case, 3 Dyer, 274; Carwardine v. Car- wardine, 1 Eden, 28, 34; Egerton v. Brownlow, 4 H. L Cas. 1. And see PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mags.) 142, 63 Am. Dec. 725, Burdick_Cas. Real Property. § 154) EXECUTORY DEVISES 375 of B. for life, is an illustration of a shifting use. The estate which B. takes upon his marriage shifts from A. to B., and cuts off the preceding estate in A. By means of a shifting use, it is possible to limit a fee after a fee ; 42 thus, in the illustration already given, the uses may both be in fee simple, as, for example, to the use of A. and his heirs, and if B. shall marry before a specified date, then to the use of B. and his heirs. Strictly speaking, however, the second fee is not limited upon the first fee, but is in derogation' of the first. Springing uses, as we have seen, may be either vested or contingent; but shifting uses, since they do not wait for the reg- ular termination of the preceding estate, but defeat it, are all nec- essarily contingent. SAME— ARISING UNDER THE STATUTE OF WILLS (EXECUTORY DEVISES) 154. Executory devises are future estates created by devise under the statute of wills, which cannot take effect as remain- ders. Executory devises are sometimes said to be either springing or shifting. Prior to the establishment of tenure in England, under the feudal system, lands were devisable, but after that time until the time of Henry VIII they were not. However, during this interval, owing to the distinction made in equity between the legal estate in land and the use in land, as previously pointed out'in connection with future uses, 43 a man might by will dispose of the use or profits of the land, although he could not dispose of the land itself. 14 The statute of uses, however, which was enacted in 1535, pro- hibited this method of practically alienating by will the land itself under the guise of devising the uses and profits of the land. 45 This put a stop to "wills of uses," but the inconvenience produced was so great that it led, five years later (1540), to the enactment of the statute of wills. 48 By the very liberal provisions of this stat- ute, it was possible to create any future interest in realty which could be created by means of uses before the statute of uses ; and the constructions placed on such limitations by the courts did not follow the strict rules governing conveyances inter vivos. In fact, « Battey v. Hopkins, 6 R. I. 443. «<> Supra. 44 See Wright, Tenures, pp. 172, 173. *5 See Dig. Hist. Real Prop. (4th Ed.) 375. 46 32 Hen. VIII. c. 1. 376 ESTATES IN EXPECTANCY (Ch. 15 they were as liberal as equity had been with uses, and even more liberal, in time, owing to the efforts of the courts to carry out the intentions of testators. 47 These executory limitations arising under wills are called "executory devises." They do not take ef- fect at the testator's death, as in case of an ordinary devise,, but arise and vest upon some future event or contingency.* 8 They consist of such interests created by will as would be called spring- ing and shifting uses if created inter vivos by way of use. They are not future uses, however, since a future use limited in a will is not construed as an executory devise, but will amount to a legal estate under the operation of the statute of uses. Executory devises, on the contrary, despite their freedom from common-law rules, are, in effect, common-law estates. They are created only by will, 49 yet they are not remainders, since they require no preceding estate to support them; B0 or, in case there is a preceding estate, it is not nec- essary that they should vest upon the determination of it, B1 since they may vest in derogation of it. 02 They may, consequently, be limited after an estate in fee, 58 and they are not defeated or de- stroyed by the premature termination of a preceding estate. 54 Sub- ject to the restriction of the rule against prepetuities, 55 there may be, in executory devises, any number of intervening estates, and any number of contingencies. 56 *t Amiable v. Patch, 3 Pick. (Mass.) 360; Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18; Smith v. Kimbell, 153 111. 368, 38 N. E. 1029; Rupp v. Bberly, 79 Pa. 141 ; Wood v. Wood, 5 Paige (N. Y.) 596, 28 Am. Dec. 451 ; Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322. 4» Fearne, Contingent Remainders, 382 ; PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Bur- dick Cas. Real Property. *» St. Amour v. Rivard, 2 Mich. 294. oo Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Thompson's Lessee v. Hoop, 6 Ohio St. 480; Mangum v. Piester, 16 S. C. 316; RYAN v. MONA- GHAN, 99 Tenn. 338, 42 S. W. 144, Burdick Cas. Real Property. si St Amour v. Rivard, 2 Mich. 294; Thompson's Lessee v. Hoop, 6 Ohio St. 480. 62 Thompson v. Hoop, supra. 03 Bristol v. Atwater, 50 Conn. 402; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23 ; Mangum v. Piester, 16 S. C. 316 ; GLOVER v. CONDELL, 163 111. 566, 45 N E. 173, 35 L. R. A. 360, Burdick Cas. Real Property. 5* It should be remembered, however, that by the effect of statutes in many states, providing that contingent remainders shall not be defeated by the premature termination of preceding estates, the distinction between contin- gent remainders and executory devises has been practically abolished. See Statutory Modification of Remainders, ante. " See, post, chapter XVI. «« Miller v. Chittenden, 4 Iowa, 252 ; Lovett v. Lovett, 10 Phila. (Pa.) 537. § 154) EXECUTORY DEVISES 377 Illustrations Executory devises may be limited upon some -future event or contingency; 57 to uncertain persons, as to after-born children; 68 or after a fee, as a limitation over in case the first devisee dies without heirs, 09 or children, 80 or issue, 61 provided a definite and hot an indefinite failure is intended, since otherwise the limitation over would be too remote and violate the rule against perpetui- ties. 62 Executory devises may be also limited in case the first devisee dies before marriage, 63 or before attaining a certain age. 64 Springing or Shifting A will may create a future estate in the nature of a springing 65 or shifting use, 66 sometimes called a springing or shifting devise. 67 An executory devise takes effect as a springing devise when it has no preceding estate of freehold to support it, 68 or where there is an interval between the termination of a preceding estate and « Matter of Sanders, 4 Paige (N. Y.) 293; Morton v. Funk, 6 Pa. 483; Beard v. Rowan, 2 Fed. Cas. 1172, No. 1181 ; Hopkins v. Hopkins, 1 Atk. 581, 26 Eng. Reprint, 365. 68 Dunn v. Mobile Bank, 2 Ala. 152; White v. Rowland, 67 Ga. 546, 44 Am. Rep. 731; Flournoy v. Johnson, 7 B. Mon. (Ky.) 693; Shull v. Johnson, 55 N. C. 202. oo Smith v. Kimbell, 153 111. '368, 38 N. E. 1029; Jackson ex dem. Bowman v. Christman, 4 Wend. (N. Y.) 277; Turner v. Fowler, 10 Watts (Pa.) 325; Norris v Johnston, 17 Gratt. (Va.) 8. so Bristol v. Atwarter, 50 Conn. 402; Devecmon v. Shaw, 70 Md. 219, 16 Atl. 645; Hooper v. Bradbury, 133 Mass. 303; Sherman v. Sherman, 3 Barb. (N. Y.) 385. ei Fenby v. Johnson, 21 Md. 106;' Brightman v. Brightman, 100 Mass. 238; Schnitter v. McManaman, 85 Neb. 337, 123 N. W. 299, 27 L. R. A. (N. S.) 1047 ; Weller v. Weller, 28 Barb. (N. Y.) 588 ; Nicholson v. Bettle, 57 Pa. 384. 62 Robinson v. Bishop, 23 Ark. 378; Gilkie v. Marsh, 186 Mass. 336, 71 N. E. 703; Paterson v. Ellis, 11 Wend. (N. Y.) 259; .Vaughan v. Dickes, 20 Pa. 509. See, post, chapter XVI, for Rule against Perpetuities. 63 SULLIVAN v. GARESCHE, 229 Mo. 496, 129 S. W. 949, Burdick Cas. Real Property. 6 4 Johnson v. Buck, 220 111. 226, 77 N. E. 163; O'Day v. O'Day, 193 Mo. 62, 91 S. W. 929, 4 L. R. A. (N. S.) 922 ; Jackson v. Merrill, 6 Johns. (N. Y.) 185, 5 Am. Dec. 213 ; Wells v. Ritter, 3 Whart. (Pa.) 208. 65 Stuart v. Stuart, 18 W. Va. 675; Carwardine v. Carwardine, 1 Eden, 2S, 28 Eng. Reprint, 594. ee Carver v. Astor, 4 Pet. (U. S.) 1, 7 L. Ed. 761. ^ 67 See PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725 ; Burdick Cas. Real Property ; Stuart v. Stuart, 18 W. Va. 675. 6 8 Fearne, Contingent Remainders, p. 395. For example, a devise to A. in fee, to take effect one year after the testator's death. Clark v. Smith, 1 Lut. 793, 798. 378 ESTATES IN EXPECTANCY (Ch. 15 the vesting in possession of the executory interest. 69 Until the devise does take effect in possession, the title is in the heirs at law, 70 unless some statute provides that it shall pass, for the time being, to the personal representatives; that is, to the executors or administrators. When an executory devise is so limited that it does riot wait for the natural determination of a preceding estate, as- in case of a remainder, but takes effect upon the happening of some event which cuts short the preceding estate, it is a shifting devise. 71 Where, however, the preceding estate fails in some other way than by the happening of the event upon which a shifting devise is lim- ited, the land goes to the heirs, or residuary devisee. 72 A shifting devise may divest the preceding estate in part only, and in cases where the first taker is given a fee, with a shifting devise to an- other of a life estate, the question arises whether the devise will defeat the prior estate altogether, or only to the extent of the' life estate. The decision in all of these, cases must depend upon the intention of the testator. 78 Constructions Applying to Executory Devises Executory devises may -be created by way of direct gift, to the devisee, or through the medium of a declaration of uses. 7 * Re- mainders may, of course, be limited by a devise, 76 and one or more remainders may be followed by an executory devise; but there can be no remainder after an executory devise, since all such limitations are construed as executory devises also. They are, in fact, successive executory devises, like successive remainders. When, however, the first devise vests, all the others will vest as remainders, if they can. 78 Executory devises are presumed to be devises in prsesenti, rather than limitations of future estates, when- ever it is possible to so construe them, so that if they do not take , effect at the death of* the testator they will lapse. 77 But slight «• Fearne, Contingent Remainders, p. 400. As to A. for life, and after his death and one day to the oldest son of B. (1 Plowd. 25B). to Clarke v. Smith, 1 Lut. 793, 798 ; Bullock v. Stones, 2 Ves. Sr. 521. 7i Blackman v. Fysh, 3 Ch. 209, C. A, (1892). 72 Laws of Eng. vol. 24, § 430. 73 Gatenby v. Morgan, 1 Q. B. Div. 685; Jackson v. Noble, 2 Keen, 590. 7* Crerar v. Williams, 145 111. 625, 34 N. E. 467, 21 L. R. A. 454. 7 s Watson v. Smith,, 110 N. C. 6, 14 S. E. 640, 28 Am. St. Rep. 665; Nightin- gale v. Burrell, 15 Pick. (Mass.) 104 ; HaU v. Priest, 6 Gray (Mass.) 18 ; Man- derson v. Lukens, 23 Pa. 31, 62 Am. Dec. 312. 'o Brownsword v. Edwards, 2 Ves. Sr. 243; Doe v. Howell, 10 Barn. & C. 191 ; Pay's Case, Cro. Eliz. 878. 77 Scott y. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18; Kouvalinka v. Geibel, 40 N. J. Eq. 443, 3 Atl. 260 ; Jones v. Webb, 5 Del. Ch. 132. § 155) INCIDENTS OP FUTUKE ESTATE8 379 circumstances- are, in the later cases, held sufficient to rebut this presumption. 78 Like other executory limitations, executory devises may be either vested or contingent, and a destruction of the first devise does not defeat subsequent ones. 78 An estate limited to take effect after a fee tail is always construed as a remainder, if possi- ble, rather than as an executory devise. 80 A limitation, however, in a will, which would be good as a, remainder at .the time the will was executed, but, on account of an event occurring before the death of the testator, becomes impossible as a remainder, may take effect as an executory devise. 81 On the other hand, an estate which has become operative as springing or shifting use or executory devise will be turned into a remainder at any time when that becomes possible. 82 SAME— INCIDENTS OF FUTURE ESTATES 155. The rights and duties of the owners of future estates are cor- relative with the rights and duties of the tenants of the particular preceding estates. Most of the questions that deal with the rights and liabilities of the owners of future estates arise out of their relations to, and "Amiable v. Patch, 3 Pick. (Mass.) 360; Rupp v. Eberly, 79 Pa. 141; Darcus v. Crump, 6 B. Mem. (Ky.) 363 ; Napier v. Howard, 3 Ga. 192. 7» Moffat's Ex'rs v. Strong, 10 Johns. (N. T.) 12; Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 5 Am. St. Rep. 117; Smith v. Hunter, 23 Ind. 580; Randall v. Josselyn, 59 Vt 557, 10 A£l. 577 ; Den ex dem. Smith v. Hance, 11 N. J. Law, 244 ; Mathis v. Hammond, 6 Rich. Eq. (S. C.) 121. so Allen v. Trustees, 102 Mass. 262; Parker v. Parker, 5 Mete. (Mass.) 134; Hawley v. Northampton, 8 Mass. 3, 5 Am. Dec. 66; Wolfe v. Van Nostrand, 2 N. Y. 436 ; Reinoehl v. Shirk, 119 Pa. 108, 12 Atl. 806 ; Titzell v. Cochran (Pa. Sup.) 10 Atl. 9; Richardson v. Richardson, 80 Me. 585, 16 Atl. 250. But see, for limitations which have been held to create executory de- vises, Jackson ex dem. St. John v. Chew, 12 Wheat. 153, 6 L. Ed.' 583 ; Rich- ardson v. Noyes, 2 Mass. 56, 3 Am. Dec. 24 ; Lion v. Burtiss, 20 Johns. (N. Y.) 483 ; Jackson ex dem. Henry' v. Thompson, 6 Cow. (N. Y.) 178 ; Nicholson v. Bettle, 57 Pa. 384. si Hopkins v. Hopkins, Cas. t. Talb. 44; Doe v. Howell, 10 Barn. & C. 191. 82 Thompson's Lessee v. Hoop, 6 Ohio St. 480; Wells v. Ritter, 3 Whart. (Pa.) 208. At common law, future estates cannot be created out of chattel interests. A life estate and a remainder cannot be limited out of a term of years, though the duration of the term be greater than the possible dura- tion of the life of the first taker. Maulding v. Scott, 13 Ark. 88, 56 Am. Dec. 298; Merrill v. Emery, 10 Pick. (Mass.) 507. But such limitations may be made either as future uses or executory devises. Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322; Gillespie v. Miller, 5 Johns. Ch. (N. Y.) 21; Maulding v. Scott, 13 Ark. 88, 56 Am. Dec. 298 ; Wright v. Cartwright, 1 Burrows, 282 ; Lampet's Case, 10 Coke, 46. 380 ESTATES IN EXPECTANCY (Ch. 15 controversies with, the tenants of preceding estates in possession. Consequently, it may be said, in general, that the rights and duties of the owners of future estates are similar to, and correla- tive with, the rights and duties of the owners of the estates which precede them, which have already been considered in connection with the discussion of the incidents of estates in general. 83 Like- wise, the right .to dower and curtesy in future, estates has been treat- ed of in connection with those subjects. 84 Also, in other connec- tions it has been seen that the tenant of, an estate which precedes a future estate has no claim on the owner of the latter for improve- ments. The methods by which future estates may be destroyed have been touched upon in connection with reversions and remainders, and as to executory devises it has been seen that no act of the tenant of the particular estate can destroy them. SAME— TENURE OF FUTURE ESTATES 156. There. is no relation of tenure between the owner of a future estate and the tenant of the preceding estate. Possession by the tenant of the particular estate is in no case adverse to the owner of the future estate, and, therefore, the former cannot disseise the latter. 85 In reversions, which are distinguish- ed, however, as we have seen, 86 from future estates proper, tenure exists between the tenant of the particular estate and the rever- sioner. 87 In case the particular estate is a freehold, the tenant of the particular estate has the seisin; but, when the particular estate is less than a freehold, the actual seisin is in the reversioner. 88 In remainders, however, there is no tenure between the tenant of the particular estate and the remainderman, because both hold under the same person. 89 Also, in future uses and devises, no relation of tenure/ exists. 88 Ante. 84 Ante, chapter VIII. so Jackson ex dem. Hardenbergh v. Schoonmaker, 4 Johns. (N. T.) 390; Jackson v. Sellick, 8 Johns. (N. Y.) 262; Jackson ex dem. Swartwout v. Johnson, 5 Cow. (N. T.) 74, 15 Am. Dec. 433 ; Davis v. Dickson, 92 Pa. 365 ; Miller v. Shackleford, 3 Dana (Ky.) 289; Meraman's Heirs v. Caldwell's. Heirs, 8 B. Mon. (Ky.) 32, 46 Am. Dec. 537 ; Stubblefield t. Menzies, 8 Sawy. 41, 11 Fed. 268. 8« Supra. 87 2 Washb. Real Prop. (5th Ed.) 803. S8 2 Washb. Real Prop. (5th Ed.) 804; Williams, Real Prop. (17th Ed.) 3S7. so Van Deusen v. Young, 29 N. Y. 9; Hill v. Roderick, 4 Watts & S. (Pa.) 221. § 157) PEOTECTION OF FUTUBE ESTATES 381 SAME— PROTECTION OF FUTURE ESTATES 157. A vested remainderman may maintain an action for damages for any injury to his interest. Waste by the tenant in possession will also be remedied in favor of the owner of a future estate, unless that is a contingent remainder, which may be defeated by the tenant of the preceding estate. The common-law action for waste is a legal remedy, and can be brought only by one who has the immediate estate of inherit- ance. 80 This rule, however, has been modified by statute in some states, and by force of such statutes any person seised of an es- tate in remainder may maintain an action for waste or trespass for an injury done to the inheritance. 91 Moreover, a remainder- man may maintain an action on the case in the nature of waste, since such action is not confined to one who has the estate of inheritance at the time the waste is committed. 92 As a general rule, therefore, a vested remainderman may, during the period of the preceding estate, maintain an action for damages for any injury to his interest. 93 He is also entitled to equitable relief when necessary to protect his rights, 9 * whether the property be in the possession of the preceding life tenant, 95 or in the hands of a trustee. 96 He may also .bring proceedings to remove a cloud upon his title. 97 He cannot, however, maintain an action for par- »o See Wilson v. Galey, 1Q3 Ind. 257, 2 N. E. 736 ; United States Fidelity & Guaranty Co. v. Rieck, 76 Neb. 300, 107 N. W. 389 ; Price v. Ward, 25 Nev. 203, 58 Pac. 849, 46 L. R. A. 459 ; Robinson v. Wheeler, 25 N. T. 252. si Halstead v. Sigler, 35 Ind. App. 419, 74 N. B. 257; Hoolihan v. Hoolihan, 193 N. J. 197, 85 N. E. 1103, 15 Ann. Oas. 269 ; Price v. Ward, supra. 02 Dickinson v. Baltimore, 48 Md. 583, 30 Am. Rep. 492; Dennett v. Den- nett, 43 N. H. 499; Dupree v. Dupree, 49 N. O. 387, 69 Am. Dec. 757;*Wyant v. Dieffendafer, 2 Grant, Cas. (Pa.) 334. »3 Shortle v. Terra Haute, etc., R. Co., 1317nd. 338, 30 N. E.,1084; Jor- dan v. Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519, 57 Am. St. Rep. 859. See, also, Robertson's Adm'r v. Rodes, 13 B. Mon. (Ky.) 325; Bogle v. N. C. R. Co., 51 N. C. 419. o* Gibson v. Jayne, 37 Miss. 164; Murphy v. Whitney, 140 N. Y. 541, 35 N. E. 930, 24 L. R. A. 123. 96 Bethea v. Bethea, 116 Ala. 265, 22 So. 561 ; Goudie v. Johnston, 109 Ind. 427, 10 N. E. 296 ; Yancy v. Holladay, 7 Dana (Ky.) 230 ; Brown v. Wilson, 41 N. C. 558. »o State v. Brown, 64 Md. 97, 1 Atl. 410; Haydel v. Hurck, 5 Mo. App. 267. 97 Watson v. Adams, 103 Ga. 733, 30 S. E. 577 ; Wiley v. Bird, 108 Tenn. 168, 66 S. W. 43; Aiken v. Suttle, 4 Lea (Tenn.) 103. 382 ESTATES IN EXPECTANCY (Ch. 15 tition, 98 or an action of trespass to try title, 98 since he has no present right of possession. For injuries to the corpus of the estate committed by strangers, both the owner of the particular estate and of the future estate may have actions according^ tp •their interests/ A contingent remainderman, however, having no vested inter- est, cannot maintain an action for damages for waste. 2 More- over, formerly, while waste would be restrained in favor of the owner of a vested remainder, it would not be for the owner of a contingent remainder, because the tenant of the particular es- tate could defeat the contingent remainder absolutely. 3 This was not the case, however, when there was an immediate limitation to trustees to preserve the contingent remainders, because the tenant then had no power to destroy the remainders. As soon -as a contingent remainder became vested, however, waste would be restrained. The common-law action of waste, however, and also action on the case for damages, have been practically superseded, in modern times, by the remedy of injunction.* Moreover, in applying this remedy, the rights of contingent remaindermen are more extensively protected than at law, since, although equity may not allow them to recover damages for injuries to property which may never be theirs, yet they 'may be permitted to prevent the waste of that which may at some time belong to them. 5 Springing and shifting uses and executory devises are indestructi- ble by the tenant in possession, and he will be enjoined from cpm- mitting waste. When, however, the limitation is after a fee, ordi- nary waste by the owner*of the fee will not be restrained, although equitable waste will be. 6 • s Wolfe's Estate, 15 Montg. Co. Rep. (Pa.) 128, 22 Pa. Co. Ct. R. 340. »» Cook v. Caswell, 81 Tex. 678, 17 S. W. 385. i Foot v. Dickinson, 2 Mete. (Mass.) 611 > Bates v. Shraeder, 13 Johns. (N. Y.) 260.; Elliot v. Smith, 2 N. H. 430 ; Chase v. Hazelton, 7 N. H. 171. But see Peterson v. Clark, 15 Johns. (N. Y.) 205. 2 Cannon v. Barry, 59 Miss. 289 ; Taylor v. Adams, 93 Mo. App. 277; Sager v. Galloway, 113 Pa. 500, 6 Atl. 209. s Hunt v. Hall, 37 Me. 363 ; Bacon v. Smith, 1 Q. B. 345. * Palmer v. Young, 108 111. App. 252 ; Loudon v. Warfield, 5 J. J. Marsh. (Ky.) 196; Roots v. Boring Junction Lumber Co., 50 Or. 298, 92 Pac. 811, 94 Pac. 182 ; Poertner v. Russel, 33 Wis. 193. s Taylor v. Adams, 93 Mo. App. 277. And see Cannon v. Barry, 59 Miss. 2S9. « Matthews v. Hudson. 81 Ga. 120, 7 S. E. 286, 12 Am. St Rep. 305; Robin- son v. Litton, 3 Atk. 209. § 158) ALIENATION OF FUTURE ESTATES 383 SAME— ALIENATION OF FUTURE ESTATES 158. Under the modern law, a future estate can be transferred, if the person who is to take is ascertained. A vested remainder, being a present interest in property, may- be transferred by the owner by deed, 7 or may be mortgaged during the continuance of the preceding estate. 8 At common law, how- ever, contingent remainders and executory interests came within the rule that no possibility, right, title, or thing in action is assign-, able. 9 Such interests could, however, be released to the tenant in possession. 10 They also came under the doctrine of estoppel, 11 and consequently, where a warranty deed is given,, the, title, which vests upon the happening of the event upon which a contingent remainder depends, inures to the benefit of the grantee; the gran- tor being estopped to claim title in himself. 12 Moreover, convey- ances relating to such interests, if made for a valuable consider- ation', are regarded as effective in equity upon the vesting of the estate. 13 Some cases distinguish between the uncertainty of the person and the uncertainty of the event, holding that, when the person who is to take is ascertained, he may transfer his interest. 1,4 The same rule has also been applied to the mortgage of a contin- * Watson v. Cressey, 79 Me. 381, 10 AH. 59 ; Blanchard v. Brooks, 12 Pick. (Mass.) 47 ; Glidden v. Blodgett, 38 N. H. 74 ; Stewart v. Neely, 139 Pa. 309, 20 Atl. 1002; Robertson v. Wilson, 38 N. H. 48: Brown v. Fulkerson, 125 Mo. 400, 28 S. W. 632. sin re John & Cherry Sts., 19 Wend. (N. X.) 659; Andress' Estate, 14 Phila. (Pa.) 240. » Hall v. Chaffee, 14 N. H. 215 ; Lampet's Case, 10 Coke, 46b ; Fulwood's Case, 4 Co. Rep. 64b, 66b, (1591) ; GODMAN v. SIMMONS, 113 Mo. 122, 20 S. W. 972, Burdick Cas. Real Property. io Lampet's Case, 10 Co. Rep. 46b, 48b, (1612) ; Smith v. Pendell, 19 Conn. 107, 48 Am. Dec. 146; Williams v. Esten, 179 111. 267, 53 N. E. 562; Miller v. Emans, 19 N. X. 384. ii Doe d. Brune v. Martyn, 8 B. & C. 497; Robertson v. Wilson, 38 N. H. 48 ; Stewart v. Neely, 139 Pa. 309, 20 Atl. 1002 ; Jackson v. Everett (Tenn.) 5S S. W. 340. 12 Walton v. Follansbee, 131 111. 147, 23 N. E. 332; Hayes v. Tabor, 41 N. H. 521 ; Foster v. Hackett, 112 N. C. 546, 17 S. E. 426 ; Xoung v. Xoung, 89 Va. 675, 17 S. E. 470, 23 L. R. A. 642. is Lackland v. Nevins, 3 Mo. App. 335; Hannon v. Christopher, 34 N. J. Eq. 459; Bayler v. Com., 40 Pa. 37, 80 Am. Dec. 551; Wright v. Wright, 1 Ves. Sr. 409 ; Crofts v. Middleton, 8 De Gex, M. & G. 192. , ii Cummings v. Stearns, 161 Mass. 506, 37 N. E. 758; Wilson v. Wilson, 32 Barb. (N. X.) 328 ; Havens v. Land Co., 47 N. J. Eq. 365, 20 Atl. 497. 384 ESTATES IN EXPECTANCY (Ch. 15 gent remainder," and likewise to the transfer of springing and shifting uses and executory devises. 18 While a court of equity may order a sale of future interests in property for the purpose of bet- ter protecting the same, 17 it has, however, been held that it will not order a sale of such property to satisfy an execution. 18 The question of alienation is covered by statute, in a number of jurisdictions, under provisions to the effect that contingent, execu- tory, and future interests, and possibilities coupled with an inter- est, may be disposed of by deed. 18 SAME— DEVISE OF FUTURE ESTATES 159. The same general rules apply to the devise of future estates as to their alienation. A vested remainder may be devised. 20 A contingent remainder may also be devised, where the^ remainderman is ascertained, and his existence does not' constitute the contingency; 21 otherwise not. 22 By force of statute, however, all contingent remainders may be devisable. 23 Executory devises are also included within those interests that may be disposed of by will. 24 i5 People's Loan, etc., Bank v. Garlington, 54 S. C. 413, 32 S. E. 513, 71 Am. St Rep. 800. i° Young v. Young, 89 Va. 675, 17 S. E. 470,. 23 L. R. A. 642; Nutter v. Russell, 3 Mete. (Ky.) 163; Jacob v. Howard (Ky.) 22 S. W. 332; Hall v. Chaffee, 14 N. H. 216. it Gavin v. Curtln, 171 111. 640, 49 N. E. 523, 40 L. R. A. 776; Marsh v. Dellinger, 127 N. C. 360, 37 S. E. 494 ; Ridley v. Halliday, 106 Tenn. 607, 61 S. W. 1025, 53 L. R. A. 477, 82 Am. St. Rep. 902 ; Ruggles v. Tyson, 104 Wis. 500, 79 N. W. 766,- 81 N. W. 367, 48 L. R. A. 809. isArmiger v. Reitz, 91 Md. 334, 46 Atl. 990; Wiley v. Bridgman, 1 Head (Tenn.) 68. is Eng. Real Property Act, 1845 (8 & 9 Vict c. 106, s. 6). Defreese v. Lake, 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584. Brown v. Fulkerson, 125 Mo. 400, 28 S. W. 632 ; Griffin v. Shepard, 124 N. Y. 70, 26 N. E. 339 ; GODMAN v. SIMMONS, 113 Mo. 122, 20 S. W. 972, Burdick Cas. Real Property. 20 Wimple v. Fonda, 2 Johns. (N. Y.) 288; Davis v. Bawcum, 10 Heisk (Tenn.) 406. si Mohn v. Mohn, 148 Iowa, 288, 126 N. W. 1127; Fisher v. Wagner, 109 Md. 243, 71 Atl. 999, 21 L. R. A. (N. S.) 121 ; Cummings v. Stearns, 161 Mass. 506, 37 N. E 758 ; Kenyon v. See, 94 N. Y. 563. 22 McClain v. Capper, 98 Iowa, 145, 67 N. W. 102. 28 Young v. Young, 89 Va. 675, 17 S. E. 470, 23 L. R. A. 642. 2* Collins v. Smith, 105 Ga. 525, 31 S. E 449 ; Wortman v. Robinson, 44 Hun (N. Y.) 357 ; Lewis v. Smith, 23 N. C. 145 ; Thompson's Lessee v. Hoop, 6 Ohio St 480. -160) DESCENT OF FUTTJKE ESTATES 385 SAME— DESCENT OF FUTURE ESTATES 160. When the person who is to take a future estate is ascertain- ed, it descends, on his death intestate, to his heirs. Remainders, future estates arising under the statute of uses., and executory devises descend to the heirs of their owners, ex- cept in cases where the person who is to take is not'ascertained. 1 " 5 The future estate, however, in order that it may descend, must in each case be of sufficient quantity ; that is, it must be an estate of inheritance. 2» Barnitz v. Casey, 7 Cranch, 456, 3 L. Ed. 403 ; Ackless v. Seekright, 1 111. 76 ; Meflley v. Medley, 81 Va. 265. Burd.Real Pbop. — 25 386 THE RULE AGAINST PERPETUITIES (Ch. 16 CHAPTER XVI , THE RULE AGAINST PERPETUITIES 161. The Rule Stated. 162. Estates and Interests Subject to the Rule. 163. Exceptions to the Rule. 164. Rule Against Accumulations. THE RULE STATED 161. Unless otherwise provided by statute, no future contingent and indestructible interest in property can, in general, be created which must not necessarily vest within twenty- one years, exclusive of periods of gestation, after lives in being. Nature of the Rule In the preceding chapter we considered the various kinds of future interests in lands. There remains, however, one very im- portant question, namely, whether the law imposes any restraint upon the right to create such interests, particularly when contin- gent, regardless of the time, however remote, when they shall take effect, or become vested. Although, even before the statute of uses (1535),. equity permit- ted the creation of future uses, as already shown, 1 yet it was not un- til after the passage of that statute, and the passage of the statute of wills, in 1540, that the creation of future contingent interests, other than contingent remainders, became frequent. With the growth of such executory interests there developed a belief in the courts that the creation of such interests should be confined within reasonable limits. 2 The reason for. this belief originated,- very prob- ably, in the desire of the courts to prevent property from being in- alienable ; s that is, that it should not be kept out of commerce for an indefinite period,* and thus become a "perpetuity." 5 This no- i Supra. 2 See Gray, Perp. §§ 153-167. The principle, not the rule against perpetui- ty existed before and throughout the reign of Henry VIII. Hope v. Glou- cester Corporation, 7 De G., M. & G. 647. The principle was perhaps intro- duced after. the statute of quia emptores (1290). 2 Preston, Estates, p. 307. a Gray, Perp. § 268. * See Perpetuities, article by Prof. Warren, in Cyc. vol. 30, p. 1469. 6 The origin of the legal term "perpetuity" is not known; the use of the § 161) * THE KULE STATED 387 tion has clung to the word in many modern quarters, and is even the popular meaning of "perpetuity," to-day. 6 In fact, long before the development of the modern rule against perpetuities, one of the meanings of the word "perpetuity" was an inalienable estate tail. 7 The word "perpetuity" was also used in the £arly cases to describe certain future interests, 8 and when, in the course of time, the courts, by successive decisions, finally evolved a rule defining what was a reasonable limit for the creation of future contingent interests, a broader view than the notion of alienability was taken, and it was held that such limitations/ even of alienable interests, were invalid, if made, to commence at too remote a period." The rule finally be- came based on considerations df public policy. 10 "To have prop- erty incumbered with such remotely possible interests is a disad- vantage to the persons otherwise entitled to the property, greater than is the advantage to the owners of such remote interests." 11 The rule, however, when established, became known as "the rule against perpetuities." This was unfortunate, since a better designa- tion would be "the rule against remoteness." " The misnomer has in all probability given rise to much of the confusion which exists in relation to the rule. What is known as the modern rule against perpetuities has nothing to do with restraints on alienation, al- though many statutes and cases have so treated it. Development of the Rule , The leading case upon the subject is known as "The Duke of Norfolk's case," 13 decided by Lord Chancellor Nottingham, in 1682, and affirmed, in 1685, in the House of Lords. This case held that a term in the courts does not appear to be reported prior to Chudleigh's Case (1595) 1 Co. 113c. Laws of Eng. vol. 22, 296. « See Perpetuities, article by Prof. Warren, in Cyc. vol. 30, p. 1469. r Corbet's Case (1600) 1 Coke, 836, 76 Eng. Reprint, 187. « See 30 Cyc. 1468; Chudleigh's Case, 1 Coke 120a, 76 Eng. Reprint, 270; Manning's Case, 8 Coke, 94b, 77 Eng. Reprint, 618. » Gray, Perp. (2d Ed.) § 269; Midgley v. Tatley, 43 Ch. Div. 406, C. A. 1890. io This basis of the rule was recognized nearly two hundred years ago, when Jekyl, M. R., in the case of Stanley v. Leigh, 2 P. Wms. 686 (1732), spoke of the public policy of the rule as the mischief that would arise to the public from estates remaining forever or for a long time inalienable or un- transferable from one hand to another, being a menace to industry and prej- udice to trade, to which may be added the inconvenience and distress that would be brought on families whose estates are so fettered. See Sibley v. Ashforth, 1 Ch. 535, 542 (1905). ii Prof. Warren, Perp. 30 Cyc. 1467. r 12 Gray, Perp. § 2; Challis, Real Prop. 214; 1 Jarm. Wills (6th Ed.) 296. In English Conveyancing Act of 1911 (1 & 2 Geo. V, c. 37) the term used is "the rule of law relating to perpetuities." is The Duke of Norfolk's Case, 3 Ch. Cas. 1, 22 Eng. Reprint, 931. 388 THE RULE AGAINST PERPETUITIES • (Ch. 16 limitation over might be made to take effect on a contingency which must happen, if at all, within a life in being. The facts, in brief, were that a conveyance was made by a father of three sons, to trus- tees, in trust for the second son, and the heirs male of his body, providing that, should Jhe first son die without issue male, in the life- time of the second son, the property should be held in trust for the third son. The first son died without issue male, during the life- time of the second son, ,and the limitation over to the third son was held good, since it must take effect, if at. all, during the lifetime of the second son. This decision is the foundation of the modern rule against perpetuities. 1 * In 1736, the case of Stephens v. Stephens " decided that a limita- tion to the child of a living person, upon such child's attaining the age of twenty-one years, was good ; and finally it was held that a gift might be made by a limitation over to vest within twenty-one years after any life in being, regardless of the question of one's minority. 16 A child en ventre sa mere at' the death of a testator is regarded as in being," and when gestation is in fact taking place, the period of gestation is excluded from the computation of the time. 18 As the rule is often stated, the period of gestation is added to the pe- riod of twenty-one years, 19 but this is not strictly accurate. Gesta- tion, to be excluded, must exist, and it is possible that three periods of gestation may occur in a limitation without violating the rule. 20 " Prof. Warren, Perp. 30 Cyc. 1470; Laws of Eng. XXII, p. 300, note. is Cas. t. Talb. 228, 25 Eng. Reprint, 751. "Andrews v. Lincoln, 95 Me. 541, 50 Atl. 898, 56 L. R. A. 103; Armstrong v. Barber, 239 111. 389, 88 N. E. 246; McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct 652, 28 L. Ed. 1015; Barnitz v. Casey, 7 Cranch (TJ. S.) 456, 3 L. Ed. 403. The rule stated. See APPLETON'S APPEAL, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925, Burdick Cas. Real Property. I? Gray, Perp. § 220; Storrs v. Benbow, 3 De Gex, ,M. & G. 390; Long V. Blackall, 7 Term R. 100. is Cadell v. Palmer, 1 CI. & F. 372, 6 Eng. Reprint, 956. And see Thellusson V. Woodford, 11 Ves. 112, 32 Eng. Reprint, 1030. is Andrews v. Lincoln, 95 Me. 541, 50 Atl. 898, 56 L. R. A. 103; Jee v. Audey, 1 Cox, Ch. 324, 1 Rev. Rep. 46, 29 Eng. Reprint, 1186. Instead of mak- ing the possible period of gestation a part of the definition, it would, perhaps, be better merely to say "for the purpose of the rule, a child en ventre sa mere is considered as a life in being." Jarman on Wills (5th Ed.) 216 ; Chal- lis, Real Prop. (2d Ed.) 170. 20 "Suppose, for instance, a devise to testator's children for life, on their death to be accumulated till youngest grandchild reaches twenty-one and then to be divided among all the grandchildren then living, and the issue then living of any deceased grandchild. The testator leaves a posthumous child, who dies leaving one child, A., born, and another, B., en ventre sa mere. B. is born, and reaches twenty-one but before he does so A, dies, leaving his § 161) THE BULE STATED 389 The rule against perpetuities, as established in the English courts, has been adopted in most American states as part of the common law. 21 In some states, there are statutes which are merely declara- tory of the common-law rule, while in other states, as shown later in this chapter, a different statutory rule has been substituted. Application of the Rule The rule against perpetuities is not one of construction, but is ap- plied, to a will or a deed after such an instrument limiting the es- tates is construed, and is applied regardless of the intention, and often, as a restraint imposed by reasons of public policy, it de- feats it. 22 It is only in cases of ambiguous construction that it is presumed that the intention was to limit an estate which would not be void as contravening the rule. 28 It is not necessary that future interests should be enjoyed in pos- session during the limits prescribed by the rule, since the fact that they shall vest within such period is the sole requirement. The rule does not apply, in other words, to the too remote enjoyment of an estate, but to its top remote vesting. Moreover, the rule against perpetuities applies only to estates which are limited to vest on the happening of a contingency, and this contingency must happen, if at all, within,the prescribed period, or the estate so limited is void. 24 wife enceinte, who gives birth to a child after B. reaches twenty-one. Here we have (1) the period until the testator's child is born; (2) the life of such child ; (3) the period from the time when B. reaches twenty-one until A.'s child is born. Here we have a life, a minority of twenty-one years, and three periods of gestation." Gray, Perp. § 202. And compare Long v. Blackall, 7 Term R. 100 ; Thellusson v. Woodford, 11 Ves. 112. See, also, Smith v. Farr, 8 L. J. Exch. 46, 3 Y. & C. Exch. 328. ziAPPLETON'S APPEAL, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 . Am. St. Rep. 925, Burdick Cas. Real Property. 22 Gray, Perp. § 629; Maule, J., in Dungannon v. Smith, 12 Clark & P. 546 ; James, L. J., in Heasman v. Pearse, 7 Ch. App. 275 ; Dungannon v. Smith, 12 CI. & F. 546, 10 Jur. 721, 8 Eng. Reprint, 1523 ; Reid v. Voorhees, 216 111. 236, 74 N. E. 804, 3 Ann. Cas. 946 ; Coggins' Appeal, 124 Pa. 10, 16 Atl. 579, 10 Am. St. Rep. 565; In re Stickney's Will, 85 Md. 79, 36 Atl. 654, 35 L. R. A. 693, 60 Am. St. Rep. 308. 23 Post v. Hover, 33 N. Y. 593; Du Bois v. Ray, 35 N. Y. 162; St. John v. Dann, 66 Conn. 401, 34 Atl. 110; Siddall's Estate, 180 Pa. 127, 36 Atl. 570; Gray v. Whittenmore, 192 Mass. 367, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246; Chapman v. Cheney, 191 111. 574, 61 N. E. 363. 24 Jee v. Audley, 1 • Cox, Ch. 324 r Abbiss v. Burney, 17 Ch. Div. 211 ; In re Frost, 43 Ch. Diy. 246 ; In re Hargreaves, Id. 401 ; Porter v. Fox, 6 Sim. 485 ; Doe v. Challis, 18 Q. B. 224, 231. See Sawyer v. Cubby, 146 N. Y. 192, 40 N. E. 869; Lloyd .v. Carew, Show. Pari. Cas. 137; And see SEAVER v. FITZGERALD, 141 Mass. 401, 6 N. E. 73, Burdick Cas. Real Property. For a longer period made possible under statutes affecting estates tail, see 1 Dembitz, Land Tit 118. 390 THE RULE AGAINST PERPETUITIES (Ch. 16 The fact that a future estate may vest within such time is not suf- ficient to make the limitation valid. It must necessarily vest within the prescribed time. 25 An estate may be limited after any number of lives in being, 26 the only suggested restriction being that the number must not be so great that evidence of the termination of the lives cannot be obtained. 27 Since the term of twenty-one years which is allowed by the rule may be in gross without reference to the minority of any person, 28 a limitation of an estate after a term of twenty-one years is good. 28 The time within which an estate lim- ited must vest under the rule is computed from the death of the testator, when the limitation is by will, 30 and when by deed, from the delivery of the deed. 5 * 1 The rule is satisfied if the estate vests within this time, although the interest so created does not terminate until a later time. 32 Effect of Violating the Rule When the limitation of a future estate is void on account of the rule against perpetuities, the prior estates take effect, as if there had been no subsequent limitations. 33 Estates, however, which are to take effect after limitations that are too remote, if vested, or if they become vested within the- time prescribed by the rule, will, not be affected by the void limitations. 34 In cases where a good limitation 25 Stephens v. Evans' Adm'x,, 30 Ind. 39; Jee'v. Audley, 1 Cox, Ch. 324;' Lett v. Randall, 3 Smale & G. 83; Quinlan v. Wickham, 233 111. 39, 84 N. E. 38, 17 L. R. A. (N. S.) 216; In re Wilcox, 194 N. Y. 288, 87 N. E. 497. And see APPLETON'S APPEAL, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925, Burdick Cas. Real Property. 2« Or after the lives of unborn persons, if the vesting is during the lives of persons in being. Evans v. Walker, 3 Ch. Div. 211. 27 Thellusson v. Woodford, 11 Ves. 112; Low v. Burron, 3 P. Wms. 262. See Scatterwood v. Edge, 1 Salk. 229. as Beard v. Westcott, 5 Taunt. 393; Cadell v. Palmer, 1 Clark & F. 372. 29 Gray, Perp. § 225 ; Low v. Burron, 3 P. Wms. 262. See Stephens v. Stephens, Cas. t Talb. 228; Avern v. Lloyd, L. R. 5 Eq. 383. so Southern,v. Wallaston, 16 Beav. 276; Hewitt v. Green, 77 N. J. Eq. £45, 77 Atl. 25; Bullard v. Shirley, 153 Mass. 559, 27 N. E. 766, 12 L. R. A. 110; Mullreed v. Clark, 110 Mich. 229, 68 N. W. 138, 989. siMcArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015. s 2 Otis v. McLellan, 13 Allen (Mass.) 339; Minot v. Taylor, 129 Mass. 160; Heald v. Heald, 56 Md. 300. But see Slade v. Patten, 68 Ale. 380. 83 PROPRIETORS OP CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property ; Lewis, Law of Perpetuity, 657. s* Gray, Perp. § 251. But see Proctor v. Bishop of Bath & Wells, 2 H. Bl. 358. So some of the limitations may vest in time, and be valid though others fail. Wilkinson v. Duncan, 30 Beav. Ill ; Cattlin v. Brown, 11 Hare, 372; Picken v. Matthews, 10 Ch. Div. 264; Hills v. Simonds, 125 Mass. 536. But see Pearks v. Moseley, 5 App. Cas. 714. § 163) EXCEPTIONS TO THE RULE , 391 of an estate is made, and a subsequent modification is added which would make the estate void for remoteness, the modification will be rejected, and the estate will stand as under the original limitation. 86 When there is no disposition in a will, except the void limitation, the heirs will take. 89 i ESTATES AND INTERESTS SUBJECT TO THE RULE 162. The rule against perpetuities applies to all future contingent and indestructible estates and interests in land, legal or equitable. It does not, however, apply to: (a) Destructible future interests. (b) Present interests. (c) Vested future interests. EXCEPTIONS TO THE RULE 163. As established exceptions to the rule, should be noted: (a) Gifts on a charitable trust, with a remote gift over to an- other charitable trust. (b) Unconditional gifts on a charitable trust to a corporation, no such corporation being in existence at the time. (c) In some jurisdictions, rights of entry for condition broken. The rule against perpetuities applies to both real and personal property, and to interests either legal or equitable. The rule ap- plies, however, only to future interests, and, moreover, only to such future interests as are contingent and indestructible^-contingent, for the reason that the rule merely requires that interests shall vest within a certain time, and, if vested, there is no occasion for the rule; indestructible, for the reason that, if the future interest can be destroyed, it neither hampers the alienation of the property, nor diminishes the value of the present estate, consequently it is not objectionable 'for either of the reasons of public policy that gave rise to the rule. 87 The mere fact of destructibility by the owner himself is not sufficient, however, to prevent an ©state or interest as Slade v. Patten, 68 Me. 380 ; Ring v. Hardwick, 2 Beav. 352 ; Gove v. Gove, 2 P. Wms. 28. Otherwise when the first limitation is not absolute. Whitehead v. Rennett, 22 Law J. Ch. 1020. so Fosdick v. Fosdick, 6 Allen (Mass.) 41 ; Wainman v. Field, Kay, 507. si Prof. Warren, Perp., 30 Cyc. 1476. See, also, APPLETON'S APPEAL, 136 Pa. 354, 20 Atl. '521, 11 L. R. A. 85, 20 Am. St. Rep. 925, Burdick Cas. Real Property, as to property and interests subject to the rule. 392 f THE RULE AGAINST PERPETUITIES (Ch. 16 from being too remote, 88 since the destructibility must depend upon the will of the owner of another estate to whom the right to destroy is given by operation of law. 38 The rule applies to executory de- vises, 40 and to springing and shifting uses." Contingent remain- ders are by the weight of authority subject to the rule. 42 There has been considerable conflict upon this question, owing to the fact- that, at common law, contingent remainders may be destroyed by the tenant of the preceding estates. 43 Since, however, under the statutes they are no longer destructible, it would seem to be the better opinion that they are now subject to the rule. 44 Remainders following an estate tail are not, however, too remote, even if not vested, since future interests expectant on an estate tail may be de- stroyed by the tenant in tail. 46 Present and Vested Interests The rule against perpetuities does not apply to present interests since they are vested. 46 Accordingly it is said that easements and profits a prendre are not within the rule, although they are to last as Cochrane v. Cochrane (1883) 11 L. R. Ir. 361, 368. And see Midgley v. Tatley, 43 Ch. Div. 401, C. A. (1890); Laws of Eng. vol. XXII, p. 323. 8» Lewis, Law of Perpetuity, 164; Sibley v. Ashforth, [1905] 1 Ch. 535, 544. *« Lewis, Law of Perpetuity, c. 10. Executory devises held invalid : To the children of a living person who should attain twenty-two or any other age greater than twenty-one, Bull v. Pritchard (1847) 5 Hare, 567; a devise to the first son of A. who should be bred a clergyman, Proctor v. Bishop of Bath and Wells (1794) 2 H. Bl. 358. 4i Savill Brothers v. Bethell, [1902] 2 Ch. 523, C. A.; Bennett v. Bennett (1864) 2 Drew & Sm. 266, 267. "Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33; United States Fidelity & Guaranty Co. v. Douglas' Trustee, 134 Ky. 374, 120 S. W. 328, 20 Ann. Cas. 993 ;, In re Kountz's Estate, 213 Pa. 390, 62 Atl. 1103, 3 L. E. A. (N. S.) 639, 5 Ann. Cas. 427 ; St. Amour v. Rivard, 2 Mich. 294 ; Hill v. Gianelli, 221 111. 286, 77 N. E. 458, 112 Am. St. Bep. 182. Likewise a conditional limitation. PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property. *8See Contingent Remainders, ante. 4* See cases in note 42. It is said that a contingent remainder cannot be given to an unborn child of an unborn person, even when the gift is so framed as not to offend the rule against perpetuities. Whitby v. Mitchell, 44 Ch.-D. 85. The correctness of this is, however, doubted, since it is founded upon the exploded- notion that there cannot be a "possibility" on a "possibil- ity." See Gray, Perp. §§ 287-294. See, also, In re Ashforth, [1905] 1 Ch. 535 ; In re Bowles, [1902] 2 Ch. 650; Brown v. Brown, 86 Tenn. 277, 6 S. W. 369, 7 S. W. 640. 45 PenniDgton v. Pennington, 70 Md. 418, 17 Atl. 329, 3 L. R. A. 816; Good- win v. Clark, 1 Lev. 35; Nicolls v. Sheffield, 2 Brown, Ch. 215. See Duke of Norfolk's Case, 3 Ch. Cas. 1. And cf. Bristow v. Boothby, 2 Sim. & S. 465. 46 Elliott v. Delaney, 217 Mo. 14, 116 S. W. 494 ; Henderson v. Coal Co., 78 111. App. 437. See, also, Gex v. Dill, 86 Miss. 10, 33 South. 193. § 163) EXCEPTIONS TO THE RULE 393 for an indefinite time.* 7 Covenants running with the land are also present interests, and therefore are not subject to the rule. 48 If property is vested absolutely in a person, and a condition is ' added postponing his enjoyment, such a condition may be void for repugnancy; but such cases have nothing to do with the rule against perpetuities. 49 Likewise, if future interests are vested, as vested remainders, 60 reversions, 61 or the possibility of a reverter, 62 the rule has no application to them. Equitable Interests The rule against perpetuities applies, to equitable as well as to le- gal estates. If they are vested, they are not subject to the rule; 53 otherwise, they are. 54 A trust does not violate the rule against perpetuities merely because it is to continue indefinitely, if it vests within the time required, because the rule against perpetuities is concerned with the vesting of estates, not with their duration. 65 On the other hand, however, a beneficial interest under a -trust, may not vest within the required time, and be void, consequently, for remoteness. 66 Charitable trusts and trusts for accumulation are referred to. in following paragraphs. 67 . R. 2 Bq. 716. And see Gray, Perp. § 594. so Gray, Perp. §§ 595, 596. se Storrs Agr. School v. Whitney, 54 Conn. 342, 8 Atl. 141; Wolfe v. Hath- eway, 81 Conn. 181, 70 Atl. 645; Lennig's Estate, 154 Pa. 209, 25 Atl. 1049; Jones v. Habersham, 107 TJ. S. 174, 185, 2 Sup. Ct 336, 27 L. Ed. 401 ; Cham- berlayne v. Brockett, 8 Ch. App. 206. st Codman v. Brigham, 187 Mass. 309, 72 N. E. 1008, 105 Am. St. Rep. 394; Ingraham v. Ingraham, 169 111. 432, 48 N. E. 561, 49 N. E. 320; Miller v. Chittenden, 2 Iowa, 315; Id., 4 Iowa, 252. Compare Phillips v. Harrow, 93 Iowa, 92, 61 N. W. 434; Appeal of Eliot, 74 Conn. 586, 51 Atl. 558. See, how- ever, Carter v. Balfour's Adm'r, 19 Ala. 814; Rhodes v. Rhodes, 88 Tenn. 637, 13 S. W. 590. as In re Hollis Hospital, 2 Ch. 540 (1899). ss Dunn v. Flood, 25 Ch. D. 629. »o See Gray, Perp. § 304 et seq. ; First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, 29 N. B. 524, 15 L. R. A. 231; PROPRIETORS OF CHURCH IN BRATTLE SQUARE v. GRANT, 3 Gray (Mass.) 142, 63 Am. Dec. 725, Burdick Cas. Real Property; Hunt v. Wright, 47 N. H. 396, 93 Am. Dec. 451 ; Palmer v. Bank, 17 R. I. 627, 24 Atl. 109 ; Cowell v. Springs Co., 100 V. S. 55, 25 I* Ed. 547. § 163) EXCEPTIONS TO THE BULE 399 pension of alienation is made the criterion of perpetuities. For ex- ample, in New York, the statute provides that "every future estate shall be void in its creation, which shall suspend the absolute power of alienation, by any limitation or condition whatever, for a longer ■ period than during the continuance of not more than -two lives in being at the creation of the estate." 91 The absolute power of alien- ation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. 82 Under such a stat- ute, it is not necessary that a future contingent estate shall vest within the period prescribed, namely, two lives in being; but it is necessary that there should be some person who can convey, within the statutory limitation, an absolute estate in fee in the property. For example, a limitation to the issue of A. who are living at the death of three or more persons is invalid. 93 The "two lives in be- ing" may be any two lives, regardless of the fact of their interest in the property. 84 The suspension of the power of alienation must necessarily cease during two lives; it is not sufficient that it may cease, or that, as a fact, in any particular qase, it does cease within such time. 95 Under the New Yorkdaw as amended, gifts of realty or personalty may be made to any trustee on a perpetual charitable trust, or to a corporation not yet in existence. 80 The former law that such gifts could be made only to such corporations as were expressly ^author- ized to hold property for charitable purposes has been changed, 87 and "the ancient law of charitable uses has been restored." 88 The New York statutes governing the suspension of alienation ap- 8i Laws N. Y. 1896, c. 547, § 32. In case of a contingent remainder in fee, the statute allows the further period of a minority. 82 Id. 83 Herzog v. Trust Co., 177 N. Y. 86, 69 N. B. 2S3, 67 L. R. A. 146; Nester v. Nester, 68 Misc. Rep. 207, 118 N. Y. Supp. 1009, 124 N. Y. Supp. 974; Van- derpoel v. Loew, 112 N. Y. 167, 19 N. E. 481. 84 Bailey v. Bailey, 97 N. Y. 460; Crooke v. County of Kings, 97 N. Y. 421 ; Woodgate v. Fleet, 64 N. Y. 566 ; Gilman v. Reddington, 24 N. Y. 9 ; Kahn v. Tierney, 135 App. Div. 897, 120 N. Y. Supp. 663. 86 Knox v. Jones, 47 N. Y. 389; Jennings v. Jennings', 7 N. Y. 547; Ahern v. Ahern, 52 App. Div. 356, 65 N. Y. Supp. 81. se Since the enactment of Laws N. Y. 1893, c. 701, and the decision of Allen v.* Stevens, 161 N. Y. 122, 55 N. E.> 568, property given for charitable purposes may pass to a corporation not necessarily formed within the statutory limit. Prior to this enactment a gift even for charitable purposes could not be made to a corporation not in existence, unless such corporation, must necessarily be formed within statutory limit, if at all. Tilden v. Green, 130 N. Y. 29, 2S N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487. 87 Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568. ss in re Watson's Estate, 171 N. Y. 256, 63 N. E. 1109. 400 THE RULE AGAINST PERPETUITIES (Ch. 16 ply both to realty and to personalty." There are also statutes in other states more or less similar to the statutes in New York. This is true of the states of California, 1 Michigan, 2 Minnesota, 8 and Wis- consin. 4 The statutes, however, of these last three states do not apply to personalty. 5 RULE AGAINST ACCUMULATIONS 164. Trusts for the accumulation of the rents and profits of land, other than accumulations for the payment of debts or in- cumbrances, are subject to the rule against perpetuities. In a number of states, however, statutes have prescribed a different period. Where the beneficiary of a trust must necessarily obtain a vested interest during the period prescribed by the rule against perpetu- ities, a direction that the income, rents, and profits of such trust property shall be accumulated by the trustee, until, for example, a certain fund shall be reached, is valid, even regardless of the length of time the period of accumulation is to run. 6 On the other hand, if the property is not sure to vest within the perpetuity pe- riod, a provision for its accumulation by trustees will violate the rule, and will be void. 7 8» Laws N. T. 1897, c. 417, § 2, provides as follows : The absolute ownership of personal property shall not be suspended by any limitation or condition for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitations or conditions, or if such instrument be a will, for not more than two lives in being at the death of the testator. i In re Haines' Estate, 150 Cal. 640, 89 Pac. 606 ; In re Campbell's Estate, 149 Cal. 712, 87 Pac. 573. 2 Foster. v. Stevens, 146 Mich. 131, 109 N. W. 265; Cole v. Lee, 143 Mich. 267, 106 N. W. 855. » CITX OF 'OWATONNA v. EOSEBEOCK, 88 Minn. 318, 92 N. W. 1122, Burdick Cas. Eeal Property; Shanahan v. Kelly, 88 Minn. 202, 92 N. W. 948. * Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258 ; Holmes v. Walter, 118 Wis. 409, 95 N. W. 3S0, 62 E. E. A. 986. b Atwater v. Eussell, 49 Minn. 22, 51 N. W. 624 ; Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258. The states of Idaho, Iowa, Indiana, Kentucky, and North Dakota, and likewise tbe District of Columbia also have statutes bear- ing upon this subject. See 30 'Cyc. 1520. e Kimball v. Crocker, 53 Me. 263 ; Otis v. Coffin, 7 Gray (Mass.) 511 ; Fitchie v. Brown, 211 TJ. S. 321, 29 Sup. Ct. 106, 53 L. Ed. 202 ; Thellusson v. Wood- ford, (1799) 4 Ves.' 227, affirmed (1805) 11 Ves. 112, H. L. 7 In re Gerber's Estate, 196 Pa. 366, 46 Atl. 497; Andrews v. Lincoln, 95 Me. 541, 50 Atl. 898, 56 L. E. A. 103; Girard Trust Co. v. Eussell, 179 Fed. 446, 102 C. C. A. 592. § 164) KULE AGAINST ACCUMULATIONS 401 Where, moreover, property is given absolutely to one under a present vested interest, no direction to trustees for the accumula- tion of the income can be too remote, for the reason that the rule does hot apply, since the power of accumulation is destructible, and the donee or grantee may, at any time, put a stop to the accumula- tions, and demand the full possession of the property. 8 Likewise, where property is given immediately and unconditionally to char- itable purposes, 'unlawful directions as to accumulations will not defeat the gift.* Trusts for accumulations for the purpose of paying debts and in- cumbrances are held not to be within the rule, either on the ground that the estate is vested, 10 or that the trusts are destructible by the payment of the debts. 11 In many states, the period of possible ac- cumulations has been restricted to a shorter time by statute. In some states, these periods are measured by minorities; in others, a definite number of years -is prescribed, regardless of lives or mi- norities. 12 » Kimball v. Crocker, 53 Me. 263 ; Roger's Estate, 179 Pa. 602, 36 Atl. 1130. In Connecticut and Massachusetts, the limit of an accumulation for the ben; efit of charity is subject to the orders of a court of equity. Woodruff v. Marsh, 63 Conn. 125, 26 Atl. 846, 38 Am. St. Rep. 346; St. Paul's Church v. Attor- ney General, 164 Mass. 188, 41 N. E. 231. » Ingraham v. Ingraham, 169 111. 432, 48 N. E. 561, 49 N. E. 320 ; Dexter v. Harvard College, 176 Mass. 192, 57 N. E. 371; City of Philadelphia v. Girard's Heirs, 45 Pa. 9, 84 Am. Dec. 470; Martin v. Magham, 14 Sim. 230. io Southampton v. Hertford, 2 Ves. & B. 54, 65 ; Bacon v. Proctor, Turn. & R. 31. " Payne v. Grey, [1912] 1 Ch. 343, 368. C. A. 12 1 Stim. Am. St. Law, §§ 1443, 1444 ; Brandt v. Brandt, 13 Misc. Rep. 431, 34 N. T. Supp. 684. The English statutes on this subject are the Accumula- tions Act of 1880, commonly called the "Thellusson Act" (39 & 40 Geo. Ill, c. 98), and the Accumulations Act of 1892 (55 & 56 Vict. c. 58). The later act merely supplements the first. See De Hoghton v. De Hoghton, [1896] 1 Ch. 855, C. A. (twenty-one years) ; Herbert v. Freshfleld, [1903] 2 Ch. 330. Btjkd.Reai. Peop. — 26 402 BASEMENTS-, PROFITS A PRENDRE, RENTS, ETC. (Gl. 17 (B) RIGHTS EN THE LAND OF OTHERS CHAPTER XVII EASEMENTS, PROFITS A PRENDRE, RENTS, AND FRANCHISES 165. Rights in Land Apart from Ownership. 166. Easement Defined. 167. Classification of Easements. 168. Creation of Easements. 169. By Grant. 170. By Prescription. 171. Incidents of Easements. 172. Termination of Easements. 173. Particular Easements. 174. Rights of Way. 175. Highways. 176. Light and Air. 177. Lateral and Subjacent Support. 178. Party Walls. 179. Water Rights. 180. Profits a Prendre. 181. Rents. 182. Franchises. RIGHTS IN LAND APART FROM OWNERSHIP 165. Apart from estates or interests in land connected with own- ership, there may be rights in lands belonging to other persons. Such rights are illustrated by easements, profits a prendre, rents, and franchises. In addition to the rights 6f ownership of land, there also exist certain rights in lands owned by others. The needs of human relations cannot be met by the. theory of ownership alone. It must also be possible for a person to deal in a manner authorized by law with things which belong to another. 1 In recognition of this need, a legal theory of real rights in the property of others, that is, rights not merely personal, but rights enforceable against everybody, was developed by the Roman jurists. Such rights were technically known as "jura in re aliena." They are dis- tinguished from the rights of ownership, in that the rights of con- i Sohm's Inst Rom. Law, 337. § : 166) EASEMENT DEFINED 403 trol which they confer are limited in regard to their contents. 2 It is proposed in the present chapter to discuss certain rights in the land of others which are usually classed under incorporeal hereditaments, namely, easements, profits a prendre (including commons), rents, and franchises. Such rights are incorporeal, in that they issue out of, or are annexed to, things corporeal. They may also be of an inheritable quality, although they are not necessarily inheritable. Licenses are merely personal rights in another's lands, and do not arise to the dignity of an interest in land as. already shown. 8 EASEMENT DEFINED 166. An easement is a privilege or right, without taking any profit, which the owner or one parcel of land has, by reason of such ownership, to use the land of another for a certain defined purpose not inconsistent with the general property in the latter. The Rornan law of servitudes has had much influence upon the ■ English law of easements.* In the Roman law, servitudes are a division of "jura in re aliena," or real rights which one has in the property of another. Servitudes are of two classes, personal and prsedial. The former are individual rights, lasting at most for a lifetime; the latter are rights of using in a certain definite way the land of one person by the owner of adjoining land. 5 The land subject to this right is known as the servient land, while the land to which the right is attached is called the dominant land. 8 From the definition of an easement as given above, it appears that it corresponds to a praedial servitude of the Roman law. 7 In an 2 Id. 338. s Chapter XI. License distinguished from easement, see YEAGER V. TUN- ING, 79 Ohio ^St. 121, 86 N. E. 657, 19 L. R. A. (N. S.) 700, 128 Am. St. Rep. 679, Burdick Cas. Real Property. * See Williams, Inst, of Justinian, 80-88. o Owen v. Field, 102 Mass. 90, 103 ; Greenwood Lake & P. J. R. Co. v. Rail- road Co., 134 N. Y. 435, 439, 31 N. E. 874; Appeal of Big Mountain Imp. Co., , 54 Pa. 361, 369 ; Scheel v. Mining Co., 79 Fed. 821 ; Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72 ; Wagner v. Hanna, 38 Cal. Ill, 99 Am. Dec. 354 ; Harrison v. Boring, 44 Tex. 255; Perrin t. Garfield, 37 Vt 304. See 2 Wash. Real Prop. 25. • « Inst! of Justinian, II, 1. » Servitude is, however, a, broader term than 'easement, since It also in T eludes profits a. prendre. Lord Chancellor Selbome in Dalton v. Angus, 6 App. Cas. 740 (1881). 404 EASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Gl. 17 easement proper there must be two estates, the one burdened with the obligation, the other possessing the right of enjoyment, known respectively as the servient and dominant estates. 8 Looked at from the standpoint of the owner of the dominant estate, the right is an easement; from the standpoint of the servient estate, it is a servitude. The essential qualities of true easements are: (1) They are incorporeal; (2) they are imposed on corporeal property, and not upon the owner thereof; (3) they confer no right to a participation in the profits arising from such property; 1 (4) they are imposed for the benefit of corporeal property; (5) there must be two tenements, the dominant, to which the right belongs, and the servient, upon which the obligation rests. 9 Al- though easements are by most writers classed among incorporeal hereditaments, 10 yet the true nature of an easement is a matter of dispute among legal scholars ; " some contending that easements are not, incorporeal hereditaments at all, but rights appurtenant to corporeal hereditaments. 12 Distinguished from Other Rights Easements are distinguished from profits a prendre, in that an easement is a right merely to use the servient land in a particular manner, but carries with it no right to take anything from it, either of its soil, or produce, or game, 13 as is the case of a profit a prendre. 14 Easements also differ from licenses, in that a license' is personal, 15 and does not run with the land. 16 A license, more- s Goodwin v. Hamersly, 69 Conn. 115, 36 Atl. 1065 ; Karniuller v. Krotz, 18 Iowa, 352; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732; Hawkins v.'Rut- ter, 1 Q. B. 668 (1892). o Le Blond v. Town of Peshtigo, 140 Wis. 604, 123 N. W. 157, 25 L. K. A. (N. S.) 511 ; PIERCE v. KEATOR, 70 N. T. 419, 421, 26 Am. Rep. 612, Burdick Cas. Real Property; Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72, 89. io Williams, Real Prop. (3d Ed.) 265; Leake, Prop, in Land, 53; Goodeve, Real Prop. (1st Ed.) 351. Blackstone (II, Comm. 21) classes "commons" and "ways" as incorporeal hereditament, although he does not use the term "easement." See, also, 24 L. Q. R. 264. That easements are incorporeal hereditaments, see Stone v. Stone, 1 R, I. 425, 428 ; Stingerland v. Contracting Co., 43 App. Div. 215, 60 N. Y. Supp. 12, 22 ; Cary v. Daniels, 5 Mete. (Mass.) 236, 238 ; Nellis v. Munson, 108 N. Y. 453, 15 N. E. 739. ii See 24 L. Q. R. 199, '259, 264. 12 See Hood & Challis, Conveyancing, etc.,- Acts (0th Ed.) 150; Goodeve's Real Prop. (5th Ed.) 13, note. is Huntington v. Asher, 96 N. Y. 604, 48 Am. Rep. 652; Post v. Pearsall, 22 Wend. (N. Y.) 425 ; Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203. 14 PIERCE v. KEATOR, 70 N. Y. 419, 26 Am. Rep. 612, Burdick Cas. Real Property. And see infra. is See Licenses, ante. And see Ex parte Rawlings, 22 Q. B. D. 193, C. A. (1888.) io Taylor v. Waters, 7 Taunt. 374, 384. § 167) CLASSIFICATION OF EASEMENTS 405 over, may be created by parol, 17 while a deed, or some writing, as required by the statute of frauds, is usually necessary in order to grant an easement. 18 A license also is revocable at the will of the person giving it, 19 while easements are not. 20 A license is a mere authority to do a specific act or a series of specific acts on the land of the licensor, 21 while an easement is a permanent right or interest in the land of another. SAME— CLASSIFICATION. OF EASEMENTS 167. Easements may be classified as follows: (a) Continuous and non-continuous. (b) Appurtenant and in gross. (c) Affirmative and negative. (d) Of necessity and not of necessity. (e) Equitable or quasi easements. (f ) Private and public. There are various classes of easements met with in the reports, some of them being still of importance, although others are not. The distinction, for example, between the first class mentioned above, namely, continuous and non-continuous easements, is yet of practical value. 23 Continuous easements are said to be rights of a continuous nature, the enjoyment of .which may be continued i? Fitch v. Seymour, 9 Mete. (Mass.) 462; Morrill v. Mackman, 24 Mich. 279, 9 Am. Rep. 124; Miller v. Railroad Co., 6 Hill (N. Y.) 61; Hazel ton v. Putnam, 3 Pin. (Wis.) 107, 54 Am. Dec. 154 ; Id., 3 Chand. (Wis.) 117. is Howes v. Barmon, 11 Idaho, 64, 69, 81 Pac. 48, 69 L. R. A. 568, 114 Am. St. Rep. 255 ; Johnson v. Lewis, 47 Ark. 66, 2 S. W. 329 ; McManus v. Cooke, 35 Ch. D. 681 (1887) ; YEAGER v. TUNING, 79 Onio St. 121, 86 N. E. 657, 19 L. R. A. (N. S.) 700, 128 Am. St. Rep. 679, Burdick Cas. Real Property. And see Creation of Easements, infra. i» Cook v. Railroad Co., 40 Iowa, 451; Fitch v. Seymour, 9 Mete. (Mass.) 462 ; Morrill v. Mackman, 24 Mich. 279, 9 Am. Rep. 124 ; Miller v. Railroad Co., 6 Hill (N. Y.) 61. 20 Hills v. Miller, 3 Paige (N. Y.) 254, 24 Am. Dec. 218; Ex parte Coburn, 1 Cow. (N. Y.) 568 ; Foster v. Browning, 4 R. I. 47, 67 Am. Dec. 505 ; Wallis v. Harrison, 4 Mees. & W. 538. 2i See Licenses, ante. 22 The importance of this distinction lies in the fact that easements that pass by implication of law must be continuous. See infra. In England, how- ever, it is said that while, formerly, the distinction between continuous and non-continuous easements was of great importance, chiefly with reference to the creation of easements by implication of law, yet since the decision in Wheeldon v. Burrows (1879) 12 Ch. 31, C. A., the distinction has been treated as of little significance. Laws of Eng. vol. 11, p. 240. 406 EASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Ch. 17 without the necessity of any human interference, 23 as a right to lateral or subjacent support, 2 * a right to light and air, 25 a right, to an open drain, 28 or to water courses. 27 A non-continuous ease- ment, on the other hand, is an intermittent enjoyment of a right, 2 * an enjoyment to be had only by the interference of manj 29 such' as rights of way, 30 or a right to draw water. 31 Another classifi- cation of easements is that which divides them into easements, appurtenant and easements in gross. 32 The former class comprise easements proper, which cannot be severed from the tenement with which they are connected; that is, an easement belongs to an estate, and not to a person. 33 Easements in gross, however, are not connected with any parcel of land, and- exist in a person or in the public. 3 * It is, however, said that, strictly speaking, there 23 Lampman v. Milks, 21 N. T. 505; DEE v. KING, 77 Vt 230, 59 AH. 839, 68 L. R. A. 860, Burdick Cas. Real Property. 2* See Infra. 25 Lampman v. Milks, 21 N. Y. 505. se Hall v. Morton, 125 Mo. App. 315, 102 S. W. 570. See Brown v. Fuller, 165 Mich. 162, 130 N. W. 621, 623, 33 L. R. A. (N. S.) 459, Ann. Cas. 1912C, 853; Kelly v. Dunning, 43 N. J. Eq. 62, 10 Atl. 276; Pyer v. Carter, 1 H.,& N. 916. 2' Watts v. Kelson, 6 Ch. App. 166, 173. 28 Suffield v. Brown, 4 De G., 3. & Sm. 185. 2 9 Lampman v. Milks, 21 N. Y. 505. so Oliver v. Pitman, 98 Mass. 46; Pettingill v. Porter, 8 Allen (Mass.) 1, So Am. Dec. 671 ; Morgan v. Meuth, 60 Mich. 238, 27 N. W. 509 ; Stuyvesant v. Woodruff, 21 N. J. Law, 133, 57 Am. Dec. 156. But see Cihak v. Klekr, 117 111. 643, 7 N. E. Ill; Hutlemeier v. Albro, 18 N. Y. 48; Manbeck v. Jones, 190 Pa. 171, 42 Atl. 536. si Lampman v. Milks, 21 N. Y. 505. s? Dennis v. Wilson, 107 Mass. 591; Spensley v. Valentine, 34 Wis. 154; McMahon v. Williams, 79 Ala. 288. Some of the old reports speak of ease- ments as "appendant." An easement is never, however, appendant to land. This error arose from the ambiguous translation of the Latin word "perti- nens" in the old pleadings. Laws of Eng. vol. 11, p. 236. Profits a prendre may be, however, either appendant or appurtenant. See infra. sa Easements appurtenant inhere in the land. Moore v. Crose, 43 Ind. 30 ; Cadwalader v. Bailey, 17 R. I. 495, 23 Atl. 20; 14 L. R. A. 300 ; Kuecken v. Voltz, 110 111. 264. s* See Abbot v. Weekly, 1 Lev. 176 ; Fitch v. Rawling, 2 H. Bl. 393 ; Moun- sey v. Ismay, 1 Hurl. & C. 729, 3 Hurl. & C. 486 ; Hall v. Nottingham, 1 Exch. Div. 1; Tyson v. Smith, 9 Adol. & E. 406;- Nudd v. Hobbs, 17 N. H. 524; Knowles v. Dow, 22 N. H. 387, 55 Am. Dec. 163. Such rights do not exist in some states. Ackerman v. Shelp, 8 N. J. Law, 125. An easement cannot be granted in gross so that it will be assignable. Ackroyd v. Smith, 10 C. B. 164 ; Boatman v. Lasley, 23 Ohio St. 6l4. See Garrison v. Ruad, 19 111. 558, and, contra, Goodrich v. Burbank, 12 Allen (Mass.) 459. 90 Am. Dec. 161; Amidon v. Harris, 113 Mass. 59. Nor to give a right of action against a third person. Hill v. Tupper, 2 Hurl. & C. 121. § 167) . • CLASSIFICATION OF EASEMENTS 407 can be no such thing as an easement in gross, since it is necessary ■ that in every easemqnt" there should be both a servient and a domi- nant tenement. 85 There is, however, a class of rights which may- be exercised by individuals without any occupancy of a dominant tenement, a mere burden or servitude resting upon one piece of land for the use of a person, and such burdens have been con- veniently classed as easements in gross. 86 Highways have been classed as easements of this kind, also easements in respect to the flowage of water, 87 as, likewise, a right to draw water from a well. 88 Easements are also divided, with respect to the obligation imposed on the owner of the servient estate, into negative easements and affirmative easements. Under the former the owner of the servient estate is prohibited from doing some acts of ownership on his own property, as an easement that land shall not be built upon, 88 while in the case of an affirmative easement the owner of the servient es- tate is merely required to permit something to be done on his land, such as piling materials on it. 40 Easements of necessity, as distin- guished from easements not of necessity, are easements that are necessary for the use of the tenement, without which the land could not be used at all. 41 They are easements which pass by implication or construction of law. 42 Easements of necessity are sometimes called natural easements, in distinction from conven- tional easements, which arise by the agreement of the parties. 43 . as Hawkins v. Eutter [1892] 1 Q. B. 668; Rangeley v. Midland Rail Co. (1868) 3 Ch. App. 306, 311. 86 Willoughby v. Lawrence, 116 111. 11, 19, 4 N. B. 356, 56 Am. Rep. 758; Tlnicum Fishing Co.' v. Carter, 61 Pa. St. 21, 100 Am. Dec. 597 ; Wagner v. Hanna, 38 Cal. Ill, 99 Am. Dec. 354. See Hoosier Stone Co. v. Malott, 130 Ind. 21, 29 N. B. 412. 37 SHAW v. PROFITT, 57 Or. 192, 109 Pac. 584, 110 Pac. 1092, Ann. Cas. 1913A, 63, Burdick Cas. Real Property (a highway); De Witt v. Harvey, 4 Gray (Mass.) 486 ; Bissell v. Grant, 35 Conn. 288 ; Poull v. Mockley, 33 Wis. 482. 38 Amidon v. Harris, 113 Mass. 59; Owen v. Field, 102 Mass. 90; Pinkum v. Eau Claire, 81 Wis. 301, 51 N. W. 550. so Hills v. Miller, 3 Paige (N. Y.) 254, 24 Am. Dec. 218. See Washtmrn, Real Prop. (6th Ed.) § 1230. A negative easement involves merely a right to pro- hibit the commission of. certain acts upon the servient tenement. The com- monest forms are the right to light, the right to receive water flowing over the servient tenement, and the ,right to discharge water thereon. Laws of Eng. vol. 11, p. 240. 40 voorhees v. Burchard, 55 N. Y. 98 ; Appeal of Big Mounain Imp. Co., 54 Pa. 361. And see Melvin v. Whiting, 13 Pick. (Mass.) 184,, 4i Union Lighterage Co. v. Dock Co., ? Ch. 557, C. A. (1902) ; HILDRETH v. GOOGINS, 91 Me. 227, 39 Atl. 550, Burdick Cas. Real Prpperty. 42 See infra. 48 Laumier v. Francis, 23 Mo. 181 ; Stokoe v. Singers, 8 El. & Bl. 31. 408 BASEMENTS, PROFITS 1 PRENDRE, RENTS, ETC. (CK. 17 Easements are also sometimes distinguished as equitable or' quasi easements. They are not strict easements, but may arise between two pieces of land owned by the same person, when the enjoy- ment by one piece of a right in the other would be a legal ease- ment, were the pieces owned by different persons. 44 For example, an owner of-two lots may construct a drain for one of them across the other, and then sell either of them. In such case, if he trans- fer the dominant estate, the right to drain across the remaining lot will continue ; and the same result may obtain if he transfers the servient estate to one who has knowledge of the existence of the drain, and the easement is necessary to the enjoyment of the ■other lot. 46 Another classification of easements sometimes em- ployed is that of private and public easements. Private easements are easements proper; that is, there is both a servient and a domi- nant estate. Public easements are not strict easements. They are enjoyed by the public, and there is no dominant estate. They are illustrations of what are termed easements in gross. 48 SAME— CREATION OF EASEMENTS 168. Easements may be created either : (a) By grant, express or implied; or (b) By prescription. 169. BY GRANT — Easements created by grant include easements arising under covenants and implied grants. The grant of an easement must be in writing. Easements can be created only by grant, express or implied, or by prescription, which is based upon the common-law doctrine of the presumption of a grant, or upon statutory provisions. 47 *4 DEE v. KING, 77 Vt 230, 59 Atl. 839, 68 L. R. A. 860, Burdick Cas. Real Property; Wheeldon v. Burrows, 12 Ch. D. 31, C. A. (1879); Johnson v. Jordan, 2 Mete. (Mass.) 234, 37 Am. Dec. 85 ; Lampman v. Milks, 21 N. Y. 505; Watts v. Kelson, 6 Ch. App. 166. But see Suffield v. Brown, 4 De Gex, J. & S. 185 ; Thomson v. Waterlow, L. R. 6 Eq. 36. 45 Thayer v. Payne, 2 Cush (Mass.) 327; Pyer v. Carter, 1 Hurl. & N. 916; Dunklee v. Railroad Co., 24 N. H. 489; Seymour v. Lewis, 13 N. J. Eq. 439, 78 Am. Dec. 108. But see Nicholas v. Chamberlain, Cro. Jac. 121 ; Johnson v. Jordan, 2 Mete. (Mass.) 234, 37 Am. Dec. 85 ; Collier v. Pierce, 7 Gray (Mass.) 18, 66 Am. Dec. 453 ; Carbrey v. Willis, 7 Allen (Mass.) 364, 83 Am. Dec. 688 ; Randall v. McLaughlin, 10 Allen (Mass.) 366'; Buss v. Dyer, 125 Mass. 287; Butterworth v. Crawford, 46 N. T. 349, 7 Am. Rep. 352. 4e See supra. See, also, Black, L. Diet. ; Jones, Easements, § 422. 47 See, in general, as to the creation of easements, In re North Beach & §§ 168-170) - CREATION OF EASEMENTS 409 They may be created by grant; that is, by deed, like other inter- ests in' land. 48 Thus, they may be created in fee simple, 49 , or for life, 60 or for a -term of years. 61 The word "grant" is not necessary, however, for the creation of an easement, since any words which show an intention to create an easement will be sufficient.- 62 Ease- ments cannot, however, be created by parol, and an attempt to do so would amount only to a license, which would be revocable. 6 * A deed creating an easement must be executed, the same as a deed conveying any other interest in land. It may be necessary in some jurisdictions that it should, be sealed, 64 and also that it should be acknowledged and recorded. 60 By means of a reservation or an exception in a deed, a grantor of land may retain an easement for his own enjoyment, or for the enjoyment of himself and heirs, i M. R. Co., 32 Cal. 499 ; Tinker v. Forbes, 136 111. 221, 26 N. B. 503 ; Cole v. Hadley, 162 Mass. 579, 39 N. 'E. 279 ; White v. Railroad Co., 139 N. Y. 19, 34 N. E. 887 ; Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203 ; SHAW v. PROF- F1TT, 57 Or. 192, 109 Pac. 584, 110 Pac. 1092, Ann. Cas. 1913A, 63, Burdick Cas. Real Property. *s Cronkhite v. Cronkhite, 94 N. Y. 323; Wiseman v. Lueksinger, 84 N. Y. 31, 38 Am. Rep. 479 ; Forbes v. Balenseifer, 74 111. 183 ; Duinneen v. Rich, 22 Wis. 550; YEAGER v. TUNING, 79 Ohio St 121, 86 N. E. 657, 19 L. R. A. (N. S.) 700, 128 Am. St. Rep. 679, Burdick Cas. Real Property. *» Unless otherwise provided by statute, It has been held that the use of the word "heirs" is necessary to create an easement in fee, as in the case of a grant of a corporeal hereditament. See Hogan v. Barry, 143 Mass. 538, 10 N. E. 253 ; Bean v. French, 140 Mass. 229, 3 N. E. 206. This question is a dis- puted one, however; it being contended that words of limitation are not necessary for the creation of a perpetual easement by express grant. See, upon this point, the articles in 24 L. Q. R. pp. 199, 259, 264. oo Pym v. Harrison (1876) 33 L. T. 796, C. A. 6i Davis v. Morgan, 4 D. & C. 8, Curtis v. Gardner, 13 Mete. (Mass.) 457; Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen (Mass.) 159. 02 Rowbotham v. Wilson (1860) 8 H. L. Cas. 348, 362. os Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376, 6 L. R. A. 667; Wiseman v. Ducksinger, 84 N. Y. 31, 38 Am. Rep. 479; Cronkhite v. Cronkhite, 94 N. Y. 323 ; Tinker v. Forbes, 136 111. 221, 26 N. E. 503 ; Minneapolis W. Ry. Co. v. Railway Co., 58 Minn. 128, 59 N. W. 983. But see Wilkinson v. Suplee, 166 Pa. 315, 31 Atl. 36. An easement may, however, be created by parol, in equity, as where, for example, one agrees to grant an easement to the owner of adjoining land, who upon the faith of such promise changes his position to his injury. See McManus v. Cooke, 35 Ch. D. 681 (1887). 64 Brady v. Blackinton, 174 Mass. 559, 55 N. E. 474; Isele v. Schwamb, 131 Mass. 337; Wilkins v. Irvine, 33 Ohio St. 138. But see Union Terminal R. Co. v. Railroad Co., 9 Kan. App. 281, 60 Pac. 541; Ashelford v. Willis, 194 111. 492, 62 N. E. 817... 6 6 Morcum v. O'Keefe, 12 Luz. Leg. Reg. (Pa.) 213; Hays v. Richardson, 1 Gill & J. (Md.) 366. Contra Union Terminal R. Co. v. Railroad Co., 9 Kan. App. 281, 60 Pac. 541. 410 BASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Ch. 17 in the property conveyed. 58 A reservation, however, must be in favor of the grantor, and cannot be-made in favor of one not a party to the deed. 67 Covenants in deeds may alee operate as grants of easements; " for example, a series of building lots may be conveyed- with covenants by the grantee of each lot that he will not build within a certain distance of the street. Such covenants are held to impose a servitude on each lot in favor of the others. 68 Implied Grant In connection with a grant of land, easements appurtenant to it and necessary for its enjoyment pass with the grant of the domi- nant estate, although not expressly mentioned. 60 Easements, however, which pass by implication, must be necessary and per- manent in their character. 61 Ways of necessity are common* illustrations of easements created by implication. 62 ^ For the cre- Be DEB v. KING, 77 Vt. 230, 59 Atl. 839, 68 L. R. A. 860, Burdick Cas. Real Property ; Dipsby jr. Heller, 199 Mass. 310, 85 N. B. 453 ; Hale v. Jen- kins, 55 Misc. Rep. 119,' 106 N. Y. Supp. 282; Homer v. Keene, 177 111. 390, 52 N. E. 492; Inhabitants of Winthrop v. Fairbanks, 41 Me. 307; Emerson v. Mooney, 50 N. H. 315; Jones v. Adams, 162 Mass. 224, 38 N. E. 437; Sulli- van v. Eddy, 154 111. 199, 40 N. B. 482. There must be a sufficient description of the easement Wells v. Tolman, 88 Hun, 438, 34 N. Y. Supp. 840 ; Nunnel- ly v. Iron Co., 94 Tenn. 397, 29 S. W. 361, 28 L. R. A. 421. 6 7 Matter of City of Buffalo, 65 Misc. Rep. 636, 120 N. Y. Supp. 611; Kar- muller v. Krotz, 18 Iowa, 352; S. K. Edwards Hall Co. v. Dresser, 168 Mass. 136, 46 N. E. 420. But see Northern Pac. R. Co. v. Duncan, 87 Minn. 91, 91 N. W. 27<1. ss Van Ohlen v. Van Ohlen, 56 111. 528; Ladd v. Boston, 151 Mass. 585, 24 N. E. 858, 21 Am. St. Rep. 481 ; Wetmore v. Bruce, 118 N. Y. 319, 23 N. E. 303 ; Wilkinson v. Suplee, 166 Pa. 315, 31 Atl. 36. so Tallmadge v. Bank, 26 N. Y. 105; Winfield v. Henning, 21 N. J. Eq. 188; Peck v. Conway, 119 Mass. 546. So an agreement to clean and repair a water course which has been granted through covenantor's land was held to run with the land. Holmes v. Buckley, Prec. Ch. 39. But see Keates v. Lyon, 4 Ch. App. 218; Renals v. Cowlishaw, 11 Ch. Div. 866; Haywood v. Building Soc, 8 Q. B. Div. 403 ; Sharp v. Ropes, 110 Mass. 381 ; Norcross v. James, 140 Mass. 188, 2 N. E. 946. so Underwood v. Carney, 1 Cush. (Mass.) 285 ; Morgan v. Mason, 20 Ohio, 402, 55 Am. Dec. 464. Cf. Grant v. Chase, 17 Mass. 443, 9 Am. Dec. 161; Anderson v. Railroad Co., 132 App. Div. 183, 116 N.,Y. Supp. 954; Powers v. Heffernan, 233 111. 597, 84 N. E. 661, 16 L. R. A. (N.'s.) 523, 122 Am. St. Kep. 199 ; Jeffery v. Winter, 190 Mass. 90, 76 N. E. 282 ; Bean v. Bean, 163 Mich. 379, 128 N. W. 413 ; Purvis v. Overlander, 44 Pa. Super.- Ct. 22. See, also, Equitable Easements, supra. ei Francies' Appeal, 96 Pa. 200; Cihak v. Klekr, 117 111. 643, 7 N. E. Ill; Philbrick v. Ewing, 97 Mass. 133 ; Root v. Wadhams, 107 N. Y. 384, 14 N. E 281. 6 2 Blum v. Weston, 102 Cal. 362, 36 Pac. 778, 41 Am. St Rep. 188; Rock Island & P. Ry. Co. v. Dimick, 144 111. 628, 32 N. E. 291, 19 D. R. A. 105 ; New York & N. E. R. Co. v. Board of Railroad Com'rs, 162 Mass. 81, 38 N. E. §§ 168-170) CREATION OF BASEMENTS .411 ation, however, of a way of .necessity, the servient and the domi- nant estate must have been originally owned by the same person, since one cannot have a way of necessity over the land of one not a party to the transfer of the land. 63 170. BY PRESCRIPTION— Easements may be acquired by pre- scription in case of adverse user continued for the time required by the statute of limitations. Easements may also be created by what is known as prescrip- tion. At common law, prescription is based upon immemorial us- age, 84 by virtue of presumed ancient grant, of which, owing to the lapse of time, no evidence remains. 66 This is known as the doctrine of lost or destroyed grant. 86 By the ancient rule, the enjoyment of an easement had to be proved from a time "whereof the memory of man runneth not to the, contrary." 67 By an early English stat- ute, 68 however, the commencement of legal memory was fixed at the first year of the reign of Richard I, or, the year 1189, and the presumed grant was then assumed to have been made prior to that year. For the purpose of getting rid of the doctrine of "time im- memorial" and the presumption of lost grants, the English Prescrip- tion Act was passed in 1832, 69 which provided, in general, that an enjoyment for a period of twenty years should be sufficient. 70 This 27; Smyles v. Hastings, 22 N. Y. 217; HILDRETH v. GQOGINS, 91 Me. 227, 39 Atl. 550, Burdick Gas. i Real Property. «s Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 302; Tracy v. Ather- ton, 35 Vt. 52, 82 Am. Dec. 621 ; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61 ; Id., 15 Conn. 423 ; Banks v. School Directors, 194 111. 247, 62 N. E. 604. And see, Atchison, T. & S. F. R. Co. v. Conlon, 62 Kan. 416, 63 Pac. 432, 53 L. R. A. 7&L. Where there was originally no privity of ownership, the fact that the land of one person is entirely surrounded by the land of another does not of itself give the former a way of necessity over the land of such other person. Ellis v. Blue Mountain Forest Ass'n, 69 N. H. 385, 41 Atl. 856, 42 L. K. A. 570. «* Melvin v. Whiting, 10 Pick. (Mass.) 295, 20 Am. Dec. 524. See Mayor of Kingston v. Horner, Cowp. 102. And see Kent v. Waite, 10 Pi,ck. (Mass.) 138. The term "prescription" is, however, often used when the statute" of limita- tions is meant. so Webb v. Bird, 13 C. B. (N. S.) 841 ; Mayor of Kingston v. Horner, Cowp. 102. eo Goodman v. Saltash Corporation (1882) 7 App. Cas. 633, 654 ; Bass v. Gregory, 25 Q. B. D. 481 ; Cross v. Lewis, 2 Barn. & C. 686. And see, John- son v. Lewis, 47 Ark. 66, 2 S. W. 329. 87 Co. Litt 114b; Chapman v. Smith (1754), 2 Ves. Sen. 506; Johnson v. Lewis, 47 Ark. 66, 2 S. W. 329 ; Hall v. McLeod, 2 Mete. (Ky.) 98, 74 Am. Dec. 400. . '68 Westminster I, 3 Edw. I, c. 39 (1275 A. D.) ' « » St. 2 & 3 Wm. IV, c. 71. to Periods of 30, 40, and 60 years were fixed for particular cases. 412 BASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Ch. 17 act applies, in England, to easements of every kind, except light. 71 In this country, the doctrine of immemorial usage is also super- seded by the doctrine of the statute of limitations ; T2 " and either by express statute, or by the application of the statutes of limita- tions governing title by adverse possession of land, the enjoyment of an easement for the period prescribed by the statute, twenty years or less, will amount to a presumed grant of the same. 73 The character, however, of the acts necessary for gaining an easement under the statute of limitations and by the doctrine of prescrip- tion is the same, and the term "prescription" is often used to de- note the former. The user must be uninterrupted and continuous, 74 according to the nature of the easement. 76 It must also be visible, open, notorious, or with the knowledge and acquiescence of the owner of the servient estate, 76 since user in secret will not be suffi- cient to establish the right. 77 It must be adverse, under a hostile claim of right, 78 although color of title is not necessary. 79 It must ti Simpson v. Godmanchester Corporation [1897] A. C. 696, 909; Perry v. Eames [1891] 1 Ch. 658, 665. "Claflin v. Railroad Co.i 157 Mass. 489, 32 N. B. 659, 20 L. E. A. 438; Jones v. Crow, 32 Pa. 398 ; Kicard v. Williams, 7 Wheat. (TJ. S.) 59, 5 L. Ed. 398. 7 3 Thomas v. England, 71 Cal. 456, 12 Pac. 491; Chicago v. Railroad Co. 152 111. 561, 38 N. E. 768; Kamer v. Bryant, 103 Ky. 723, 46 S. W. 14, 20 Ky. Law Rep. 340 ; O'Brien v. Goodrich, 177 Mass. 32, 58 N. E. 151 ; Chase v. Middleton, 123 Mich. 647, 82 N. W. 612 ; Lewis v. Railroad Co., 162 N. Y. 202, 56 N. E. 540; Carter v. Fishing Co., 77 Pa. 310; Ricard v. Williams, 7 Wheat. (U. S.) 59, 5 L. Ed. 398. ™ Richard v. Hupp (1894) 104 Cal. xviii, 37 Pac. 920 ; Chicago & N. W. Ry. Co. v. Hoag, 90 111. 339; Phoenix Ins. Co. v. Haskett, 64 Kan. 93, 67 Pac. 446; Sargent v. Ballard, 9 Pick. (Mass.) 251 ; Smith v. Floyd, 18 Barb. (N. Y.) 522 ; Jones v. Crow, 32 Pa. 398. "Bodfish v. Bodfish, 105 Mass. 317; Cox v. Forrest, 60 Md. 74; Iselin v. Starin, 144 N. Y. 453, 39 N. E. 488 ; Humphreys v. Blasingame, 104 Cal. 40, 37 Pac. 804; Dalton v. Angus, 6 App. Cas. 740, affirming Angus v. Dalton, 4 Q. B. Div. 162. For acts held insufficient to create easements in water by prescription, see Green Bay & M. Canal Co. v. Water Power Co., 90 Wis. 370, 61 N. W. 1121, 63 N. W. 1019, 28 L. R. A. 443, 48 Am. St. Rep. 937; Mason v. Horton, 67 Vt, 266, 31 Atl. 291, 48 Am. St. Rep. 817. 7 Richard y. Hupp (1894) 104 Cal. xviii, 37 Pac. 920; Chicago & N. W. R. Co. v. Hoag, 90 111. 339; Carbrey v. Willis; 7 Allen (Mass.) 364, 83 Am. Dec. 688; Hurt v. Adams, 86 Mo. App. 73; Treadwell v. Inslee, 120 N. Y. 458, 24 N. E. 651. 77 Cook y. Gammon, 93 Ga. 298, 20 S. E. 332; Daniel v. North, 11 East, 372. But when the user is open and uninterrupted, the servient owner is charged with notice. Bushey v. Santiff, 86 Hun, 384, 33 N: Y. Supp. 473. 78 Clarke v. Clarke, 133 Cal. 667, 66 Pac. 10; Chicago, B. & Q. R. Co. v. Ives, 202 111. 69, 66 N. E. 940 ; Kilburn v. Adams, 7 Mete. (Mass.) 33, 39 Am. Dec. 754 ; People v. Ferguson, 119 Mich. 373, 78 N. W. 334 ; City of Buffalo v. Rail- road Co., 68 App. Div. 488, 74 N. Y. Supp. 343 ; Jones v. Crow, 32 Pa. 398. 7»Burbank v. Fay, 65 N. Y. 57; Bachelder v. Wakefield, 8 Cush. (Mass.) §§ 168-170) CREATION OF EASEMENTS . ' 4:13 not be permissive, 80 since its use cannot be adverse, if it is begun with. the permission of the owner of the land, 81 or by his license. 82 The prescriptive period does not begin to run until some act of user arises which would give the owner of the land a cause of action, 83 and it does not begin to run while the owner of the servient estate is under disability. 84 Likewise the • period does not begin against a reversioner or remainderman until. he is entitled to possession of the estate. 8 " The period of adverse occupancy required by the stat- ute need not be confined to one person, but may be covered by a num- ber, if they are in privity. 88 The public, however, cannot acquire an easement by prescription, 87 although a dedication may be presumed from use by the public. 88 An easement, moreover, cannot be acquired by prescription against the state or nation. 89 243; Blanchard v. Moulton, 63 Me. 434; Richard v. Hupp, 104 Cal. xviii, 37 Pac. 920. so Thomas v. England, 71 Cal. 456, 12 Pac. 491 ; Stewart v. Andrews, 239 111: 186, 87 N. E. 864; Blgelow Carpet Co. v. Wiggin, 209 Mass. 542, 95 N. E. 938; Moore v. Bulgreen, 153 Mich. 261, 116 N. W. 1005; Slattery v. Mc- Caw, 44 Misc. Rep. 426, 90 N. Y. Supp. 52 ; Zorby v. Allen, 215 Pa. 383, 64 Atl. 587. si Smith v. Miller, 11 Gray (Mass.) 145; Perrin V. Garfield, 37 Vt. 304; Carger v. Fee, 140 Ind. 572, 39 N. E. 93. See Atkins v. Bordman, 2 Mete. (Mass.) 457, 37 Am. Dec. 100. That no easement is acquired by the use of a way maintained by the owner of the land for his own convenience, see Wood v. Reed (Sup.) 30 N. Y. Supp. 112. 82 Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479; Cronkhite v. Cronkhite, 94 N. Y. 323 ; Johnson v. Skillman, 29 Minn. 95, 12 N. W. 149, 43 Am. Rep. 192; Colchester v. Roberts, 4 Mees. & W. 769. 83 Roe v. Howard County, 75 Neb. 448, 106 N. W. 587, 5 L. R. A. (N. S.) 831 ; Van Duzen v. Schraffenberger, 2 Ohio S. & C. P. Dec. 470; Ells v. Railroad Co., 49 W. Va. 65, 38 S. E. 479, 87 Am. St. Rep. 787. See Frant v. Mendonca, 131 Cal. 205, 63 Pac. 361. s* Reimer v. Stuber, 20 Pa. 458, 59 Am. Dec. 744. Disability arising after the user is begun does not interrupt the acquisition of the right. Tracy v. Atherton, 36 Vt 503; Wallace v. Fletcher, 30 N. H. 434. Contra, Lamb v. Crosland, 4 Rich. (S. C.) 536. «s Schenley v. Com., 36 Pa. 29, 78 Am. Dec. 359; Pentland v. Keep, 41 Wis. 490. so Bryan v. East St. Louis, 12 111. App. 390; Sargent v. Ballard, 9 Pick. (Mass.) 251; Cole v. Bradbury, 86 Me. 380, 29 Atl. 1097; Ross v. Thompson, 78 Ind. 90 ; Melvin v. Whiting, 13 Pick. (Mass.) 184 ; Hill v. Crosby, 2 Pick. (Mass.) 466, 13 Am. Dec. 448. a? Pearsall v. Post, 20 Wend. (N. Y.) Ill; Ackerman v. Shelp, 8 N. J. Law, 125. ss Verona Borough v. Railroad, 152 Pa. 368, 25 Atl. 518; Klenk v. Town of Walnut Lake, 51 Minn. 381, 53 N. W. 703. 8» Glaze v. Railroad Co., 67 Ga. 761; Miser v. O'Shea, 37 Or. 231, 62 Pac. 491, 82 Am. St Rep. 751. But see Atty. Gen. v. Copper Co., 152 Mass. 444, 25 N. E. 605, 9 L. R. A. 510. 414 EASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Ch. 17 SAME— INCIDENTS OF EASEMENTS 171. The principal rights and incidents growing out of easements are the following: (a) The dominant owner must use his easement, and the servient owner his estate, in a reasonable manner. (b) The dominant owner must repair the easement. (c) The servient owner must not 'obstruct the easement. Use of Basement An easement can be lawfully used only for the objects and pur- poses for which it was granted, 90 or acquired by prescription.* 1 Moreover, the owner of the dominant estate must make his use of the easement reasonable, so as to interfere as little as possible with the servient owner's enjoyment of his land. 92 On the other hand, the latter must not use his estate in such a way as to obstruct the easement or unreasonably interfere *with its enjoyment. 83 The grant of an easement, however, includes a grant of all rights neces- sary for its use. ; »o Warren & O. R. Co. v. Garrison, 74 Ark. 136, 85 S. W. 81 ; Winslow v. Vallejo, 148 Cal. 723, 84 Pac. 191, 5 L. R. A. (N. S.) 851, 113 Am. St. Rep. 349, 7 Ann. Cas. 851 ; Rolens v. Hutchinson, 83 Kan. 618, 112 Pac. 129. See Forbes v. Gorman, 159 Mich. 291, 295, 123 N. W. 1089, 25 L. R. A. (N. S.) 318, 134 Am. St Rep. 718 ; Crabtree Coal Min. Co. v. Hamby's Adm'r, 90 S. W. 226, 28 Ky. Law Rep. 687 ; Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197 ; Waters v. Lumber Co., 115 N. C. 648, 20 S. E. 718. Nor can the use of the dominant ten- ement be changed so as to increase the burden. Wood v. Saunders, 10 Ch. App. 582. »i Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197; Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731 ; Prentice v. Geiger, 74 N. Y. 341. 92 Bennett v. Seligman, 32 Mich. 500 ; Knowles v. Nichols, 14 Fed. Cas. No. 7,897, 2 Curt. 571. See Willoughby v. Lawrence, 116 111. 11, 4 N. E. 356, 56 Am. Rep. 758 ; Kaler v. Beaman, 49 Me. 207. »3Wellsv,v. Tolman, 88 Hun, 438, 34 N. T. Supp. 840; Bakeman v. Talbot, 31 N. T. 366, 88 Am. Dec. 275 ; Gerrish v. Shattuck, 132 Mass. 235 ; Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113; Williams v. Clark, 140 Mass. 238, 5 N. E. 802 ; Connery v. Brooke, 73 Pa. 80. Cf. Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506; Attorney^ General v. Williams, 140 Mass. 329, 2 N. E. 80, 3 N. E 214, 54 Am. Rep. 468. Plowing part of land over which there is a right of way is not necessarily an interference with the easement. Moffitt v. Lytle, 165 Pa. 173, 30 Atl. 922. A contract to permit the use of a wall for a sign space is an easement, and implies the right of such access to the wall as is necessary for the purpose indicated. R. J. Gunning Co. v. Cusack 50 111. App. 290. § 171) INCIDENTS OF EASEMENTS 415 Repairs of Basement In absence of an agreement to the contrary, 84 the owner of the servient estate is, as a rule, under no obligation to make repairs, 95 since the owner of the dominant estate — that is, the one who has the benefit of the easement — must keep it in repair and condition for use. 96 The easement carries with it the right to do anything necessary to make repairs, 97 including a right of entry upon the servient estate for such purposes. 98 Obstruction of Basement The owner of the servient estate has no right to obstruct an easement in any way that will interfere with its reasonable use. 99 Should he do so, the owner of the dominant estate may have an ac- tion for the obstruction of his easement by the servient owner, even though no actual damage has been caused. 1 The owner of the domi- nant estate may also remove obstructions to his easement, and may enter upon the servient estate for that purpose, 2 providing, how- ever, he commits no breach of the peace in so doing. 8 In cases •* See Doane v. Badger, 12 Mass. 65. »5 Oney v. Land Co., 104 Va. 580, 585, 52 S. E. 343, 2 L. R. A. (N. S.) 832, 113 Am. St. Rep. 1066 ; Hastings v. Railroad Co., 148 Iowa, 390, 126 N. W. 786 ; Fritcher v. Anthony, 20 Hun (N. Y.) 495. See Bryn Mawr Hotel Co. v. Bald- win, 12 Montg. Co. Law Rep. (Pa.) 145. ' »6 Herman v. Roberts, 119 N. Y. 37, 23 N. E. 442, 7 L. R. A. 226," 16 Am. St Rep. 800; Townsend v. Railroad Co., 56 Misc. Rep. 253, 106 N. Y. Supp. 381; Washb. Easem. & Serv. (4th Ed.) 730; Doane v. Badger, 12 Mass. 65. But cf. Pomfret v. Ricroft, 1 Saund. 321 ; Morrison , v. Marquardt, 24 Iowa, 35, 92 Am. Dec. 444. »7 Ballard v. Titus, 157 Cal. 673, 110 Pac. 118; Wells v. Tolman, 88 Hun, 438, 34 N. Y. Supp. 840; Fetter v. Schmidt, 5 Lane. Law Rev. (Pa.) 9; Thay- er v. Payne, 2 Cush. (Mass.) 327; Prescott v. White, 21 Pick. (Mass.) 341, 32 Am. Dec. 266; William's v. Safford, 7 Barb. (N. Y.) 309; Hamilton v. White, 5 N. Y. 9. "> s Prescott v. White, 21 Pick. (Mass.) 341, 32 Am. Dec. 266; Roberts v. Roberts, 7 Lans. (N. Y.) 55. 8 Dickinson v. Whiting, 141 Mass. 414, 6 N. E. 92; McTavish v. Carroll, 17 Md. 1 ; Quintard v. Bishop, 29 Conn. 366. i Schmoele v. Betz, 212 Pa. 32, 61 Atl. 525, 108 Am. St. Rep. 845; Collins v. St. Peters, 65 Vt 618, 27 Atl. 425 ; Joyce v. Conlin, 72 Wis. 607, 40 N. W. 212 ; McCord v. High, 24 Iowa, 336; Amoskeag Mfg. Co. v. Goodale, 46 N. H. 53. For acts held not to constitute an obstruction, see Green v. Goff, 153 111. 534, 39 N. E. 975. That a gate is not an obstruction of a right of way, see Hart- man v. Fick, 167 Pa. 18, 31 Atl. 342, 46 Am. St. Rep. 658. But see Rowe v r Nally, 81 Md. 367, 32 Atl. 198. 'a O'Brien v. Murphy, 189 Mass. 353, 75 N. E. 700 ; Morse v. Swanson, 129 App. Div. 835, 114 N. Y. Supp. 876; Sargent v. Hubbard, 102 Mass. 3S0; Joyce v. Conlin, 72 Wis. 607, 40 N. W. 212 ; McCord v. High, 24 Iowa, 336. a Schmidt v. Brown, 226 111. 590, 80 N. E. 1071, 11 L. R. A. (N. S.) 457, 117 Am. St Rep. 261; McEwan v. Baker, 98 I1L App. 271; Patout v. Lewis, 51 La. Ann. 210, 25 South. 134. 416 BASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Ch. 17 where the title to the easement is clear, the owner of the servient estate may be restrained by injunction from obstructing it,* pro- viding his legal remedy for damages is inadequate. 8 SAME— TERMINATION OF EASEMENTS 172. Easements may be terminated: (a) By release. (b) By license to the servient owner. (c) By abandonment. (d) By obstructions amounting to abandonment. (e) By merger. (f) By operation of law. (g) By adverse possession. (h) By cessation of their necessity, (i) By appropriation to public use. Easements may be terminated or destroyed in various ways. The owner of an easement may by deed release it to the owner of the servient estate. 6 An unexecuted parol agreement will not, how- ever, amount to a release. 7 An easement may also be destroyed by a license to the owner of the servient estate to do acts upon his land which interfere with the exercise of the easement ; 8 for instance, *Espencheid v. Bauer, 235 111. 172, 85 N. E. 230; Bailey v. Bank, 190 Mass. 20, 76 N. E. 449, 3 L, R. A. (N. S.) 98, 112 Am. St Rep. 296 ; Sultzman v. Branham, 128 Mo. App. 696, 108 S. W. 1074; Hess v. Kenny, 69 N. J. Eq. 138, 61 Atl. 464 ; Louisville & N. R. Co. v. Smith, 128 Fed. 1, 63 C. C. A. 1 ; Herman v. Roberts, 119 N. Y. 37, 23 N. E. 442, 7 L. R. A. 226, 16 Am. St. Rep. 800 ; Frey v. Lowden, 70 Cal. 550, li Pac. 838 ; Stallard v. Cushing, 76 Cal. 472, 18 Pac. 427; Bailey v. Schnitzius, 53 N. J. Eq. 235, 22 Atl. 732, 32 Atl. 219; Martin v. Price [1894] 1 Oh. 276. « Danielson v. Sykes, 157 Cal. 686, 109 Pac. 87, 28 L. R. A. (N. S.) 1024 ; Lehigh Valley R. Co. v. Water Co., 76 N. J. Eq. 504, 74 Atl. 970; Taylor v. Wright, 76 N. J. Eq. 121, 79 Atl. 433 ; Edwards v. Haeger, 180 111. 99, 54 N. E. 176; Cadigan v. Brown, 120 Mass. 493; Rhea v. Forsyth, 37 Pa. 503, 78 Am. Dec. 441; Hicskell v. Gross, 3 Brewst (Pa.) 430. e Welliner v. Power Co., 38 Pa, Super. Ct. 26 ; Richards v. Railroad Co., 153 Mass. 120, 26 N. E. 418; Flaten v. Moorhead, 58 Minn. 324, 59 N. W. 1044. See Hamilton v. Farrar, 128 Mass. 492. 'Dyer v. Sanford, 9 Mete. (Mass.) 395, 43 Am. Dec. 399. And see Pope 'v. Devereux, 5 Gray (Mass.) 409. s Boston & P. R. Corp. v. Doherty, 154 Mass. 314, 28 N. E. 227 ; Dyer v. Sanford, 9 Mete. (Mass.) 395, 43 Am. Dec. 399 ; Morse v. Copeland, 2 Gray (Mass.) 302 ; Addison v. Hack, 2 Gill (Md.) 221, 41 Am. Dec 421 ; Logins v Inge, 7 Bing. 682. § 172) TERMINATION OF BASEMENTS 417 an easement of light and air may be lost by a permission given the owner to erect a wall on his land which would obstruct the light. 9 Easements may also be lost by' abandonment. 10 Abandonment, however, is a matter of fact, 11 and mere nonuser, although con- tinued for the period prescribed by the statute of limitations, is not, in itself, conclusive of the fact of abandonment. 12 This is the es- tablished rule in the case of easements created by grant, 18 although some states hold that nonuser in the case of easements acquired by prescription will amount tQ an abandonment, providing the nonuse has been continued for the time required for title by prescription. 14 Connected with the doctrine of abandonment is the doctrine of ob- structions which destroy the enjoyment of the easement. A mere misuser will not destroy an easement, 10 but where by the erection of obstructions the owner of the easement does anything which in- creases the burden of the easement, he thereby destroys his ease- ment, unless the increase of the burden can be separated from the » Winter v. Brockwell, 8 East, 308. See, also, Morse v. Copeland, 2 Gray (Mass.) 302. \ io Trimble v. King, 131 Ky. 1, 114 S. W. 317, 22 L. R. A. (N. S.) 880 ; Oney v. Land Co., 104 Va. 580, 52 S. B. 343, 2 L. R. A. (N. S.) 832, 113 Am. St, Rep. 1066 ; Snell v. Levitt, 110 N. Y. 595, 18 N. E. 370, 1 L. R. A. 414 ; Canny v. Andrews, 123 Mass. 155 ; Hickox v. Railroad Co., 78 Mich. 615, 44 N. W. 143 ; Town of Freedom v. Nbrris, 128 Ind. 377, 27 N. B. 869; Steere v. Tiffany, 13 R. I. 568 ; Richard v. Hupp, 104 Cal. xviii, 37 Pac. 920. But see Jones v. Van Bochove, 103 Mich. 98, 61 N. W. 342; Pratt v. Sweetser, 68 Me. 344; Duncan v. Rodecker, 90 Wis. 1, 62 N. W. 533; Suydam v. Dunton, 84 Hun, 506, 32 N. T. Supp. 333. nVogler v. Geiss, 51 Md. 407; King v. Murphy, 140 Mass. 254, 4 N. E. 566 ; Cooper v. Smith, 9 Serg. & R. (Pa.) 26, 11 Am. Dec. 658. 12 Mason v. Ross, 75 N. J. Eq. 136. 71 Atl. 141. See Matter of, City of Buf- falo, 65 Misc. Rep. 636, 120 N. Y. Supp. 611 ; King v. Murphy, 140 Mass. 254, 4 N. E. 566 ; Valentine v. Schreiber, 3 App. Div. 235, 38 N. Y. Supp. 417 ; Bombaugh v. Miller, 82 Pa. 203. is Petitpierre v. Maguire, 155 Cal. 242, 100 Pac. 690; Lutheran Swedish Evangelist Church v. Jackson, 229 111. 506, 82 N. E. 348; Conabeer v. Rail- road Co., 156 N. Y. 474, 51 N. E. 402 ; Citizens' Electric Co. v. Davis, 44 Pa. Super. Ct. 138 ; Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128 ; Barnes v. Lloyd, 112 Mass. 224 ; Riehle v. Heulings, 38 N. J. Eq. 20 ; Ford v. Harris, 95 Ga. 97, 22 S. E. 144; Edgerton v. McMullan, 55 Kan. 90, 39 Pac. 1021; Lovell v. Smith, 3 C. B. (N. S.) 120. See, also, Ward v. Ward, 7 Exch. 83S. i* Browne v. Baltimore M. E. Church, 37 Md. 108; Shields v. Arndt, 4 N. J. Eq. 234. By statute, so in some states. Civ. Code Cal. 1899, § 811 ; Uiv. Code Mont. 1895, § 1260 ; Rev. Codes N. D. 1899, § 3361 ; St. Okl. 1893, § 3734 ; Civ. Code S. D. § 277. . ib McCullough v. Exch. Co., 101 App. Div. 566, 92 N. Y. Supp. 533; Mendell v. Delano, 7 Mete. (Mass.) 176 ; Deavitt v. Washington County, 75 Vt. 156, 53 Atl. 563 ; Walker v. Gerhard, 9 Phila. (Pa.) 116. Bubd.Real Pbop. — 27 418 BASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Ch. 17 original. 10 Such obstructions and burdens will be regarded as an abandonment. 17 Obstructions erected, however, by the owner of the servient estate, without the consent of the owner of the dom- inant estate, will not destroy the easement. 18 No one can have an easement in his own estate in fee. 19 Consequently, when there is a merger; of the dominant and servient estates in the same per- son, as where the owner of the easement acquires title to the ser- vient estate, the easement is terminated. 20 If, however, the dom- inant estate is of greater duration than the servient, the ease- ment will only be suspended during the continuance of the servient- estate. 21 Moreover, if the title to the latter estate is subsequently defeated, the result' is the same — a mere suspension of the ease- ment. 22 When there is a merger, the easement is extinguished, and is not renewed by a subsequent grant of the dominant estate, though the same or a similar easement may be implied, or may arise by necessity. 23 Easements may also be terminated by operation of law, as where, for example, the servient estate is destroyed. 24 Ad- "Fowjer v. Wick, 74 N. J. Eq. 603, 70 Atl. 682; Deeves v. Constable, 87 App. Div. 352, 84 N. T. Supp. 592; Stenz v. Mahoney, 114 Wis. 117, 89 N. W. 819; Washb. Easem. & Serv. (4tn Ed.) 704; Jones v. Tapling, 11 C. B. (N. S.) 283. Cf. Harvey v. Walters, L. R. 8 C. P. 162. iTNorris v. Hoffman, 62 Misc. Rep. 385, 115 N. T. Supp. 890; Corning v. Gould, 16 Wend. (N. Y.) 531 ; Skrainka v. Oertel, 14 Ho. App. 474 ; Stein v. Dahm, 96 Ala. 481, 11 South. 597. isLavillebeuvre v. Cosgrove, 13 La. Ann. 323. See Ballinger v. Kinney, 87 Neb. 342, 127 N. W. 239. 19 Oliver v. Burnett, 10 Cal. App. 403, 102 Pac. 223; Rogers v. Powers, 204 Mass. 257, 90 N. E. 514; Zerbey v. Allan, 215 Pa. 383, 64 Atl. 5S7; Morgan v. Meuth, 60 Mich. 238, 27 N. W. 509; Parsons v. Johnson, 68 N. Y. 62, 23 Am. Rep. 149. 20 Drake v. Land Co., 10 Cal. App. 654, 103 Pac. 167. See City of Chicago v. Hogberg, 217 111. ISO, 75 N. E. 542 ; Riehlman v. Field, 81 App. Div. 526, 81 N. Y. Supp. 239 ; Kieffer v. Imhoff, 26 Pa. 438 ; McAllister v. Devane, 76 N. C. 57 ; Ritger v. Parker, 8 Cush. (Mass.) 145, 54 Am. Dec. 744. 2iBlanchard v. Maxson, 84 Conn. 429, 80 Atl. 206; Smith v. Roath, 238 111. 247, 87 N. E. 414, 128 Am. St Rep. 123; Atlanta Mills v. Mason, 120 Mass. 244 ; Thomas y. Thomas, 2 Cromp., M. & R. 34. 22 Tyler v. Hammond, 11 Pick. (Mass.) 193; Duval v. Becker, 81 Md. 537, 32 Atl! 308. 23Hurlburt v. Firth, 10 Phila. (Pa.) 135; Kieffer v. Imhoff, 26 Pa. 438; Miller v. Lapham, 44 Vt 416; Hazard v. Robinson, 3 Mason, 272, Fed. Cas. No. 6,281. 2* Cotting v. Boston, 201 Mass. 97, 87 N. E. 205; Lawson v. Murden, 60 Misc. Rep. 163, 112 N. Y. Supp. 140 ; Weis v. Meyer, 55 Ark. 18, 17 S.' W. 339; Hahn v. Baker, Lodge No. 47, 21 Or. 30, 27 Pac. 166, 13 L. R. A. 158, 28 Am. St. Rep. 723 ; Shirley v. Crabb, 138 Ind. 200, 37 N. E. 130, 46 Am. St. Rep. 376 ; Bartlett v. Peaslee, 20 N. H. 547, 51 Am. Dec. 242. A right to use a stairway in a building may be destroyed by the destruction of the build- ing. Douglas v. Coonley, 84 Hun, 158, 32 N. Y. Supp. 444. §§ 173-179) PARTICULAB EASEMENTS 419 verse possession by the servient owner for the statutory period may also put an end to an easement. 26 Easements of necessity cease when the necessity ceases, 26 although this rule does not apply to necessary rights of way when acquired by grant 2T or by prescrip- tion. 28 An appropriation to public use of the land of the servient estate will likewise destroy an easement. 29 SAME— PARTICULAR EASEMENTS 173. The most important easements are the following: (a) Rights of way. (b) Highways. (c) Light and air. (d) Lateral and subjacent support. (e) Party walls. (f) Easements in water. 174. RIGHTS OF WAY — A right of way is an easement in favor of an individual or class of individuals to have a passage on an established" line over land of the. servient owner to and from land of the dominant owner. Rights of way are either public or private. A public right of way is known as a highway. 80 A 'private right of way is denned above. It may also be defined as the right of going over another man's ground, 81 particularly so when it is a mere personal right or a right 2created either by deed 71 or by prescription." When created by deed, it may be a grant of a rent to a person to whom no estate in the land is conveyed, or by a reservation of a rent out of land granted. 73 Rents may be created by any form of con- veyance which is sufficient to transfer other incorporeal heredita- ments, and they also may be granted in trust, or conveyed by way of uses. After a rent has been created, it may be transferred like any other estate. 74 The rules governing assignments of rent of the land out of which they issue, and of the reversion, if there be one, have already been considered. 76 Although the rule was otherwise at common law, the owner of a rent may now divide it, or it may descend to several heirs. 76 Moreover, when the owner of a rent service pur- chases part of the land out of which the rent issues, or releases ( a part of the rent to the owner of that land, the rent is apportioned pro rata. 77 With a rent charge, however, it is otherwise, and the same acts would cause an extinguishment of the rent, because no apportionment is possible, except by a new agreement of the parties. 78 It is otherwise, however, when part of the land has come to the owner of the land by descent, instead of by his own act. 79 An eviction of the tenant from the land out of which the rent is reserved will extinguish the rent, and if the eviction is by the owner of the rent, even from only a part of the land, the rent is extinguished. 80 The doctrine of merger applies to rents. 81 Dis- " Wallace v. Harmstad, 44 Pa. 492; Ingersoll v. Sergeant, 1 Whart (Pa.) 337; Taylor v. Vale, Cro. Eliz. 166. Cf. Williams v. Hayward, 1 El. & El. 1040. 72 Wallace v. Presbyterian Church, 111 Pa. 164, 2 Atl. 347. 'a Scott v. Lunt, 7 Pet (U. S.) 596, 8 L. Ed. 797; Polts v. Huntley, 7 Wend. (N. Y.) 210. t* Scott v. Lunt, 7 Pet. (U. S.) 596, 8 L. Ed. 797; Van Rensselaer v. Read, 26 N. V. 558; Van Rensselaer v. Hays, 19 N. Y. 68, 75 Am. Dec. 278. Cf. Trulock v. Donahue, 76 Iowa, 758, 40 N. W. 696 ; Van Rensselaer v. Dennison, 35 N. Y. 393. ■^ 76 Ante, Transfer of Estates for Years. ■"> Cook v. Brightly,, 46 Pa. 439; Farley v. Craig, 11 N. J. Law, 262. But see Ryerson v. Quackenbush, 26 N. J. Law, 236. 77 Co. Litt. § 222; Paul v. Vannie, 1 Clark (Pa.) 332; Ingersoll v. Sergeant, 1 Whart. (Pa.) 337. 7 8 Dennett v. Pass, 1 Bing. N. C. 388. But see Parley v. Craig, 11 N. J. Law, 262. See, also, Church v. Seeley, 110 N. Y. 457, 18 N. E. 117. 7» Cruger v. McLaury, 41 N. Y. 219, 223. so Co. Litt 148b ; 6 Bac. Abr. 49 ; Lewis v. Payn, 4 Wend. (N. Y.) 423. Compare Folts v. Huntley, 7 Wend. (W. Y.) 210. And see Watts v. Coffin, 11 Johns. (N. Y.) 499. si Cook v. Brightly, 46 Pa. 439; Philips v. Clarkson, 3 Yeates (Pa.) 124; § 182) FBANCHISES 449 tress, as a remedy for rent, has already been considered, as well as covenants for the payment of rent, and conditions of re-entry for its nonpayment. 82 The remedy, at common law, by which rent may be recovered by action, may be governed by the form of instrument creating the rent. For example, if the deed contains a covenant, or if the rent is created by indenture, covenant is the proper form of action ; M while, if the creation is by a deed poll, that is, sealed and signed only by the creator of the rent, assumpsit would be the remedy. 84 Debt for rent lies, however, in nearly all cases. 80 FRANCHISES 182. A franchise is a special privilege or immunity of a public nature, conferred upon individuals by legislative grant, and which cannot legally be exercised without such grant. ss Franchises are often called incorporeal hereditaments. 87 They may be bought and sold, and may descend to heirs, and may be Bunting's Estate, 16 Wkly. Notes Cas. (Pa.) 335 ; Van Rensselaer v. Gifford, 24 Barb. (N. Y.) 349. «»See Estates for Tears, Landlord and Tenant, ante. ss Brown v. Johnson, 4 Rawle (Pa.) 146; Maule v. Weaver, 7 Pa. 329; Finley v. Simpson, 22 N. J. Law, 311, 53 Am. Dec. 252. And see Thursby v. Plant, 1 Lev. 259; Stevenson v. Lambard, 2 East, 575. But cf. Milnes v. Branch, 5 Mauie & S. 411. / s* Goodwin v. Gilbert, 9 Mass. 510-; Johnson v. Muzzy, 45 Vt. 419, 12 Am. Rep. 214 ; Hinsdale v. Humphrey, 15 Conn. 431. And cf. Falhers v. Corbret, 2 Barnard, 386 ; Johnson v. May, 3 Lev. 150. By statute in Pennsylvania, the remedy of covenant is given for rent in arrears, regardless of the former common-law distinction between a deed poll and a deed of indenture. See Louer v. Hummel, 21 Pa. 450, 454. ss Farewell v. Dickenson, 6 Barn. & C. 251; Reade v. Johnson, Cro. Eliz. 242 ; Newcomb v. Harvey, Carth. 161 ; Stroud v. Rogers, 6 Term R. 63, note ; Case of Loringe's Ex'rs, Y. B. 26 Edw. Ill, p. 10, pi. 5; Gibson v. Kirk, 1 Q. B. 850 ; Thomas v. Sylvester, L. R. 8 Q. B. 368. But see Marsh v. Brace, Cro. Jac. 334 ; Bord v. Cudmore, Cro. Car. 183 ; Pine v. Leicester, Hob. 37 ; Humble v. Glover, Cro. Eliz. 328 ; Webb v. Jiggs, 4 Maule & S. 113. ss See Thompson v. Moran, 44 Mich. 602, 604, 7 N. W. 180, 181; Maestri v. Board of Assessors, 110 La. 517, 34 South. 658, 661. 87 2 Blk. Comm. 21, 37; Gregory v. Blanchard, 98 Cal. 311, 33 Pac. 199; Rohn v. Harris, 130 111. 525, 22 N. E. 587 ; Billings v. Breinig, 45 Mich. 65, 7 N. W. 722. People v. O'Brien, 111 N. Y. 1, 18 N. E 692, 2 L. R. A. 255, 7 Am. St. Rep. 684; Wilmington & W. R. Co. v. Reid, 13 Wall. (U. S.) 264, 20 L. Ed. 568. Bubd.Real Peop. — 29 £50 EASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Ch. 17 devised. 88 "All the elementary writers treat franchises as real prop- erty, though incorporeal in their nature." 8B With reference, however, to franchises held by corporations, as most franchises are in modern times, the term hereditament is applied "with some impropriety," as pointed out by Chancellor Kent, 00 since such franchises have no heritable quality, inasmuch as a corporation, in absence of express limitation, is supposed never to die. 01 Moreover, corpo- rate franchises are not generally subject to sale or transfer, 92 unless the right is given by statute, 93 and, in recent years, franchis- es are usually^ granted for a term of years, rather than in fee. 9 * A franchise is denned by Blackstone 9S as a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. 96 It is otherwise denned as a special privilege conferred by the government on individuals, and which does not belong to the citizens of a country generally by common right. 07 Franchises contain, as said by Chancellor Kent, "an implied covenant on the part of the government not to invade the rights vested, and, on the part of. the grantees, to execute the conditions and duties as Enfield Tollbridge Co. v. Railroad Co., 17 Conn. 40, 59, 42 Am. Dec. 716; Norwich Gaslight Co. v. Gas Co., 25 Conn. 19 ; 2 Washb. Real Prop, (oth Ed.) 310; Greer v. Haugabook, 47 Ga. 282. But see Foster v. Fowler, 60 Pa. 27; Yellow River Imp. Co. v. Wood Co., 8LWis. 554, 51 N W. 1004, 17 L. R. A. 92. ss Randolph v. Lamed, 27 N. J. Eq. 557, 561. The word "franchise" is a term of broad and various meanings. For example, in a popular sense, politi- cal rights are often called "franchises," as the electoral franchise. Pierce v. Emery, 32 N. H. 484, 507. »o 3 Kent, Comm 459. »i A railroad franchise is regarded, however, as an incorporeal heredita- ment, as distinguished from land, which is a corporeal hereditament. Gibbs v. Drew, 16 Fla. 147, 26 Am. Rep. 700. »2 Randolph v. Lamed, 27 M. T. Eq. 557; Carpenter v. Mining Co., 65 N. Y. 43 ; Wright v. Light Co., 95 Wis. 29, 69 N. W. 791, 36 L. R. A. 47, 60 Am. St. Rep. 74 ; Gibbs v. Gas Co., 130 U, S. 396, 9 Sup. Ct. 553, 32 L. Ed. 979. 9 3 Wright v. Light Co., 95 Wis. 29, 69 N. W. 791, 36 L. R. A. 47, 60 Am. St Rep. 74 ; Chapman Valve Mfg. Co. v. W£ter Co., 89 Wis. 264, 60 N. W. 1004, 46 Am. St. Rep. 830. 9* McGow'en v. Stark, 1 Nott & McC. (S. C.) 387, 9 Am. Dec. 712; Clark v. White, 5 Bush (Ky.) 353; Conway v. Taylor, 1 Black (U. S.) 603, 17 L. Ed. 191." 952 Comm. 37, following the definition of Finch, 164. See, also, 3 Cruise, Dig. 278. 9 a, And see State v. City of Topeka, 30 Kan. 657, 2 Pac. 587; Lasher v. People, 183 111. 226, 232. 55 N. E. 663, 47 L. R. A. 802, 75 Am. St. Rep. 103 ; Thompson v. People, 23 Wend. (N. Y.) 537, 578; Thompson v. Moran, 44 Mich. 602, 604, 7 N. W. 180. ' »7 Martens v. People, 186 111. 314, 318, 57 N. E. 871; St Louis Gas Light Co. v. Power Co., 16 Mo. App. 52, 72 ; Rhinehart v. Redfield, 93 App. Div. 410, 414, 87 N. Y. Supp. 789 ; Bank of Augusta y. Earle, 13 Pet. (U. S.) 519, 595^ 10 L. Ed. 274. § 182) FRANCHISES 451 prescribed in the grant." B * All franchises are supposed to be for the public good, 89 and a franchise is in the nature. of a contract, being, on the one hand, a grant by the state or a municipality of certain rights and privileges which could not be otherwise exer- cised, in consideration for certain benefits to the public, to be supplied by the grantee. A failure of the grantees to carry out the purposes for which the franchise was granted gives cause for for- feiture of the franchise. Forfeiture, however can be obtained only at the suit of the government. 1 A franchise may be a monopoly, 2 but it is not necessarily so. 8 Where an exclusive franchise has been granted, it assumes the character of a contract which is pro- tected by the constitutional provisions against impairing the ob- ligation of the contract, and therefore - no conflicting franchises can be granted. 4 An exclusive franchise, however, like other prop- erty, may be taken under the right of eminent domain. 6 Among the familiar illustrations of franchises may be mentioned rights to collect tolls and charges in connection with public ferries, 6 turnpike roads, 7 public markets, 8 public wharves^ and public »s 3 Kent, Comm. 458, quoted in Thompson v. People, 23 Wend. (N. T.) 537, 578. »» Rochester, H. & L. R. Co. v. Railroad Co., 44 Hun (N. Y.) 206. i Chicago City Ry. Co. , v. People, 73 111. 541 ; City of Jeffersonville v. The John Shallcross, 35 Ind. 19 ; Greer v. Haugabook, 47 Ga. 282. 2 Slingerland v. Contracting Co., 43 App. Div. 215, 60 N. Y. Supp. 12 ; Reg. v. Halifax County Ct. Judge [1891] 1 Q. B. 793. Compare Knoup v. Bank, 1 Ohio St. 603, 614. , a Chicago & W. I. R. Co. v. Dunbar, 95 111. 571 ; Milhan v. Sharp, 27 N. Y. 611, 84 Am. Dee. 314 ; Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 420, 9 L. Ed. 773, 938. * Milhau v. Sharp, 27 N. Y. 611, 84 Am. Dec. 314 ; Newburgh & C. Turnpike Road Co. v. Miller, 5 Johns. Ch. (N. Y.) 101. 9 Am. Dec. 274 ; Boston & L. R. Corp. v. Railroad Co., 2 Gray (Mass.) 1; McRoberts v. Washburne, 10 Minn. 23 (Gil. 8). But see Hopkins v. Railroad Co., 2 Q. B. Div. 224; Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44. B West River Bridge Co. v. Dix, 6 How. (U. S.) 507, 12 L. Ed. 535 ; In re Towanda Bridge Co., 91 Pa. 216. « Dyer v. Bridge Co., 2 Port (Ala.) 296, 27 Am. Dec. 655 ; Rohn v. Harris, 130 111. 525, 22 N. E. 587 ; In re Pay, 15 Pick. (Mass.) 243 ; Milhau v. Sharp, 27 N. Y. 611, 84 Am. Dec. 314. 7 Matter of People of New York, 70 Misc. Rep. 72, 128 N. Y. Supp. 29 ; Powell v. Sammons,- 31 Ala. 552 ; Blood v. Woods, 95 Cal. 78, 30 Pac. 129 ; State v. Road Co., 116 Mo. App. 175, 92 S. W. 153. s Maestri v. Board of Assessors, 110 La. 517, 34 South. 658 ; Twelfth St. Market Co. v. Railroad Co., 142 Pa. 580, 21 Atl. 902, 989. » Sullivan v. Lear, 23 Fla. 463, 2 South. 846, 11 Am. St. Rep. 388 ; Flan- dreau v. Elsworth, 151 N. Y. 473, 45 N. E. 853 ; Pelham v. The B. F. Woolsey, 16 Fed. 418. 452 EASEMENTS, PROFITS A PRENDRE, RENTS, ETC. (Ch. 17 bridges; 10 rights to construct and operate railroads ; 1X and rights to construct and maintain water plants, 12 gas plants, 13 and electric light plants. 1 * One of the most usual franchises in earlier times was the right to maintain and operate a public ferry, 15 and the decisions relating to such rights have served to shape the law regulating franchises in general. Thus, it is held that a ferry is an incorporeal hereditament, 1 " and that it can be transferred only by deed. 17 "A ferry is not granted for the benefit of the owner, but for the benefit of the public and the ferry owner must give attendance at due times, keep a boat in proper order, and take but reasonable toll." 1S A riparian owner has no right to establish a ferry on a navigable river without authority from the state. 10 When a franchise for a ferry has been. accepted by the grantees, they are bound to pro- vide accommodation for the public, and are liable for injuries caus- ed by defect in their boats and other appliances. 20 On t:he other hand, they become entitled to take toll. 21 If an exclusive franchise has been granted for maintaining a ferry, it includes the right to enjoy it, free from interference by contiguous and injurious competition, 22 and if another ferry should be established so near loTruckee & T. Turnpike Road Co. v. Campbell, 44 Cal. 89; Southampton v. Jessup, 162 N. Y. 122, 56 N. E. 538; Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 420, 9 L. Ed. 773, 938. nDriscoll v. Railroad Co., 65 Conn. 230, 32 Atl. 354, 357; Denver & S. Ry. Co. v. Railway Co., 2 Colo. 673, 682. 12 Spring Valley Water Works v. Schottler, 62 Cal. 69 ; Frankfort v. Stone, 108 Ky. 400, 56 S. W. 679, 22 Ky. Law Rep. 25 ; State ex rel. Attorney Gen- eral v. Water Co., 107 Wis. 441, 83 N. W. 697. is See "Gas," in Cyc. I " Purnell v. McLean, 98 Md. 589, 56 Atl. 830. is Ipswich v. Browne, Sav. 11; Peter v. Kendal, 6 Barn. & C. 703, 711; Mabury v. Ferry Co., 9 C. C. A. 174, 60 Fed. 645. In Iowa, such a right has been held to be personal property. Lippencott v. Allander, 27 Iowa, 460, 1 Am. Rep. 299. i« Peter v. Kendal, 6 B. & C. 703. it Bird v. Higginson, 2 Ad. & El. 696, 6 Ad. & El. 824. is Laws of Eng. vol. 14, p. 558; Dibden v. Skirrow (1807) 1 Ch. 437; Simp- son v. A. G. [1904] A. C. 476, 490. is Mills v. Learn, 2 Or. 215; Prosser v. Wapello County, 18 Iowa, 327. But see Chenango Bridge Co. v. Paige, 83 N. Y. 178, 38 Am. Rep. 407 ; Cooper v. Smith, 9 Serg. & R. (Pa.) 26, 11 Am. Dec. 658. 20 Southcote's Case (1601) 4 Co. Rep. 83b; Willoughby v. Horridge, 12 C. B. 742. 21 Ferrel-v. Woodward, 20 Wis. 458; Willoughby v. Horridge, 12 C. B. 742. 22 Huzzey v. Field, 2 Cromp., M. & R. 432; Long v. Beard, 7 N. C. 57; Aikin v. Railway Corp., 20 N. Y. 370. So building a bridge may interfere with a ferry. Gates v. McDaniel, 2 Stew. (Ala.) 211, 19 Am. Dec. 49 ; Smith § 182) FRANCHISES 453 as to produce such effect, it would constitute a nuisance.? 8 Fran- chises for bridges and turnpike roads are subject to the same general rules as those for ferries. 2 * v. Harkins, 38 N. C. 613, 44 Am. Dec. 83. Cf. Newton v. Cubitt, 12 C: B. (N. S.) 32, affirmed 13 O. B. (N. S.) 864.- 2 8 Midland Terminal & Ferry Co, v. Wilson, 28 N. J. Eq. 537; Collins v. Ewing, 51 Ala. 101 ; Walker v. Armstrong, 2 Kan. 198. 2* Ft Plain Bridge Co. v. Smith, 30 N. Y. 44; Newburgh & C. Turnpike Road Co. v. Miller, 5 Johns. Ch. (N. Y ) 1*01, 9 Am. Dec. 274 ; Norris v. Team- sters' Co., 6 Cal. 590, 65 Am. Dec. 535; Charles River Bridge v. Warren Bridge, 11 Pet (U. S.) 420, 9 L. Ed. 773. ; PART III MORTGAGES AND OTHER LIENS UPON REAL PROPERTY CHAPTER XVIII MORTGAGES (A) General Principles 183. Mortgages in the Early English and Roman Law. 184. Nature and Definition. 185. Parties to a Mortgage. 186. Subject-Matter of Mortgage. 187. Form of Mortgages. 188. Consideration of Mortgages. 189. Rights and Liabilities of Mortgagor and Mortgagee. 190. In General. 191. Possession and Use of Mortgaged Premises. 192. Accounting by the Mortgagee. 193. Insurance and Taxes. 194. Repairs and Improvements. 195. Injuries to the Premises. 196. Sale of the Mortgaged Property. 197. Assignment of Mortgages. MORTGAGES IN THE EARLY ENGLISH AND ROMAN LAW 183. For an explanation of many of the principles relating to mod- ern mortgages, it is necessary to refer to the early English and Roman law. „ The mortgage or pledge of property to secure the performance of some act or obligation has been common in all ages, and among all peoples, wherever the notions of property and individual owner- ship have been recognized. 1 Among the ancient Romans, and in i In Hebrew law, land could be mortgaged, but only till the next jubilee, which occurred every fifty years. At the jubilee, the original owner or his heirs were reinstated in the land which was discharged from all debt. The Hebrew word is "arab," to mortgage or pledge. See Neh. v. 3. In Mohammedan law, there is no difference between the pledge of goods (454) § 183) MORTGAGES IN THE EARLY ENGLISH AND ROMAN LAW 455 the later imperial law of Rome, as well as in the modern civil law, we find the doctrine of mortgages well established. 2 Mortgages were known to the Anglo-Saxons in England long before the com- ing of William the Conqueror, 8 and in later English times they be- came a substantial part of the jurisprudence of both the common law and of equity. 4 In our own modern law, the subject of mort- gages occupies one of the most important fields in the law of prop- erty. Anything which may be considered as property, whether denom- inated in the law as real or personal property, may be the subject of mortgage. 5 A mortgage of personal property is known as a "chattel mortgage," but the discussion of mortgages in this work will include only mortgages of real property. ' The word "mortgage" is derived from the French words '