\ GJornrll IGaui §>rlfnoI library KFP 112?M6l" Un,VerS " y Ubrary Law ol ' rea estate and conveyancing in P 3 1924 024 706 099 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/cu31924024706099 THE LA k vr OF IN PENNSYLVANIA. E. COPPEE MITCHELL, A. M., LL. D., ULTE PROFESSOR OF THE LAW OF REAL ESTATE AND CONVEYANCING AND OP EQUITY JtTRISPKUDENCE IN" THE DEPARTMENT OP LAW OF THE UNIVERSITY OF PENNSYLVANIA. PKEPAKEI) FOR THE PRESS ROBERT BY RALSTON. PHILADELPHIA. REES WELSH & CO., LAW PUBLISHERS, ig SOUTH NINTH STREET. 1890. Entered according to the Act of Congress in the year 1890, By KBES WELSH & CO., Philadelphia. PREFACE The present, volume is printed from the original manuscript of the late Professor E. Coppee Mitchell, with the authority of his executrix. As additions to the manuscript were constantly made by the author, it has been necessary, in preparing it for publication, to make some alterations in form and arrange- ment. No changes have been made however except such as were deemed necessary to express clearly the author's mean- ing. Eeferences to recent cases and acts of assembly have been added in order to bring the book down to date. The editor takes this opportunity of acknowledging the val- uable assistance rendered to him, in the progress of the work through the press, by Owen Wistee, Esq., of the Philadelphia Bar, by whom also the index has been prepared. B>. R. Philadelphia, Man, 1890. TABLE OF CONTENTS. Part I.— REAL ESTATE. Chaptkr I. PAGE Introduction— Definition of Real Estate — Origin of the Terms Beat and Personal as Applied to Property — Lands, Tenements and Her- editaments — The Origin of Property in Land, . . . 1-13 Chapter II What is Land? Land Natural — Water — Rights of Riparian Own- ers — Land by Accession — Growing Crops — Fixtures — Intention the Test or Criterion — Way-Going Crop — Party- Walls — Land by Construction of Law — Equitable Conversion — Land Divided Per- pendicularly and Horizontally — Boundaries — Navigable Streams — Streams not Navigable — Alluvions — Water-frontage — Grow- ing Timber — Minerals in Place — Rights of Surface Owner — Tax- ation of Minerals, . . . . 14-33 Chapter III. Hereditaments — Corporeal and Incorporeal — How Distinguished — Effect of Grant of Profits — Servitudes — Commons — 1 . Of Pastu re — Because of Vicinage — In Gross — 2. Of Est overs — 3. Of Turbary — Mining Rights — When Corporeal and When Incorporeal — Min- eral Oil— 4. Of Piscary — Public and Private Streams — Beds of Navigable Rivers, . 34-47 Chapter IV. Iiicorporeals— Continued. Easements — Definitions — Classes — 1 . Wa.vS — Public or High ways — Title of Adjoining Owner — Rights of Pub- (v) VI CONTENTS. PAGE lie — Liability of Municipalities for Injuries on Streets — Obstruc- tions in Streets — Sidewalks— Private Ways— Ways of Necessity — 2. Water-Courses and Other Water Rights — 3. Lateral Support — 4. Drain and Drip — 5. Burial Lots and Pews— 6. Light and Air — Licenses — When Irrevocable, ... . . . 48-62 Chapter V. Reut — Rent Service — Rent Charge — Rent Seek — Rent of Assize — Fee Farm Rent — Statute Quia Emptm-es — Ground Rents — Inger- soll v. Sergeant — Irredeemable Ground-Rents — Rent, When Due — Arrears of Rent — Apportionment of Rent — Demand — Eviction — Remedies for Recovery of Rent — Actions of Covenant, Debt and Assumpsit — Reentry — Distress — Things Privileged from Distress, Absolutely — Conditionally — Exemption Acts — Right to Sell Goods Distrained — Right to Follow Goods Fraudulently Removed, 63-76 Chatter VI. Tenures — In Pennsylvania — Wallace r. Harmstad — The Mark Sys- tem — Feuds — Principle of — Incidents — Fealty — Homage — Ser- vices — Duration — Classification — Knight-Service — Incidents — Free Socage — Villein Socage — Villenage — Incidents of Socage Tenure — Perm's Charter — Tenure in Early Colonial Charters, . 77-88 Chapter VII. Estates — Quantity of, Measured by Possible Duration — Freeholds — Of Inheritance, not of Inheritance — Inheritance Absolute — Fee- Simple — The Word "Heirs" Necessary to Create — Exceptions, Fines, Common Recoveries, &c, Executory Contracts to Convey, Wills — " Heirs " a Word of Limitation Defining Quantity of Es- tate — Restraints upon Alienation, 89-97 Chapter VIII. Inheritance Limited — Qualified, Base or Determinable Fees— Con- ditional Fees at Common Law — Statute De Donis — Fees-tail — How Created — Limitation to "Issue" — Definite and Indefinite Fail- ure of Issue — How Barred — Taltarum's Case — Common Recove- ries — Fines — In Pennsylvania Estates Tail Descend as at Common Law — Methods of Barring Entails in Pennsylvania — SherifFs Sale, Common Recovery, Fee-Simple Deed under Act 16 June, 1799— Act of 29 April, 1855. Prohibiting Creation of Estates Tail— Act 21 May. 1874. Relating to linpliwl or Supposed Entail- ments, ....... , . !1H-117 CONTENTS. Vll Chapter IX. PAGE Freehold Estates not of Inheritance — Life Estates Created by Act of Parties — Estates Pur Auler Vie — Rights of the Tenant for Life — Waste — 1. Voluntary Waste — Trees — Mines — Act of Assembly, 1U April, 1848 — 2. Permissive Waste — Equitable Waste — Reme- dies — Alienation of Life Estates — Forfeiture from Tenure — Gen- eral and Special Occupancy — Rents and Emblements, ... . 118-132 Chapter X. Life Estates by Operation of Law — 1. Tenant in Tail After Possi- bility of Issue Extinct — 2. Curtesy — At Common Law — In Penn- sylvania Before 1848 — Since Then — 3. Dower — At Common Law — In Pennsylvania — Statutory Substitutes For — Since 1869 — Wid- ow's Remedies — Nature of Statutory Dower — Eight Ways of Bar- ring Dower — Statute of Uses— 4. Inverted Descent for Life to Parents, .... 133-160 Chapter XI. Estates Less than Freehold — 1. Lease for Years— Could Take Ef- fect In Futuro — Entry Necessary to Complete Lessee's Rights — Tenure an Incident — Attornment — Durations oi these Estates — Duties and Rights of Lessee — of Lessor — 2. Tenant from Year to Year — 3. Tenant at Will— Duties and Rights— 4. Tenant at Sufferance ... 161-174 Chapter XII. Estates on Condition — 1. Implied— 2. Expressed — Special Limita- tions — Whether Condition or Limitation Depends on Construc- tion — Also Whether Condition or Covenant — Conditions Prece- dent and Subsequent — When Void— Performance— Conditional Limitations — Equity's Jurisdiction in Certain Cases of Breach, 175-188 Chapter XIII. Mortgages — Equity's Jurisdiction — Conveyance and Defeasance — Stipulations to Waive Equity of Redemption Invalid — What Debts a Mortgage Secures — Interest To-Day of Mortgagee — Of Mortgagor — Of Purchaser — "Under and Subject" — Creditor's Suit, how Brought — Priority of Mortgage Lien — Effect of Judi- cial Sale — Partition and Owelty — Rights of Assignee — Remedies, 189-209 VU1 CONTENTS. Chapter XIV. PAGE Uses and Trusts — Their Origin in the Roman Law — How Chancery came to Adopt them — The Rules Governing them Mainly For- eign to the Common Law — Statute of Uses— Resulting Uses — Shifting and Springing Uses — Possibility of Seisin -Trusts — Ac- tive and Passive— Uses upon Uses, . 210-322 Chapter XV. Estates of Future Enjoyment — Remainders, Created by Art of Par- ties — Reversions Created by Operation of Law — Rules Uoverning the Creation of Remainders — Vested Remainders — Rule in Shel- ley's Case — Contingent Remainders — Uncertainty of the Person — Of the Event — Contingent Uses — Executory Devises Wherein these Differ from Contingent Remainders — Merger, , , , . 223-244 Chapter XVI. Joint Tenancy — Its Four Necessary Unities — The Jus Accrescendi — Effect of State Legislation — Estates by Entireties — Coparcenary — Limited by Statute — Tenancy in Common — The most Usual in Pennsylvania To-Day — One Only of the Four Unities Necessary, 245-257 Part II.— CONVEYANCING. Chapter I. What a Perfect Title Requires — Actual Possession — Disseisin and Ouster— Right of Entry — Statute of Forcible Entry — The Right of Possession — Apparent — Actual— Desrent Cast — The Right of Property — Marketable Title, Chapter II. Distinction between Descent and Purchase — Who Jfai/ or Mai/ Xot be Heir — 1. Bastards — May be Legitimated — 1. By Act of Assem- bly (Prior tol874) — 2. By Marriageand Cohabitation of Parents — Rights of Bastards — May Inherit from Their Mother — Rights of Aliens — Adopted Children — II/io S/inll be Heir — The Intestate Acts — Descent of Trust Estates and Estates Tail — Lineal and Col- lateral Consanguinity — Civil and Canon Law Methods of Com- CONTENTS IX PAGE puting Consanguinity — Blackstoue's Canons of Descent — Act of 8 April, 1833 — Lien of Decedent's Debts — Provisions for Widows and Surviving Husbands — Descent to Lineals — Advancements — Collaterals — Whole and Half Blood — Blood of First Purchaser — Resume of Intestate Acts, . 269-309 Chapter III. Escheat — Meaning of Word — Distinction Between Escheat and For- feiture — Mode of Proceeding to Escheat Lands in Pennsylvania — Escheated Lands to be Leased — Commonwealth Barred after 21 Years — Escheat of Partnership Property — Trust Estates — Eight of Aliens to hold Land — Alienation in Mortmain — Restrictions on Corporations — Acts Confirming Voidable Titles, 310-323 Chapter IV. Forfeiture — 1 . For Crime — Abolished by Act of 1860 — Forbidden by Constitution of 1874, Except for Life of Offender — 2. Alienation Contrary to Law — Tortious and Innocent Conveyances — Denial by Tenant of Landlord's Title — 3. Lapse — 4. Simony — 5. Non- Performance of Conditions— 6. Waste — Statute of Gloucester — 7. Breach of Copyhold Customs— 8. Bankruptcy, 324-328 Chapter V. Title by Settlement and Improvement — Early Dispositions of Land in Pennsylvania — Kind of Settlement Required— Limit to Extent of Settlement — Rights of Settler — Abandonment, ... . 329-335 Chapter VI. Prescription — Foundation of Doctrine — What May be the Subject of Prescription — Lengthof Time Necessary to Complete the Right — Kind of User Required — Persons Against Whom Presumption Will Arise — Extent of the Right Gained — How Titles Gained by Prescription May be Lost by Non-User, 336-349 Chapter VII. Who May Alien and to Whom ? — Persons Out of Possession — The Commonwealth — The Necessity of Showing Title out of the Com- monwealth in Ejectment — Corporations — The Statutes of Mort- main — Corporations as Trnstees — Unincorporated Societies — Char- itable Uses — Partners and Partnership Real Estate— Lunatics — Habitual Drunkards — Infants — Persons Under Duress, . . 350-371 X CONTENTS. Chapter VIII. PAOE Who May Convey and to Whom (miliuneil. Feinr» Coreii — Their Disabilities at Common Law— Conveyances by, at Common Law and Under Pennsylvania Statutes — Trusts for Separate Use — Power over Separate Estate — Lancaster t: Dolan — Act of 11 April, 1848— Rights of Married Women Under— Feme Sole Traders-Acts of 4 May, 1855, and 3 April, 1872 -Act of 3 June, 1887— Aliens— Papists— Trustees, 372-387 Chapter IX. Alienation — Seisin — The English Statutue of Frauds and the Penn- sylvania Act of 21 March, 1772 — What Writing is Necessary — What Estates are Within the Statute— Exceptions to the Statute — Part Performance — Judicial Sales — LaDds in Other States — Equit- able Estates— Act of 23 April, 1856— Trusts by Operation of Law, o*-<-401 Chapter X. Deeds — Deeds-Poll and Indentures — Requisites to a Deed — Common La \v Con vey ances — Original — Feoffment — Gift — Grant — Lease — Exchange — Partition — Derivitive — Release — Confirmation — Sur- render — Assignment — Defeasance — Conveyances Under Statute of Uses Covenant to Stand Seised — Bargain and Sale — Lease and Release — Deeds to Lead and Declare Uses, 402-416 Chapter XL Deeds — Continued. Pennsylvania Deeds — Act 28 May, 1715 — An Indenture — The Premises — Date — Antedated Deeds — Deeds Made or Delivered on Sunday — Parties — Their Names and Descrip- tions — Recitals — When Evidence — General and Particular Reci- tals — Ancient Deeds — Consideration and Acknowledgment of Re- ceipt — The Words of Grant — Covenant Implied from Words "Grant, Bargain, Sell" — Description — Boundaries — Streets and Streams -Appurtenances — What Easements Pass without Being Mentioned— Exceptions, 417-432 Chapter XII Deeds — ('iinli)nirrl. The Habendum The Tenendum-The Redden- dum— Conditions — Covenants — Express and Implied — Real and Personal -Covenants Running with the Land — Spencer's Case — CONTENTS. XI t PAGE Liability from Privity of Contract — Liability from Privity of Estate — Covenants for Title — Covenants of Warranty, General and Special— The Conclusion, ... . 433-450 Chapter XIII. Requisites to a Deed — Reading — Execution — Signing — Sealing — What Constitutes a Seal — Seals of Corporations — Delivery — Es- crows — Attestation — Acknowledgment — Before Whom Acknowl- edgments of Deeds executed within and Without the State May be Made — Certificate of Acknowledgment — Acknowledgments by Married Women — Act 24' February, 1770 — Certificates of Acknowl- edgments of Married Women — Defects in, Cured — Fraud and Im- position Upon Married Women — Probate — Stamps — Deeds of Corporations — Recording— Acts 28 May, 1715, and 18 March, 1775 — What May be Recorded — What Musi be Recorded — Unre- corded Deeds Void Only as Against Bona Fide Purchasers and Mortgagees for Valuable Consideration Without Notice — What is Notice of an Unrecorded Deed — Effect of Possession — Recording of Mortgages— Act 28 March, » 1820— Who are Affected by the Record of a Deed, . . . 451-472 Chapter XIV. Construction of Deeds — Maxims — Deeds to be Construed Favoura- bly, and Most Strongly Against Grantor — Void jand Voidable Deeds — Fraud on Third Parties — Statutes 13 Eliz. and 27 Eliz. — Fraud on Creditors — Fraudulent Deeds Good as Between Parties, Though Void as Against Creditors — Who May Take Advantage of the Fraud — Fraud a Question of Fact — Alteration of Deeds — In- terlineations — Alterations Must be Material — Blanks in a Deed Fraudulently FilledUp, . . 473-486 Chapter XV. Title by Matter of Record — Acts of Assembly — Constitutional Re- strictions Upon the Legislature — Right of Eminent Domain — Com- mon Recoveries — Sheriff's Sales — Acknowledgment of Sherifi's Deeds — Jurisdiction — The Judgment — Proceedings Which Must be Observed— The Sheriff Must Act Within His Authority— Fraud in Sheriffs Sales— Title of Purchaser at Sheriffs Sale— Sales Under Judgments Upon Liens — Redemption Upon Sales for Taxes and Municipal Claims — Judicial Sales — Sales of Decedents' Estates and Estates of Minors— The Price Act — Jurisdiction of Courts of Common Pleas and Orphans' Courts — Security in Sales Under the Price Act — Every Man Must Have His Day in Court, 487-504 XU TABLE OF CASES. Chapter XVI. PAGE Powers — Common Law Powers and Powers Derived from the Dex- trine of Uses Powers Relating to Land and Powers Simply Col- lateral- Creation of Powers — The Statute of Frauds — Powers of Attorney of Married Women — Powers of Executors — Execution of a Power — By Whom the Power May be Executed — Mode of Executing the Power — When the Power May lie Executed— I {evo- cation of Powers, . . ~A)o-'i\2 Chapter XVII. Wills— Definition— Wills of Land— The Statute of Frauds— The Wills Act of H April, 1833— Who May Make a Will— Testamentary Capacity — Undue Influence — Rights of Widows and Surviving Husbands — What May be Devised — How Wills May be Made and Executed — Rules of Construction — Mode of Execution — Must be Signed at the End — Marks — Wills of Married Women — Gifts to Charities — Revocation of Wills — Express and Implied — Probate and Effect of Wills— Equitable Election, . . 513-534 TABLE OF CASES. A. Academy c Smith, 193, 436 Acor's Est., 145 Adam's App., 202 Adams r. Bleakley, 139 r. McKesson's Ex'rs. 103 Affolter r. May, 230 Agricultural Bonk c. Uice. 420 Aiman p. Stout, 365 Aitken v. Young, 396 Ake v. Mason, 426, 427 Aldridge v. Burlison, 426 Alexander v. Jameson, 454 Allen's Est., 396 Allen p. Allen, 392 v. Vandivort, 56 Allison v. Wilson, 27 Altemose r. Hufsmith, 20 Alter's App., 526 Altoona r. Lotz, 53 Altwalter v. Woods, 59 Anderson v. Greble, 37 Angier's Case, 158 Angier v. Schieffelin, 461 Anspach's App., 207 Armstrong r. Boyd, 427 v. Caldwell, 31 Arnold t. Jack, 251 Arrisen v. Harmstad, 485 Ash c. G-uie, 357 Ashman v. Wigton, 32 Aston v. Aston, 126 Atkinson p. Tomlinson, 496 Aubert's App., 511, 530 Auman v. Auman, 477 Aurand v. Schaffer, 482 Ayetsky v. Goery, 384 U. liabb p. Clemson, 484 Backenstoss i: Stahler's Adm'r, 18 Bailey's App., 51 Baird i: Lent, 496 Piaker, App. of David S., 527 Baker v. McDowell, 477 r. Singer Mnffj. Co., 3"<1 Baker & Wheeler's Anp.. 523 Baldwin's Est,, 527 Ball r. Slack, 28 Ballard v. Ward, 282, 397 Bank v. McCoy, 366 v. Thomas, 203 r. Wood, 197 Bank of Penna. i . Wise, 69 Barley p. Zeigler, 27 Barnet v.. Dougherty. 400 Barnett's App., 221 Barnhart r. Petit, 264 Barns r. Wilson. 70 Barr r. Boyles, 482 Barrett v. Bamber, 387 v. Nealon, 481 Barton r. Glasgo, 332 r. Hunter, 497 Bassett r. Hawk, 229, 511 Baum i: Tonkin, 194 Baum's App., 458 Baxter v. Maxwell, 384 i. Smith, 374 Bealor v. Hahn, 140 Bear r. Whisler, 186 Bears p. Ambler, 167 r. Robinson, 197 Beaver r. Nutter, 26 Beck v. Garrison, 426 (xiii) XIV TABLE OF CASES. Beers v. Robinson, 198 Beitenrnan's App., 419 Bell's App., 508 Bell c. Bell, 197 ( . Kennedy, 422, 486 c. O. & P. K. K. Co., 40 v. Reed, 59 Bender i\ Bender, 391 Bennett v. Bittle, 426 v. Boggs, 46 Bensell v. Chancellor, 366 Benson i\ Maxwell, 192, 482 v. Miner's Bank, 31, 477 Bentz v. Armstrong, 59 Berridge v. Glassey, 96, 434 Berry r. McMullen, 446 Bett's App., 182 Bicking's App., 135 Biddle c. Hooker, 68 Billington's Est., 509 Bingham's App., 511 Binney's App., 208 Birkbeck v. Kelly, 395, 398 Bitner c. Bitner, 517 Bittinger v. Baker, 168, 172, 173 Bitting's App., 16 Black i>. Tricker, 383 Blackman's Est. , 158 Blank r. German, 197, 430 Blight r. Schenck, 457 Bloomer's Est., 206 Blum ii. Hartman, 519 Blum v. Ross, 139 Blymire v. Boistle, 200 Boggs r. Varner, 423 Bombaugh v. Miller, 348 Bond v. Bunting, 461 Bonnel, Lessee of, v. Devebaugh, 331 Bonsall's App., 27 Book v. Book, 513 Borland r. Nichols, 148 Borough n. Kline, 53 Botts v. Knabb, 381 Bouvier's Est., 68 Bovard v. Kettering, 384 Bowers r. Clark, 156 ii. Oyster, 191, 192 Bowman v. Robb, 455 Bowman i. Van Baum, 364 Boyd e. Boyd, 517, 518 Boynton v. Winslow, 498 Bradde <>. Brownrield, 494 Bradford Oil Co. r. Blair, 442 Bradfords v. Kents, 149 Bradish v. McClellan, 53:2 Brandt v. McKeever, 47 Bredin v. Agnew, 290 Brenneman's App , 300. 303 Briggs r. Large, 73 Brinser r Anderson, 399, 470 Broad Top Coal Co. c. Kiddlesburtr Coal Co., 332 Brocket v. O. & Pa. K. R. Co., 15 Brodhead v. Heller, 3.">(l. 152 Broe p. Boyle, 531 Brooke's App. 469, 471 1 Brooks v. Merchants' Bank, 386 Brothers v. McCurdy, 96 Brotherton r. Livingston, 429 Broughton v. Randal, 141 Brown's App. 150, 461 Brown v. Beecher, 45, 359 c. Brightly, 172 ... Corey, 43 i . Lutheran Church, 257 i. Sims, 73 Brown r. Van Horn, 171 Brown & Woods' App., 471 Brunner's App. 374 Bryar's App., 157 Buchanan v. Duncan, 135 p. Hazzard, 382 Buchanan, Lessee of, r. McClure, 331 Buckholder v. Sigler, 347 Buckley's App., 425 Buehler r. Sloninger, 4S1 Bugbee's App., 470 Bugby's App., 238 Building Assn's Apjj., 206 Building Ass'n v. Berger. 19 ,'. Cook, 462 Burden's App., 517 Burke r. Gummey, 436 Burr r. Cattuach, 70 I-. Sim, 306 Burton's App., 60 TABLE OF CASES. XV Burton i\ Association, 201 Bush (.. Breinig, 366 Bussman v. Ganster, 71 Butler v. Butler, 242 Byrne v. Boyle, 127 Cadwalader r. App, 71 r. Tindall, 73 r. Tryon, 449 Caines i . Grant, 247, 256 Caldwell v. Copeland, 31 r. Ferguson, 524 v. Fulton, 31, 36, 43 Calhoun v. Hays, 398 Callen v. Hilty, 407 Cambria Iron Co. ... Tomb, 333 Campbell e. Philada, 25 i>. Shrum, 197, 436 Cannon r. Boyd, 4152 Care v. Keller, 14H Carlin r, Chappel, 32 Carlisle v. Brisbane, 55 Carnahan i. Brown, 45 Carpenter v. Cameron. 508 Carr v. Townsend, 495 r. Wallace, 39, 40 Carroll r. Burns, 229 Carson's App., 528 Carson v. Blazer, 29, 45 r. Cemetery Co., 448 <\ Godley, 167 Carter v. Tinecum Fishing Co., 424 Cash v. Tozer, 494 Cassel v. Cooke, 524 Chambers v. Spencer, 439 Chapman's App., 289 Chaumont v. Forsyth, 442 Chess v. Chess, 457 Chestnut v. Harbaugh, 419 Chetham v. Williamson, 42 Chew's App., 229 Children's Hospital's Appeal, 510 Childs v. Napheys, 26 Christian v. Dripps, 22 v. Miller, 196 Christian v. Mills, 125 Christner r. Hockstctter, 374 Christy's App., 33 Clvudleigh's Case, 218 Church v. Wells, 22, 60 City !-. Carmany, 16 r. Davis, 524 C'lader r. Thomas, 471 Clare i: Lynsington, 446 Clark r, Clark, 140 c. Sergeant, 127 Clauer's App., 276 Clauson's App., 203 Clayton v. Blakley, 165 v. Clayton, 94, 523 Cleason v. Bailey, 522 Clement v. Youngman, 45 Clymer v. DeYounji, 197 Cochran v. O'Hern, 136 <■. Young, 532 Cock r. Thornton, 459 C'ockin's App., 90 Cockins & Harper's App., 229 Coleman v. Chadwick, 32 i. Coleman, 257 Coleman's App., 123 Collins v. Benedict, 263 r. Smith, 197 Colt v. Selden, 392 Columbia Bridge Co. v. Kline, 356 Combs & Hankinson's App., 529 Commonwealth r. Baldwin, 352 v. Conard, 495 r. Gamble, 176 v. Halstead, 192 v. Kendig, 419 v. Moorehead, 346 v. Naile, 146, 316, 319 v, Nancrede, 281 *. N. Y., L. E. &W. R. R. Co., 322 «. N. Amer. Land Co., 320 v. Philadelphia, 346 v. Powell, 282, 298 f. Stauffer, 182 i'. Stump, 274 XVI TABLE OF CASES. Conrad i\ Shomo, 374 Cook v. Trimble, 17ft Cooke v. Neilson, 171, 172 Cooper v, Rankin, 454 Cooper v. Smith, 339, 340 Coovert v. O'Conner, 29 Cote's App., 146 Coulter v. Phillips, 498 Coursey v. Davis, 435 CovanhovaD v. Hart, 480 Cover v. Black, 469 v. Manaway, 457, 459. 463 Cox i: Freedley, 428 v. Wilder, 159 Coyle's App., 94, 524 Cozzen's Will, 528 Craig's App., 290 Craig v. Lilly, 529 Crawford v. Commonwealth, 316, 317 v. Ford, 235 v. Neff, 341 Creaeraft v. Wions, 146 Cresson r. Ferree, 512 ' Cresson's App., 357 Culbertson v. Daly, 305 Cumming's App., 380 Cuthbertson's App., 518 Daily v. Beck, 447 Dale r. Knapp, 420 Dalzell v. Crawford, 267, 508 ' v. Lynch, 168 Dana r. Bank of U. S. , 465 v. Jackson, 250 Dando's App., 461 Daniel v. Daniel, 516 Dankel v. Balliat, 395 Dark i>. Johnston, 45 , Darlington's App., 464 Darlington i>. Darlington, 464 Davenport r. Harris, 236 Davey c. Turner. 375 Davis v. Bartholomew, 426 v. Bigler, 479 t>. Davis, 63 Davis v. Moss, 23, 186 r. Selden, 471 De Amarelli's Est., 135 Dean v. Negley, 51^ v. Shelly, 439 De Boiler. Ins. Co., 200 De Chastellux r. Fairchild, 490 Defraunce v. Brooks, 93, 436 De Haven's App., 504 Dehnhardt v. Philadelphia, 53 Del Valle's Est., 289 Demmy's App., 289 Demuth v. Amweg, 342 Dennison's App., 128 Desilver's Est., 418 Dewitt r. Eldred, 110 De Zouche r. Tasker, 381 Dickey r. McCnllough, 185 Dickinson r. Dickinson, 521,529 Diefenderfer v. Eshleman. 152 Diflfenbangh r. Harris, 230, 509 Dillinger's App., 156 Diller i\ Eoberts, 170 Ditman r. Eaule, 481 Diver v. Diver, 253 Dixey's Ex'rs v. Laning. 503 Dodds i\ Dodds, 394, 507 Doe r. Burt, 30 Doe & Freestone r. Parratt, 253 Doebler's App., 229, 268 Donance v. Scott, 375 Donnelly r. Krosskop, 60 Donohue r. McNichol, 181, 242 DorrPs App., 510 Dougan r. Blocker, 397, 498 Dovaston c Payne, 55 Dowell v. Thomas, 308 Doyle r. Mullady, 110 Drake r. Brown, 244, 493 Drennan's App., 119 Driesbach r. Serfass, 513 Drusadow ,.. Wilde, 506 Du Bree v. Albert, 362 Dubs v, Dubs, 136 DnfTs App.. 124, 196 Duff r. Wilson, 70. Duffy r. Ins. Co., 378 Pumn r. Kothermel, 171 TABLE OF CASES. xvu Dumpor's Case, 135 Duncan's App., 479 Duncan v. Duncan, 454, 464 Dnncomb v. Moyer, 120 Dundas' App., 387 Dungan v. Ins. Co., 203, 470 Dunham v. Kirkpatrick, 45 Dunlap's App., 523 Dunston's Est., 378 Dnquesne Bank's App., 191 Duraind's App., 457 Dushane's App., 518 Duval's App., 511 Dyer v. Cornell, 27, 28 v. Depui, 341 Erie v. Magill, 53 v. Schwingle, 52 Ervine v. Dowling, 382 Erwin's App., 360 Eshelman v. Hoke, 112 Eslileman's App., 297 Esling v. Williams, 342, 345 Evan's App., 531 Evans v. Chew, 510 v. Evans, 149 v. Knorr, 379, 522 Ewing's App., 384 Ewing v. McKnight, 334 v. Thompson, 391 E. Earley's App., 365 Early v. Ash worth, 54 Earnest v. Earnest, 297 Easton Borough v. Einek, 428 Ebbert's App., 361 Eberle'v. Bonafon's Ex'rs., 167 r. Fisher, 158. Eberly's App., 242 Eckman v. Eckman, 418, 477 Eddy's Est., 517 Edward's App., 274 Edwards v. Trumbull, 471 Ege v. Medlar, 264 Eichelberger v. Barnitz, 108, 117 Elkinst v. Bremer, 384 Elliott v. Pearsoll, 114 v. Smith, 164 Ellison v. Anderson, 383 Ellmaker v. Ellmaker, 94 Elsey v. McDaniel, 383 Elwes v. Mawe, 24 Emery v. De Golier, 186 v. Spencer, 332 Emley v. Drum, 399 Enterprise Transit Co. v. Sheedy, 464 Erb v. Brown, 394 v. Myers, 203 Erie E. E. Co. v. Knowles, 398 Falls v. Reis, 428 F. & M. Bank r. Woods, 333 Fairview Coal Co. v. Hay, 33 Faulkner's App., 355 Faust !'. Haas, 401 Feig v. Myers, 482, 483 Fenn v. Early, 381 Fenstermacher v. Xander, 381 Ferguson's App., 428 Ferguson r. Staver, 392 Fernsler v. Seibert, 357 Fernwood Masonic Hall Assn. v. Jones, 64 Fetrow's Est., 238 Fidelity Co.'s App., 525, 531 Fidelity Co. v. Miller. 194 r. Wurfflien, 511 Fidler v. Lash, 529 Field v. Adams, 74 Finney's App., 419, 523 Fish v. Sawyer, 37 Fisher v. Milliken, 71, 444 Fisquet's Will, 522 Fitler v. Shotwell, 468 Fleek v. Zillhaver, 254 Fleming v. Alter, 197 v. Lock Haven, 54 Fletcher o. Ashburner, 28 Flintham v. Bradford, 531 Folmar's App., 532 XV111 TABLE OF OASES. Foreman v. Ahl, 419 Forman v. Hoster, 384 Fosselman v. Elder, 527 Foster's App., 362, 531 Foster v. Joice, 92 v. Weaver, 257 Foulke v. Millard, 71, 469, 499 Foust v. Remo, 458 Fow v. Roberts, 167 Franciscus v. Reigart, 76 Frank u. Maguire, 168, 408 Franklin Oil Co. „. McCleary, 197 Fransen's Will, 531 French v. Mehan, 252, 253 Frew v. Clarke, 518. Frey v. Kleve, 533 Freyvogle v. Hughes, 92 Friedley v. Hamilton, 471 Fritch v. Allegheny, 52 Fry v. Jones, 63 Frye v. Shepler, 396 Fryer v. Rishell, 461 Fulton i'. Hood, 371 o. Moore, 93, 94, 435 Fulweiler v. Baugher, 508 Funk v. Haldeman, 45 v. Voneida, 440 Furtmsh v. Chappell, 73 Gaddis v. Hawke, 424 Galbreath v. Galbreath, 394, 397 Galbraith v. Green, 149 Gamble v. McClure, 410 Gangwere's Est., 156, 420 Garard v. Soule, 107 Gardette's Est., 236 Gardiner v. Sisk, 484, 496 Garrett v. Jackson, 341 Garth v. Cotton, 126 Garwood v. Dennis, 424 Gast v. Baer, 107 Gault's App., 499 Geddei's App., 361 Gehman v. Erdman, 57 George v. Morgan, 116 Gerber i\ Hartwig, 173 Getty r. Shearer, 485 Geyer v. Wentzcl, 94 Gibson v. Winslow, 495 Gilbert r. Drew. 25 Gilchrist's App., 28 Gill v. Hervig, 481 v. Weston, 468 Gillan v. Dixon, 253, 298 . Gilmore v. Rodgers, 501 Ginder ». Farnum, 525 Girard o. Philadelphia, 524 Girard Co. v. Addicks, 199 v. Stewart, 19H, 200 Givens v. McCalmont, 122 Glading v. Frick, 471 (xlasz's Est., 279 Glidden v. Strupler, 382 Gloninger v. Franklin Coal Co., 42, 45 Gold v. The City, 54 Goldsmith v. Smith, 172 Gompers i\ Rochester, 454 Goodyear v. Rumbaugb, 380 Gordon's App., 27 Gordon v. Preston, 511 Gorton v. Falkner, 74 Goundie v. Northampton Water Co. , 321 Gourley i'. Kinley, 150 Go wen v. Philadelphia Exch. Co. , 61 Graff j). Smith's Adm'r, 157 Graham v. Long, 382, 462 i: Pancoast, 485 Grambs v. Lynch, 483 Gratz r. Gratz, 394 r. Lex, 370 Gray v. McCune, 93, 411 v. Packer, 91, 93, 435 Green's App., 202 Green v. Cole, 126 i'. N. Buffalo Township, 452 Greenawalt v. Greenawalt, 108 x>. Kohne, 199 Greenfield's Est., 452 Greenlee r. Greenlee, 399 Gregg c. Patterson, 257 Grim's App., 242 TABLE OF CASES. xrx Grier's App., 502, 503 Grogan v. Garrison. 155 Gross' Est., 127 Grosser v. Hornung, 374 Grove's Est., 94 Grove v. Hodges, 44, 507 Grubb's App., 279 Grubb v. Grubb, 45 v. Guilford. 44 430 Guthrie v. Kahle, 195 Guthrie's App., 229, 284 H. Haines' App., 349 Haines v. Ellis, 383 Haight v. Proprietors Morris Aque- duct, 348 Haldane v, Johnson, 70 Haldeman v. Bruckhardt, 58 v. Haldeman, 229 Hale v. Henrie, 359 Hall v. Benner, 419 v. Dickinson, 524 c. Patterson, 463 Hamilton's Est., 532 Hamilton v. Buckwalter, 146 *. Elliott, 183 v. McGuire, 424 Hammerschlag v. The Bank, 485 Hammett v. Philadelphia, 52 Hancock's App., 523 Hannum v. Spear, 288 Harkins v. Reading R. R. Co., 280 Harlan v. Harlan, 22 ii. McLaughlin, 480 Harper's App., 188, 193 Harper v. Cemetery Co. , 57 Harris v. Harris, 391 v. Tyson, 371 v. York Co. Mut. Ins. Co., 138 Harrison's App., 517 Harrison's Est., 230 Hart v. Carroll, 397 v. Hill, 45 Hartman's Est., 305 Hastings v. Crunckleton, 121 Haverstick r. Sipe, 60, 343 Hayes' App., 256, 301 Hays v. Harden, 526 ik Hinkleman, 59 Heacock v. Fly, 374 Heath v. Knapp, 379 Heck v. Borda, 170 r. Clippenger, 379 Hecker's App., 510 Heeter v. Glasgow, 463 Heilman v. Union Canal Co., 57 Heimbach's App., 470 Heisc v. Heise, 528 Heiss' Est., 108. Heister r. Fortner, 459 Helfrich v. Obermeyer, 158 v. Weaver, 151 Heller's App., 152 Hellerman's App., 523 Heilman i\ Heilman, 468 Helvete v. Rapp, 495 Hemphill r. Flynn, 168 Henby v. ^Yarner, 511 Hendrickson's App., 471, 203 Henderson v. Hunter, 177 Hengst's Est., 296 Henning i\ AVerkheiser, 458, 485 Herbaugh v. Zentmyer, 446 Heritage r. "Wilfoug. 163 Herr's App., 378 Hershey v. Metzgar, 18 Herster v. Herster, 518 Hess v. Brown, 482 i: Hess, 181 r. Potts, 500 Hetherington v. Clark, 469 Hey c. Bruner, 23 t. The City, 52 v. McGrath, 170, 172 Heysham o. Dettre, 22 Hildreth r. Sands, 479 Hileman r. Bouslaugh, 78 Hill v. Hill, 183 v. Myers, 395 t. Sewald, 21 Hilton's App., 191 Hind v. Holdship, 197 Hinnershits v. Bernhard, 147, 520 XX TABLE OF CASES. Hirst's Est., 196 Hitchcock ?\ Bacon, 71 Hitner v. Ege, 136 Hitner's App., 157 Hoey v. Furman, 261 Hoffs App., 127, 197, 200 Holbrook's Est., 153 Hollis ». Burns, 165, 171 Holmes r. Pattison, 319 Hooper v. Dundas, 182 Hopple's Est., 517 Hornbeck v. Building Assn., 462 Horner r. Hasbrouck, 289 v. Watson, 32 Hortsman v. Gerker, 196, 208 Houck v. Ritter, 376 Howard v. Harris, 193 Howe's App., 523, 525 Howe Sewing Machine Co. v. Sloan, 73 Howell v. McCoy, 430 Hubley v. Vanhorne, 78 Huddleston v. West Bellevue, 59 Huff, Ex parte, 68 Huff v. McCauley, 62, 394 Huffman v. Huffman, 376, 382 v. Musgrove, 97 Hughes' App., 297 Hulett v. Mutual Life Ins. Co., 469 Hultz v. Ackley, 469 Hulton v. Duey, 156, 157 Humphrey v. Irvin, 16 Humphries' Est., 518 Hunsicker v. Thomas, 446 Hunt's App., 289 Hunter's App., 139 Huntingdon v. Havens, 423 Hurst v. Rodney, 442 Huss v. Morris, 421, 475 v. Stephens, 421 HyltonV Brown, 265, 266, 353 Irwin v. Covode, 124 Ivory v. Burns, 435, 477 Jack v. Martin, 58 Jackman v. Delafield, 510 Jackson's Est., 191 Jacobs v. Fetherstone, 383 James v. Letzler, 424 Jarden v. Lafferty, 70 Jarecki v. Philharmonic Society, 21 Jenks v. Backhouse, 112, 284 Jennings v. McComb, 172 Jewell's Est., 127 Johnson's App., 170, 282 Johnson v. Bliss, 509 *. Fritz, 136 v. Hart, 252 ». Mehaffey, 20 Johnston v. Furnier, 369 v. Johnston, 394 Johnstown Iron Co. r. Cambria Iron Co., 43 Jones' App., 152 Jones v. Bland, 353 v. Cable, 230, 251 v. Gundrim, 76 v. Hollopeter, 144 v. Horner, 507 v. Kroll, 169 v. Patterson, 143 v. Wagner, 32, 42 v. Whitehead, 131 Jordan v. Stewart, 465, 483 Journeay v. Gibson, 463 Junk v. Canon, 144 K. Imhoffi). Witmer, 364 Improvement Co. v. Mitchell, 468 Ingersoll v. Sergeant, 66, 70, 312 Karker's App., 183 Karns v. McKinney, 72, 73 Kates' Est., 519 Kauffman v. Griesemer, 59 v. Long, 518 Kay v. Pa. R. R. Co., 62 TABLE OP CASES. XXI Kearney r. Tanner, 197 Keating v. Conddn, 168 Keefer v. Schwartz, 511 Keeler v. Taylor, 182 Keemer v. Arthurs, 362 Keeny v. Good, 482 Keichline v. Keichline, 459 Keller v. Auble, 256 v. Michael, 158 v. Nutz, 472 Kellum v. Smith, 398 Kelly !•. Dunlap, 466 Kelso's App., 159 Kennedy's App., 250 Kennedy v. Johnston, 367 tf. Humes, 106 v. Nedrow, 155 Kepler v. Erie Dime Savings & Loan Co., 361 Kerns r. Swope, 471, 472 Kerper v. Hock, 289 Kerr v. Verner, 251 Keyser's App., 183 Kieffer v. Imhoff, 38, 56 Kile v. Giebner, 168 Killam e. Killam, 274, 302 Killenger v. Eeidenhauer, 157 Kimble v. Smith, 481 Kimmel o. Smith, 193, 401 Kincaid's App., 60 King v. Gunnison, 399 Kingsbury v. Davidson, 139 Kinney v. Glasgow, 307 Kinter v. Jenks, 497 Kirk v. King, 422 Kisterbock v. Lanning, 28 Kistler's App., 401 Kleber v. Ward, 72 Kline's App., 37 Kline's Est., 156 Kline v. Kline, 156 v. Jacobs, £56 Klohs v. Klohs, 364 Kneedler's App., 365 Knepper v. Kurtz, 426, 449 Knight v. Beenken, 26 Knox's App., 519, 529 Knox v. Flack, 368 Knox v. Herod, 264 Koontz v. Hammond, 163 Kopf v. Utter, 346 Korn v. Browne. 348, 349 Kost v. Theis, 167 Kostenbader v. Spotts, 197 Kountz v. Kennedy, 484 Kramer v. Goodlander, 264 Krebs v. Straub, 186 Kreiter n. Bigler, 30, 428 Krider v. Lafferty, 475 Krout'sApp., 300 Kurtz's App., 151 L. Lacy r. Arnett, 347 v. Hall, 359 Lafferty's App., 124 Laguerenne c. Dougherty, 170 Lamb i>. Miller, 182 Lancaster i\ Dolan, 378, 480, 511 Lancaster Bank t: Moore, 364 i: Myley, 362 c. Stauffer, 137 Lance's App., 192 Lane's App., 301 Lane !>. Nelson, 491 Lautz /■. Boyer, 510 Latshaw's App., 257 Latshaw v. Hiltebeitel, 485 Lawrence, Merklee & Co. 's App., 33 Lazear ». Porter, 159 Lea v. Walls, 486 Leavitt v. Lamprey, 426 Leazure v. Hillegas, 321 Leckey v. Cunningham, 364. 532 Lefevre's App. , 361 Le Fevre c. Le Fevre, 62 Lehigh r. Hoffort, 52 Lehr v. Beaver, 156 Leidy i>. Proctor, 20 Leinaweaver v. Stoever, 148 Leiper's App., 382 Leisenring v. Black, 387 Leland's App., 464 Lemar v. Miles, 24 XXII TABLE OF CASES. Lennig's Est., 197, 200 Lentz v. Boyer, 508 Lesley v. Randolph, 170 Lester v. Foxcroft, 401 Lewis v. Bradford, 507 v. Brewster, 477 v. Gorman, 305 Liehtenwallner v. Laubach, 261 Lightner v. Mooney, 470 Lindeman u. Lindsey, 348, 442 Linn v. Alexander, 115 Linton's App., 517 Linton v. Chester, 52 v. Hart, 70 Lippincott's Est., 198 Lippincott v. Leeds, 381 List p. Rodney, 235, 268 Little ». Wilcox, 229, 244 Livingston v. Ten Broeck, 39 Lloyd v. Lynch, 425, 466 Long v. Fitzsimmons, 167 Loomis v. McClintock, 512 Lord's App., 399 Lothrop v. Foster, 426 Lovett v. Matthews, 533 Lower v. Hummel, 164, 438 Lowry v. Mehaffey, 393 Luck's App., 471 Luck v. Luck, 257 Lupkin v. Curtis, 426 Lutheran Congregation's App., 358 Lyle v. Richards, 113, 114, 127, 129, 327, 492 Lyon's App., 139 Lytle v. Lytle, 93, 435 Mc. McArthur v. Kitchen, 263 McBride v. Smyth, 235 McCale v. Neely, 78 McCall's App., 26, 291 McCall r. Barrie, 26, 343 v. Neely, 266 MeCallum r. Germantown Water Co., 16, 57, 3-17 McCandless c. Blakely, 419 McCandless v. Engle, 463 McCarty ». Kitchenman, 56 McClintock's App., 30 McClintock v. C'owen, 512 v. Dana, 121 McClurg r. Swartz. 157, 191 McCombs r. McKennan,439 McCormick's App., 361 McCormick v. Connell, 69 r. Township, 52 McCort's App., 533 McCullock's App., 531 McCullough's App., 37 McCullough v. Irvine, 121, 123, 125 McCully's App., 282 McCully's Est, 282 McCune's App., 28 McCurdy r. Canning, 252 McDevitt's App., 230 McDill v. McDill, 453 McDonald v. Dunbar, 106, 523 v. Heylin, 127 v. Lindall, 56 McDowell v. Adams, 286, 302 McElfatrick v. Hicks, 137 McElroy v. Railroad Co., 342 McFarland v. Febiger, 426 McFarson's App., 392 McFee v. Harris, 494 McGee's App., 54 McGinn v. Schaeffer, 369 McGirr v. Aaron, 358 McGregors. Rawle. 169 McGrew v. Foster, 345 McGunigle t. McKee. 274 Mclntyre r. -Ramsey, 107 McKee v. Perchment. 423 r. Pfoutz, 130. 327 McKennan r. Phillips, 156 McKieley v. Peters, 256 McKissick v. Pickle, 186, 357 McLaughlin v. Ihrnstn, 203, 289 i'. The City, 53 McMnllin v Glass, 425 McMurray's App., 399 McMurtrie v. Pennsyhania Co., 387 McNair v. Compton, 391 McVey v. Latta, 251 TABLE OF CASES. XX111 McWilliams' App., 27 McWilliams v. Nisly, 97, 183 o. Ross, 306 M. Mack's App., 454 Maffit v. Clark, 306 v. Rynd, 193, 194 Magaw v. Garrett, 203 r. Lambert, 71 Main r. Ryder, 518, 528 Magoohan's App., 527 Manderback v. Bethany Home, 63 Mange r. Guenat, 48.5 Manufacturing Co. v. Dysart, 466 Manufacturers' & Mechanics' Bank v. Bank of Pennsylvania, 471 Marshall v. Gougler, 485 Martin v. Smith, 246 Marys v. Anderson, 69, 165 Mason v. Ammon, 230, 345, 392 v. Rogers, 63 Massey's App., 525 Mattack v. Roberts, 113 Mane />. Rider, 398, 472 Maule v. Ardley, 199 e. Ashmead, 409 ». Weaver, 437, 438, 449 Mayor, &c, v. Elliott, 356 v. O. &P. R. R. Co., 40 Meals v. Brandon, 423 Meehan v. "Williams, 470 Mehaffy v. Dobbs, 424 Meig's App., 18, 21 Meily v. Wood, 362 Meinweiser v. Haines, 256 Melijet's App., 520 Mellon's App., 203, 469 Mellon v. Lemmon, 193, 208 r. Reed, 394, 398 Mellor v. Davison, 392 Menges v. Dentler, 489 Menough's App., 69 Mergenthaler's App., 92 Merriman v. Moore, 201 Merrett v. Cleason, 522 Mcssinger's App., 15 Methodist Church v. Jaques, 379 v. Remington, 354 Metzgar's App., 198 Meurer's App., 479 Michener v. Cavender, 463 Mickey's App., 181 Mickle v. Miles, 64 Middleton r. Middleton, 289 Middlewarth r, Blackmore, 108 Miller's App., 257, 274, 294, 296, 300, 523 Miller v. Binder, 449 r. Commonwealth, 27 ... Kern, 198, 201 v. Laubach, 59 v. Leidig, 151 v. Ruble, 453 v. Wentworth, 463 «>. Znfall, 30, 394. 397 Milliken v. Dravo, 399 Milne's App., 26, 60, 343 Miltimore v. Miltimore, 140, 141 Mining v. Batdorff, 234 Miskey v. Miskey, 289 Mississippi R. R. Co. v. Association, 200 Mitchell v. Steinmetz, 267 Mobley v. Bruner, 256 Moninger v. Ritner, 384 Monongahela v. Fischer, 52 Moore's App., 201 Moore v. Cornell, 381 v. Miller, 407 r. Small, 397 v. Weber, 167 Morgan v. Arthurs, 24 Moroney's App., 194 Morris' App., 22 Morris v. Guier, 199 v. Phaler, 37 v. Smith, 112, 113, 288 v. Stephens 96, 421, 422 Morrison v. Beizer, 357 Morrow's App., 513 Morse v. Rollins, 427 Moss v. Culver, 398 v. Sheldon, 434 XXIV TABLE OF CASES. Mowry's App., 481 Mover's App., 397 Mullock v. Souder, 95, 524 Mundy's App., 518 Murphy v. Campbell, 430 v. Hubert, 399 v. Nathans, 203 Murray v. Hall, 247 v. McCarthy, 192, 193 Myer's Est.,' 236 Myers v. Vanderbilt, 522 N. Oiler v. Bonebrake, 296 Olmsted's App., 320 Opdyke's App., 277 Orr v. Bornstein, 384 Ott v. Kreiter, 51 Overdeer v. Lewis, 168 v. Updegraff, 431 Overfield v. Christie, 264, 352 Overmyer v. Koerner, 398 Overseers v. Overseers, 376 Overton v. Williston, 23 Oves v. Ogelsby, 25 Owens v. Shovlin, 75 Nace v. Boyer, 365 Naglee v. Ingersoll, 28, 70, 424 Nanticoke v. Warne, 53 Narehood v. Wilhelm, 30 Nathan's Case, 135 National Pub. Assn. v. Furniture Co., 185 Neel v. Neel, 121, 123, 126 Neill v. Easby, 51 v. Lacy, 33 NefTs App., 525, 532 Nefftt. Horner, 484 Newell's App., 183 Newman v. Rutter, 163, 327, 341 Nice's App., 202 Nicholson v. Bettle, 116, 241 Noel v. Karper, 364, 366 Norman i>. Heist, 271, 490 Norris v. Clymer, 491 v. Eawle, 96 Norristown v. Moyer, 52 Northern Central R. R. Co. v. Com- monwealth, 55 Null v. Fries, 192 O. Oeslager v. Fisher, 509 Ogden v. Brown, 93 v. Grove, 56 O'Hara v. Dilworth, 379 v. Richardson, 263 Page v. Middleton, 73 Palairet's App., 349, 489, 490 Palairet v. Snyder, 67 Palmer's Est., 517 Pancake v. Cauffman, 192 Parke v. Neely, 471 Parker's App., 135 Parr v. Bankhart, 305 Paschall «. Passmore, 180 Passmore's App., 243 Patten ». Scott, 332 Patterson v. English, 522 v. Harlan, 432 v. Judge, 196 v. Laning, 410 v. Robinson, 374 v. Swallow, 525 Pattison's App., 394 Pattison )'. Stewart, 480 Paul v. Carver, 51, 428 Peachy v. Duke of Somerset, 187 Pearce v. Wilson, 192, 193 Pearson i>. Sharp, 192 Penn v. Preston, 429 Pennock v. Imbrie, 127 Penna. Co.'s App., 238 Penna. Co. p. Dovey, 457 Penna. r. Robison, 262, 263 Penna. Coal Co. v. Winchester, 47 Penna. Life Ins. Co. v. Austin, 511 Penna. R. R. Co. o. Miller, 15 TABLE OF CASES. XXV Penna. R. R. Co, v. Shay, 452 Penna. Salt Mnfg. Co. v. Nee], 43, 469 Pepper's App., 96 Perot's App., 301 Perry's Est., 531 Person's App., 297 Petts v. Gaw, 427 Peyroux v. Howard, 46 Peyton <>. Samuel, 199, 436 Pfoutz v. Steel, 334 Philada.'s App., 27 P. & R. R. Co. ii. Obert, 427 Phillips p. Hall, 497 v. Monges, 170 ». Phillips, 56 v. Swank, 93 Physick's Est., 135, 273 Pickering v. Rudd, 15 p. Shotwell, 358 v. Stapler, 429 Pidcock B . Potter, 517 Pierce v. Hakes, 453 v. Scott, 74 Piollet c. Simmers, 55 Pomeroy v. Mills, 48 Powell v. Monson, 426 Poyntell v. Spencer, 422 Pratt v. Eby, 268 Presbyterian Corp. v. Wallace, 511 Price o. Taylor, 112, 284 Prince v. Case, 62 Pringle v. Pringle, 419, 454 Pritts v. Ritchey, 144 Prowattain v. Philada., 56 Pugh v. Good, 391 Pursell v. Stover, 28 Quain's App., 444 Quein v. Smith, 469 Quinn v. The Commonwealth, 169 E. R. R. Co. , . Bentley, 128 R. R. Co. ( :. The Commonwealth, 55 v, Otterson, 197 v. Sanderson, 45 v. Stokes, 197 c. Taylor, 33 Ramburger v. Ingraham, 374 Ramsey's App., 316 Ranck's App., 305 Rank t: Rank, 136 Rankin v. Mortimer, 193 Ransley v. Stott, 114, 492 Rapho t'. Moore, 52 Raush ti. Miller, 332 Re A. H. S., 281 Re Broughton's Petition, 68 Re Harris' Trust, 238 Re Hoffman, 196 Re Jacob's Will, 528 .ReKohler, 196 Re Pearl Street, 428 Re Private Road, 55, 56 Re Sandilands, 455 Re Theil, 283 Re Twenty-Fifth Street, 68 Re West Pikeland Road, 61 Re Phoebe Ann Woodward's Will, 522 Reading v. Savage, 203 Reading's Fire Ins. Co.'s App., 135 Reamer v. Lamberton, 422, 486 Reck v. Clapp, 472, 485 Reed v. Fidelity Co., 207 v. Morrison, 143 Reehling v. Byers, 481 Reel v. Elder, 153 Reese v. Walters, 139 Reeser v. Johnson, 139 Reichard's App., 530 Reiffa. Reiff, 132 Reifsnyder v. Hunter, 96 Reimer v. Stuber, 345, 346 Reinhart v. Lantz, 112, 116 Reincehl v. Shirk, 107 Rennyson's App., 60, 432 Rerick c. Kern, 62 Rice's App., 202 Richards r. Rote, 492 Richardson's App., 234 XXVI TABLE OF CASES. Richart v. Scott, 59 Riehert v. Madeira, 192 Riddle v. Welden, 73 Eider v. Maul, 398 Eidgely v. Dobson, 357 Eifener v. Bowman, 485 Rigler v. Cloud, 136 v. Light, 471 Ringwalt n. Eingwalt, 92 Risdon v. The City, 29, 430 Ehein Bldg. Assn. v. Lea, 207 Rhoads v. Lancaster Ave. Imp. Co., 55 Eohb v. Beaver, 307, 437 Roberts' App., 191, 306 Roberts v. The Bank, 22 Robertson v. Hoy, 484 v. Reed, 200 v. Robertson, 395 Robins v. Green, 150 Robinson v. Myers, 427, 482, 483 Roenig v. Duff, 485 Rogers' Est., 517 Rogers v. Gilinger, 20 v. Smith, 426 v. Walker, 365 Eoosewelt r. Thurman, 96 Rose v. Keystone Shoe Co., 139 Ross v. Barclay, 510 v. Drake, 234 v. Dysart, 70, 409 v. Hanna. 199 v. Pleasants, 333 Eouch v. Deck, 205 Royer v. Ake, 70, 409, 436 Rubeck v. Gardner, 280 Rudy v. Ulrich, 530 Rush v. Lewis, 237 Rushton v. Lippincott, 71, 205 St. Andrew's Church's App., 442 St. Bartholomew's Church v. Wood, 456, 497 St. John's Church v. Steinmetz, 456 St. Mary's Church v. Miles, 348 Salsbury v. Black, 401 Sampson's Est., 140 Samuel v. Peyton, 199 Sanderson v. Peuna. Coal Co., 16, 17 v. Scranton, 33, 45 Santee v. Santee, 184 Sargent v. Matchett, 76 Sarkey v. Hawley, 192 Sawtell's App., 374 Sayers v. Hoskinson, 122, 123 Schafer v. Eneu, 282 Schall's App., 151 Scharff v. Keener, 424 Scheifler's App., 182 Schell v. Stein, 471 Schilling v. Abernethy, 167 Schively's Est., 108 Schlosser's App., 374 Schmertz v. Shreeve, 507 Schoonmaker v. Stockton, 524 Schrader v. Decker, 370 Schriver v. Eckenrode, 391 Schroder v. Brenneman, 57 Schuylkill Co. v. Copley, 452 Schwartz's App., 242 Schwartz's Est., 127 Scott v. Crosdale, 157, 191 v. Fields, 194 Scranton School Dist.'s, App., 203 Scranton v. Catterson, 53 v. Gilbert, 33 v. Phillips, 32 Seabrook v. Moyer, 71 Seaton «. Barry, 411 Second Nat. Bank's App., 361 Seeger v. Pettit, 24 Seely v. Seely, 251 Seibert's Est., 135 Seibert v. Levan, 431 v. Wise, 115 Seichrist's App., 401 Seider v. Seider, 149 Sellers v. Heinbaugh, 381 Seminary v. Wall, 116 Sennett v. Bucher, 162 Senser v. Bower, 273 Shafer's App., 361 Shaffer r. Greer, 426 TABLE OF CASES. XXV11 Shaffer v. List, 367 v. Shaffer, 149 Shakspeare v. Delaney, 500 Shankland's App., 221 Shapley v. Garey, 165 Sharp v. Petti t, 114 Shaver v. McCarthy, 517 Shaw v. Boyd, 155 Sheaffer v. Sheaffer, 186 Shearer v. Brinley, 289 Shebel r. Bryden, 469 Sherk r. Endress, 481 Sherwood v. Sumne, 353 Shields v. Miltenberger, 494 Shinn v. Holmes, 93, 411 Shippen's App., 128 Shitz v. Dieffenhach, 192 Shober v. Dutton, 268 Shoemaker's App., 124 Shoemaker v. Ballard, 496 v. Gillett, 127 v. Walker, 143, 144 Shoenberger v. Hay, 198, 436 v. Lyon, 432 Shonk t>. Brown, 383 Shrewsbury v. Shrewsbury, 128 Shrunk v. Schuylkill Nav. Co., 45 Shuman v. Shuman, 420 Shuster v. Kaiser, 381 Shyock v. Buchanan, 381 Siegel !'. Eobinson, 399 Simon v. Brown, 468 Simons v. Kern, 496 Simpson v. Hartopp, 73 v. Kelso, 306 v. Kennedy, 139, 375 Skelly's App., 67 Skelly v. Ogden, 67 Sloman v. Walter, 187 Small v. Small, 386 Smith's App., 156. 231, 236 Smith's Est., 156 Smith & Fleck's App., 393 Smith v. Adams, 58 r. Conrad, 198, 201 v. Coyle, 95, 524 i: Crosland, 164 (. Dc-rr, 274 Smith v. Dutton, 344 ». Poyas, 120 v. Rawle, 124 v. Seaton, 289 v. Townsend, 241, 504 Snively v. Luce, 394 Snowden v. Dunlavey, 367 Snyder's App., 108 Snyder v. St. Leonards, 531 v. The City, 53 Sober v. Standart, 375 Soles v. Hickman, 292 Solms c. McCullough, 459 Somer's App., 167 Sopher u. Guernsey, 193 Souberbye v. Order, 457 Bonder, Lessee of, v. Morningstar, 112 Soullier v. Kern, 499 Sowers v. Lowe, 59 Spangler's Est., 68 SpearmaD r. Ward, 381 Speer v. Evans, 471 Spencer's Case, 441, 443 Sprague v. Woods, 435, 477 Spring v. Laughlin, 482 Stark v. Stark, 299 Stauffer r. Latshaw, 371 Steckel's App., 279 Steel *. Frick, 407 Steele v. Thompson, 94,523 Steiner r. Kolb, 229 Stevens v. Van Cleve, 517 Stevenson's App., 346 Stewart ». Freeman, 469, 498 r. Allegheny Nat. Bank, 207 Stiffler r. Eetzlaff, 427, 469 Stiver's App., 501 Stockwell c. Hunter, 63 Stoever r. Whitman, 352 Stokes v. McKibben, 136 ». Williams, 199 Stondt v. Hine, 200 Stoner's App., 205 Stoolfoos c. Jenkins, 136, 368 Stoop r. P.lackford, 381 Stover i-. Jack, 28, 46 Straub v. Dimm, 317 XXV111 TABLE OF CASES. Streaper v. Fisher, 446 Stuck v. Mackey, 27 Stuckey v. Keefe, 252 Stultz v. Dickey, 24 Stump v. Findlay, 78, 129, 327 Susquehanna R. R. Co. o. Quick, 264 Swank v. Phillips, 470 Swartz v. Swartz, 432 Sweetapple v. Bindon, 142 Swift v. Duffield, 232 Syphers v. Meighen, 333 T. Taggart's App., 148 Taylor's App., 511 Taylor v. Glaser, 449, 455 v. Mitchell, 529 v. Preston, 197, 425 v. Smiley, 511 v. Taylor, 107, 108, 112 v. Young, 446 Thatcher v. Baker, 16 Thayer v. United Brethren, 164 Thelluson's Case, 242 Thomas' Est., 517 -Thomas v. Connell, 446 v. Eliniaker, 356 Thompson v. Allen, 481 c. Commonwealth, 169 v. Kauffelt, 427 v. Kynes, 516 p. Loverein, 426 v. McElarney, 62 v. Mattern, 42 v. Phillips, 494 r. Sheplar, 391 Thorn's App., 503 Thurston v. Hancock, 59 Tilford v. Fleming, 164, 351 Tinicum Fishing Co. i\ Carter, 46, 49, 338, 339 Titman i: Titman, 368 Titusville, Appeal of city of, 207 Todd v. Stokes, 25 Toman v. Dunlap, 242 Torrance v. Torrance, 501, 502 Torrence (•. Commonwealth, 262 Torrens v. Campbell, 197 Townsend & Hartshorne's Ajp., 27 Townsend r. Long, 197 Township r. Arnold, 53 c Gemmill, 52 i. Watson, 52 r. Wolf, 52 Transue r. Sell, 428 Treftz.c. King, 120 Trevor v. Perkins. 197 Trimmer v. Heagy, 376, 382 Trost r. Dingier, 519 Troup r. Troup, 397 Trustees ,: Robinson, 38, 40 Trutt i: Spots, 428 Tryon i\ Munson, 289 Turner i: Fowler, 182 Turnpike Co. v. McCullough, 456 Turpin's Est., 124 Twibill r. Brown, 167 Tyler t: Moore, 434 Ulp c. Campbell, 377 Union Petroleum Co. v. Bliven, 45 Updegrave v. Blum, 376 Urban v. Grimes, 369 Valentine c. Penny, 41 Van Amridge v. Morton, 472 Vandever's App., 387 Vaudruff «•. Rhinehart, 528 Van Dyke's App., 534 Van Rensallaer i\ Radcliff, 41 Vaughen (. Haldeman, 21 Veditz c. Le^', 169 Vieary c. Moore, 439 Vidal r. Girard's Executors, 356 Vocht c. Knhlciue, 386 Vollmer's App., 60, 61, 343 Vonrliis r Freeman, 18 Vowinckel r. Patterson, 229 TABLE OF CASES. XXIX w. Waddell t>. Eattew, 78 Wager r. Wager, 433 Wain Wright's App., 518 Wainwright v. McCullough, 46 Walbridge r. Prnden, 72 Walker v. Dunsliee, 306 v. Physick, 198 t'. Vincent, 96, 182 <•. Walker, 424 Wall f. Wall, 527, 533 Wallace v. Fourth Presbyterian Church, 342 Wallace v. Harmstad, 77, 485 Walsh v. Kelly, 157 Walters v. Bredin. 181, 434. 477 Ward's Est., 127 Ward p. Philadelphia, 164 Warden v. Lyons, 378 Weters v. Margerum, 100, 510 Watson v. Bailey, 462 v. Gregg, 264 r. Jones, 455 v. O'Hern, 163, 407 Wayne's Est., 281 Wayne r. Lewis, 160, 386 Weber v. Harbor Comm'rs, 51 Weigel v. Weigel, 532 Weinder v. Foster, 408 Weiser v. Weiser, 410, 411 Wells v. Hornish, 76 r. Ritter, 232 i: Sloyer, 424 v. Van Dyke, 208 Wentz's App., 124 Wernet's App., 364 West's App., 320 West v. Pennsylvania Co., 320 Westenberger v. Eeist, 179 Western National Bank's App., 26 Westmoreland Coal Co.'s App., 123 Wetherill's App., 207 Wetherill v. Wetherill, 511 Wheatley v. Baugh, 58, 342 Whitaker v. Brown, 42 White v. Arndt, 23 v. Commonwealth, 95 White r. Weeks, 415, 425 Whitmer v. Schlatter, 357 Whitney's Est,, 531 Widener v. Beggs, 523 Wikoff's App., 526 Wilkinson r. Buist, 529 Willard's App., 531 Williams' App., 445 Williams v. Baker, 462, 463 v. Davis, 481 v. Landman, 162 Williard v. Williard, 127, 327 Willing i). Peters, 377 Wilson's App. , 517, 518, 519 Wilson v. Bigger, 366 v. Brecliemin, 438 v. Cochran, 449 v. Coursin, 384 v. Douglass, 30 v. Freeman, 22 v. Gaston, 533 v. Horner, 335, 353 ?.. Mitchell, 517 Winch's App., 138 Wind v. Jekyl, 3 Winder v. Smith, 371 Wineland's App., 526 Winpenny's App., 517 Win ton's App., 209 Wiser's App., 139 Wissler r. Hershey, 56 Witman v. Len, 357 Woelpper's App., 523 Wolfs App., 281 Woltemate's App., 279 Womrath v. McCormick, 234 Wood's App., 244 Wood v. Appal, 30 *. Bayard, 115, 367 Woodward's App., 198 Woodward r. Wilson, 138 Worcester v. Clark, 158 Work's App., 371 Workman v. Curran, 344 Worrall v. Rhoads, 345 Wright's App., 367 Wright v. Brown, 383 o. Vickers, 206 XXX TABLE OF CASES. Y. Z. Yard's App., 242 Yard v. Murray, 524 Yardley v. Cuthbertson, 519 York's App., 289 Young v. Algeo, 264, 499 Young v. Leedom, 59 Youngman v. Railroad Co., 195 Yundt's App., 296 Zane ». Kennedy, 511 Zeisweiss r. James, 358 Zell c. First Universalist Society, 56 Zimmerman v. Galbraith, 391 Zubler v. Schrack, 334 Zuver ii, Clark, 481 THE LAW OF Real Estate and Conveyancing IN PENNSYLVANIA. PART I— Real estate. CHAPTER I. INTRODUCTION— DEFINITION OF REAL ESTATE— ORIGIN OF THE TERMS REAL AND PERSONAL AS APPLIED TO PROPERTY— LANDS, TENEMENTS, AND HEREDITAMENTS —THE ORIGIN OF PROPERTY IN LAND. The subject of our study is the Law of Real Estate. Con- veyancing will follow. Let us know first what we are to convey ; the method of conveying is a subsequent considera- tion. In pursuing these studies I propose to follow the arrange- ment of Blackstonfe in the Second Book of the Commentaries. Many treatises on real estate have been written since, each with a different system for dividing and arranging the sub- ject. Without undertaking to decide which is the most logical, I choose the one to which you and I, and perhaps most other students of English and American law, are best . (1) 2 TJJE LAW OF REAL ESTATE AND accustomed. It will be easier and more natural to follow the well-beaten path. What is the " Law of Real Estate ? " It is that branch or division of the municipal law which regulates real estate. An estate is an interest in a thing. It is not a thing — a house is a thing, land is a thing, a ship is a thing — an estate in the thing is not the thing itself, for there may be several persons having estates in the same thing. Proceeding a step further, real estate is an interest in a real thing, for all things are not real things. This word, real, has a technical meaning, and a history. It has a differ- ent meaning as a technical law term from what it has in every-day conversation. Let me briefly explain how it came so. The simplest and most striking division of things which can be made, and the earliest that was made in legal science, is into movable and immovable. Speaking roughly we may say that land is immovable, and nearly every other thing which is the subject of an estate or property is movable unless it is built upon or fastened to land. Now, if a stranger comes and takes away my movable property, and I sue him in a court of law, it is by no means certain that I can recover it again, but I can always charge him personally, and recover damages against him. But, if he should dispossess me of my land I can have that restored to me, for being immovable, he cannot make away with it. I can get back again the real thing I sue for in the one case, and in the other I cannot. Hence, actions of the one class, in which suit is brought to recover back the real identical thing lost, are called real ac- tions, and actions of the other class, to recover damages, or the value of the thing lost, against the person of the defendant, are called personal actions. Just as a real right, or right ot property, jus in re, is where the person having the right may sue for the subject itself, while a personal right, jus ad rem. CONVEYANCING IN PENNSYLVANIA. 3 acquirendam, entitles the party only to an action for the performance of the obligation. 1 This distinction between real and personal actions was established long before the same terms were applied to mov- able and immovable things, and it was because real actions were remedies for the recovery of lands, that land became classed as a real thing. Keliable authorities fix the time when the terms real and personal were first commonly applied to the grand divisions of property as about the beginning of the Seventeenth Century, the time of Lord Coke. 2 Things real are usually said to consist of lands, tenements and hereditaments. The last two words require more knowl- edge than can be communicated at this time. A tenement literally means a thing holden. It refers to the system of holding lands by feudal tenures, which was at one time universal in England and in the west of Europe, and upon which the present law of real property is in some measure founded. Not lands onlv, but offices, titles of nobility, and 1 " The distinction between real and personal actions is given by Bracton (102; see Beeves, vol. 1, 336). Seal actions had for their ob- ject the assertion of the claimant's right to the possession or property of a freehold interest in land, and resulted in the recovery of the right. Personal actions usually had for their object the assertion of the right to damages for injuries to persons or to property, or for breaches of contract. Like many other distinctions in our law, this phraseology was borrowed from the Boman law, and is derived from the disinction between actiones in rem and actiones in jjersonam. The Boman actio in rem had for its object the assertion of the right of property, in anything which was the subject of property, whether movable or immovable. Actiones in personam had for their object the assertion of an obligation incumbent on a particular person to do or render something to the plaintiff. The prominence of freehold in- terests in lands, as the subject matter of rights, accounts for the nar- rower scope of 'real actions' in English law."— Digby, Hist. Law of Eeal Property, p. 69, n. 1. " The Terms Beal and Personal in English Law," 4 Law Quar. Bev. 394 ; Jacob's Law Diet., vol. 5, p. 386. 2 See Co. Litt., lb and 6a ; Wind v. Jekyl, 1 P. Wms. 575. 4 THE LAW OF REAL ESTATE AND certain rights in or over land not amounting to ownership, were granted and held upon tenure, and these were tene- ments. The word, therefore, means whatever may be held upon feudal tenure. 1 Hereditament has the largest signi- fication of all ; for all lands are tenements, and there are tene- ments besides land ; so all lands and tenements are heredita- ments, and there are hereditaments which cannot be included as either lands or tenements. The meaning of the word is, that which may be inherited, and inherited means descended from the owner on his death to his heir. 2 When a man own- ing property dies, the property which he leaves goes either to his executor, or to his heirs. The goods and chattels go to the executor, and the lands, tenements and hereditaments to the heirs. The business of the executor is to pay the dead man's debts, and in former times the heir was not bound to pay the debts out of the hereditaments which he received. Understand that this is law as it was ; we shall come to the present law in due time, and you will be better able to comprehend *' tenements and hereditaments " after studying tenures and descents. Having settled the definition of real estate as an interest or property in things real, viz : lands, tenements and here- ditaments, let us next inquire how this idea of property in the surface of the earth arose. It is to be traced to one of the primary springs of human action. There are certain in- stinctive desires which are natural to all men, and which, therefore, are said to form parts of the constitution of the human mind. There is the desire of life, of personal liberty and of personal security. One of these desires, almost as strong as that of life and liberty, is the desire to acquire and retain property. The gratification of these desires produces pleasure, and the denial or want of this gratification causes 1 Ohallis' Real Property, 37. 2 Ibid. 3S. CONVEYANCING IN PENNSYLVANIA. O pain and disappointment. And, since they are implanted in man by his Divine Creator, it follows that within proper bounds it is right that they should be exercised and gratified ; or, in other words, it may be said that each man has a God- given right to his life, his liberty, and to acquire and keep property. The existence of a right in one man necessarily implies or creates a corresponding obligation in all others to respect that right. If I have a right to get and keep possession of a thing, every other man is under a corresponding obligation not to hinder me in getting, or disturb me in keeping it. But the experience of mankind has taught them that rights are not secure, nor are obligations respected and observed without some authority to enforce them. Each man looks more to his own interest and happiness than he does to those of others, and conflicts take place resulting in discord and confusion. Thus law and government become necessary. The science which ascertains and sets bounds to the cor- relative rights and obligations of men in society, is the science of the law ; and the power which makes, administers and executes the law, whatever may be its form or its name, is government. The right to acquire and retain possession of a thing, or in other words the right of property, being once established, the application of that right to the soil of the earth arose naturally from the wants and necessities of mankind, caused by their gradually increasing numbers. When, at the crea- tion, but two people, the parents of the human race, stood before their Creator, he gave them dominion over all the earth, " and this," says Blackstone, 1 " is the only true and solid foundation of man's dominion over external things." From this Divine grant all men derive their title to land. At first, and as long as people were few, we may suppose 1 2 Com. 3. b THE LAW OF KEAL ESTATE AND that all was in common ; each one had the right to take pos- session of any spot that pleased him, which was not already occupied by some one else, and his title lasted only so long as his possession continued. Property without possession is said to be too abstract an idea for savage life. 1 Without stopping to consider the much discussed question, whether the natural state of man is savage or civilized, we may safely assume that the notion of property in land did not arise in the minds of men so long as the quantity of land was so great in proportion to the number of people as to afford to each at will as much space as he could possibly wish for. Under such circumstances land could have no desirableness or value as a subject of property, unless it were some particular spot which had a feature which specially fitted it for human use, as a spring of water, a fruit tree, or a cave. A striking instance of this is found in the book of Genesis, which gives us a detailed account of the first recorded purchase of land. 2 This took place, according to the Hebrew chronology, B. C. 1860. Sarah, the wife of Abraham was dead, and he bought, as a burial place for her, a field in which was the cave of Mac- pelah, from Ephron, of the tribe of Heth, for four hundred shekels of silver. The three successive stages of human society in its pro- gress towards civilization, the hunters, the shepherds, and the husbandmen, mark also the progress of the idea of property in land. This is beautifully stated by Blackstone. 3 Neither the hunters nor the shepherds probably went beyond the temporary title which arose from actual occupancy, and ter- minated with it so far as the individual man was concerned, although the sovereignty of nations or tribes over districts of territory inhabited by them was earlier developed. 4 When 1 2 Kent Com. 320. 2 Gen. ch. XXIII. s 2 Bl. Com. 8. 4 2 Kent Com. 3:20. CONVEYANCING IN PENNSYLVANIA. I men were few, beasts of the chase abounded, and their flesh for food was easily procured with little labor and with reasonable certainty. But as the increasing numbers of men required sustenance in greater quantities, the supply to be obtained from hunting wild beasts, instead of increasing in proportion to the demand, actually diminished, and the wants of mankind naturally forced them into the keeping of domes- ticated animals, and thus brought about the change to the shepherd period. From that to the cultivation of the soil, the transition was easy and natural. As flocks and herds enlarged, the space for pasturage remaining the same, it was found that more herbage was required for the support of the animals upon which men depended than could be had from the spontane- ous production of the ground. The soil must be tilled to supply the growing need, and thus, incited by necessity and taught from year to year by experience, shepherds became husbandmen. With the cultivation of the soil, inevitably came the idea of ownership in land. The conscience of each man, his natural sense of justice and right, teaches him that the hand which plants and tills should also reap. The preparation of the ground by the removal of trees, rocks and other obstacles, the breaking up of the earth, and the planting of the seed, gave to the land thus used a value it had not before, differ- ing from other land, and brought into active operation the instinctive natural desire to keep it as property, of which I have spoken. The husbandman could defend his possession by reasons which forcibly appeal to the feelings of the human mind — that whatever value the land had over other land, was the result of his own labor, and that every man who envied his enjoyment, might purchase similar acquisitions by the exercise of similar diligence. This is only a very brief outline of the development of the 8 THE LAW OP REAL ESTATE AND idea of property in land. I have suggested the thought that it is the result of the instinctive desire for the acquisition and retention of property, stimulated into activity by the wants and necessities of mankind. And the law of real property, on the study of which we are now entering, is the science which ascertains and defines the rights and obliga- tions of men in their relations with each other and with the government, in respect to land. 1 1 Early History of Property. — " The Roman Institutional Trea- tises, after giving their definition of the various forms and modifica- tions of ownership, proceed to discuss the Natural Modes of Acquiring property. Those who are unfamiliar with the history of Jurisprudence are not likely to look upon these ' natural modes ' of acquisition as possessing, at first sight, either much speculative or much practical interest. The wild animal which is snared or killed by the hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its roots into our ground, are each said by the Roman lawyers to be acquired by us naturally. The older jurisconsults had doubtless observed that such acquisitions were universally sanctioned by the usages of the little societies around them, and thus the lawyers of a later age, finding them classed in the ancient Jus Gentium, and perceiving them to be of the simplest des- cription, allotted them a place among the ordinances of Nature. The dignity with which they were invested has gone on increasing in modern times till it is quite out of proportion to their original import- ance. Theory has made them its favorite food, and has enabled them to exercise the most serious influence on practice. " It will be necessary for us to attend to one only among these ' natural modes of acquisition,' Occupatio or Occupancy. Occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. The objects which the Roman lawyers called res nullius — things which have not or have never had an owner — can only be ascertained by enumerating them. Among tilings which never had an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Among things which have not an owner are moveables which have been abandoned, lands which have been desert- ed, and (an anomalous but most formidable item) the property of an enemy. In all these objects the full rights of dominion were acquired by the Occupant, who first took possession of them with the intention of keeping them as his own — an intention which, in certain eases, had to be manifested by specific acts. It is not difficult, I think, to un- derstand the universality which caused the practice of Occupancy to be CONVEYANCING IN PENNSYLVANIA. » placed by one generation of Boman lawyers in the Law common to all Nations, and the simplicity which occasioned its being attributed by another to the Law of Nature. But for its fortunes in modern legal history we are less prepared by a priori considerations. The Boman principle of Occupancy, and the rules into which the jurisconsults ex- panded it, are the source of all modern International Law on the sub- ject of Capture in War and of the acquisition of sovereign rights in newly discovered countries. They have also supplied a theory on the Origin of Property, which is at once the popular theory, and the theory which, in one form or another, is acquiesced in by the great majority of speculative jurists. * * * * " To all who pursue the inquiries which are the subject of this volume, Occupancy is pre-eminently interesting on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a supposed explanation of the origin of private property. It was once universally believed that the proceeding implied in Occu- pancy was identical with the process by which the earth and its fruits, which were at first in common, became the allowed property of indi- viduals. The course of thought which led to this assumption is not difficult to understand, if we seize the shade of difference which sep- arates the ancient from the modern conception of Natural Law. The Boman lawyers had laid down that occupancy was one of the Natural modes of acquiring property, and they undoubtedly believed that, were mankind living under the institutions of Nature, Occupancy would be one of their practices. How far they pursuaded themselves that such a condition of the race had ever existed, is a point, as I have already stated, which their language leaves in much uncertainty ; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the institution of property was not so old as the existence of mankind. Modern jurisprudence, accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of Nature. Since theD it had received the position that the earth and its fruits were once res nullius, and since its peculiar view of Nature led it to assume without hesitation that the human race had actually practiced the Occupancy of res nullius long before the organization of civil societies, the inference immediately suggested itself that Occupancy was the process by which the ' no man's goods ' of the primitive world became the private property of individuals in the world of History. It would be wearisome to enumerate the jurists who have subscribed to this theory in one shape or another, and it is the less pecessary to attempt it because Blackstone, who is always a faithful index of the average opinions of his day, has summed them up in his 2nd book and 1st chapter. " ' The earth, he writes, ' and all things therein were the general property of mankind from the immediate gift of the Creator. Not that the communion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing ; nor could 10 THE LAW OF REAL ESTATE AND be extended to the use of it. For, by law of nature and reason, he who first began to use it acquired therein a kind of transient property that lasted so long as he was using it, and no longer ; or to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in com- mon, and no part was the permanent property of any man in particu- lar ; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of owner- ship, from which it would have been unjust and contrary to the law of nature to have driven him by force, but the instant that lie quitted the use or occupation of it, another might seize it without injustice.' He then proceeds to argue that ' when mankind increased in number, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used.' " Some ambiguities of expression in this passage lead to the suspicion that Blackstone did not quite understand the meaning of the proposi- tion which he found in his authorities, that property in the earth's surface was first acquired under the law of Nature by the occupant ; but the limitation which designedly or through misapprehension he has imposed on the theory brings it into a form which it has not in- frequently assumed. Many writers more famous than Blackstone for precision of language have laid down that, in the beginning of things. Occupancy first gave a right against the world to an exclusive but temporary enjoyment, and that afterwards this right, while it remained exclusive, became perpetual. Their object in so stating their theory was to reconcile the doctrine that in the state of Nature res nullius became property through Occupancy, with the inference which they drew from the Scriptural history that the Patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds. *' The only criticism which could be directly applied to the theory of Blackstone would consist in inquiring whether the circumstances which make up his picture of a primitive society are more or less probable than other incidents which could be imagined with equal readiness. Pursuing this method of examination, we might fairly ask whether the man who had occupied (Blackstone evidently uses this word with its ordinary English meaning) a particular spot of ground for rest or shade would be permitted to retain it without disturbance. The chances surely are that his right to possession would be exactly coextensive with his power to keep it, and that he would be constantly liable to disturbance by the first comer who coveted the spot and thought himself strong enough to drive away the possessor. But the truth is that all such cavil at these positions is perfectly idle from the very baselessness of the positions themselves. What mankind did in the primitive state may not be a hopeless subject of inquiry, but of their motives for doing it it is impossible to know anything. These sketches of the plight of human beings in the first ages of the world CONVEYANCING IN PENNSYLVANIA. 11 are effected by first supposing mankind to 'be divested of a great part of the circumstances by which they are now surrounded, and by then assuming that, in the condition thus imagined, they would preserve the same sentiments and prejudices by which they are now actuated — although, in fact, these sentiments may have been created and engen- dered by those very circumstances of which, by the hypothesis, they are to be stripped. " There is an aphorism of Savigny which has been sometimes thought to countenance a view of the origin of property somewhat similar to the theories epitomised by Blackstone. The great German jurist has laid down that all property is founded on Adverse Possession ripened by Prescription. It is only with respect to Eoman law that Savigny makes this statement, and before it can fully be appreciated much labor must be expended in explaining and denning the expressions em- ployed. His meaning will, however, be indicated with a sufficient accuracy if we consider him to assert that, how far soever we carry our inquiry into the ideas of property received among the Romans, however closely we approach in tracing them to the infancy of law, we can get no farther than a conception of ownership involving the three elements in the canon — Possession, Ad verseness of Possession, that is, a holding not permissive or subordinate, but exclusive against the world, and Prescription, or a period of time during which the Adverse Possession has uninteruptedly continued. It is exceedingly probable that this maxim might be enunciated with more generality than was allowed to it by its author, and that no sound or safe con- clusion can be looked for from investigations into any system of laws which are pushed farther back than the point at which these combined ideas constitute the notion of proprietary right. Meantime, so far from bearing out the popular theory of the origin of property, Savigny's canon is particularly valuable as directing our attention to its weakest point. In the view of Blackstone and those whom he follows, it was the mode of assuming the exclusive enjoyment which mysteriously affected the minds of the fathers of our race. But the mystery does not reside here. It is not wonderful that property began in adverse possession. It is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. But why it was that lapse of time created a sentiment of respect for his possession — which is the exact source of the universal reverence of mankind for that which has for a long period de facto existed— are questions really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries. "Before pointing out the quarter in which we may hope to glean some information, scanty and uncertain at best, concerning the early history of proprietary right, I venture to state my opinion that the pop- ular impression in reference to the part played by Occupancy in the first stages of civilization directly reverses the truth. Occupancy is the advised assumption of physical possession ; and the notion that an act of this description confers a title to '•res nullius,' 1 so far from being 12 THE LAW OF KEAL ESTATE AND characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. It is only when the rights of property have gained a sanction from long practical inviolability, and when the vast majority of objects of enjoy- ment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilization. Its true basis seems to be, not an in- stinctive bias towards the institution of Property, but a presumption, arising out of the long continuance of that institution, that everything ought to have an owner. When possession is taken of a * res nullius,' that is, of an object which is not, or has never been, reduced to dominion, the possessor is permitted to become proprietor from a feel- ing that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the Occupant. The Occupant, in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing. L ' Even were there no other objection to the descriptions of mankind in their natural state which we have been discussing, there is one par- ticular in which they are fatally at variance with the authentic evi- dence possessed by us. It will be observed that the acts and motives which these theories suppose are the acts and motives of Individuals. It is each Individual who for himself subscribes the Social Compact. It is some shifting sandbank in which the grains are Individual men, that according to the theory of Hobbs is hardened into the social rock by the wholesome discipline of force. It is an Individual who, in the picture drawn by Blackstone, ' is in the occupation of a determined spot of ground for rest, for shade or the like.' The vice is one which necessarily afflicts all the theories descended from the Natural-Law of the Komans, which differed principally from their Civil Law in the account which it took of Individuals, and which has rendered precisely its greatest service to civilization in enfranchising the individual from the authority of archaic society. But Ancient Law, it must again be repeated, knows next to nothing of Individuals. It is concerned not with Individuals, but with Families, not with single human beings, but groups. Even when the law of the State has suc- ceeded in penetrating the small circles of kindred into which it had originally no means of penetrating, the view it takes of Individuals is curiously different from that taken by jurisprudence in its maturest stage. The life of each citizen is not regarded as limited by birth and death ; it is but a continuation of the existence of his forefathers, and it will be prolonged in the existence of his descendants." — Maine's Ancient Law, 244-259. " Property in land, as we understand it, that is, several ownership, CONVEYANCING IN PENNSYLVANIA. 13 ownership by individuals or by groups not larger than families, is a more modern institution than joint property or coownership, that is, ownership in common by large groups of men originally kinsmen, and still, wherever they are found (and they are still found over a great part of the world), believing or assuming themselves to be in some sense of kin to one another. Gradually, and probably under the influ- ence of a great variety of causes, the institution familiar to us, indi- vidual property in land, has arisen from the dissolution of the ancient coownership." — Village Communities and Miscellanies, by Sir H. S. Maine, p. 227. 14 THE LAW OF REAL ESTATE AND CHAPTER II. WHAT IS LAND?— LAND NATURAL— WATER— RIGHTS OF RIPARIAN OWNERS— LAND BY ACCESSION— GROWING CROPS— FIXTURES— INTENTION THE TEST OR CRITE- RION— WA Y-GOING CROP— PARTY-WALLS— LAND B Y CON- STRUCTION OF LAW— EQUITABLE CONVERSION -LAND DIVIDED PERPENDICULARLY AND HORIZON! ALLY- BOUNDARIES— NAVIGABLE STREAMS— STREAMS NOT NA VIGABLE— ALL UVIONS— WA TER-FRONTA GE— GROW- ING TIMBER— MINERALS IN PLACE— RIGHTS OF SUR- FACE OWNER— TAXATION OF MINERALS. Let us now consider the question : What is Land ? The answer may be divided under three heads — I. Land natural. II. Land by accession. III. Land by construction of law. I. Land natural. The surface of the ground, with all over it or under it. The old Latin maxim of the law is, " Oujus est solum, ejus est usque ad coslum.'''" When a man is the absolute owner of land, he owns everything from the center of the earth to the highest heavens, the earth stones and min- erals in one direction, and the herbage trees and space un- occupied in the other direction. Mark out his lines on the surface of the ground, and then draw radii from the center of the earth, intersecting its circumference, and extending indefinitely into space. All between these radii and included by them belongs to the owner of the land. He, only, has the right to cross over the line which separates this portion of space from the remainder, to dig down into it or build up into it. If one crosses the boundary line of another's land 1 Co. Litt. 4a ; Broom's Leg. Max. *289. CONVEYANCING IN PENNSYLVANIA. 15 without permission, he commits a trespass, and it was a most instructive query suggested by Lord Ellenborough, whether it would not be trespass to cross the space over another's land in a balloon. 1 Water covers land, — we would not say " twenty acres of water," but " twenty acres of land covered by water" — and it is the land which is owned, and not the water. The owner of land is not the proprietor of the water which runs through it. He has a property in the land over which the water passes in going from a higher to a lower level, but his right to the water is only to use it for the gratification of his natural or ordinary wants. The owner of the land below him, through or by which the water takes its accustomed and natural course, has the same right to the water that the upper proprietor has, and the rights of all the riparian pro- prietors upon any stream are, in the eye of the law, equal with respect to the water. Each one has the right to use the water, but he is bound to do so in such a manner that he does not materially diminish the quantity, or corrupt the quality of it. 2 If he goes beyond his right in either ol 1 " I recollect a case where I held that firing a gun loaded with shot into a field was a breaking of the close ; * * * * but I never yet heard that firing in vacuo could be considered a trespass. No doubt if you could prove any inconvenience to have been sustained an action might be maintained ; but it may be questionable whether an action on the case would not be the proper form. Would trespass lie for passing through the air in a balloon over the land of another ? "—Lord Ellenborough in Pickering v. Rudd, 1 Starkie, 58. Brocket v. O. & Pa. R. R. Co., 2 Har. 243. 2 A riparian owner may divert water from a stream for the irriga- tion of his land, but only to a reasonable extent having regard to the conditions of other property owners on the stream. Messinger's App. 13 Out. 285. Where a railroad company owns lands in fee, through which a stream flows, it may use the water by virtue of its right as a riparian owner ; but the use must be such as not to sensibly diminish the stream to the riparian owner below. The water belongs to both, and if the railroad company wants more than its share it must take it under its right of eminent domain, and pay for it. Penna. R. R. Co. v. Miller, 2 Amer. 34. The owner of a dam is only bouud to pro- 16 THE LAW OF REAL ESTATE AND these points he commits a -wrong, and does an injury to his neighbour for which damages mav be recovered in an action at law, or a court of equity will stop the continuance of such a wrong by perpetual injunction. 1 In another case the stream- in question took its rise from a spring near the city of Scranton. The plaintiff bought a lot on the stream, and built a residence upon it, being induced in part to do so by the fact that the stream was of pure, clear spring water. He introduced the water into his house by means of a jam, and it was used for all domestic purposes. The defendants opened a coal mine on the hill near the spring, and the mine water when pumped out ran into the stream, and in time rendered it entirely unfit for use. Held, that the defendants were responsible. 2 This is a very im- portant case because of its effect upon mining interests, on vide waste-ways enough to carry off the water under ordinary circum- stances. He is not bound to provide for extraordinary floods. Thatcher v. Baker, 13 Out. 22. But if a dam or obstruction maintained by de- fendant caused back water on plaintiff's land, in any degree, in the ordinary stages of water or freshets which are to be anticipated, then such dam or obstruction would be illegal, and plaintiff would also be entitled to recover from defendant such damages as arose therefrom in the extraordinary freshets that sometimes occur. Humphrey v. Irvin, 18 W. N. O. 449. 1 McCallum v. Germantown Water Co., 4 P. F. Sm. 40. In this case a bill was Bled, setting forth that the complainants were a water company, and had purchased a tract of land on Cobb's Creek, and had erected water works, etc.; that when they acquired these rights to the water it was pure and unpolluted, and that four or Sve weeks before the filing of the bill it had become contaminated and impure by substances introduced from defendant's factory ; that the defendant had been manufacturing carpets, and while so doing had not polluted the water, but that recently the defendant had been using his factory for making blankets, and had thereby rendered the water unfit for drinking purposes ; and prayed for an injunction. The defend- ant claimed by prescription the right to pollute the water, but it was held that he could not pollute it to a greater extent than he had pollut- ed it at the beginning of the twenty-one years, which would be very little, and the injunction was granted. See also Bitting's App., 15 W. N. C. 45; City y. Carmany, 18 W. N". C. 152. 2 Sanderson v. Penn'a Coal Co., 5 Nor. 401. CONVEYANCTNQ IN PENNSYLVANIA. 17 account of which one of the judges dissented. 1 It has been before the Supreme Court several times. 2 II. Land oy accession. — The maxim of the law is, u Quic- quid plantatur solo, solo cedit. m Whatever is fastened to the soil belongs thereto. All things which are affixed to land become part of the land, as trees, fences, houses, etc., etc. This is the general rule of the common law. Lumber, bricks, hardware, etc., are movable; they are chattels, per- sonalty ; but put them together upon land in the shape of a house, and they lose that character and become part of the land. This is a very important distinction ; for the rules of law governing the two classes of property are very different, especially as respects the transfer of title to the property. The converse of this proposition is also true, that is, what- ever is severed from land loses its character as land. A tree growing is part of the land it grows on. Cut it down and it 1 6 W. N. C, 97. 2 The case was first tried in 1878, and a non-suit entered, on the ground that the discharge of the mine water was a necessary incident to mining ; a writ of error was taken to the refusal of the Court to take off the non-suit, and the judgment of the lower court was revers- ed. 5 Norris, 401. The case was again tried in 1879, and a verdict rendered for the plaintiff. The defendants took a writ of error, but the court adhered to the opinion it had previously rendered. 13 Norris, 302. The plaintiff however sued out a second writ to the same judg- ment, assigning for error the ruling of the Court as to the measure of damages. On this ground the judgment was reversed. 6 Out. 370. The cause was again tried in 1885, and a verdict rendered for the plaintiff. To this judgment a writ of error was taken, and the cause was again brought before the Supreme Court. 3 Amerman, 126; 18 W. N. C. 181. The Court reconsidered its former decision, and re- versed its opinion in 5 N orris, 401, on the ground that the damages to the plaintiff resulted from the natural and lawful use by the defend- ants of their land. The Court also said that the use and enjoyment of a stream for domestic purposes must give way to the interests of the community, in order to permit the development of the natural resources of the country, and to make possible the prosecution of the lawful business of mining coal. Mercur, C. ,T., Gordon and Trunkey,, J J'.„ dissented. 5 Broom's Leg. Max. *295. 2 18 THE LAW OF REAL ESTATE AND becomes a stipk of timber, a chattel. So of stone in place in the earth, it is part of the land ; dig it out and it becomes building stone, a chattel ; and the illustration might be ex- tended indefinitely. The clay from which bricks are made, and the limestone from which lime is made, were land, but the bricks and lime are chattels. As I said just now, if you put the timber and the stone, the bricks and the lime together again, and fasten them to land in the form of a house they become part of the land. So that a piece of property may undergo several changes of character ; originally a part of the land, it may become a chattel ; then land again; and then a chattel again, as often as it is severed from, or affixed to land. Growing crops are personalty, although affixed to land; yet they so far partake of the nature of the land, that they pass, on a sale of the land, as appurtenant to it, unless ex- pressly reserved. 1 There are very many exceptions to this ancient rule of law, and it is not every chattel which is affixed to land that becomes part of the land. When a chattel is thus attached to land it is called a fixture, and it is a matter of very con- siderable importance to a lawyer to be able to say when a fixture is part of the land, and when it is not. Let us then briefly examine the doctrine of fixtures. With regard to the old doctrine, that whatever was fasten- ed to the soil belonged thereto, it is said that, as a test or criterion by which a case is to be decided, it has been ex- ploded in Pennsylvania. 2 In Meigs' Appeal, 3 a question was raised as to the character of certain frame buildings, which the United States Government had erected upon York com- mon as barracks for troops during the Civil War. If they were realty, and formed part of the land, they belonged 1 Backenstoss v. Stahler's Adm'r, 9 Cas. 251 ; Hershey u. Metzgar, 9Nor. 218; Long v. Seavers, 7 Out. -517. 2 Voorhis v. Freeman, 2 W. & S. 116. 8 12 P. F.Sm.,28. CONVEYANCING IN PENNSYLVANIA. 19 to the borough of York, which owned the land. If they were personalty, they belonged to the United States Gov- ernment or its vendees, and they had the right to remove them. The argument was pressed upon the Court, that the buildings were erected upon posts which were sunk deeply into the ground, and therefore, being fastened to the soil, and not merely placed and rested upon it, they were part of the land itself, and belonged to the owner of the land. But Judge Agnew, delivering the opinion of the Court, said. " The old notion of a physical attachment has long since been exploded in this State. * * * The question of fixtures or not depends upon the nature and character of the act by which the structure is put in place, the policy of the law connected with its purpose, and the intentions of those concerned in the act." A fixture is a chattel attached or affixed to land, but it is not every fixture which becomes part of the realty, as would be the case if the old maxim were held to be of universal application. As Judge Agnew says, the determination of the question depends upon other considerations than mere physi- cal attachment. But the question cannot arise until the chattel is actually fastened to the land. After the annex- ation has taken place, the test is the intention of the par- ties concerned ; whether they meant to make the chattel a permanent part of the freehold, or merely placed it there temporarily, with an intention to remove it again. 1 1 A distinction is made by a dictum of Judge Paxson, in Building Association v. Berger, 3 Out. 320, between cases arising between landlord and tenant, and other cases, as to the question how far the intention to annex is the criterion. He says, " It was contended by the learned counsel for the plaintiff that the above instruction was er- roneous in this, that it gave undue weight to the intention of the de- fendant ; that while, as between landlord and tenant, the intention to annex is the criterion, yet as between vendor and vendee the rule is not so. As an abstract proposition, this criterion is true to a cer- tain extent. There may be some things which are so essentially a part of the freehold, that as between vendor and vendee the intention of the owner may be of little weight." 20 THE LAW OF REAL ESTATE AND It is plain, however, that intention has no bearing upon the question before actual annexation. If a man brings bricks to a lot of ground with the intention of building a house, the bricks are no part of the house until they are built into it. They remain chattels until annexed to the freehold. Where the owner of a rolling mill had rolls specially cast for his mill, so as to fit in with the other parts of the machinery, and these rolls were delivered at the mill, but not put in place or fastened to the land, it was held that they remained chattels, and did not pass to a purchaser who bought the mill. It could not be doubted that they were intended to be made part of the mill, but the intention alone was not sufficient to overcome the plain fact that they were not actually part of the mill. 1 It does not follow that severance from the land, will con- vert that which was originally part of the freehold into a chattel. That depends much upon the intention and character of the person who performs the act. Thus where a tres- passer cut timber from a tract of land, the Supreme Court held that the timber lying upon the ground was part of the realty. The owner did not assent to the severance, and while the timber remained upon the premises, he might claim it as part of the freehold. 2 And in another case where a building was blown down by a storm of wind, and all the materials above the foundation and the floor were lying a complete wreck, it was held that the fragments were not converted into personalty, but remained realty, and passed to a purchaser who subsequently bought the land at sheriff's sale. 8 The same is true of fallen timber, blown down by the wind; it remains realty until the owner of the land does some act which indicates an intention to treat it as a chattel. 4 1 Johnson t>. Mehaffey, 7 Wi\, 309. 2 Altemose v. Hufsmith, 9 Wr., 128. 3 Rogers v. Gilinger, 6 Cas., 185. 4 Leidy v. Proctor, 1 Out., 486. CONVEYANCING IN PENNSYLVANIA. 21 In general terms it may be stated that the intention of the party who affixes the chattel to the land is the test or criter- ion by which is to be decided the question, whether the fix- ture is to be considered as real or personal property. If it was the intention to make a permanent improvement of the land, the chattel affixed becomes part of the land. If it was the intention to place it there temporarily, to be removed again at the pleasure of the person who placed it, then the chattel remains a chattel. 1 Now, it is manifest that this intention may be indicated, with more or less force, by many circum- stances; such as the common usage of the community, or the relations of the parties to the land, or to each other ; or, it may be inferred, as Judge Agnew says in Meigs' Appeal, 2 from the policy of the law connected with the purpose of the fixture. 1. Intention inferred from usage. Where the chattel annexed to the land is usually considered necessary to its enjoyment, as for instance a door-key, it will pass with the realty. Undoubtedly, if a house were sold, the seller could not take the key from the door and carry it away ; it is part of the house, as the house is part of the land. So it has been held that gas fixtures in Philadelphia are chattels, and not part of the realty, because, although they are fastened to the building and to the land, it is customary for each tenant of a house to have his own fixtures, and to take them with him when he removes. 3 This case was doubted by some persons, but those doubts have been set at rest by the decision of the Supreme Court in Jarechi v. The Philharmonic Society, 4 where Judge Sharswood said, that upon the fullest consideration the court had determined to adhere to the rule laid down in Vaughen v. Haldeman. " The fixtures," he says, 1 Hill v. Sewald, 3 P. F. Sm. 273. 2 12 P. F. Sm. 28. 3 Vaughen v. Haldeman, 9 Cas. 522. 4 29 P. F. Sm. 403. 22 THE LAW OP REAL ESTATE AND " are put up in more or less expensive style, according to the taste and means of the persons who mean to occupy the houses, whether as tenants or owners. If the tenant puts them in, it is not denied that, as between him and the land- lord, they are his, and he may remove them ; or they may be sold as his personal property on an execution by the sheriff. No doubt the owner, if they belong to him, often sells them with the house. They add more to the value of the house than they would be worth if removed. But if there is no agreement to sell the house just as it is, fixtures and all, the purchaser is not entitled to them." On the same principle, heaters have been decided to be personalty, although put in by an owner. 1 It is well settled that the machinery in a mill or factory is part of the realty; and passes upon a sale of the factory, 2 and the question is whether the particular thing is a necessary part of the machinery for carrying on the business, not whether it was firmly attached to the land or building. 3 2. The relations of the parties between whom the question arises, has sometimes an important bearing upon its decision. The question of fixtures usually arises upon a change of title or possession of the land, or in cases of alleged waste. As hetween heir and executor, the law favors the inherit- ance, and in doubtful cases, when the question is between those claiming the personalty and the heir, always inclines to consider a chattel affixed to the land as part of the realty. 4 Such questions cannot often arise in Pennsylvania, or the American states, for the descent of realty and the distribution of personalty are governed by substantially the same laws. A pew in a church is not realty. It passes to the executors for purposes of sale as part of the assets. 5 1 Heysham v. Dettre, 7 W. IS". C. 207. 2 Roberts v. The Bank, 7 Har, 71 ; Harlan u. Harlan, 8 Har. 303. 3 Christian v. Dripps, 4 Cas. 271 ; Morris' Appeal, 7 Nor. 36S; Kis- terbock v. Lanning, 19 W N". C. 54. 4 Wilson r. Freeman, 7 W. N. C. 33. 5 Church v. Wells' Executors, 12 Har. 249. CONVEYANCING IN PENNSYLVANIA. 23 As between tenant for life and remainderman, or rever- sioner, the law favors the tenant for life. Where a man has only a limited estate in land, which may come to a speedy end, it is not reasonable to presume that the chattels affixed to the land are intended as' permanent improvements of another man's property. As between debtor and creditor, the law always leans in favor of the creditor and against the debtor. As between landlord and tenant for years, the law favors the tenant, and it is in this class of cases that the claim to have fixtures considered as personal property is received with the greatest indulgence. And the reason is manifest ; one who annexes fixtures to his own property for any pur- pose, whether for the benefit of his trade, or for household convenience or ornament, ordinarily does so with the inten- tion to improve it permanently and increase its value. On the other hand, it is only reasonable to presume that chat- tels affixed by a tenant, whose possession of the property is only for a limited term, would be so placed with the inten- tion to remove them again, for it is against all experience to believe that one man willingly spends money to improve the property of another. Consequently it is well settled that a tenant may during his term remove fixtures erected upon the leased property. 1 And where the tenant has that right the fixtures may be taken in execution, and sold by the sheriff as the tenant's goods, and the purchaser at the sheriff's sale may sever and remove them. This right to remove fixtures must be exercised before the term expires ; the tenant has no right to enter after the term. 2 The intention may be gathered from the character of the annexation. The fixture to remain a chattel must be such as can be removed without doing permanent injury to the 1 Hey v. Bruner, 11 P. F. Sm. 87.. ' White v. Arndt, 1 Whart. 91; Overton v. Williston, 7 Cas. 155; Davis v. Moss, 2 Wr. 346. 24 THE LAW OF KEAL ESTATE AND freehold. And even if it be held that the tenant may remove it, he is responsible in damages for any injury to the property caused by the removal. 1 It may not be out of place to refer in this connection to the peculiar Pennsylvania common law concerning the way- going crop. Where a tenant of arable land, whose term expires in the spring of the year, plants winter grain, which does not mature until the following summer, he may return after his term has expired, to cut his wheat and take it away, and his right of entry for that purpose is undoubted. 2 3. The policy of the law favors trade, and a chattel af- fixed for purposes of trade is allowed to remain a chattel. 3 The exceptions, under this head, to the common law rule were of ancient origin. In the year-book hi 20 Hen. VII., 13, it is said, " If a lessee for years make a furnace for his advantage, or a dyer makes his vats or vessels to occupy his occupation, during his term he may remove them. But if he suffer them to be fixed to the earth after the term, he may not remove them, then they belong to the lessor And so of a baker. And it is not waste to remove such things within the year by some." There are two cases, decided by the Supreme Court of Pennsylvania within a year of each other, which illustrate how completely the fact that a fixture has been annexed by a tenant, for the purposes of his trade, will change the na- ture of the act. In Morgan v. Arthurs,* decided in Sep- tember, 1834, the question was about a steam engine set up by the owner of the land to drive a saw-mill, and it was held to be part of the realty. And in Lemar v. Miles, 5 decided in September, 1835, the court decided that a steam engine set 1 Seeger v. Pettit, 27 P. F. Sra. 437. 2 Stultz v. Dickey, 5 Biim. 285. 3 See note to Elwes v. Mawe, 2 Sm. Ldg. Uas. (8th Am. Ed.) 4 3 Watts, 140. 6 4 Watts, 330. CONVEYANCING IN PENNSYLVANIA. 25 up by a tenant for the purposes of his trade, which was the manufacture of salt, was a chattel, and had never become part of the inheritance. 1 It very frequently happens, in actual experience, that several of these " indicative facts " unite or coincide in any particular case ; or, they may conflict with each other. Of course, the inferences to-be drawn from them are stronger or weaker according to circumstances. The test or criterion is, what was the intention of the party ? And the question is one of fact. Party walls. The act of 24th February, 1 721 . 2 gave to the owner of land the right to enter upon his neighbor's ground, and to build his wall equally upon his own land and upon that of his neighbor, and provided that before the neighbor should use the party wall so built, he should pay the first builder for so much of the wall as he intended to make use of. This right to be paid for a wall partly erected on another's land, was held by the Supreme Court to be merely a right to a sum of money, a chose in action, and therefore personalty liable to execution at the suit of a creditor, as other chattels of that nature are, and not passing to a purchaser on a sale of the house of which the party wall formed part. 3 But the law in this respect was changed by the act of April 10, 1849, 4 which provided that the right to the party wall, or to compensation for it, should pass to the purchaser on a conveyance of the. house, unless otherwise expressed in the deed. This act makes the party wall part of the realty, and 1 Oves v. Ogelsby, 7 Watts, 106. 2 Purd. Dig. 1302, pi. 7. 1 Todd v. Stokes, 10 Barr, 155 ; Gilbert v. Drew, 10 Barr, 219. So it has been held that damages to a property consequential upon a change of grade are a personal claim, to be assessed in favor of the owner of property abutting on the street at the time of the injury. The claim is ripe when the grade is confirmed, and a subsequent sale of the land before the grading is actually done does not pass the claim for damages to the purchaser. Campbell v. Philadelphia, 12 Out. 300. 1 Purd. Dig. 1307, pi. 28. 26 THE LAW OF REAL ESTATE AND an appurtenance to the land on which the house first built is erected. 1 An owner about to build may put the dividing wall between him and his neighbor equally upon the land of each, but if he should not do so it will be a party wall if any part of the wall be over the line upon the neighbor's ground. 2 It is im- material that the foundation is not equally laid upon the lot of each party, and that the wall itself above the founda- tion is wholly within the lot of the builder. In order for a wall not to be a party wall it must, foundation and all, be wholly within the line of the builder. 3 But a builder may build his party wall to any height ; he need not carry the party wall to the whole height of his building. In one case a party wall was erected solid to the height of about sixteen feet, and then three openings were made in it about forty feet apart. The parts of the wall between these openings constituted a solid wall about seventy feet high. At each of the openings the builder receded nine feet from the party wall, and there built upon foundations on his own ground, thus forming a recess for light and air. It was held that he had a right to do so. 4 III. Land by construction of law. There are cases where, for certain purposes, land is treated as personal estate, and where money is considered and treated as land. This is upon purely 1 Knight v. Beenken, 6 Oas. 372. 2 Milne's Appeal, 31 P. F. Sm. 54 ; Appeal of Western National Bank, 6 Out. 171. 3 Beaver v. Nutter, 10 Phila. 346 (0. P. 1). 4 McCall v. Barrie, 14 W. N. C. 419 ; McCall's Appeal, 16 W. N. C. 95. Under the act of May 20, 1857, Pard. Dig. 1307, pi. 27 (P. L. 590), the decision of the building inspectors, as to the sufficiency of party walls, is a finality from which no appeal lies to the common pleas. If adjudged by the inspectors to be insufficient, the wall must be taken down by the last builder, and for so doing no order of the common pleas is provided for, nor is one necessary. Ohilds v. Napheys, 2 Amer. 504. CONVEYANCING IN PENNSYLVANIA. 27 equitable principles, and is known as the doctrine of equitable conversion. For example, where a testator, by his will, di- rects land to be sold and the proceeds divided or paid to cer- tain persons, the land is considered as if it had been actually converted into money, and the persons entitled to it have personal, and not real, property. 1 Or, where money is given by a testator with a direction that it be used in the purchase of land, the money is considered as real property, that is, as if the conversion of the money into land had actually taken place. Or again, where land is sold, by a fiduciary under decree of the court, the proceeds being received in money for certain purposes, the money retains the properties of real estate and is treated as if it were land. " In point of fact," says an eminent judge, " the land is converted into money. The judicial alchemy can transform it again into land." 2 This doctrine of equitable conversion depends upon a maxim of equity, that " equity regards that as done, which ought to be done.''' 1 It is called into operation, however, only when some equitable purpose is to be served, and it is, of course, limited to the accomplishment of that purpose, for equitable conversion is a fiction, it is an imaginary or ideal conversion of property from real to personal, or from personal 1 Allison v. Wilson, 13 S. & B. 332 ; Stuck v. Mackey, 4 W. & S. 196. Townsend and Hartshorne's App., 15 W. N. C. 443; Appeal of City of Philad'a Trustee, 17 W. N. C. 472, 2 Amer. 470 ; McWilliam's App., 20 W. N. C. 120, 2 Crum. 111. Where a testator domiciled in this Commonwealth devises land without the Commonwealth to be sold to pay pecuniary legacies, the legacy will pass to the legatee as monpy, and subject to the law of the testator's domicile, and hence will be subject to the collateral inheritance tax. Miller v. Common- wealth, 1 Amer. 321. Where a sale of real, estate has been ordered by the court for the payment of the debts of a decedent, the conversion of realty into personalty dates from the sale and payment of the purchase money. Gordon's App., 18 W. N. C. 23. The sum charged upon land in proceedings in partition, is regarded as personalty. Barley t .Zeigler,16 W. N. C. 218. 2 Coulter, J., in Dyer v. Cornell, 4 Barr, 359; Bonsall's Appeal, 1 Eawle. 273. 28 THE LAW OF REAL ESTATE AND to real, when no actual conversion has taken place. There- fore, no court would suffer a fiction to subsist and govern their action, except for the accomplishment of some substantial purpose. And it has been settled that in no event will the fiction be kept up beyond the first descent of the property. It may end sooner if the purpose should be sooner accom- plished, but the first descent is the extreme limit beyond which it cannot go. 1 Having thus answered the question, what is land? let us next inqure into the divisions of land among various owners. Land is divisible, perpendicularly and horizontally. 1. Perpendicularly. The law is the same whether the piece be large or small, a square inch or a square mile. A few words may be profitably bestowed here upon the boundaries to land. They may consist of imaginary lines upon the surface of the earth, or of material and visible objects, such as fences, streams, roads. When land is bounded by a stream of water, the right of the owner depends somewhat upon the character of the stream. If it be a large navigable river, the title of the land owner is to low-water mark, subject to the right of the pub- lic to pass over so much of it as lies between low and high water mark, when covered with water. 2 This rule applies to boroughs and cities, as well as to private individuals. A town or a city laid out as bounded by a public river has jurisdiction only to low-water mark of the river. 3 When ''low-water mark" is spoken of, the ordinary low water is meant, not the lowest, such as would happen in a verydry 1 Dyer v. Cornell, 4 Barr, 359; McCune's Appeal, 15 P. F. Sm. 450. For a full discussion of this doctrine see Fletcher v. Ashburner, 1 Ldg. Cas. in Eq. 659, and notes; also Mitchell's Lectures on Equity. 2 Ball v. Slack, 2 Whart. 50S ; Naglee v. Ingeisoll, 7 Barr, 185 ; Pur- sell v. Stover, 14 Out. 43. s Gilchrist's Appeal, 16 W. N. C. 261. 4 Stover v. Jack, 10 P. F. Sm. 342. CONVEYANCING IN PENNSYLVANIA. 29 In determining whether any given stream be " navigable" or not, the English doctrine is that it depends upon the ebb and flow of the tide; where the tide rises and falls, the stream is a public river. This doctrine has not been fully adopted in the United States, and was never introduced into Pennsylvania. Many of our rivers, like the Delaware, Ohio and Susquehanna, are navigable far above tide-water, and a doctrine that in this respect is quite suitable for an island like Great Britain, is not at all applicable to a continent like America. 1 Where land is bounded by a stream not navigable, the rule is that the title runs ad medium Mum aqum. 2 When a stream not navigable, gradually changes its channel, the titles of the adjacent land owners follow the change. De minimis non curat lex. Where the change is sudden, the ownership re- mains according to the former bounds ; and if the river should forsake its channel and make an entirely new one in the land of the owner on one side, he will become owner of the whole river, so far as it is enclosed by his land. This is the general doctrine of alluvions. 3 The accretion or diminution of lands fronting on a large navigable river, as a result of the rising or falling of the waters, is sometimes considerable, and the fluctuations are frequently quite rapid. The flats along a river front, formed by the deposit of earth or sand along the river shore, are part of the fast land, and belong to the owner. They are said to be appurtenant to the adjoining fast land, and as a rule the title to the flats will be presumed to pass as appurte- nant, by a deed describing the fast land only, and containing no express reservation of the flats. 4 A change in the bounds of a public river also requires a change in the water frontage of the adjoining landowners, 1 Carson v. Blazer, 2 Binn. 476. 2 Ooovert v. O 'Conner, 8 Watts, 470. 3 2 Bl. Com. 258; 3 Kent. Com. 428. 4 Eisdon v. The City, 18 W. N. C 73. 30 THE LAW OF REAL ESTATE AND and it very frequently happens that the value of such lands depends upon their situation with respect to the river. The rule adopted by the Supreme Court of Pennsylvania was, that where there are adjoining lands on the same side of a navigable stream, which by alluvion has increased or de- creased the length of water frontage, the boundary lines, over the made ground must run at right angles to the former shore line. 1 But this rule has been modified, and it is said that each case must depend to some extent upon its own circumstances. "We think," said Gordon, J., "the better statement of the rule to be, that the owner of land on the bank of a navigable stream is entitled to claim to low- water mark, by lines running directly from his extreme bank-marks (if any such he has) to the beach ; and this without regard to the courses of the side lines of his survey." 2 2. Horizontally. One man may own the growing' timber trees, another the surface, and a third the minerals in the same piece of land. Or there may be different owners of the several stories ot the same house ; this is said to be not uncommon in London. The cellar may belong to one and the superstructure of the house to another. 3 Where one owning land with growing timber on it, granted the land, reserving to himself and his heirs the right to enter and cut the timber, at discretion as to time, the interest reserved was held to be an estate in the land, until the actual sever- ance of the timber. 4 This is not so where the immediate severance of the timber is contemplated. 5 For a long time, a distinction in the law was made between so much of the land (in its technical sense) as was above the 1 Wood v. Appal, 13 P. F. Sm. 215. 2 Kreiter v. Bigler, 5 Out. 94. 3 Doe v. Burt, 1 Term Rep. 701. * McClintock's Appeal, 21 P. F. Sm. 365; Miller v. Zufali, 3 Amer. 317. 6 Narebood c Wilhelm, 19 P. F. Sm. 64; Wilson v. Douglass, 10 W. N. C. 627. CONVEYANCING IN PENNSYLVANIA. 31 surface, and that which was below. Coke says, "A man may have an inheritance in an upper chamber, though the lower buildings and soile be in another," ' and as authority for this he refers to the Year Books of 11 Edw. III., Anno 1338, and 9 Edw. IV., Anno 1470. But for a very long time after that, a right to minerals in place under the ground, as dis- tinct from the soil, where there was no open mine, was con- sidered an incorporeal hereditament, or a right in another's land, rather than as an estate in the land itself. This doc- trine naturally resulted from the common law requirement of livery of seisin to transfer an estate in the. land. Incor- poreal hereditaments, which we will shortly study, were not susceptible of actual livery, and therefore were transferred by writing ; they were technically said to " lie in grant." Consequently, since it was just as impossible to make livery of minerals beneath the surfaae, they were said to lie in grant also, and were classed as incorporeal hereditaments. It is now well settled that a man may have an estate in a stratum of the earth. Coal and minerals in place, are land. If the owner of land should sell the surface, reserving all minerals, his remaining estate would be land. 2 A series of cases in Pennsylvania, arising out of the same deed of con- veyance, settled the law on this subject. These cases are Caldwell v. Fulton. 3 Caldwell v. Copeland,* and Armstrong v. Caldwell. 5 The deed was dated May 27, 1831, and by it Caldwell sold to Greer, 16 acres of land (part of a large tract owned by him) and " also the full right title and privilege of digging and taking away stone-coal, to any extent the said George Greer may think proper to do or cause to be done, under any of the land now owned and occupied by the said 1 Co. Litfc. 48b. 2 Benson v. The Miners' Bank, 8 Har. 370. 8 7 Oas. 475. 4 1 Wr. 427. 5 3 P. F. Sm. 285. 32 THE LAW OF REAL ESTATE AND Caldwell : provided nevertheless, that the entrance thereto, and the discharge therefrom, be on the foregoing described premises." These cases determine : — a. That minerals beneath the surface of land may be con- veyed and owned, distinct from the surface. b. That they are land, i. e., corporeal hereditaments. c. That where the surface and the sub-stratum are owned by different persons, possession of the surface is not posses- sion of the sub-stratum, within the meaning of the statute of limitations. 1 When there are different owners of different stories of a house or strata of the earth, they have correlative rights and obligations as to covering and support, drainage, etc., arising from their situation ; 2 and the common law applies, for the mining business is of too recent a date in this country to give any custom to the contrary. 3 The owner of minerals is entitled only to so much as he can remove without injury to the surface. The surface owner is en- titled to actual, not ordinary, support for his land, from the owner of the mines beneath it. The fact that the mining was done carefully, according to the usual practice of min- ing, is no defence, if the surface caves in. * These rights 1 See Prof. Morris' Lecture on Mining Rights in Penn'a. Law Aca- demy, 1857. See also Ashman v. Wigton, 20 W. N. C. 280. 2 Jones v. Wagner, 16 P. P. Sm. 429. 3 Horner v. Watson, 29 P. F. Sm. 242 ; Coleman v. Chadwick, 30 P. F. Sm. 81. 4 Carlin v. Uhappel, 5 Out. 318; Scranton v. Phillips, 13 Nor. ,15. This absolute right to surface support may be waived by the owner of the surface, but it is not to be taken away by a mere implica- tion from language which does not necessarily import such a result. A., the owner of land, conveyed the surface, reserving the right to the underlying coal and minerals, " Provided however, That the said A., his heirs and assigns, in mining and removing the coals, iron-ore and minerals aforesaid shall do as little damage to the surface as possi- ble." In an action for injury to the surface caused by the mining of CONVEYANCING IN PENNSYLVANIA. 33 will be protected by injunction, when necessary to pre- vent injury. 1 The land and minerals, where they belong to different owners, form separate estates, and must be assessed separately for taxation. Each owner is responsible only for his own tax. 2 But no separate assessment can be made where both the surface and the underlying minerals belong to the same owner. In that case the land must be assessed for taxation as a unit. 3 said coal and minerals : Held, that the above provisions in the deed did not amount to a waiver of the grantee's right to surface support. Fairview Coal Company v. Hay, 21 W. N . C. 469. 1 Lawrence, Merklee & Co.'s Appeal, 28 P. F. Sm. 365. See full dis- cussion of servitudes growing out of mines at different levels, in R. R. Co. i). Taylor, Leg. Gazette, 1873, p. 392. Opinion of Judge Walker, of Schuylkill county. 2 Sanderson v. Scranton, 14 W. N. C. 409 ; 9 Out. 469 ; Neill v. Lacy, 14 Out. 294. 3 City of Scranton v. Gilbert, 16 W. N. C. 28. So in partition the court has no power, in the absence of a severance by a testator, to order the coal and surface to be divided and each appraised separately. Christy's App., 14 Out. 538. 34 THE LAW OF REAL ESTATE AND* CHAPTER III. HEREDITAMENTS+-CORPOREAL AND INCORPOREAL- HOW DISTINGUISHED— EFFECT OF GRANT OF PROFITS —SERVITUDES— COMMONS— 1. OF PASTURE— BECAUSE OF VICINAGE— IN GROSS— 2. OF ESTOVERS— S. OF TURBARY —MINING RIGHTS— WHEN CORPOREAL AND WHEN IN- CORPOREAL—MINERAL OIL— 4. OF PISCARY— PUBLIC AND PRIVATE STREAMS— BEDS OF NAVIGABLE RIVERS. Blackstone defines things real thus : " Things real are usually said to consist in lands, tenements or hereditaments." ' Land, we have already considered. Tenements : the original meaning of this word was " things held," i. e. by feudal tenure. Hereditaments is a word of the largest signification. It includes lands and tenements, and means " things which may be inherited." Hereditaments are Corporeal and Incorporeal. 2 1 2 Bl. Com. 14. 2 " The division of hereditaments into corporeal and incorporeal, though deeply rooted in our legal phraseology, is most unfortunate and misleading. The confusion is inherited from the Roman lawyers (see Justinian, Inst., ii, tit. 2), but has been made worse confounded by our own authorities. The Romans, misled by the double sense of res, un- happily distinguished res corporate and res incorporates, the former being things' quaetangi possunt, veluti aurum, vestis,'the lattermere rights, 'quae in jure consistunt.' It is obvious that this is mere con- fusion, the two ideas not being in pari materia, or capable of being brought under one class, or of forming opposite members of a division. Following the Romans, our lawyers distinguished between heredita- ments as meaning the actual corporeal land itself, and another kind of hereditaments as not being the land itself but * the rights annexed to or issuing out of the land.' A moment's reflection is sufficient to show that the distinction is untenable. The lawyer has nothing whatever to do with the material corporeal land, except so far as it is the subject of rights. It is the distinction between different classes of rights, and not between land on the one side and rights on the other, that he is concerned with. In such phrases as ' the land descends to the heir,' what is meant is, not that something happens to the land itself, but CONVEYANCING IN PENNSYLVANIA. 35 '' Things real are land, structures thereon, fixtures thereto and rights issuing out of, annexed to, or exercisable within land.'" Corporeal hereditaments are " land, structures thereon and fixtures thereto." Incorporeal hereditaments are " rights issuing out of, an- nexed to or exercisable within land." The ancient test was seisin. 2 Corporeals lie in livery ; in- corporeals lie in grant. Coke, in noticing the distinction between " feoffments " and " grants," says : " And here is implyed a division of fee or inheritance, viz : into corpo- reall, as lands and tenements, which lie in livery, compre- hended in this word feoffment, and may passe by livery by that a particular class of the ancestor's rights in relation to the land descends to the heir. The names ' corporeal ' and ' incorporeal ' are most unfortunate, because if by ' corporeal ' is meant ' relating to land,' then a large class of incorporeal hereditaments are also entitled to the name ; if by ' incorporeal ' is meant that they are mere rights, then all hereditaments are incorporeal, because the lawyer is only concerned with different classes of rights. In reality, however, it appears that the names point to different classes of rights, * * * * and in fact, Stephen, in his edition of Blackstone, 8th ed., vol. i, p. 648, almost confines incorporeal hereditaments to jura in alieno solo. See Austin, ii, pp. 707, 708." Digby, Hist. Law of Real Property, p. 262, n. 1 Judge Sharswood's definition of things real, note to 2 Bl. Com. 14. 1 "The proper meaning of the word 'seisin' is possession as of freehold ; i. e., the possession which a freeholder has.' 1 Digby, Hist, of Real Property, p. 48, n. 4. " For passing a freehold interest in lands a ceremony was necessary by which the possession of the land itself should be given to the donee. This was livery or delivery of the seisin or possession of the land, and was effected either by the donor himself or his deputy. * * * * Speaking generally, it must be the delivery of something, such as a clod of earth or a twig on the land in the name of the whole, or it was sufficient if the two parties were actually pre- sent on the land and the one by word or act gave possession to the other. It was even effectual for the donor to bring the donee within sight of the land and to give him authority to enter, provided this were followed by the entry of the donee during the lifetime of the donor." Id., 124. 125. 36 THE LAW OF REAL ESTATE AND deede or without deede, which of some is called hereditas cor- porate/, ; and incorporeall ( which lie in grant and cannot passe by livery but by deede, as advowsons, commons, etc., and of some is called hereditas incorporata, and by the delivery of the deede, the freehold and inheritance of such inheritance as doth lie in grant doth passe), comprehended in this word grant." ' It is a physical impossibility to deliver seisin of a mere right. Blackstone gives ten kinds of incorporeal hereditaments : Advowsons, tithes, commons, ways, offices, dignities, fran- chises, pensions, annuities and rent. Of these, advowsons and tithes belong to the Established Church of England. Dignities are titles of nobility; these cannot exist in this country. Offices, franchises, annuities and pensions are not usually heritable in America. This leaves for our considera- tion only three, commons, ways and rent. There are many rights in land which are like ways, and therefore are usually classed with them under the name of easements. Let us, therefore, consider these three classes of incorporeals, com- mons, easements and rents. The unencumbered ownership of land amounts to an aggre- gation of every conceivable incorporeal that can be charged upon it. Suppose the owner of land should grant away every possible easement and common, what would he have left? Nothing. Consequently, such a grant is held to be equiva- lent to an absolute conveyance of the land itself. As Judge Strong says, in Caldwell v. Fulton : 2 " There are two modes in which the subject matter of a deed may be described, both equally potential. One by a description of the thing itself, as of land by metes and bounds or by a known name, and the other is by a designation of its usufruct, or of the dominion over it. Thus a grant of the rents, issues and profits of land is uni- • Co. Litt. 9a, 49a. 1 7 Oas. 484. CONVEYANCING IN PENNSYLVANIA. 37 formly held to be a grant of the land itself. 1 Judgments abound to this effect with regard to devises, and though in wills and deeds the rules of construction differ relative to words limiting the estate granted, yet they are the same of words describing the subject matter of the grant. There are also cases of the same character to be found in re- gard to deeds ; thus, it has been held that by the grant of a boilery of salt, the land passes, for that is the whole profit; 2 or of a mine of lead ; 3 so, by the grant of all growing trees.' The reason is that the grant of a thing can be no more than the grant of the full and unlimited use of it. So, too, the general power of disposal without liability to account is equivalent to ownership itself, it being the highest attribute of ownership ; aud a gift of one necessarily carries with it the other. This is the doctrine of Morris v. Phaler." 5 Commons lie in prendre ; rents lie in rendre ; easements in neither. Commons consume the soil or its products. Ease- ments do not ; they use without consuming. Incorporeals are appendant, appurtenant or in gross. Ap- pendant means, belonging to the manor or seignory. Ap- purtenant, annexed to and passing with the ownership of land. In gross, belonging to an individual person, without reference to the ownership of land. 6 Incorporeals are called in the civil law, servitudes. Where the servitude accompanies the ownership of other land, the land to which the right is attached is called the dominant tene- 1 Co. Litt. 4b. An unqualified gift of the income of land is to be taken as a gift of the land itself ; but where the gift of the income is qualified by a direction to or a power in some one else to sell the land, the gift must be confined to the income alone. Kline's Appeal, 2 Crum. 139. J Co. Litt. 4b. 3 Id. 6a. 4 Cro. Eliz. 522. See also 4 Mass. 266; Fish v. Sawyer, 11 Conn. 545. 5 1 Watts, 389. See, also, Anderson v. Greble, 1 Ash. 138; McCul- lough's Appeal, 2 Jones, 197. 6 Co. Litt. 121b. 38 THE LAW OF KEAL ESTATE AND ment. That upon which the burthen is imposed is the servient tenement. It is easy to see how one tenement may be at the same time, both dominant and servient to another, but not with regard to the same right. A servitude is defined to be " a charge imposed upon one heritage, for the use and advant- tage of an heritage belonging to another proprietor." ' Common. " A profit which a man hath in the land of another." 2 Kent says, " a right which one man has in the lands of another." 3 The object being to pasture his cattle, or provide necessary fuel or food for his family, or wood for repairing his house, fences, and implements of husbandry. In former times in England, under the system of land tenures which were then universal, these rights of common were of great importance to the agricultural population, and the Courts were frequently occupied in declaring the law with respect to common, between the owners and occupiers of adjoining land. But as the system of land tenures gradu- ally changed these rights fell into disuse, and, as Kent says, " the whole of this law of commonage is descending fast into oblivion, together with the memory of all the talent and learning which were bestowed upon it by the ancient law- yers." * In this country the rights of common were never generally used, C. J. Tilghman said, " I know of very few instances of rights of common." 5 There were various kinds of common all being the same right applied to different subjects, thus common of pas- ture, of estovers, of turbary, of piscary, etc. 6 A few words as to each of these. 1. Common of Pasture, the right to take the herbage of another's land, by the mouths of cattle. 1 Kieffer v. Imhoff, 2 Cas 442. 2 2 Bl. Com. 32. ! 3 Kent Cora. 403. * 3 Kent Com. 405. 6 Trustees v. Robinson, 12 S. & R. 33. As to rights of common, see Digby, Hist, of Real Prop. p. 155, seq CONVEYANCING IN PENNSYLVANIA. 39 Appendant. This was an incident of feudal tenure, and passed on the grant of arable lands in a manor. It was the right of the tenant to pasture commonable beasts upon the lord's waste land. Commonable beasts were such as were necessary to plough and manure the land, and no more. Appurtenant. This arose from express grant, or by pre- scription, i. e., by the unopposed enjoyment from such a length of time, that it would be presumed that a grant had been made, the evidence of which was lost. Where a commoner purchases part of the common land, his right is thereby extinguished. 1 Common of pasture may be apportioned. Where the owner of ground which has a right of common, sells a part of his ground, each of the parts into which it has been divided has a right of common, but only to a proportional extent, both together having only so much as the land originally had. The amount of the right cannot be thereby increased. The land charged with the common is not to have an increase of burden, by the multi- plicity of claimants. 2 But on a sale of a part of the waste land subject to common appurtenant, there is no apportion- ment. 3 The phrase " beasts levant and couchant" frequently occurs in this connection. By it is understood, as many cattle as the produce of the commoner's land in the summer and autumn, can maintain in the winter.* The only cases of common which are mentioned in our Supreme Court reports, so far as I know, arose out of a grant by the Legislature for the laying out of a town now called Allegheny City. By the Act of September 11, 1787, 5 the Legislature authorized the laying out of a town in lots, etc., 1 Livingston v. Ten Broeck, 16 Johnson, 14. » Carr v. Wallace, 7 Watts, 394. 3 Co. Litf. 122a. . 4 Chitty's note to 2 Bl. Com. 34; Digby Hist. Law of Real Prop. 56. 6 2 Sm. Laws, 414. 40 THE LAW OF KEAL ESTATE AND opposite Pittsburgh, on the Allegheny and Ohio rivers. By the fourth section of this Act it was provided that 100 acres without the said town should be laid out for a common pas- ture, in which the owners of lots should have rights of com- mon. Under this Act the town was laid out, and lots grant- ed, to which the rights of common were appurtenant. They have been before the Supreme Court four times. In the Trustees of the Western University v. Robinson, 1 a grant of 40 acres, part of the 100, was made to the Uni- versity, and the Supreme Court said they took subject to the right of common. In Carr v. Wallace, 2 certain commoners complained that the General Assembly of the Presbyterian Church had erected a seminary consisting of expensive build- ings upon the common land, whereby they were deprived of their rights. But the Supreme Court said they came too late. They had kept silent while the buildings were being erected, when they ought to have objected, and they were now estopped by their silence. In Bell v. The Ohio and Pennsyl- vania Railroad Company, 3 the Railroad Company had occu- pied a part of the common land for their track and improve- ments, and a commoner objected, and filed a bill to prevent the intrusion. But it happened that the commoner had occu- pied a part of the common land by his own enclosure, and the Supreme Court held that he had thereby extinguished his own right. The right of pasture in this common could not have been of very great value at that time, as Chief Justice Lewis says, in his opinion, u the herbage is about as abund- ant as that which might be found in a recently disinterred street of Herculaneum." The Mayor, etc., of Allegheny, then filed a bill against the Railroad Co., asking for the same injunction, which was thereupon granted.* The common is ' 12 S. & R. 29. J 7 Watts, 394. 3 1 Cas. 161. 4 The Mayor, &c, D.O.& Pa. R. R., 2 Cas. 355, CONVEYANCING IN PENNSYLVANIA. 41 now, I believe, converted into a public park in Allegheny City. Common because of vicinage, was a sort of licensed tres- pass, where two commons adjoined each other, and the cat- tle of one entered on the land of the other. It was a mutual right, but like all licenses, it was revocable at pleasure. Either might enclose and bar out the other. Common in gross was not connected with the ownership of land, but was a personal right, attached to the person of the owner. 2. Common of Estovers. The right to take wood for cer- tain purposes from the land of another, as house-bote fire- bote, plougb-bote, etc., etc. This is not the same thing as the right of a tenant for years to take wood from the demised land, for his right is exclusive. Common of Estovers cannot be apportioned ; it is extinguished when divided. 1 3. Common of Turbary. The right to dig turf or fuel on the land of another. The fuel must be burned in the com- moner's house. In Valentine v. Penny, z it was held that a claim of common of turbary to dig and sell ad libitum, is repugnant in itself. " For a common appertaining to a house, ought to be spent in the house, and not sold abroad. And judgment accordingly." It is said that our mining rights in Pennsylvania resemble this common of turbary. They do, in so far as they are rights vested in one man to dig and take away part of the substance of the soil in the land of another. But the old incorporeal of the right to turf had many incidents which do not apply to modern mining rights, and to better distin- guish them, we may call them rights in the nature of com- mon. These rights are of vast importance. The wealth and 1 Van Rensallaer ... Kadcliff, 10 Wendell, 639. 7 Noy's Rep. 145, temp. Jac. I. 42 THE LAW OF REAL ESTATE AND prosperity of Pennsylvania depend directly or indirectly upon her great mineral resources. In a former lecture I said that land was divisible horizon- tally, so that the strata of the earth lying one above the other might have different owners. In such a case the owner of the minerals beneath the surface is as much an owner of land, in the eye of the law, as the owner of the surface is. Thus in a case where the owner of land conveyed it, reserv- ing and excepting the coal and other minerals, it was held that the thing reserved or excepted was land. 1 And in another case, the lands of a decedent were divided horizontally, by proceedings in partition between his heirs, the surface being allotted to one party and the minerals to another. They both had land. 2 This ownership of a portion of the soil, which is a cor- poreal hereditament, is to be carefully distinguished from a mere right to take coal or ore from the land of another per- son, which is an incorporeal hereditament. In the latter case the right cannot be exclusive of the owner of the land. In Chetham v. Williamson, 3 Lord Ellenborough said that no case could be named, where one who had only a liberty of digging for coals in another's soil, had an exclusive right to the coals, so as to enable him to maintain trover against the owner, for coals raised by him. Again, an incorporeal her- editament of this kind is not divisible. It may be assigned to several persons, but they must work together and hold it together as an entirety, otherwise the estate subject to the charge might be overloaded. These incorporeal mining rights are similar to a common in gross, without stint. 4 What, then, is the test to distinguish an ownership of a 1 Whitaker v. Brown, 10 Wr. 197. See also Thompson v. Mattern, 5 Amer. 501 . 2 Jones v. Wagner, 16 P. F. Sin. 430. •' 4 East, 476. ' Gloninger v. Franklin Coal Co., 5 P. F. Sm. 9. CONVEYANCING IN PENNSYLVANIA. 43 stratum of the earth, from a mere right to mine in another's land? The result of the cases seems to be, that where it is the intention of the parties on making the sever mce that the grantee of the right to the minerals should have the sole right to mine, exclusive of the grantor and of all others, then the grantee takes an estate in the land, a corporeal here- ditament. But where it appears to be the intention and un- derstanding of the parties that the grantor shall have remain- ing in him, after the grant, an unstinted right to mine, then the interest of the grantee is an incorporeal hereditament, or a right exercisable upon or within the land of another. For instance, where a sale and conveyance of all the minerals in land is made for a round sum the vendee takes an estate in the land. He is the owner of the minerals beneath the sur- face. 1 If the owner, in granting the minerals, reserve only a limited personal right to himself to take, as for his own use, that will not prevent the grantee from taking an estate in the land. In Pennsylvania Salt Manufacturing Company v. Neel, 2 the grant was of the right and privilege of digging and taking out coal anywhere within the course or bounds of the grantor's line, to the extent of the same ; reserving to the grantor, the privilege of taking out coal for his own fuel. Afterwards the grantor conveyed the land, without any reser- vation, to a third person. It was held that the first deed conveyed an ownership in a part of the land. " The subjects of these grants," the court said, " until severed, formed a unit ; after, they were distinct parts or separate properties, as much so as the divided portions of what was once a single tract of land." In the Johnstown Iron Co. v. The Cambria Iron Co., 8 a dis- tinction was made between cases where all the minerals are 1 Caldwell v. Fulton, 7 Cas. 475 ; Brown v. Corey, 7 Wr. 503. ! 4P.F. Sm. 9. ' 8 Cas. 241. 44 THE LAW OF REAL ESTATE AND conveyed for a round sum, and those where the payment is to be made from time to time of a sum proportioned to the amount taken. The grant was of the right to mine and take away iron ore, at a rate of twenty-five cents a ton, coupled with a promise by the grantor to give the privilege to none else. It was strongly urged upon the court that this promise to give the privilege to none else made the grant an exclusive one, and, therefore, the grantees had an estate in the land, but it was ruled that they took only an incorporeal hereditament. Judge Woodward, delivering the opinion of the court, said : " It was not a sale of all the iron ore in the land for a round sum, as was the case of Caldwell v. Fulton, 1 but of a privilege of raising iron ore at twenty-five cents the ton. It was a right exercisable within the lands of another, and, therefore, fall- ing strictly within the definition of an incorporeal heredita- ment. It was not the sale of all the ore, notwithstanding the stipulation that the privilege was to be given to none else, because it was to be paid for by the ton, and, of course, no more was sold than should be raised." No doubt the decision in this case was the result of the prior case of Grub v. Guilford. 2 where the court held that a grant of the right to take all the iron ore of a tract of land, paying sixpence a ton, was an incorporeal hereditament. But it seems to me to be impossible to make any distinction in principle between these cases and Caldwell v. Fulton. The only difference is that in the former the consideration of the grant was a rent, or promise to pay so much for each ton of ore as mined, and in Caldwell v. Fulton the consideration was a sum of money paid down. But a rent reserved is as good a consideration for a grant as a sum of money in hand, and this holds true in the case of a grant of minerals, as was decided in the subsequent case of Grove v. Hodges, 8 where 1 7 Cas. 475. J 4 Watts, 223. 3 5 P. F.Sm. 504. CONVEYANCING IN PENNSYLVANIA 45 the plaintiff claimed under a grant of all the iron ore in a tract of land, the actual consideration being a rent of twenty - five cents a ton for the ore removed. Judge Strong said that this conveyed a corporeal hereditament, and that it was not to be doubted with Caldwell v. Fulton before them. 1 The form of the grant is not important. If the legal effect is to give to the grantee or lessee an exclusive right to take the minerals until they are exhausted, it passes the title to an estate in the land. 2 A different view is held with regard to mineral oil. A grant of all the oil in land is an incorporeal, although exclu- sive, because oil is fluid like water. 3 A grant of land, " ex- ceping all minerals,'" did not prevent the grantees from taking the petroleum. In the popular sense, petroleum is said not to be a mineral.* 4. Common of piscary. " A liberty of fishing in another man's water." This must be distinguished from a " common fishery," commune piscarium, which means for all the public, as in public rivers, or in the sea. In a public river the citi- zens have equal rights. The owner of the shore has no more right than any one else, except that he may stand upon his land, which others cannot do without his permission. The right of fishing in a public river is common to all citizens. 6 What is a public river in Pennsylvania ? I touched on 1 In addition to the cases already cited on this subject, see Funk v. Haldeman, 3 P. F. Sm. 242; Carnahan v. Brown, 10 P. F. Sm. 23; Clement v. Youngman, 4 Wr. 341 ; Union Petroleum Co. v. Bliven Petroleum Co., 22 P. F. Sm. 173; Grubb v. Grubb, 24 P. F. Sm. 25; and Gloninger v. Franklin Coal Co., 5 P. F. Sm. 9. In this last case is an opinion of the late Judge Conyngham, of Luzerne county, giving an interesting account of the early history of coal mining in the Wyoming Valley. Also, R. R. Co. v. Sanderson, 13 Out. 5S3. " Sanderson v. City of Scranton, 9 Out. 469. 3 Dark v. Johnston, 5 P. F. Sm. 164; Brown v. Beecher, 20 W. N. C. 534. * Dunham v. Kirkpatrick, 5 Out. 36. 'Carson v. Blazer, 2 Binn., 475; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71 ; Hart v. Hill, 1 Whart. 124. 46 THE LAW OF REAL ESTATE AND this subject in a former lecture. By the law of nations, tidal waters are public highways for all men, and the English rule is that a stream is public so far as the fresh water is propelled backward by the tide, so as to occasion a regular rise and fall. 1 This rule is inapplicable here, and has never been adopted. 2 The public rivers are the Delaware, Schuyl- kill, Susquehanna and its branches, Lehigh, Juniata, Monon- gahela, Youghiogheny, Allegheny and Ohio. 3 The title to the soil of the beds of these rivers is in the State, except that of the Delaware. The Delaware was not included in the grant to William Penn, nor to the proprietor of New Jersey. " Their respective grants were to low- water mark on either side. The bed of the river and the river itself were in the Crown, and passed by force of the Eevolution, and the defi- nitive treaty of peace September 3, 1783, recognizing their sovereignty and independence, to the two States, to be owned and enjoyed on the same principle on which a navigable river flowing between two coterminous nations is held." 4 In April, 1783, New Jersey and Pennsylvania made a compact by which the Delaware river was made a common highway. 6 The Pennsylvania doctrine prevails in North and South Carolina, Alabama, Indiana, Illinois, Tennessee and other States. The English doctrine is held in Massachusetts, New. York, Kentucky and other States. In a private stream the right of the owner is exclusive, for he owns the soil over which the water flows. If he owns both banks then the whole bed of the stream is his. If the stream is his boundary, then ad medium Mum aquae. He may grant away the right to fish there, exclusively or in com- ' Peyroux v. Howard, 7 Peters, 324. 2 Stover v. Jack, 10 P. F. Sm. 339. 3 Wainwright «. McCullough, 13 P. F. Sm. 66. 4 Tinicum Fishing Co. v. Carter, 11 P. F. Sm. 36; s. c, 27 P. F. Sm. 310; Bennett v. Boggs, 1 Baldw. 72. 6 For a copy of this compact or treaty, see 2 Smith's Laws, 77. CONVEYANCING IN PENNSYLVANIA. 47 mon with himself, and his grantee would have, not a com- mon of piscary, but an incorporeal right in the nature of such a common. By the act of 11th April, 1848,' it is enacted that warrants may be granted (for not more than one hundred acres each) for the beds of navigable rivers. The warantee gets no title to the soil, but only the right to mine as stated in the act. 2 Consequently where an island in a river is included within the bounds of the survey, the warrantee takes.no title to the island, and has no right to the minerals under the surface of the island. 3 These are the principal rights of common. If a commoner takes more than he is entitled to, he is a trespasser for the surplus, as if he had no interest. The owner has his action of trespass * The owner of land subject to a right of com- mon is bound to keep it in a condition to serve the com- mon. If he does not, it amounts to a " disturbance," and the remedy of the commoner is an action on the case 5 1 Purd. Dig., p. 1048, title "Land Office," sec. 120. 2 Brandt v. McKeever, 6 Har. 70. 3 Penna. Coal Co. v. Winchester, 13 Out. 572. 4 3 Kent Com. 418. 5 3 Id. 418. 48 THE LAW OF REAL ESTATE AND CHAPTER IV. INCOBPOBEALS CON TIN UED— EASEMENTS— DEFINITIONS —CLASSES— 1. WAYS— PUBLIC OB HIGHWAYS— TITLE OF ADJOINING O WNEB— BIGHTS OF PUBLIC— LI ABILITY OF M UNICIPA LITIES FOB INJUBIES ON STBEETS—OBSTR UC- TIONS IN STREETS— SIDEWALKS— PRIVA TE WA YS— WA YS OF NECESSITY— 2. WATER-COURSES AND OTHER WATEB RIGHTS— S. LATERAL SUPPOBT—4. DBAIN AND DRIPS. BUBIAL LOTS AND PEWS— 6. LIGHT AND AIR— LICENSES —WHEN IRREVOCABLE. There are various definitions of an easement, though Blackstone gives none. Terms de la Ley. " A privilege that one neighbour hath of another by charter or prescription without profit, as a way or a sink through his land, or such like." ' Burton on Real Property. " Rights of accommodation in another's land, as distinguished from those which are directly profitable, are properly called easements." 2 Gale & Whately on Easements. " A privilege without profit, which the owner of one neighboring tenement hath of another, existing in respect to their several tenements, by which the servient owner is obliged to suffer, or not to do, something on his own land for the benefit of the dominant owner." 3 Judge Prentis, of Vermont. '' A liberty, privilege or ad- vantage in land, without profit, existing distinct from an ownership of the soil." 4 Chancellor Kent. " Under the head of easements may be included all those privileges which the public, or the owner* 1 p. 37. 2 Sec. 1165. 3 p. 3. * Pomeroy v. Mills, 3 Vermont, 279. CONVEYANCING IN PENNSYLVANIA. 49 of neighboring lands or tenements hath in the lands of an- other, and by which the servient owner, upon whom the bur- den of the privilege is imposed, is obliged to suffer, or not to do something on his own land, for the advantage of the public or of the dominant owner to whom the privilege belongs." ' You notice that nearly all these definitions speak of ease- ments as being rights without profit. This is the feature which distinguishes an easement from a right of common. A common is " a profit which a man hath in the land of another." 2 Easements use the land, without consuming it. Easements are nearly always appurtenant, or annexed to the ownership of some land, a dominant tenement. 3 A right amounting to an easement, which is in gross, is a mere per- sonal right ; it is not transmissible ; it cannot be assigned, nor inherited, but dies with the person. 4 Easements are as various as the possible modes of enjoy- ing land. 'They are divided into classes, thus defined : Urban, relating to land occupied by buildings. Rural to ground not built upon. Continuous, where the interference of man is not neces- sary to their enjoyment, as a water-pipe, a drain, a right to overflow, etc.; or Non-continuous or Dis-continuous, where the easement can only be enjoyed by the interference of man, as a way. Affirmative or Positive, where the owner of the ease- ment has the right to do something upon the land which would otherwise be a trespass, as a way, or a right to dis- charge water, etc. Negative, where the owner of the servi- ent tenement is bound to suffer or not to do something on his own land for the benefit of another, as a right to receive light and air, a right to support, etc. 1 3 Kent Com. 419. 2 2 Bl. Com. 32. 3 See Digby, Hist. Law of Real Prop. p. 148. 4 Tinicum Fishing Co. v. Carter, 11 P. F. Sua. 21, 38. 4 50 THE LAW OF REAL ESTATE AND Apparent, where the existence of the easement is shown by external signs, as a water-course, a door, a window, etc. Non- Apparent, those which have no external sign of existence. Where land is subject to an easement, the general rights of property in the owner remain the same, subject only to the existing easement. On the extinguishment of the ease- ment, the entire and exclusive right of enjoyment revests in the proprietor of the soil. The easements which are of most frequent occurrence as subjects of litigation, are 1. Ways. 2. Water-courses and other water rights. 3. Lateral Support. 4 Drain and Drip. 5. Burial Lots and Pews. 6. Light and Air. These will now be briefly noticed in order. 1. Ways. "The right of going over another man's ground." ' A man's land is his close. Blackstone says, " For every man's land is, in the eye of the law, enclosed and set apart from his neighbour's; and that, either by a visible and material fence, as one field is divided from another by a hedge ; or by an ideal, invisible boundary existing only in the contemplation of the law, as where one man's land adjoins to another's in the same field." 2 Every unwarrant- able entry on the land of another is a breaking of his close, and subjects the doer to an action of trespass quare clausum fregit. Ways are of various kinds for various uses. A way grant- ed for men, will not authorize the passage of cattle or horses. There are footways and carriage-ways. When a question arises as to the extent of the. right to use a way, it is a ques- tion of fact for a jury. Ways are of two kinds, generally speaking, public and private. a. Public Ways or Highways. " A thoroughfare com- 1 2 Bl. Com. 35. 2 3 Bl. Com. 209. CONVEYANCING IN PENNSYLVANIA. 51 mon to all the king's subjects." ' " Public roads which every citizen has a right to use." 2 The ocean is the great highway of nations, which all men have the right to use, according to the law of nations. Streets, roads, etc., are public highways, so declared by statute. Navigable streams, public rivers, are also highways, and many private streams which have been declared highways by statute. Prior to 1812, seventy-five streams in Pennsylvania had been declared highways by various Acts of Assembly, including Cohocksink and Frank- ford Creeks in Philadelphia. At this time nearly every creek of size enough to float logs has been declared a high- way. In all highways (except public rivers) the title of the owner of land goes to the middle of the highway, and if the land be conveyed the title passes to the soil of the highway, even though the description be according to the side of the street or road. This presumption of law is so strong that it requires an express reservation in the deed to overcome it. 3 It follows from this that so long as nothing be done to in- terfere with the right of the public in a highway, the owner of the soil may use it in any way he chooses, subject of course to the laws of any municipality in which the land may be. A riparian proprietor may erect a wharf upon his land, subject to legislative control. 4 The building of wharves in Philadelphia is controlled, under our statutes, by the Port Wardens. 5 The rights of the public in a highway are merely those of 1 2 Bl. Com. 2 Angell on Highways. 3 Paul v. Carver, 2 Cas., 223. A. conveyed to B. the " whole " of a lot described as fronting on a then existing street, although the same had been declared vacated by an Act of Assembly. Held, that, as the road had never been closed up, B. took title to the middle of the road. Ott v. Kreiter, 14 Out. 370. 4 Weber v. Harbor Comm'rs, 18 Wallace, 57. " Neill v. Easby, 1 W. N. C. 58 ; Bailey's Appeal, 9 Philad'a, 506. 52 THE LAW OP REAL ESTATE AND transit, with such stoppages as business necessity, accident, or the ordinary exigencies of travel may require. Loungers, who occupy the public highway, are public nuisances, and ob- structions of the public right of way. 1 These rights are also the subject of municipal legislation. 2 The grantee of a way must keep it in repair, and in case of a highway, this duty is imposed upon the public. In cities, the municipal authorities are bound to keep the streets in repair, and are responsible in damages to any one injured by neglect of this duty. 3 Consequently, it is negligence in the corporation to allow an obstruction to remain in the street, beyond a reasonable time for its removal. 4 1 Norristown v. Moyer, 17 P. F. Sm., 355 ; Linton v. City of Ches- ter, 1 W. N. C. 192. 2 See ordinance regulating wagons, &c. 3 Erie City v. Schwingle, 10 Har. 384 ; Hammett v. The City of Philad'a, 15 P. F. Sm. 146; Norristown v. Moyer, 17 P. F. Sm. 355; . Hey v. The City, 31 P. F. Sm. 44 ; Township v. Watson, 17 W. N. C. ' 465 ; Township of Lower Windsor v. Gemmill, 16 W. JST. C. 265. " In the closely built up portions of a town or city the duty of the au- thorities to keep the entire street and sidewalks in a safe condition may be conceded. All portions of it are being constantly used by day and night. But this has never been held to be the rule as regards country roads. They are seldom if ever kept in repair from side to side. A sufficient portion of the middle only is kept in smooth con- dition and safe and convenient for travel. The rest is often left dan- gerous by reason of ditches and obstructions of various kinds." Pax- son, J., Monongahela City v. Fischer, 1 Amer. 9. The liability of a township to repair bridges extends no further than their proper main- tenance so that they may be adequate for a reasonable, proper and probable use thereof. If injury is caused by using the bridge in an unusual and extraordinary manner they are not liable. McCormick i». Township of Washington, 2 Amer. 185; County of Lehigh u. Hoffort, 19 W. N. C. 363. 4 Fritch v. Allegheny, 8 W. N. C, 318. A municipality is not an insurer against all defects, latent as well as patent, in its structures on highways, but is liable for negligence. Where the defect in a law- ful structure is latent, or is the work of a wrongdoer, either express notice of it must be brought home to the corporation, or the defect must be so notorious as to be evident to all passers, when the cor- poration is charged with constructive notice. Rapho v. Moore, 18 P. F. Sm. 404; See Otto Township v. Wolf, 15 W. N. C. 83. CONVEYANCING IN PENNSYLVANIA. 53 In City of Scranton v. Oatterson, 1 a water company placed a plug in the streets of Scranton before the city was incorporat- ed. The plug projected above the street, and the plaintiff was injured in consequence. It was held that the city was respon- sible for allowing the plug to remain after the incorporation, because it was their duty to remove the obstruction from the highway. 2 But this rule does not apply to the case of an obstruction in a navigable stream. The city, of Philadelphia is not bound to remove a rock which forms part of the natural bed of the river Delaware. 3 A municipality is liable for injuries resulting to a foot passenger upon its streets from accumulations of snow and ice at a crossing ; but it is not liable where the injuries are the result of nothing more than the ordinary slipperiness caused by recent snow and ice. 4 Nor is it liable where the passenger was aware of the dangerous condition of the way. It is contributory negligence in him to take the risk. 5 The liability of a municipality is confined to injuries hap- pening to travelers upon the highway, who are ignorant of the danger arising from its condition. One intending to be a traveler, and prevented by a knowledge of the dangerous condition of the highway, cannot recover damages for delay or trouble in taking a longer route. The damage in such case is common to all citizens alike, and a private action cannot be maintained, unless the damage is special in kind 1 9 W. N. C. 59. 2 See North Manheim Township v. Arnold, 4 Crum. 380. 3 Snyder v. The City, 28 P. F. Sm. 23. 4 Borough of Mauch Chunk v. Kline, 11 W. N. C. 342 ; McLaughlin v. City of Corry. 27 P. P. Sm. 113. 5 Erie v. Magill, 5 Out. 616 ; Dehnhardt v. Philad'a, 15 W. N. C. 214 ; and see Nanticoke v. Warne, 16 W. N. C. 44. A pedestrian in a city, on a dark night, well acquainted with the unsafe condition of a sidewalk, is not guilty of contributory negligence in taking it as the most direct way to his home, instead of some other way also unsafe, if in so doing he acted with that care with which a prudent man should act under the circumstances, and this is a question of fact to be determined by the jury. Altoona v. Lotz, 4 Amer. 238. 54 THE LAW OF EEAL ESTATE AND as well as in degree. Nor does the fact that the plaintiff owns land fronting on the highway make any difference. 1 The owner of a house and lot fronting on a street is bound to keep the foot pavement in repair. This is by a municipal ordinance; but where the house is in the possession of a ten- ant, the owner is not liable for damage happening to a passer by, caused by a defect in the side walk. 2 Where there is a dangerous obstruction upon a street, of which a party is informed, it is his duty to adopt a safe route, even if it is a short distance further and not so pleasant as the obstructed route, and not to attempt to cross the obstruction. If he does attempt to cross the obstruction, and is injured in consequence, he will be held guilty of such contributory negligence as will defeat his recovery against the city. 3 It is not every obstruction in a highway, irrespective of its character or purpose, that is illegal, even though not sanc- tioned by express legislative or municipal authority. The right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limita- tions. The carriage and delivery of fuel, grain, goods, etc., are legitimate uses of a street, and may result in the tem- porary obstruction to the right of public transit. So the im- provement of the street or public highway itself, may occa- 1 Gold v. The City, 15 W. N. C. 63. In this case the plaintiff was the proprietor of an inn at Chestnut Hill, fronting on German town avenue, at which a large and prosperous business had been carried on for a long time. The city neglected to repair the street, and its condition be- came so bad that travel upon it was rendered extremely inconvenient, if not dangerous. In consequence whereof the plaintiff's business fell off to a considerable extent and the profits of her inn were corres- pondingly diminished. But it was held that she could not recover damages from the city. Affirmed in Supreme Court, 19 W. N. C. 135. Consequential damages cannot be recovered against a municipality for the lawful vacation of a public street. McGee's Appeal, 4 Amer. 470. 2 Early r. Ash worth, 15 W. N. C. 142. 3 Fleming v. Lock Haven, 15 W. N. C. 216. CONVEYANCING IN PENNSYLVANIA. 55 sion impediments to its uninterrupted use by the public. And so the improvement of adjoining lots by digging cellars, by building, etc., may occasion a reasonable necessity for using the street or sidewalk by the deposit of material. Tem- porary obstructions of this kind are not invasions of the public easement, but simply limitations of it. They can be justified when and so long as they are reasonably necessary. 1 Railroads, canals, bridges, turnpikes, plank roads, etc., are highways. 2 The right to construct these improvements is granted by statute, under the right of eminent domain, and everyone has the right to pass over them on payment of the toll established by law, and any obstruction of them is a nuisance, for which an indictment will lie. 3 Where the right of a corporation to control and take toll upon the highway ceases, the highway remains open to all citizens. The forfeiture of the charter of a turnpike com- pany does not destroy the character of the road as a highway. The public have still a right to travel over it. 4 b. Private ways. " A right of private passage over another man's ground." These are nearly always appurtenant to a dominant tenement. A way in gross is a mere personal right. It cannot be assigned to any other person, nor transmitted by descent. It dies with the owner. And it is so exclusively personal that the owner of the right cannot take another per- son with him. 5 A way is never presumed to be in gross; where it can be reasonably considered to be appurtenant. 6 1 Piollet v. Simmers, 15 W. N. C. 241. Where the municipal authori- ties in the repair of their streets place an obstruction on them, it is their duty to give some appropriate warning of the same. Carlisle v. Brisbane, 3 Amer. 544. 2 A turnpike company is bound to keep its road in a safe condition. Rhoads v. Lancaster Ave. Imp. Co., 19 W. N. 0. 453. 3 N. Central R. R. r. Commonwealth, 9 AV. N. C. 129. 4 R. R. Co. c. The Commonwealth, Leg. Int. 1884, p. 312. See, also, notes to Dovaston v. Payne, 2 Sm. Ldg. Cas. (8th Am. ed.) 140. 5 3 Kent Com. 420. 6 Be Private Road, 1 Ashmead, 421. 56 THE LAW OP REAL ESTATE AND Where the dominant and servient tenements unite in one person, the easements are extinguished, for a man may use his property as he pleases, and change that use from time to time ; but' apparent easements revive upon a severence of the tenements, where they become again vested in several owners. 1 Ways of necessity. Where a vendee of land cannot reach it without going over the land of his vendor, a right of way is presumed to have been granted, and of necessity becomes appurtenant to the land conveyed. 2 But if the vendee has an outlet over his own land, no such right of way will be im- plied, for the way of necessity is always of strict necessity. 3 It never exists where a man can get to his property through his own land. That a road through his neighbor's would be a better road or more convenient, is not to the purpose. That the passage through his own land is too steep or too narrow does not alter the case. It is only where there is no way through his own land that the right of way over the land of another can exist. 4 It extends only to a single way. That the person claiming a way of necessity has a way al- ready, is a good plea and bars the plaintiff. 5 The owner of the land over which the way of necessity 1 Kieffer v. Imhoff, 2 Cas.438 ; McCarty v. Kitchenman, 11 Wr. 241 ; Phillips v. Phillips, 12 Wr. 178. Where a continuous and apparent easement or servitude is imposed by the owner upon one portion of his real estate for the benefit of another, a purchaser at a private or judicial sale, in the absence of an express reservation or agreement on the subject, takes the property subject to the easement or servitude. Zell v. First Universalist Society, 4 Crum. 390. 2 Wissler v. Hershey, 11 Har. 333. 3 Ogden v. Grove, 2 Wr. 487 ; Be Private Road, 2 Amer. 183. 4 McDonald v. Lindall, 3 Rawle, 495. There can be no implication of a reservation of a right of way by necessity where land is conveyed for a specific purpose, and its use for such purpose is incompatible with any such reserved right in the grantor. Prowattain v. Philadel- phia, 17 W. N. C. 261. 5 Allen i), Vandivort, 20 W. N. C. 349. CONVEYANCING IN PENNSYLVANIA. 57 goes has the right to locate it in the first instance. But it must be a convenient way. If he should fail or refuse to do so, or give an inconvenient location, the right would devolve on the grantee of the way. 1 When once located properly by either party, it is fixed and cannot be changed except by mutual consent. The way of necessity ceases as soon as the necessity ceases. It remains appurtenant to the land so long as the owner has no other means of access, but as soon as he acquires, by pur- chase of other land or otherwise, a means of access from a highway to his own land to which the way belongs, the way of necessity is at an end. 2 The servient tenement must not be overcharged, and when a man owns a piece of ground to which a right of way is appurtenant, he cannot use it to obtain access to his other land, to which it is not appurtenant. 3 2. Water-courses and other water-rights. The rule of law with regard to rights in running water was stated in a former chapter. Each proprietor of land, through or by which a stream runs, has the right to receive the flow of the water in its accustomed channel, without diminution in quantity or deterioration in quality to any substantial extent. 4 The right to interfere with this natural flow is an easement. The inter- ference may be by damming and penning back the water, by diverting the course of the stream, or by fouling the water. Many of these mill rights are regulated by statute in Penn- sylvania. The construction of grants of these easements is the same as that of other grants. 5 In Heilman v. Union 1 2 Shars. Bl. Com. 36, note. 2 Woolrych on Ways, *72. 3 Schroder v. Brenneman, 11 Har. 348. Interference with a right of way will be restrained by injunction. Harper v. Cemetery Co., 15 W. N. C. 172. 4 McCallum v. Germantown Water Co., 4 P. F. Sm. 40. 5 See Gehman v. Erdman, 15 W. N. C. 278, for construction of an easement to maintain a dam and backing water. 58 THE LAW OF REAL ESTATE AND Canal Co., 1 the canal company had agreed to pay a sum from time to time for the use of the water. When they stopped paying, it was held that their right continued only so long as they paid for it, and then ceased. With regard to subterranean waters the rule is different ; there no damages can be recovered for a diversion of the flow, unless it be shown that it was done wilfully or mali- ciously. 2 3. Lateral support. Every owner of land has the right to have the soil of his parcel supported by the soil of his neigh- bor, and each one, in excavating his own lot, is bound to 1 14 Wr. 268. ' Wheatley v. Baugh, 1 Cas. 528 ; Haldeman v. Bruckhardt, 9 Wr. 519. In Wheatley v. Baugh, 1 Cas. 531-2, a mining company, in the course of necessary operations in mining minerals from their own land, interrupted the percolations which supplied a spring on an adja- cent tract. Meld, that the owner of the spring could not recover damages for the loss of it. In delivering the opinion of the court, Lewis, O. J., said : "In limestone regions streams of great volume and power pursue their subterranean courses for great distances, and then emerge from their caverns, furnishing power for machinery of every description, or supplying towns and settlements with water for all the purposes of life. To say that these streams might be obstructed or diverted merely because they run through subterranean channels is to forget the rights and duties of man in relation to flowing water. But to entitle a stream to the consideration of the law it is certainly necessary that it be a water-course in the proper sense of the term. A spring gutter on the surface is none the less a water-course, although it is not equal in volume to a river. Small as it may be, if it have a clear and well defined channel, and a regular flow in that channel, it cannot be diverted to the injury of the proprietors below. Jack v. Martin, 12 Wend. 330. So a subterranean stream which supplies a spring with water cannot be diverted by the proprietor above for the mere purpose of appropriating the water to his own use. Smith v. Adams, 6 Paige, 435. * * * When the nitrations are gathered into sufficient volume to have an appreciable value and to flow in a clearly defined channel it is generally possible to see it and to avoid diverting it without serious detriment to the owner of the land through whicli it flows. But percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land. Accordingly the law has never gone so far as to recognize in one man a right to convert another's farm to his own use for the purposes of a filter." CONVEYANCING IN PENNSYLVANIA. 59 exercise care not to injure his neighbor in this respect. 1 But there is a very manifest distinction between the natural soil and soil burdened with buildings. So, if by digging too near the neighbor's house, it is damaged, that is held to be damnum absque injuria, so far as the damage to the house is concerned, because it was the neighbor's folly to build his house so near the line. 2 In a city, each man is bound to so build his walls, skillfully and with proper materials, that his neighbor may enjoy the right of building to the verge of his line. 3 4. Drain and drip. No man has the right to drain the water from his own land upon the land of another, except by the accustomed natural channels ; * but a land owner may drain his land into a stream, even though the quantity of water be thereby increased. 5 In a city, the owner of a lot must so grade his lot that the water which falls or accumulates upon it shall not run upon the land of his neighbor. 6 But he may drain into the street.' And, in draining a street, the municipal authorities are liable if the water is turned upon the land of an individual. 8 In cities and towns nothing is more common than the right to receive or drain off water, through pipes laid on another's ground. The right of drip, i. e. to discharge rain water from the eaves or gutters upon the land of another, is not so common. 1 Altwater v. Woods, 1 W. N. C. 23. 2 Thurston v. Hancock, 12 Mass. 226. 3 Richart v. Scott, 7 Watts, 460 ; Bell v. Seed, 1 W. N. C. 70. 4 Miller v. Laubach, 11 Wr. 154 ; Hays u. Hinkleman, 18 P. F. Sm. 324. The defendants changed the spouting upon the roof of their house so that the water was cast upon their own ground, some thirty- two feet from the plaintiff's house. This water percolated through the soil into the cellar of a house on the adjoining lot ; held, to be damnum absque injuria. Sowers v. Lowe, 20 W. N. C. 76. 5 Kauffman v. Griesemer, 2 Cas. 407. 6 Bentz v. Armstrong, 8 W. & S. 40. 7 Young v. Leedom, 17 P. F. Sm. 351. a HuddlestoD v. The Borough of West Bellevue, 1 Amer. 110. 60 THE LAW OF REAL ESTATE AND 5. Burial Lots and Pews. Generally, burial lots in ceme- teries are granted only for a limited purpose. The owner has only an easement, i. e., the right of interment in the cemetery. It is called a license irrevocable so long as the place continues to be a burying ground. 1 Every person who buys such a privilege, does so with the implied understand*- ing. that a change of circumstances may in time require a change of location. 2 The same rules are applied to pews in churches. The grant of a pew in perpetuity does not give an absolute right, as a grant of land in fee. The pew-owner takes only a usufructuary right. If the building be destroyed by fire or other casualty/the pew-owner's right is gone. When the church is rebuilt, either on the same or a different location, the pew-owner has no claim. 3 6. Light and Air. The right to receive light and air over the land of another may exist here, but it cannot arise ex- cept by express grant. It cannot be implied, nor will any lapse of time create a presumption of a grant. 1 There can- not be any windows in a party wall ; the owner of the adjoin- ing lot has the right to have the wall built solid, without openings, 5 and no right is gained by having them open for more than twenty-one years. 6 Easements must be distinguished from Licenses. A license is an authority to do a particular act or acts upon the land of another, as to enter a store or an inn. A church is open 1 Kincaid's Appeal, 16 P. F. Sm. 412. * Burton's Appeal, 7 P. F. Sm. 213. " Kincaid's Appeal, 16 P. F. Sm. 412; Church ... Wells, 12 Har. 249. 1 Haverstick v. Sipe, 9 Cas. 371 ; Bennyson's Appeal, 8 W. N. C. 383. An easement for light and air will not be implied under any cir- cumstances short of a necessity so absolute as to destroy the use of the plaintiff's building. The English rule of implied covenants to light and air are not recognized as in force in this State. Donnelly v. Kross- kop, 19 W. N. O. 558. 5 Vollmer's Appeal, 11 P. F. Sm. 118. 6 Milne's Appeal, 31 P. F. Sm. 54. CONVEYANCING IN PENNSYLVANIA. 61 to all who desire to worship God and receive religious in- struction at the regular and appointed seasons. It is not closed against any one who behaves with propriety." A license is a power as distinguished from a vested right. It may amount temporarily to the same right as an easement, or even more ; it may temporarily give the licensee rights which only those having an estate in the land would have, as if I grant to a man the right to live in my unoccupied house. Like a power, a license is revocable at the pleasure of him who gave it. It is good until revoked, but will terminate at the death of the licensor. It is not transferable, and it is revoked by a subsequent conveyance of the land over which the license is given. 2 Where an interest is coupled with the license, it ceases to be revocable, the license becomes an incident of the interest and lasts so long as it is essential to the enjoyment of the interest. For example, a license to hunt cannot be revoked after the game is killed, until the hunter has had a reasonable opportunity to take it away, because he has acquired a pro- perty in the game. So of cutting down a tree. But the license is revocable until the interest has become vested in the licensee. 3 There are certain requirements which the law makes in the transfer of title to real property. As a general rule (with certain exceptions) no right or interest in land can be created or transferred without a writing. Where the license and the interest to which it is an incident are both created by parol, the license is irrevocable if the interest be one which might be lawfully created by parol. But where the interest is such as to require a writing to create or pass it, the license cannot be helped by it. A license may be given in any manner. But even if 1 W. Pikeland Road, 13 P. F. Sm. 474. 2 Vollmer's Appeal, 11 P. F. Sm. 118. 8 Gowen v. The Phila. Exch. Co., 5 W. & S. 141. 62 THE LAW OF REAL ESTATE AND created by a deed under seal, if it be a mere license, it is as revocable as if created by parol. Where the licensee, on the faith of the license, incurs ex- pense for valuable improvements, the license becomes irre- vocable. This is upon the doctrine of equitable estoppel. 1 This principle of equitable estoppel does not apply where the parties can be placed in statu quo. The mere fact that a consideration was paid is not enough to raise the equity. 2 1 LeFevre v. LeFevre, 4 S. & R. 241 ; Kay v. Pa. R. R. Co., 15 P. F. Sm. 269. 2 Huffi;..McUauley, 3 P. F. Sm. 206 ; Thompson v. McElarney, 1 Nor. 174. See notes to Prince v. Case, 10 Conn. 375 ; Rerick v. Kern, 14 S. & R. 267 ; 2 Am. Ldg. Cas. 736. CONVEYANCING IN PENNSYLVANIA. 63 CHAPTER V. RENT-REN T-SER VICE-REN T-CHARGE-RENT-SEOK-RENT OF ASSIZE— FEE-FARM RENT— ST A TUTE QUIA EMPTORES -QROUND-RENTS-INGERSOLLv. SERGEANT-IRREDEEM- ABLE GROVND-RENTS—RENT, WHEN DUE— ARREARS OF REW T— APPORTION MEN T OF RENT— DEMAND— EVIC- TION— REMEDIES FOR RECOVERY OF RENT— ACTIONS OF COVENANT, DEBT AND ASSUMPSIT— RE-ENTRY— DIS- TRESS— THINGS PRIVILEGED FROM DISTRESS, ABSO- L TJTEL Y— CONDITION ALL Y— EXEMPTION A CTS— RIGHT TO SELL GOODS DISTRAINED— RIGHT TO FOLLOW GOODS FRAUDULENTLY REMOVED. Rent, "A certain profit issuing yearly out of lands and tenements corporeal." l It must be certain. " Id cerium est quod certum reddi potest." 2 It must issue yearly, or at stated periods. It must issue from land or a tenament corporeal, something to which the lessor may have recourse to distrain ; it cannot issue from an incorporeal. 3 It may issue from a 1 2 Bl. Com. 41. 2 On a demise of a grist mill, the lessee to render one-third of the toll, the lessor may distrain for the rent, for if the tenant keeps an account of the toll, which it is his duty to do, the rent may be reduced to the utmost certainty. Fry v. Jones, 2 Rawle, 11. See Manderback v. Bethany Home, 13 Out. 231. A demise, " At the yearly rent of the interest and taxes accruing thereon," is not "a certain rent," as re- quired by the act of March 6, 1872, P. L. 22, necessary to give a magis- trate jurisdiction, in a summary proceeding by a landlord against his tenant to recover possession of the demised premises, under the Act of December 14, 1863. Davis v. Davis, 5 Amer. 261. 3 n Even in our modern terms for years rent is still treated as some- thing issuing out of the leased premises, so that to this day, although, if you hire a whole house and it burns'down, you have to pay without abatement, because you have the land, out of which the rent issues, yet if you only hire a suite of rooms and they are burned, you pay rent no longer, because you no longer have the tenement out of which it comes." Stockwell o. Hunter, 11 Met. (Mass.) 448; O. W. Holmes Jr., The Common Law, 388. Although rent cannot issue from an in- corporeal, yet if a grant of one be made in consideration of an annual payment, the grantee would be bound by his contract to pay, but the payment reserved would not be a rent. Sm. Land, and Ten. 91. In- terest which the vendor of land sold subject to a life estate covenants to pay his vendee on instalments of purchase money paid by the latter until he is put in possession, is not in the nature of rent. Mason v. Rogers, 13 Out. 319. 64 THE LAW OF REAL ESTATE AND house and furniture. 1 And where a lessee covenants in a lease to pay for all gas consumed on the premises, a sum due for gas is to be regarded as rent and may be distrained for. 2 Littleton, (and the text-writers following him), says that there were at common law three kinds of rent: rent ser- vice, rent charge, and rent seek. Rent-service is a rent which was originally, i. e., in feudal times, reserved in services, or in money which was a com- mutation for such services, in which case there were still the lesser services of fealty, etc., incident to the tenancy. A right of distress was inseparably incident to this rent, and a species of feudal tenure existed between the landlord and the tenant. Of this m'ore hereafter. Rent-charge was a rent where the tenant owned in fee subject to the rent, but no feudal services or relation what- ever existed between him and the landlord. The feudal relation will be explained more fully hereafter. For the present purpose it is sufficient to say, that where it existed between landlord and tenant (the very names are derived from it) there was always more or less of an estate or interest in the land itself vested in the landlord, as a reversion or a seignory, and to this the rent was an incident ; where there was not such a reversion or seignory in the owner of the rent, the rent could not be a rent-service, but was a rent charge or rent-seek, according as the deed creat- ing it did or did not give a «right of distress. Right of dis- tress was not incident, unless expressly annexed by the deed creating it. I apprehend that all rents charge had the right of distress expressly conferred, since the name rent-charge arose from the fact that the right of distress was expressly charged on the land. 3 1 Mickle v. Miles, 7 Oas. 21. 2 Fernwood Masonic Hall Association u. Jones, 13 W. N. C. 405. 8 3 Kent. Com. 461 ; Co. Litt. 143b. CONVEYANCING IN PENNSYLVANIA. 65 Rent-seek is simply a rent-charge, where no clause of dis- tress is contained in the deed. 1 Every species of rent is comprised in these three divisions. 2 The other names given in the books are ; Rents of assize-, those payable to the lord of a manor, also called quit-rents-, " quieti redditus. " because thereby the tenant is quit and free of all services. 3 Fee-farm rents, a perpetual rent reserved on a conveyance of land in fee simple. 4 The law in Pennsylvania with regard to fee-farm rent service, is different from the English law, and probably from that of most States in the United States. When the feudal system was growing old and the burdens of it had made tenants astute to avoid them, a statute was passed, 18 Edw. 1, c. 1, (Westminster 3), commonly called Quia Emptores which forbid any further creation of feuds, upon a sale of the land. Before this, an owner of land might con- vey it reserving to himself a rent in services and money, and the feudal relation would exist between him and his grantee, because he would have remaining in him the seig- nory or lordship of the land, which was a certain kind of interest or estate in it, and the rent reserved would be an incident to the seignory. But after this statute, a convey- ance of land passed away all the grantor's interest, he was prevented from retaining this lordship or seignory by force of the statute, and the feudal relation was not created. Hence, a rent reserved on a conveyance of land in fee sim- ple before the statute Quia Emptor es-, was a rent- service, and afterwards, was a rent-charge. 5 1 Co. Litt. 143b. The statute 4 Geo. II., c. 28, extended the remedy of distress to all rents alike, and thereby in effect abolished all material distinction between them. 3 Bl. Comm. 6. 2 3 Cruise R. Prop. 283. 3 3 Cruise, 284. 4 3 Cruise, 284. 5 Digby, Hist. Law of Keal Prop. 194. 5 66 THE LAW OF REAL ESTATE AND This statute was never in force in Pennsylvania, being especially excluded in the charter granted to William Penn. 1 Consequently a grant of land reserving to the grantor a per- petual or fee-farm rent, created a rent-service. Such are our Pennsylvania ground-rents. 2 The statute Quia Emptores only applied to estates in fee simple. As I said before, all grants of land reserving rent, where the grantor retained an interest or estate in the land, were creations of rents-service. The ordinary rents on leases for years are rents-service. 3 The old ground-rent deeds usually contained a clause for the redemption of the ground-rent by the payment of a sum of money within a certain time. If the money were paid within the time the land was released from the rent ; otherwise the rent was a perpetual charge on the land. If there were no clause of redemption in the deed, the rent would be irredeemable from its creation. Many such rents 1 Sec. 18, 1 Proud's Pa. 170; 5 Sm. Laws, 496. 2 Ingersoll v. Sergeant, 1 Whart. 337. A ground-rent is a rent re- served to himself and his heirs by the grantor of lands in fee. In In- gersoll v. Sergeant, A being seised of a lot of ground which was subject to a redeemable ground-rent, on October 9, 1818, conveyed the lot to B in fee, free from the rent, and covenanted to extinguish the rent. On 18th October, 1818, the holder of the rent conveyed it to U. On 30th April, 1819, B conveyed a part of the lot to D, in fee. On 1st May, 1819, C (the owner of the rent) released the lot which had been conveyed to D, from the payment of the rent. On 3d Jlay, 1819, C conveyed the ground-rent to the defendant in fee. In an action of replevin the defendant avowed for rent in arrear, and issue was joined thereon. For the plaintiff it was argued that the ground-rent was a rent-charge, that a rent-charge could not be apportioned, and that therefore by a release of part of the ground subject to the rent the whole was extinguished. But the court held that the statute Quia Emptores (18 Bdw. I) never was in force in Pennsylvania ; that, there- fore, a ground-rent was a rent-service and not a rent-charge, and that consequently the release from the rent of part of the land out of which theground-rent issued, did not extinguish the whole rent, but merely discharged the part released, and left the remaining part of the land subject to its due proportion of the rent. 3 Sm. Land. & Ten. 89 . CONVEYANCING IN PENNSYLVANIA. 67 were created in Pennsylvania, and especially in Philadelphia. It was seen that they were drawbacks to public prosperity, and the act of 22 April, 1850,' was passed to remedy the evil. It was generally said, and said without reflection, that an irredeemable ground-rent could not be created after the passage of this act. But the words of the statute are quite limitedin their application, if strictly construed : "Whenever a deed or "other instrument of writing conveying real estate shall be made, wherein shall be contained a reservation of ground- rent to become perpetual upon the failure of the purchaser to comply with the conditions therein contained, no such cov- enant or condition shall be so construed as to make the said ground-rent a perpetual incumbrance upon the said real estate; but it shall and maybe lawful for the purchaser thereof at any time after the said ground-rent shall have fallen due to pay the full amount of the same, and such pay- ment shall be a complete discharge of such real estate from the incumbrance aforesaid " This statute does not prohibit the reservation of ground- rents irredeemable during the life of a living person. 2 And it does not apply to ground-rents unless the deed of reserva- tion contains a stipulation in the form of a condition, that the principal shall be paid within a certain time, on the fail- ure of the purchaser to comply with which the ground-rent shall become perpetual. 3 1 Purd. Dig. 858, pi. 2. 2 Skelly v. Ogden, 9 W. N. C. 365; Skelly's Appeal, 11 id. 11. 3 Palairet v. Snyder, 10 Out. 227. In this case the ground-rent deed reserved a perpetual rent, with a proviso that if the granted, his heirs or assigns, should within ten years from its date pay a certain sum and the arrearages of rent, then the rent should cease and be extinguished, but the rent should not be redeemable after the period had elapsed, and it was held that the act of 22 April, 1850, did not apply to such a deed. The law on this subject has been changed by the act of 24 June, 1885, which is in these words : " From and after the passage of this act no irredeemable or non- 68 THE LAW OP REAL ESTATE AND Rent must be reserved to the grantor of the land. It cannot be reserved to a stranger. A grants land to B, re- serving rent ; if he reserve it to to C it is not rent, though they may -call it so. It may be a good contract to pay money, extinguishable ground-rent shall be charged upon, or be reserved out of or for any land within this commonwealth. Nor shall any omission to provide for the redemption of any ground-rent, or rent-charge, nor any option, agreement, contract, covenant or condition contained in any deed hereafter to be made charging or reserving ground-rent be in anywise construed or interpreted to make such ground-rent irredeem- able or prevent the extinguishment thereof ; nor shall any ground-rent or rent-charge, hereafter to be charged or reserved as aforesaid, be construed or interpreted to be or become irredeemable or non-extin- guishable by reason of any failure to pay the sum of money mentioned in the deed to be paid for the extinguishment of the rent within the time fixed by the deed, nor shall the period for the extinguishment of any such rent be postponed longer than twenty-one years, or life or lives in being." The act further provides for the extinguishment of the rent at any time by the payment of the principal and arrearages, and if no princi- pal sum is fixed by the deed then by paying such an amount as will produce a yearly interest equal to the rent. See P. L. 1885, 161-2. Executors or trustees in whom a ground-rent is vested may extin- guish it without an order of court. Bouvier's Est., 14 TV. N. U. 535 ; Ex parte Huff, 2 Barr, 227 ; Spangler's Est., 4 W. N. C. 74. As to when a ground-rent will be extinguished under order of court upon payment to trustees, see Be Broughton's Petition, 17 TV. IS". C. 522. The act of 27 April, 1855, \ 7 (P. L. 369), providing that in all cases where no payment, claim, or demand shall have been made on account of a ground-rent for twenty-one years, and no declaration or acknowl- edgment of the existence thereof shall have been made within that period by the owner of the premises subject to the ground-rent, a release or extinguishment thereof shall be presumed, and the ground- rent shall thereafter be irrecoverable, affects the remedy merely, and is not unconstitutional and void on the ground that it impairs the obligation of the contract between the ground-tenant and the ground- landlord. Biddle et. al. v. Hooven, 2 TV. N. C. 390. But the act of 15 April, 1869, P. I/. 47, providing for the extinction of irredeemable ground-rents, was held to be unconstitutional, in Palairet's Appeal, 17 P. F. Sm. 479. See as to measure of damages where land subject to an irredeemable ground-rent is taken for a road, In re Twenty-fifth Street, 18 TV. If. C. 318. CONVEYANCING IN PENNSYLVANIA. 69 and the person to whom it is reserved may enforce payment by suit, but it is not a rent. 1 Rent issues yearly, and where no time is stipulated for its payment it is payable at the end of the year. 2 It is pay- able at midnight on the day specified for the payment of it. But where there is a right to re-enter for non-payment of rent the rent must be demanded before sunset on the day it be-, comes due. 3 If the landlord dies before midnight the rent goes to his heir with the reversion. In Marys v. Anderson, 4 a lease was made for a year, from April 1, 1848 ; rent payable at the ex- piration of the term. The land was sold by contract, the deed to be made April 1, 1849. The purchaser claimed the rent. Held, that the year expired and the rent came due at midnight of March 31, 1849, and the purchaser was not en- titled to it. Arrears of rent are a debt — personalty. So, if the owner of rent dies after the rent is due, it goes to the executor as personal estate, and the executor may distrain for it. 5 Rent comes due all at once, on pay-day, and the common law rule is that it cannot be apportioned with respect to time. 6 In Eng- land this is modified by statute, and so in most of the United States. In Pennsylvania where rent is reserved to or payable to a tenant for life, and comes due after his decease, it is apportioned to the time of his death. 7 Where land is subject to a rent-service, and the owner of the rent acquires title to part of the land, the rent is apportioned, and the remaining land must pay its fair share of the rent. 1 Co. Litt. 213a. 2 Menough's Appeal, o W. & S. 432. 3 McCormick c. Connell, 6 S. & "R. 151. * 12 Har. 272. 5 Act 24 Feb., 1834, sees. 8 and 29 ; Purd. Dig. 518, pi. 58 ; 528 pi. 107. 6 Bank of Penn'a v. Wise, 3 Watts, 394. 7 Act .24 Feb., 1834, sees. 7 and 30 ; Purd. Dig. p. 518, pi. 57 ; p. 528, pi. 108. 70 THE LAW OF KEAL ESTATE AND So also where the owner of the reversion sells part of it, the rent is apportioned from the moment of sale. 1 But the law is otherwise in the case of a rent-charge, which is not appor- tioned, but extinguished. 2 Where land is conveyed reserv- ing a ground-rent, and part of the land granted does not come into the possession of the grantee, the ground-rent is appor- tioned. He shall pay pro tanto for what he gets. 3 Rent considered as a debt is, with regard to the place of payment, like other debts ; unless otherwise provided in the contract, the debtor must seek the creditor to tender pay- ment. 4 But where it is necessary for the landlord to make a demand for the purpose of taking advantage of a forfeiture, he must make it upon the land. Perhaps, to be absolutely accurate, I should say, that when the landlord uses to collect his rent such process as is common to debts generally, as an ac- tion of covenant, debt or assumpsit, it would be no defence to reply that he had never made demand upon the land, and that the tenant was there ready to pay ; but where the land- lord uses other process, applying more strictly to rents, as re- entry, he must seek his rent upon the land. A distress needs no prior demand, because it is itself a demand. 5 Eviction suspends the rent. Eviction is a turning out of the tenant by a paramount title, or the landlord's wrongful act. 6 But a wrongful disseisin by a mere trespasser or intruder is no eviction.' Nor is the act of God. So where the premises are destroyed by fire or flood the rent is still due. 1 1 Linton v. Hart, 1 Cas. 193. 2 Ingersoll v. Sergeant, 1 Whart. 337. 3 Naglee v. Ingersoll, 7 Barr. 185. 4 Haldane v. Johnson, 20 Eng. L. & E. 498. 5 Gilbert on Rents, 73 seq. ; Royer r>. Ake, 3 P. & W. 464. 6 Ross v. Dysart, 9 Cas. 452 ; Duff v. Wilson, 19 P. F. Sm. 316 ; Burr v. Cattnach, 19 W. N. C. 22. 7 The act of an adjoining owner in taking down a party-wall under the authority of the building inspectors, thereby rendering leased premises untenantable is not a defence to payment of rent by tenant. Barns r. Wilson, 1 Crum. 303. The filing of a bill to restrain a tenant from taking brick clay is not an eviction. Jarden u. Lafferty, 19 W. CONVEYANCING IX PENNSYLVANIA. 7 L Where the eviction is only partial, and the tenant con- tinues to occupy the remainder of the premises, he is liable to pay a portion of the rent equivalent to the part he has occupied. " Rents like other incorporeals, " lie in grant" *'. e., require a deed to pass title to them. The remedies tor the recovery of arrears of rent, 3 are distress, the actions of covenant, 4 debt 5 and assumpsit, and re-entry. 6 N. C. 144. Where a building is torn down by the city authorities under an ordinance, during the pendency of a lease, and the owners do not personally participate in the act, the owners are not responsible to the tenant for damages caused to the tenant by reason of the eviction. Hitchcock v. Bacon, 20 W. N. C. 511. 1 Magaw v. Lambert, 3 Barr, 444 ; Fisher v. Milliken, 8 Barr, 121 ; Bussman v. Ganster, 22 P. F. Sm. 285. For meaning of term " Act of God," see Am. & Eng. Encyclopedia of Law. 2 .Seabrook v. Moyer, 7 W. N. C. 139. 3 Arrears of ground-rent are discharged by a sheriff's sale of the property subject to the rent. Foulke v. Millard, 12 Out. 230. 4 An action of covenant sur ground rent, is not within the pro- vision of g 34, Act, 24 Feb. 1834 (P. L. 87), requiring that a plaintiff who intends to charge the real estate of a decedent with the payment of his debts should make the widow and heirs or devisees parties thereto. Bushton v. Lippincott, 21 W. N. C. 47. 5 " For a freehold rent, reserved on a lease for life, etc., no action of debt lay by the common law during the continuance of the freehold out of which it issued ; for the law would- not suffer a real injury to be remedied by an action that was merely personal." 3 Bl. Comm. 231-232. " The freehold rent was just as much real estate as an acre of land, and it was sued for by the similar remedy of an assize, asking to be put back into possession." Holmes, The Common Law, p. 391 , Digby, Hist. Law of Real Property, 194 n. By the statutes 8 Anne, c. 14, and 5 Geo. III., c. 17, actions of debt might be brought to recover freehold rents. 3 Bl. Comm. 232. 6 In Cadwalader v. App, 31 P. F. Sm., 201, Judge Thayer, in charging the jury, described the conditions of a valid re entry, as fol- lows : " In the first place there could be no good re-entry under this deed if there was a sufficient distress on the premises to pay the rent in ar- rears. * * * A lessor who seeks to enforce a forfeiture for non- payment of rent by this old common law remedy, must go upon the 1 2 THE LAW OP REAL ESTATE AND Distress is defined by Blackstone to be " the taking of a personal chattel out of the possession of a wrongdoer into the custody of the party injured to procure a satisfaction for wrong committed." ' In cases between landlord and tenant it is also defined as "the right to take personal chattels found on the demised premises for the purpose of obtaining the rent in arrear." 2 The most usual injury for which a distress might be taken, was non-payment of rent ; but it was also resorted to to compel the performance of feudal services and other duties. 3 It is also still in use in Pennsylvania in other cases. 4 The relation of landlord and tenant must exist when the distress is made. 5 Thus where a tenant sub-let. and then sur- rendered possession to the owner of the paramount estate, it was held that he could not afterwards distrain for rent in arrear on the goods of his former tenant remaining on the premises. 6 As a general rule all goods found upon the premises, out of which the rent issues, whether they belong to the tenant or not, are liable to distress. 7 But there are many things land the very day on which the rent is due. He must there demand the precise rent which is due, and he must do it in the most notorious place upon the land. He cannot go into a secret part of the premises and do it. * * * Then he must wait until dusk to see if the ten- ant appears to respond to his demand for payment and save the for- feiture. If the rent is not paid, he must make a declaration that he thereby resumes possession of the land upon which he has entered. * * * If such re-entry is properly made * * * it destroys the leasehold or particular estate and restores to him the whole estate, including the immediate right to possession and enjoyment." 1 3 Bl. Comm. 6. 2 Jackson & Gross, on Landlord and Tenant, 96. 3 3 Bl. Comm. (Shars. Ed.) 6, n.6. 1 Jack. & Gross, L. & T. 103. Bl. Comm. 6, n.6. " Walbridge v. Pruden. 6 Out. 1. ' Karns v. McKinney, 24 P. F. Sm. 387 ; Kleber v. Ward, 7 Nor. 93. CONVEYANCING IN PENNSYLVANIA. 73 which are privileged from distress, either by statute or at common law. 1 Property privileged from distress may be classified as fol- lows : I. Things absolutely privileged : II. Things con- ditionally privileged. I. Things Absolutely Privileged. 1. Fixtures which the tenant has no right to remove from the freehold are not distrainable ; but fixtures slightly attach- ed which the tenant may remove at his pleasure during the term, and which may be removed without destroying their character or injuring them may be distrained. They can be restored in the same plight. 2 2. Things left upon the premises in the way of trade. Where the tenant in the course of his business is necessarily put in possession of the property of those with whom he deals, or of those who employ him, such property although on the demised premises is not liable to distress for rent due thereon from the tenant. 3 Thus goods deposited with a com- mission merchant or auctioneer for sale, 4 or stored in a ware- house for safe keeping, 5 cattle received by a tenant to be pastured for hire, 6 the effects of a boarder in a lodging-house,' are all privileged from distress. So it has been held that a principal's goods in the hands of an a^ent cannot be distrained for the latter's rent. 8 1 See the leading case of Simpson v. Hartopp, Willes, 512 ; s. c, Sm. Lead. Cas., 8th Am. Ed. Vol. I, p. 783. 2 Furbush v. Chappell, 14 W. N. C. 347. 3 Karns v. McKinney, 24 P. F. Sm. 390 ; but the goods of a stranger in the possession of a tenant, not as a necessity in the latter's trade or business, but as a matter of favour and without hire, are not exempt from distress for the arrears of rent of the premises upon which they are found. Page v. Middleton, 3 Crum. 546. 4 Briggs v. Large, 6 Cas. 287. 5 Brown v. Sims, 17 S. & R. 138. 6 Cadvvalader v. Tindall, 8 Har. 422. 7 Riddle v. Welden, 5 Whart. 9. 8 Howe Sewing Machine Co. v. Sloan, 6 .Nor. 438. 74 THE LAW OF REAL ESTATE AND 3. Things of a perishable nature which cannot be restored in the same plight, as cocks and sheaves of corn, grain, fresh meat, milk, etc. These are no longer privileged in Pennsyl- vania, except perhaps in relation to such things as will perish between the day of distress and the day of sale. 1 The act of 21 March, 1772, sec. 7, 2 provides that cattle and growing crops may be distrained, appraised and sold in the same manner as other goods. 4. Things in the actual use of the tenant, as an axe in his hand, a loom in use, etc., because an attempt to distrain them might lead to a breach ol the peace. This exception still probably holds good in Pennsylvania. 3 5. Animals ferae naturae, and other things wherein a man can have no valuable property. 4 6. Things in the custody of the law, as goods seized under an execution or attachment. 5 II. Things Conditionally Privileged. These could not be distrained, provided there were othei sufficient distress on the premises. 1. Beasts of the plow and instruments of husbandry. 6 2. Beasts which improve the soil, such as sheep and other domestic animals. These latter exemptions no longer exist in Pennsylvania. They have been replaced by the exemption acts. 1 See act of 9 April, 1849, P. L. 533. 2 Purd. Dig. 1012, pi.' 4. 3 Co. Litt. 47a; Field v. Adams, 12 A. & E. 652. 4 2B1. Oomm. 391 ; 3 id. 7. 5 Pie-ice v. Scott, 4 W. & S. 334. The act of 16 June, 1836, sec. 83, Purd. Dig. 1015, pi. 14, provides that the goods upon any premises de- mised for life or years or otherwise, taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent at the time of taking such goods in execution, not exceeding one years' rent. And see Purd. Dig. 752, pi. 58 & 59, and notes. * Co. Litt. 47a ; Gorton v. Falkner, 4 'T. R. 565. CONVEYANCING IN PENNSYLVANIA. 75 All wearing apparel of the tenant and his family, bibles and school books in use in the family, and other property to the value of three hundred dollars are exempted by the act of 9 April, 1849, section l. 1 And in addition all sewing ma- chines belonging to seamstresses, 2 or used and owned by pri- vate families; 3 all pianos, melodians and organs leased or hired by any person residing in the commonwealth, provided the owner, or the person leasing the same, shall give notice to the landlord that the instrument is leased or hired. 4 And the uniform, arms, ammunition and accoutrements required by law of every officer and soldier are exempt by the militia law. 5 At common law goods distrained could not be sold, but could only be impounded and detained in order to induce the tenant to perform his services. 6 But in Pennsylvania if the tenant do not replevy the goods within five days after the distress and notice thereof, the party distraining may have them appraised, and after six days' notice sell them at public sale. 7 The act of 21 March, 1772, 8 authorizes the landlord to follow and distrain on the goods of the tenant fraudulently removed, for the space of thirty days after such removal. 9 1 Purd. Dig. 1012, pi. 5. 2 Act 17 April, 1869, sec. 1, Purd. Dig. 744, pi. 30. 3 Act 4 March, 1870, sec. 1, id pi. 31. * Act 13 May, 1876, sec. 1, id. pi. 32. 5 Act 4 May, 1864, sec. 55, Purd. Dig. 1260, pi. 84. 6 3 Bl- Coram. (Shars. ed.) 6, n.6. 7 Act 21 March, 1772, sec. 1, Purd. Dig. 1013, pi. 10. 8 1 Sm. Laws, 371. 9 Notwithstanding there is a provision in a lease that in case of the removal of the tenant from the premises during the term, the whole rent unpaid should then become due and collectable by distress or otherwise, goods and chattels of the tenant removed from the pre- mises cannot be distrained unless the removal was fraudulent and clandestine, which is a question of fact to be submitted to the jury. Owens ?•. Shovlin, 1 Crum. 371, When no rent is in arrear at the time of the removal of the goods, and the removal is not shown to be clan- 76 THE LAW OF KEAL ESTATE AND A distress is made either by the landlord in person or by a bailiff. This bailiff, agent or attorney in fact need not be a constable or other officer, 1 nor need his authority be in writing. 2 A distress is a seizure of the goods, but a very slight act is sufficient to constitute a seizure in contemplation of law. It need not be a seizure of the particular goods. 3 destine or fraudulent, there is no power under the act of 1772 to dis- train on goods removed from the demised premises. Sargent v. Mat- chett, 20 W. N. C. 96. 1 Wells v. Hornish, 3 P. & W. 33. 2 Franeiscus v. Reigart, 4 Watts, 477 ; Jones v. Gundrim, 3 W. & S. 531 ; see Troubat & Haly, sees. 1724-1728 and 1730 for method of distraining. 3 It is sufficient for the landlord to give notice of his claim for rent, and to declare that the goods which he names shall not be removed from the premises till the rent is paid. Furbusht). Chappell, 14 W. N. C. 347. See Jackson & Gross, Landlord and Tenant, where the sub, ject of " Distress " is fully treated. CONVEYANCING IN PENNSYLVANIA. 77 CHAPTER VI. TENURES— IN PENNSYLVANIA— WALLACE v. HARMSTAD— THE MARK SYSTEM— FEUDS — PRINCIPLE OF— INCI- DENTS — FEAL TY— HOMA GE — SEP VICES —DURA TION — CLASSIFICATION — KNIGHT-SEPVICE — INCIDENTS — FREE SOCAGE— VILLEIN SOCAGE— VILLENAGE— INCI- DENTS OFSOCAGE TENURE— PENN'S CHARTER-TENURE IN EARL Y COLONIAL CHARTERS. We have now concluded the study of " Things Real?' " land, structures thereon, fixtures thereto, and rights issuing out of, annexed to, or exercisable within land." We are about to come to consider the estates and interests which may be had in them. Blackstone, before treating of estates, explains at length the tenures, ancient and modern, upon which lands in Eng- land are held.' It is a question on which high authorities are ranged on either side, whether tenures now exist in Pennsyl- vania. Tenures certainly did exist here prior to the Revolu- tion, and, it is believed, no lawyer ever questioned it, and the better opinion is that they still exist. 2 In Wallace v. Harmstad, 3 Judge Woodward expressly de- cides that, since the Revolution, Pennsylvania titles are allodial, not feudal. This opinion is full of errors — historical errors. 1. The oath given in the opinion as the oath of fealty, "humbly kneeling, etc., ungirt, uncovered, etc.,"* is the oath of homage!' The oath of fealty was taken standing, 1 See 2 Bl. Comm., ch. 4, 5 and 6. 2 2 Shars. Bl. Comm., 77 note. See also Sharswood's Law Lectures, Lecture VII, on "The Common Law," and Lecture VIII, on " The Feudal Law." ' 8 Wr. 499. * p. 499. 6 Co. Litt. 64a. 78 THE LAW OF KEAL ESTATE AND without reverence, with the freeholder's hand upon a book, and was entirely different in its terms. 1 2. The judge says there was nothing in the word " rent- service," to determine the quality of the tenure. Surely not. The only tenure which ever existed in Pennsylvania was expressly declared in Penn's charter to be free and common socage. Allodial property was not held by tenure, but by dominium directum. 3. The Divesting Act of 27 February, 1779, 2 was simply a transfer of the proprietaries' rights to the commonwealth, and not one word can be found in any section abolishing any lordship, etc. They were transferred only. 4. The Land Office Act of 9 April, 1781, must be construed as a whole, not a part of the 11th sec. taken out. Sec. 10 prescribes the form of patents for lands to be granted in pur- suance of that act, part of which prescribed form is *' to have and to hold" etc., and then follow in a parenthesis, " (here insert the tenure and reservation.) " 5. It was not doing complete justice to Judge Gibson to cite his opinion in Hubley v. Vanhorne, 3 when he had recently come upon the supreme bench, without mentioning later ones. 4 6. '' Her " (the State's) " patents all acknowledge a pecu- niary consideration and they stipulate for no fealty, no escheat, no rent-service or other feudal incident." This is error. The patents issued by the supreme executive council for city lots prior to 1803, all contain a tenendum, and a reser- valion to the commonwealth yearly on the 1st day of Sep- 1 Co. Litt. 67b. 2 1 Sm. Laws, 479. » 7 8. & 11. 185. * See Waddell v. Rattew, 5 Rawle, 231 ; Stump v. Findlay, 2 Rawle, 176 ; M'Cale v. Keely, 3 Watts, 71 ; Hileman v. Bouslaugh, 1 Har. 351. See Sharswood's Lectures, Lecture VIII. CONVEYANCING IN PENKSYLVANIA. 79 tember, of one acorn, if the same be demanded. I am not familiar with patents outside the city. But whether any remnants of tenure exist or not, it is certain that our law of real property, being an off-shoot of the English law, has its root in the feudal system, and every lawyer intending to be profound in his profession must carry his investigations back into that remote source of many exist- ing principles and analogies. The nomenclature of our law of real property is feudal, its history is so. It is impossible to fully comprehend it without a knowledge of tenure. 1 1 Read 2 Bl. Comm. ch. 4, 5 and 6. For an elaborate discussion of Anglo-Saxon tenures, see 1 Spence Eq. Jur. 1-103; Hargrave & But- ler's note to Co. Litt., sec. 300, p. 191 a. ; 1 Stubbs' Constitut. Hist, of Eng. 48-57, "The Mark;" 1 Stubbs' Constitut. Hist, of Eng. 251, "The Feud. ;" 1 Stubbs' Constitut. Hist, of Eng. 274, "The Process of Feudalization ;" Maine, Village, Communities and Miscellanies, Lec- ture V., p. 131 ; Challis on Real Prop. ch. 1 ; Digby, Hist. Law of Real Prop. Professor Stubbs, says : — " The laborious investigations of recent scholars have successfully reconstituted the scheme of land tenure as it existed among the Germanic races, by careful generalizations from charters, records of usages and the analogies of Scandinavian law and practice, which, at a later date reproduces, with very little that is adventitious, the early conditions of self-organizing society. This scheme has been already mentioned under the name of the Mark System. Its essential character depends on the tenure and culti- vation of the land by the members of the community in partnership. The general name of the Mark is given to the territory which is held by the community , the absolute ownership of which resides in the commu- . nity itself, or in the tribe or nation of which the community forms a part. The mark has been formed by a primitive settlement of a family or kindred in one of the great plains or forests of the ancient world, and it is accordingly like any other clearing, surrounded by a thick border of waste or wood, which supplies the place, or increases the strength of a more effective natural boundary. In the centre, of the clearing, the primitive village is placed ; each of the markmen has there his homestead, his house, court-yard and farm-buildings. This posses- sion, the exponent, as we may call it, of his character as a fully quali- fied freeman, entitles him to a share in the land of the community. He has a right to the enjoyment of the woods, the pastures, the mea- dow, and the amble land of the mark ; but the right is of the nature of usufruct or possession only, his only title to absolute ownership being merged in the general title of the tribe, which he of 'course 80 THE LAW OP REAL ESTATE AND I. The foundation of the feud was this principle : The king is the universal lord, and was the proprietor of all thu shares. The woods and pastures, being undivided, each mark-man has the right of using them, and can turn into them a number of swine and cattle; under primitive conditions, this share is oneof absolute equality; where that has ceased to be the rule, it is regulated by strict propor- tion. The use of the meadow-land is also definitely apportioned. It lies open from hay -harvest to the following spring, and during this time is treated as a portion of the common pasture, out of the area of whicli it is in fact annually selected. When the grass begins to grow the cattle are driven out, and the meadow is fenced round and divided into as many equal shares as there are mark families in the village ; each man has his own hay time, and harvests his own crop ; that done the fences are thrown down, and the meadow becomes again common pasture ; another field in another part of the mark being chosen for the next year. For the arable land the same regulative measures are taken, although the task is somewhat more complex ; for the supply of arable cannot be supposed to have been inexhaustible, nor would the mark-men be likely to spend their strength in bringing into tillage a larger area than they could permanently keep in cultivation. Hence the arable surface must be regarded as constant, subject to the alternation of crops. In the infancy of agriculture the alternation would be simply that of corn and fallow, and for this two divisions or common fields would suffice. But as tillage developed, as the land was fitter for winter or spring sowing, or, as the use of other seed. besides wheat was introduced, the community would have three, four, five, or even six, such areas on which the proper rotation of crops and fallow might be observed. In each of these areas the mark-man had his equal or proportionate share ; and this share of the arable completed his occu- pation or possession. * * * As the king is the king of the nation, not of the land, the land is rather the sign and voucher for the freedom of its possessor, than the basis of his rights. He possesses his land as being a full, free member of the community ; henceforth the possession of it is the at- testation, type and embodiment of his freedom and political rights." 1 Stubbs' Const. Hist. 48-50. As to the Feud, Prof. Stubbs' says:— " Feudalism, the comprehen- sive idea which includes the whole governmental policy of the French kingdom, was of distinctly Frank growth. [Note. The word feudum, fief or fee, is derived from the German word for cattle ; (Gothic, faihu; Old High German, flhu; Old Saxon, fehu; Anglo-Saxon, fcoh.) The secondary meaning being goods, especially money ; hence, property in general. The letter d is perhaps a mere insertion for sound's sake ; but it has been interpreted as part of a second root, od, also meaning CONVEYANCING IN PENNSYLVANIA. 81 lands in the kingdom. And no man can possess any part of it, but what has been derived, mediately or immediately, as property ; in which case the first syllable has a third meaning, that of fee or reward ; and the whole means property given by way of reward for service. * * The word feudum is not found earlier than the close of the 9th century. But neither the etymology of the latter word, nor the development of its several meanings can be regarded as certain.] The principle which underlies feudalism may be universal ; but the historic development of it, with which the constitutional history of Europe is concerned, may be traced step by step under Frank influence, from its first appearance on the conquered soil of Roman Gaul to its full development in the jurisprudence of the middle ages. In the form which it had reached at the Norman Conquest, it may be des- cribed as a complete organization of society through the medium of land tenure in which from the king down to the lowest landowner, all are bound together by the obligation of service and defence ; the lord to protect his vassal, the vassal to do service to his lord ; the defence and service being based on and regulated by the nature and extent of the land held by one of the other. In those states which have reached the territorial stage of development, the rights of defence and service are supplemented by the right of jurisdiction. The lord judges as well as defends his vassal : the vassal does suit as well as service to his lord. In states in which feudal government has reached its utmost growth, the political, financial, judicial, every branch of public administration is regulated by the same conditions. The central authority is a mere shadow of a name. [Note. As Feudalism, in both tenure and government, was, so far as it existed in England, brought full grown from France, it is not necessary here to trace in detail its growth in its native country. But it is important to note the change in the opinion of scholars on the subject, which has resulted from the recent investigations of German writers. The view accepted in the last century on the authority of Montesquieu, and generally maintained by the French writers, is that the conquests of the Franks were made by independent nobles, who had a powerful comitatus, and that the lands so acquired were divided amongst the comites, each of whom was bound by a special oath of fidelity to his lord, and held his land by the obligation of military ser- vice. Eichhorn, accepting this theory, distinguished the divisions of territory made before Clovis on the principle of free allotment, from those made by that king and his successors on a feudal principle ; the recipients of the latter grants were supposed to be the leudes, and amongst the leudes, a narrower class of comites bore the name of antrus- tions. The Merovingian Kingdom was, on this hypothesis,, a state. 82 THE LAW OF REAL ESTATE AND a gift from him, to be held upon feudal services. '* Toutfuit in luy, et vient de luy al commencement.'''' ' The words of feudal investiture are of gratuitous and pure donation, Dedi et concessit accompanied with actual delivery of possession. 2 It was a personal gift from personal motives, i. e., the ability of the feudatory to perform military service ; hence, not transferable in any way without the lord's consent. Sir Henry Spelman, after Cujas, defines a fief to be a right which the vassal hath in land, or some immovable thing of his lord, to use the same and take the profits thereof, heredi- tarily, rendering unto his lord such feudal duties and services as belong to military tenure ; the mere propriety of the soil always remaining to the lord. 3 built up on vassalage; the bond of union being the connection of classes in subordination to one another, not the common and imme- diate subjection to a sovereign government. This theory has been entirely refuted by Waitz, whose authority has been, in this work, regarded as conclusive as to the ancient German system. It was no irregular unorganized fabric, but a complete governmental system. Its conquests were the work of the nations moving in entire order; the comitatus was not the bond of cohesion; tne leudes were not comites ; all the people were bound to be faithful to the king ; the gift of an estate by the king involved no defined obli- gation of service ; all the nation was alike bound to military service ; the only comites were the antrustions, and these were few in number ; the basis of the Merovingian polity was not the relation of lord and vassal, but that of the subject to the sovereign. * * * It remains now to account for the growth of the feudal system. This is done by Waitz, on the theory of a conjunction and inter-penetra- tion of the beneficial system and the vassal relation, both being foster- ed by the growth of immunities. And this is the view adopted iu the text."] 1 Stubbs, p. 250, etc. 1 Y. B. 24 Edw'. Ill, 65. 2 For an example of a charter of feoffment, see Digby, Hist. Law Eeal Prop. 60. s The grantor was called the proprietor or lord, being he who retained the dominion or ultimate property of the feud or fee ; and the grantee, who had only the use and possession according to the terms of the grant, was styled the feudatory or vassal, which was only another name for the tenant or holder of the lands, 2 Bl. Uom. 53, CONVEYANCING IN PENNSYLVANIA. 83 II. The incidents of feuds were, A, subordination ; and, B, services. A. 1. Fealty in some cases. 2. Homage in others. 1. Fealty was fidelity. The oath of fealty was taken by the tenant with his hand on a book, standing, and without making reverence. It was that he would be faithful and true, etc. ' 2. Homage was personal allegiance. It was taken by the tenant " humbly kneeling on both knees, ungirt, with his head uncovered, holding his hands jointly together between the bands of his lord, who shall sit, etc.," and saying : " I become your man from this day forward of life and limb, and of earthly worship, etc." 2 This was the most honorable service. It was properly inci- dent to knight service only. 3 B. Services. To follow the lord to the war ; to do suit to his court in peace. The kind of service, in later times, fixed the kind of tenure. ' " Fealty is the same that fidelitas is in Latin, and where a freeholder doth fealty to his lord he shall hold his right hand upon a book and shall sav thus : Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear for the lands which I. claim to hold of you, and that I shall lawfully do to you the customs and ser- vices which I ought to do, at the terms assigned, so help me God and his Saints. And he shall kiss the book. But he shall not kneel when he maketh his fealty, nor make any such humble reverence as aforesaid in homage." Co. Litt. p. 67b ; Lib. ii, c. 2, sec. 91 ; Ligby, Hist. Law Real Prop., p. 74, n. 2. 2 " Homage is the most honorable service, and most humble service of reverence, that a frank tenant may do to his lord. For when a tenant shall make homage to his lord, he shall be ungirt, and his head uncov- ered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say thus : I become your man from this day for- ward of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear to you faith for the tenements that I claim to hold of you, saving the faith that I owe unto our sovereign lord, the king, and then the lord so sitting shall kiss him." Co. Litt. 64a; Digby, Hist. Law Real Prop., 73. 3 2 Bl. Comm. 53, note by Chitty. 84 THE LAW OF REAL ESTATE AND III. Duration. At the first introduction of feuds they were held at the will of the lord ; then they become certain for one o*r more years ; then they began to be granted for the life of the feudatory. But they were not yet hereditaiy; though frequently granted by the favour of the lord to the children of the former possessor ; till in process of time it became unusual, and was therefore thought hard, to reject the heir, if he were capable to perform the services. But the heir when admitted to the feud which his an- cestor possessed, used generally to pay a fine or acknowl- edgment to the lord in horses, arms, money and the like for such renewal of the feud; which was called a relief, because it raised up and re-established the inheritance. This relief was afterwards, when feuds became absolutely heredi- tary, continued on the death of the tenant, though the original foundation of it had ceased. 1 Tenures were classified according to the services rendered. The services in respect of their quality were either free, such as a freeman might render, or base such as were unworthy of a freeman. In respect of their quality and the time of ex- acting them, they were either certain or uncertain. 2 The principle tenures were, knight-service, free-socage, villein-socage and villenage. 1 2 Bl. Com m. 55-56. "This [relief ] was confounded with the custom of rendering heriots on the death of the man or vassal, which prevailed before the conquest. The origin however of the practice of rendering heriots and of paying reliefs was different. The heriot probably origi- nated in the practice of returning to the princeps the horse or the armour with which he had furnished the comes ,• it was of purely Teu- tonic origin. The relief originated with the practice of regarding lands as benefices, to be held of the grantor. The admission of the heir as tenant in his ancestor's place, was by the feudal theory, a favour to be bought with a price, but which could not, if the proper steps were taken, be withheld by the lord. It was thus entirely a result of the con- ception of tenure." Digby, Hiat. Law Beal Prop. 39, 40. 3 2 Bl. Comm. 61. CONVEYANCING IN PENNSYLVANIA. 85 Knight-service, was esteemed the .most honourable; the services were uncertain and free. The incidents of knight-service were — 1. Aids to ransom the lord's person, if taken prisoner ; to make the lord's eldest son a knight ; this could not be demanded till the heir was fifteen years old ; to marry the lord's daughter by giving her a suitable* portion. 2. Relief, the dues which the heir of the tenant was bound to render to his lord on being admitted tenant and rendering homage. 3. Primer seisin, incident to king's tenants in capite. It was the right which the king had when any of his tenants in capite died seised of a knight's fee, to re- ceive of the heir (provided he were of full age) one whole year's profits of the lands, if they were in im- mediate possession ; and half a year's profits if the lands were in reversion, expectant on an estate for life. 4. If the heir was under twenty-one, being a male, or fourteen being a female, the lord was entitled to the wardship of the heir and was called the guardian in chivalry. This wardship consisted in having the cus- tody of the body and lands of such heir, without any- account of the profits, till the age of twenty-one in males and sixteen in females. 5. Marriage, the power which the lord or guardian in chivalry had of disposing of his infant ward in matri- mony. 6. Fines for alienation, whenever the tenant had occasion to make over his land to another. 7. Escheat, the determination of the tenure from the ex- tinction of the blood of the tenant, by either natural or civil means ; as if he died without heirs of his blood, 86 THE LAW OF REAL ESTATE AND or if his blood was currupted by the commission of f treason or felony. Escuage differed from knight service in nothing, but as a compensation differs from actual service. 1 Free socage 2 — services certain and free. Villein socage — services certain and base. Villenage— services uncertain and base. 3 None ever existed in Pennsylvania except common socage. So by express provision in Penn's charter. The incidents of socage tenure were — 1. The holding of a superior lord, whose estate was a seig- nory. 2. The feudal return, rent or services, always fealty, if nothing more (no homage). 3. Aids, but always certain, fixed by statute. 4. Relief, double rent the first year. 5. Primer seisin, only due by tenants in capite. 6. Wardship did not go to the lord, but to the next of kin (who could not inherit). At fourteen years of age, 1 See 2 Bl. Comm. 63 seq ; see also Digby, Hist. Law Real Prop. pp. 40,41,42. ! " The derivation of the word has given rise to much controversy. The generally accepted derivation is from ' soc ' an old word meaning a plowshare, the socage tenant being bound to agricultural service. But this was far from being universally the case ; probably in early times it was the exception rather than the rule. There can be little question that the word is connected with soca, socn, 'jurisdiction' from the Anglo-Saxon secan ' to seek.' The free landholders had probably by the time of the Conquest, been brought nearly universally into the condition of persons owing suit or attendance at the court of some great man. Thus the sochemanni are probably the free suitors or at- tendants [secta, Kequor) of the lord's court, who came in process of time to be regarded as tenants holding in socage, by the tenure of such suit or service. These tenants were usually brought under the obliga- tion of rendering some fixed rent or service, and hence the later con- ception of the essential characteristics of socage tenure. See Stubbs, Const. Hist. i. p. 273 ; " Digby, 45 n. 1. 3 For an account of these different tenures, see 2 Bl. Comm. 62 seq. CONVEYANCING IN PENNSYLVANIA. 87 the infant could choose his guardian and call the for- mer guardian to account. 7. Marriage. The guardian was bound to account. 8. Fines for alienation, by tenants in capita. 9. Escheats, from felony or want of heirs. At the restoration of King Charles II., in 1660, a statute was passed abolishing all tenures by homage, knight-service and escuage, all wardships, primer seisin, aids, marriage, fines for alienation ; and turning all tenures (with a few unimportant exceptions) into free and common socage. This is the statute of 12 Car. II, c. 24. 1 For surrendering these fruits of tenure, the parliament conferred upon the king an annual income of £100, 000. 2 This statute left as incidents of free socage : 1. The feudal relation, the seignory of the lord. 2. Rent and fealty. 3. Relief, double rent the first year. 4. Escheat. On March 4, 1681, Penn's charter was granted by King Charles II. 3 It grants the province to Penn, his heirs and as- signs, to be held " of us, our heirs and successors, as of our Castle of Windsor in the county of Berks, in free and com- mon socage, by fealty only for all services, and not in capite or by knight-service," reserving annually two beaver skins and one-fifth of all the g61d and silver, etc.* Power is given to Penn. his heirs and assigns, to grant lands, " to be held of him the said William Penn, his heirs and assigns, as of the said seignory of Windsor," etc. 5 1 The 8th and 9th sections of this statute relating to the appoint- ment of a testamentary guardian by the father of an infant are in force in Pennsylvania. Rob. Digest. *312, 323, 2d ed. 2 1 Steph. Eng. Const. 421. 3 5Sm. Laws, 406. * Sec. III. 5 Sec. XVII. 88 THE LAW OF REAL ESTATE AND Power was given to erect manors, with courts baron ; this was never exercised. There were lands laid out by the proprietary called manors, but they were not manors in a feudal sense. The early laws of escheat in Pennsylvania were in accord- ance with the doctrines of tenure ; where the tenant of land died without known heirs, his land escheated to the imme- diate landlord of whom the same were held. The tenure prescribed in all the early colonial charters or patents of this country was free and common socage. 1 1 New England, 1620 ; Massachusetts, 1629 ; Virginia, 1606 ; Maine, 1639; Rhode Island, 1663; Connecticut, 1662; Maryland, 1632; New York (act of Assembly), 1691; Pennsylvania, 1681; Carolina, 1662; Georgia, 1732. See 2 Shars. Bl. Coinm., 77, note by Sharswood. CONVEYANCING IN PENNSYLVANIA. 89 CHAPTER VII. ESTA TES—Q UANTITY OF, MEASURED B Y POSSIBLE D URA- TION— FREEHOLDS— OF INHERITANCE, NOT OF INHER- ITANCE—INHERITANCE ABSOL UTE— FEE-SIMPLE— THE WORD "HEIRS" NECESSARY TO CREATE— EXCEPTIONS, FINES, COMMON RECOVERIES, &c, EXECUTORY CON- TRACTS TO CONVEY, WILLS— ■'< HEIRS" A WORD OF LIMITATION DEFINING QUANTITY OF ESTATE— RE- STRAINTS UPON ALIENATION. " An estate in lands, tenements and hereditaments signifies such interest as the tenant has therein." ' Estates are con- sidered with reference to — 1, quantity ; 2, time of enjoy- ment ; 3, number and connection of the tenants. 2 The quantity of an estate is measured by its possible dura- tion, e. g., to one and his heirs, or, to one for a year. The division of estates with reference to their quantity, is into estates of freehold and those less than freehold. The meaning of the word freehold is now more restricted and technical than it once was. It has now a secondary meaning. Anciently freehold, or frank tenement, was " the possession of the soil by a freeman," that is by service or tenure which was free, as distinguished from tenure or ser- vice which was base, or villein tenure. The villein held his possession actually or theoretically at the will of his lord. His possession of the land was precarious, and was deemed to be the possession of his feudal superior. 3 The freeholder, however, had at least an estate for his own life, and he could defend his possession against his lord. He was a person of some consequence. He was entitled to vote at the election of a knight of the shire. He was a member of the lord's court- 1 2 Bl. Com. 103. '' Cruise, Blackstone, & Kent. 3 2 Bl. Com. 97. 90 THE LAW OP REAL ESTATE AND baron, one of the pares curios, and was entitled to be sum- moned on juries in the king's court, 1 and his estate was trans- ferred to him by livery of seisin. But in subsequent times the word freehold lost part of its significance, and came to be used as a measure of the quantity of estate a man might have in things real. So that the definition of a freehold estate now is, " any estate of inheritance or for life in things real, held by free tenure." Blackstone defines it as " such an estate in lands as is conveyed by livery of seisin ; or, in tenements of an incorporeal nature, by what is equivalent thereto." Freeholds are divided into those of inheritance and not of inheritance, the smallest estate of freehold being an estate for life. Freehold estates of inheritance are divided into inheritance absolute, and limited. A freehold estate of in- heritance absolute is an estate in fee simple. '' Tenant in fee simple is he which hath lands, tenements and hereditaments, to hold to him and his heirs forever." 2 It is called Zee-simple, The word "fee," like freehold, has now a technical, secondary meaning. Anciently it meant feud, or fief (French), from which word it is derived, in con- tra distinction to allodium, as to say that a man is seised " in his demesne as of fee /" in his demesne, that is his property, but as of fee, that is holden of a feudal superior ; 3 and sometimes, anciently, it was used to express the seignory or interest of the feudal superior in the land, as in the com- mon phrase, very frequent in early Pennsylvania deeds, '' the chief lord of the fee." * But the technical meaning of the word in modern conveyancing (using modernin a large sense, for it was the ordinary meaning in Littleton's days, and he died in 1482) is inheritance, and in this sense it may be said 1 1 Cruise Dig. 61 seq. 2 Litt. sec. I. 8 2 Bl. Com. 105. 4 Co. Litt. 1, b. CONVEYANCING IN PENNSYLVANIA. 91 of the king, that he is seiBed in fee, though he holds of no superior. 1 So that by estate in fee, is meant an estate of in- heritance. 2 Fee-simple that is pure, simple, unconditional, absolute. The inheritance is to descend to the heirs of the tenant ac- cording to law, without any condition or qualification. Fre- quently in use the word " simple " is dropped, or left to be implied. An estate in fee, is generally understood by law- yers to be a fee-simple. A fee-simple is the largest estate which a man can have in lands. It is the aggregate of all smaller estates and inter- ests. All other estates and interests are derived out of it, 3 and merge into it. Omne majus continet in se minus. It is called an estate of inheritance absolute, because the tenant has it to hold to him and his heirs forever. Therefore an estate in fee-simple is freely descendible under the law to the heirs generally, and not to any particular kind or class of heirs. At common law, the word " heirs " is necessary to create a fee-simple by conveyance.* Though the intent of the parties be ever so clearly expressed in the deed, yet, at common law, a fee cannot pass without the word heirs. 5 This rule •vas founded on principles of feudal policy, and has become now technical. A feudal donation was stricti juris, in con- sideration of the personal abilities of the tenant, and his competency to render military services ; and it was conse- 1 Co. Litt. 1, b. ' In the language of the English law, the word fee signifies an estate of inheritance as distinguished, from a less estate; not as in the lan- guage of the feudists, a subject of tenure as distinguished from an al- lodium. Allodium being wholly unknown to English law the latter distinction would, in fact, have no meaning. Challis, Heal Prop., p. *167 ; Digby, Hist. Law Ileal Prop., 59, n, 70, n. 3 Co. Litt. 1,6. 4 Gray v. Packer, 4 W. & S. 18. 5 The word " heirs " may appear in any part of the deed, not neces- sarily in connection with the words of grant. 4 Kent. Com. 5. 92 THE LAW OF REAL ESTATE AND quently confined to the life of the donee, unless there was an express provision that it should go to his heirs. 1 A deed to a man (an Indian chief) "and his generation, to endure as long as the waters of the Delaware should run," was agreed to pass a life estate only. 2 There seems, in some of the later cases, a disposition to relax this rule, even in executed conveyances inter vivos. In Freyvogle v. Hughes, 3 a conveyance was made to a trustee and his heirs, for the separate use of a married woman, no words of limitation being used as to her estate, and the Supreme Court held that the limitation of the legal estate was enough to give her a fee, that being the evident intent of the grantor. Again, in Bingwalt v. Bingwalt, 4 a convey- ance was made of real and personal property, to the grantor's mother, during his life, remainder to his lawful issue if he had any, and in default of such issue then to " his surviving brothers or their legal representatives.'''' Held that the sur- viving brothers took estates in fee. As Judge Gordon said in Mergenthaler's Appeal, 5 " it may now be regarded as set- tled, that even technical words of limitation found in an ex- ecuted conveyance, may be so qualified by the context as to make them conform to the intention of the grantor." There are many exceptions to the rule, and an estate of inheritance frequently passes without the use of the word heirs. A fee is implied sometimes from the nature of the con- veyance used. A fine will pass a fee without words of in- heritance, because a prior feoffment in fee is implied. So will a common recovery, because the recoveror is supposed to have been disseised of an estate in fee. ' 4 Kent. 6. " Foster v. Joice, 3 Wash. U. U. Rep. 498. 5 6 P. F. Sm. 228. ' Leg. Int. 1885, p. 80. ' 15 W. N. U. 442. CONVEYANCING IN PENNSYLVANIA. 93 So a fee is sometimes implied from the relations of the parties. A release by way of extinguishment will convey a fee without words of inheritance, as of a common, 1 or where one disseised releases his right to the tenant in possession, 2 or a release of dower by a widow. 3 A release from one co-parcener or joint tenant to another, or a partition between them, passes a fee without words of " inheritance, because the releasee takes a separate interest in his part of the land in the same estate in quantity which he before had in common. 4 In equity, contracts to convey, without using the word heirs, are held to mean and call for a conveyance in fee, where the consideration shows that it was intended, 5 because equity regards the substance and not the form. But it must clearly appear that the agreement or contract was executory, and looked to further deeds by the parties to complete it, for if the contract amount to a deed, the strict rule of law is applicable. 6 "Where in a deed a reference is made to some other instru- ment which contains words of inheritance, though the deed itself does not, an inheritance passes. If a man have land conveyed to him by deed in fee-simple, and he conveys to another the same estate that was conveyed to him by that deed, the fee passes.' In wills the most common exception to the rule is found. Speaking of this rule Blackstone says, " It does not extend to devises by will." " This was not accurate at the time he wrote. It is rather a relaxation of the application of the rule 1 Co. Litt. 280a. 8 Shinn p. Holmes, 1 Cas. 142. 3 Gray v. McCune, 11 Har. 447. 4 Fulton v. Moore, 1 Cas. 476; Co. Litt. 9b; 4. Kent Com. 7. 5 Defraunce v. Brooks, 8W.&S. 67. 6 Gray v. Packer, 4 W. & S. 18; Phillips v. Swank, 21 W. N. C. 561. ■See also to same point Ogden v. Brown, 9 Gas. 248. ' Lytle ». Lytle, 10 Watts, 260. 8 2 Bl. Com. 108. 94 THE LAW OF REAL ESTATE AND than an exception to it, for in construing a will the principal effort of the court is to arrive at the intention of the testator, no matter how that intention be expressed ; and this inten- tion is allowed to take the place of technical words. Still, in all wills of lands, made in Pennsylvania prior to the Act of 1833, which 1 will mention presently, there must, in order to pass a fee, be words of inheritance or some expression which is considered equivalent to them. 1 " The difference in this respect between a deed and a will is a familiar one. The technical words of a devise sometimes yield to the apparent intent, in consideration of the frequent inability of dying men to command professional assistance ; but the technical words even of a testator are to have their legal effect when they have been used without qualification ; and it is only when they appear from the context to have been used in a differ- ent sense, that the apparent intent is suffered to prevail. * * * * But the parties to a written contract having acted by the advice of counsel, or standing chargeable with supineness if they have not, are entitled to no indulgence on the score of ignorance, and cannot have the legal mean- ing of their words perverted to let in what they may allege to have been their actual intent." 2 Whenever, in a will, on a fair construction of the whole instrument, it appears to be the intention of the testator to give an estate in fee, such an estate will pass without the use of words of inheritance. 3 But there must be some intention shown (in cases prior to the Wills Act of 1833) which will be equivalent to the tech- nical words. If the testator prior to that act gave an estate without words of inheritance, and without any expressions of any kind showing an intention to give more, the devisee took but a life estate.* 1 Ooyle's Appeal, 2 Nor. 242. 2 C. J. Gibson, in Ellmaker v. Ellmaker, 4 Watts, 90. " Fulton v. Moore, 1 Cas. 474 ; Grove's Estate, 8 P. F. Sin. 429; Geyer v. Wentzel, 18 P. F. Sm. 84. * Clayton v. Clayton, 3 Binn. 476 ; Steele v. Thompsou, 14 S. &R. 84. CONVEYANCING IN PENNSYLVANIA. y& In some States this common law rule requiring the word "heirs" in deeds to convey a fee simple, has been abolished by statute. Virginia, Kentucky, Mississippi, Missouri, Ala- bama and New York. 1 In others the rule has been abolished as to wills only, and a devise without words of inheritance impqrts a fee. So in Pennsylvania, New Jersey, North Caro- lina and Tennessee. Our statute of 8 April, 1833, sec. 9 (Wills Act), 2 provides that all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by limitation, or otherwise in the will, that the testator intended to devise a less estate. 3 This section does not apply to wills executed before the passage of the act, although the testator died afterwards. 4 Cases since the act of 1833 upon wills which were made before its passage of course become more rare every day, but they do happen. 5 Deeds to corporations should have the word " successors " instead of heirs, though this is not strictly necessary for they lake a fee without such words because they are perpetual. Though an estate in fee simple is one which a man has to hold to him and his heirs, yet he alone has all the estate. It cannot be said that his heirs have any estate for he has no 1 In England the common law has been changed by statute. § 51 of the Convey.mcing act of 1881 enacts that in deeds executed after 31st December, 1881, it shall be sufficient in the limitation of an estate in fee simple to use the words in fee simple without the word heirs. ChallisonR. P. * 171. 2 Purd. Dig. " Wills," p. 1711, pi. 10. 3 A testator after directing the payment of his debts, provided as follows: " Then after the allowance of the one-third of my property to my widow, my will is that all my children share and share alike." Held, that under the act of April 8, 1833, this provision constituted a devise in fee of one-third of testator's real estate to the widow. White v. Commonwealth, 14 Out. 90. * Mullock v. Souder,5 W. & S. 198. 6 See Smith i>. Coyle, 1 W. N. 0. 370. 9b THE LAW OF REAL ESTATE AND heirs till he is dead. Nemo est heres viventis, — a living man has no heirs. A conveyance to the heirs of A., he being alive, is void for uncertainty. 1 The word '' heirs " in such case is a word of limitation and denotes the quantity of estate which the tenant has in the land. 2 It is not in every case that an estate to a man and his heirs is an estate in fee. Where land is granted to a man and his heirs to hold for the term of fifty or any number of years, he does not take a fee, but a term, because his estate cannot possibly last longer than the term of years for which it is limited. So an estate to a man and his heirs to hold so long as A. shall live. In such case the grantee takes but an es- tate for the life of A., which is an estate pur autre vie, and not a fee. 3 The chief incident and attribute of an estate in fee- simple is the power of the owner to alien or transfer it. And this attribute is so inseparably a part of the very estate itself that it cannot in general be provided that the owner of an abso- lute fee-simple cannot alien it, but all general provisions and restrictions upon alienation are void, because they are said to be repugnant to the nature of the estate. 4 Alienatis rei prefertur juri accrescendi. 5 This doctrine is just the contrary of the feudal one which at first forbade and afterwards dis- couraged alienation of lands, while it recognized and per- mitted subinfeudation. The most material change was made by the statute Quia Emptores (18 Edw. I) which permitted tenants to alien (subject to the payment of a fine for license) but forbade subinfeudation. This last restraint upon free alienation (i. e. the fine) was abolished by the statute of 1 Morris v. Stephens, 10 Wr. 200. 2 Norris v. liawle, 16 W. N. C. 240; Cockin's Appeal, 1 Aimer. 26. 3 Berridge v. Glassey, 2 Amer. 442. 4 Walker v. Vincent, 7 Har. 371. See, also, Reifsnyder v. Hunter, 7 Har. 41; Roosewelt t>. Tlmrman, 1 Johns. Ch. 228; Brothers v. Mc- Curdy, 12 Oas. 407 ; Pepper's Appeal, 21 W. N. C.388. 5 Broom's Leg. Maxims, 330, CONVEYANCING IN PENNSYLVANIA. 97 12 Ch. II, c. 24, although long before that statute the law had been settled that no restraint upon alienation could be an- nexed to an estate in fee. There may be a partial restraint for a life in existence at the time of making the deed or as to a particular person. 1 There are persons who, if they have an estate in fee-simple, cannot convey it — as infants, lunatics, habitual drunkards — but this is on account of personal disability. A married woman cannot convey without her husband and separate acknowledgment. So corporations cannot hold lands unless specially authorized to do so by their charter. Nor aliens at common law, but this is changed in Pennsylvania by statute, and they may now take and hold by devise or descent any quantity of land, and may purchase and hold not exceeding five thousand acres. 2 The owner of land in unencumbered fee- simple has the right to do as he pleases upon it. He may build ad ccelum, dig as deep as he can get, sell, mortgage, etc., at his pleasure. He is subject to certain rights — public and private. 1. Public. — He must pay taxes duly assessed, submit to police regulations, and be subject to the right of the Common- wealth to take his land for public use, which is the right of eminent domain. These are political rights. 2. Private. — He must so use his own as not to injure an- other. Sie utere tuo, ut alienum non laedas. He owes no duty to a trespasser, and if one comes upon the land with- out an invitation or license from the owner and is injured there he cannot claim damages from the owner. 8 1 McWilliams v. Kisly, 2 S. & B. 513. 2 Purd. Dig. 84, pi. 1 & 7. 3 Huffman v. Musgrove, 16 W. N. C. 270. 98 THE LAW OF REAL ESTATE AND CHAPTER VIII. INHERITANCE LIMITED— QUALIFIED, BASE OR DETER- MINABLE FEES— CONDITIONAL FEES AT COMMON LAW —ST A TUTE DE DONIS— FEES-TAIL— HO W ORE A TED— LIM- ITATION TO "ISSUE" — DEFINITE AND INDEFINITE FAILURE OF ISSUE— HOW BARRED— T ALT 'ARUM'S CASE —COMMON RECOVERIES— FINES— IN PENNSYLVANIA ESTATES TAIL DESCEND AS AT COMMON LAW— METH- ODS OF BARRING ENTAILS IN PENNSYLVANIA— SHER- IFF'S SALE, COMMON RECOVERY, FEE SIMPLE DEED UNDER ACT iff JUNE, 1799— ACT OF 23 APRIL, 1855, PRO- HIBITING CREATION OF ESTATES TAIL— ACT 21 MAY, 187/,, RELATING TO IMPLIED OR SUPPOSED ENTAIL- MENTS. An estate of inheritance absolute is an estate in fee-simple, which was the subject of the last lecture. A limited estate of inheiitance is one which is clogged and confined with con- ditions of any sort. Following the division and classification of Blackstone and Kent 1 there are two sorts of limited fees: 1. Qualified, base 1 Challis classifies estates of inheritance as follows : 1. Fee simple, the most extensive in quantum, and the most abso- lute in respect to the rights which it confers of all estates known to the law. 2. Fees subject to some qualification of a kind permitted by law whicli gives to the inheritance a more restricted character. Such qualifications may be of three kinds : a. The succession of the heirs instead of enduring forever may be liable to be cut short by the happening of a future event, which limitation gives rise to a determinable fee. The event must be of such a kind that it may by possibility never hap- pen at all, for it is an essential characteristic of all fees that they may by possibility endure forever. The examples cited from Preston {infra) may be taken as examples of determin- able fees. See, also, Challis, * 201. See, also (infra) estates upon condition where the difference between determinable limitations and limitations upon condition is explained. ' b. The heirs to whom the inheritance can descend may be re- stricted to the heirs of the body of a specified person or per- CONVEYANCING IN PENNSYLVANIA.' 99 or determinable fees. 2. Conditional fees, afterwards fees- tail. 1. Qualified, base or determinable fees. These are such as have a qualification subjoined to them, and they must come to an end when the qualification is at an end. 1 The estate may continue forever, but it is liable to be determined by some act or event circumscribing its con- tinuance or extent. For example, a limitation to a man and his heirs so long as St. Paul's church shall stand ; or to a man and his heirs, tenants of Dale ; or to a man and his heirs so long as the waters of the Delaware shall run — these are all base fees. They are fee3 because they may possibly endure 1 2 Bl. Com. 109. sons, which limitation gives rise to a conditional fee at com- mon law, and to a fee-tail under the statute De Donis. c. The heirs to whom the inheritance can descend may be re- restricted to a particular class, which limitation gives rise to a qualified fee-simple. The word class is to be taken in a peculiar sense as meaning the heirs of any ancestor. An example of this kind of fee is the limitation to a man and the heirs of any ancestor in the paternal line whose heir lie is. Thus, where a feoffee who is seized in fee simple subject to a condition to enfeoff " many men "jointly, and all of them die before any enfeoffment has been made pursuant to the condition, the feoffment should be made to the heir of the last survivor, habendum to him and the heirs of the afore- said survivor. If the heir of the last survivor should be his son there would be a limitation to a man and his heirs ex parte paterna so as to exclude altogether from the succession the heirs ex parte materna. 3. Base fee, a fee descendible to the heirs general upon which sub- sists a remainder or reversion in fee simple. Here the descent to the heirs generally distinguishes it from a fee-tail, where the descent is to the heirs of the body, and the existence in expectancy upon it of a remainder or reversion distinguishes it from the common law fees. The conditions laid down in this definition can only bo fulfilled by the conversion of n fee-tail into a fee descendible to the heirs general by some method which does not destroy the remainder or reversion previously subsisting upon the fee-tail. For. no fee descendible to the heirs general which arises by mere limitation can have subsisting upon it any remainder or reversion. See Challis on R. P. pp. * 167-197-209-215-230-264. 100 THE LAW OP KEAL ESTATE AND forever, but they are base " because their duration depends on the occurrence of collateral circumstances which qualify and debase the purity of the title." 1 King Henry III. granted to Alexander, King of Scotland, and to his heirs, Kings' of Scotland, the manor of Penreth and Sourby, and Alexander died, leaving only daughters, of which one was married to the Earl of Hunt, but not having any heir who was King of Scotland, and for that cause the king recovered seisin, and the co-heiresses of Alexander were excluded. 2 It is one of the essential qualities of an estate in fee that it may continue forever. So an interest granted to a man and his heirs, but so qualified that the continuance of the same is bounded by a life or lives, is not a fee, for it cannot continue forever. It is a life estate. But the mere possibility that the interest may continue forever, will make it a fee to all intents. Where tenant in tail aliens all his estate his grantee takes a base lee, liable to be defeated on his death by the entry of the heir in tail. 3 There are many kinds of base fees, created in different 1 4 Kent 9. Preston gives eighteen instances of determinable fees. Limitation to a man and his heirs, 1. Peers of the realm. 11. As long as A. and his heirs 2. Kings of Scotland. shall pay £20 annually to B. 3. Lords of the manor of Dale. 12. As long as St. Paul's shall 4. Tenants of the manor of Dale. stand. 5. While a tree shall stand. 13. Until a sum uncertain shall be 6. While a person (not the donee) paid by a certain person. shall have heirs of his body. 14. Until an act shall be done. 7. Till the marriage of a certain 15. Until a minor shall come of person shall take place. age. 8. Till one shall go to Rome or 16. Until legacies be paid. return from Rome. 17. Until they shall have made a 9. Till debts be paid. lease. 10. Till default be made in the 18. Until he should otherwise dis- payment of debts. pose of the same. 1 Preston on Estate, 431. See Ohallis R. P. * 201, for examples. 2 Harg. note to Co. Litt. 27a. 3 Waters v. Margerum, 10 P. F. Sm. 39. CONVEYANCING IN PENNSYLVANIA. 101 X *** '" i ways, and depending upon all kinds of contingencies.. * You are not prepared now to understand these, until you have learned of conditions, remainders and reversions. If the event marked out as the boundary to the time of the continuance of the estate becomes impossible, the estate ceases to be determinable, and changes into a fee-simple absolute. Thus, if an estate be granted to A. and his heirs, until B. marries, and B. dies unmarried, A has a fee-simple. But no man, not even the king, could create a new kind of inheritance different from -that prescribed by law ; that is, could provide that an estate should descend to a line of heirs other than that which the law directed. So if an estate were conveyed to a man and his heirs male, the law would not allow such an inheritance to exist, but because all deeds are to be construed most strongly against the grantor, it gave effect to the word " heirs," and rejected " male," and the estate conveyed was construed a fee-simple.' And if a man seised of lands in gavelkind, gives the same to one and his eldest heir, he cannot alter the customary descent (which was to all the sons), but the law rejects the word " eldest;" 2 and so in borough english, where the descent is to the youngest son. The owner of a base fee has all the power of an owner in fee-simple. His dominion over the land in his possession is in no wise different. Of course, he can convey no more than he has — Nemo potest plus juris in alium transferre quarn ipse habet. 3 2. • Conditional fees, afterwards fees-tail. At common law, the lands of a tenant in fee-simple de- scend to his oldest son, to the exclusion of all other heirs. The oldest son is the heir. If he have no son, or issue of 1 Co. Litt. 27a. Contra, by will, the law supplied the words " of his body." 2 Co. Litt. 27a. 3 1 Preston, 436. 102 THE LAW OF REAL ESTATE AND a son, then the estate descends to all his daughters in equal shares. If he have no issue whatever, the descent is to his brothers and sisters and their issue, in due order, the males being preferred before females, and the eldest being preferred over the others in the same degree of consanguinity. It is said that originally in England the descent of lands was con- fined to lineals, but that in the time of Henry II (1154-1189), about one hundred years after the conquest, collateral rela- tions were admitted to succeed as heirs. Hence, if it were wished to confine the inheritance to the offspring of the donee, it became necessary to limit the estate expressly to him and the heirs of his body. Such an estate could not de- scend to any collateral heirs, but was expressly restrained to the lineal heirs, and upon failure of lineal heirs, the estate reverted to the donor, there being no heir of the tenant who could inherit it. The gift might be still further restrained so as to exclude some lineal heirs, as to a man and the heirs male of his body, or heirs female of his body ; or still more restricted yet, to one and the heirs male of his body by his present wife. In such cases the estate could only descend to the special class of heirs named (and no others could be heirs) and oh fail- ure of such special heirs the land would revert to the donor. This was held to be a conditional fee, and the condition was said to be that if the donee died without such lineal heirs, the land should revert to the donor. Prior to the Statute De ' Bonis (of which presently) these estates differed in no way from other conditional fees. The descent (so long as there were lineal heirs) was the same, and the power of the doifee to alien them was like his power over his lands in fee-simple, subject to the rights of the donor and his heirs to the reversion of the lands, on failure of lineal issue. But the birth of issue was held to be a performance of thecondition, and atter that the power of the tenant over the land, and his estate in it, was greatly enlarged. 1. He might CONVEYANCING IN PENNSYLVANIA. 103 alien in fee- simple, clear of the reversion of the donor. 2. He was liable to forfeit it for treason. 3. He could encumber it with rents, commons and other charges. Still, it was not an absolute fee-simple, for if the tenant died without alienation in his lifetime, none but lineal heirs could inherit it, on failure of which the land reverted to the donor. The power of alienation in fee simple gave to the tenant of the land the opportunity to entirely clear his land from the restriction of the conditional gift, for he might after birth of issue convey his land to another in fee-simple, and receive it back again in fee- simple, and after that all the qualifica- tions and conditions of his original estate were gone. And it was usual for tenants of such estates to do this. The nobility, however, who wished to perpetuate their estates in their own families, in order to put a stop to the prac- tice of defeating these conditional fees, and the changing of them into fees-simple absolute, procured a statute to be en- acted at the second Parliament held at Westminster, in the reign of King Edward I, which is sometimes called, from that circumstance, the statute Westminster 2, c. 1, and some- times statute 13 Edwaid I, c. 1, but generally the statute De Denis conditionalibus, passed in the year 1285.' This statute, after reciting that it seemed hard to the givers of lands that their will expressed in the gift was not ob- served, and that issue were disinherited and donors barred of their reversions, which was directly repugnant to the form of the gift, enacted " That the will of the giver, according to the form in the deed of gift manifestly expressed, should be thenceforth observed, so that they to whom the land was given under such condition should have no power to alien the land so given, but that it should remain unto the issue 1 1 may say, in passing, that this statute was in force in Pennsyl- vania, except so far as altered by our Acts of Assembly. Rob. Dig. Brit. Stat. p. *204. 104 THE LAW OF REAL ESTATE AND of them to whom it was given after their death, or should revert unto the giver or his heirs if issue failed," &c, and gave a form of writ as a remedy in cases where it was re- quired. This statute put an end to the conditional fees, and it was thereupon held that the donees of such estates should have no longer a fee-conditional, as before the statute, but a -feodum talliatum, or fee cut down, a mutilated inheritance irom which the heirs general were cut off. ' The statute, by establishing perpetuities, or inalienable estates, was well calculated to increase tbe power of the nobility ; and it was found impossible to obtain a repeal of it, although it was many times attempted by the Commons, but the Lords would not consent. The results of the statute were as unpalatable to the Crown as to the Commons, for the estates of the tenants in tail were not forfeitable except for the life of the tenant. The person who conveys land to be held in fee-tail is called the donor, the person to whom the conveyance is made is called the donee-in-tail. Where the tenant in fee-simple of lands granted lands in fee-tail, he had still an estate in the lands remaining in him, which was called the reversion. But if he granted his land in fee-simple he had no estate left ; he had if the fee were a determinable or qualified fee a possibility of reverter, which is not an estate, but I am to teach this fully hereafter, I now speak of the estate of the tenant in tail. Estates tail are divided according to the heirs who may in- herit, into general — all the heirs of the body, and special — to Ihe heirs of the body of a man and a particular woman ; and further into tail male and tail female. 2 ' French, tailler, to cut, hence called fee-tail. 2 Challis makes the following classification of Fees Tail (pp. *233-4 ; 237-8.). CONVEYANCING IN PENNSYLVANIA. 105 The principal incidents of this estate were that the tenant in tail was dispunishable for waste, the wife was endowed or Tail General; when the heir per formam doni is designated as the heir of the body simply, and therefore coincides with the heir general in the direct line of descent. Tail Special, or tail male and tail female ; when the heir per formam doni is restricted to the heir male, or the heir female, and therefore does not necessarily coincide with the heir general in the direct line. ® s ^ n © S3 a o P -*J -J-3 o £ O M %. '[-I a; o CO o -t-3 w -M CS s^ CD o *d S-t . J- a 4J "So V 3 O c s^ .2 +3 o '~l '§ m u CO CD o '3 a P CO o "" o £ a "3) g O .£ O o . Pearsoll, 8 W. & S. 3S. 3 See Recovery Record in Court of Common Pleas, Mr. E. K. Price. 4 Ransley v. Stott, 2 Cas. 129. 5 Act 1 April, 1874, Purd. Dig., " Errors and Appeals," pi. 2, p. 702. "Purd. Dig. 721, pi. 3. 7 Similar statute in England, 3 & 4 W. IV., by which also fines and recoveries are wholly abolished. Challis, *253. CONVEYANCING IN PENNSYLVANIA. 115 recorder's office. By the Act of 27 March, 1865, 1 the motion to enter the deed among the records of the court may be made either by the grantor or the grantee. It has been held that the effect of deeds under this act is precisely the same as that of common recoveries; 2 indeed, the words of the act are so plain and positive as to admit of no other construction. The second section provides : " And such conveyance and confirmation shall be good and available to all intents and purposes against any person or persons claim- ing by virtue of such estate tail, or in remainder or reversion after such estate tail, as such grantor, bargainor or vendor might or could have debarred by any mode of common re- covery or by any ways and means whatsoever previously to such grant, bargain, sale or conveyance, any law or usage to the contrary notwithstanding." 3 But to have this effect, the deed itself must be a valid deed Where there is a rad- ical defect in the deed itself, such as to render it void or voidable, the formalities prescribed in the act cannot give it force or vitality. And there is this difference between a deed and a common recovery, that a deed is matter in pais, that is a matter which must be proved before it can be judicially noticed, while a common recovery is matter of record. It has the form and effect of the judgment of a court of record, which cannot be impeached or disputed col- laterally. The court is presumed to have had legal, and com- petent parties before it, but no such conclusive presumption is to be made in favor of a deed. Where, for example, the deed in question was alleged to have been made by an insane person, it was held to be of no effect in barring the entail, although it was admitted that a common recovery by an in- fant or a lunatic would be effectual against him and his heirs. 4 1 Purd. Dig. 722, pi. 7. 2 Linn v. Alexander, 9 P. F. Sm. 47 ; Seibert v. Wise, 20 P. F. Sm. 147. 3 Purd. Dig. " Estates Tail," p. 721, pi. 4. 1 Wood v. Bayard, 13 P. F. Sm. 321. 116 THE LAW OF REAL ESTATE AND If the deed be not acknowledged and recorded in con- formity with the provisions of the statute, it conveys only an estate for the life of the tenant in tail, 1 and upon his death the issue in tail may recover the land. 2 The next statute, the Act of 29 April, 1855, 3 made a radical change in the law : " Whenever hereafter, by any gift, con- veyance or devise, an estate. in fee-tail would be created according to the existing laws of this State, it shall be taken and construed to be an estate in fee-simple, and as such shall be inheritable and freely alienable." This act does not apply to estates created before its passage. 4 " The Act of 1855," says Judge Strong, " practically makes the statute De Donis inoperative. It remits us to the common law as it was before 13th Edward I. * * This declaration of capability of trans- mission by descent and of alienability is mere surplusage." 5 Since this act an estate tail cannot be created. The words which would have amounted to an entail, now make an estate in fee simple. All estates tail in Pennsylvania which now exist were created before April 27,1855. The number of these has been steadily decreasing by the various methods 1 George v. Morgan, 4 Har. 95 ; Seminary r. Wall, S Wr. 353. 2 By the Act of 10 April, 1851 (Purd. Dig. p. 722, pi. 5), deeds defec- tive because not recorded in time, but otherwise conforming to the provisions of the act, were validated ; but this act was retrospective only, and only applied to deeds theretofore made. The next statute in point of time, referring to estates tail, was the act for the sale of real estate, 18 April, 1853 (Purd. Dig. p. 1459, pi. 5), commonly called the Price Act. It provided (sec. 5) that entails might be barred upon sale of the lands under the decree of the court. But this — as a new method of barring entails — is of not much importance, since the remedy by deed under the act of 1799 is so much more simple and easy of accomplishment, except in cases where the tenant in tail is a minor, feme covert, or otherwise under disabilities and cannot there- fore make a valid deed. Such a sale, the act expressly provides, vests the absolute right to the purchase money or ground rents reserved, in the tenant in tail or particular tenant, who might, by any proceeding or conveyance authorized by law, bar the entail or defeat the contin- gent remainders. 3 Purd. Dig. 722, pi 8. 4 Reinhart v. Lantz, 1 Wr. 4SS. & Nicholson o. Bettle, 7 P. F. Sm. 387. CONVEYANCING IN PENNSYLVANIA. 117 of barring entails, and there are now not many remaining, but they are numerous enough to make it indispensable to every lawyer and conveyancer to be familiar with much of the learning of estates tail. By the Act of 14 April, 1859, 1 it is enacted that a final judgment or decree in partition, or any judicial sale, shall bar an estate tail with the same effect as a common recovery or deed entered and recorded under the Act of 1799, so that the purchaser or person to whom the land is decreed shall take an estate in fee-simple. A special statute of limitation in cases of estates tail is found in section 2 of the Act of 13 April, 1859, 2 which provides that whenever the tenant in tail is barred by lapse of time, all persons who might have been barred by the act of the tenant shall be barred by lapse of time also. A singularly obscure act was passed by the Legislature and approved May 21, 1874. 3 It is called u An act in reference to entailments," but its operation is confined to cases of what are called in the act ^implied or supposed entailments." Exactly what those words mean, I would hardly venture to assert positively. It may be that a distinction is drawn be- tween estates limited plainly to one and the heirs of his body, where there could be no doubt that the conveyancer meant to create an estate tail, and other cases, like Eichelberger v. Barnitz,* where the construction of the limitation results in a fee tail, from words which are not ordinarily used for the purpose of creating one. However that may be, the act in question provides that twenty- one years' actual possession and treatment of the estate as a fee- simple shall bar an im- plied estate tail, and that such supposed or implied entail- ment may be barred by a declaration of a purpose to do so, under hand and seal, duly acknowledged and recorded. 1 Purd. Dig. 722, pi. 6. 2 Purd. Dig. 1065, p. 17, pi. 603. 3 P. L. 221 ; Purd. Dig. 722, pi. 9. 1 9 Watts, 450. 118 THE LAW OF REAL ESTATE AND CHAPTEE IX. FREEHOLD ESTATES NOT OF INHERITANCE— LIFE ES- TATES CREATED BY ACT OF PARTIES— ESTATES PtJR ATJTERVIE. RIGHTS OF THE TENANT FOR LIFE— WASTE —1. VOLUNTARY WASTE— TREES— MINES— ACT OF AS- SEMBLY, 10 APRIL, 1848 — 2. PERMISSIVE WASTE — EQUI- TABLE WASTE— REMEDIES— ALIENATION OF LIFE ES- TATES—FORFEITURE FROM TENURE— GENERAL AND SPECIAL OCCUPANCY— RENTS AND EMBLEMENTS. Freeholds are of inheritance, and not of inheritance. A life estate is an estate of freehold, not of inheritance ; the smallest species of freehold. Life estates are divided into two classes : 1. Conventional or created by the act of the parties. 2. Created by operation of law. I. Of Life Estates Created by the Act of the Parties. Littleton's definition is : u Tenant for term of life is where a man letteth lands or tenements to another for term of the life of the lessee, or for term of the life of another man. In this case the lessee is tenant for term of life, but by common speech he which holdeth for term of his own life is called tenant for term of his life, and he which holdeth for term of another man's life, is called tenant pur term (Tauter vie." ' All freeholds were transferred formerly by livery of seisin, so the tenant for life has seisin of the lands. The parties to a transfer of fee-simple were feoffor and feoffee ; the parties to a transfer of fee tail were donor and donee ; the parties to a transfer of estate for life or years were lessor and lessee 2 Where, in a deed, an estate is granted to a man without any 1 Co. Litt. 41 b. 2 Co. Litt. 42 b. CONVEYANCING IN PENNSYLVANIA. 119 words of inheritance, he takes an estate for his own life. 1 The usual method is to put in the conveyance the words " for and during the term of his natural life," or " for life." It may be for several lives, as a grant to A. for his own life and the lives of B. and C. Here the grantee has an estate of freehold determinable by his own death and the deaths of B. and C. It will last as long as either of them survive. I will tell you directly what becomes of it if the grantee should die in the lifetime of the other. It may be for the life of another, as a grant to A. so long as B. lives ; or, where a man who has an estate for his own life grants his estate to another ; these are both estates pur auter vie. The person during whose life the estate is to en- dure is called the cestui que vie. There are also determinable or qualified life estates as there are determinable or qualified fees, of which I have spoken, where the estate may last as long as the life, and yet may be sooner ended upon the happening of an event or the doing of an act ; as a grant to A. for life, or as long as she remain unmarried ; or, a grant to A. so long as he reside in a certain place ; or, till the grantor go to West- minster ; or, till A. make J. S. bailiff of his manor. In these cases the estates may last during the life, but they also may be determined sooner, by the happening of the event. I have explained already how a grant to a man and his heirs may be a life estate, as where land is granted to A. and his heiis so long as B. lives. The estate cannot possibly last forever, and therefore it is not a fee ; it must come to an end at the end of the life ; it is therefore an estate for life. In the same way life estates are distinguished from estates for years. An estate to A. for the term of one hundred years 1 A gift of personal property for life without any limitation over and without the intervention of a trustee is an absolute gift. Drennan's Appeal, 20 W. Jf. C. 522. 120 THE LAW OF REAL ESTATE AND is not a life estate, but a term, an inferior chattel interest in lands. If the happening of the event at which the deter- mination of the estate is fixed be uncertain as to time, so that the estate may possibly last during the appointed life, then it is a freehold. But if the estate is so limited that it must come to an end at a certain time, whether that time be more or less than the probable duration of the life, then the estate is less than freehold. Estates for life were not included in the statute of quia emptores terrarum, so that they were held in tenure, and fealty was incident to them, the consequence of which was that the tenant for life forfeited his estate if he did any act which implied a renunciation of the feudal connection which existed between him and his lord. 1 Tenant for life has a right to the possession of the land and to the enjoyment of it, but not like a tenant in fee. There are others to come after him whose rights he is bound to re- spect, and his right to use and enjoy the land is restricted. If he has the title deeds he may keep them, but when they are not in his hands the court will not order them to be de- livered to him ; but this has been doubted. 2 What he may do in his use and enjoyment of the land is best shown by considering what lie must not do, and this is answered in a word, he must not commit waste. He is pro- hibited from destroying those things which are not included in the temporary profits of the land. Waste is a stripping or devastating of the land. The word waste is derived from the Latin vastum, which is also the root of devastate, and estrepement from the old French estrepie>\ 1 Bisset on Estates for Life, 171. 1 1 Cruise, 121. The power to enforce delivery of title papers is in equity, Treftz v. King, 24 P. F. Sm. 350. See as to deeds Duncomb r. Mayer, 8 Ves. 320; Smith n. Poyas, 2 Dessaus. Ch. 65. This ques- tion is not of much importance in Pennsylvania since all deeds are re- corded and a certified copy of the record is as good as the original for purposes of evidence. CONVEYANCING IN PENNSYLVANIA. 121 to strip or spoil. Waste is an injury done to real property by one in rightful possession thereof, having only a limited estate therein. 1 Waste is of two kinds. 1. Voluntary waste, which is an offense of commission ; and 2. Permissive waste, which is omission or neglect. 1. Voluntary waste. As to land. The tenant for life is bound to farm in a hus- band-like manner — in the manner in which farmers who own lands commonly use them. He must not use the land in such a manner as to cause it to deteriorate in value, so that it cannot be well appropriated to those purposes for which it was originally intended when the life tenant came into possession. What husband-like farming is, must be determined from the custom of the country or place where the land is situate. In Jones v. Whitehead, 2 the court interfered to prevent a tenant for years from ploughing up a meadow for the purpose of sowing the land with corn. What is and what is not waste, is a question of fact. " There is a debt due to the land in return for its fruits and products, and a good tenant for life always pays it. * * * A good farmer creates, but does not destroy." 3 As to trees. Tenants for life are entitled to estovers, house- bote, fire-bote, plough-bote, etc. In England they may not fell timber. 4 In some portions of Pennsylvania this rule does not prevail. Where tenant for life has wild land which is enhanced in value by being cleared of trees, it is undoubtedly not waste in him to clear it. 6 In England " every part of every tree will bring cash. In a country covered with timber, which cannot be sold, and must be removed before any person can make 1 See Co. Litt. 52 b. 2 1 Parsons' Eq. Uas. 304. s M'Uullough v. Irvine, 1 Har. 440. 4 A tenant for life, with the right to work a mine, may take timber for use in carrying on his works. Keel v. Neel, 7 Har. 329. 5 Hastings v. Crunckleton, 3 Yeates, 261. 122 THE LAW OF REAL ESTATE AND any use of the land, it would seem that the law as to timber must be otherwise. In many parts of Pennsylvania you can purchase land for two dollars per acre, or less, and it will cost from four to ten dollars per acre to clear it so as to be fit for cul- tivation. * * * In this State no rule which will apply to every tract can be laid down. In some parts of the State it would be difficult to find a farm in which a mortgagee in possession could cut more timber than was necessary to be used on the farm without committing waste, but in places where many farms have less than ten acres in the hundred cleared, in fact, have not enough in cultivation to support the family and stock, it is not waste to clear land, though in doing so the timber is collected into heaps and burnt. The situation and circumstances of each case must be then taken into view. If a prudent owner would clear off the timber ; if doing so in- creases the value of the tract / if there is so much covered with wood that more ought to be cleared each year for many years, it cannot be waste." ' In determining what is waste in regard to the cutting of timber, the circumstances of each case must be considered, for upon them the judgment will depend. To cut down a tree which is ornamental, 2 or which is necessary to give shade, or a fruit tree, or the like, is waste anywhere. Such a single tree may add more in actual market value to a place than would be sufficient to buy acres of wild land closely wooded. If the cutting down of the trees would render the land less valuable, then it is waste to cut them. If the land would be increased in value at the time by being cleared, the clearing would not be waste; but otherwise a life tenant cannot cut timber to sell. 3 On this point Coulter, J., said: " The question 1 Huston, J., in Givens v. M'Calmont, 4 Watts, 463. 2 For example the great oak, in Friends' burying ground, at Salem. A committee is appointed yearly to trim it. 3 It is not waste for a life tenant to cut and fell dead and decaying timber which would otherwise become worthless before the life estate fell in. Sayers v. Hoskinson, 14 Out. 473, CONVEYANCING IN PENNSYLVANIA. 123 is not whether the land may be of equal value at the falling in of the life estate to what it was when it commenced, but it is whether the inheritance has been injured ; because a planta- tion, now although entirely stripped of its forests, might be of as much value as it was thirty years ago, when one-half of it was covered with timber ; and yet, if one-third of the timber remained, it might, and probably would be, now worth one-third more. This would depend upon the custom of farmers, the situation of the country, and the value of timber; and would be estimated by the jury from the evi- dence in the cause, under the instruction that the rule is whether the inheritance has been injured or not." ' As to mines. A tenant for life may mine from an open mine for profit. He may dig ore or coal and sell it without committing waste. 2 A tenant for life cannot open a mine on land, but, if the mine were already opened, even though it had been for some time disused, he may mine there and even make a new opening for the purpose of getting at the miner- als ; but he cannot go through an old opening to reach a new vein, that is in effect making a new opening. 3 Of course, if a tenant for life have his estate granted him by deed or will by which the right of mining is expressly given or from which it may be fairly implied, no question of waste can arise from his opening a mine. A testatrix authorized her trustees to lease her land for coal mining purposes, and directed them to apply the annual income of her estate to the support, maintenance and advancement of her grandson until he should arrive at the age of twenty- two years, and thereafter to pay the annual income to him during his life, with re- ' M'Cullough D. Irvine, 1 Har. 443. 2 Coleman's Appeal, 12 P. F. Sm. 252; Neel v. Neel, 7 Har. 323. Mines and quarries open at the beginning of a life estate may be worked by the life tenant even to exhaustion without rendering him liable in damages for waste. Sayers v, Hoskinson, 14 Out. 473. • 3 Westmoreland Coal Co.'s Appeal, 4 Nor. 344. 124 THE LAW OF REAL ESTATE AND mainder to others after his death. Held, that the grandson was entitled to the whole annual rent of the coal lands dur- ing his life, even though the mines should be worked to ex- haustion. 1 The act of assembly of 10 April, 1848 2 (which extended remedies previously existing in other cases to case of tenant for life), provided that no tenant or tenants for life should be restrained from the reasonable and necessary use and enjoy- ment of the land and premises in his, her or their possession. In construing this act the court say : " While the right of possession continues unquestioned in the tenant, there is no limitation or restraint whatever imposed by our acts of as- sembly on his working of open mines. It may indeed be doubted whether the saving clauses adverted to do not em- power him to open mines and quarries that he may have reasonable use and enjoyment of the premises, but this we do not decide, for it is not in the case." 3 It was argued also in this case that the tenant for life had assigned her right to mine to a coal company which had made a new opening to get at the coal, and were preparing to work the mines in such a manner as in all probability to exhaust the coal during the continuance of the life estate. The court overruled all these objections and held that the alienees of the tenant for life could not be restrained, and that if the land was exhausted of coal that was the misfortune of those who were in re- mainder, it was not the fault of the tenant that it was not more durable.* 1 Shoemaker's Appeal, 10 Out. 392; McClintook v. Dana, 10 Out. 386. See, also, Wentz's Appeal, 10 Out. 301. Royalties from oil leases made by trustees are income for the life tenant. Smith p. Rawle, 19 "W.N. C. 491. See Duff's App., 21 W. N. C. 401. Increments of stock and scrip dividends based upon the earnings of the company go to the tenant for life Turpin's Estate, 21 W. N. C, 542. 2 Purd. Dig., " Waste," 1701, pi. 6. 3 Irwin v. (Jovode, 12 Har. 166. 1 It has also been held that a ground landlord has no equity upon which to demand an injunction to restrain the removal of brick-clay from land. Lafferty's Appeal, 20 W. N. C. 36. CONVEYANCING IN PENNSYLVANIA. 125 With reference to fixtures,' as I have already explained, where the inference drawn from the circumstances of the case is that the tenant for life intended the improvement as a part of the freehold, he cannot remove it. In M'Cullough v. Irvine,' a tenant for life had erected a dwelling house and barn on the land, which he afterwards pulled down and re- moved. He was held responsible for so much as the inheri- tance was injured by their destruction. 2 It is only in doubt- ful cases that the leaning of the law is in favor of the life tenant on the question of fixtures. 2. Permissive waste. Where the tenant for life permits an intruder to waste he is liable ; as he is not allowed to waste himself, so he is bound to prevent others from doing so. He is also bound to repair houses and fences, but if they are ruinous and untenantable when the estate comes into his possession he may let them fall down. If, instead, he chooses to repair, he may take the necessary timber from the land, but not if the decay is the consequence of his own negligence. So, if a tenant for life of land bounded by water suffers the dam or wall to decay so that the water overflows or surrounds the land, he is liable for waste. As in voluntary waste, he is bound to see that the inheritance receives no injury by his neglect. If the injury come by the act of God, as by a tem- pest, fire from lightning or accident, without carelessness or negligence, or by the public enemy, it is not waste ; but if any neglect of the tenant contributed to the injury he is liable. Actus Dei nemini facit injuriam. 3 1 1 Har. 443. 2 See Christian v. Mills, 16 W. N. C, 393. 3 As to responsibility of tenant in case of accidental fires, see 4 Kent. * 82, and Co. Litt. 57 a, note 1, Hargrave's notes No. 377. " Per- haps the universal silence in our courts upon the subject of any such responsibility of the tenant for accidental fires, is presumptive evi- dence that the doctrine of permissive waste has never been introduced and carried to that extent in the common law jurisprudence of the 126 THE LAW OF REAL ESTATE AND Equitable waste? Sometimes an estate for life is granted " without impeachment of waste." Under such a grant a tenant cannot be punished for waste, and at common law has the same power over the land as tenant in fee, yet still, equity will stop him from pulling down houses, destroying trees for ornament or shelter, or cutting down timber not full grown and proper for building. 2 Remedies. At common law, only tenants for life of those estates created by act of the law were prevented from com- mitting waste ; where the estate was created by the act of the parties, it was thought no hardship to leave the tenant in the same situation in which he had been placed by the contract. The owner of land who had granted this estate had the power of protecting himself by inserting in the con- tract stipulations against the commission of waste ; if he did not do so, it was because he did not choose to do so. 3 However, this state of the law, though it might be thus plausibly advocated in theory, was found very detrimental in practice. Hence arose the statute of Marlebridge, 52 Henry III., c. 23, which provided for damages and fine as a punish- ment for waste, which is reported not to be in force in Penn- sylvania, 4 and the statute of Gloucester, 6 Edward I., c. 5, 5 which expressly extends the remedies for waste to tenant for life, and provides, " And he which shall be attainted of waste shall lose the thing which he hath wasted, and, moreover, 1 Those acts and injuries to property which would not be deemed waste in a court of law, but which are remedied in a court of equity. See Garth v. Sir John Hind Cotton, L. C. Eq. 2 Aston v. Aston, 1 Ves. St. 264; Bisset 315. 8 Green v. Cole, 2 Wm. Saunders, 252, a note. * Neel v. Neel, 7 Har. 327 ; Rob. Dig. 9. 6 2 Inst. * 299 ; Rob. Dig. 426. United States." IV Kent., * 82. The statute of 6 Anne. c. 31, which protected all persons from responsibility for accidental fire has not been reported in force in Pennsylvania and is not mentioned in the report of the judges, though the statute of Gloucester, which made life tenants responsible ia. CONVEYANCING IN PENNSYLVANIA. 127 shall recompense thrice as much as the waste shall be taxed at." This statute was reported by the judges to be in force in Pennsylvania, and has been judicially recognized in many decisions. Under this statute the punishment for waste was both for- feiture of estate and treble damages, but in Williard v. Williard, 1 where there was an attempt to enforce a forfeiture for waste, the Supreme Court refused to allow it, and the in- timation was thrown out that the condition of our country, the habits of the people, and the ample statutory remedies provided, made it doubtful if the doctrine of forfeiture would be held applicable to our circumstances ; but the point was not expressly decided. 2 The remedies in use now for waste are of two kinds — 1. Preventive. Injunction in equity, 3 writ of estrepement, under the act of 10 April, 1848, 4 commanding the sheriff to stop waste. 5 2. Corrective. An action on the case for damages in the nature of waste. I suppose a writ of waste' might still be brought, though it is never now used. 6 Life tenants must keep down incumbrances. Where land granted to tenant for life is encumbered with mortgage or rent, the tenant must pay interest as it accrues, 7 and the taxes assebsed upon the land, even though they consume all the rents and profits. 8 He is not bound to extinguish the ' 6 P. F. Sm. 128. 2 As to when treble damages for cutting timber can be recovered, see Clark v. Sergeant, 17 W. N. C. 216. 3 Shoemaker u. Gillett, 3 Johns. Ch. 311, where Ch. Kent committed a defendant for disobeying. 4 Purd. Dig. " Waste," p. 1701, sec. 6. 5 2 Tr. & Hal. Pr. \ l a 56 seq ; Byrne v. Boyle, 1 Wr. 260. 6 Duncan, J., in Lyle v. Richards, 9 S. & R., 367. 'Pennock r. Imbrie, 3 Phila. 140; McDonald v. Heylin, 4 Phila. 73; Jewell's Estate, II Phila. 73 ; Ward's Estate, 19 W. N. U. 426 ; Gross' Estate, 20 W. N. C. 87. 6 Schwartz's Estate, 2 Har., 47 ; Hoff's Appeal, 12 Har. 200. The Act of 24 May, 1887 (P. L. 288), provides that a remainderman may 128 THE LAW OF REAL' ESTATE AND principal of the incumbrance. The whole estate is to bear the charge of the principal in just proportions. The old Eng- lish rule was that the fail share of the life tenant was to pay one-third, the other two-thirds to come from those in remainder. This rule was recognized in Pennsylvania in dividing the proceeds of a sheriff's sale among judgment creditors, one of whom had a judgment against a life tenant; 1 but it has long ago been exploded in England, and it is the rule now that the life tenant is bound only to keep down annual charges as they accrue, and that the principal is to fall upon the inheri- tance. 2 In a case where the question was how the compensa- tion for damage done to the land by a railroad company should be divided between the life tenant and the remainderman, the Supreme Court approved of a more accurate method of calculation, which was to multiply the net annual value of the premises by the expectation of life of the life tenant, and reduce the amount thus obtained to a present cash value by calculation. 3 This rule will do where the annual value is regular, and remains the same from year to year, but it might be unjust to apply it in some cases. 4 If it becomes necessary to pay off the incumbrance, the tenant for life may be called on to contribute in proportion to the benefit he will derive by the cessation of the annual payments of interest in his lifetime. If the life tenant pay it off, he may call for contributions at once, or he is, prima facie, entitled to the charge for his own benefit, with the qualification of having no interest during bis life. 6 '. Dennison's Appeal, 1 Barr, 207. 2 Countess of Shrewsbury v. Earl of Shrewsbury, 1 Ves., jr., 234. 3 R. R. Co. v. Bentley, 7 Nor. 178. 'Shippen's Appeal, 30 P. F. Sm. 391; the " Carlisle tables " were criticised in this case. 6 4 Kent, 74. present a petition stating that the tenant for life or years, liable to apply rents, etc., to the payment of taxes and incumbrances, has failed to do so, to the former's injury, and a sequestrator will there- upon be appointed. CONVEYANCING IN PENNSYLVANIA. 129 Alienation of life estate. A life tenant may sell and con- vey his estate. If the grantor be tenant for the term of his own life, the grantee becomes tenant pur auter vie. An estate for one's own life is of higher dignity than that pur auter vie, and where two estates in the same land are vested in the same person at the same time, a merger of t hem takes place, and the less estate is merged or swallowed up in the greater. Thus a term of years is merged in a lite estate, an estate pur auter vie in an estate for life of the ten- ant, a life estate in an estate tail, and all smaller estates in a fee- simple. But this is not the time to teach the doctrine of mer- ger. I mention it now to show the effect of an union of a life estate with an estate pur aider vie. Suppose A., tenant for his life, remainder to B. for his life, and suppose B. convey to A., the estate conveyed is swallowed up ; A. has no more than he had. Forfeiture from tenure. If a tenant for life did any act which implied a renunciation of the feudal connection between him and his lord, he forfeited his estate ; he was bound to fealty. An instance of this rule was when the life tenant made an alienation of the land in fee by any method of conveyance which was in itself a transfer of the seisin. A feoffment in fee with livery of seisin had this effect, and so also a fine or common recovery. A distinction was drawn and still exists between what are called in this respect tortious and innocent conveyances. The tortious conveyances were those which afforded evidence of the tenant's intention to assert ownership as against his lord, which were the three I have mentioned, fine, recovery and feoffment.' The fifth section of the act of 28 May, 1715, 2 with regard to the recording of deeds, gave to deeds of bargain and sale in Pennsylvania, duly acknowledged and recorded, the same effect as feoffment 1 As to effect of common recovery see Stump r. Findlay, 2 Raw. 168 ; Lyle v. Richards, 9 S. & R. 322. ■' Purd. Dig., " Deeds, etc.," \>. 582, pi. 92. 9 130 THE LAW OF REAL ESTATE AND with livery of seisin, for giving possession and seisin and making good title. Under this act it was decided that a Pennsylvania deed so acknowledged and recorded had not the effect of a feoffment with livery so as to cause forfeiture of estate to a life tenant who had thereby aliened in fee. 1 All other conveyances except these three are innocent, and Gimply operate to transfer all the estate which the grantor had; so, if by ordinary deed a life tenant convey the land in fee, his grantee will take an estate pur auter vie. A life estate is liable to execution for the debts ol the life tenant, but if it be in improved lands or tenements yielding rent it is not sold but sequestered. 2 Effect of death of life tenant. When a tenant for life dies of course all estates for his own life die with him ; but where the estate is pur aider vie it is not terminated, and the question is, who shall have it ? If the estate were origi- nally limited to A. for the life of B., it was held at common law that the first person who entered upon the land might hold it during the life of the cestui que vie, and he was called, a general occupant, because his title came by his being the first to occupy, and Blackstone says this is the only instance in which the right of occupancy is recognized by the laws of England. 3 But if the grant were to a man and his heirs or the heirs of his body for the life of another, no general occupancy could arise, for the heir or the heir of the body of the grantee had the right to enter on the death of his ancestor and hold the possession as special occupant, according to the terms of the grant. But it is said that the heir takes by descent and that the estate is liable in his hands as assets for the payment of the ancestor's debts. There are statutory provisions with regard to the dispo- sition of the estate pur auter vie both in England and Amer ' M'Kee v. Pfout, 3 Dall. 436. 2 Purd. Dig. " Execution," p. 759, pi. 94. 3 See 2 Bl. Com. 258, " Title by Occupanc> ; : ' Challis, *287-*288. CONVEYANCING IN PENNSYLVANIA. i31 ica. Our Pennsylvania statute of wills of 8 April, 1833, 1 enacts that every person of sound mind (the exception as to married women being altered by act of 11 'April, 1848) may dispose by will of his or her real estate, whether such estate be held in fee simple or for the life or lives of any other person or persons. Where an estate pur auter vie is not de- vised by the owner, if it be limited to him and his heirs, the heirs take it; if not limited to him and his heirs it becomes personal property and goes to his executors or administrators under the ninth section of the act of 24 February, 1834, 2 relating to executors and administrators, which is in these words : " All estates in lands or tenements, of which the de- cedent was seized at the time of his decease for the life or lives of another person or persons, shall, unless such estate have been limited to the decedent and his heirs, go to the executors or administrators of such decedent and be included in the inventory and be subject to distribution in like manner as leases for terms of years." Rents and emblements. Where tenant for life is entitled to rent and dies before pay-day, the rent is apportioned under the seventh section of the act of 24 February, 1834, 3 which provides that the due proportion of such accruing rent, to be computed according to the time elapsed at the decease of such tenant, shall go to and be vested in his executors or administrators and be included in the inventory of personal assets. The remedy of the estate is an action on the case. 4 Where a life estate is determined by the act of God, or by the act of the law, the executors or administrators are entitled to emblements ; but it is' otherwise where the es- tate comes to an end by the voluntary act of the tenant. 5 1 Purd. Dig., " Wills," p. 1709, pi. 1. 2 Purd. Dig., "Decedents," p. 518, pi. 59. s Purd. Dig., " Decedents," p. 518, pi. 57. 4 Same act, Sec. 30, Purd. Dig., " Decedents," p. 528, pi. 108. R Examples : Act of God, death of c. q. vie; act of the law, divorce a. v. m.; act of the tenant, where tenant durante viduitate marries, or forfeiture. 132 THE LAW OF REAL ESTATE AND A tenant for life may bequeath both rents and emblements by will. 1 Emblements are growing crops planted by the tenant for life and include all annual products of the earth which are raised by yearly expense and labor, as grain, garden roots, carrots, potatoes ; but not fruit, grass, or other products which are not planted annually. 2 1 Wills act, 8 April, 1833, Sec. 5 ; Purd. Dig., " Wills," p. 1709, pi. 5. " See the opinion of Judge Chapman, approved by the Supreme Court, in Reiff v. Beiff, 14 P. P. Sm. 134, where it was held that grow- ing grass, even if produced from seed and ready to be cut for hay, cannot be considered as emblements. At the time of the death of the life tenant there was standing uncut on the premises a quantity of mixed timothy and clover grass, a quantity of grass part meadow and part timothy, and a quantity of timothy exclusively. The question was, was this grass emblements, belonging to the tenants of the de- ceased owner of the life estate V Judge Chapman said : " It may be admitted that Indian corn, wheat, rye, oats, buckwheat and potatoes, and even hemp, Hungarian grass, flax and millet are included among the emblements that do not pass to the remainderman, but these are all annual products; when cut the root dies. It is not so with clover, timothy or meadow grass, the latter especially, which is entirely spon- taneous. Generally, neither clover or timothy is a principal crop, being usually sown with wheat or rye. * * * Neither clover nor timothy mature the first year. Clover does not until the second sum- mer and timothy not until the third. If the tenant for life dies just after the grain harvest may his representatives or lessees enter on the premises one, two or three years thereafter and cut the grass or pasture the fields ? " See, also, 2 Shars. Bl. 122, notes 2 and 3. CONVEYANCING IN PENNSYLVANIA. 133 CHAPTER X. LIFE EST A TES B Y OPERA TION OF LA W—l. TENANT IN TAIL AFTER POSSIBILITY OF ISSUE EXTINCT— 2. CUR- TESY— AT COMMON LAW— IN PENNSYLVANIA BEFORE I848— SINCE THEN — S. DOWER— AT COMMON LAW— IN PENNSYLVANIA — STA TUTOR Y SUBSTITUTES FOR — SINCE 1869— WIDOW'S REMEDIES— NATURE OF STATU- TORY DOWER — EIGHT WAYS OF BARRING DOWER — STATUTE OF USES— 4. INVERTED DESCENT FOR LIFE TO PARENTS. Of Life Estates Created by Operation of Law. There are four cases in which a life estate is created by operation of law. 1. Tenant, in tail after possibility of issue extinct. This can only exist where there is a special tail, limited to the heirs of the body of a certain man and a certain woman who is or may lawfully become his wife, and one of the two is dead, leaving no issue of the marriage, or having left issue it has become extinct, and leaving the other surviving who is tenant in tail. No matter how old the man and wife are, the law always presumes possibility of issue until one be dead. Such an estate is no longer an inheritance, for there can- not possibly be any heir of the tenant to whom the estate may descend ; it must end at his death ; it is, therefore, classed among life estates. But since the tenant was origi- nally in as of an estate of inheritance, he has far more power and right in the use and enjoyment of the land than a mere tenant for life. He is dispunishable for waste, but equity, as I have said, will interfere to prevent malicious or wanton waste ;' and in actions brought by and against him he has certain rights which only belong to tenants of estates of in- 1 See Chitty's note to 2 Bl. Com. 125. 134 THE LAW OF REAL ESTATE AND beritance. If he make a feoffment in fee he forfeits his estate, and in this his estate resembles a life estate. 1 The privileges which such tenant had were personal to himself; he could not transfer them ; if he aliened his es- tate his grantee became tenant pur autervie, and subject to all the restrictions upon such an estate with regard to waste, etc. Under existing laws of Pennsylvania this estate cannot come practically under consideration. I therefore pass from it without further notice. 2. Curtesy. The interest which a man has in the lands in which his wife has an estate of inheritance. It is commonly called in text-books tenant by the curtesy of England. Littleton's explanation of this " because this is used in no other realm but in England only," 2 is said to be obvi- ously incorrect, because it was a law which prevailed in. Scotland and other northern nations. It probably arose from the fact that when a female vassal holding lands married, the husband had no right to attend the lord's court alone to do homage forthe lands, but he and his wife must both have done homage together until issue was born of the marriage, after which the right of attending court and doing homage alone, cailed ewiaKtas, or curtesy, belonged to the husband. 3 Let us consider curtesy, first, at common law and under Pennsylvania statutes prior to 1848, and then under Married Woman's Act arad supplements. At common law a husband, upon marriage, obtained a freehold estate in his wife's lands, which lasted during their joint lives. This was the result of the marriage contract in which the wife's existence was swallowed up and merged in that of the husband. Hence she was a feme covert, a woman hidden. Bisset on Estates for Life, * 19. Co. Litt. 29 b. See Digby, Hist. Law Real Prop., p. 142. CONVEYANCING IN PENNSYLVANIA. 135 There were at common law four circumstances necessary to the existence of the estate : a. Marriage, b. Seisin of the wife. c. Issue, d. Death of the wife. a. There must be a valid marriage. But where the mar- riage was voidable only, and was not annulled during the life of the wife, the unlawfulness of it cannot afterwards be inquired into, and in such cases the husband will have curtesy.' b. Seisin. At common law, with respect to lands, it was absolutely necessary that there should be seisin in deed, or actual possession of the lands, in order that the husband might have curtesy. This seisin might be in the wife at any- time during the existence of the marriage ; it is immaterial whether before or after issue born. Where a man married a woman, seised in fee, and was then disseised, and afterwards issue was born and the wife died, he might enter and hold by the curtesy. 2 The seisin might exist, although the land was in possession of a tenant for years, for a term of years is not real estate, but a chattel, and the tenant for years has possession as the bailiff of the freeholder who was seised by his tenant. 8 1 Act of 13 March, 1815, sec. 5, " Divorce," Purd. 612, pi. 2. See Parker's Appeal, 8 Wr. 309. A marriage in Pennsylvania does not require any formality. Words in the present tense signifying an intention to thereupon become man and wife are all that is necessary. The Act of 23d June, 1885 (P. L. 146), requires the parties to procure a license as therein provided. The act probably does not affect the validity of a marriage performed without a license, but merely prescribes a punishment for those who disregard its terms'. Marriage may be proved by co-habitation and reputation. Where a man and woman have lived together, and have the reputation of being husband and wife, a presumption arises that they are married. But this presumption may be rebutted by showing that the co-habitation was illicit at its commencement. On this sub- ject see Nathans' Case, 2 Brewster, 149; Physick's Estate, Id. 179; Bickings' App., Id. 202; De Amarelli's Estate, Id. 239; ■Seibert's Estate, 17 W. N. C. 271 ; Reading Fire Ins. C6.'s App., 3 Amer. 204. 2 1 Cruise, 160. 3 Buchanan v. Duncan, 4 W. 88. 136 THE LAW OF REAL ESTATE AND In Pennsylvania the common law rule requiring seisin has not strictly obtained. Where the wife has a right -of entry, or constructive seisin, the husband has his curtesy, in cases where there is no actual adverse possession. 1 Constructive or potential seisin is a right to demand and recover immediate possession. Where the wife has a re- mainder, or reversion, there the husband has no curtesy unless it come into possession during the coverture, because she had no seisin. 2 But the common law rule requiring seisin has been relaxed in Pennsylvania, so that a husband becomes tenant by the curtesy where the wife has vested in her an equitable estate of inheritance, where the legal estate is vested in a trustee and held for her separate use. 3 Previously the law was otherwise as 1o lands held for the separate use of the wife, 1 and it would hardly be safe to affirm that Dubs v. Dubs would be followed now, since the change in the ruling of the Supreme Court on questions of trusts. 5 c. BirtK of Issue. At common law it was required that issue should be born alive (heard to cry), in the lifetime of the wife, and be capable of inheriting the estate. This was the circumstance which vested the estate in the husband. Hereupon he became tenant by the curtesy initiate ; became a freeholder as respects his wife's lands. In Pennsylvania by the Intestate Act, 8 April, 1833, sec. 1, Art. III., 6 it is provided that the real estate of a married 1 Stoolfoos v. Jenkins, 8 S. & R. 175. 2 Hitner v. Ege, 11 Har. 305. ' Dubs v. Dubs, 7 Uas. 154 (1S58) : Johnson v. Fritz, S W. 449. * Cochran v. O'Hern, 4 W. & S. 95; Rigler v. Cloud, 2 Har. 361; Stokes v. McKibben, 1 Har. 267. 5 Where real estate is conveyed to a married woman, " her heirs and assigns exclusively of her husband, to her only proper use, benefit, and behoof exclusively as aforesaid," her husband -is not thereby deprived of his tenancy by the curtesy in such estate. No intention is appar- ent to exclude him, except from the fee. Rank v. Rank, 21 W. N. C. 397. 6 Purd. Dig. " Intestates," p. 930, pi. 4. CONVEYANCING IN PENNSYLVANIA. 137 woman intestate shall descend as thereinafter provided, " saving to the husband his right as tenant by the curtesy, which shall take place although there be no issue of the marriage in all cases where the issue, if any, would have inherited." This statute rendered the birth of issue unnec- essary to the vesting of curtesy, and it was held that the husband after that became tenant by the curtesy initiate, upon the marriage or subsequent seiBin of the wife.' d. Death of Wife. — After husband had become tenant by the curtesy initiate, by the birth of issue, he had in himself an estate of freehold, for his life, which became absolute and complete upon her death. Then he became tenant by the curtesy consummate. As to HusbanoVs Right, since 1848. Until the passing of the Married Woman's Act of 11th of April, 1848, 2 the lands of married women were liable to be taken in execution for the debts of the husband, and his es- tate as tenant by the curtesy initiate, sold by the sheriff in her lifetime, and the sheriffs vendee took an estate for his (the husband's) life. This act put a stop to this great in- justice, and secured to a married woman the enjoyment of her estate, both as to title and possession. It expressly saved to the husband his right as tenant by the curtesy. 3 But the words were that her property " shall not be subject to levy and execution for the debts or liabilities of her husband." And it was therefore held that a purchaser at sheriff's sale of the husband's interest could not recover possession of the land in the lifetime of the wife. 4 But it was held that the act saved the husband's curtesy as before, but that it might 1 This effect was given to the provisions of the statute by Gibson, C. J., in Lancaster Bank v. Stauffer, 10 Barr, 399. 2 Purd. Dig. Marriage, p. 1147, pi. 13, etc. 3 Sec. 10 Purd. " Marriage," p. 1147, pi. 17. ' McElfatrick v. Hicks, 9 Har. 406. 138 THE LAW OP REAL ESTATE AND be levied on and sold during her lifetime, ; only the sheriffs vendee could not get possession until after the wife's death. The Legislature again intervened, and by the Act of 22d, April, 1850, Sec. 20, 1 declared the meaning of the Married Women's Act, to be that the husband's interest in the wife's land should not be subject to levy and sale upon execution for the husband's debt, during her life. It will be noticed that all this legislation mentions, only levy and sale on execution. It makes no reference to the lien of judgments which lien binds all estate the defendant has in lands at the time the judgment was rendered. Hence it was held that the lien of a judgment attached to and bound his interest in the wife's land, but that execution thereon was stayed until her death. Once more the Legislature intervened, and by the Act of 1st April, 1863, 2 declared the meaning of the Married Women's Act to be that no judgment obtained against the husband of any married woman before or during marriage shall be a lien upon her real estate, or upon his interest therein as tenant by the curtesy. 3 Of course this act would not apply where there was any reason to believe that the property was the husband's, and had been fraudulently put in the wife's name. Where a creditor asserts this, he has a right to sell the property as the husband's, so as to put him in a position to test the wife's title. 4 But unless it appears that there is some ground to believe that fraud on the husband's creditor is contemplated. 1 Purd. Dig. "Marriage," p. 1152, pi. 18. 2 Purd. Dig. "Marriage," p. 1155, pi. 37. 1 See Harris v. York County Mutual Ins. Co., 14 Wr. 348. * Woodward v. Wilson, 18 P. F. S. 208; Winch's Appeal, 11 P. F. Sm. 424. CONVEYANCING IN PENNSYLVANIA. 139 a court of equity will restrain an execution on the wife's real estate for the debt of the husband.' This legislation, however, leaves the estate of the husband intact, except so far as it secures to the wife during her life the enjoyment of it, so that she cannot be deprived of it, either by her husband himself, or by his creditors. It is an interest in her houses and lands which can be insured during her life. At common law, an alien could not be tenant by the cur- tesy, and this was so in Pennsylvania. 2 But the law has been altered by the Act of 23d February, 1791. 3 Married women could not make wills (except under pow- ers) until the Married Women's Act of 1848, which expressly allows and empowers them to do so. But if the husband do ' Hunter's Appeal, 4 Wr. 194 : Lyon's Appeal, 11 P. F. S. 15 ;Wiser's Appeal, 8 W. N. C. 354 ; Reeser v. Johnson, 26 P. F. 8. 313. As to what is sufficient evidence of property in a married woman to sustain her title against her husband's creditors, see Kingsbury i>. Davidson, 17 W. N. C. 497 ; s. c. 2 Amer. 380. Where a married woman, having a separate estate, purchases real estate on the credit of her separate estate, there is no presumption that the property purchased in the name of the wife belongs to the husband. Simpson v. Kennedy, 18. W. N. C. 93. In an action of ejectment, involving the title of a wife as against the creditors of her husband, it is not error to charge the jury that, if they find the husband was largely indebted at the time of the convey- ance to his wife, and it is not proven by full, clear and rigid proof that the purchase money was paid out of her separate estate, the property was liable to be sold as the property of the husband to pay a debt due at the time of the conveyance. Adams v. Bleakley, 2 Crum. 283. Where sufficient evidence of a fraudulent use of a wife's name in business by her insolvent husband to justify a verdict that her prop- erty was, in fact, the husband's and liable to the executions of his creditors. Blum v. Ross, 1» W. N. C. 386. Rights of creditors against wife asserting title through gift from husband. Rose v. Keystone Shoe Co., 18 W. N. C. 565. ' Reese v. Walters, 4 W. & S. 145. 3 Purd. Dig. "Aliens," p. 84, pi. 1. 140 THE LAW OF REAL ESTATE AND not choose to take under such will, he may have his right to take her real estate as tenant by the curtesy. 1 In nearly all respects, a tenant by the curtesy is like a tenant of any other life estate — alienation, waste, etc., etc. They are within the statute of Gloucester, bound to keep down incumbrances, etc. A divorce a vinculo matrimonii destroys the right of cur- tesy, 2 but a divorce a mensa et thoro, does not. By Act of 4 May, 1855, Sec. 5, 3 it is provided that a husband who has deserted or refused to provide for his wife for one year or upwards shall have no right to curtesy. 4 3. Dower, by the common law, is an estate for life which the law gives to the wife after the decease of her husband, in the third part of the lands and tenements of which he was seised at any time during the marriage for an estate of inheritance in possession. 5 Owing to changes in Pennsylvania by statute, to be pres- ently explained, dower at common law can exist here only where a married man conveys his lands or tenements in his lifetime, without his wife joining in the conveyance. a. A valid marriage (subsisting at death of husband), b. Seisin, in deed or in law, of the husband, at any time during the coverture, c. Death of the husband. a. The marriage must be valid and subsisting at the death 1 Act 4th May, 1855, Purd. Dig. "Marriage," p. 1153, pi. 26. As to interest of husband electing to take against deceased wife's will, see Sampson's Estate, 18 W. N. C. 240-241. ■' Act of 13th March, 1815, \ 8 ; Purd. Dig. "Divorce," p. 615, pi. 15 ; Clark v. Clark, 6 W. & S. 85 ; Miltimore v. Miltimore, 4 Wr. 151. 3 Purd. Dig. " Marriage," p. 1154, pi. 30. * The desertion of a wife, when shown, is presumed to he malicious, and is a forfeiture of the curtesy estate, under the Act of May 4, 1855, P. L. 430, sec. 5; Bealor v. Hahn,2Crum. 169. 5 Dower derived from Dos. As to the origin of Dower, etc., read 2 Bl. Com. Ch. 8, from page 129 ; Digby, Hist. Law of Real Prop. p. 108. CONVEYANCING IN PENNSYLVANIA. 141 of the husband. If the parties are previously divorced a. v. m., there can be no dower. Ubi nullum matrimonium, ibi nulla dos? A divorce a mensa et thoro is only a legal method of living apart. The bond of matrimony still subsists, and dower is the consequence. b. The seisin may be at any time during the coverture, no matter how short the time may be, dower attaches. An old English case gives a curious illustration of this principle. A son was tenant in tail, remainder to his father in fee. Both father and son were attainted and executed likewise at one time r the son not having any issue of his body. If the father could be said to be seised of an estate in fee, then dower attached, and that was the question. And there, be- cause it was proved by witnesses that the father moved his feet after the death of the son, it was found by the jury, that he was so seised as that dower could be had ; and upon that the wife of the father had judgment to recover. 2 And the seisin may be at any time during the mar- riage. If the husband be seised at the time of the marriage, or become seised at any time therealter, dower attaches, and cannot be unloosed except by lawful methods. The husband alone cannot convey a title clear of dower. But if the husband be or become seised by a wrongful title, and be turned out by a title paramount to his own. the dower is also gone, or if he be seised subject to a mortgage which exists prior to the attaching of the dower, in such case the dower also is subject to the mortgage. So where the hus- band's estate is a determinable or qualified fee, the dower of his wife attaches, but can last no longer than the estate its- self, e. g., a grant to A., and his heirs, so long as B., has heirs of his body. Upon failure of issue of B., A.'s estate and dower consequent thereon are at an end. But where the hus- 1 Miltimore v. Miltimore, 4 Wr. 156. 2 Broughton v. Randal, Noy's Rep. 64. 142 THE LAW OF REAL ESTATE AND band's estate of inheritance is not so qualified, a failure of heirs capable of inheriting will not bar dower. Thus if ten- ant in fee-simple die, without heirs, by which means the land escheats to the lord, yet his widow has her dower, for that is an incident implied in the limitation of the estate. 1 Where the husband is seised of an estate of inheritance, as a trustee, for another's benefit, it is said that at common law his wife was entitled to dower, but equity would not suffer her to take advantage of it, but would restrain her if she attempted it and punish her with costs. Such a claim was probably never made in Pennsylvania. Here equity is part of our common law, and is administered in common law forms. In England, a woman is not endowed of an equitable estate, although a husband might have his curtesy in such an estate. This was an anomaly in the law and was recognized as such. In Sweetapple v. Bindon, 2 Lord Hardwicke said, " How it came to be so settled at first, is of a difficult consideration, and perhaps it may be hard to find out a sound reason for it, but it is safest to follow and adhere to that which has been well settled and established." In Pennsylvania this English rule was never adopted. It was silently repudiated by the usage and common consent of the people. In 1814, when the question was brought squarely before the Supreme Court, C. J. Tilghman, said, after referr- ing to the English rule, " In Pennsylvania the usage has been more reasonable, and more analogous to the general principles* of dower. The husband and wife are placed upon an equal footing. He has his tenancy by the curtesy, and she has her dower. I do not know that the question has ever 1 In Pennsylvania where a man dies, leaving a widow but no known heirs or kindred, the widow takes the whole estate, there is no escheat. Act 8th April, 1833. Purd. Dig. " Intestates," 932, pi. 28. * 2 Jacob & Walker (Chancery Rep.), 198. s. c. 2 Vern. 536. CONVEYANCING IN PENNSYLVANIA. 143 been brought to a decision in this court. The reason of this, I take to be, that it has never been doubted. I have fre- quently heard it taken for granted but never seriously ques- tioned." 1 As to same point in Reed v. Morrison, 2 Duncan, J., said. •• The truth is that the doctrine of seisin is little known here, because it is inconsistent with the spirit and genius of our laws, which give a free scope to the alienation and transfer of property, untrammelled with the feudal doctrine of in- vestiture and its comitants, and with us, seisin, for many substantial purposes, is the beneficial interest and right of ownership." 3 This has always been the law of Pennsyl- vania. In England the law has been changed by Statute 3 & 4 W. IV. c. 105 (1833), and curtesy and dower put upon the same footing. The seisin of the husband, to entitle the wife to dower, is sufficient if it be seisin in law, it need not be seisin in deed or in fact. 4 It was otherwise at common law in England as to curtesy, because it was in the husband's power to obtain actual seisin of the wife's land, but not in the power of the wife to get possession of her husband's land. 6 But in Penn- sylvania there is no distinction in this respect between dower and curtesy. Constructive or potential seisin being sufficient in either case. But the title must be complete. So where a man entered into an agreement for the purchase of land, to be conveyed to him when he should pay the purchase money, paying only a small part down, and afterwards he becomes insolvent and is obliged to assign his contract to another, who pays the ' Shoemaker v. Walker, 2 S. & R. 555. 2 12 S. & R. 21. 3 See also Jones v. Patterson, 2 Jones, 149, 154. * On the distinction between seisin in deed and seisin in law, see Cliallis, chap. 16, p. ISO. 5 Co. Litt. 31 a. 144 THE LAW OF REAL ESTATE AND money and takes a deed, the original purchaser never had such a complete title as would entitle his wife to dower. 1 Seisin is so far required however, both as to dower and curtesy, as that neither of them will attach to a reversion or remainder expectant upon a ireehold — though if the reversion or remainder be expectant upon a term of years, there both dower and curtesy attach, because the tenant for years has no seisin except as bailiff for the reversioner or remainder- man. 2 Where a man seised in fee, made a lease for life, and then married, if the life tenant died during the coverture, the husband had seisin and dower attached. But not if the life- tenant outlived the husband, for he had there but a rever- sion. But if the marriage was before the lease, dower already existed, and the widow could recover against the lessee, for her dower was paramount to the lease. 3 Dower attaches to all real hereditaments, including rents, commons,etc , if the husband has ownership, or an estate of inheritance therein during his life. Not to chattels real, as mortgages, leases, etc. c. The death of the husband completes the inchoate title of the wife, and her right of action commences. When the dower of the feme covert has once attached no subsequent conveyance by the husband alone can debar her from it. At his death she is free to demand her right from any one whom she finds claiming title to the land. Upon the death of a husband the widow's title to dower was complete, but yet she had no estate in any lands, until her dower should be assigned to her, 4 unless her dower was of a special kind as "ad ostium ecclesice,'" in which case the specific land_ was pointed out at the time of the marriage. 1 Pritts 11. Ritchey, 5 Cas. 71 ; Junk u. Canon, 10 Cas. 286. 2 Shoemaker v. Walker, 2 S. & H. 555. s Co. Litt. 32 a. 1 Jones v. Hollopeter, 10 S. & R. 328. CONVEYANCING IN PENNSYLVANIA. 145 She had no right to choose any particular lands and enter upon them, but the right and duty of assigning her dower devolved upon the heir. If there was any dispute, it was determined by- the court, in which case the assignment was made by the sheriff. By Magna Carta it was provided that a widow should tarry in the chief house of her husband forty days after his death, during which time (if not assigned before), her dower should be assigned to her, and that she should have in the meantime, reasonable estovers of the common, etc. The judges reported that so much of this statute (9 Hen. Ill, c. 7), only was in force as provided for the widow's quaran- tine. 1 If the heir or terre-tenant claiming title to the land neglected or refused to assign the dower, she had her action of dower. When the dower was assigned, it might be of a third part of the land by metes- and bounds, or of an undi- vided interest in the lands, etc. With respect to her estate, she was like other life tenants, as to alienation, forfeiture, waste, incumbrances, mines, timber, repairs, etc., etc. In Pennsylvania, by legislative enactment, provision has been made for widows which is instead of dower. 2 By the Intestate Act of 8 April, 1833, it is provided that where an intestate shall leave a widow and issue, the widow shall be entitled to one-third of his real estate for the term of her life, and to one-third of his personal estate, abso- lutely. 3 Where the intestate shall leave a widow, and col- lateral or other kindred, but no issue, the widow shall be en- 1 Boberts' Dig. Tit. Dower, *p. 176. See an interesting opinion on this subject in Leg. Int, Dec. 13, 1872, p. 398, Acor's Estate. In this case Judge Chapman does not seem to have noticed that the right to estovers given by Magna Carta, was not extended here, but holds that the $300 allowed by stat. is a substitute. 2 She has dower until her husband's death, then the statutory pro- vision. 3 Sec. 1, Art. 1. Purd. Dig. " Intestates," p. 929, pi. 2. 10 146 THE LAW OP REAL ESTATE AND titled to one-half of the real estate (including the mansion house and appurtenances) for her life, and to one-half of the personal estate absolutely.' In default of known heirs or kindred competent to take under the act,' the real estate of an intestate vests in the widow for such estate as her hus- band had therein, and she is entitled also io the whole of the personal estate absolutely. 2 This provision for the widow is expressly enacted to be "in lieu and full satisfaction of her dower at common law. 11 3 This interest under the Intestate Law goes to the wife without regard to the seisin of the husband. A widow is entitled to a share of a vested remainder of land which her husband owned at the time of his death.' Inasmuch as a vested remainder is real estate, it comes within the express words of the act, which includes and applies to " all the real and personal estate of a decedent." 5 Where a husband devised his real estate, and in the will provided for his wife, expressly declaring such provision to be in satisfaction of her dower, she might, at common law, choose whether she would take the provisions made in the will or her dower in his lands. 6 And in equity she was put to her election, where it clearly appeared from the will that the provision made for the wife was intended in satisfaction of her dower, as where if she took both it would defeat the whole will. 7 This was especially provided for by our Penn- sylvania Statute of Wills, 8 and all questions as to the inten- tion of the husband put to rest : 1 Sec. I, Art. 2 ; Purd. Die;. " Intestates," p. 930, pi. 3. - Same act, sec. 10; Purd. Dig. " Intestates," p. 932, pi. 28. 3 Same act, sec. 15 ; Purd. Dig. " Intestates," p. 933, pi. 34. " Cote's Appeal, 29 P. F. Sm. 235. 5 Common wealth v. Nuile, 7 Nor. 434. 6 Co. Litt. 36 b. ' Creacraft v. Wions, Add. 350; Hamilton r, Buckwalter, 2 Yeates, 389. 8 8 April, 1833, sec. 11 ; Purd. Dig." Wills," p. 1711, pi. 12. CONVEYANCING IN PENNSYLVANIA. 147 " A devise or bequest by a husband to his wife of any por- tion of his estate or property, shall be deemed and taken to be in lieu and bar of her dower in the estate of such tes- tator, in like manner as if it were so expressed in the will, unless such testator shall in his will declare otherwise : Provided, That nothing herein contained shall deprive the widow of her choice, either of dower, or of the estate or property so devised or bequeathed." This act gave a widow a choice, either of the provision made for her by her husband's will, or of her dower at com- mon law, and so a husband by making a will might cut his wife out of the interest in his personal estate given her by the law, in case he died intestate. 1 The Married Women's Act, of 11 April, 1848, sec. II, 2 remedied this defect, and declared that the section of the Wills Act just read should not be construed to deprive the widow of a testator, in case she elects not to take under the will, of her share of his personal estate, but that she might take her choice, either of the provision made for her by the will, or of her share of the personal estate under the Intes- tate Laws. By this legislation (following and replacing that of a sim- ilar character which had preceded it) dower at common law was taken away in all cases where the husband died intestate seised of the lands; and in place of it a statutory provision was given to the widow, consisting partly of real and partly of personal estate, for which a remedy was also provided by statute, of which presently. Dower remained only in two cases: 1. Where the husband had made a will which the widow refused to take under; 2. Where the husband had conveyed lands during his life, in which his wife had dower, 1 Hinnershitz v. Bernhard, •] Har. 518. 2 Purd. Dig. " Wills," p. 1711, pi. 13. 148 THE LAW OF REAL ESTATE AND without any act being done by which her dower was lawfully barred. The former of these two remaining instances of dower was provided for by the Act of April 20, 1869, sec. 1,' in these words : " In case any person has died, or shall hereafter die leav- ing a widow and a last will and testament, and such widow shall elect not to take under the will, 2 in lieu of dower at the common law as heretofore, she shall be entitled to such in- terest in the real estate of her deceased husband as the widows of decedents dying intestate are entitled to under the existing laws of this Commonwealth." Since this act, the only case in which a common law dower exists in Pennsylvania, is where the husband in his lifetime conveyed lands in which his wife's dower had attached, with- out her joining in and acknowledging the deed in the manner required by law to bar her dower. In such a case, the widow has her dower in the lands so conveyed by him, even if she take a provision under his will, or if she take her share of his estate under the intestate laws. 3 " Lands aliened inter vivos are not within the contemplation of the acts. Even where the husband in his lifetime made an executory agree- ment for the sale of his land in which his wife did not join, but which was not consummated until after his death, the wife has her dower in the land, and it is not barred by the executor's deed made under the decree of the orphans' court. 4 " In this case it was also determined that the Statute of Limitations begins to run from the death of the husband, for then the widow's right of action accrued to her. 1 Purd. Dig. " Dower," p. 633, pi. 10. 2 The widow having done any act which necessarily implies an election, is bound thereby, as against persons who have acted on the faith of her acts. Taggart's Appeal, 39 Leg. Int. 466. * Leinaweaver »». Stoever, 1 W. & S. 160 ; Borland v. Nichols, 2 Jones, 38. 4 Care v. Keller, 27 P. F, Sin. 487. CONVEYANCING IN PENNSYLVANIA. 149 Having thus considered what is the wife's interest in her husband's lands in Pennsylvania, I come now to the ques- tion, 1. How the widow may get her estate into possessio?i or enjoyment. If she has dower at common law, in the one remaining in- stance, her husband did not die in possession ; neither is the land in possession of his heirs, but of his alienee. Since her right to the possession of land does not begin until her dower be assigned to her, she cannot bring ejectment ; she is confined to her action of dower in the common law courts, or to a suit in equity. 1 The jurisdiction conferred upon the orphans' court does not extend to cases of common law dower. 2 In cases where the husband dies intestate, or where dying testate his widow elects to take against hi-s will, her remedy is by a suit for partition, with one exception, i e , where the husband dies out of possession. In such a case, where the land is in the possession of one claiming by title adverse to the btirs, and denying her right, she may maintain her action of dower. 3 In such case the orphans' court has no jurisdic- tion.* Formerly, under the Acts of Assembly i elating to parti- tion, the orphans' court alone had jurisdiction to set out the share of the widow in her husband's estate, 5 but by the Act of 21st April, 1846, sec. 1,' concurrent jurisdiction is vested 1 By the Act of 7 July, 1885 (P. L. 257), the courts of common pleas are given all the power and jurisdiction of a court of equity in all cases of dower and partition. For an account of the action of dower, see 2 Tr. & Hall. Pr. sec. 1787, etc. '' Bradfords v. Kents, 7 Wright, 475 ; Shaffer v. Shaffer, 14 Wright, 396. 3 Galbraith v. Green, 13 S. & B. 85. * Evans u. Evans, 5 Casey, 277. 5 Seider v. Seider, 5 Whart. 208. 6 Purd. Dig. " Partition," p. 1290, pi. 4. 150 THE LAW OF REAL ESTATE AND in the other courts to make partition by writ. " But the con- current jurisdiction conferred by this act is seldom or never exercised, owing to the practical inconvenience and difficulty of carrying out the provisions of the Orphans' Court Parti- tion Act, by an action of partition in courts of common law jurisdiction." ' Until this act, the jurisdiction of the orphans' courts in cases of intestacy was exclusive. The proceeding in the orphans' court was begun by the petition of the widow or some other person interested in the decedent's real estate, and the methods to be pursued are all regulated by statute. 2 Only one of these provisions is properly within the scope of the present chapter, because it seems (and was at one time held) to materially affect the character of the widow's estate. By the 41st sec. of the Act of 29th March, 1832, 3 provision is made that where the lands are taken at the appraisement, the widow's share shall be valued, and that she shall not be entitled to the payment of the same, but that the same shall remain charged upon the premises, and the interest thereof regularly and annually paid to her during' her life ; 4 to be recovered by her by distress or otherwise, as rents are re- coverable. And by the Act of 24th April, 1843, § 8, 5 the same provision is made for the widow in case the lands are sold by order of the court in the proceedings in partition. It was much questioned whether the widow in such cases had any estate in the land, or whether she had only a mere 1 "Williams, J., in Gouiley ». Kinley, 16 P. F. Sm. 274. The Act of 17th March, 1845, having conferred upon the common pleas in equity jurisdiction in all cases of partition, the widow is entitled to file her bill in the latter court for that purpose. See Robins v. Green, 1 W. N. C. 143 ; Brown's Appeal, 3 Nor. 457. 2 See Purd. Dig. " Decedents," p. 537, pi. 148, etc. ■' Purd. Dig. " Decedents," p. 542, pi. 172. 4 The interest is to be estimated by fixing one-third of the rental value of a tract. Brodhead v. Heller, 19 W. N. C. 306. 5 Purd. Dig. " Decedents," p. 543, pi. 173. CONVEYANCING IN PENNSYLVANIA. 151 charge or lien upon it. The decisions , on this question are very numerous — and I only refer now to a few. In Miller v. Leidig,' the widow's interest when thus charged upon land and taking the form of an annual payment, is said to be " a rent charged on the premises, * * and such rent is an incorporeal hereditament ranking as real estate," and this is the view sustained by the recent cases. Kurtz's Ap- peal, 2 declared the widow's interest to be, so far as relates to the principal sum, simply a charge upon the land in the nature of a lien, and that it was a lien within the meaning of the Act of 1830, relating to the discharge of the liens of mortgages at sheriff's sales. But Kurtz's Appeal Was over- ruled by Schall's Appeal, 3 which decided that the widow's " statutory dower," was not to be treated as a lien on land, but as an interest in it, and this was approved in Helfrich v. Weaver,' and the whole question was fully and learnedly reviewed in Gourley v. Kinley. 5 Judge Williams, delivering the opinion of the court, says, " Where the widow's share is laid off by metes and bounds, she has a life-estate in the por- tion assigned to her as land, which carries with it as a necessary incident the right to receive the rents and profits ; but where the estate is taken at the appraisement or sold, she has a life- ettate, not in any specific portion of the land, but in an equivalent share of the rents and profits of the whole estate, measured by the interest on her share of its value as ascer- tained by the appraisement or sale. In whichever form therefore, the assignment of her share is made, she has an estate in the land of which her husband died seised, and by force of the statute it vests in her eo instanti the husband dies." Though the widow's statutory dower is said to be in 1 3 W. & S. 458. 2 2 Cas. 465. 3 4 Wright, 177. * 11 P. F. S. 389. 5 16 P. P. 8. 272. 152 THE LAW OF REAL ESTATE AND the nature of a rent charge, yet it is not a rent charge ; and the release of a part of the land bound by it will not operate as an extinguishment of the whole, as would be the result in case of a rent-charge. But the uureleased portions of the land will remain liable for their proportions of the dower. 1 Dower may be barred : 1. By wife joining in deed, with separate acknowledg- ment. 2. Divorce, a vinculo matrimonii. 3. Elopement and adultery of wife. 4. Devise in lieu of dower. 5. Jointure. 6. Ante nuptial settlement in equity. 7. Sheriff's sale. 8. Orphans' Court sale for payment of debts. 1. The usual method is for the wife to join the husband in the conveyance of his land, and separately acknowledge the deed as required by the second section of the Act of 24th February. 1770.'-' Prior to this, which grew up by custom in Pennsylvania, the only method in which husband and wife could convey his lands clear of her dower was by a fine or common re- covery. But this custom existed here at an early day, and was probably introduced here from London. It being one of the municipal privileges of that city. 3 But of this, more particularly in conveyancing. 2. Divorce from the bond of matrimony. — As I have already said, it is necessary to the widow's right of dower, that there 1 Jones' Appeal, 14 W. N. C. 313 ; see Diefenderfer v. Eshleman, 3 Amer. 305. 2 Purd. Dig. " Deeds and Marriage," p. 568, pi. 22. Where land is sold and wife does not join in deed her declarations before thesale that she would claim no dower, are not admissible and create no estoppel. Heller's App., 1 Crum. 534; Broadhead v. Heller, 19 W. N. C. 306. 3 1 Cruise, Oh, IV, sec. 15. CONVEYANCING IN PENNSYLVANIA. 153 subsist a valid marriage at the death of the husband. Ubi nullum matrimonium, ibi nulla dos. Divorce a. v. to., is therefore a bar of dower. 3. So Elopement and Adultery of the wife, and so much of the British, Stat. 13 Ed. 1, c. 34, 1 is in force in Pennsylvania as declared this to be the law. But if the husband desert his wife, her subsequent adultery will not bar her dower. 2 4. Devise in lieu of Dower, has been already mentioned. 5. Jointure is provided as a bar of dower, by the statute 27 Hen. VIII, Ch. 10, commonly called the statute of uses. 3 The sections which relate to jointure and are in force in Pennsylvania are the sixth, seventh and ninth. The sixth section provides that where lands are conveyed to husband and wife, or to the use of husband and wife, or to the use of the wife, for her jointure, there the wife shall have no dower in the residue of the husband's lands. But if she have no such jointure, then she shall have her dower at common law. The seventh section provides if the wife be evicted from her jointure, she shall be endowed of the re- maining lamls of her husband, to an amount equivalent to that from which she was evicted. The ninth section, protects the wife from a jointure made after the marriage, when she is not in a position to protect herself, and gives her the right to choose between such jointure and her dower at common law. To understand fully the reason of these sections and why they should appear as parts of the statute for transferring 1 Rob. Dig. * 186. 2 Reel v. Elder, 12 P. F. Sm. 308. Although by act of May 4, 1855, a husband who neglects to provide for his wife for a period of one year is debarred from claiming a share of her estate upon her death, there is no such reciprocal legislation in regard to the mere desertion of the wife. Holbrook's Estate, 20 W. N. C. 79. 3 Robert's Dig. * p. 404. 154 THE LAW OF REAL ESTATE AND uses into possession, requires some knowledge of the law at the time the statute was passed, with relation to the subject of uses. It will be sufficient to say here that where one man had the mere legal title to lands, While the use and profit of them belonged to another, the wife of the other had no dower in them. A great part of the lands in England being held . in this way, it became the custom, in order that the wife (or intended wife) might not lose her dower, to grant lands to her and her husband to hold jointly, for their lives. From this device came the word jointure, and in such lands the wife, if she survived, would have an estate for life. When the statute for transferring uses into possession was being considered, it appeared that if these uses were sud- denly transformed into legal estates in the husbands, whereby they would be invested by force of the statute, with seisin of their lands, one of the immediate consequences would be that dower would attach, and the wives would have the join- ture originally provided for them, and also their common law dower in the husband's other lands, which was never in- tended, and would be manifestly unfair and unjust. The sixth section of the act was therefore intended to pre- vent the happening of this inequity, and the purport of it is that the wife shall not have both dower and jointure. This statute gave rise to the method of barring dower by jointure, which is defined to be " a competent livelihood of freehold for the wife, of lands and tenements, etc., to take effect presently in possession or profit, after the decease of the husband, for the life of the wife at least, if she herself be not the cause of its determination or forfeiture." ' This statute, so far as it related to dower, was in derogation of the common law, and it was consequently strictly con strued, and no jointure was held sufficient to bar dower un- less it came entirely up to the requirements of the statute. 1 Co. Litt. 36 b. CONVEYANCING IN PENNSYLVANIA. 155 It must be so limited that the wife has the right to the pos- session or profits, immediately on the death of the husband. It must be for no less estate than the life of the wife herself. It must be given to her directly, and not to any other person in trust for her. It must be in satisfaction of her whole dower and be so expressed, and it must be made before mar- riage. 1 At common law, a woman contemplating marriage could not release her dower, because no right could be barred till it accrued ; and after she was married no estate given her could bar dower, because the right or title to a freehold could not be barred by a collateral recompense. 2 So that dower was inevitable at law until uses were devised, and after they were transmitted into seisin by the statute, the only method of barring dower was by a jointure, according to the strict requirements of the statute. Equity soon began to relieve the estates of husbands in cases where ample provision was made for the wife, even if not strictly within the terms of the statute ; and although the wife's dower was not barred at law, yet the chancery restrained her from claiming it when it was against conscience to do so. 3 Dower was said to be favoured by the law. In the words of Coke, " It is commonly said that three things be favoured in law — life, liberty and dower." 4 " Notwithstanding this favour," says Bissett, " the point of view under which it is chiefly regarded by the modem practitioner is as a dormant incumbrance on a title, which is to be carefully guarded against. * * * The utmost ingenuity of the profession was exerted to invent modes of conveying estates, so as to intercept the title of dower." The reason of this was that, except in London by special custom, the only method of get- 1 Co. Litt. 36, b. 2 1 Cruise, 217 ; Kennedy v. Nedrow, 1 Dall. 438. 3 Shaw v. Boyd, 5 S. & R. 310 ; Grogan v. Garrison, 15 Am. L. R. 652. 4 Co, Litt. 124, b. 156 THE LAW OF REAL ESTATE AND ting rid of dower when it had once attached, was by a fine or common recovery levied or suffered by the husband and wile, which were troublesome and expensive. But in Penn- sylvania an ordinary deed acknowledged by the wife before a magistrate on a separate examination was always sufficient, first by custom, and afterwards by statute, to bar and convey the wife's inchoate dower, so that the reasons for barring dower by jointure did not operate here, and it was seldom resorted to. 6. Ante-nuptual agreements in equity are a bar of dower, if it appear that the wife for a sufficient consideration agreed not to claim dower in her husband's estate. 1 But it must appear that the intended wife was fairly dealt with and knew what the husband's property was. The relation which exists between persons about to be married is of the utmost confi- dence, and they are bound to be frank and unreserved in all matters of agreement concerning the future enjoyment of their property ; 2 consequently, the court will presume con- cealment from the fact that the provision made for the wife is not sufficient, and the burden of showing that there is a full disclosure is upon those who insist upon such an agreement. 3 By an agreement of separation made between herself and her trustee of the one part, and her husband on the other part, after marriage, a married woman may, for a sufficient consideration, surrender all her rights in her husband's estate, and equity will enforce such an agreement. 4 ' Gangwere's Estate, 2 Har. 425. 2 Kline c. Kline, 7 P. F. S'm. 120. * Kline's Estate, 14 P. F. Sm. 122. 4 Dillinger's Appeal, 11 Cas. 361 ; Hutton v. Duey, 3 Barr, 100 ; Mc- Kennan v. Phillips, 6 Whart. 571 ; Bowers v. Clark, 1 Phila.561 ; Lebr v. Beaver, 8 W. & S. 103. Where the provision made for a wife in an ante-nuptial contract is not so disproportioned to the husband's means as to create a presumption of fraud and concealment, and there is no proof of fraud or concealment practiced upon the woman in the pro- curement of it, the contract will be sustained and enforced. Smith's Appeal, 5 Amer. 319 ; Smith's Estate, 18 W. N. C. 140. CONVtYANCIXl IX P6NN8YLVAMA. 157 Such deeds of separation will be enforced only where they are acted on. Reconciliation and living together again amount to an implied abrogation of the agreement of sepa- ration. 1 The mere agreement to live separate is not of itself a bar of dower. There must be a contract to relinquish it. 2 7. Sheriffs sale. By one of the earliest laws made in Pennsylvania lands were rendered as liable as chattels for the owners' debts, and as a consequence of this, it was early decided that a sheriff 's sale of the land for a debt of the husband, carried the estate to the purchaser free of all claim for his wife's dower, 3 and where the husband alone mort- gaged the land, after marriage, and the land was sold under proceedings on the mortgage, it went to the purchaser clear of dower.* But where the debts were incurred, or the mort gage given by the husband for the purpose of defeating the wile's dower, it is a fraud upon her and her (lower is not barred. 5 8 A sale by order of the orphans' 1 court, for the payment of debts, passes the land free from dower lor the same reason that a sheriff s sale does : viz: that the land has undergone a species of conversion, so far as is necessary for the satisfac- tion of the debts, which extinguishes every derivative inter- est in it which cannot consist with the qualities it has been made to assume. And this principle is carried so far that a ' See Hitner's Appeal, 4 P. F. Sm. 110 ; Hutton v. Duey, 3 Barr, 100. ' Walsh v. Kelly, 10 Cas. 84. 3 Graff v. Smith's Adm., 1 Dall. 484. 4 Scott v. Crosdale, 2 Dal. 127. A purchaser of land from an assignee in bankruptcy, subject to a mortgage given by the bank- rupt, takes, as respects the bankrupt, his equity of redemption and nothing more. If he afterwards purchases the mortgage and sells the land under a judgment recovered on the mortgage, and he himself becomes the purchaser, the wife's right of dower is divested by the sale. Bryar's App., 1 Amer. 81. 5 Killinger v. Reidenhauer, 6 S. & R. 531 ; McClurg v. Swartz, 6 Nor. 521. 158 THE LAW OF REAL ESTATE AND sale of a decedent's land by his executors or trustees under a power in his will for the payment of his debts, passes it clear of dower, if made in good faith. It is because the law makes a decedent's land a fund for the payment of his debts by giving the creditors a lien on it which might be enforced by judicial process, and which, so enforced, would extinguish the widow's dower in it. It would come to the same thing in the end, and she is consequently not injured by a process substituted by the husband to produce exactly the same result. But this result of barring the wife's dower does not follow from any voluntary conveyance made by the husband in his lifetime in which his wife does not join, so a husband's assignment to trustees under the insolvent laws does not pass the wife's dower. 1 Nor does a voluntary assignment made by a husband alone to trustees for the benefit of his cred- itors. 2 The Bankrupt Act, of 1841, contains a proviso that " noth- ing in this act contained shall be construed to annul, destroy o* impair any lawful rights of married women, etc." 3 In Worcester v. Clark,' it was decided that a sale of a bank- rupt's real estate by his assignee did not divest his widow's dower. " I should have no difficulty in holding," says Wood- ward, J., " that a sale in pursuance of a decree in bank- ruptcy would also bar dower, were it not for the proviso." The Bankrupt Act of 1867 contains no such proviso, and no limitation whatever in favour of a married woman. In Angier's case, 5 Cadwalader, J., held that dower was not barred by a sale under proceedings in voluntary bankruptcy. 1 Eberle v. Fisher, 1 Har. 526. ' 2 I-Ielfrich v. Obermeyer, 3 Har. 113; Keller v. Michael, 2 Y. 300; Blackman's Estate, 6 Phila. 160. 3 Third proviso to Sec. 2, Act of 19 August, 1841. 4 2 Grant's Uas. 84. 6 10 Am. L. Reg. 190 ; 4 Nat. Bank. Keg. Rep. 619. CONVEYANCING IN PENNSYLVANIA. 159 In Cox v. Wilder,' the bankrupt and his wife had joined in a deed for the property, which deed was declared to be void as a fraud upon the creditors, but the assignee claimed that the wife was barred of her dower because she had executed the deed with that intent. It was held, however, that the assignee could not claim under the deed, but adversely to it, and therefore he could not set it up to defeat the wife's dower. He could not ask that the deed should be considered void as to creditors and valid as against the wife in favour of the creditors, and the dower was not barred. This doctrine has been fully adopted by our Supreme Court, 2 which has been affirmed by the Supreme Court of the United States, 3 and a wife is not estopped by a declaration to a purchaser at the bankrupt sale that she did not intend to claim dower. 4 An alien wife is entitled to dower under our statutes. 5 The attainder of the husband is no bar of dower. 6 1 7 Nat. Bank Keg. Rep. 241. '' Lazear v. Porter, 6 Nor. 513. " 14 W. N. C. 261 ; 109 U. S. 84. 4 Kelso's Appeal, 12 W. N. C. 475. # 6 Purd. Dig. " Aliens," p. 84, pi. 1 ; Gordon on Decedents, 406. 6 Penna. Constitution, 1874, Art. 1, Sec. 19. " The Married Persons Property Act " of 3d June, 1887 (P. L. 332), provides as follows : Section 1. That hereafter marriage shall not be held to impose any disability on or incapacity in a married woman as to the acquisition, ownership, possession, control, use or disposition of property of any kind in any trade or business in which she may engage, or for neces- saries, and for the use, enjoyment and improvement of her separate estate, real and personal, or her right and power to make contracts of any kind, and to give obligations binding herself therefor ; but every married woman shall have the same right to acquire, hold, possess, improve, control, use or dispose of her property, real and personal, in possession or expectancy, in the same manner as if she were a feme sole, without the intervention of any trustee, and with all the rights and liberalities incident thereto, except as herein provided, as if she were not married; and property of every kind owned, acquired or earned by a woman, before or during her marriage, shall belong to her and not to her husband, or his creditors: Provided however, That a married woman shall have no power to mortgage or convey her real estate, unless her husband join in such mortgage or conveyance. 160 THE LAW OF REAL ESTATE AND 4. The fourth class of life-estate created by operation of law, consists of cases under the intestate laws, where the owners of land die intestate without leaving issue. In such case the land of the intestate descends to the father and mother of such intestate, during their joint lives, and the life of the survivor of them, or, if either of them be dead, the parent who survives such intestate takes the life estate in the lands. Section 2. A married woman shall be capable of entering into and rendering herself liable upon any contract relating to any trade or business in which she may engage, or for necessaries, and for the use, enjoyment and improvement of her separate estate, and for suing and being sued, either upon such contracts or for torts done to or com- mitted by her, in all respects as if she were a feme sole, and her hus- band need not be joined with her as plaintiff, or defendant, or be made a party to any action, suit or legal proceeding of any kind brought by or against her in her individual right ; and any debt, damages or costs recovered by her in any such action, suitor proceeding shall be her separate property, and any debt, damages or costs recovered against her in ahy such action, suit or other proceeding shall be payable out of her separate property and not otherwise : Provided however, That nothing in this or the preceding section shall enable a married woman to become accommodation endorser, guarantor or surety for another. •Section 3. A married woman may make, execute and deliver leases of her property, real and personal, and assignments, transfers and sales of her separate personal property, and notes, bills, drafts, bonds or obligations of any kind, and appoint attorneys to act for her, and it shall not be necessary for her husband to be made a party thereto or joined therein. Section 4. Husband and wife shall have the same civil remedies upon contracts in their own name and right, against all persons for the protection and recovery of their separate property as unmarried persons. Section 5. A married woman may dispose of her property, real and personal, by last will and testament in writing, signed by her or manifested by her mark or cross, made by her at the end thereof, in the same manner as if she were unmarried. Section 6. This act shall be known as " The Married Persons Property act." Section 7. All acts inconsistent herewith are hereby repealed." Since the passage of this act a married woman has the power to carry on a business as if she were a feme sole, and the proceeds belong to her and cannot be seized by her husband's creditors. Wayne v. Lewis, 23 W.N. C. 441. CONVEYANCING IN PENNSYLVANIA. 1G1 CHAPTER XL ESTATES LESS THAN FREEHOLD— 1. LEASE FOR YEARS- COULD TAKE EFFECT IN FUTURO— ENTR Y NECESSARY TO COMPLETE LESSEE'S RIGHTS— TENURE AN INCI- DENT— ATTORNMENT— DURATIONS OF THESE ESTATES' DUTIES AND RIGHTS OF LESSEE— OF LESSORS. TEN- ANT FROM YEAR TO YEAR—S. TENANT AT WILL- DUTIES AND RIGHTS— 4. TENANT AT SUFFERANCE. In feudal times, the estates of great men were- cultivated by their villeins. Agriculture was not esteemed,, and though • it was not counted base service, still it was beneath the dignity of a gentleman. In course of time the lords adopted the practice of allowing the villeins to. occupy a part of their lands at will, yielding a return in a portion of their crops. At a very early period it was found to be a strong incentive to the industry of the tenant, that he should have a certain and indefeasible right to the possession of the land, for a definite period of time. Though where a lord granted such an estate to his villein, he thereby enfranchised him, 1 still, his estate fell far short of the dignity of a freehold. He has only a chattel. Blackstone 2 says that it was not until the time of Henry VIII. that the tenant for years was secure in his possession against the lord. I. Estate for years. — "A contract for the possession of lands or tenements for some determinate period." 3 This definition has been criticised, because of the use of the word " contract." No doubt the usual way in which such estates are created is by contract, but they may also be created by will. Perhaps a better definition is given in the same chapter.* " Every estate which must expire at a period, certain and pre- 1 Co. Litt. 137 b. * 2BI. Com. Ch. 24, p. *387. 3 2 Bl. Com. 140. 4 Ch. 9, page 143. 11 162 THE LAW OF REAL ESTATE AND fixed, by whatever words created, is an estate for years." An estate for- years is very frequently called a " term." from " terminus.'''' The word " term " signifies not only the time during which the estate is to last, but also is a name for the estate itself. 2 Only a freeholder had seisin, one who had an estate less than freehold had no seisin — his possession was not given by the ceremony of feudal investiture or livery of seisin. He was possessed of his estate for years, and had a right to the possession of the land as the bailiff of the freeholder, in whom the seisin remained vested. The possession of the 1 tenant is the possession of the landlord, and delivering pos- session to the tenant is delivering possession to the landlord. 3 It is one of the consequences of this lack of seisin that an estate for years could be created to commence at a future time; which could not be done in the case of a freehold estate, because livery of seisin was necessary to the creation of a freehold, and that was a transfer of the immediate pos- session and owners-hip of the land. Where an estate for years is thus created to commence in futuro. of course the lessee has no right of entry until the time limited for the begin- ning of his estate arrives, but he has what is called an inter esse termini, which is an assignable interest, and his grantee will have the lessee's power of entry, and right to reduce the estate into possession at the proper time. An estate for years, although the time of its commence- ment is past, is not complete, until the lessee has entered into possession of the demised premises. Before he has done this, .he cannot maintain trespass or ejectment, for the pos- session is still in the lessor.* No form of words is necessary to create an estate for years. 1 See Digby Hist. Law Real Prop., p. 143 seq., and 197 seq. ' Co. Litt. 45. b. 3 Williams u. Landman, 8 W. & S. 60. ♦ Sennett v. Bucher, 3 Penrose & Watts, 392. CONVEYANCING IN PENNSYLVANIA. 163 The usual and proper words are demise and let, or lease. But whatever words are sufficient to explain the intent of the parties that the one should divest himself of the property, and the other come into it for a determinate time, whether they run into the form of a license, covenant, or agreement, will in construction of law, amount to a lease as effectually as if the most proper and pertinent words were made use of for that purpose. A license to inhabit amounts to a lease. A license to enjoy a house or land from such a time to such a time, is a lease. 1 But the agreement must be such a one as gives the lessee the possession of the land. " If one be hired to work land, receiving for his compensation part of the produce, he is a cropper, not a tenant. He has no interest in the land but receives his share as the price of his labor. The possession is still in the owner of the land, who alone can maintain trespass. 2 Tenure exists between the lessor and lessee for years, 3 and fealty was required from the lessee.* The tenant, therefore, cannot dispute his landlord's title, or set up against him an outstanding title in another, and to do so works a forfeiture of his estate. 6 If he acquires a better title than his landlord, he must give up the possession of the land to him before he can assert it. 6 To assert a title superior to the landlord's and at the same time to claim to hold under the lease, would be the most palpable inconsistency. Every such act necessarily determines the relation of landlord and tenant. A tenant may dispute whether a certain person is or is not 1 Watson v. O'Hern, 6 Watts, 368. 2 Adams i>. McKesson's Exc'rs, 3 P. F. Sm. 81. 3 Co. Litt. 93 b. 4 Id. 67 b. 5 Newman v. Butter, 8 Watts, 54. 6 Heritage v. Wilfong, 8 P. F. Sm. 137 ; Koontz v. Hammond, 12 P. F. Sm. 177. 164 THE LAW OF REAL ESTATE AND his landlord, without violating this well-settled rule. This can only be in cases where the original lessor is dead or has parted with his interest, or where his estate has expired by its own limitation. 1 And if a lease is made by the tenant under the influence of threats or fraud on the part of the landlord, or even in mistake of his rights, if the mistake arises from the mis- representations of the landlord, the tenant may controvert his title ; for the lease, in equity, is rendered void by the fraud, mistake or duress, and the relation of landlord and tenant does not exist. 2 At common law, where the owner of leased lands sold them, it was necessary that the tenant should make attorn- ment to the vendee, and thereby become his tenant. 3 This was rendered unnecessary by the statute of 4 Anne, c. 16, sec. 9, and this statute is in force in Pennsylvania.* The effect of this is to pass to the grantee of leased lands all the rights of the grantor as landlord, and the tenth section pro- tects the tenant from damage or loss by paying the rent to the grantor, before he has received notice of the grant. This British statute has been applied by the Supreme Court to the case where the grantee of the landlord sued for pos- session from the tenant at the end of the term. 5 Where no time is named for the duration of the estate, the law implies that it is for a year, or from year to year, unless there be something in the contract which would lead 1 Elliott v. Smith, 11 Har. 131 ; Smith v. Crosland, Leg. Int. 84,419; 15 W. N. C. 211. 2 Lower v. Hummel, 9 Har. 454 ; Thayer v. The United Brethren, 8 Har. 62. There was no change of possession in this case. The mere fact that the tenant has a better title than his landlord does not of itself raise the presumption that the lease was a fraud or accepted by mistake. Ward v. Phila., 18 W. N. C. 561. 3 Co. Litt. 309 a. 4 See Bob. Dig. *45-*46. * Tilford v. Fleming, 14 P. F. Sm. 300. CONVEYANCING IN PENNSYLVANIA. 165 to a different conclusion. In a case where a letting was by parol, at a monthly rent, it was held that a tenancy from month to month was created, which might be terminated by one month's notice. 1 In counting the time, the day on which the term begins is included, so that a lease on the 1st Jan- uary, for one year, ends at midnight on the 31et December following. 2 But to be an estate for years, in the eye of the law, it is not necessary that the term may be for a whole year ; it may be for a shorter time, and the nature of it is the same. The Pennsylvania rule with regard to the length of a month differs from that laid do.wn by Blackstone, and even in England there are changes in this respect. In Pennsylvania in all transactions between man land man, a month means a calendar month, and not a lunar month, which certainly corresponds better with the general under- standing. 3 As a term may be of any shortness, so it may be of any length, without in any respect altering the nature of the estate. If for less than three years, it may be created ver- bally; if it exceeds the term of three years a writing is required by the Statute of Frauds.* Where a lease for a longer time than three years is made by parol, it takes effect as a lease from year to year. 5 Long terms are not common with us, as they, have been in England, where they are fre- quently made for one thousand years to serve as a protection to purchasers or incumbrancers. They occupy a large space in the English law, and are made to attend or wait upon the inheritance, and are hence called attendant terms!" 1 Hollis v. Burns, 13 W. N. 0. 241. 2 Marys v. Anderson, 12 Har. 272. 3 Shapley v. Garey, 6 S. & R. 539. 4 Act 21 March, 1772, sec. 1, Purd. Dig. p. 830, pi. 1. 5 Clayton v. Blakey, 2 Sm. Ldg. C. * 106. 6 " Long terms are used generally for the purpose of securing the payment of money. For this purpose it is desirable that the person 166 THE LAW OF REAL ESTATE AND A lessee for years is bound to keep the demised premises who is to receive the money should have as much power as possible of realizing his security, and that the ownership of the land should re- main as much as possible in the same state as before. The objects are accomplished by means of the creation of a long term of years, say one thousand, which is vested in trustees upon trust out of the rents and profits of the premises or by sale or mortgage thereof for the whole or any part of the term, to raise and pay the money required as it may become due, and upon trust to permit the owners of the land to receive the residue of the rents and profits. The trustees have only a chattel interest, the freehold remaining with the owner. A proviso for cesser is usually inserted, making the term endure so long only as the purposes of the trust require ; when these expire the title of the trustees at once ceases. If no such proviso i3 inserted the term may lie disposed ot by the trustees surrendering to the owner of the free- hold, in which case the term merges in the freehold. These terms are also a great protection to purchasers. Suppose that after the creation of such a term the whole property had been sold. The purchaser has the term assigned by the trustees to a new trustee in trust for him- self , his heirs and assigns; or, as it was technically said, in trust to attend the inheritance. The reason for this proceeding was that the former owner might since the commencement of the term have created some incumbrance on the property, of which the purchaser was ignor- ant, and against which he was of course desirous of being protected. Suppose, for instance, that a rent charge had been granted to be issu- ing out of the lands subsequently to the creation of the term ; this rent charge, of course, could not affect the term itself, but was bind- ing only on the freehold, subject to the term. The purchaser, there- fore, if he took no notice of the term, bought an estate subject not only to the term but also to the rent charge. If he should have the term surrendered to himself, the unknown rent charge not being an estate in the land, would not have prevented the union and merger of the term in the freehold. The term would consequently have been destroyed and the purchaser would have been left without any protec- tion against the rent charge, of the existence of which he had no knowledge nor any means of obtaining information. The rent charge by this means became a charge not only on the legal seisin, but also on the possession of the lands, and was said to be accelerated by the merger of the term. The preferable method, therefore, was always to avoid any merger of the term. The trustee thus became possessed of the lands for the term of one thousand years, but he was bound by virtue of the trust to allow the purchaser to receive the rents and exercise what acts of ownership he might please. If any rent charge should be claimed it would be postponed to the term, which was in effect a postponement sine die. Williams on R. P. *409-*417 ; 4 Kent. Com. Lect. LVI, *85 seq. CONVEYANCING IN PENNSYLVANIA. 167 in tenantable repair, at his own expense. 1 He is not bound to make any improvements. If he does he cannot call on the lessor to pay for them unless he contracted to do so, 2 and the tenant is liable, not only to his landlord, but to a third person who is injured by his failure to do his duty in this respect. 3 There is no implied warranty on the part of the lessor that the premises are fit for the purpose for which they are leased. 4 Tenant for years is entitled to estover, plough- bote, house- bote, etc., but he is most strictly bound by the doctrines of the law with regard to waste. The shorter the term, the more stringently the law of waste is applied. If the house burns down by accidental fire, he is not bound to rebuild, but his rent is not stopped. The tenant for years is not entitled, at common law, to emblements where his estate expires by its own limitation ; it was his folly to sow when he knew he could not reap. 5 In Pennsylvania, by custom, or Pennsylvania Common Law, the tenant is entitled to the way-going crop. Where the term ends, as is usual, in the spring, he is entitled to return 1 But where a lease is signed upon an agreement by the landlord to make repairs, a failure to repair is a defence to an action for rent. Eberle v. Bonafon's Exrs., 17 W. N. C. 335. 2 Long v. Fitzsimmons, 1 W. & S. 532. A tenant of mortgaged premises may as against a mortgagee purchaser at sheriff's sale, offset after accruing rent by showing that he has made expenditures upon the demised premises under an agreement with the mortgagor land- lord. Kost v. Theis, 20 W. N. C. 545. 3 Bears v. Ambler, 9 Barr, 193 ; Somer's App., 6 W. N. C. 441. As to joint liability of landlord and tenant to owner of adjoining property for damages caused by maintenance of nuisance, see Fow v. Boberts, 12 Out. 489 ; Schilling v. Abernethy, 17 W. N. C. 364. KJarsonv. Godley, 2 Cas. 117; Moore v. Weber, 21 P. F. Sm. 429. In an action for rent the bad repute of the premises is no defence. Twibill u. Brown, 17 W. N. G. 221. 5 Co. Litt. 55 b. 168 THE LAW OP REAL ESTATE AND during the summer, after his estate has expired, and take his grain which was sown in the previous autumn. 1 A tenant is also bound to give his landlord notice of any ejectment which may be brought against him for the demised premises, by the Act of 21 March, 1772, sec. 8," under a pen- alty of two years' rent. A tenant for years is at liberty to assign or transfer his estate — unless expressly forbidden by his lease — or he may under-let the premises for any shorter time than his own term. This does not relieve him from his responsibility for the payment of the rent. 3 Usually the covenants in the lease define clearly the rights and duties of the respective parties ; of course, where they exist, they make the law for them to be governed by. I have spoken only very incidentally about the rent, which is nearly always reserved when a term is created, having already sufficiently treated that subject. An estate for years is like all other property liable to be taken in execution for the debts of the tenant, but it is treated as a chattel, and not as real estate, and is sold jipon a writ of £. fa. without condemnation. 4 So like other chattels, a term of years, upon the death of the owner, descends to his executors or administrators for the benefit of his estate. 5 When the term ends, the lessor is entitled to immediate possession ; and he is entitled to take it, using no more force than is necessary. 6 Or he may, if the tenant remains in possession, consider him as tenant for another year. It is at his election to treat him as a tenant or as a trespasser.' It is 1 Bittinger v. Baker, 5 Cas. 66. 2 Purd. Dig. P. 635, pi. 2. * Frank u Maguire, 6 Wr. 77. ' Dalzell v. Lynch, 4 W. & S. 255 ; Kile v. Giebner, 4 Amer. 381. 5 Keating v. Condon. 18 P. F. S. 75. 6 Overdeer v. Lewis, 1 W. & S. 90. ' Hemphill v. Flynn, 2 Barr, 144. CONVEYANCING IN PENNSYLVANIA. 169 a very unsafe thing to get possession against the tenant's con- sent unless it can be done quietly, without violence or threats of violence. The Penal Statutes on the subject of forcible entry and forcible detainer are very explicit, and extensive in their application. , The remedy of the landlord to recover possession properly comes under the head of practice. Where the lease is for a certain term, no notice is required to entitle the landlord to possession, unless to give him the right to a statutory remedy, where the statute makes pre- vious notice necessary. 2 But the right of the landlord to possession is complete without notice. 3 II. Tenant from Year to Year. It is very frequently provided in leases for a definite term, fixed in the lease, that if the tenant hold over after the ex- piration of his term, he may be considered as tenant for another year, on the same terms, and so on from year to year, until lawful notice be given. Less frequently the ten- ancy is expressly created in the lease from year to year. In such cases a tenancy from year to year is expressly created by the acts of the parties.' But such a tenancy very often arises by construction of law, upon an implied agreement of the parties. I have already said that where no time is 1 Act 31 March, 1860, sec. 21 and 22 ; Purd. Dig. p. 406, pi. 27 and 28. An entry into a building under a claim of right without violence and a strong hand or other circumstances of terror, is not an offence in- dictable under the twenty-first section of the Act of March 31, 1860. Thompson v. Commonwealth, 1 Crum. 155. In a prosecution for forcible entry and detainer the question of title is not at issue, and evidence relating thereto may be properly rejected. Quinn v. Com- monwealth, 20 W. N. C. 293. ' Three months' notice is necessary to entitle the landlord to proceed under the act of 1772. Vedilz v. Levy, 17 W. N. C. 477. s MacGregor v. Rawle, 7 P. F. Sm. 186. ' A lease for one year with a provision that if the tenant should con- tinue on the premises after the first year, then the lease should be in force for another year and so on from year to year, is a lease binding but for one year. Jones v. Kroll, 1 Crum. 85. 170 THE LAW OF REAL ESTATE AND agreed upon or named in the lease for the duration of the term, the law will imply a tenancy for one year at least, or from year to year, especially if an annual rent be reserved to be paid. 1 And if a tenant for a certain term holds over after its determination, with the express or implied consent of his landlord, he becomes tenant from year to year; and in such a case, if no new agreement be entered into, the law will presume that the tenant holds the premises subject to all such covenants contained in the original lease as are con- sistent with a yearly tenancy. 2 The continued possession of the tenant, with the landlord's consent, is considered as evi- dence of a new contract, without any definite period, which is construed to be a tenancy from year to year. Anciently such leases without any definite period were construed to be tenancies at will, and Blackstone says, " courts of law have of late years leaned as much as possible against construing demises, where no certain term is mentioned, as tenancies at will, but have rather held them to be tenancies from year to year, so long as both parties please, especially where an annual rent is reserved to be paid. 3 " They are still so far tenancies at will that either party may determine the tenacy, with the very important modern incident annexed to them, that the will to terminate them can be exercised only at stated periods, and upon sufficient notice to protect the holder of the estate from the evils of the uncertainty. 4 In the textbooks this estate from year to year is nearly always treated under the head of tenancy at Will. ' Lesley v. Randolph, 4 Rawle, 123 ; Hey v. McGrath, 32 P. F. Sm. 310. 1 Phillips v. Monges, 4 Whart. 226; l.aguerenne v. Dougherty, 11 . Hartwig, 11 W. N. C. 197. 171 THE LAW OP REAL ESTATE AND session of land by lawiul title, and keeps it afterwards with- out any title at all. 1 He is not entitled to any notice to quit. He has no estate in the land, nor right to the posses- sion of it. He has only a bare possession. He is not a mere trespasser, for he came in by right, but he becomes a tres- passer as soon as the landlord demands possession and it is refused. " This tenancy is the very lowest known to the law. It cannot be conveyed, it cannot, be enlarged by a release; in fact, it is a mere invention of the law to prevent the con- tinuance of the possession from operating as a trespass." 3 ' 2 Bl. Com. 150. 2 Sm. Land and Ten. * 26 and Jackson and Gross. CONVEYANCING IN PENNSYLVANIA. 175 CHAPTER XII. ESTATES ON CONDITION— 1. IMPLIED— 2. EXPRESSED— SPECIAL LIMITATIONS— WHETHER CONDITION OR LIM- ITATION DEPENDS ON CONSTRUCTION-ALSO WHETHER CONDITION OR COVENANT-CONDITIONS PRECEDENT AND SUBSEQUENT— WHEN VOID— PERFORMANCE— CON- DITIONAL LIMITATIONS— EQUITY'S JURISDICTION IN CERTAIN CASES OF BREACH. Mention has been made of determinable or defeasible es- tates, in fee, in tail, for life, and for years, for the purpose of distinguishing them as to the class of estates, considered with regard to their quantity, to which they may belong. There are also estates which have an uncertain beginning, whose coming into existence depends upon the happening of an uncertain event. These, as well as some of the deter- minable or defeasible estates, are included in the general term, Estates upon Condition. Estates upon condition are such as have a qualification annexed to them, by which they may, upon the happening of a particular event, be created, or enlarged, or destroyed. 1 They are divided into, (1) Estates upon condition implied or in law, and (2) Estates upon condition express, or in deed. I. Estates upon condition in law are such as have a con- dition impliedly annexed to them, without any condition be- 1 4 Kent, * 121, citing Co. Litt. 201 a. Blackstone's definition is not exact. " Such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated." 2 Bl. Com. 152, also citing Co. Litt. 201 a. Where the happening of the uncertain event would operate to enlarge the estate, it cannot be said that its existence depends on it. The passage from Co. Litt. 201 a, to which reference is made, is in these words: "And a condition annexed to therealtie, whereof Littleton here speaketh, in the legal understand- ing, est modus, a qualitie annexed by him that hath estate, interest, or right, to the same, whereby an estate, etc., may either be defeated, or enlarged, or created upon an uncertaine event." 176 THE LAW OF REAL ESTATE AND ing specified in the deed or will. 1 All estates have some such condition inseparably annexed to them from their essence and constitution. At common law, every tenant held his estate upon an implied condition that he should not commit treason. If he broke the condition, his estate was forfeited. So all tenants for life or years held their lands on condition implied that they should not levy a fine, suffer a reco'very, or make feoffment with livery, in fee, and upon breach of the condition the reversioner might enter. All these implied conditions are of feudal origin, and under the statute of Gloucester, tenants for life or years hold their estates on con- dition not to commit waste. All civil offices for a term of years in Pennsylvania, are held upon an express condition in the Constitution of the Commonwealth, " that they so long behave themselves well." 2 These are instances of implied condition. II. Estates upon conditions expressed or conditions in deed. An express condition is a qualification expressly annexed to an estate at the time of its creation, whereby it shall either commence, be enlarged, or be defeated upon the happening of an uncertain event. Blackstone notes the distinction be- tween conditions and limitations, which Littleton denomi- nates also conditions in law. 3 This distinction is important, and it will be a help to comprehending conditions, to know what a limitation is. All estates are limited, and the words which fix or limit the quantity of the estate, are the words of limitation. A fee-simple is limited to the feoffee and his heirs, an estate tail is limited to the donee and the heirs of his body, a life estate is limited to the lessee for and during his life. These words of limitation declare only the quantity of ' 4 Kent, * 121. 2 Art. VI., Sec. 4; Commonwealth v. Gamble, 12 P. F. Sm. 345. " Littleton, Sec. 380. CONVEYANCING IN PKNNSYLVAN1 A. 177 estate which is transferred. The whole estate transferred is vested in the first taker. Words of limitation must be dis- tinguished from words of purchase. Where a question of this sort arises it is determined by the intention, especially in wills. The word heirs is generally construed a word of limitation, but not always. If a devise be to a man and his son John, it is clear that the testator meant the son John to take, and although John be the only son, and would there- fore be heir apparent, yet since it cannot be doubted that it was intended to make a gift to John, he is a taker of the estate given to him by force of the devise, and not, in any sense, through his father. But a devise to a man and his heirs, gives nothing to any but the devisee who is named, for the words " and his heirs," are not used to designate any in- dividuals, but only to declare the quantity of estate the devisee is to take. They are, therefore, words of limitation. Now, suppose that there were super-added to these original or primary well-known words of limitation, other words, fixing an event beyond which the estate could not possibly endure, thus creating a determinable estate, as an estate to A. and his heirs so long as they continue tenants of the manor of Dale ; or, until the marriage of B. ; or while B. shall have heirs of his body, and we shall have an example of a limitation, which, to distinguish it from the original or general limita- tion, is sometimes called a determining or special limitation. A limitation of this character marks the period which is to determine the estate, and specifies the utmost time of its continuance, and so is to be generally known and distin- guished from a condition by the circumstance that the words used in expressing it are such as denote the lapse of time, as for example, '' so long as," " during," " while," until." ' It has been already explained that estates so limited do not lose any of the dignity belonging to them by reason of their ^o. Litt. 235 a; Henderson v. Hunter, 9 P. F. S.aiO.. 12 178 THE LAW OF REAL ESTATE AND quantity, because of such special limitations which convert them into determinable estates. An estate which may pos- sibly last forever is as much an estate of inheritance when qualified by a limitation which may terminate it in a short time as where it is free and unclogged, and the dominion of the tenant over the land is as great in the one case as in the other. A condition may operate to determine an estate as well as a limitation, but it does not of itself bring the estate to a close ; it gives to the grantor and his heirs the right to do so, which they may or may not exercise, and it is known by dif- ferent words from those which create a limitation. The ordinary words are '' on condition that," " so that," " pro- vided, that if," "on pain of forfeiture if." 1 No precise words are necessary. It is a question of construction, but the law leans against conditions which work forfeitures, and the intention must be clearly expressed in order to be construed a condition. 2 And it cannot be asserted that a clause under all circumstances will operate as a condition, even where it begins with the words just mentioned, and it is sometimes a difficult matter to distinguish between a condition and a limitation ; and at common law this was a distinction of much importance, because none but the grantor or his heirs could enter upon the breach of the condition, but where an estate expired by limitation, the one next in remainder had the right of entry. The importance of the distinction is not so great in Pennsylvania — but of this directly. 3 A difficulty also maybe sometimes found in distinguishing a condition from a covenant, and this distinction is of im- portance now, for the breach of a condition frequently 1 Uo. Litt. 203 h, 204 a. 2 Cook v. Trimble, 9 Watts, 15. ' On distinction between determinable limitations and limitations upon condition, see Challis on Real P. Text Book Series, Blackstone Pub. Co's. Ed. p. 189. CONVEYANCING IN PENNSYLVANIA. 179 operates to defeat the estate, whereas the breach of a covenant only renders the covenantor liable to an action for damages. It may happen that the same clause will create both a con- dition and a covenant. Quite frequently in deeds, we find the words, "Provided always, and it is hereby agreed." They make both a condition and a covenant. 1 Where a for- feiture is expressly stipulated, or a right of entry reserved to the grantor and his heirs, the clause will be construed as a condition, whatever be its form. 2 Sheppard's Touchstone 3 says that where a clause is inserted among the covenants in a deed, it can operate as a condition only when attended with the following circumstances : 1. It must stand by itself, and have no dependence upon any other sentence in the deed. 2. It must be compulsory upon the feoffee or grantee. 3. It must be by the words of, or on the part of the feoffor, or grantor. 4. It must be applied to the estate and to some other matter. These rules are somewhat vague, and of difficult applica- tion. They cannot apply to all cases of estates upon condi- tion, but only to those which are strictly estates granted upon condition subsequent to be performed by the grantee. I would not have mentioned them, but for the fact that they have been adopted and applied by our Supreme Court, in the several cases cited. If considered by the student as of universal application, they would surely confuse and mislead. They should, therefore, be confined to the case put in the Touchstone, i. . Stewart, 5 Nor. 89. There may be a distinction made here as to the result of the Act of 2869, protecting mortgages from being discharged by sheriff's sales, or CONVEYANCING IN PENNSYLVANIA. 201 But in Moore's Appeal ' the Supreme Court held that there must be an assumption of the mortgage debt by the vendee more than will be implied from the words " under and sub- ject "in the deed. These words, without more, simply im- ply a covenant to indemnify the grantor, and only for his protection. The Act of 12 June, 1878, 2 declares that no implied as- sumpsit shall arise simply from the use (in a conveyance) of the words "under and subject to a mortgage, " and no suits be brought thereon. Of course, this statute cannot affect contracts made prior to its passage ; that would be a viola- tion of the constitutional provision that no law shall be passed impairing the obligation of any contract, and it has consequently been held to be altogether prospective. 3 A mortgage has or creates a lien on the mortgaged prem- ises. The lien of a mortgage may be prior or subsequent to other liens and mortgages. In this State the words " first mortgage " imply that the lien of the mortgage is prior to 1 7 Nor. 450 ; Moore's Est., 5 W. N. C. 36. 2 Purd. Dig., title, Beal Estate, p. 1464, pi. 29. 3 Merriman v. Moore, 9 Nor. 78 ; Smith v. Conrad, 11 "W. N. C. 100; Miller v. Kern, 7 W. N. C. 504; Burton v. Association, 7W.N.C. 439. judicial sales of any kind, wherever they are, prior to all other incum- brances, except ground rents, purchase money due the Commonwealth, other mortgages, or taxes subsequent in point of time, etc. The theory of that statute is undoubtedly that the mortgagee looks to the mortgaged property for his security, aud not to any individual liability. Owing to this statute, the Orphans' Court will not decree the sale of real estate for payments of debts, if the debts can be paid from the personalty of decedent, leaving the bond accompanying the mortgage out of consideration ; for, if the Legislature meant what they said, i. e. , that no judicial sale should discharge the lien of a mortgage (such as above) , then a sale for the payment of the mortgage debt itself would not discharge the lien of the mortgage. Consequently it would be absurd to order a sale for any such purpose, or to allow the existence of such a debt to influence the court in ordering a sale, since the mortgage would bind the land in the hands of the purchaser and could not be paid out of the proceeds of sale. 202 THE LAW OP REAL ESTATE AND any other claim whatever. 1 The words " second mortgage " mean one without intervening liens between it and the first. 2 Prior to 1820 a mortgage, like a deed, was required to be recorded within six months from its date. This was under the Act of May 28, 1715. 3 The Act of March 28, 1820, 4 made a radical change. "All mortgages, or defeasible deeds in the nature of mortgages, made or to be made or executed for any lands, tenements or hereditaments within this Commonwealth, shall have priority according to the date of recording the same, without regard to the time of making or executing such deeds ; and it shall be the duty of the recorder to indorse the time upon the mortgages or defeasible deeds when left for record, and to number the same according to the time when they are left for record ; and if two or more are left upon the same day, they shall have priority according to the time they are left at the office for record ; and no mortgage, or defeasible deed in the nature of a mortgage, shall be a lien until such mort- gage or defeasible deed shall have been recorded, or left for record as aforesaid : Provided, That no mortgage given for the purchase money of the land so mortgaged shall be affected by the passage of this act, if the same be recorded within sixty days from the execution thereof." A mortgage unrecorded in the lifetime of the mortgagor gains no lien by being recorded afterwards. It ranks simply as a specialty debt of the decedent. 5 In spite of the plain words of the statute, that " no mort- gage shall be a lien until left for record," it is a well-settled doctrine of equity that an unrecorded mortgage is good against the mortgagor, and all claiming under him with notice of the mortgage ; and all volunteers are bound by 1 Green's Appeal, 10 W. N. C. 73. 2 Rice's Appeal, 29 P. F. Sm. 168. 8 Purd. Dig., " Deeds and Mortgages," p. 582, pi. 92. 4 Purd. Dig., " Deeds and Mortgages," p. 588, pi. 122. 6 Adams' Appeal, 1 P. & W. 447 ; Nice's Appeal, 4 P. F. Sm. 200. CONVEYANCING IN PENNSYLVANIA. 203 the mortgage, whether they have notice or not. No one is protected by the statute but a bona fide purchaser, without notice. 1 A scire facias may issue upon an unrecorded mort- gage against anyone bound by it. 2 Where a mortgage and a judgment are both entered on the same day, they rank as equal liens, and take pro rata? The statute provides that where two mortgages are given on the same day, and recorded on the same day, the one left first at the recorder's office shall take priority. This would not apply to purchase- money mortgages recorded within sixty days. No matter when recorded (if within the sixty days) they relate back to the delivery of the deed, and rank as equal liens. 4 The Act of 25 May, 1878, 5 entitled " An act relating to the acknowledgment and recording of deeds in counties co- extensive in boundaries with cities of the first class," 6 pro- vides : " That all deeds, conveyances and other instruments of writing, wherein it shall be the intention of the parties executing the same to grant, bargain, sell and convey, any lands, tenements or hereditaments, situate, lying and being in any city of the first class, in this Commonwealth, upon being acknowledged by the parties executing the same in the manner now provided by the laws of this Common- wealth, shall be recorded in the office for recording of deeds in the county where such lands, tenements and heredita- ments are situate and being ; and every such deed, convey - 1 Mellon 's Appeal, 8 Cas. 121 ; Murphy v. Nathans, 10 Wr. 508; see Bank v. Thomas, 19 W. N. O. 575. 2 McLaughlin v. Ihmsen, 4 Norris, 364. 3 Clauson's Appeal, 10 Har. 359 ; Hendrickson's Appeal, 12 Har. 363 ; Magaw v. Garrett, 1 Casey, 319. 4 Dungan v. Ins. Co., 2 P. F. Sm. 253 ; Erb v. Myers, 18 W. N. C. 197. s P. L. 151. 6 On the question of the constitutionality of this act, as being local or special legislation, see Appeal of Scranton School District, 3 Amer. 176 ; City of Beading v. Savage, 23 W. N. C. 332. 204 THE LAW OF REAL ESTATE AND ance or other instrument of writing, which shall not be acknowledged, proved and recorded as aforesaid, shall be adjudged fraudulent and void against any subsequent bona ■fide purchaser or mortgagee, unless such deed, conveyance or instrument of writing shall be recorded as aforesaid, be- fore the recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim : Pro- vided however, That this act shall not take effect until the 1st day of July, 1878." l A strict construction of this statute makes it applicable to purchase-money mortgages. It requires the immediate record of " all deeds, conveyances or other instruments of writing, wherein it shall be the intention of the parties exe- cuting the same to grant, bargain, sell and convey any lands," etc. These words of description include mortgage s. They are deeds ; they are conveyances ; and the intention of the mortgagor is expressed in them to grant, bargain, sell and convey the land. If it be doubted whether the words, " deeds, conveyances," include mortgages, the statute itself, in another portion of it, furnishes the answer. In the clause immediately preceding the final proviso, the phrase is used, " the recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim." So a mort- gagee claims under a " deed or conveyance," ergo, a deed or conveyance may mean a mortgage in this act. The act has not received judicial construction, so far as I know, but until it shall be decided by the courts not to in- clude and apply to purchase-money mortgages, careful con- veyancers will conclude that it does require them to be recorded immediately, and the proviso to the Act of 1820, allowing sixty days for their recording, is not in force in Philadelphia. Where land, subject to a mortgage, is sold at judicial sale, 1 P. L. 151. CONVEYANCING IN PENNSYLVANIA. 205 the question arises whether or not the lien of the mortgage is discharged. A judicial sale is one which is made under the order of a court of competent jurisdiction. Prior to 1830 the general rule was, that a judicial sale discharged the lien of a mortgage, so that the purchaser would take the land clear of the mortgage and the holder of the mortgage would have to look to the funds produced by the sale for his money ; there- fore, in examining a title, it is not customary to extend searches back of a sheriff's sale made prior to 1830. The Act of 6 April, 1830, section l, 1 provides that "where the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mort- gages, ground rent, and the purchase money due to the Com- monwealth, the lien of such mortgage shall not be destroyed or in any way affected by any sale made by virtue or author- ity of any writ of venditioni exponas, or of levari facias." 2 There were some cases where taxes had prior liens. The Act of 11 April, 1835, section 2, 3 provided that the prior liens of taxes should not cause the liens of such mortgages to be dis- charged. The Act of 1830 did not apply to sales made under any writs other than venditioni exponas and levari facias. The Act of 6 April, 1845, 4 provided that mortgages should not be discharged by any sale made by virtue of any writ of execu - tion whatever. There were, however, judicial sales which were not made by authority of writs of execution, such as ' Purd. Dig. 589, pi. 128. 2 A sheriff's sale of real estate on a judgment in covenant for ground rent reserved, discharges a mortgage upon the premises subsequent to the ground rent deed. Rushton u.Lippincott, 4 Crum. 12. The lien of a mortgage, which has been discharged by a judicial sale, is not re- vived when the mortgagor has re-acquired title to the mortgaged premises through another as purchaser at such sale. Kouch v. Deck, 1 Crum. 157. The lien of a mortgage is divested by a sheriff's sale upon assignment entered upon a bond secured by such mortgage. Stoner's Appeal, 20 W. N. C. 375. 3 Purd. Dig. 590, pi. 130. £ Purd. Dig. 590, pi. 131. 206 THE LAW OP REAL ESTATE AND orphans' court sales in partition and sales under the Price Act. To avoid this difficulty the Act of 23 March, 1867, 1 provided that the lien of a mortgage should not be discharged by any judicial case whatever. The Act was subsequently limited with respect to orphans' court sales. 2 The lien of a prior mortgage was discharged by an orphans' court sale in every part of the State except Philadelphia, Perry, Venango and a few other counties. 3 Finally, the Act of 22 March, 1887, 4 provided that the prior lien of a mortgage should not be destroyed or in any- wise affected by any judicial or other sale whatsoever, whether such sale shall be made by virtue or authority of of any order or decree of any orphans' court or other court, or of any writ of execution, or otherwise, howsoever ; Pro- vided, That the act should not apply to cases of mortgages upon unseated lands, or sales of the same for taxes. When land is held by several persons as tenants in com- mon, a mortgage by one of them of his undivided share, con- veys no estate in the land. The mortgagee has a mere in- cumbrance. He is not entitled to be made a party to parti- tion proceedings commenced subsequently to his mortgage, or to be notified thereof, and, notwithstanding the statutes saving mortgages from being discharged by judicial sales, such mortgage is discharged by a sale in the partition pro- ceedings, and is entitled to be paid out of the mortgagor's share of the proceeds of such sale. s And where, in partition, the land is awarded to one of the parties, other than the mort- gagor, and owelty is awarded to the mortgagor, the lien of 'Purd. Dig. 591, pi. 135. 2 Act 10 Mch. 1870, Purd. Dig. 591, pi. 136. 3 In Philadelphia, an orphans' court sale for the payment of debts, does not discharge the lien of a mortgage created by the decedent, although scheduled among the debts. Building Association's Appeal, 32 P. F Sm. 330; Bloomer's Est., 2 W. N. C. 512. 4 P. L. 6. 6 Wright v. Vickers, 31 P. F. Sm. 124, 130. CONVEYANCING IN PENNSYLVANIA. 207 the mortgage upon the land is discharged and the mortgagee is entitled to be paid from the owelty of the mortgagor. 1 The party who takes the land, subject to payment of the owelty, is bound to see that the owelty is applied to the extinguish- ment of the mortgage on the individual shares ; if he. fails to do this, he is personally responsible to the mortgagee. 3 Municipal and State taxes have priority over every other claim, and though subsequently assessed are a prior lien in point of payment. Though not prior in time they are prior in right. 3 . A sheriff's sale under any junior incumbrance does not divest the lien of a mortgage, even where there has been a claim for taxes registered prior to the recording of the mortgage. In Rhein Building Association v. Lea, 4 a mortgage was recorded on 24 April, 1877. A lien for the taxes of 1875 had been duly registered on 1 January, 1876. The mortgaged premises were sold by the sheriff on 6 July, 1880, under a judgment recovered on a second mortgage. The question was whether or not the sheriff's sale divested the lien of the mortgage of 24 April, 1877, by reason of the prior lien for registered taxes, and the court held that it did not. The Act of 9 April, 1849, 5 provides that an assignment of a mortgage may be recorded. It is the duty of a person taking an assignment to search the records in the recorder's office to see whether the mortgage has been assigned before. 6 The assignee of a mortgage takes it subject to all the equities in favor of the mortgagor existing at the time of the assign- ment. Where a mortgagor, without notice of an assign- 1 Stewart v. Allegheny Nat. Bank, 5 Out. 342. 2 Keed v. The Fidelity Co., 3 Amer. 574. 3 Anspach's Appeal, 2 Amer. 27; Appeal of City of Titusville, 12 Out. 600. 4 4 Out. 210. 6 Purd. Dig. 531, pi. 84. K Wetherill's Appeal, 3 Grant, 281. 208 THE LAW OF REAL ESTATE AND ment, satisfied the mortgage by taking up the notes to which it was collateral, it was held to be a valid payment against the assignee, who had neither inquired of the mortgagor the state of his indebtedness, nor given him notice of the trans- fer. 1 When there is a bankrupt law in existence (as there was in the United States from 1867 to 1878) and a man is adjudi- cated a bankrupt, all his property is taken from him and vested in the assignee, in trust for the creditors. It is, there- fore, necessary to see that the person about to assign a mort- gage has not been adjudicated a bankrupt. For this purpose bankruptcy searches are taken. The assignee of a mortgage should also see that the mortgage is prior in point of pay- ment to all taxes and municipal claims. These claims, while not affecting the lien of the mortgage, would affect its value as an investment. It is, therefore, necessary to take out locality and tax searches. The remedies for enforcing the payment of a mortgage debt are ejectment, bill for foreclosure and scire facias. Ejectment is seldom resorted to, on account of the length of the proceedings, and also because a mortgagee who has recovered possession is directly accountable for all the rents and profits of the estate actually received, and for those which might have been received but were lost through negli- gence. By taking possession he imposes upon himself the duty of a careful owner, and he is bound to account for all that such an owner would with reasonable diligence have received. 2 Strict foreclosure is where the court of equity, on bill filed 1 Horstman v. Gerker, 13 Wr. 282. As to liability for an erroneous satisfaction of a mortgage by a mere mistake, not involving fraud, see Binney's Appeal, 1 Crum. 169. * Where the mortgagee is in possession the right of redemption in the mortgagor may be enforced in an action of ejectment. Mellon v. Lemmon, 1 Amer. 56 ; Wells v. Van Dyke, 13 Out. 330. CONVEYANCING IN PENNSYLVANIA. 209 by the mortgagee, by their decree, fix a definite time during which the pledge must be redeemed by the payment of the money, or the Equity of Redemption will be barred or fore- closed. This is still practiced in some States, and in Eng- land ; but it is more common for the court to order the prop- erty to be sold, and in that case the proceeds are applied to the payment of the debt. In Pennsylvania strict foreclosure is not allowed, and if a bill- be filed for enforcing the pay- ment of a mortgage debt, the decree must be for a judicial sale. 1 The ordinary practice in Pennsylvania is by scire facias. 2 ' Winton's Appeal, 6 Nor. 77. 2 For an account of the practice in proceedings on a mortgage by scire facias, see Tr. & H. % 1948, seq. 14 210 THE LAW OF REAL ESTATE AND CHAPTER XIV. USES AND TRUSTS— THEIR ORIGIN IN THE BOM AN LAW —HOW CHANCERY GAME TO ADOPT THEM— THE RULES GOVERNING THEM MAINLY FOREIGN TO THE COMMON LAW— STATUTE OF USES— RESULTING USES— SHIFTING AND SPRINGING USES— POSSIBILITY OF SEISIN—TRUSTS —ACTIVE AND PASSIVE— USES UPON USES. In the preceding pages, mention has been frequently made of the words "legal estate," "equitable estate," "uses," " trust estate." It is now time to explain these more fully. The learning on the subject of uses and trusts is very volum- inous, and some of it very subtle and intricate. 1 Lord Bacon defines a use to be " a trust reposed by any person in the terre-tenant, that he may suffer him to take the profits, and that he will perform his intent." And again he says, " use is an ownership in trust, so that the use and the seisin, or possession, rather differ according to the rule of the court, than according to the nature of the thing, for that one of them is in court of law, and the other in court of conscience." This first definition was derived by Lord Bacon from Plowden, and from the same source Blackstone took the definition he gives. "A confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestui que use, or him to whose use it was granted, and suffer him to take the profits." The doctrine of uses did not spring from the common law 1 2 Bl. Com. 327-337 ; 1 Spence, Eq. Jnr. 347, 43.5-517 ; 1 Cruise, Real Prop. Tit. XI, and Tit. XII, Cliap. 1, 2; 4 Kent. Com.*2S9,*314,*316, *347 ; Digby, Hist. Law Heal Property, 274-288 ; Challis, Real Prop., Text Book Series (Blackstone Pub. Co.), 237-293; 314. »2B1. Com. 328. CONVEYANCING IN PENNSYLVANIA. 211 of England, but was imported into it from the Roman law, for the purpose of overcoming, or rather, getting around, certain stiff, unyielding principles of the common law with respect to estates in land. In Rome, by the Voconian law, no female could be ap- pointed heir to a citizen, even though she might be an only child, and, by reason of other laws, other persons, as exiles, etc., could not be made heirs ; and, it is said, that the fidei-com- missum of the Roman law sprung from the practice which became common under this Voconian law, to constitute a qualified person as heir, with a request that he would restore the inheritance, or hold it for the benefit of the person for whom the testator wished to provide and who could not take it by direct appointment. And, in course of time, it became a part of the Roman law that such fidei-commissa should be enforced, and the person, into whose hands an estate should thus come, should be compelled to perform the trust upon which the estate was committed to him. It is a curious coin- cidence that the trusts, or uses of the Roman law, should have been generally introduced into England for the same purpose that caused their origin in Rome ; that is, to enable the provisions of the law to be evaded to accomplish, in an indirect and circuitous manner, what was positively pro- hibited. The introduction of uses is attributed by all the text writers to the clergy, for the purpose of evading the Statutes of Mortmain. These statutes positively forbid the alienation of lands to corporations. They might take but could not hold. And Sir Edward Coke says that the true reason of the name mortmain, was that, where lands were conveyed to corporations, they came to dead hands as to the lords, for, thereby, the lords lost their escheats, wards, marriages, re- liefs and the like, and, therefore, was called a dead hand, for that a dead hand yieldeth no service. 1 Blackstone's expla- 1 Co. Litt. 2 b. 212 THE LAW OF REAL ESTATE AND nation of the term is more reasonable, " that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land, therefore, holden by them, might, with great propriety, be said to be held in mortua manu." 1 Since lands could not be granted directly to the religious houses, the land was granted to some one for the use of the religious houses, and the Chancellors of those times (beginning about 1370) being clergymen, held that the execution of the confidence or trust reposed in the terre-tenant, was binding upon his conscience; and they enforced it accordingly in the Court of Chancery. In 1392, or about twenty or thirty years after the introduc- tion of uses by the clergy, the Statute 15 Richard II., was passed, which subjected uses to forfeiture for being held in mortmain, in the same manner as the lands themselves would be. 2 Uses being once introduced, the laity were not long behind the clergy in resorting to them. They were introduced about the time of the close of the reign of Edward III. and from his death, for at least a century, the kingdom of England was more or less in a turmoil over the succession to the throne ; and, as Blackstone tersely says, " each of the con- tending parties, as they became uppermost, alternately at- tainted the other," and men. by putting their estates in the shape of secret uses, lessened the risk of forfeiture. The common law courts, from the earliest times, enter- tained an antipathy against uses, perhaps because they had their origin in a design to evade the principles of the law and were used mainly for fraudulent purposes. They, therefore, determined that the cestui que use had no property whatever in the lands, because no legal rights to a freehold estate in lands 1 1 BI. Com. 479. 2 2 Bl. Com. 272. For this statute, see Digby, Hist. Law Real Prop. 289. CONVEYANCING IN PENNSYLVANIA. 213 could be created or transferred without the ceremony of liv- ery of seisin, and, where lands were legally conveyed to one man for the use of another, the use derived its effect only from the declaration of the feoffor ; and so no estate could pass to, or vest in, the cestui que use, for no livery was made to bim. But, although no estate in the land was recognized at law but that of the feoffee or terre-tenant, to whom the seisin had been duly transferred by livery, yet, in the courts of equity, it was, in process of time, established as a rule : 1st, that the cestui que use could take the profits; 2d, that he could demand a conveyance of the land to be made to him- self, and, 3d, that he could, if the possession were disturbed, call upon the feoffee or holder of the legal title to bring an action to recover the possession for his benefit. Hence, the seisin, being the only estate recognized by the common law courts, was called the legal estate, and the use, being recog- nized only in equity, the equitable estate. To the execution of a use it was required that there should be confidence in the person and privity of estate. 1. Confidence in the person might be express, as where land was conveyed to one to hold for the use of another ; or it might be implied, as where one who held land for the use of another, conveyed it to a third person who had notice of the use, without consideration. The new feoffee took the land upon an implied confidence that he would hold it for the use upon which his feoffor held it. Where the land was conveyed to a stranger, who had no notice of the use, for valuable consideration, the use was destroyed. There was no confidence reposed in him, express or implied. 1 2. The use also required privity of estate. If the feoffee to uses was disseised by a stranger, the use could not be enforced against him, even if he had notice of it before he 1 1 Cruise, Dig. Tit. XI, chap. 2, sec. 8-9 ; Digby Hist. Law Real Prop. 281-282. 214 THE LAW OF REAL ESTATE AND entered. The privity of estate was destroyed by the dis seisin. 1 Since uses were unknown and unrecognized by the com- mon law, and were regulated entirely by the chancery, it was natural that they should be governed by rules drawn from the civil, or Roman law, from which they themselves were derived. The law regarding them was, therefore, en- tirely different from that which regulated feudal estates. Blackstone gives seven qualities, or incidents, of uses, as distinguished from estates at common law. 2 I will go over them briefly, and explain as far as is necessary. 1. Nothing could be granted upon use, except such things as could be taken possession of — such things as lie in livery. 2. A use could not be raised without a sufficient com-ider ation. At common law any conveyance of land which was sufficient to transfer the seisin, passed an irrevocable title, without regard to the question whether there was any con- sideration or not. A feoffment with livery, a tine, or a com- •mon recovery, were sufficient to put the transferee of the land into possession, and to vest the seisin in him ; and the law looked no further. In equity, however, it was different. The court looked below the surface ; it paid no attention to the transfer of the seisin, but regarded what had actually passed at the time of the transaction between the parties, and if it appeared that the person to whom the seisin had been transferred had no righteous claim to the enjoyment of the lands, it could not take away the legal title which he 1 The word privy, or privity, has various meanings in law; as privity of blood, as between ancestor and heir ; privity of contract, the connection existing between persons who are interested in, or bound by the same contract ; so privity of estate is the connection existing between those who claim tinder the same conveyance or title. The disseisor is not a privy to the estate, because he claims, if at all, under a title para- mount to the feoffment which created the use. If he should claim under that feoffment he would be a privy, and the use would not be destroyed. 1 2 Bl. Com. 330. CONVEYANCING IN PENNSYLVANIA. 215 had, but it could and did compel him to make use of his title for the benefit of the person for whose use he held the land. And an agreement that the feoffee was to hold for the use of the feoffor was always implied in equity, wherever it ap- peared that there was no consideration ior the feoffment, unless there was a declaration that the feoffee should hold for the use of another than the feoffor, in which case nothing would be presumed contrary to what was expressed. A con- sideration rendered the conveyance absolute. 3. Uses descended according to the course of the common law. Equitas sequitur legem. 4. The cestui que use might freely alien his estate. No livery of seisin was required as upon alienation of a freehold at common law, for he had no seisin. He could not deliver what he did not have. Consequently, it might be transferred in any species of deed or writing, and no words of limitation were necessary to transfer all the cestui que trustfs interest, even if a fee- simple. If a sufficient consideration was paid, the courts of equity would decree the absolute property in the use to be well vested in the purchaser. So uses might be devised by will, and it is said that the general introduction of uses after they had been once brought into use by the clergy, was due to the common desire to get rid of the in- ability to devise lands. 1 5. Since a use was not recognized as an estate in the land, no tenure, or feudal relation existed between the cestui que use and any other person. He had no feudal superior, and, con- sequently, his estate was not subject to any feudal burdens. There were no forfeitures, wardships, reliefs, or escheat. Tenure might, and did, exist between the holder of the legal title and his superior, but by Act of Parliament made at an early day, 2 provision was made that where persons were attainted of treason, lands held to their use should be for- 1 4 Kent Com. *293. 2 21E. II.c. 3. 216 THE LAW OF REAL ESTATE AND feited ; and it was also provided that the attainder of persons should not work a forfeiture of the lands which they held to the use of others. 6. There was no curtesy or dower in a use. This must be understood as of an early day. Blackstone is referring to uses before the statute 27 H. VIII., for since that time courts of equity have allowed curtesy in equitable estates, though not. dower. 1 7. A use was not liable to be taken in execution, for that would be to recognize it as an estate in the land, which the common law courts would not do. In all these respects, except the one as to the descent, a use differed from an estate at common law. There were certain other differences, subsequently noted by Blackstone, in which a use was peculiar. Upon conveyance or devise of a use, or by way of use, an estate in fee could be limited to take effect after a fee — which could not be done at common law — and an estate of freehold (as to quantity) might be granted to commence in futuro. For example, at common law a feoffment to A. in fee, but if he do a certain thing, then to B. in fee, conveys nothing whatever to B. ; his remainder, being limited after a fee, is void. By way of use it would be good. If at common law an estate had been limited to a man, and. to such woman as he should thereafter marry, the woman would take nothing, for a freehold cannot be limited to commence in futuro., but a limitation of a use in this way would be good. It was considered lawful, also, for the grantor of an estate, by way of use, to reserve to himself or to some one else power to revoke the uses he had declared and declare new ones; and the feoffee was bound to hold the land subject to such new uses when they should be declared. It cannot be doubted that uses were perverted to mischievous and 1 See Chitty's note, 2 Bl. Com. 120. CONVEYANCING IN PENNSYLVANIA. 217 fraudulent purposes ; many and loud complaints were made from all sides. 1 The final result — after many partial remedies had been tried — was the making of a statute which was in- tended to extirpate such grievances, by making an estate in the use equivalent to an estate in the land This statute is commonly called the Statute of Uses, or the Statute 27 Henry VIII., c. 10. It was passed in 1535. 2 The first ten sections, except the eighth, are in force in Pennsylvania. 3 This statute transferred the uses into possession ; it exe- cuted or finished the use as a separate and distinct thing, and wherever a person had the use in land thereafter, he was deemed to have the legal seisin of the land for the same quantity of estate as he had before in the use, and affected by the same qualifications. The future, as well as the present, was contemplated by the statute ; uses created afterwards were to be executed by it, and when a use was created, the force of the statute immediately turned it into a legal estate. For example : If a feoffment were made to A. in fee-simple, to the use of B. and his heirs, before the statute, A. would have the legal estate and B. the use in the land. But if such a feoffment were made after the statute, the use would im- mediately, upon its vesting in B., become clothed with all the incidents of the legal estate. A. would be a mere con- ductor, so to speak, of the seisin, which would pass through him and vest in B. by force of the statute, and B. would thus be complete owner in fee-simple of the lands as well at law as in equity. The use, thus transferred into a legal estate, did not lose many of the peculiar qualities which had been given to it by 1 See2Bl. Com. p. 331. 2 See Digby, Hist. Real Prop., 300 seq., and 303, where the statute is givpn at length. 3 They may be found in Roberts' Dig. *404, p. 412 ; Rush v. Lewis, 9 Har. 73. 218 THE LAW OF REAL ESTATE AND courts of equity before the statute was passed, though it be- came subject to the common law rules relating to estates. But under the new method of conveyancing, which sprung up under this statute, the rigorous rules of the common law, which arose from the doctrines with regard to seisin, were greatly relaxed. It is evident from its words that the statute contemplated a complete destruction of uses, and intended to prevent the existence of an ostensible or legal ownership of land separate and distinct from the beneficial ownership or right to the enjoyment of the land. But this object was only partially effected. The wants and necessities of mankind have triumphed over that intention. It was early held that three circumstances are necessary to the operation of the statute. 1st, There must be a person seised to the use of another ; 2d, A cestui que use in esse, and 3d, A use in esse} The statute was thus strictly construed and conveyances still made, liable always to have the use transferred into pos- session so soon as the circumstances which brought the stat- ute into operation should concur. And the doctrine was in- troduced that the entire operation of the statute need not take place immediately upon the conveyance where the use was so limited as to arise in the future, but might be sus- pended until the use should arise, provided the rules against perpetuities were not infringed. This gave rise to resulting, shifting, springing and contingent uses. A resulting use could never arise except to the owner of the original estate. Before the statute of uses, if the owner of land made a feoffment thereof without consideration or any declaration of uses, he became himself entitled to the use in the land. This was not altered by the statute except to transfer the seisin back again to him. Where a tenant-in- tail suffered a common recovery to bar the entail, and be- came himself tenant to the praecipe for that purpose, the sei- 1 Chudleigh's case, 1 Rep. 126 a. CONVEYANCING IN PENNSYLVANIA. 219 sin, which was recovered by the demandant in fee-simple, was for the use of the tenant in-tail, and the statute trans- ferred the use into a legal title, unless some consideration appeared for the recovery or the uses for which the recovery was declared. Cases of this sort occur sometimes in old Philadelphia titles. The statute did not operate upon all the legal estate granted at once. So much seisin remained in the feoffee to uses as was necessary for the future uses that might be limited, and if the feoffer of land to uses did not grant away his whole estate in the use, so much of the use as he did not dispose of remained in him, as where a man conveyed land to A. in fee, to the use of B. and C. in special tail, so soon as they should marry. Until the marriage took place, the use resulted to or remained in the original owner, and after the marriage the donor had a remainder after the estate tail. Shifting uses, or secondary uses, are such as take effect in derogation of some other estate, and are either limited by the deed creating them, or are authorized to be limited by some person named in the deed. These uses are common in settlements. For example : Conveyance to A. in fee, to the use of B. and his heirs, and if C. pays to B. $100 within a given time, then to the use of C. in fee. Here the estate of "B. is a fee, subject to the shifting use in favour of C. The fee'remains with B. until the payment of the money and then shifts to C, which is a direct violation of the common law rule that no fee can be limited to take effect after a fee. Again, a shifting use is one which may be limited under a power contained in the deed. These cases are still quite common. A conveyance to A. in fee, to the use of B. in fee, with a power reserved to the grantor to revoke the use and declare new ones. He may at any time avoid the estate of B. by appointing that the land shall be held to the use of himself or of some other person, by which appointed new use the fee would be shifted from B. and vested in the persons 220 THE LAW OF KEAL ESTATE AND appointed. This, also, was directly contrary to the common law doctrine. The power to destroy the estate being repug- nant to and inconsistent with the precedent grant of an estate in fee, would be void. Springing uses are limited to arise on a future event where no precedent estate is limited. They differ from shifting uses only in that they do not take effect in derogation of any precedent estate. A conveyance to A. in fee, to the use of B. in fee after he shall have married C. Here is first a re- sulting use in the grantor, in fee, determinable upon the mar- riage, and then a springing use in B.-which arises upon the marriage. The possibility of seisin, or scintilla juris. Conveyance to A. in fee, to use of B. in fee, until C. pay a sum of money, then to use of C. in fee. The statute at once executes the use of B. and he has seisin in fee. Now C. pays the money, the use of B. ceases, a new use springs up and vests in fee in C. There can be no actual seisin remaining in A., because seisin in fee is all he could have and that was transferred to B. by the statute to execute his use. It cannot be transferred from B. to C, for B. was not seised to uses and the statue is not applicable. The grantor has no seisin, for he passed it away from him to A. when he made the orig- inal conveyance. This difficulty was avoided by deciding that A., the original grantee, had remaining in him a possi- bility of seisin or scintilla juris, that the original seisin re- verted to him upon the cesser of the use of B. for the purpose of enabling him to transmit seisin to 0. upon the springing of his use. 1 The statute of uses was strictly construed. Exceptions were made to it, and cases decided not to be within the opera- tions of the statute. These were, contingent uses, uses of copyholds, trusts, chattels,uses upon uses. 1 1 Saunders, 108. See Digby, Hist. Beal Prop. 327 . CONVEYANCING IN PENNSYLVANIA. 221 Trusts. — Very soon after the statute of uses it was decided that, where a feoffment in fee was made to the use of the feoffor for life and after his death that the feoffees should take the profits and pay them to J. N.,this second use would not be executed by the statute because the legal estate must be in the feoffees to enable them to carry out the intention of the feoffor. It was, therefore, said that a use, trust, or equitable estate would not be executed by the statute in all cases where it was the evident intention of the grantor or settler that it should remain in esse. But this general doctrine has been greatly limited since and must be taken with many excep- tions. Trusts are of two kinds — active or operative and pas- sive or technical. Both may exist without being executed by the statute. 1. Active or operative trusts. Where the trustee has some active duty to perform which requires him to have the pos- session ; to collect and pay over rents, or to dispose of the property, or to apply the income in any manner, or to repair or to pay annuities. 1 In such cases the trust is operative and will exist until the duties of the trustees are fully per- formed. 2. Passive Trusts. Where no duty is given to the trustee, to perform which requires him to have possession, usually the trust' is executed, but not always. Sometimes it is kept alive by the character of the cestui que trust. Thus trusts for the separate use of a married woman, are recognized and favoured by the law. 2 Chattels. — The statute, by its own express words, is con- fined in its operation to cases where one is seised to the use of another. Hence trusts of terms of years are not within the statute, inasmuch as the owner of a term is not seised but possessed of it. ' Barnett's Appeal, 10 Wr. 392; Shankland's Appeal, 11 Wr. 113. 2 The subject of trusts is fully considered in Mitchell's Lectures on Equity. 222 THE LAW OF REAL ESTATE AND Uses upon uses. — A contrivance was resorted to shortly after the statute was passed, which almost entirely restored the whole chancery jurisdiction as to uses. The estate was convey- ed to A. and his heirs, to the use of B. and his heirs, to the use of (or in trust for) C. and his heirs. The common law judges held that there could be no use upon a use, and in the case given that B.'s use was executed by the statute, and that C.'s use was void and he took no estate at all. But the Court of Chancery determined that although C.'s use was void at law, yet in conscience and equity it ought to be enforced and per- formed as a trust, so that, as Blackstone says, " by this strict construction of the courts of law, a statute made upon great deliberation and introduced in the most solemn manner has had little other effect than to make a slight alteration in the formal mode of a conveyance." 1 Before the statute was passed, the tenant of the legal es- tate was bound to do two things, suffer the cestui que use to take the profits, and convey the legal estate according to hie directions. 1 See Digby, Hist. Real Prop. 327. CONVEYANCING IN PENNSYLVANIA. 223 CHAPTER XV. ESTATES OF FUTURE EN JOYMENT — REMAINDERS, CRE- ATED BY ACT OF PARTIES— REVERSIONS, CREATED BY OPERATION OF LAW— RULES GOVERNING THE CREA- TION OF REMAINDERS— VESTED REMAINDERS— RULE IN SHELLEY'S CASE— CONTINGENT REMAINDERS— UN- CERTAINTY OF THE PERSON— OF THE EVENT— CONTIN- GENT USES— EXECUTORY DEVISES— WHEREIN THESE DIFFER FROM CONTINGENT REMAINDERS— MERGER. Hitherto, in speaking of estates, reference has been made mainly to those in possession of the tenant. We now come to the consideration of estates, the enjoyment of which is postponed, and to take place, if at all, at some future time. A fee simple in possession is the largest quantity of estate which any person can have in land. It is an aggregation of all smaller estates. It may be divided up into any number of estates of less quantity. An owner of the fee may convey any smaller estate and have something left. He has by such conveyance lost his right to the immediate possession of the land, and his estate or interest in it, although it certainly exists and is vested in him, amounts only to a right at some future time to have again the possession and enjoyment which he has parted with. In considering estates heretofore we have taken the fee- simple and divided it into parts, confining our study mainly to those portions which were first in order of time of enjoy- ment. Thus, fee-simple is all. Fee-tail is less than fee- simple., The fee is divided into two parts, each part with a separate owner. One owner has the present enjoyment to him and the heirs of his body ; the other owner has what re- mains after the fee-tail is determined. Now, suppose you 224 THE LAW OF REAL ESTATE AND divide the fee-tail into two by carving out of it an estate for life in present possession. The whole fee is then in three portions, each with a distinct owner and each of the two last expecting to have the enjoyment and possession of the land at some time in the future, after the estates previously lim- ited have expired. Ihese estates, therefore, which have not now but expect to have the right of possession and enjoy- ment in the future, are called Estates in Expectancy, not meaning thereby that the estate itself does not exist but is only expected to exist, for that is not the case. The estate does exist and may be vested in the owner, but it is only an expectation of future enjoyment and not the immediate pos- session of and dominion over the land. An estate is an in- terest in things real, and in an estate in expectancy, it is the thing which is expected in the future and not the interest, which may be absolute and vested at the present time. Coming now to the study of these estates which are called Estates in Expectancy, we find them naturally divided into two classes, the rules which govern each and the incidents to each being, in many respects, different. 1st, Those created by the acts of the parties called Remainders ; 2d, those aris- ing upon construction of law, called Reversions. 1. A Remainder is an estate limited to take effect and be enjoyed after another estate is determined ; l as a conveyance of land to A. for life, and after his death then remainder t j B. in fee. Here the fee is divided into two parts, both cre- ated by the act of the parties, viz : a life estate in present enjoyment and an estate in remainder in fee, to take effect after the life estate is determined. The first estate granted, which is to be in possession, is called the particular estate (from particular a small part). There may be any number of remainders, each in its order, to have the enjoyment of the estate, but when all the parts » 2 Bl. Com 163. CONVEYANCING IN PENNSYLVANIA. 225 of the fee-simple, the particular estate and all the estate in expectancy into which the fee is divided, come together again, they form one whole fee-simple in possession. So a remainder may be of any quantity, subject to the rules hereafter to be mentioned: in fee, fee-tail, for life, etc. But after a remainder in fee is limited, there can be no further remainder limited, for the fee is the whole, and after the whole is granted nothing remains. This is the rule of the common law, but it does not prevail with regard to uses, or to future estates limited by wills. These, however, are not strictly remainders, and are not recognized as such. The doctrines of the common law, with regard to remainders, depend very much upon the old rules as to seisin — and seisin and freehold have a close relationship with each other. A free- holder was one who had seisin, and indeed, the definition of an estate of freehold is, such an estate in land as is conveyed by livery of seisin. 1 Seisin, therefore, was the distinctive feature which marked the freeholder and conferred upon him those rights in the manor or court which he had on account of his interest in the land. It was the actual feudal posses- sion of the land itself, and the laws which regulated its trans- fer were no doubt practical and useful in the state of society in which they were developed. They seem to us artificial because the reasons for their existence have ceased to affect the social station and daily life of men in general. One of these rules was that the seisin must be transferred by some visible, notorious act, called livery of seisin; and only in this way could the seisin be transferred and vested, except by the judgment and execution of a court of law. It fol- lowed from this rule that no one could transfer this actual seisin, unless he were in possession of the land at the time, for he could not give that which he did not have. Another doctrine was, that the seisin must always vest in some one. 1 2 Bl. Com. 104 15 226 THE LAW OF REAL ESTATE AND There must be a person seised of the land to perform the duties and exercise the functions of a freeholder, and against whom the rights of others might be maintained. From the application of these principles were deduced the three rules which Blackstone gives to be observed in the creation of remainders. 1. There must be a particular estate to precede the re- mainder. This, of course, did not apply to remainders for terms of years, because a tenant for years has no seisin ex- cept as the bailiff of the freeholder. If the remainder were for a freehold estate, livery of seisin was necessary for the valid transfer of it. If livery was given, the person to whom it was made would be in immediate possession, and his estate would not be a remainder. Hence, it followed that no estate of freehold could be limited to commence in futuro, unless it was done by having at the same time a particular estate to precede it, the tenant of which could receive seisin ; and, further, it followed as a general rule, that if the partic- ular were void at the time of its creation, or became void afterwards, the remainder would be void also. 2. The remainder must pass from the grantor at the time the particular estate is created. This rule also depends upon the principles of seisin. The particular estate and the re- mainder form parts of the same estate, which estate is granted by livery of seisin. There can be but one livery. The owner in possession of land can transfer that possession but once — after that he has no possession. If, therefore, he wishes to give an estate of freehold, which requires a trans- fer of seisin to validate it, he must make that transfer while he has it. After the seisin is gone, his power to create an estate of freehold is gone also. The seisin transferred to the tenant of the particular estate, but it enures to him who has ■ the estate in remainder. 3. The remainder must vest in the grantee during the con- tinuance of the particular estate, or eo instanti it determines. CONVEYANCING IN PENNSYLVANIA. 227 This, also, is a direct consequence of the principles with re- gard to seisin, of which I have spoken. The particular estate supports the remainder. The tenant of the particular estate hns the seisin for the remainderman. Now, take away the particular estate — suppose it comes to an end — the right of the tenant to the possession of the land, that is, seisin, is gone. The seisin cannot be in abeyance, it must vest some- where, and if there is no remainderman ready to take it, it reverts to the grantcr or his heirs; and once vested in him, it requires a new livery to get it from him again. The re- mainder in such case can never take effect. Upon this last rule depends, principally, the main distinction between vested remainders and contingent remainders. Remainders are of two sorts — vested and contingent. 1. A vested remainder is an estate to take effect alter another estate, for years, for life, or in tail, which is so lim- ited that if the particular estate were to expire or end in any way at the present time, some certain person would be- come thereupon entitled to the immediate enjoyment. 1 Estate to A. for life, remainder to B. in fee. Here the estate of B. is at once vested in him. No matter when the partic- ular estate, which is the life estate of A., comes to an end, B. is ready to take, if living, or his heirs, if dead, but B.'s enjoyment of the land is postponed until the particular estate is determined. These limitations are quite frequent, especially in wills and family settlements. There is a well-defined class of cases, however, in which what appears to be a remainder is differently construed by a rule of law of very ancient origin, which is known as the Rule in Shelly's case. Wher- ever the ancestor takes an estate of freehold, and a re- mainder is thereon limited in the same conveyance, to his heirs, or to the heirs of his body, either mediately or imme- 1 Bee note to 2 Bl. Com. (Shars. ed.) 163 228 THE LAW OF KEAL ESTATE AND diately, " the heirs," are words of limitation, and not words of purchase. 1 For example : Estate to A. for life, and after his death, then to his heirs. This is equivalent lo an estate given to A. and his heirs, which is a fee- simple. As to the origin of this rule there are many theories 2 Now as to the effect of the rule. It is to turn into an estate of inheritance every limitation which is equivalent to one. even where an estate may come between the life estate and the limitation to the heirs. As, estate to A. for life, remainder to B. for life, remainder to the heirs of A. Both the estates, that limited to A. for life, and that in remainder to his heirs, vest in A. himself. He has, therefore, an estate 1 1 Preston on Est. 263. 2 See Williams on Real Prop. *209. For an account of Shelly 's case, see Challis, p. 97; p. 112-123, Text Book Series, Blackstone Pub. Co. Challis gives the following propositions to determine the question of the rule's application to a particular case : 1. The prior estate must be of freehold. 2. The subsequent limitation may be either to the heirs general, or special. 3. Both estates must arise under the same instrument. 4. An estate taken by the ancestor by way of resulting use, is, for this purpose, an estate arising under the same instrument. 5. An estate limited under a subsequent exercise of a power con- tained in the instrument, is, for this purpose, an estate aris- ing under the same instrument. 6. The interposition of one or more intermediate estates does not prevent the application of the rule. 7. The subsequent limitation may be contingent. 8. In a devise, the word issue has for this purpose the same effect as the word heirs, unless it appears to have been intended as a designation of particular individuals. 9. The further addition to the word heirs of words of limitation to their heirs, does not prevent the application of the rule, if the latter heirs are of the same description as the former heirs. 10. The rule applies to equitable as well as legal limitations, but the prior and subsequent limitations must both be of the same quality in this respect. 11. The rule applies to limitations of copyholds as well as to lim- itations of freeholds. 12. The rule does not apply where the subsequent limitation is an executory limitation. CONVEYANCING IN PENNSYLVANIA. 229 in fee simple, subject to the vested remainder in B. for life, and he may alien his estate at pleasure, for his heirs can take nothing except by descent from him. Therefore, whether the limitation to the heirs be immediately upon the ancestor's life estate, or be postponed to other estates, the effect is the same ; that is, to vest in the ancestor himself all the estate granted, as well to his heirs as to himself. 1 This effect of the rule in Shelly's case is altogether inde- pendent of any intention of the grantor of the estate. If the meaning be that the heirs are to take as heirs, it makes no difference what provisions may be made to prevent the rule from converting the preceding estate into a fee. It de- clares inexorably that where an ancestor take a preceding freehold, by the same instrument, a remainder shall not be limited to his heirs as purchasers. 2 With regard to what are words of limitation, and what words of purchase, the courts in Pennsylvania have not always adhered to the old and settled rule. 3 Previously there had been some decisions which held that the reason of the rule made it applicable to all cases where the limitation was to such persons as would be heirs under our laws, as " children," but this was overruled in the cases just cited. 4 1 Steiner u. Kolb, 7 P. F. Sm. 123 ; Vowinckel i\ Patterson, 4 Amer. 21. A testatrix devised real estate unto her "three daughters, to have and to hold to them during their natural lives, and after their death then to the lawful issue of her said three daughters, and the heirs and assigns of such issue. Held, that the rule in Shelly's case applied, and the daughters took a fee-tail, which was converted into a fee-simple by the Act of 27 April, 1855. Carroll v. Burns, 12 Out. 386; Cockins' and Harpers' Appeal, 1 Amer. 26; Bassett v. Hawk, 3 Crum. 94. See Little v. Wilcox, 4 Crum. 439, where it was held that the rule in Shelly's case did not apply, the life tenant having an equitable estate and the remainder being a legal estate. 2 Doebler's Appeal, 14 P. F. Sm. 17. 3 See Guthrie's Appeal, 1 Wr. 9 ; Chew's Appeal, Id. 23. 4 It may sometimes be that the words "children," "child," are words of limitation. Haldeman v. Haldeman, 4 Wr. 35. In a devise " unto said sister, and at her death to her child, children or other lineal descendants." Held, that the words " other lineal de- 230 THE LAW OF REAL ESTATE AND 2. A contingent remainder is where either the person to whom, or the event upon which the future estate is to he enjoyed, is at present uncertain. 1 To follow out the analogy to a vested remainder, which is defined as one ready at once to take upon the determination of the particular estate, it seems that a remainder is con- tingent so long as, if the particular estate were instantly to determine, the remainder could not take effect according to the terms of its limitation. It has been explained that a vested remainder may never come unto an estate in possession. The element of uncertainty is not sufficient alone to determine whether a remainder is vested or contingent. Estate to A. for life, remainder to B. for life. This is a vested remainder, but it is not certain ever to come into enjoyment. It depends upon the uncer- tainty whether B. will outlive A., yet the uncertainty does not make it contingent. It is vested because it is always ready to take effect on the determination of the particular estate at any time. 1 2 Bl. Com. (Shars. ed.) 163, note. scendants," so qualify the previous words, " child, children," as to make them words of limitation, and not of purchase, and the estate of the first taker is an estate tail, at once affected by operation of the Statute of Limitations. Mason v. Ammon, 2 Crum. 127. A testator devised his farm to his two sons in the following words : " I give and bequeath unto my two sons, John and Edward, all my farm after my death, to them as long as they do live, and after their death to their children." Held, that John and Edward take a life estate with remainder of their children as purchasers upon the death of the survivor. Jones et al. v. Cable, 4 Amer. 586. The word " children," in a will, is a word of purchase, and while it may be used by a testator to signify " heirs of the body," it will not be held to have been so used, unless the testator has also employed the words, " heirs of the body," or " issue," as descriptive of the same objects. The fact that the remaindermen are the same persons as would have inherited the estate, is not indicative of the testator's purpose that they should not take as purchasers. Affolter v. May, 5 Amer. 54. See, also, McDevitt's App., 3 Amer. 103 ; Diffenbaugh v. Harris, 18 W. N. C. 357 ; Harrison's Est., 18 W. N. C. 481. CONVEYANCING IN PENNSYLVANIA. 231 In determining whether a remainder is vested or contin- gent, the courts always lean in favor of making it vested, and will construe it to be so wherever it can be done without deciding in direct opposition to the terms of the will or set- tlement. 1 Fearne divides contingent remainders into four kinds; three, where the event upon which the remainder is to take effect is dubious and uncertain, and the other where it is limited to a dubious and uncertain person. The classification of Blackstone is more' simple, and only two kinds are speci- fied. 1. A remainder limited to an uncertain person. 2. Remainder limited to take effect upon an uncertain event. 1. A remainder limited to an uncertain person. Example, to A. for life, remainder to the eldest son of B., while B. has no son. The remainder could not take effect if the particular estate ended at any time before B. had a son. It is therefore contingent. But such a remainder becomes vested as soon as B. has a son, for the person who is to take the estate is no longer dubious and uncertain. By strict rule of common law, the actual birth of the person to take in remainder must happen during the continuance of the particular estate. It was considered that an estate could not vest in a child en ventre sa mere, before it was actually born and visible to the world There were, however, some con- flicting decisions on the subject in England, which resulted in the passing of the Statute 10 and 11 Wm. III., c. 16. This statute declared that posthumous children, i. e., born after the death of their fathers, should take estates limited in re- mainder by marriage or other settlement to which they would be entitled, if born, in the same manner as if they had been born in their father's lifetime. 2 This statute is in force in Pennsylvania, and, in consequence, a child en ventre sa mere is considered as a person under the protection of the 1 Amelia Smith's Appeal, 11 Har. 9. 2 Roberts' Dig. Brit. Stat. *322. 232 THE LAW OF REAL ESTATE AND law, and possessed of all the privileges of a living being. He is considered as born for the purpose of taking an estate, so that, if in the illustration just given of this class of re- mainders, the oldest son of B. should have been en ventre sa mere, at the time of the determination of the life estate of A. While on the subject of posthumous children, I may say, that a similar provision with regard to capacity to inherit was introduced into the Intestate Act of Pennsylvania, of 19 April, 1794, sec. 10 : ' " That all posthumous children shall in all cases whatsoever inherit in like manner as if they were born in the lifetime of their respective fathers," and the pro- vision in the Intestate' Act of 1833 is much the same, ex- tending to all posthumous descendants and relatives of an intestate. 2 Judge Kennedy sums up the legal situation of an unborn child, thus : " A child en ventre sa mere is deemed by law in life for a variety of purposes. The mother may be guilty of murder by taking poison with an intent to destroy it, if it should be born alive thereafter and die from the effect of the poison ; yet murder can only be committed by killing a reasonable creature in being. Hence the child is deemed such though only en ventre sa mere at the time of taking the poison. An infant en ventre sa mere may be vouched in a recovery, though it be for the purpose of making him answer over in value, if God should give him birth. He may be an executor ; 3 he may take under the Statute of Distributions ; he may also take by devise. He may be entitled under marriage articles to a portion as a child living at the death of the father ; he may have an in- junction to stay waste, and he may have a guardian.* It has been said that where there was any doubt as to the 1 3 Sm. Laws, 148. 2 Punl. Dig. " Intestates," p. 933, pi. 32. 3 Kwinbuni, Vol. II, part 5, sec. 1. 4 Wells v. Ritter, 3 Whart. 222 ; Swift v. Duffield, 5 S. & R. 38. CONVEYANCING IN PENNSYLVANIA. 233 question whether a remainder was vested or contingent, the leaning of the courts has always been decided in construing it to be vested. There is a settled rule of construction de- pending upon this principle, applying to cases where, after an estate for life, or other particular estate which can sup- port a remainder, an estate is devised either to persons nom- inatim, or to a class, it will vest in the objects to whom the description applied at the death of the testator. If a partic- ular estate be given, with a devise over to the children of the person taking that interest or of any other person, such limit- ation over will embrace not only the objects living at the death of the testator, but all who shall subsequently come into existence before the period of distribution. Those liv- ing at the death of the testator take a vested remainder, liable to open and let in others who may be born afterwards. A. devise to E. for life, and further, as follows : " When my said daughter E. departs this life, the children, which are born of her body, shall hold my said land to them, their heirs and assigns forever." When the testator died, E. had two chil- dren, one of them named Jacob, who sold his share of the estate in his mother's lifetime. Afterwards E. had four more children. Jacob died before his mother. The children of E. who survived her, claimed to own the whole land to the ex- clusion of the purchaser of Jacob's share, and he brought ejectment for one-sixth. The decision of the case, therefore, depended on the question whether the remainder, devised to the children of E., was vested at the death of the testator, in which case Jacob had a share which did not depend on his outliving his mother, and his purchaser was entitled to recover; or, whether it was a contingent remainder limited to vest only upon the death of E. in such of her children as should then be living, in which case, Jacob, having died be- fore his mother, could take nothing, and the purchaser from him had no title. It was held that the direction of the tes- tator that the children of E. should take the land '' when " 234 THE LAW OF REAL ESTATE AND she departed this life, referred to the time they were to come into enjoyment, and not to the time of vesting the estate in interest; that under the rule of law above referred to, such expressions by a testator would always be construed to ap- ply to the time of vesting the possession, unless a contrary intent plainly appeared. The devise over was, therefore, adjudged to be a vested remainder, which vested at the death of the testator in the two children of E. who were then in esse, subject to open afterwards to let in her other children as they should afterwards come into being, and judgment was affirmed for the plaintiff for one-sixth of the land. 1 In Boss v. Drake 2 the same principle was applied where the devise was to John, for life, " and at his decease to go to his surviving children, their heirs or assigns." John had several children, one of whom died before him, leaving a son, Ross Drake, and the question was whether this son had any share. It was held that the word '■ surviving ""related to the death of the testator and not to the death of John, that the remain- der was vested in such of John's children as were living at testator's death, subject to open and let in those born after- wards, consequently Ross Drake inherited from his mother a vested remainder, and judgment was given for him. Undoubtedly, a testator may direct otherwise, and where the intention is plain and clear, it will govern. The question in such cases is whether the time of the death of the life-ten- ant is the period fixed by the testator to ascertain the per- sons who are to take, or whether it is appointed as the time when the property is to be divided ; and, if the words of the will can be fairly construed to make it the time of the divi- sion, the estates will be deemed to have vested upon the tes- tator's death. Womrath v. McCormick. 3 But where it clearly appears that the persons who are to take the estate after the 1 Minnig v. Batdorff, 5 Barr. 503. 2 1 Wr. 373. 3 1 P. F. Sm. 504; Richardson's Appeal, 19 W. N. C. 175. CONVEYANCING IN PENNSYLVANIA. 235 death of the life tenant, are not to be ascertained until that time arrives, then the remainders will be contingent. 1 A de- vise to trustees until the testator's youngest child shall at- tain the age of twenty-one years, and then " to such of my children as may be living when the youngest of them living shall attain the age of twenty-one years, in fee, is not within the rule. It is not a mere postponement of the time of enjoyment. It is a description of the persons who are to take, and the persons cannot be ascertained until the event happens. The devise was, therefore, held to be con- tingent, and one of the children, who died before the youngest came of age, had no vested interest whatever. 2 The limitation in this case was not strictly a remainder, but that makes no difference in the illustration of the principle. 2. The second class of contingent remainders mentioned by Blackstone, are those which are to take effect upon an un- certain event. This class includes the three divisions given by Mr. Fearne. 1. Where the remainder depends entirely upon the contingent determination of the preceding estate. 3 2. Where some uncertain event, collateral to and un- connected with the determination of the preceding es- tate, is to precede the vesting of the remainder. 4 3. Where the remainder is limited to take effect upon an event which, though it certainly must happen at some time, yet may not happen till after the determina- tion of the particular estate. 5 1 List u. Rodney, 2 Norris, 483; Crawford*). Ford, 7 W.N. C.532. On this subject,see Murphy on "Remainders to children as a class, " p.45-47. 2 3 McBride v. Smyth, 4 P. F. Sm. 245. 3 A. makes a feoffment to the use of B. until C. returns from Rome, and after such return of C. to the use of D. and his heirs. Challis on Real Prop., p. 90. Text Book Series, Blackstone Pub. Co. * If lands be limited to the use of A. for life, remainder to use of B. for life, and if B. shall die in the lifetime of A. then remainder to the use of C. for life, or in tail or fee-simple. Id. 5 If lands be limited to the use of A. for life, and after the death of B. to the use of C. in tail or in fee-simple. Id. 236 THE LAW OF KEAL ESTATE AND The event upon which the remainder is limited, must not be such as is contrary to law or to good morals. A feoffment to A. for life, remainder to such issue of the body of Margaret Lloyd as should by common supposition be supposed and reputed to be begotten by A., whether illegitimate or not. The remainder was void. It must not le repugnant to the rule of law against the creation of perpetuities. This rule is that an estate cannot be given to an unborn person for life followed by an estate to the child of such unborn person. In such a case the re- mainder to the child of the unborn person is void. The rule against perpetuities is thus stated in Smith on Executory In- terests (§706): '' Executory interests, other than those in re- mainder after or engrafted upon an estate tail, must be so limited that, from the first moment of the instrument creating them taking effect, it may be said that they will necessarily vest in right, if at all, within the period occupied by the life of a person in being ; that is, already born, or in ventre matris ; or the lives of any number of persons described and in being, " not exceeding that to which testimony can be applied to de- termine when the survivor of them drops," and by the in- fancy of any child born previously to the decease of such per- son or persons ; or the gestation and infancy of any child in ventre matris at that time ; or within the period occupied by the life or lives of such person or persons in being, and an absolute term of twenty-one years afterwards and no more, without reference to the infancy of any person ; or within the period of an absolute term of twenty-one years, without reference to any life. 1 The old rule of a possibility upon a possibility, laid down by Coke, has been replaced by this. There has been much discussion whether it is or is not derived from Coke's rule. Be that as it may, the ancient doctrine of Coke has disnp- 1 See Davenport v. Harris, 3 Grant, 164 ; Smith's Appeal, 7 Nor. 492 ; Gardette's Est., 13 W. N. C. 315 ; Myer's Est., 16 W. N. C. 83. CONVEYANCING IN PENNSYLVANIA. 237 peared, and this more modern rule is the one which now limits the power of a grantor in creating a contingent re- mainder. 1 It differs but slightly from the rule with regard to contingent uses a nd executory devises, and will be ex- plained presently. The uncertain event upon which the remainder is limited to take effect, must not operate so as to bridge or defeat the particular estate. This rule follows from that stated in a former lecture, that no one could take advantage of a con- dition broken except the grantor or his heirs. So that where the particular estate was defeated by breach of a condition, if the grantor had conveyed away the estate in remainder, he had lost his right to enter for the breach. So the con- dition is inoperative, and as the remainderman, being a stranger, has no right of entry, and his remainder must vest eo instanti at the determination of the particular estate, his remainder is gone. This effect, however, is not produced where estates on condition are created by conveyances to uses and in will, of which I have already spoken. It has been stated that after a fee was once created and given, no further limitation could be made by way of remainder, for the fee-simple was all the estate, and when that is given nothing remains. There is a class of cases which seem to form an exception to this rule, but do not, in principle. These, where a remainder in fee is given to vest in a certain contingency in one person, and in the reverse of that contingency in another person. Both remainders are contingent, but they are not mounted, a fee upon a fee. They are alternative, only one can ever take effect, and when one vests in fee, the other is inevitably gone. Joshua Fet- row, by his will devised land to M. W. for life, and at her death to her children, in fee. If she should leave no chil- dren, then over to M. F. and others, in fee. M. W. died 1 See William's on Beal Prop. (6th ed.), *273 and note. 238 THE LAW OF REAL ESTATE AND without children. Here were two contingent remainders, one to the children of M. W., if any should be born, and as an alternative, if there were no children, another contingent remainder to M. F. et al. 1 A similar question arose upon the construction of John Creau's will. This was a devise to a trustee, for testator's son William, for life, and after his death to the children of William in fee ; if no children, or issue, then to his own right heirs. William never married. The court determined the devise to be of alternative contingent remainders ; one to the children of William, if he should ever have any, and if there_ were none, then to the persons who were the testa- tor's heirs when the will took effect. 2 A particular estate to support a contingent remainder of freeholder quantity, must be a freehold, because the seisin necessary to validate it must be given to the tenant of the particular estate. Where the remainder is vested it may be given to the tenant for years, who takes as the bailiff of the freeholder, to whom the seisin passes and in whom it vests. But as long as a remainder is contingent it vests in no one, hence the necessity of the particular estate being of free- hold, that the tenant may take the seisin for the persons that may become entitled in remainder. The particular estate may be an estate tail, and a remain- der will be good. This is the smallest remainder which is recognized by the law. A contingent remainder maybe destroyed by the determi- nation of the particular estate before it is ready to vest, which may happen by its expiring by its own limitation, or it may be done prematurely, by collusion and for the pur- pose of defeating the remainder. Hence arose the necessity • Fetrow's Est., 8 P. F. Sm. 42+; lie Harris' Trust, 19 W. N. C. 538. See Penna. Co.'s Appeal, 13 Out. 489. 2 Bugby's Appeal, 11 P. F. Sm. Ill ; 1 Fearne on Remainders, *161, *292-3; Smith on Ex. Int. § 128. CONVEYANCING IN PENNSYLVANIA, 239 for trustees to preserve contingent remainders, so that upon the forfeiture or other premature destruction of the life estate, the seisin, instead of returning to the grantor or his heirs, would vest in the trustees, and remain in them to exe- cute into possession the contingent estates as they might arise. Executory interests} There are estates in expectancy which are recognized and held valid by the law, although they do not strictly come up to the rules which regulate re- mainders. These are estates which are created by way of use, and by devises in wills. A contingent use is a future estate limited in a conveyance to uses, which would not be valid in a conveyance at com- mon law, owing to its being limited after a fee, or not hav- ing a sufficient particular estate to support it, or to its respecting personal property. An executory devise is a future estate limited by will, which would not be valid in a common law conveyance, for the same reasons stated with regard to a contingent use. 2 It has been already explained how uses were treated, alto- gether independently of the doctrines of seisin. They were alienable without livery, and devisable by will. An estate for life or of inheritance might be limited to commence in futuro, without a particular estate, and a fee after a fee. Also, that the statute of uses could not operate to transfer or transmute the use into a legal estate, until there should concur the three circumstances of a person seised to uses, a use in esse, and a cestui que use in esse. Consequently, it frequently happens that future estates granted by way of use may be sustained and exist, which if created by common law conveyance would be void as remainders. In regard to devises of future estates by will, the rule was the same. Uses were desirable long before lands held by 1 See Challis on Real Prop., p. 51-53, p. 85, 129-130, Text Book Series, Blackstone Pub. Co. 2 2B1. Com. (Shars. ed.) *163. note. 240 THE LAW OF REAL ESTATE AND legal title were. The statute of wills was five years subse- quent to the statute of uses. Neither could the strict rules of seisin be applied to devises of land, for by will no actual livery or transfer of seisin was possible. For these reasons, and also on the consideration that they- were frequently drawn up when the testator was inops consilii, wills were favored in construction, and future estates created by them were allowed to stand as executory devises ; in many cases, where treated strictly as remainders, they would be invalid. A limitation, no matter how made, will be construed as a remainder, if it can be brought within the requirements of the law with respect to remainders ; only those which would be void as remainders take effect as contingent uses, or ex- ecutory devises. Or, in other words, future estates created by will, or by way of use, are subject to the rules which regulate remainders, except in cases where they could not be valid as remainders, if created by a common law convey- ance. So the determination of the preceding estate while the future estate is still contingent or dubious, will destroy it. If a limitation be made to the use of a person unborn, for an estate of freehold quantity, it will fail of effect as a contingent remainder unless the person to whom it is limited be born before the determination of the particular freehold estate. The three material points in which a contingent use or an executory devise differs from a contingent remainder, are expressed in the definition of these estates which I have given, viz : 1. No particular estate is needed to support it, the reason of which is that the use or beneficial estate in the land is vested either in the grantor, in case of a contingent use, or in the heir, in case of an executory devise, and the statute executes these uses into possession, so that although no par- CONVEYANCING IN PENNSYLVANIA. 241 ticular estate is created, yet is the seisin vested somewhere by construction of law. II. By way of contingent use or executory devise, a fee may be limited after a fee ; as where the whole estate is devised in fee. wilh a collateral or conditional limitation, by which, upon the happening of a contingency, the estate may determine, and another estate in fee take effect. An estate was devised to R. and C, and their heirs ; should either of them die without leaving issue, then to the survivor in fee; should they both die without leaving lawful surviv- ing issue, then to the testator's own heirs. Held to be a fee- simple (under act of 1855, Est. tail) in the first takers, R. and C, with executory devise to the survivor in fee, wilh executory devise to testator's right heirs. 1 If it had not been for the Act of 1855, it would have been an estate tail in both, with cross remainders in fee, but the limitation to the testa- tor's own heirs was an executory devise, because limited after a fee-simple. The limit of such future interests is clearly defined by the rule against perpetuities, to which I have be- fore referred. The rule is that no estates can be limited either by way of contingent use, or of executory devise, un- less they must take effect within a life or lives in being, and twenty-one years, with nine months, or whatever period is necessary, added, in case an unborn child is en ventre sa mere at the time. 2 In this case a will which went into effect in 1793, devised an estate in fee, subject to an express condi- tion that no building should be erected upon a certain part of the ground, with a devise over to others upon breach of the condition. This was held a conditional limitation which could not take effect as a contingent remainder, but must do so as an executory devise ; and as an executory devise it was void, because the contingency upon which the estate was to 1 Nicholson v. Bettle, 7 P. F. Sm. 384. 2 See Smith v. Townsend, 8 Cas. 441. 16 242 THE LAW OF KEAL ESTATE AHD vest, and until the happening of which it was postponed, might happen after any number of lives, or might never occur. It was too remote ; consequently, the condition was void. 1 If the limitation be such that it is uncertain whether it will take effect within the time prescribed, it is a violation of the rule; it must be such as will certainly take effect within the time. In Donohue v. McNichol, 2 the will devised the estate to John for life (he being unmarried and having no children), remainder to his issue for life, and after the death of such issue, then to the testator's own heirs. This was held an executory devise, void for remoteness, in a very learned opinion by Judge Williams. A gift to a charity is not within the rule. 3 A further restriction to this rule is made in cases of trusts for accumulation. 4 By the Act of 14 April. 1853, section 9, 5 it is provided that no person shall settle and dispose of any property so that the income of the same shall be accumulated for any longer term than the life or lives of such grantor or testator, and the term of twenty one years thereafter, and even within that time the courts shall have power to decree an adequate allowance out of such income for any minors for whose benefit such accumulation is directed; 6 but gifts and devises to public charities are ex- cepted out of the act. 7 III. The third point of difference between an executory devise and a contingent remainder is that by such limita- 1 Toman v. Dunlap, 6 Har. 77. ' 11 P. F. Sm. 73. 3 Yard's Appeal, 14 P. F. Sm. 95. 4 Thelluson's Case, 2 Bl. Com. 174, note by Coleridge. Under cer- tain circumstances, the estate accumulated under this will, might have reached £32,0(10.000. 5 Purd. Dig., "Real Estate," p. 1460, pi. 9. 6 A direction to accumulate during the lifetime of testator's widow is void. Schwartz's Appeal, 4 Crum. 337; Grim's Appeal, 13 Out.. 391. It seems that the Act of April 18, ls,>3, applies to " spendthrifts' trusts." Eberly's Appeal, 14 Out. 95. 7 Butler u.. Butler. Xeg.. Int.. 1873, p. 45, 9 Phil. 269. CONVEYANCING IN PENNSYLVANIA. 243 tions, personal property — such as chattels real, terms of years — may be given to one for life, with remainder over. This could not be done at law, a life estate in a chattel being equivalent to absolute ownership. Contingent uses, or executory devises, as distinguished from contingent remainders, cannot be barred or defeated by the meaDS which destroy remainders, because they are not involved in the same doctrine with regard to seisin. These rules and reasons for the destruction of contingent remainders have nearly all become obsolete. In Pennsyl- vania, by the Act of April 18, 1853, section 2, 1 express power is given to the courts to decree the sale of real estate in fee-simple, whenever contingent remainders or executory devises shall be limited therein, and the purchase money is substituted for the land. 2. A reversion is the residue of an estate left in (he grantor to commence in possession after the determination of some particular estate granted by him : re versio. It can never be created by deed. Why ? Though a remainder be called a reversion, yet it is none the less a remainder. 2 The incidents of a reversion are fealty and rent. If no rent is reserved, then fealty. This is the result of tenure, so that the tenant in possession must not dispute his landlord's title, nor do any act which amounts to a renunciation of the feudal rela- tion subsisting between them. A reversion does not be- come a remainder by being sold ; once a reversion, always a reversion. The rent being an incident of the reversion, it follows that it will pass when the reversion is granted, not vice versa. I have already, in speaking of estates tail, life estates, estates for years, explained the rights, powers and duties of reversioners. The smallest reversion is that after an estate tail. The interest of the person who grants a deter- minable, or base fee, is a possibility of reverter. After a 1 Purd. Dig. p. 1458. 2 Passmore's Appeal, 11 Bar. 381. 244 THE LAW OF REAL ESTATE AND fee simple absolute, only a seignory. All these estates in expectancy may be aliened by the owners of them, in Penn- sylvania. At common law the rule was different, but equity is part of the common law of Pennsylvania. All possible titles, legal or equitable, vested or contingent, in real estate, may be taken in execution and sold for the debts of the owner. 1 Merger takes place wherever a greater and a less estate coincide and meet in the same person. The less estate is merged or swallowed up in the greater. There is no merger of estate tail ; this is expressly prevented by the Statute De Bonis. So the same person may have at the same time, an estate tail, and also the immediate remainder or reversion in fee-simple expectant on the determination of his estate tail, by the failure of his own issue. This was one method in use for destroying contingent remainders. Estate to A. (without children) for life, remainder to his eldest son in tail, remainder to B. in fee. Suppdse B. convey his remainder in fee to A. before a son should be born. There being no vested estate in- tervening, they would coalesce or merge, and A. would have an estate in fee, and the fee tail in remainder would be destroyed. Merger depends mainly, though not altogether, on inten- tion, and estates may sometimes coalesce in the same person, which will remain distinct, on account of incumbrances, or for some other reason. 2 1 Drake o. Brown, 18 P. F. Sm. 223. 2 An equitable life estate with a remainder of the legal estate in the fee to the heirs of the life tenant, will not merge so as to vest a lee or fee tail in the life tenant, under the rule in Shelly's ease. Little v. Wilcox, 21 W. N. C. 215. Under what circumstances a life estate in a legacy charged on land does not merge with the ownership of the land in fee, see Wood's App., 20 W. N. C. 250. CONVEYANCING IN PENNSYLVANIA. 245 CHAPTER XVI. JOINT TENANCY—ITS FOUR NECESSARY UNITIES— THE JUS ACCRESCENDI— EFFECT OF STATE LEGISLATION- ESTATES BY ENTIRETIES— COPARCENARY— LIMITED BY STATUTE-TENANCY IN COMMON— THE MOST USUAL IN PENNSYLVANIA TO-DAY— ONE ONLY OF THE FOUR UNITIES NECESSARY. Heretofore, discussion has been of estates vested either in a single person, or if so divided that more than one person had an estate in the same land, yet only one at a time had the right of possession and enjoyment. Lands so held are said to be held in severalty, which is where the tenant " holds them in his own right only, without any other person being joined or connected with him in point of interest dur- ing his estate therein." It is now time to consider those estates where there are a plurality of tenants, having at the same time a present right of possession and enjoyment in the land. These may be divided under four heads : Joint tenants, tenants by en- tireties, coparceners, and tenants in common. Blackstone makes no separate division of estates by entireties, though he says, 1 that they are not properly joint tenancies, which they most closely resemble. These joint interests in estates may be of any quantity (except coparcenary), and may be either in possession or expectancy (with the same exception). The distinction as to coparceners will appear from the nature of their estate and the manner of its creation. I. Joint tenancy 2 exists where two or more persons own land by a joint title created expressly by one and the same 1 2 Bl. Com. *182. 2 See Digby, Hist. Law Real Prop. 433 seq ; Challis on Real Prop. 246 THE LAW OP REAL ESTATE AND deed or will. This estate never happens except by purchase, either grant or devise, never by descent or mere act of the law. Wherever lands were granted or devised to two or more persons without any restrictive, exclusive or explana- tory words, the result was a joint tenancy. This estate was formerly favoured in feudal times and for feudal reasons. Now it is not favoured and the courts will not construe an estate to be a joint tenancy, but will make it a tenancy in common in doubtful cases. The distinctions between them were sometimes quite refined ; but they have been rendered of small importance in this State at this time by a statute which I will mention presently. Of course where express words were used, " to A. and B. as joint tenants," there could be no question ; or, " to A. and B." without any further words. This, also, was a joint tenancy without any doubt; but where, in a will, a testator used any words which showed an intention that the estate should be divided, as " equally to be divided," or " share and share alike," or " equally," a tenancy in common has always been inferred. In Martin v. Smith, 1 C. J. Tilghman said. '' When a man is providing for his children by his will, noth- ing can be more unnatural than an estate in joint tenancy. It is with good reason, therefore, that courts of justice have long been disposed to lay hold of slight expressions in order to make a tenancy in common. I confess that I feel this disposition in my own mind, but it shall never influence me so far as to shake the established rules of property. Where an estate is given to several persons jointly, without any ex- pressions indicating an intention that it should be divided among them, it must be construed a joint tenancy: but where it appears, either by express words or from the nature of the case, that it was the testator's intent that the estate should be divided, it then becomes a tenancy in common." ' 5 Binn. 18. CONVEYANCING IN PENNSYLVANIA. 247 In equity, also, an estate, which would at common law be deemed a joint tenancy, is sometimes construed a tenancy in common; and,- where two persons purchase land upon an agreement, each paying an equal portion of the purchase money, although if the deed were made to them without more words, it would be deemed a joint tenancy, yet equity will not give such a construction, unless the circumstances show that such was the intention of the parties. 1 Joint tenancies are distinguished by having four unities — interest, title, time and possession. 1. Unity of interest. — They must each have the same quantity of estate — not one for life and the other in fee. The joint estate may be of any quantity, from a tenancy at will up to an estate in fee-simple. If their estate is of the quantity which admits a remainder, one of them may have the remain- der without destroying this unity of interest. The remainder and the joint tenancy are two separate and distinct estates. To A. and B. for their lives, remainder to the heirs of A. The joint estate is for lives only, and the remainder, in fee, is in A. in severalty. Their shares, also, must be equal. One cannot have one-third and the other two-thirds. 2. Unity of title. — The joint tenants must all claim under the same act, whether legal or illegal ; the same deed or will, or the same disseisin. They take as one. 3. Unity of time. — Their estates must vest at one and the same time. This is the common law rule and does not ap- ply to cases where estates are conveyed by way of use? A. Unity of possession. — They are seised as one — per my et per tout. 3 Each is seised of an undivided moiety of the whole 1 Caines v. Grant, 5 Binn. 122. 2 2 Bl. Com. *182, note 8. 3 The phrase "per my H per tout, ' which is used by Blackstone here as descriptive of joint tenancy, is quoted by him from Littleton, sec. 288, Co. Litt. 186a. He translates it ''by the half or moiety and by all " — 2 Com. *182. In a note by the reporters to the case of Murray v. Hall, 7 Man., Gr. and Scott, 4» (E. C. L. R. 62), it is asserted that 248 THE LAW OF REAL ESTATE AND and not of the whole of an undivided moiety. They are seised of the half for purposes of alienation and forfeiture, and as respects each other and for all purposes of tenure and sur- vivorship, each is seised of the whole. 1 The circumstance that each joint tenant is seised of the whole, or per tout, has given rise to several incidents to this kind of estate. The principal one is, that where one joint tenant dies the whole estate goes to the survivors or survivor. This is called the jus accrescendi, or right of survivorship. If there were several joint tenants, the whole estate, upon the death of any one of them, went to the survivors, and so on to the last survivor who had an estate in severalty. And so inevitable was this survivorship that a joint tenant could not devise his 1 estate by will, for the will does not take effect un- til the death of the testator, and at the same instant the jus accrescendi vested in the surviving tenant, who already had seisin of the whole land, so his claim was preferred to that of the devisee. From the same reasoning it followed that there could be neither dower or curtesy in a joint estate, for the seisin of the survivor was commensurate with the estate, and none could be seised with him. And the survivor took 1 Co. Litt. 186a. Blackstone was wrong in his translation of the word my, which is said to be the same as mie, the old French negative, meaning "not" or " nothing." And for this they refer to the quotation from Bracton, which Blackstone makes in a note, following Co. Litt., in these words : " (Juilibet totum tenet, et nihil tenet ; scilicet, totum in communi, et nihil separatim per se." If this is the Latin equivalent of the phrase " per. my," etc., then " my " must be the equivalent of " nihil." .Such is the argument. But " my " is much more naturally the equivalent of " mi " than of " mie," and " mi " is a perfectly well-known word, of great an- tiquity and in use in modern French as a particle — mi-mai, middle of may, mi-jambe, mid-leg. It means "half," " middle," " moiety." See Killian's Norman Diet. As at present advised, I follow Blackstone : .Mi— Half middle, mixed, put. Mieste (6) -Midsummer. Mi divixt— Midnight. Mie— Not, ill. Mie (tila) — in the middle. CONVEYANCING IN PENNSYLVANIA. 249 the estate clear of all liens or incumbrances created by the deceased joint tenant, the maxim of the law being "jus accre- scendi prwfertur oneribus" It was this right of survivorship which, in ancient times, made the joint tenancy favoured by the law, which then leaned against anything which would divide lands among many tenants, because that tended to multiply the feudal services and weaken the efficacy of that connection ; but, in course of time, as the condition of society changed and feu- dal tenures were relaxed, so did this favour of the law di- minish, until, when military tenures were practically abol- ished by the statute of 12 Car. II, the reason of the law was taken away, and the same right of survivorship, which was once so favoured, became odious, as tending to uncertainty and inequality and as making no provision for posterity. Joint tenancies might be destroyed by any act which de- stroyed one of the four unities — as where the unity of inter- est was destroyed by the reversion in fee descending to one of several joint tenants for life ; or the unity of title by one of the joint tenants conveying his share to a stranger. This produces a tenancy in common. A. B. and C. are joint tenants; if A. alien his share to D. there is still a joint tenancy be- tween B. and 0., but with respect to D. they are tenants in common. The unity of possession may be destroyed by a conveyance to a stranger by one joint tenant, or by his re- leasing to his co-tenant. If there be three joint tenants and one release his share to another, this destroys the joint ten- ancy as to the share released. As to this share the other two hold as tenants in common. This unity of possession maybe destroyed, also, by a voluntary partition, which must be made by deed. At common law they could not be compelled to make partition, but this was altered as to joint tenants of any estate of inheritance by the Statute of 31 Hen. VIII., c. 1, which declared that they might be compelled to make par- 250 THE LAW OF REAL ESTATE AND tition in like manner as parceners were. 1 The following year a statute was passed, 32 Hen. VIII., c. 32, extending the same provisions to joint tenants of estates for life or years. 2 Probably both, but certainly the first, of these statutes were introduced here, 3 though at an early day provision for cases requiring partition was made by our own Acts of As- sembly. But the learning with regard to joint tenancy is chiefly valuable in Pennsylvania in examining titles which go back of 1812. In that year was passed a statute which has had the effect, under the decisions of our courts, of turning all such estates into tenancies in common. " If partition be not made between joint tenants, whether they be such as might have been compelled to make parti- tion or not, or whatever kind the estate or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors but shall descend or pass by devise, and shall be subject to debts, charges, curtesy or dower, or trans- missible to executors or administrators and be considered to every other intent and purpose in the same manner as if such deceased joint tenants had been tenants in common : Provided, always. That nothing in this act shall be taken to affect any trust estate." ' The effect of this statute was to take away from the estates of joint tenants all the peculiar features which distinguish them from tenancies in common ; but it does not prohibit testators or grantors from expressly creating a right of sur- vivorship — it simply prevented this result from flowing from the estate itself. So where a testator devised land to his 1 Kob. Dig. *217. 2 Rob. Dig. *224. 3 Dana v. Jackson, 6 Barr, 237. 4 Act of 31 March, 1S12. Purd. Disc, title " Joint Tenancy," p. 939, pi. 1. This act is copied from the Virginia statute relating to Parti- tions, which accounts for the introductory clause. The proviso only is new. Kennedy's Appeal, 10 P. F. Sm. 517. CONVEYANCING IN PENNSYLVANIA. 251 three brothers, Matthew, William and Wilson, as joint ten- ants, and to the survivors and survivor of them, and the heirs of said survivor, it was held that the act did not forbid the creation of a survivorship by express terms, and, therefore, the brothers took a joint estate for life with cross remainders in fee. 1 But the disfavour with which modern courts regard joint tenancies still continues, and express words are re quired to create them. 2 Trust estates are expressly excepted ; therefore, the grant to two trustees and their heirs, without more, vests an estate in joint tenancy in them and survivorship is incident. Joint tenants were accountable to each other for the profits of the land, where one or more received them all, by the statute of 4 Anne, c. 16, sec. 27, which is in force here ; 3 and they were also liable for waste, not at common law but by statute, and for contribution to pay off incumbrances. II. Estates by entireties 4 — Blackstone says : " Therefore, if an estate in fee be given to a man and his wife they are neither properly joint tenants or tenants in common ; for, husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety — per tout et non per my." This peculiar estate can only be created during coverture, where the title to land devolves by grant, devise or descent upon a man and his wife, and it depends for its distinguish- ing features upon the unity which exists between two people joined together in marriage. The same words of conveyance or limitation which would make two other persons joint ten- ants, will make a husband and his wife tenants by entireties. Joint tenants are seised of an undivided moiety of the whole, 1 Arnold v. Jack, 12 Har. 57 ; Seely v. Seely, 8 Wr. 437. See Jones u. Cable, 4 Amer. 586. 2 Mc Vey v. Latta, 4 W. N. C. 524 ; Kerr v. Verner, 16 P. F. Sm. 326. 3 Rob. Dig. *48. 4 See Cliallis on Real Prop., p. 281-283, Text Book Series, Blackstone Pub. Co. 252 THE LAW OF REAL ESTATE AND but husband and wife are seised of the whole and not of a moiety at all. In Stuckey v. Keefe, 1 lands were conveyed to husband and wife, their heirs and assigns as tenants in common, and not as joint tenants, and the court held that the intention to make them tenants in common, though clearly ex- pressed, could not be regarded. " Coke tells us that there can be no moieties between husband and wife ; Littleton says that the reason is that they are one person in law ; Blackstone tells us that for that reason they cannot take the estate by moieties, but both must be seised of the entirety. If, then, they are one person in law, if there be no moieties between them, if they cannot take by moieties, but both must be seised of the entire- ty, the intention to create a tenancy in common is immaterial, for the rule is that the very same words which create such an estate between other parties, create an entirety in husband and wife." 2 Where land is conveyed to husband and wife, and another person to hold as tenants in common, the husband and wife, being one person in law, take one-half between them, and the third person takes the other half. 3 This estate can only be created during coverture. If a man and a woman be seised as tenants in common and afterwards marry, they re- main tenants in common. By the third section of the Intestate Act of 1833, it is pro- vided that the real estate of an intestate, shall, in default, of issue and subject to estates of husband and widow of intes tate, vest in the father and mother of such intestate during their joint lives and the life of the survivor of them. And by the fifth section, where there are, also, no brothers or sis- ters of the whole blood, or descendants of such, the real es- tate of the intestate vests in the father and mother of the in- 1 2 Cas. 397. * Lewis J. Stuckey v. Keefe, 2 Cas. 397 ; see, also, French v. Mehan, 6 P. F. Sm. 286. 3 Johnson v. Hart, 6 W. & S. 319. CONVEYANCING IN PENNSYLVANIA. 253 testate in fee. It seems that in such cases the father and mother, if both living, take as tenants by the entireties. ' Of course, the reasoning from seisin per tout, which results in the jus acerescendi among joint tenants, applies with still more force to tenants by entireties, for they are not seised per my at all, and survivorship is inevitable and cannot be prevented. Neither can dispose of any part without the con- sent of the other, but the whole must remain to the sur- vivor. 2 The Act of 1812, which abolished survivorship among joint tenants, does not apply to husband and wife. Their estate is not a joint tenancy and, therefore, not within the terms of that act. 3 It was a question left undecided in Stuckey v. Keefe, before cited, whether the Married Women's Act of 1848 did not so affect the unity existing between husband and wife as to allow them to take as tenants in common. This was de- cided in Diver v. Diver, just cited, and that act construed. Indeed, in a subsequent case, Judge Thayer, whose opinion was approved and adopted by the Supreme Court, determined that the effect of the Married Women's Act was a protection to her in her seisin of the whole land, so that she could not be deprived of it by a sale of her husband's interest therein in his lifetime. 4 If the wife suivives, she takes the estate by survivorship clear of her husband's debts, because she does not take under or through him, but by virtue of the paramount grant to her- self in the original conveyance. 5 Husband and wife were seised of land by entireties. Judgment was entered against the husband in 1877 and revived in 1882. In 1882 husband 1 1 presume that the words " several persons," in the act, were not meant to include husband and wife, who are one. Gillan v. Dixon, 15 P. F. Sm. 395. 2 Doe & Freestone v. Parratt, 5 Term Rep. 652. 3 Diver v. Diver, 6 P. F. Sm. 109. * McCurdy v~ Canning, 14 P. F. Sm. 40. 5 French v. Mehan, 6 P. F. Sin. 286. 254 THE I AW OF REAL ESTATE AND and wife executed a mortgage. The wife died a few days afterwards. The question was. as against the husband, should the judgment or the mortgage have precedence ? Held, that the judgment was the first lien. Mr. Justice Green said : "The estate of each is exceptional and peculiar. It dies with the owner, and only the survivor has the absolute and unquali- fied fee simple title in the whole. The estate of the other, though extending to the whole during life, absolutely ceases at death. It was that kind of estate which was bound by the lien of the mortgage given by Mary Holcomb [the wife] ; and it was the same kind of estate which was bound by the lien of the judgment against her husband. As against the wife the mortgage was undoubtedly the first and indeed only lien. As against the husband the judgment was the first lien and the mortgage the second, simply because the judgment was obtained before the mortgage was given. Had the wife sur- vived, the mortgage would certainly have had precedence to the exclusion of the judgment, because the estate bound by the lien of the judgment was defeasible by the death of the husband before the wife. For the same reason if the hus- band survived the wife, the estate of the latter was divested, and the mortgage only became operative against the husband because he had joined in its execution. 1 " There can be no partition between husband and wife, and no account for profits, no liability for waste and no suit for contribution. III. Coparcenary? — " Where lands of inheritance descend from the ancestor to two or more persons." 3 At common law, the lands of a decedent descend accord- ing to certain rules, of which one is, " that male heirs shall be admitted before females ; " and another, " that where there 1 Fleek v. Zillhaver, 2 Crum. 213, 218. 2 Digby Hist. Real Prop. 236; Ohallis on Real Prop., p. 279-281, Text Book Series, Blackstone Pub. Co. 5 2 Bl. Com. 187. CONVEYANCING IN PENNSYLVANIA. 255 are two or more males in equal degree, the eldest only shall in- herit, but the females altogether." The consequence of this was that, at common law, lands never descended upon more than one man, and a joint estate by descent, therefore, could only happen where lands descended to females ; for, if there were several in equal degree, they took altogether and were called parceners. By custom, as in gavelkind, the common law rule by which the eldest male was preferred to others in equal degree, did not govern, but the descent was to all the males in equal degree. They also took as parceners. Our Pennsylvania statute regulating the descent and dis- , tribution of Intestate Estates, expressly provides that, where lands descend to several persons under its provisions, they shall take and hold as tenants in common. Hence, copar- cenary can exist here only in cases to which this Act does not apply. These are estates tail and trust estates. There could be no coparcenary in chattels. They do not descend. Coparceners were not seised per tout, although they had unity of possession ; consequently there was no survivorship and their shares were subject to incumbrances, dower and curtesy and might be devised by will. They were compella- ble to make partition at common law, while joint tenants were not — hence their name. IV. Tenancy in common} — Nearly all the estates — I may, perhaps, say all — except trust estates and estates by entire- ties, held in Pennsylvania by a plurality of tenants, are of this nature. Only one of the unities is necessary, that of possession, though others may exist. 2 They are seised per my et non per tout of the whole of an undivided moiety, not of an undivided 1 Digby Hist. Eeal Prop. 235; Challis on Real Prop., p. 276-279, Text Book Series, Blackstone Pub. Co. 2 No unity of interest— one may be in fee and the other for life ; one may have one-eighth and the other seven-eighths. Nor of time — one may have had his estate fifty years and the other only since yesterday. Nor of title — one may claim by descent, or devise, the other by deed. 256 THE LAW OF REAL ESTATE AND moiety of the whole. Their seisin is several, not joint. They have several freeholds and not an entirety of interests. This estate was favoured in equity long before it was by courts of common law; 1 but now, both law and equity look upon joint tenancy with its survivorship, as odious, and lean in doubtful cases, to construe a limitation as a tenancy in common. The distinction is now, as I have explained, of little importance. A tenant in common is like a joint tenant in all matters which result from or relate to the unity of possession. So the possession of one tenant in common is for all his co- tenants andis not an adverse holding within the statute of lim- itation, unless there has been first an ouster, or some act which notoriously shows that he intends to assert a title in severalty in himself, and of which they have notice. 2 It is not enough that he receives all the profits of the land without more. So also a tenant in common, who buys in an outstanding title, is presumed to have done so for the benefit of all the tenants. He cannot set it up and claim to hold the land under it against them. 3 But his seisin is not joint ; he may, there- fore, maintain an ejectment in his own name for his undi- vided share of the land.* They are liable, under the statute of i Anne, c. 16, s. 27, to be called to account to each other for the profits, if they received more than their just share. 6 And in equity tenants 1 Gaines v. Grant, 5 Binn. 122. 8 See Hayes' Appeal, 8 Crum. 110. The mere occupancy by a co-tenant, without putting upon record the deed to him for the undivided half of the premises, is not such'noticeof his exclusive claim of title as would discharge the lien of a judgment for want of notice to him as a terre-tenant. Meinweiser v. Haines, 14 Out. 468. 3 Keller v. Auble, 8 P. F. Sm. 410. 1 Mobley v. Brunei', 9 P. F. Sm 481. One tenant in common has no power to bind his co-tenant by an agreement with another to lease their land. McKieley r. Peters, 1 Arner. 283. 5 Kline v. Jacobs, 18 P. F. Sm. 57. It is doubtful whether an action of assumpsit for use and occupa- tion, can be maintained by one tenant in common against his co-ten- CONVEYANCING IN PENNSYLVANIA. 257 in common of mines may be compelled to account under the Act of 29 April, 1850, sec. 247 The want or absence of joint seisin prevents the right of survivorship from attaching to tenancy in common, and there being no survivorship, it follows that dower and curtesy attach, and their shares are subject to debts and in- cumbrances. Tenants in common are within the Statute of Gloucester as to committing waste. They are liable to each other for waste. They are, also, compelled to contribute each his share towards paying off liens and incumbrances, and towards necessary repairs, but not for improvement. 3 They may be compelled to make partition. This right gives a prompt and easy remedy for any dissatisfaction that may grow up between them. 3 This finishes our inquiries with respect to the nature of estates. ' Purd. Dig. " Equity," p. 696, pi. 36. 2 Gregg v. Patterson, 9 W. & S. 209; see Miller's Appeal, 21 W. N. C. 311. 3 " Where parties devote land to a particular use, which use enters into the consideration of the contract creating it, one of the tenants in common cannot, without the consent of his co-tenants, defeat the joint purpose by a writ of partition." Gordon, C. J., in Latshaw's Appeal, 7 Crura. 142, at p. 152. See, also, Coleman v. Coleman, 7 Har. 100 ; Brown v. Lutheran Church, II Har. 495. ant to recover the value of the crops raised by the latter upon the com- mon property. Luck v. Luck, 3 Amer. 256. A tenant in common, who has been deprived by the fraud of his co- tenant of his interest in an oil leasehold, is entitled, in a suit brought for his share of the oil produced and converted by his co-tenant while in possession, to recover the value of the oil in the tank without de- duction for the expenses of production. Foster v. Weaver, 3 Crum. 42. 17 258 THE LAW OF REAL ESTATE AND PART II— CONVEYANCING. CHAPTER I. WHAT A PERFECT TITLE REQUIRES— ACTUAL POSSES- SION—DISSEISIN AND OUSTER — RIGHT OF ENTRY - STATUTE OF FORCIBLE ENTRY—THE RIGHT OF POS- SESSION — APPARENT— ACTUAL — DESCENT CAST— THE RIGHT OF PROPERTY— MARKETABLE TITLE. " Title is the means whereby the owner of lands hath the just possession of his property. 1 Conveyancing is the science of transferring title to land. If you say you are the owner of land, some one may ask why? By what means have you possession? Is your pos- session just? You may answer, it was conveyed to me, or devised to me, or it came to me by descent. If, when law- fully called on, you are able to show that you have the land in your possession, and have a right to the possession, and a right of property in the land, by sufficient means, you show, a good title to the land. ^ A complete, or perfect title, consists of the union of pos- session, with the right of possession, and the right of property. 1. Actual possession. — This alone, or, as it is called, mere, naked possession, is the lowest and most imperfect title to land. Suppose a person in possession of land in this man- ner, he has no estate, he is not even a tenant at will. The real owner of the lands has his estate vested in him, his 1 2 Bl. Com. *194. CONVEYANCING IN PENNSYLVANIA. 259 estate is not changed. Still his title is not complete and perfect ; he lacks actual possession. He is said to be dis- seised, but he has the right of possession and the right of property remaining in him. The definition of a disseisin is a personal trespass of tor- tious ouster of the seisin ; 1 or, a wrongful putting out of him that is seised of the freehold. 2 And there was a distinction between the various methods by which the ouster was accomplished, which was at one time of importance, owing to the character of the remedy to be employed. Ouster is the general name given to all acts by which a man gets pos- session of lands 8r hereditaments, to which he has no right of possession or right of property, and it applies as well to possession lawfully gained and afterwards asserted and con- tinued unlawfully, as to cases where the act of taking pos- session is itself wrongful. It was not every ouster which amounted to a disseisin. The ouster might amount only to an abatement, or an in- trusion. A disseisin is not only the dispossession of the freeholder from his land, but, also, a substitution of the dis- seisor as tenant to the lord, and as one of the pares curia, in place of the disseisee. 3 Lord Mansfield, in Taylor v. Horde, 4 said that "the precise definition of what constituted a disseisin, which made the disseisor the tenant to the de- mandant's praecipe, though the owner's entry was not taken away, was once known, but is not now to be found. The more we read, unless we are very careful to distinguish, the more we shall be confounded, for after the assize of novel disseisin was introduced, the legislature, by many acts of Parliament, and the courts of law, by liberal constructions in furtherance of justice, extended the remedy, for the sake 1 Co. Litt. 153 b. 2 3B1. Com.*169. 3 Cruise on Real Prop., Tit. 1, sec. 30. 4 1 Burr. 110. 260 THE LAW OF REAL ESTATE AND of the owner, to every trespass or injury done to his real property, if, by bringing his assize, he thought fit to admit himself disseised. * * * The law books treat of disseisin with a view to the assize, which was the common method of trying title till ejectment came into use." The view of Lord Mansfield in that case is that disseisin at common law, " signified some mode or other of turning the tenant out of his tenure, and usurping his place and feudal relation," an act which, as we shall shortly see, was accompanied by this consequence, viz : That if the disseisor died seised, the descent to the heir gave him the right of possession, and tolled or took away the true owner's entry. 1 * This being the state of things at common law, a remedy was invented, called the assize of novel disseisin, and that being found to be a beneficial remedy, but being applicable only to the case of a person disseised, a fiction grew tip and was encouraged by the courts, according to which a party wrongfully out of possession, although not disseised, strictly and properly speaking, of the freehold, was permitted to treat the wrong done him as a disseisin, for the sake of entitling himself to the remedy by assize. " In a word," says Lord Mansfield, " for the sake of the remedy, as between the true owner and the wrong doer to punish the wrong, and as between the true owner and the naked possessor to try the title, the assize was extended to almost every case of obstruction to an owner's full enjoyment of his lands, tenements and here- ditaments." There were thus, two kinds of disseisin ; one, a fictitious disseisin, or something which was really not disseisin, but was called by that name for the purpose of allowing an in- jured party to have a remedy, which was called disseisin at election, because the injured party might choose whether he would consider himself disseised or not; and the other, an 1 Co. Litt. 238 a. CONVEYANCING IN PENNSYLVANIA. 261 actual disseisin, which included the usurpation of the free- holder's feudal rights : and it is from the confusion between these two kinds of disseisin in the old books that the diffi- culty has arisen to know what disseisin is, of which Lord Mansfield speaks. Possession is prima facie evidence of title, and a person in possession may hold against all the world except the law- ful owner. In an action of ejectment the rule is well settled that the plaintiff must recover on the strength of his own title, and if the defendant can show a better title than the plaintiff's in a third person, he may keep possession till that better title appears, 1 unless it appear that he got possession from the plaintiff, in such a way that he cannot dispute his title, as where the plaintiff was in peaceable possession and the defendant turned him out, or where the defendant took as tenant of the plaintiff. Still the real owner of the land has the right to enter upon the land and dispossess the one who has only a bare posses- sion. This is called a right of entry? The entry must be peaceable. It is said that where the disseisin is fresh, the owner may use as much force as is necessary to remove the intruder, 3 but this must be tempered with a prudent re- membrance of the Statute of Forcible Entry. " If any person shall with violence and a strong hand enter upon or into any lands or buildings, either by breaking open doors, windows or other parts of a house, or by any kind of violence or other circumstances of terror, or if any per- son after entering peaceably shall turn out by force or by threats, or menacing conduct, the party in possession, every person so offending shall be guilty of a forcible entry, and on conviction shall be sentenced to pay a fine not exceeding $500, or to undergo an imprisonment not exceeding one year, 1 Hoey v. Furman, 1 Barr, 295. 2 3 Bl. Com. 174. 3 Lichtenwallner v. Laubaeh, 9 Out. 366. 262 THE LAW OP REAL ESTATE AND or both or either, at the discretion of the court, and to make restitution of the lands and tenements entered as aforesaid." ' If the possession of a man be actual, quiet and peaceable, even though it be a mere, naked possession, to turn him out with violence and a strong hand is to make a forcible entry within the terms of the act. Though possession be of so light a nature that when it comes in competition with title, in an action of ejectment it will not stand, it may be a suffi- cient occupancy, exercise of ownership, use or enjoyment, which will be protected against force. The interruption of this possession by violence is made a crime, to be redressed by in- dictment. 2 Perhaps, if peaceable possession cannot be gained, the better plan would be, if the disseisin were within three years and the right of possession unquestionable, after attempt- ing to enter and being forcibly prevented, to bring an indict- ment against the wrong- doer under the next section of the stat - ute. " If any person shall with force and a strong hand, or by menaces or threats, unlawfully hold and keep the possession of any lands or tenements, whether the possession of the same were obtained peaceably or otherwise, such person shall be deemed guilty of forcible detainer," etc., and be subject to a fine of $500, imprisonment for one year, and shall make res- titution as in case of forcible entry : Provided, That no per- son shall be adjudged guilty of forcible detainer, if such per- son, by himself or by those under whom he claims, has been in peaceable possession for three years next immediately pre- ceding such alleged forcible detention. 3 What actual possession is, is a question to be determined ' Purd. Dig., " Crimes," p. 406, pi. 27 ; Act of 31 March, 1860, sec- tion 21. 2 Pennsylvania v. Robison, Add. 14. "Purd. Dig., title "Crimes," p. 407, pi. 28, and notes; Act of 31 March, 1860, sec. 22. This statute of 1860 replaced and supplied the previous law which depended on the English statutes in force here. See Roberts' Die., title "Forcible Entry," pp. *283 seq. SeeTorrenee v. The Commonwealth, 9 Barr, 184. CONVEYANCING IN PENNSYLVANIA. 263 by the circumstances of each case. A man cannot stand on every part of his land. He cannot build houses and settle tenants on every acre of it. He cannot plough every corner of it, nor make a fence around the whole. Binding the inhabi- tants of this country to rules so strict, and protecting, from forcible entries, only lands so possessed, would be very in- convenient and would in a great measure, if not entirely, elude the law, especially in those cases for which chiefly the laws were made, of poor people least able to circumscribe their survey on a legal title, to build, plough, or fence. Therefore, if a man, in any manner, circumscribe for him- self a reasonable possession within such bounds as are usually allowed, sit down on one part of it, build in such manner as is convenient, plough and fence, as may suit his interest, in- clination and ability, and use the residue of his own known and reasonable claim as other men of like condition use their lands, he will be considered as in such possession of the whole that a forcible entry into any one part will be punished >»y these statutes. 1 Possession may exist without residence. A man does not discontinue his possession by locking up his house in town or suspending his cultivation in the country, provided he do not suffer the buildings in one case or the fields in the other, to be thrown open; but he is bound to continue a positive 1 Penn'a v. Robison, Add. 14. See, also, O'Hara v. Richardson, 10 Wr. 385 ; McArthur v. Kitchen, 27 P. F. Sm. 62. " When the owners of adjoining tracts of land are in actual posses- sion, each of his own tract, using his woodland as farmers usually do, neither acquires title under the statute (of limitation) to his neigh- bour's land beyond that which he actually enters upon, clears and cul- tivates, or encloses by fences and holds adversely, notoriously and peaceably, for twenty-one years. In such a case the running of a line is a trespass, and no ouster, ipso facto ; the possession in law of the un- enclosed woodland being presumptively in him who has the title, un- less exclusive adverse possession of the woodland be taken within the lines run, by the use of timber in the manner farmers usually use their woodland, and permitted by the owner for twenty-one years, thus creating a presumptive ouster."' Collins r. Benedict, 5 W. K. C. 549. 264 THE LAW OF HEAL ESTATE AND appearance of ownership by treating the property as his own and holding it within his exclusive control. 1 A good title to unimproved land is evidence of construc- tive possession thereof. 2 The boundaries established by the title are evidence of the extent of the possession ; but, where a mere intruder, without title, enters upon a tract of land, he does not thereby hold constructive possession of the whole tract, but only of the portion actually occupied by him. 3 A mere naked possession may, by lapse of time and the negligence of those who have the right of possession and of property, ripen into a perfect and indefeasible title, and when it does, the estate is in quantity a fee- simple, for every dis- seisin is presumed to be a fee. 4 Where a man has possession of land, which he holds even as a trespasser, he may alien it. Our law permits all persons, whether in or out of possession, to transfer their claim, such as it is, good or bad, by deed or will. 5 Of course this was in opposition to the rule of the com- mon law, for, as all valid transfers required livery of seisin, one who was disseised, or had lost his seisin, was disqualified from conveying his title. The interest (such as it is) of one who has only a naked possession of land, may be taken in execution and sold by the sheriff for his debts, and the pur- chaser at sheriff's sale succeeds to that right and may recover possession. 6 The possession of a tenant for years is the possession of his lessor. In speaking of possession here, I refer to one who has possession only under no claim of other title or right. 2. The right of possession may be in one man while the ac- 1 The distinction between possession and residence is well shown in the case of the Susquehanna R. R. Co. v. Quick, 18 P. F. Sni. 189. ■' Kramer v. Goodlander, 10 W. N. 0. 469. 3 Ege v. Medlar, 1 Nor. 86 ; Barnhart v. Petit, 10 Har. 135. * Watson v. Gregg, 10 Watts, 295. > Overfield v. Christie, 7 S. & R. 173. G Knox v. Herod, 2 Barr, 27 ; Young v. Algeo, 3 Watts, 223, 227 ; Gerber v. Hartwig, 11 W. N. C. 197. CONVEYANCING IN PENNSYLVANIA. 265 tual possession is in another. The term is synonymous with right of entry. 1 The right to enter, however, was lost at common law, if the person in possession without title, died seised ; then his heir took by descent from him, the law always favouring the heir upon whom the seisin or possession of his ancestor was thus cast by descent. This was called the " descent cast." and hence arose the phrase, that " descent tolls entry." There were said then to be two rights of possession — one apparent in the heir of the disseisor, the other actual in the actual owner — the apparent right of possession being the real one, at any rate until the one who was said to have the actual right established that right by an action at law. The difference was quite an important one. So long as the rightful owner out of possession retained his right of en- try, he might enter and put the intruder out either by force, or by the action of ejectment, in which formerly nothing was determined but the right of possession. Hence, it was called a possessory action. But when, by the " descent cast," the right of entry was tolled or taken away from the rightful owner and the right of possession vested in the heirs of the disseisor, the only remedy which remained was a real action, usually a writ of entry sur disseisin, to establish his title, which was an expensive and very tedious proceeding. The doctrine of descent cast is probably derived from the feudal idea, that was also the origin of reliefs, that the land being given by the lord to the tenant for services to be rendered, and upon consideration of his personal fitness and ability to render those services, was to escheat to the lord at his death, and if the heirs of the tenant took the feud, he was to pay for the relevium or relief. Consequently, when one died in feudal possession or seisin of land, the heir not only paid a price for the right of succession and was to that extent a pur- 1 Hylton v Brown, 1 Wash. C. C. R. 204 266 THE LAW OF REAL ESTATE AND chaser, but there was a new investiture or enfeoffment by the lord and an acknowledgment of fealty by the heir, which created a relation between them that no man should be al- lowed to sever by force and a strong hand ; therefore, " de- scent tolls entry." The statute of 32 Hen. VIII., c. 33, 1 enacted that the dying seised of a disseisin shall not be taken or deemed any such descent in law, as to toll or take away the entry of any person who had lawful right of entry (or his heir) unless the disseisor had peaceable possession of the premises for the space of five years next after disseisin by him committed, without entry or continued claim of such as have lawful title. The descent, therefore, which tolled the right of entry of one out of pos- session, must have been after a peaceable possession by the ancestor for five years before his death, under this statute, and even then it might be defeated by showing that there had been an intervening entry by the rightful owner or a continued claim. In Pennsylvania the better opinion seems to be that these old common law rules, with respect to right of entry, are not in force, though in Hylton v. Brown, 2 Judge Washington in- dicates a contrary opinion, and Mr. E. K. Price, in his work on Limitations and Liens, refers to several decisions which recognize the doctrine. 3 In McOall v. Neely, 4 Chief Justice Gibson said that "' with us a descent does not take away the entry of the owner." The fact that nearly all our titles to land are tried by the possessory action of ejectment, has ren- dered this question a matter of little importance. 5 3. The right of property. — When the right of entry was 1 Eeported by the judges " to be incorporated." Bob. Dig. *167. 2 1 Wash. C. C. B. 204. 8 Chap. Ill, p. 35. 4 3 Watts, 71. 6 The effect of a " descent cast " to defeat the right of entry of the rightful owner has been abolished in England by Stat. 3 and 4 Wm. IV. c. 27, s. 39. CONVEYANCING IN PENNSYLVANIA. 267 absolutely gone at common law, this was still left in the owner. It was only a right of action. The distinctions on which these different rights are founded depend mainly upon the character of the remedy or action appropriate to each of them. Where the plaintiff had the absolute right of possession, he had his entry upon him who had only a naked possession. Where the descent cast gave to the terre-tenant an apparent right of possession, the owner had his possessory action, a writ of entry sur disseisin, or an assize of novel disseisin ; and where by lapse of time, or for other cause, he had lost his right of possession altogether, he was obliged to have recourse to a real action, the writ of right. 1 The common remedy, which has taken the place of all these, and which is almost alone used in Pennsylvania to recover possession of lands, is the action of ejectment, which is not within the scope of this book- — but more here- after. Dower exists in all titles, whether in or out of possession, but not curtesy. If there is actual adverse possession, there actual or constructive seisin is necessary. A perfect title is one which includes all the three degrees, possession, right of possession, and right of property. It is one that enables the owner to keep possession against all the world, conse- quently, it must be good from its source ; one bad link, of recent date, spoils all. How it is acquired and trans- ferred will be the subject of study in the following pages. A man may have a good title, and yet not a marketable one. A marketable title is one which the court will compel a purchaser to accept. 2 To be a marketable title it should not depend on matter outside of the record, to be proved by parol testimony, except matters of pedigree, and the like. 1 For which see 3 Bl. Com. ch. 10, p. 167 seq. ' Dalzell v. Crawford, Clark's Cases, Vol. 1, -155 ; Mitchell v. Stein- metz, 10 W. N. C. 43. 268 THE LAW OF REAL ESTATE AND A title depending on the bar of the Statute of Limitations, may be a marketable title, but it must clearly appear that the real owner, or owners, is barred. 1 Questions whether a title is marketable or not arise when the land has been sold, and the purchaser refuses to take it on account of some alleged defect in the title. The court will not compel a purchaser to take if there is a reasonable doubt; such a doubt as produces real, iona fide hesitation in the mind of the chancellor. Even though the court should think the title good, yet they will' not decree a specific performance if there be a substantial doubt. 2 1 Pratt v. Eby, 17 P. P. Sm. 402 ; Shober v. Dutton, 6 Pbila. 185. 2 Doebler's Appeal, 14 P. P. Sm. 17 ; List v. Rodney, 2 Nor. 483. CONVEYANCING IN PENNSYLVANIA. 269 CHAPTER II. DISTINCTION BETWEEN DESCENT AND PURCHASE— WHO MAY OR MAY NOT BE HEIR— 1. BASTARDS— MA Y BE LE- GITIMATED—!. BY ACT OE ASSEMBLY {PRIOR TO 1874)— 2. BY MARRIAGE AND COHABITATION OF PARENTS- RIGHTS OF BASTARDS— MAY INHERIT FROM THEIR MOTHER— RIGHTS OF ALIENS— ADOPTED CHILDREN— WHO SHALL BE HEIR— THE INTESTATE ACTS— DESCENT OF TRUST ESTATES AND ESTATES TAIL— LINEAL AND COLLATERAL CONSANGUINITY — CIVIL AND CANON LAW METHODS OF COMPUTING CONSANGUINITY — BLACKSTONE'S CANONS OF DESCENT— ACT OFS APRIL, 1833— LIEN OF DECEDENT'S DEBTS— PROVISIONS FOR WIDOWS AND SURVIVING HUSBANDS— DESCENT TO LINEALS — ADVANCEMENTS — COLLATERALS— WHOLE AND HALF BLOOD— BLOOD OF FIRST PURCHASER— RE- SUME OF INTESTA TE A CTS. There are but two methods, generally speaking, in which the title to real estate may be transferred, by which one man may lose and another acquire title. 1. By Descent ; and 2. By Purchase. Descent, or hereditary succession, is the title whereby a man, on the death of another, acquires his estate by right of representation, as his heir. Purchase, where the title to real estate is acquired in any other way, except by descent. 1 The definition of descent which I have given is Black- stone's, with the exception of a single word. I have left out " his ancestor," and substituted "another," for reasons which will appear from reading the Pennsylvania statute. The distinction between descent and purchase is still of importance, though not nearly so much so as formerly, as will appear presently. Upon this distinction depended the 1 Purchase is defined by Littleton, section 12, as "the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh, not by title of descent from any of his ancestors or cousins, but by his own deed." 270 THE LAW OP REAL ESTATE AND stirpes or propositus from whom* the descent was to be de- duced, and also whether the estate was liable in the hands of the heir or devisee, for the acts of his ancestors. The division made by Blackstone has been found fault with. Mr. Hargrave says, 1 " Instead of distributing all the several titles to land under purchase and descent, it would be more accurate to say, that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law ; and under the latter head to consider, first descent, and then escheat and such other titles, not being by descent, as yet like them accrue by mere act of law ; " and he refers to the chapter of Blackstone which we have now under consideration. 2 Descent only takes place where the title comes from one who lost it by his death, to another as his heir. If an estate be limited to A. for life, remainder to the heirs of B., and B. die during the continuance of the particular estate, his heirs take the estate as purchasers. They cannot take by descent, for B. never had any estate, and one who takes by descent, takes only the estate of his ancestor, and only be- cause he is heir, and for no other reason. On the other hand, if an owner of land devise by will his estate to one who would inherit it by descent, he shall take by descent. Ordinarily, a gift by will goes to the devisee as a purchaser, but the law will not allow a man to turn his heir into a pur- chaser by devising to him an estate which the law would have cast upon him as heir. If the devise make a material alteration in the nature of the estate, the case is otherwise, but the difference between what is devised and what would go by descent must be material. Where a man seised in fee, devised his lands to his executors for sixteen years, for the payment of his debts, with remainder to the person who was his own right heir, it was held that the heir took by 1 Co. Litt. 18 b, note 2. 2 See Chitty'a note to 2 Bl. Com. *201. CONVEYANCING IN PENNSYLVANIA. 271 descent, for the devise to tb,e executors was no more than if the devisor had made a lease for sixteen years, and then de- vised his reversion to his heir. 1 But I will not now dwell longer on the distinction between descent and purchase, but shall advert to it again in its proper place, to show the practical difference existing between estates derived in these several ways. Death is the immediate cause of descent. The title of the owner has been lost or abandoned by his death, " the most universal and effectual way of abandoning property, when, both the actual possession and intention of keeping posses- sion ceasing, the property which is founded upon such pos- session and intention ought also to cease, of course." It is a disputed question, whether, according to the law of nature, the children or near relations of a deceased person have any more right to succeed to his property than strangers have. " We are apt," says Blackstone, " to conceive, at first view, that the right of inheritance has nature on its side, yet we often mistake for nature what we find established by long and inveterate custom," 2 and the conclusion to which the great commentator came was, that although the right of in- heriting was qf the earliest origin, and was known to the laws of every civilized country, it was not a natural, but clearly a civil right. " From which it follows," adds Mr. Cruise, " that the numerous and arbitrary rules by which its course is either directed or interrupted, can never be properly esteemed or objected to as violations of natural justice." 3 1 This rule has been changed in England by the Descent Act, and the heir will, for the purposes of the subsequent descent, be consid- ered to take by purchase. See Challis Real Prop. (Blackstone Pub. Co. ed.) 169. 2 2 Bl. Com. *11, and see Christian's note on same page. 3 3 Cr. Dig. Tit. XXIX, ch. 2, sec. 2. In Norman v. Heist, 5 W. & 8. 173, C. J. Gibson says, title is the creature of civil regulation. Even a legitimate child has no natural right of succession to the property of its parent. The right of a pro- prietor, living or dying, to pass by those who are nearest in blood to 272 THE LAW OF REAL ESTATE AND It being settled that at the death of the possessor of prop- erty his title should devolve upon his children or those con- nected with him by ties of blood, the law steps further and declares who shall be heir, and in what manner and for what estate he shall take the title. Descent is a technical word, and applies only to such things as are hereditaments — only to real estate. Personal property does not descend. It goes to the executor or administrator, and is disposed of and distributed by him under the law. De- scent is the devolution of title upon the heir, and is confined to freehold estates of inheritance. Life estates cannot de- scend. If held pur autre vie, they may be devised under our statute ; if limited to the tenant and his heirs, the heirs take as special occupants, which is a quasi descent, but if not so limited expressly to the heirs, the estate, on the death of the tenant, goes to his executor or administrator, to be treated as a chattel interest under our act of 24 February, 1834. 1 It has been already explained what things are considered as things real, under the generic title of land included in the defini- tion of" Land, structures thereon, fixtures thereto, and rights is- suingout of, annexed to, or exercisable within land." These are things in which a man may have an interest which is real estate, and real estate descends to the heir, while personalty goes to the executor; and the law favours the inheritance, and, in doubtful cases, will lean in favour of the heir and against the executor. 1 Purd. Dig. "Decedent's Estates," p. 518, pi. 59. him, and to bestow his bounty on strangers, is one of the mcst sacred incidents of ownership, and it is very often exercised. Blackstone also assigns the same principle as a foundation of the law of forfeiture for crime. '• The natural justice of forfeiture, or confiscation of property for treason, is founded on this consideration, that he who hath thus violated the fundamental principles of government, and broken his part of the original contract between king and people, hath abandoned his connections with society, and hath no longer any right to those advan- tages which before belonged to him purely as a member of the com- munity, among which social advantages the right of transferring or transmitting property to others, is one of the chief." 4 Com. 382. CONVEYANCING IN PENNSYLVANIA. 273 Who may or may not be heir. Anyone may be an heir, an infant, an unborn child, an idiot, a feme covert, a lunatic, may inherit. There are but few exceptions. A monster, without human shape, cannot; but if it be ever so deformed, if it have the form of mankind, it may be heir. A bastard, or child born out of wedlock, is, at common law, the son of nobody, nullius Alius. If he has neither father nor mother, of course he can have no brother nor sister, and so has no person related to him by ties of blood, from whom he could inherit, or who could inherit from him except his own descendants. A bastard is defined to be one not born either in lawful wedlock, or within a competent time afterwards. No matter how soon after the marriage, even a day, the child is born, it is legitimate if the parents be married at the time of birth. As to what is considered a competent time after the death of the husband, the general lule is nine months, but more is sometimes allowed. In one case, cited by Mr. Hargrave from Lord Hale's manuscripts, the extraordinary time of more than eighteen months was allowed, " which," says Mr. Hargrave, " is a much later date for the delivery of a live child than the most liberal in their calculations have hitherto assigned." ' A child, even if born in lawful wedlock, may be illegiti- mate, if it can be shown that the husband had no access to his wife within a competent time before the birth, but the presumption is always in favour of innocence and legitimacy, and those who allege a person to be a bastard, must prove it. 2 The jury are bound to make every intendment in favour of the legitimacy of the child, which i3 not necessarily ex- cluded by the proof. 3 1 See notes 1 and 2 to Co. Litt. 123 b, where the cases prior to that time are collected and reviewed. 2 Physick's Appeal, 2 Brewster's Rep. 186. 3 Senser u. Bower, 1 P, & W. 452. 18 274 THE LAW OF KEAL ESTATE AND A bastard may become legitimate in two ways. 1. Prior to the Constitution of 1874, by Act of Assembly. This is in accordance with the common law. 1 Blackstone says : '' A bastard may be made legitimate, and capable of inheriting, by the transcendent power of an Act of Parlia- ment, and not otherwise." 2 If such an act be passed after the death of the parent, it gives only the right of inherit- ance, and does not take away liability to pay the collateral inheritance tax due to the State upon the property of the parent which descends to such legitimated child ; but if the act were passed before the death of the parent, the case would be different, and the right of the State to thetaxwouldnevervest.* In all respects, except where rights or estates are actually vested, an act of assembly could have put the illegitimate child in the same position as if born in wedlock, and one legitimated in this manner, prior to 1874, is legitimate not only as to his parents, but, also, as to his actual brothers and sisters.* The extent of the legitimacy depends on the pro- visions of the act, but this effect of a statute in legitimating bastards is confined, in Pennsylvania, to the acts of our own Legislature. The act of assembly of another state forgives the stain of birth out of wedlock in the limits of that State, but cannot extend beyond them ; and where a child born out of wedlock was legitimated by the decree of the court in Tennessee, upon the petition of her father, under a statute of that state, such child did not acquire inheritable capacity as to land in Pennsylvania. 5 The Constitution of 1874, ' Killam v. Killam, 3 Wr.)123. -' 1 Bl. Com. 459. '■' Commonwealth v. Stump,:3'P. 'F. Smith, 137. ♦Killam u. Killam, 8 Wr. '125; Miller's Appeal, 2 P. F. Sm. 113; McGnnigle v. MoKee, 27 P.,F. «m. 81. While the Legislature has power to legitimate bastards, it cannot alter the fact of illegitimate birth, so as to entitle such child to take by purchase under a limitationin a prior deed of trust to "lawfully begotten children." Edward's.-4ppeal,.12 Out. 2sP. 5 Smith v. Derr, 10 Cas. 126. CONVEYANCING IN PENNSYLVANIA. 275 Article III, section 7, forbids the passing of any special law authorizing the legitimation ot children. 2. In, Pennsylvania a' bastard becomes legitimate by the subsequent marriage and cohabitation of the parents. This is by special statute of 14 May, 1857 / and this act was de- clared to apply to all cases within its terms, whether before or after its date — Act of 21 April, 1858. 2 At common, law, the subsequent marriage of the parents had no effect upon the status of their prior children. They remained bastards and had no possible relief unless from an Act of Parliament. There was, indeed, the case of Bastard eigne, or elder, and mulier puisne or lawful younger son, mentioned by Blackstone in his chapter on Escheats. 3 Where the illegitimate first born, having a lawful younger brother, born in the subsequent wedlock of his parents, en- tered upon the father's lands after his death as his heir, and died in possession, it could not be disputed, after his decease, that he was in as lawful heir, because the law will not suffer him to be bastardized after his death who passed for legiti- mate in his lifetime. But this was the only instance in which was relaxed the rigor of the common law rule, that a bastard remained such although his parents subsequently married. The civil law, however, did not allow a child to remain a bastard if the parents afterward married ; and the Legis- lature of Pennsylvania has preferred in this instance to fol- low that guide, and the common law rule has been abolished by the act just referred to, " In any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated, and enjoy all the rights and privileges as if they had been born during the wedlock of their parents." Act of 14 May, 1857. 4 1 Purd. Dig. Tit. " Marriage," p. 1149, pi. 9. ' Purd. Dig. Tit. "Marriage," p. 1149, pi. 10. 3 2 Bl. Com. 248. ' Purd. Dig. Tit. " Marriage," p. 1149, pi. 9. 276 THE LAW OF REAL ESTATE AND " The act entitled ' An act to legitimate children born out of lawful wedlock,' passed 14 May, 1857, shall be taken to apply to all cases within the terms of that act prior to its date, as well as those subsequent thereto." Act of 21 April, 1858 ' With respect to the meaning of the word " cohabit " in the act, the Supreme Court has said that the act must be liberally construed in favor of legitimacy. The word " co- habit," means to dwell together as husband and wife, but it need not be a continuous dwelling together. The important circumstance is the recognition of the illegitimate by the father as his child. 2 The Pennsylvania Statute of 1833 regulating descents, left illegitimate children to their rights, or rather to their lack of rights at common law, by expressly declaring that the pro- visions of that act should apply to such persons only as may have been born in lawful wedlock, 3 but by a subsequent act of assembly, passed 27 April, 1855, section 3, illegitimate children were made the children of their mother, and the reciprocal right of inheritance was made to exist between their mother and themselves. The section is as follows : " Illegitimate children shall take and be known by the name of their mother, and they and their mother shall respectively have capacity to take and inherit from each other personal estate as next of kin, and real estate as heirs in fee-simple; and as respects said real or personal estate so taken and inherited to transmit the same according to the intestate laws of this State." * This act was, in point of time, the first departure made in our law from the doctrines of the common law, as a general rule, although a great number of special acts had been previously passed from time to time legitimating particular individuals. 1 Purd. Dig. Tit. "Marriage," p. 1149, p. 10. 2 Clauer's Appeal, 11 W. N. C. 427. s Purd. Dig. " Intestates," p. 934, pi. 36. 4 Purd. Dig. " Intestates," p. 934, pi. 40. CONVEYANCING IN PENNSYLVANIA. 277 The Act.of 1855 has been objected to seriously as breaking away from these old common law rules, but it seems to have met with approbation from the courts, and similar provisions exist in many other States. 1 Blackstone 2 gives four reasons for considering the common law superior to the civil law in respect to the rule that bastards do not become legitimated by the subsequent mar- riage of the parents. 1. The uncertainty as to who was the father. This could not apply to the mother ; the certainty of her relationship would not be increased by wedlock. 2. The opportunity afforded to the parents for frauds and partiality, by allowing them at pleasure to legitimate their prior offspring by a subsequent marriage. 3. lhat the marriage might be delayed until the child was grown, and thereby the chief end of marriage, i. e., the protection of infants, frustrated. Neither of these two reasons affected the propriety of giving to the illegitimate the rights of a lawful child as respects his mother, but both of them would rather strengthen such a regulation. 4. Because it would be a discouragement of matrimony to allow the parents to legitimate at any time their children born out of wedlock. This last is undoubtedly a strong and substantial foundation upon which to rest the reason of the rule, and the Act of 1855 has been seriously ' objected to as tending to encourage immorality; but, on the other hand, the result of the common law doctrine was to bring down upon the innocent offspring the punishment due to a fault in which they did not share. The purpose of the Act of 1855 was to remedy this injustice, and although strictly construed % it is very explicit in its terms. In Opdyke's Appeal, 3 the question was raised whether under this act an illegitimate child was entitled to a share with the lawful children in the property of their deceased 1 2- Kent Com. *212, 213. 2 1 Bl. Com. *455. 3 13 Wr. 373. 278 THE LAW OP REAL ESTATE AND mother. Judge Agnew, delivering the opinion of the court, said:" Before the Act of 1855, the difference between legiti- mate and illegitimate children, as to descendible property, was simply the capacity to inherit. The former were able and the latter unable to inherit. That act declared that illegitimate children should take and be known by the name of their mother, and they and their mother shall respectively have capacity to take or inherit from each other personal estate as next of kin, and real estate as heirs^ in fee-simple. Before, he was Mlius nullius ; now he is next of kin and heir. Before, he had no capacity or ability ; now, he has capacity to take or inherit. He is the son of his mother, and she is his mother, so that now each may take or inherit from each other. The Legislature has chosen to convey its mean- ing in these expressions, which strike at the root of his dis- ability by declaring his capacity. It has said, that as be- tween him and his mother he shall inherit her property, as her heir. But how do heirs inherit ? Certainly in the man- ner the law provides : if one heir, solely ; if more than one, together. How then can we say, when other heirs are also left, he shall not inherit, he shall not be an heir? It is said, another is born in lawful wedlock, and, therefore, he shall not inherit. But, in respect to inheritance from the same mother, one is as lawful as the other ; as to her property, neither is now illegitimate. Birth in lawful wedlock is no longer the criterion, but blood relationship — the bastard and the lawful child have now a like capacity. It would be clearly legislation on our part, to say that when lawful children are born as well as bastards, the latter shall not have capacity to take from the common mother, when the law has said they shall." It has been said that the statute was strictly construed. Its terms confine the capacity to inherit, which it confers on illegitimates, to estates transmitted between the mother and the child — " thev and their mother." As between the two CONVEYANCING IN PENNSYLVANIA. 279 persons, the act creates relationship and heritable blood, which did not exist before, but the relationship goes no fur- ther ; it does not make the other children of the mother the brothers or sisters of the illegitimate, nor even does it create any tie between his children and his mother — his children are not the grandchildren of his mother. So, where an illegitimate son died before his mother, it was held that his children could not inherit from her, although he could him- self have clearly done so if he had survived her. Susanna Steckel had two sons : one, George Getter, an illegitimate ; the other, William Steckel, born in wedlock. George, the bastard, died in his mother's lifetime, leaving a widow and three children. Afterwards the mother died. It was deter- mined that the wife and children of the illegitimate son had no share in her estate. 1 And to the same effect was Grubb's Appeal. 2 Phoebe Jones died, leaving only one child, Edith Jones, who was illegitimate, but she left several brothers and sisters. Edith died, intestate, unmarried and without issue. There was no relationship recognized by law between her and her mother's collateral kindred, and her estate escheated to the Common- wealth for want of heirs. These cases have been affirmed in Woltemate's Appeal. 3 1 Steckel's Appeal, 14 P. F. Sm. 493. 2 8 P. F. Sm. 55. 3 5 Nor. 219. To remedy this state of the law the'Act of 5 June, 1883 (Purd. Dig. "Intestates," p. 934, pi. 41), was passed. Section one provides that, " Illegitimate children, born of the same mother, and leaving neither mother nor issue capable of inheriting surviving, shall have capacity to take and inherit from each other, personal property as next of kin, and real estate as heirs in fee-simple, in the same manner as children born in lawful wedlock." But an illegitimate child cannot inherit the estate of a legitimate child, except where the parents subsequently marry. So, where the decedent was born in lawful wedlock, and the claimant to his estate was born of the same mother before her mar- riage, but by a different father, it was held that the Act of 1S57 was inapplicable. Glasz's Est., 17 W. N. C. 352. 280 THE LAW OF REAL ESTATE AND It has been held, also, that the mother of an illegitimate child is not a parent within the meaning of the Act of 26 April, 1855, 'allowing parents to recover damages for any in- jury causing the death of a child. 1 Aliens, at common law, could not inherit, but by our Act of Assembly of 23 February, 1791, 2 they are made capable of taking lands by devise or descent, and all titles derived through them, so far as they were subject to escheat, have been confirmed by the Act of 9 January, 1861, 3 and by the Acts of 23 March, 1865, 4 of 26 April, 1869, 5 and of 6 June, 1887. 6 Attainder, in Pennsylvania, does not work corruption of blood nor forfeiture, except during the life of the person attainted. This is provided by the Constitution of the United States, Article III, section 3, par. 2, and by the Con- stitution of Pennsylvania, Article I, sections 18 and 19. At common law attainder absolutely destroyed all herit- able capacity, so that persons attainted of treason or felony were incapable of inheriting lands, or of transmitting them, by descent, to their posterity. The milder and more reason- able law of our day refuses to involve the innocent with the guilty in the punishment of crime, and the law of attainder and forfeitures that was formerly so common, has now be- come matter of history. As we shall soon see, descent depends upon consanguinity, or blood relationship. There are, however, persons who may be heirs, who do not possess that qualification. Adopted 1 (C. P. No. 4) Harkins v. Reading R. R. Co., 11 W. N. C. 120. 2 3 Sm. Laws, 4. 3 Purd Dig. Tit. " Aliens," p. 86, pi. 16. ♦P. L. 631. 5 P. L. 96. « P. L. 350. A clear and succinct history of the early legislation in this State on the subject may be found in the case ot Rubeck v. Gardner, 7 Watts, 455. See Act of 2 June, 1887, P. L. 300, limiting the rights of aliens to acquire and hold real estate. CONVEYANCING IN PENNSYLVANIA. 281 children may inherit under our Act of Assembly of May 4, 1855, section 7. 1 The act prescribes the form of the proceed- ing : by petition to the court from the person wishing to adopt, accompanied by the consent of the parents, guardian or person having the care of the child; and enacts that the court may decree " that such child shall assume the name of the adopting parent, and have all the rights of a child and heir of such adopting parent, and be subject to the duties of such child, of which the record of the court shall be sufficient evidence." With a proviso : " That if such adopting parent shall have other children, the adopted shall share the inher- itance only as one of them in case of intestacy, and he, she or ihey, shall respectively inherit from and through each other, as if all had been the lawful children of the same parent." This act was amended by the Act of 19 May, 1887, 2 which provides for the adoption of children whose father or mother from drunkenness, profligacy or other cause, have neglected or refused to provide for them for a year or up- wards. 3 This statute, in its terms, puts an adopted child on the footing of an actual child, so far as the right of inheritance goes, but it seems that it is strictly construed, and the re- lationship is to be carried no further than is expressly de- clared in the statute. So it was held in Commonwealth v. Nancrede, 4 that an adopted child must pay the collateral inheritance tax on the estate inherited from the adopting parent, as a stranger to his blood ; 6 and where an estate was devised to a married woman for life, with remainder to her 1 Purd. Dig. Tit. " Adoption," p. 78, pi. 1. 2 P. L. 125. 6 A citizen of another State, temporarily resident in Pennsylvania, may adopt a minor under this act. Wolf's Appeal, 22 W. N. C. 93. A person over twenty-one years of age cannot be adopted by an- other. Be petition of " A. H. G.," 1 W. N. C. 576. 4 8 Cas. 389. 5 See a review of this subject in Wayne's Est., 18 W. N. C. 10. 282 THE LAW OF REAL ESTATE AND children in fee, it was held that an adopted child could not take the remainder, because it was limited to her children as purchasers, and the adopted child could only take by de- scent. 1 Where one by will devised property to S. for life, and after his death to such person as would be entitled under the in- testate laws as if he died seised in fee, held, that an adopted child of S. took the remainder. 2 The relationship created by adoption does not make the adopting parent a father or mother within the meaning of the intestate law. The property of a child who has been adopted, goes on his death to his natural parents. 3 This rule was changed by the Act of 13 April, 1887, 4 which provides that the adopting parents shall inherit from the adopted child, to the exclusion of the adopted child's natural parents . and kindred. The act is limited in its application to such property as the adopted child shall have inherited or derived from the adopting parents or their kindred. The Act of April 2, 1872, provides that in all cases, here- tofore as well as hereafter, where the common law form of adopting a child by deed has been practiced or done, etc , the deed duly recorded is to have the same effect as the record of a proceeding under the Act of 1855. The common law did not recognize adoption — no such act was possible. Adoption was purely a creature of the civil law. This act, so far as it is retrospective, is unconstitu- tional. 5 Adoption does not create relationship, and, there- fore, an adopted child is not entitled to letters of adminis- tration. When adoption has been made under decree of the 1 Schafer v. Eneu, 4 P. F. Sm. 304. 2 Ann Johnson's Appeal, 7 Nor. 346. 3 Commonwealth v. Powell, 16 W. N. 0. 297. * P. L. 53. 5 Ballard e. Ward, 8 Nor. 358 ; McCully's Est., 8 W. N. C. 14 ; Mc- Cully's Appeal, 10 W. N. C. 80. CONVEYANCING IN PENNSYLVANIA. 283 court, it cannot be rescinded, certainly not without the con- sent of the adopted child. 1 Of course, to bring a child within the benefits of the act, it is indispensable that the proceedings directed in the act should be followed carefully. Unborn children, as has been said in a former chapter (Remainders), are capable of taking by descent as if already born, and are by special enactment included in the Act of Assembly regulating descents. 2 Having briefly considered who may or may not be heir, we come to the important question, Who shall be heir ? The law casts the estate upon some one, and he that is heir cannot refuse to inherit; the title vests in him by opera- tion of law — for descent is inevitable. The general rules as to the descent of real estate in Pennsylvania are to be found in the Acts of Assembly, the chief one being the Act of 8 April, 1833, " relating to the descent and distribution of the estates of intestates." the provisions of which have been altered in a few points by. subsequent legislation, as regards illegitimate and adopted children, as we have already seen, and also as regards husbands and wives and other matters, as I will point out shortly. But there are some estates which are not within the opera- tion of the Intestate Laws. The first section of the Act of 1833, contains a general statement of the estates on which the statute was intended to take effect : " The real and per- sonal estate of a decedent, whether male or female, remain- ing after payment of all just debts and legal charges, which shall not have been sold, or disposed of by will, or otherwise limited by marriage settlement, shall be divided and enjoyed as follows . " The Act of 1833 was mainly a digest of former stat- 1 Be Theil, 14 W. N. C. 422. 2 Act of 1833, section 13. Purd Dig. " Intestates," p. 933, pi. 32. 284 THE LAW OF REAL ESTATE AND utes on the same subject, and it had been held from the first that estates tail were not included in these acts. It never was supposed that any statutory provision was made for the de- scent of estates tail, they continued to descend as at common law, without question, until the Act of 1833. In Price v. Taylor, 1 the Supreme Court decided for the first time that they were within the Act of 1833, and were to descend to all the children, as provided by that statute, and not to the oldest son, as at common law. But it was not long before Price v. Taylor was overruled, and the Act of 1833 was con- strued in accordance with what had been law since the Act of 1705. The descent of estates tail, according to the course of the common law, had, up to 1833, been an established rule of property in this State, and such rules are not to be regarded as destroyed by statute, unless by express direction or necessary implication. 2 Trust estates, or estates vested in trustees, are also not within the act. It is clearly inapplicable to them ; the Leg- islature could never have contemplated such a result. To give the wife of a trustee dower, or to split up his legal estate among his children and issue, and vest it in many in- stances in minors incapable of discharging the duties apper- taining to the trust, would be absurd, and this has always been the view of the law in Pennsylvania. 8 These two ex- ceptional cases have ceased to be of much importance, since estates tail can no longer be created, but vest in their tenant in fee-simple ; and upon the death of a trustee, the law vests his title and authority in his successor «in the office, when duly appointed. " With the single exception of adopted children, descent depends upon consanguinity, or blood relationship, which is 1 4 Cas. 95. 2 Guthrie's Appeal, 1 Wr. 9, where the authorities are fully reviewed by Judge Strong. 3 Jenks v. Backhouse, 1 Binn. 91. CONVEYANCING IN PENNSYLVANIA. 285 defined to be, " the connection or relation of persons de- scended from the same stock or common ancestor." 1 Consanguinity is either lineal or collateral. Lineal consanguinity, is that which subsists between per- sons, one of whom is descended in a direct line from the other, as between a man and his grandson, or his grand- father, and in ascertaining the nearness of consanguinity, each generation counts one degree. A man is related in the same degree to his father as to his son, each being one degree removed. The grandfather and the grandson stand in the second degree, and so on. Collateral consanguinity subsists between persons who descend from the same stock, or ancestor, but do not descend one from the other. The common ancestor, from whom both are descended, is called the stirps, or root. In ascertaining the degrees of relationship between col- lateral kindred, the civil law differed from the common law, which followed the canon law. By the civil law, the degree was obtained by counting from the propositus up to the common ancestor, and then down again to the other person. Thus, what we call a first cousin, is, according to the civil law, in the fourth degree ; an uncle or aunt is in the third degree, the common ancestor in each case being the grandfather. With respect to lineal consanguinity, there was no difference between the two sys- tems in the method of counting the degrees, but with respect to collateral kindred, the common or canon law method was totally different from that of the civil law. The rule here was to begin at the common ancestor, or stirps, and reckon down- wards towards the most distant of the two persons,and the num- ber of degrees which existed between them expressed the rela- 1 Relationship depending upon marriage is called affinity. A man's blood relations are called his kin, his kindred, but his relations by mar- riage are properly spoken of as his " connections." 1 286 THE LAW OP REAL ESTATE AND tionship which the two persons proposed bore to each other. Thus, according to this, a man's brother was as near to him as his father or his son, and his first cousin stood in the third degree, the same as his grandson or his grandfather. This is not the rule in Pennsylvania, but in computing consan- guinity, or nearness of kindred, it is done according to the rules of the civil law. 1 Blackstone has laid down the seven rules or canons of descent upon which the law of England depends, and ac- cording to which, in Pennsylvania, the titles to estates tail and trust estates devolve on the death of the tenant, estates tail, of course, being governed by them only s.o far as may be applicable to the classes of heirs to whom the in- heritance is limited. 1. Inheritance shall lineally descend to the issue of the persons last actually seised, in infinitum, but shall never lineally ascend. 2. The male issue -shall be admitted before the female. 3. Where there are two or more males of equal degree, the eldest only shall inherit, but females all together. 4. The lineal descendants, in infinitum, of any person de- ceased, shall represent their ancestor, that is, shall stand in the same place as the person himself would have done if he had been living. 5. On failure of lineal descendants or issue of the person last seised, the inheritance shall descend to the blood of the first purchaser, subject to the three preceding rules. 6. The collateral heir of the person last seised must be his next collateral kinsman of the whole blood. 7. In collateral inheritances, the male stock shall be pre- ferred to the female ; that is, kindred derived from the blood of the male ancestor shall be admitted before those from the blood of the female, unless where the lands have, in fact, de- scended from a female. 1 McDowell v. Addams, 9 Wr. 430. CONVEYANCING IN PENKSYLV.ANIA. 287 The application of these rules in Pennsylvania is confined to estates tail and trust estates. The two chief points in which the system of common law descents differs in principle from that established by statute in Pensylvania, are in respect to sex and age ; the common law preferring the males to the females, in equal degree, and among males, preferring the eldest to the younger, while by our statutory descents .age and sex are entirely disregarded, and have no weight whatever in deter- mining the question, who shall be heir. There are other points of difference, which will be noted as they occur in considering the statute: The principal statute is the one which has been frequently mentioned, passed the 8 April, 1833, and is entitled " An act relating to the descent and distribution of the estates of intestates." ' It has been altered by the Married Women's Act, of 11 April, 1848, 2 and by the Act of 27 April, 1855, 3 but the amendments have not been such as to make any alteration'in the general prin- ciples upon which it was originally founded. As was ex- plained before, it is a comprehensive and terse arrangement of all the former statutes on the subject of which it treats, and, therefore, many judicial interpretations of former enact- ments can be usefully applied in reading and construing it. 4 The act begins with a statement of the objects on which it is to take effect. " Section 1. The real and personal estate of a decedent, whether male or female, remaining after payment of all just debts and legal charges, which shall not have been sold, or 1 Purd. Dig. " Intestates, ' : p. 929 seq. * Purd. Dig. p. 930, pi. 5. " Purd. Dig. p. 934, pi. 40. 4 For a learned history of the previous intestate laws of tills State (prior to 1794), see note to Act of 1794, 3 Sm. Laws, 153-176. The two principal statutes regulating descents which were in force when the Intestate Act of 1833 was passed, were the Act of 19 April, 1794, just mentioned, and the Act of 4 April, 1797, 3 Sm. Laws, 296. 288 THE LAW OF REAL ESTATE AND disposed of by will, or otherwise limited by marriage settle- ment, shall be divided and enjoyed, as follows, viz : " The most noticeable feature of this section is that only the remnant is disposed of by the act, after debts and charges are paid. The first person entitled to be paid out of the es- tate of a decedent are his creditors. If his whole estate is consumed in satisfying just debts and legal charges, there is nothing left for the intestate laws to operate on. The prim- ary fund for payment of debts is the personal estate. That must be exhausted before the real estate can be touched. But the debts are liens upon the real estate, and bind them in the hands of the heirs and of all persons who purchase from them. If the personal estate prove insufficient for the payment of the debts, it is the duty of the administrator to apply at once to the orphans' court for an order of sale of the real estate for that purpose and to proceed under the di- rection of the court to sell so much of it as shall be necessary to supply the deficiency. From the earliest times in Penn- sylvania, the real estate of a deceased person has been liable for his debts, not only in the hands of his heirs, but also in the hands of purchasers from them, 1 and this lien was with- out limit as long as the debt existed in law, until it was limited to seven years by the Act of 19 April, 1794, 2 which provision was re-enacted by the Act of April 4, 1797. 3 The time was still further shortened to five years by the Act of 24 February, 1834, section 23.* This statute is the one which now governs the subject: "No debts of a decedent, except they be secured by mortgage or judgment, shall remain a lien on the veal estate of such decedent longer than five years after the decease of such debtor, unless an action for the re- covery thereof be commenced and duly prosecuted against his 1 Morris v. Smith, 1 Yea. 238 ; Hannum v. Spear, 1 Yea. 553. - 3 Sm. Laws, p. 143-153. 3 3 Sm. Laws, 296. 4 Purd. Dig. " Decedent's Estate," p. 525, pi. 97. CONVEYANCING IN PENNSYLVANIA, 289 heirs, executors or administrators, within the period of five years after his decease ; or a copy or particular written state- ment of any bond, convenant, debt or demand, where the same is not payable within the said period of five years shall be filed within the said period of five years in the office of the prothonotary of the county, where the real estate to be charged is situate ; and then to be a lien only for the period of five years after said bond, covenant, debt or demand be- comes due." All debts, without exception, are Hens for five years. 1 After that time has expired, the lien is gone, except as to four kinds, and the debt cannot be collected from the lands whether they be in the hands of the heirs or devisees, or of purchasers from them. 2 The four kinds, whose liens do not expire, are : I. Debts secured by mortgage. 3 II. Debts secured by judgment. 4 III. Debts for which suit has been brought within five years. ' Where the title of a devisee in the land devised was sold on an ex- ecution for his individual debt, a subsequent sale of the land made un- der process from the orphans' court to enforce payment of a debt of the testator adjudicated within five years from his death, will divest the title of the purchaser of the devisee's title at the previous sheriff 's sale. Smith v. Seaton, 2 Crum. 382. See also Horner v. Hasbrouck, 5 Wr. 169. Liens obtained at the decedent's domicil have no extraterritorial effect. Del Valle's Est., 17 W. N. C. 30. The executors may plead the statute of limitations to a personal ac- tion brought against them within five years for a debt of the decedent. Miskey v. Miskey, 20 W. N. C. p. 470 ; Yorks's Appeal, 14 Out. 69 ; Chapman's Appeal, 7 Crum. 331. A mere claim is not a lien ; it must first be established or admitted as a debt. Chapman's Appeal, 7 Crum. 331. See an essay on the Lien of Decedent's Debts by Ellis Ames Bal- lard, Esq. 2 Kerper v. Hock, 1 W. 9; Deinmy's Appeal, 7 Wr. 155; Hunt's Appeal, 14 W. N. C. 377. 3 Try on v. Munson, 27 P. F. Sm. 250; M'Laughlin v. Ihmsen, 4 Nor. 364. * Shearer v. Brinley, 26 P. F. Sm. 300 ; Middleton v. Middleton, Leg. Int. 1884, 409. 19 290 THE LAW OF REAL ESTATE AND These refer, of course, to debts due and demandable. for which suits may be brought. 1 IV. Debts not presently due, but to become due, of which a copy or written statement has been filed. I shall have occasion hereafter to speak of the lien of these debts, and of the title conveyed by a sale for their payment. The intestate act also applies to all cases where a decedent has made a will, which does not dispose of his whole estate ; the part not disposed of by will passes as directed in the act. The remaining portion of the first section, divided into three articles, treats of the provision made for widows and surviving husbands, which were as fully considered as space would admit of under the heads of curtesy and dower. I will therefore only set them down : — "Article 1. Where such intestate shall leave a widow and issue, the widow shall be entitled to one-third part of the real estate for the term of her life, and to one-third part of the personal estate absolutely." '■'■Article 2. Where such intestate shall leave a widow and collateral heirs, or other kindred, but no issue, the widow shall be entitled to one-half part of the real estate, including the mansion house and buildings appurtenant thereto, for the term of her life, and to one-half part of the personal estate absolutely." "Article 3. Where such intestate shall leave a husband, he shall take the whole personal estate, and the real estate shall descend and pass as is hereinafter provided, saving to the husband his right as tenant by the curtesy, which shall take place, although there be no issue of the marriage, in all cases where the issue, if any, would have inherited." The third article which relates to the estate of the surviv- ing husband in hisdeceased wife's property, has been altered by the married woman's Act of 1 1 April, 1848, so far as the per- 1 Bredin v. Agnew, 8 Barr, 233 ; Craig's Appeal, 5 W. N. C. 243. CONVEYANCING IN PENNSYLVANIA. 291 sonal property is concerned. The husband's interest in the real estate remains the same. The tenth section is in these words : " The real estate of such married woman, upon her decease, shall be distributed as provided for by the intestate laws of this Commonwealth, now in force : Provided, That nothing contained in this act shall be deemed or taken to deprive the husband of his right as tenant by the curtesy." The legislation leaves the husband's tenancy by the curtesy untouched ; curtesy initiate was destroyed, as has been ex- plained, by the married woman's act and its supplements, certainly so far as the husband's creditors are concerned, but his curtesy consummate was in no wise affected. The wife's dower at common law, still remains as to all lands which the husband aliened in his lifetime, without her separate acknowledgment of the deed. As to the lands of which he died seised, she has by the act, in lieu of dower, a life estate in one third, if he leaves issue. If he leaves no issue she takes one-half of the real estate for her life, includ- ing the mansion house and appurtenances. The provision for the wife is to be enforced by partition in the orphans' court, and it is said that the provision in the act, giving her the mansion house, applies only to cases where an actual partition of the decedent's real estate was made ; if partition could not be made without a sale of the mansion house, she has no right under the act to prevent such a sale. 1 Descent to Lineals. Subject to the provisions for the widow and surviving hus- band, the real estate descends to the lineal issue, the descend- ants. This is in accordance with the common law rule, " In- heritances shall lineally descend to the issue of the person last actually seised, in infinitum,' 1 '' the remaining portion of the rule, " but shall never lineally ascend," has been abrogated by subsequent provisions of the statute. The rule also re- 1 McCall's Appeal, 6 P. F. Sm. 363. 292 THE LAW OP REAL ESTATE AND quires seisin in the person from whom the descent is to be traced, consequently one who had a right of entry only, but not actual seisin, could not transmit the estate to his own heir, although his title in other respects may have been per- fect. This distinction is not recognized by the statute, which operates upon all the estate of the decedent without regard to whether the same be in possession or not. The second section of the act prescribes the mode of dcscen t among the issue of the decedent, as follows : "Article 1. If such intestate shall leave children, but no other descendant, being the issue of a deceased child, the estate shall descend to and be distributed among such children. " Article 2. If such intestate shall leave grandchildren, but no child or other descendant being the issue of a deceased child, the estate shall descend to and be distributed among such grandchildren. "Article S. If such intestate shall leave descendants in any other degree of consanguinity, however remote from him, and all in the same degree of consanguinity to him, the estate shall descend to and be distributed among such descendants. " Article -b. If such intestate shall leave descendants in dif- ferent degrees of consanguinity to him, the more remote of them being the issue of a deceased child, grandchild or other descendant, the estate shall descend to and be distributed among them as follows, viz : U A. Each of the children of such intestate shall receive such share as such child would have received, if all the children of the intestate who shall then be dead, leaving issue, had been living at the death of the testator. "JB. Each of the grandchildren, if there shall be no chil- dren, in like manner shall receive such share as he or she would have received, if all the other grandchildren who shall then be dead, leaving issue, had been living at the death of the intestate, and so in like manner to the remotest degree. CONVEYANCING IN PENNSYLVANIA. 293 "(7. In every such case the issue of such deceased child, grandchild, or other descendant, shall take by representation of their parents respectively, such share only as would have descended to such parent if they had been living at the death of the intestate." The effect of this is to vest the estate of the decedent (subject to the provision for a widow or surviving husband, if any) in his issue. Where there are descendants all stand- ing in the same degree of consanguinity — as all children, or all grandchildren, or all great-grandchildren, they take in equal shares per capita, and without regard to the fact that they may be of different parents. This is the effect of a subsequent section (the fourteenth) of the same act, in these words : " Whenever, by the provisions of this act, it is directed that real or personal estate shall descend to, or be distributed among several persons, whether lineal or collateral heirs or kindred standing in the same degree of consanguinity to the intestate, if there shall be only one of such degree, he shall take the whole of such estate, and if there be more than one, they shall take in equal shares, and if real- estate, shall hold the same as tenants in common." The provision for representation among lineals is, there- fore, confined to cases where the issue among whom the estate is to be divided, are of different degrees of .consan- guinity to the decedent, as where there are both children and grandchildren, or grandchildren and great-grandchildren. In such cases the fourth common -law canon of descent is practically adopted by the statute, and we may turn to it for an explanation of what is meant by the issue representing their ancestor, " that is, they shall stand in the same place as the person himself would have done had he been living." Our statute uses different words, which express the same sense — "the issue * * shall take by representation of their parents respectively such share only as would have de- 294 THE LAW OP REAL ESTATE AND scended to such parents if they had been living at the death of the intestate." The representation under the statute only comes up to the degree of consanguinity in which the nearest descendant stands. If a grandchild is the nearest, and the others who are entitled are of more remote degree, those others repre- sent and stand in the place of the grandchild from whom they descended. I have said the act was a condensation of former statutes. The section prescribing the descent among lineals was taken from the third and fourth sections of the Act of 19 April, 1794, 1 and for the sake of brevity and to save the necessity of repeating the same or similar expressions throughout the act, the fourteenth section was adopted, containing a general rule as to the proportions and manner in which the estate descended, should be taken and held by several persons standing in the same degree of consanguinity to the intes- tate. 2 A perusal of these two sections of the Act of 1794, may make this matter of representation clearer to you than it appears as condensed in the Act of 1833. Mr. Brightly's note in Purdon that grandchildren take by representation, attached to the second article of section 2, is liable to mis- lead from its position. If it had been put under the section on advancement, it would not be open to the same objection, for grandchildren are always held to take by representation when advancements have been made by the intestate to their parents; but when the question is, what share do grandchildren take? they do not always take by representa- tion, for where the heirs of an intestate under the statute are all grandchildren, they stand in an equal degree of con- sanguinity to the intestate and take under the fourteenth seel ion, in equal shares, as tenants in common. 3 1 3 Sm. Laws, 145. 2 See Report of Commissioners. :i Miller's Appeal, 4 Wr. 3tf7. CONVEYANCING IN PENNSYLVANIA. 295 The division of an intestate's estate equally among hie children, without respect to age or sex, was a wide departure from the common law. When the province of Pennsylvania was first established, the common-law rule of descent pre- vailed for a short time, but in 1684 the provincial legislature passed an act which made a distribution among all the chil- dren, giving to the eldest son a double share, and the others share and share alike. The eldest son continued to take a double share under the various laws passed subsequently from time to time, until 1794, when equal distribution among children was established, substantially as it exists at present. 1 The law endeavors to make the children of an intestate stand upon an equality in sharing his estate. It was an old rule of the common law, that where a daughter had received lands from her father upon her marriage, and afterwards his other lands descended to her and her sisters in fee, as par- ceners, she could have no share in the descended lands unless she and her husband agreed to put their land which they had received at the marriage, into hotch pot with the lands which had descended, that they might be all divided equally. Littleton says : " And it seemeth that this word hotch-pot, is in English, a pudding, for in such pudding is not commonly put one thing alone, but one thing with other things to- gether, and therefore, it behooveth in this case, to put the lands given in frank-marriage with the other lands in hotch- pot, if the husband and wife will have any part in the other lands." 2 The same kind of provision for producing equality among the children of an intestate, extended to personal as well as real estate, has long existed in Pennsylvania. The present law is copied from the ninth section of the Act of 1794 into the sixteenth section of the Act of 1833. " If any 1 The double portion of the eldest son was probably derived by the Quaker settlers from the Bible. Deut. xxi, 17. 2 Sec. 267, Co. Litt. 176 a. 296 THE LAW OF REAL ESTATE AND child of an intestate shall have any estate by settlement of such intestate, or shall have been advanced by him in his lifetime either in real or personal estate to an amount or value equal to the share which shall be allotted to each of the other children of such intestate, such child shall have no share of the real or personal estate of such intestate, and if such settlement or advancement be to an amount or value less than the share to which he would otherwise be en- titled if no such advancement had been made, then so much only of the real and personal estate of such intestate shall be allotted to such child, as shall make the estate of all the said children to be equal as near as can be estimated." This question of advancement has been a fruitful source of litigation, and it would be far beyond the scope of the present volume to go into the many refinements which have naturally grown out of the large number of cases decided, even in Pennsylvania. I can only indicate a few leading points. An advancement is defined to be " an irrevocable gift by a parent in his lifetime to his child, on account of such child's share of his estate after the parent's decesase." ' Every gift is not an advancement. A father may give his child what he pleases without depriving the child of a full share of his estate after his death. To make a gift an advancement it must be intended to be such at the time it was made, and whether it was so intended or not is a question of fact, to be determined by the acts and declarations of the parties and the circum- stances of the case. 2 The compilers, who prepared the Act of 1833, reported that the sixteenth section (of advancements) was in substance the same as the ninth section of the prior Act of 1794, before referred to and that section was taken from the British Stat, of 22 and 23 C. II.. c. 10 , sec. 5. This ' Ilengst's Est., 6 W. 87 ; Yundt's Appeal, 1 Har. 57.5. 2 Miller's Appeal, 4 Wr. 57 ; Oiler v. Bonebrake, 15 P. F. Sm. 338. CONVEYANCING IN PENNSYLVANIA. 207 will account for the construction that grandchildren, whose deceased parents received advancements, are bound to bring them into the common stock before distribution, for though the Act of 1833, seems to confine the liability for advance- ments to children, the Act of 1794, extends it to children or other descendants. And the decisions under the old act have been applied to the construction of the new. So it was held under the old act that grandchildren, whose parent was dead, were bound on the distribution of their grandfather's estate to make good the advancements which their parent had re- ceived in his lifetime. 1 So where a distribution is made be- tween a child and a grandchild, the share of the grandchild is liable for the advancements made to his deceased parents, for in that case he takes his share by representation. 2 But this does not hold good in cases where the grandchildren take per capita, i. e., where they all stand upon the same degree of consanguinity to the intestate. " Neither the letter nor the spirit of the statute will make a grandchild liable for advances made to one under or through whom he does not claim." And " unless expressly so declared by statute, it is contrary to reason to hold them liable for advances made to one who is a stranger to their title." 3 Having provided for descent to the issue of the intestate, the Act of 1833, next proceeds to prescribe the mode of de- scent in cases where there are no lineals in the descending line, where the intestate leaves no persons who descended from him. This provision begins with the third section of the act, and makes a clear departure from the common law rule that " inheritances never lineally ascend.'''' The third section is as follows : " In default of issue as aforesaid, and subject also as aforesaid to the estates and interests here- 1 Earnest v. Earnest, 5 Rawle, 213 ; and the doctrine of this case has been affirmed under the Act of 1833 ; Hughe's Appeal, 7 P. F. Sm. 179. 2 Eshleman's Appeal, 24 P. F. Sm. 42. ' Person's Appeal, 24 P. F. Sm. 121. 298 THE LAW OF KEAL ESTATE AND inbefore given to the widow or surviving husband, if any ; the real estate shall go to the father and mother of such in- testate, during their joint lives and the life of the survivor of them ; and the personal estate not otherwise hereinbefore disposed of, shall be vested in them absolutely, or, if either the father or mother be dead at the time of the death of the intestate, the parent surviving such intestate shall enjoy such real estate during his or her life, and such personal estate absolutely." Of this statutory life estate there has been discussion al- ready, under estates for life. Here, the only point referred to is where both father and mother are living ; the estate vests in them as tenants by entireties, and survivorship is inevit- able, unless both consent to alien. 1 Collateral Kindred. — Of course, if the intestate leave issue surviving him, they take all, subject to the statutory curtesy and dower ; if there are no descendants of any degree, the in- testate's real estate descends to his collateral kindred, in regu- lar succession, subject to the life estates previously given by the act to the widow, surviving husband, father and mother. The act divides the collateral kindred into two classes, which for the sake of convenience we may call near collat- erals or those descended from the father or mother of the in- testate, and remote collaterals, or those whose relationship with the intestate is derived from a common ancestor more remote than his father or mother. Subject to the provision with re- gard to the blood of the first purchaser collaterals of the class which I have called remote cannot inherit, if any of the near collaterals exist. 1 Gillan v. Dixon, 15 P. F. Sm. 395. The words father and mother in the act mean the natural parents, and not adopting parents ; Commonwealth v. Powel, 16 W. N. 0. 297. But under the Act of 13 April, 1887 (P. L. 53), the adopting parents inherit to the exclusion of the natural parents, where the adopted child has inherited or derived the property from the adopting parents or their kindred. CONVEYANCING IN PENNSYLVANIA. 299 Near collaterals, or those descended from the father or mother of the intestate, are again divided into those of the whole blood, and those of the half blood. Near collaterals of the whole blood are those who are de- scended from both parents of the intestate. The half blood are those who are descended from only one, and not from both of the parents of the intestate. The near collaterals of the half blood cannot inherit the real estate, as long as there are any of the whole blood existing ; ] but personal property is divided among near collaterals without distinction of blood. 1. Near collaterals of the whole blood, are the intestate's brothers and sisters of the whole blood, and the descendants of such brothers and sisters. Descent to them is prescribed in the fourth section of the act in these words : " I. If such intestate shall leave brothers and sisters, or either, of the whole blood, and no nephew or niece, being the issue of a deceased brother or sister of the whole blood, the real estate shall descend to and vest in such brothers and sisters. " II. If such intestate shall leave neither brother nor sister of the whole blood, but nephews or nieces, being the children of such deceased brother or sister, the real estate shall de- scend to and vest in such nephews and nieces. " III. If such intestate shall leave brothers or sisters of the whole blood, and also nephews or nieces being the children of any such deceased brother or sister, the real estate shall descend to and vest in such brothers and sisters and nephews and nieces, as follows, viz : Every such brother and sister shall receive such share as he or she would have received, if all the brothers and sisters who shall then be dead leaving children, had been living at the death of the intestate, and such nephews and nieces shall take by representation of their parents respectively, such share only as would have de- 1 Stark v. Stark, 5 P. F. Sm. 62. 300 THE LAW OF REAL ESTATE AND scended to such parents if they had been living at the death of the intestate. " IV. If such intestate shall leave neither brother nor sister of the whole blood, nor any nephew or niece being the child of such deceased brother or sister, the real estate shall descend to and vest in the next of kin of such intestate, being the de- scendants of his brothers and sisters of the whole blood." The near collaterals of the whole blood are divided into classes in the same manner as lineals are, and the rule with regard to representation does not come into operation unless those who take under the act stand in different degrees of consanguinity to the common ancestor, or to the intestate. Where all stand in the same degree, they take per capita, each an equal share, so if an intestate leave only nephews and nieces, children of brothers or sisters, of the whole blood, they each take an equal share, without regard to the share their parents would have taken. 1 By the section cited above, the grandchildren of brothers and sisters were not allowed to represent their ancestors, so that they took no share of an intestate grand uncle's estate, where the intestate had either brother or sister, nephew or niece. 2 This was amended by the second section 1 Miller's Appeal, 4 Wr. 387. 2 The provision of the Act of 1833, that " among collaterals there should be no representation beyond brothers' and sisters' children," was adopted upon mature consideration. See the Report of Commissioners giving their reasons. Representation amongst collaterals, they say, is attended with serious evils, the principal one suggested beihg the difficulty of ascertaining the existence of persons entitled to inherit. In Krout's Appeal, 10 P. F. Sm. 380, the intestate left no issue, brother or sister, but the issue of six brothers and sisters, being twenty- five nephews and nieces, and the issue of seven deceased nephews and nieces (making thirty-two in all). Held that the estate should be divided into thirty-two shares, each living nephew or niece taking one share and the children of each deceased nephew or niece taking one share by representation. In Brenneman's Appeal, 4 Wr. 115, the in- testate left a widow, the children of two deceased uncles (two of one and four of the other) and grandchildren of a deceased aunt. Held that the grandchildren of the deceased aunt took nothing, that the CONVEYANCING IN PENNSYLVANIA. 301 of the Act of 27 April, 1855, which provided that *' among collaterals, when by existing laws entitled to inherit, the real and personal estate shall descend to and be distributed among the grandchildren of brothers and sisters, and the children of uncles and aunts by representation, such descendants taking equally among them such share as their parent would have taken, if living." l The effect of this act is to bring grandchildren of brothers and sisters into the right to share an estate where there are also collateral kindred nearer in degree, and they take the share their deceased parent would have had, if living. The words " when by existing laws entitled to inherit," relate to the distinction between whole blood and half blood. 2 If there are no near collaterals of the whole blood, the real estate goes to the father or mother in fee, under the fifth section of the act. " Section 5. In default of issue and brothers and sisters of the whole blood, and their descendants as aforesaid, and sub- ject to the estates hereinbefore given to the widow or surviv- ing husband, if any, the real estate shall go to and be_ vested in the father or mother of the intestate, or, if both be living at the time of his death, in the father and mother, for such estate as the said intestate had therein." Of course, the father and mother being husband and wife, take as tenants by entireties ; but suppose the father and mother were not husband and wife at the time of the vesting of the estate in them, either by being divorced, or by never having been married, the intestate being born illegitimate 1 The " brothers and sisters " must be brothers and sisters of the in- testate himself. Perot's Appeal, 6 Out. 257. 2 Lane's Appeal, 4 Cas. 487. children of the deceased uncles took by representation and not per capita. In Hayes' Appeal, 7 W. N. C. 11, the intestate left ten first cousins, some whole and some half blood. Held that they took per stirpes and not per capita. 302 THE LAW OF REAL ESTATE AND and subsequently legitimated by Act of Assembly. This is certainly a case which will rarely happen ; and, therefore, the discussion of it ib perhaps mpre curious than useful, but it did happen in the case of Killam v. Killam, 1 and it was decided that a tenancy by entireties was out of the question — they took as tenants in common. Next are the near collaterals of the half blood. They only take where all the preceding classes are wanting. " Section 6. In default of issue, and brothers and sisters of the whole blood and their descendants, and also of father and mother competent by this act to take an estate of in- heritance therein, the real estate of such intestate, subject to the life estates hereinbefore given, if any, shall descend to and be vested in the brothers and sisters of the half blood of the intestate and their issue, in like manner respectively as is hereinbefore provided for in cases of brothers and sisters and their issue." 2 All the remarks before made, as well as the provisions of the act of 1855, with regard to representation among brothers and sisters of the whole blood, apply to these cases of de- scent among near collaterals of the half blood. As has been said, subject to the provisions of the law with regard to the blood of the first purchaser, the estate of an intestate will not go beyond his brothers and sisters or their descendants, unless there are none of them in existence. If there are no brothers or sisters, either of whole or half blood, no father or mother, no issue of any degree, or as the statute says : "Section 7. In default of all persons hereinbefore de- scribed, the real and personal estate of the intestate shall descend to and be distributed among the next of kin to such intestate." 3 1 3 Wr. 120. 2 Copied from the eleventh section of Act of 1794, and the seventh section of the Act of 1797. 8 Section 12, of Act of 1794. Counted according to the rule of the civil law. McDowells. Adams, 9 Wr. 430. CONVEYANCING IN PENNSYLVANIA. 303 Representation among the children of uncles and aunts is provided by Act of 1855. 1 This was a modification of the eighth section of the Act of 1833. They take only by repre- sentation, and not per capita? 1 Supra, p. 301. 9 Brenneman's Appeal, 4 Wr. 115. This has been modified by the Act of 30 June, 1885 (P. L. 251), which provides that, " Whenever, by the provisions of the intestate laws of this Commonwealth, it is directed that real and personal estate shall descend to or be distributed among several persons, whether lineal or collateral heirs or kindred standing in the same degree of consanguinity to the intestate, if there shall be only one of sucli degree, he shall take the whole of such estate, and if there be more than one, they shall take in equal shares, and if real estate, shall hold the same as tenants in common." The Act of 25 May, 1887 (P. L. 261-2), prescribes the mode of dis- tribution where the next of kin is a grandparent, and there are also children of a deceased grandparent living. The act is as follows : " An act relating to estates of intestates, providing that children and descendants of deceased grandparents shall represent such de- ceased grandparents whenever grandparents are entitled as next of kin to intestates. " Section 1. That whenever by the provisions of the intestate laws of this Commonwealth it is directed that the real and personal estate shall descend to and be distributed among the next of kin to such intestate, and such next to kin shall be one or more than one grand- parent of such intestate, and there shall be living at the time of the, decease of such intestate, children or other descendants of any de- ceased grandparent, then the children or other descendants of any such deceased grandparent shall represent the grandparent so de- ceased, and shall take the share of the real or personal estate to which such deceased grandparent would be entitled if living : Provided how- ever, That the issue of any such deceased grandparent shall take ac- cording to the following rules of succession, namely : " First. If there be only children of such deceased grandparent, the share of such deceased grandparent shall descend to and be distributed among such children. " Second. If there be grandchildren of such deceased grandparent, and no other descendants and no child, the share of such deceased grandparent shall descend to and be distributed among such grand- children. " Third. If there be descendants of such deceased grandparent in any other degree however remote from him and all in the same degree of consanguinity to him, the share of such deceased grandparent shall descend to and be distributed among such descendants. " Fourth. If there should be descendants of such deceased 1 grand- 304 THE LAW OF REAL ESTATE AND There is no distinction of whole or half blood among uncles and aunts ; this distinction is confined to brothers and sisters. 1 There is one controlling provision, of ancient origin, which affects all descents to which it can apply — that is, that no one can take an estate of inheritance in lands who is not of the blood of the first purchaser. In a modified form in this respect, the Pennsylvania statutes follow the common law. 2 The section of the statute is in these words : " Section 9. Provided also. That no person who is not of the blood of the ancestors or other relations from whom any real estate descended, or by whom it was given or devised to the intestate, shall in any of the cases before mentioned 1 Danner v. Shissler, 7 Cas. 291 ; Dorsey v. Van Horn, 9 "W. N. C. 95 ; Davis' Est., 9 W. 1ST. C. 479. 2 See the fifth canon of descent, 2 Bl. Com. 220. parent in different degrees of consanguinity to him, the more remote of them being the issue of a deceased child, grandchild or other de- scendant, the share of such deceased grandparent shall descend to and be distributed among them as follows, namely : " (a) Each of the children of such deceased grandparent shall receive such share as such child would have received if all the children of such deceased grandparent, who shall then be dead leaving issue, had been living at the death of the intestate. " (6) Each of the grandchildren, if there shall be no children of such deceased grandparent, in like manner shall receive such share as he or she would have received if all the other grandchildren, who shall then be dead leaving issue, had been living at the death of the intestate, and so in like manner to the remotest degree. " (c) In every such case the issue of such deceased child, grandchild or other descendant of such deceased grandparent, shall take by repre- sentation of their parents respectively, such share only as would have descended to such parents if they had been living at the death of the intestate. " Section 2. Provided also, That no person, who is not of the blood of the ancestors or other relations from whom any real estate de- scended, or by whom it was given or devised to the intestate, shall, in any of the cases before mentioned, take any estate therein, but such real estate shall pass to and vest in such other persons as would be entitled by this act, if the persons not of the blood of such ancestor or other relation had never existed, or were dead at the decease of the intestate." CONVEYANCING IN PENNSYLVANIA. 305 take any estate of inheritance therein, but such real estate, subject to such life estates as may be in existence by virtue of this act, shall pass to and vest in such other persons- as- would be entitled by this act if the persons not of the blood of such ancestor or other relation had never existed, or were- dead at the decease of the intestate." 1 This reaches to brothers and sisters of the half blood and their descendants, and to the father and mother and the more remote collateral kindred, but it does not affect brothers and sisters of the whole blood and their descend- ants, nor the issue of the intestate, for they have a share of all the blood which he had. It divides the heirs of an intes- tate who was not himself a purchaser, into two classes — ex parte paterna, and ex parte materna. The definition of a purchaser, given by Blackstone and mentioned previously, is much cut down by the act. A gift or devise is treated in the same category as a descent (see section above), and the purchaser under this section is he who first' brought the estate into the family. 2 But the statute does not make the first purchaser the stock of descent, and give the land to his next of kin ; the consanguinity is to be counted from the intestate as the propositus, and his next of kin who have any of the required blood, no matter how little, are entitled to take. 3 Of course, if the decedent received the property by gift or devise from one who was not an ancestor or relation, the descent from him is not governed by this section, for it is not within its terms ; consequently, where a man devises or gives land to his wife, she is a perquisitor, whose blood is to be considered in tracing future descents; 4 and in case of a 1 See Kanck's Appeal, 3 Amer. 98. * Lewis v- Gorman, 5 Barr, 166; Hartman's Estate, 4 Rawle, 39. 3 Parr v. Bankhart, lOHar. 291. 4 Culbertson v. Duly, 7 W. & S. 195. 20 306 THE LAW OF REAL ESTATE AND devise to a wife, she is, to some extent, actually a purchaser for value, for the devise is a bar of her dower, and by accept- ing one she relinquishes the other. In Walker v. Dunshee, 1 a testator devised land to his wife ; she survived him and died seised, leaving children, all of whom died unmarried and without issue. It was held that the relatives ex parte materna inherited from the children, although they had kin- dred on the father's side who were nearer in degree. It follows from these principles that, generally speaking, a mother or father cannot take an estate of inheritance from their children in lands which the children themselves inher- ited from one parent who is dead. The mother and father are usually strangers in blood, and the section under consid- eration forbids the descent of lands to strangers. 2 As has been said by the court, " Parents shall succeed to the estates of their children who die intestate and without issue, pro- vided they be of the blood of the first purchaser. The theory of our intestacy is that estates shall not cross over from the family who acquired them to the family who had no part in their acquisition." 3 A case of equitable conversion is not within the statute. Where land is directed to be sold, and the proceeds given to one who afterwards elects to take the land instead of the money, such person is considered as a purchaser of the land. It was not given or devised to him ; what was given or de- vised was money, and he has, in effect, chosen to take land as an equivalent for the money. 4 In the same way, a reser- vation of ground rent is a creation of a new estate, and one who has obtained title to land by descent, gift or devise, be- comes a purchaser of the ground rent, if he chooses to con- 1 2 Wr. 430. " Maffltt v. Clark, 6 W. & 8. 258. 3 Roberts' Appeal, 3 Wr. 417 ; McWilliams v. Ross, 10 Wr. ; * Burr v. Sim, 1 Whart. 252 ; Simpson r. Kelso, 8 W. 247. CONVEYANCING IN PENNSYLVANIA. 307 vey his land, reserving a rent ; ' but a devisee is not con- verted into a purchaser by having the land charged or en- cumbered by the provisions of the will. Where a father devised land to his son, charged with the payment of a yearly sum to his widow, and of a sum in hand to his daughter, it was held that the payment of these charges did not make the son a purchaser ; consequently, when he died, intestate and without issue, his mother could not take an estate of inheritance in the land, but subject to her life estate, it descended to his next of kin of the father's blood. 2 There might be a devise so charged with payments as to amount to a purchase, but not as a general rule. If there is no kin of the required blood, the estate goes to the intestate's widow or surviving husband, in fee, according to Section 10 : " In default of known heirs or kindred, com- petent as aforesaid, the real estate of such intestate shall be vested in his widow , or, if such intestate were a married woman, in her surviving husband, for such estate as the in- testate had therein; and in such case the widow shall be entitled to the whole personal estate absolutely." 3 And if there be no husband or wife, and in all cases not ex- pressly provided for in the act, the estate goes to the next of kin, whether of the required blood or not, under : " Section 11. And whereas it is the true intent and meaning of this act, that the heir at common law shall not take, in any case, to the exclusion of other heirs and kindred standing in the same degree of consanguinity with him to the intestate, it is hereby declared, that in every case which may. arise, not expressly provided for in this act, the real as well a3 the personal estate of an intestate shall pass to and be en- 1 Kobb i). Beaver, 8 W. & S. 107 ; Co. Litt. 12 b. " Kinney v. Glasgow, 3 P. F. Sm. 141. s Copied from Act of January 21, 1S19. 308 THE LAW OF REAL ESTATE AND joyed by the next of kin of suchintestate without regard to the ancestor or other relation from whom such estate may have come." Commenting on this section, which was new in the Act of 1833, the commissioners say : " We have endeavoured to lay down a rule which shall forever and in all cases prevent the real estate of a decedent going to the heir at common law, to the exclusion of others in the same degree of consanguinity. We have already stated, that in every case, not expressly pro- vided for in the acts of 1794 and 1797, the doctrines of the common law are held to govern for the want of some broad and comprehensive rule. We think that the one now sug- gested will leave no doubt on the subject, and carry out in the remotest quarter the design of the Legislature. The pro- vision that the next of kin shall take in every case not enumerated, will, we believe, sufficiently identify the party, as the mode of computing kindred by the rules namely of the civil law, is well understood and established." In Dowell v. Thomas, 1 the first purchaser in the line of the title bought the land in 1694, and died seised in 1727. From that time it passed lineally to his descendants by devise or descent to one who died intestate, unmarried and without issue in 1841. It was admitted that so far as parties knew, all lineal and collateral relations of the first purchaser became extinct by the death of the intestate. The estate was ad- i judged to his cousins ex parte paterna, who were not of the blood of the purchaser, the land having descended to the intestate from his mother. " Section 12. In default of all such known heirs or kindred, widow or surviving husband as aforesaid, the real and per- sonal estate of such intestate shall go to and be vested in the Commonwealth by escheat." 1 1 Har. 41. CONVEYANCING IN PENNSYLVANIA. 309 The title of tlie Commonwealth will be considered in the ensuing chapter upon escheat. 1 Resume. If of blood of purchaser. ( Wife, if issue, one-third ; if no issue, one-half for 1. I life. ' Husband, tenancy by curtesy. 2. Issue, in fee, to remotest generation. 3. Father and mother, for life. 4. Brothers and sisters of whole blood, their children and grandchildren, in fee. 5. Issue of brothers and sisters of whole blood, more remote than grandchildren, in fee. 6. Father and mother, in fee. 7. Brothers and sisters of half blood and their issue, in fee (as above). 8. Next of kin, of required blood. 9. Widow or surviving husband, in fee. 10. Next of kin, generally. 11. The Commonwealth. 310 THE LAW OF KKAL ESTATE AND CHAPTER III. ESCHEAT— MEANING OF WORD— DISTINCTION BETWEEN ESCHEAT AND FORFEITURE— MODE OF PROCEEDING TO ESCHEAT LANDS IN PENNSYLVANIA— ESCHEATED LANDS TO BE LEASED — COMMONWEALTH BARRED AFTER 21 YEARS— ESCHEAT OF PARTNERSHIP PROP- ERTY—TRUST ESTATES— RIGHT OF ALIENS TO HOLD LAND— ALIEN ATION IN MORTMAIN— RESTRICTIONS ON CORPORATIONS — ACTS CONFIRMING VOIDABLE TITLES. It is a distinction which has lost practical importance for Pennsylvania lawyers, whether the subject of title to land be divided, according to Blackstone's system, into the two gen- eral heads of descent and purchase, which is the one gener- ally adopted, or whether, as Mr. Hargrave thinks, the proper general division would be into title by purchase, and title by operation of law, including in the latter descent, escheat and forfeiture. The old reasons for the distinction have faded away, and now where any practipal significance is attached to the fact that the owner of land came to his title as a pur- chaser, as for example, under the ninth section of the intes- tate laws, the term purchaser must be understood in a more restricted sense, and to take it in a meaning large enough to include even all devises, would mislead and confuse the stu- dent. The various kinds of purchasers will be mentioned from time to time as they occur. For the purposes of our studies, we cannot do better than follow the distribution of the subject adopted by the great commentator whose lectures have formed the text-book for the great body of American lawyers, and who, in the words of Chancellor Kent, " is justly placed at the head of all the modern writers who treat of the general elementary principles of law." When the person who had gained title to lands by occupancy, quitted that occupancy by his death, according to the law of nature the possession was open to any one who should choose CONVEYANCING IN PENNSYLVANIA. 311 to take it, and the next immediate occupant acquired the title. But the law, to prevent disturbance, gave to the dying per- son the right to dispose of his possession by will, or failing (hat, to declare that those nearest related to him by ties of blood should take it as his successors or heirs. " And further," says Blackstone, " in case no testament be permitted by law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from ever again taking place, the doctrine of escheats is adopted in almost every country ; whereby the sovereign of the State and those who claim under his authority are the ultimate heirs, and succeed to those inheritances to which no other title can be found." ' Escheat 2 was one of the incidents of feudal tenure, and be- longed equally to knight service, and tenure in socage. While subinfeudation was practiced, down to the passing of the statute of Quia emptores terrarurri? every transfer of land, in fee simple, which created the feudal relation of lord and tenant, left remaining in the lord an infinitessimal estate in the land itself, which was his seignory ; and although this was so small an estate as not to be recognized as a reversion, yet so far as it existed, it was in the nature of a reversion, and escheat in those ancient days was nothing more than the returning of the land to the grantor, after the estate which he had granted out of it had determined either by its own limitation, or by some act of the tenant which rendered him no longer fit to be trusted as a vassal. So that escheat was not the creation of an estate, but rather an enlargement of one already existing, in the same manner as a reversioner comes into possession of the land in which he has his rever- sion by the determination of the particular estate which had 1 2 Bl. Com. 11. 2 See, on subject of escheat, Challis on Real Prop. (Blackstone Pub. Co. ed.) p. 26 seg. 3 18 Edw. 1. 312 THE LAW OF REAL ESTATE AND previously been granted in the land. One of the two chief points of distinction between descent and purchase arose from lhe fifth canon of descent, mentioned in the last lecture, that on failure of issue of the person last seised the inheri- tance shall descend to those of the blood of the first purchaser ; and when this rule was applied to one who had gained his seisin by reason of an escheat, to know whether he was a pur- chaser or not within the meaning of the rule, it was deter- mined according to the manner in which he had obtained his title to the seignory. In this view certainly recognizing the seignory as the estate in expectancy in the land brought into an estate in possession by the determination of the estate of the tenant. The other- of the two principal points of distinction between descent and purchase was that one who came to his title by descent, took his estate subject to all the incumbrances put upon it by the last owner; whereas a purchaser- was not answerable for the acts of the persons from whom he acquired his title. And in respect to this point an escheat rather re- sembled a descent than a purchase, for the lands in the hands of the lord were liable for the encumbrances of the tenant The feudal nature and origin of the law of escheat was recognized in Pennsylvania. "By an act of Assembly for as- certaining the descent of lands, passed in 1700, it was directed that in case an intestate should leave no known kindred, all his lands, tenements and hereditaments should escheat and go to the immediate landlord of whom the same were held, his heirs and assigns ; and if immediately held of the pro- prietary, then to the proprietary, his heirs and assigns. This provision also formed part of the twelfth section of the Act of 1705, 1 which remained in force until after the Revolu- tion. 2 Escheat signifieth properly when by accident the lands fall 1 3 Sm. Laws, 158. 2 Iugersoll v. Sergeant, 1 Whart. 349. OONVEYANCING .IN PENNSYLVANIA. 313 to the lord of whom they are holden, in which case we say the fee is escheated. 1 It is derived from the Norman French eschoir or eschier, which means to happen, for an escheat is a casual profit which happeneth to the lord by chance and un- looked for. 2 It may happen in two ways, propter defectum sanguinis, or propter delictum tenentis ; where the tenant dies without heirs, or where he is attainted and his blood loses its heritable quality, in either of which cases there being no person having any right to the land, to render' the feudal services for which it was held, it goes to the lord. As escheat was an incident of tenure, it followed that at common law such estates as did not lie in tenure did not es- cheat. So a use was not liable to escheat, but where the cestui que use died without heirs, the feoffee to uses could hold the lands for his own benefit. The common law made a plain distinction between escheat for corruption of blood, and forfeiture. Where the king was the immediate feudal superior of whom the lands were held, there was no difference in the practical result ; but where the tenure existed between two subjects, the difference between escheat and forfeiture was manifest. By escheat which de- pended on feudal tenure, the lands went to the immediate superipr of whom they were held ; whereas, by forfeiture, which was a civil institution and part of the punishment inflicted for grave crimes, the land went to the sovereign. Where these two rights by escheat and by forfeiture conflicted, the forfeiture gave the superior and the stronger claim, and the land went to the crown. Where lands were forfeited for treason, the crown took absolutely ; where for felony, for a year and a day f and in cases of attainder for felony, after the king's year was passed, then the escheat to the next lord of the fee took effect. 1 Co. Litt. 13 a. 2 Co. Litt. 92 b. * 4 Bl. Com. 385. 314 THE LAW OF REAL ESTATE AND Though in this State, escheat as known to the common law no longer exists, it nevertheless is the origin and foundation of the law as it now stands. The Pennsylvania statutes provide for cases where the owner of lands dies without heirs, or forfeits lands for trea- son, or where lands are acquired by an alien or by a corpora- tion which has no power to hold them. The distinction be- tween forfeiture and escheat being no longer of any practical importance, since in both cases the lands are vested in the Commonwealth, the method provided by statute is the same for both. 1 The first general statute on this subject is the Act of 29 September, 1787, the first section of which is the same in substance, though in different wordF,with the twelfth sec- tion of the Intestates Act of 1833. " If any person who at the time of his or her death, was seised or possessed of any real or personal estate within this Commonwealth, die in- testate, without heirs or any known kindred, such estate shall escheat to the Commonwealth, subject to all legal demands on the same." What is lacking or antiquated, in this section is supplied by the intestate law, which provides that in default of known kindred, widow or surviving hus- band, the estate of an intestate shall vest in the Common- wealth, by escheat. The method of proceeding to vest the title and possession of escheated property in the Commonwealth, is not strictly within the scope of this chapter, but a brief description of it may be interesting. The person who first intervenes is called the informer. He is the one who first gives information of the happening of the escheat, which must be done in writing, signed by the informer in the presence of two subscribing witnesses. It is usually in the form of a communication addressed to (he Audi- tor General. The Act of 1821, abolished the office of Escheator 1 All the statutes are to be found in Purdon's Dig. Title, li Escheat. 1 ' CONVEYANCING IN PENNSYLVANIA. 315 General and transferred his duties to the Auditor General. As soon as this officer receives the information in lawful form, he appoints some suitable person in the proper county as deputy escheator, who thereupon takes charge of the case. The deputy issues a precept to the sheriff, in the name of the Com- monwealth, commanding the sheriff to summon a jury of twenty-four lawful men, to inquire whether there is an escheat, and what property there is and who has possession of it. This jury is the inquest. They meet at the time and place speci- fied in the precept. At least sixteen must be sworn ; twenty- three may be, if so many are present but no more ; any num- ber not fewer than twelve may sign the inquisition. It is the duty of the informer to prosecute the case and procure the evidence. The return of inquisi'ion is signed by the deputy and jury under their seals, and is filed in the office of the court of common pleas of the proper county. The Auditor General then immediately directs the sheriff of the proper county to take possession of all the personal property. The sheriff returns an inventory and appraisement of the same, makes sale thereof, and pays over the money to the State Treasurer. The lands found "by the inquisition to be escheated are leased by the Auditor General either to the person in possession, or to some other person, if the tenant in posses- sion will not give a reasonable rent. At the expiration of seven years after the inquisition, it is the duty of the pro- thonotary of the court of common pleas to certify to the Auditor General, whether or not there has been any claim made for the lands, and if none has been made, he proceeds to sell the lands at public sale, and the proceeds are paid into the State Treasury. Provision is also made for an opportunity for persons to question the truth of the inquisition, and to make claim to the escheated estate or any part of it, or to any lien or incum- brance on it. This claim must be made within seven years 316 THE LAW OF EEAL ESTATE AND from the time of inquisition ; after that it is barred as to the lands, for they are then to be sold, but the claimants have seven years further from the time of sale, in which to lay claim to the proceeds in the treasury ; and persons under dis- abilities have still further time, their claim to the proceeds not being barred until four years after the disabilities have been removed. The disabilities protected by the statute are infancy, coverture, imprisonment, insanity, and absence from the. State. The informer receives one-third of the per- sonalty and one-fifth of the real estate as a reward for his services. By the Act of 1869, the right of the Commonwealth to property escheated for want of heirs is barred unless in- quisition is had within twenty -one years after the death of the owner. 1 The title of the Commonwealth to escheated property is not complete until it has been found by the inquest that the intestate died without heirs or other known kindred — until her right be established by the return of the inquisition rinding in her favour, she can maintain no action, or cause any writ to be issued for the possession of the property.? There may be persons other than the intestate who have a direct interest in the escheated property. The persons entitled in reversion or remainder, or those who may have mortgages or other liens are all within the protection of the act, and in order to give them an opportunity to make their claims, the course pointed out by the act must be strictly pursued. In one case, where the inquisition did not contain the finding by the jury that the decedent died intestate, without heirs or any known kindred, it was held to be a nullity, because deficient in an integral part. 3 But the finding of the inquisition gives to the Commonwealth the right to the possession of the property, unless the inquisition be traversed and bond given by the 1 This act was construed in Commonwealth v. Naile, 7 Nor. 429. 1 Crawford v. The Commonwealth, 1 Watts, 485. 3 Bamsey's Appeal, 2 Watts, 231. CONVEYANCING IN PENNSYLVANIA. 317 claimant, in the manner required by the act, and this right of possession may either be enforced by the sheriff in the summary manner pointed out in the act, or in the same way and by the same process which were open to the next of kin. The Commonwealth is not restricted, by the act ; the process there made lawful is in addition to such as might be em- ployed by the heirs. " It must be obvious to everyone," says Kennedy, J., " that where there aje no next of kin, the Commonwealth comes in lieu of them, and why shall she not be entitled to the same security and the same remedy, having asserted and established her right to the estate in the manner prescribed by law, that are given to the next of kin ? I must confess that I am unable to perceive any. The Com- monwealth in such case may well be considered the ultima haeres, and as succeeding to all the rights and all the reme- dies of the heirs or next of kin in ordinary cases." 1 Even after inquisition found, it has been held that the land office has no right to dispose of the escheated land, except in the way pointed out by the act — that is, to lease it for seven years, and after that time has expired, to sell it at public sale. In Straub v. Dimm, 2 improved land escheated for want of heirs, and an information was duly made on which an inquest was had, and in proper form duly re- turned, finding in favour of the Commonwealth, and the land was leased, as required by the Act of Assembly. Be- fore the seven, years had elapsed the plaintiff obtained a warrant from the land office, on which the land was surveyed, and paid the purchase-money to the State. Upon an eject- ment to get possession under this title, it was held that the law requires the land escheated to be sold atauction,andthe plain- tiff's title not having been obtained in this way, he could not recover. Lewis, C. J. said: "The law is express that the land 1 Crawford v. The Commonwealth, 1 Watts, 480. 2 3 Caa. 36. 318 THE LAW OP REAL ESTATE AND must be sold at auction. The duty of making the sale is im- posed on the deputy escheator, and the authority to make the conveyance is reposed in the Governor. The object is to obtain not merely the price of unimproved land, but the full value not only of the improvements made upon the escheated property itself, but of the land and improvements as en- hanced by the surrounding improvements, and the advan- tages which have accrued or been developed by the popula- tion and enterprise of the country. The creditors of the decedent who have no liens may have an interest in this mode of sale, because they may rely upon the obligation of the State to do them justice, as far as the proceeds may ex- tend. The persons entitled in reversion, remainder, or in common, or those who may have mortgages or other liens, have also an interest which forbids the State from ignoring her title by escheat, and claiming to hold as original pro- prietor by a paramount title which would extinguish their claims. The person who gave information of the escheat and established the title of the State, has also an interest to the extent of one-fifth of the proceeds of sale. In addition to this, the law expressly forbids the sale of escheated estates for the period of seven years for the purpose of pro- tecting the rights of the heirs, if there be any. This protec- tion is withdrawn if the agents of the State may dispose of the land, as was attempted in this case, before the expiration of the seven years allowed by law for a traverse of the in- quisition. There is still a further period of seven years after the sale allowed to the heirs within which they may come forward and receive all the moneys that the Commonwealth received for the land. This provision would be nugatory if the State might disregard the title under which she entered and dispose of the land at the trifling price fixed for unim- proved and unappropriated land." The Legislature may do by an Act of Assembly what the land office may not — that is, grant the title of the Common- CONVEYANCING IN PENNSYLVANIA. 310 wealth in escheated lands after inquisition returned, and before the seven years have expired. Such an act, however, would transfer to the favoured person only the title which the Commonwealth had, subject to all the claims of unknown heirs and encumbrancers; and, perhaps, to carry out the spirit of the decision in the case last mentioned, the heirs, if any, would not be barred of their claim to the land itself, until after fourteen years from the finding of the inquest, because there would be no way of ascertaining what the proceeds of the property would have been if it had been brought to public sale as directed by the act. Prior to the Act of 1869, before mentioned, no statute of limitation ran against the Commonwealth, but an inquisition might be had at any length of time after the escheat accrued. In Holmes v. Pattison, 1 the inquisition was taken forty years after the death of the intestate. Now, after twenty-one years, the right of the Commonwealth is barred. This act does not apply in cases where the person for defect of. whose heirs the escheat happens has an interest in remainder. 2 In 1862, the court of common pleas of this county decided that it was impossible, under existing laws, to proceed to escheat the property of a partnership, as such, where all the partners died intestate, leaving no heirs or known kindred. To meet this decision the Act of 27 June, 1864, was passed, which provides that " in all cases where real or personal estate has been held by tenants in common, co-tenants, joint-tenants or in partnerships, and who have died intestate, without heirs or any known. kindred, such estate shall escheat to the Commonwealth, subject to all legal demands on the same." 3 The object of this act was to subject property thus held in community by several persons, to escheat in its undivided form where all the owners had died intestate without known 1 1 Cas. 484. 2 Commonwealth v. Naile, 7 Nor. 429. 3 Purd. Dig. title " Escheats," p. 712, pi. 3. 320 THE LAW OF REAL ESTATE AXD heirs or kindred. The prior acts had relation only to escheats of property of an individual in any one inquest. In such case no difficulty could occur as to the interest escheated, it would necessarily be entire in whatever f^prm held ; but there arose to the mind of the Legislature, the class of cases re ferred to wherein the individual interests of the persons associated could not always be discovered, and to meet this difficulty the Act of 1864 was passed. It simply provides that property held in any associated form shall escheat in that form. This mode of escheat does not preclude the heirs or kindred of any person interested from claiming that interest. 1 The effort made in 1869 to escheat to the Commonwealth the surplus fund of the Philadelphia Saving Fund Society, and the deposits unclaimed for seven years in the Pennsyl- vania Company for Insurance on Lives, etc., are to be found in West's Appeal, 2 and in West v. The Pennsylvania Com- pany. 3 An Act of Assembly was passed, relating to the subject of trust estates and deposits, where the beneficial interest or deposit was without a rightful owner, or where such owner was unknown for the space of seven years. The act was approved on the 17th of April, 1869. and it seems the information was filed with the Auditor General two days afterwards, but the Supreme Court granted injunctions against the deputy escheator in both cases, commanding him to pro- ceed no further with the proceedings for escheat, chiefly on the ground that no provision had been made to carry the act into effect, and that the process prescribed in the Act of 1787 was clearly insufficient for the purpose. These cases were " distinguished " in the subsequent case of Olmsted's Appeal, 4 where an injunction against a deputy 1 Commonwealth u. N. Amer. Land Co., 7 P. F. Sm. 102. 2 14 P. F. Sm. 186. "14 P. F. Sm. 195. « 5 Nor. 284. CONVEYANCING IN PENNSYLVANIA. 321 escheator, who was endeavoring to escheat a trust estate, was reversed by the Supreme Court, and the party in pos- session put to a traverse of the inquisition. 1 Escheat on. account of the corruption of the blood of the tenant, as the consequence of crime, does not exist in this State. Alienation contrary to law — Alienation to an alien. Escheat in cases of aliens may be passed without further remark, than that under our constitution and statutes, it has ceased to be of importance, an alien being allowed by statute to take and hold lands by devise or descent without limit, and to purchase and hold real estate not exceeding 5,000 acres in quantity, and $20,000 in net annual income. Alienation in mortmain. Escheat upon alienation in mortmain still exists here, and lands conveyed to a corporation which has no authority to hold them, are liable to be taken by the Commonwealth, whenever she pleases to do so. The Statutes of Mortmain are so far in force here that although conveyances to corpor- ations without a statutory license are not void, but convey all the title of the grantor, yet the title is vested in the corporation subject to the right of the Commonwealth, and the conveyance has no validity to enable the corporation to hold the land. 2 But the Commonwealth alone can take advantage of the forfeiture, and until a regular proceeding is had for that purpose, the title of the corporation or its vendee cannot be impeached by any other person. 3 1 An elaborate act defining what property shall be subject to escheat, and regulating the proceedings relative thereto, was approved on 2 May, 1889. The reader is referred to this act, which may be found in the Pamphlet Laws for 1889, at page 66. * Leazure v. Hillegas, 7 S. & B. 318. 3 Goundie v. Northampton Water Co., 7 Barr, 233. The British statutes of mortmain may be found collected in Roberts' Digest, *348, title " Mortmain." 21 322 THE, LAW OF REAL ESTATE AND The escheat or forfeiture of land by alienation in mort- main is enforced according to the provisions of the Act of 6 April, 1833, 1 by a provision similar to that prescribed for cases of escheat for want of heirs, except that the informer gets no reward, and the duty of procuring evidence and prose- cuting the Commonwealth's claim is put upon the deputy escheator. The Act of 26 April, 1855, 2 made a distinction between foreign corporations and those incorporated by the laws of this State, and also placed restrictions on the taking and holding of lands by ecclesiastical corporations sole (which were prac- tically abolished), and by religious, beneficial, literary and charitable associations and corporations, and by the Dinth section provided that all lands held contrary to that act should escheat ; and it restored the compensation to the in- former in cases comprised within its terms. 3 By the Act of 1 June, 1881 ,* foreign insurance companies are allowed to purchase and hold the real estate and premises in which they carry on their business, either in their corporate names or by trustees, and to mortgage and convey the same, or any part thereof. Titles prior to 22 May, 1878, are not defeasible by the Commonwealth, when prior to that time they were conveyed to a citizen by a corporation or an alien who was disqualified to hold them, the confirming act of that date being as fol- lows : " Whensoever any alien, or any foreign corporation, or corporations of another State, or of this State, shall have held title to real estate within this State, which he or they 1 Purd. Dig. title "Escheats," p. 718, pi. 34. seq. 2 P. L. 328. 3 A railroad company incorporated under the laws of another State wil! not be permitted to evade the Act of April 26, 1855 (P. L. 3291, by acquiring and holding real estate within this Commonwealth, by any scheme ordeviee whatsoever. Commonwealth v. N. Y., L. £. & W. R. R. Co., 4 Amer. 3,40. 4 P. L. 38. CONVEYANCING IN PENNSYLVANIA. 323 were not by the laws of this Commonwealth authorized to hold, and shall have heretofore conveyed such title to any citizen of the United Slates before any inquisition shall have been taken against the real estate so held to escheat the same, such citizen shall hold and may convey such title and real estate, indefeasibly as to any right of escheat in this Commonwealth by reason of such real estate having been held by an alien, or corporation not authorized to hold the same, or to the extent in which it has been held." ' 1 P. L. 85. A similar confirming act wa» passed April 8, 1881 (P. L. 9) ; see, also, Act 6 June, 1887 (P. L. 350). 324 THE LAW OF REAL ESTATE AND CHAPTER IV. FORFEITURE— 1. FOR CRIME— ABOLISHED Bt ACT OF 1860 —FORBIDDEN BY CONSTITUTION OF 1874, EXCEPT FOR LIFE OF OFFENDER— ■£. ALIENATION CONTRARY TO LAW— TORTIOUS AND INNOCENT CONVEYANCES— DE- NIAL BY TENANT OF LANDLORD'S TITLES. LAPSE— 4. .SIMONY— 5. NON-PERFORMANCE OF CONDITIONS— 6. WASTE — STATUTE OF GLOUCESTER — 7. BREACH OF COPYHOLD CUSTOMS— 8. BANKRUPTCY. Blackstone divides the general subject of acquiring title by purchase under five different heads or methods : Escheat, Occupancy, Prescription, Forfeiture, and Alienation. In studying the subject we shall follow the same division, but since in Pennsylvania escheat and forfeiture in most cases produce the same result, it seems best to consider them in connection with each other, before entering upon the distinct matters of title by occupancy and prescription. Escheat, be it remembered, happens from want of heiis, or corruption of blood of the last tenant, in which cases the Commonwealth takes title strictly by escheat. Lands held by corporations without license were liable to forfeiture, although the Pennsylvania statutes on the subject frequently use the word "escheat" with reference to such lands. Forfeiture is a punishment for neglect of duty or dis obedience to law. It may be incurred, according to Black- stone, as to real estate, in eight different ways : 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By nonpresentation to a benefice, or lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy. Of these many have no place in our law. Lapse and simony depend upon the circumstance that the established Church of CONVEYANCING IN PENNSYLVANIA. 325 England is a part of the Constitution of that country, and there were never any copyholds here. Let us briefly con- sider the remaining heads, several of which we have already studied. 1. Crimes and misdemeanors. The Constitution of Pennsylvania of 1874 provides, Article I, section 19 : " No attainder shall.work corruption of blood ; nor, except during the life of the offender, forfeiture of estate to the Commonwealth. The estates of such persons as shall destroy their own lives shall descend or vest as in cases of natural death, and if any person shall be killed by casualty, there shall be no forfeiture by reason thereof." At present, there is no statute in Pennsylvania, which includes forfeiture of lands as part of the punishment of crime, although a large number of crimes and misde- meanors are punished by a pecuniary fine, either with or without imprisonment ; but these are not forfeitures in the sense of the word with regard to real estate. This eradication of forfeiture from the criminal law was finally accomplished by the penal code contained in the Act of 31 March, 1860. Up to that time it had existed. Forfeit- ure of lands was a common law consequence of treason and felony, and under the term felony were included all crimes punishable by death, and they were many in num- ber. The common law was severe and cruel towards crimi- nals, and in nothing more so than when not content with the blood of the unhappy wretch who had broken it, it seemed desirous to follow its victim beyond the grave. It regarded a criminal as a noxious excrescence on society to be got rid of, rather than a diseased member to be cured, if possible. Speaking of forfeiture, the commis- sioners to revise the penal code, say in their report: " That it has been permitted to remain, after the succes- sive reformations of our penal laws, is not to be accounted 326 THE LAW OF REAL ESTATE AND for, except from the superstitious veneration, with which men regard even errors consecrated by antiquity. When the true principle of criminal jurisprudene became developed, and its end and object were admitted to be the reformation, and not the destruction of the offender; when, after the expiation of his crime, through a moderate and humane chastisement he was permitted to return into that society from which he was temporarily exiled, forfeiture of all his lands and goods became a cruel solecism. If it is contemplated, as our penal system avows, that the offender, after he has received a mild chastisement, should return to society a wiser and a better man, surely he should not be returned to it a destitute pauper. On the contrary, it is the true interest of the community that one so circumstanced should be left in the possession of means to commence his new career, and that he should not re-enter into society beset by the temptations of poverty and want. * * * * In effect, however, this law of forfeiture has long been a dead letter on our statute book ; no instance of its enforcement being known to us ever to have taken place. * * * Influenced by these considerations, the commissioners have abolished the system of forfeitures in form as it has long since been in fact." 1 The only instances I have ever known of forfeiture for crime, are some few cases which occurred during the Revo- lution, which I have seen in titles to land, and the only reported cases on the subject within my knowledge are those which arose out of the same event, and although the statutes passed at the time made forfeiture of estate part of the pun- ishment, yet so much was excepted from forfeiture as the judges of the court in which the traitor was convicted should think sufficient for the support of his wife and children. 2 1 Com. Rep. p. 9. * 1 Sm. Laws, 43'% 459. CONVEYANCING IN PENNSYLVANIA. 327 2. Alienation hy particular tenants. Where a tenant for life aliened in fee he forfeited his estate. Forfeiture in such cases, was a consequence of tenure, and resulted from a breach of the obligation of fealty. But a manifest distinction exists between what are called tortious conveyances, and those which are innocent. Only three kinds of conveyances were capable of producing the effect of forfeiture — fine, common recovery and feoffment with livery. Of this we have already learned in the study of estates for life. 1 A Pennsylvania deed of bargain and sale has not the same effect. 2 Disclaimer by a tenant or a renunciation of the relation of landlord and tenant, is equivalent to an illegal alienation, and where a tenant disputes his landlord's title, and sets up an outstanding title against him, it works a forfeiture of his estate. 3 But this we have already considered under estates for years. 3. Lapse and 4 Simony. 5. Non-performance of conditions as a cause of forfeiture has also been as fully studied as space will admit, in the chapter on estates upon condition. 6. Waste. Forfeiture for the commission or permission of waste, or a spoliation of the inheritance, was a punishment inflicted on tenants for life and years by the Statute of 6 Ed. I., c. 5, commonly called the Statute of Gloucester. 4 That this statute is in force in Pennsylvania can not be doubted. It was so reported by the judges, and has been judicially recog- nized in many decisions. In the case of Williard v. Wil- liard, 5 it was doubted whether a forfeiture for waste would 1 As to the effect of a common recovery, see Stump v. Findlay, 2 Rawle, 168 ; Lyle v. Richards, 9 S. & R. 322. 2 McKee v. Pfoutz, 3 Dal. 489. 3 Newman v. Rutter, 8 Watts, 54. 1 Robert's Dig. 426. 6 6 P. F. Sm. 129. 328 THE LAW OF REAL ESTATE AND be enforced here. I must again refer you to the chapter on estates for life, for further instruction on the subject of waste. 7. Breach of copyhold customs. 8. Bankruptcy. The English law formerly considered a bankrupt in the light of a criminal. 1 Not so our statutes ; although a bank- rupt's estate is taken from him and distributed among his creditors, yet it is not done upon the principle of punish- ing him, but rather for the purpose of making an equi- table distribution among all his creditors and to prevent favoured persons from being preferred to the prejudice of others. The power to pass uniform provisions for bankruptcy is vested in Congress by the Constitution of the United States. ■ The last Bankrupt Act, which was in force from 1867 until September 1, 1878, allowed two kinds of bank- ruptcy — voluntary, where the insolvent was adjudged a bankrupt on his own petition, and involuntary, where the adjudication was made on the petition of a creditor. The property of the bankrupt was, in either event, vested in his assignee in bankruptcy by an assignment under the hand and seal of the judge or register in bankruptcy, in trust for his creditors according to the provisions of the act ; and the assignee disposed of it under ihe direction of the court. In passing title to land it is, therefore, always prudent to have the records of the bankruptcy court examined to. see whether any of the owners were declared bankrupts while the law was in force. 1 2 Bl. Com. 471. CONVEYANCING IN PENNSYLVANIA. 329 CHAPTER V. TITLE BY SETTLEMENT AND IMPROVEMENT— EARLY DISPOSITIONS OF LAND IN PENNSYLVANIA— KIND OF SETTLEMENT REQUIRED— LIMIT TO EXTENT OF SET- TLEMENT—RIGHTS OF SETTLER— ABANDONMENT. Title by occupancy, which is the subject of Blackstone's sixteenth chapter, cannot be said to exist here, in the case put by Blackstone as the only instance in which such a title is recognized by the laws of England, namely, where an estate was granted to a man ( without mentioning his heirs) for the life of another man, and the grantee died during the life of the cestui que vie. By our statute of 24 February, 1834. sec. 9, 1 such an estate, after the death of the tenant, is made per- sonalty and is distributed and disposed of by the executors or administrators in the same manner as estates for years. There are many titles to lands in Pennsylvania, which had their origin in somewhat the same sort of occupancy which Blackstone speaks of, in the first chapter of the sec- ond book, as the true ground and foundation of all property in land. They are generally known as. titles by actual set- tlement and improvement. William Penn, the proprietary of Pennsylvania, fonnd himself the owner of a wilderness, of about three hundred miles in length by about one hundred and fifty in breadth. A very small part of this lying along the bank of the Delaware river had been occupied by the Swedes and Dutch, whom he found here on his arrival. He respected the rights of these, and their titles were soon after con- firmed by the provincial legislature. 2 All the rest of the land was unproductive to him. This consideration, together 1 Purd. Dig. 518, pi. 59. * Huston on Land Titles, 108. 330 THE LAW OF REAL ESTATE AND with the welfare of the province and the interest of those who had parohased land from him and those who had come and -were coming here to settle, made the settlement and cultivation of the country a matter of the first importance to the colony -.and the welfare of all concerned. It is said that if it had mot been for the Swedes and Hollanders, who wene here feefore William Penn and his settlers came, and had, some af them, considerable farms, it would have been difficult far $he first comers of Penn's colony to subsist at •all. The usmal method adopted for disposing of the land was to isell to any applicant so many acres, to be located where he pleased -en any land not already appropriated. To those who purchased in England before the settlement of the colony, Penn gave deeds of lease and release. Those who purchased after the establishment of the colony received from the pro- prietary or his commissioners, warrants which commanded the Swveyor -General or his deputies to lay out the quantity of acres the purchaser had bought. The purchase money was paid when the warrant was issued. On receiving the warrant, the ■surveyor made the survey, and it was returned t© the office time prescribed. In all cases the rights of actual settlers were respected, but the provisions were not precisely similar as to the extent of these rights and as to the manner of dealing with them. Numerous Acts of Assembly have been passed from time 1 Ewing v. McKnight, 1 S, & R. 128. 2 Pfoutz v. Steel, 2 Watts, 409. 3 Zubler v. Schrack, 10 Ws. 71. CONVEYANCING IN PENNSYLVANIA.. 335 to time, making provisions for collecting the pmrchasB money due the Commonwealth, and also extending the time for paying it. These may be found collected in Puudon's Digest. 1 The extension of time for paying the purchase money and interest was continued by successive Acts of Assembly until 1 August, 1863, when it was allowed to expire-.. In regard to some sections of the State, north and west of the Ohio and Al- legheny rivers, non-payment of the purchase money exposed the settler to the liability of a vacating warrant,, by which his title was declared forfeited for non-complianc© with the law requiring official survey and payment of the purchase money. But the provision of the ninth section ®f the Act of 3 April, 1792. 2 prescribed what such vacating warrants must contain, and warrants granted by the land) office which contained no such recital as required by the aet r were of no effect, because granted without the power given by law, 3 the effect of a vacating warrant being compared to the office of inquisition found in favour of the Commonwealth in cases of escheat and forfeiture. The remaining portion of Blackstone's chapter on Occu- pancy is devoted to the doctrine of alluviony which was studied in a previous chapter, on the divisibility and bound- aries of land. i 1 Title " Land Office," p. 1054, pi. 157-178. Turd. Dig. p. 1039, pi. 71. 3 Wilson v. Horner, 9 P. F. Sm. 155. 336 THE LAW OF REAL ESTATE AND CHAPTER VI. PRESCRIPTION— FOUND A TION OF DOCTRINE— WHA T MA Y BE THE SUBJECT OF PRESCRIPTION— LENGTH OF TIME NECESSARY TO COMPLETE THE RIGHT— KIND OF USER REQUIRED —PERSONS AGAINST WHOM PRESUMPTION WILL ARISE— EXTENT OF THE RIGHT GAINED— HOW TITLES GAINED BY PRESCRIPTION MAY BE LOST BY NON-USER. A title to incorporeal hereditaments may be maintained by showing an enjoyment or user from a " time whereof the memory of man runneth not to the contrary." The old English law on the subject is fully laid down in the seventeenth chapter of the second book of Black stone, and I will very briefly indicate the leading points and then pass to the more modern doctrine of presumptions, leaving you to study the chapter, for although antiquated, the ancient law is not obsolete, and the foundations of the more modern rules are laid upon those of long ago. 1 A prescription differs from a custom in this — a custom is a local usage, which governs a particular place, as a law of the place — as a custom that every inhabitant of a certain town shall have a rieht of way over certain land to church, or to water their cattle at a certain place in a stream. A pre- scription is a personal usage, and the title gained by it is the property of one or more individuals, as a private way, or a right to drainage. We will confine our studies at this time to prescriptions. 2 Since, according to the law of nature, occupancy or pos- session gave the original title not only to the temporary use 1 For history of Prescription of Property, see Maine's Ancient Law, 284 seq. See also, Digby Hist. Real Prop. 149, scg. 2 For the law respecting customs, see 1 Bl. Com. 75. CONVEYANCING IN PENNSYLVANIA. 337 of land, but also to a permanent property in the soil of the earth, 1 it naturally follows, that possession is prima facie evidence of title, and that long and continued possession should be held to be conclusive evidence of title to real property. Nothing could be more reasonable than to pre- sume that when a man has had a long, notorious and unin- terrupted possession of a thing, it is because he has a lawful right to it ; for if there were others who had a better right than the one in possession, it is against all human experi- ence, that they would quietly acquiesce in allowing the en- joyment to an intruder ; and where others who have claims fail to make them, and, for a long time, allow themselves to be deprived of their property, it is a very natural pre- sumption that there was a substantial and sufficient reason for such forbearance. There is another lesson taught by universal experience — that evidence is not imperishable. Witnesses die, or move out of knowledge ; human memory fades as time goes on ; and writings are liable to be lost, destroyed, or mislaid ; and a man who might easily to-day, defend or account for his possession or enjoyment of property, might find himself or his heirs might find themselves, twenty-five years hence without a spark of evidence by which to show "' the means Whereby they have the just possession of their property." Upon these two principles then are founded the doctrine of prescription, of presumption from lapse of time, and the numerous statutes of limitations of actions which protect the long-continued enjoyment and possession of property, and prevent the title of the possessor from being questioned after a time sufficient to raise the presumption that he was the lawful owner, nearly to certainty. There are two ways in which a man may claim by prescrip- tion. 1. By the usage of himself and his ancestors, and, 2, 1 2 Bl. Com. 8. 22 338 THE LAW OF REAL ESTATE AXD In a que estate, or by the usage of those whose estate he hath. In the fiist case the property came to him by descent, and in the latter, the line of descent has been broken by a transfer within the time necessary to convert the usage into a right ; so that nothing which is not alienable can be pre- scribed for in a que estate. 1. What may be the subject of prescription. 2. The length of time necessary to complete the right. 3. The kind of user or enjoyment. 4. The persons against whom the presumption will arise. <5. The extent of the right gained. 6. Howtitles gained by prescription maybe lostbynon user. 1. What may be the subject of prescription. Prescription only applies to incorporeal hereditaments; land, or an interest in land cannot be prescribed for. 1 The acquisition of title to lands by long-continued adverse possession depends upon the statute of limitations. .Pre- scription depends upon the presumption of a prior or an- cient grant. The name implies this. Upon long user and enjoyment of an incorporeal hereditament, the law pre- sumes that it had a lawful beginning, by deed of grant, which may be lost. Therefore, nothing can be obtained by prescription, for which a grant would not have been good. This must be understood in the strict technical sense of the word grant, that is a deed for the conveyance of an incor- poreal hereditament, which lie in grant. Corporeal heredit- aments lie in livery and required actual transfer of the seisin far their valid alienation. But it is not every incorporeal hereditament which can be transferred by grant, that can be gained by long and unin- terrupted user. A right or privilege gained by prescription must be such as must reasonably be presumed to have been 1 Tinecum Pishing Co. v. Carter, 11 P. P. Sm. 39 ; 27 id. 310 ; 9 Nor. 85. CONVEYANCING IN PENNSYLVANIA. 339 granted. " An owner of land," says Judge Sharswood, 1 '•who is compos mentis, may grant an easement on or over it, which will in effect destroy the usufruct of his property ; but no length of time will raise the presump- tion of such a grant. No man will be presumed to have made the grant of an easement such that its exercise may be large enough to destroy the usufruct of his property. * * * A prescriptive claim of common without stint, as annexed to a messuage without land, has been held bad. So, also, a plea that the occupiers of a brick-kiln for thirty years had enjoyed, as of right, the privilege to dig and carry away from the plaintiff's close as much clay as was at any time required by them for making bricks at the kiln, was overruled, because there could arise no reasonable presump- tion of such a grant. In like manner, and on the same prin- ciple, it was decided that the public cannot acquire a right by an uninterrupted use of twenty years with the knowledge of the owner of his soil on the bank of a navigable river as a landing and place of deposit for property on its transit to and from vessels navigating such water." 2 But, generally speaking, every reasonable incorporeal hereditament may be gained by prescription. 2. The length of time necessary to complete the right. The length of time necessary to gain title by prescrip- tion was, anciently, time whereof the memory of man run- neth not to the contrary. By analogy to the statute of lim- itations this was at one time fixed at the beginning of the reign of Richard I. Littleton explains it, '* that is as much as to say, that no man then alive hath heard any proof to the contrary, nor hath no knowledge to the contrary." 3 The English statutes of limit ations prior to the 32 Henry VIII. , fixed a definite period for the accruing of the rights of entry which 1 In Tinicum Fishing Co. v. Carter, 11 P. F. Sm. 41. 2 Cooper v. Smith, 9 S. & R. 26. 3 Co. Litt. 113 a. 340 THE LAW OP REAL ESTATE AND were barred by them. First, it was from the time of Henry I. ; then from the time of Henry II., and alter that the Statute of Westminster ' fixed the beginning of the reign of Richard I., as the time from which the seisin must date to be protected. 2 The Stat. 32 Henry VIII. first introduced the principle of counting so many years backward from the time of entry or action, and fixed the limit at sixty years ; and this was again shortened by the Statute of 21 James I , c. 16, to twenty years. It seems to have been a disputed point whether the time held to be necessary for a valid prescription was changed to suit the analogy to the two last-mentioned statutes as they were respectively passed. The better opinion is that it was so changed. 3 However this may be, it was long held that twenty years adverse exclusive and uninterrupted user of an incorporeal hereditament, created a strong presumption of a previous grant. The presumption of a grant differs from the ancient prescription by immemorial usage in this one partic- ular — that under the ancient doctrine of prescription, enjoy- ment from immemorial time was conclusive evidence of title, while the modern presumption from twenty years' user may be rebutted by other evidence. In Cooper v. Smith, 4 the court say : " Length of time cannot be said to be an abso- lute bar, like the statute of limitations, but only a pre- sumptive bar to be left to a jury." The subject of prescriptions in England is now regulated by the Statute of 2 and 3 Wm. IV., c. 71, and therefore, since 1832, the English decisions must be understood as being upon the construction of that statute, whose provisions may not be in accordance with our law on the subject. The length of time required to presume a grant in Penn- 1 3 Edw. I., c. 29. 2 Co. Litt. 114 b. 3 Gale & Wh. on Easem., *92. ♦ 9 S. & R. 33. CONVEYANCING IN PENNSYLVANIA. 341 Bylvania is, by analogy to our own statute of limitations of real actions, twenty-one years, and not twenty as under the English law. There are undoubtedly to be iound scattered through our reports dicta of some of the judges of the Supreme Court, in which twenty years are spoken of as sufficient, but these expressions have been used in cases where the exact time was not material in the cause, and it was, therefore, not necessary to be precise in language. 1 The time required in the several States of the United States varies from two years (in Texas) to twenty-one (in Pennsyl- vania), the larger number of them following the English law. 2 3. The kind of user, or enjoyment. It must be, as nearly as the different circumstances of the case will admit, of the same quality as the possession re- quired to be had of land under the statutes of limitations. It must be adverse, 'peaceable, notorious, and uninterrupted. a. Adverse means under a claim of right. If the right was exercised by license or permission, no presumption can arise from its long continuance. Adverse user, or enjoyment of an incorporeal, must resemble as nearly as possible, the adverse possession of land under the statute. Of course, the owner of an* incorporeal cannot have the possession of it. If it is a rent, he has the right to demand it at stated periods, and this demand, acquiesced in by payment for twenty-one years, iB an adverse enjoyment sufficient to warrant the court in directing the jury to presume a grant 3 If there is any explanation to be made, or any evidence given to rebut the presumption from long user or enjoyment, the burden lies upon the owner of the servient tenement to make or produce it. 4 It will not be sufficient for a court to instruct the jury 1 Dyer v. Depui, 5 Whart. 584 ; Crawford v. Neff, 3 Gr. Cas. 175. 2 Washburn on Easements, *84. 3 Newman v. Rutter, 8 Watts, 51. 4 Garrett v. Jackson, 8 Har. 331. 342 THE LAW OF REAL ESTATE AND that they are at liberty to presume a grant ; they must be told that it is their duty to do so — that the circumstances create a presumption which is conclusive if it remains unex- plained by sufficient evidence ; ' but it is a complete answer to the presumption arising from user to show that it was done under leave, or favour, or courtesy, or by permission of the owner. 2 There are some easements which are not susceptible of adverse user, and, therefore, cannot be gained by prescrip- tion, but require an express grant. A man cannot gain an easement in the land of another by a lawful use of his own land for any period of time. The user 01 enjoyment of the right claimed to be adverse must be such as would have exposed the person using to an action, unless he had a grant. " No man can be barred by a statute of limitation for not bringing his action within the prescribed period, unless it is first shown that he had a cause of action which he could have maintained. In analogy to the statute, no presumption can arise against a party on the ground of long enjoyment of a privilege by another, until it is shown that the privilege in some measure interfered with the lights of the party whose grant is proposed to be presumed, and that lie had a legal right to prevent such enjoyment by proceed- ings at law. Presumption is when the conduct of the party out of possession cannot be accounted for without presuming a conveyance." 3 So in^Wheatley v. Baugh, 4 it was held that a man who dug a mine on his own land, and thereby dried up a spring on his own ground which had for ' McElroy v. The Railroad, 7 Barr, 536 ; Wallace v. Fourth Presb. Ch., 1 Attier. 164. 2 Esling v. Williams, 10 Barr, 128. The existence of a gate maintained across an alley is of no conse- quence if the plaintiff, and those under whom he claimed, used it •whenever they chose to do so. Demuth v. Amweg, 9 Nor. 181. :l Wheatley v. Baugh, 1 Cas. 534. 4 1 Cas. 528. CONVEYANCING IN PENNSYLVANIA. 343 more than twenty-one years supplied water to a neighboring tannery, was not responsible to the owner of the tannery, not only because the rule which prevents an owner of land from diverting a stream passing through it, does not apply to percolations or nitrations of water under ground, but the decision was also rested on the principle that the long user of the spring by the owner of the tannery, being only an exercise of his lawful rights, and not an invasion of his neighbor's, was not adverse in its character. " The owner of the mine had no right to complain of his neighbor below for making use of the spring on his own lands. As long as it flowed there he had a right to make use of it, and the owner of the land through which the supply of water came was not in any manner injured by such use of the water. Silence or acquiescence where one is not injured, and has no cause of complaint, can never deprive him of his rights on the ground of presumption of a grant. No man can be said to have granted a right, about which it would have been an impertinent interference to utter a complaint." 1 On the same principle, the doctrine of ancient lights, which is fully established in England, has been repudiated in Pennsylvania. A man cannot gain a right to have his windows overlooking his neighbor's ground remain unob- structed, because they have been so open for more than twenty-one years. 2 What a man does on his own land, with- out encroaching upon his neighbor's land, or interfering with him in any way, cannot be such an adverse enjoyment as is necessary to raise the presumption of a grant. Windows cannot be put in a party-wall. It must be a close-built, com- pact wall, without openings ; 3 a court of equity will compel them to be closed ; even twenty-one years user will give no right. 4 1 Lewis, C. J. at page 534. ' Haverstick v. Sipe, 9 Cas. 368. 3 Vollmer's Appeal, 11 P. F. Sm. 118. 4 Milne's Appeal, 31 P. F. Sm. 54 ; McCall v. Barrie, 15 W. N. C. 28. 344 THE LAW OF REAL ESTATE AND b. The user must be peaceable,. There must be acquiescence by the owner of the servient tenement. The pendency of an action denying the right, stops the running of the time. 1 c. It must be open, or notorious, or visible. The owner of the servient estate must know of it. Knowledge and acquiescence of the owner may be proved by direct evi- dence, or may be inferred from the circumstances of the case. No length or duration of secret user will avail. This applies to all cases of non-apparent easements. Where the user is conducted in such a manner that the owner must reasonably have seen it, the presumption that he had notice is natural and almost conclusive ; but where an easement is claimed which gives a right to be enjoyed under ground, the case is different, and the knowledge and acquiescence of the owner must be affirmatively proved. " It would be too gross and palpable an insult to common sense to propose that it is lawful for a man to dig a vault or cellar under his neighbor's ground, and by an occupation for more than twenty-one years, acquire either a title under the statute of limitations, or by the presumption of the grant of an easement. In either case the use or possession must be open, visible and notorious, as well as adverse." 2 Where the owner of the land, having notice of the adverse user, resists the exercise of the right, or denies its existence, his acquies- cence is disproved, and the presumption of a grant cannot arise, for the title rests on his acquiescence in its adverse use. d. The user must be uninterrupted or continuous. It is difficult to say precisely what user is or is not continu- ous, so as to give a definition which will suit all cases. What might be clearly sufficient in some circumstances would be insufficient in others. Continuous easements, ' Workman c. Curran, 8 Nor. 226. 1 Smith v. Dutton, 4 Phila. Rep. 73. CONVEYANCING IN PENNSYLVANIA. 345 where the active interference of man is not necessary to the enjoyment, but that enjoyment may be continual without any action on the part of the claimant, as a drain, or a right to light and air, or a right to lateral support, present no difficult questions of interpretation Discontinuous ease- ments or those the enjoyment of which can only be had by the interference of man, as a right of way, or a right to draw water, are those which occasion doubt. The question is one of fact, to be left to a jury. 1 An occasional use for some purposes, or on extraordinary occasions will not answer. 2 But in a case where the question was raised as to a right of way claimed by presumption from long user over unenclosed woodland, the president of the common pleas of Delaware county instructed the jury that "he could not believe that the mere traveling of a neighbor or neighbors over one track or over many promiscuous ones, over unenclosed commons, or unenclosed woodland even for twenty-one years or more ought to be considered as the adverse enjoyment of an ease- ment from which a jury would be bound to presume a grant." The Supreme Court overruled this decision and held that there was no distinction between enclosed and unenclosed land, and that twenty-one years of uninterrupted user of a right of way over woodland afforded presumptive evidence of a grant. 3 This law has been changed by Act of 25 April, 1850, sec. 21, which enacted that no right of way shall be acquired by user through unenclosed woodland.* The only general rule seems to be that the user is contin- uous when the party claiming the right, exercised it openly as often as he chose under a claim of right, without any act ' Mason v. Ammon, 2Crum. 127. ' Esling v. Williams, 10 Barr, 128 ; McGrew v. Foster, 18 W. N. C. 487. 3 Worrall v. Rhoads, 2 Whart. 427; Keimer v. Stuber, 8 Har. 458. * Purd. Dig. " Ways," p. 1704, pi. 1. 346 THE LAW OF REAL ESTATE AND on the part of the land owner indicating that the right was disputed. 4. The persons against whom, the presumption will arise. As prescription is founded upon an ancient grant, either real or supposed, and the modern doctrine is that a grant will be presumed, so neither of them can arise except against such persons as are capable of imposing a permanent burden upon the land, that is the owner of an estate of in- heritance, who is sui juris. A remainderman or reversioner is not affected by any adverse user, because he was not in a position to complain of encroachment on his rights. But where the land is in possession of tenants from year to year, the owner of the fee is bound by the adverse user because he has the right lo bring suit every year. And the same is true of a person under disabilities, as an infant, or married woman. As the presumption arises from analogy to the statutes of limitation, so the analogy is followed also to the exceptions to those statutes, and disability cannot be added to disability. Where a female infant married before attaining majority, the time necessary to create the presumption began to run from the time she attained her majority. The disa- bility of coveture added to that of infancy is disregarded as it would be under the statute of limitations. 1 The maximum " nullum tempus occurrit regi" applies to cases of presumptions. No occupation or user for any length of time will bar or destroy a public right. 2 Adverse posses- sion of a highway for twenty-one years does not bar the public. 3 5. The extent of the right gained. The right gained by prescription or presumption is no greater than is shown to have been used during the whole 1 Eeinier v. Stuber, 8 Har. 463. 2 Commonwealth u. Pliilad'a, 4' liar. 79 ; Kopf v. Utter, 5 Out. '27. 3 Commonwealth v. Moorehead, 3 Cruan. 344 ; Stevenson's Appeal, 17 W. N". C. 429. CONVEYANCING IN PENNSYLVANIA. 347 time. If it began for certain purposes it cannot afterwards be extended to others. A right of way for carriages does not necessarily include passage for cattle, and a man can no more overload an easement gained by prescription, than he can one expressly granted to him. The well-known case of McCallum v. The Germantown Water Company, 1 is a strik- ing instance of this rule. There the plaintiffs claimed the right by long, adverse and uninterrupted user to pollute the waters of Crab creek, from which also the water for the do- mestic purposes of the people of Germantown was drawn. It was held that they had no right to pollute the water to any greater extent than it was polluted at the commencement of the twenty- one years. The right is measured by the enjoy- ment or user, and can be no greater than that was in the beginning. 6. How titles gained by prescription may be lost by non-user. Incorporeal hereditaments may be lost by the refusal of the owner of the servient tenement to allow the enjoyment for twenty-one years. Mere non user is not sufficient, unless that be produced by or accompanied with acts by the owner of the ground inconsistent with or adverse to the existence of the right. 2 There is a difference in this respect between an easement obtained by presumption from lapse of time, and one granted by deed ; 3 in the one case mere non-user being sufficient, and the other requiring evidence of the hos- tile adverse acts of the owner of the land. If an easement or privilege be granted by deed, " against such a grant there is no statute of limitation without actual, hostile and adverse possession. Nothing less than an absolute denial of the right followed by an enjoyment inconsistent with its exis- tence for a period of twenty-one years or more, can amount to an extinguishment of it. * * A man ought not to be 1 4 P. F. Sm. 40. 2 Buckholder v. Sigler, 7 W. & S. 159. i " Lacy v. Arnett, 9 Cas. 169. 348 THE LAW OP HEAL ESTATE AND obliged, unless he requires it, actually to use a right or priv- ilege secured by deed, nor to resort to legal proceedings un- less his title is denied, and he is actually ousted, disseised, obstructed or prevented by some wrongdoer from an enjoy- ment of it, when he requires and demands such enjoyment." 1 In either case the length of time the non user must continue is twenty-one years. 2 With regard to ground rents it was held in (St. Mary's Church v. Miles, 3 that while mere lapse of time without demand Of payment was not sufficient to raise a presump- tion that the ground rent was extinguished, yet it was evi- dence of payment of arrears. This has been changed by the Act of 27 April, 1855, section 7, which makes the fact that no ground rent has been paid or demanded for twenty-one years a conclusive presumption of a release or extinguish- ment, " and such ground rent shall be thereafter irrecovera- ble." And by the Act of 26 February, 1869, the provisions of this act were extended to apportioned ground rents, whether expressly or impliedly apportioned.* These acts are retrospective and are constitutional. 5 There was an act passed 28 April, 1868, which authorized the court of common pleas, on the petition of any person interested, to hear the evidence, and on due proof being made of the truth of said petition, to decree a ground rent, extinguished by payment or by presumption of law, to be released, merged and extinguished. This provision was also applied, by the Act of 2 February, 1869, to cases of pre- sumptive extinguishment within the provisions of that act. 1 Lindeman v. Lindsey, 19 P. F. Sm. 93 ; Bombaugh v. Miller, 1 Nor. 203. 2 Haieht v. The Proprietors of the Morris Aqueduct, 4 Wash. C. C. Bep. 607. 3 1 Whart. 229. * Purd. Dig. " Limitations," p. 1063, pi. 11-12. '' Korn v. Browne, 14 P. F. Sm. 55. CONVEYANCING IN PENNSYLVANIA. 349 The case of Korn v. Browne,' decides that the act is con- stitutional so far as to raise a presumption of extinguish- ment on twenty one years non-payment. But this does not extend to the method prescribed in the Act. of 1868 and of 2 February, 1869, for proceeding to obtain from the court of common pleas, a decree of extinguishment ; so far as they confer such jurisdiction on the court without giving the right of trial by jury the acts are unconstitutional. 3 1 14 P. F. Sm. 55. 2 Haines' Appeal, 23 P. F. Sm. 169 ; Palairet's Appeal, 17 P. F. Sm. 479. 350 THE LAW OF REAL ESTATE AND CHAPTER VII. WHO MA Y ALIEN AND TO WHOM?—PERSONSOUTOFPOSSES- SION—THE COMMONWEALTH— THE NECESSIT YOFSHO W- ING TITLE OUT OF THE COMMONWEALTH IN EJECT- MENT— COMPOS A TIONJS-THE STATUTES OF MORTMAIN — CORPORATIONS AS TRUSTEES — UNINCORPORATED SOCIETIES— CHARITABLE USES— PARTNERS AND PART- NERSHIP REAL ESTATE— LUNATICS— HABITUAL DRUNKARDS— INFANTS— PERSONS UNDER DURESS. For a long time after the Norman conquest, the law of England relating to lands, was the feudal law, and the main object of it was to enforce the mutual obligations resting upon lord and tenant, and as the consideration for the grant of lands was the personal military services of the feudatory, it was a very natural consequence that it would be thought wrong that the tenant should have the right to transfer the land at his pleasure, and thus expose the lord to the risk of having his land occupied by one who was less able than his original tenant to render the services which he had a right to expect from the very nature of the contract. Alienation, therefore, was strictly forbidden, except in the form of sub- infeudation, which appears to have been always allowed until it was abolished by the statue of Quia emptores terra- rum. 1 But the consent of the lord being given, there re- mained no reason why the tenant should not transfer his feud, and from this arose the custom of paying to the lord a fine for license of alienation. The statute of Quia emptores gave free liberty of alienation to all except the king's ten- ants in capite ; they were allowed the same privilege by the statue of 1 Ed. Ill, c. 12, on payment of a fine; and all fines, the last vestiges of restraints on alienation, were USEdw. I. c. 1. CONVEYANCING IN PENNSYLVANIA. 351 abolished by the statute of 12 Ch. II, c. 24, twenty-one years before the date of the charter of Pennsylvania. The obligations resting upon the lord of the land and his tenant were mutual. As one could not alien the land without consent, so neither could the other transfer his seignory against the will of his tenant. The agreement of the tenant to the grant of the seignory was necessary to its validity, and the giving of this consent or agreement was called attornment. " It is an ancient word of art, and in the common law signifieth a torning or attorning from one to the other." l The necessity of attornment was finally abol- ished by the statute of 4 Anne. c. 16, sec. 9, 2 which is in force in Pennsylvania, 3 and a landlord may sell his land, without his tenant's consent, and his grantee stands in his place, and has all the rights against the tenant which he could have had if no alienation had been made. We now come to the very important question, Who may alien, and to whom ? The capacity to take, to hold and to convey title to real estate depends upon a variety of circumstances. Some per- sons can take title, but cannot hold it, others can take and hold but cannot convey. I know of no case where a person is absolutely without capacity to take title, under our laws; want of power to hold and convey are common. In Black- stone's time persons professing the religion of the church of Rome could not take, but this relic of religious intolerance no longer exists. Blackstone considers, as persons who lack full capacity to alien lands : 4 Persons out of possession, persons attainted, idiots and insane persons, infants, persons under duress, femes covert, aliens and papists. Let us examine the Penn- 1 Co. Litt. 309 a. 2 Eobert's Dig. 45. 3 Tilford v. Fleming, 14 P. F. Sm. 300. 4 2 Bl. Com. 290. 352 THE LAW OP REAL ESTATE AND sylvanialaw as to these, and some others suggested by them. Persons out of possession. Those who had only a right of possession could not convey. This was one of the maxims of the common law. " And the reason hereof is, for avoid ing of maintenance, suppression of right, and stirring up of suits ; and, therefore, nothing in action, entry or re-entry, can be granted over ; for so, under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession.'" This law never was in force in Pennsylvania, although it is in many other States. " From the equality of condition of persons in this country, there was no danger of main- tenance from the interference of powerful individuals, and the abundance and cheapness of land rendered it necessary to admit of its transfer with almost the same facility as per- sonal property." 2 Our law permits all persons, whether in or out of possession, to transfer their title, such as it is, good or bad. 3 The king can only grant and take by matter of record. The queen, whether regnant or consort, is regarded as a feme sole at common law, so far as power to deal with her estate is concerned. The Commonwealth may purchase, hold, sell, convey, lease and mortgage land, like any person. It may acquire title under the statute of limitations, or by presumption from lapse of time; but though the Commonwealth can gain title by lapse of time, yet it cannot thus lose it, Nullum tempus oocurrit regi. The statutes of limitation do not run against the Commonwealth, nor is anything presumed to have been granted by the Commonwealth from lapse of time. 4 1 Co. Litt. 214 a. For the law of maintenence and champerty, see 4 Bl. Com. 134-5. 2 Stoever v. Whitman, 6 Binn. 416. " Overfleld v. Christie, 7 S. & R. 173. * Commonwealth v. Baldwin, 1 Watts, 64. CONVEYANCING IN PENNSYLVANIA. 353 There was at one time a prevalent impression that it was necessary in all cases in ejectment, for the plaintiff to show title out of the Commonwealth. It was said that this was not well founded, 1 and not sustained either by reason or authority, 2 but it was set at rest by the Act of Assembly of 27 April, 1855, section 6, which declared that as between litigants other than the Commonwealth, where there has been thirty years' continuous possession, it shall be presumed that the title to the land has been parted with by the Com- monwealth. This does not take away the right of the Com- monwealth in any manner, nor raise any presumption of a grant except between the parties litigating, for the purposes of the trial. 3 The Supreme Court has determined that where there has been less than thirty years' continuous possession, title out of the Commonwealth must be shown. 4 Corporations, having no statutory license to purchase and hold lands, may lawfully take, but cannot hold lands; they are liable to be forfeited at the pleasure of the Com- monwealth. The manner in which the title of the Common- wealth to the forfeiture is enforced has been stated in a former chapter, but our consideration heretofore was mainly con- fined to the question of forfeiture, and to titles taken by or derived from corporations, as affected by their want of capacity. Let us look a little more closely into this capacity of corporations to deal with real estate. At common law, the power and capacity of corporations 1 Hylton v. Brown, 1 Wash. C. C. Bep. 204. 2 Sergeant's Land Law, 203. 3 Wilson v. Horner, 9 P. F. Sm. 155. 4 Sherwood v. Sumne, 5 W. N. C. 357. If the plaintiff claim as devisee, it is sufficient in the first instance to prove the will and seisin of the devisor, and the latter may be proved by showing that the devisor was actually in possession, or was receiving the rents as landlord at the time of his death, because pos- session is presumptive evidence of seisin until the contrary is shown. Jones v. Bland, 1 Crum. 190. 23 354 THE LAW OF REAL EST.ATE AND to take, hold, and dispose of lands was without limit, either as to the quantity, or as to the objects, unless expressly re- strained by their charters, or by statute. Where such re- straint did not exist, the' capacity of a corporation did not differ from that of a private person. But this common-law capacity was entirely taken away by a series of statutes, beginning with Magna Charta, 9 Hen. III., and coming down as late as 9 Geo. II., called the Statutes of Mortmain. These were at first directed against the religious or ecclesiastical corporations, but the Statute of 15 Rich. II., c. 5, enacted that " because mayors, bailiffs, and commons of cities, bor- oughs and other towns, which have a perpetual commonalty, and others which have offices perpetual, be as perpetual as people of religion, that from henceforth they shall not pur- chase to them, and to their commons or office, upon pain contained in the said statute Be reliffiosis." 1 This statute, passed in 1391, first extended the prohibition against holding lands to lay corporations. Pennsylvania is the only State in which the statutes of mortmain are in force, 2 and they have been adopted here only so far as they suit our circumstances and condition. They are in force so far as they prohibit dedications of prop- erty to superstitious uses, and grants to corporations without a statutory license. 3 The preamble to the Act of 6 April, 1833, 4 recites what the Legislature understood to be the law of mortmain when that act was passed. " It is contrary to the laws and policy of this State for any corporation to prevent or impede the cir- 1 Roberts' Dig. Tit. "Mortmain," *351. 1 2 Kent's Com. * 283. 8 Methodist Church t .. Remington, 1 Watts, 224. In this case, Gib- son, C. J. said that it was not easy to see how there can be such a thing as a superstitious use, at least in the acceptation of the word by the British courts, who seem to have extended it to all uses which are not subordinate to the interests and will of the established church. ♦ Purd. Dig., p. 718, pi. 34. CONVEYANCING IN PENNSYLVANIA. 355 culation of landed property from man to man without a license from the Commonwealth, and no corporation, either of this State or of any other State, though lawfully incor- porated or constituted, can, in any case, purchase lands within this State, either in its corporate name, or names of any per- sons or person whomsoever, for its use, directly or indirectly, without incurring the forfeiture of said lands to this Com- monwealth, unless such purchase be sanctioned and author- ized by an Act of the Legislature thereof, but every such corporation, its feoffee or feoffees, hold and retain the same, subject to be divested or dispossessed at any time by the Commonwealth, according to due course of law." In determining, therefore, whether a certain corporation has or has not a license to hold lands the presumption is prima facie that it has not, and the legislative authority must be shown. Prior to the adoption of the Constitution in 1874 the Legis- lature had power, by special Act of Assembly, to create cor- porations, and the right to hold land was generally conferred, though sometimes with restrictions as to quantity and value. There were also statutes allowing the courts to create corpo- rations for many purposes. Since the new Constitution, the power of the Legislature to grant charters has been taken away, but the statutes remain in force. 1 There are very many statutes conferring upon the courts power to erect cor- porations for many purposes, and manufacturing, mining and trading companies may be created by articles of association or certificate recorded in the recorder's office and registered in the office of the Secretary of the Commonwealth, and in each of these statutes there is a provision limiting the quantity and value of the real estate which such corporation can hold." 1 The Eoman Catholic Bishops of Philadelphia and Pittsburg were made a corporation sole by the Act of 28 February, 1844 (P. L. 62), but this Act was repealed by the Act of 6 December, 1855 (P. L. 330). 2 As to purchase of land by a corporation ultra vires, see Faulk- ner's Appeal, 11 W. N. U. 48. 356 THE LAW OF REAL ESTATE AND Corporations have a fee simple in lands for purposes of alienation, but it is said that they have only a determinable fee for purposes of enjoyment, that is, on 1he dissolution of the corporation the land reverts to the grantor or his heirs. 1 But the alienation of the land by the corporation defeats this pos- sibility of a reverter. The Act of 9 April, 1856, 2 provides that in case of a dissolution the effects of the corporation shall be divided among the corporators entitled thereto, but not so as to divert property from any religious, literary or charitable use to which it was devoted. It was long a question whether a corporation could be a trustee. In the Columbia Bridge Company v. Kline, de- cided in the Supreme Court in 1825, Judge Gibson decided that it could, and the opinion was not reported at the time because the court were not free from doubt on the question, 3 but it has since been settled, that for a charitable use or for any purpose not inconsistent with the objects of its creation, a corporation may be a trustee. 4 This formed one of the principal questions raised in the great case of VidaL v. Girard's Executors, 5 where it was held that a municipal corporation might take property as trustee although the trust was not within the scope of the direct purposes of its institution, but entirely distinct and apart from it. Of course, where the corporation is expressly authorized by the Legislature, as in the case of the numerous trust com- panies in Philadelphia, it may act as trustee, executor, guar- dian or in any other representative or fiduciary capacity. Unincorporated Societies cannot hold lands except as trustees for a charitable use. They are quasi partnerships, except in cases of charity, 6 and each member is liable for all 1 2 Bl. Com. * 256. 2 Purd. Dig., p. 354, pi. 90. 3 Brightley's Rep., 320. * The Mayor, etc. v. Elliott, 3 Rawle, 170 (Wills' Hospital.) 5 2 Howard, 129. 6 Thomas v. Ellmaker, 1 Parsons, 111. CONVEYANCING IN PENNSYLVANIA. 357 the debts and contracts of the society which are contracted with his approbation or ratified by him subsequently, 1 and they may contract by their agent and are bound by his agree- ments. 2 The liability of the individual member is limited, how- ever, to contracts made or ratified by himself. The consent may be given either before or after the contract. 3 But the law favours charities, and an unincorporated society may take and hold real estate for any charitable use. 4 The charitable uses in England were regulated by the statute of 43 Eliz. c. 4, 5 which is not strictly in force in this State because the modes of proceeding directed by it were inapplicable. But the spirit of the act is part of the common law of Pennsyl- vania adopted by common usage and statutory recognition. A gift to the poor of a congregation, and one for the edu- cation of young students for the ministry, were held char- itable uses. 6 So gifts to a school-house and congregation ; 7 to the subscribers for the erection and support of a school- house and place of worship. 8 Every religious use, free from superstition, is a charity. A legacy to the city to be ex- pended in planting shade trees is a charitable use ; so, a bequest to a university to endow a professorship of the fine aits. 9 Even where there is no trustee, the gift to a charity is not allowed to fail, but the courts will appoint a trustee, or the gift will vest as soon as the charity has acquired a 1 Whitmer v. Schlatter and 167 others, 2 Kawle, 359. 2 Ridgely v. Dobson, 3 W. & S. 118. This case arose from a claim for books sold to an unincorporated society called the Bristol Lyceum and charged to the society. Suit was brought against all the mem- bers, but only one appeared and pleaded. 3 Ash v. Guie, 10 W. N. C. 198 (case of a Masonic Lodge). 4 An unincorporated church to the use of which property has been conveyed has the legal title and by its trustees may maintain an action of ejectment. Fernsler v. Seibert, 4 Amer. 196. 2 Co. Inst. 707. 6 Witman v. Len, 17 S. & R. 91. 7 Morrison v. Beizer, 2 VV. & S. 81. 8 McKissick t>. Pickle, 4 Har. 140. 9 Oresson's Appeal, 6 Cas. 437. 358 THE LAW OP REAL ESTATE AND capacity to take. 1 A devise to an infidel society, hereafter to be incorporated, " to be held and disposed of by them for the purpose of building a hall for the free discussion of religion, politics, etc.," was held void, there being no trustee in existence who could take ; and this not being a charity, a trustee was necessary. 2 And even though the trustee be an unincorporated religious society, and though the objects of the charity be uncertain, still a charitable use will not fail, for the power and discretion of selecting the objects may be well vested in and exercised by such a society. 3 The subject of charities is regulated in Pennsylvania by our own Act of 26 April, 1855, 4 which restricted the amount of property which might be held to $5,000 per an- num, without express legislative sanction, and forbade ac- cumulations of principal beyond that point. The eleventh section of the act, which has given rise to much remark and some litigation, avoids all dispositions by deed or will in favour of charity, unless the same be done by deed or will attested by two credible witnesses, disinterested at the time, and at least one calendar month before the testator's or grantor's decease. 5 Partners. Whatever is partnership property acquires a commercial character, and so, when real estate is part of the 1 McGirr v. Aaron, 1 P. & W. 49. 2 Zeisweiss v. James, 13 P. F. Sm. 465. 3 Pickering v. Shotwell, 10 Barr, 23. This case arose on a devise to the monthly meeting of Friends, as a fund for the distribution of good books among poor people in the back part of Pennsylvania, or to the support of a free school near Philadelphia. 4 Purd. Dig., p. 2.50, pi. 22, seq. 5 Purd. Dig., p. 252, pi. 27. Where a testator in his will makes a devise to charitable uses, and subsequently by a codicil to his will, made less than one calendar month before his death, makes a new devise to charitable uses, and revokes his former devise by a revocation, under the Act of 26 April, 1855, the devisee's next of kin or heir at law takes the devise as against the trustee of the former devise. Appeal of Lutheran Congregation, 3 Amer. 32. CONVEYANCING IN PEMNSYLVAKIA. 359 assets of a partnership, it is considered in equity as personal property. 1 But it is not all property owned by partners which is, strictly speaking, partnership property. Partners may own real estate as tenants in common, and in order to make it partnership property a writing is required under the statute of frauds, and it must be recorded. There is no presump- tion in favour of its being partnership property, to be drawn from the fact that the co-tenants were partners. 2 It is some- times' a question of considerable delicacy to determine whether real estate is partnership property, when it is ac- quired during the partnership, and paid for with part-, nership funds. The better opinion seems to be that a part- ner may withdraw a portion of his capital from the business and invest it in real estate ; or that they may all do so with- out making it partnership property. Certainly, if it is de- sired that real estate should be a part of the firm property, the only sale plan is to make a deed in regular form, with the intention to vest the land in the partners as partnership assets clearly expressed in it, and the deed duly recorded. The statute of frauds requires every estate in land of greater quantity than a lease for three years to be in writing, and this rule is more rigidly enforced in conveyances to part- nerships than in other cases. 3 One of the exceptions to the statute of frauds is the case of a resulting trust. Where real estate is conveyed to one man, the purchase money being paid by another, the equita- ble title to the land is in him who paid for it. This was applied to the case of a partnership in Lacy v Hall, 4 where a partner purchased lands with the money of the firm and took the title in his own name, and it was held that the land so 1 See Parson's Principles of Partnership, ? 13, srq. " Hale v. Henrie, 2 Watts, 143. 3 A lease of real estate is a chattel real, and may be shown by parol to be firm property, although the recorded title stands in the name of one partner. Brown v. Beecher, 22 W. JST. C. 325. * 1 Wr. 360. 360 THE LAW OP REAL ESTATE AND purchased was partnership property ; and in Erwin's Appeal, 1 where a partner purchased a lot for partnership purposes, and paid for it with partnership funds, taking title in his own name, it was held that he had but the legal title and the use was in the firm. Still, these cases carried the exception to the rule to an extreme point. In the case last mentioned, Judge Strong says, "The firm was engaged in distilling, and the lot adjoined their distillery. It was bought for an en- closure for the hogs to be fed at the distillery. Owing to a cause not foreseen, it was not used for that purpose; but if the beneficial interest was vested in the firm by purchase, the subsequent use, different from what was originally con- templated, would not divert it. The altered uses were still for the firm. It was farmed at the expense of the firm, its profits went into the firm, and it was in all respects treated as partnership property. There was nothing, then, either in the views with which the lot was bought, or in its subsequent use, to take the purchase out of the rule that the beneficial interest in land follows the ownership of the money which was paid for it. Had the title been taken in the names of both partners, without any assertion on its face that it was treated by them as partnership property, under the ruling in Hale v. Henrie, and several subsequent cases, they would have been but tenants in common. The absence of such an assertion would have been evidential that the partners did not intend to bring the property into partnership stock, but that they intended to take separate interests. The legal title was conveyed to Jacob Myers alone. We are now look- ing for the use. With the intention to buy for the firm, with nothing to indicate a severance of interests, and with the fact that the joint funds paid for the lot, it must be that the ben- eficial interest was in the firm as such." This effect of making partnership assets of real estate ! 3 Wr. 535. CONVEYANCING IN PENNSYLVANIA. 361 without a deed, can only happen in cases where a resulting trust is created by the land being bought and paid for with partnership funds during the existence of the partnership. A parol agreement to put land into a firm, or to consider it as firm property, made before the firm exists, cannot be valid to pass title either in law or equity ; and where the owner of a saw mill made a parol agreement of partnership, by which the other partners were to pay him one- half the value of the mill property, which was then to be considered partner- ship assets, it was held that no title to the mill, either legal or equitable, passed to the firm, although the purchase money agreed on was fully paid, because no deed was ever made to the firm. 1 The cases on the subject of the necessity of a writing as evidence of the intention and agreement of partners to make land part of the partnership stock, are fully reviewed in the case of Lefevre's Appeal, 2 and the result is, that, except in cases of fraud, a writing is indispensable; and that real estate can never become partnership assets by a mere parol agreement between partners, 3 particularly as against bona -fide purchasers, without notice. 4 Even where real estate is bought with the money of a firm, and title taken in the name of the firm, it is not enough to convert it into personalty as partnership property. In order to accomplish that result as to strangers, purchasers, mortgagees and creditors, the fact that the property is held as partnership property must be expressed on the face of the deed itself, or else some agree- ment, in writing, to that effect must have been executed by the members of the firm, and duly recorded. 5 1 McCormick's Appeal, 7 P. F. Sm. 54. 2 19 P. F. Sm. 122. 3 Ebbert's Appeal, 20 P. F. Sm. 79. 4 Appeal of Second National Bank, 2 Nor. 203 ; Gedder's Appeal, 3 Nor. 482. 5 Green, J., in Kepler v. Erie Dime Savings and Loan Co., 13 W. N. C. 21 ; Shafer's Appeal, 15 W. N. C. 407. 362 THE LAW OF REAL ESTATE AND The importance of this subject lies in the consequences of the conversion, viz : that the real estate so owned loses many of its ordinary incidents and features, and is considered in equity, so far as the interests of the individual partners are concerned, as personal property. No one partner has, so to speak, an absolute estate in the land. He has only a con- tingent interest in the profits or assets of the firm, after the debts are paid and the partnership wound up. Consequently, a purchaser from him, to whom he conveys his share, can take no more, and no more can be sold on execution for pay- ment of his individual debts; 1 and where lands are partner- ship assets, a judgment against an individual partner has no lien on his undivided interest therein as against subsequent liens against the firm. This was very clearly exemplified in the case of Lancaster Bank v. Myley. 2 Lands were bought at sheriff's sale by the firm of Holmes, Myers & Co., and a deed to that firm, as partners, made and recorded in the usual form, and the premises used in the business of the firm. On July 28, 1847, Myley obtained judgment against one of the partners for an individual debt, and on July 17, 1848,the firm mortgaged the land to the Lancaster Bank, nearly a year after the judgment had been entered. The property was afterwards sold by the sheriff, and it was held that Myley 's judgment had no lien, and the whole of the proceeds of sale were awarded to the parties entitled under the mortgage. When all the trusts of a partnership have been accom- plished, the partnership debts all paid, the business of the firm all settled, and all other assets divided among the part- ners, land which formed a part of the stock, but which remains unconverted, is thenceforth to be treated as real estate, and is subject to dower and descent, and liable to the liens of mortgages and judgments against the individual partners. 3 1 Keemer v. Arthurs, 7 Barr, 165 ; Du Bree v. Albert, 4 Out. 483. 2 1 Har. 544. 3 Belle D. Foster's Appeal, 2i P. F Sm. 391 ; s. c. 13 Am. Law Reg. 300; Meily v. Wood, 21 P. F. Sm. 488. CONVEYANCING IN PENNSYLVANIA. 363 Like all cases of equitable or imaginary conversion, the conversion is limited to the purposes of the trust, and will operate for those purposes only ; ' consequently, when they are accomplished, the fiction, which they made necessary, is also at an end. Lunatics, or, as Blackstone calls them," idiots and persons of non-sane memory/' cannot make valid contracts. The disability of a lunatic to deal with real estate therefore ex- tends only to such cases as arise upon a contract made or implied. By devise, descent or gift a lunatic is competent to take title without any restriction. The general presumption is in favour of every man's sanity, and therefore, when it is alleged that a certain per- son is or was non compos mentis it lies on the person mak- ing the averment to sustain it by»proof. This may be done in two ways — either by producing the record of a commission of lunacy duly returned with inquisition found, or by ordi- nary evidence. Where a person has been found a lunatic under the pro- ceedings directed in the Pennsylvania statute, after the find- ing has been confirmed by the decree of the court, his cap- acity to contract is gone and his deed is absolutely void. Prior to that time it is voidable only. 2 The object of the statute is to protect and guard the persons and estates of persons lacking capacity to take proper care of either, and to preserve the property of such from being squandered or improvidently used to their own injury and that of their families, if they have any ; and to give the lunatic capacity to control his estate after inquisition settling his condition in this respect, or to permit it to be controverted by evidence of a lucid interval at the moment of contracting, would leave the estates of these unfortunates as much exposed as before 1 Adams' Equity, *138. 2 2 Bl. Com. 291. 364 THE LAW OF REAL ESTATE AND proceedings were had in regard to them. The inquisition and decree of record are notice to all the world of the incapacity of the particular person to contract. 1 Provision is made in the statute for a proceeding by which the decree finding a man a lunatic may be superseded and determined, if the court are satisfied of his restoration to reason. 2 The effect of such a decree is to restore the capacity to contract, but the new capacity thus restored or acquired dates from the time of the order superseding the former decree, and contracts made previous to such order are void. In one extreme case, where the lunatic had been managing his own affairs for thirty-five years, the court said that this lapse of time was more than sufficient to raise the presumption that the pro- ceedings were abandoned and the decree discharged, and it seems, from the opinion, .that they thought twenty years would be sufficient to raise that presumption. 3 It is the duty of the commissioner and jury sitting as an inquest in a case of lunacy, to determine, among other things, with regard to one whom they shall find to be a lunatic " how long he hath been so, and if he enjoys lucid intervals." * This frequently fixes upon record a time prior to the com- mencement of the proceedings (and sometimes long prior), as the time during which the person inquired of has been insane. The rule with regard to contracts and conveyances made by the lunatic before the finding of the inquisition, and after the time fixed by them as the beginning of his lunacy, is that he is presumed to have been incompetent, but this presumption is only prima facie, and may be rebutted by proof of a lucid interval, 5 and in a case where the lunatic 1 Imhoff u. Witmer, 7 Cas. 243. 2 Purd. Dig., p. 1135, pi. 78. 3 Leckey v. Cunningham, 6 P. F. Sm. 372. ' Purd. Dig., p. 1125, pi. 3. 6 Klohs ti. Klohs,ll P. F. Sm. 215'; Bowman u. Van Baum,14 W. N. C. 185 ; Noel v. Karper, 3 P. F. Sm. 99 ; Wernet's Appeal, 8 W. N. C. 39. See as to a promissary note given by a lunatic, Lancaster Co. Bank v. Moore, 28 P. F. Sm. 407. CONVEYANCING IN PENNSYLVANIA. 365 had acted under the advice of counsel and had prudently used the money he obtained on the contract, it was held binding. 1 When there are no proceedings in court the question of competency depends upon testimony, as in other cases, and it is a question of fact for a jury, +he burden of proof be- ing on the person alleging the insanity. When it is proved that the party was insane at a time prior to or about the time of executing the conveyance or making the contract, the pre- sumption in favour of sanity is then rebutted, and the burden is shifted to the party sustaining the contract to show the ex- istence of a lucid interval. 2 There are manifestly many degrees of mental strength and of mental weakness, and the unsoundness of mind which is recognized and protected by the law relating to contracts varies from imbecility, or mere weakness of understanding, to absolute idiocy or cretinism, where life seems to be almost entirely automatic, the senses are almost, if not altogether, wanting, and nothing but the most urgent calls of nature ex- cite attention. The test seems to be, that to make a man a lunatic and incompetent to make a contract, there must be an essential privation of the reasoning powers or an in- capacity of understanding and acting with discretion in the ordinary affairs of life. Any weakness short of this is not of itself sufficient to avoid a contract unless accompanied by evidence of imposition or of undue influence, but it may be a material circumstance in establishing an inference of unfair dealing or fraud. 3 If the alleged lunatic had memory and judgment enough to understand the character of the act and the legal responsibility entailed upon him by it, the deed is 1 Kneedler's Appeal, 8 W. N.-C. 97 ; and see Earley's Appeal, 7 W. N.C. 515. 2 Roarers v. Walker, 6 Barr, 375. 3 Nace v. Boyer, 6 Cas. 110 ; Aiman v. Stout, 6 Wr. 114. 366 THE LAW OF REAL ESTATE AND good and cannot be avoided without proof of imposition or undue influence. 1 Drunkenness is temporary insanity, and it was formerly the law that a drunken man, being voluntarius dcemon, was responsible for all his acts,' 2 but it is now settled otherwise, and a contract made by a man who is either so drunk from the immediate effects of intoxication as not to know the con- sequence of his action, or is so feeble in mind and body from the effects of previous intoxication as to have lost his power of comprehending what he is doing, is void. 3 There is this difference between drunkenness and insanity, that one is a providential dispensation which the party is not respon- sible for, and the other is the result of his own folly. But although the contract of a drunken man is voidable, yet it is not void, and he may ratify and confirm it when he becoraee sober.* The rule mentioned by Blackstone that a party cannot blemish himself by pleading his own insanity is now ex- ploded, as being naturally absurd and against natural justice, 5 and it is a settled rule in Pennsylvania that a party may him- self avoid his acts, except those of record and contracts for necessaries and services rendered, by allegation and proof of his own insanity. 6 A lunatic may suffer a valid common recovery or bar him- self by a fine or feoffment with livery of seisin although his conveyance by deed is void. This effect of a fine and com- mon recovery is produced by the conclusive presumption arising from the judgment of a court of record, which cannot be impeached collaterally. Courts of justice attach so much 1 Noel v. Karper, 3 P. F. Sm. 99. 2 Co. Litt. 247a. 3 Wilson v. Bigger, 7 W. &S. Ill ; Bank v. M'Coy, 19 P. F. Sm. 204. 4 Bush v. Breinig, S Amer. 310.' " 2 Kent's Cora.* 451. « Bensell v. Chancellor, 5 Whart, 371. CONVEYANCING IN PENNSYLVANIA. 367 importance to the records of their proceedings that they will not allow any evidence or averment to contradict them.' A deed stands upon a different footing, and where an es- tate tail was barred by deed acknowledged in open court under the act of 1799, for barring entails, it was held that the question of the sanity of the testator could be raised in op- position to the deed. 2 The act of assembly relating to lunatics directs how the estate of a lunatic must be managed and how his debts are to be paid, and under the provisions of that act a judgment obtained against a lunatic, after inquisition found, gives the j udgment creditor no priority over other creditors who have no judgments. Where the judgment was obtained prior to the inquisition the law does not apply, and such judgments are liens and are entitled to be preferred as such. 3 The stat- utes of limitation do not run against lunatics or persons non compos mentis, nor does a presumption of grant arise against them from lapse of time. When a person is duly found and decreed to be a lunatic by the court a committee is appointed to take care of his person and estate, and the powers and duties of this com- mittee are prescribed by the statute.* These powers extend to the management of the real estate and every act which is necessary to protect it, but the real estate of a lunatic cannot be sold or mortgaged except under the order of the court. The committee has no power except such as is given him by the statute, and unless a power can be found in the law, or be fairly inferred from its general terms, it does not exist. 5 1 Snowden r. Dunlavey, 1 Jones, 525. 2 Wood v. Bayard, 13 P. F. Sm. 320. 6 Wright's Appeal, 8 Barr, 57. 4 Act 13 June, 1836 ; Purd. Dig., p. 1128, pi. 24 seq. 6 Kennedy v. Johnston, 15 P. F. Sm. 455. A committee of a lunatic cannot maintain an action against the wife of a lunatic to eject her and his children from the home provided for them by him while sane. Shaffer v. List, 4 Amer. 486. 36S THE LAW OF REAL ESTATE AND Habitual drunkards are lunatics under our statutes, and the same provision is made for inquiring into loss of capacity by habitual drunkenness, as exists in cases of lunacy. There is no distinction between them, and where a man is declared an habitual drunkard by inquisition and decree the law with respect to his capacity, his person and his estate is not differ- ent from that which would apply if he had been declared a lunatic. Many of the cases which have been cited arose upon this sort of statutory lunacy. Infants are all persons under twenty-one years of age. 1 They are not sui juris, and, therefore, have not full capacity to contract, and their relation to real estate depends for its peculiarity on this circumstance. They may take by gift, devise, or descent, for here no contract is made ; but they are incapacitated from buying or conveying, for here capacity to contract is indispensable. The law presumes that they are not fully capable of comprehending the consequences of their acts — that their judgment and understanding have not arrived at maturity. Though they may have reached the age of discretion, yet they have little knowledge and experi- ence, and the disability of the infant is for his protection. 2 In general, the acts of an infant are voidable only. They are good until avoided, either by his guardian during his minority, or by himself after coming of age. His power of attorney is absolutely void. 3 It is not clearly defined what acts are voidable only, and what are absolutely void. There are many conflicting opinions, but the tendency of the modern decisions is in favour of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only and subject to their election when they become of age, either to 1 Titman v. Titman, 14 P. F. Sm. 480. 2 Stoolfoos v. Jenkins, 12 S. & R. 399. s Knox v. Flack, 10 Har. 337. CONVEYANCING IN PENNSYLVANIA 369 affirm or disavow them ; l and this is the current of decisions in Pennsylvania. 2 When the infant comes of age he has it in his power to choose whether he will affirm or disaffirm his voidable act. The adult person with whom the voidable contract is made, is bound. 3 The election by the infant, after he has attained ma- jority, maybe either express or implied. Whereit isexpress, as by a deed of ratification,or disaffirmance, uaquestions can arise ; and where he intends to disaffirm, he ought to do so by some act so unequivocal as not to be open to misconstruction. Implied election is not so easy to determine. Where he does any act from which his intention to affirm the contract can be fairly inferred, he will be deemed to have made his elec- tion; as where he received rent upon a voidable lease, or conveyed in severalty lands which had been alloted to him by a voidable partition : but where he does nothing, but quietly remains inactive as if ignorant of his rights, it de- pends much upon the circumstances of each particular case, how far such supineness will be considered a tacit affirmance. In Urban v. Grimes,* a neglect to disaffirm a contract of sale of land for fourteen years was held not to be an affirmance of the sale ; and, perhaps, to be safe, twenty-one years ad- verse possession would be required to interpose an absolute bar under all circumstances, though, with a shorter time, slight circumstances would be deemed sufficient to raise a presumption of affirmance, especially if the circumstances were such as to render his silence inexcusable. The estates of infants are managed by guardians appointed by the orphans' courts. If the minor is under fourteen, the court appoints the guardian ; if over fourteen, the infant has ' 2 Kent's Com. *234. 2 Johnston v. Furnier, 19 P. F. Sm. 455. 3 McGinn v. Schaefler, 7 Watts, 414. 4 2 Grant's Cas. 96. 24 370 THE LAW OF REAL 1STATE AXD arrived at years of discretion and may choose his own guardian. The power of a guardian with regard to his-ward's real estate extends to every act necessary for its management and protection, but he cannot sell or mortgage it without the order of the court and under its direction, as provided in the acts of assembly on that subject. Infants may be trustees, and when they hold land as such, they may convey the same by order of the court; and their deed, made under the order of the court, is as good and effectual in law as if they were of full age. This is the pro- vision of the Act of 27 July, 1842, section 15/ A married woman who is under age may join her husband in a conveyance of his land so as to bar her dower. This is the effect of the Act of 22 March, 1865, section I, 2 but she cannot, even with her husband, make a valid conveyance of her own land until she attains twenty- one years of age. 3 No lapse of time runs against an infant. He is not barred by the statute until ten years after he has come of age ; nor then, if twenty-one years have not fully elapsed from the time his right of entry accrued; and no presumption of a grant is raised against an infant owner of lands from ad- verse user for the prescribed period. An infant may contract a valid marriage if over the age of consent, which is fourteen years in males and twelve in females, and upon marriage dower and curtesy attach. Persons under duress may affirm or avoid contracts made by reason of the duress. Their deeds are voidable. It is requisite to the validity of every contract thatit be the result of a free, hona fide exercise of the will. Where the contract is entered into because of the duress it is not binding. Duress may consist of violence or imprisonment to the per- 1 Purd. Dig. Tit. '-Trustees," 1654, pi. 45. See Gratz v. Lex, 4 Brewster, 292 ; 6 Phila. 183. ■' Purd. Dig. Tit." Deeds," 571, pi. 32. 3 Schrader v. Decker, 9 Barr, 14. CONVEYANCING IN PENNSYLVANIA. 371 son, or of threats which would shake the mind of a man of ordinary firmness. Duress cannot arise from lawful impris- onment ; the arrest must have been originally unlawful, or have become so by subsequent abuse of it. 1 Where the arrest was a mere pretext to procure the signing of the deed, and the deed was signed for the purpose of procuring a dis- charge from the arrest, and upon a promise to withdraw the prosecution, the court will deem that lawful process has been abused, and hold the deed void as obtained by duress. 2 The threats necessary to sustain an allegation of duress to avoid a contract on that ground alone, must be to do an unlawful act. A threat to sue for a good cause of action is not enough, 3 nor is a threat of a criminal prosecution. 4 1 Staufler v. Latshaw, 2 Watts, 167 ; Winder v. Smith, 6 W. & S. 429. 2 Work's Appeal, 9 P. F. Sm. 444. " Harris v. Tyson, 12 Har. 361. * Fulton v. Hood, 10 Cas. 372. 372 THE LAW OF REAL ESTATE AND CHAPTER VIII. WHO MAY ALIEN AND TO WHOM 1 — Continued. FEMES COVERT— THEIR DISABILITIES AT COMMON LAW—COy- VEYANCES BY, AT COMMON LAW AND UNDER PENN- SYLVANIA STATUTES— TRUSTS FOR SEPARATE USE- POWER OVER SEPARATE ESTATE— LANCASTER v. DOL- AN—ACT OF 11 APRIL, 1848— RIGHTS OF MARRIED WO- MEN UNDER— FEME SOLE TRADERS— ACTS OF 4 MAY, 1855, AND S APRIL, 1872— ACT OF S JUNE, 1887— ALIENS- TRUSTEES. Femes covert. — These are a very important class of persons, because questions with regard to their power to deal with real estate are of very frequent occurrence, and also to us as Pennsylvania lawyers, because our statutes have made such great changes in the common law with respect to the wife's estate, and the husband's estate in her lands. At common law husband and wife are one person, and that one is the husband. The wife's identity and individuality are merged or hidden during the existence of the marriage re- lation. She is "feme covert" a woman hidden, and her hus- band is her representative and head, and she can do nothing without his consent, which will bind either of them unless they subsequently choose. At common law the husband of a woman holding real es- tate becomes seised of the freehold, in the right of his wife. If they have issue capable of inheriting he becomes tenant by the curtesy, and his estate is one for his own life ; if they have no such issue his estate dies wih his wife, and if she should die before him the estate vests in her heirs unless he has by birth of issue become tenant by the curtesy. This es- tate of the husband was liable to be taken in execution and sold for his debts, and the person who purchased at the sale CONVEYANCING IN PENNSYLVANIA. 373 on such execution took an estate pur autre vie. It was owing mainly to this harsh feature of the law that statutes were passed here changing the whole effect of it, of which presently. The personal property of a married woman vested at common law in her husband ; those chattels which were in her possession absolutely and immediately upon marriage, and those which were of the class called chosen in action^ became his as soon as he recovered and reduced them into possession. The unity of husband and wife also prevented them from making contracts with each other, or granting anything to each other directly during the marriage, for that would be to suppose them to possess a separate and distinct existence. And so when any grant from one to the other is made the intervention of trustees is necessary. This is carried so far that contracts made before marriage between a man and woman who subsequently marry, are at common law avoided by the marriage. 1 This disability of a married woman to act for herself alone arises from the nature of the marriage contract and not from any supposed want of discretion in herself. Her case is not therefore analogous to those of lunatics and infants except so far as they are generally under disability. A married woman may purchase an estate without her hus- band's consent, and the conveyance to her is good, but the husband may avoid it during the marriage, and after his death she may disaffirm it herself. Her purchase of land is therefore voidable only ; her husband in his lifetime may dis- affirm it and divest the whole estate, but he must do so posi- tively. His silence is acquiescence. If he should affirm it still, after his death, she may choose whether she will affirm it or not, and she may set it aside if she chooses, or her heirs 1 1 Bl. Com. * 442 and notes. 37-t THE LAW OF REAL ESTATE AND may do so if she should die without having affirmed it. 1 In Heacock v. Fly 2 it was held that equity would rescind a conveyance to a married woman who had given a void bond and mortgage for part of the purchase money, and the vendor was allowed to recover back the property in eject- ment on re-paying the portion of the purchase money which had been paid him in cash, and this case was approved in Patterson v. Robinson. 3 In Schlosser's Appeal, 4 a married woman bought land which was subject to a judgment against the vendor. It was part of the contract that this judgment should be satisfied, and that she should give the creditor another for the same amount, which was done, and it was held that the new judgment, being confessed by a married woman, was void, and that it could not be considered a judgment for a part of the purchase money. But it may be considered as now settled that a married woman may, on the purchase of real estate, confess a judgment to secure a part of the purchase money, which will be a valid lien on the land conveyed. 5 Such a judgment would have no operation except on the land, the purchase money of which it was meant to secure. It would have no lien on her other property nor would it create a personal obligation upon her or her estate. 6 A married woman cannot borrow money with which to pay for property and give a valid bond and mortgage for it on the ground that it formed part of the purchase money. Such a bond and mortgage would be void. 7 ' Co. Litt. 3 a ; Baxter v. Smith, 6 Binn. 429. 2 2 Har. 540. 1 1 Cas. 82. 4 8 P. F. Sm. 493. 5 Patterson v. Robinson, 1 Cas. 81 ; Ramburger v. Ingraham, 2 Wr. 146 ; Conrad v. Shomo, 8 Wr. 193 ; Brunner's Appeal, 11 Wr. 73. '• Siuvtell's Appeal, 3 Nor. 306 ; Christner v. Hockstetter, 13 Out. 27. ' Grosser v. Hornung, 10 W. N. C. 463. Where a married woman owning no separate estate purchases a farm on credit and gives a mortgage, in which her husband joins, to secure CONVEYANCING IN PENNSYLVANIA. 375 At common law the deed of a married woman was abso- lutely void. 1 She could not convey her land either alone or in conjunction with her husband except by matter of record. When it was desired to convey her lands a fine was usually resorted to, which Blackstone says was about the only safe method whereby she could join in the sale, settlement or in- cumbrance of an estate. And in order to make a fine effec- tual as to a married woman it was necessary that she should be privately examined by the judge as to her voluntary con- sent, which removed the suspicion of compulsion of her hus- band. 2 Even a fine was not good unless the husband joined with his wife in levying it, but though it would bind her and her v heirs, yet her husband might avoid it if he chose. 3 There was a custom of London which was confirmed by the Stat. 34, 35 Hen. VIII., c. 22, that a husband and wife might con- vey her lands by deed enrolled, she being privately ex- amined as to her free consent. * This was probably the origin of our Pennsylvania mode of conveying the estates of married women which existed here prior to the Act of 1770, 1, the preamble to which recites that it had been theretofore the custom and usage ever since the settlement of the Province to transfer the estates of married women by deeds executed by husband and wife and afterwards acknowledged by them before a justice of the peace or a judge of the court. 1 Donance v. Scott, 3 Wh. 313. 2 2 Bl. Com. 355. 3 Shep. Touch. 7. See as to effect of levying a fine by a married woman Mr. Hargrave's notes to Co. Litt., 121 a. Lib. 2, note 171. ♦ Cruise, Title XXXII, Oh. II, s. 35. 5 Davey vj Turner, 1 Dall. 15. the entire- purchase money, the produce of the farm, raised by the joint efforts of husband and wife,, is liable to be seized in execu- tion by a judgment creditor of the husband. Sober o. Standart, 14 Out. 47. Where a married woman owning separate estate purchases real estate on its credit, there is no presumption that the property belongs to her husband. Simpson v. Kennedy, 18 W. H. C. 93. 376 THE LAW OP REAL ESTATE AND The origin of this private examination of a married woman upon her making a conveyance of her property, is clearly to be found in the rules respecting a fine suffered by her, and in substituting a deed enrolled for a court record we have only changed the form and not the substance. A fine, though in form an action at law, was nothing more than a species of conveyance, and the appearance of hostile parties compounding a difference by an agreement made after suit was commenced, was altogether fictitious, and was known and understood as a fiction by everyone. The important incidents of a fine suffered by a married woman to convey her title were : 1. The consent of her husband, without which the judge would not allow the fine. 2. The separate ex- amination, to ensure to her the exercise of her free will with- out any coercion or compulsion of her husband. 3. The notoriety of proceedings which were made the subject of the record of the court and were proclaimed in term time for several terms as required by statute. In substituting a deed these three important incidents have been retained. The deed of a married woman is invalid unless her husband shows his consent by joining in it as a party, and unless she is examined by an officer having authority separate and apart from her husband, and unless it is recorded in the proper office. Of the separate acknowledgment and recording I shall speak in their proper place. As to the necessity of the husband's being a party to the deed there can be no question. The deed of the wife alone is void. 1 The husband cannot show his consent in any other way, and where he is not a party to the deed parol evidence that he consented to it or that it was made under his direction or authority cannot be received. 2 The only legitimate evidence of his consent is his joining in the deed as a party and executing it as such. 3 1 Overseers v. Overseers, 2 Amer. 99 ; Updegrave v. Blum, 2 Crum. 259 ; Huffman v. Huffman, 3 Crum. 58. * Trimmer r. Heagy. 4 Har. 484. 3 Houck v. Bitter, 26 P. F. Sm. 280. CONVEYANCING IN PENNSYLVANIA. 377 So where a married man made a deed of conveyance of his real estate, his wife not joining in it, and afterwards, by a separate deed, the wife released her dower in the estate which had been conveyed, her husband not joining in the release, it was held that the release of dower was a nullity, although it was separately acknowledged. 1 In equity, however, for many purposes, this oneness of husband and wife is disregarded, and, consequently, many of the common law doctrines which depend upon this principle are not enforced. A. wife may have a separate estate, over which her husband has no control,' and in which he has no right or interest. Kecall the distinction between active and -passive trusts. An active trust, where the trustee is to collect and pay over the income of the trust estate to the cestui que trust, is valid and subsisting ; that is, it is a use not executed by the statute of uses, whether the cestui que trust be married or single, sui juris or not. But a passive trust, where the trustee has the legal title conveyed to him, without any duties to perform, as where he is to suffer and permit the cestui que trust to re- ceive and take the rents and profits, will be executed by the statute, and the seisin will vest in the cestui que trust unless there is some disability either in the nature of the estate granted by way of use, or in the cestui que trust, which renders it neces- sary that the trust should be kept alive in order to effectuate the lawful intention of the donor. It is to this latter class that an estate granted for the separate use of a married woman belongs. The legal estate is distinct from the equitable, and the holder of the legal title may be absolutely without any power what- ever — a mere lay figure. It was at one time held that an estate for the separate use of a married woman could not be created without the intervention of a trustee — some one in whom the legal title might vest — aDd in careful and regular 1 Willing v. Peters, 7 Barr, 287 ; Ulp v. Campbell, 7 Har. 361. 378 THE LAW OF REAL ESTATE AND conveyancing this is always done ;' yet it is now well settled that trustees are not indispensable. Whenever real estate is given or devised to, or settled upon a married woman, for her sole and separate use, equity will give effect to the inten- tion of the parties and protect the wife's interests against her husband and his creditors, 2 even to the extent of considering her husband a trustee for her ; 3 and though at common law a husband can make no contracts with his wife, yet in equity he may do so, and may give property to her for her separate use, provided it be reasonable, and does not operate as a fraud upon his creditors ; and equity will sustain and protect the gift, even though it be made directly, and without the inter- vention of a trustee. 4 In Pennsylvania, the power of a married woman over the estate settled to her separate use is only what is expressly given to her by the instrument creating such separate use. 5 The law is otherwise in England and in several of the United States, but in Pennsylvania it is thoroughly settled. Cer- tainly, if the object of the courts of equity in sustaining the separate use of a married woman be to protect her against her husband and his creditors, it is far from being accom- plished if it leaves her power to carry out his will and convey her property at his request. The question was not settled in England at the time of the Revolution, but there were many conflicting decisions, some of them, in general terms asserting the doctrine (which has since been adopted there) that a married woman was, with respect to her separate estate in equity, vested with all the powers of a feme sole, and others restricting her power to the disposing of the rents and profits, and denying her capacity to make any contracts or convey - 1 See Warden v. Lyons, 21 W. N. C. 129. 2 Story's Eq. § 1380. 3 Duffy v. The Insurance Co., S W. & S. 432 ; Dunston's Estate, 20 W. N. O. 32. 1 Ilerr's Appeal, 5 W. & S. 499. 5 Lancaster v. Dolan, 1 Rawle, 231. CONVEYANCING IN PENNSYLVANIA. 379 ances affecting the inheritance. When the question came up in the court of chancery of New York, it' received a most careful consideration from Chancellor Kent, who thoroughly reviewed the English cases in his opinion. 1 He came to the same conclusion that was reached by our Supreme Court in Lancaster v. Dolan, but on appeal his decision was reversed by the court of errors, and the English rule adopted. 2 Where no power to convey is given to a married woman in the instrument which creates he/ separate use, she is totally disabled from doing so. If there is no trustee, and she and her husband convey the land by deed duly acknowl- edged, the purchaser from them will take only the legal title, subject to the wife's equity, and as trustee for her separate use. 3 As I have already said, the usual and proper way of con- veying land to the separate use of a married woman, is to vest the legal title in a trustee, to hold for her sole and sepa- rate use, and defining the duties and powers of the trustee, if he is to have any, and the powers of the married woman. But a good deal of latitude is allowed, especially in wills, and it is enough if it clearly appears that it was the intention that the husband should have no interest whatever in the property. It is a question of intention, to be gathered from the whole scope and tenor of the instrument. But the inten- tion to exclude the husband must be manifest and decided ; * he is not to be deprived of his rights without clear and un- equivocal evidence that it was the will of the donor to give it to the wife, so that it should not be subject in any way to the control of the husband. 5 1 Methodist Church v. Jaques, 3 Johns. C R. 86. 2 Jacques v. The Methodist Church, 17 Johnson, 548. * Heath v. Knapp, 4 Barr, 228 ; O'Hara v. Dilworth, 22 P. F. Sm. 402. * Evans v. Knoer, 4 Rawle, 72. 5 Heck v. Clippenger, 5 Barr, 385. 380 THE LAW OF REAL ESTATE AND The Pennsylvania statutes have made great changes in the law which governs the estates of married women. The prin- cipal one, called commonly the Married Women's Act, con- sists of six sections out of the middle of an omnibus act, which treats of several other subjects. It was passed and ap- proved 11 April, 1848, and, with the statutes enacted since, it has made a married woman in Pennsylvania to-day a very different person from the one described by Blackstone in his first book as an especjal favourite of the law of England. Space permits but a brief indication here of the changes in the law so far as title to real estate is concerned, but a care- ful study of these statutes as contained in Purdon's Digest 1 will be of great interest and service. The statute enacts that every species and description of property, real and personal, belonging to a single woman, shall continue to be hers as fully after her marriage as before, and all property of every kind which accrues to a married woman during coverture in any way, shall be owned, used and enjoyed by her as her own separate property, and that her property shall not be liable for her husband's debts nor subject to his control in any way without her free consent in writing, acknowledged by her on a separate examination before a judge of the court of common pleas. The Supreme Court has been busy construing this statute and its supple- ments ever since it was passed. At first a liberal construc- tion was given and it was held that since the act a married woman had the same powers over her separate property as a feme sole. She might deal with it, make covenants respect- ing it, and even convey it without her husband joining in the deed. 2 She mignt sue in her own name without joining her husband. 3 This is the more literal construction of the Act, but as 1 Purd. Dig., Tit. " Marriage," p. 1150, pi. 13 seq. 2 Cumming's Appeal, 1 Jones, 272. 3 Goodyear v. Rumbaugh, 1 Har. 480. CONVEYANCING IN PENNSYLVANIA. 3S1 Judge Williams says, in Stoop v. Blackford, 1 it sticks too much in the bark. Qui hceret in litera hmret in cortice. It would defeat the very purpose and intention of the act, and these decisions were practically overruled so far as they de- clared that a feme covert had power or capacity to act with respect to her separate property like a feme sole. The lead- ing purpose of the act was to secure the property of a mar- ried woman against her husband and his creditors, and the construction now given to it is that it did not confer upon her any power or capacity which she did not possess before, except that of making a will and of binding her estate by a contract for necessaries and a contract for the repair or im- provement of her real estate. In Moore v. Cornell, 2 a doubt was expressed as to the power of a married woman to bind her separate property for its repair and improvement, but the subsequent case of Lip- pincott v. Leeds s decided that the power to contract for the necessary repairs of her property was a necessary implica- tion from the Act of 1848.* The nature of the wife's estate in her land is changed. Her husband and his creditors can no longer take the rents and profits against her will, but the act makes no change in the method of alienation. A wife's estate can only be con- veyed now as it could before the act, by a deed which her 1 3 Uas. 214. 2 18 P. F. Sm. 320. J 27 P. F. Sm. 420. ' 4 See Botts v. Knabb, 1 Crum. 28; s. c. 19 W. N. U. 343. It is es- sential to aver that the services performed were necessary for the vise, enjoyment and preservation of such property. Fenn v. Early, 18 W. N. C. 344; Shyock v. Buchanan, 6 Crum. 248. A married woman is not liable upon a bond or note given by her for money borrowed for repairs to her separate estate and actually applied to that purpose. Sellers v. Heinbaugh, 20 W. N. C. 183. See also Shuster v. Kaiser, 17 Id. 82 ; Spearman v. Ward, 18 Id. 554. As to suits for necessaries see De Zouche v. Tasker, 19 W. N. C. 450 ; Fenstermacher v. Xander, 19 Id. 341. 382 THE LAW OF REAL ESTATE AND husband joins in and executes as a party, and which she acknowledges separately, according to the Act of 1770, or by some act of her husband with the previous written consent of his wife, duly acknowledged before a judge of the com- mon pleas under the Act of 1848. Her separate deed in which he does not join is void as ever, 1 and so all her con- tracts except those just mentioned. The receipt of the purchase money by a married woman does not estop her from claiming the land conveyed by her deed in which her husband did not join. She may recover it without returning the purchase money, and although the purchaser has spent money in improving the property on the faith of her silence. 2 A married woman may give a warrant of attorney to bring suit without joining her husband. In Ervine v. Dowling, 3 the suit was brought in the name of husband and wife as plain- tiffs, and on a rule to file warrant the wife's warrant only was filed. Held, that she had a right to use his name for con- formity on securing him against costs. A married woman- may assign or satisfy a mortgage or judgment without her husband joining, 4 and if her husband be declared a lunatic she may sell or mortgage her land with- out him. 5 A married woman may sell or give her personal estate to her husband, or, with his consent, to a stranger. 6 1 Graham v. Long, 1-5 P. P. Sm. 385. 2 Glidden e. Strupler, 2 P. F. Sm. 400 ; affirmed in Buchanan v. Haz- zard, et ux., 9 W. N. C. 267, in which it was said that nothing is better settled than that a deed by a married woman, without joining her hus- band, is absolutely void, and evidence of the husband's verbal assent would not help the matter. Tumnier v. Heagy, 4 Har. 487. Nor can she be estopped by any subsequent act of ratification. Glidden v. Strupler, 2 P. P. Sm. 400. Nothing but a new deed, duly executed and acknowledged, could avail. See also, Huffman v. Huffman, 20 W. N. C. 484. " 9 W. N. C. 366. 4 Act of 25 May, 1878, P. L. 152. 5 Act of 25 May, 1878, P. L. 154. 6 Leiper's Appeal, 12 Out. 377. CONVEYANCING IN PENNSYLVANIA. 383 Property settled to the separate use of a married woman is not affected by the act of 1848. She has received no power from the act to deal with such property which she had not before. 1 It was otherwise decided in Haines v. Ellis, 2 but that case was expressly overruled in Wright v. Brown. 3 Feme sole traders. It has been held by the Supreme Court of Pennsylvania that there can be no feme sole trader in this State, except such as is authorized by some act of assembly.* The statutes on this subject may be found in Pur- don's Digest, title "Feme Sole Traders." The second section of the Act of 4 May, 1855, provides that a wife shall have all the rights of a feme sole trader " whensoever her husband, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for her, or shall desert her. * * * And her property, real and personal, howsoever acquired, shall be subject to her free and absolute disposal during life, or by will ; without any liability to be interfered with or obtained by such husband ; and in case of her intestacy shall go to her next of kin, as if he were previously dead." There has been a good deal of litigation as to the power of a married woman under this act. In Black v. Tricker, 5 it was decided that if the circumstances of the case are such as to bring the married woman within the protection of the act, she need not be declared a feme sole trader by the court. No decree is needed ; the privilege results if the abandon- ment by the husband be established in the ordinary way, by proofs ; and this was affirmed in Elsey v. McDaniel. 6 But, in- asmuch as the act only authorized her to dispose of her own property, it was held that while she could sell and convey 1 Shonk v. Brown, 11 P. F. Sm. 321. 2 12 Har. 253. 3 8 Wr. 224. * Jacobs v. Fetherstone, 6 W. & S. 346. 5 9 P. F. Sm. 13. 6 14 Nor. 472; see, also, Ellison r. Anderson, 14 Out. 486. 384 THE LAW OF REAL ESTATE AND her title to her own real estate, 1 yet a conveyance by herself alone did not destroy her husband's right of curtesy. 2 She had power to make a mortgage of her, land without the joinder of her husband. 3 In Moninger v. Ritner, 4 the former decisions were reviewed, and it was decided that Ayetsky v. Goery, as reported, was not law, and that the husband's curtesy was lost by his misconduct ; consequently, that her sole deed conveyed her title clear of any right or claim by him. It was also decided that the Act of 1855 was constitu- tional. 5 There is another statute of 3 April, 1872, 6 which secures to marrried women their earnings ; but this statute does not make the married woman coming under its provisions a feme sole trader. 1 Where a married woman comes under the pro- visions of this act, she may sue and be sued in her own name, without joining her husband. 8 The powers and rights of married women have been ex- tended by the Act of 3 June, 1887. 9 Since the passage of 1 Wilson v. Coursin, 22 P. F. Sm. 306. 2 Ayetsky v. Goery, 2 Brewster, 302. 1 Forman v. Hoster, 13 Nor. 418. 4 14 W. N. C. 99. 5 Ewing's Appeal, 5 Out. 371 ; Moninger v. Eitner, 8 Out. 298. B P. L. 35. 7 A married woman who has procured by judicial decree all the rights and benefits conferred on a married woman by the Act of April 3, 1872, P. L. 35, is entitled to receive and enjoy the product of her own labor, and the income and profits derived from her separate estate. She has a right to employ her husband to manage and superintend the busines in which she is engaged, and her creditors cannot seize in exe- cution her property produced by his superintendence and labor over and upon her separate estate. Whether or not the evidence shows her to be within this rule in any case is a question of fact for the jury. Baxter v. Maxwell, 6 Amer. 469. She may borrow money on her own credit, even if she have no separate estate. Orr v. Bornstein, 23 W. N. C. 356. 8 Bovard v. Kettering, 5 Out. 181 ; Elkins v. Bremer, 14 W. N. C. 422. See Baker v. Singer Manufacturing Co., 7 Crum. 363. 9 P. L. 332. The act is as follows : CONVEYANCING IN PENNSYLVANIA. 385 this act, a married woman has' the power to carry on a busi- ness as if she were a feme sole, and the proceeds of this AN ACT Relating to husband and wife, defining the rights to and power over their property to make conveyances and contracts, authorizing them to sue and be sued upon their contracts, and for torts, and defining the interest of husband and wife in the estate of each by will or otherwise. Section 1. That hereafter marriage shall not be held to impose any disability on or incapacity in a married woman as to the acquisition, ownership, possession, control, use or disposition of property of any kind in any trade or business in which she may engage, or for neces- saries, and for the use, enjoyment and improvement of her separate estate, real and personal, or her right and power to make contracts of any kind, and to give obligations binding herself therefor; but every married woman shall have the same right to acquire, hold, pos- sess, improve, control, use or dispose of her property, real and per- sonal, in possession or expectancy, in the same manner as if she were a feme sole, without the intervention of any trustee, and with all the rights and liabilities incident thereto, except as herein provided, as if she were not married ; and property of every kind owned, acquired or earned by a woman, before or during her marriage, shall belong to her' and not to her husband or his creditors : Provided however, That a married woman shall have no power to mortgage or convey her real estate, unless her husband join in such mortgage or conveyance. Section 2. A married woman shall be capable of entering into and rendering herself liable upon any contract relating to any trade or business in which she may engage, or for necessaries, and for the use, enjoyment and improvement of her separate estate, and for suing and being sued, either upon such contracts or for torts done to or commit- ted by her, in all respects as if she were a feme sole, and her husband need riot be joined with her as plaintiff, or defendant, or be made a party to any action, suit or legal proceeding of any kind brought by or against her in her individual right ; and any debt, damages, or costs recovered by her in any such action, suit or proceeding shall be her separate property ; and any debt, damages or costs recovered against her in any such action, suit or other proceeding shall be payable out of her separate property and not otherwise : Provided however, That nothing in this or the preceding section shall enable a married woman to become accommodation endorser, guarantor or surety for another. Section 3. A married woman may make, execute and deliver leases of her property, real and personal, and assignments, transfers and sales of her separate personal property, and notes, bills, drafts, bonds or obligations of any kind, and appoint attorneys to act for her, and it shall not be necessary for her husband to be made a party thereto or joined therein. 25 386 THE LAW OF REAL ESTATE AND business so conducted by her belong to her, and cannot be seized by her husband's creditors. 1 Aliens can take, but have no capacity at-common law to hold land; they may convey, subject to the Commonwealth's right of escheat or forfeiture. By statute they may hold land in Pennsylvania not exceeding in quantity five thousand acres, and in net yearly value $20,000. I have already re- ferred to the statutes, and also to the acts confirming titles derived through aliens. Papists' disabilities no longer disgrace the statute books of England. Trustees have no powers except those given by the' deed 1 L., a married woman possessed of certain stock, leased a farm on which she and her husband were at the time residing. She worked the farm and at the same time carried on a summer boarding-house, by which means she paid her rent, wages, etc. A creditor of her hus- band levied upon the stock and crops upon the farm, all of which, except the original stock and their progeny, were proceeds of the busi- ness conducted by her, as aforesaid. L. claimed the property levied on as hers. Held, that the property was hers, as she was entitled to all the products of the business conducted by her. Wayne v. Lewis, 23 W. N. U. 441. Under this act, a married woman cannot be arrested on a capias in an action upon a tort committed by her during cov- erture. Vocht v. Kuhlence, 4 Crum. 365. Prior to 3 June, 1887, a married woman gave a promissory note, which she renewed after that date. Held, that she was liable on the renewed note. Brooks v. Mer- chants ' Bank, 23 W. N. C. 502. fn Small v. Small, 24 W. N. C. 452, the question arose whether section 4 of the act authorized a wife to sue her husband directly, and in her own name, for money received by him from her separate estate, and the court held that it did not. Section 4. Husband and wife shall have the same civil remedies upon contracts in their own name and right, against all persons for the protection and recovery of their separate property as unmarried per- sons. Section 5. A married woman may dispose of her property, real and personal, by last will and testament in writing, signed by her or man- ifested by her mark or cross, made by her at the end thereof, in the same manner as if she were unmarried. Section 6. This act shall be known as " The Married Persons' Property Act." Section 7. All acts. inconsistent herewith are hereby repealed. CONVEYANCING IN PENNSYLVANIA. 387 or will creating the trust, or such as may be incident to the proper management of the estate. They cannot sell or con- vey unless power is especially given, or under the direction of the court having jurisdiction over the trust. A trustee'(and this includes as well guardians, committees, executors, assignees and all fiduciaries) should never buy at his own sale. He cannot deal impartially when he is both buyer and seller, and he should not place himself in a pos- ition where he might find his interest conflict with his duty. His purchase, if he does buy, is voidable. He is held to have bought for the benefit of his cestuis que trust if they choos"e to take. But he may buy at his own sale, if the court specially allow him to do so, upon notice to all the persons interested, and he may buy at a sheriff's sale, for that is not his sale and is public and open to all. There he has no con trol. 1 This is a general rule which applies to all persons who stand in a relation of trust and confidence to others. An at- torney-at-law is within the rule, and if he buys at a sheriff's sale he buys for his client. If an attorney for the plaintiff in the execution buys land from the sheriff for a less price than is sufficient to pay the judgment on which the execu- tion was issued he will be held to have bought for his client. 2 In a conveyance by trustees all must join in the deed. 3 There is no such thing as an " acting trustee " unless it is warranted by the settlement.* 1 Dundas' Appeal, 14 P. F. Sra. 325. 2 Leisenfing v. Black, 5 Watts, 303 ; Barrett v. Bamber, 31 P. F. Sm. 247. 3 Vandever's Appeal, 8 W. & S. 409. 4 McMurtrie v. Penna Co., 9 Phila. Rep. 529. 388 THE LAW OF REAL ESTATE AND CHAPTER IX. ALIENATION— SEISIN— THE ENGLISH STATUTE OF FRAUDS AND THE PENNSYLVANIA ACT OF 21 MARCH, 1772— WHAT WRITING IS NECESSARY— WHAT ESTATES ARE WITHIN THE STATUTE— EXCEPTIONS TO THE STATUTE — PART PERFORMANCE— JUDICIAL SALES- LANDS IN OTHER STATES— EQUITABLE ESTATES— ACT OF 23 APRIL, 1856— TRUSTS BY OPERATION OF LAW. The next subject of study will be the various methods of alienation, and the evidence required to establish a valid transfer of title. In considering these we will follow the divisions of the subject as they appear in Blackstone, intro- ducing from time to time such matters, germane to the sub- ject, as have been made necessary by modern decisions and statutes. Generally, then, there are four species of common assur- ances. 1. Deeds, or matters in pais- 2. Matters of record. 3. Special custom. 4. Devise. The most common method of transferring title to land now is by deed, and though a deed was not absolutely necessary until the time of Charles II , yet it is probable that from a very early period nearly every alienation of lands was ac- companied by some written evidence, although the writing was not the important thing which gave validity to the trans- fer of title. The old common law regarded seisin as evi- dence of ownership, and no transfer of title to land was good until livery of seisin was made to the alienee. So if the owner of land made two deeds of feoffment of the same land, and made livery of seisin to the tenant who had the latest deed, this passed the title, for he that had the last deed had the first seisin, and therefore he was the feudatory, be- CONVEYANCING IN PENNSYLVANIA. 389 cause, by the notoriety of the livery coram paribus, the feud passed. 1 For the deed without livery passed nothing, while the livery was good and available without any deed. 2 Seisin was not a mere corporal possession of the land. It included that and something more. It was the possession by a freeholder. A tenant for years had no seisin, he held as the bailiff of the freeholder, and had none of the rights which seisin conferred. The freeholder, who had seisin, was a person of some importance. He was one of the pares curiae, and the right to vote and to serve on juries, etc., were incident to his freehold. The transfer of this seisin was therefore a matter of some interest, and to render it effectual it was required to be done openly and in the presence of credible witnesses. Indeed, according to the strict feudal law, it was necessary that livery should be made in presence of the freeholders of the neighborhood, and upon the land which was to be transferred. 3 As civilization and refinement progressed, and estates in land became more and more complex and divided in quan- tity of interest and time of enjoyment, in a word, as the feudal restraints upon the alienation of lands from time to time wore off, written evidence of the contracts, conditions and stipulations upon which lands were conveyed became more and more indispensable. The introduction of uses, and the construction put by the courts upon the Statute of Uses, also tended greatly to render the doctrines of seisin of less importance, for by these means lands could be transferred without livery of seisin. Before the statute the court of chancery enforced the performance of the duty of the feoffee to uses as well in favour of an assignee of the use as of the 1 Gilbert on Tenures, 77. 2 Litt. I 66, Co. Litt. 51 b. 3 For an account of the ceremonies which accompanied livery of seisin, see 2 Bl. Com. ch. 20, p. *311, and Co. Litt. 48 a, 48 b. See Digby, Hist. Law Real Prop., p. 122 seq. 390 THE LAW OF REAL ESTATE AND original cestui que use, and after the statute a use, which the statute executed into a seisin, was raised upon a bargain and sale of lands and payment of the consideration. The noto- riety of the livery, however, was the feature of chief import- ance, and this was attained with regard to the new species of conveyance which grew up alter the statute of uses, by an- other statute, passed the same year, requiring deeds to be enrolled. But of this presently. At last, by the. statute of 29 Car. II.. c 3, {anno 1677,) a writing was made necessary to the valid transfer of title to real estate, and all interests and estates in lands which were of greater quantity than leases for three years. 1 This statute is not in force in Pennsylvania, yet our Supreme Court have followed the English decisions upon it, as guides to the in- terpretation of our own. Our Statute of Frauds was adopted 21 March, 1772. 2 "All leases, estates, interest of freehold or term of years, or any uncertain interest of, in or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to ha^e any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding, except, nevertheless, all leases not exceeding the term of three years from the making thereof. And, moreover, no leases, estates or interests, either of freehold or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall at any time be assigned, granted or 1 Robert's Diff. Brit. Stat. 304. 2 See Purd. Dig., Title, " Frauds and Perjuries," p. S30, pi. 1. CONVEYANCING IN PENNSYLVANIA. 391 surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereto lawfully authorized by writing or by act and operation of law." This is the first section of the act and was copied from, or rather condensed from, the first three sections of the statute of 29 Car. II, just referred to. The fourth and seventh sections of the British Statute also relate to contracts required to be in writing, and although they are not in force, yet the English decisions upon them have been adopted by our courts. 1 So much of the fourth section of the British Statute as re- lates to actions for breach of contracts respecting lands was enacted as the fifth section of the Pennsylvania Act of 22 April 1856, 2 but it only remained in force one year, when it was repealed, 3 so that an action may be brought to recover damages for the breach of a parol contract to sell real estate, but the court limit the amount of damages to be recovered in such an action to the actual damage of the plaintiff. He cannot recover for the loss of his bargain, and the seller can- not recover the price of his land, for that would be to repeal the statute in toto.* The plaintiff may recover any expendi- ture he has made and any actual damage he has suffered, but the value of the land which was sold and the price agreed to be paid for it form no elements in making up the damages. 5 1. What writing is necessary. As a general rule, therefore, it is indispensable to a valid conveyance of lands, or of any interest or estate in them, that there should be a writing. But the writing need not be 1 Pugh v. Good, 3 W. & S. 57. 2 P. L. 533. 3 Act of 13 May, 1857, P. L. 500. 4 Schriver v. Eckenrode, 9 W. N. C. 161 ; Ewing v. Thompson, 16 P. F. 8m. 382; Thompson v. Sheplar, 22 P. F. Sm. 160. 5 Harris v. Harris, 20 P. F. 8m. 170 ; McNair v. Compton, 11 Gas. 23 ; Bender v. Bender, 1 Wr. 419 ; Zimmerman v. Galbraitb, Leg. Int. 1884, p. 430. 392 THE LAW OF REAL ESTATE AND in the form of a deed to come up to the requirements of the statute. No form of words is necessary, and it need not be under seal. The statute only requires that it should be signed. A receipt or a letter is sufficient if it contains all the necessary elements of a contract — the price, terms of payment, and a sufficient description of the property. In Colt v. Selden, 1 a contract was held sufficient which was in ' the form of a letter from the purchaser, with an endorsement of acceptance on the back of it, signed by the owner of the land ; and in McFarson's Appeal, 2 the court say : " Any memorandum in writing indicative of the intent of the parties, and so precise as to enable the inquirers to ascertain the terms of the contract, the land to be conveyed and the price to be paid for it, is sufficient." But the writing must contain all the terms of the contract. It is not sufficient if it leaves any essential part to be proved by parol. So a re- ceipt of a part payment of the purchase money of a certain piece of land, in which the total amount of the price was not mentioned,was held not to be a compliance with the act ; 3 and it is equally fatal if the land be not sufficiently described to point out clearly what was intended. 4 So, also, the writing must be between the parties or their agents, otherwise it would not be a contract, but rather an admission or recital of one, made to a stranger. 5 In short, the " note in writing " required by the statute, although it may be in any form, must yet contain all the essential elements of a contract of sale or gift. It must describe the land with certainty, name the price to be paid and the time and terms of payment, and the parties who make it. If it fall short of this it is not sufficient. 1 5 Watts, 528. 2 1 Jones, 510. 3 Soles v. Hickman, 8 Har. 181. 4 Ferguson v. Staver, 9 Gas. 411; See Mason v. Ammon, 2 Urum. 127; Mellor v. Davison, 8 Crum. 298. 5 Allen o. Allen. 9 Wr. 468. CONVEYANCING IN PENNSYLVANIA. 393 The statute requires that the note in writing shall be signed by the party creating or granting the estate or his agent. Consequently, only the vendor need sign. The object of the act was to prevent the owners of real estate from having their right in the same affected by means of parol evidence, except to the extent of short leases. It had been found from long experience that men had been defrauded of their rights by credit being given to verbal testimony which was untrue, either from the want of recollection or the perjury of wit- nesses. It was therefore the intention of the statute to pro- tect the owner of the land by making it necessary that his written contract should be had before his title could be affected. This is accomplished when he signs the convey- ance, and there is no reason why the purchaser should sign, because he is not parting with title to land, but is only bind- ing himself for the payment of money, and is not therefore within either the letter or the spirit of the statute. It is therefore sufficient if the vendee accept the contract with- out signing, and if he does so by an unequivocal act, such as taking possession, he is bound by his contract. 1 In one case, the agreement in question was signed only by the ven- dor and left it optional with the vendee to take the land within ten days. The vendee gave notice of his acceptance verbally within the time, and the court held the agreement good under the statute. 2 Where there is a written contract for the sale of lands, which has not been substantially performed in part, an action must be brought to enforce it within five years from its date, unless a longer time is named in the contract, or the party who is to be charged with it acknowledges in writing the contract to subsist within that time. After five years the action cannot be maintained. 3 1 Lowryu.Mehaffey,10 Watts, 387. 2 . Smith & Fleck's Appeal, 19 P. F. Sm. 474. 3 Act of 22 April, 1856, sec. 6; Purd. Dig., p. 1064, pi. 14. .394 THE LAW OP REAL ESTATE AND 2. What estates are within the statute. Generally speaking, all estates and interests in land, whether legal or equitable are within the statute. The words of the statute are very comprehensive : " No leases, estates or interests, either of freehold or term of years, or any uncer- tain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments." They include undivided inter- ests, 1 and extend to all partitions by agreement, 2 and to agreements for exchange of lands, 3 and, generally, to all incorporeal hereditaments.* A contract for standing timber is within the statute, for that is an interest in land, 5 and an easement of a drain or conduit of water cannot be assigned, granted or surrendered without a writing or by act and operation of law. 6 Where a contract affecting any interest in lands — except a lease for not more than three years — is made by means of an agent, the act expressly requires that such agent shall be lawfully authorized in writing.' I have passed somewhat hurriedly in review the general scope of the statute, in order to come lo • the very im- portant — 3. Exceptions, or cases which are not within the statute. There are cases where a title to real estate may be trans- ferred without any writing, but upon a contract resting en- tirely upon verbal testimony. The most common of these is where there has .been such a performance as would make it a fraud to rescind the contract. 1 Galbreath v. Galbreath, 5 Watts, 146. 2 Snively v. Luce, 1 Watts, 69; Gratz v. Gratz, 4 Rawle, ill. 3 Johnston v. Johnston, 6 Watts, 372. 4 Huff v. McCauley, 3 P. F. Sm. 210. 5 Pattison's Appeal, 11 P. F. Sm. 294; Miller v. Zufall, 3 Amer. 317. 6 Erb v. Brown, 19 P. F. Sm. 218. Where there is a conversion of land by a direction to sell in a will, the interest of a distributee in the land may be transferred by parol. Mellon v. Reed, 8 Crum. 1. 7 Dodds v. Dodds, 9 Barr, 315. CONVEYANCING IN PENNSYLVANIA. 395 Part performance. The Legislature has denned " part performance." By the Act of 10 March, 1818, section l, 1 provision is made for enforcing a parol contract for the sale of lands made by an owner who afterwards dies, in cases " where such contract shall have been so far in part executed as to render it unjust to rescind the same." It was formerly thought that a payment of part of the purchase money, or giving security for it, was such a part performance as took a contract for the sale of lands out of the operation of the Statute of Frauds, but that doctrine has been finally overthrown. The mere payment of money can be compensated, and it is, therefore, no irreparable injury to the purchaser to enforce the statute, 2 and nothing is to be considered a part performance which does not put the pur- chaser into a situation which will make it a fraud on him not to enforce the contract. The essential thing is posses- sion ; and nothing short of exclusive possession of the land taken in pursuance of the contract will suffice to render a verbal contract for the sale and conveyance of it so valid and binding upon the vendor as to enable specific performance of it to be enforced. 3 The possession to take the case out of the statute must be in pursuance of the contract. 4 The continued possession of one who was in before the contract was made, will not avail. It is said that the law looks upon a »hange of the posses- sion as, in a sense, an equivalent for the writing which the statute requires ; as evidence of the bargain and sale it is substantially as good as could be afforded by a writing, 5 and, therefore, there must be the publicity which attends an open transfer ; and as the transfer of possession must be in pursu- 1 Purd. Dig. "Contracts of Deced.," p. 329, pi. 6. 2 Dankel v. Balliat, 8 W. N. U. 387. 3 Eobertson v. Robertson, 9 Watts, 41. * Birkbeck v. Kelly, 19 W. N. C. 422. 5 Strong, J., in Hill v. Myers, 7 Wr. 172. 396 THE LAW OP REAL ESTATE AND ance of the contract, it follows that it must be made after the contract is made, and in execution of it. 1 The possession taken under the agreement must be co extensive with the purchase ; that is, the purchaser must have possession of all the property sold to him. Where the bargain was for two pieces of real estate, and the vendee took possession of only one of them, the contract was not so far performed as to be out of the ban of the statute. 2 The vendee must have exclusive possession ; nothing else would produce the notoriety of the change of possession which is required, which must be such as to notify the neighbours that a change has taken place. The possession must be defined by boundaries. A sale of one hundred acres off the end of a farm, with no metes and bounds specified from which it could appear exactly which particular land was meant, is not sufficiently definite to take the case out of the statute. 3 Possession alone, without some other act, such as pay- ment of part of the purchase money, or improvement, is not enough. " I doubt very much," said Gibson C. J., " whether a mere delivery of possession without more, be sufficient to take the case out of the statute. Although it be a partial execution of the contract, I am inclined to think it altogether insufficient to produce such an effect. To hold it to be so, would be directly in the teeth of the statute. I apprehend that it is only where great injustice and injury would be done to the vendee, by turning him out of the possession acquired under a verbal contract for the sale of land, and where he might be without a remedy affording an adequate compensa- tion, that the statute ought to be held not to embrace the case. The bare loss of possession, it is conceived, cannot be such 1 Aitkin v. Young, 2 Jones, 24. 2 Allen's Est., 1W.&S. 383. (This case contains a learned review by Kennedy J. of the English and Pennsylvania cases.) 3 Frye v. Shepler, 7 Barr, 91. CONVEYANCING IN PENNSYLVANIA. 397 case, because it may be fully compensated by the recovery of damages from the seller." ' And where in such a contract services are substituted for purchase money, there must be not only the assumption of exclusive possession of the prop- erty in pursuance of the contract, but also such a perform- ance in full or in part as cannot be compensated in damages. Where such part performance consists only of labour, clear- ing and fencing land, the erection of farm buildings, and the furnishing of provisions and fuel, it is not sufficient to take the contract out of the operation of the statute. 2 Where there is an exchange of lands, there are what might be called two sales of real estate, each of the parties to the contract parting with the title to land, and, therefore, both coming under the statute, which requires both to sign a note in writing. When the exchange is made by parol, the rule as to part performance is not different from the case of a parol sale. A clear, explicit and unambiguous contract, and a taking of possession under and in pursuance of the contract, are as much required in a parol exchange as in a sale by parol, but there is a marked difference in the evidence which establishes the possession. A sale is confined to a subject coming from a single side. It has no relation to, or de- pendence on, any other subject. But an exchange neces- sarily has a subject on each side which stands related to the other. One is the equivalent of the other; so much so that the law implies a contract of warranty from the act of ex- 1 Galbreath v. Galbreath, 5 Watts, 146 ; Dougan v. Blocker, 12 Har. 28; Moore v. Small, 7 Har. 467 ; Hart v. Carroll, 5 W. N. U. 376; Troup v. Troup, 6 W. N. G. 90 ; Ballard v. Ward, 8 Nor. 358. 2 Moyer's Appeal, 9 Out. 432. " To take the case of a parol sale of land out of the Statute of Frauds, the vendee must take actual, open, notorious, exclusive and continuous possession of the premises in pursuance of the contract, and where the whole purchase money has not been paid, he must have made such improvements thereon as cannot reasonably be cpmpensated in dam- ages." Miller v. Zufall, 3 Amer. 317. 398 THE LAW OF REAL ESTATE AND changing. If, therefore, the evidence shows a clear, un- equivocal and complete taking possession of one of the sub- jects of the exchange, by the party owning the other subject, it strengthens the evidence of a possession taken by the opposite party of the corresponding subject. Certainly, the change of possession must be established as to both of the properties exchanged, but if the evidence as to one be clear and unequivocal, the evidence as to the change of possession of the other will be greatly helped and strengthened by it, and the requirements of the law are not as stringent as if it were the case of a parol sale. 1 The same is true of a parol partition, consummated by possession. 2 Boundary lines, when disputed, may be settled by parol agreement, and such agreement is not within the statute. 3 Lastly, the express contract must be clearly proved ; all the essential elements of a contract must be affirmatively shown. The proof must be such as would warrant a decree for specific performance in a court of equity ; clearly what the contract was, by express proof and not by evidence from which an implied contract would be inferred ; that it was fair and conscionable, founded in sufficient consideration, and so far executed that it would be a fraud on the vendee not to execute it fully.' Both sides of the contract must be shown ; the promise to convey is not enough. Such a promise requires a consideration to be shown, or it is nudum pactum 1 Moss v. Culver, 14 P. F. Sin. 414 ; Birkbeck r. Kelly, 19 W. N. C. 422; Erie Railroad Co. v. Knowles, 20 W. i\. C. 131. 2 Calhoun v. Hays, 8 W. & S. 127 : Rider v. Maul. 10 Wr. 376; Maul v. Rider, 1 P. F. Sm. 382. A partition which merely severs the relation existing between ten- ants in common, in the undivided whole, and vests title to a corre- spondent part in severalty, is not such a sale or transfer of title as will be affected by the Statute of Frauds. Mellon v. Reed, 4 Amer. 647. 3 Kellum v. Smith,.15 P. F. Sm. 86. * Overmyer v. Koerner, 2 W. N, C. 6. CONVEYANCING IN PENNSYLVANIA. 399 and void. The price and terms of payment must be proved. When this is not done, the case falls within the statute and the contract is void and will not be enforced ; * but, where the contract is clearly proved, part payment of the purchase money made, and possession delivered in pursuance of the contract, the sale is good without writing. 2 The equitable doctrine which takes the case out of the statute and makes the verbal contract effectual, applies as much in favour of the vendee as of the vendor, and the remedies are mutual. 3 Judicial sales form another exception to the statute. A purchaser at sheriff's sale is bound although no writing is signed by him ; he does not part with title to real estate, and his contract is not within the statute, and the sheriff need not sign.* And a sale under the decree of the orphans' court stands upon the same footing. The signature of the admin- istrator who makes the sale under the direction of the court would be without value unless the sale was confirmed by the court, and totally useless after it was confirmed. The statute was not designed to operate on judicial sales, but upon con- tracts in the current of business, and sales between indi- viduals. 5 The Pennsylvania statute does not -apply to lands in an- other State ; and on a parol contract for the sale of land in Ohio, the vendor sued and recovered the purchase money. 6 Equitable estates. Formerly trust estates might be created by parol, 7 although when created they required a writing to convey them. This subject is now governed by statute. Greenlee v. Greenlee, 10 Har. 225 ; Lord's Appeal, 9 Out. 451. 2 Milliken v. Dravo, 17 P. F. Sm. 230; see Brinser v. Anderson, 20 W. 1ST. C. 505. » McMurray's Appeal, 13 W. N. C. 1S6. 4 Emley v. Drum, 12 Cas. 123. s King v. Gunnison, 4 Barr, 171. 6 Siegel v. Robinson, 6 P. P. Sm. 19. ' Murphy v. Hubert, 7 Barr, 420. 400 THE LAW OF REAL ESTATE AND The Act of 22 April, 1856, section 4, 1 requires all declara- tions or creations of trusts or confidences of any lands, tenements or hereditaments, and all grants and assignments thereof to be in writing, signed by the party holding the title, or else to be void ; except trusts which arise by operation of law. This exception of trusts which arise by operation of law, meant to distinguish between those trusts which arose upon a simple agreement, and those which the law raised for the prevention of actual fraud ; such as resulting trusts, where the title is taken in the name of one person, while the con- sideration is paid with the money of another. The effect of the section is that a trust can no longer be created by agree- ment merely without a writing. 2 The trusts excepted from this section were made the sub- ject of another. The sixth section provides that no action shall be maintained to enforce any equity of redemption, or to enforce any implied or resulting trust as to realty, but within five years after any such equity or trust accrued, un- less such trust shall haye been acknowledged by writing to subsist within five years, by the party to be charged there- with. 3 If the trusts arise from a fraud, then the time begins to run only from the discovery of it, or when the party de- frauded might with reasonable diligence have discovered it. The section limiting actions for these implied trusts to five years from the time the trust was created, or the fraud dis- covered, has been amended so as to exclude attorneys-at-law, by the Act of 27 March. 1865. 4 As to lands purchased or held by them, of or for their clients, they remain as before the Act of 1856 was passed. The trusts which arise from operation of law, are re- 1 Purd. Dig. p. 831, pi. 3. ' Barnet u. Dougherty, 8 Cas. 372. " Purd. Dig. p. 1064, pi. 14. * Purd. Dig. p. 1065, pi. 15. CONVEYANCING IN PENNSYLVANIA. 401 suiting trusts, and those arising from the fraud of the party who procures or holds the title. Where one procures a title which he could not have obtained except by confidence reposed in him, and abuses the confidence so reposed, he be- comes a trustee by his own wrong, and the statute intended to prevent frauds cannot be used by him to shield, his own fraud. 1 The writings which are held sufficient under the Statute of Frauds, are not sufficient deeds for the conveyance of the legal title to real estate ; most of them referred t&> in the cases cited were mere executory agreements, to make a good title, which a court of equity would enforce by a deeree for a specific performance. But in Pennsylvania for a long time there was no court of equity, and the' courts did equity through common law forms, and actions of ejectment were sustained and successfully defended on these contracts, and justice done as to enforcing payment of the purchase money by conditional verdicts. And while a title under these in- formal contracts was not a good, marketable title, which the owner could force an unwilling purchaser to take, it was abundantly valid to enable him to maintain and defend his possession of the land. 2 1 Seichrist's Appeal, 16 P. F. Sm. 237 ; Faust v. Haas, 23 P. F. Sm. 295; Kistler's Appeal, 23 P. F. Sm. 393. Where one buys property at sheriff's sale, with a verbal agreement to hold it in trust for the defendant, it is a parol contract, and trans- fers no title to the land. Kimmel v. Smith, 2 Crum. 183 ; Salsbury v. Black, 4 Crum. 200, 207. 2 See as to " Part Performance," Lester v. Foxcroft, 1 Ldg. Uas. in Eq. *625, and Am. notes. 26 402 THE LAW OF REAL ESTATE AND CHAPTER X. DEEDS—DEEDS-POLL AND INDENTURES— REQUISITES TO A DEED— COMMON LAW CONVEYANCES— ORIGIN AL— FE- OFFMENT— GIFT— GRANT— LEASE— EXCHANGE— PARTI- TION— DERIVITIVE — RELEASE— CON FIRM A TION — SUR- RENDER— ASSIGN MEN T— DEFEASANCE — CON VE YANCES UNDER STATUTE OF USES — COVENANT TO STAND SEISED— BARGAIN AND SALE— LEASE AND RELEASE- DEEDS TO LEAD AND DECLARE USES. A deed is a writing sealed and delivered by the parties. Because deeds are most commonly used in conveying title to real estate, it is quite a popular error to confine the defini- tion of deeds to such as are used for that purpose only. A remembrance of this short definition will prevent anyone from making this mistake. Bonds are deeds; and so are mortgages, leases, covenants, etc. Deeds of conveyance make only one species out of many which are all equally within the definition. The difference between a deed-poll and an indenture is learnedly explained by Blackstone. 1 Indenture is the appro- priate name of a deed to which there are two or more par- ties; a deed-poll is the deed of a single party. In Coke's time the distinction was of importance. He says, that although the deed was called in itself '' This Indenture," yet if it was not actually cut, instar dentium, it is no in- denture, because words cannot make it so. 2 The actual in- denting of a deed is not now of any importance. The mere act of cutting the top of the parchment or paper on which it is written can have no effect upon its contents ; and long ago, the want of such indenting was deemed a trifling omis- 1 2 Bl. Com. ch. 20. 2 Co. Litt. 229 a. CONVEYANCING IN PENNSYLVANIA. 403 sion, which might be done in court when the deed was offered in evidence. 1 There should be, strictly speaking, as many parts or copies of an indenture as there are parties to it, but this is omitted in practice, except in cases where several of the parties to it take estates or interests under the deed, as in cases where ground rents are reserved, or in cases of mutual covenants between parties, or leases. These parts are all alike, and together make one deed. One of them is called the original, the others the counterparts. Even this practice is not strictly followed in all cases, because when the deed is recorded properly, a certified copy of the record is as effectual in evi- dence as if the original were produced in court. The conclud- ing words of an indenture, " the said parties have interchange- ably set their hands and seals," show the custom of several parts. A deed poll may use the first person or the third person, and generally begins with "Know all men by these presents," or " To all to whom these presents may come," etc. An in- denture usually begins with the words " This Indenture," and is usually in the third person. The requisites or circumstances necessary to a deed are, briefly (more fully hereafter) : 1. Sufficient.parties, that is, a grantor with title and capacity to convey, and a grantee with capacity to take and hold. Of this capacity I have already spoken. 2. A sufficient consideration. There are two kinds of con- sideration, valuable and good. A valuable consideration is money or any other thing which bears a known value ; mar- riage is a valuable consideration. A good consideration is one which cannot be said to have a pecuniary value, but rests rather on moral grounds ; as the natural love and affec- tion which a man bears to his kindred, or the desire of pay- 1 Cruise Dig. Title XXXII eh. 1, s. 20-22. 404 THE LAW OP REAL ESTATE AND ing his debts and dividing his estate equally among his creditors. Under some circumstances a good consideration (as natural love and affection) is not enough, but a valuable consideration is required to render the deed effectual. 3. Writing or printing. Either is sufficienl, but the deed must be signed. Deeds partly printed are very common. All may be printed but the signature. i. Sufficient words, legally and orderly set forth. Capital letters begin the parts so as to catch the eye. 1. The premises. All that precedes the habendum — the date, the parties' names and descriptions, the recitals, the consideration and acknowledgment of receipt, proper and apt words of conveyance, the description of the thing granted, and the appurte- nances and exceptions, if any. 2. The Habendum declares the quantity of estate granted. S. The Tenendum declares the tenure. This is of no use now, and is, therefore, joined with the habendum. 4- The Reddendum. A reservation of rent, or services to grantor. 5. Conditions, or qualifications annexed to the estate. 6. Warranty, if the grantor means to warrant the title. 7. Covenants, of either party, to do or refrain from something, or that a certain thing is or shall be done. 8. Conclusion. Manner and time of execution. 5. Beading. If either party require it, the deed must be read, or it will not bind him. 6. Sealing and Signing. The Statute of Frauds requires a signature. A seal is necesary to make a deed, but not in- dispensable to convey title. , 7. Delivery. The deed is not perfect until delivery; it does not take effect until then. CONVEYANCING IN PENNSYLVANIA. 405 8. Attestation, is not necessary, but very convenient for proof. 9. Acknowledgment. 10. Recording. I only mention these now; I shall consider them at length hereafter. They are matters of much practical importance. There are, according to Blackstone, two kinds or species of deeds : Common law conveyances, and Statutory con- veyances, or those which derive their force from the Statute of Uses. Common Law Conveyances. Common law conveyances are divided into original, or primary, and derivative, or secondary. Original — Creating an estate, or transferring it to a person who has none. De- rivative — Enlarging, restraining, transferring or extinguish- ing an estate already created. The Original conveyances are feoffment, gift, grant, lease, exchange, and partition. The Derivative are release, con- firmation, surrender, assignment, and defeasance. I. Original Conveyances. 1. Feoffment was the appropriate deed for the conveyance of an estate in fee simple. Originally an infeoffment was the bestowing of a feud or -fief, as its name denotes, but just as the word feudum, or fee, which anciently meant an estate held upon tenure, came to have a secondary meaning, and to designate an estate of inheritance, so a feoffment came also to have a secondary signification, and now means a con- veyance of an estate of inheritance to a man and his heirs. The proper and usual words of a feoffment are, '' give, grant, and enfeoff," though no specific words are necessary. It has been already explained how a feoffment was always accompanied with livery of seisin, or the equivalent of feudal investiture. As this mode of conveyance is now obsolete, there is no need to dwell upon it. 1 1 See 2 Bl. Com. *310 ; Digby, Hist. Law Heal Prop., pp. 60, 122, 123. 406 THE LAW OF REAL ESTATE AND 2. Gift. This was the appropriate deed for the creation of an estate tail. It was a feoffment for an estate to the donee and the heirs of his body. The only difference be- tween a gift and a feoffment was in the nature of the estate which passed by it. Livery was necessary. 3. Grant. A grant was the appropriate deed for passing title to an incorporeal hereditament. They lie in grant, because from their nature there can be no seisin or corporal posses- sion of them, and, therefore, livery of them is impossible. The usual words of grant are " give and grant." The dis- tinction as to which hereditaments lie in livery and which in grant, has been abolished both in England and America. All now lie in grant, and livery only is not available to transfer any estate greater than a term of three years. 4. Lease. A lease is a conveyance of lands or tenements for life, for year's, or at will, but always for a less time than the lessor has in the premises. A valid lease may be made verbally for any time not exceeding three years. If a verbal lease is made for a longer period, it will be construed a ten- ancy at will, which means a tenancy from year to year. The proper words to make a lease are " demise, lease, and to farm let." Perhaps the most usual words are now, " let and de- mise," which are perfectly good and sufficient ; but no form of words is necessary. Leases for terms of years can hardly be said to rise to the dignity of conveyances. They are con- tracts for the possession and enjoyment of land on one side, and for a recompense or return of rent on the other; and whatever words are sufficient to explain the intention of the parties, that one should give up possession of the land to the other, and the other come into possession of it for a determi- nate time, amounts to a lease as effectually as if the most proper and pertinent words were used for that purpose. It may be in the form of a covenant, an agreement, or a license. If the requisites of a lease are present, the writing will be CONVEYANCING IN PENNSYLVANIA. 407 held to be a lease. 1 A license to inhabit amounts to a lease ; a license to enjoy a house from such a time to such a time, is a lease, and ought to be pleaded as such ; words in an agreement that A. shall hold and enjoy land, if not accom- panied by restraining words, amount to a present demise. 2 But it is not every contract which confers the right of occu- pying land that amounts to a lease, and an agreement may be made in which one man lets land to another, without creating the relation of landlord and tenant ; for, as calling a contract a license will not prevent its being construed as a lease, if it contains all the essential elements of a lease, so the use of the word " let," a proper and apt word for the making of a lease, will not make the contract a lease, if the stipulations and agreements contained in the contract show that it was the intention of the parties that a license or priv- ilege only should be granted. 8 A lease properly drawn should contain, clearly and accu- rately named and described, the lessor, the lessee, the thing demised, the beginning and the end of the term, the rent to be paid and the times of payment, and such covenants and stipulations as the circumstances of the case require and the parties may agree on. Most of these matters have already been considered in previous chapters. The lessor must have title or power vested in him, and have capacity to contract. He cannot make a lease which will endure longer than his own estate lasts. A lessee of a life tenant cannot keep possession against the reversioner or remainderman, although he will be entitled to emblements if he should be evicted by the death of the lessor before the end of his term. A tenant for years may sub-let the de- mised premises, or any part thereof, unless restrained by the 1 Moore v. Miller, 8 Barr, 272. 2 Watson v. O'Hern, 6 Watts, 368. 3 Callen v. Hilty, 2 Har. 286 ; Steel v. Frick, 6 P. F. Sm. 174. 408 THE LAW OF REAL ESTATE AND provisions of his lease. It is quite a usual provision in leases that the lessee shall not sub-let, without the written consent of the lessor. When this provision is in the form of a cov- enant, the breach of it, like the breach of any other cov- enant, subjects the lessee to an action for damages. If it is in the form of a condition, then forfeiture of the term fol- lows the breach, which may be enforced. Leases usually contain an express covenant for payment of rent. This cov- enant is binding on every assignee of the term, so long as he has possession of the land. It " runs with the land" and, therefore, one who claims title under the lease is bound by it, although he did not execute it. 1 But the lessee, who originally made the covenant, is also responsible for the breach of it ; he cannot free himself from the obligations of his covenant by ridding himself of his possession of the land. Even if the lessor accepts the assignee of the lessee as his tenant, and receives rent from him, still the covenant binds the original lessee, and he will be liable for all the rent which accrues and remains unpaid during the whole term of the lease. 2 He can only free himself from responsibility by showing a surrender of the term, accepted by the landlord, or a release. There are, also, implied covenants in a lease. The word " demise," or " grant," in a lease, has always been held suf- ficient to imply a covenant for quiet enjoyment, during the term ; so that, where a lessee was evicted during the term, he might have an action of covenant on his lease for dam- ages, with the same effect as if an express covenant for quiet enjoyment had been contained in the lease. 3 It was a ques- tion whether such a covenant, or a contract equivalent to it, was not implied where the word "demise " was not in the lease, 1 Weinder v. Foster, 2 P. & W. 23. 2 Frank v. Maguire, 6 Wr. 78. 3 1 Wms. Saunders, 322 a, note. CONVEYANCING IN PENNSYLVANIA. 409 or where the lease was by parol, from the mere act of leasing, or from the relation of landlord and tenant. In Pennsyl- vania the courts have determined that such a covenant is implied, and the lessor who has made a verbal lease is bound to protect his tenant in the quiet enjoyment of the demised premises during the term. 1 So there is a covenant to pay the rent implied from the words " yielding and paying," and an action of covenant may be maintained on them 2 . I shall have occasion again to consider covenants. The Act of 28 February, 1865, 3 provides a remedy for a landlord who has lost his lease, or who has no evidence of the beginning or conclusion of the term. He may notify the tenant that the lease is lost, and require him to furnish him, within thirty days, the date of the beginning of the term. If the tenant complies, he is bound by his answer ; if he does not comply, he may be dispossessed on three months' notice. If the tenant make affidavit that he is unable to comply, he may be dispossessed on six months' notice. 5. Exchange. An exchange is a mutual grant of equal in- terests, the one in consideration of the other. The peculiar effect of this conveyance was, that from the use of the word '' exchange" (which was indispensable) a mutual warranty was implied, 1 so that if the title to either tract of land turned out to be bad, and the party who took it in the exchange should be evicted, he had a right of entry into his former land, and might recover it back. It has resulted from this old rule of law that technical exchanges have been entirely aban- doned in modern conveyancing, both in England and America. It imposed upon a purchaser of either of the two tracts exchanged the double burden and risk of examining 1 Maule v. Ashmead, 8 Har. 482 ; Boss v. Dysart, 9 Cas. 452. * Royer v. Ake, 3 P. *A FIDE PURCHASERS AND MORTGAGEES FOR VALUABLE CONSIDERATION WITHOUT NOTICE— WHAT IS NOTICE OF AN UNRECORDED DEED— EFFECT OF POSSESSION- RECORDING OF MORTGAGES— ACT 28 MARCH, 1820— WHO ARE AFFECTED BY THE RECORD OF A DEED. We have considered the structure of a deed, such as is ordinarily used for conveying land in Pennsylvania ; let us now see what is required to give it force and validity. 1, Reading. 2. Execution. 3. Delivery. 4. Attestation. 5. Acknowledgment, or probate. 6. Recording. 1. Reading. If either party require that the deed should be read before it is executed, it must be done, and done cor- rectly ;* but the presumption is that a party executing a deed is acquainted with its contents. The Touchstone says : " If the party that is to seal the deed can read himself, and doth not, or, being an illiterate or a blind man, doth not require to hear the deed read, or the contents thereof declared, in these cases albeit the deed be contrary to his mind, yet it is good and unavoidable ; " a and commenting on this passage, 1 2 Bl. Com. 304. 2 Sheppard's Touchstone, 56. 452 TIIE LAW OP REAL ESTATE AND Gibson, C. J. says : " If a party who can read, will not read a deed put before him for execution, or if, being unable to read, he will not demand, to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection, either in equity or at law " ' Never- theless, fraud practiced upon a party to a deed, by which he was induced to sign a deed in ignorance of its contents, would undoubtedly induce a court of equity to reform it, or even set it aside altogether; 2 but this being in opposition to the general presumption of law, must be averred and strictly proved by the party opposing the deed. There is a manifest distinction between the case where an ignorant person signs a deed, the contents of which have been misrepresented to him, and where one is induced to sign a deed, knowing its contents, but misled by a fraudulent statement of facts concerning the transaction. In the one case it is not the deed of the party who signs and delivers it, for he never gave his assent to it, but thought he was exe- cuting something different. In the other case, it is the deed of the party, and if he wish to avoid it he must do so on the ground that he was defrauded by false inducements to sign it. 3 2. Execution. This consists of signing and sealing. Signing. 1 Each party to be bound by a deed should sign it, and have a seal opposite his name. This is the correct method of executing a deed. Prior to the Statute of Frauds, 29 Car. II, c. 3, sealing alone was sufficient to authenticate a deed. That statute required all contracts or conveyances by which an estate in lands greater than a term of three years was created or transferred, to be in writing and signed by the 1 Greenfield's Estate, 2 Har. 496. 1 In Green v. N. Buffalo Township, 6 P.F. Sm. 110, the contents of a bond were misrepresented to the obligor, who could not read, and he signed it in consequence of the misrepresentation. Hehl, that it was not his deed. Penna. R. R. Co. v. Shay, 3 W.N. C. 45. » Schuylkill Co. v. Copley, 17 P. F. Sm. 386. 4 As to necessity of signing, see Williams on Renl Prop., * 152. CONVEYANCING IN PENNSYLVANIA. 453 party creating or transferring the same. Since then sealing 'alone is not sufficient to give validity to a deed treating of land — it must be signed. In McDill v. McDill,' it was held that the signing of a deed was the material part of the execution. In ancient times, when writing was a rare accomplishment, and when the juries who were to judge of deeds were well acquainted with the seals of the parties, it was very natural that the sealing should be considered the important part of the execution ; but now few people have a distinct seal, and few know what the seals of others are, while handwritings are distinct, and the handwriting of a party to a deed may be well known to many persons. The change in the law is the natural and inevitable result of the change in the habits and circum- stances of the people. 2 A deed is good, if actually signed, no matter how bad the signature may be ; and it is a sufficient signing to satisfy the requirements of the Statute of Frauds, if the party receive the assistance of another in making the signature. In Pierce v. Hakes, 3 a deed offered in evidence was objected to because it was not signed by the party, or her agent law- fully authorized thereto in writing. The evidence was that Mrs. Jameson, the grantor, did not sign it herself, but it was signed in her presence by Lyman Hakes, and that she took hold of his hand. She afterwards acknowledged the deed before a judge. The deed was held to have been, in effect, signed by herself. A mark is a sufficient signature, but it should be attested by the person who writes the name of the party, who should sign as a subscribing witness. Sealing. A writing is not a deed unless it be sealed, but a seal is not necessary to make it operate as a conveyance of 1 1 Dall. 66 (decided in 1782). ■' Miller v. Ruble, Leg. Int. 1885, S05. 3 11 Har. 231. 454 THE LAW OP REAL ESTATE AND land. A certain effect is given to a sealed writing which is not allowed to one merely signed. An illustration of this? has already been given in the chapter on covenants. Except in the case of the statutory provision, an action of covenant cannot be sustained against one who has not sealed the deed. Besides this, a seal imports consideration, and even a volun- tary deed, where there is no actual consideration, will be sustained if it be under seal, 1 although this presumption of consideration does not arise until there is actual delivery of the deed. 2 It is said that the only exception to the general rule that a seal imports consideration, is in the case of an agreement in partial restraint of trade. In such covenanis the consideration must not only be actual, but must appear on the face of the deed. 3 The Pennsylvania law as to what constitutes a seal is very liberal. It was early held that it need not be wax or even wafer, but that an ink scroll, round, oblong, or square, meant; to represent a seal, is sufficient. 4 The question whether a paper is sealed or not is a question of law, to be determined by the court, and is not to be left to the jury. In Duncan v. Duncan 5 a deed was offered in evidence which was written on parchment, and opposite the signature of each grantor, and the signatures of the magistrates before whom the acknowledgments had been made, there was a horizontal slit in the parchment and a piece of blue ribbon was drawn through, extending along all the names ; the question was raised whether this constituted a seal or seals. " No doubt." says Judge Kennedy, u the scrivener intended that the rib- bon, which covered about five-eighths of an inch square 1 Mack's Appeal, 18 P. F. Sm. 231. 2 Pringle «. Pringle, 9 P. F. Sm. 286. 3 Gompers i>. Rochester, 6 P. F. Sm. 197. 1 A very curious and entertaining opinion of Judge Brackenridge, giving a history of the use of seals is to be found in Alexander v. Jameson, 5 Binn. 244. See also Cooper n. Rankin, 5 Binn. 615. > 1 Watts, 322. CONVEYANCING IN PENNSYLVANIA. 455 of the parchment at the end of each name, should, at the time of signing, have been covered with a seal of wax, and by means thereof have been attached to or incorporated with the parchment, which was neglected. In the conclu- sion of the conveyance the words ' we have set our hands and affixed our seals ' are inserted ; and likewise in each of the certificates it is stated to have been given 'under my hand and seal,' but no scroll, wax, wafer or anything more than the ribbon is used to 'denote a seal affixed to any of the signatures." On this state of facts it was held that it belonged to the court to determine by an inspection of the document whether it was sealed or not, and they were of opinion that it was not under seal. The assertion in a writing " we have hereto set our hands and seals," will not supply the actual want o'f a seal. 1 These points have been otherwise decided in England. In 1871 a deed, which had been sent out to Melbourne for execu- tion, came before the court of common pleas. It had, when sen t out, pieces of green ribbon attached to the places where the seal should be, but no wax, and when retnrned executed by the several parties, it was in the same condition. The attestation was " signed, sealed and delivered, etc." The acknowledg- ment before the mayor of Melbourne by the parties was, that the instrument was their act and deed. The court were unanimous that the deed was prima facie sealed. 2 It is proper that each one of the parties should have his separate seal, yet it is not indispensable. Several persons may bind themselves with one seal if each of them adopt it as his own. 3 The seal may be, and ordinarily is, affixed before sign- ing. It is sufficient if the party adopts it. In Watson v. Jones' the court allowed county commissioners to seal a deed at 1 Taylor v. Glaser, 2 S. & R. 504. 2 In re Sarah Jane Sandilands, L. R. 6 C. 1 J . 411. 3 Bowman v. Robb, 6 Barr, 302. 4 4 Nor. 117. 456 THE LAW OF REAL ESTATE AND the trial of an ejectment, and this was approved by the Supreme Court. Corporations, which are ideal artifical persons, execute their deeds by their common or corporate seal, which should be attested by the signature of their president and of the officer who has charge of the seal, usually the secretary. Corporations usually adopt a seal as their own common or corporate seal, and this should always be used But it seems that it is not necessary, and* in the Farmers' and Mechanics" Turnpike Co. v. McCullough, 1 an action of covenant against a corporation was sustained upon a written agreement which was signed by the president as such, with an ink seal opposite his name. 2 The seal is prima facie evidence that the deed was made by the authority of the corporation. 3 If nothing more than the seal appear the law will infer an authority from that, but if it be shown that the seal was affixed without authority, then the mere fixing of the seal- will not bind the corporation. The fact that an officer of the corporation has the custody of the seal does not give him the right to bind the corporation by affixing it to a deed. He must have authority from the corporation to use it as well as to keep it, and it is the duty of people to ascertain that authority and to inquire whether the affixing of the seal upon instruments, has been authorized by the corporation.* 3. Delivery. The deed being signed and sealed is ready for delivery. It is not a perfect deed until it is delivered; that completes it as a deed, and it takes effect from its delivery. It may be signed, sealed, witnessed, acknowledged and even recorded, and yet if it be not delivered it effects nothing, though these circumstances would afford strong evidence of 1 1 Uas. 303. 2 See Sharswood's note to 1 Bl. Com. 475. , St. John's Ch. v. Steinmetz, 6 Har. 273. 4 See charge of Judge Thayer in The Church i\ Wood, Leg. Gazette for 1K72, p. 18-9. St. Bartholomew's Ch. o. Wood, 11 P. F. Sm. 96. CONVEYANCING IN PENNSYLVANIA. 457 delivery. The delivery need not be to the grantee himself; delivery to any person, even a stranger, for him is sufficient. No ceremony or form whatever is necessary to a valid de- livery. It is very much a question of intention. Where the scrivener who was employed to prepare a deed left it at the office of a magistrate, and the grantor went there, exe- cuted and 'acknowledged the deed and left it there, it was held that' it was a good delivery to the grantee, and that in- structions from the grantor the next morning to the magis- trate not to deliver the deed until the purchase money was paid, came too late ; the delivery was absolute. 1 Delivery is a question of fact, and many circumstances have been considered by the courts from time to time as af- fording evidence more or less conclusive on the point. Thus possession of the deed by the grantee affords a strong pre- sumption in favour of delivery, 2 and e converso, the possession of it by the grantor is evidence the other way, though by no means conclusive. 3 It may have been delivered and then re- turned to him for safe keeping. 4 The fact that a deed has been recorded is entitled to great weight as evidence of de- livery, but is not conclusive. 5 The general rule is well settled that where a deed ap- pears to have been signed, sealed, delivered, acknowledged and recorded a purchaser has a right to act on the faith that this was all done as it purports to be, in proper form and by the proper parties. He cannot suppose it was surreptitiously taken from the grantor and put upon record by circumvention and fraud, and hence, before he can be deprived of his property, the facts which avoid his title must be proved by the grantor by unexceptionable evidence. 1 Blight v. Schenck, 10 Barr, 285. 2 Cover v. Manaway, 5 Amer. 338. 3 Duraind's Appeal, 1 Crum. 93. * Penna. Uo. v. Dovey, 14 P. P. Sm. 260 ; Souberbye v. Order, 1 Johns. Ch. 240. 5 Chess v. Chess, 1 P. & W. 34. 458 THE LAW OF REAL ESTATE' AND The effect of delivery is not always to absolutely perfect the title. Sometimes the deed is delivered to a third person as an escrow to take effect upon the performance of some conditions on the part of the grantee. In this case the deed is not perfect until the conditions be performed. 1 But if it be delivered to the grantee himself, although it be intended as an escrow, yet the delivery is absolute. If the agent with whom the deed is left as an escrow delivers it to the grantee without the performance of the conditions, the title of the grantee is voidable, but a bona Hole purchaser from him, with- out notice, will take a good title. 4. Attestation. The sealing and delivery of a deed are usu- ally attested by subscribing witnesses. This is not neces- sary. The deed is perfect and complete without it, except in the case of the assignment of a bond ; here the statute requires the assignment to be " under hand and seal, before two or more credible witnesses." 2 The witnesses need not see the grantor sign. It is enough if he acknowledges his signature to them. But the addition of subscribing witnesses after- wards, if made with fraudulent intent, may avoid the deed. 3 5. Acknowledgment — Probate. After a deed has been duly executed and delivered by the parties, it is, as respects them, a perfect deed. As respects others, however, if the deed be one which conveys title to real estate it must be acknowl- edged or proved and recorded in the proper office. The acknowledgment of a deed is necessary to fit it to be recorded, and if a deed be not properly acknowledged or proved, the record of it is a nullity. Such a record is no 1 Baum's App., 3 Amer. 58. 2 Act of 28 May, 1715. Purd. Dig., " Bonds," p. 192, pi. 7. The act of 26 April, 1855 (Purd. Dig., " Charities," p. 252, pi. 271, provides that no real or personal estate shall be bequeathed, devised or conveyed to a charitable use except by deed or will attested by two credible and disinterested witnesses at least one calendar month be- fore the decease of the testator or alienor. 3 Foust v. Renno, 8 Barr, 378; Helming v. Werkheiser, 8 Barr, 518. CONVEYANCING IN PENNSYLVANIA. 459 notice to any subsequent purchaser, nor can it be offered in evidence. 1 But the acknowledgment or probate serves an- other purpose. Deeds properly acknowledged or proved in accordance with the provisions of the statute may be offered in evidence (although not recorded) without further proof of their execution. The acknowledgment or probate is prima facie evidence of the execution and delivery of the deed. 2 The acknowledgment or probate must be made before some person duly authorized by law to take such acknowl- edgment. Where deeds are executed within the State they may be acknowledged before any one of the justices of the supreme court of Pennsylvania, any one of the president or associate judges of the court of common pleas, the mayor, recorder or aldermen of Philadelphia, Pittsburgh, Allegheny City, Car- bondale, Scranton, Williamsport or Lock Haven, the re- corder of deeds, all justices of the peace and notaries public. As to some of these, the power of taking acknowledgments has been recently conferred. 3 Acknowledgment or proof of deeds made out of the State may be made before any one of the following-named officials : The mayor or chief magistrate of the city, town or place where the deed is executed, under the public seal of the city, town or place ; any judge or justice of the supreme or su- perior court or court of common pleas, or of any court of pro- bate or court of record of any state or territory in the United States, certified under the hand of the judge and the seal of the court; any judge of the Supreme Court of the United 1 Heister v. Fortner, 2 Binn. 44. Whether a mortgage dated after acknowledgment can be recorded without a new acknowledgment, doubted. Solms v. McCullough, 5 Barr, 473. " Keichline v. Keichllne,4 P. F. Sm. 75. The certificate of acknowledgment of a deed, being a judicial act, is conclusive in the absence of fraud of the facts it contains. Cover v. Manaway, 5 Amer. 338 ; Cock v. Thornton, 12 Out. 637. 3 See Purd. Dig. p. 571-572, pi. 35-40 and notes. 460 THE LAW OF REAL ESTATE AND States, or of the United States District Court; any officer of any state or territory in the United States or the District of Columbia who is authorized by the laws of his own stale, territory or district to take acknowledgments of deeds to be recorded therein, the proof of his authority to be by the cer- tificate of the clerk or prothonotary of a court of record under the seal of the court; ambassadors, ministers plenipotentiary, charge, d'affaires, or other persons exercising ministerial func- tions, appointed by the United States ; consuls and vice con- suls of the United States, certified under their public official seals ; notaries public of any place, either within or without the United States, under their seal of office ; and commis- sioners for Pennsylvania appointed by the governor. 1 Where the person acknowledging or proving the deed is in the mili- tary service of the United States, such acknowledgment or probate may be made before any person holding the rank of major or any higher rank under a commission from the gov- ernor of this State. 2 It would take more space than can properly be spared to go further into the details, and to say in what cases evidence of the authority of persons making the certificate of acknowl- edgment is required. Generally speaking, it is a good rule always to have the fact that the person holds the office which he claims, and by virtue of which he has taken and certified the acknowledgment, attested by the certificate of a clerk or prothonotary of a court of record, under the seal of the court. This is not always necessary; it is, however, always prudent and satisfactory. The usual certificate of acknowledgment certifies that 1 he party to the deed appeared and acknowledged before the officer that the writing was his act and deed and that he de- sired it to be recorded as such. The venue sometimes heads ■Purd. Dig. p. bllseq. 2 Purd. Dig. p. 573, pi. 45. CONVEYANCING IN PENNSYLVANIA. 4:61 the acknowledgment, thuR : ''Philadelphia County, ««." This is not material. It should appear in the certificate who the officer is, so as to 'show his authority, but a mistake in the venue may be corrected by parol evidence. Where an acknowledgment was headed " Erie Co., set." and purported to be before " a justice of the peace of said county," whereas it was in fact made in Crawford county, before a justice of Crawford county, and the land was in Crawford county where the deed was recorded, it was held that the deed was prop- erly recorded, and the mistake in the venue was corrected by oral testimony. 1 Where a married woman makes a deed of real property to be valid and effectual as against her, her husband must be a party to it, and she must acknowledge it in a peculiar man- ner, prescribed by the act of 24 Feb. 1770, sec. 2. 2 After exe- cuting it she must appear before a proper officer, and in taking her acknowledgment he is required to examine her separate and apart from her husband, and to read, or otherwise make known to her the full contents of the deed or conveyance. She is then to declare, upon the separate examination, " that she did voluntarily and of her own free will and accord, seal, and as her act and deed deliver the said deed or conveyance without any coercion or compulsion of her said husband." It is only a deed concerning real estate which must be thus acknowledged. At common law a married woman's personalty became subject to the dominion of her husband. The Married Women's Act deprived him of this right, and vested the property in her " as fully after marriage as before," and it has been held that with the consent of her husband she may transfer herchoses in action without any formal ac- knowledgment. 3 1 Angier v. Schieffelin, 22 P. F. Sm. 106. 2 Purd. Dig., Title " Deeds and Mortgages," p. 568, pi. 22. 3 Bond v. Bunting, 28 P. F. Sm. 210 ; Fryer v. Rishell,3 Nor. 521 ; Dando's Appeal, 9WJ.C.5; Brown's Appeal, 9 W. N. C. 329. 462 THE LAW OF REAL ESTATE AND It is not always necessary now to certify that she was of full age. If the land is her husband's she may join him in the conveyance of it so far as to bar her dower, although she is a minor. 1 But in cases where it is necessary that a mar- ried woman should be of full age, as where she joins her hus- band in a deed for her own property, the certificate of the magistrate that she was of full age is not conclusive upon her, but she may show that she was a minor when she signed and delivered it. This is because the magistrate is not re- quired by the act to certify that the wife is of full age, for while his certificate is conclusive (except in cases of fraud) as to all the matters which the law requires him to certify, it is nothing more than the mere statement of a private person as to matters which he is not bound to record. 2 The only way in which such a defect can be cured is to have the deed re- acknowledged in the way required by the act, after the mar- ried woman comes of age. 3 The certificate of the officer taking the acknowledgment must show affirmatively that the married woman was ex- amined by him separate and apart from her husband, that he made known the contents of the deed to her, and that she declared her free voluntary consent to it, without any com- pulsion of her husband ; and if the certificate is incomplete, parol testimony is inadmissible to supply the deficiency. 4 The usual form of certificate in our printed deeds is very nearly in the words of the act. But it is not necessary that the cer- tificate should be in the words of the statute. A substantial compliance is sufficient. The omission of a word by a cleri- cal error will not affect the validity of the certificate. 5 1 Act of 22 Mch., 1865, Purd. Dig. " Deeds and Mortgages," p. 571, pi. 32. 2 Williams v. Baker, 21 P. F. Sm. 482. s Building Assn. v. Uook, 6 W. N. C.428. * Watson v. Bailey, 1 Binn, 470 ; Graham v. Long, 15 P. F. Sm. 383; and see a note in 9 Sm. Laws 126, citing some MS. cases not reported. 5 Hornbeck v. Building Assn., 7 Nor. 64. CONVEYANCING IN PENNSYLVANIA. 463 Defects in certificates of acknowledgment by married women made prior to 1 January, 1841, have been cured by the Act of 16 April, 1840, sec. 16,' and by the subsequent Act of 25 April, 1850, this was extended to that date, though this lat- ter act is very badly drawn. 2 In cases of fraud or imposition upon the wife, or where she acted under duress or moral constraint, parol evidence will be received to contradict the certificate of the acknowledg- ment by her, if it be also shown that the grantee in the deed knew of the wrong. 3 Less than actual duress will avoid an acknowledgment by a wife. It is enough if it be shown that the wife acted under moral constraint, that is, that by the threats, persecution and harshness of her husband she was forced to set aside her own free will and comply unwillingly with his wishes. To bind her she must be examined separate and apart from her husband, and then and there declare that her execution of the instrument is of her own free will and accord, and without any coercion or compulsion of her said husband. Whenever her acknowledgment is procured in violation and disregard of these absolute requirements, it is void, and this may be shown by parol evidence. 4 A bona fide purchaser who has no notice of the fraud or coercion is not affected by it. As to him, the certificate of the magistrate is conclusive, and cannot be called in ques- tion. 5 The right to question the validity of the acknowledg- 1 Purd. Dig.," Deeds and Mortgages," p. 577, pi. 67. 2 Journeay v. Gibson, 6 P. P. Sm. 57. See Acts of 25 May, 1874. and 26 May, 1874. Purd. Dig., " Deeds and Mortgages," p. 579, pi. 76-77. The xVct of 25 May, 1878, P. L. 149, authorized the courts of common pleas to reform a defective certificate of acknowledgment, upon a bill in equity filed for that purpose. When -an acknowledgment by a married woman may be impeached : Heeter v. Glasgow, 2 W. N. C. 1 ; and when it is conclusive : Miller v. Went- worth, 4 W. N. C. 82. 3 Michener v. Oavender, 2 Wr. 334 ; Covert). Manaway, 5 Amer. 338. * McCandless v. Engle, 1 P. F. Sm. 309. " Hall v. Patterson, 1 P. P. Sm. 289 ; Williams v. Baker, 21 P. P. Sm, 476. 464 THE LAW OF REAL ESTATE AND merit descends from the wife to her heirs, and may be exer- cised against any volunteer claiming under the deed. 1 The acknowledgment is nothing, unless the deed be de- livered, for delivery is necessary to make it a deed ; and, therefore, until delivery the wife may revoke her consent to the deed, even though she may have acknowledged it in due and proper form." It was held in Duncan v- Duncan, 3 that a seal was neces- sary to a certificate of acknowledgment. It is said that it was in consequence of this decision that the Act of 19 Feb- ruary, 1835, 4 was passed, which provided that the seal of the officer might be dispensed with. Some of the subsequent Acts of Assembly, however, expressly require the certificate to be sealed in certain cases ; and by the Act of 12 March, 1S69, 5 the magistrates of this city are expressly required to have official seals, with which they are to authenticate all their acts. Where a defective certificate of acknowledgment has been made, the notary or other officer who took the acknowledgment cannot subsequently, in the absence of the grantors, cure (he defect by a second certificate in due form of the original acknowledgment. 6 Probate. By the Act of 28 May, 1715, 7 it is provided that if the grantor be dead or cannot appear, the deed may be proved by the affidavit of the two subscribing witnesses, and by the Act of 18 March, 1775, 8 the oath of one witness- is suffi- cient. The usual method of probate is to endorse the affidavit of the witness, signed by him upon the deed, with the attesta- ' Darlington v. Darlington, 5 W. N. C. 529; s. c. Darlington's Ap- peal, 5 Nor. 512. '' Leland's Appeal, 1 Har. 85. 3 1 Watts, 322. ' ' Purd. Dig. " Deeds and Mortgages," p. 570, pi. 28. 6 Purd. Dig. " Justices," p. 977, pi. 29-30. " Enterprise Transit Co. v. Sbeedy, 7 Out. 492. 7 Purd. Dig. " Deeds and Mortgages," p. 568, pi. 20. 6 Ibid, p. 569, pi. 24. CONVEYANCING IN FENJSSYLVANIA. 465 tiou of the magistrate ; but it has been held that the certifi- cate of the magistrate is all that the act requires, and that it is sufficient if he certify that the witness appeared before him and made proof of the deed in proper form, without the witness signing. 1 The grantee in a deed has the right to make probate of it by the subscribing witnesses, whether it has been acknowl- edged or not ; but nothing should be contained in the affidavit or certificate of probate except proof of the execution and delivery. Where any matters beyond that are put in the certificate it is no proof whatever that they are as certified. As to such matters, the certificate or affidavit is only the ex parte statement of a witness, without opportunity for cross- examination, and cannot be admitted in evidence.' If there be no subscribing witness, and any party be dead, the hand- writing of such deceased party and of the survivors may be proved before a judge, and his certificate of proof by two witnesses entitles the deed to be recorded. 3 Stamps were required on deeds by various Acts of Con- gress, beginning with the Excise Tax Law, of July 1, 1862, which went into operation September 1, 1862. Many amend- ing statutes were passed, until all laws imposing stamps on instruments of writing (except bank checks) were repealed by Act of Congress 6 June, 1872, which went into operation 1 October, 1872. All deeds between these (wo dates, **. e., 1 July, 1862. and 1 October, 1872, should be stamped. There was, however, a proviso in the 758th section of the Internal Revenue Law of 30 June, 1864, " That the title of a pur- chaser of land by deed duly stamped, shall not be defeated or affected by want of a proper stamp on any deed conveying said land by any person from, through, or under whom, his 1 Dana v. Bank of U. S., 5 W. & S. 223 ; see p. 249. 2 Jordan v. Stewart, 11 Har. 244. 3 Act of 25 May, 1878. Purd. Dig. " Deeds and Mortgages," p. 569, pi. 25. 30 466 THE LAW OF REAL ESTATE AND grantor claims or holds title," and this has been re-enacted in several subsequent acts. Deeds of corporations are not acknowledged. The execution of the deed by the corporation is made by making proof of its seal, and the due affixing thereof to the deed. The ques- tion of authority is put at rest by the affidavit of the secre- tary or other officer ; and under the Act of 8 June, 1881, ' a copy of the minutes of the stockholders or directors author- izing the sale, etc., may be proved by the oath of the secre- tary or other proper custodian of the minutes, and such copy will then be competent evidence of the action of the corpor- ation, and may be recorded with the same effect as other writings relating to real estate. The receipt which is usually placed at the foot of the deed is evidence between the parties, but not conclusive ; it may be rebutted by proof. As against strangers it is not admis- sible in evidence, being an ex parte statement, not under oath. 2 But as between the parties or those claiming under them the receipt is a part of the deed, and when the deed has been properly acknowledged or proved, the receipt is entitled to be put on record with the deed, and to be offered in evi- dence. 3 6. Recording. The last requisite of a deed, to render it valid and complete, is that it shall be recorded. From the deeds made by Penn in England, we learn of his intention to establish an office for recording deeds when he should arrive here, and one of the first things which he did was to carry this intention into execution. The statutes for recording or, as it is sometimes called, registering deeds, had their origin in the same policy which had a large share in bringing about the Statute of Uses, and 1 P. L. -69. 2 Lloyd v. Lynch, 4 Cas. 419 ; Manufacturing Co. v. Dysart, 12 P. F. Sm. 65. 3 Kelly v. Dunlap, 3 P. & W. 136. CONVEYANCING IN PENNSYLVANIA. 467 that was to prevent the great evil of secret conveyances of land. In ancient times, the notoriety of livery before the freeholders gave sufficient publicity to transfers of seisin ; but when uses were introduced, transferable without livery, a secret conveyance might be made at pleasure. I have be- fore explained that the statute did not abolish uses. It pro- vided that the seisin should follow the use and unite with it, so that the evil of secret conveyances was not cured, but rather increased ; for now, by force of the statute, not only a use, but the seisin also, might be transferred by a secret deed between the parties and no man be the wiser. The same parliament which enacted the Statute of Uses, and in the same year, passed the Stat. 27 Hen. VIII., c. 16, requiring all bargains and sales of an estate of freehold to be enrolled within six months in one of the courts at Westminster, or with the custos rotulorum of the county where the lands lay. 1 This was the first recording act, and from this begin- ning the whole system of registering and recording deeds has sprung. Several attempts were made by the early settlers to make the recording of conveyances compulsory, but they were disallowed by the crown. 2 The first act which "was ap- proved was the Act of 28 May, 1715, which is still in force ; the eighth section of this act is substantially the same as the Stat. 27 Hen. VIII. Our subsequent Act of 18 March, 1775, is modeled after the British Statute of 7 Anne, c. 20. The Acts of Assembly which govern the recording of deeds are the old Act of 1715 and the Act of 18 March, 1775. There are many subsequent statutes, chiefly relating to the kind of instruments that may be recorded. a. What may be recorded. It is not every deed that may be lawfully put on record. Under the Acts of 1715 and 1775 only such instruments of writing as relate to lands, tene- 1 2 Bl. Com. * 338. 2 Sergeant's Land Lew, 230, ch. XXX YI. 468 THE LAW OF REAL ESTATE AND merits or hereditaments; those relating to personal property are not entitled to be recorded, and if they are actually re- corded, without authority, the record is a nullity. It is neither notice nor evidence. 1 It would be unfair to a subse- quent purchaser to hold him aifected with notice of a paper which he could not have expected to find on record. 2 Every instrument put on record must be first acknowl- edged or proved, as required by law, otherwise the record is of no effect. 3 b. What must he recorded. Every deed or instrument of writing by which title to lands, tenements or hereditaments is transferred or affected in law or in equity, must be put on record within six months from the time of its execution, if executed within the State, and within twelve months if exe- 1 Fitter v. Shotwell, 7 W. & S. 14. 2 Hellman v. Hellman, 4 Rawle, 444. For instruments not relating to real estate which may be recorded, see Purd. Dig., "Deeds and Mortgages," p. 580 seq., pi. 79-90. Releases of legacies and acquittances given to executors, administra- tors, trustees or guardians, Act 15 April, 1828. Patents, deeds of sheriffs, coroners, marshals, treasurers and deeds under order of court, Act 14 March, 1846. Receipts for taxes on unseated lands (duly acknowledged), Act 9 March, 1847. ' County commissioner's deeds, Act 5 April, 1849. Assignments of mortgage and letters of attorney to satisfy mort- gages, Act 9 April, 1849. Receipts on redemption of unseated lands sold for taxes, Act 25 April, 1850. Release of legacy out of Pennsylvania, Act 26 April, 1850. Letters of attorney executed out of the State, relating to personal property, Act 14 December, 1854. Releases executed in other States, Act 17 May, 1866. Soldiers' discharges, Act 8 April, 1868. Exemplifications of deeds recorded in other counties, Act 26 Jan- uary, 1870. 3 Simon v. Brown, 3 Yeates, 186 ; Improvement Co. v. Mitchell, 11 Cas. 269. Where one of several grantors executes and acknowledges a deed, it may be recorded, although execution and acknowledgment •by the other grantors is defective. Gill v, "Weston, 14 Out. 305. CONVEYANCING IN PENNSYLVANIA. 46,9 cuted out of the State, ' except leases not exceeding twenty- one years accompanied with actual occupation. A deed which has not been recorded as required by the statutes is void as against subsequent purchasers or mortgagees of the same land, for a valuable consideration, without notice, and nothing can save it but getting it on record before the second purchaser records his deed. 2 Of course if the deed gets upon record before any purchaser or mortgagee acquires an interest, it is recorded as to them, even if more tha» six months have elapsed between the date and the record of it. 3 None but purchasers and mortgagees for a valuable con- sideration are within the protection of the act. A person who receives a gift of the land in consideration of natural' love and affection is not protected, nor is a judgment creditor, for he is not a purchaser.' But a purchaser at sheriff's sale is within the act, and his title is good against all unrecorded conveyances from the defendant in the execution, of which he had no notice. 5 An assignee for creditors is not protected. 6 The most vexed question is, what is notice of an unre- corded deed ? For even a purchaser or mortgagee for a valu- able consideration is not protected against a prior unrecorded deed if he had notice of it. 7 Where express knowledge can 1 Construction of recording acts for deeds out of the State. Hultz v. Ackley, 13 P. F. Sm. 142. If the property conveyed lies in Philadel- phia (any city of the first-class) the deed, conveyance or writing must be recorded at once, after July 1, 1878. Act of 25 May, 1878, P. L. 151. Query : As to purchase money mortgages V Sheriff's deeds are not within the act. Foulke v. Millard, 12 Out. 230. 2 Hetherington u. Clark, 6 Cas. 393 ; Stiffler v. Retzloff, 20 W. N. C. 303 ; Hulett v. Mutual Life Ins. Co., 4 Amer. 142. 3 Penna. Salt Mfg. Co. v. Neel, 4 P. F. Sin. 9. The leaving of a deed or mortgage at the recorder's office to be re- corded is recording it, so far as the party is concerned. That is the time of record, although it may not be actually recorded for a long time afterwards. Brooke's Appeal, 14 P. F. Sm. 127; Shebel v. Bryden, 4 Amer. 147. 4 Cover v. Black, 1 Barr, 493. 6 Stewart v. Freeman, 10 Har. 120. 6 Mellon's Appeal, 8 Cas. 121. 7 Quein v. Smith, 12 Out. 325. 470 THE LAW OF KEAL ESTATE AND be proved, the case is clear, 1 but there may be a state of facts from which notice will be presumed, what we may call constructive notice, where there are circumstances which would lead a prudent man to inquire whether the vendor has not previously parted with his title ; what Judge Strong calls " such a visible state of things as is inconsistent with a perfect right in him who proposes to sell." The circum- stance chiefly relied on as giving constructive notice in such easels is the actual possession of the land, at the time of sale, by someone else. But for possession to be notice, it must be distinct and unequivocal, and it must be actual at the time of the subsequent sale. 2 A purchaser is bound to inquire ■ only of those on the land at the time of his purchase. He is not bound to take notice of the antecedent possession of third persons. 3 The Act of 1 April, 1 863, 4 gives a remedy to persons who claim title, under an unrecorded deed, which belongs to some one else. On six months' notice the person in possession of the deed is bound to put it on record, and if he refuses he may be compelled to do so by the decree of the court of com- mon pleas, enforced by attachment. By the Act of 28 March, 1820, mortgages are required to be recorded immediately. They have no lien until actually lodged for record, but they are good between the parties to them. 6 Purchase-money mortgages may be recorded at any time within sixty days, and their lien will then relate back to their date. 6 A record must be made in the proper 1 But notice to one who has bought of one who had no notice of an adverse claim is ineffectual. Heimbach's Appeal, 19 W. N". C. 69. 2 Lightner v. Mooney, 10 Watts, 407. 3 Meehan v. Williams, 12 Wr. 238, where the cases on this subject are cited and reviewed. Bugbee's Appeal, 14 Out. 331 ; Swank e. Phillips, 3 Amer. 482; Brinserv. Anderson, 20 W. N. U. 505. 4 Purd. Dig., "Deeds and Mortgages," p. 584, pi. 100-2. 5 Brooke's Appeal, 14 P. F. 8m. 127. " Dungan v. Ins. Co., 2 P. P. 8m. 253. The statute says " within sixty days after the execution thereof ; " CONVEYANCING IN PENNSYLVANIA. 471 office, 1 and in the proper county. 2 The subsequent purchaser or mortgagee, who is to be charged with notice, is bound to look in the proper place, and if that inquiry will not bring the deed to his knowledge, he ought not to be charged with constructive notice of it. The writing must be recorded in the proper book. A mort- gage not recorded in the proper book, and indexed as re- quired by statute, is unrecorded. 3 In the case of a mortgage the index is a material part of the record, and a mortgage not properly indexed is. not recorded so as to carry notice. 4 This is not applicable to a deed, the law not being the same. The statute as to mortgages requires an index, but those re- lating to deeds make no such requirements. 5 Where a mortgage is in the irregular form of a convey- ance, absolute on its face, with a separate defeasance, it can- not be made valid by recording the conveyance only in the deed book. It has been held that such a transaction is an unrecorded mortgage only, which conveys no notice to any- one, and has no lien as a mortgage. 6 Where there is a de- fective record of this kind it has been said that actual in- 1 Davis v. Selden, 5 Cas. 316. 2 Kerns v. Swope, 2 Watts, 75. 3 Luck's Appeal, 8 Wr. 519 (Judge Read's opinion giving an his- torical sketch of recorder's offices). Luck's Appeal is overruled, and Schell ». Stein qualified in Glading v. Frick, 7 Nor. 460, and Clader v. Thomas, 8 Nor. 343, where it was held that the recorder may record a writing in any book he chooses except where he is expressly directed by statute to use a particular book. 4 Speer v. Evans, 11 Wr. 141, qualified materially in Brown and Wood's Appeal, 1 Nor. 116. 5 Schell v. Stein, 26 P. F. Sm. 398. 6 Hendrickson's Appeal, 12 Har. 363; Edwards v. Trumbull, 14 Wr. 509; Friedley v. Hamilton, 17 S. & R. 70; Manufacturers' & Mechs. Bank v. Bank of Penna., 7 W. & S. 340. the date is prima facie, the time of execution, but it is not conclusive ; the actual time of execution may be proved aliunde. Parke v. Neely, 9 W. N. C. 193 ; Rigler v. Light, 9 Nor. 235. 472 THE LAW OF REAL ESTATE AND sped ion of it does not convey notice to a subsequent pur- chaser or mortgagee. 1 c. Who are affected by the record of a deed ? This can be accurately answered in a few words. Only those who are bound to look for it, that is, only those who deal on the credit of the title, or with the title iu the line of which the recorded deed belongs. Strangers to the title are not af- fected in any way. 2 There may be more than one title to the same land. A purchaser is not affected with notice by a record unless the deed is in the line of his title. 3 Where a forged deed is recorded, one who buys on the strength of the record takes no title. Even an innocent purchaser cannot acquire title in this way. In Reck v. Glapp,* Judge Green says " Of course a purchaser who examines the records is protected by them, as far as they can protect him, but he necessarily takes the risk of having the actual state of the title correspond to that which appears of record," and he cites Van Amringe v. Morton. 5 1 Kerns v. Swope, 2 Watts, 75. " Maul v. Eider, 9 P. F. Sm. 167. 5 Keller v. Nutz, 5 S. & R. *246. 4 1 Pennypacker, 344. 6 4Wh. 382. CONVEYANCING IN PENNSYLVANIA. 473 CHAPTER XI V. CONSTRUCTION OF DEEDS— MAXIMS— DEEDS TO BE CON- STRUED FAVOURABLY, AND MOST STRONGLY AGAINST GRANTOR— VOID AND VOIDABLE DEEDS— FRAUD ON THIRD PARTIES— STATUTES IS ELIZ. AND 27 ELIZ.— FRAUD ON CREDITORS— FRAUDULENT DEEDS GOOD AS BETWEEN PARTIES, THOUGH VOID AS AGAINST CRED- ITORS—WHO MAY TAKE ADVANTAGE OF THE FRAUD — FRAUD A QUESTION OF FACT — ALTERATION OF DEEDS— INTERLINEATIONS— ALTERATIONS MUST BE MATERIAL — BLANKS IN A DEED FRAUDULENTLY FILLED UP. In the preceding pages I have endeavored to explain how a deed should be written and executed. I want now, in a few words, to turn the other side of the picture, and show how the courts have construed imperfect or irregular writings for the conveyance of land, for the purpose of carrying out the in- tention and agreements of the parties. There are many ancient maxims concerning the construc- tion of deeds and written instruments, a number of which may be found collected by Coke, 1 and also, in the eighth chap- ter of Broom's Legal Maxims, 2 which chapter is a very valu- able essay on the construction of writings. Several, indeed most of these maxims, I have from time to time explained and illustrated. Among these maxims of construction I will call attention especially to two, as given in Broom. '"Benigna, faeiendce sunt interpretations, propter sim- plicitatem laicorum, ut res magis valeat quam pereat; et verba intentioni, non e contra, debent inservire." Deeds 1 Co. Litt. 36 a. 1 Pp. *540, et seq. 474 THE LAW OP SEAL ESTATE AND should be construed favourably, so that they may take effect, if possible, and so as to carry out the intention of the parties. Verba chartarum fortius accipiuntur contra proferentum. The words of an instrument shall be taken most strongly against the party employing them. 1 These two are the leading maxims for the construction of 1 Broom's Maxims for the Interpretation of Writings : 1. Benignee, etc. (as in the text above). 2. Ex antecedentibus et consequentibus fit optima interpretatio. A pas- sage will be best interpreted by that which precedes and follows it. 3. Noscitur a sociis. The meaning of a word may be ascertained by reference to the meaning of words associated with it. 4. Verba chartarum, etc. (as in the text above). 5. Ambiguitas verborum latens verificatione suppletur ; nam quod ex facto oritur antbiguum verificatione facti tollitur. Latent ambiguity may be supplied by evidence ; for an ambiguity which arises by proof of an extrinsic fact may in the same manner be removed. 6. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est. In the absence of ambiguity, no exposition shall: be made which is opposed to the express words of the instrument. 7. Id cerium est, quod certum reddi potest. That is sufficiently cer- tain which can be made certain. 8. Utile per inutile non vitiatur. ■ Surplusage does not vitiate that which in other respects is good and valid. 9. Falsa demonstrate non nocet. Mere false description does not make an instrument inoperative. 10. Verba generalia restringuntur ad habilitatem rei vel personam. General words may be aptly restrained according to the person or sub- ject-matter to which they relate. 11. Expressio unius est exclusio alterius. The express mention of one thing implies the exclusion of another. 12. Expressio eorum quce tacitemsunt nihil operatur. The expression of what is tacitly implied is inoperative. 13. Verba relata lioc maxime operantur per referentiam ut in ais inesse videntur. Words to which reference is made have the same effect as if they were inserted in the clause referring to them. 14. Ad proximum antecedens fiat relatio, nisi impediatur sententia. Relative words refer to the next antecedent, unless by such a construc- tion the meaning of the sentence would be impaired. 15. Contemporanea expositio est optima et fortissima in lege. The best and surest construction is by referring to contemporaneous cir- cumstances. 16. Qui hceret in litera, hceret in cortice. He who considers only the letter goes but skin deep into the meaning. Broom's Leg; Max. *540 seq. See also Cruise Dig. ch. xx. CONVEYANCING IN PENNSYLVANIA. 475 deeds, and may be said to contain in themselves all or most of the others. The first effort of the court then, in construing a deed, is to give it some effect, for it cannot be presumed that a man would make a deed which was to have no effect whatever ; and not only to give effect to the deed, but as far as possible to give effect to every clause and word in it, for it is upon a careful examination and construction of the writing that the intention of the parties is to be discovered. Conse- quently the courts have much more consideration for the substance than for the form of deeds, and they look less at the form used to pass the estate and the words used in ex- pressing the intention of the parties than they do at the es- tate itself, which the parties intend to pass by the deed. And where, owing to fraud, accident or mistake, the writing does not fully express the true sense and intention of the parties, a court of equity will, upon clear proof of the mis- take, reform the deed in order to carry out the true intention and agreement of the parties. 1 It follows, from these principles, that no form of words is absolutely necessary to make a valid conveyance of lands. The leading case in Pennsylvania on this subject is Kriderii. Lafferty, 2 where a most informal writing came before the court for construction. It was headed u Mem. of an agree- ment," and witnessed that " John Lentz hath let unto D. Lafferty, his legal heirs and representatives, a certain piece of meadow, containing one acre, be the same more or less, at the rate of fifteen dollars per acre, to be paid by the said Daniel Lafferty, or his legal heirs annually, to the said John Lentz, his heirs and assigns." This was all, except the ordinary concluding clause. The paper was signed and sealed by both parties, but not acknowledged, proved or recorded. Lentz's 1 Huss v. Morris, 13 P. F. Sm. 367. 2 1 Whart. 303. " 476 THE LAW OF KEAL ESTATE AND title to a large tract of land, of which this acre was part, passed to Krider, who claimed this acre. Lafferty was in possession all the while. It was held that the paper was a deed of conveyance in fee-simple from Lentz to Lafferty, reserving a perpetual rent of fifteen dollars, payable annually; and the decision was rested mainly upon the fact that the deed contained words of inheritance, both in the conveyance of the property and in the reservation of the rent. Judge Kennedy, in the course of his opinion, says : " The court seems to have overlooked the words of inheritance in the deed, which certainly set forth the quantum of estate in- tended to be conveyed ; and to have taken up the idea that as the word ' let ' is the only term used by the grantor in the deed, to part with his interest in the land, it was not sufficient to pass a fee-simple, though words of inheritance were used in connection with it. Now, it is well settled that the con- struction of a deed must be as favourable, and as near to the minds and apparent intent of the parties as it is possible it may be, and the law will permit ; for benigne sunt facienda interpretationes chartarum, propter simplicitatem laicorurn. Et verba intentioni, non e contra, debent inservire. The words in a deed are not the principal thing to be attended to, but the design and intention of the parties. And accord- ingly, if the intent of the parties appears, the law will construe the words in such sense as to perform that intent, rather than in any other sense." ' The courts will go so far to effectuate the intention of the parties to a deed as to hold that if it cannot take effect in the form in which it is written, it shall operate in some other way. Where a deed, in form a bargain and sale, which requires a pecuniary consideration, could not take effect as such, be- cause there was no such consideration, yet it was held good 1 This case contains a reference to early form of deeds in Pennsyl- vania, under Act of 1683. 1 Whart. 317. CONVEYANCING IN PENNSYLVANIA. 477 as a covenant to stand seised, because there was a good con- sideration of natural love and affection, which is sufficient to support a covenant to stand seised. 1 An instructive illustration of the principle that a deed should be favourably construed to carry out the intent of the parties, is found in the case of Ivory v. Burns, 2 where there was added to a deed, after the signature of the grantor and before the attestation of the subscribing witnesses, a nota bene, which declared the uses of the deed, the grant in the deed itself being an absolute grant in fee simple. The court held that the parties intended the nota bene as a part of the deed, and that it took effect as such. Blots, bad spelling, bad grammar, etc., will not invalidate a deed ; nor will erasures, or interlineations, if made before the deed was executed. Mala grammatica non vitiat chartam. 3 But notwithstanding that the courts will be subtle to make a deed take effect according to the intention of the parties, yet the law presumes that the parties know the legal effect and rules of construction applicable to the words they use, and that they intend them to be so constiued. Hence it is that no allowance is made for ignorance of the law ; * and where there is no obscurity of language the intention of the parties is to be understood according to the plain meaning of the words they have used. 5 The intention of the parties must be a lawful intention, that is, it must not contravene the general rules of law ; a person may not create a new order of descent, nor make a heredita- 1 Lewis v. Brewster, 7 P. F. Sm. 410 ; Sprague v. Woods, 4 W. & S. 195 ; Eckman o. Eckman, 18 P. F. Sm. 460. 2 6 P. F. Sm. 300. 3 Cruise, title xxxii, ch. xx, s. 10 ; Watters v. Bredin, 20 P. F. Sm. 235. * Auman v. Auman, 9 Har. 347. » Baker v. McDowell, 3 W. & S. 361 ; Benson v. The Miners* Bank, 8 Har. 373. 473 THE LAW OF REAL ESTATE AND ment of a chattel. If a deed grant land to a man and his heirs for the term of twenty -one years, the heir will not take upon the death of the grantee, but the land will go to the ex- ecutor, because a term of years is not a hereditament, but a chattel only. Void and Voidable Deeds. The last consideration with re- spect to deeds which space admits of, is how a deed may be avoided or rendered of no effect. There is a substantial difference between a deed which is absolutely void ab initio ; and one which is voidable only. A void deed is a nullity ; it has no effect, and cannot be made good — as the letter of attorney of a married woman, or the deed of a lunatic after the decree confirming the find- ing of his lunacy. These are void, and are as if they had never been made. But a voidable deed is a very different matter. It is good until avoided. It takes effect immediately upon its delivery, and some act on the part of the person who has the right to avoid it is necessary, before it can be made void. Such are deeds made under duress, the deed of an in- fant, or the purchase of real estate by a married woman. As respects every person except the one who has the right to avoid the deed, a voidable deed is good and cannot be ques- tioned; and even as to that person it is good, as I said, until lawfully disaffirmed and set aside. How far deeds may be rendered void for want of proper and capable parties acting of their own accord, or for want of some essential circumstance, either in the wording of the deed or in the execution, delivery, acknowledgment or re- cording of it, I have already considered in former chapters ; but I have postponed the study of cases where a deed is ren- dered fraudulent and void as against creditors for want of an adequate consideration, until this time. Of this presently. Fraud vitiates everything which is tainted with it ; and a deed obtained by fraud, or made with a fraudulent intent, CONVEYANCING IN PENNSYLVANIA. 470 will be set aside and not allowed to accomplish its purpose. 1 There are multitudes of instances which illustrate this prin- ciple, which is one of the most familiar in the law. To make a valid deed the party must know what he is doing, or have a fair and reasonable opportunity of knowing. If he is de- ceived and tricked into executing it, he has not given that assent which is necessary to a valid contract. 2 Neither can a person, by a fraudulent deed, convey all his property away, with intent to deceive and wrong another. A woman, in- tending marriage, cannot make a marriage settlement of all her property, so as to cut out her intended husband, without his knowledge and consent ; such a settlement would be a fraud upon him, and would not be allowed to stand a But the most frequent illustration of this principle occurs in cases which arise under the British Statutes of 13 Eliz. c. 5, and 27 Eliz. c. 4. 4 These statutes are said to be merely declar- atory of the common law, which is so strong against fraud in every shape that it would attain every end proposed by them. 5 The effect of these statutes is to render void as against creditors all deeds made with intent to defraud or delay them, or not made upon sufficient valuable considera- tions. The Statute 27 Eliz. also makes conveyances upon good, but not valuable, considerations void as against subsequent purchasers ; but our recording acts have amended the law in this respect by making a recorded deed equivalent to a feoffment with livery, and our courts have consequently 1 Hitdreth v. Sands, 2 Johns. Oh. 42. 2 A. died intestate, leaving two children; one of these, under the impression that they were brothers, conveyed to the other all the de- cedent's real estate. This conveyance was set aside upon proof that the grantor was illegitimate, that the consideration paid was inade- quate, and that the grantor was illiterate and unable to attend to business. Meurer's Appeal, 21 W. N. (J. 109. 3 Duncan's Appeal, 7 Wr. 67. 4 Roberts' Dig. 295, 298. 5 Sharswood, J., in Davis v. Bigler, 12 P. F. Km. 247, citing Lord Mansfield, Marshall, C. J., Story, J., and Chancellor Kent. 480 THE LAW OF REAL ESTATE AND always held that a voluntary deed is good, if recorded, against a subsequent purchaser, who is bound to take notice of it on the record. 1 A man who is in debt, therefore, cannot give away his property ; and the conveyance of his land, except for a suffi- cient price and upon a bona fide contract of sale, is void as against the creditors whom he thereby attempts to defraud and hinder ; and even if the sale is for a full price, which is actually paid, yet if the object be to defraud creditors, and the purchaser knows it and aids and assists him in executing it, his title is worthless as against creditors. 2 The consideration need not be a present payment of money ; a conveyance in payment of a prior debt will be suffi- cient, if the debt be honestly due ; and although a creditor may render himself liable to the bankrupt laws by taking a preference from a person whom he knows to be insolvent, yet it forms a sufficient consideration to support the deed under the statute ; or, the consideration may be an agree- ment for the future payment of money ; 3 but the considera- tion must be valuable and adequate — it must be the fair value of the land. The deed is fraudulent only as to persons who were cred itors of the grantor at the time it was made. Subsequent creditors cannot impeach it, unless they can show that it was intended to defraud them, 4 and this can only be done by show- ing that the grantor, very shortly after the making of the voluntary conveyance, incurred indebtedness immediately or engaged in hazardous business, so as to warrant the belief that he purposely got rid of his property to save it from his subsequent creditors. There must be enough proved to con- nect the conveyance of the property with the subsequent 1 Lancaster v. Dolan, 1 Rawle, 231. ' Covanhovan v. Hart, 9 Har. 500. " Pattison v. Stewart, 6 W. & S. 72. 4 Harlan v. McLaughlin, 9 Nor. 293. CONVEYANCING IN PENNSYLVANIA 481 indebtedness, and to show that the intention of the convey- ance was fraudulent, and that the fraudulent intent was car- ried into effect. 1 The fact that there were existing creditors at the time the deed was made is not enough, if they do not complain. 2 The subsequent creditor cannot avoid the deed by showing that it was a fraud upon others — he must show that it was intended as a fraud upon himself. 3 A man who is not in debt may give away his property, even all of it.* A person attempting by a fraudulent conveyance to de- fraud his creditors frequently finds his wrong recoil upon his own head. " Honour among thieves " is not found much out of story-books, and a grantee who will consent to receive a title for a fraudulent purpose and to maintain it against creditors, keeping up at the very least a false appearance of things, is the very man who will cheat his friend by holding on, if he can, for his own benefit. And this the law gives him full opportunity to do, for a voluntary conveyance, though fraudulent and voidable as against creditors, is good as between the parties and all claiming under them. 5 and al- though the conveyance was made absolutely without consid- eration, and only for the purpose of vesting the title in the grantee for the benefit of the grantor, yet the deed is good against the grantor and he cannot avoid it. 6 A very frequent method of conveying property to get it out of the reach of creditors is to put it in the name of the wife of the debtor. This is the greatest folly of all. For where the wife of an insolvent man acquires title to real es- tate during the coverture, the presumption is that her hus- 1 Williams v. Davis, 19 P. F. Sm. 21 ; Mowry's Appeal, 13 Nor. 376; Reehling v. Byers, 13 Nor. 316. 2 Any creditor existing at the time of the conveyance may attack it. Barrett v. Nealon, 21 W. N. C. 104. 3 Kimble v. Smith, 14 Nor. 69 ; Ditman v. Baule, 23 W. N. C. 301. * Thompson v. Allen, 13 W. N. C. 253. 5 Buehler v. Gloninger, 2 Watts, 226 ; Sherk v. Endress, 3 W. & S. 255. 6 Zuver v. Clark, 8 Out. 222; Gill v. Hervig, 14 Nor. 388. 31 J-82 THE LAW OF HE iL ESTATE AND band furnished the means of payment, and the burden lies upon her if her title is questioned by her husband's creditors, to show that she paid for it with her own separate moneys. It is not enough to show that she purchased it and had the means of paying for it, she must prove that she did pay for it herself. 1 Questions of fraud are questions of fact for the jury. 2 Deeds are sometimes rendered void by subsequent altera- tion or spoliation. At one time the law was very strict in putting upon the person who offered the deed in evidence the burden of accounting for every erasure or interlineation in a deed. Now, the presumption is rather in favour of innocence, but if the question be raised whether any alteration in a deed was made before or after its execution and delivery, it is left as a matter of fact for the jury. Consequently, it is always prudent, and I may say necessary, to note any interlineation or erasure in a deed as having been made before it was sealed and delivered, and this is usually done immediately after the attestation clause, just above where the subscribing wit- nesses are to sign. 3 Judge Williams says : "As the altera- tion in the deed was beneficial to the defendant, the burthen was on him of showing that it was properly made. If it ap- peared to Vie written with the same pen and ink as the body of the instrument, the natural inference would be that it was made before the sealing and delivery of the deed. But if it did not appear to be made with the same pen and ink, no such presumption would arise, and other evidence would be required to explain it. The original deed was not produced before us on the argument, and it was not shown by any evi- 1 Keeny v. Good, 9 Har. 349 ; Aurand v. Schaffer, 7 Wr. 363 ; Feig v. Meyers, 13 W. N. U. 123 ; Spring v. Lansrhlin. 3 Amer. 209. 2 Barr v. Boyles, 10 W. N. C. 253, 15 Nor. 31 ; Hess v. Brown, 1 Amer. 124; Benson t>. Maxwell, 21 \V. N. C. 446. On the subject of fraudulent conveyances see Bisphana's Prin. Eq. I 240 seq. J Robinson v. Myers, 17 P. F. Sm. 9. CONVEYANCING IN PENNSYLVANIA. 483 dence given on the trial whether the interlineation appeared to be written with the same pen and ink as the body of the deed or not ; we cannot say. therefore, that the court erred in admitting it. Whatever may have once been the rule, the law does not now presume that an interlineation in a deed is a forgery, nor that it was made after the execution of the in- strument, but leaves it as a question of fact to be determined by the jury. As was said in Jordan v. Stewart, 1 so long as any ground of suspicion is apparent on the face of the instrument the law presumes nothing, but leaves the question as to the time when it was done to be ultimately found by the jury upon proof to be adduced by him who offers it in evidence." 2 It seems, therefore, to be the established rule, that although the first presumption of the law upon an interlineation or erasure in a deed is that it was done before the deed was exe- cuted, because an alteration after execution would be a forgery, which is not to be presumed ; yet, where the al- teration is shown to be beneficial to the party offering the deed in evidence, the presumption in favour of innocence is gone. No presumption the other way is established, but the question as to when the alteration was made is left as a mat- ter of fact to the jury, to be determined by them upon the evidence, and the party offering the deed is bound to explain the circumstances of the alteration to their satisfaction. 3 But the mere fact that the deed was not all written in the same hand is not a sufficient reason why it should not be ad- mitted in evidence, there being no erasure or interlineation. 4 The effect of the alteration of a deed by the party who has the property in it is to render it totally void, unless it is done with the consent of the other party. If done after the ac 1 11 Har. 249. 2 Robinson v. Myers, 17 P. F. Sm. 16. 3 Jordan v. Stewart, 11 Har. 248, and cases there cited. See also Grambs v. Lynch, 20 W. N. C, 376. 4 Feig v. Meyers, 13 W. N, The fraudulent alteration of this paper, give it what denomina- tion you will, is a forgery punishable at common law. There is no magic in a name. Be it a receipt, a bill of sale, assign- ment, written agreement ; call it what you will, it is a writ- ing, the fraudulent alteration of which is a forgery, falling within the exact definition of the offense. I by no means intend to consider these ladies- as criminals or arraign them as culprits on the charge of forgery. Their conduct has everything to palliate it. No doubt they never imagined" they were committing an act of moral turpitude. The very candid and simple relation of Mrs. Pusey acquits them of that. They thought it no more harm to mend this instru- ment, than to mend a ruffle. But courtesy to the sex, indul- gence to their habits and course of life, mingling little in af- fairs of this kind, and the real simplicity which marks this alteration, must not make us forget the rights df others; and though we may acquit them of crime, yet it does not follow that any aid should be derived from the paper, * * * Having falsified, you have destroyed it, you have suffocated it. * * * It is so far fraudulent that it ceases to exist for any legal purpose; it is unworthy of all judicial credit. * * * You shall not recover through the medium of a falsified paper." 2 The alteration, to affect the validity of the deed, must be material, such as changes in some measure the legal effect of it: if it be immaterial the instrument is not affected. 3 1 10 S. & E. 425. 2 Duncan J., in Babb. v. Clemson, 10 S. & R. 425-426. " Gardiner v. Sisk, 3 Barr, 326 ; NefE v. Horner, 13 P. F. Sm. 327 ; Kountz v. Kennedy, 13 id. 187 ; Robertson v. Hay, 7 W. N. C. 546. CONVEYANCING IN PENNSYLVANIA. 485 An alteration of the date will render the deed v.oid ; ' and the addition of subscribing witnesses is a fraudulent alter- ation. 2 The effect of the alteration of deeds after execution was very fully discussed in a series of cases which all grew out of the same transaction. Four ground rent deeds, alter being acknowledged and delivered, were altered by the words '' within ten years " being inserted in a blank left in the re- demption clause. This alteration was done by the scrivener, who was the agent of the ground landlord. It was held that the deeds were void as to the owners of the ground rents, and that the rent could not be recovered by action of cove- nant or for use and occupation, or by distress, nor by a bona fide purchaser without notice. 3 Where a vested estate has been conveyed by a deed, the alteration of the deed does not destroy the title of the grantee, although the alteration be made by him. It only de- stroys the instrument ; it is void and not the estate granted by it. 4 The alteration of a deed after execution, made by consent of all the parties, or of the party bound by it, of course will 1 Getty v. Shearer, 8 Har. 12 ; Reck v. Clapp, 1 PenDypacker, 339. 2 Marshall v. Gougler, 10 S. & R. 168 ; Henning v. Werkheiser, 8 Barr, 518. An alteration made by a stranger will not affect the validity of the deed, even if material. Roenig v. Duff, 13 W. N. C. 127. And where a promissory note made in January, 1876, was dated by mistake Janu- ary, 1875, and the year was afterwards corrected by altering it to 1876, it was held that the alteration did not avoid the note. Hammerschlag v. The Bank, 13 W. S. C. 205 ; and even the alteration of the name of the payee is not fraudulent, where done to correct a mistake. Latskaw v. Hiltebeitel, 12 W. N. C. 334. 3 Arrison v. Harmstad, 2 Barr, 191 ; Wallace v. Harmstad, 3 Har. 462; id. v. id., 8 Wr. 492. 1 Rifener v. Bowman, 3 P. F. Sm. 313. Equity will compel the delivery of possession of title deeds to the party entitled to them, where they have been obtained by fraud. Graham v. Pancoast, 6 Cas. 89 ; Mange v. Guenat, 6 Whart. 141. 486 THE LAW OF KEAL ESTATE AND not affect its validity. Where the name of the grantee was left blank until after the deed was executed, and then in- serted by authority of the grantee, the deed was valid. 1 Where an instrument of writing has blanks left in it which are afterwards fraudulently filled up, it is for the jury to say whether the maker of it, who signed it in that condition, was not so far guilty of negligence as to prevent his setting up the defense of forgery against a bona Hole purchaser who had relied upon it as genuine. 2 1 Keamer v. Lamberton, 9 P. F. Sm. 462 ; Bell v. Kennedy, 13 W. N. C. 189. 2 Lea v. Walls, 5 Out. 57. CONVEYANCING IN PENNSYLVANIA. 487 ' CHAPTER XV. TITLE BY MATTER OF RECORD— ACTS OF ASSEMBLY— CONSTITUTIONAL RESTRICTIONS UPON THE LEGISLA- TURE—RIGHT OF EMIMENT DOMAIN— COMMON RECOV- ERIES — SHERIFF'S SALES — ACKNOWLEDGMENT OF SHERIFF'S DEEDS— JURISDICTION— THE JUDGMENT- PROCEEDINGS WHICH MUST BE OBSERVED— THE SHER- IFF MUST ACT WITHIN HIS AUTHORITY— FRAUD IN SHERIFF'S SALES— TITLE OF PURCHASER A T SHE RIFF'S SALE— SALES UNDER JUDGMENTS UPON LIENS— RE- DEMPTION UPON SALES FOR TAXES AND MUNICIPAL CLAIMS— JUDICIAL SALES— SALES OF DECEDENTS' ES- TATES AND ESTATES OF MINORS — THE PRICE ACT— JURISDICTION OF COURTS OF COMMON PLEAS AND ORPHANS' COURTS— SECURITY IN SALES UNDER THE PRICE ACT— EVERY MAN MUST HAVE HIS DAY IN COURT. Title by matter of record forms the subject of the twenty- first chapter of the second book of Blackstone, and he gives four kinds of such titles; by private act of parliament, the, king's grants, fines, and common recoveries. The changes in the habits and manners of the people and in the political principles upon which our government rests, have rendered the learning contained in this chapter of little practical application. In England, when Penn's charter was granted, lands could not be taken in execution for debt, ex- cept, upon some special statutes relating to commerce and trade. But a different rule prevailed here from the first. In the laws agreed upon in England between Penn and the adven- turers, May 5, 1682, it was expressly provided that all lands and goods should be liable to pay debts, except where there was a legal issue, and then, all the goods and one-third of the land only. 1 Very shortly after reaching here statutes were passed extending the liability to pay debts to half the lands, 1 5 Sm. Laws, 416 (appendix). 488 THE LAW OF REAL ESTATE AND and in 1688 all lands and tenements whatever were made liable, and such has been the law of Pennsylvania ever since. 1 It has also been the constant policy of our legislature to free the transfer of title to lands from embarrassment as far as it could be done with safety. There have been many statutes passed from time to time conferring upon the or- phans' courts and courts of common pleas jurisdiction and power to order the sale of lands, where there is no person who has capacity to convey them. Consequently, a very im- portant item in the general head of title by matter of record at this day must be judicial sales, in which are included sales under execution and sales by order of the court.'' I. Acts of Assembly. The constitution of the United States contains a provision that no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation. 3 And also, that no state shall deprive any person of life, liberty or property without due process of law. 4 And in the constitu- tion of Pennsylvania, (1874) it is declared, "Nor shall pri- vate property be taken or applied to public use without au- thority of law, and without just compensation being first made or secured." 5 " Nor can he be deprived of his life, liberty or property unless by the judgment of his peers or the law of the land ; " 6 and that no law impairing the obli gation of contracts shall be made. 7 These constitutional provisions make a manifest difference between the power of the legislature of Pennsylvania and 1 See note, 1 Sm. Laws, 8-9. 2 There are also other matters of record which affect title to land, partition, ejectment, etc. 3 Art. 5, Amendments of 17S9, Purd. Dig. p. 18. * Art. 14, Purd. Dig. p. 21. 6 Art. 1, sec. 10. 6 Art. 1, sec. 9. ' Same Art., sec. 17. See Purd. Dig., p. 24-26. CONVEYANCING IN PENNSYLVANIA. 489 the parliament of England. The parliament, with the as- sent of the crown, is absolute ; it may change the constitu- tion of Great Britain at pleasure. As Judge Sharswood says. 1 " No man can doubt the power of parliament to repeal or alter Magna Charta : and if they can alter the constitution of either house or change the succession of the crown, as they have done, surely their power over a mere private estate must be without limit." The legislature, however, has no such transcendent power. It has power in all things where it is not restrained by the constitution, and it may do any- thing not forbidden by the constitution, but the limitations thus imposed are real and substantial. 2 The provision that a man shall not be deprived of his property unless by the judgment of his peers or the law of the land, is one of the most important in the constitution. It is one of the distinguishing features which mark this as a free country. The phrase means that private property shall not be taken from one in lawful possession except upon a judgment rendered in due course of administration of law. 3 The legislature cannot render such a judgment, because the constitution provides that the judicial power of the com- monwealth shall be vested in the courts. 4 Parliament is a court as well as a legislature ; our general assembly is a legislature merely. " It is limited to the making of laws ; not to the exposition or execution of them. The functions of the several parts of the government are thoroughly sepa- rated, and distinctly assigned to the principal branches of it, the legislature, the executive and the judiciary, which, within their respective departments, are equal and co-ordi- nate. * * * When either shall have usurped the powers of one or both of its fellows, then will have been effected a 1 In his note to 2 Bl. Com. 346. 2 Menges v. Dentler, 9 Cas. 495. 3 Palairet's Appeal, 17 P. P. Sm. 485. 1 Art. V, Sec. 1, Purd. Dig. p. 34. 490 THE LAW OF REAL ESTATE AND revolution, not in the form of the government, but in its ac- tion. Then will there be a concentration of the powers of the government in a single branch of it, which, whatever may be the form of the constitution, will be a despotism — a gov- ernment of unlimited, irresponsible and arbitrary rule. It is idle to say the authority of each branch is defined and limited in the constitution, if there be not an independent power, able and willing to enforce the limitations. * * * It is apparent that the conservative power is lodged with the judiciary, which, in the exercise of its undoubted right, is bound to meet every emergency." ' It is well settled, that no act of the legislature is valid which interferes with vested rights, whether in land or chattels. Any act which has this effect is unconstitutional and void ; and it was deemed necessary to insert into the constitution a special provision enabling the legislature to take private property for public use, on compensation being made. 3 This power to take private property for public use is called the right of eminent domain, and where the use for which the property is taken is clearly a public one, no doubt the power of the legislature is without restriction, except that compensation must be made for the property so taken. The case of Palairet's Appeal 3 is an illustration of this right, and of the restriction upon it. This rather belongs to the subject of constitutional law. 4 There are cases, however, in which the legislature has undoubted power, not to interfere with vested rights, but to pass laws which affect them, by altering the remedies by which these rights are maintained and enforced. This has been done in numerous instances, even to the extent of taking 1 Gibson, C. J. in De Chastellux v. Fairchild, 3 Har. 18, 2 Norman v, Heist, 5 W. & S. 174. 3 17 P. F. Sm. 479. 4 See Hare's Am. Constitutional Law, Lectures XVIII and XIX. CONVEYANCING IN PENNSYLVANIA. 491 away the remedies altogether, as in cases of statutes of lim- itations. If an act of assembly is within the legislative power, it is not a valid objection that it divests vested rights. 1 But the particular class of cases which are interesting to the conveyancer is where the legislature has intervened to give relief to trust estates, where no power of sale existed, and where no jurisdiction existed ia the courts to decree a sale. Such acts of assembly, prior to 1853, were quite common. Since that time, the jurisdiction of the courts has been so much enlarged, especially by the Act of 18 April, 1853, relating to real estate, commonly known as the " Price Act," 2 that cases are very rare where special legislation is necessary. The leading case on this subject is Norris v. Clymer, 3 which arose upon the trusts in the will of Joseph P. Norris, who had devised 500 acres of land in the northern part of this city to trustees for his sons for life, with contingent remain- ders, but had given no power of sale to them. The legis- lature, by an act of assembly passed March 2, 1842,* author- ized the trustees to sell the lands on ground-rent, conveying a good title in fee simple to the purchaser, clear of the trusts, but the rents to be reserved upon the trusts concerning the land as declared in the will. The trustees having made a written contract with the defendant for the sale of a part of the land on ground rent, filed a bill to compel specific per- formance of the contract, which was disputed on the ground that they had no power to convey, because the act was un- constitutional. It was held that the act was valid. It was an exercise of power which the legislature had habitually made since the constitution was adopted. "It is not above 1 Lane v. Nelson, 29 P. F. Sm. 407. ' Purd. Dig., Title " Real Estate," p. 1457, pi. 1, seq. 3 2 Barr, 277. 4 Pamp. L. 33. 492 THE LAW OF REAL ESTATE AND the mark," says Gibson, C. J., " to say that 10,000 titles de- pend on legislation of this stamp." ' Fines and common recoveries I have mentioned before, in the chapter on estates tail. I have never met with a fine ; if any were levied here they must be rare ; Tilghman, C. J. mentions one in Lyle v. Richards. 2 Common recoveries were frequently suffered in Pennsyl- vania prior to the Act of 1799, which allowed estates tail to be barred by deed, entered upon the records of the court, and recorded within six months of its date. The knowledge of them is not now of great importance. The law favours the barring of entails, and since many common recoveries either were not properly recorded or the records have been lost, destroyed or mislaid, the courts are liberal in presuming that they were properly done, if enough is shown to make it manifest that there was power to bar the entail, and an inten- tion to do so. The production of the deed to lead the uses of the recovery, or evidence that a recovery was suffered, even though it cannot be proved that it was properly done, will be sufficient to raise the presumption that the entail was barred, without much regard to the care with which it was conducted. 3 One of the most important kinds of title by matter of record is where lands are sold by the order of the court, 1 The Fairhill estate contained 508 acres, and extended from Ger- mantown Road to Frankford Road, north of Kensington. Sepviva contained 155 acres, and lay north of the Northern Liberties, between Frankford Road and Gunner's Creek. The Legislature cannot pass a judicial act. Richards ». Rote, 18 P. F. Sm. 248. The constitution of 1871, Art. III. seC. 7, limits local and special legislation, and among other things provides that no special act shall be passed affecting estates of minors or persons under dis- ability, except after due notice, to be given to all parties and recited in the act, and no powers or privileges shall be granted by special act when provided for by the general laws, nor Where the courts have power to grant the same. Purd. Dig. p. 29. 2 9S. & R. 331. 3 Ransley v. Stott, 2 Cas. 129. CONVEYANCING IN PENNSYLVANIA. 493 either upon execution issued to the sheriff, commanding him to sell, or by virtue of the jurisdiction conferred in numer- ous acts of assembly upon the courts to order the sale of land under certain circumstances. II. Sheriff's sales. All possible titles, vested or contingent, in real estate, may be taken in execution, provided, there be a real interest in the defendant, legal or equitable. 1 There are not many titles in Philadelphia which have not at some time or other been sold by the sheriff in some proceeding at law. It is not in my province to explain the many ways in which a sheriff's sale is brought about, nor to consider the various steps taken in a cause which lead to this result. I can only give you an idea of how to judge of the validity of a title which has been conveyed by a sheriff by deed duly acknowledged in open court and entered upon the records, according to law. This very acknowledgment by the sheriff puts an end to many questions which might have been raised before it took place. " The defendant, or any person claim- ing under him, has every opportunity of calling into question the regularity of the proceedings, by an application to the court before the sale ; he may object to the acknowledgment of the deed, when the court will set the sale aside, if they are irregular or erroneous, and he may have his writ of error. If there is just cause for either justice can be done to the party complaining without injury to any party; if the sale is set aside the purchase money is refunded or its payment not ex- acted, if the judgment is reversed the purchaser is protected by the common law and the act of 1705, and restitution of the purchase money only is awarded. Whereas, if the sale can be avoided in a collateral action, the grossest injustice is done to the purchaser, he loses both purchase money and land, and the defendant, whose debt has been paid by the sale, holds the land without any obligation to refund. 1 Drake v. Brown, 18 P. F. Urn. 223. 494 THE LAW OP REAL ESTATE AND Hence has resulted the rule adopted in all courts, that in a collateral action, the only open question is the jurisdiction and power of the court to order the sale ; if the writ justifies the officer in its execution [and he acts within the scope of his authority], a sale under it is valid. In this state the reception of an acknowledgment of a sheriffs deed is a judicial act, in the nature of a judgment of confirmation of all the acts preceding the sale, curing all defects in process or its execution which the court has power to act upon. When the acknowledgment is once taken everything which has been done is considered as done by the previous order or subsequent sanction of the court, and cannot be afterwards disaffirmed collaterally." 1 While it is true, as a general rule, that the acknowl- edgment of the sheriff's deed cures all irregularities in the proceedings, there are many defects to which it does not reach. Those which might have been amended by the court are no longer of importance, but there are some things which must be affirmatively shown to make the title of the pur- chaser good, the most important being, 1. Jurisdiction. A court has no power out of its jurisdic- tion. All proceedings are void ab initio, if the jurisdiction is wanting, and cannot be made good; they amount to nothing at all. It is therefore of vital importance to the title of a purchaser at sheriff's sale to know that the court had jurisdiction. No agreement of the parties can render the proceedings of the court valid. The judge is not a judge, and the court is not a court when they go beyond the bounds which the law has fixed for them. Hence the common ex- pression for the acts of a court outside of its jurisdiction, that they are coram non judice — " before one who is not a judge." 1 Baldwin, J. in Thompson t'. Phillips, 1 Baldwin's Rep., 271. See Bradde v. Brownfield. 2 W. & S. 288; Cash v. Tozer, 1 W. & S. 527 ; McFee v. Harris, 1 Cas. 102 ; Shields v. Miltenberger, 2 Har. 78. CONVEYANCING IN PENNSYLVANIA. 495 2. There must be a judgment. It need not necessarily be a valid judgment; it may be one which the court would open, or which may be reversed. If the judgment on which the sale was made should be afterwards reversed, the title of the purchaser would not be affected. 1 In Gibson v. Winslow 2 a sale was sustained and the purchaser's title held good in ejectment, where the judgment had been satisfied before the acknowledgment of the sheriff's deed. Even a judgment against a dead man is not a nullity. 3 But if the judgment be absolutely void the execution is void also, and the pur- chaser takes no title. Where a judgment is entered by confession under the Act of 24 February, 180b', 4 it is not necessary that the prothono- tary should formally enter the word "judgment" on the docket ; a substantial compliance with the statute is all that is required. 5 3. Where certain proceedings are required by law for the protection of the owners or persons interested in the property, it must be shown that they were done. It would be impossi- ble for me to note all these cases in detail. I can only give the general principle underlying the rule. Where the real owner had actual notice of the suit by being served with the writ, and this fact appears of record, the maxim Omnia prcesumuntur rite et solenniter esse acta applies generally. 1 The Act of 1705 provides that if any judgments which warrant the awarding of writs of execution, whereupon any lands, tenements or hereditaments have been or shall be sold, shall at any time hereafter be reversed for any error or errors, then, and in every such case, none of the said lands, tenements, or hereditaments, so as aforesaid taken or sold or to be taken or sold upon execution, nor any part thereof, shall be restored, nor the sheriff's sale or delivery thereof avoided, but restitution in such cases only of the money or price for which such lands were or shall be sold. Purd. Dig., " Execution," p. 7S9, pi. 93. 2 2 Wr. 49. 3 Carr v. Townsend, 13 P. F. Sm. 202. 4 Purd. Dig., " Judgments," 953, pi. 41. " Helvete v. Rapp, 7 S. & R. 306 ; Commonwealth v. Conard, 1 Rawle, 252. 496 THE LAW OF REAL ESTATE AND Every man must have his day in court, and where actual notice is supplied by publication of advertisement, posting, or what is made by law equivalent to notice, it is only just to demand that it should be proved that the requirements of the law have been complied with. Nevertheless there are cases where even as against a party who has appeared in the suit certain proceedings are necessary, after judgment has been obtained, before a valid sheriff's sale of land can be had. Of course, where land is sold on a levari facias, no condemnation is necessary. A levari is the proper writ of execution on a judgment on a scire facias on a fixed lien, that is, a lien on specific real estate, as a mortgage, a me- chanic's claim, etc. Where land is sold upon a venditioni exponas, it must appear that it was first taken in execution upon a writ of Here facias and condemned by a jury, or the sheriffs sale will be void, unless it appear that the defendant has waived the inquisition, and in such a case the land may be sold upon the Here facias without any other writ. 1 The ac- knowledgment of the sheriff's deed does not cure this defect ; but a substantial compliance with the statute is sufficient. 2 So also, where the defendant has died after judgment, exe- cution cannot issue against his estate without a scire facias to bring in his personal representatives under the Act of 24 February, 1834, sec. 33. 3 4. It must appear that the officer was acting within the scope of his authority. A sheriff has no right to sell a man's land, unless that right is given to him by the process of the court. He cannot sell land which is not in his bailiwick under any circumstances. If he does so the sale is void, 1 Gardner v. Sisk, 4 P. P. Sm. 506 ; Baird v. Lent, 8 Watts, 422; Shoemaker v. Ballard, 3 Har. 92. 2 Atkinson v. Tomlinson, 8 W. N. 0. 98. 3 Purd. Dig., " Decedent's Estates," p. 529, pi. Ill ; Simons i>. Kern, 8 W. N. C. 257. CONVEYANCING IN PENNSYLVANIA. 497 and the purchaser takes no title.' At one time a sale of land by the sheriff was held void, unless it was made on or before the return day of the writ ; the officer's power ex- pired then. This has been altered by the second section of the Act of 16 April, 1845, 2 which provides that sales of real estate by sheriffs and coroners shall be made on or before the return day of the writ, or within six days thereafter. 5. As in all other things, so in regard to a sheriff" 1 s sale, fraud is fatal. Collusion and fraud with regard to a sale, in which the purchaser is a party, or by which he willingly is benefited, renders the sale void as to him, and in investi- gating questions of fraud every latitude is allowed in the way of receiving evidence. Even the judgment of a court may be impeached on the ground of positive fraud. 3 To sum up the result of all the cases in one general rule, the acknowledgment of a sheriffs deed cures irregularities, however gross, in the process or proceedings, which the court could amend, but not the want of anything which is essential to the authority to sell. It affirms and establishes a voidable, but not a void sale. 4 Great liberality in amendments is permitted in Pennsyl- vania. A sheriffs return or a sheriff's deed may be amended after acknowledgment , where it appears that the mistake or error is one of form and not of substance. As to the kind of title and quantity of estate which a pur- chaser at sheriff's sale takes, the law is settled by the sixty- sixth section of the Act of 16 June, 1836. 5 The sheriff sells and the purchaser takes the title and estate which the de- fendant in the judgment had at the time the execution was levied. He is a purchaser within the meaning of the record- 1 Kinter v. Jenks, 7 Wr. 445. 2 Purd. Dig., " Execution," p. 758, pi. 89. 3 Barton v. Hunter. 5 Out. 406 ; Phillips v. Hull, 5 Out. 567. 4 St. Bartholomew's Ch. «. Wood, 11 P. F. Sm. 96. 6 Purd. Dig., " Execution," p. 758, pi. 91. 32 498 THE LAW OF REAL ESTATE AND ing acts, and therefore his title is not affected by a prior un- recorded deed, 1 and he is not affected by secret trusts of which he had no notice. 2 Sometimes the purchaser gets a better title than the de- fendant had at the time the land was levied on. If the sale is made under a judgment which was a lien on the land, the purchaser takes the title and estate which the defendant had at the time the lien of the judgment attached, 3 or, generally speaking, wherever the sale is made on an execution to en- force a lien on the land, the title of the purchaser is such as the defendant had at the time when the lien accrued ; * all subsequent conveyances are cut out by the sheriff's sale. A ground-rent furnishes a familar illustration of this. The land is bound for the payment of the rent as I have already explained, and the arrears of rent aB they accrue have a lien which dates back to the creation of the ground-rent. Hence a sheriff's sale upon a judgment for arrears of rent, obtained against the original covenantor, gives the purchaser a title which relates back to the time the land was conveyed upon ground-rent, and he stands in the position of the grantee in the ground-rent deed at the time when that deed was first delivered. This is a common and very efficient remedy for defective titles where the land is subject to a prior ground- rent. In order to accomplish the result of having the sale relate back to the inception of the lien, it is necessary that the lien should be a valid subsisting lien at the time of the sale. Other- wise the purchaser will take only the title which the defendant had at the date of levy. But sometimes a sale is made to en- force a lien after the defendant has parted with his property. In such a case the lien exists on the land of the grantee of the 1 Stewart v. Freeman, 10 Har. 120. 2 Boynton v. Winslow, 1 Wr, 315. 3 Coulter i). Phillips, 8 Har. 154. 4 Dougan u. Blocher, 12 Har. 30. CONVEYANCING IN PENNSYLVANIA. 499 defendant, who is not a party to the proceeding, and conse- quently is entitled to have his day in court, and he may after- wards call in question the validity of the sale and of the lien on which it was made. In other words, he may make any defence in ejectment against the sheriff's vendee which he could have made against the judgment in the suit on which the land was sold, if he had been a party to that suit. In Foulke v. Millard, 1 a sheriff's sale was had upon suit for ar- rears of ground-rent, which arrears had been discharged by a prior sheriff's sale ; and it was held that the purchaser at the second sale had no title. A sheriff's sale may be partly good and partly invalid, that is, where there are several defendants, the sale may convey to the purchaser the interests of some of them, while it is ineffectual as to others. 2 The purchaser at sheriff's sale buys not only the title of the defendant, but also his possession, and in ejectment by the purchaser against the defendant the latter will not be permitted to set up an outstanding title in another to defeat his recovery. 3 There are certain kinds of sales to which the legislature has annexed a right of redemption. Upon sales for taxes and municipal claims, the owner has the right to redeem by paying the purchaser all his costs and charges and the amount of the purchase-money with twenty per cent additional, 4 and the vendee of the owner at the time of sale may exercise the right of redemption. Whoever is owner at the time of re- demption is within the protection of the law. 5 The redemp- tion may be made to the purchaser at the sheriff's sale, even though he has conveyed his title and the vendee has recorded 1 12 Out. 230. 2 Soullier v. Kern, 19 P. F. Sm. 18. 8 Young v. Algeo, 3 Watts, 223. * Purd. Dig., " Municipal Claims and Taxes," p. 1207, pi. 30-33. B Gault's Appeal, 9 Gas. 98. 500 THE LAW OF REAL ESTATE AND his deed. 1 The court has power, in a proper case, even after a sheriff's deed has been acknowledged, to cancel the deed, vacate the acknowledgment and set aside the sale. 2 III. Judicial sales not under execution, but such as are ordered by the court of common pleas or orphans' court, under powers conferred upon them by various acts of as- sembly from time to time. The orphans' courts have jurisdiction to order the sale or mortgage of land : Of a decedent for the payment of his debts ; for the sup- port of his minor children ; for the payment of the balance due on the settlement of the administration account. Of a minor, for his maintenance and education ; for the improvement or repair of his other real estate ; where it is dilapidated or unproductive, so that it is for his benefit to sell. 3 Where it is for the interest of the minor that the land should be sold ; where the minor's estate is a remainder, and it is for his interest, and the tenant of the particular estate applies for the sale ; where lands are held in trust, and it i« for the interest of the cestui que trust.* On proceedings for the partition of a decedent's estate. 5 The courts of common pleas have jurisdiction to decree the sale of the real estate of a lunatic, or habitual drunkard, for his support. But the great statute, conferring jurisdiction upon the common pleas and orphans' courts to decree sale of land, is the u Price Act," , of 18 April, 1853. 6 By 1 his act the fetters upon the alienation of land are entirely thrown off, and there 1 Hess v. Potts, 8 Cas. 409. 2 Shakspeare v. Delaney,5 Nor. 108. 3 Act of 29 March, 1832. Purd. Dig. " Decedent's Estates," p. 532, pi. 121. 4 Act of 3 April, 1851. Purd. Dig. title "Decedent's Estates," p. 533, pi. 125. 5 Purd. Dig. title " Decedent's Estates," p. 537, pi. 148. 6 Purd. Dig. " Real Estate," p. 1457, pi. 1 seq. CONVEYANCING IN PENNSYLVANIA. 501 can scarcely arise a case hereafter where the power to sell and convey real estate is wanting, that such power cannot be supplied by the order of the court, if the circumstances are such as to convince the court that a sale ought to be made. Where the title has been acquired by descent or last will, the jurisdiction is in the orphans' court exclusively. Where acquired in any other manner, the jurisdiction of the common pleas is exclusive ; and where derived partly by deed and partly by will or descent, the jurisdiction is concurrent. The principles upon which judicial sales of this kind are to be judged as valid or invalid, are in substance the same as those which apply to sheriff's sales. The decree of the court confirming the sale is the judgment of a court of record; and while the proceedings may be manifestly irregu- lar, yet they cannot be questioned collaterally except for fraud or want of authority. 1 But the question of jurisdiction is vital. The sale is made under the order of the court, and the person who makes it depends upon the decree for his power to do so ; otherwise he may have neither estate, title, nor power. And naturally if the decree be void, as all the proceedings of a court outside of its jurisdiction are, he has no authority at all. 2 Torrance v. Torrance must not be mis- taken as deciding that every detail must appear upon the record, to show that a state of facts existed which would give the court jurisdiction. That was not done, for it has been held that there is no necessity for filing a statement of a decedent's debts in order to obtain an order for the sale of his real estate to pay them. 3 Indeed, the court say : ' ; We are not unmindful that general jurisdiction over the subject protects the decrees of the orphans' court from being as- Gilmore v. Rodgers, 5 Wr. 120. Torrance v. Torrance, 3 P. F. Sm. 505. ; Stiver's Appeal, 6 P. F. Sm. 9. 502 THE LAW OF REAL ESTATE AND sailed collaterally. But this is not such a case. Had the application been to sell the testator's estate for his own debts, their existence might have been presumed." 1 The rule is that enough should appear upon the record to show that the court had general jurisdiction over the subject. With regard to sales under the Price Act, the petition should show enough to bring the case clearly within the provisions of the second section ; but that being done, every intend- ment is to be made in favour of the regularity of the pro- ceeding. The title which the purchaser takes is expressly declared to " be unprejudiced by any error in the proceed- ings of the court ;" 2 all things are presumed to have been rightly done — Omnia prcesumuntur rite et solenniter esse acta? A court has no power to order one not a guardian to sell the estate of a minor. Where the mother of a minor presented a petition to the orphans' court representing that she was guardian of the minor — which was not true — and the court upon that petition ordered her, as guardian, to sell the land of the minor, it was held that no title passed by such sale.* There is a slight discrepancy in the Price Act, which has caused doubts in some minds, but which the Supreme Court has set at rest. The fourth section provides " that no sale or sales shall be ordered or made under the provisions of this act, in any case, until security, to be approved by the court, be given in at least double the value of the interest proposed to be sold." The sixth section says : " Before any decree shall be executed, the person or persons intrusted to execute the same shall give adequate security to the Commonwealth, to be approved by the court, conditioned for the faithful 1 Torrance v. Torrance, 3 P. F. Sm., p. 512. 2 Sec. 5. 3 Broom's Leg. Maxims, * 942. 4 Grier's Appeal, 5 Out. 416. CONVEYANCING IN PENNSYLVANIA. 503 execution of the trust, etc." In Thorn's Appeal, 1 it was held that the provision in the fourth section that the security should be in double the amount and should be entered before sale was made, was only directory ; and that the sale was not void because it was not complied with, but that it was sufficient if the security was given before the sale was confirmed. " It is likely," says Thompson, (J. J. " that the consistency of the act was marred by someone introducing the proviso to the fourth section, without knowing that the framer of the bill had, in a more appropriate place, provided in different terms for the desired security. These seemingly inconsistent provisions account for the direction contained in the tenth section. Rather than recommit or reconsider the bill, the provision in this section was introduced, in all probability on third reading, to cure the discrepancy. For the purposes of construction, it is presumed that an act of the legislature is brought into existence uno flatu, while the fact is, that it matures in progressive order ; and hence we often find discrepancies in successive sections, and are thus enabled to account for them." It seems that even if no security be entered at all, the final decree of the court confirming the sale will be sufficient to prevent its being questioned collaterally. It may be a ground for reversing the decree on appeal, or for setting aside the sale, but it can be impeached in no other way. 3 It is the court which makes the conveyance ; hence, it is not material whether or not the person who signs the deed has legal capacity. An insane guardian conveying under the order of the court, makes a valid conveyance. 4 There is one principle of law that should never be lost sight of in considering the title passed by judicial sales of 1 11 Cas. 49. 2 Dixey's Executors r. Lariing, 13 Wr. 143. 3 Grier's Appeal, 5 Out. 416. 504 THE LAW OF REAL ESTATE AND every kind, to wit : That every man must have his day in court ; and it should clearly appear that every person who has a vested present interest in the property was made a party to the proceeding in some way, and had due notice of it, either- actual or constructive, according to law. Those who have had no opportunity to be heard, may question the "validity and fairness of the proceedings so far as they are concerned, when their day does come. This applies only to vested present interests, not to those which are con- tingent and uncertain. 1 The court has power to confirm or to set aside a sale, as the interests of the parties or the ends of justice may re- quire ; and at any time before confirmation, a purchaser may have the sale set aside and his deposit money returned to him, where the person conducting the sale made representa- tions and promises concerning the title which were not true. 2 1 Smith v. Townsend, 8 Cas. 442. 2 De Haven's Appeal, Leg. Int. of 1886, p. 82. CONVEYANCING IN PENNSYLVANIA. 505 CHAPTER XVI. POWERS— COMMON LAW POWERS AND POWERS DERIVED FROM THE DOCTRINE OF USES— POWERS RELATING TO LAND AND POWERS SIMPLY COLLATERAL— CREATION OF POWERS— THE STATUTE OF FRAUDS— POWERS OF ' ATTORNEY OF MARRIED WOMEN— POWERS OF EXECU- TORS—EXECUTION OF A POWER— BY WHOM THE POWER MA YBE EXECUTED— MODE OF EXECUTING THE POWER — WHEN THE POWER MA Y BE EXECUTED— REVOCATION OF PO WERS. There are many cases where one who has in himself neither title nor estate in land may yet convey a good title to the land in fee-simple ; as where a sheriff sells land in execution, or an administrator sells by order of the orphans' court. These are instances where, as we have seen, power is con- ferred by the act and operation of law. The same principle is illustrated when the power to deal with the property of another is given by deed or will, by the act of the party himself, and this is the kind of powers which I wish now briefly to explain, and to this our attention will be confined. There are two kinds of powers, common law powers, and powers which are derived from the doctrine of uses. Common law powers exist where one man confers upon an- other authority to do a certain act ; as a letter of attorney authorizing the attorney to sell and convey land, or a power of sale in a will, or the power granted by a court or by an Act of Assembly to someone to sell land. Powers derived from the doctrine of uses are those which at common law would not be good ; as where land is conveyed to be held upon uses, and a power is reserved to 506 THE LAW OF REAL ESTATE AND the grantor or given to someone else, to revoke the uses and declare new ones. This could not be done at common law, for it was contrary to every principle that an estate in land once vested should be divested in this manner. Powers are also divided into those relating to land, and those simply collateral. Those relating to land are given to some person who has an estate or interest in the land over which the powers are to be exercised. This kind of power is also divided into appendant, where the person who has an estate in the land has also a power, the execution of which falls within the com- pass of his estate ; as where an estate is conveyed or devised in trust for one and his heirs, and with power of appoint- ment by will : and in gross, where the power is given to one who has an estate in the land to do some act which falls beyond the compass of his estate ; as where a life tenant has power to convey or devise the land in fee. Powers relating to the land are favourably construed. Powers simply collateral are those which are given to a stranger who has no interest whatever in the land ; as a power of sale to executors. These are construed strictly. No form of words is necessary to the valid creation of a power. It is a question of the intention of the party. If it ap- pears that it was clearly the intention to confer the power, it is enough, no matter what words are used. Where a deed was made to a trustee, in trust for Susan Wilde for her life, " and upon this further trust that the said Susan Wilde or such person as she shall appoint, shall take and receive the rents, issues and profits of the said lot forever," it was held that she had a power of appointment in fee. 1 The person who creates the power is called the donor of the power. If it be given by a letter of attorney he is called the constituent. The person in whom the power is vested is 1 Drusadow v. "Wilde, 13 P. F. Sm: 170. CONVEYANCING IN PENNSYLVANIA. 507 the donee of the power, or, if by letter of attorney, he is simply called the attorney. The grant of power to sell lands must be in writing. The statute of frauds expressly requires a deed or note in writing " signed by the party so making or creating the same, or by his agent thereunto lawfully authorized by writing." This is imperative, and the grant of power cannot be made by parol. 1 Where the power is to execute a deed under seal, the authority must be given by deed under seal. If the instru- ment granting the power (except it be a will) be not under seal, the attorney or person exercising the power has no right to bind his principal by affixing a seal to the execution of the power. 2 Still, if he does so, the seal will not invalidate the instrument. It will be considered as mere surplusage, 3 and the instrument executed will be treated as if it had not been sealed. 4 Of course, no one can do by the hands of another that which he lacks power or capacity to do for himself. All deeds which confer power must have parties who are capable of contracting and conveying lands. A married woman may convey her land by attorney, but the letter of attorney giving the power must have all the requisites which are necessary to make her deed valid. Her husband must be a party and execute it, and she must make the separate acknowledgment required by the Act of 1770. It is an exception to the general rule that her warrant of attorney is void, and it is allowed upon a construction of the second section of the Act of 24 Feb., 1770, which makes it lawful for husband and wife " when they incline to con- vey her estate inlands, to make, seal, execute and deliver any > Lewis v. Bradford, 10 Watts, 67 ; Dodds v, Dodds, 9 Barr,315. 2 Grove v. Hodges, 5 P. F. Sm. 504. 3 Jones v. Horner, 10 P. P. Sm. 218. 4 Schmertz v. Shreeve, 12 P. F, Sm. 457. 508 THE LAW OF REAL ESTATE AND grant, bargain and sale, lease, release, feoffment, deed, con- veyance or assurance in the law whatsoever : ' in the manner therein prescribed. A power of attorney to convey lands is held to be an assurance in the law within the meaning of the act. 1 Powers are frequently given to executors to sell the tes- tator's real estate. If the land is expressly devised to them with directions that they shall sell it, of course the title is vested in them and a conversion of the land into money takes place so far as the devisees or persons taking the bene- ficial interest are concerned. And by our statute of 24 Feb., 1834, sec. 13, 2 executors who have a naked power to sell given to them by the will have the legal estate in the free- hold vested in them, and may maintain ejectment to recover possession of the land. 3 The same statute further regulates powers, by enacting * that all powers, authorities and directions relating to real estate contained in a will, where no person is named to exe- cute them, shall be deemed to have been given to the execu- tors. And again, in section 14, that where powers are given to several executors, and some of them renounce or die, the surviving or acting executors may execute the powers, with the same effect as if all had joined. 5 So, also, by the Act of 12 March, 1300, 6 the powers given to an executor by will, are conferred upon one who succeeds him as administrator de bonis non. 1 The powers given to assignees for the benefit of creditors, 1 Fulweiler v. Baugher, 15 S. & R. 45 ; Dalzell v. Crawford, 1 Par- sons, Rep., 50. 2 Purd. Dig., " Decedent's Estates," p. 521, pi. 78. 3 Carpenter v. Cameron, 7 Watts, 51. 4 Sec. 12. 6 Purd. Dig., " Decedents' Estates," pp. 521-2, pi. 77-9. 6 Ibid, p. 520, pi. 73. ' Bell's Appeal, 16 P. P. Sm. 498 ; Lentz v. Boyer, 31 P. F. Sua. 325. CONVEYANCING IN PENNSYLVANIA. 509 by virtue of the Act of 3 May, 1855, 1 survive to the acting or surviving trustee, where his co-trustee has renounced, died or been discharged ; and by Act of 1 May, 1861, section 2, 2 it is provided that where two or more persons are ordered by the court to sell land, and one dies or ceases to act before the sale is effected or a deed executed, the acting or surviving trustee may sell and convey alone. The general rule of the common law is, that where a power is given to several persons, they must all join in executing it. Where an executor holds a mortgage or other lien * upon land, and is obliged to buy the land itself at a judicial sale to save the debt, he takes title to the land as personalty, and his power to dispose of it is the same as that which he had over the mortgage or other debt which the land represents ; 3 and it makes no difference whether the mortgage or other liens originally belonged to the testator, or were the result of an investment made by the executor himself.' The power may be given to a person who could not act in his own right. A married woman may make a deed or a will under a power without her husband's joining in the deed. His concurrence is not necessary where the power is given to her alone. 6 Even an infant may execute a power which is simply collateral, that is, where he has no interest or estate in the land. 6 I have mentioned already the principal legislation in Pennsylvania by which powers granted to several persons continue to be exercisable when some of them are dead, or have refused or ceased to act. The general rule of law is, that where a power is given to several persons, they must 1 Purd. Dig., " Trustees," p. 1659, pi. 76. 2 Ibid, p. 1659, pi. 77. 3 Johnson «. Bliss, 11 W. N. C. 293. 1 Billington's Estate, 3 Eawle, 48 ; Oeslager v. Fisher, 2 Barr, 467. 6 Deffenbaugh v. Harris, 18 W. N. C. 357. 6 4 Kent Com. *324. 510 THE LAW OF REAL ESTATE AND all join in the execution of it, and where one is dead the power is gone ; but this rule does not hold good now. since the legislation referred to, where the power is coupled with the office of executor or trustee. But a mere naked authority without any estate or interest does not survive, and if a power be given to several persons by name, so that it appears to have been the intention to vest the discretion and authority in certain individuals, they must all join ; if one dies, the power can never be executed. It is otherwise where it is given to trustees or executors as such. There the power is annexed to the office, and may, under our statutes, be exer- cised by anyone who holds the office. 1 If the instrument creating the power define and pre- scribe any manner in which it is to be executed, that method must be strictly followed. 2 If that be done, the con- struction is otherwise liberal. If there be no express direc- tions, the power may be executed by writing of any kind — anything to show intention, which is not forbidden by the Statut - of Frauds. There must be enough to make it clear that the intention was to execute the power, although the power itself need not be referred to. It always should be mentioned by good conveyancers ; but if the intention is clear the execution is good, even if nothing is said about 1 Dorff's Appeal, 10 W. N. C. 335; Evans v. Chew, 21 P. F. Sm. 51 Ross v. Barclay, 6 Har. 179 ; Waters v. Margerum, 10 P. F. Sm. 44 Jackman v. Delafield, 4 Nor. 381 ; Lantz v. Boyer, 31 P. F. Sm. 325 Appeal of Children's Hospital, 10 W. N. C. 313. Deeds of conveyance by foreign execntors under power in will, val- idated by Act of 22 May, 1878. P. L. 98. 2 The donor of a power required it to be executed by a testamentary writing, under the hand and seal of the donee. The will of the donee was attested, " In witness whereof, I have hereunto set my hand and seal," and signed, " Ellen Wain, — ." The dash " — " after the signa- ture was from one-sixteenth to one-eighth of an inch in length. The court held that the dash was a seal, and that the power was properly executed. Hecker's Appeal, 6 Crum. 192. CONVEYANCING IN PENNSYLVANIA. 511 the power. 1 Where the power is simply collateral, and the donee has no estate or interest in the land, any dis- position of it which comes within the scope of the power, must be under the power ; otherwise the deed could take no effect, and in such cases questions can scarcely arise. 2 A married woman was given a power of attorney to sell a certain tract of land. She executed a deed in her own name, without referring to the power, and it was held that no title passed. 3 But where the donee of the power has such an estate or interest in the land that the requirements of the deed or will can be satisfied without reference to the power, there it is necessary that the power should be expressly mentioned; otherwise, it will not be presumed that the grantor or testator meant to execute the power.* The Act of 4 June, 1879, 5 provides that in all cases where a power of appointment is executed by will, it need not be mentioned in the will, but that a general devise of real estate shall be construed to include any real estate over which the testator had power of appointment, and to operate as an execution of the power. 6 A general power to sell, in- cludes a power to mortgage. 7 A power to be exercised at a certain time cannot be exer- 1 Keefer v. Schwartz, 11 Wr. 503 ; Taylor v. Smiley, 9 W. 1ST. C. 30 ; Taylor's Appeal, 10 W. N. C. 48. 2 Henby v. Warner, 1 P. F. Sm. 276. 3 Bassett v. Hawk, 19 W. N. C. 50. ' Bingham's Appeal, 14 P. F. Sm. 345; Wetherill v. Wetherill, 6 Har. 265. 5 P. L. 88. 6 This act applies to all cases where the testator dies after the date of the act, whether the will were executed before or after the passage of the act. Aubert's Appeal, 13 Out. 447. 7 Pennsylvania Life Insurance Company v. Austin, 6 Wr. 263 ; Lancaster v. Dolan, 1 Rawle, 231 ; Presbyterian Corporation v. Wallace, 3 Rawle, 109; Gordon r. Preston, 1 Watts, 386 ; Duval's Appeal, 2 Wr. 118; Zane v. Kennedy, 23 P. F. Sm. 182, 192; Fidelity Co. v. Wurfflien, 15 W. N. C. 28. 512 THE LAW OF REAL ESTATE AND cised before. It may be, said not to exist until the time arrives. 1 A power will endure so long as the occasion for its exer- cise requires. It is a question of intention, and it is pre- sumed that the donor of the power intended it to exist so long as necessary to accomplish the result for which he created it. Thus, a power to sell real estate contained in a will which devises the real estate upon different trusts, will remain valid so long as any of the trusts continue. 2 A power which gives a discretion to the donee, cannot be delegated to an attorney, although a power to perform a mere ministerial act may. The Act of 14 March, 1850, 3 which allows fiduciaries to convey lands by attorney, ex- pressly provides that the discretion reposed shall not be delegated, delegatus non potest delegare, unless it is ex- pressly provided that a donee may act by attorney, as is frequently the case in powers of attorney. Powers simply collateral, created inter vivos, may be lost in several ways. They may be revoked, either actually, by deed of revocation ; or constructively, by the donor of the power himself disposing of the subject of it, or by the death of the donor. A power of attorney dies with the con- stituent ; or rather, under the Act of 1705, 4 when the attor- ney has notice that the constituent has revoked his power, or is dead. The estate which is conveyed upon the execution of a power, depends upon the deed in which the power was created. It is as if the deed which created the power, and the instrument by which it was executed, were incor- porated into one. 1 McClintock v. Cowen, 13 Wr. 256 ; Loomis v. McClintock, 10 Watts, 279. " Cresson v. Ferree, 20 P. F. Sm. 446. 3 Purd. Dig., " Trustees," p. 1659, pi. 73. ' Purd. Dig., " Attorney in Fact," p. 131, pi. 3. CONVEYANCING IN PENNSYLVANIA. 513 CHAPTER XVII. WILLS— DEFINITION— WILLS O F LAND— THE ST A TUTE OF FRAUDS— THE WILLS ACT OF 8 APRIL, 18S3 — WHO MA Y MAKE A WILL — TESTAMENTARY CAPACITY — UNDU E INFLUENCE — RIGHTS OF WIDOWS AND SURVIVING HZTSBANDS—WHA T MA Y BE DEVISED— HOW WILLS MA Y BE MADE AND EXECUTED— RULES OF CONSTRUCTION- MODE OF EXECUTION— MUST BE SIGNED AT THE END- MARKS— WILLS OF MARRIED WOMEN— GIFTS TO CHAR- ITIES—REVOCATION OF WILLS— EXPRESS AND IMPLIED —PROBATE AND EFFECT OF WILLS— EQUITABLE ELEC- TION. A will is a disposition of real or personal property, to take effect after the death of the testator. 1 A will of per- sonal property is called a " testament," of real estate a "de- vise." An instument, in order to be a testamentary writing, must be ambulatory or revocable in its nature, that is it must be intended to take effect after the death of the maker, and not sooner. If upon its delivery interests vest, it cannot be considered a will. 2 1 4 Kent Com. 501. For the history of wills, see Maine's Ancient Law, " The Early His- tory of Testamentary Succession," ch. vi, p. 171; ''Ancient and Modern Ideas Respecting Wills and Successions," ch. vii, p. 215 ; Digby Hist. Law Real Prop., "History of the Law of Wills of Land," ch. viii, p. 333. * Bookr. Book, 15 W. N. C. 150; Driesbach v. Serfass,24 W. N.C.23. A man about to leave home wrote and signed a testamentary paper directing certain things to be done in case he should not return. While away he became ill, but was brought home and soon afterwards died. Held, that the paper could not be admitted to probate as a will. It was only to be effective upon the contingency of his not re- turning ; this contingency not having occurred, it could not take effect. Morrow's Appeal, 1 Crum. 440. 33 514 THE LAW OF REAL ESTATE AND A will o£ lands is a conveyance of title. The right to de- vise lands was not known to the common law in early days. It was one of the great advantages found upon the introduc- tion of uses, that the beneficial interest in land could be transmitted by will. The legal title could not be devised, but must of necessity descend to the heir at law. The Statute of Uses, which had the effect of turning these equitable estates, which could be devised, into legal estates, which could not, was followed within a few years afterwards by the Statute 32 Hen. VIII., c. 1, which enabled persons who held lands in socage tenure to dispose of them by will at pleasure, and those whose lands were held by knight ser- vice to devise two-thirds part thereof. The Statute 12 Car. II., c. 24, which changed all tenures into socage, brought nearly all the lands in England which were held in fee-simple, within the operation of the former statute, and enabled their owners to dispose of them by will. Then came the British Statute of Frauds, 29 Car. II., c. 3, which was passed in 1677, five years before Pennsylvania was settled by William Penn, which required that all wills of land 'should be in writing, and signed by the party so devising the same, or by some person in his presence and by his express direction, and should be attested and subscribed in the presence of the devisor by three or four credible witnesses, or else they should be utterly void, and of no effect. This was the law in force in England when the charter of Penn- sylvania was granted, and it remained in force there until 1837. It did not apply to personal property. The rigid requirements of this statute began to be re- laxed by the colonists at once. In the laws agreed on in England, section 15, 1 it was provided that " all wills and writings, attested by two witnesses, shall be of the same force as to lands as other conveyances, being legally proved 1 5 Sm. Laws, p. 4A6. CONVEYANCING IN PENNSYLVANIA. 515 within forty days, either within or without the said province." Until the passing of the Revised Act of 1833, the subject of wills was governed generally by the Act of 1705, 1 which was framed and enacted at a time when, perhaps, there were few persons familiar with legal instruments. The provisions of the act were many of them taken from the Statute of Frauds, 29 Gar. II., c. 3, but the portions of the British statute which directed how wills devising lands were to be exe- cuted, proved and revoked, were omitted entirely, and in- stead the provincial act merely provided that wills in writ- ing, proved by two or more witnesses, should be sufficient to pass real or personal estate ; and it was held by the courts, under this act, that a will was good to transfer real or per- sonal property, although there were no signature to it, nor seal, nor attesting witness, and a great deal of uncertainty and litigation very naturally resulted from such loose legislation. The subject received careful attention from the Commis- sioners, to revise the civil code, 2 and their act as amended 1 1 Sm. Laws, 33. 2 " One of the principal causes, perhaps, we may say, the chief cause, of the litigation which has occurred in our courts upon the subject of wills, has arisen from uncertainty respecting the intention of the al- leged testator. Manuscripts are often found among the papers of a decedent, indicating an intention to dispose of property after his death ; but whether the intention continues to the period of death, or whether the design was complete in itself, or formed only a part of a testamentary disposition, which was intended to be more fully de- veloped, and to establish which, as an entire testamentary act, would defeat the real design of the testator, often remains a problem, be- cause the signature of the party to the instrument is wanting. Thus, if a man having three sons, A., B. and C, and three farms or lots, should leave behind him a paper simply devising one of his farms or lots to A., such paper, although without signature of subscribing wit- nesses, might, under our present law, be established as his entire will, and thus, A. would receive the farm or lot devised to him, and, itlso, share with his brothers the two other farms or lots, although it was probably the intention of the decedent to complete his will by giving to each of his sons an equal share, if circumstances had not pre- vented him. Now, we think the simple expedient of requiring the 516 THE LAW OF REAL ESTATE AND and adopted by the Legislature, has brought about a much more satisfactory state of affairs. This revised act was ap- proved April 8, 1833. ' I. Who may make a will. Every person of sound mind of the age of twenty-one years or upwards may make a will. Married women were excepted from the act of 1833, except so far as they acted under powers, but capacity was given them by the Married Women's Act of 1848. 2 Testamentary capacity, so far as soundness of mind is concerned, is always presumed to exist, until the contrary is shown. The burden of proof, as in the case of a deed, lies upon the person who alleges that the testator was of un- sound mind. It is impossible to lay down a general rule as to capacity to make a will. " What constitutes the want of a sound disposing mind and memory, is incapable of a definition suited to all cases. In Daniel v. Daniel, 3 the court say, ' A sound and disposing mind and memory is one in which the testator is shown to have had at the making and executing of the will, a full and intelligent consciousness of the nature and effect of the act he is engaged in ; a knowledge of the property he possessed ; an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty. It is not necessary he should collect all these in one review. If he understands in detail all he is about, and chooses with understanding and reason between one disposition and another, it is sufficient.' " ' 1 See Purd. Dig.. " Wills," p. 1709 seq. 2 See also act 3 June, 1887. P. L. 333. 3 3 Wr. 191. * Thompson v. Kynes, 15 P. F. Sm. 368, 378. signature of the party to the instrument will remove these difficulties and prevent much of the injustice that might happen, as it will show conclusively that the instrument is a complete and finished act, and thus assimilate it to all other entire and concluded documents." See Report of Commissioners, p. 874. CONVEYANCING IN PENNSYLVANIA. 517 Weakness of mind alone is not sufficient to invalidate a will. A man may be weak in body and mind from sickness or age, or he may be eccentric and even partially insane, that is, be a monomaniac, and yet have testamentary ca- pacity. If the testator knows and understands what he is about, can recollect what he has, and recognize the persons whom he wishes to make his devisees, he has capacity to make a valid will. 1 A frequent allegation against the validity of a will, when made by a person of weak mind, especially when the weakness results from age, is that it was made under undue influence, by which is meant, that such influence was brought upon the mind of the testator that at the time of making his will he was not a free agent. In consider- ing this question, a great deal depends upon the circum- stances of each case, and especially upon the relations to the testator of the person by whom the undue influ- ence is alleged to have been exercised. If he be one who derives little or no benefit from the will, the proof required is much stronger than if he be one who takes a large inter- est under it, 2 especially where he is an entire stranger with no claims upon the testator from lawful relationship ; and where the person who is accused of exerting an unlawful 1 Stevens v. Van Cleve, 4 Wash. C. C. 262 ; Pidcock ». Potter, 18 P. F. Sm. 342 ; Bitner v. Bitner, 15 P. F. Sm. 347. See also Palmer's Est., 5 W. N. C. 542 ; Hopple's Est., 7 W. N. C. 523 ; Harrison's Appeal, 4 Out. 458 ; Eogers' Est., 19 W. N. C. 383 ; Shaver v. McCarthy, 14 Out. 339 ; Thomas' Est., 20 W N. C. 336. In Wilson v. Mitchell, 5 Out. 495, the testator was over a hundred years old, blind from senile cataract, and nearly deaf; the attorney who drew the will took a substantial benefit under it ; yet the court held that there was no evidence of want of testamentary capacity which required to be submitted to a jury. See also Winpenny's Appeal, 8 W. N. O. 415 ; Burden's Appeal, 11 W.N. C.138; Wilson's Appeal, 8 Qut. 545; Eddy's Est., 14 W. N.C. 551 ; Linton's Appeal, 14 W. N. 0. 473. 1 Boyd v. Boyd, 16 P. F. Sm. 283. 518 THE LAW OP REAL ESTATE AND influence upon the mind of the testator stands in the confi- dential relation of attorney or professional adviser to him, and the will is made in his favour, the circumstances are regarded as suspicious, and the burden of proof that the testator was acting of his own free will is thrown upon him. " Undoubtedly," says Judge Sharswood, in the case last cited, " if the counsel of an old man whose mental faculties are impaired, though not destroyed by advanced age, should draw for him a will, giving to himself the bulk of his estate, or a very considerable part of it, it would not be enough to show the formal execution of the paper, in the presence of two subscribing witnesses called in for the purpose. He must go further, and rebut the presumption by some evi- dence that the disposition made was the exercise of the free will of the testator.'' ' It seems, therefore, that where a stranger, who takes a very considerable benefit under a will, was in a position which naturally and reasonably gave him a strong influence over the mind of the testator at the time the will was made, that circumstance alone is sufficient to rebut the ordinary primary presumption of testamentary capacity and free will, and to raise a presumption the other way, which those who main- tain the will are bound to meet and overthrow by positive proof. 2 1 Boyd v. Boyd, 16 P. F. Sm. 294; Cuthbertson's Appeal, 1 Out. 163 ; Wilson's Appeal, 3 Out. 545. See Herster v. Herster, 7 Crum. 239, where the subject is fully considered in the opinion of Mr. Justice Clark. Murdy's Appeal, 8 Crum. 464. Humphries Est., 24 W. N. C. 144. The sufficiency of the evidence to establish testamentary incapacity is for the court. It is error to submit it to the jury. Kauffman v. Long, 1 Nor. 72. 2 Dean v. Kegley, 5 Wr. 312; Dusliane's Appeal, 4 W. N. C. 78. To the same effect, see Main, v. Ryder, 4 W. N. C. 173; Wain- wright's Appeal, 8 Nor. 220 ; Frew v. Clarke, 30 P. F. Sm. 170 ; Cuih- bertson's Appeal, 10 W. N. C. 69; Herster v. Herster, 1 Crum. 612; CONVEYANCING IN PENNSYLVANIA. 519 The Married Women's Act of 1848, gave to married women power to devise their own lands as well as to dispose of their personal property by will. Their wills must be executed in the presence of two witnesses, neither of whom shall be the husband. 1 All married persons, whether husbands or wives, are so far under disability to make a valid will, that either of them who survives may refuse to take under the will of the other, and will, in such case, be entitled to a share of the estate, according to law ; so that neither husband nor wife can abso- lutely cut off the other from all benefit in their respective estates. A widow who refuses the provision made for her by her husband's will may, under the 11th section of the Act of 1833, take her common law dower in his real estate, that is one-third thereof for her life, and under the 11th section of the Married Women's act of 1848, her share of his personal es- tate under the intestate laws. Between 1833 and 184S, a husband might have cut his wife off from all share of his personal estate, because the act of 1833, only gives her a 1 A married woman may dispose of her property, real and personal, by last will and testament in writing, signed by her, or manifested by her mark or cross, made by her at the end thereof, in the same man- ner as if she were unmarried. Sec. 5, Act 3 June, 1887, P. L.333. A married woman's will must be executed in accordance with the act of 1833. Knox's App., 25 W.N. C. 133. In this case the signature consisted of the first name only, and it was held to be sufficient. s. C. 7 Crum. 239 ; Blum v. Hartman, 5 Amer. 32 ; Yardley v. Cuth- bertson, 12 Out. 395; Trost v. Dingier, 20 W. JST. U. 408. When a will is contested upon the ground of want of testamentary capacity, there is usually connected with this charge, an allegation of "undue influence." These two allegations are so closely connected that where one is proved, there is always ground to suspect that the other is also true, and where an issue devisavit vel nan is directed by the orphans' court on either of these grounds, the other should also be included in the inquiry. Wilson's Appeal, 3 Out. 545; Kates Est., 16 W. N. C. 100. 520 THE LAW OF REAL ESTATE AND choice between the provision in the will and her dower. 1 The section in the act of 1848, seems in terms to give a choice between the provision in the will and the share of Lhe personal property under the intestate laws, but it was gen- erally understood to mean that if she chose to take against the will she should have her dower in the real estate and her share of the personal property also. 2 By the Act of 20 April, 1869, 3 the 11th section of the act of 1833 is amended, so that instead of common law dower, the widow refusing to take under the will is entitled to such interest in her hus- band's real estate as she would have had if he had died in- testate. The effect of all this legislation is, that a widow may choose either to accept what is left to her by her hus- band in his will, or to take such part of his estate, real and personal, as she would have taken if he had died in- testate. The surviving husband has also a similar right to set aside his wife's will. The act of 1848, by which, as I have said, the right to make a will was first conferred upon a married woman, contained only one restriction upon her power to dispose of her property in this way, and that is found in a proviso to the 10th section. 4 " Provided, that nothing contained in this act shall be deemed or taken to deprive the husband of his right as tenant by the courtesy." In every other respect her power was absolute and she might deprive her husband of all interest in her estate, except his curtesy. This continued until 4 May, 1855, when an act was passed restricting a married woman's power to dispose of her estate by will to the same extent, as regards her husband, as his power was restricted with respect to her, u Namely, so that any surviving husband may, against her will, elect to take 1 Hinnershits v. Bernhard, 1 Har. 518. 2 Melijet's Appeal, 5 Har. 454. 8 Pnrd. Dig. "Dower," p. 633, pi. 10. ' Purd. Dig., " Marriage," p. 1152, pi. 17. CONVEYANCING IN PENNSYLVANIA. 521 such share and interest in her real and personal estate, as she can when surviving, elect to take against his will in his estates. 1 " But the act of 1855 still leaves him the right which he had under the Married Women's Act, to take her real estate as tenant by the curtesy. So that now a surviving husband may elect any of these three : To take what his wife gives him in her will ; to take against her will, a share of both real and personal estate equal to what the law would give her in his estate, against his will ; or, to take none of her personal estate, but all her real estate as tenant by the curtesy. 2 These remarks do not apply to wills made under powers. II. What may he devised. Every interest in land which endures beyond the life of the owner may be devised by him. The first section of the act of 1833 specifies " real es- tate, whether such estate be held in fee simple, or for the life or lives of any other person or persons and whether in severalty, joint-tenancy, or common." 3 And the fifth section of the same act allows a tenant for life to dispose of emble- ments, or of rents or periodical payments, which accrued before the death.' III. How wills may he made and executed. I leave the 3ubject of nuncupative wills, as not having anything to do with real estate. Only personal property can be transmitted by a nuncupative will ; real estate cannot. The sixth section of the act of 1833, enacts that "every ' Purd. Dig., " Marriage," p. 1153, pi. 26. 2 Dickinson v. Dickinson, 11 P. F. Sm. 401. In this case the judge seems to have overlooked the proviso to the 10th section of the Mar- ried Woman's Act, " that nothing contained in this act shall be deemed or taken to deprive the husband of his right as tenant by the curtesy," for lie says, p. 405, " when she exercised the power of a testatrix, she could do it as absolutely as any other person, and therefore could will away from her husband, as well as from her children." 3 See report of commissioners, p. 873. " Purd. Dig., " Wills," p. 1709, pi. 5. 522 THE LAW OF REAL ESTATE AND will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sick- ness, shall be signed by him at the end thereof, or by some person in his presence and by his express direction * * * otherwise such will shall be of no effect." ' The rule estab- lished by this section, that every will must be in writing, is, as to devises of real estate, without any exception what- ever. 2 There are many forms of wills. The most usual is, " Be it remembered," etc., " This is the last will and testament," etc. The word '" item," in a will, does not mean '• in like manner," but "in addition." 3 It would be impossible to enter at length into the rules for ' Purd. Dig., " Wills," p. 1709, pi. 6. 2 A curious will was offered for probate to the Register of Wills of Chester county in 1873. Miss. Woodward, who died in May of that year, left among her effects a slate upon which she had written her will with a slate pencil. It was in regular technical form, and pur- ported to dispose of her entire estate. The register refused to admit it, and on appeal, he was sustained by the Register's Court of the county. The Supreme Court said that they did not find it necessary to decide the question whether a " slate will can be admitted to probate, and affirmed the decision of the Register's Court upon other grounds. In re Phcebe Ann Woodward's will, 1 W. N. C. 177. It was asserted in the argument that " no lead pencil will was ever admitted to probate in Pennsylvania ; although two New York cases were cited where a lead pencil writing had been held valid under the Statute of Frauds. Cleason v. Bailey, 14 Johns. 484; Merritt u.Cleason, 12 Johns. 106. In Legal Intelligencer for 1875, p. 179, is an opinion by the orphans' court that a will written and signed in ink and subsequently corrected in lead pencil, is good as corrected, and may be admitted to probate, and that the lead pencil corrections form part of the will. Will of William H. Fesquet, 32 Leg. Int. 179. In Patterson v. English, 21 P. F. Sm. 454, the Supreme Court re- fused to decide the question whether a will written entirely in lead pencil was good under our statutes. It is well settled in England that such a will is valid, if it has the other requirements. In Myers v. Vanderbilt, 3 Nor. 510, it was held that a will written and signed with lead pencil was good. a As to meaning of "item," "also," etc., see Evans v. Knorr, 4 Rawle, 66. CONVEYANCING IN PENNSYLVANIA. 523 the construction of wills, the subject is so large and the cases are almost numberless. The great and leading maxim is, that the intention of the testator is to be ascertained and carried into effect. The books use the expression that the intention is the Polar star for the court. 1 The courts bear in mind that men, in writing their wills, a,re frequently without proper advice, or, as the phrase is, " inops consilii," and they are very liberal in their construction. There are, also, some statutory rules of construction under our Wills Act, which are very important. The rule which applies to deeds, that words of inheritance are necessary to pass an estate in fee, is not applicable to wills, under the 9th section, but a devise of real estate to a person, without any other words, which in a conveyance inter vivos would pass only a life estate, in a will passes the whole estate of the testator, unless it appears from his will that he intended otherwise, as by a limitation over, or by express words. 2 Prior to this act the law was that a will to pass title in fee-simple must contain words of inheritance, or some expression of intention equivalent thereto, 3 and as the Act of 1833 was not retrospective, it did not apply to 1 Baker and Wheeler's Appeal, 5 Amer. 590; Hellerman's Appeal, 5 Amer. 120. In expounding a will, the question is not what the testator meant, but what is the meaning of his words. Hancock's Appeal, 2 Amer. 532 ; Howe's App., 11 Crum. 323; Woelpper's App., 11 Crum. 562. A will must be so construed that every clause may take effect, if possible. Finney's Appeal, 3 Amer. 11. It is presumed that the testator did not mean to die intestate as to any part of his property. Widener v. Beggs, 20 W. IS". C. 489 ; Miller's Appeal, 3 Amer. 459. Where the mode of distribution is doubtful, the principles of the intestate acts will be applied. Finney's Appeal, 3 Amer. 11 : Dunlap's Appeal, 19 W. N. O. 524. See, on construction of a will, McDonald v. Dunbar, 20 \V. ST. C. 559. 2 Act 8 April, 1833, sec. 9, Purd. Dig., " Wills," p. 1711, pi. 10. 3 Clarton v. Clayton, 3 Biun. 476; Steele v. Thompson, 14 S. & R. 84. 524 THE LAW OF REAL ESTATE AND wills made befqre its passage ; ' but whenever it appeared that there was an intention to give a fee it would be carried into effect without words of inheritance, as, for instance, where a testator began his will by reciting his purpose to give all his estate. 2 This ruling has been relaxed in recent cases, and the intention of the testator held to govern. 3 The 10th section was made, so it is said, to meet the de- cision of the courts upon Stephen Girard's Will, 4 so that since the passage of that act all the estate which a man has at his death passes by a residuary devise, whether he owned it at the time of his will or not, unless it appears upon the face of the will that he intended otherwise. 5 Certainly, this statutory rule of construction is much more in accordance with the general understanding. A devise or bequest to a widow by her husband in his will, is declared by the 11th section to be in lieu of dower, unless the testator expressly order otherwise. 6 The 12th section (amended by the Act of May 6, 1844) provides for cases of lapse, where a legacy or land is be- queathed or devised to one who dies before the will goes into effect. The common-law rule is that such legacies or devises lapse, or fall back into the testator's estate. Such lapsed devises will go to the heirs of the testator, and not to the residuary devisee, unless the language of the will indicates clearly an intention to pass lapsed devises into the residue. 7 1 Mulloch v. Souder, 5 W. & S. 198. 2 Caldwell v. Ferguson, 2 Yea. 250, 3S0 ; Oassel v. Cooke, 8 S. & R. 290. 3 Hall v. Dickinson, 7 Cas. 76; Schoonmaker v. Stockton, 1 Wr. 461: Smith v. Coyle, 1 W. N. C. 370 ; Coyle's Appeal, 2 Nor. 242. See note to 2B1. Com. 108, note 5; Whart. Dig., " Wills," Ch. V. 4 See City v. Davis, 1 Whart. 502. Girard v. Philadelphia, 4 Rawle, 323. 6 Purd. Dig., " Wills," p. 1711, pi. 11. v - Purd. Dig., " Wills," p. 1711, pi. 12. 7 Yard w. Murray, 5 W. N. C. 21. CONVEYANCING IN PENNSYLVANIA. 525 This is because an heir is not to be disinherited without a clear expression of intention to that effect. 1 The contrary- presumption holds as to bequests of personalty, because the law supposes that a testator does not mean to die intestate as to that ; consequently, lapsed bequests and legacies fall to the residuary legatee, unless a contrary intention appears. 2 Under the statutes just mentioned devises and legacies given to lineal descendants of testator do not lapse ; if the devisee or legatee leave issue, the issue take, and where the testator has no lineal descendants, the same rule holds with respect to brothers and sisters and their children. 3 By the Act of 4 June, 1879, 4 it is provided that all lapsed devises and legacies shall go to the residuary devisee. The act is expressly meant to operate upon the wills of all per- sons who die after its date? By the same act it is provided that wills shall speak as from the death of the testator, and not from the date of the will. 6 Mode of execution. The will being written, must be signed at the end thereof, either by the testator himself, or by some person in his presence and by his express direction. This • requirement the courts enforce strictly. It was formerly the custom under the law of England for the testator to sign each separate sheet. This is not necessary in Penn- sylvania. It is not a compliance with the statute, and though it will not vitiate a will if it be signed also at the end, it will not be enough to take the place of such a signature.' One of the hardest cases in the books arose out of a non- 1 Patterson v. Swallow, 8 Wr. 490; Howe's App., 11 Crum. 233. 2 Neff's Appeal. 2 P. P. Sm. 326; Massey's Appeal, 6 W. N. C. 529. 3 Act 8 April, 1833, sec. 12, and act 6 May, 1844, sec. 2, Purd. Dig. •' Wills," p. 1711, pi. 14, 15. 4 P. L. 88. Sec. 4. 6 Seel, Purd. Dig., "Wills," p. 1713, pi. 23, 24. See Appeal of Fidelity Co., 12 Out. 492. 7 Ginder v. Farnum, 10 Barr, 98. 526 THE LAW OF KBAL ESTATE AND compliance with this rule, through a singular mistake. An aged couple, husband and wife, having no lineal descendants, and each owning property, determined to make their wills in favour of each other, so that the survivor should have all they possessed. Their wills were drawn precisely alike (ex- cept the names) and laid down upon a table for execution. Each signed a paper, which was duly witnessed by three subscribing witnesses, and the papers were enclosed in sepa- rate envelopes, endorsed and sealed up. After the husband's death the envelopes were opened and it was then found that each, by mistake, had signed the will prepared for the other. The court, regretting the necessity, decided that the husband had died intestate, and that an Act of Assembly which was passed subsequently to remedy the mistake, was unconstitu- tional and void. 1 After the signature of the testator it is extremely unsafe to have anything written, except the usual clause of attesta- tion which is not signed by him. It fails to come within the requirement of the law that the will shall be signed at the end, and may invalidate the whole. In Hays v. Harden, 2 a testator added, after his will, a clause giving his reasons for making the will, and then came the attestation clause. The Supreme Court held that the will was not signed at the end, and it was consequently invalid ; 3 but where the ad- ditional matter does not affect the interpretation of the will, it will not affect its validity.* A will may be made upon several distinct pieces of paper, and it is sufficient if they are connected by their internal sense ; and even if there be some confusion in the order of 1 Alter's Appeal, 17 P. F. Sra. 341. 2 6 Barr, 409. 3 A will is not signed at the end thereof when the signature of the testator precedes the final clause appointing executors. Wine- land's Appeal, 3 Crum. 37. 4 Wikoff's Appeal, 3 Har. 281. CONVEYANCING IN PENNSYLVANIA. 527 their arrangement when fastened together, they are to be read according to their coherence or adaption of parts. In Fosselman v. Elder, 1 the question arose upon a sealed en- velope found among the papers of a deceased lady, upon which was written, '• Dear Bella, this is for you to open." The contents of the envelope were a promissory note given by a stranger to the decedent for $2,000, and a paper in the decedent's handwriting, in these words : u Lewistown, Oct. 2, 1879. My wish is for you to draw this $2,000 for your use, should I die sudden. Elizabeth Fosselman." The Supreme Court held that the envelope and its contents all together constituted a valid codicil to testatrix's will. 2 In David S. Baker's Appeal, 3 the will in question was written on the first and third pages of a sheet of foolscap paper, and was signed and sealed by the testator at the foot of the third page, and there attested by three subscribing witnesses. On the fourth page was an unsigned and unattested clause, which read as if it was meant to form part of the body of the will. It was held that although the instrument thus formed was not signed by the testator at the end thereof in point of space, it was signed at the end of the will in point of fact, and that it was a valid will under the statute. In Baldwin's Estate,* a question arose upon the construc- tion of this clause of the statute. Mr. Baldwin, a distin- guished lawyer, dictated his will while he was lying upon his death bed, and directed two persons (one of whom wrote it) to sign it as witnesses. He did not sign it himself, any- where. Whether he could have done so, did not appear. The orphans' court held that it was a valid will. 5 After a will is once made and executed completely, an 1 2 Out. 159. 2 See Magoohan's Appeal, 2 Crum. 238. ■15W.N. C. 473. ' 16 W. N. C. 300. 5 See Wall v. Wall, 8 Orum. 545. 528 "THE LAW OF REAL ESTATE AND unexecuted codicil will not invalidate it, because the codicil is a new matter, and not part of the will itself; and the will is protected also by another section of the same statute, which provides how a will properly made and executed may be revoked. 1 Although the act requires that a will shall be signed by the testator, or some one by his direction, yet it is good if he receives assistance from some one in making his signature. 2 A mark is a good and sufficient signature to a will by the act of 27 January, 1848, 3 and the same rule applies here as to signatures, that the person who executes a will by a mark may receive assistance from another. It is still his own act.* But it seems that the mark must be made ; where the scrivener at the testator's request wrote his name at the end of the will, with the intent that the mark should be added, the Su- preme Court thought the will not well executed if the tes- tator failed to add his mark. 5 There need be no subscribing witnesses to the will in order for it to be valid and effectual in Pennsylvania. 6 The rule itf different in other states. The act requires that the will shall be proved by two witnesses, but this is a direction as to how probate shall be made not how the will shall be executed. There are two exceptions to this rule. 1. A married womarts will must be executed in the pres- ence of two credible witnesses, neither of whom shall be 1 Heise i>. Heise, 7 Cas. 246. 2 Vandruff v. Rhinehart, 5 Cas. 232. 3 Purd. Dig., " Wills," p. 1710, pi. 7. * Cozzen's will, 1 1 P. F. Sm. 196. 6 Main v. Ryder, 4 W. N. C. 173, 3 Nor. 217. Where the initials of the testator's name were written in ink, the remaining letters of the signature being impresed upon the paper by the pen without ink, and distinguishable with the aid of a magnify- ing glass, the will was admitted to probate. Be Jakob's Will, 21 W. N. C. 510. 6 Canon's Appeal, 9 P. F. Sm. 493. COJJVEYANCma IN PENNSYLVANIA. 529 her husband. The act does not say that, they shall attest or subscribe as witnesses, but it is different from the general provision of the act of 1833, in so far as it requires the wit- nesses to be present at the signing, while the Wills Act merely requires the will to be proved by two witnesses. They should certainly subscribe a married woman's will. 1 The husband may be present at the execution of the will. The act only makes him incompetent as a witness to prove it. 2 2. A will which makes any devise or bequest for any reli- gious or charitable use must have two disinterested subscribing witnesses. It must also be made one calendar month before the decease of the testator. 3 This is not retrospective and wills made before the act was passed are good without sub- scribing witnesses, if otherwise properly proved. 4 The act says " attested by two credible, and at the time, disinterested witnesses." A credible witness is one who is not disqualified to testify by mental incapacity, interest, crime, or other cause ; and a disinterested witness is one who has no legal interest. A witness is not incompetent on the score of interest, unless he has a certain, not a possible, benefit in the event of the suit or the matter in controversy. A servant receiving wages is a competent witness for his employer. 5 IV. Revocation of wills. Express Revocation. A written will concerning real estate 1 The necessity of having witnesses to a married woman's will seems to be obviated by section 5 of the Act of 3 June, 1887, P. L. 333, which enables her to dispose of her property in the same manner as if she were unmarried. See Knox's Appeal, 25 W. N. C. 133. 2 Dickinson v. Dickinson, 11 P. F. Sm. 401. - Act of 26 April, 1855, sec. 11, Purd. Dig. " Charities," p. 252, pi. 27. A gift to the Carbon Co. Law Ass'n, made within thirty days of the testator's death, was held to be void. Craig v. Lilly, 19 W. N. C. 375. See Wilkinson v. Buist, 9 Crum. 253; Fidler v. Lash, 10 €rum. 87. * Taylor v. Mitchell, 7 P. F. Sm. 209. 5 Comb's and Hankinson's Appeal, 15 W. N. C. 247. 34 530 ' THE LAW OF REAL ESTATE AND cannot be revoked or altered except by some will, codicil or writing executed and proved like a will, or by burning, cancel- ling, obliterating or destroying the same by the testator him- self, or by some one in his presence and by his express direction. 1 The best way, if a will is revoked, is to destroy it, to put it out of existence, but any aojt which amounts to a cancella- tion is enough. A will may be revoked by another will or codicil, or other writing, declaring a repeal. 2 Hence it is a prudent habit in a conveyancer to put such a clause in a will when preparing one. It sets any question which might be raised definitely at rest. The statute says, " a will or codicil, or other writing.-'' So a will may be revoked by a writing which is neither a will nor a codicil, but simply a writing declaring the intention to revoke. Such a paper need not be propounded to the register for probate. 3 A will may be revoked by acts done to the paper itself which amount to cancellation. What is cancellation ? The Supreme Court have defined it as " not to be understood to mean exclusively drawing crossed lines upon the paper, but it means any act done to it which, in common under- standing, is regarded as cancellation with regard to any other instrument." No one would doubt that drawing a line through the signature would amount to cancellation if done with an intent to annul the instrument, nor would any one doubt that writing the word " cancelled " or " annulled " upon an instrument, would be an act of cancellation, if 1 Act 8 April, 1833, sec. 13, Purd. Dig. " Wills," p. 1711, pi. 16. ' But a will is not revoked by a subsequent instrument intended to confirm it. Aubert's Appeal, 13 Out. 447. 3 Rudy v. Ulrich, 19 P. F. Sm. 177. A codicil should not be held to disturb the disposition of the will further than is absolutely necessary for the purpose of giving effect to the codicil. Reichard's Appeal, 1 Crum. 232. CONVEYANCING IN PENNSYLVANIA. 531 done with intent to destroy it, by one who had authority to do so. 1 Implied Revocation. Marriage or the subsequent birth of children not provided for in the will, operates as a revocation of the will so far as the widow, or subsequently born child or children, is concerned. 2 A subsequent will, purporting to dispose of the testator's entire estate, without a revoking clause, will just as effectu- ally repeal a will as if the intent were declared ; 3 and where a man has made two wills, the first of which is of course re- pealed by the making of the second, a revocation of the last will restores the first to validity. An illustration of this 1 Evans' Appeal, 8 P. F. Sm. 238. A copy of a lost will was admitted to probate in Wayne Co., Pa. Foster's Appeal, 5 W. N. C. 413 ; Snyder v. St. Leonards, L. R. 1 Prob. Div. 154. ! Act of 8 April, 1833, sec. 15, 16, Purd. Dig. " Wills," p. 1712, pi. 18. Fransen's will, 2 Cas. 202; Willard's Appeal, 18 P. F. Sm. 329. Perry's Est., 19 W. N. C. 183 ; five years after the probate of a will, an attempt was made to impeach a devise on the ground that the tes- tatrix was a single woman at the date of the will, and subsequently married, but the court held that it was too late, the act of 22 April, 1856 \ 7,(Purd. Dig., Decedent's Estates," p. 509, pi. 12) , declaring that a will devising real estate shall be conclusive as to such realty, unless within five years from probate, the validity of the will is con- tested. Broe *'. Boyle, 12 Out. 76, 81. A man about to marry, made a will bequeathing part of his property to his betrothed, " Miss Sarah C. Fairman." Five days afterwards he married her, and subseqently died. The interest given to the widow by the will was greater than her interest under the intestate laws, and she did not elect to take against it. Held, that the will was not revoked by the marriage. Whitney's Est., 20 W. N. C. 57. In the interesting opinion of Judge Penrose will be found a history of the rule that a will is revoked by the subsequent marriage of the testator. The judgment was affirmed by the Supreme Court. Fidelity Trust Co.'s Appeal, 6 Crum. 1. An illegitimate child, born before the date of his father's will, and subsequently, after the date of the will, made legitimate, by the mar- riage of his parents, is not an afterborn child, within the meaning of the act of 8 April, 1833. McCullock's Appeal, 3 Amer. 247. 3 Flintham v. Bradford, 10 Barr, 82. 532 THE LAW OF REAL ESTATE AND principle is furnished by Neff 's Appeal. 1 The testator, John R. Neff, made a will in 1850, and another in August, 1857. In the second will, he expressly reyoked all former wills. In October, 1857, two months after the last will was made, he wrote a codicil on the old will of 1850, revoking some of its provisions, and not mentioning the recent will. The court held that it was clear that the last will was revoked, and the old will of 1850 revived by the codicil. 2 V. Probate and effect, of wills. Wills are proved after the decease of the testator, before the register of wills of the county where he had his domicil. The statute requires two witnesses, but they need not be subscribing witnesses, and it is not necessary that they should have seen the testa- tor sign, and even proof that the signature of the testator was genuine is sufficient. 3 A will takes effect only from the death of the testator, until that time it is said to be ambulatory, and he may alter it at pleasure. The register in admitting a will to probate, does a judicial act, and as to personal estate, his decree is conclusive unless appealed from within three years.* The probate is conclusive as to real estate unless contested by caveat and action at law duly pursued within five years from the date of probate, and there is no exception in favour of persons under disabilities ; minors, married women, lu- natics and all are bound by it. 5 Any one interested may contest the decree admitting the probate, by an appeal to the 1 12 Wr. 501. 1 Hamilton's Est., 24 P. F. Sm. 69 ; Bradish v. McClellan, 13 W. N. 0.3. 3 Weigel v. Weigel, 5 Watts, 486 ; Leckey v. Cunningham, 6 P. F. Sm. 373. * Purd. Dig. " Decedent's Estates," p. 509, pi. 11-12. s Folmar's Appeal, 18 P. F. Sm. 482 ; Cochran r. Young, 14 "W. N. C.345. CONVEYANCING IN PENNSYLVANIA. 533 orphans' court at any time within five years from the date of the register's decree. 1 But it cannot be impeached collater- ally in an action of pjectnient. 2 In Frey v. Klebe, 3 the will in question had not been signed by the testator as required by the statute, nevertheless the register had admitted it to probate. The court (Ludlow, J.) was of the opinion that the probate was conclusive after five years under the act of 1856.* The register may admit wills proved in another State to probate upon a proper certificate of the surrogate or other officer, as required by the Act of Assembly. His issuing of letters is proof of his admitting the will to probate, and the will can then be received in evidence in a controversy re- specting land. 6 Personal property is governed by the law of the testator's domicile, real estate by Lex rei sitae. No one can claim under a will without giving full effect to every part of it. This is called the Doctrine of Equitable Election, and is very strictly enforced. If a widow takes under a will she cannot afterwards set it aside and claim her 1 McUort's Appeal, 11 W. N. C. 41. 2 Wilson v. Gaston, 11 -Nor. 207. 3 36 Leg. Int. 1879, 115, 13 Phila. 99. * This rule must be understood as qualified by the same conditions that qualify the conclusiveness of judgments at law, i. e. the register must have jurisdiction. In Wall v. Wall, 8 Crum. 545, Isaac Wall, realizing the dangerous character of his illness, gave directions to a scrivener for the preparation of his will. Before the writing was ready for his examination he died. The writing was presented to the register for probate in the same condition in which it left the hands of the scrivener, an unexecuted writing. The register admitted it to probate as the last will of Isaac Wall. In an ejectment suit brought more than fifty years after the date of probate, it was held that the writing was not a will, and that the decree of the register admitting it to probate was a nullity. 5 Lovett v. Matthews, 12 Har. 330. By the act of 23 April, 1889 (P. L. 48), exemplifications of wills re- lating to real estate properly proved in one county, may be filed in any county in the Commonwealth. 534 THE LAW OF REAL ESTATE. dower. The will is either good in all parts or none. Where a testator devises away property which was not his, and in his will gives to the owner of the property a legacy or devise, such owner must give his property up, if he takes under the will. He cannot have both. 1 1 Van Dyke's Appeal, 10 P. P. Sm. 481. THE END. INDEX. -See Deeds. ACKNOWLEDGMENT OF DEEDS, before whom, and how made, 458-461 bond fide purchaser protected against fraudulent acknowledgment, 463 certificate of, .... 460-461 of married women, ... . ... 461-463 defective, of married women, .... .... . 463 fraud upon a married woman in, . . 463 necessity of seal to certificate of, 464 ACKNOWLEDGMENT OF RECEIPT. ACTIONS, divided into real and personal, ADOPTED CHILDREN, are not thereby made relations, . inherit under statute, . . ADOPTED PARENTS, inherit to the exclusion of natural parents, ADVANCEMENT, definition of, grandchildren taking per capita or by representation, 297 what is an, determined by attendant circumstances 296 AGENTS. — See Statute of Frauds. AIDS. — See Knight-service. ALLUVIONS, general doctrine of, . . . , 29 on navigable rivers, . . 29 rule in Pennsylvania governing riparian owners' titles, . . 30 ALIENATION, by King, . . 352 by Queen, .... . . . 352 by Commonwealth, . . 352 by married women. — See Married Women. of land by tresspasser, . . 274 of land in mere naked possession, . . 264 of land by persons out of possession, . . . . 352 who may alien and to whom, . . 351 (535) 282 281 298 296 536 INDEX. PAGE ALIENS, can now have curtesy, ... . 139 inherit by statute, 280 power to hold land, 321, 386- ALTERATIONS, of deeds. — See Deeds. AMENDMENT, of sheriffs return to deed 497 ANCIENT DEED, . 424 ANCIENT LIGHTS.— See Prescription. ANTE NUPTIAL AGREEMENTS, bar dower in equity, . 157 APPENDANT, definition of, ... 37 APPURTENANT, definition of, . 37 APPURTENANCES.— See Deeds. ASSIGNMENT.— See Deeds. of covenants. See Covenant. of mortgage may be recorded, 207 ASSIZE OF NOVEL DISSEISIN. nature of, . . .... 260, 267 ATTAINDER, at common law, . . .... 280 limited by constitution, . . , . .... 280 ATTENDANT TERMS.— See Estates fob Years. ATTESTATION.— See Deeds. ATTORNMENT. not necessary in Pennsylvania, ... . . . 164, 351 BANKRUPTCY.— See Fobfeiture. BARGAIN AND SALE.— See Deeds. BASE FEES.— See Fee Simple. * BASTARDS, common and civil law rules a.s to, . . . 277 definition of, . . . 273 eigne' and mulier puisne, . . 275 legitimated in Pennsylvania, . . . . ». . . . 275 legitimated in one state, remain bastards elsewhere, . . 274 liberal construction of statutes concerning. . . . . 276 may become legitimate, . . . . 274 may be born in wedlock, . . . . . 273 mothers of, cannot recover for injuries to, . . 280 strict construction of act of 1855 remedied by act of 1883, . 279 subsequent marriage of parents. . . 275 INDEX. 537 BIRTH OF ISSUE, necessary for husband's right to curtesy, . . . i . . .135,136 BOUNDARIES, natural, govern rather than courses and distances described in deed, 427' streets and streams, . . ... 428 rights of riparian owners, rights of owners on highway, 427 See Riparian Owners ; Ways. BRIDGES. are ways, . . , . . 55 BURIAL LOTS AND PEWS.— Sec Easements. CANALS, are ways, . . . . 55 CANCELLATION OF WILLS.— See Wills. CAPIAS, married women cannot be arrested on, 386 CHATTELS, priviliged from distraint, : . . . 73, 75 when chattels become fixtures, . . ... 17, 18 See Fixtures. CHARITABLE USES, corporations and unincorporated societies may be trustees for, . . 358 regulation of devises and gifts to, . . . . 529 statutory regulation of, . 358 what are, ...» 357 CHILD, CHILDREN, afterborn, ... . ... 531 one legitimated by marriage is not an afterborn, . . 531 as words of limitation or of purchase, . . . . 229 birth of, revokes will, ... . 531 en ventre sa meVe, . .... ... 231, 232 posthumous can be executor, , . 232 legal status of, . . 231 takes remainders by statute, . , 231 COAL MINES, mortgages of leasehold estate in, ... . 191 COHABITATION.— See Marriage. COLLATERAL KINDRED.— See Descent. COMMON. appendant, 39 appurtenant, ... .39 beasts levant and eouchant, . 39 because of vicinage, . ... 41 certain Pennsylvania cases, ... ... . 42-45 538 INDEX. COMMON — continued. commonable beasts, consume the soil or its products, . . definitions of, in gross, lie in prendre, of estovers, of pasture, of pasture in Pennsylvania, of piscary, . of turbary, . ... remedies and rights, . ... rights in the nature of. . . . ... COMMON RECOVERY.— See Estates Tail. account of, cannot be made subject to writ of error after two years, cannot be impeached collaterally, . . distinguished from a deed, . . ... in Pennsylvania, . . . lunatic may suffer, made of same effect in Pennsylvania as in England, . * CONDITIONS.— See Estates upon Condition. are sometimes void, distinction between condition and covenant, . equity's jurisdiction in certain breaches of, . . in deeds, . . . precedent and subsequent, ... . . words making both condition and covenant, . . CONDITIONAL FEES.— See Fee Simple. CONDITIONAL LIMITATIONS, their origin, . . CONFIRMATION.— See Deeds. CONSIDERATION— See Deeds. good and valuable, . CONSTITUTIONAL LAW, restrictions upon the Legislature, CONTINGENT REMAINDERS.— See Remainders. CONTINGENT USES.— See Uses ; Remainders. CONSANGUINITY. is either lineal or collateral, methods of computing, CONSTRUCTION OF DEEDS.— See Deeds. PAGE . 39 37 38 . 41 . 37 . 41 3H-41 39, 40 45 41 47 41-45 109-110 114 . 114 115 492 366 113 181-183 . 177 187 437 181 179 185, 186 403 488-92 285 285-286 INDEX. 539 CONTRACT, PA0E for sale of land. — See Specific performance. of indemnity. — See Mortgage. written, altered by parol, a parol contract, 439 CONVEYANCE.— See Deeds ; Mortgage. CONVEYANCES, effect of Statute of Uses upon, 218-222 tortious and innocent, ... 129-130 CONVEYANCING.— See Deeds ; Mortgage. definition of, . 258 COPARCENARY, definition of, 254 in gavelkind, . . ... . 255 in Pennsylvania 255 rights and obligations of coparceners, . , . 255 CORPORATIONS.— See Deeds. deeds of, how executed, 456 deeds of, not acknowledged, ... 466 limitation of power to hold lands, . 355 may be trustees, 356 may take but cannot hold lands, ... . 353 power to take and hold lands, ........ . . . 353-354 Statutes of Mortmain, . . ...... 354 COVENANT, assignment of, ... .... . 447 cannot rest partly in parol, .... . . . . 439 covenantee not bound unless he seals, . . 438 except in suits to recover ground rent, .... 438 definition, . ... . . . 457 distinction between covenant and condition, . . 179 express and implied, . ... . 439 for title, . 448 •'grant, bargain, sell," . . . . . 425 "grant, bargain and sell," an express, by act 28th May, 1715, 440 implied from words, "demise," "grant, bargain, sell." . 408-409, 439 "intended to be recorded," 439 "under and subject," . 436 "yielding and paying," 409,436,439 restrained by express, . 440 when lot is described as bounded by street, ... . 428 inherent and collateral, . . . . . . 442 liability irom privity of contract, . . . . 444-5 privity of estate, ... . . . . 446 married women's void, . . , , 439 540 INDEX. PAGE COVENANT— continued. of warranty. — See Warranty. of warranty, implied. ... . 440 privity of estate, . . ... 443 real and personal, .... . . 440 running with the land, . . . . . 441 to stand seised (See Deeds), . . . 414 what run with land, . 442-3 CREDITORS, FRAUD UPON— See Fraud. CROPPER, distinguished from tenant for years, ... . . 163 CURTESY.— See Estates for Life. aliens, . * . . 139 at common law, . . . . . . . 134-135 consummate, ....... . . 137 consummate not affected by legislation, . . . 291 death of wife necessary to, . . . . . ' 137 destroyed by divorce a. v. m., . . 140 four circumstances necessary to its existence, . . . 135 husband's election as to, . . . . . . 139-140 husband's right to, since 1848, . . . 137-140 in equitable estates, 142 initiate, . 136 initiate destroyed by* statute, . . 291 is an interest which can he insured during wife's life, 139 lien of judgments, . . 138 right of husband against wife's will, , . ... 521 DAMAGES, to life estate how divided between life tenant and remainderman, 128 DAMS, rights and limitations of owners, . 15 DEBTS, lien of decedents' debts. — See Decedents Estates, . . .289-290 DECEDENTS ESTATES,— See Descent. jurisdiction of orphans' court, 500 lien of decedents' debts, . 289-290 rules of distribution, . . . 287-309 DEDICATION, from describing lots as bounded by streets, . 428 DE D0NJS, statute of, . . . . . 103 DEED OF SEPARATION.— See Dower. INDEX. 541 DEEDS.— See Acknowledgment of ; also Covenant, Fraud, Re- cording, Delivery. acknowledgment of receipt, evidence as between parties — not strangers, . ' . . . 424 alteration of, . ... . . 482-486 its effect, . . 483 ancient deeds, ... 424 appurtenances, . .... 429 appurtenances, what passes as, . 429-430 attestations, . ... .458 ... . 414 consideration necessary in, 415 enrolment of, 415 theory of, . . ... 415 in Pennsylvania, . 417 Mots, bad spelling, erasures, etc., . . . . . . 477 boundaries — when they will govern description of property, . 427 common law conveyances — original, . . 405 exchange, . . . . 409 feoffment, . . 405 gift, 406 grant, .406 lease, . 406-409 partition, . . 410, 411 common law conveyances — derivative, ... . . 411 assignment, . ... 411 confirmation, . . , . . 411 defeasance, . . ... 412 release, 411 surrender. . . 411 conclusion, . . . 449 conditions, ... . . '. . 437 consideration in, . . . 425 construction of, intention of parties, . . 477 favourable, 477 maxims for interpretation, . 473 covenants — " grant, bargain, sell," .... 425 covenant to stand seised, 414 date, ... . .... 418 primd facie evidence that deed was delivered on day of date, . 419 deeds poll and indentures, .... ... .402 defeasance, . . ... . . 412 definition of deed, ... ... 402 description and names of parties, , . 420, 421 description of property, . . 426, 427 when boundaries will govern it, ... ... 427 458 542 INDEX. PAGE DEEDS — continued. exceptions, 432 exchange, 409 execution on Sunday, .... 419 execution, signing and sealing, 452-456 form of, 418 "grant, bargain, sell," ... . ... .... 425 Habendum — its use, . . ... . 433 defines quantity of estate, . . ... 434-435 may explain but must not be repugnant to premises, . 433 incumbrances, . . . 436 indentures, 403 interlineations, .... .... . 483 lease and release, . . . . 415 of corporations, how executed, ... . . . 456 of married women. — See MARRIED Women. partition — covenants implied, .... . 410 probate of— See Probate, 459 reading of, ... . ... . . 451 receipt — when evidence, . . . 466 recitals, . ... 422 Recording Act of 25 May, 1715, 417 Reddendum, . . . 436 requisites to a deed, ... . 403-405, 451-458 seal — what constitutes a, . . . 455 signature, . ..... 453 stamps, . . . . . ...... 465 trust clause, .... . . . . 435 void and voidable deeds, . 478 when construed as mortgage, . . . ..... 192 witnessing clause, . . . . 426 words of grant, . . . ... . 426 DEFEASANCE.— See Deeds. in mortgage cannot be parol, .... . . 192 may be in separate writing, . . . . . 192 need not take technical form, . . . . . 192 DEGREES OP RELATIONSHIP.— See Consanguinity. DELIVERY OF DEEDS, necessary, . . . . 464 to third party as an escrow, 458 what constitutes, . ; . ... . 457 DEPOSIT OF TITLE DEEDS.— See Mortgage. DESCENT, applies only to real estate, . ... . . 272 as between heir and executor law favours the inheritance, 272 INDEX. 543 PAGE DESCENT— continued. " by representation" and "per capita," 293-294 cases where devisee becomes a purchaser, . ... 306-307 children of uncles and aunts, . . ... 301, 303 collaterals near, of whole and half blood, . . . 299 take by representation and per capita, . 300-301 collaterals share personal property without distinction of blood, . 299 consanguinity, how counted in Pennsylvania, . .... 305 depends on blood relationship, . . .... 280 escheat, . . . . . 308 heirs ex parte paterna and materna, . . . 305 hotchpot, . . . . 295 inheritors must be of ancestor's blood, .... 304 in Pennsylvania, . . . 295 inverted from children to parents, . . .... 297-298 inverted to parents, divorced or never married, . ... 301-302 next of kin inherits in all cases unprovided for, . . . 308 no half-blood distinction beyond brothers and sisters, . . 304 purchaser, meaning of, in Pennsylvania, . . 305 seven canons of, . . . . 286 to lineals, ... ... 291-297 to parents of intestate, . . . 306 to next of kin, . . 302 when wife is devisee, . . 306 where decedent receives property from one not a relation, . 305 widow inherits, . ... 307 widow's quarantine, . ... ... 291 DESCENT CAST, abolished by English Statute, . ... . 266 in Pennsylvania, . 266 nature and origin, . . . 265 DESCENT AND PURCHASE, distinction between, .... . . 269 DEVISES, disposition of lapsed devises, . . . executory, ... general, pass land subject to power of appointment, of remainders to persons nominatim or to a class, residuary, pass all testator owned at death, to charity. — (See Wills ; Charitable Uses. to widow in lieu of dower, . . . what may be devised. — (See Wills), DETERMINABLE FEES.— -See Fee Simple. DETERMINING LIMITATION, distinguished from a condition, . . . .... 177 524- -525 239- -243 511 233 -235 524 5:24 521 544 INDEX. PAGE DISSEISIN, actual, . ... 261 always presumed to be as of fee, 264 at election, 260 definition of, . ... . 259 DISTRESS.— -See Kent. definition of, . . ... 72 exemption acts, . . 75 fraudulent removal of goods, . ........ 75 how it may be made, ... .... 76 its several objects, . . 72 property privileged from, . . 73-75 sale in Pennsylvania under, . . 75 what property is liable to it generally, .... . 72 what seizure of goods is sufficient, . .... 7G where made the relation of landlord or tenant must exist, 72 DIVORCE, u. v. m. will bar dower, . . 152 DOMINANT TENEMENT, definition of, . . . . 37 where re-severed from servient, effects revival of apparent easements 56 when united in one person with the servient effects extinguishment of easement, . 56 DOWER, ad ostium ecelesise, , . 144 alien wife entitled to, 159 assignment of, devolved on heir, . 145 assignment to trustees under insolvent laws, 158 at common law, . . . 140-145 at common law remains, .... 291 attaches if there has been seisin at any time during the marriage. 141 attaches now in only one case in Pennsylvania, . . 148 attaches to all real hereditaments, . . 1 44 attaches to no chattels real, *■ . 144 attainder of husband no bar to, . . 159 barred by mortgage, 191 cannot be barred by mere agreement, . , 157 could not be released by a feme sole, 155, custom of London early adopted in Pennsylvania, 1 52, 1 56 death of husband necessary, . . 137 deeds of separation, when enforced, 1 57 devise to widow in lieu of, . 524 divorce a mensa et ilioro does not destroy, equity's restraint of, . exists in all titles, . . . fraudulent attempt to bar by debts, how barred prior to 1770, . . . 141 155 267 157 152 UN DUX. 545 DOWER— continued. how barred, . . . . . how the widow may get the enjoyment of, ... husband alone cannot convey a title clear of, . husband's title must be complete, . . in equitable estates, .... jurisdiction of courts, .... married women can surrender right to. . .... must be assigned before wife has an estate in any lands, not barred by a sale under voluntary bankruptcy, on death of tenant in fee simple without heirs. . seisin in law is sufficient to create right of, seisin may be at any time during coverture, suit for partition, statute of limitations runs from husband's death, . . statute of uses, statutory dower, its nature, ... statutory provisions instead of, tenant in, is like other life tenants as to duties, . . . three things necessary to raise right to, . .... voluntary assignment to creditors does not bar, . ... when husband is a trustee ....... widow's election, widow's quarantine, wife not estopped by declarations at a bankrupt sale. will not attach in certain cases of, reversion and remainder, DRAIN AND DRIP.— See Easements. DRUNKENNESS.— See Lunatics. DURESS, deed given under, voidable, fraud upon married women in acknowledgment of deed, . . lease made under, is voidable, EASEMENTS.— See Hereditament. affirmative or positive, .... . apparent and non-apparent, ... burial lots and pews, ... continuous and non-continuous, . definitions of, . . . . distinguished from commons, . drain and drip, lateral support, . ... ... light and air, .... must be distinguished from licenses, . negative, urban and rural, . . use without consuming, . . ■what pass as appurtenant, 35 PAQE . . 152 . . 149 . . 141 . . 143 142 . . 149 . . 156 144 158 142 143 149 141 . . 148 153 . . 151 145-147 145 . . 140 158 142 . . 147 145 159 . 144 370 463 164 49 . 50 60 49 48-49 49 59 . 58-59 60 . . 60 . . 49 . . 49 37 420-432 546 INDEX. PAGE EJECTMENT, action of, . 267 decree oi register of wills cannot be impeached collaterally in action of, . . ...... 533 purchaser at sheriff's sale may mantaiu, against defendant in exe- cution, . . . ... 499 title out of commonwealth presumed after thirty years' continuous possession, . . . ... 353 ELOPEMENT AND ADULTERY, will bar dower, . . 153 EMBLEMENTS.— .See Estates for Lifk. tenant for years not entitled to, . 167 EMINENT DOMAIN, . . . 490 ENTIRETIES.— See Estates by Entireties. ENTRY, RIGHT OF, how lost, . . nature of, . ... EQUITY, construes as mortgage certain conveyances, jurisdiction in certain breaches of condition equitable mortgage, EQUITY OF REDEMPTION.— See Moetgagb. descends to heir, . is devisable by will and can be conveyed by deed mortgagor cannot deprive himself of, natureof, . . . subject to curtesy and (in Pennsylvania) to dower. EQUITABLE CONVERSION, doctrine of, of partnership real estate, EQUITABLE ELECTION, doctrine of, .... EQUITABLE ESTOPPEL, none where parties can be placed in statu quo .62 ESCHEAT.— See Knight Service. aliens, ... . ..... 321 as now provided for in Pennsylvania, . . . ... 314 commonwealth's title barred after twenty-one years, . . 316 feudal aspect of, . . 311-313 for corruption of blood and by forfeiture, 313 for crime does not exist in Pennsylvania, . . 321 foreign corporations, . . . . 322 happened in two ways, 313 ... .265 . 261 . . . .192 1 . 187 . 191-192 196 ' deed, 196 193 . 187, 188 dower. 196 27 362 . 533-534 INDEX. 547 ESCHEAT— continued. method of vesting escheated property in commonwealth, . . 314-319 mortmain, ;{21 of partnership or other jointly owned properly, . 319-320 recognized in its feudal nature in Pennsylvania, . . 312 uses no.t subject to, . , .313 was only in estates lying in tenure, 31,'J ESCROWS. —See Delivery. ESCUAGE. how different from knight-service, . 86 ESTATES, in lands, how considered, . . 89 definition of, . . . . 2 ESTATES AT SUFFERANCE, are the lowest known to the law, . . .174 nature of, . . 174 ESTATE AT WILL, how they arise, . 172 relations between landlord and tenant, . 173 ESTATES BY ENTIRETIES, nature of, . . .... . 251 parents inheriting from intestates take, . . 253 rights and obligations of tenants, . 253-254 where intention to create tenancy in common is defeated, . . 252 ESTATES IN EXPECTANCY.— See Remainders ; Reversions. all are alienable in Pennsylvania. 244 how created, . 223-224 ESTATES FOR YEARS. are assignable, ... . . 168 at expiration of, landlord's right to possession complete without notice, . . . 169 attendant terms, . .... 165 attornment, . . 164 can be created to begin at a future time. . ... 1C2 common form of words used to create, . . . . 163 definition of, . ... .161 descend with other chattels, . 1 68 do not lie in livery, ...... . . 162 duties of lessee, ... . .166-168 entry required to complete, . ... ... 162 estovers. e.tc. . . ... .167 forcibly entry, . . ... . 169 lease for less than three years requires no writing, 165 lease for more than three years requires writing, „ 165 548 INDEX. ESTATE FOR YEARS— continued. lease made under iraud, duress or mistake, . lessors' election at end of, . liable to be taken in execution for debts of tenant, license to inhabit a house, . . . long terms not common in this country, . . . . may be underlet, ... need not be for a whole year, . . . . . no form of words necessary to create, . . notice of ejectment given to landlord, * often known as terms, ... parol leases for terms over three years, rule as to duration in absence of express limits, tenant has no seisin, . . . . v . . tenant may dispute as to who is his landlord, tenant may not dispute landlord's title, warranty as to fitness of premises not implied, . waste, ...... waygoing crops, ... .... ESTATES FROM YEAR TO YEAR, arise often by construction of law, differ in their mode of termination from estates for years how they commonly arise, . . . include lesser periods in principle, may be terminated by either party how, and when, Pennsylvania rule as to landlord's duty to give notice, tenant's duty to give notice, . ESTATES FOR LIFE, alienation of, . ... ... are not included in Quia Emplores, . .... created by act of parties, . . . . created by operation of law, curtesy, ... ... . definition of tenant for life, . . . . determinable or qualified, . . ... duties of tenants as to incumbrances, . . . . repairs, . . effect of tenant's death, . emblements and rents, ... ....... fealty, an incident of. . ... forfeiture modified in Pennsylvania, . forfeiture of, general and special occupant, how liable for debts of tenant, is conveyed when no words of inheritance appear lie in livery, . . ... may be for the life of another, ... in the grant, PAQE 164 168 168 163 165 168 165 . 162 168 . 162 165 , 164-165 . . 162 . 164 163 167 167 167-168 169 . 171 169 171 170 171 171 . 129 . . 120 . . 118 . 133 134-140 . . 118 119 127-1-28 125 . 130 131-132 . . 120 . . 130 129 130 . . 130 . . 119 118 119 IflDEX. 549 ESTATES FOR LIFE— continued. parties to transfer of, . rents and emblements, . . rights of tenant, . surviving parents, . ... tenant in tail after possibility of issue extinct, tenant may not commit waste, usual wording of conveyance, ESTATES PUR AUTER VIE, less estate than estate for life of tenant, merger with other estates, ESTATES UPON CONDITION, at common law none but grantor and heirs could enter on breach of condition, breach of covenant, how different, certain instances of construction, conditional limitations, conditions against marriage, are sometimes void. in general restraint of trade are void, precedent, ... . .... repugnant to the nature of the estate, are void, subsequent, determining or special limitations, . ... distinction between condition and covenant, expressed, .... . . implied,, implied, instances of, illegal conditions are void, . impossible conditions are void. . insensible conditions are void, no precise words are necessary, ordinary words creating a condition, . . performance of conditions, . position of one who enters after breach, right of entry on breach of condition, rules as to clauses inserted among the covenants, ESTATES TAIL, can no longer be created in Pennsylvania, . could be barred by deed in Pennsylvania, after 1799, division and examples of estates tail, early introduced into Pennsylvania, l)Ow created, bow barred import of word ' ' issue, " . . . . incidents of, . . . in Pennsylvania a few such estates still exist, 118 131-132 . . 120 . 160 133 120 119 129 . 129 breach . 178 179 . 180 . 185-186 182 . 181-183 182 181 182 181 . . 177 . 179 . 176 175-176 176 . 182 181 183 178 .178 183-184 186 . 186 179 116 . . 114 . . 104-105 . . .112 .... 106 . 108-111 . ... 107 . . 105-106 .... 106 550 INDEX. PAGE ESTATES TAIL— continued. legislation upon, in Pennsylvania. 112-117 necessity of the word "heirs," . . . 106 not subject to merger, . . . 244 not within act of lH'.Yo, . . ... 284 origin of, ... . 104 parties to transfer of, 118 special statute of limitation, 117 tenant may suffer recovery after sale by sheriff, 114 words of procreation are necessary to the creation of, 107 ESTATES IN FEE.— See Fee Simple. ESTOVERS.— See Waste ; Common. ESTREPEMENT.— See Waste. EVICTION.— See Rent. wrongful disseisin is not an, . . 70 EXCEPTION.— See Deeds. EXCHANGE. — See Deeds ; Statute of Frauds. EXECUTION.— See Lands. EXECUTORS, heir favoured by law, .... . . 272 not liable on perpetual covenants of decedent, . . 445 powers to sell land, . ... 508-509 EXECUTORY DEVISES.— .See Devises ; Remainders. FEALTY, what constituted, . . 83 FEE, meaning of the word, . . . . . 90-91 FEE FARM RENTS.— See Rent. FEE SIMPLE, aliens, . .... 97 certain deeds lacking words of inheritance will convey a fee, . 93 chief incident of, . 96 conditional fees, . . .... 101-103 deeds to corporations, 95 disability of certain persons to convey, ... 97 how changed by Quia Emplores, . . 96 its nature, . . . . 91 married women, ... 97 may be divided into any number of lesser estates, . 223 owner of, is subject to certain rights . 97 owner of, may convey lesser estate and have something left, 223 parties to transfer of, . . . 118 INDEX. 551 FEE SIMPLE— continued. passes by will without words of inheritance, . . Pennsylvania rule as to wills, . . presumed from consideration in executory contracts, qualified, base or determinable fees, relaxation of rule as to word of inheritance in wills, sometimes implied from nature of conveyance, sometimes implied from relations of the parties, to. a man " and his heirs " not always a tee, words necessary to create, FEE-TAIL.— See Estates Tail. FEME SOLE TRADERS.— See Married Women, FEUDAL SYSTEM. account of, ... 94-95 93 99-101 93-94 92 93 . 96 91-92 383-384 SO-88 405 84 . 80-82 FEOFFMENT, FEUDS, duration of, ... foundation of, . . . See Tenure. FIDEI COMMISSUM, . 211 FINES FOR ALIENATION.— See Knight-sekvice. FINES.— See Estates Tail. account of, by married women, lunatic may suflfer, . ... made of same effect in Pennsylvania is in England, . . . FIRE-BOTE.— See Waste. tenant for years entitled to, . . . FIXTURES, as between debtor and creditor, heir and executor, landlord and tenant for years life tenant and remainderman or reversioner, chattels affixed for purposes of trade, . . church pews, distinction between fixtures and chattels, gas fixtures, . growing crops. growing trees, . . ... intention has no bearing before annexation, . . inferred from the relation of the parties, inferred from usage, may be gathered from the character of the annexation, 23 of parties the chief test, . ... 21 110-111 375 366 113 167 ■JO 23 23 24 22 17 21 IS 17 20 22 21 552 INDEX. PAGE FIXTURES— continued. old doctrine of exploded, . ... 18-19 party walls, .... 25-26 peculiar Pennsylvania common law as to the waygoing crop, . 24 severance no test without the intention, 20 stones, clay, etc., . . 18 right of purchaser at sheriff's sale, 23 right to remove fixtures must be exercised before term expires, . 23 the policy of the law favours trade, . 24-25 what are, ....... 17 what fixtures are not distrainable, . 73 when intention of parties determines, . 19 when fixtures will become chattels, .... . . 17-18 FORCIBLE ENTRY. statute, . . . 261-262 FORCIBLE DETAINER, statute, . . . . 262 FORECLOSURE.— See Mortgage. FORFEITURE. alienation by particular tenant, . 327 bankruptcy, ..." 328 definition of, . 324 disclaimer, .... . 327 for crime, ... . . 325-326 lapse and simony have no place in our law, . . 324 on breach of condition, ... . 187 waste, ... . 327-328 FORMEDON.— See Estates Tail. in descender and in reverter, . . . 108 FRAUD. — See Statute of Frauds. deeds obtained by, . . . . . 478-479 fraudulent deeds void as against creditors, but good between parties, 481 in altering deed, . . . 483-484 in executing deeds, . . . . 452 in sheriff's sales, ... . . 497 lease provided by, voidable, . . .164 removal of goods by, to escape distraint, 75 statute of fraudulent conveyances, . . . 479 upon creditors, .... . . 479-480 upon married women in acknowledgement of deed, . • 463 who may take advantage of, . . . 480-182 FREEHOLD, estates of, how divided, . 90 meaning of word, . 89 INDEX. 553 / ' PAGE FREEHOLDER, definition of, .... 225 his ancient position, . 89-90 GENERAL OCCUPANT.— .See Estates fob Life. GIFT.— See Deeds. GRANT.— See Deeds. of rents issues and profits is a grant of the land itself, 36 GROUND RENT, action of covenant for arrears, . . . .... 438 act of 25 April, 1850, ... . ... . 438 actions against executors and administrators for, ... . 445 assignee of covenantee may sue covenantor or his assigns, . 448 in actions on, two returns of nihil, equivalent to actual service, . 446 release presumed after twenty-one years of non-payment, . . 348 rent service in Pennsylvania, . ..... 66 reservation of ground rent, a new estate, . . . 437 "under and subject,'' . . . . . . 198 GROWING CROPS, are personalty, but appurtenant to the land, . . 18 winter grain, . . 24 GROWING TREES, after being severed become chattels, . .... .17 are fixtures, . .... . 17 HABENDUM.— See Deeds. HABITUAL DRUNKARD.— See Lunatics. HEIR.— See Fee Simple. cannot refuse to inherit, 283 favoured by law, . . . . 272 rule in Shelly's case as to this word, . . . 227-228 used in popular sense, . . ... 421 when necessary to pass fee, . ... 435 who may be, . 273 HEREDITAMENT, Corporeal — definition of, .... . . . . ... 35 lie in livery, . . . 35 Incorporeal — definition of, . . . ... , 35 Jie in grant, ... . . 35 ten in number, 36 three only of importance in this country, 36 meaning and origin of word, .... 4 HIGHWAYS.— See Ways. 554 INDEX. PAGE HOMAGE, what constituted, . . . . 83 HOTCH-POT.— See Desckxt. HOUSE-BOTE.— See Waste. tenant for years entitled to, . . 167 HUSBAND AND WIFE.— See Ante-Nuptial Agreements; Curtesy; Dower; Marriage; Married Women. ILLEGIMATE CHILDREN'.— See Bastards. INDENTURE, FORM OF.— .See Deeds, . . .... 418 INFANTS, affirmance of contracts, how proved, . . . 369 guardians of, 369 jurisdiction of orphans' court to sell land of. 500 married women infants, power to convey, 370 may be trustees, . 370 execute powers, 509 marry, 370 not contract, . . 368 take by gift, devise, etc., 368 their acts voidable, . 368 power of guardian, 369-370 statutes of limitation do not bar until ten years after coming of age, 370 their estates managed by guardians, 369 upon coming of age may affirm or disaffirm contracts, . . 369 IN GROSS, definition of, ... 37 INSANITY.— See Lunatics ; Wills. INTESTACY.— See Descent. ISSUE.— See Estates Tail. definite and indefinite failure of, . . 107-108 following a life estate in personalty is a word of purchase, . 108 INTERESSE TERMINI. See Estates for Years. an assignable interest, . . . ... 162 INTERLINEATION.— See Deeds. JOINT TENANCY, avoided when construction would permit, . 246 created only by act of parties. . . 246 definition of, . . . 245 estate of the survivor, -.'48-249 express words now needed to create, . . . 251 favoured no longer by the courts of law, . . 246 still less in equity, . . . 247 INDEX. 555 PAGE JOINT TENANCY— continued. how destroyed, 249 incidents of, . . . . . . 248 no dower or curtesy in, . . . 248 partition compelled by statute, 249-250 rights and obligations of tenants, . . 251 trust estates . . . . .... 251 unities of interest, title, time, and possession, 247 weakened along with feudal tenures, . . . 249 JOINTURE, when sufficient to bar dower, . will bar dower, JUDGMENT.— See Sheriff's Sale. JUDICIAL SALES. — See Statute of Frauds; Jurisdiction. of mortgaged property before 1830, after 1830, under act of 1845, 1867 ; 1887, security in, . validity of, . . ... JURISDICTION.— See Sheriff's Sale. of common pleas and orphans' court under Price a.t, of orphans' court in partition of lands, to order sale of lauds of decedents and minors. KNIGHT-SERVICE, incidents of, . . . . OCCUPANY, general and special, ORPHANS' COURT.— See Jurisdiction. OUSTER, definition of, LAND, a right to minerals below the surface is an estate in land, boundaries to, . bounded by water, . . " cujus est solum, ejus est usque ad ewlum,'' distinction between fixtures and chattels, divided horizontally, . divided perpendicularly and horizontally, doctrine of equitable conversion, early history of property in, . . land by accession, . . ,,..,.. construction of law, . . liability to execution for debts, . ... .:..... 155 153 204-205 205 205 206 502-503 501-503 500-501 . 500 500 85 130 259 31 28 28 14 17 30 28 •si 8 14 14,26 487 556 INDEX. LAND — continued. natural land, .... 14 " quicquid plantalur solo, solo cedit," . . .17 right to enter and cut timber an interest in land till severance, . 30 surface owner entitled to actual support from owner below surface, 32 LANDLORD AND TENANT— See Distress; Estates at Will ; at Sufferance ; for Years ; from Year to Year ; Lease ; Rent. LATERAL SUPPORT, right to, . ..."..... .... 58-59 LEGACIES, lapsed, . . . 524-525 LEASE.— See Deeds. implied covenants in, . . 409 to pay lent, . . . 409 lost leases. ... . 409 made for larger term than three years by parol, ... . 165 made under duress, or mistake, or fraud, ■ : . . . 1-64 power to sublet, . . 407-408 requisites to, . . 406-407 LEASE AND RELEASE.— See Deeds. LICENSE. — See Estates for Years. are revocable, . . . . . . 61 . 61 61 61 . . 61 60 62 . . 61 are not revocable when coupled with an interest, are not transferable, . . as distinguished from vested rights, coupled with an interest and created by parol, definition of, . . improvements by licensee, may be given in any manner, . . LIENS, of decedent's debts. — See Decedent's Estates. sheriff's sales to enforce, . . . 498-499 LEVANT AND COUCH ANT.— See Common. LIGHT AND AIR, right to, arises only by express grant, ... 60 LIFE ESTATES.— See Estates for Life. "LIMITATION," "PURCHASE."— See Shelley's Case, Rule in. distinction between words of, 177, 434, 435 LIMITATIONS, STATUTE OF, actions on contracts for sale of lands, . . . . 393 to enforce equity of redemption, . 400 INDiX. 557 PAGE LIMITATIONS. STATUTE OF— continued, does not bar infants until ten years after coming of age, . 370 does not run against Commonwealth, . . 352 lunatics not within, . . .... . 367 upon appeals from decree of register of wills, . . . 532 writs of error on fines, .... 114 LIVERY OF SEISIN, conditions of, . . . .... 225 LUNATICS, commission in lunacy. ... ... . . 364 presumption arising from, 364 committee, his powers, . . 367 habitual drunkards treated as, . . . ... 368 may not contract, . . 362 take land, . . . 363 suffer a recovery, .... . . 366 party may plead his own insanity, , 366 proof of lunacy, . 363 statutes of limitations do not run against. 367 what are, mental weakness, etc. , . 365 where husband has been declared, wife may sell or mortgage land, 382 MARK SYSTEM, account of, ... 79-80 MARK, a good and sufficient signature, but must be made, 528 MAINTENANCE, alienation by persons out of possession, . ... 352 MARRIAGE.— See Knight Service. what constitutes in Pennsylvania, . 135 cohabitation and reputation, . ... . 135 necessary to establish right to curtesy or dower, . . 135 of infants, ... . . 370 wills revoked by, . 531 MARRIED WOMEN. can now make wills. ... . .139 cannot be arrested on capias, . . 386 cannot covenant, . . 439 cannot sue husband directly, 386 contracts, ante-nuptial, , . . , . 373 could convey by fine, . . . . 375 custom of London and separate examination of wife, 375 defects in acknowledgments of, cured by acts of assembly. . . . 463 deeds of, how acknowledged, . . . 461 deeds of, void at common law, . . ... 375 558 INDEX. PAGE MARRIED WOMEN— continued. fraudulent conveyances i'rom husband to wife, .SW; Fratd, . 481-482 gifts from husband to wife, 378 her power to purchase land, . . . 373-374 husband must join in deed. . 376 incidents of fines by, . . 376 married woman's act of 1848, . . 380 may assign or satisfy mortgage without husband, , . . 382 bind separate estate for necessary repairs, etc., 381 execute powers, . . 509 secure purchase money by judgment, . . 374 mortgage for borrowed purchase money void, 374 nature of wife's estate under Act of 1848, 381 necessity of trustee for separate use, 378 origin of separate examination, . 376 powers extended by Act of 3 June, 1887, 384 power over personalty, 382 separate estate, Lancaster r. Dolan, . 378-379 receipt of purchase money does not estop from setting aside con- veyance, . . ... 382 release of dower without joinder of husband void, 377 rights of husband at common law, . 373 separate estate — intention to exclude husband must be clear, 379 their disabilities at common law, 37:! their wills, how executed, 528-529 trusts for separate use, 377 unity of husband and wife at common law, . 372 warrant of attorney to bring suit good, . 382 wills of, . . . 519 wills, right of husband and wife as against each other's wills, 519 MAXIMS, for interpretation of deeds, 473-474 MECHANICS' LIENS, given priority over certain mortgages, 104 MERGER, definition of, . . . 244 depends mainly upon intentiou, 244 none in estates tail, . 244 MILL RIGHTS.— See Water and Water Courses. MINES. — See Coal Mines ; Easements : Hereditament ; Estates for Life ; Taxation, MISTAKE, • when it will make a lease voidable, . . 164 MONTH, in Pennsylvania is calendar not lunar, . . . 165 INDEX. 559 PAGE MORTGAGES. act of 1878, . ... 203-304 ancient doctrine of, . . . 189 assignment of, may be recorded, . . . . . 207 assignee of, may sue directly any grantee who took " under and subject," . . 199-200 takes subject to certain equities, . 207 by a tenant in common, ., . . 206 cannot be sold as an interest in land, . . 195 common form of, . . . 191 consists of two parts, conveyance and defeasance, 191 contract of indemnity, . . 197 defeasance must be in writing, 192 definition of, . . 189 ejectment as a remedy, . ... 208 entered on same day with judgment, . 203 equitable mortgage, . . .... 191-192 equitable view of, . . 195 equity of redemption, . . . 189-190 " first mortgage, " " second mortgage, " . . . .201-202 foreclosure, . . . 208-209 judicial sale of land subject to, . . 204-205 liabilities of purchaser of land subject to, . .... 197 lien of, discharged by judicial sale prior to 1830, . . 205 not divested by sheriff's sale, . .... 207 married women may assign or satisfy without husband joining, . . 382 mechanics' liens given preference over, ... .... 194 mortgagee may bring ejectment, . 195 can still recover possession in Pennsylvania, . 195 may sue purchaser of land subject to, . 197 right to restrain waste, . 196 mortgagor must not commit waste, . 196 must be in writing, , 191 neither dower nor curtesy in, . . 195 payable "in five years from date hereof, '' . . . 196 priority of, how accorded after 1820, . 202 purchase money mortgages, . . 202, 203 recording of. — See Recording. regarded as a. chose in action, 195 remedies for enforcing payment of, . 208 strict foreclosure not allowed in Pennsylvania, . 209 "under and subject," . . 198 unrecorded, good in equity, 202, 203 unrecorded in lifetime of mortgagor, . . . 202 when dower is barred by, 1 91 what equity will construe to be a, . . 193 when there is a bankrupt law, . . . 208 when to be recorded prior to 1 820, . ... . 202 560 INDEX. PAGE 211-212 354 PLOUGH-BOTE. — See -Waste. tenant £>r years entitled to, . . . . POET WARDENS control building of wharves in Philadelphia, POSSESSION, actual, nature of actual and apparent right of, actual, varied by circumstances, constructive, land in, always alienable, . , 386 MORTMAIN, . . .... ... statutes of, in force in Pennsylvania, ...... PAPISTS, disabilities of, removed, PARTITION.— See Deeds. jurisdiction of orphans' court in, 500 PARTNERSHIP.— Set Equitable Conversion. j udgment against firm preferred to judgment against partner, . 362 parol agreement to put land into firm void, .... . 361 real estate, . . 354-362 when firm property, . . .... 359 resulting trust, 359 what necessary to make land partnership property, . . 361 PARTY WALLS, appurtenant to land by statute, . . 25, 26 can be no windows in, .... . 60 what are, . 26 PENN'S CHARTER, . 87 PER MY ET PER TOUT, meaning of. . . 247, 248 PERPETUITIES, gift to a charity not within rule against. . . ... 242 rule against, replaced Coke's "possibility upon a possibility," 236, 237 statement of rule against, . 236, 241 PERSONAL ESTATE, distribution of. — See Descent. goes to executor, .... . . 272 PEWS, a church pew passes to the executor, owner of, has merely a usufructary right PLANK ROADS are ways, , . ..... 22 60 167 51 . . 259 . . 265 . 263 263-264 264 INDEX. 561 PAGE POSSESSION— confirmed. may exist without residence, ... . 263 naked, becomes a perfect title, . 264 possessor's interest may be sold by sheriff, . .... 264 possessor's interest transferable . 264 of tenant for years. . . . . 264 prima facie evidence of title, 261 purchaser at sheriff's sale entitled to, 499 right of, . . 264-265 POSSIBILITY OF REVERTER, definition of, . . 243 POSSIBILITY OF SEISIN.— See Uses. POSTHUMOUS CHILDREN.— Set Child, Children. POWERS, common law, and derived from doctrine of uses. . . . 506 discretionary cannot be delegated, . . . f>12 execution of when held by several, . . 510 how created, . . -. . ... 506 executed, . . 510-511 lost, . . . . 512 may be executed by married women, . . . . 509 infants, 509 of assignees for creditors, .... 50S-509 of attorney of married women, . . 507 of executors to sell land, . . ( . . 508 relating to land and collateral , . . . . . . 506 to sell includes power to mortgage, . . . 511 what powers must be in writing, . . . . 507 when a seal is necessary, . . . . . 507 when to be exercised, 512 PRESCRIPTION, ancient lights, . . 343 burden of proof against presumption lies on owner of servient tene- ment, . . . . . 341-342 differs from a custom, . ... 336 does not bar infants, . . 370 extent of the right gained, . . . . 346-347 foundation of the doctrine, . 336-337 length of time, necessary to complete the right, . . 339-341 non-user may defeat titles gained by, . ... 347-349 occupation must be adverse, . . . . 341-343 peaceable, . . . . 344 notorious, . . 344 continuous, . . . 344-346 persons against whom the presumption will arise, . . . 346 36 562 INDEX. PAGE PRESCRIPTION— continued. public rights not affected by, ... . 346 que estate, . . . 338 remaindermen and reversioners not affected by, . . 346' two ways of claiming by, . . . ^ . .337-338 what may be subject of, . . 338-33!) PRIMER SEISIN.— .See Knight Service. PROBATE OF WILLS.— -See Wills. PROBATE, of deeds how made, 464-465 PROPERTY. began in adverse possession, . .11 early history of, . . . . 8-13 early progress in the idea of, . . .... 5-8 occupatio, . ...... s presumption that all things have an owner, . . 12 res nullius, ....... . . . . 8 Savigny's aphorism, ... ... . 11 PURCHASER, BONA FIDE, protected against fraudulent acknowledgment, . . . 463 PURCHASE AND DESCENT. distinction between, ... . . 269 QUIA EMPTORES, . . . 350,443 applied only to estates in fee simple, . i>6 forbade sub-infeudation, . 65 not in force in Pennsylvania, . 66 QUALIFIED FEES.— See Fee Simple. QUE ESTATE.— See Prescription. QUIT RENTS.— See Rent. RAILROADS, are ways, .... . . .55 READING OF DEED.— See Deeds. REAL ESTATE, definition of, . . .... . . 2-4 goes to heir, . . 272 liable for debts of a decedent, . . 288 purchased subject to a prior mortgage, ...... . . 197 RECEIPT, in deeds, when evidence, . 466 RECITALS, in deeds, . . 429 when evidence and against whom, . 422-423 kinds of, • ... 423 INDEX. 563 ' PAGE RECORD, TITLE BY.— See Title. RECORDING, act of 1715, 417 history of recording acts, . ... . 466-467 must be in proper book when directed by statute 471 purchase money mortgages, 470 what constitutes time of, . . . ..... 469 is notice of an unrecorded deed, . ... . . 469-470 may be recorded, . . . 467- 468 must be recorded, . .468-469 when mortgages must be recorded, . . • . . . . 470-471 who affected by record ol a deed, 472 who protected, . .... 469 REDDENDUM.— See Deeds. REDEMPTION, upou sales for taxes and municipal claims, . .' . 499 RELEASE.— See Deeds. when it will convey a fee without words of inheritance, . . 93 RELIEF.— See Knight-Service. REMAINDERS, affected by feudal conceptions of ownership, . . . . 226-227 are construed as vested rather than as contingent, . . . 231 are contingent when . 230 are declared void on grounds of public policy, .. . 236 are vested when, .... . 227 are void if within the rule against perpetuties, 236 Blackstone's three rules concerning creation of, ... 226 common law doctrines concerning . . . 224-225 construction of, in certain devises, ... . 233-235 contingent, divided into two classes by Blackstone, 231 fall where the particular estate is defeated by condition broken, . . . 237 may be supported by an estate tail, . . 238 preserved by trustees, . . 238-239 require a freehold to support them, .... 238 shut out by merger, . . ... 244 where event is uncertain, . 235 where person is uncertain, 231 uses . . 239-243 creation of, governed by three rules, . . . . 226 definition of, . . 224 devised to persons nominatim or as a class, 233-234 executory devises, . . ... 239-243 Fearne's division of contingent, . . . 231 in fee alternative on a contingency, . 237 564 INDEX. PAGE KEMAINDERS— continued. may be of any number, . . 224 may be of any quantity subject to certain rules, 225 posthumous children, . ... 231-232 Shelley's case, . . . 227-229 the " particular estate " 224 RENT.— See Distress; Hereditament. accrues to heir with reversion if landlord dies before midnight on pay day, .... 69 apportionment of, in certain cases, . . 69-70 arrears of, are personalty, . 69 cannot be reserved to a stranger, . .68 cannot issue from an incorporeal . .63 covenant from words "yielding and paying," 436 definition of, ... . . . 63 distress needs no prior demand, . . . . 70 executor may distrain for, .... 69 fee farm, . . . 437 gas bill may be distrained for, . .... . . . 64 landlord's rights on failure to pay, ... . . . . 187 lies in giant, . . .... 71 lies in rcndre, . 37 must be certain, . . . 63 must issue yearly, . . . . ... . . .63 remedies to recover, ...... 71 rent-charge, ... 64 rent-service, . . ... . .... .64 rent-seek, . . . . 65 rents of assize, fee-farm rents, 65 suspended by eviction, 70 when it should be paid, 69 when like other debts, . . 70 RENTS AND EMBLEMENTS 131-132 RENT-CHARGE.— See Rent. RENTS OF ASSIZE.— See Rent. RENT-SECK.— See Rent. RENT-SERVICE.— See Rent. RESULTING TRUSTS.— See TRUSTS. partnership property 359 RESULTING USES.— See Uses. REVERSION, assignee of, may sue in covenant, 447 definition of, 243 does not become a remainder by being sold, 243 incidents of, . , , , 243 INDEX. 565 PAGE REVOCATION OF WILLS.— See Wills. EIGHTS, divided into real and personal, 2 jus ad rem aequirendam, . 3 jus in re, . . .... 2 EIGHT OF ENTEY.— See Possession. position of one who has entered after breach of condition, . 186 npon breach of condition, . 185 in Pennsylvania, 186 EIGHT OF POSSESSION.— See Possession. EIGHT OF PROPEETY, was only a right of action, . . . .... 266-267 EIGHT OF SUEVIVOESHIP.— See Joint Tenancy. EIPAEIAN OWNEES, may erect wharves on their land, .... 51 rights of, ..... . . • • 15 title to land on navigable rivers, . 28 streams not navigable, . 29 title where channel of stream not navigable changes gradually, 29 suddenly, 29 EIVEES, Navigable — citizens' right to fish, . 45 Delaware river, . 46 doctrines of various states as to, . . 46 English test of, inapplicable to thiscountry, 29 jurisdiction of bordering towns extends only to low water mark, ... 28 obstructions in Delaware, . 53 right of public between high and low water mark, . 28 title of riparian owners, . . .... . . 28 warrantee of their beds under Act of 11 April, 1848, . 47 what are, ..... 29 in Pennsylvania, . . . . 45-47 Not navigable — gradual change of channel, ... 29 ownership of land under water,' 46 right to fish, ... .46 sudden change of channel, ... 29 title of riparian owners runs ad medium filum aqua;, . 29 SCINTILLA JURIS.— See Uses. SEALS, instruments sealed without authority in executing powers, 507 what constitutes, ... . . .... 454-455 566 INDEX. PAOE SECURITY, in sales under Price Act, . . 502-503 SEIGNORY, definition of, .... . . . 24:3-244 SEISIN. — See Livery of Seisin; Remainders. constructive or potential, . . 136 definition of, . . . . . 225 in wife, necessary to curtesy, . . 135 must always vest in some one, . . 225 must be transferred by some visible act 225 of the husband, necessary to create right of dower, . . . 140 transfers with, good without deed, . . . . . . 388 what it was, . . 389 SERVIENT TENEMENT, definition of, '. 38 SERVITUDES, definition of, 38 SEWING MACHINES and certain other chattels exempted from distress, . 75 SHELLEY'S CASE, RULE IN, ... . 227-229 SHERIFF'S SALE, amendments to return or deed, .... . . 497 certain proceedings which must be observed, . 495 cures irregularities in proceedings, . . , 494 effect of acknowledgment of sheriffs deed in open court, . 493 may be good as against some defendants and void as against others, 499 must be founded on a judgment, . . . 495 purchaser under may maintain ejectment against defendant, . 499 officer must act within his authority, . . . 496 of mortgaged property, ... . . . 207 purchaser takes title of defendant at time of levy of execution, 497-499 right of redemption in sales tor taxes and municipal claims, 499 void when procured by fraud, . . 497 where court had no jurisdiction, . 494 what title purchaser takes, . . 497—499 will bar dower, . . ... 157 SHIFTING OR SECONDARY USES.— See Uses. SOCAGE. free socage and villein socage, . 86 SPECIAL LIMITATION distinguished from a condition, . . 177 SPECIAL OCCUPANT.- See Estates for Life. INDEX. SPECIFIC PERFORMANCE enforced by actions of -ejectment, SPRINGING USES.— Sec Uses. STAMPS, on deeds, necessity of, STATUTE OF FRAUDS, act of 21 March, 1772 agent must be authorized by writing, contracts for growing timber, . conveyances to partnerships, deeds must be signed, does not apply to lands in other states, English, 29 Car. II, . equitable estates must be created and transferred by writing, exceptions, trusts by operation of law, incorporeals, . . ... judicial sales not within, . . . parol agreement to put land into firm void, . part performance available by vendee as well as vendor, in exchanges, its requisites, . . takes transaction out of statute, . . powers to sell must be in writing, what estates within statute, . what writing necessary, . writing must be signed by vendor, . . must contain all essentials of valid contract, need not be signed by vendee, . . . . STATUTE OF USES.— See Uses. effects on conveyancing, operation of, confined to freeholds, . . strict construction of, by the courts, .... STREAMS.— See Rivees. STREETS.— See Ways. SUNDAY, contracts on, .... contracts of marriage on, . ... contracts of charitable nature excepted, . ... SUPERSTITIOUS USES, statutes of mortmain, . SURRENDER.— See Deeds. SURVIVORSHIP, us between husband and wife, . .... right of, in joint tenancy, . . ... 567 PAOB . 401 . 465 390-391 394 394 359 452-453 399 :;90 400 400 394 399 361 399 . 397 395-399 395 507 394 391 393 392 393 , 412-413 . 221 . . 222 419 120 420 354 . 253 248-249 568 INDEX. TAXATION, of owners of surface and sub-stratum must be separate, . 33 taxes have a priority of lien, . . 207 TENANCY IN COMMON, of mines, . . ... 257 mortgage by tenant, ... . . 206 requires unity of possession only, . 255 rights and obligations of tenants, . . . . 256-257 TENANT IN TAIL.— See Estates Tail. after possibility of issue extinct. — See Estates for Life. TENANT FOE YEARS.— See Estates for Years. entitled to estovers, etc., .... 167 may assign his estate, . .... 168 responsibility to pay rent not relieved by sub-letting, . . . 168 TENANT AT SUFFERANCE.— See Estates at Sufferance. definition of, . . ... . . 173 has only bare possession, . . 174 TENANT AT WILL.— See Estates at Will. TENANT IN CAPITE.—See Kkight-Service. TENEMENT, meaning and origin of word, .... . . 3 TENURE, by socage, ... ... . . . 86-87 exists between lessor and lessee for years, ... . . 163 incidents of feuds, . .... .... .83 in Pennsylvania, . . . . . 77-78 principal tenures, . . "84 was free or base, ... 84 TERM. — See Estates for Years. attendant terms, . 165-166 TESTAMENT.— See Wills. TIDAL WATERS.— See Rivers. are public highways, . . . .... 46 TITLE, acquired by lapse of time, 264 by settlement and improvement, . . . . 329-335 matter of record, . . 487 occupancy, does not exist here, . . , . . 329 purchase acquired in five ways, . . 324 covenants for. — See COVENANT. definition of, . . 258 is marketable when, .... 267 IHDEX. 569 TITLE -continued. is perfect when, 267 of purchaser at sheriff's sale, what, . . 497-499 transferred by descent or purchase . . . 269 TORTIOUS CONVEYANCES, forfeiture for, . . . . . . 327 -See Conveyancing. 264 TRANSFER OF LAND. TRESPASSER, alienation of land by. TRUSTEES, all must join in deeds, no "acting trustee," corporation may be, for married women, infants may be, ... . may not purchase at their own sales, . . . their powers, ..... TRUSTS. — See Married Women; Statute op Frauds, a result of the statute of uses, ... active or operative . are not within the Act of 1833, . . ... coparcenary in Pennsylvania, . . joint tenancy in, . . . . . . . of terms of years are outside the statute, . . . . , passive, power of sale, conferred upon trustees by act of assembly, resulting trust, . . . . ... . ... uses upon uses, TURNPIKES are ways, companies bound to keep their roads in a safe condition, . forfeiture of charter does not destroy public's right, . . . "UNDER AND SUBJECT," act of 1878, concerning, .... ... held to imply a covenant simply to idemnify the grantor, . . . mortgage on property so bought was purchaser's personal debt, . UNDUE INFLUENCE.— See Wills. UNINCORPORATED SOCIETIES cannot hold land, . . . liability of members, . . may take land for charities, . . power to contract, . hold land, . . . . 387 . 356 . . 378 . . 370 387 386-387 221 221 284 255 251 221 221 491 401 222 . . 55 . . 55 . . 55 198, 199 . . 201 201 200 356 357 357 357 356 570 INDEX. USES.— See Trusts; Deeds. administered by courts of equity, . . after 27 Hen. VIII., c. 10, : . Blackstone's seven incidents of. confidence in the person, privity of estate, confidence might be express or implied, contingent, . . conveyancing under statute of, could be transferred by deed, ... . . . curtesy and dower ... deeds to lead and declare. See Deeds, definition of, ... ... descended according to the course of the common law, devisable before lands held by legal title were, devisable by will, . ... disseisin of feoffee destroyed privity, . duties of tenant of legal estate before the statute, ecclesiastical origin of, ... estates in fee limited to take effect after a fee, forfeiture of, for treason, freeholds granted to commence in futitro, . grantor's power to revoke, .... . mortmain, . . must be of what lies in livery, . not a doctrine of the common law, . not liable to be taken in execution, not raised without sufficient consideration, not recognized by courts of law, . not subject to feudal burdens. opetation of statute could be suspended, . did not extend to estates for years, origin of, in Roman law, . . . ... possibility of seisin, . . . purchaser for value without notice of land subject to, resulting uses, ... . . revocatory power in grantor, ... scintilla juris, . shifting or secondary, ...... springing uses, . . . . statute of, . . '. transferable without livery, tenure between feoffee and his superior, three incidents necessary to operation of statute, . . uses upon uses, USES UPON USES.— See Trusts ; Uses. PAGE . ; 213 . . 218-222 . . 214-216 . 213 . . . 213 239-243 ... 412 ... 215 . 216 416 .... 210 . 215 . 239-240 . . 215 . 213-214 222 211 216 . 215-216 . . 216 . .216 211-212 .214 . . 210 216 214 212 215 ■.. 218 221. . . . 211 . . 220 . 213 218-219 216, 219-220 220 . 219-220 220 217 215 215 . . 218 VESTED REMAINDERS.— See Remainders. iUDisx. 571 PAGE "VILLEIN, his ancient position, 89 VILLEINAGE, what it was, . . 86 WARDSHIP.— See Knight-Service. WARRANTY, covenantsof, 448 general and special, 449 implied from exchange, 397 in partition by deed, . 410 between heirs, 410-411 covenants of, . . . 440 purchaser of land entitled to special, only, . 449 WASTE, as to mines, . 123-124 trees, . . . . 121-123 equitable, . 126 fixtures, .... . . . . 125 its derivation and nature, 120 Pennsyl vania legislation as to mines .124 permissive, ... ... . . , 125 remedies, ... . 126-127 in Pennsylvania, . .... 127 voluntary. . ... . . . 121 what is and what is not, is a question of fact, . . .... 121 WATER AND WATER COURSES, no property in running water, .... .15 pollution of, ... . . . 15, 16, 17 rights of riparian owners, . ... 15, 57 right to interfere with natural flow, . . 57 subterranean waters, . . ... .58 "WAYS. — See Easements. abutting owner's title in soil of, 51 "along," "by the side of," in deed passes land to middle of, . . 427 definition of, . . ... ... . .50 duty of grantee to repair, . . ... 52 in gross, . .55 liability of a municipality confined to cases where plaintiffs are ig- norant of the danger, .... . 53 obstruction in, . . . 52-55 obstructions in navigable streams, . 53 of necessity, . . . 56 owner of soil may use, subject to right of public, . . .51 private, never presumed to be in gross, where they can be reasona- bly held appurtenant, 55 572 INDEX. PAGE WAYS — continued. private ways, 55 public or highways, . . . 50-55 responsibility of municipality for injuries to foot passengers, . . 53 what are legitimate uses and obstructions of, 54-55 whati rights of public in them are, . 51-52 what waters are highways, 51 WAYGOING CROPS, right of tenant whose term has expired, 24 WIDOW. — See Descent ; Dower ; Married Women. right to mansion honse, . . . . 291 WILL, estates at. — See Estates at Will. WILLS, act of register in admitting to probate is j udicial, 532 ambulatory until death, 532 cancellation of, . . . . . 530 construction of, . . . . . . . . 522-523 convey fee without words of inheritance by statute in Pennsylvania, 95 decree of register conclusive after three years (personalty), five years (land,) ... . 532 may be impeached after five years for want of ju- risdiction, . . .... 533 definition of a will, ... ... . 513 devise to charity requires two subscribingwitnesses, . . 529 must be executed one month before death, . . 529 doctrine of equitable election, . .... . . . . 533-534 forms of, . . ... . . . 522 general devise passes land subject to power of appointment, 511 history of, . . . ... . 514 how made and executed, . .... 521 interest of widow taking against will of husband. . 519- 520 marks, . . . 52s married women's wills. — See Married Women. mode oi execution, . . . ... 525 must be in writing, . . 522 mnst be signed at end, . . 522, 526 must be revocable, 51 3 on several sheets of paper, . . . 526-527 pass all testator owned at death, 524 pass fee without words of inheritance, 94 persooal property governed by the law of domicil, real i-slatc by lex rci aitvc, . . 533 presumption of undue influence arising from circumstances and con- ditions of parties, . . 518 INDEX. 573 PAGE WILLS — continued. probate of, execution outside the State, . 533 how made, . . . . 532 revocation of, how made, . . . 529-530 by subsequent will, . ... . 531 implied from subsequent marriage, . . 531 from birth of children, . 531 rights of surviving husband, . . 520 widow, . . . , 519 ' subscribing witnesses are not necessary, . 528 exceptions, . ... 528-529 testamentary capacity, what constitutes, . . 516 undue influence, . . 517 what devises and legacies lapse and what do not, . . . 524-525 what maybe devised, . . . 521 who may make, . ...516 words of inheritance not necessary to pass fee, 523 WITNESSES. SUBSCRIBING.— See Wills. WRIT OF ENTRY SUB DISSEISIN. nature of, . . 26-267 WRIT OF RIGHT, nature of, 267