Olarn^U Ham §rl|onl ffiibrara Cornell University Library KF 569.P31 Illustrative cases In realty / 3 1924 018 787 907 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018787907 ILLUSTKATIVE CASES IN REALTY. BY W. S. PATTEE, LL. D., DXAN OF COLLEGK OF LAW, UmVEESITY OF MXHITESOTA. PAET I.— LAND. PABT II.— ESTATES. PAET in.— TITLE. PHILADELPHIA: T. & J. W. JOHNSON & CO. 1896. ^- 6?)^?) C. I Entered according to Act of Congress, in the year 1896, b3r WILLIAM S. PATTEE, LL. D., In the Office of the Librarian of Congress, at Washington^ FRANKLIN PRiNTINQ COMPANY, •1I>18 MINOR STRGET, PHIUDELPHIA. PREFACE, It is the object of this entire series to make a clear and accurate statement of that part of jurisprudence with which the several volumes respectively deal, and to accompany each statement with a case illustrating its application. Such a combination of principle and " Illustrative Case " aids both the understanding and the memory. In addition to this advantage, the numerous cases and authorities cited, which the student is expected to read, furnish an opportunity for him to examine the principle in its applications to facts and circumstances greatly varying in their nature, interest, and importance. Being " Illustrative " of the principles considered, I have deemed it desirable to select American cases rather than English, as the student will find an advantage in being familiar with the reports of his own country in the early days of his practice. English authorities, however, are not ignored. They are frequently cited in the notes, it being our object to familiarize the pupil with the hi^ory and growth of each principle to which we direct his attention. W. S. PATTEE, LL. D., Dean of College of Law. University of Minnesota. PAET I. AJvTALYSIS. LAND. Soil of the Earth, 1. Things Imbedded in the Soil, OU, Salt, Coal, 4. Water, 6. SuEPACE Water, 10. Ice, 16. Plowing Water — Natural, 23. Things Attached to the Soil by Nature, Corn Growing, 25. Trees Standing, 30. Trees Prostrate, 30. Trees Severed, 31. Trees Line, 33. Trees Part of the Land on which the Trunk Stands, 35. Deposits by Forces and Processes op Nature, An Aerolite, 39. Manure, 45. Accretions, 46. Alluvium, 52. Things Attached by Art, Fences, 57. Railway — beds and rails, 63. Materials Wrongfully Wrought into Buildings, 65. Fixtures, Test — intentions of parties, 69. Tests Applied, Barracks, 77. Buildings on Leased Premises, 81. Intention at Time of Erection, 83. Intention Must Appear, 85. V VI ANALYSIS. LAND. Fixtures, Use as Indicating Intention, 93. Annexation, Actual — gravity, 94, 100. Constructive, Saws, Stones, etc., 106. Under Contract, Express, 110-117. Implied, 118. Adaptation, as use of thing, 120. Disannexation, By Act of Law, 122. By Act of Party, 123. Trade Fixtures, 125-128. Agricultural Fixtures, 131, 139. Domestic Fixtures, Stoves, Pictures, etc., 141. Removal of Fixtures, Time of. Fixed by Law, 143. Fixed by Contract, 147. Construction of Rule, Between Vendor and Vendee, 150. Vendor and Owner in Common, 163. Parties Under Contract of Purchase, 159. Vendor and Purchaser of Building, 161. Mortgagor and Mortgagee, 162. Heir and Executor or Administrator, 172. Devisee and Executor, 175. INCORPOREAL HEREDITAMENTS, Easements, 178. Franchises, 187. Rents, 191. PAKT II. AKALTSIS. I. FREEHOLD ESTATES, 201. A. Of Inheritance, 205. 1. Fee-Simple Estates, 205. How Created by Deed, 208. Exceptions, 214. a. By Will, 214. b. Trustees, 218. c. Corporations, 221. d. Legislative Grant, 227. Incidents, 230. a. Right of Alienation, 230. Restrictions for Limited Time, 281. Restrictions as to Use, 235. b. Descent, 241. c. Curtesy, 243. d. Dower, 245. e. Liability for Debts, 246. 2. Determinable Fees, 249. a. Fee-Tail, 249. b. Estates upon Condition, 253. c. Estates upon Limitation, 258. d. Conditional Limitations, 264. e. Created by Will, 268. B. Not of Inheritance, 271. 1. Conventional Life Estates, 271. a. Created by Deed, 271. Express Words, 271. Implication, 276. b. By Will, 278. c. By Jointure, 279. d. By Marriage Settlement, 290. 2. Legal Life Estates, 294. a. Curtesy, 294. b. Dower, 298. vii Viii ANALYSIS. c. Curtesy and Dower as Modified by Statute, 309. d. Homestead, 311. 8. Incidents of Life Estates, 316, a. Estovers, 315. b. Emblements, 318. c. Duties of Life Tenants, 319. Interest, 319. Taxes, 322. Waste, 324. II. LESS THAN FREEHOLD, 327. A. Estates foe Yeaes, 327. 1. Term, 381. a. How Created, 334. b. Time Computed, 337. c. Perpetual Renewal, 338. d. Land Let " on Shares," 340. e. Lease of Building, 341. f. Assignment, 343. g. Sub-lease, 347. 2. Lease, 351. a. Covenants, 353. Express, 353. Implied, 356. Running with the Land, 357. b. Tenant Estopped to Deny Landlord's Title, 360 c. Rent, 365. d. Termination, 370. By Lapse of Time, 370. By Agreement, 371. By Operation of Law, 374. B. Estates peom Yeae to Yeae, 378. a. Rent Reserved, 378. b. Rent not Reserved, 384. c. Termination, 386. C. Estates at Will, 393. a. Nature of, 393. b. How Created, 395. c. Termination, 404. D. Estates at Suffeeance, 406. ANALYSIS. IX III. ESTATES, TIME OF ENJOYMENT, 414. A. In Possession, 414. B. In Expectancy, 414. 1. Future Estates, 414. a. Without Precedent Estate, 414. ' b. With Precedent Estate, 420. Vested Remainders, 420. Contingent Remainders, 430. Uncertainty of Person, 430. Uncertainty of Event, 435. c. Rule in Shelley's Case, 440. 2. Reversions, 448. 3. Executory Devise, 453. 4. Rights Not Amounting to an Estate in Land, 471. a. Possibility of Reverter, 471. b. License, 479. Revocation, 482. , Oral or Written, 483. Effect of Conveyance, 487. When Acted Upon, 491. Exceptions, 499. License Coupled with Grant. How Treated in Equity. IV. ESTATES, NUMBER OP OWNERS, 510. A. In Severalty, 510. ♦ B. Joint Estates, 510. 1. Tenancy in Common, 510. 2. Joint Tenancy, 515. 3. Entirety, 524. 4. Partners, 527. PART III. ANALYSIS. I. TENURE, 537. 1. Subject to Power of Eminent Domain, 539. 2. Subject to the Principle " Sic Utere tuo," 546. II. HOW TITLE IS ACQUIRED AND LOST, 551. A. By Descent, 551. B. By Purchase, 553. 1. By Act of Law, Either Alone or by Some Act of One Party, 553. a. Escheat, 553. b. Prescription Or Adverse Possession, 567. Possession is Title as Against a Stranger, 567. Entry with Hostile Intent as Against the Owner, 570. Actual Possession, 577. Open Possession, 581. Continuous Possession, 585. Exclusive Possession, 591. Hostile or Adverse, 595. Under Color of Title, 603. Not Under Color of Title by Intruder, 606. c. Accretion, 613. d. Dereliction, 621. Islands, 625. e. Abandonment, 630. f. Estoppel, 632. By Deed, 632. With Covenant of Warranty, 632. Deed Importing to Convey the Fee, 687. Sheriff's Sale, 642. ANALYSIS. XI In Pais, 647. Adults. Married Women, 663. Infants, 668. Exception in Case of Married Women, 670. Exception in Case of Infants, 677. Modem Tendency in Case of Married Women and Infants, when their Disabili- ties are Removed by Statute, 682, 687. By Destruction of Deed, 694. g. By State Power, 697. , Eminent Domain, 697. Fee Simple, 704. Taxation, 709. Tax Deed, 716. h. Forfeiture, 718. i. By Marriage, 726. Curtesy, 730. Dower, 732. Statutory Modifications of Curtesy and Dower, 735, 738. j. Execution, 740. k. Judicial Decree, 742. 1. Bankruptcy, 746. m. Administrators and Executors, 749. n. Guardians, 750. 2. By Act of Parties, 753. a. Public Grant, 753. National, 753. State, 763. Office, 767. Title Passes on Delivery of Deed, 770. C. By Devise, 772. 1. Will, 772. 2. Disclaimer, 774. TABLE OF CASES. PAGE Allen v. Mansfield, 108 Mo. 343 ; 18 S. W. Rep. 901 606 Am. Mortgage Co. v. Tennille, 87 Ga. 28 563 Arms v. Burt, 1 Vt. 303 211 Atkins v. Sleeper, 7 Allen, 487 337 Baldwin v. Breed, 16 Conn. 60 153 Barkley v. Wilcox, 86 N. Y. 140 10 Barron v. Mullin, 21 Minn. 374 746 Bedford v. McElherron, 2 S. & R. 49 370 Blackmore v. Boardman, 28 Mo. 420 338 Blackstone Bank v. Davis, 21 Pick. 42 230 Blakslee v. Sincepaugh, 71 Hun, 412 677 Boom Co. v. Patterson, 98 U. S. 403 697 BowEN V. Guild, 130 Mass. 121 585 Brackett v. Goddard, 54 Me. 309 31 Brackett v. Leighton, 7 Me. 383 245 Bradner v. Faulkner, 34 N. Y. 347 175 Brewster v. Hill, 1 N. H 350 327 Brown's Administrators v. Bragg, 22 Ind. 122 334 Buffum v. Hutchinson, 1 Allen, 58 208 Burden v. Thayer, 3 Met. 76 448 Burns v. Bryant, 31 N. Y. 453 393 Burnside v. Twitchell, 43 N. H. 390 110 Buxton v. Inhabitants op Uxbridgj E,10 Met. 87 249 Xlll -"^V TABLE OF CASES. PAGE Campbell v. Carson, 12 S. & R. 64 214 Carver v. Fennimore, 116 Ind. 236 510 Caswell v. Districh, 15 Wend. 379 340 Chandos v. Mack, 77 Wis. 573 625 Charless v. Eankin, 22 Mo. 567 181 Chiles v. Conley's Heirs, 2 Dana, 21 763 CocKRiLL V. Downey, 4 Kan. 427 30 Commonwealth v. Tewksbury, 11 Met. 55 546 Cook v. Stearns, 11 Mass. 533 479 Cowell v. Springs Co., 100 U. S. 55 235 CuRRAN V. Kuby, 37 Minn. 330 749 Cutts v. Commonwealth, 2 Mass. 284 201 Daniels v. Pond, 21 Pick. 367 45 Dartmouth College v. Clough, 8 N. H. 22 347 Davis v. Buffum, 51 Me. 160 143 Davis v. Emery, 61 Me. 140 123 Dean v. Goddard, 56 N. W. Rep. 1060; 55 Minn. 290 695 Desnoyer v. Jordan, 27 Minn. 295 290 Dodge v. Allis, 27 Minn. 376 742 Doe ex dem. Gledney v. Deavors, 8 Ga. 479 709 Donahue's Estate, 36 Cal. 329 241 Dooley v. Crist, 25 111. 551 •83 DuNCKLEE V. Webber, 151 Mass. 408 366 Dyer v. Clark, 5 Met. 662 527 Estate of Donahue, 36 Cal. 329 241 E^NG V. Burnet, 11 Pet. 41 570 Parrar v. Farrar, 4 N; H. 191 694 Farrar v. Stackpole, 6 Me. 164 106 Ferguson v. Tweedy, 43 N. Y. 543 294 First Cong. Society op Dubuque V. Fleming, 11 Iowa, 533 93 First Parish in Sudbury v. Jones et al, 8 Cush. 184 67 Fleming v. Maddox, 30 Iowa, 239 577 Fowler v. Bott, . 6 Mass. 67 365 TABLE OP CASES. XV Gaffield v. Hapgood, Gatling v. Lane, GooDARD V. Winch ELL, Goodrich v. Jones, GooDRiGHT V. Richardson, Graves v. Berdan, Gray v. Crockett, Gray v. McCune, Green v. Hewitt, Greenwood v. Murdock, Griffin v. Bixby, Grogan v. Garrison, Hardage v. Stroope, Harris v. Frink, Hawkes v. Pike, Hemenway v. Cutler, Henderson v. Hunter, Henderson v. Overton, Hill v. Wentworth, Holmes v. Holmes, House v. Jackson, Hunt v. Bay State Iron Co., Hunt v. Hall, Hunt v. Morton, Hunter v. Frost, HuRD V. Gushing, Ingraham v. Wilkinson, In re Oertle, In re Rausch, Ives v. Allyn, Jackson v. Embler, Jackson v. P., W. & B. R. R. Co., PAGE 17 Pick. 192 141 17 Neb. 77 ; 22 N. W. Rep. 453 60.^' 52 K W. R. 1124 39 2 Hill, 142 122 3 T. R. 462 331 26 N. Y. 498 367 10 Pac. Rep. 452 ; 35 Kan. 66, 686 670 23 Pa. St. 447 298 97 111. 113 420 9 Gray, 20 161 12 N. H. 454 33 27 Ohio St. 50 279 58 Ark. 303 ; 24 S. W. Rep. 490 440 49 N. Y. 24 395 105 Mass. 562 770 51 Me. 407 159 59 Pa. St. 335 258 2 Yerger, 394 642 28 Vt. 428 85 54 Minn. 352 738 50 N. Y. 161 307 97 Mass. 279 63 37 Me. 363 430 18 111. 75 384 47 Minn. 1 378 7 Pick. 169 276 4 Pick. 268 46 34 Minn. 173 423 35 Minn. 291 309 13 Vt. 629 772 14 Johns. 198 278 4 Del. Ch. 180 ; 11 A.L.Reg.(N.S.)374 500 XVI TABLE OF CASES. • PAGE Jackson v. Van Zandt, 12 Johns. 169 205 Jenkins v. McCukdy, 48 Wis. 628 120 Johnson v. Skillman, 29 Minn. 95 483 Keeler v. Eastman, 11 Vt. 293 324 KiER V. Peterson, 41 Pa. St. 357 4 KiNSELL V. Billings, 35 Iowa, 154 172 Langdon v. Ingram's Guardian, 28 Ind. 360 231 Lanpher v. Glenn, 37 Minn. 4 341 Lemar v. Miles, 4 Watts, 330 125 LiNAHAN V. BaRR, 41 Conn. 471 81 LiNDLEY V. CrOMBIE, 31 Minn. 232 740 Lippencott v. Allander, 27 Iowa, 460 187 LoBDELL V. Hayes, 12 Gray, 236 551 LoviNGSTON V. St. Clair Co., 64 111. 56 613 Lowell v. Daniels, 2 Gray, 161 663 Lyman v. Hale, 11 Conn. 177 35 McCoRMicK Harvesting Mac. Co. V. Gates, 75 Iowa, 343 246 McCrba v. Marsh, 12 Gray, 211 482 Mbig's Appeal, 62 Pa. St. 28 77 Menage v. Jones, 40 Minn. 254 767 MiDDLEBROOK V. CORWIN, 15 Wend. 169 139 Miller v. Plumb, 6 Cowen, 665 150 Minn. Mill Co. v. Ry. Co., 51 Minn. 304 491 Minn. Mill Co. ■;;. Tiffany, 22 Minn. 463 537 Moore v. Harris, 4 S. W. Rep. 439 732 Moore v. Robbins, 96 U. S. 530 753 sMoRSE V. Proper, 82 Ga. 13 ; 8 S. E. Rep. 625 435 Mott v. Palmer, 1 N. Y. 564 59 MURDOCK V. RaTCLIFF, 7 Ohio, 119 329 Murray v. Cherrington, 99 Mass. 229 332 Nelson v. Thompson, 23 Minn. 508 371 Nbttleton v. Sikes, 8 Met. 34 499 Newman v. Rutter, 8 Watts, 51 360 Nicoll v. N. Y. & E. R. R., 12 N. Y. 121 471 TABLE OF CASES. XVll ■> PAGE North v. Philbrook, 34 Me. 532 218 O'Brien v. Kusterer, 27 Mich. 289 128 Ocean Grove Camp Meeting Assn. v. Asbury Park, 40 N. J. Eq. 447 6 Oertle, In re, 34 Minn. 173 423 Olnby v. Hull, 21 Pick. 311 432 Osgood v. Howard, 6 Me. 452 118 Parsons v. Copeland, 38 Me. 537 69 Patterson v. Lawrence, 90 111. 174 682 Peck v. Ingeksoll, 7 N. Y. 528 350 Pendill v. Agricultural Society, 95 Mich. 491 637 Perry v. Hale, 44 N. H. 363 774 Phillips v. Sherman, 64 Me. 171 23 Pierce ■;;. Goddard, 22 Pick. 559 65 Pierce v. Keator 70 N. Y. 419 178 Pike v. Galvin, 29 Me. 183 632 Proprietors, etc., v. Grant, 3 Gray, 142 453 Proprietors, etc., v. Permit, 5 N. H. 280 227 Randall v. Kreiger, 23 Wall. 137 726 Rausch, In re, 35 Minn. 291 309 Reifp v. Reiff, 64 Pa. St. 134 318 Renoud v. Daskam, 34 Conn. 512 353 Richardson v. York, 14 Me. 216 271 Riley et al. v. Boston Water Power Co. et al., 11 Cush. 11 1 RocKHiLL V. Nelson, 24 Ind. 422 735 Russell v. Fabyan, 34 N. H. 218 406 Sabledowsky v. Arbuckle, 50 Minn. 475 414 Sanders v. Partridge, 108 Mass. 556 343 Sands v. Lynham, 27 Gratt. 291 553 Sands v. Pfeipfer, 10 Cal. 259 170 Sandwich Mfg. Co. v. Zellmer, 48 Minn. 408 687 Sawyer v. Hanson, 24 Me. 542 351 Say v. Stoddard, 27 Ohio St. 478 404 School Dist. v. Benson, 31 Me. 381 630 Sherin v. Brackett, 36 Minn. 162 567 XVlll TABLE OF CASES. Smith v. Hitchcock, Smith ■;;. Pendergast, Snedaker v. Warring, Stearns v. Godfrey, Steffens v. Earl, Stevens v. Smith, Strickland v. Parker, Sumner v. Seaton, Sweet v. Buffalo, etc., Co., Taft v. Stetson, Taylor v. Porter, Thomas v. Thomas, Thornburg v. Wiggins, Thornton's Executors v. Krepps, Trask v. Graham, Tripp v. Hasceig, Vandall v. St. Martin, Van Ness v. Pacard, Van Rensselaer v. Read, Varney v. Stevens, Wallach v. Van Riswick, Warners. Bennett, Warren v. Chambers, Washington Ice Co. v. Shortall, Watson v. Watson, West Duluth Land Co. v. Kurtz, Wheeler v. Walker, Whitaker v. Erie Shooting Club, White v. Cutler, White's Appeal, WiELAND V. KOBICK, wigginhorn v. kountz, Wilcox v. Wheeler, 38 Neb. 104 ; 56 N. W. Rep. 791 591 26 Minn. 318 374 12 N. Y. 170 100 16 Me. 158 264 40 N. J. L. 128 386 4 J. J. Marsh, 64 302 54 Me. 263 94 19 Atl. Rep. 884; 47 N. J. Eq. 103 647 79 N. Y. 293 704 117 Mass. 471 117 4 Hill, 140 539 17 N. J. Eq. 356 819 135 Ind. 178 ; 34 N. E. Rep. 999 515 37 Pa. St. 391 296 47 Minn. 571 357 20 Mich. 254 25 42 Minn. 163 588 2 Peters, 137 131 26 N. Y. 558 191 22 Me. 331 322 92 U. S. 202 718 31 Conn. 468 253 25 Ark. 120 621 101 111. 46 16 13 Conn. 83 243 45 Minn. 380 750 2 Conn. 196 268 60 N. W. Rep. 983 581 17 Pick. 248 315 10 Pa. St. 252 147 110 111. 16 668 23 Neb. 690 52 47 N. H. 488 221 TABLE OP cases. XIX PAGB Wilson v. Peootok, 28 Minn. 13 311 Wilson v. St. P. & M. & M. Ry., 41 Minn. 56 487 Wilson v. Wilson, 43 Minn. 398 624 WiNSLOw V. Merchants' Insur- ance Co., 4 Met. 310 162 Witham v. Perkins, 2 Greenl. 400 730 Wood v. Armour, 88 Wis. 488 716 rLIiUSTRAT^YE CASES REALTY. LAND. Land includes the soil of the earth and every tangible thing permanently connected therewith, either by nature or art, and. extends from the surface indefinitely upward and downward. PRINCIPLE. Quicquid plantatw, solo solo cedit. SOIL. Land, of course, includes the soil, which retains its character as realty until by severance it becomes personalty. RiLBY d al. V. Boston Water Power Co. et al. Supreme Judicial Court of Mass., 1853. 11 Cash. 11. Dewey, J. It is certainly true that for an injury to his real estate, the party cannot maintain trover. That form of action is appropriate exclusively to the recovery of damages for the unlawful conversion of personal property. But this being granted, the further inquiry is, whether the three hundred and ninety-four squares of earth severed from the land of the plain- tiffs, and removed from the same and sold to the defendants, and used by them, was at the time of such purchase by the 1 ILLUSTRATIVE CASES defendants, and use of the same, still a part of the realty, and retained unchanged its character as such, or whether by the act of separation in fact, and a removal of the earth to a dis- tant place, it has not changed the character of the earth so removed to that of personal property. It seems to us that it is very well settled that whatever is severed from the land — as, in the familiar case of standing timber trees — if such trees, being a part of the realty, are cut down, they cease to be real estate, and become personal. But this transmutation, while it changes the character of the property in this respect, does not change its ownership. It would not do so if cut down by the owner of the land, and not any more so, by being cut down by a person entering unlawfully upon the land and making the severance. It is the actual severance that changes the property from real to personal, and that irrespective of its being done with, or without, the consent of the owner of the land. And in this respect we see no distinction between removing living trees, deriving their nourishment from the earth, and the removal of a portion of the earth itself It is next objected that the plaintiffs, by bringing this action of trover, and waiving their action of trespass quare clauswm, have adopted and sanctioned the original act of trespass, and therefore cannot maintain this action against one who purchased the earth bona fide 'oi the trespassers. We do not perceive that any such claim appears. It is true that the plaintiffs have not elected to institute an action of trespass quare clausum against the original wrong-doers. But as regards these defendants, who have the property of the plaintiffs without right, nothing is waived ; they did not commit any trespass upon the plaintiffs' land, and no action could have been maintained against these defendants therefor. Their first connection with the plaintiffs' property was after it had been severed from the realty, and the only mode of enforcing a claim against them for the value of the same is by a personal action. If the plaintiffs have not this remedy, they are remediless as to any recovery against those who have received and converted to their own use their property. Take the case of valuable timber trees, cut down IN REALTY. 3 and carried away from the land, and sold by a mere trespasser. Is the owner of the same deprived of all remedy against any person who may have received these timber trees by purchase from the trespasser ? He is so, unless trover will lie ; for tres- pass quare clausum will not lie against such purchaser. It is further coAtended that if the defendants were bona fide purchasers, and without notice of the trespass, the plaintiffs must prove a demand on the defendants, and a refusal by them to redeliver before the commencement of the action. The Court ruled upon this point, if such purchase vms made in the manner above stated, yet, if they received the earth from the trespassers by a purchase for their own use, and directed that the same be deposited on the filling-ground, they would be liable without any such demand and refusal. This ruling may be fully supported upon the ground of a conversion in fact of the earth, and the impracticability of a redelivery of the earth after it had become thus intermingled with the soil of the land on which it was placed, and had become a part of the solid earth. Whenever there has been an actual conversion, or whenever the property has been thus appropriated, it is evidence of a conversion which supersedes the necessity of any demand. This view is to us a satisfactory answer to the objection here Urged, that there was no proof of a demand. But, upon other grounds, under the late decision of this Court in the case of Stanley v. Gaylord, 1 Cush. 536, a case where the whole subject was much considered, and where the Court came to the result that a bona fide purchase from one who had the actual posses- sion of the property, but without any right to retain possession as against the lawful owner, and actual taking the same under such purchase into the custody and control of the purchaser, would subject him to an action of trespass or trover at the suit of the lawful owner, without any previous demand. Exceptions overruled. WiLiiiAMS Keai, Prop. 14-15, 496, note a. 4 ILLUSTRATIVE CASES THINGS IMBEDDED IN THE SOIL. Petroleum, salt, coal, and other minerals imbedded in the soil are part of the land. KiER V. Peterson. Supreme Court of Pennsylvania, 1861. 4] Pa. St. 357. Woodward, J. I concur in the judgment of tne majority, on the ground that the plaintiff's action was misconceived. I hold that trover was not his appropriate remedy. A few words will suffice to exhibit my views. Petroleum, or, as it is called in the West Indies, Barbadoes tar, is a species of mineral, which, while it exists in its natural deposits in the earth, is included in the very comprehensive idea which the law attaches to the word laTid. It is part of the land. It is land. As such it belonged to Peterson, in the place where the present dispute arose. He held it by the same title by which he held the surface, or the salt which underlay the surface. He was absolute proprietor of all things be- tween the surface and centre of the earth at that place, saving only the government's right to share in the gold and silver that might be found. It was his freehold, and the petroleum and the salt were parts of the freehold. By the article of agreement of October 30, 1837, he leased the premises to Thomas and Samuel M. Kier, for purposes of salt-wells. Under certain conditions and restrictions the lease was to endure as long as the salt-wells should be carried on by the Kiers, the survivor of them or their assigns. The rent reserved was every twelfth barrel of salt made on the premises. It was in effect and substance a sale of the crude salt in the land for one-twelfth of the manufactured article. Now, there is no doubt that the absolute owner of land may sell a partial interest in it as well as the whole. He may sell the surface and retain the minerals, or he may sell one or more of the minerals and retain the surface. This is every d9,y's experi- ence in the mining districts. But it is self-evident that when he carves out a particular interest and sells it, he retains all the rest as absolutely as IN REALTY. 5 before he conveyed a part. Therefore I cannot doubt that ' Peterson was as exclusively and as absolutely the owner of the petroleum in this land after the lease of October 30, 1837, as before. There is not a word in the instrument which imports his intention to part with anything more than the salt in his land, and such timber and stones as should be necessary for erecting and maintaining saltworks. Every matter and thing in and pertaining to the land which was not conveyed to the Kiers by that instrument was retained by Peterson. But the Kiers could not exercise their right to raise salt without raising petroleum. They severed both the salt and the petroleum froya the freehold, and brought both to their lawful possession at the surface. They were not trespassers. The severance of the petroleum was an inevitable incident of their exercise of clearly granted rights. The grant of the right to take salt was the grant of all incidental rights which were in. dispensable to the exercise of the main one. Hence, their severance of the petroleum from the freehold, and their posses- sion of it, were lawful. The work of separating the oil and salt was not difficult. "With opportunity given them the fluids would separate themselves. But the Kiers, in lawful possession of both before separation, were to control the work of separation, and were in lawful possession of each after that work was ac- complished. For this reason I hold the action of trover will not lie. Although Peterson had not lost his right of property in the petroleum, yet a mere right of property in a chattel is not sufficient to maintain trover. (The plaintiff must have also i the right of possession at the time of conversion:^! Chit. PI. l 164 ; Saunders P. & E. 1138. In Mather v. Trinity Church, 3 S. & R. 509, the principle was carried further still, and it was held that trover for stone and gravel dug from land does not lie by one who has the right of possession, against a person who has actual adverse possession of the land and sets up title to it. In our case, Peterson had no right of possession of the land whatever, and the Kiers were not in as mere adverse holders, but Peterson had conveyed the right of possession to them, and they were in under and according to his title. Nor 6 ILLUSTKATIVE CASES were they guilty of waste in severing the petroleum from the freehold, since it was an inseparable consequence from the right granted to them by the landlord. Their actual possession, therefore, of the severed chattel was in every sense a rightful possession, and because no right of possession existed in Peter- son at the moment of severance, trover will not lie. On this ground alone I am for reversing the judgment. I hold Peterson entitled to compensation for the .value of his oil, and I suppose a bill in equity for account would be his most natural and efiScacious remedy. I think the learned Judge below apprehended correctly the measure of compensation. Peterson would not be entitled to the labor of the Kiers, but only to the value of the oil at the instant of separation from the freehold. But his remedy, whatever the extent of it, is to be sought in another form of action. Note. — Gold and silver. Moore v. Smaw, 17 Cal. 195 ; LyddaU v. Weston, 2 Atk. 19. Waters which percolate through the earth are a part of the land and are subject to absolute ownership. Ocean Gkove Camp Meeting Assn. v. Asbtjry Park. Court of Chancery, New Jersey, 1885. 40 N. J. Eq. 447. BiED, V. C. More than fifteen years ago the complainants purchased a large tract of land fronting upon the ocean, chiefly for the purposes of a summer resort, to exercise the right of worship. The enterprise has so grown that in winter it has a population of about five thousand, and in summer of ten thousand or fifteen thousand. The authorities soon discovered that to preserve the good health of the residents and visitors it was absolutely necessary to improve their water-supply and sewerage system. To do this they bored for water, and at the depth of over four hundred feet struck water which gave them a flow of fifty gallons per minute, at an elevation above the surface of twenty-eight feet. This theycarried into the city by means of pipes, and supplied therewith about seventy IN REALTY. 7 hotels and cottages. They also applied it to the improvement of their sewerage system. The volume of water thus pro- duced continued to flow undiminished in quantity and with unabated force until the action of the defendants now com- plained of, and to restrain which the bill in this cause was filed. The commissioners of Asbury Park, a corporate body, pur- chased a large tract of land immediately north and adjacent to the tract owned by Ocean Grove. Under their management this, too, has become a famous seaside resort. Its population is equal to, if not greater, at all times, than that of Ocean Grove. The authorities saw a like necessity for an increased supply of wholesome water. They entered into a contract with others, a portion of these defendants, to procure for them water by boring in the earth. These, their agents, sank sev- eral shafts to the depth of over four hundred feet without satisfactory success. One shaft yielded about four gallons to the minute, and another, which yielded the most, only nine. All of these wells were upon the land and premises of the Asbury Park Association. It became evident, and is manifest to the most casual observer, that these wells would not supply the volume of water needed. It was also manifest that the experi- ment to procure water by digging upon their own land had been quite reasonably extended, although not so complete as to satisfy the mind that they cannot obtain water on their own premises as well as elsewhere, since it is in evidence that there are two wells on their premises, sunk by individuals, which produce fifteen gallons each per minute, being as much in quantity as they procure from the well which is complained of. Failing in their efforts upon their own premises they go else- where, on the land owned by individuals, and, procuring a right from individual owners, sink a shaft upon the public highway, near to the land of tiie complainants, and within five hundred feet of the complainants' well. This bore extended to the depth of four hundred and sixteen feet, within eight feet of the depth of complainants' well. At this depth they secured a flow of water at the rate of thirty gallons per 8 ILLUSTRATIVE CASES minute, and the supply from the complainants' well was almost immediately decreased from fifty gallons to thirty per minute. The diminution in water was immediately felt by many of those who depended for a supply from this source in Ocean Grove. The Asbury Park authorities propose to sink other wells still nearer the well of the complainants. This bill asks that they may be prohibited from so doing, and that they may be commanded to close the well already opened, which, it is alleged, is supplied from the same source that the complain- ants' well is supplied from. The complainants are first, in point of time. They are upon their own land and premises. They procure water from their own soil to be used in connection with their said prem- ises, in the improvement and beneficial enjoyment of their occupation. In this they have exercised an indefeasible and unqualified right. It matters not whether the water which they obtain is from a pond or underground basin, or only the result of per- colation, or from a flowing stream. The defendants went from their own land upon the land of strangfers, and obtained per- mission to bore for water, and there sink their shaft, procuring water from the same source that the complainants procured their water, and diverted it and carried it to their premises, three-eighths of a mile, for use. Can they be restrained from doing this ? A very careful consideration of a great many authorities leads me to the con- clusion that they cannot at the instance of the complainants : Angell on Water-Courses, §§ 109-114, inclusive; Gould on Waters, § 280 ; Ballard v. Tomlinson, L. R. (26 Ch. Div.) 1-94 ; Chasemore v. Richards, 7 H. L. Cas. 349 ; 5 H. & N. 982 ; Acton V. Blundell, 12 M. & W. 324 ; Chase v. Silverstone, 62 Maine, 175 ; Roath v. Driscoll, 20 Conn. 533 ; Delhi v. You- mans, 45 N. Y. 362 ; Goodale v. Tuttle, 29 N. Y. 459 ; Wheat- ley V. Baugh, 25 Pa. St. 528 ; Frazier v. Brown, 12 Ohio St. 294. The Courts all proceed upon the ground that waters thus IN REALTY. 9 used and perverted are waters which percolate through the earth, and are not distinguished by any certain and well- defined stream, and, consequently, are the absolute property of the owner of the fee as completely as are' the ground, stones, minerals, or other matter to any depth whatever beneath the surface. The one is just as much the subject of use, sale, or diversion as the other. The owner of a mine encounters innumerable drops of water escaping from every crevice and fissure ; these, when collected, interfere with his progress, and he may remove them, although the spring or well of the land-owner below be diminished or destroyed. So, the owner or owners of a bog, marsh, or meadow may sink wells therein, and carry off the water collected in them, to the use or enjoy- ment of a distant village or town, although the waters of a large stream upon the surface be thereby so diminished as to injure a mill-owner who had enjoyed the use of the waters of the stream for many years. Upon these principles there can be no doubt but that every lot-owner in Ocean Grove or Asbury Park could sink a well on his lot to any depth, and, in case one should deprive his neighbor of a portion or all of his sup- posed treasure, no action would lie. A moment's reflection will enable every one to perceive that such conditions or.contin- gencies are necessarily incident to the ownership of the soil. In the case before me there is no proof that the waters in question are taken from a stream, and I have no right to pre- sume that they are. The presumption is the other way. It seems to be my very plain duty to discharge the order to show cause, with costs. Clark V. Conroe, 38 Vermont, 470. 10 ILLUSTRATIVE CASES Surface water falling upon land is a part of it and subject to abso- lute ownership Barkley V. Wilcox. Court of Appeals, New York, 1881. 86 N. Y. 140. Andrews, J. This is not the case of a natural water-course. A natural water-course is a natural stream, flowing in a defined bed or channel, with banks and sides, having permanent sources of supply. It is not essential to constitute a water- course, that the flow should be uniform or uninterrupted. The other elements existing, a stream does not lose the character of a natural water-course because, in times of drought,-the flow may be diminished, or temporarily suspended. It is suflicient if it is usually a stream of running water : Angell on Water- Courses, § 4 ; Luther v. The Winnisimmet Co., 9 Cush. 171. The parties in this case own adjacent lots on a street near a village, but not within the corporate limits. The findings are, that the natural formation of the land was such that surface water from rains and melting snows would descend from differ- ent directions, and accumulate in the street in front of the plaintifi''s lot in varying quantities, according to the nature of the seasons, sometimes extending quite back upon the plaintiffs lot ; that in times of unusual amount of rain, or thawing snow, such accumulations, before the grading of the defendant's lot, were accustomed to run off over a natural depression in the surface of the land across the defendant's lot, and thence over the lands of others, to the Neversink River ; that when the amount of water was small, it would soak away in the ground ; that in 1871 the defendant built a house on his lot, and used the earth excavated in digging the cellar to improve and better the condition of his lot, by grading and filling up the lot and sidewalk in front of it, about twelve inches, and on a subse- quent occasion he filled in several inches more ; that in the spring of 1875 there was an unusually large accumulation of water from melting snow and rains in front of and about the plaintiff's premises, so that the water ran into the cellar of his house, and occasioned serious damage ; that the filling in of IN REALTY. 11 the defendant's lot had the effect to increase the accumulation of water on the plaintiff's lot, and contributed to the injury to his property. There is no natural water-course over the defendant's lot. The surface water, by reason of the natural features of the ground, and the force of gravity, when it accumulated beyond a certain amount in front of the plaintiffs lot, passed upon and over the lot of the defendant. The discharge was not constant, or usual, but occasional only. There was no channel or stream, in the usual sense of those terms. In an undulating country there must always be valleys and depressions, to which water, from rains or snow, will find its Way from the hillsides, and be finally discharged into some natural outlet. But this does not constitute such valleys or depressions, water-courses. Whether, when the premises of adjoining owners are so situated that surface water falling upon one tenement naturally descends to and passes over the other, the incidents of a water-course apply to and govern the rights of the respective parties, so that the owner of the lower tenement may not, even in good faith and for the purpose of improving or building upon his own land, obstruct the flow of such water to the injury of the owner above, is the question to be determined in this case. This question does not seem to have been authoritatively decided in this State. It was referred to by Denio, C. J., in Goodale V. Tuttle, 29 N. Y. 467, where he said : " And in respect to the running off of surface water caused by rain or snow, I know of no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil, for its amelio- ration and his own advantage, because his neighbor's land is so situated as to be incommoded by it. Such a doctrine would militate against the well-settled rule that the owner of land has full dominion over the whole space above and below the surface." The case in which these observations were made did not call for the decision of the question, but they show the opinion of a great Judge upon the point now in judgment. Similar views have been expressed in subsequent cases in this Court, although in none of them, it seems, was the question 12 ILLUSTRATIVE CASES before the Court for decision : Vanderwiele v. Taylor, 65 N. Y. 341 ; Lynch v. The Mayor, 76 lb. 60. The question has been considered by Courts in other States, and has been decided in different ways. In some the doctrine of the civil law has been adopted as the rule of decision. By that law, the right of drainage of surface waters, as between owners of adjacent lands, of different elevations, is governed by the law of nature. The lower proprietor is bound to receive the waters which naturally .flow from the estate above, provided the industry of man has not created or increased the servitude: Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5 ; Domat [Cush. ed.], 616 ; Code Napoleon, art. 640 ; Code Louisiana, art. 656. The Courts of Pennsylvania, Illinois, California, and Louisiana have adopted this rule, and it has been referred to with approval by the Courts of Ohio and' Missouri : Martin v. Riddle, 26 Pa. St. 415 ; Kauffman v. Griesemer, lb. 407 ; Gillham v. Madison Co. E. R. Co., 49 111. 484 ; Gormley v. Sanford, 52 lb. 158 ; Ogburn V. Connor, 46 Cal. 346 ; Delahoussaye v. Judice, 13 La. Ann. 587 ; Hays v. Hays, 19 La. 351 ; Butler v. Peck, 16 Ohio St. 334 ; Laumier v. Francis, 23 Mo. 181. On the other hand, the Courts of Massachusetts, New Jersey, New Hampshire, and Wisconsin have rejected the doctrine of the civil law, and hold that the relation of dominant and servient tenements does not by the common law apply between adjoining lands of different owners, so as to give the upper proprietor the legal right, as an incident of his estate, to have the surface water falling on his land discharged over the land of the lower proprietor, although it naturally finds its way there ; and that the lower proprietor may lawfully, for the improvement of his estate and in the course of good husbandry, or to make erections thereon, fill up the low places on his land, although by so doing he obstructs, or prevents, the surface water from passing thereon from the premises above, to the injury of the upper proprietor : Luther V. The Winnisimmet Co., 9 Cush. 171 ; Parks v. Newburyport, 10 Gray, 28 ; Dickinson v. Worcester, 7 Allen, 19 ; Gannon v. Hargadon, 10 lb. 106 ; Bowlsby v. Speer, 2 Vroom, 351 ; Petti- grew V. Evansville, 25 Wis. 223 ; Hoyt v. Hudson, 27 lb. 656 j IN REALTY. 13 Swett V. Cutis, 50 N. H. 439. It may be observed that in Pennsylvania, house lots in towns and cities seem to be regarded as not subject to the rule declared in the other cases in that State, in respect to surface drainage : Bentz v. Armstrong, 8 "Watts & S. 40. And in Livingston ■;;. McDonald, 21 Iowa, 160, the Court, in an opinion by Dillon, J., after stating the civil-law doctrine, say, that it may be doubted whether it will be adopted by the common-law Courts of this country, so far as to preclude the lower owner from making in good faith im- provements which would have the effect to prevent the water of the upper estate from flowing or passing away. Professor Washburn states that the prevailing doctrine seems to be that if for the purposes of improving and cultivating his land, a land-owner raises or fills it, so that the water which falls in rain or snow upon an adjacent owner's land, and which for- merly flowed on to the first-mentioned parcel, is prevented from so doing, to the injury of the adjacent parcel, the owner of the latter is without remedy, since the other party has done no more than he had a legal right to do : Wash, on Easements, [2d ed.J 431. Upon this state of the authorities, we are at liberty to adopt such rule on the subject as we may deem most consonant with the demands of justice, having in view on the one hand indi- vidual rights, and on the other the interests of society at large. Upon consideration of the question, we are of opinion that the rule stated by Denio, C. J., in Goodale v. Tuttle, is the one best adapted to our condition, and accords with public policy, while at the same time it does not deprive the owner of the upper tenement of any legal right of property. The maxim, aqvM currit et debet currere ut currere solebat, expresses the general law which governs the rights of owners of property on water- courses. The owners of land on a water-course are not owners of the water which flows in it. But each owner is entitled, by virtue of his ownership of the soil, to the reasonable use of the water as it passes his premises, for domestic and other uses, not inconsistent with a like reasonable use of the stream, by owners above and below him. Such use is in- 14 ILLUSTKATIVE CASES cident to his right of property in the soil. But he cannot divert, or unreasonably obstruct the passage of the water, to the injury of other proprietors. These familiar principles are founded upon the most obvious dictates of natural justice and public policy. The existence of streams is a permanent provision of nature, open to observation by every purchaser of land through which they pass. The multiplied uses to which, in civilized society, the waters of rivers and streams is applied, and the wide injury which may result from an unreasonable interfer- ence with the order of nature, forbid an exclusive appropriation by any individual of the water in a natural water-course, or any unreasonable interruption in the flow. It is said that the same principle of following the order of nature should be applied between coterminous proprietors in determining the right of mere surface drainage. But it is to be observed that the law has always recognized a wide distinction between the right of an owner to deal with surface water falling or collecting on his laud, and his right in the water of a natural water- course. In such water, before it leaves his land and becomes part of a definite water-course, the owner of the land is deemed to have an absolute property, and he may appropriate it to his exclusive use, or get rid of it in any way he can, provided only that he dees not cast it by drains, or ditches, upon the land of his neighbor ; and he may do this, although by so doing he prevents the water reaching a natural water-course, as it form- erly did, thereby occasioning injury to mill-owners or other proprietors on the stream. So, also, he may, by digging on his own land, intercept the percolating waters which supply his neighbor's spring. Such consequential injury gives no right of action : Acton v. Blundell, 12 M. & W. 324 ; Rawstron v. Taylor, 11 Exch. 369 ; Phelps v. Nolen, 72 N. Y. 39. Now, in these cases there is an interference with natural laws. But those laws are to be construed in connection with social laws, and the laws of property. The interference in these cases with natural laws is justified, because the general law of society is that the owner of land has fall dominion over what is above, upon, or below the surface, and the owner, in doing the acts IN REALTY. 15 supposed, is exercising merely a legal right. The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels, and discharge it upon the land of his neighbor to his injury. This is alike the rule of the civil and common law : Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5 ; Noonan v. City of Albany, 79 N. Y. 475 ; Miller v. Laubach, 47 Pa. St. 54. But it does not follow, we think, that the owner of land, which -is so situated that the surface waters from the lands above naturally descend upon and pass over it, may not in good faith, and for the purpose of building upon or improving his land, fill or grade it, although thereby the water is prevented from reaching it, and is retained upon the lands above. There is a manifest distinction between casting water upon another's land and preventing the flow of surface water upon your own. Society has an interest in the cultivation and improvement of lands, and in the reclamation of waste lands. It is also for the public interest that improve- ments shall be made, and that towns and cities shall be built. To adopt the principle that the law of nature must be observed in respect to surface drainage would, we think, place undue re- striction upon industry and enterprise, and the control by an owner of his property. Of course, in some cases, the opposite principle may cause injury to the upper proprietor. But the question should, we think, be determined largely upon consid- erations of public policy and general utility. Which rule will, on the whole, best subserve the public interests, and is most reasonable in practice ? For the reasons stated, we think, the rule of the civil law should not be adopted in this State. The case before us is an illustration of the impolicy of following it. Several house lots (substantially village lots), are crossed by the depression. They must remain unimproved, if the right claimed by the plaintiff exists. It is better, we think, to estab- lish a rule which will permit the reclamation and improvement of -low and waste lands, to one which will impose upon them a perpetual servitude, for the purpose of drainage, for the benefit of upper proprietors. We do not intend to say that there may not be cases which, owing to special conditions and circum- 16 ILLUSTRATIVE CASES stances, should be exceptions to the general rule declared. But this case is within it, and we think the judgment below should be affirmed. All concur. Judgment affirmed. See Adams v. Walker, 34 Conn. 466. Water congealed and attached in the form of ioe to the soil is a part of it. Washington Ice Co. v. Shoktall. Supreme Court of Illinois, 1881. 101 111. 46. Mr. Justice Sheldon delivered the opinion of the Court : This was an action of trespass qiiare clavsum fregit, brought in the Circuit Court of Cook County by Shortall, against the Washington Ice Company, for cutting, removing, and appro- priating, in January and February, 1879, a quantity of ice which had formed over the bed of the Calumet Eiver, within the limits of plaintiff's land, in Cook County. Defendant pleaded the general issue, and liberum tenementum. A verdict and judgment were rendered in favor of plaintiff for $562.40, which judgment, on appeal to the Appellate Court for the First District, was affirmed, and defendant appealed to this Court. On the trial, the patent from the United States to Lafrom- bois and Decant was introduced in evidence,^ showing that there was no restriction or reservation by the government, and that the locus in quo was embraced in the 125.31 acres the patent conveyed. Under this patent plaintiff derived title. From the evidence it appears that the call of 125.31 acres contained in the patent required that the bed of the river should be included to make that quantity ; that the Calumet River, extending from Lake Michigan westward past the plain- tiff's premises, where it is between 165 and 200 feet wide, is in fact a navigable river; that the defendant company IN REALTY. 17 owned ice-houses on its own property on the next lot east of plaintiff 's, and that in operating on the ice it did not go on the plaintiff's land, save as it entered upon the ice; that it first gathered the ice in front of its own land from the river, and then commenced to take the ice opposite the plaintiff's' premises. "The Court, at plaintiff's request, instructed the jury that the plaintiff was the owner of the whole bed of the river flow- ing through his premises ; that when the water became con- gealed, the ice attaching to the soil constituted a part thereof, and belonged to the owner of the bed of the stream, and that he could maintain trespass for the wrongful entry and taking the ice ; and that the measure of damages, in case of a find- ing for plaintiff, would be the value of the ice as soon as it existed as a chattel — that is, as soon as it had been scraped, plowed, sawed, cut, and severed, and ready for removal. Defendant excepted to the giving of such instruction, and asked the Court to instruct the jury that a riparian owner on the banks of a river, navigable in fact, has no property in the ice formed in the midst of the stream, where he has done nothing to pond or separate it ; but that any person might, as against such riparian owner, where he could gain access without passing over the shore or banks of the owner, enter upon the ice and remove the same, without cause of action or damage to such riparian owner, and that if such access as above stated had been gained, then at most, plaintiff could recover but nominal charges, even if the action of trespass be sustained — which was refused, and defendant excepted. The giving and refusing of instructions is assigned as error. It may be well to inquire, first, whether plaintiff, as riparian proprietor on both sides of the Calumet River, is the owner of the bed of the stream within the limits of his land. By the common law, only arms of the sea, and streams where the tide ebbs and flows are regarded navigable. The stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it to its centre, and the only right the public has therein is an easement for 2 18 ILLUSTRATIVE CASES the purpose of navigation. Chancellor Kent, in his Comment taries, declares it as settled that grants of land bounded on rivers or upon their margins, above tide-water, carry the exclusive right and title of the grantee to the centre of the stream, subject to the easement of navigation, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river. If the same person be the owner on both sides of the river, he owns the whole river to the extent of the length of his lands upon it : 3 Comm. 427, 428, Marg. And this title to the middle of the stream includes the water, the bed, and all islands : 2 Hilliard on Eeal. Prop. 92 ; Angell on Water-Courses, § 5. This rule of the common law has been adopted in this State, and is here the settled doctrine. It was so held in Mid- dleton V. Pritchard, 3 Scam. 510, and Houck v. Yates, 82 111. 179, with regard to the Mississippi River where it bounds this State ; in Braxon v. Bressler, 64 111. 488, as to Rock River ; City of Chicago v. Lafiin, 49 111. 172, and City of Chicago v. McGinn, 51 111. 266, in regard to the Chicago River. The Calumet River then been non-tidal, and plaintiff own- ing lands on both sides of it, he is the owner of the whole of the bed of the stream to the extent of the length of his lands upon it. The next question respects the ownership of ice formed over the bed of the river passing through the land. It is objected by defendant that water in a running stream is not the property of any man — that no proprietor has a property in the water itself, but a simple usufruct while it passes along ; but manifestly different considerations apply to water in a running stream when in a liquid state and when frozen. In Agawam Canal Co. v. Edwards, 36 Conn. 497, it is said : " The principle contained in the maxim, ' cujus est solum e^us est usque ad caelum,' gives to a riparian owner an interest in a stream which runs over his land. But it is not a title to the water — it is a usufruct merely — a right to use it while pass- ing over the land. The same right pertains to the land of every other riparian proprietor on the same stream and its IN REALTY. 19 tributaries ; and as eacli has a similar and equal usufructuary right, the common interest requires that the right should be exercised and enjoyed by each in such a reasonable manner as not to injure unnecessarily the right of any other owner, above or below." In Elliott V. Fitchburg Railroad Co., 10 Cush. 191, Shaw,' 0. J., says : " The right to flowing water is now well settled to be a right incident to property in the land, it is a right publico juris, of such character that whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet as one of the beneficial gifts of Provi- dence each proprietor has a right to a just and reasonable use of it as it passes through his land ; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reason- able use, it cannot be said to be wrongful or injurious to a proprietor lower down. . . . Still, the rule is the same, that each proprietor has a right to the reasonable use of it for his own benefit, for domestic use, and for manufacturing and agricultural purposes." In Rex V. Wharton, 12 Mod. 510, Holt, C. J., says : "If a river run contiguously between the land of two persons, each of them is, of common right, owner of that part of the river which is next his land." Hilliard states that a water-course is regarded in law as a part of the land over which it flows: 2 Hilliard on Real Prop. 100. It will thus be seen that the riparian owner, as such, has rights with respect to water in a running stream — he has a right of use, which right authorizes the actual taking of a reasonable quantity of the water for his purposes. The limi- tation in extent of the use of the water is, that it shall not interfere with the public right of navigation, nor in a sub- stantial degree diminish and impair the right of use of the water by a lower or upper proprietor as it passes along his land. The only opposing rights are such rights of the public, and such upper and lower proprietors. But when the water 20 ILLUSTRATIVE CASES becomes congealed, and is in that state, these opposite rights are in nowise concerned. The ice may be used and appropri- ated without detriment to the right of navigation by the public, or to other riparian owners' right of use of the water of the stream when flowing over their land. The just and reason- able use of the water which belongs to the riparian proprietor would be, in such case of congealed state of the water, the unlimited use and appropriation of the ice by him, as it Would be no interference with rights of others. We are of opinion there is such latter right of use, and that it should be held property, of which the riparian owner cannot be deprived by a mere wrong-doer. When water has congealed and become attached to the soil, why should it not, like any other accession, be considered part of the realty ? Wherein, in this regard, should the addition of ice formed over the bed of a stream be viewed differently from alluvion, which is the addition made to land by the washing of the sea or rivers ? And we do not perceive why there is not as much reason to allow to the riparian owner the same right to take ice as to take fish, which latter is an exclusive right in such owner. In McFarlin v. Essex Co., 10 Gush. 309, Shaw, C. J., re- marked : " It is now perfectly well established as the law of this Commonwealth, that in all waters- not navigable in the common-law sense of the term — ^that is, in all waters above the flow of the tide — the right of fishery is in the owner of the soil upon which it is carried on, and in such rivers that the right of soil is in the owner of the land bounding upon it. If the same person owns the land on both sides, the property in the soil is wholly in him, subject to certain duties to the public; and if different persons own the land on opposite sides, each is proprietor of the soil under the water to the middle or thread of the river." The riparian proprietor has the sole right, unless hfe has granted it, to fish with nets or seines in connection with his own land : Angell on Water^Courses, § 67. In Adams v. Pease, 2 Conn. 481, it was held that the owners of land adjoining the Connecticut River above the flowing IN REALTY. 21 and ebbing of the tide, have an exclusive right of fishery^ opposite to their land, to the middle of the river ; and that the public have an easement in the river as a highway, for passing and repassing with every kind of water craft. So, too, sea-weed thrown upon the shore belongs to the owner of the soil upon which it is cast : Emans v. TurnbuU, 2 Johns. 313. The exclusive right in the owner to take the ice formed over his land, is an analogous right to those other ones which are acknowledged' to exist in the subjects which have been mentioned, and may with like propriety be recognized. It is connected with and in the nature of an accession to the land, being an increment arising from formation over it, and belong- ing to the land properly, as being included in it in, its indefi- niite extent upwards. Ice, from its general use, has come to be a merchantable commodity of value, and the traflBc in it a quite important business. It would not be in the interest of peace and good order, nor consistent with legal policy, that such an article should be held a thing of common right, and left the subject of general scramble, leading to acts of force and violence. In reference to the rule which we here adopt, of assigning to the owner of a bed of a stream property in the ice which forms over it, we may well use, as fitly applying, the language of HosMER, J., in Adams v. Pease, supra, in speaking of the common-law rule as to the right of fishery, viz. : " The doc- trine of the common law, as I have stated it, promotes the grand ends of civil society, by pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and determinate owner." The views we hold are in accordance with the holding in The State v. Pottmeyer, 33 Ind. 402, that when the water of a flowing stream running in its natural channel is congealed, the ice attached to the soil constitutes a part of the land, and belongs to the owner of the bed of the stream, and he has the 'As to the right of fishery in this State, in riparian proprietors, see Beck- man V. Kreamer, 43 111. 447, and cases there cited. 22 ILLUSTRATIVE CASES right to pi'event its removal. See further, relative to the subject, Myer v. Whitaker, 55 How. Pr. Rep. 376 ; Lorman v. Benson, 8 Mich. 18 ; Mill River Woolen Manufacturing Co. v. Smith, 34 Conn. 462 ; Brown v. Brown, 30 N. Y. 519. Defendant claims that it committed no trespass in taking the ice, because the ice in the midst of a stream navigable in fact is naturally an obstruction to navigation, and that any one has the right, having obtained access independent of the riparian owner, to enter upon the ice and remove it. We said in Braxon v. Bresler, above cited : " Where the river is navi- gable, the public have an easement or a right of passage upon it as a highway, but not the right to remove the rock, gravel, or soil, except as necessary to the enjoyment of the easement." The same is to be said as to the ice here. Buit it was not re- moved as necessary for the enjoyment of the public easement of navigation — it was for the purpose only of the appropriation of it for defendant's gain. As to the instruction as to the measure of damages, we think the case is analogous to those where coal is taken from the soil, and that the instruction is sustained by former deci- sions of this Court in those cases : Illinois & St. Louis R. R. and Coal Co. v. Ogle, 92 111. 353 ; McLean County Coal Co. v. Lennon, 91 lb. 561 ; Illinois & St. Louis R. R. and Coal Co. V. Ogle, 82 lb. 627 ; McLean County Coal Co. v. Long, 31 lb. 359 ; Robertson v. Jones, 71 lb. 405. Perceiving no error in the giving or refusing of instructions by the Circuit Court, the judgment of the Appellate Court is affirmed. 'Judgment affirmed. For fuU discussion, see Cent. L. J., vol. 37, No. 18, p. 357. IN REALTY. 23 But waters flowing in a definite channel are not a part of the land in the sense that they are subject to ownership. Phillips v. Sherman. Supreme Judicial Court of Maine, 1873. 64 Maine. 171. Appleton, C. J. The defendant is the owner of a grist mill and privilege situate on a stream issuing from Hebron Pond in Monson. The- evidence shows that in 1820, a dam and grist mill were erected at the outlet of said pond. In 1841, the then owner of the privilege rebuilt and enlarged the grist mill and deepened the channel thereto. Formerly fifty bushels of wheat and corn were daily ground at this mill. More recently the number has been reduced to a daily average of about twenty bushels. The consequence is that a much less quan- tity of water is now vented than formerly. The plaintiff 's mill and dam situated some distance below, on the same stream, was built in 1844. The defendant's priv- ilege and dam have been occupied and enjoyed by him and those under whom he derives his title for a much longer period than is necessary to acquire an adverse title by prescription. Without detailing the evidence, we think it is satisfactorily proved that the defendant has all the rights which prior occu- pancy can give as well as those which can be acquired by pre- scription, so far as regards the height of his dam. The defendant, then, has a right to keep and maintain his dam at its present height with all the water necessary to propel his machinery. But of this the plaintiff makes no complaint. The defendant claims the right to retain water not needed in any way for the use of his mill, nor necessary for its full enjoy- ment, and to the loss and injury of those whose mills are below him on the same stream. The defendant, owning the privilege above, and being the first occupant upon the stream, has a prior right to all the water necessary to propel his machinery. But while this right is sustained and protected he must use the water in a reason- able and proper manner, having regard to the like reasonable use by all the proprietors above and below. He cannot un- 24 ILLUSTRATIVE CASES necessarily, and at his own will and pleasure, detain the water an unreasonable length of time, nor discharge it in such ex- cessive quantity that it would endanger those below. Every owner of mills above is required so to use the water that every riparian proprietor belbw shall have the enjoyment of it sub- stantially, according to its natural flow, but subject to the necessary and unavoidable interruption arising from its reason- able and proper use by the privilege above. It cannot be un- necessarily and wantonly detained. Each riparian proprietor on a running stream, whether above or below, has a right to the reasonable use and enjoyment of the water, and to the natural flow of the stream, subject to such disturbance and the consequent inconvenience and annoyance as might result to him from a reasonable use of the waters by others. The owner of a mill and dam has a right to the reasonable use of the water, but he must detain it no longer than is necessary for its profitable enjoyment, and then return it to its natural channel. A wanton or vexatious or unnecessary detention would render the mill-owner so detaining liable in damages to those injured by such unlawful detention : Hetrich v. Deachler, 6 Barr, 32 ; Davis V. Winslow, 51 Maine, 264 ; Davis v. Getchell, 60 Maine, 602. In all these cases the question is whether or not the use has been reasonable : Thurber v. Martin, 2 Graj'^, 396 ; Pool V. Lewis, 5 American Rep. (41 Ga. 162) 526 ; Holden v. Lake Co., 53 N. H. 654 ; Washb. on Easements, 268 ; Springfield v. Harris, 4 Allen, 496. So far as the defendant or those under whom he derives his title have by artificial means improved the stream, those im- provements inure to the benefit of those below. The result is that the defendant has a right to use the water in his pond for the running of all the machinery upon his dam. He has a right to detain it when required for the reasonable use of his mill. His rights are prior and superior to those of the plain- tiff. But he cannot be permitted, in mere wantonness, to de- tain water not to be used, and of which there is no need what- ever in the running of his mill. The question of reasonable use of the water is one of fact, to IN REALTY. 25 be determined by the jury. The parties have referred that question to the Court. Upon the whole evidence we are of opinion that the defendant has unreasonably withheld water, neither necessary nor required for the use of his mill. Accordingly, there must be judgment ;for the plaintiff for $25 damages. Walton, Barrows, Danforth, and Peters, JJ., concurred. Mitchell V. Warner, 5 Conn. 497 ; Clinton v. Myers, 46 N. Y. 511 ; Moulton V. Water Company, 137 Mass. 163. THINGS ATTACHED iBY NATURE. Things attached to land by nature, as standing corn, are a part of it and pass under a deed thereof. Tripp v. Hasc^ig. Supreme Court of Michigan, 1870. 20 Mich. 254. Graves, J. The plaintiff in error sued Hasceig for the alleged conversion of a quantity of standing corn, which Tripp claimed as his property, and upon the trial a verdict passed for Hasceig. Tripp now brings error, and insists that the Circuit Judge erred in charging the jury, and he asks that the judgment be reversed therefor. The evidence conduced to show that Tripp, being the owner of a farm in Kalamazoo County, on which he resided, and on which he had raised a field of corn in the season of 1865, con- veyed the farm to defendant about the 13th of December, in the same year, by warranty deed, while the corn was still standing, unsevered, where it grew, and without inserting in the deed any exception or reservation ; and that Hasceig took and appropriated a part of the crop as properly conveyed to him by the deed. It was claimed by Tripp on the trial that the crop, being over-ripe when the deed was given, did not pass by the conveyance, but the Circuit Judge advised the jury that the corn, though ripe and no longer deriving nourish- ment from the ground, would, if still attached to the soil, pass 26 ILLUSTRATIVE CASES by conveyance of the land ; and this is one of the rulings com- plained of. "We think this instraction was right, and we concur in the suggestion of the Circuit Judge — that whether the corn would pass or not, could no more depend upon its maturity or imma- turity than the passage of a standing forest tree by the con- veyance of the land would depend upon whether the tree was living or dead. It is true that the authorities, in alluding to this subject, very generally use the words growing crops, as those embraced by a conveyance of the land, but this expression appears to have been commonly employed to distinguish crops still at- tached to the ground rather than to mark any distinction be- tween ripe and unripe crops. In some cases, where the question has been raised under the statute of frauds, as to the validity of verbal sales of unsevered crops, a distinction has been drawn between such as were fit for harvest and such as were not, upon the supposition that the former would not be within the statute, while the latter would be embraced by it. See cases referred to in Austin V. Sawyer, 9 Cow. R. 39. In Austin v. Sawyer, however. Chief Justice Savage seems to have rejected the distinction, as he held that a verbal sale of growing crops was valid in New York. But one case has been cited, or is remembered, in which it has been intimated that a mature and unsevered crop would, beca,use of its being ripe, remain in the grantor of the land, on an absolute conveyance of the premises with- out exception or reservation ; and that is the case of Powell V. Rich, 41 111. 466, and the point was not essential to the de- cision there. There are many authorities, however, opposed to the dis- tinction suggested in that case : 2 Bl. Com. 122, note 3 ; Broom's Maxims, 354 margin. In Kittredge v. "Woods, 3 N. H. 503, Judge Richardson cites Wentworth, 59, for the proposition that " when the land is sold and conveyed without any reservation, whatever crop is upon IN REALTY. 27 the land passes," and, after stating that ripe grain in the field is subject to execution as a chattel, Judge Richaedson adds : " Yet no doubt seems ever to have been entertained that it passes with the land when sold without any reservation." And in the case of Heavilon v. Heavilon, 29 Ind. 509, cited by plain- tiff 's counsel on another ground, the Court expressly admit that until severance the crop, as between vendor and purchaser of the land, is part of the realty. Indeed, the authorities are quite decisive that, whether the crop of the seller of the farm goes with the land to the purchaser of the latter, when there is no reservation or exception, depends upon whether the crop is at the time attached to the soil, and not upon its condition as to maturity. And this seems to be the most natural and most practical rule. When parties are bargaining about land, the slightest observation will discover whether the crops are sev- ered or not, and there will be no room for question or mis- take as to whether they belong with the land or not, if owned by the vendor. If, however, the crops are to be considered as land or per- sonal chattels, as they continue or do not continue to draw nourishment from the soil, the instances will be numerous in which very difficult inquiries will be requisite to settle the point. It was further urged by plaintiff in error that if it should be considered that the corn would pass by the deed still the jury should have been allowed to inquire whether the parties did not enter into a contemporaneous verbal agreement, by which the grain was to belong to Tripp as part of the consideration for the farm. "Without pausing to consider whether the plain- tiff could be permitted to make the proof suggested, or could support his action by any arrangement like that supposed, it is quite sufficient to observe that there does not appear to have been any evidence fairly tending to show the existence of such an agreement. The plaintiff was himself on the stand, and yet he did not hint at the existence of a bargain of that kind. It was finally insisted that the charge of .the Court was 28 ILLUSTRATIVE CASES erroneous in stating that a subsequent agreement by the vendee, that the vendor should have the corn, would be void for want of consider#ion ; and we are told that the error on this point is shown by the circumstance that there was enough to warrant the jury in finding that defendant was under an equitable obligation, to have the deed so reformed as to except the corn, and that this fact constituted a sufficient consideration for an agreement by Hasceig, that the crop should belong to Tripp. This argument assumes that if the non-reservation of the corn in the deed was by mistake satisfactorily ascertained, or admitted, that then an .equity wcfuld arise for the correction of the deed, which in turn would be an adequate consideration to support a subsequent agreement by Hasceig, that the grain should belong to Tripp. We need not examine tke validity of this view, since it is quite manifest that the case contem- plated by it is not found in the record before us. The position taken implies that there was evidence before the jury to establish, according to the requirements of a Court of Equity, a mistake in the deed in not reserving the corn, and that there was also evidence conducing to prove a subsequent agreement that Tripp should have the corn, and resting for consideration on the right to have the deed corrected in equity. There was a little evidence favoring the idea of a subsequent parol peeognition by Hasceig of the right of Tripp to the corn under the conveyance of the land, but we look in vain for evi>- dence of the assumed mistake iji the deed. It is well settled that to raise an equity to correct a deed there must not only be an error on both sides, but the mistake must be either admdtted or directly proved: Adam's Eq. 171 margin ; Fry on Specif. Per. 2d Am. ed., p. 312, top and note 11. The language of several of the cases cited by plaintiff's counsel is to the same effect. In Kennard v. George, 44 N. H. 440, the Court say that the mistake must be clearly proved. In Canedy u Marcy, 13 Gray, 373, it is said that the Court has jurisdiction to reform a deed upon clear oral evidence of the IN REALTY. 29 mistahe, and in Beardsley v. Knight, 10 Vt. 185, the expression is still stronger. It is there declared that the Court will cor- rect a mistake in a conveyance " when undeniably proved" and that " vfnless it be so proved it will not interfere." It is very cer- tain that the record before us fails to show that a mistake in the deed was established on the trial below, or that any evidence was there introduced fairly tending to show that fact, and therefore, upon the theory of plaintiff 's counsel there was no evidence of any consideration for a subsequent agree- ment by Hasceig that Tripp should have the corn. The charge of the Court should be construed in the light of the evidence before the jury, and when viewed in this way we discover nothing of which the plaintiff can justly complain. In order to preclude all misapprehension as to the scope of this decision, we deem it not improper to add that we express no opinion as to whether Tripp would be liable to Hasceig for any part of the crop appropriated by the former, with the acquiescence of the latter, under a verbal reservation. The judgment of the Court below is affirmed, with costs. Campbell, C. J., and Cooley, J., concurred. Christiancy, J. I concur with my brethren in the opinion of my brother Graves ; but had it appeared in the case that it was the custom of the country where the farm was situated (as it is in some of the Western States) to keep the ripe corn in the field for the winter, or till wanted for use or market, and to be taken only on the like occasions or for the like reasons, as if stored in the crib or granary, thus using the field merely as a substitute for such crib or granary, I am inclined to think I might have agreed in the opinion intimated by the Supreme Court of Illinois in Powell v. Rich, 41 111. 466, cited by my ■ brother Graves. Kittridge v. Woods, 3 N. H. 503 ; 49 Minn. 412. Note.— In absence of debts crops go to the devisee as part of the land : Dennett v. Hopkinson, 63 Maine, 350 ; Bradner v. Faulkner, 34 N. Y. 347 ; Green v. Armstrong, 1 Denio, 550. Williams Eeal Prop. 13. 30 ILLUSTRATIVE CASES Trees standing, or even prostrate if attached to the soil, are a part of the realty. CocKEiLL V. Downey. Supreme Court of Kansas, 1868. 4 Kan. 427. Bailey, J. This was an action for trespass, commenced before Alonzo Cottrell, J. P., by plaintiff in error, against de- fendant in error, to recover the value of three loads of wood, hauled from the land of the plaintiff in error, by the defendant in error, claiming triple damages under the provisions of ch. 208 of the Comp. L. The action was commenced on the 28th day of December, 1866, and, after several continuances, was tried by a jury, who found a verdict for the plaintiff. The defendant appealed, and the cause was again tried at the April term of the District Court of Marshall County, 1867, and judg- ment rendered for the defendant. The plaintiff in error, who was also the plaintiff below, now brings the case to this Court to procure a reversal of the last- mentioned judgment. It appears from the bill of exceptions that the defendant, Downey, and one Abraham Gossuck, were the former owners of the land on which the alleged trespass was committed, and that Gossuck and wife conveyed all their interest in the land to Caloni Walworth, by deed dated February 10, 1865, and that subsequently, on the 28th of August, 1865, defendant, Downey, conveyed all his interest in said land to Walworth, without any reservation whatever, and that said Walworth conveyed the land to plaintiff by deed of warranty, without reservation. On the trial, the defendant filed no answer to plaintiff's peti- tion on appeal, but offered himself as a witness to prove, with others, that there was a parol reservation of the dead and down timber in the deed from Downey to Walworth, and also in the deed from Walworth to plaintiff, Cockrill. Objection was made to this evidence, but the objection was overruled by the Court, and the evidence admitted. We think the Court erred in ad- mitting the evidence. The policy of our laws, as evinced by the whole tenor of legislation as to registration of deeds and IN REALTY. 31 the like, is to make titles to real estate depend upon the written deeds of the parties, leaving the smallest possible mar- gin for patrol contracts, understandings, and reservations. A deed of land must be, we think, deemed to involve all timber standing or growing on it, unless specially excepted. As to trees standing and growing in the soil, we apprehend that no question would be made ; but a tree may be standing and not growing, or growing in a horizontal position, not standing. Must the law apply a different rule in each case ? Suppose the case of trees prostrated by a tornado, but with roots still adhering to the soil ; shall they pass by the deed, or be reserved by parol ? Obviously, such trees must be considered as part of the realty, and we think that there can be no safer general rule than that founded on the old maxim, " Owjus est solvm (gus est usgue ad cselum," which may, perhaps, be liberally trans- lated : " The owner of the soil owns from the centre of the earth up to the sky." Various qualifications and limitations have been established as to fixtures, emblements, and the like ; but we find no judicial warrant or authority for the claims of the defendant in this case. The judgment must be reversed, and the case remanded for a new trial. Trees even severed, bat lying as they fell, are a part of the land in that they pass under a deed thereof. BkACKETT V. GODPARD. Supreme Judicial Court of Maine, 1866. 54 Me. 309. Appleton, C. J. This is an action brought to recover the price of certain logs sold by the defendant to the plaintiff. The claim is based upon an alleged failure of the defendant's title. The defendant, while owning a lot of land in Hermon, cut down a quantity of hemfock trees thereon. After peeling the bark therefrom and hauling it off the land, he conveyed the 32 ILLUSTRATIVE CASES lot to one Works, by deed of warranty, without any reserva- tion whatever. At the date of this deed, the hemlock trees in controversy were lying on the lot where they had been cut, with the tops remaining thereon. The defendant, after his deed of the land to "Works, conveyed the hemlocks cut by him to the plaintiff. Works, the grantee of the defendant, claimed the same by virtue of his deed. The question presented is whether the title to the logs is in the plaintiff or in Works. Manure made upon a farm is personal property, and may be seized and sold on execution : Staples v. Emery, 7 Greenl. 301. So, wheat or corn growing is a chattel, and may be sold on execution : Whipple v. Tool, 2 Johns. 419. Yet it is held that growing crops and manure, lying upon the land, pass to the vendee of the land, if not excepted) in the deed: 2 Kent, 346, or by statute, as in this State, by R. S., c. 81, § 6, clause 6. Fencing materials on a farm, which have been used as a part of the fences, but are temporarily detached, without any intent of diverting them from their use, as such, are a part of the freehold, and pass by a conveyance of the farm to a purchaser : Groodrich v. Jones, 2 Hill, 142. Hop poles, used necessarily in cultivating hops, which were taken down for the purpose of gathering the crop, and piled in the yard, with the intention of being replaced in the season of hop raising, are part of the real estate : Bishop v. Bishop, 1 Kenan, 123. Timber trees, if blown down, or severed by a stranger, pass by- a deed of the land. " We think that it cannot admit of a doubt," remarks Richakdson, C. J., in Kittridge v. Wood, 3 N. H. 503, " that trees felled and left upon the land, fruit upon trees, or fallen and left under trees where it grew, and stones lying upon the earth, go with the land, if there be no reserva- tion." The hemlock trees were lying upon the ground. The tops and branches were remaining upon them. They were not excepted from the defendant's deed, and, being in an unmanu- factured state, they must, from analogy to the instances already cited, pass with the land. Such, too, is the statute of 1867, c. 88, defining the ownership of down timber. It would have IN REALTY. 33 been otherwise had they been cut into logs or hewed into timber : Cook v. Whitney, 16 lUinois, 481. The defendant, at the plaintiff's request, traveled from another State, as a witness, to testify for him in his suit against Works. He claims to have his fees allowed in set-off in this suit. His account in set-off was regularly filed. He is entitled to compensation therefor, which, as claimed, will be travel from his then place of residence, and attendance, in accordance with the fees established by statute. Off-set allowed. — Defendant defaulted, to be heard in dam- ages. LINE TREES. A tree standing upon the line of adjoining owners is equaUy their real property. ■< GeIPFIN V. BlXBY. Supreme Court of New Hampshire, 1841. 12 N. H. 454. Parker, C. J. If the committee had not run out and marked a line when they set off the dower of Mrs. Nahor the .course mentioned in the return must have determined the boundary between the parties ; and parol evidence could not have been admitted to show that there was previously a marked line there, varying from the course, and that the committee in- tended to adopt that line : Allen v. Kingsbury, 16 Pick. R. 235. But in this case the committee marked a line, and in this respect the present case differs from that just cited, where the monuments were not erected at the time the dower was set off, but at some antecedent period, and for some purpose not known or explained. As the monuments in this case were marked at the time by the committee, and intended to designate the land set off, we are of opinion that this constituted an actual location, and that they must control the course mentioned in the return : Brown V. Gay, 3 Greenl. R. 126 ; Ripley v. Berry, 5 Greenl. 24 ; Es- mond V. Tarbox, 7 Greenl. R. 61 ; Thomas v. Patten, 13 Maine 3 34 ILLUSTRATIVE CASES R. 329 ; Prescott v. Hawkins, ante, 20, 26 ; and see 1 U. S, Dig, 474. The evidence offered tends to show that the parties understood that the line was marked and established by mon- uments, and acted with reference to that fact, which strengthens the case, and shows the propriety of the rule: Jackson v. Ogden, 7 Johns. R. 241 ; Clark v. Munyan, 22 Pick. R. 410. As to the second question, in Waterman v. Soper, 1 Ld. Raym. 737, cited for the defendants, Holt, C. J., ruled that if A plants a tree on the extremest limits of his land, arid the tree growing extend its root into the land of B, next adjoining, A and B are tenants in common of this tree, and that where there are tenants in common of a tree, and one cuts the whole, though the other cannot have an action for the tree, yet he may have an action for the special damage by this cutting. What action he shall have is not stated, nor is it quite clear that such an ownership can be established, if the root merely extend into the other's land. But in Co. Litt. 200, b., it is said, " If two tenants in common be of land, and of mete stones, pro "metis et bundis, and the one take them up and carry them away, the other shall have an action of trespass quare vi et armis against him, in like manner as he shall have for the destruction of doves." And in Cubitt v. Porter, 8 B. & C. 257, it was held that " the common user of a wall separating adjoining lands, belonging to different owners, is prima fade evidence that the wall and the land on which it stands belong to the owners of those ad- joining lands in equal moieties, as tenants in common ;" and " where such an ancient wall was pulled down by one of the two tenants in common, with the intention of rebuilding the same, and a new wall was built, of a greater height than the old one, it was held that this was not such a total de- struction of the wall as to entitle one of the -two tenants in common to maintain trespass against the other." It seems to have been admitted that for an entire destruc- tion of the wall by one trespass might have been sustained. Without going to the extent of the ruling in Lord Raymond, we are of opinion that a tree standing directly upon the line IN REALTY. 35 between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not, and that trespass will lie if one cuts and destroys it without the consent of the other. See cases cited in Odiorne V. Lyford, 9 N. H. Kep. 511. A tree is a part of that land only on which its trunk stands, even though its roots extend into and its branches overhang other lands. Lyman v. Hale. - Supreme Court of Connecticut, 1836. 11 Conn. 177. BissELL, J. This writ of error is reserved for our advice ; and the principal question raised and discussed is whether, upon the facts disclosed on the record, the plaintiff and defend- ant are joint owners, or tenants in common, of the tree in con- troversy. It is admitted that the tree stands upon the plaintiff's land, and about four feet from the line dividing his land from that of the defendant. It is farther admitted, that a part of the branches overhang, and that a portion of the roots extend into the defendant's land. If, then, he be a joint owner of the tree with the plaintiff, he is so in consequence Of one or the other of these facts, or of both of them united. It has not been in- sisted on in the argument that the mere fact that some of the branches overhang the defendant's land creates such a joint ownership. Indeed, such a claim could not have been made with any well-grounded hope of success. It is opposed to all the authorities, and especially to that on which the defendant chiefly relies. " Thus " (it is said) " if a house overhang the land of a man, he may enter and throw down the part hanging over, but no more ; for he can abate only that part which con- stitutes the nuisance : 2 Roll. 144, 1. 30 ; Rex v. Pappineau, 2 Stra. 688 ; Cooper v. Marshall, 1 Burr. 267 ; "Welsh v. Nash, 8 East. 394 ; Dyson v. CoUick, 5 Barn & Aid. 600 ; 7 Serg. & Lowb. 205 ; Com. Dig. tit., action on the case for a nuisance : 36 ILLUSTRATIVE CASES D. 4. And in Waterman v. Soper, 1 Ld. Kaym. 737, the case principally relied on by the defendant's counsel, it is laid down : " That if A plants a tree upon the extremest limits of his land, and the tree, growing, extend its root into the land of B, next adjoining, A and B are tenants in common of the tree. But, if all the root grows in the land of A, though the boughs over- shadow the land of B, yet the branches follow the root, and the property of the whole is in A." The claim of joint ownership, then rests on the fact that the tree extends its roots into the defendant's land, and derives a part of its nourishment from his soil. On this ground the charge proceeded in the Court below ; and on this the case has been argued in this Court. We are to inquire, then, whether this ground be tenable. The only cases relied upon in support of the principle are the case already cited from Ld. Raymond, and an anonymous case from RoUe's Reports, 2 Roll. 255. The principle is, indeed, laid down in several of our elementary treatises : 1 Sw. Dig. 104 ; 3 Stark. Ev. 1457, n. Bui. N. P. 84. But the only authority cited is the case from Ld. Raymond. And it may well deserve consideration, whether that case is strictly applicable to the case at bar ; and whether it carries the principle so far as is necessary to sustain the present de- fense. That case supposes the tree to be planted on the " ex- tremest limit " — that is, on the utmost point or verge of A's land. Is it not, then, fairly inferable, from the statement of the case, that the tree, when grown, stood in the dividing line ? And in the case cited from RoUe, the tree stood in the hedge dividing the land of the plaintiff from that of the defendant. Is it the doctrine of these cases, that whenever a tree, growing upon the land of one man, whatever may be its distance from the line, extends any portion of its roots into the lands of another, they therefore become tenants in common of the tree ? We think not ; and, if it were, we cannot assent to it ; because, in the first place, there would be insurmountable difficulties in re- ducing the principles to practice ; and, in the next place, we think the weight of authorities is clearly the other way. How, it may be asked, is the principle to be reduced to IN REALTY. 37 practice? And here it should be remembered that nothing depends on the question whether the branches do or do not overhang the lands of the adjoining proprietor. All is made to depend solely on the inquiry, whether any portion of the roots extend into his land. It is this fact alone which creates the tenancy in common. And how is the fact to be ascertained ? Again : if such tenancy in common exist, it is diffused over the whole tree. Each owns a certain proportion of the whole. In what proportions do the respective parties hold ? And how are these proportions to be determined ? How is it to be ascer- tained what part of its nourishment the tree derives from the soil of the adjoining proprietor? If one joint owner appropri- ates all the products, on what principle is the account to be settled between the parties ? Again: suppose the line between adjoining proprietors to run through a forest, or grove. Is a new rule of property to be introduced in regard to those trees growing so near the line as to extend some portions of their roots across it ? How is a man to know whether he is the exclusive owner of trees, grow- ing, indeed, on his own land, but near the line ; and whether he can safely cut them, without subjecting himself to an action ? And again : on the principle claimed, a man may be the ex- clusive owner of a tree one year, and the next a tenant in common with another ; and the proportion in which he owns may be varying from year to year, as the tree progresses in its growth. It is not seen how these consequences are to be obviated, if the principle contended for be once admitted. We think they are such as to furnish the most conclusive objections against the adoption of the principle. We are not prepared to adopt it, unless compelled to do so by the controlling force of authority. The cases relied upon for its support have been examined. We do not think them decisive. We will very briefly review those which, in our opinion, establish a contrary doctrine. In the case of Masters v. Pollie, 2 Roll. Rep. 141, it was adjudged that, where a tree grows in A's close, though the roots grow in B's, yet, the body of the tree being in A's soil, the tree 38 ILLUSTRATIVE CASES belongs to him. The authority of this case is recognized and approved by Littledale, J., in the case of Holder v. Coates, 1 Moo. & Malk. 112 ; 22 Serg. & Lowb. 264. He says : " I remember, when I read those cases, I was of opinion that the doctrine in the case of Masters v. PoUie was preferable to that in Waterman v. Soper ; and I still think so." The same doctrine is also laid down in Milleh v. Fandrye, Pop. Rep. 161, 163 ; Norris v. Baker, 3 Bulstr. 178. See, also, 20 Vin. Abr. 417 ; 1 Chitt. Gen. Pr. 652. We think, therefore, both on the ground of principle and authority, that the plaintiff and defendant are not joint owners of the tree ; and that the charge to the jury in the Court below was on this point erro- neous. It is, however, contended that although the charge on this point was wrong, there ought not to be a reversal, as upon another ground the defendant was clearly entitled to judgment in his favor. It is urged that land comprehends everything in a direct line above it ; and, therefore, where a tree is planted so near the line of another's close that the branches overhang the land, the adjoining proprietor may remove them. And, in support of this position, a number of authorities are cited. The gen- eral doctrine is readily admitted ; but it has no applicability to the case under consideration. The bill of exceptions finds that the defendant gathered the pears growing on the branches which overhung his land, and converted them to his own use, claiming a title thereto. And the charge to the jury proceeds on the ground that he has a right so to do. Now, if these branches were a nuisance to the defendant's land, he had clearly a right to treat them as such, and as such to remove them. But he as clearly had no right to convert either the branches or the fruit to his own use : Beardslee v. French, 7 Conn. Rep. 125 ; Welsh v. Nash, 8 East. 394 ; Dyson u Collick, 5 Barn. & Aid. 600 ; 7 Serg. & Lowb. 205 ; 2 Phill. Ev. 138. On the whole, we are of opinion that there is manifest error in the judgment of the Court below, and that it be reversed. The other Judges ultimately concurred in this opinion; IN REALTY. 39 Williams, C. J., having at first dissented, on the ground of a decision of the Superior Court in Hartford County (Fortune V. Newson), and the general understanding and practice in Connecticut among adjoining proprietors. Judgment reversed. Skinner v. "Wilder, 38 Vt. 113 ; Belyea v. Beaver, 34 Barb. 547 ; Dubois v. Beaver, 25 N. Y. 122 ; Hoflfman v. Armstrong, 48 N. Y. 201. DEPOSITS BY FORCES AND PROCESSES OF NATURE. An aerolite becomes a part of the land on -which it falls, imbedding itself in the soil. GOODARD V. "WiNCHELL. Supreme Court of Iowa, 1892. 52 N. W. R. 1124. Granger, J. The District Court found the following facts, with some others not important on this trial: "That the plaintiff, John Goodard, is, and has been since about 1857, the owner in fee simple of the north half of section No. 3, in township No. 98, range No. 25, in Winnebago County, Iowa, and was such owner at the time of the fall of the meteorite hereinafter referred to. (2) That said land was prairie laad, and that the grass privilege for the year 1890 was leased to one James Elickson. (3) That on the 2d day of May, 1890, an aerolite passed over northern and northwestern Iowa, and tte aerolite, or fragment of the same, in question in this action, weighing, when replevied, and when produced in court on the trial of this cause, about sixty-six pounds, fell onto plaintiff 's landy, described above, and buried itself in the ground to a depth of three feet, and became imbedded therein at a point about twenty rods from the section line on the north. (4) That the day after the aerolite in question fell it was dug out of the ground with a spade by one Peter Hoagland, in the pres- ence of the tenant, Elickson ; that said Hoagland took it to his house, and claimed to own same, for the reason that he had found same and dug it up. (5) That on May 5, 1890, Hoag- 40 ILLUSTEATIVE CASES land sold the aerolite in suit to the defendant, H. V. Winchell, for $105, and the same was at once taken possession of by- said defendant, and that the possession was held by him until same was taken under the writ of replevin herein ; that de- fendant knew at the time of his purchase that it was an aerolite, and that it fell on the prairie south of Hoagland's land. ... (10) I find the value of said aerolite to be one hundred and one dollars ($101) as verbally stipulated in open court by the parties to this action ; that the same weighs about sixty-six pounds, is of a black, smoky color on the outside, showing the effects of heat, and of a lighter and darkish gray color on the inside ; that it is an aerolite, and fell from the heavens on the 2d of May, 1890; and that a member of Hoagland's family saw the aerolite fall, and directed him to it." As conclusions of law, the District Court found that the aerolite became a part of the soil on which it fell ; that the plaintiff was the owner thereof; and that the act of^oagland in removing it was wrongful. It is insisted by appellant that the conclusions of law are erroneous; that the enlightened demands of the times in which we live call for, if not a modi- fication, a liberal construction, of the ancient rule " that what- ever is affixed to the soil belongs to the soil," or, the more modern statement of the rule, that " a permanent annexation to the soil of a thing in itself personal makes it a part of the realty." In behalf of appellant is invoked a rule alike ancient and of undoubted merit, " that of title by occupancy ;" and we are cited to the language of Blackstone, as follows : " Occu- pancy is the taking possession of those things which before belonged to nobody;" and "whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, and supposed to be abandoned by the last pro- prietor, and as such are returned into the common stock and mass of things ; and therefore they belong, as in a state of nature, to the first occupant or finder." In determining which of these rules is to govern in this case, it will be well for us to keep in mind the controlling facts giving rise to the different rules ; and note, if at all, wherein the facts of this case should IN REALTY. 41 distinguisli it. The rule sought to be avoided has alone refer- ence to what becomes a part of the soil, and hence belongs to the owner thereof, because attached or added thereto. It has no reference whatever to an independent acquisition of title — that is, to an acquisition of property existing independent of other property. The rule invoked has reference only to prop- erty of this independent character, for it speaks of movables " found upon the surface of the earth or in the sea." The term " movables " must not be construed to mean that which can be moved, for, if so, it would include much known to be realty ; but it means such things as are not naturally parts of earth or sea, but are on the one or in the other. Animals exist on the earth and in the sea, but they are not, in a proper sense, parts of either. If we look to the natural formation of the earth and sea, it is not difficult to understand what is meant by " movables," within the spirit of the rule cited. To take from the 6arth what nature has placed there in its forma- tion, whether at the creation or through the natural processes of the acquisition and depletion of its particular parts, as we witness it in our daily observations, whether it be the soil proper or some natural deposit, as of mineral or vegetable matter, is to take a part of the earth, and not movables. If, from what we have said, we have in mind the facts giving rise to the rules cited, we may well look to the facts of this case to properly distinguish it. The subject of the dis- pute is an aerolite, of about sixty-six pounds weight, that " fell from the heavens " on the land of the plaintiff, and was found three feet below the surface. It came to its position in the earth through natural causes. It was one of nature's deposits, with nothing in its material composition to make it foreign or unnatural to the soil. It was not a movable thing " on the earth." It was in the earth, and in a very significant sense immovable — that is, it was only movable as parts of earth are made movable by the hand of man. Except for the peculiar manner in which it came, its relation to the soil would be beyond dispute. It was in its substance, as we understand, a stone. It was not of a character to be thought of as " un- 42 ILLUSTRATIVE CASES claimed by any owner," and, because unclaimed, " supposed to be abandoned by the last proprietor," as should be the case under the rule invoked by appellant. In fact, it has none of the characteristics of the property contemplated by such a rule. We may properly note some of the particular claims of appellant. His argument deals with the rules of the common law for acquiring real property, as by escheat, occupancy, pre- scription, forfeiture, and alienation, which it is claimed were all the methods known, barring inheritance. We need not question the correctness of the statement, assuming that it has reference to original acquisition, as distinct from acquisitions to soil already owned, by accretion or natural causes. The general rules of the law, by which the owners of riparian titles are made to lose or gain by the doctrine of accretions, are quite familiar. These rules are not, however, of exclusive application to such owners. Through the action of the ele- ments, wind and water, the soil of one man is taken and deposited in the field of another ; and thus all over the coun- try, we may say, changes are constantly going on. By these natural causes the owners of the soil are giving and taking as the wisdom of the controlling forces shall determine. By these operations one may be affected with a substantial gain, and another by a similar loss. These gains are of accretion, and the deposit becomes the property of the owner of the soil on which it is made. A scientist of note has said that from six to seven hundred of these stones fall to our earth annually. If they are, as indicated in argument, departures from other planets, and if among the planets of the solar system there is this interchange, bearing evidence of their material composition, upon what principle of reason or authority can we say that a deposit thus made shall not be of that class of property that it would be if originally of this planet and in the same situation ? If these exchanges have been going on through the countless ages of our planetary system, who shall attempt to determine what part of the rocks and formations of especial value to the IN REALTY. 43 scientist, resting in and upon the earth, are of meteoric acqui- sition, and a part of that class of property designated in argument as "unowned things," to be the property of the fortunate finder instead of the owner of the soil, if the rule contended for is to obtain ? It is not easy to understand why stones or balls of metallic iron, deposited as this was, should be governed by a different rule than obtains from the deposit of boulders, stones, and drift upon our prairies by glacier action ; and who would contend that these deposits from float- ing bodies of ice belong, not to the owner of the soil, but to the finder ? Their origin or source may be less mysterious, but they, too, are " telltale messengers " from far-off lands, and have value for historic tod scientific investigation. It is said that the aerolite is without adaptation to the soil, and only valuable for scientific purposes. Nothing in the facts of the case will warrant us in saying that it was not as well adapted for use by the owner of the soil as any stone, or, as appellant is pleased to dominate it, " ball of metallic iron." That it may be of greater value for scientific or other purposes may be admitted, but that fact has little weight in determin- ing who should be its owner. We cannot say that the owner of the soil is not as interested in, and would not as readily contribute to, the great cause of scientific advancement as the finder, by chance or otherwise, of these silent messengers. This aerolite is of the value of $101, and this fact, if no other, would remove it from uses where other and much less valu- able materials would answer an equally good purpose, and place it in the sphere of its greater usefulness. The rule is cited, with cases for its support, that the finder of lost articles, even where they are found on the property, in the building, or with the personal effects of third persons, is the owner thereof against all the world except the true owner. The correctness of the rule may be conceded, but its applica- tion to the case at bar is very doubtful. The subject of this controversy was never lost or abandoned. Whence it came is not known, but, under the natural law of its government, it became a part of this earth, and, we think, should be treated 44 ILLUSTRATIVE CASES as such. It is said by appellant that this case is unique ; that no exact precedent can be found; and that the conclusion must be based largely upon new considerations. No similar question has, to our knowledge, been determined in a court of last resort. In the American and English Encyclopedia of Law (vol. 15, p. 388) is the following language : " An aerolite is the property: of the owner of the fee upon which it falls. Hence a pedestrian on the highway, who is first to discover such a stone, is not the owner of it ; the highway being a mere easement for travel." It cites the case of Maas v. Amana Soc, 16 Alb. Law J. 76, and 13 Ir. Law T. 381, each of which periodicals contains an editorial notice of such a case having been decided in Illinois, but no reported case is to be fotmd. Anderson's Law Dictionary states the same rule of law, with the same references, under the subject of " Accretions." In 20 Alb. Law J. 299, is a letter to the editor from a correspondent, calling attention to a case determined in France, where an aerolite found by a peasant was held not to be the property of the " proprietor of the field," but that of the finder. These references are entitled, of course, to slight, if any, considera- tion ; the information as to them being too meagre to indicate the trend of legal thought. Our conclusions are announced with some doubts as to their correctness, but they arise not so much from the application of known rules of law to proper facts as from the absence of defined rules for these particular cases. The interest manifested has induced us to give the case careful thought. Our conclusions seem to us nearest analogous to the generally accepted rules of law bearing on kindred questions, and to subserve the ends of substantial justice. The question we have discussed is controlling in the case, and we need not consider others. The judgment of the District Court is affirmed. IN REALTY. 45 Manure deposited upon farming lands is a part of the realty. Daniels v. Pond. . Supreme Judicial Court of Massachusetts, 1838. 21 Pick. 367. Shaw, C. J., drew up the opinion of the Court. Two ques- tions arise in the present case, the first, as to the form, the second, as to the plaintiff's right of action. 1. The tenant in this case was tenant at will ; and it seems a well-settled rule that if a tenant at will commits waste it is a determination of the will and an act of trespass, and that quare claumm fregit will lie by the reversioner : Phillips v. Covert, 7 Johns. R. 1 ; Suffern v. Townsend, 9 Johns. R. 35. It was further contended that the plaintiff had not such a 'possession of the manure as would enable him to maintain trespass de bonis asportatis. The plaintiff, by the purchase, had become owner of the farm with all its incidents, subject only to the tenlfhcy at will of Nason. If the manure became the plaintiff's at all it was as part of and incident to the realty. Nason had a qualified possession of it for a special purpose only, that is, to be used upon the farm. The moment he sold it the act was an aban- donment of that special purpose, he parted with his only right to the possession or custody of it, it vested in the plaintiff as owner of the freehold, and the right of possession followed the right of property : Farrant v. Thompson, 5 Barn. & Aid. 826 ; Walcott v. Pomeroy, 2 Pick. 121 ; Ayer v. Bartlett, 9 Pick. 156. As the tenant's sale conveyed no title to the defend- ant, the action of trespass well lies against him if the property was the plaintiff's. 2. The Court are of opinion that manure made on a farm occupied by a tenant at will or for years in the ordinary course of husbandry, consisting of the collections from the stable and barn-yard, or of composts formed by an admixture of these with soil or other substances, is by usage, practice, and the general understanding so attached to and connected with the realty that, in the absence of any express stipulation on the 46 ILLUSTBATIVB CASES subject, an outgoing tenant has no right to remove the manure thus collected, or sell it to be removed, and that such removal is a tort, for which the landlord may have redress ; and such sale will vest no property in the vendee: Lassel v. Reed, 6 Greenl. 222; Kittridge v. "Woods, 3 N. H. 503. The authority of the. first of these cases is supposed to be impaired by a subsequent one decided by the same Court : Staples v. Emery, 7 Greenl. 201. But the Court do not profess to call in question the correctness of their former decision, but, on the contrary, affirm it and distinguish the latter case from it. The rule here adopted will not be considered as applying to manure made in a livery stable, or in any manner not con- nected with agriculture or in a course of husbandry. In the present case the defendant had notice, both from Blake and from the plaintiff, of the claim and title of the plaintiff to the manure before the sale ; he therefore stands in the same situation with Nason, neither better nor worse. Judgment for the plaintiff. Note. — ^Though deposited by Ms own cattle and made from his own fodder, the tenant has no title to the manure made upon the leased premises in the usual course of husbandry : Lassel v. Eeed, 5 Greenl. 222 ; Lewis v. Jones, 17 Pa. St. 262. It passes with the land to the grantee by deed : Kittridge v. Wood, 3 N. H. 503 ; Hill v. De Eochemont, 48 N. H. 87 ; Perry v. Carr, 44 N. H. 118 ; Brown V. Thurston, 56 Me. 127 ; Powell v. Rich, 41 111. 466. Gradual accretions become a part of the soil to 'w^hich they adhere. Ingraham V. "Wilkinson. Supreme Judicial Court of Massachusetts, 1826. 4 Pick. 268. Parker, C. J. The material facts upon which we are to decide this case are that the island in dispute between the parties is situated in Pawtucket River, where it is not navigable for ships or boats, and where the tide does not ebb and flow ; that the plaintiffs are owners of a tract of land on the east side of the river, extending up and down the river be- IN REALTY. 47 yond the island, and that the defendants are owners of a similar tract on the west side of the river ; that the island is not held by any separate grant by either, nor does any other person claim it by virtue of any grant or by possession ; and that both the plaintiffs and the defendants, and those under whom they severally claim and hold their farms on the main land, have occasionally cut trees on the island, but that no agricultural improvement has been made thereon. In a partition of the estate among the heirs of Ebenezer Bucklin, father of the grantor of the plaintiffs, this island was set off to those heirs in 1766, but it does not appear that any pos- session was taken or holden under the partition, except the occasional cutting of wood for forty or fifty years past. It ap- peared, also, that the defendants, or those under whom they claimed, had cut wood on the island for thirty years past at pleasure, without any objection having been made by those who held under Bucklin. It is obvious from this statement that neither the plaintiffs nor the defendants had obtained such exclusive possession of , the island, or any part of it as would enable either to main- tain trespass against the other, without referring their posses- sion to some title ; and it is equally obvious that no title ap- pears in either, except what may be derived from their prop- erty in the land on either side of the stream or river opposite to the island. And thus we are obliged to consider the rights of those who own the land on the banks of streams or rivers not navigable. And this depends altogether, we think, upon the principles of the common law, there being no statute of this Commonwealth, or of the province, nor ordinance of the colony, which alters the common law in this respect, except in relation to the fisheries, which having from the beginning been made the subjects of legislative care, must be governed by such rules and regulations as the several Legislatures have established. The common law recognizes an important distinction, as to the use of waters and the property of the soil, between rivers or waters navigable and those which are not navigable. The 48 ILLUSTKATIVE CASES former invariably and exclusively belong to the public, unless acquired from it by individuals under grant or prescription. The latter are held to belong to those whose land borders on the waters ; so that they have the exclusive right of fishing in front of their own land, and have a property in the bed or soil of the river under the water, subject, however, to an easement or right of passage up and down the stream in boats or other craft for purposes of business, convenience, or pleasure. This is called, in the civU law, a servitude, which is quite consistent with the right of property. The text-book from which this common-law principle is most generally deduced is Sir Matthew Hale's celebrated treatise, De Jure Maris, published in Har- grave's Law Tracts, p. 37, on recurrence to which it will ap- pear that Hale referred to the ancient British writer, Bracton, for the foundation of his doctrine, and that he also relied upon the Eoman civil law, as compiled in the Digest in the reign of Justinian. See Dig. lib. 41, tit. 1, De acquirendo Rerwm Domino, leg. 7, 12, 29, 30, 38, 56, 65, and perhaps many others. This public right in navigable waters and the soil or flats under them is changed by the colonial ordinance of 1641, which gives to the proprietors of upland bordering on such places the property of the soil down to the channel, unless it exceed the distance of one hundred rods, reserving still, how- ever, to the public the right of passage over the water. But, according to judicial constructions of this ordinance, these flats may be occupied by wharves or other erections, provided the passage to lands above is not thereby too much straitened or obstructed : Anc. Charters, etc., 148. There appears, however, to be an important difference be- tween the common and the civil law, in regard to the rights of the public and individuals, on this subject. By the former it would seem that the right of the king or the public is lim- ited to ' those places, whether bays, coves, inlets, arms of the sea, or rivers, in which the tide ebbs and flows, this being the definition of navigable waters ; whereas by the civil law all rivers properly so called, even above tide-waters, provided they IN REALTY. 49 are navigable by ships or boats, or perhaps any other floating vehicle, are considered as public property ; and so is the French law, as will appear by the Code Napoleon, liv. 2, tit. 1, c. 3, art. 538, in which are enumerated, among other subjects of public domain, les flewves et rivi^es navigables ou flottables, which last word seems to have been coined to comprehend all streams on which boats, rafts, lumber, or any other species of property may be transported. It is probable that this distinc- tion arose from the difference in magnitude between the rivers on the continent and those on the island, many of the former being navigable much beyond the ebbing and flowing of the sea, and few, if any, of the latter being of consequence for pas- sage or transportation above the tide. The common-law right of public property, restricted as it seems to be, except for easement or right of way, may be found very inconvenient in its application to many of the magnificent fresh-water rivers of the United States, which are navigable for small vessels and boats much above the flux of the tide, especially by the aid of steam power so rapidly getting into use. And on this account it has been decided by the Su- preme Court of Pennsylvania that the public right to the bed of the river Susquehanna is the same as it is to the ports, har- bors, etc., upon the sea ; so that the proprietor of the banks could not extend his claim of property usque ad filum medium aquse, as by the common law he would have the right : Carson V. Blazer, 2 Binn. 475. But the Supreme Court of New York felt themselves bound by the common law, and adjudicated accordingly in the cases reported in 17 Johns. Rep. 211, and 20 Johns. Rep. 90. And in a question relating to the fishery in the river Connecticut, one of the largest in the eastern part of the United States, the Supreme Court of Connecticut adopted the principles of the common law in regard to the extent of the property of borderers upon the river down to the filum aquse or middle of the river : Adams v. Pease, 2 Conn. Rep. 481. In this Commonwealth the question has not directly arisen, ex- cept in regard to the fisheries, which are held to be the exclu- sive right of the owners of the banks of rivers, unless other- 4 50 ILLUSTRATIVE CASES wise appropriated by acts of the Legislature, this right being, according to our common law, held subject to the control of the Legislature, unless by particular grant or prescription it has been held free of that control. With respect to the river now in question, however, and the part of it where the island in controversy is found, which is above tide-waters, and which we have a right to presume is not navigable even for boats, we think it clear that the common- law doctrine applies, giving to the proprietors of the banks the property of the bed of the river usqv£ ad filum medium aquss. The question then arises, to whom belongs an island formed by a division of the waters of a river, where but for the island the borderers on the river would meet each other in the middle of the river ? And this question must be settled by analogy to cases of a similar nature, which, though they may have arisen in other countries under the jurisdiction of the civil law, have nevertheless been adopted by the common law as fairly coming within its general principles. The doctrine of alluvion and its consequences seems to be very cleariy settled. That which is formed by gradual accre- tion belongs to the owner of the soil to which it adheres. The land which may he separated from a man's farm by a sudden change of the bed of the river may be reclaimed by him who lost it. Islands formed in the river, if altogether on one side of the dividing line, the filum aquse, belong to him who owns the bank on that side ; if formed in the middle of the river, they are appropriated to the owners on each side, not in common, but in severalty, according to their original dividing line, the filum aquse as it is where the waters begin to divide. Such is the civil law, and the justice of this appropriation can- not be questioned. " If the filum aquse divide itself, and one part take the east and the other the west, and leave an island in the middle between both fila, the one half will belong to the one lord, and the other to the other :" Hargr. Law Tr. 37. So by the civil law : Dig. lib. 41, tit. 1, § 29. " Inter eos qui secundum unam ripam prxdia habent, insula in flumine nata, non IN REALTY. 51 pro indiviso communis fit, sed regionibus quoque di/visis ; qwmtum enim arde cujusque eorum ripan est \tantwm\, veluti linea in direc- tum per insulam transducta, quisque eorum in eo habebit certis -re- gionibus." Although this seems appUcable to several owners on the same side of the river, yet the principle must be the same when applied to the owners of the opposite sides, for it treats the river, as to the question of property in its bed, in the same manner as if no island was there. And so the compilers of the Napoleon Code consider it, who, without doubt, in most of that code, had reference to the civil law. The 561st article of the Code Napoleon, tit. 2, c. 2, is in these words: " Les iles et cMSrrissemsnts qui se forment dans les rivitres non navigables et non flottables, appartiennent auz propri- itaires riverains du cdti, ou I' ile s' est formSe ; si V He n' est pas form&e d' un seal c6t6, elle appartient aux propriMai/res riverains des deux c6t6s, a partir de la ligne qu' on suppose trade au milieu de la rivi&re." Although these wise provisions seem to be con- fined to the case of islands recently formed, the same reason will extend them to the case of islands the origin of which cannot be traced, unless the property in them has been other- wise appropriated according to the rules of law ; for whether originally formed by deposits from the water, or by a sudden division of the river, would seem to be immaterial, unless the owner of one side should be able to show that it was created by a disruption from his land. According to these principles, therefore, this island belongs in severalty to these borderers on each side of the stream, if their lands on the main are co-extensive with the island ; if not, then the owners of the next adjoining lots will have a right to claim a portion of the island conformable to their lines. And this settles the present case in favor of the plain- tiffs, for it appears that the bridge removed extended from their land to the island ; the removal of it was therefore a trespass. But in regard to the trees cut down, it is not shown on which part of the island they stood ; so that whether they belonged to the plaintiffs or to the defendants does not appear. 52 ILLUSTRATIVE CASES The verdict, being for the defendants, must be set aside, and a new trial granted. Trustees of Hopkin's Academy v. Dickinson, 9 Gush. 544. Alluvium, whether occasioned by natural or artificial means, belongs to the owner of the soil where deposited: Lovingston v. St. Clair County, 64 111. 56. Land formed by alluvium in a river belongs to the riparian owner of the fee : Inhabitants of Deeifield v. Ames, 17 Kck. 41. In case of avulsion the soil still belongs to the first owner unless be suffers it to remain in its new place until it coalesces with the soil. WlGGENHOTlN d al. V. KOUNTZ. Supreme Court of Nebraska, 1888. 37 N. W. R. 603 ; 23 Neb. 690. Maxwell, J. The defendant in error brought an action against the plaintiffs, in the District Court of Saunders County, to recover the value of certain trees cut down by, and con- verted to the use of, the plaintiffs' in error. The defendant in error alleges in his petition " that from the 7th day of Decem- ber, 1871, until the 29th day of November, 1882, he was the owner in fee simple and in the possession of lot one (1), in section 30, in township 13 N., of range 10 E., in Saunders County; that on or about the 1st day of September, 1881, and between that date and said 29th day of November, 1882, and while plaintiff was the owner and in possession of lot 1 afore- said, the said defendants. Earnest A. Wiggenhorn, John John- son, and Emery A. Clossen, unlawfully and with force broke and entered upon the plaintiff's said land, described as fol- lows, as aforesaid, to wit : Lot 1, in section 30, in township 13 N., of range 10 E., of the 6th principal meridan, Saunders County, the State of Nebraska — and then and there cut down one hundred cottonwood trees belonging to plaintiff, and then growing on said land, and of the value of $190, and carried the same away, and converted them to their own use, to the plaintiff's damages in the snm of $190." Johnson filed an answer to the petition, in which he alleges, in substance, that IN REALTY. 53 he was employed by Wiggenhorn to cut the trees in question, and that Wiggenhorn informed him that he had lawful authority to cut said trees. Wiggenhorn and Clossen answer jointly, denying the facts stated in the petition. On the trial of the cause, a verdict in favor of Kountz, and against all the plaintiffs in error, for the sum of $25 was returned. A motion for a new trial was thereupon filed and overruled, and judg- ment entered upon the verdict. The testimony shows that, at the time stated in the petition, the defendant in error was the owner of lot 1, section 30, township 13 N., range 10 E. The land was entered prior to the year 1860, and a patent issued in that year, under which the defendant in error claims title. The lot in question is an island situated in the Platte River ; there being a well-defined channel on each side of said island. In the year 1867, during high water in the Platte River, the upper part of said island was washed away, and, the testimony tends to show, formed an accretion to the lower end of said island. The timber in question was cut on the land thus formed at the lower end of the island. That sixty trees, from eight to fifteen inches in diameter, were cut on this land, and used as piles on Mr. Wiggenhorn's mill-dam, is proved beyond controversy. There is some dispute in the testimony as to whether Mr. Johnson was hired by Wiggenhorn, or sold him the piles ; also whether Clossen was employed by Wiggenhorn or Johnson ; but, in the situation of the case, the particulars as to the transaction are not material. All three participated in the trespass, and Mr. Wiggenhorn procured the trees, for which he claims to have paid to Johnson $32. The proof shows that the trees, for the purpose for which they were used, were worth from $2 to $2.75 each. The principal defense relied upon is that the land on which the trees grew was not the property of Kountz, but was public land, to which all had equal rights ; and it is claimed, further, that the land thus suddenly formed would belong to the parties owning the mainland bordering on the river near said island. These questions will be considered in their order. In Lammers v. Nissen, 4 Neb. 245, Judge Gantt, in defining 54 ILLUSTKATIVE CASES the word " accretion," says : " That an accretion to land is the imperceptible increase thereto, on the bank of a river, by alluvial formations, occasioned by the washing up of sand or earth, or by dereliction, as when the river shrinks back below the usual water-mark ; and, when it is by addition, it should be so gradual that no one can judge how much is added each moment of time; and, when the formation of land is thus imperceptibly made on the shore of a stream by the force of the water, it belongs to the owner of the land immediately behind it, in accordance with the maxim de minimis non curat lex. It is said that no other rule can be applied on just principles, for the reason that every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory ; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain." In speaking of an avulsion, Washburn (3 Real Prop. 4th ed. 60) says : " Cases sometimes occur where considerable quantities of soil are, by the sudden action of water, taken from the land of one, and deposited upon or annexed to the land of another. The difference between avulsion, as the latter process is called, and alluvion, consists in the one being done by imperceptible loss from the land of one, and incre- ment to that of the other ; and in the other, its being done suddenly, to an extent which can be ascertained and meas- ured. In the case of avulsion, the soil still belongs to the first owner, unless he shall have suffered it to remain in its new possession until it cements and coalesces with the soil of the second owner, in which case the property in the soil will be changed, and no right to reclaim it remain." If it be con- ceded, therefore, that the land so formed at the lower end of the island in question was formed suddenly by washing the soil from the upper end of the island to the lower, the soil would still remain that of the owner of the island, and a per- son cutting trees on the land so formed would be liable for the same. The plaintiffs in error strenuously contend, in substance, that as a grant of land on a stream not navigable includes all IN REALTY. 55 islands or parts of islands between the shore and the centre thread of the stream, that, therefore, the land on which the trees grew belonged to the owner of the mainland on the river adjacent to s\ich islands. There is no doubt of the rule that grants of land bounded upon a river not navigable carry with them the exclusive right and title of the grantee to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river ; the rule of the common law being that proprietors of land adjoining- public rivers, not affected by the flow of the tide, own the soil ad filum aquse : 3 Kent, Comm. 427. In Ingraham v. Wilkin- son, 4 Pick. 273, the Supreme Court of Massachusetts says : " The doctrine of alluvion and its consequences seems to be very clearly settled. That which is formed by gradual accre- tion belongs to the owner of the soil to which it adheres. The land which may be separated from a man's farm by a sudden change of the bed of the river may be reclaimed by him who lost it. Islands formed in the river, if altogether on one side of the dividing line — the filum aquse — belong to him who owns the bank on that side ; if formed in the middle of the river, they are appropriated to the owners on each side, not in common, but in severalty, according to their original dividing line — ^the filum aquse as it is where the waters begin to divide. Such is- the civil law ; and the justice of this appropriation cannot be questioned. If the filum aquas divide itself, and one part take the east and the other the west, and leave an island in the middle between both fila, the one-half will belong to the one lord, and the other to the other." In Trustees, etc., v. Dickinson, 9 Gush. 548, it is said : " In the case just now sup- posed of an island arising in the middle of the river, it is divided by that line which was the thread of the river imme- diately before the rise of the island. But that line must thenceforth cease to be the thread of the river, or filum aqux, because the space it occupies has ceased to be covered with water. But, by the fact of an island being formed in the middle of the river, two streams are necessarily formed, by the original river dividing it into two branches. The island 56 ILLUSTRATIVE CASES itself, having become solid land, forms itself a bank of the new stream on the one side, and the old bank on the main shore forms the other. And the same rule applies on the other side of the island. There must, then, be a filwm aquse to each of these streams, while the old filwm aquas is obliterated to the extent to which land has taken the place of water. But this island, having all the characteristics of land, may soon be divided and subdivided by conveyances and descents, and all the modes of transmission of property known to the law, and thus become the property of different owners. Now, suppose another island formed in one of these branches, between the first island and the original main shore. It seems to us that it must be divided upon the same principle as the first ; but, in doing it, it will be necessary to assume as the filum aquse the middle line between the first island and the original river bank on that side." Where the mainland and an island have been separately surveyed and sold by the government to dif- ferent parties, the grantees of the mainland do not, by such grant, acquire the island. In such case, the grant to each being separate and distinct, neither can claim beyond the calls of his entry and patent. The rule is that where there is a clear reservation of islands in a grant of mainland adjacent to a river, either expressly or by necessary implication, such islands do not pass to the grantee ; and the filum aqux which bounds the grant is the centre thread between the shore and the island. In such cases, two fila aquse are established, one on each side of the island : Stolp v. Hoyt, 44 111. 223 ; Trustees, etc., V. Dickinson, 9 Gush. 544 ; People v. Canal Appraisers, 13 Wend. 355 ; Buse v. Russell, 86 Mo. 209. In the case under consideration, it is clearly shown that there is a well-defined channel of the river on each side, between the mainland and the island. The grant of the mainland, therefore, would, at the most, merely extend to the centre thread of the stream between the shore and the island, so that in no event could an owner of the mainland claim an interest in the island. Some objection is made that the evidence is not sufficient to IN REALTY. 57 justify a verdict against Clossen. There is but little doubt that Mr. Wiggenhorn was the party wholly benefited by the cutting of the trees, and apparently he should be liable for the damage resulting therefrom. This question, however, cannot be determined in this action, as the motion for a new trial is joint. There is no error in the record, and the judgment is affirmed. Woodward v. Short, 17 Vt. 387. THINGS ATTACHED BY ART. Things attached to land by art as a general rule become a part of the realty, unless by agreement they ate to retain their personal character. First Parish in Sudbury v. Jones et al. Supreme Judicial Court of Massachusetts, 1851. 8 Cush. 184. Shaw, C. J. The estate in controversy belonged to the town of Sudbury, when it was a corporation, having the func- tions both of a town and parish, prior to 1780 ; and after dividing and forming two distinct corporations, one municipal and the other parochial, the question is, to which it belongs. The general rule in this Commonwealth, to which, it is believed, the case of such double corporation of town and parish is peculiar, is, that if land is specially granted to a town, thus acting in a double capacity, either for municipal or parochial use, or if such a town specially, by vote or significant act, dedi- cates and appropriates a portion of its own territory to either the one or the other use, and it so remains until the separation, it will vest in the town or the parish, respectively, according as it shall have been originally so given, or subsequently ap- propriated to parochial or municipal uses. The difficulty usually is in applying this rule to particular cases, where, as in the present case, grants and acts are equivocal. It appears that the original grant of this land, lying open and in common with a lot on which the meeting-house stands, and separated from such meeting-house lot by a traveled road 58 ILLUSTRATIVE CASES only, and not by any fence, was granted by one Haynes, more than a century ago, to the west precinct of Sudbury. The term " precinct," in law and in common acceptance, is used synonomously with " parish " : Inhabitants of Milford v. God- frey, 1 Pick. 96. The grant being to a parish, was prima facie evidence that it was granted for a parochial use. This would seem to be decisive but for one consideration, which is that the territory then (1740) constituting the town of Sudbury embraced a much larger surface, including another parish, since (1780) incorporated into a separate town, called East Sudbury, the name of which was subsequently changed by law to that of Way land. The precinct of West Sudbury, therefore, at that time very nearly conformed in territory to that which, after the incorporation of East Sudbury, constituted the entire town of Sudbury. Still, however, it was not then a town. As a precinct, it had the functions of a parish only, although after the incorporation of East Sudbury the people of the same ter- ritory became a municipal corporation, and exercised the powers both of town and parish. The presumption, therefore, still remains, that the grant was made to the precinct for parish use. Whether the corporation, after it acquired the functions both ■ of town and parish, could have changed the appropriation of land granted to the parish, we have no occasion to decide, be- cause we perceive no evidence of any intent to make such change. Certainly no vote to that effect appears, and we find no evidence of any decisive act. The use of it for a school- house to stand upon from 1735 to 1780 was whilst West Sud- bury was a precinct or parish only, and before it became a town by the incorporation of the new town of East Sudbury. The continuance of the school-house on the same till 1798 seems to have been simply permissive, and without any act or vote ; and it was then removed and placed on land of the town. The subsequent vote of the town, authorizing the replacing of the school-house on the land in question, was not a permanent appropriation to municipal use ; and it seems not to have been so considered by the town, because, in eight or ten years after, and before the division of the corporation into town and parish, IN REALTY. 59 the town again passed a vote authorizing the removal of the school-house to other acknowledged town land. There was no school-house or other town building upon it when the present parish was organized, by the separation of the two characters of town and parish. The Court are of opinion that the original grant of this land by Haynes to the " precinct," impressed upon it a parochial character ; that it retained that character, whilst the corpora- tion exercised the functions of both town and parish ; and that upon the separation it remained the property of the parish. Judgment for the plaintiffs. The case was then referred to an assessor, who made his report at the October Term, 1852, submitting to the Court the question whether the defendants had the right to remove the school-house from the premises, and if they had, assessing damages at thirty-five dollars ; if they had not, then at one dollar. IngaUs V. St. P., M. & M. Ry. Co., 39 Minn. 479. Wii/LiAMS Eeal Pkop. 13. The word " land " in a deed includcB the fences thereon. MoTT V. Palmer. Court of Appeals, New York, 1848. 1 N. Y. 564. RuGGLES, J. In December, 1841, Mott conveyed to Palmer a farm of land in Columbia County by a deed containing the following covenant : " And the said Philander Mott doth hereby covenant and agree that at the delivery hereof he is the lawful owner of the premises above granted, and seized of a good and indefeasible estate of inheritance therein clear of all incumbrance." This action was brought by Palmer, the grantee, on the cov- enant in the deed, to recover the value of a rail fence which stood on the land when the deed was executed, but which did not belong to Mott the grantor. The facts were, that the fence 60 ILLUSTRATIVE CASES was erected on Mott's land in 1840 by one Brown (who owned the adjoining land), under an agreement between him and Mott, by which Brown was to fence in, temporarily, a part of Mott's land with his own, and to cut and take away the grass grow- ing on Mott's land ; with leave to take away the fence when- ever he liked. After Mott conveyed to Palmer the land on which the fence stood, Palmer removed the fence and converted it to his own use. Brown thereupon sued him before a justice for the fence and recovered, Mott being a witness on that trial against Palmer. Although the evideuce to prove these facts was at first offered by Palmer on the trial of this cause in the Court below and rejected by the Court, it was afterward given by the defendant Mott. The question now is whether in this action brought by Palmer the grantee against Mott his grantor, on the covenant of owner- ship and seisin in the deed, Palmer is entitled to recover the value of the fence. A grantor who executes a conveyance of land undertakes to convey everything described in his deed ; and by a covenant of seisin he assumes to be the owner of all he undertakes to convey. The deed in question purported to " grant and convey all that certain lot or farm of land situate in the town of Chatham, County of Columbia, bounded, etc., with the appurtenances," etc. The word land, when used in a deed, includes not only the naked earth, but everything within it, and the buildings, trees, fixtures, and fences upon it : Goodrich v. Jones, 2 Hill, 143 ; Walker v. Sherman,. 20 Wend. 639, 640, 646; Green v. Armstrong, 1 Denio, 554-, Com. Dig. Grant, E. ; Co. Litt. 4 a ; 2 Roll. 265. A deed passes all the incidents to the land as well as the land itself, and as well when they are not expressed as when they are. Fixtures belonging to the owner of the land, being part of the land, cannot be reserved by parol when the land is conveyed ; the deed conveys them to the grantee unless the reservation be in writing : Noble v. Bosworth, 19 Pick. 314. If the fence had belonged to Mott, it would have passed by his deed ; not by force of the word appurtenances contained in the deed, but without that word, and as part of the land. Trees, buildings. IN KEALTY. 61 fixtures, and fences on a farm, are corporeal in their nature, and the subjects of seisin, like the land itself of which they are re- garded in the law as a part. Fences are perishable by the eifect of time, and so are trees and houses ; but indestructibility is not one of the essential attributes of real estate. Fences are not only indispensable to the enjoyment of real estate, but they are, in their nature, real estate, to the same extent that houses and other structures on the land are so. A rail, before it is used in the construction of a fence, is personal property, and so is a loose timber before it is used in the construction of a house. When either is applied to its appropriate use in building a fence or a house, its legal nature is changed. It becomes real estate, and is governed by the law which regulates land, descending to the heir as part of the inheritance, and passing by a deed as part of the freehold. A fence may be easily detached from the earth, but not more easily than the stones which lie on its sur- face, and both are part of the land, and, therefore, it is that a building or fence belonging to the owner of the land will pass by his deed of the land without being expressed or designated as part of the thing granted. But the earth within specified boundary lines may be owned by one man, and the buildings, trees, and fences standing on it by another. A man may have an inheritance in an upper chamber, although the title to the lower buildings and soil be in another : Shep. Touch. 206 ; 1 Inst. 48, b. And it is a cor- poreal inheritance: 10 Vin. 202. Buildings and fixtures erected by a tenant for the purposes of trade belong to him, and are removable without the consent of his landlord : Holmes V. Tremper, 20 John. 30 ; Miller v. Plumb, 6 Cowen, 665 ; Doty V. Gorham, 5 Pick. 489. Herlakenden's Case, 4 Co. R. 63, affords an instance in which one man owned the land and another the growing trees upon it. In Rogers v. "Wood- bury, 15 Pick. 156, Putnam, J., in speaking of a house which a man had erected on land which did not belong to him, said " it might or it might not be parcel of the realty. If the owner of the land owned the buildings, it would be so. If he did not, and the owner of the building had no interest in the land, the 62 ILLUSTRATIVE CASES building would be personal property." Smith v. Benson, 1 Hill, 176, was the case of a dwelling-house and grocery be- longing to one man, although standing on the land of another ; and in Russell v. Richards, 1 Fairf. 431, the owner of land on which another man had erected a saw-mill by his consent, executed a deed for the land and the mill, but it was held that the conveyance passed no title to the mill, because it was the property of him .who built it. The conclusion derived, from these cases against the plaintiff's right of recovery on the cov- enant is that the defendant's deed purports to be a grant of real estate only, and the fence in question being personal property was not a part of the premises granted, and therefore not within the scope of the covenant which relates to the realty only. If this be a sound conclusion, a grantor could not be made lia- ble on the covenants in his deed, although he had previously and privately sold, with a view to removal, all the houses, buildings, mills, fences, and growing timber on the land conveyed. In- deed, if this doctrine prevails, the gravel, clay, stone, and loam might also be converted into personal property by such a sale, and carried off the land, without violating the grantor's cov- enant. Let us test the correctness of this conclusion in a few words. It is true the fence in one sense was not a part of the thing granted. It did not pass by the deed. In the same sense, if some stranger had been the owner of one-half of the farm, the half would not have been part of the thing granted because it would not have been passed by the deed. But the fence was tuithin the description of the thing granted as clearly as the land itself ; and being within the description, it was a part of that which the deed purported to convey, and of which the grantor covenanted that he was the owner. If it be yet doubted whether the fence (being in fact the personal property of Brown) was within the description of what the grantor professed to convey, that doubt can be solved in a moment, by reflecting that it would undeniably have passed by the deed if the grantor had been the owner of it ; although it could not have so passed if it had not been within the description. It all comes to this : The grantor undertook to convey it as IN REALTY. 63 part of the realty by a deed which would 'have been effectual for that purpose if he had been the owner ot it, as by the deed he professed to be, but was not. It is therefore 'a". case in which the covenant of seisin affords a remedy ; and although the amount in controversy is trifling, the right is clear ; and it seems to be perfectly just that the grantor should pay for the fence, because there is nothing in the case to show that Palmer, when he accepted the deed, was informed by Mott or other- wise knew that it belonged to Brown. . The judgment of the Supreme Court must therefore be affirmed. The rails upon the road-bed of a railway are a part of the realty. Hunt v. Bay State Iron Company. Supreme Judicial Court of Massachusetts, 1867. 97 Mass. 279. Foster, J. There can be no doubt that the rails when laid Upon the road-bed and fastened there so that engines and cars could pass over them would have become annexed to the realty, and ceased to be personal property, in the absence of any agreement changing the ordinary rule of law. It was held in Pierce v. Emery, 32 N. H. 484, and Haven v. Emery, 33 N. H. 66, that rails delivered under an agreement that they should be laid down on a specific part of the railroad and continue the property of the vendors until a specified price was paid for them, remained the personal property of the vendors until payment, and were not, when laid, so inseparably annexed to and incorporated with the realty that they could not be removed for non-payment of the price. The agreement of the parties was held to supersede the general rule of law, and to be binding likewise upon subsequent mortgagees with notice. Notice to the trustees was held to be notice to the bond- holders under such a mortgage. But without notice it was considered that the mortgagees would not be affected by a 64 ILLUSTRATIVE CASES private agreement changing the natural and legal character of the property from real to personal, but would have a right to suppose that they acquired all the incidents and appurtenances which by the general rules of law would result from such a purchase. We are satisfied with the principles and follow the authority of these cases : Strickland v. Parker, 54 Me. 263. Our own adjudged cases fully support the position that the rails when laid became a part of the realty in the absence of any agreement to the contrary: Peirce v. Goddard, 22 Pick. 559 ; Winslow v. Merchants' Insurance Co., 4 Met. 306 ; Butler V. Page, 7 Met. 40 ; Richardson v. Copeland, 6 Gray, 536. They likewise recognize the doctrine that buildings and other erec- tions or fixtures so attached to the realty as to become ordinarily a part thereof may, by agreement between the parties, remain personal property : Curtis v. Riddle, 7 Allen, 185. Both of these propositions seem to be everywhere accepted as sound law. Upon the question whether the character of property can be changed by agreement from realty to personalty as against a bona fide purchaser without notice, there is not entire harmony of the authorities ; but we regard the better opinion as being that such a purchaser must have notice of the agreement before he acquires title, or he will be entitled to claim and hold every- thing which appears to be and by its ordinary nature is a part of the realty : Elwes v. Mawe, 3 East, 38 ; 2 Smith Lead. Gas. 99, and notes. To hold otherwise would contravene the policy of the laws requiring conveyances of interests in real estate to be recorded, seriously endanger the rights of purchasers, afford opportunities for frauds, and introduce uncertainty and con- fusion into land titles. Nor do we suppose that a mortgagor in possession is compe- tent to bind existing mortgagees by any arrangement to treat as personalty annexations to the freehold. The legal character of the rails when once laid down is determined by the law to be that of real estate. Mortgagees, as well as all other parties In interest, are entitled to the benefit of this rule of law, which can be taken from them only by their own waiver. Land- owners having a lien upon the location for their damages and IN REALTY. 65 a right to take possession for default of payment, stand in the same position so long as their right remains to enforce payment by entering on the land. Whether the mortgage of the railroad, executed before these rails were laid, but then invalid, and afterward confirmed by the Legislature, should be treated as a security prior or subse- quent to the laying of the rails, will probably not prove a material question in this case. By the agreement of the parties it must be sent to a Master to ascertain all the facts as to notice ; upon the coming in of his report we can more conveni- ently and intelligently determine whether the agreement with Mr. Slater is still capable of being enforced. It is valid between the parties, Slater and the original corpo- ration, but binding upon prior mortgagees and the land-owners (if they remain entitled to possession as security for their dam- ages), so far only as they have consented that the rails shall remain personalty. It is binding upon such subsequent incum- brancers and grantees as had notice of it when they acquired title, but upon no others. A house erected on land of materials wrongfully taken from an- other -will become a part ot the realty on which it stands. Pierce v. Goddard. Supreme Judicial Court of Massachusetts, 1839. 22 Pick. 559. "Wilde, J., drew up the opinion of the Court. This action is submitted on an agreed statement of facts, by which it ap- pears that one Davenport, being the owner of a lot of land with a dwelling-house thereon, mortgaged the same to the plaintiff; that afterward he took down the house, and with the materials partly, and partly with new materials, built a new house on another lot of his at some distance ; and that after the new house was completed he, for a valuable consid- eration, sold the last mentioned lot and house to the defend- ant. 5 66 ILLUSTRATIVE CASES There are two counts in the declaration, one for the con- version of the newly erected house, and the other for the con- version of the materials with which it was built, belonging to the old house. The plaintiff's counsel insist that the old house was the property of the plaintiff, and that Davenport had no right to take it down, and could not therefore acquire any property in the materials by such a wrongful act ; that the new house, be- ing built with the materials from the old house in part, be- came the property of the plaintiff, although new materials were added, by right of accession ; and that Davenport, having no property in the house, as against the plaintiff, could convey no title to it to the defendant. That Davenport is responsible for taking down and re- moving the old house cannot admit of a doubt ; but it does not follow that the property in the new house vested in the plaintiff. The rules of law by which the right of property may be acquired by accession or adjunction were principally de- rived from the civil law, but have been long sanctioned by the Courts of England and of this country as established prin- ciples of law. The general rule is that the owner of property, whether the property be movable or immovable, has the right to that which is united to it by accession or adjunction. But by the law of England, as well as by the civil law, a trespasser who willfully takes the property of another can acquire no right in it on the principle of accession, but the owner may reclaim it, whatever alteration of form it may have undergone, unless it be changed into a different species, and be incapable of being restored to its former state ; and even then the tres- passer, by the civil law, could acquire no right by the ac- cession, unless the materials had been taken away in ignorance of their being the property of another : 2 Kent's Comm. 362 ; Betts V. Lee, 5 Johns. R. 348. But there are exceptions to the general rule. It is laid down by Molloy as a settled principle of law that IN REALTY. 67 . if a man cuts down the trees of another, or takes timber or plank prepared for the erecting or repairing of a dwelling- house, nay, though some of them are for shipping, and builds a ship, the property follows not the owners but the builders : Mol. de Jure Mar., lib. 2, c. 1, § 7. Another similar exception is laid down by Chancellor Kent in his Commentaries, which is directly in point in the present case. If, he says, A builds a house on his own land with the materials of another the property in the land vests the prop- erty in the building by right of accession, and the owner of the land would only be obliged to answer to the owner of the materials for the value of them : 2 Kent's Comm. 360, 361. This principle is fully sustained by the authorities. In Bro. tit. Property, pi. 23, it is said that if timber be taken and made into a house it cannot be reclaimed by the owner ; for the na- ture of it is changed, and it has become a part of the free- hold. In Moore, 20, it was held that if a man takes trees of another and makes them into boards, still the owner may retake them, but that if a house be made with the timber it is otherwise. In Popham, 38, this principle is further extended. The plaintiff in that case had mixed his own hay with hay of the defendant on his land, and the defendant took away the hay thus intermixed ; and it was held that he had a right so to do. But it was also held that if the plaintiff had taken the defend- ant's hay and carried it to his house and there intermixed it with his own hay, the defendant could not take back his hay, but would be put to his action against the plaintiff for taking his hay. If there be any doubt of the doctrine laid down in this case, it does not affect the present case. The doctrine laid down in the former cases is fully supported by the Year Books, 5 Hen. 7, 16 ; and I am not aware of any modern decision or authority in which this old doctrine of the Enghsh law has been controverted. The case of Kussell v. Eichards, 1 Fairfield, 429, cited by the plaintiff's counsel, was decided on the ground that the building in controversy was personal property, and had never 68 ILLUSTRATIVE CASES become a part of the freehold. In the present case it cannot be questioned that the newly erected dwelling-house was a part of the freehold, and was the property of Davenport. The materials used in its construction ceased to be personal prop- erty, and the owner's property in them was divested as effect- ually as though they had been destroyed. It is clear, there- fore, that the plaintiff could not maintain an action even against Davenport for the conversion of the new house. And it is equally clear that he cannot maintain the present action for the conversion of the materials taken from the old house. The taking down that house and using the materials in the con- struction of the new building was the tortious act of Daven- port, for which he alone is responsible. Plaintiff non-suit. Note. — ^As to pews in a church being a part of the realty, see First Baptist Church V. Bigelow, 16 Wendal, 28; Bigelow v. Biele, 8 Barb. 130; Union House V. Eowell, 66 Me. 400. IN REALTY. 69 FIXTURES. 1. TESTS. As to ^irhat is a fixture, the intention of the party making the annexa- tion is the prime test, this intention being inferred from the mode of annexation and the purpose for which the annexation was m^de. Parsons v. Copeland. Supreme Judicial Court of Maine, 1854. 38 Me. 537. Tenney, J. 1. The commission issued upon the judgment for partition under the seal of the Court. One of the per- sons appointed to make the division declined to act, and the Court designated another. This appears by the commission and the official certificate of the clerk thereon, and was in all respects sufficient authority to those appointed, in the dis- charge of the duties prescribed. The substitution of one commissioner for another did not annul the commission in other respects or impair its legal effect. After the substitu- tion, the seal upon the commission was adopted, and applied equally to the person substituted and to those who were pre- viously appointed and accepted the trust. 2. Another ground of objection to the acceptance of the report is that the commissioners set off and assigned to the petitioner property of which Calvin Copeland, the respondent, was sole seized in fee, and in which the said petitioner had no seisin in or possessory right. The petitioner obtained twenty-three, of six hundred and twenty-five parts of the premises, under the levy of an execu- tion in his favor against Calvin Copeland, on November 18, 1847. The petition for partition was presented to this Court and entered therein at October Term, 1849, in the County of Penobscot ; and judgment for partition thereon was rendered at the October Term, 1852, of the same Court, and commis- sioners were appointed to make partition, who made their return and report on February 16, 1853, signed by them. 70 ILLUSTRATIVE CASES The case discloses, that after the levy of the execution and the filing of the petition for partition in Court, and before the interlocutory judgment, a dye-house and a dry-house with kettles and other articles therein, together with a wood-house, were erected' on the premises by Calvin Copeland, for the pur- pose of carrying on the factory with greater facility and profit. It does not appear that the petitioner aided in the erection of these buildings, or that he consented or objected to their erec- tion. These were taken into the estimation of the value of the premises by the commissioners, and the division made accordingly, though no part thereof were set-off and assigned to the petitioner, and the party who caused their erection is not deprived of them. But as they constituted a part of the appraised value of the whole, the value of the share set off to the petitioner was proportionately greater than it would have been if they had not been taken into the account. If these buildings had been upon the land at the time the petition was filed, and no question had been presented in the proceedings, whether they were a part of the common property or not, the interlocutory judgment would have established the title iu the petitioner to twenty-three parts of the six hundred and twenty-five, including the buildings in question. The commissioners would have had no authority to exclude any part of these buildings upon the land ; and would not have been empowered to inquire whether they were erected exclu- sively by one tenant in common or, not, with the view to dis- regard them in the division if it should be found that they were erected by one party alone before the filing of the peti- tion. Under the commission they would have been bound to make division of the premises as they found them. But the judgment for partition must be based upon the peti- tion, and the estate therein described. If cannot include prop- erty not embraced in the petition, or which has not been added under such circumstances as to make it a part of the premises to be partitioned. After a petition for partition has been filed in Court, and all the tenants in common of the land referred to therein have IN REALTY. 71 ihad due notice of its pendency, if one should erect a tem- porary building thereon, for his own exclusive use, by the consent of his co-tenants, such building would belong to the party alone who erected it, in the same manner that it would, if placed upon the land of a stranger, under similar permission. It cannot be assumed, from the evidence, that Calvin Cope- land, being in possession of the premises as a tenant in com- mon with the petitioner, who owned a small part- only of the premises, erected the buildings in question wrongfully, so that they became a part of the common property. But from the description of the buildings and the mode in which they were attached to the ground, and the use for which they were ap- parently designed, according to the testimony, and the entire want of evidence that they were placed there against the consent of the petitioner, it may well be inferred that they were erected rightfully, and never became the property of the tenants in common. Consequently, it would seem to comport with the justice of the case, and with the equitable rights of all the ■owners of the premises, that the partition should be based upon an estimation of their value exclusive of those build- ings, if it should be found by the commissioners that they were legally erected by Calvin Copeland for his own use and benefit, subsequent to the filing of the petition for partition. For these reasons the report is recommitted. 3. Another ground relied upon against the acceptance of , the report is, that the commissioners set off and assigned to -the petitioner certain personal property belonging to said Copeland, to wit, machinery connected with a woolen factory, consisting of looms for weaving, carding machines, bands, water-wheel, fulhng stocks and boilers, together with other personal property generally found in a woolen factory. As the report is to be recommitted for reasons already stated, it is considered proper to discuss the question pre- sented in the last ground of objection to its acceptance, and to decide the rights of the parties to the property referred to, so that the commissioners may be enabled to- make their report in accordance with those rights. 72 ILLUSTEATIVE CASES It appears that one of the buildings upon the land described in the petition and the commission was a " woolen factory," in which were certain machines, such as are common in such a factory, consisting of cards, looms, jacks, spooler, picker and dresser, sitting upon the floor. The frames of the looms were fastened by cleats to prevent their moving. There were fast- enings made into the floor, and the jacks and cards were fast- ened to the floor. And, as we understand from the report, this machinery was put in operation by means of water power con- nected with the factory. On the question, whether such machines so situated are fixtures, so that they constitute a part of the real estate, the authorities are far from being uniform, and no rule of uni- versal application can be deduced from them without conflict- ing with the doctrines found in some of the decisions upon the subject. It was held in a leading case in England, Elwees v. Mawe, 3 East, 38, after much consideration, that there was a distinc- tion between annexations to the freehold for the purposes of trade and manufacture and those made for the purposes of agriculture, and that the right of removal by the tenant of th& former was xauch stronger than of the latter. And it may be , regarded as well settled that an article may constitute a part of the realty, as between vendor and vendee, which would not under similar conditions and circumstances be so treated as between landlord and tenant : 2 Kent's Com., Lecture 35. The same distinction exists between the rights of the heir and executor, in favor of the former ; and between the tenant for life and the remainderman, or the reversioner. The rights of the mortgagee to such additions made by the mortgagor during his possession have been equally favored with those of a vendee : Winslow et al. v. Merchants' Ins. Co., 4 Met. 306. The same rule will apply to fixtures under the levy of an exe- cution as it does between vendor and vendee, passing them as parcels of the inheritance in one case as in the other : Powell et ux. V. Manson & Brimfield Mfg. Co., 3 Mason, 459. The case before us difiers in some respects from the classes IN REALTY. 73 of cases referred to, as this concerns the power and duty of commissioners in making division of real estate owned in common and undivided by the parties. By the judgment of partition each party is equally the owner of the premises, and has equal rights therein in the proportion determined thereby. Whatever was in the " woolen factory," situated upon the land described, and used in the appropriate business thereof, could not have been considered by the commissioners to be temporary for one party more than for the other, and therefore cannot fall within the principle applicable as between land- lord and tenant. Hence it is a case where the doctrines which govern, as between vendor and vendee, are to ha^ve their most, extended influence. Still, if one party had placed in the factory certain articles,, which were clearly personal in their nature, and under no rule became part of the realty, the commissioners were not at liberty to regard them in the division which they undertook to make. It has been held necessary, in order to constitute a fixture, that the article should be let into, or united to the land, or to substances previously connected therewith : Ames & Farrard on Fixtures, 2. In Walker v. Sherman, 20 Wend. 636, it was held requisite that the article be actually affixed or annexed to the realty to become parcel thereof By other authorities it has been regarded necessary in order to give to chattels the character of fixtures, and deprive them of that which they had before the relation to the realty commenced, that they be so firmly fixed that they cannot be moved without injury to the freehold by the process of removal : Farrar v. Chaufette, 5 Denio, 337. It cannot be denied that the physical attachment of certain articles to the freehold is a very uncertain and unsatisfactory criterion. We have seen that it is well settled that the same attachment will not change the character of the article when made under one species of tenancy, when under another, with much less of a permanent connection, it will cause the article to become a part of the real estate. Millstones, the gear of the 74 ILLUSTRATIVE CASES mill, and the water-wheel to which the power is applied, and the articles connected which are universally conceded to be fixtures and to pass with the realty, may be taken from their appropriate places, without the withdrawing of a spike, a pin, or a nail, or the displacement of a cleat, their own weight often keeping them in their intended position, and no injury what- ever arise to the building from which they are taken. Many articles, constituting essential parts of the most permanent dwelling-houses, and without which the buildings could not be comfortably occupied may be entirely removed with the greatest facility, and no injury be occasioned to the portions remaining. Mr. Dane remarks : " It is very difiicult to extract from all the cases as to fixtures, in the books, any one principle on which they have been decided, though being fixed and fast- ened to the soil, house or freehold, seems 'to have been the leading one, in some cases, though not the only one. Not the mere fixing or fastening alone is to be regarded, but the* use, nature, and intention :" Abridg. of Amer. Law, vol. 3, p. 156. In Winslow et al. v. Merchants' Ins. Co., before cited, the Court say : "As to what shall be deemed fixtures and part of the realty, when the question does not arise between landlord and tenant, or tenant for life and remainderman, in regard to improvements made by the tenant, it is diSicult to lay down any general rule which shall constitute a criterion. The rule that objects must be actually and firmly fixed to the free- hold to become realty, or otherwise to be considered personalty is far from constituting such a criterion." In Teaf v. Hewett et al. from the Ohio Reports, cited in the argument, where the Court came to the conclusion that ma- chines in a factory are not parts of the realty, the learned Chief Justice, in a very elaborate opinion, says : "After a care- ful review of all the authorities I have reached the conclusion that the united applications of the following requisites will be found the safest criterion of a fixture. 1st. Actual annexation to the realty, or something appurtenant thereto. 2d. Applica- IN REALTY. 75 tion to the use and purpose of that part of the realty with which it is connected. 3d. The intention of the party making the annexation to make the article a permanent accession to the freehold ; this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose and use for which the annexation has been made." The intention is here held essential in the determination of the question, and so far the rule is not in conflict with the views entertained by the Court in 4 Met. The same Judge seems to consider the want of the first requisite as not entitled to controlling influences in all cases, for he remarks that " the doors, windows, shutters, etc., of a mansion-house may be raised and removed without any actual physical injury, either to the building or the article removed ; so also in a mill with the millstones, hoppers, and belting apparatus as usually fixed in a mill, yet it has never been questioned that these articles are fixtures." It is undoubtedly true that the second requisite quoted is important. It will not be contended that a machine fitted to be moved by water or steam power, portable in its character, when placed in a building (having such power for other and distinct objects) with the mere purpose of testing the capacity of such machine to perform the contemplated operations by the application of the power by the belts in previous use, would become a part of the realty by such experiment. Such was not the design, and such cannot be the legal efi"ect. But it is true, undoubtedly, that the building, the water- wheel and the gear designed for a grist-mill has peculiarities, and is often very different from the water-wheel, the gear, as well as the building intended to constitute parts of a woolen factory. And the machinery in the former, consisting of the millstones, the cleansing apparatus, the bolts, the belts with their appendages to carry the grain to the cleanser and the meal to the bolts, all of which are believed sometimes, if not generally, to be moved by means of the belts connected with the gear of the mill, together with the hoppers, the hoops. 76 ILLUSTRATIVE CASES troughs, etc., are as easily removed as are the cards, the looms,, and the pickers in the latter. If the building is designed for a woolen factory, the wheels and gearing to which the motive power is applied, constructed in a manner suited to promote the intended object after the machines are placed in the build- ing, it is only another step in the prosecution of the design ; and it is not easy to understand wherein the latter fail to have the properties of the former, or how one can have distinguish- ing characteristics from the other, so that one is to be treated as personal property, while the other is real estate. A wheel in the gearing is moved by corresponding cogs in that wheel and the water-wheel. The wheel of a carding machine is caused to move by means of a belt connecting the wheel of the gearing therewith, or by means of another set of corre- sponding cogs. By what rule is it that the dividing line between the realty and the chattels shall be at one point or the other ? It is the supposed intention of a tenant for a limited time, in placing articles, which if made by the absolute owner would become part of the realty, to remove them at the expiration of his term, because such would be for his interest. This inten- tion might be inferable, if the articles placed in a mill, which was rented for a term less in duration than that of the sup- posed existence of the articles themselves. But when the same articles are placed therein by the owner of the mill to carry out the obvious purposes for which it was erected, and which are in all respects suited therefor, and may be unsuited for another mill, it is difficult to see the reason of the proposition that these articles are still chattels in the hands of him who is the common owner of all, when in fact they are more per- manently attached to the freehold than many things univer- sally admitted to be parcel of the realty. This Court have repeatedly held that certain articles, not differing materially in their general character in reference to the question which we have considered, ceased to be personal property when used in connection with the real estate for the purpose designed in an appropriate manner : Farrar v. Stack- IN REALTY. 77 pole, 6 Greenl. 154 ; Trull v. Fuller, 28 Me. 545 ; Corliss v. McLagin, 29 Me. 115. No reason is perceived for with- drawing the present case from the doctrines of those previously decided, especially as authorities in other States fully sustain the views here taken, although in others. Courts of the highest standing have come to different conclusions. Report of the commissioners recommitted. Teaff t). Hewitt, 1 Ohio St. 511 ; Quinby v. Manhattan Club & Paper Co., 24 N. J. Eq. 260. TESTS APPLIED. Barracks and hospitals erected upon a public common for military purposes were held not to be a part of the realty. Meigs's Appeal. Supreme Court of Pennsylvania, 1869. 62 Pa. St. 28. Agnew, J. The plaintiffs' bill evidently proceeded on the ground of title. Its purpose was to restrain the agents of the United States from removing the buildings erected on the public common of York for military barracks and hospitals. These structures being put up by the United States for military purposes, and built of their own materials, the title to the ma- terials must have been lost to the United States and vested in the plaintiffs before an injunction would be issued to restrain thpir removal. Hence the plaintiffs assume that, by the act of the United States, the buildings were annexed to the free- hold, and thus the title to the materials passed out of them, and vested in the borough of York as trustees of the title to the common. The buildings were chiefly set upon posts let into the ground, and, therefore, the argument of the plaintiffs maintains that the question of fixture or not a fixture depends, not on the character of the foundation, but always on the ques- tion whether it is let into the soil. This is the old notion of a physical attachment, which has long since been exploded in this State. On the contrary, the question of fixture or not de- pends on the nature and character of the act by which the 78 ILLUSTRATIVE CASES structure is put in place, the policy of the law connected with its purpose, and the intentions of those concerned in the act. This subject has been so fully discussed in the recent case of Hill V. Sewald, 3 P. F. Smith, 271, it is unnecessary to repeat what is there said. The true question then is, Were these structures of the gov- ernment incorporated into the realty ? We think they were not, and this is manifested by the entire character of the trans- action, and the attending circumstances. And in the first place it was not the intention of either party that they should be annexed to the freehold. Evidently the authorities of the borough of York cannot be presumed to have so intended. The grant from the proprietors of Springettsbury Manor to the burgesses and inhabitants of York of twenty acres of land was — "to be kept as an open common forever for the use of said borough, and to and for no other use, intent, or purpose whatso- ever." The borough authorities had no power to assent to such erections as permanent fixtures, and it was, therefore, clearly their duty to prevent their erection, itintended as such. Having made no objection and taken no steps to prevent it, they are entitled to the more favorable construction of their ^cts, that they knew and believed they were only temporary structures for a casual purpose. As to the United States, the emergency and all the acts and measures of the government show that these were not- "perma- nent buildings, to be occupied at all times, but were mere tem- porary structures, to be used during the continuance of the war or so long only as the necessities of the government made this location convenient for military purposes. It is very evident the United States intended no annexation to the freehold. The nature and character of the structures are also to be considered. They were not improvements made for objects connected with the soil — neither intended to give value to it nor to receive value from it. Their purpose was not different from that of the tents spread for the accommodation of the army, or its board huts used for winter quarters, the only real IN REALTY. 79 difference being that these structures were intended for greater comfort, and a longer occupancy of the location* The act is distinguishable from that of an ordinary trespasser. There was no intent to improve the ground, or to make it accessory to some business or employment. It was not an as- sertion of title in the soil, or of an intention to hold an adverse possession. Indeed, there was not a single element in the case which characterizes the act of a tort-feasor, who annexes his structure to the freehold, and is therefore presumed to intend to change the nature of his chattel and convert it iijto realty, and thereby to make a gift of it to the owner of the freehold. Neither the borough nor the United States looked upon the act in that light. The United States intended no dedication of the materials to the borough, and the borough expected none. Herein it is that in equity the same principles apply that lie at the root of an estoppel. It is not estoppel in the ordinary sense which prevents an owner from claiming his own property, because he has done that which shuts his mouth to declaring his title. These materials never were the property of the borough, and, therefore, as owners, they had no title to be estopped of. But the borough, by lying by and suffering the United States to put up the structures without objection, on a public common, where, as permanent buildings, they would be nuisances, is estopped from declaring that the United States in- tended to annex their chattels to the freehold — from asserting that they were mere tort-feasors, to be treated as presumptively dedicating their property to the public. This, however, is the pivot on which the right to an injunction turns. The plain- tiffs must convince us that in law and equity the United States have lost their title, notwithstanding neither party intended there should be a gift of the chattels. They must stand in the attitude of one entitled in equity to appropriate these structures, and of whom it must be said he has done nothing to mislead or to encourage a belief that he has assented to the act. A license to use the land of another temporarily may be inferred from circumstances. Thus, a neighbor who enters to pay a visit cannot be treated as a trespasser. So a guest who enters an inn, 80 ILLUSTRATIVE CASES or one who moors his vessel at a private wharf, to do business with the owne^. And even a permanent right to the use of structures built on the land of another with his assent, may be acquired by the expenditure of money and labor : Lefevre v. Lefevre, 4 S. & R. 241 ; Rerick v. Ke?n, 14 S. & R. 267. And it is said in Cook v. Stearns, 11 Mass. 533 : " Licenses to do a particular act do not in any degree trench on the policy of the law which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act which otherwise would he a trespass." See also notes to Rerick v. Kern, 2 Am. Lead. Cases, 514. There is nothing in the case to show express license, but the circumstances bear strongly on the silence of the plaintiffs when they should have spoken out. The United States were engaged in a gigantic war, requiring all its means and the encouragement of all good citizens to suppress the opposition to their welfare and authority. Troops were con- stantly required to be raised and disciplined. York was within the theatre of war, and needed protection, the enemy coming up to her very door. Battles were fought near by, and none more than the citizens of York needed that the government should use all the means and appliances of war to preserve their lives and property. Can it be tolerated that now, when the enemy is defeated, and war is no more, that these citizens should claim the very property the government had used- as a part of the means necessary to their protection ? If equity has a conscience, it must revolt at this return for the services thus rendered by the common government. This is an application to a Court of Equity to use the arm of the law to restrain an unlawful act, on the ground that the re- moval of these buildings is an irreparable injury. But surely this is not such a case. There is not any evidence that the United States have dedicated this property to the citizens of York, or that they have done any act which can justly forfeit their title to the property ; and it is not the province of a Court of Equity to enforce penalties and forfeitures. It is not neces- sary to invoke the power of eminent domain in this case, or IN REALTY. 81 any doctrines of necessity to override the rights of property. Equity will not interfere in such a case independently of these considerations. The pro forma decree of the Court below is reversed, and the plaintiffs' bill is dismissed at their costs. Lake Superior Ship Canal Ry. & Iron Co. v. McCann et al., 48 N. W. Rep 692. Buildings, erected by the tenant on leased premises are a part of the reality if erected with that intention. LiNAHAN V. BaRR. Supreme Court of Connecticut, 1874. 41 Conn. 471. Carpenter, J. The sole question in the first case is, whether a tenant who erected a building on leased property had a right to remove the same at the termination of his lease. The circumstances were these : The premises consisted of a store in the city of Bridgeport. The store burned down, leav- ing a vacant lot. The lease had then about two years to run. The landlord offered the tenant fifty dollars to surrender his lease, but he declined, saying that he was about to erect another building on the land, that he knew that it would be- long to the landlord, that he did not intend to remove the same at the expiration of his lease, and that the rent which he should receive during the term would pay the cost of con- struction. The building was one story high, built of brick, with glass front, and stood on the foundation walls of the burned building, except the rear, which was an unbroken brick wall from the cellar bottom. The respondent claims under the lessee, and insists that the building was a trade fixture which might lawfully be removed by the tenant. A question is made whether the declarations of the tenant were admissible in evidence. We entertain no doubt on that question. They tend directly to show the intention of the party in erecting the building ; and intention in these cases is 82 ILLUSTRATIVE CASES alwajfs a material inquiry. Had the parties agreed that the tenant might build and remove the building, no one would doubt that that fact might be shown for the purpose of prov- ing that it was the personal property of the builder. The in- tention and understanding of the parties at the time are nec- essarily involved in the inquiry. In this case it is apparent that both parties intended that the building, at the termination of the lease, should belong to the owner of the land. This is evident, in the first place, from the materials used, and the manner of construction. It was attached to the freehold in the same manner that build- ings ordinarily are which are designed to be permanent. This, although not conclusive, is an important consideration. In the next place, the interview between the parties at the tim^ very clearly shows that neither party expected or intended that the building should be removed. In view of all the cir- cumstances we think the Court below was clearly right in holding that the building was a part of the realty : Ombony V. Jones, 19 N. Y. 324; Shepard v. Spalding, 4 Met. 416; Curtis V. Hoyt, 19 Conn. 154 ; Landon v. Piatt, 34 Conn. 517 ; Oapen v. Peckham, 35 Conn. 88. ^, r-v ■-■ ^ "^ The second case was a summary process to recover the pos- session of the leased premises. The only question before the Justice seems to have been whether the plaintiff in error, who claimed the building by purchase from the original lessee, was the lessee of the complainant. The Court found that he was, and rendered judgment against him. We fail to discover any question of law in the case which this Court can review. The defendant claimed that the occupation of the premises while he was claiming the ownership of the building and while the injunction against his removal of it was in force, was not an acceptance of a proposition by the plaintiff to lease the premises to him at a certain rent named. The Justice found that he had become a lessee of the premises — ^that is, that his conduct was such an acceptance. This was a question of fact. But even if it can be regarded IN REALTY. 83 as a mixed question of law and fact, we cannot see that the Justice violated any principle of law in deciding as he did. There is no error in either judgment. The intention of the party at the time he erects the buildirxg govr ems, and not a subsequent intention. DooLEY V. Crist. Supreme Court of Illinois, 1861. 25 111. 551. Walker, J. Appellee claims the building in controversy under his purchase, at the constable's sale, on the execution against Whitelock and Philips. On the contrary, appellant claims it as a part of the real estate of which he was the owner. This then involves the inquiry whether it was real or personal property. It is a fundamental rule that real estate embraces lands, tenements, and hereditaments. All improve- ments or additions of a permanent nature and adapted to its use and better enjoyment, placed upon land, are regarded as forming a part of the land. To this rule there are the excep- tions of trade fixtures, which cannot have any application to this case. By express agreement between the parties, erec- tions placed upon the land by the tenant during the term may be removed as personal property ; or if the owner of the soil were by deed to sell a tenement erected upon the land, it would no doubt become dissevered, and converted from real to personal property, But as a general rule, when a building is erected on land, the presumption is that it is a part of the real estate and not personal property, and to take it out of the ope- ration of the rule, a state of facts must be shown which rebuts the presumption. Even when a stranger constructs a building upon the land of another, without his consent, it becomes a part of the land, and he would become a trespasser by removing it. This record affords no evidence from which it can be inferred that the appellant, who was the owner of the soil upon which this building was erected, ever consented that it might be 84 ILLUSTRATIVE CASES removed. He had contracted to sell the land to Mrs. Philipsf, but that agreement was afterward rescinded, and when the contract was abandoned by the parties, appellant became unde- niably the owner of the land and its improvements, but in law and equity, as no reservation seems to have been made of the house or other improvements. When Whitelock agreed with Philips for the purchase of the acre of land upon which the house was built, and which was embraced in Mrs. Philips' pur- chase, there seems to have been no reservation or agreement for the removal of the house in any event. Whitelock gave an acre of the land, purchased of appellant, in exchange for the acre upon which the house was erected, and they each entered into possession of the portion thus received in exchange, and so continued until their several contracts were rescinded or aban- doned, neither having paid for the land purchased of appellant. This building was a part of the improvement connected with Whitelock's purchase, and it must have been made with the design of permanently remaining on the land, and not for any temporary purpose. If the intention of Whitelock was to render the improvement permanent when erected, there can be no question that it be- came a part of the freehold, and no subsequent change of inten- tion changed its character to that of personal property, render- ing it liable to levy and sale on an execution from a justice of the peace. The intention at the time to render it a part of the realty fixed its character beyond all dispute, and that char- acter could not be changed by anything short of its severance by removal or by an executed agreement for that purpose. The mere change of the intention of the owner cannot have that effect. This principle was announced by the first of appellant's instructions, in the series which the Court refused to give, and it should have been given. The Court below having erred in refusing to give that instruction, the judgment below must be reversed, and the cause remanded. Judgment reversed. IN REALTY. 85 The intention to reduce the chattel to realty should positively appear. Hill v. Wentworth. Supreme Court of Vermont, 1856. 28 Vt. 428. Bennett, J. This is a case of very considerable practical importance, and we have endeavored to give it the attention which its importance demands. The charge assumes that, if the machinery in the mill was necessary and usual for the purpose of manufacturing paper, and designed to be and re- main in the mill permanently, it became a part of the realty, however slightly it may have been attached to the freehold. There are, no doubt, cases in the books which will fully war- rant the charge of the Court, and of that character is the case of Farrar ■«. Stackpole, 6 Greenl. 157, to which we have been referred (and which seems to be an extreme case), while others take an opposite view, and hold that the annexation must be substantial, and such that the chattel cannot be severed with- out substantial injury to the freehold, beyond what shall re- sult from the abstraction of the thing removed. The first in- quiry should be, what has been the tendency of our own de- cisions in relation to the matter ? In Wetherby v. Foster, 5 Vt. 136, it was held that potash kettles, set in brick arches, in the usual manner, with chim- neys to the arches, and used in manufacturing purposes, still remained personal property. The Court said, p. 142, if the kettles were fastened to the freehold at all, it was temporary merely, and the injury to the brick-work, in taking them out, was too trifling to designate them real estate while there. In To- bias V. Francis, 3 Vt. 425, the question arose between the mort- gagee and a creditor of the mortgagor, and it was held that carding machines, in a woolen factory, and connected by a band with other wheels in motion, by which they were pro- pelled in the usual way, and which remained stationary by means of their own weight, were still personal property, and, as such, might be attached and taken away. In Sturgis v. Warren, 11 Vt. 433, the question also arose be- 86 ILLUSTRATIVE CASES tween the creditors of the mortgagors and the assignee of the mortgagee, and the carding machines were affixed to the factory building in the usual manner, some with nails, some with spikes and screws, and some with cleats, and yet, upon the authority of the case of Tobias v. Francis, they were held to be personal property. In Cross v. Marston, 17 Vt. 534, the case of drawers, and the sash case were placed in a building which was fitting up for a book store. The case of drawers was nailed to the wall, and open shelves were placed in the space above. The sash of the show-case was used to cover an open book-case, which was permanently fastened to the wall of the building — ^the sash sliding in a place before the book- case, and being fastened in by strips of boards nailed above and below. The question arose between vendor and vendee, and the case was made to turn on the question whether the chattels had, by the manner of their annexation to the freehold, lost their personal iderdity as chattels, and it was held that they had not, the Court applying, as a test, the fact that the articles could have been taken out of the building without injury to themselves, or the building, which was assumed both by the counsel and the Court, although, from the report of the case, I do not see that it was a fact distinctly found in the bill of ex- ceptions. From the cases already decided in this State, upon a subject which, from its very nature, is perplexing, and ren- dered more so by the conflicting views of different Courts, it is quite evident our Courts have assumed the ground that a chattel is not to lose its personal identity, as such, unless it has been substantially annexed to the freehold, in a manner which would not permit it to be separated from it, without material injury to itself or to the freehold. We apprehend there is no sufficient reason why we should, at the present day, recede from the ground already taken by our Courts. It is certainly sustained by many well-considered cases. In Swift V. Thompson, 9 Conn. 63, the spinning frames in a cotton factory stood upon the floor, apd were kept in their place by means of cleats nailed to the floor around them, and there was other machinery, to the posts of which iron plates IN REALTY. 87 were attached, through which wood screws passed, fastening them into the floor, but by unscrewing them the machinery could be removed without injury to it or the building, and it was held that the whole machinery remained personal prop- erty. Daggett, J., says it is material to consider that the machinery was thus attached to the building to render it stable, and that the criterion established by the rules of the common l^w is, could this property be removed without injury to the free- hold? See, also, Taffe v. Warwick, 3 Blackford, 111. The New York cases are very full on this point : Cresson v. Stout, 17 Johnson, 116 ; "Walker v. Sherman, 20 Wend. 636 ; Farrar V. Chauffetete, 5 Denio, 527, and Vanderpool v. Van Allen, 10 Barbour, 157. So in a recent case in Ohio, Teafft v. Hewett el al, 1 Ohio K S. 5-11, where the subject was examined at great length, and with ability, it was held that the machinery in a woolen factory, connected with the motive power of the steam engine by bands and straps, and only attached to the building by cleats or other means to confine it to its proper place for use, and could be removed without injury, was but chattel property. The case of Gale v. Ward, 14 Mass. 362, in its facts, is much like the case of Tobias v. Francis, in our own reports. In that case, Parkee,, C. J., says, though in some sense attached to the freehold, yet they (the machiijes) could easily be disconnected, and used in buildings erected for similar purposes. Upon the subject of fixtures, in the English law, the case of Elwes V. Ma we, 3 East, 38, and reprinted in Smith's Leading Cases, may well be considered the leading case. In that case, and in the notes to it by Mr. Smith, and the American editor, most of the law on that subject is collected. In a case decided in the Court of Exchequer, in 1851, Hella- well V. Eastwood, 6 Welsby, Hurlstone & Gordon, 295, it was held that machinery, consisting of certain cotton spinning- machines, some of which were fixed by screws to the wooden floor, and some by screws which had been sunk into holes in the stone flooring, and secured by molten lead poured into them, were still personal property. B. Park said the only question was, whether the machines, when fixed, were a parcel 88 ILLUSTRATIVE CASES of the freehold, and this was a question of fact depending on the circumstances of each case, and principally, on the two considera- tions, first, the mode of annexation to the soil or fabric of the house, and the extent to which it was united to them, whether it could be easily removed without injury to itself or the building ; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, or merely for a temporary purpose, or the more coip- plete enjoyment and use of it as a chattel. He added, we cannot doubt that the machines never became a part of the freehold. They were attached slightly, so as to be capable of removal, without the least injury to the fabric of the building, or to themselves ; and the object and purpose of the annexation was not to improve the inheritance, but merely to render the machines steadier and more capable of convenient use, as chattels. In that case, it is true, the question arose be- tween landlord and tenant, and in such a case, it is said in the English law, the greatest • indulgence is shown to the tenant, where the annexations are made for the purposes of trade or manufactures. No doubt in England, in relation to fixtures, different rules have been held to prevail ; and between heir and executor, a strict rule has been adopted, and the same rule seems to have prevailed between vendor and vendee, and between mortgagor and mortgagee ; and the English cases show that there is no relaxation of the rule, as applied in these latter cases, even between landlord and tenant, where the erections are made solely for the purposes of agriculture, although beneficial and important in improving the occupancy of the estate. We apprehend that much of the confusion in the au- thorities upon the subject of fixtures, may have had its origin in the fact that different rules have been attempted to be ap- plied to different relations, and these diflferent relations have sometimes been lost sight of. It is said by Collamer, J., in Sturgis v. Warren, 11 Vt., that " in this State, and especially under our attachment law, it is difficult to recognize any such distinction." In Dubois v. Shelley et al., 10 Barb. 496, it was held the IN REALTY. 89 same rule should be applied, as to fixtures, whether the erec- tions were for agriculture and other purposes, or for the pur- poses of trade, and between landlord and tenant. In Van Ness v. Pacard, 2 Peter's U. S. R. 145, it is strongly intimated that, in this country, there should be no different rule applied, whether the erections were made for the purposes ■ of trade and manufactures, or purely for agricultural purposes. We think the rule in this State should be that the various articles of machinery belonging to a manufactory are, in no respect real estate, exceptiug as they are a part of the free- hold, or substantially attached to it, and that it is not suffi- cient to make them a part of the freehold if they are attached to the building for the purpose, and in the manner adapted to keep them steady, and that their use may be more beneficial as chattels, and in such a way that will admit of their removal without any material injury to the freehold, or t*the chattels. Neither is it enough to make them real estate that they are essential to the occupation of the building for the business carried on in it. In the construction of a building, many things, which in themselves are chattels, as doors, window- blinds, shutters, etc., become a part of the building, and, in such cases, the manner of annexation is of no particular im- portance. But to make the test, whether fixture or no fixture, to be found in the relation which the chattel bears to the use of the freehold, is, to us, unwise, and against well-considered cases. The rule requiring actual annexation is not affected by those cases where a constructive annexation has been held suffi- cient. Those cases may be regarded as exceptions to the general rule, or else as cases where the things were mere inci- dents to the freehold, and became a part of it, and passed with it, upon a principle different from that of its being a fixture. In determining the character of what the plaintiff claims to he fixtures, or a part of the realty, we must not only have refer- ence to the manner and extent of the annexation, but also to the object and purpose of it. Whether the articles in question were personal property, or fixtures, should be determinable, and plainly appear, from an inspection of the property itself, tak- ^0 ILLUSTRATIVE CASES ing into consideration their nature, the mode and extent of their annexation, and their purpose and object, from which the inten- tion would be indicated. * To change the nature and legal qualities of a chattel into a fixture, requires a positive act on the part of the person mak- ing the annexation, and, his intention so to do should posi- tively appear, and, if this be left in doubt, the article should be held still to be personal property. We see no reason why the case of the potash kettles, in 5 Vt., should not govern this, as to the iron boiler. It was set in a brick-work, resting upon a stone foundation placed upon the ground, and the floor of the building was simply laid up to it, and it was in no other way attached to the building. So in Hunt v. Mulanphy, 1 Missouri, 508, a kettle and boilers put up in a tannery, with brick and mortar, was held not to be a fixture. Se^ also, Reynolds v. Shuler, 5 Cowen, 323, and Ray- mond V. White, 7 Cowen, 319, which was the case of a heater used for applying heat to tanners' bark, in vats and leaches. We think the four engines, used for grinding rags into pulp, cannot be regarded as a part of the paper-mill, or as annexed to it, so as to become a part of the realty. These were fixed in large oval tubs, in the usual way, the tubs standing on timbers, and the floor of the building scribed up to them, and the en- gines were carried and operated by means of a band connect- ing them with the iron shafting from which was communica- ted to the engines their motive power. There can be no ground to claim that the tubs in which they stood were a part of the realty, and the band was used to give the engines motion, and not for fastening them to the freehold. It could be slipped off, and put on, to give them motion, or arrest it, at the will of the operator, and they could be removed without injury to the building, or the engines. The case of Winslow v. Mer- chants' Insurance Company, 4 Met. 306, where it was held that a steam engine and boilers, and the machines for working iron, upon which they operated, were fixtures, and a part of the realty, is expressly put, so far as relates to the machines for working iron, upon the manner in which they were fitted and IN REALTY. 91 •adapted to the mill. The words " fitted and adapted to the mill " seem to imply something more than being set down upon the floor, and fastened for convenient use, but rather a peculiar adaptation and fitting to that particular location and mill. The building was a machine shop, and the steam engine fur- nished the motive power which moved the whole machinery in the several stories of the building, by means of connecting bands or otherwise. In regard to the case of Gale v. Ward, 14 Mass., C. J. Shaw, in 4 Metcalf, observed, "we do not think that an authority opposed to this opinion, because it is manifest that the Court, in that case, regarded the carding machines, though ponderous and bulky, as essentially per- sonal property, which might have been attached and removed as the personal property of the owner, even though there had been no mortgage, and they had been erected by the owner in his own mill, for his own use." Besides, so far as the steam engine is concerned, it may be said of the case Tn 4 Metcalf, it furnished the motive power for the whole building, and may be regarded as an appurtenant to the machine shop, as much so as the water power of a grist-mill, or a paper-mill. The paper presses were kept in their places by means of cleats at the top, nailed to the floor, and at the bottom by iron screws, and by taking off the iron nuts they could be removed with- out injuring or disturbing the building. In regard to the iron frame in which the calendar rolls stood, it seems that was simply kept in place by means of screws at the toes of the frame, connecting it with timbers upon which it stood, and the timbers made fast to the floor by means of spikes. This could be easily removed by unscrew- ing the toes of the frame. The rag-cutter stood in a wooden frame, standing on the floor, and was not otherwise conflned. The trimming press was set also in a frame, and this only screwed to the floor. The machine for making paper was kept in place by means of cleats around it, nailed to the floor, and not otherwise fastened to the building. If we regard the iron boiler as per- sonal property, most clearly the iron pipes connected with it. 92 ILLUSTRATIVE CASES only by screws and bolts, which the case says could be easily taken off, should be regarded in the same light. The iron shafting put up in the building for the purpose of turning and putting in motion the machinery, by means of hangers of iron bolted to the beams and sills of the building, we are disposed to regard as a constituent part of the mill. The shafting was necessary to communicate the motive power to the machinery, and should be regarded as part of the mill, as much as a water-wheel, by which a water-power is called into existence. Though the paper-mill was placed upon the premises sub- sequent to the execution of the mortgage, yet it would inure to the benefit of the mortgagee, and also carry with it all that can be regarded as incident to, or a component part of the mill, but the machinery and articles which the mortgagors placed in the building, to be used by them in their business as manufacturers of paper, and not permanently attached to the building or freehold in such a manner that they could not well be removed without material injury to the chattel or free- hold, did not lose their personal identity as chattels, and be- come a part of the realty. This, we think, has long been the views of our Courts upon this subject. The result will be that, so far as the irons in question either constituted the whole, or were a part of the machinery, of such a description and character, they remained the personal prop- erty of the mortgagors, after the fire, the same as the machin- ery was before the fire, and the plaintiff's right of recovery should have been limited at least to the value of the iron which was used in construction of the building, such as nails, spikes, etc., and the iron shafting used for the purpose of putting and keeping the machinery in motion, and such iron, if any, as was permanently fixed or fastened to the building so as to be annexed to and become a part of the realty, according to the foregoing views. Whether it was of any importance that the plaintiff should have taken the actual possession of these irons, after the fire, so as to perfect and keep good his title, as against the creditors IN REALTY. 93 of the mortgagors, is a point not made in the case, and one which we have not considered, and much less decided. Judgment reversed and cause remanded. The use of the thing annexed in some cases strongly indicates the intention of the party making the annexation. FiKST Congregational Society of Dubuque v. Fleming. Supreme Court of Iowa, 1861. 11 Iowa, 533. Wright, J. When a party has, by his own tortious act, severed an article from the realty, which but for such sever- ance would be real property, replevin will lie for its recovery. Such act, however, will not have the effect of making the property liable to execution, if it was before exempt. The only question in this case, then, is whether the property in controversy was, at the time of the seizure by defendant, ex- empt from execution. And it is admitted that it was so exempt if it was so attached as to constitute and become a part of the realty. The general rule is as stated by appellant and found in Am. & Fer. on Fixt. 3, " that to constitute a fixture in its strict sense there must be a substantial and permanent annexation to the freehold itself, or to something connected with the free- hold." And exceptions contravening the spirit and policy of this rule should not be favored. The character of the article — that is, whether it is a fixture or personal property— must, how- ever, very often be determined from a knowledge of the pur- pose designed in its erection or connection. As is said in Snedeker v. Warring, 12 N. Y. 170, the connection of the article " with the land is looked at principally for the purpose of as- certaining whether the intent was that it should retain its original chattel character, or whether it was designed to make it a permanent accession to the land." Thus while a bell, be- longing to a religious society, if left upon the ground or placed in the building, without use, might in no sense be so far of the 94 ILLUSTRATIVE CASES realty as to be exempt from execution as a part thereof, yet if placed in a frame on the church lot, and used, it would be ex- empt, though the posts of the frame were not let into the ground. The placing it in this position and this use indi- cate unmistakably the intention of the society to affix it to the realty, to render it a permanent accession to the land ; to appropriate to the purpose designed, and to divest it of its original chattel character. And though it be admitted that the mere intent to thus convert it without some act would not be sufficient, yet the act and use indicate the intention, and have the effect of changing the character. In our opinion the verdict was warranted by the testimony, and there was no error in overruhng the motion for a new trial. ANNEXATION. Actual and permanent annexation of the thing was formerly re- garded essential, but in many cases not so now. Strickland v. Parker. Supreme Judicial Court of Maine, 1866. 54 Me. 263. Kent, J. The plaintiff 's title to the property which is the subject of this action of trover depends upon a levy on real estate made by them. At the time of the levy, there was on the land a marine railway, consisting of iron and wooden rails and sleepers, endless chain, gear, wheels and ship cradle, all being a part of the railway, forming its entire superstruc- ture. The railway was made in the usual mode in constructing such works, by sleepers laid on the ground ; the chain and cradle forming a necessary part of the railway. The first question is whether the railway passed by the levy, or whether it was personal property so disconnected from the realty that it could only be seized and sold as a personal chattel. The same principles of construction apply to a levy as to a deed) in determining what passes by the language used: Waterhouse v. Gibson, 4 Greenl. 230 ; Winslow v. Mer. Ins. IN REALTY. 95 Co., 1. Mass. 316. This is also the rule in New York and Pennsylvania. The same rule applies to fixtures under a levy as under a deed, atid an article may constitute a part of the realty, as between grantor and grantee, when it would not, under similar circumstances, be so treated as between landlord and tenant : Powell et ux. v. Munson M. Co., 3 Mason, 359 ; Parsons v. Copeland, 38 Me. 537. The levy in this case refers to the railway as part of the real estate appraised, and the debtor had its value allowed to him. Did it pass by the levy ? It is not to be disguised that there is an almost bewildering difference and uncertainty in the various authorities, English and American, on this subject of fixtures and on the question of what passes by a transfer of the realty. One thing is quite clear in the midst of the darkness ; and that is that no general rule, applicable to all cases, and to all relations of the parties,, can be extracted from the authorities. There has been a manifest tendency to divide this class of cases, and to apply very difierent rules, according to the rela- tions of parties to each other. A rule which is prescribed for the case of a landlord and tenant is rejected as between grantor and grantee. And this distinction is observed in the case between mortgagor and mortgagee, and again modified as between the heir and the executor. The fact of actual and permanent annexation of the thing, personal in its nature, to the freehold, was formerly regarded as essential. But this has been found to be unsatisfactory and not fitted to meet the requirements of the law, when fixing a rule of general application, and has been abandoned as an abso- lute test : Fay v. Muzzy, 13 Gray, 56 ; Winslow v. M. Ins. Co., 4 Met. 314. Where there are no qualifications arising from the relation of the parties to each other, the question whether any erection is a fixture, and passes by deed or levy, must be determined upon the general doctrines of the law applied to the particu- lar facts. The case of Parsons v. Copeland, 38 Me. 537, con- tains a full discussion of the general subject, and settles the 96 ILLUSTRATIVE CASES law in this State so far as its doctrines are applicable to the case before us. The marine railway, which is the subject of this suit, was laid on the earth, and was in fact affixed thereto. Indeed, the soil made an important and indispensable portion of the erection. The structure did not merely rest upon the earth, as a basis and support to a building or superstructure, which was not otherwise dependent on or indebted to the earth except as it upheld it in its place. The road-bed, so far as one was required, is made of and by the earth. Independent of the solid earth the superstructure, in itself alone, had no strength or substance required for the work to be performed. A railway consists as truly of its earth bed as of its rails and sleepers. The soil is thus a part of the whole, and not merely a resting place for a foundation on which are reared works perfect in themselves, and requiring nothing of the earth in, their workings — as a factory with its machinery and wheels and belts. It is regarded as one of the indications that the thing in question is a fixture, that it appears, from the whole case, that such was the intention of the owners of the soil who erected it. This point is stated in the case of Parsons v. Copeland, and is thus explained and enforced in the case of Snedeker v. "Warring (a recent and leading case), 12 N. Y. 170 : "A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection. Its destination, the intention of the person making the erection, often exercises a controlling influ- ence, and its connection with the land is looked at principally for the purpose of ascertaining whether that intent was that the thing in question should retain its original chattel char- acter, or whether it was designed to make it a permanent accession to the land." The facts agreed to in this case, we think, clearly indicate an intention to annex the railway to the soil, and to change whatever of a chattel nature belonged to any portion, and to make it a permanent accession to the land so long as it existed. It is the permanent and habitual annexation, and not the IN REALTY. 97 manner of fastening, that determines when personal property- becomes a part of the realty : Luff kin v. Griffiths, 35 Barb. 58 ; Wall V. Hurd, 4 Gray, 271. The Supreme Court in New York had before them the question of what constitutes fixtures, as applied to a railroad, in the case of the Farmers' Loan & T. Co. v: Hendrickson, 25 Barb. 488. The exact point in controversy, in that case, was whether the locomotives and cars and the rolling stock were real or personal estate, and whether they would pass by a deed executed and recorded as a deed of real estate. The Court held that they did pass as fixtures, or real estate, by such deed. Whatever doubts we might entertain on this point, we cannot hesitate in assenting to the first proposition laid down by the Court, that " the road-bed, the rails fastened to them, and the buildings at the depots, are clearly real prop- erty." Indeed, no one in that case questioned this. . If we look at the numerous cases to be found in the reports we shall find in the instances in which the question of fixtures has been raised, that the principles on which they were de- cided to be such, and the nature of those erections confirm the view we have taken — that this marine railway was, with its necessary appendages, a fixture and passed by the levy : Blethen v. Towle, 40 Me. 310, a cistern above ground, on blocks ; Bliss V.Whitney, 9 Allen, 114, platform scales ; Bishop V. Bishop, 11 N. Y. 123, hoop poles ; Snedeker v. Warring, 12 N. Y. 170, before cited, a statue of Washington and sun-dial. In all these cases they were held to be fixtures. Fixtures annexed by the owner of the land to real estate pass by sale or levy as real estate : Bliss v. Whitney, 9 Allen, 114. And so of necessary appendages, fitted and prepared to be used with real estate : Farrar v. Stackpole, 6 Greenl. 154 ; 1 Greenl. Cruise, 41, § 7. This railway and appendages passed to the plaintiffs by levy as real estate. They now bring this action of trover for its conversion as personal property. It is objected that, if it passed as real estate, this action cannot be sustained. The levy was on twenty-three-sixtieths, in common. The 7 98 ILLUSTKATIVE CASES plaintiffs then became tenants in common with Gushing and others, who owned the remainder. Gushing, who had the general oversight of the business, sold the whole railway to the defendant, who thereupon took the whole up and removed it to another town, across the river, and there made a new railway out of the materials, on his own land. We can find no authority in Gushing to sell the whole. He was at best but a co-tenant, having a general oversight, but with- out any authority, express or implied, to sell anything more than his own undivided interest. By the purchase, if of any validity, the defendant only became a tenant in common of an undivided portion. If property before it was detached was a fixture, the person having title to the realty can sue for the recovery of the thing itself, after it had been detached as personal property : Luff- kin V. Griffiths, 35 Barb. 62. Riley v. Boston Water Power Go., 11 Gush. 11, which was an action for the value of certain, loads of gravel, taken wrongfully from the plaintiff's land and sold by the wrong-doer to the defendants, who bought in good faith. The action was sustained : Phillips v. Brown, 7 Gray, 26. The common case of trees severed from the freehold and converted, which are always regarded as personal property, is another illustration of the general rule. But it is further contended that there has been no such interference with the property as will enable a co-tenant to maintain trover. It is urged that here has been no destruc- tion of the common property, and the counsel for the defend- ant cites and relies upon the conclusion, drawn from the authority (as he understands it) in 2 Greenl. on Ev. 699 — " that, to maintain the action, there must be either a destruc- tion of the common property, or something equivalent to it, and that where the thing substantially exists, within the reach of the party, the tenancy in con;mon remains unchanged." Admitting that this is not too strongly stated, we do not understand that by destruction is intended a physical destruc- tion by burning or other means, so that nothing of the ma- terials remains. But it means that the thing owned in common IN REALTY. 99 is no longer that thing, but something else, and cannot be used or possessed by the parties as before'. The rule, however, as stated, has other qualifications. Anything equivalent to destruction is equally effective. And further, if the thing is so changed that it is no longer the same thing, or if removed, and put into such a condition that the co-owner cannot avail himself of his right, but the same is out " of his reach," the thing, as to him, is destroyed, within the meaning of the rule. In this case the whole structure was taken up and removed to another town, and the materials used to construct a new railway on land of the defendant. The plaintiffs had no property in this new railway. They had no interest in the land and no right to enter upon it. The defendant assumed the entire right and ownership, and this was what he bought. The thing no longer existed so as to be within the reach of the party. The plaintiffs' rights were as effectually destroyed as if the whole materials had been burned. We have no doubt that these admitted facts make out a dear case of conversion by a co-tenant, within the strictest rules that have ever been promulgated. It has been decided in this State that a co-tenant can main- tain trover against another co-tenant, who has claimed to own and assumed to sell the whole of the common property, and that these facts are sufficient evidence of conversion (33 Me. 347), or, when he has by his acts caused the destruction of it : lb. To the same point. Weld v. Owen, 21 Pick. 559 ; Boo- bier v. Boobier, 39 Me. 409 ; Bryant v. Clifford, 13 Met. 138. The rights of the parties in this suit cannot be affected by the claim set up by Mr. Gushing to retain the purchase-money paid to him, on account of his services and disbursements whilst acting as general superintendent. Those matters must be adjusted between the owners. This defendant has nothing to do with them, and he must be held Uable for his act of con- version. The damages, it is agreed, are to be assessed at twenty-three- aixtieths of $750 and interest. Defendant defaulted. 100 ILLUSTRATIVE CASES Annexation by the weight of the chattel may be sufficient. Snedeker v. Wakeing. Court of Appeals, New York, 1854. 12 N. Y. 170. Parkek, J. The facts in this case are undisputed, and it ia a question of law whether the statue and sun-dial were real or personal property. The plaintiffs claim they are personal property, having purchased them as such under an execution against Thorn. The defendant claims they are real property, having bought the farm on which they were erected at a fore- closure sale under a mortgage, executed by Thorn before the erection of the statue and sun-dial, and also as mortgagee in possession of another mortgage, executed by Thom after their erection. The claim of the defendant under the mortgage sale is not impaired by the fact that the property in controversy was put on the place after the execution of the mortgage : Corliss V. Van Sagin, 29 Me. 115 ; Winslow v. Merchants' Ins. Co., 4 Mete. 306. Permanent erections and other improvements made by the mortgagor on the land mortgaged become a part of the realty, and are covered by the mortgage. In deciding whether the property in controversy was real or personal, it is not to be considered as if it were a question arising between landlord and tenant, but it is governed by the rules applicable between grantor and grantee. The doubt thrown upon this point by the case of Taylor v. Townsend, 8 Mass. 411, is entirely removed by the later authorities, which hold that, as to fixtures, the same rule prevails between mort- gagor and mortgagee as between grantor and grantee : 15 Mass. 159 ; 4 Mete. 306 ; 3 Edw. Ch. R. 246 ; 1 Hilhard on Mortgages, 294, note f, and cases there cited ; and see Bishop v. Bishop, 11 N. Y. 123, 126. Governed, then, by the rule prevailing between grantor and grantee, if the statue and dial were fixtures, actual or con- structive, they passed to the defendant as part of the realty. No case has been found in either the English or American Courts deciding in what cases statuary placed in a house or in IN REALTY. 101 grounds shall be deemed real and in what cases personal prop- erty. This question must, therefore, be determined upon principle. All will agree that statuary exposed for sale in a workshop, or wherever it may be before it shall be perma- nently placed, is personal property ;* nor will it be controverted that where statuary is placed upon a building, or so connected with it as to be considered part of it, it will be deemed real property, and pass with a deed of the land. But the doubt in this case arises from the peculiar position and character of this statue, it being placed in a court-yard before the house, on a base erected on an artificial mound raised for the purpose of supporting it. The statue was not fastened to the base by either clamps or cement, but it rested as firmly on it by its own weight, which was three or four tons, as if otherwise afiixed to it. The' base was of masonry, the seams being pointed with cement, though the stones were not laid in either cement or mortar, and the mound was an artificial and permanent erec- tion, raised some two or three feet above the surrounding land, with a substantial stone foundation. If the statue had been actually affixed to the base by cement or clamps, or in any other manner, it would be conceded to be a fixture, and to belong to the realty. But as it was, it could have been removed without fracture to the base on which it rested. But is that circumstance controlling ? A building of wood, weighing even less than this statue, but resting on a substantial foundation of masonry, would have belonged to the realty. A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend much upon the object of its erection. Its destination, the in- tention of the person making the erection, often exercise a con- trolling influence, and its connection with the land is looked at principally for the purpose of ascertaining whether that in- tent was that the thing in question should retain its original chattel character, or whether it was designed to make it a per- manent accession to the lands. By .the civil law, columns, figures, and statues, used to spout water at fountains, were regarded as immovable, or real : Pan- 102 ILLUSTRATIVE CASES dects, lib. 19, tit. 1, § 17, vol. 7, by Pothier, 107 ; though it waa inferred that statues resting on a base of masonry were not immovable, because they were there, not as part of the con- struction, but as ornaments : Corp. Juris Civ., by Kreigel, lib. 19, tit. 1, § 17 ; Poth. Pand.* 109 ; Burrill's Law Die, "Affixus." But Labeo held the rule to be " ea quae, perpetui usus causa in sedifidis sunt, sedificii esse ; quse vero adprsssens, non esse sedificii ;" thus making the kind of property depend upon the question whether it was designed by the proprietor to be permanent or temporary, or, as it was generally called by civilians, " its des- tination:" Corp. Jur. Civ., by Kreigel, lib. 19, tit. 1, § 17. And Pothier says that when, in the construction of a large vestibule or hall niches are made, the statues attached (" at- tachees ") to those niches make part of the house, for they are placed there ad integrandam domum. Thej serve to complete that part of the house. Indeed, the niches being made only to receive the statues, there will fail to be anything in the vesti- bule without the statues ; and, he says, it is of such statues that we must understand what Papimanus says : " Sigilla et statuse affixes, instrumento domus non continentur, sed domus portio minJt : Pothier de Communaut6, § 56. By the French law, statues placed in a niche made expressly to receive them, though they could be removed without frac- ture or deterioration, are immovable, or part of the realty: Code Nap., § 525. But statues standing on pedestals in houses, court-yards, and gardens retain their character of " movable " or personal : 3 Touillier, Droit Civil de France, 12. This has reference to statues only which do not stand on a substantial and permanent , base or separate pedestal made expressly for them. For when a statue is placed on a pedestal or base of masonry constructed expressly for it, it is governed by the same rule as when placed in a niche made expressly to receive it, and is immovable : 2 Repertoire G4n6rale, Journal du Palais, by Ledru RoUin, 518, § 139. The statue in such case is re- garded as making part of the same thing with the permanent base upon which it rests. The reasons for the French law upon this subject are stated by the same author in the same work, IN REALTY. 103 page 517, § 129, where the rule is laid down with regard to such ornaments as mirrors, pictures, and statues, that the law will presume the proprietor intended them as immovable, when they cannot be taken away without fracture or deterioration, or leaving a gap or vacancy. A statue is regarded as integral with the permanent base upon which it rests, and which was erected expressly fbr it, when the removal of the statue will offend the eye by presenting before it a distasteful gap (" vide choquant"), a foundation and base no longer appropriate or useful : lb., § 139. Things immovable by destination are said to be those objects movable in their nature, which, without being actually held to the ground, are destined to remain there perpetually attached for use, improvement, or ornament : 2 Ledru EoUin, Repertoire G6n6rale, 514, § 30. I think the French law, as applicable to statuary, is in ac- cordance with reason and justice. It effectuates the intention of the proprietor. No evidence could be received more satis- factory of the intent of the proprietor to make a statue a part of his realty than the fact of his having prepared a niche or erected a permanent base of masonry expressly to receive it ; and to remove a statue from its place, under such circumstances, would produce as great an injury and do as much violence to ' the freehold, by leaving an unseemly and uncovered base, as it would have done if torn rudely from a fastening by which it had been connected with the land. The mound and base in this case, though designed in connection with the statue as an ornament to the grounds, would, when deprived of the statue, become a most objectionable deformity. There are circumstances in this case, not necessary under the French law, to indicate the intention to make the statue a per- manent erection, but greatly strengthening the presumption of such intent. The base was made of red sandstone, the same material as the statue, giving to both the statue and base the appearance of being but a single block, and both were also of the same material as the house. The" statue was thus pecu- liarly fitted as an ornament for the grounds in front of that' particular house. It was also of colossal size, and was not 104 ILLUSTRATIVE CASES adapted to any other destination than a permanent ornament to the realty. The design and location of the statue were in every respect appropriate, in good taste, and in harmony with the surrounding objects and circumstances. I lay entirely Out of view in this case the fact that Thorn testified that he intended to sell the statue when an opportunity should offer. His secret intention in that respect can have no legitimate bearing on the question. He clearly intended to make use of the statue to ornament his grounds, when he erected for it a permanent mound and base ; and a purchaser had a right so to infer and to be governed by the manifest and unmistakable evidences of intention. It was decided by the Court of Cassation in France, in Hornelle v. Enregistr, 2 Ledru Rollin, Journal du Palais, Repertoire, etc., 214, that the desti- nation which gives to movable olyects an immovable character results from facts and circumstances determined by the law itself, and could neither be established or taken away by the simple declarations of the proprietor, whether oral or written. There is as much reason in this rule as in that of the common law, which deems every person to have intended the natural consequences of his own acts. There is no good reason for calling the statue personal be^ cause it was erected for ornament only, if it was clearly de- signed to be permanent. If Thom had erected a bower or summer-house of wicker-work, and had placed it on a perma- nent foundation in an appropriate place in front of his house, no one would doubt it belonged to the realty ; and I think this statue as clearly belongs to the realty as a statue would, placed on the house, or as one of two statues placed on the gate-posts at the entrance to the grounds. An ornamental monument in a cemetery is none the less real property because it is attached by its own weight alone to the foundation designed to give it perpetual support. It is said the statues and sphinxes of colossal size which adorn the avenue leading to the Temple of Karnak, at Thebes, are secured on their solid foundations only in their own weight. Yet that has been found sufficient to .preserve many of them IN REALTY. 105 undisturbed for 4,000 years : Taylor's Africa, 113, et seq. ; and if a traveler should purchase from Mehemet Ali the land on which these interesting ruins rest, it would seem quite absurd to hold that the deed did not cover the statues still standing, and to claim that they were the still unadministered personal assets of the Ptolemies, after an annexation of such long dura- tion. No legal distinction can be made between the sphinxes of Thebes and the statue of Thom. Both were erected for ornament, and the latter was as colossal in size and as firmly annexed to the land as the former, and by the same means. I apprehend the question whether the Pyramids of Egypt or Cleopatra's Needle are real or personal property does not depend on the result of an inquiry by the antiquarian whether they were originally made to adhere to their foundations with wafers, or sealing-wax, or a handful of cement. It seems to me puerile to make the title to depend upon the use of such or of any other adhesive substances, when the great weight of the erection is a much stronger guaranty of permanence. The sun-dial stands on a somewhat different footing. It was made for use as well as for ornament, and could not be useful except when firmly placed in the open air and in the Hght of the sun. Though it does not appear that the stone on which it was placed was made expressly for it, it Was appropriately located on a solid and durable foundation. There is good reason to believe it was designed to be a permanent fixture, because the material of which it was made was the same as that of the house and the statue, and because it was in every respect adapted to the place. My conclusion is, that the facts in the case called on the Judge of the circuit to decide, as a matter of law, that the property was real, and to non-suit the plaintiff; and if I am right in this conclusion, the judgment of the Supreme Court should be reversed. StockweU V. Campbell, 39 Conn. 362. 106 ILLUSTRATIVE CASES CONSTRUCTIVE ANNEXATION. Constractive annexation may be sufficient. Faekae V. Stackpole. Supreme Judicial Court of Maine, 1829. 6 Maine, 154. Weston, J., delivered the opinion of the Court: If the ■claim in question passed as a constituent part of the mill, the plaintiffs have made out their title, and have a right to judgment on the verdict. A considerable portion of the machinery and power of a mill, like that conveyed by the de- fendant, is designed to be applied to draw up logs into the mill, which is essential to the operation of one of this con- struction. It is not denied that other parts of the machinery- intended for this purpose go with the mill ; but it is insisted that the chain is of the nature of personal property, and there- fore passes not by a deed of the realty, unless specially named. To this it may be answered, first, that if it be an essential part of the mill it is included in that term, whether real or per- sonal ; secondly, that that which is in its nature personal may change its character, if fixed, used, and appropriated to that which is real. Is it too much to say .that the mill is incom- plete without a chain, a cable, or other substitute ? It may be that a millwright who contracts to erect a mill, and to furnish materials, may be deemed to have completed his engagement without supplying a chain. One millwright, a witness in this case, has testified that such is his impression.. And if this is understood generally his contract might not extend further. But the owner would find that he had yet something more to procure before the mill could be in a condition to operate. The chain is the last of the parts iii the machinery to which the impelling power is communicated to effect the object in view. Its actual location in the succession of parts can make no difference. If it is in its nature essential to the mill, it is included in that term ; and that, as has been before remarked, whether it be personal or real property. But upon considera- IN REALTY. 107 tion, we are of opinion that it ought to be regarded as apper- taining to and constituting a part of the realty. It is an ancient principle of law that certain things which in their nature are personal property, when attached to the realty, become part of it as fixtures. One criterion is that if that which is ordinarily personal be so fixed to the realty that it cannot be severed therefrom without damage, it becomes part of the realty ; as wainscot work and old fixed and dormant tables and benches. Other things pass as incident to the realty, as doves hi a dove-house, fish in a pond, or deer in a park : 2 Com. Dig. Biens B. On the other hand, as between landlord and tenant, for the benefit of trade, in liiodern times many things are regarded as personal which, as between the heir and executor, would descend to the heir as part of the in- heritance. Although the being fastened or fixed to the freehold is the leading principle in many of the cases in regard to fixtures it has not been the only one. Windows, doors, and window- shutters are often hung but not fastened to a building, yet they are properly part of the real estate, and pass with it ; because it is not the mere fixing or fastening which is regarded, but the use, nature, and intention : Dane's Abr., oh. 76, art. 8, § 39. Modern times have been fruitful in inventions and im- provements for the more secure and comfortable use of build- ings, as well as of many other things which administer to the enjoyment of life. Venetian blinds, which admit the air and exclude the sun, whenever it is desirable so to do, are of mod- ern use ; so are lightning-rods, which have now become com- mon in this country and in Europe. These might be removed from buildings without damage ; yet, as suited and adapted to the buildings upon which they are placed, and as incident thereto, they are doubtless part of the inheritance, and would pass by deed as appertaining to the realty. But the genius and enterprise of the last half-century has been in nothing more remarkable than in the employment of some of the great agents of nature, by means of machinery, to an infinite variety of purposes, for the saving of human labor. Hence there has 108 ILLUSTRATIVE CASES arisen in our country a multitude of establishments for work- ing in cotton, wool, wood, iron, and marble, some under the denomination of mills, and others of factories, propelled gen- erally by water power, but sometimes by steam. These estab- lishments have in many instances, perhaps in most, acquired a general name, which is understood to embrace all their essen- tial parts ; not only the building which shelters, incloses, and secures the machinery, but the machinery itself. Much of it might be easily detached, without injury to the remaining parts or to the building ; but it would be a very narrow con- struction which should exclude it from passing by the general name by which the establishment is known, whether of mill or factory. The general principles of law must be applied to new kinds of property, as they spring into existence, in the progress of society, according to their nature and incidents, and the common sense of the community. The law will take notice of the mutations of language, and of the meaning of new terms applied to new subjects as they arise. In other words, it will understand terms used bj'' parties in their con- tracts, whether executed or executory, whether in relation to real or personal estate, according to their ordinarjj^ meaning and acceptation. There was at Bath, in this State, a saw-mill propelled by steam, generally called the steam saw-mill. Suppose this es- tablishment had been conveyed by the name of the steam saw- mill, without a more particular description. What would pass? There is nothing in the books with respect to this species of property, for it is of quite modern invention ; and there is no other mill of the kind in this part of the country. If you exclude such parts of the machinery as may be detached without injury to the other parts or to the building, you leave it mutilated, incomplete, and insufficient to perform its in- tended operations. The parties in using the general term would intend to embrace whatever was essential to it, accord- ing to its nature and design ; and the law would doubtless so construe the conveyance as to effectuate the lawful intention of the parties. Salt-pans have been held to pass the realty, IN REALTY. 109 and to belong to the inheritance ; because adapted and de- signed for and incident to an establishment for the manufac- ture of salt. The principle is that certain things, personal in their nature, when fitted and prepared to be used with real estate, change their character, and appertain to the realty, as an incident or accessory to its principal. Upon this ground we are satisfied that the chain in question, being in the mill at the time, and essential to its beneficial enjoyment, passed by the deed of the defendant to Asa Redington, under whom the plaintiffs claim, independent of any reference to usage. The verdict is therefore sustained, although not upon a ground in accordance with the impressions of the Judge who presided at the trial. This we think, upon the whole, a fair application of the principles of law to the case. Had the term mill, how- ever, by uniform and general usage, been understood not to embrace the chain, a different construction would no doubt have obtained ; for it is a term of art, the proper meaning of which would be fixed by the general understanding of those who are skilled and experienced in it. If they were not agreed, the law would adopt that which was most general, and which would best accord with the nature and character of the subject-matter. The jury have found, upon the evidence sub- mitted to them, that by general and uniform usage the chain passed by a deed of the mill. This finding was somewhat stronger than the evidence warranted. It did appear that there had been exceptions to this usage, but the weight of evi- dence went to support it. At any rate, it is apparent that the usage is rather in favor than against the construction we have adopted. But as we are of opinion that the title of the plain- tiffs is well supported by the deed, independent of usage, it becomes unnecessary to decide upon the competency or effect of the testimony adduced upon this point. Judgment on the verdict. 110 ILLUSTRATIVE CASES Saws and millstones, though not actually annexed, may be fixtures. BURNSIDE V. TWITCHELL. Supreme Court of New Hampshire, 1861. 43 N. H. 390. Sargent, J. From the case it appears that the Chandlers and Larys, being seized of certain lands in Milan and Suc- cess, on the 19th of July, 1854, conveyed the same in mort- gage to one A. G. L., which mortgage was duly executed and recorded, and was by the said A. G. L., on the day of its date, assigned and delivered to the plaintiff, with the notes secured by it. The next year, 1856, the mortgagors built a saw-mill on the premises, and procured the articles here sued for to put into said mill for use there, and they were all, except sixteen of the saws, used in said mill, as such articles, are commonly used, for a year or more, and remained there till December 1, 1856 ; that while thus situated and thus used the plaintiff commenced proceedings to foreclose his mortgage on the premises ; that his writ of entry was entered and a conditional judgment was ren- dered in his favor, and that possession was delivered to him March 25, 1867, of the whole premises, under a writ of pos- session founded on said judgment. In the meantime, after the plaintiff had obtained his judg- ment, and before he got possession, the Chandlers and Larys took the saws and belting from their appropriate places in the mill, and removed them to other places in the mill and the file-poom adjoining, which was a part of the establishment, for safe keeping, where they remained till after the time when the plaintiff was put in possession of the whole premises, under his writ, after which the Chandlers and Larys took all the property here in controversy and carried it to Berlin Falls, and April 27, 1867, mortgaged the same to these defendants, as chattels, the mortgage being upon sufficient consideration, and duly executed and recorded. Before the commencement of this suit the defendants sold the saws and belting upon their chattel mortgage, but have IN REALTY. HI in no way sold or disposed of or in any way intermeddled with any of the other property, except to take the said mortgage as aforesaid. Now, upon these facts as stated, no question arises as to any of the property claimed by this plaintiff except the saws and belting. The defendants have taken a chattel mortgage of the other property, but it does not appear that it has ever been in their possession, or that they have ever used or appropriated it in any way, or exercised any acts of ownership over it except to take the mortgage. No demand has ever been made upon them for the property, and it does not appear that they had any knowledge of the situation of the property, or of the plaintiff's claim to it. If the property had been demanded of the respondents, and they had refused to deliver it, but had claimed to hold it on their mortgage, that would be evidence of a conversion. The Chandlers and Larys may be liable for removing the property from the mill, and their acts in mortgaging it to secure their own debt would constitute a conversion of it by them, as against this plaintiff, provided it should be held that the prop- erty was such as passed to the plaintiff by the mortgage of the real estate: White v. Phelps, 12 N. H. 386 ; Doty v. Hawkins, 6 N. H. 247. In addition to purchasing property of one who has no right to sell, there must be the holding possession to the purchaser's use, or the claiming of title or some right to the same, to con- stitute a conversion : Lathrop v. Blake, 23 N. H. 46 ; Hyde v. Noble, 13 N. H. 494; Lovejoy v. Jones, 30 N. H. 164. Leaving out of the case, then, everything but the saws and the belting, let us see how the case stands as to those. The same rule as to fixtures applies between mortgagor and mort- gagee as is applied between vendor and vendee and executor and heir, while a different rule applies between landlord and tenant : Kittredge v. Woods, 3 N. H. 503 ; Despatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 232, and cases cited ; Lathrop v. Blake, 23 N. H. 64 ; Wadleigh v. Janvrin, 41 N. H. 503. 112 ILLUSTKATIVE CASES Fixtures and additions in the nature of fixtures, which are placed in a building by a mortgagor after he has mortgaged it, become part of the realty, as between him and the mort- gagee, and cannot be removed or otherwise disposed of by him while the mortgage is in force : Winslow v. Merchants' Ins. Co., 4 Met. 306 ; Butler v. Page, 7 Met. 40 ; Pettengill v. Evans, 5 N. H. 54 ; Cole v. Stewart, 11 Cush. 181 ; and in the last case it was held not only that the mortgagor could not remove such fixtures, but that any third person who should do so, by per- mission or request of the mortgagor, was liable for so doing to the mortgagee, though the mortgagor continued all the while in possession. It is also well settled that where such chattels have been so attached and used as to become parts of the realty, yet when they, by the wrongful acts of the mortgagors, were severed and removed, and became chattels personal again, the property in them still remained in the plaintifi", and he could bring tres- pass de bonis asportatis, or trover for them as for other personal chattels : Pinkham v. Gale, 3 N. H. 484 ; Sawyer v. Twiss, 26 N. H. 348 ; Plummer v. Plummer, 30 N. H. 570 ; Wadleigh V. Janvrin, 41 N. H. 520, and cases cited. So that although the plaintiff might have maintained tres- pass quare cluusum against the Chandlers and Larys for enter- ing and taking away this property, if it shall be held to have become parts of this realty, yet he could also maintain tres- pass de bonis against them for carrying away the chattels after they were severed, and converting them, or trover against them or any subsequent holder under them who should convert the same to their own use. The only question then remaining here to settle is, did the saws and belting ever become parts of the belting, as between executor and heir? As to the sixteen saws never used, they cannot be said to have been so affixed. They were never set in the mill or used there, or in any way attached to it or any part of it. The mere fact that they were purchased with the intention to be used there is not suflicient to make them fixtures. If they had been once affixed, and had been taken out to repair or to file, IN REALTY. 113 while the others were at work in their place, the case would be different, for they would none the less be parts of the mill when thus removed for a temporary purpose than when in actual use. Articles once affixed and used in such a way as to become parts of the freehold, though disannexed at the time of the sale for a temporary purpose, still pass by the conveyance of the real estate : Despatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 232 ; Lathrop v. Blake, 23 N. H. 66, and cases cited. But we think that the saws that had been set and used in the mill for a year or more (and as long as it would seem as the mill was used), while thus in use were as much a part of the mill as the water-wheel or the carriage. They were made fast to portions of the mill by bolts or keys, or in some way, depending somewhat upon whether they were circular or upright saws, which the case does not show. Machines and other articles essential to the occupation of a building or to the business carried on in it, and which are affixed or fastened to the freehold and used with it, partake of the character of real estate, become part of it, and pass by a conveyance of the land. Nor does so much depend upon the character of the fastening, whether it be slight or otherwise, as does upon the nature of the article and its use, as connected with the use of the freehold : Despatch Line v. Bellamy Mfg. Co., 12 N. H. 232, 233, and cases cited. Now, a saw-mill without any saw would be about like a grist-mill without millstones, and millstones have been held to be a part of the realty, even when removed from their place and temporarily severed or disannexed from the other parts of the mill. And it would make no difference, probably, whether the stone thus disannexed was laid up to be picked or was laid in an adjoining room awaiting an occasion when it would be needed in its appropriate place again, as was the case with these saws: Lyford's Case, 11 Coke, 50. So in Regina v. Wheeler, 6 Mod. 187, it is said a mill is a known thing in law, and so are the parts thereof ; and, therefore, if the owner 8 114 ILLUSTRATIVE CASES of a mill take out one of the millstones to pick or gravel it and devise the mill while the stone is severed from it, yet it shall pass as part of the mill. We see no good reason why the same may not with equal propriety be held true of the saws in a saw-mill. They are actually attached to the other machinery in the mill much more strongly than the stone of the grist-mill. In the latter case, the stone only rests upon the iron-work fixed to the top of the perpendicular shaft which turns it, and is kept there by the force of gravity, while the attachment of the saws must be nice, exact, and strong ; the saw must be made secure and fast, so that there may be no lateral motion ; and in case of the upright saw, keys must be driven or other means used to produce the necessary tension of the saw. And still, this matter of the attachment, as we have seen, is not the con- trolling circumstance in the case. The belting, also, of a mill runs from the large wheel con- nected with the motive power over a drum upon the main horizontal shaft, upon which are various other drums, upon which are belts connected with the various distinct portions and parts of the machinery. Whether the belting could be removed whole without removing any of the machinery, or whether, as is the case ordinarily, it could not be disengaged from the drums and shafts altogether without removing some of the permanent parts or attachments of the mill, or by dis- uniting the belts by removing the thongs by which the ends are usually fastened together, the case does not show. But when a mill of any kind is constructed so as to make belts necessary in order to run the mill, they would seem to be a part, and as essential a part as any other of the mill. Some grist-mills are constructed in this way, with a belt attached to the main shaft and connected with each run of stones, another to the bolt, another to the smut-mill, etc. ; others are con- structed with a large cog-wheel with other smaller cog-wheels, that can be thrown into it or upon it, to carry each of the other several parts of the machinery. In one case the drums and belts perform the same office that the wheels and gearing IN REALTY. 115 do in the other. The belting is as necessary as the drums, and both are as necessary in one case as the cog-wheels are in the other ; one of which might be removed, perhaps, with as little trouble as the other. Why, then, should the cog-wheels be considered as a part of the mill and the belting not be so considered ? In Wadleigh v. Janvrin, 41 N. H., before cited, it was held that the tie-up planks, stanchion timbers, hinge staples, and tie chains belonging to a barn passed by a conveyance of the real estate, although they had all been removed, for a tem- porary purpose from the barn before the sale of the farm, and remained severed at the time of the sale. If these articles became fixtures by having been connected with the building as they had been, and used, as was the case there, we cannot see why, in this case, the belting should not be considered a part of the mill when it was absolutely necessary for the opera- tion of the mill for any useful purpose. That case, we think, covers the whole ground of this case, and so do many of the authorities there cited. So does Wilson v. The Merchants' Ins. Co., 4 Met. 306 ; Snedeker v. Warring, 12 N. Y. 170 ; Baker v. Davis, 19 N. H. 325 ; Walker v. Sherman, 20 Wend. 636 ; Farrar v. Stackpole, 6 Maine, 154, though the last decision seems to be founded upon a special custom or usage in the State of Maine. We do not intend to hold that a saw might not be put into a mill and used for a temporary purpose, without any design of keeping or using it there permanently, without its becoming a fixture so as to pass with the land, or that the owner of the mill and of the machinery in it, while unincumbered, may not treat the machinery as personal property and sell or mort- gage it, or that the same might not be attached as such, when, if he had sold or mortgaged the mill with its appurtenances, without reservation, the whole might have passed in the con- veyance, and after third persons had thus acquired rights in it, he could not afterward treat it, nor could it be treated as personal property. Upon the facts here stated, we think the plaintiff is enti- 116 ILLUSTRATIVE CASES tied to recover the value of the twenty-four saws and of th^' belting. Judgment for the plaintiff. Regina v. "Wheeler, 6 Mod. 187 (1704). Rolling stock : Palmer v. Forbes, 23 111. 235 ; Pierce v. Emery, 32 N. H. 484; Titus a al. V. Mabee el cd., 25 111. 232. Water-wheels : House v. House, 10 Paige, 158. Contra : Hoyle v. Plattsbuig, etc., K E. Co., 54 N. Y. 314. IN REALTY. in ANNEXATION UNDER CONTRACT. 1. EXPRESS. Chattels annexed under express agreement for their removal remain personalty. Tapt v. Stetson. Supreme Court of Massachusetts, 1875. 117 Mass. 471. Ames, J. The steam engine, with the boiler and its appli- ances, was furnished and set up upon the premises by the de- fendant, who at the time had no title in the estate. The agreement between him and the owner was that these addi- tions to the premises should continue to belong to him, with the right to remove them whenever he saw fit. They were, therefore, personal property : Howard v. Fessenden, 14 Allen, 124; Morris v. French, 106 Mass. 326; Hartwell v. Kelly, ante, 235 ; and never became the property of the mortgagor, and, of course, did not pass by and were not included in the mortgage. They were rightfully sold by the defendant as his own property, and there is no reason why he should be held accountable to this plaintiff for the proceeds of the sale. With regard to the rent of the house, it does not appear that any was collected by the defendant, or that any was left un- collected by his fault or neglect. The house was occupied under a claim of right, adversely to the defendant. There having been no release of the homestead, the occupation of the house by the mortgagor and his family was rightful : Silloway V. Brown, 12 Allen, 30. Decree affirmed. Hartwell v. Kelly, 117 Mass. 235; Dame v. Dame, 38 N. H. 429; Ham v. Kendall, 111 Mass. 297 ; Tifft v. Horton, 53 N. Y. 377. Gaa-pipes in streets : Memphis Gfas-Light Co. v. The State, 6 Cold. (Tenn.) 310. 118 ILLUSTRATIVE CASES. 2. IMPLIED. A building erected on another's land 'with the owner's permission remains personalty. Osgood v. Howard. Supreme Judicial Court of Maine, 1830. 6 Maine, 452. Mellen, C. J., delivered the opinion of the Court, in Cum- berland, in August following : The question in this case seems to be a new one ; or, in other words, the decision of it requires the application of certain well-settled principles to certain facts, where the application of them appears to be considered as a novelty. The facts before us are few and simple, and we wish to be understood as not extending our decision beyond those facts as they have been found by the jury. Cases whose general character might resemble the present, may easily be imagined to involve several interesting and intricate inquiries, the solution of which might be attended with many difficulties. But the finding of the jury has excluded them all from the case under consideration. The buildings whose value is de"- manded in this action of trover were the absolute property of Henry Howard, the deceased, at the time of his death. The land on which they were erected was then, and continues to be, the property of the defendant. They were erected on the land by his express consent. The buildings have been fairly pur- chased by the plaintiflF, and they are his absolute property ; and the defendant has converted them t6 his own use. Now, the question is, why should not this action be maintained? Almost all the cases which have been cited on both sides are those between lessor and lessee, or heir and executor, asid they were decided upon principles of policy, or the mere nature of the property in question, independently of any express contract in relation to this subject — the former according to those usages between landlord and tenant which were established and re- spected for the benefit of trade, and, in some instances, of husbandry ; and the latter accordingly as the subject in ques- tion partook most of the realty or personalty — whether attached IN REALTY. 119 or not to the freehold. "We apprehend that such cases cannot be of much use in the determination of the case at bar ; for in this the express agreement between the defendant and his son as to the erection of the buildings converted by the defendant places the subject on other grounds, and at once settles the respective rights of the owner of the land and the owner of the buildings. It is not denied that if one erects a building on the land of another wrongfully, the building immediately becomes attached to the freehold, and the property of the owner of the land ; but the case is different in respect to erections which are sanctioned by the relation between landlord and tenant; and for reasons still stronger, when buildings are erected by one man on the land of another, under his express license and agreement, as was the fact in the instance before us. The case of Wells v. Banister et al., 4 Mass. 514, seems directly in point. There the facts were that a son built a dwelling- house on his father's land, and by his express permission. The Court, then consisting of Paksons, C. J., and Sewall and Parkek, Justices, in giving the opinion, say " the property of the house is personal property of the son, he having no estate in the land." We understand that, among the profession, this is the principle recognized and acted upon in practice, that such property is considered personal, and is accordingly always sold on execution in the same manner as all other personal estate is sold at auction. Should we decide this cause in oppo- sition to the above-mentioned principle and practice, we should open a door to innumerable frauds which might be effectually committed with impunity. A person might erect expensive buildings on the land of a friend in whom he could confide, by his express permission ; and thus, in case of failure in business, perhaps a contemplated or intended failure, he would enjoy a home and ample accommodations at the expense of his defrauded creditors ; for if the buildings became the prop- erty of the owner of the land, then his creditors could not seize them on execution, and the friend could not be adjudged the trustee of the builder, in consequence of their standing on his land, because the houses are neither goods, effects, or 120 ILLUSTEATIVE CASES credits of the builder. We do not perceive any reason why- there should not be judgment on the verdict. Howard v. Fessenden, 14 Allen, 124. ADAPTATION. . The use to 'which a thing is to be put may determine its character as personalty or realty. Jenkins v. McCuedy. Supreme Court of Wisconsin, 1879. 48 Wis. 628. Oeton, J. This action is brought to enjoin the defendant from entering upon the lands of the plaintiffs and removing earth or certain filling material, which had become part of the soil, and for the value of such material which has been thus removed. The defendant, by his answer, admits his entry upon the lands of the plaintiffs and removal of certain mate- rial therefrom, which he insists had not become a part of the soil or attached to the freehold, but consisted of fire-wood, piled up and so placed upon the premises as to be personal property, and that he was the owner of the same, and had the right to so enter upon the premises of the plaintiffs and remove it. This case involves the small amount of about nine dollars, and only one question, which is a mixed one of law and fact, and depends entirely upon the facts in proof, and will there- fore be but brieflj'' considered. It appears that the plaintiffs purchased the premises of one Thompson ; that at that time the material in question was upon the surface of the soil, either as fire-wood or filling ; and that afterward Thompson sold said material to the defendant, and the defendant entered the premises and removed a part of such material therefrom. The character of this material in its nature and uses, its situation upon the land as being actually and physically attached or detached, and the intention of the owner when it was so placed in respect to its use, are questions of fact necessary to be considered in determining the question IN REALTY. 121 of law as to whether this material had become a part of the realty, and passed by deed to the plaintiffs, or whether it was personal and movable property, and was sold to the defendant, and he thereby became the owner. The facts agreed upon, the questions of law are neither difficult nor doubtful. That which is in its nature otherwise personal, when physically attached to the soil, or constructively attached by its use or intended use with the soil, will pass with the title of the realty : Tyler on Fixtures, 59, 116 ; Ewell on Fixtures, 31 ; Conklin v. Parsons, 2 Pinney, 264. The only question in this case is, Does the evidence show the material to have been " slabs, sawdust, shavings, and other refuse matter " used to fill up low and marshy ground near the mill, as claimed by the plaintiffs, or slabs and pieces of lumber suitable for fire- wood, and piled up on the premises and in- tended to be used and removed as such ? On this question depends the legal conclusion that the material in question is, or is not, personal or real property ; and on this question the evidence is conflicting and contradictory. The Circuit Court found that the facts justified the conclusion that the material was personal property and belonged to the defendant, and made a special finding of the facts upon which such conclusion was based. Against these findings there does not appear such a clear preponderance of the evidence as would warrant us in reversing them: Green v. Feil, 41 Wis. 620, and numerous other cases in this Court, and make this the true test for the exercise of this right by this Court. By the Court. — The judgment of the Circuit Court is affirmed, with costs. Noble V. Sylvester, 42 Vt. 146. 122 ILLUSTRATIVE CASES DISANNEXATION. 1. BY ACT OF PARTY. Parts of the realty, as fences, if temporarily detached without the owner's intention to divert them from their use, remain realty. Goodrich v. Jones. Supreme Court of New York, 1841. 2 Hill, 142. CowEN, J. The Common Pleas appear to have taken the same view of Goodrich's, or rather Vose's title to the boards as did the Justice. There cannot be a doubt that they were right. Fences are a part of the freehold ; and that the materials of which they were composed are accidentally or temporarily de- tached, without any intent in the owner to divert them from their use as a part of the fence, works no change in their na- ture : Vid. Walker v. Sherman, 20 Wendell, 639, 640. With regard to the manure, we have held that even as be- tween landlord and tenant, it belongs to the former ; in other words, it belongs to the farm whereon it is made. This is in respect to the benefit of the farm, and the common course of husbandry. The manure makes a part of the freehold : Mid- dlebrook v. Corwin, 15 Wendell, 169. Nay, though it be laid up in heaps in the farm-yard : Lassell v. Reed, 6 Greenl. 222 ; Daniels v. Pond, 21 Pick. 367 (a). The rule has always been still • stronger in favor of the vendee as against vendor, and heir as against executor. In Kittredge ^. Woods, 3 N. H. 503, it was accordingly decided that manure lying in a barn-yard passes to the vendee. See, also, Daniels v. Pond, before cited. The case of Kittredge v. Woods was very well considered ; and the right of the vendee to the manure, whether in heaps or scattered in the barn-yard, vindicated on principle and au- thority I think quite satisfactorily. IN REALTY. 123 There are several English dicta which conflict with our views of the right to manure, as between landlord and tenant, and that of the Court in New Hampshire, as between vendor and vendee : And vid, 2 Kent's Com. 346, note c, 4th ed., and Carver v. Pierce, Sty. 66. But they may all be considered as repudiated by Middlebrook v. Corwin. Vide the introductory remarks of Mr. Justice Nelson, 15 Wend. 170. The judgment of the Common Pleas must be reversed, and that of the Justice affirmed. Judgment reversed. McLaughlin v. Johnson, 46 111. 163 ; Rogers v. Gilinger, 30 Pa. St. 185 ; Harria V. Scovel, 48 N. W. Hep. 172 ; Huebschmann v. McHenery, 29 "Wis. 655 ; Ogden V. Stock, 34 111. 522. 2. BY ACT OF LAW. The sale of a building which is part of the realty changes it to per- sonalty as betTveen the buyer and seller. Davis v. Emery. Supreme Judicial Court of Maine, 1870. 61 Me. 140. Appleton, C. J. This is an action of trover to recover the value of a building to which the plaintiff claims title by a bill of sale in the following words : " Newfield, Nov. 6, 1865. "$40.00. " J. B. Davis bought of Elizabeth Emery one building 23 feet wide and 50 feet long, now standing west of my house and barn. Said building is to be moved off from where it now stands by the first of May next. Price, forty dollars. Re- ceived pay. Elizabeth Emery." The building was not removed within the time specified. Upon the foregoing writing the Justice presiding instructed the jury that if they found that the term limited in said writing was not extended prior to the first of May, A. D. 1866, by the 124 ILLUSTRATIVE CASES defendant, that the title of the building would revest in the defendant, and that the plaintiff would not have a right to go on and remove the same. The plaintiff bought the barn and paid for it. As between the parties to this suit it must be deemed personal property. The defendant having sold it as such aiid received the price agreed upon cannot claim it as a part of the realty. It stands precisely as if it had been a sale of a cart or a wagon, which was to be stored by the seller for a specific time, and which was not removed by the buyer within that time. The title to the article sold and paid for would not be changed by the neglect of the purchaser to remove it at a stipulated day. The phrase " said building is to be moved off from where it now stands by the first of May next " being included in the bill of sale to the purchaser, he must be regarded as having assented thereto and thereby impliedly to have agreed to re- move it in accordance with this provision, and is liable in damages for its non-removal within the time specified : Newell V. Hill, 2 Met. 180 ; Pike v. Brown, 7 Gush. 133 ; Maine v. Cumston, 98 Mass. 317. There is nothing in the language in- dicating that the building would be forfeited and the title re- vest in the seller if a removal was not made by the first day of May then next. If it is to be regarded as a license within which time the purchaser might remove the building, still the neglect to re- move would not constitute a forfeiture. The purchaser might be liable in trespass for all damage done by him to the owner of the land in removing the building, but not for the value of the property removed : Dame v. Dame, 38 N. H. 429. The title to the property sold was in the purchaser : Nelson v. Nel- son, 6 Gray, 385 ; Nettleton v. Sikes, 8 Met. 34. ^ The law relating to fixtures, whether as between grantor and grantee, mortgagor or mortgagee, or landlord and tenant, has no bearing upon the question under consideration. As between the buyer and seller the building was a personal chattel, which the purchaser was to remove in a given time, and until that time it was to remain on the seller's land. It IN REALTY. 125 was the simple case of a merchant storing goods for a limited time for the purchaser, who had paid the price therefor. The cases cited by the counsel for the defendant are inap- plicable. In Pease v. Gibson, 6 Greenl. 81, the sale was not of a specific article but only of so much timber as the vendee might take off within the time limited in his contract. To the same effect are the cases of Reed v. Merrifield, 10 Met. 155, and Howard v. Lincoln, 13 Me. 122. In Vincent v. Cornell, 13 Pick. 294, oxen were sold, the title to be perfect upon payment within a stipulated time, and the price not being paid, the title was held to remain in the vendor. So, the case of Fairbanks v. Phelps, 22 Pick. 535, was one of a conditional sale, the title to become perfect in the vendee when the purchase-money was paid. But in this case there was no sale on condition and there was nothing due the seller, the price having been paid at the time of the purchase. Exceptions sustained. ^ As to trees— Sterling v. Baldwin, 42 Vt. 306. TRADE FIXTURES. Fixtures erected by a tenant upon demised premises for pniposes of trade remain personalty during the term. Lemar v. Miles. Supreme Court of Pennsylvania, 1835. 4 Watts, 330. Sergeant, J. The general principle is that a fixture erected by a tenant on demised premises, for the purpose of carrying on his trade, is personal property, and may be removed or levied on by _fien facias against him, and at his death, if not disposed of, passes to his executor. In Lawton v. Lawton, 3 Atk.' 13, a fire-engine set up for the benefit of a colliery by a tenant for life was considered part of his personal estate, pass- ing to the executor as assets, and not to the remainder- man as annexed to the freehold, it being for the benefit of the public to encourage tenants to do what is advantageous to 126 ILLUSTRATIVE CASES the estate during their term. The same point was afterward decided in Dudley v. Warde, Amb. 113, where an engine of a similar kind was considered part of the personal estate, whether erected by tenant for life or in tail. In Van Ness v. Packard, 2 Peter's S. C. Eep. 137, the subject is carefully examined by Justice Story, and the tenant was there held not to be liable for pulling down and removing a wooden dwelling-house, with a cellar of stone or brick foundation, and a brick chimney, which he had erected on a demised lot of ground for a term of years reserving rent, with a view of carrying on the business of a dairyman, and for the residence of his family and servants engaged in the business. The present is the case of a steam engine set up by the tenant on the demised premises and used in lieu of horse-power, for more advantageously carrying on the manufacture of salt. It must, therefore, be deemed per- sonal property belonging to him, and as such liable to be seized and sold on the e:|:ecution of his judgment creditor. In Gray V. Holdship, 17 Serg. & Rawle, 413, the copper kettle in the brew-house was erected by the owner of the inheritance, and would have passed to the purchaser of the building unless specially reserved ; it was, therefore, part of the build- ing within the mechanics' lien law. The case of Morgan v. Arthurs, 3 Watts, 140, was determined on the same grounds. But here the engine was purchased and erected by the tenant, and was never part of the inheritance. It is supposed, however, that the terms of this lease form an exception to the general rule. There is a covenant on the part of the lessees to bore the wells to the depth of five hundred feet if practicable, and as much deeper as they please, and to make all additional and necessary erections at their own expense. It is afterward declared that should the wells fail at any time during the lease the lessees were at liberty to give them up by paying up the rent to the time of said failure ; and should such failure take place within the term of three years the lessees were at liberty to take away all the metal and im- provements of the works, or be paid the value thereof, at the choice of the lessor. This covenant seems to contain an im- IN REALTY. 127 plication that if the lessees gave up the works after the three years, on account of failure of the water, the erections were to belong to the lessor. The reason of this covenant is not very clear ; but, perhaps, it was thought right they should re- main as an indemnity to the lessor for his loss, where the lessees had enjoyed the strength of the wells during, perhaps, a larger part of the term. But there was no surrender on ac- count of failure ; for although one witness for the plaintiffs said he thought the water failed the first year, he explained by Baying it got weaker ; it was not more than h-alf as good, per- haps. He also states that the well was not given up to Lemar. The event contemplated, then, never occurred ; and the rights of the parties can only be adjusted by the application of the usual legal principles. Besides, I am inclined to think this clause refers to erections of a more real and permanent character than an engine. The words " metal and improve- ments " may comprehend all permanent fixtures of iron or other metal, and all buildings, whether dwelling-houses, stables, sheds, walls, or of whatever kind, set up for the pur- pose of carrying on the business more conveniently ; the right to remove which might have been considered as ques- tionable, unless expressly agreed to. But for an article in itself decidedly personal, it was not necessary to make such provision, and it ought not by implication to be applied to it. Judgment aflftrmed. Poole's Case, 1 Salk. 366 ; Eeynolds v. Shuler, 5 Cowen, 323 ; Moore v. Smith, 24 111. 512 ; s. c, 26 111. 392 ; Merit v. Judd, 14 Cal. 59 ; Davis v. Moss, 38 Pa. St. 346 ; Lacey v. Giboney, 36 Mo. 320 ; Holbrook v. Chamberlain, 116 Mass. 155 ; Seeger v. Pettit, 77 Pa. St. 437 ; Dingley v. BuflRim, 57 Me. 381 ; Allen V. Kennedy, 40 Ind. 142 ; Kile v. Giebner, 7 Atl. 154. Note.— As to electric poles, wires, and lamps, see 12 S. W. Rep. 489. 128 ILLUSTEATIVE CASES The annexation may be such as to change their character to realty. O'Brien v. Kusterer. Supreme Court of Michigan, 1 873. 27 Mich. 289. Graves, J. On the 13th of August, 1868, the complainants in the original bill, O'Brien and Calkins, leased to the defend- ant Kusterer and one Werner, for three years from the 15th of the succeeding September, the east basement of Phoenix Hall, in Grand Rapids, for an eating-house or saloon, at a yearly rent of $600, payable quarterly. The lessors, at considerable ex- pense, fitted up the property with a bar and other conveniences, to adapt it to the business to be carried on by the lessees. Some time in the fall the lessees entered under the lease. In some little time afterward one Schoeding became associated with Werner, and the room was extensively altered and fitted up by the tenants with bowlirig-alleys, which were put down and con- nected with the floor and sleepers in a very substantial manner. The changes were numerous and thorough, and the character of the establishment was completely altered. In the course of a few months the defendant Kusterer united in himself the whole leasehold interest, by purchase or otherwise, and on the 24th of May, 1870, assigned to the defendant Conkey, and took back a chattel mortgage to secure $350 of the purchase price. In this transaction Kusterer assumed to sell and take back a mortgage upon the alleys and other fittings, and they were described in the mortgage as " all and singular the bar, bar fixtures, ice-box, four howling-alleys, with the balls and pins appertaining thereto, with all the chairs and tables therein, one chandelier over the bar, two street lamps and signs, with all keys, faucets, stock on hand, and all fixtures and furniture — all in the Court Place Saloon, so called — in the basement of the Phoenix Block, so called, on the north side of Lyon Street, in said City of Grand Rapids, being the same property this day sold by said Kusterer to said Conkey, and this mortgage being given for a part of the purchase price thereof" About June 1, 1870, Conkey sold the same property to James IN REALTY. 129 Irons, the complainant in the cross-bill, for the consideration, of $1,050, and Irons assumed, as part of the consideration, the payment of the chattel mortgage given by Conkey to Kusterer. At this time Kusterer assured Irons that the property was " all right," and that he would " stand between him (Irons) and all harm." A controversy had previously arisen between the com- plainants in the original bill, O'Brien and Calkins, and Kus- terer, as to the ownership of the alleys and some other things in the establishment. O'Brien and Calkins claimed that the bar, bar fixtures, cup- board, bowling-alley ways and racks, were permanent fixtures, and belonged to them as owners of the reversion, and the de- fendant Kusterer insisted that they were removable articles, and subject to and held by his mortgage from Conkey. The mortgage becoming due, and Irons declining to pay it while the title to the property was thus in dispute, Kusterer threat- ened to enforce his mortgage lien, and remove the property from the premises. O'Brien and Calkins thereupon filed the original bill to prevent any interference with. Or removal of, the property claimed by Kusterer, and to restrain the alleged injury and waste which a removal would be likely to produce. Irons then filed the cross-bill to protect his interests as they should be affected by results. The Circuit Court, in passing upon the case of the original bill, decreed that the bar, bar fixtures, cupboard, bowling-alley ways and racks were fixtures attached to the building, and owned by complainants, and awarded a perpetual injunction ; and in passing upon the cross-cause adjudged that the defendant Kusterer should pay to Irons $900, with interest thereon from June 24, 1870, in the place of the fixtures. But two questions were made on the hearing in this Court, the first being whether the things in question were so annexed to the freehold as to belong to it. This question is decisively answered in the affirmative by the evidence, and it would be a waste of time to repeat it. The second question is whether Calkins' conduct was such as to estop himself and O'Brien from claiming, against the 9 130 ILLUSTRATIVE CASES mortgage rights of Kusterer, that the property was perma- nently and immovably attached, and I think upon a fair esti- mate of the evidence this question should be answered in the negative. Kusterer was a tenant holding of Calkins and O'Brien when the annexations were made, and they are to be considered as made by his direction and authority, or, at all events, with his sanction ; and by itself, his sale of the things so annexed, as personalty, and the taking a chattel mortgage back upon them, could not invest* him with any new right as against his land- lord. Such a transaction, standing alone, could not affect the right of the landlord derived from the annexation. It might tend more or less to show that the tenant did not consider the fixtures immovable. But the landlord would not be concluded, unless shown in some satisfactory way to have assented to their being dealt with by the tenant as personalty, or things re- movable. The fixtures now in question were made a part of the realty, so far as mechanical annexation could make them so, before Kusterer sold to Conkey, and got the mortgage back ; and the evidence does not show that when that annexation occurred, it was one which left the tenant at liberty to sever and remove what was annexed. When this transaction with Conkey oc- curred, Kusterer had no title, as against O'Brien and Calkins, to these things as personalty, and he gained none by the mort- gage from Conkey, unless O'Brien and Calkins in some way waived or relinquished their right derived from the annex- ation, or precluded themselves from asserting it against him, and this I think the evidence, when fairly considered, shows they did not do. The decree below should be affirmed, with costs. Talbot V. Whipple, 14 Allen, 177. IN REALTY. 131 AGRICULTURAL FIXTURES. Agricultural fixtures are recognized in this country. Van Ness v. Pacard. Supreme Court of the United States, 1829. 2 Peters, 137. Mr. Justice Story delivered the opinion of the Court. This is a writ of error to the Circuit Court of the District of Columbia, sitting for the County of Washington. The original was an action on the case brought by the plaintiffs in error against the defendant for waste committed by him, while tenant of the plaintiffs, to their reversionary interest, by pulling down and removing from the demised premises a messuage or dwelling-house erected thereon and attached to the freehold. The cause was tried upon the general issue, and a verdict found for the defendant, upon which a judgment passed in his favor ; and the object of the present writ of error is to revise that judgment. By the bill of exceptions filed at the trial it appeared that the plaintiffs in 1820 demised to the defendant, for seven years, a vacant lot in the City of Washington, at the yearly rent of $112.50, with a clause in the lease that the defendant should have a right to purchase the same at any time during the term for $1,875. After the defendant had taken possession of the lot he erected thereon a wooden dwelling-house, two stories high in front, with a shed of one story, a cellar of stone or brick foundation, and a brick chimney. The defendant and his family dwelt in the house from its erection until near the expiration of the lease, when he took the same down and removed all the materials from the lot. The defendant was a carpenter by trade ; and he gave evidence, that upon obtain- ing the lease he erected the building above mentioned mth a view to carry on the business of a dairyman, 'and for the resi- dence of his family and servants engaged in his said business ; and that the cellar, in which there was a spring, was made and exclusively used for a milk cellar, in which the utensils 132 ILLUSTRATIVE CASES of his said business were kept and scalded, and washed, and used ; and that feed was kept in the upper part of the house, which was also occupied as a dwelling for his family. That the defendant had his tools as a carpenter, and two apprentices in the house, and a work-bench out-of-doors ; and carpenter's work was done in the house, which was in a rough, unfinished state and made partly of old materials. That he also erected on the lot a stable for his cows of plank and timber fixed upon posts fastened into the ground, which stable he removed with the house before the expiration of his lease. Upon this evidence the counsel for the plaintiffs prayed for an instruction, that if the jury should believe the same to be true, the defendant was not justified in removing the said house from the premises ; and that he was liable to the plain- tiffs in this action. This instruction the Court refused to give ; and the refusal constitutes his first exception. The defendant farther offered evidence to prove that a usage and custom existed in the City of Washington, which author- ized a tenant to remove any building which he might erect upon rented premises, provided he did it before the expiration of the term. The plaintiffs objected to this evidence ; but the Court admitted it. This constitutes the second exception. Testimony was then introduced on this point, and after the examinations of the witnesses for the defendant, the plaintiffs prayed the Court to instruct the jury that the evidence was not competent to establish the fact that a general usage had existed or did exist in the City of Washington which author- ized a tenant to remove such a house as that erected by the tenant in this case ; nor was it competent for the jury to infer from the said evidence that such a usage had existed. The Court refused to give this instruction, and this constitutes the third exception. . The counsel for the plaintiffs then introduced witnesses to disprove the usage ; and after their testimony was given, he prayed the Court to instruct the jury, that upon the evidence given as aforesaid in this case, it is not competent for them to find a usage or custom of the place by which the defendant IN REALTY. 133 cbuld be justified in removing the house in question; and there being no such usage, the plaintiffs are entitled to a ver- dict for the value of the house which the defendant pulled down and destroyed. The Court was divided and did not give the instruction so prayed ; and this constitutes the fourth ex- ' ception. The first exception raises the important question, what fixtures erected' by a tenant during his term are removable by him? The general rule of the common law certainly is that what- ever is once annexed to the freehold becomes part of it, and cannot afterward be removed, except by him who is entitled to the inheritance. The rule, however, never was, at least as far back as we can trace it in the books, inflexible and without exceptions. It was construed most strictly between executor . and heir in favor of the latter ; more liberally between tenant for life or in tail, and remainderman or reversioner, in favor of the former ; and with much greater latitude between land- lord and tenant in favor of the tenant. But an exception of a much broader cast, and whose origin may be traced almost as high as the rule itself, is of fixtures erected for the purposes of trade. Upon prinqiples of public policy, and to encourage trade and manufactures, fixtures which were erected to carry on such business were allowed to be removed by the tenant during his term, and were deemed personalty for many other purposes. The principal cases are collected and reviewed by Lord Ellenborough in delivering the opinion of the Court in Elwes v. Maw, 3 East's R. 38 ; and it seems unnecessary to do more than to refer to that case for a full summary of the general doctrine and its admitted exceptions in England. The Court there decided, that in the case of landlord and tenant there had been no relaxation of the general rule in cases of erections solely for agricultural purposes, however bene- ficial or important they might be as improvements of the estate. Being once annexed to the freehold by the tenant they became a part of the realty and could never afterward , be severed by the tenant. The distinction is certainly a nice 134 ILLUSTBATIVE CASES one between fixtures for the purposes of trade and fixtures for agricultural purposes ; at least in those cases where the sale of the produce constitutes the principal object of the tenant, and the erections are for the purpose of such a beneficial enjoyment of the estate. But that point is not now before us ; and it is now unnecessary to consider what the true doctrine is or ought to be on this subject. However well settled it may now be in England, it cannot escape remark that learned Judges at different periods in that country have entertained different opinions upon it, down to the very date of the deci- sion in Elwes v. Maw, 3 East's R. 38. The common law of England is not to be taken in all re- spects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright ; but they brought with them and adopted only that portion which was applicable to their situation. There could be little or no reason for doubting that the general doctrine as to things annexed to the freehold so far as it respects heirs and execu- tors was adopted by them. The question could arise only between different claimants under the same ancestor, and no general policy could be subserved by withdrawing from the , heir those things which his ancestor had chosen to leave annexed to the inheritance. But between landlord and tenant it is not so clear that the rigid rule of the common law, at least as it is expounded in 3 East, 38, was so applicable to their situation as to give rise to necessary presumption in its favor. The country was a wilderness, and the universal policy . was to procure its cultivation and improvement. The owner of the soil as well as the public had every motive to encourage the tenant to devote himself to agriculture, and to favor any erections which should aid this result ; yet, in the comparative poverty of the country, what tenant could afford to erect fixtures of much expense or value if he was to lose his whole interest therein by the very act of erection ? His cabin or log-hut, however necessary for any improvement of the soil, would cease to be his the moment it was finished. It might, therefore, deserve consideration whether, in case the doctrine IN REALTY. 135 were not previously adopted in a State by some authoritative practice or adjudication, it ought to be assumed by this Court as a part of the jurisprudence of such State upon the mere footing of its existence in the common law. At present it is unnecessary to say more than that we give no opinion on this question. The case which has been argued at the bar may well be disposed of without any discussion of it. It has been already stated that the exception of buildings and other fixtures for the purpose of carrying on a trade or manufacture is of very ancient date, and was recognized almost as early as the rule itself. The very point was decided in 20 Henry VII, 13, a. and h., where it was laid down, that if a lessee for years made a furnace for his advantage, or a dyer made his vats or vessels to occupy his occupation, during the term, he may afterward remove them. That doctrine was recognized by Lord Holt is Poole's Case, 1 Salk. 368, in favor of a soap-boiler who was tenant for years. He held that the party might well remove the vats he set up in relation to trade, and that he might do it by the common law (and not by virtue of any custom) in favor of trade and to encourage industry. In Lawton v. Lawton, 3 Atk. R. 13, the same doc- trine was held in the case of a fire-engine set up to work in a colliery by a tenant for life. Lord Hardwicke there said that since the time of Henry VII the general ground the Courts have gone upon of relaxing the strict construction of law is that it is for the benefit of the public to encourage tenants • for life to do what is advantageous to the estate during the term. He added, " one reason which weighs with me is its being a mixed case, between enjoying the profits of the land, and carrying on a species of trade ; and in considering it in this light it comes very near the instances in brew-houses, etc., of furnaces and coppers." The case, too, of a cider-mill, between the executor and heir, etc., is extremely strong, for though cider is a part of the profits of the real estate, yet it was held by Lord Chief Baron Comyns, a very able common law- yer, that the cider-mill was personal estate notwithstanding, and that it should go to the executor. " It does not differ it, in 136 ILLUSTRATIVE CASES my opinion, whether the shed be made of brick or wood, for it is only intended to cover it from the weather and other inconve- niences." In Penton v. Robart, 2 East, 88, it was further decided that a tenant might remove his fixtures for trade even after the expiration of his term if he yet remained in possession ; and Lord Kenyon recognized the doctrine in its most liberal extent. It has been suggested at the bar that this exception in favor of trade has never been applied to cases like that before the Court, where a large house has been built and used in part as a family residence. But the question, whether removable or not, does not depend upon the form or size of the building, whether it has a brick foundation or not, or is one or two stories high, or has a brick or other chimney. The sole ques- tion is whether it is designed for purposes of trade or not. A tenant may erect a large as well as a small messuage, or a soap boilery of one or two stories high, and on whatever founda- tions he may choose. In Lawton v. Lawton, 3 Atk. R. 13, Lord Hardwicke said (as we have already seen) that it made no difference whether the shed of the engine be made of brick or stone. In Penton v. Robart, 2 East's R. 88, the building had a brick foundation, let into the ground, with a chimney belonging to it, upon which there was a superstructure of wood. Yet the Court thought the building removable. In Elwes V. Maw, 3 East's R. 37, Lord Ellenborough expressly stated that there was no difference between the building cover- ing any fixed engine, utensils, and the latter. The only point is whether it is accessory to carrying on the trade or not. If bona fide intended for this purpose it falls within the exception in favor of trade. The case of the Dutch barns before Lord Kenyon ' is to the same effect. Then as to the residence of the family in the house, this resolves itself into the same consideration. If the house were built principally for a dwelling-house for the family, independ- ently of carrying on the trade, then it would doubtless be deemed a fixture, falling under the general rule, and immov- ' Dean v. Allalley, 3 Esp. Eep. 11 ; Woodfall's Landlord and Tenant, 219. IN REALTY. 137 able. But if the residence of the family was merely an acces- sory for the more beneficial exercise of the trade, and with a view to superior accommodation in this particular, then it is within the exception. There are many trades which cannot be carried on well without the presence of many persons by night as well as by day. It is so in some valuable manufac- tories. It is not unusual for persons employed in a bakery to sleep in the same building. Now, what was the evidence in the present case ? It was, " that the defendant erected the building before mentioned, with a view to carry on the business of a dairyman, and for the residence of his family and servants engaged in that business." The residence of the family was then auxiliary to the dairy ; it was for the accommodation and beneficial operations of this trade. Surely, it caunot be doubted, that in a business of this nature the immediate presence of the family and servants was, or might be, of very great utility and importance. The defendant was also a carpenter, and carried on his business as such in the same building. It is no objection that he carried on two trades instead of one. There is not the slightest evi- dence of this one being a mere cover or evasion to conceal another, which was the principal design ; and unless we are prepared to saj'^ (which we are not) that the mere fact that the house was used for a dwelling-house as well as for a trade super- seded the exception in favor of the latter, there is no ground to declare that the tenant was not entitled to remove it. At most, it would be deemed only a mixed case, analogous in principle to those before Lord Chief Baron Comyns, and Lord Hardwicke, and therefore entitled to the benefit of the excep- tion. The case of Holmes v. Tremper, 20 Johns. R. 29, pro- ceeds upon principles equally liberal, and it is quite certain that the Supreme Court of New York were not prepared at that time to adopt the doctrine of Elwes v. Maw in respect to erections for agricultural purposes. In our opinion the Circuit Court was right in refusing the first instruction. The second exception proceeds upon the ground that it was not competent to establish a usage and custom in the City of 138 ILXUSTEATIVE CASES Washington for tenants to make such removals of buildings during their term. We can perceive no objection to such proof. Every demise between landlord and tenant in respect to matters in which the parties are silent may be fairly open to explanation by the general usage and custom of the country or of the district where the land lies. Every person under such circumstances is supposed to be conusant of the custom, and to contract with a tacit reference to it. Cases of this sort are familiar in the books ; as, for instance, to prove the right of a tenant to an away-going crop.' In the very class of cases now before the Court the custom of the country has been admitted to decide the right of the tenant to remove fixtures.^ The case before Lord Chief Justice Treby turned upon that point.* The third exception turns upon the consideration whether the parol testimony was competent to establish such a usage and custom. Competent it certainly was, if by competent is meant that it was admissible to go to the jury. Whether it was such as ought to have satisfied their minds on the matter of fact was solely for their consideration ; open, indeed, to such commentary and observation as the Court might think proper in its discretion to lay before them for their aid and guidance. We cannot say that they were not at liberty, by the principles of law, to infer from the evidence the existence of the usage. The evidence might be somewhat loose and indeterminate, and so be urged with more or less effect upon their judgment ; but in a legal sense it was within their own province to weigh it as proof or as usage. The last exception professes to call upon the Court to insti- tute a comparison between the testimony introduced by the. plaintiff and that introduced by the defendant against and for the usage. It requires from the Court a decision upon its relative weight and credibility, which the Court were not justified in giving to the jury in the shape of a positive instruction. ' 2 Starkie on Evidence, Part IV, p. 453. ' Woodfall's Landlord and Tenant, 218. ' Buller's Nisi Prius, 34. IN REALTY. 139 Upon the whole, in our judgment, there is no error in the judgment of the Circuit Court, and it is affirmed, with costs. Elwes V. Maw, 3 East, 38 ; Whitney v. Brasto, 4 Pick. 310 ; Homes v. Trem- per, 20 Johns. 29. But see 13 Pa. St. 438 ; Bnckman v. Cutwater, 28 N. J. Law, 518. To the same point. MiDDLEBKOOK V. COEWIN. Supreme Court of New York, 1836, 15 Wend. 169. Nelson, J. It is laid down in several books that manure in heaps, before it is spread upon the land, is a personal chattel : 11 Viner, 175, tit. Executors ; Toller's Law of Execu- tors, 150; Matthew's Executors, 27. It further appears that it is common to insert a covenant in the lease of a farm, to leave the manure of the last year upon it. All this would seem to imply that the article belongs to the tenant, and that with- out a covenant he might remove it. If a farm is leased for agricultural purposes, good husbandry, which without any stipulation therefor is implied by law, would undoubtedly re- quire it to be left ; if rented for other purposes, this conclusion might not follow. In Watson v. Welsh, tried in 1785, in sum- ming up to the jury, the Judge said that it was matter of law to determine what was using the land in a husbandlike man- ner, and expressed the opinion that under a covenant so to work a farm the tenant ought to use on the land all the ma- nure made there, except that when his time was out he might carry away such corn and straw as he had not used there, and was not obliged to bring back the manure arising therefrom : Woodfall's Landlord and Tenant, 255 ; 1 Esp. N. P., part 2, p. 131. Perhaps this rule should be taken with some qualifi- cations. The practice and usage of the neighboring country, and even in relation to a particular farm, should enter into the decision of the question: 4 East, 154; Doug. R. 201; Holt's N. P. R. 197 ; 2 Barn. & Aid. 746. This is reasonable, 140 ILLUSTRATIVE CASES because the parties are presumed to enter into the engagement with reference to it, where there is no express stipulation. What may be good husbandry in respect to one particular soil, climate, etc., may not be so in respect to another. Independ- ently, however, of the usage and custom of the place, the rule of Mr. Justice Buller, I apprehend, may be the correct one. In the recent case of Brown v. Crump, 1 Marsh, 567, Chief Justice Gibbs said that he had often heard him (Mr. Jus- tice Buller) lay down the doctrine " that every tenant, where no particular agreement existed dispensing with that engage- ment, is bound to cultivate his farm in a husbandlike manner, and to consume the produce on it. This is an engagement that arises out of the letting, and which the tenant cannot dis- pense with, unless by special agreement." Without carrying the doctrine to this extent, we may, I think, safely say, upon authority, that where a farm is let for agricultural purposes, no stipulation or custom in the case, the manure does not belong to the tenant, but to the farm ; and the tenant has no more right to dispose of it to others, or remove it himself from the premises, than he has to dispose of or remove a fixture. Case is the appropriate action for the injury complained of : 1 Chitty's PI. 142. The tenant having no authority himself to remove the manure, could give none to the defendant. The judgment of the Common Pleas must be reversed, and that of the Justice affirmed. Judgment accordingly. Sawj'er v. Twiaa, 26 N. H. 345 ; Wetherbee v. Ellison, 19 Vt. 379 ; Buck- man V. Outwater, 28 N. J. Law, 581. See, also, Cory v. Bishop, 48 N. H. 146; Dame v. Dame, 34 N. H. 429 ; Gallagher v. Shipley, 24 Md. 418. IN BEALTY. 141 DOMESTIC FIXTURES. Domestic fixtures, as stoves, pictures, etc., remain personalty dur- ing the term as bet'ween landlord and tenant. Gaffield v. Hapgood. Supreme Judicial Court of Massachusetts, 1835. 17 Pick. 192. Putnam, J. The fire-frame was without doubt personal property before it was fixed to the freehold. But afterward it became a part of the house, and would have passed by a deed of the house as a door or window of the house would have passed, provided there were no exception in the deed to the contrary. But although it is to be considered as a fixture, yet the lessee during the continuance of his lease might have removed it : Lawton v. Lawton, 3 Atk. 16, in notis. But he must remove it during the term. He cannot lawfully do it afterward. In Lee V. Risdon, 7 Taunt. 188, Gibbs, C. J., says, unless the lessee uses the privilege of severing fixtures during the term he can- not afterward do it ; adding, " and it never was heard of that trover could be afterward brought." While it remained fixed to the freehold, it is clear that if one had unfixed and taken it away at one time, it would not have been a felony, but a trespass. The case of Penton v. Robart, 2 East, 88, might seem to recognize the right of the tenant to remove a fixture after the expiration of the term. That was a trespass for breaking a close and removing a build- ing. It was brought by a landlord against the tenant. The defendant made no defense to breaking and entering the close, and the plaintiff recovered a shilling for that, but the defendant pleaded a justification for removing the building as set forth in the declaration, that it was a building erected by him on the premises for the purpose of carrying on his trade, and that he still continuei in possession of the premises at the time when, etc. The justification was held' sufiicient. The relation of landlord and tenant must have been considered as having continued, and as still existing in respect to the demised premises, notwithstanding the first term had expired. The 142 ILLUSTRATIVE CASES defendant, as it seems to me, might and ought to have pleaded the general issue as to breaking and entering the close and a justification as to the rest. If the fixture should not be removed during the term, and the tenant should quit, and the landlord take possession after- ward, the law is very clear that the fixture becomes a part of the freehold, and that the party who was tenant cannot legally take it away afterward. And there are no facts stated in the present case which will vary this well-established rule of law. The circumstance that the owners of the estate offered it for sale with a reservation of the fire-frame for the tenant, who was then in possession, is of no avail ; because the sale was not made. The tenant sold the fire-frame to the plaintiff on the day before he left the premises. The vendee could not be in a better situation than the tenant was. He might, as has been said, have severed the frame from the chimney while his tenancy continued, but he left the premises, with the frame attached and fixed by brick and mortar to the house. It is very certain that thereupon it became the property of the owners of the freehold. There are various annexations to the freehold estate, which, if the tenant make them at his own expense, cannot be re- moved by him during the term. As if he puts glass into the windows : Co. Litt. 53 a ; and the reason given is, that the glass is become part of the house. It shall go to the heir and not to the executor, for as is said in Herlakenden's Case, 4 Co. R. 62, if they (the windows) be open to the tempests and rain, waste and putrefaction of the timber would follow. So I ap- prehend it would be, if the tenant should shingle the house, or put another story upon it. Such necessary or even expen- sive reparation or addition would, at this day, be considered as given to the owner of the freehold. But the law has accommodated itself to the existing ad- vanced state of society ; and the tenant may, during the term, take away chimney-pieces; and even a wainscot, if put up by himself : Co. Litt. uhi sup. (Hargr. note 5) ; which, as the law IN REALTY. 143 stood before and at the time of Lord Coke, he could not have been permitted to do. The reason of the relaxation of the rule is found in the public policy and convenience, which permit the tenant to make the most profitable and comfortable use of the premises demised that can be obtained consistently with the rights of the owner of the freehold. The inheritance is not to be preju- diced. The law upon this subject was very much discussed in Elwes V. Maw, 3 East, 38, by the Court and bar ; and such an- nexations made with regard to trade were recognized; but such as were made in regard to agricultural improvements were still left to the operation of the old law ; with what cor- rectness of inference, it is not necessary in the case now under consideration to decide. For this case is clear of all difficulty, and is decided in favor of the defendant for the reasons before suggested. Plaintiff non-suit. Wall V. Hinds, 4 Gray, 271 ; Bircher v. Parker, 40 Mo. 120 ; Seegem. Pettit, 77 Pa. St. 440 ; Hayes v. Doame, 11 N. J. Eq. 14. TIME OF EEMOVAL. Fixtures must be removed during the term in the absence of any agreement to the contrary. Davis v. Buffum. Supreme Judicial Court of Maine, 1863. 51 Me. 160. Appleton, C. J. On the 7th of January, 1854, the defendant leased his saw-mill to Samuel Mitchell and A. C. Grant, who put the machinery which is the subject-matter of the present suit in the same. After remaining sometime in possession of the premises leased, they assigned the lease and sold the machinery to the plaintiffs, who thereupon entered and occu- pied. During their occupation, and before the expiration of the term, the defendant, by deed of warranty, dated December 144 ILLUSTRATIVE CASES I 15, 1854, conveyed his mill, "being known as the Buffum mill, . . . with the privileges and appurtenances thereto be- longing," to Joseph Dane, Jr., and Oliver Perkins, Jr., to whom the plaintiffs attorned, paying to them rent during the residue of the term, which expired the last of July, 1855, when they quit the premises, leaving their machinery therein. On or about the 1st of September following, they made a demand upon the defendant for the articles in controversy. It appears in evidence that the defendant, before executing his deed, claimed the machinery to be so afl&xed to the mill as to have become a part of the realty and not removable — and that his grantees, after its execution, claimed that they were owners of the same, but neither they nor the defendant ever interfered with the plaintiffs' possession or use of the same during the continuance of the lease, nor then, nor at any other time, prevented their removing the same. When chattels are so far annexed to the freehold as to be- come fixtures, they pass, in all cases, to a grantee of the land, unless expressly excepted in the conveyance : Preston v. Briggs, 16 Vt. 124, and become the property of a mortgagee as against a mortgagor : Butler ■;;. Page, 7 Met. 40 ; Corliss v. McLagin, 29 Me. 115. So the judgment creditor acquires them by a levy on the real estate of his debtor : Trull v. Fuller, 28 Me. 544. But, in the case at bar, Dane and Perkins were aware of the plaintiffs' lease and their rights under the same, and could, therefore, acquire no rights as against them, though, perhaps, they might have had a claim against their grantor on the covenants of his deed : Powers v. Dennison, 30 Vt. 752. As between landlord and tenant, the latter maj'^, during the continuance of his lease, remove fixtures erected by him for purposes of trade, manufacture, or ornament, when the removal can be effected without permanent injury to the freehold. But this removal must be made during the continuance of the lease. In Leader v. Honewood, 94 E. C. L. 544, it was held that an outgoing tenant has no right to enter for the purpose of severing and removing fixtures after the expiration of his term, and a new tenant has been let in possession. The general IN REALTY. 145 rule is " that fixtures go, at the expiration of the term, to the landlord, unless the tenant has during the term exercised the right to remove :" Heap v. Barton, 12 C. B. 274, 74 E. C. L. " All fixtures," observes Redfield, J., in Preston v. Briggs, 16 Vt. 124, " for the time being are part of the freehold, and, if any right to remove them exists in the person erecting them, this must be exercised during the term of the tenant, and, if this is not done, the right to remove is lost, and trover cannot be maintained for a refusal to give them up." And such seems to be the law as determined in Stockwell v. Marks, 17 Me. 455 ; in Massachusetts, in Gaffield v. Hapgood, 17 Pick. 192 ; in Shephard v. Spaulding, 4 Met. 416 ; in New Hampshire, in State V. Elliott, 11 N. H. 540, and Conner v. Cofiin, 2 Foster, 541 ; and in Connecticut, in Burr v. St. John, 16 Conn. 522. It was, however, held by Jarvis, C. J., in Heap v. Barton, 12 G. B. 274, 74 E. C. L., " that the tenant may remove the fix- tures, notwithstanding the term has expired, if he remains in possession of the premises." But the plaintiffs' right of removal, whatever it was, remained unimpaired and unaffected by the defendants' deed to Dane and Perkins, and they might at any and all times have exercised it during the lease, had they so chosen. This being an action of trover, the only question presented is whether the plaintiffs have shown an act of conversion on the part of the defendant. The plaintiffs claim to recover on the ground that the de- fendant's deed to Dane and Perkins was per se a conversion — before the expiration of his lease. But this is not so. When that deed was executed the plain- tiffs were in the undisturbed enjoyment of their property, and so remained during the whole duration of the lease. The deed of the defendant conveyed nothing he did not own ; certainly not to grantees with notice of all the facts. The giving a bill of personal property in the possession of a third person, who is the owner of the same, without any other interference there- with or delivery thereof, is not, as against such owner, a con- version by either the person giving or receiving such bill of 10 146 ILLUSTRATIVE CASES sale. In Fuller v. Taber, 39 Me. 519, the plaintiff brought an action of trover for a building which had been placed on the land of another by his precedent consent, or subsequent assent. The defendant, when a demand was made, said he had bought it and paid for it. The Court instructed the jury that taking a quit-claim deed of the land and building and putting it on record would not of itself constitute a conversion on the part of the individual so receiving the deed. Neither can the mere giving a deed of land leased, the lessee continuing in quiet possession, be deemed a conversion of fixtures which the tenant has a right to remove during his term. The lease was as valid after as before the deed. The rights of the lessee remained the same. The deed was no more a conversion of the tenant's fixtures than it was a breach of the covenants of the lease. The mere taking a mortgage of personal property from one having no title and recording the same, without taking pos- session of the mortgaged property or interfering with the same, constitutes no conversion for which trover will he : Burnside V. Twitchell, 43 N. H. 390. The demand of the plaintiffs in September, after they had quitted the premises, constituted no conversion. A demand and refusal are not necessarily a conversion, but only evidence from which a conversion may be inferred. After the expiration of the lease the tenant's right of removal ceased. " Fixtures," remarks Alderson, B., in Winshall v. Lloyd, 2 Mees. & Wels. 450, " cannot become goods and chattels until the tenant has exercised his right of making them so, which he can only exer- cise during his possession. The moment that expires he can- not remove them, and trover cannot, therefore, be maintained for them." In Mcintosh v. Trotter, 3 Mees. & Wels. 184, it was held that a lessee could not, even during his term, maintain trover for fixtures which were attached to the freehold, and that a sale of them was not a conversion. " Would trover lie for a crop of standing corn ?" inquired Parke, B. Nor could the tenant maintain trover against his landlord for not permitting him to enter after his^ lease had expired, to remove fixtures which he had erected : Stockwell u Marks, 17 Me. 455. IN REALTY. 147 When this demand was made, the defendant had neither actual nor constructive possession of the property demanded. He had no right to it nor control over it. He could not, there- fore, comply with the demand. In such cases a demand and refusal only will not support an action of trover : Kelsey v. Griswold, 6 Barb. 436. A defendant, in an action of trover, cannot be deemed guilty of a conversion of the property upon evidence of a demand and refusal merely, unless the property was in some way subject to his control : Yale v. Saunders, 16 Vt. 243. So, if the defendant has not the power to comply : Carr v. Clough, 6 Foster, 280; Boobier v. Boobier, 39 Me. 406. Plaintiff non-suit. Kichardson v. Rogers, 37 Minn. 461 ; Thorn v. Southerland, 25 N. E. Rep. 362; Friedlander v. Rider, 47 N. W. Rep. 83 ; Burke v. Hallis, 98 Mass. 55; Merit v. Judd, 14 Cal. 59. To the same point. time fixed by contract. White's Appeal. Supreme Court of Pennsylvania, 1849. 10 Pa. St. 252. Rogers, J. As this is a case between landlord and tenant, or rather a contest between the creditors of the latter, the claim to have the articles considered as personal property is received with latitude and indulgence. That which would otherwise be held as part of the realty, and inseparable from it, is treated, in favor of trade, as personalty, with all the inci- dents and liabilities of that species of property. Here, the engine and other machinery erected by the lessee to carry on the works, with the building, which is nothing more than a covering for the machinery, extending into the mines, by which the mines are worked, and are useless for any pur- pose unconnected with the working of the mines and trans- porting the coal are personal property. This is clear on the authority of Lawton v. Salmon, 1 H. Bl. 259, n. ; Elwes v. Maw, 148 ILLUSTRATIVE CASES 3 East. 53 ; 2 Pet. 137 ; Lemar v. Miles, 4 W. 330, and other cases. The building being attached to the freehold makes no diiferenc^: Voorhis v. Freeman, 2 W. & S. 116. Besides, if there was any doubt on general principles, that doubt is re- moved by the contract ; for the lessors and lessee agree that all the steam engines, fixtures, and improvements erected by the lessee on the premises, from materials furnished by him, may be removed and taken away at the expiration of the lease, or other determination thereof, unless the lessors or their assigns elect to retain the same. The sixth clause of the contract, as has been contended, does not interfere with this construction ; for it extends to such houses only as may be required for the accommodation of the miners (obviously dwellings), opening and fitting up mines, making railroads, and other repairs or work done by the lessee about the demised premises. Such, according to the agree- ment, are to be made at the costs and charges of the lessee, without any claim on the lessors. The lessors assert no right to this machinery. It is admitted to be the property of the lessee. That consent will change property, otherwise real, into personal estate, is ruled in Piper v. Martin, 8 Barr, 211, and Mitchell V. Freedley, ante, 198. For, whether attached to the realty or not, or in whatever manner attached, is immaterial, when the parties agree to consider it personal property : 8 Barr, 211 ; 2 W. & S. 116. The building, then, and machinery, although fixtures, being chattels, are not the subject of a mechanics' lien, as is " ruled in Church & Carothers v. Griffith & Dixon, decided at Pittsburgh at our last term. The Act of the 28th of April, 1840, has no bearing on this question, as its only effect is to modify the remedy for the recovery of a mechanics' lien, so that no greater estate, in the premises charged with the lien can be sold than was vested in the person in possession at the time the building was erected; and this, whether the lien was created before or since the pas.- sage of the Act : Evans v. Montgomery, 4 W. & S. 218 ; O'Con- ner v. Warner, lb. 223. The Act curtails, but does not enlarge the right of the mechanics' lien creditor. On what species of IN REALTY. 149 property the lien attaches is left as before the passage of the Act. As the cases cited show that this is not a case where mechanics are entitled to a lien, not being a building within the meaning of the Act, we are of opinion that the decree of the Court, awarding $545.15, the amount of the mechanics' lien to Richard Hart, be reversed. The record is remitted to tlie Court of Common Pleas, with orders to carry this decree into effect. Adams v. Goddard, 48 Me. 212 ; Hartwell v. Eelley, 117 Mass. 235 ; Alex- ander V. Tooey, 13 £an. 64. 150 ILLUSTRATIVE CASES CONSTRUCTION OF THE RULE. 1. BETWEEN VENDOR AND VENDEE. Unless reserved by the grantor, fixtures vrill pass under the deed to the grantee. Miller v. Plumb. Supreme Court of New York, 1827. 6 Cowen, 665. WooDWORTH, J. The first objection is to the form of the record. A continuance is entered from June to October Term ; and then an award of venire to December Term, then next, at which day came the parties ; and the jurors also came. This is sufficiently plain, and must be understood that the parties and jurors appeared at December Term. Although under the statute the continuance might have been awarded from June to December, without any award of venire, the present entry is substantially the same ; and, at most, is only a miscontinu- ance, which is cured by the statute of jeofails : 3 John. 183. The more important question is whether the potash kettles, being affixed to the freehold, passed with the land. If they did, the Court below erred ; and the judgment must be re- versed, unless the case falls within some of the qualifications or exceptions to the general rule. That rule appears to be well established ; whatever is affixed to the freehold becomes part of it, and cannot be removed. Exceptions have been ad- mitted between landlord and tenant ; between tenant for life or in tail and the reversioner ; yet the rule still holds between heir and executor : Bull. N. P. 34. In Holmes v. Tremper, 20 John. 30, Chief Justice Spencer says, " when a farm is sold without any reservation the same rule would apply as to the right of the vendor to remove fixtures as exists between the heir and executor." IN REALTY. 161 Lord Ellenborough, in the case of Elwes v. Maw, 3 East, 38, lays down the law relative to fixtures as arising between three classes of persons : 1. Between heir and executor. 2. Between the executors of tenant for life or in tail and the re- mainderman, or reversioner. 3. Between landlord and tenant ; and observes that " in the first case the rule obtains with the most rigor in favor of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel any thing which has been affixed thereto." In the latter case the reasons for relaxing the rule are obvious, upon motives of public policy. The tenant is thereby encouraged to make im- provements,' and the interest of trade promoted, while the land- lord or reversioner has no cause to complain, inasmuch as the farm is restored to him in the same state as when he parted with it. A different rule would effectually check all improve- ments by the tenant, where it is known that at the end of the term they are to be surrendered to the landlord or the rever- sioner of tenant for life. But the case between heir and ex- ecutor and vendor and vendee is widely different. The ances- tor or vendor has the absolute control, not only of the land, but of the improvements. The heir and executor are both repre- sentatives of the ancestor ; the vendor has an election to sell or not to sell the inheritance. If he does elect to sell, he knows that by law the fixtures pass ; and there is no good reason why that law should inter- pose in his behalf, and protect him against the loss of im- provements which he has deliberately chosen to part with. It is for reasons of this kind, I apprehend, the old rule of law seems still to hold. In 7 Bac. 258, this is expressly recog- nized. The author observes that although in an action of trover by an executor against an heir for a cider-mill, tried at Worcester, before Lord C. B. Comyns, his lordship was of opin- ion that it was personal estate, and directed the jury to find for the executor ; yet Lord Mansfield has observed that that case, in all probability, turned upon a custom ; and that where no circumstances of that kind arise the rule still holds in favor of the heir seems fully estabHshed by the decision of the 152 ILLUSTRATIVE CASES Court of King's Bench, in Lawton v. Lawton, Easter, 22 Geo. 3. The title of the case referred to seems to be Lawton v, Salmon, and is to be found in 1 H. Bl. 259, note a. As re- ported, I do not find that Lord Mansfield, in giving this opinion of the Court, says that the case before Comyns, C. B., turned upon a custom. Yet the whole scope of the opinion is clearly against it. He recognizes the relaxation of the old rule as confined to cases between landlord and tenant, and tenant for life and remainderman ; where, for the benefit of trade, and as an encouragement to lay out money in improv- ing the estate, there has been a departure from the old rule, which is no injury to the remainderman, because he takes the estate in the same condition as if the thing in question had never been raised. He adds : " I cannot find that between heir and executor there has been any relaxation of this sort^ except in the case of the cider-mill, which is not printed at large." It was a nisi prms decision, and evidently considered, as not controlling the general law. From this review it appears to me that the case of vendor and vendee rests on the same ground as that of heir and ex- ecutor ; and that the fixtures in such cases are not considered as personal property. I incline to think the evidence of con- version was sufficient, and that the plaintifi" was entitled to re- cover for some articles not annexed to the freehold ; but as damages were recovered for the whole, which cannot now be severed, the judgment in the Court below must be reversed, and a venire de novo awarded by the Common Pleas of Monroe. Judgment reversed. Park V. Baker, 7 Allen, 78 ; Philbroke v. Ewing, 97 Mass. 133. IN REALTY. 153 To the same effect. vendor to owner in common. Baldwin v. Breed. Supreme Court of Connecticut, 1843. 16 Conn. 60. Williams, C. J. This was a writ of partition, in which the plaintiffs claimed that they and the defendants were equal owners of the land described, and the buildings, except a store thereon, which, they aver, belongs to them in severalty. The defendants plead, that they do not hold in manner and form, etc. ; and a verdict is found for the plaintiffs. The motion shows, that it was proved and admitted that Hancox, under whom the defendants claim, and Wright, under whom the plaintiffs claim, were tenants in common of the land claimed to be aparted ; and that Wright erected the store upon the premises, at his sole expense. It is also claimed and not denied that the trial below proceeded upon the supposition that the plaintiffs had proved that the store was placed upon this land by Wright, with the consent of Hancox ; and unless it were so, we think there could hardly have been a serious question in the case. We proceed, therefore, upon the ground that this fact constitutes part of the case ; and the result to which a majority of the Court have arrived upon this point, makes it unnecessary to consider the other questions argued before us. There is no claim that the building in question was not erected in the manner in which other buildings of this kind are erected — that is, it was permanently annexed to the free- hold. Nor is it pretended that there was any contract between the parties relative to the removal or the ownership of this buildmg, unless such contract can be inferred from the fact that it was built by one tenant in common, with the consent of his co-tenant. But the plaintiffs contend that the building thus erected belongs to him who placed it there ; while the defendants contend that it follows the ownership of the land. 154 ILLUSTRATIVE CASES The general rule of law, that whatever is fixed to the realty becomes part of it, and cannot be removed, but partakes of all the incidents and properties of the freehold, is one of great antiquity : Co. Litt. 4, 53 ; Bull. N. P. 34. And the maxim, " Cujiis est solum ejm est usque ad cselum " is not to be discarded as frivolous, when we consider how important it is in the designation of the ownership of property. And although in modern times it has been found necessary to introduce some exceptions to this rule, yet we agree with Justice Cowen that the actual annexation and total disconnection is the most cer- tain and practical, and should therefore be maintained, except where plain authority - or usage has created exceptions ; and the general importance of the rule is so great that more evil will result from frittering it away by exceptions, than can arise from the hardship of particular cases : Walker v. Sher- man, 20 Wend. 653-4. The relaxation of the rule has been principally in cases be- tween lessor and lessee, tenant for life and in tail and the remainderman: 3 Atk. 14; 16 Bui. N. P. 34. Here, the question does not arise between such parties, but between ten- ants in common, which case, saj's the learned Judge before cited, is to be decided on the same principle as if it had arisen between grantor and grantee, or as if partition had been effected by the parties by mutual deeds of bargain and sale. As between such parties, the doctrine of a fixture's making part of the real estate and passing with it is more extensively applied than between others : 20 Wend. 638. Now, if a deed had been given of this land, by one of the joint owners, and not a word said about the buildings, or if partition deeds had been made between them, it would seem as if there could be no doubt as to the effect of such deeds, and that the build- ings would pass with the lands, as well as the fences : Isham V. Morgan, 9 Conn. 377. The title of a purchaser or creditor ought not to be qualified or impaired, for want of an inquiry as to which of the tenants in common planted the trees, set the hedges, or erected the fences or buildings : no author- ity has been shown and no usage proved in support of such IN REALTY. 155 a claim. And when we consider the extreme uncertainty as to title which would result from the adoption of such a principle, and the embarrassments which would attend the purchaser and the creditors, together with the anxious care which our law has shown in making as public as possible the title to real estate, we cannot consent to incorporate the prin- ciple contended for, unless compelled by authority. A little change in the situation of parties in this case will serve to show some of the difficulties which will result. Hancox, we will suppose, wants to sell his interest in this land ; the purchaser examines the title, and finds that Han- cox and Wright are the owners, and have the record title ; he goes no further, but completes the purchase'; after which Wright comes out with a claim that this shop was his alone, and thus defeats the record title. Or a creditor of Hancox sets off one undivided half of this land and buildings as his ; he must be deprived of the store, in consequence of a private agreement between the tenants in common. Or perhaps a creditor of Wright sets off one-half the land and buildings on execution, as the estate of Wright ; Wright may say that as this was his sole property, the creditor could not take one un- divided half ; or perhaps might claim that it ought to have been sold at the post as his personal property. When one man voluntarily erects a building upon the land of another, without his consent, he acquires no right in the land, and retains none in the building, but the building be- comes the property of' him who owns the freehold : Elwes V. Maw, 3 East, 48 ; Washburn v. Sproat, 16 Mass. 449 ; 5 Day, 467. When it is erected by consent of the owner, differ- ent consequences may result ; though by strict operation of law, the title vests in the owner of the land. Such, we under- stand, was the doctrine of this Court in Benedict v. Benedict. Judge Swift says, in strict law, the house belongs to the owner of .the soil; and the same principle is advanced by C. J. Parsons, in' the case of Wells v. Banister, who says that by strict operation of law the father (on whose land the son had, by his consent, built a house) might disturb the son in the pos- 156 ILLUSTRATIVE CASES session of the house, and remove him frojn it : 4 Mass. 514. It is true that a Court of Law in Massachusetts, in the case ahove cited, held, that a house so built was personal property in the builder ; but it is to be recollected that there was then no Court of Chancery in that State ; of course, Courts of Law must adopt, to some extent, the principles of Courts of Equity. In Prince v. Case, 10 Conn. 378, we alluded to these cases of Benedict v. Benedict and Wells v. Banister, as somewhat opposed to each other, without an intimation that the former decision was incorrect. In Parker v. Redfield, 10 Conn. 490, where the lessor had agreed with the lessee, that he might erect buildings on the land, and, at the end of the term, re- move them, this Court held that the lessee had an interest in the building entirely distinct from that of the lessor, and that this interest was a subject of taxation. And the Court say, the buildings are treated [by the parties] as personal property, and are placed under the control of the lessee, as any other personal property. As the question there was a mere question of a right to tax, perhaps the result would have been the same, whether the property was treated as real or personal at law. That the Court did not intend to overrule or impair the authority of Benedict v. Benedict is apparent from the fact that this case is not alluded to at all in the discussion. And if that case is law, we are not able to discern any ground the plaintiffs can have to maintain this action at law. There, the Court say a Court of Chancery will give ample relief accord- ing to the circumstances of the case, and will apportion justice to the parties. A Court of Chancery can so mold such agreements as to do entire justice ; as where a party claimed a parol contract to be carried into effect on the ground of part performance, but the terms of the agreement could not be dis- tinctly made out ; but as possession had been taken and im- provements made, the Court allowed a reasonable compensa- tion for beneficial and lasting improvements : Packhurst v. Van Courtland, 1 Johns. Ch. R. 274. But in the case before us, we see no ground even for the in- terference of a Court of Chancery. No agreement is proved as IN REALTY. 157 in Parker v. Redfield, that the shop should belong to "Wright, or that he might remove it ; nor is there anything to show that either party contemplated that it should be the separate property of Wright, unless it can be inferred from the consent of Hancox, asked by Wright. Does the consent of Hancox fairly authorize such an inference ? For aught we know, Hancox may have consented because he had claims for some other buildings erected, or improvements made by him. The fact of Hancox's consent would no more prove that he intended the buildings should be the sole property of Wright than Wright's having consented that Hancox should erect an ex- pensive iron fence, or a hawthorne hedge, would prove that he expected such hedge or fence should be the sole property of Hancox. For necessary and reasonable improvements made by one tenant in common, the other must be accountable ; but when unusual or unnecessary expenses are incurred, it might be otherwise if done without the consent of the co-tenant." Ac- cordingly, it may become important in reference to the account to be settled that when any extraordinary expenses are to be incurred, consent should be obtained. And this, we think, accounts entirely for the negotiations between these parties. Each had a right to occupy any part of this land, or to make improvements upon it ; but improvements upon the common property must be for the common benefit : and if desired by both, must be at the joint expense. If a person claims that his case is an exception from this rule, the least that can be required of him is to show that the contract under which he claims this, demands such a construction : we cannot infer it from the naked fact that the co-tenant consented to his act. Whatever construction is given to cases where buildings are placed on lands of others, we do not think it can control a case of this kind, where there is a common interest. In Parker v. Eedfield, the Court proceeded entirely upon the ground that there was no common interest between the lessee and the lessor, and distinguish that case from Osborn v. Humphrey, by say- ing that there the buildings were evidently erected with a Tiew to their permanent continuance ; and there is no intima- 158 ILLUSTRATIVE CASES tion of an ownership in them separate and distinct from the ownership in the land. They were in fact a part of the land, as much as fences or any other improvements : 10 Conn. 498. The case of Osborn v. Humphrey was the ordinary case of a tenant for nine hundred and ninety-nine years erecting buildings on the leased land ; and the Court say the build- ings are attached to the land : 7 Conn. 340. And in Winn v. Ingilby, 5 B. & Aid. 625 (7 E. C. L. 214), the Court of King's Bench say that fixtures erected by the owner of the freehold cannot be taken in execution by the sheriff, though they might have been taken, if erected by the tenant. In the absence, then, of any special agreement between the parties, we think neither a Court of Law nor a Court of Chancery could treat this store as the separate property of one of these tenants in com- mon. And the remark of C. J. Tilghman, in Lyle v. Ducomb, 5 Binn. 588, is entirely applicable to this case : " The idea of separating the building from the ground on which it stands is altogether novel, and cannot be carried into effect without great difiiculty." It has been suggested that the committee who may go out to make partition can settle the proportions, and adjust this matter in such a manner as to do justice between the parties. But the interest and proportions of the respective parties are settled by the verdict of the jury in this case, and must be conclusive upon the committee. The declaration alleges that the plaintiffs and defendants are joint owners in equal moie- ties of this land ; and that the plaintiffs are sole owners of this store. This the defendants deny ; and the jury have found for the plaintiffs. Now the committee must take this fact for truth, as found, or they may find directly contrary to the ver- dict of the jury ; which cannot be allowed, any more than au- ditors can find that the defendant was never bailifi" and re- ceiver. If, therefore, the plaintifis are not the sole owners of this store, manifest injustice is done by this verdict. A majority of the Court, therefore, are of opinion that the plaintiffs ought not to retain it ; and advise a new trial. Parsons v, Copeland, 38 Me. 537 ; Plummer v. Plummer, 30 N. H. 569. IN REALTY. 159 To the same efifect. UNDER CONTRACT OF PURCHASE. Hemenway v. Cutlek. Supreme Judicial Court of Maine, 1863. 51 Me. 407. Appleton, C. J. The levy, under which the demandant claims, was made upon the demanded premises as the real estate of William Hicks, in whom the title appeared by the record to be. But Hicks had, many years before, conveyed his interest in the same to Thomas Murray, by an unrecorded deed, from whom the title passed, by various mesne convey- ances, to one Jones, who gave a bond for a deed to the tenant. The tenant, Cutler, having a bond for a deed, entered into the occupation of the premises in dispute, and, while so in occupation, erected a barn thereon, which is specially excepted from the levy as personal property belonging to him. If the barn is to be deemed personal property, it was rightfully ex- cepted. If it was real estate, or belonged to the realty, the levy was erroneous, for it was manifest that its value was excluded from the estimate of the appraisers. A creditor cannot, by making a levy, change the character of his debtor's estate, and convert a part of it into personal property, by taking the land under the buildings and leaving the buildings as personal estate : Grover v. Howard, 31 Me. 546 ; Jewett v. Whitney, 43 Me. 243. It is well settled that erections made by a mortgagor, or one occupying land under a bond for a deed, are to be regarded as real estate, and are not removable by the occupant as personal property: Corliss v. McLagin, 29 Me. 115; Butler v. Page, 7 Met. 40 ; Kingu Johnson, 7 Gray, 239 ; Winslow v. Merchants' Ins. Co., 4 Met. 306. . As between Cutler and Jones, the barn must be deemed as per- manently a part of the realty. Erections made voluntarily and without a contract, or with- out the consent of the owner, become part of the real estate, 160 ILLUSTRATIVE CASES and inure to the benefit of the owner of the fee : Pierce v, Goddard, 22 Pick. 559 ; Sudbury v. Jones, 8 Gush. 189. As between Cutler and Hicks, if the latter was the owner of the soil, the former could not claim the barn as personal prop- erty. But it is argued that the tenant held adversely to Hicks, and would, therefore, be entitled to betterments. This may be true, but, if so, it does not give the tenant the right of removal, or make the erections by him personal property. They are part of the realty, for which the owner of the fee must pay, if, in a suit for the recovery of his land, he makes an election so to do. If the demandant elects to abandon, they, as a part of the realty, belong to the tenant upon his payment of their esti- mated value. If, after an abandonment by the demandant, the tenant fails to pay the estimated value of the land within the time and according to the provisions of the statute, then the improvements pass to and vest in the owner of the fee. In no event are they to be regarded as personal property, even when the tenant is evicted without suit : R. S., 1857, c. 104. In that case the tenant maj' recover the value of his improvements, but they are a part of the realt}'^, and belong to the owner of the fee. The remedy of the tenant is by suit, and not by re- moving such of his improvements as may be removable. In any aspect of the case, as presented, the barn erected by the tenant on the land in controversy cannot be regarded as his personal property. The levy, therefore was erroneous, by excluding its value from the appraisement. Plaintifi" non-suit. Poor V. Oakman, 104 Mass. 309 ; Ogden v. Stock, 34 HI. 522 ; Bodlen et cl. V. Barker, 4 Kan. 446. Contra : Kaymond v. White, 7 Cowen, 319 ; Kosse's Appeal, 9 Pa. St. 496. IN EEALTY. IgJ. VENDOR'S GRANT OF BUILDING. A grant of the buildings will include the land on which the build- ings stand. Greenwood v. Muedock. Supreme Judicial Court of Massachusetts, 1851. 9 Gray, 20. BiGELOW, J. The estate demised to Harwood by the inhab- itants of Winchendon for the term of nine hundred and ninety-nine years is in these proceedings to be treated as an estate in fee simple, by virtue of the Rev. Sts., c. 60, § 18, which provide that leasehold estates demised for one hun- dred years or more, so long as fifty years of the term remain unexpired, shall be regarded as an estate in fee simple, " as to everything concerning the redemption thereof when mort- gaged." The only question raised by the plaintiff is, whether the defendant acquired any interest in the land by virtue of the indenture of -mortgage of August 5, 1850, between Harwood and Morse, which has been assigned to the defendant, or whether it was a conveyance only of the materials used in the construction of the building. It seems to us that the terms of the grant bring it within the numerous cases in which it has been decided that laud will pass by a deed which does not contain any description of the land, but which grants only the structure which is erected upon it, so that a grant of a barn, a shop, a house, a well, a mill, will convey a title to the land under it and necessary to its enjoyment and use : Cheshire v. Shutesbury, 7 Met. 566 ; Forbush v. Lombard, 13 Met. 109 ; Johnson v. Ray- nor, 6 Gray, 110. In the present case the grant is of all the right, title, and interest which the grantor now has in the foundation or stone- work of the building, and also of all the " right, title, and interest" which the grantor "may have in and unto said building during its erection and completion, and after it is completed, as mentioned in said lease." Now the right which 11 162 ILLUSTRATIVE CASES the grantor had in said foundation, stone-work, and building, under the lease, was not merely or mostly a right to the ma- terials of which they were composed, but the more valuable right of having them on the premises as part of a structure, with a right to use and occupy them for a long period of time. It was a grant therefore of his right to the use and occupation of the land, as well as of the building or of the portion of it then erected. Such we think was clearly the intent of the parties. It is not reasonable to suppose that the grantee, when advancing money to complete the building, would take as security for his advances a mortgage on the materials only, which were to become part of the realty, and which, by the terms of the lease, when annexed to the freehold, he would have no right to remove or in any way render available as security for his loan. We are therefore of opinion that the respondent has a right to receive from the plaintiif for the redemption of the premises the advances made under said indenture, and the case must go to a master to determine the amount. Sherman v. Williams, 113 Mass. 481 ; Grear v. Bamom, 37 Conn. 229. 2. MORTGAGOR AND MORTGAGEE. The rule applying in case of vendor and vendee applies also to mortgagor and mortgagee. WiNSLOw V. Merchants' Ins. Co. Supreme Judicial Court of Massachusetts, 1842. 4 Mete. 310. Shaw, C. J. The Court are of opinion that the steam en- gine and boilers, and all the engines and frames adapted to be moved and used by the steam engine, by means of connect- ing wheels, bands or other gearing, as between mortgagor and mortgagee, are fixtures, or in the nature of fixtures, and con- stituted a part of the realty ; and that as all these fixtures were annexed to and made part of the realty by the mortgagor IN REALTY. . 163 they are part of the mortgaged premises, and passed by the first mortgage to the defendants. A different rule may exist in regard to the respective rights of tenant and landlord, tenant for life and remainderman or reversioner, and generally when one has a temporary and not a permanent interest in land. In those cases the rule as to what shall constitute fixtures is much relaxed in favor of those who make improvements on the real estate of others for the pur- poses of trade or other temporary use and enjoyment : Gaffield V. Hapgood, 17 Pick. 192. But the case of mortgagor and mortgagee stands upon a diSerent footing. The mortgagor, to most purposes, is regarded as the owner of the estate ; indeed, he is so regarded to all purposes, except so far as it is necessary to recognize the mortgagee as legal owner, for the purposes of his security. The improvements, therefore, which the mort- gagor, remaining in the possession and enjoyment of the mort- gaged premises, makes upon them, in contemplation of law he makes for himself and to enhance the general value of the estate, and not for its temporary enjoyment; whereas a tenant, making the same improvements upon the estate of an- other, with a view to its temporary enjoyment, must be pre- sumed to do it for himself, and not for the purpose of enhanc- ing the value of the freehold. This rule, of course, will apply only to that class of improvements consisting of articles added and more ' or less permanently affixed to the realty, in regard to which it is doubtful whether they are thereby made part of the realty or not, and when that question is to be decided by the presumed intent of the party making them. Take, for in- stance, the case of a dye-kettle set in brick-work, which is for the time annexed to the freehold, but which may be removed without essential injury to the building, and so as to leave the premises in as good a condition as if it had not been set. If so set by an owner of the fee, for his own use, it would, we think, be regarded as a fixture, an addition made to the realty by its owner, as an improvement, and would pass to the heir by de- scent, or to the devisee by will. But if the same addition had been made by a tenant for years, for the purpose of carrying 164 ILLUSTRATIVE CASES on his own business, we think he would have a right to re- move it, provided he exercise that right whilst he has the right- ful possession of the estate — that is, before the expiration of his term : 17 Pick, ubi sup. Supposing the point to be clear, on the one side, as between heir and executor, and on the other, as between tenant and landlord, how does it stand as between mortgagor and mort- gagee? In the case of Union Bank v. Emerson, 15 Mass. 159, it was held that such a kettle, set by the owner of the freehold, before the mortgage, could not be removed by the mortgagor, or taken as his personal property, but passed by the deed to the mortgagee. It was considered an immaterial fact that the mortgage deed did not mention appurtenances ; probably upon the ground that if the kettle was an appurtenance, and a for- tiori, if it was parcel, it would pass without express words : Kent V. Waite, 10 Pick. 138 ; and if it was neither, those words would not aid it. We are aware that in giving the opinion in that case it was stated by the Court that if the defendant, after making the mortgage, had put in the kettle, they would have considered him authorized to remove it before delivering pos- session to the plaintiffs. There is manifestly some mistake in this statement. It was not the defendant who made the mort- gage ; he was a purchaser of the kettle, the same having been removed by the mortgagor, after the plaintiffs took possession, and been sold by him to the defendant. But supposing, as is rather to be inferred from the context, that if the kettle had been put in by the mortgagor gifter the mortgage was made, the mortgagor would have had a right to remove it; it is to be remarked that no such point was decided by the Court, nor was it necessary,- upon the facts of that case; and from the whole tenor of this very short report it seems probable that the point was not much considered. In the recent case of Noble v. Bosworth, 19 Pick, 314, it was held that such kettles erected by the owner were to be deemed part of the realty and to have passed by a general deed of the estate, unless specially excepted. There the case of Union Bank v. Emerson was alluded to ; but the point was not then IN REALTY. 165 material, and the Court expressly avoided giving any opinion, either affirming or calling in question its authority as to the present point of inquiry, by stating that whatever doubt there might be as to such fixtures erected by a tenant on leased premises, or by a mortgagor, after the estate had been mort- gaged, there was none when erected by an owner. It is obvious that this question cannot arise where there is any express stipulation in the mortgage deed declaring either that such improvements to be made, and which are in their nature equivocal, shall or shall not be deemed fixtures, and be bound as part of the realty. The question is, what is the rea- sonable and legal construction of a deed, granting an estate in mortgage, in the usual terms, where there is no stipulation on the subject? Such a deed must, of course, include all addi- tions which become de facto part of the realty, and which are not in their nature equivocal ; because a title to the whole in- cludes every part. In regard to articles doubtful in their na- ture, we have already stated as our opinion that if added by the mortgagor it is to be considered as done by way of perma- nent improvement, for the general benefit of the estate, and not for its temporary enjoyment : Hunt v. Hunt, 14 Pick. 386. One of the objects, and indeed one of the most usual pur- poses of mortgaging real estate, is to enable the owner to raise money to be expended on its improvement. If such im- provements consist in actual fixtures, not doubtful in their nature, they go, of course, to the benefit and security of the mortgagee, by increasing the value of the pledge. The expectation of such improvement and such increased value often enter into the consideration of the parties in estimating the value of the property to be bound, and its sufficiency as se- curity for the money advanced. And we think the same rule must apply to those articles which in their own nature are doubtful, whether actual fixtures or not, on the ground of the presumed intention of the parties. A presumption arises from the relation in which they stand that such improvements are intended to be permanent and not temporary, and that the freehold and the improvements intended to be niade upon it 166 ILLUSTRATIVE CASES are not to be severed, but to constitute one entire security. The mortgage is usually but a collateral security for money which the mortgagor binds himself to pay, and is therefore a hypothecation only, and not an alienation of the mortgaged estate. And in this respect the distinction between the tenant for years and the mortgagor is broad and obvious. The tenant for years can have no benefit from his improvements after the expiration of his term but by his right to remove them when they are capable of removal ; but the mortgagor has only to pay his debt, as he is bound to do, and as it is pre- sumed he intends to do, and then he has all the benefit of his improvements in the enhanced value of the estate to which they have been annexed. The latter, therefore, may be pre- sumed to have intended to annex the improvements to the freehold and make them permanent fixtures, whilst the former must be presumed, from his obvious interest, to erect the improvements for his own temporary accommoda- tion during his term, intending to remove them before its expiration. The case of Gale v. Ward, 14 Mass. 352, is not, we think, an authority opposed to this opinion ; because it is manifest that the Court, in that case, regarded the cardiug-machines, though ponderous and bulky, as essentially personal property which might have been attached and removed as the personal prop- erty of the owner, even though there had been no mortgage ; and they had been erected by the owner in his own mill, for his own use. As to what shall be deemed fixtures and part of the realty, when the question does not arise as between landlord and ten- ant, or tenant for life and remainderman, in regard to improve- ments made by the tenant, it is difficult to lay down any gen- eral rule which shall constitute a criterion. The rule that objects must be actually and firmly afiixed to the freehold to become realty, or otherwise to be considered personalty, is far from constituting such criterion. Doors, window-blinds, and shutters capable of being removed without the slightest damage to a house, and even though at the time of a conv^- IN REALTY. 167 airce, an attachment or a mortgage, actually detached, would be deemed, we suppose, a part of the house and pass with it. And so, we presume, mirrors, wardrobes, and other heavy arti- cles of furniture, though fastened to the walls by screws, with considerable firmness, must be regarded as chattels. The difficulty is somewhat increased when the question arises in respect to a mill or manufactory, where the parts are often so arranged and adapted, so ingeniously combined, as to be occa- sionally connected or disengaged as the objects to be accom- plished may require. In general terms, we think it may be said that when a building is erected as a mill, and the water works, or steam works which are relied upon to move the mill are erected at the same time, and the works to be driven by it are essential parts of the mill, adapted to be used in it and with it, though not at the time of the conveyance, attachment, or mortgage attached to the mill, are yet parts of it, and pass with it by a conveyance, mortgage, or attachment : Powell v. Monson & Brimfield Manuf. Co., 3 Mason, 466 ; Farrar v. Stackpole, 6 Greenl. 154; Gray v. Holdship, 17 S. & R. 415; Voorhis v. Freeman, 2 Watts & Serg. 116. In the present case, we are of opinion, upon the evidence submitted to the Court, that the engine and boilers and the machines for working iron upon which they operated, consid- ering the manner in which they were fitted and adapted to the mill, were fixtures and part of the realty, and were, of course, covered by a mortgage of the real estate. We are also of opinion that all articles of stock, such as iron and coal, and all materials to be wrought, and the hand tools, and all implements not driven by the steam engine, and articles not annexed to the building, nor imbedded in the ground, nor constituting parts of such mill, are to be deemed personalty, and not realty, and did not pass by the first mort- gage to the defendants. < In regard to the second mortgage, as far as it is a mortgage of real estate, it is not material whether the first registration was good or not ; because the plaintiffs have no claim to the real estate. But it is contended on the part of the defendants 168 ILLUSTRATIVE CASES that the mortgage deed to them of May 26, 1836, was a mort- gage both of real and personal property ; that it was duly reg- istered as a mortgage of personal property, in the city clerk's office, long before the plaintiffs' mortgage, and was therefore sufficient to bind the personal property. We think there is a satisfactory answer to this claim furnished by the facts. This deed purported to be a second mortgage of tlie real estate before mortgaged to the defendants with all and singular the machinery, tools, goods, chattels, and other property therein contained, together with all the machinery, tools, apparatus, and other property, whether fixtures or other- wise, now being or remaining on the premises, and also all other machinery, engines, tools, and other property now contem- plated to he placed in said building ; said Pond, the mortgagor, warranting and agreeing that said instrument should be effectual to create a lien or mortgage on the machinery and tools afterward to be placed in said building ; and he moreover stipulated, to remove all doubt, after the machinery and tools should have been actually placed therein, to execute any in- strument which should be effectual and sufficient to create a lien and mortgage thereon. In point of fact, at the time of executing this instrument, the building had not been erected, and no machinery or tools whatever were then placed in it. In truth, a considerable part of those claimed in this action were not then in existence, but were manufactured afterward. " Articles contemplated to be placed therein," though then in existence, without any sched- ule, enumeration, or specification whatever, is, as a description, far too indefinite and uncertain to constitute a lien upon the articles afterward actually placed in the building. The cir- cumstance that some of the articles were in use by the mort- gagor at a shop occupied by him in Water Street, and were afterward removed to the shop in Hawley Street cannot bring them within the description, vague as it is ; because many of the articles so used at the shop in Water Street, were not re- moved ; othfers were purchased or manufactured afterward ; and therefore it still remains wholly uncertain which of them IN REALTY. 16& were " contemplated " to be put into the new building. The stipulation of the mortgagor to execute a further instrument of hypothecation when the articles should be put in, and thus made certain, was a good executory contract, binding upon the covenantor personally, and for a breach of which he might have been liable in damages, but not an executed contract, constituting a lien de facto upon articles not then bound by the mortgage. It was objected to the plaintiffs' mortgage that it was in- valid, because there was no schedule annexed, according to a stipulation contained in it. But the Court ^re of opinion that it was good and available for all the articles which were in the shop at the time it was executed, so far as they remained and could be identified, although no schedule was annexed. The reference to a schedule to be annexed was not to limit or restrain the generality of the previous description of the property, but it was to be inserted for greater certainty and exactness, and the better to enable the mortgagee to identify the articles. It was not, therefore, essential to the validity of the mortgage. This case was adjusted by the parties on the principles of the foregoing opinion, and judgment was entered for the plain- tiffs for the sum of |1,161.05. Harris v. Haynes, 34 Vt. 220 ; Quinby v. Manhattan Cloth, ete., Co., 24 N. J. Eq. 260; Crane v. Bigham, 11 N. J. Eq. 29. 170 ILLUSTKATIVE CASES To the same effect. SHEEIFF'S DEED IN FOKECLOSUEE. Sands v. Pfeiffek. Supreme Court of California, 1858. 10 Cal. 263. Field, J., after stating the facts, delivered the opinion of the Court. Terry, C. J., concurring. The material questions for consideration are : first, whether the machinery in controversy was so fixed to the real property as to pass by the sheriff's deed ; and, second, if so, whether upon its severance it became personal property so as to be recoverable in the present action. The general rule of law is that whatever is once annexed to the freehold becomes parcel thereof, and passes with the conveyance of the estate. Though the rule has been in mod- ern times greatly relaxed as between landlord and tenant, in relation to things affixed for the purposes of trade and manu- facture, and also in relation to articles put up for ornament or domestic use, it remains in full force as between vendor and vendee. As a general thing a tenant may remove what he has added when he can do so without injury to the estate, unless it has become by its manner of addition an integral part of the original premises : 2 Kent, 343 ; 1 Parsons on Con. 431, and cases cited in note. But not so a vendor ; as against him all fixtures pass to his vendee, even though erected for the pur- poses of trade and manufacture, or for ornament or domestic use, unless specially reserved in the conveyance. Thus, potash kettles appertaining to a building for manufacturing ashes : Miller v. Plumb, 6 Cow. 665 ; a cotton-gin fixed in its place : Bratton v. Clawson, 2 Strob. 478 ; a steam engine, to drive a bark-mill : Oves v. Ogelsby, 7 Watts, 106 ; kettles set in brick, in dyeing and print works : Despatch Line of Packets v. Bel- lamy Co., 12 N. H. 207 ; Union Bank v. Emerson, 15 Mass. 159; iron stoves fixed to the brick-work of chimneys: God- dard v. Chase, 7 Mass. 432, and wainscot-work, fixed and dor- IN REALTY. 171 mant tables are held to pass to the vendee under a convey- ance of the land. In Elwes v. Maw, 3 East, 38, Ellenborough saj^s that ques- tions respecting the right to fixtures principally arise between three classes of persons: 1st, between the heir and executor; 2d, between the executors of tenants for life or in tail and the remainderman and reversioner ; and, 3d, between landlord and tenant ; and observes that " as between heir and executor the rule obtains with the most rigor in favor of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel anything which has been affixed thereto," and Mr. Justice Story, in Powell v. Monson and Brimfield Mfg. Co., 3 Mason, 465, after stating the general rule that whatever is once annexed to the freehold becomes parcel thereof, and cannot be afterward severed but by him who is entitled to the inheritance, remarks, that " as between heir and executor, the rule has never been relaxed, unless the case of the cider-mill, cited in Lawton v. Lawton, 3 Atk. 13, is an exception, which may, perhaps, as the note there suggests, have turned upon a custom, or, as Lord Ellenborough, in Elwes v. Maw, 3 East, 38, considers it, may be deemed a mixed case between enjoy- ing the profits of land and carrying on a species of trade." The same strict rule which applies between heir and executor applies equally between vendor and vendee and between mort- gagor and mortgagee : 2 Kent, 346 ; Day v. Perkins, 2 Sand. Ch. 364. The engine and boilers, etc., severed from the mill, in the present case were clearly fixtures within the definition of the term as given by the adjudged cases, and were covered by the mortgage, and passed to the plaintiff's with the deed of the sheriif. They were permanently fastened to the building, which had its foundation in the ground, and they could not be removed without injury to the premises : Amos and Fer- rard, 2. Pfeiflfer possessed the right to the use and possession of the premises until the execution of the deed, but he possessed no right to despoil the property of the fixtures. The deed took 172 ILLUSTRATIVE CASES effect by relation, at the date of the mortgage, and passed fix* tures subsequently annexed by the mortgagor: Winslow v. Merchants' Ins. Co., 4 Met. 313. By their wrongful severance the present action was properly brought : Farrant v. Thomp- son, 5 Barn. & Aid. 826 ; Cresson v. Stout, 17 John. 116 ; Mooers V. Wait et al.. 3 Wend. 108 ; Schermerhom v. Buell, 4 Denio, 425 ; Morgan v. Varick, 8 Wend. 591. It is true the plaintiffs, had they been aware of the inten- tions of Pfeiffer, might have applied to the Court and obtained an injunction restraining the removal, under § 261 of the Prac- tice Act, but they were not restricted to this course. The remedy afforded by the section is only preventive ; it is not exclusive of any other remedy. The defendant, Schleischer, is the only appellant, and he admits in his answer that he was in possession of the specific articles recovered of him. The objection to the misjoinder of the defendant, Pfeiffer, should have been taken in the Court \)elow ; it cannot be taken in this Court for the first time. Judgment affirmed. To the same effect. 3. HEIR AND EXECUTOR OR ADMINISTRATOB. KiNSELL V. Billings. Supreme Court of Iowa, 1872. 35 Iowa, 154. Miller, J. On the trial the defendant requested the Court to give the following, among other instructions, viz. : " If you find from the evidence that said property, when defendant took possession of it, was attached to the real estate in the form of a saw-mill, dam, etc., it was a part of and belonging to the real estate, unless you further find that it was placed there by virtue of a lease, with a right to remove at the end of said lease, or was put there by consent of or with the knowledge of the owner of the real estate, and without his objection ; and IN REALTY. 173 unless it was so put there under a lease or with the consent or knowledge of the owner of the said real estate, and without his objection, it was, in contemplation of law, a part of the real estate ; and in order to entitle plaintiff to recover he must show such lease from said owner, or knowledge on his part of 'said improvements." The Court refused to give the instruction, and this ruling is assigned as error. This instruction should have been given. The evidence tended very strongly, to say the least, to show that the mill was a part of the realty. It was erected by one who, at the time, claimed to be owner of the land on which it was situated, and it was built in a permanent manner, "partly in the bed of the river and partly in the bank ;" the injury to the mill, therefore, would be an injury to the real property, and the right of action would accrue to the heir, and not to the administrator. As between landlord and tenant, the rule'^ of law, that whatever is annexed to the realty in the form of buildings, etc., becomes a part thereof, is liberally construed in favor of the tenant ; but, as between the heir and the executor or administrator, the rule obtains with the greatest rigor hi favor of the inheritance, and against the right to consider as a personal chattel anything which has been affixed to the free»^ hold : 2 Kent's Com., § 25, pp. 344, 345 ; 1 Wash, on Real Prop., 10-12, and cases cited. It is too well understood to require the citation of authorities that the real estate of the intestate descends to the heirs-at-law, and that the personal property only goes to the administrator, unless the latter proves inadequate for the payment of the debts of the intestate when under the statute the administrator may be empowered to sell enough of the real property to make up the deficit. See Eev., §§ 2374, 2375. An administrator has no right to receive the rents of real property accruing after the death of the intestate: Foteaux v. Lepage, 6 Iowa, 123, 130; Lepage v. McNamara, 5 lb. 124 ; Beezley u Burgett, 15 lb. 192. At the common law the administrater had no control over the real estate or over the rents and profits thereof, and such is still the law, except where the statute provides otherwise. 174 ILLUSTRATIVE CASES Under the statute the administrator may maintain an action of forcible entry (Rev., § 3954) ; and by chapter 139 of Laws of 1866 it is provided, that " if there be no heirs or devisees of a testator or intestate present, or competent to take possession of the real estate left by such testator or intestate, the executor or administrator of his personal estate may, as trustee for the proper heirs or devisees, take possession of such real estate, and demand and receive the rents and profits arising therefrom, and sue for and receive the same, and do all other acts and things relating to such real estate which may be for the benefit of the person entitled thereto, and consistent with their rights and interests :" §3. Whether, under this provision of the statute, an action for an injury to the real estate may be maintained by the executor or administrator, we need not decide, for it is apparent that this action is not intended to be brought thereunder. The administrator or executor may, " as trvsteefor the proper heirs or demsees," take possession and collect the rents and profits, etc., only when there are " no heirs or devisees of the testator or intestate present or competent to take possession." When acting under this statute the executor or administrator does so " as trustee for the proper heirs or devisees," and for their use and benefit, and not simply in his capacity as executor or administrator ; and when suing under this provision, the existence of the facts which authorize him to sue for their benefit should be averred, viz. : That there are no heirs or devisees present or competent (as the case may be) to take possession. The judgment of the Circuit Court is reversed. Tuttle V. Kobinson, 33 N. H. 104 ; Goddard v. Chase, 7 Mass. 432 ; Bainway V. Ctobb, 99 Mass. 437 ; Clark v. Bumside, 15 HI. 62 ; Fay v. Mussel, 13 Gray, 53. IN REALTY. 175 To the same effect. 4. devisee and executob. Bradnee v. Faulkner. Supreme Court of New York, 1866. 34 N. Y. 347. Peckham, J. The question presented here is, who ultimately owned this crop of wheat ? As I understand the opinion of the learned Justice who tried this cause (none was given at the General Term), he held that this wheat did not pass to the plaintiff by the devise to her of the farm ; that since the Revised Statutes it would go to the executor, to be applied and distributed under other provisions of the will. The Revised Statutes declare that " crops growing on the land of the deceased at the time of his death shall be assets, and shall go to the executors or administrators, to be applied and distributed as part of the personal estate of the testator or intestate, and shall be included in the inventory thereof:" 2 R. S., 82, § 6 ; also sub. 5. This is plain and imperative language. Comment or illus- tration cannot make it plainer, and there is nothing in this case to prevent its application to this crop of wheat. There is no limitation or qualification to this statute rule. It applies as well to devisees as to heirs; no exception ^ is made of either, and there is no reason for an exception. It is evident that the Legislature had devisees in contemplation in these provisions, as their rights are regulated in this chapter in various respects. The language of this provision being plain and clear, there is no occasion to resort to the notes of the revisers, or to any special rules of construction, to learn the legislative intent, though I think they all harmonize with the plain language of the Act. For what purpose shall these assets go to the executors ? The statute further provides that, " if necessary for the pay- ment of debts and legacies," the personal property of the de- ceased shall be sold. 176 ILLUSTRATIVE CASES That in making such sales, such articles " as are not specifi- cally bequeathed " shall be first sold : 2 R. S., 87, §§ 27, 28. In this case there seem to have been no debts, and the sale of this wheat, it is not pretended nor claimed, was necessary for the payment of legacies. When it legally appeared that this wheat was not necessary for the payment of debts or legacies, the executor should then dispose of it as directed by the will. To whom, then, did the wheat ultimately belong ? In my judgment, it belonged to the devisee of the land. At common law, crops growing on land passed to the devisee of the land. This was conceded on the argument. They passed to the devisee upon the presumed intention of the tes- tator, that he who took the land should take the crops which belong to it : West v. Moore, 8 East, 339 ; 1 Willard Ex. 660, and authorities there referred to. In such case, the crops did not go to the executors. This " presumed intention " of the testator might be rebutted by slight intimations in the will of a difierent purpose. As, where he gave all his persolial property to his executor, it was held to carry the crops to him, as against the devisee of the land : 1 Willard Ex. 602, note s. There is nothing in this will to alter or afifect the presumed intention of the testator. The statute has not assumed to alter any rule of construction as to wills. All the alteration it has made, so far as it touches this case, is, that it has made certain things assets to go to the executor which before went to the devisee. In the first subdivision of the sixth section it makes land held for the life of another, though specially devised, assets to go to the executor. That land is made personal property at least for that, if not for all purposes. But if not wanted for the payment of debts or legacies, of course, when that legally appears, it goes to the devisee. So do these crops. The statute has in no respect changed their character. They are personal property. They were so IN REALTY. 177 before the statute. They are so still— only now, in all cases, whether bequeathed or devised, they primarily go to the ex- ecutors, to be used, if necessary, for the payment of debts and legacies. If not necessary for that purpose, then they go to the beneficiary under the will. But the same language that would devise or bequeath these crops before the statute, will devise or bequeath them now. In truth, there is just as much propriety in these crops pass- ing by a devise as by a deed in the land, though the principle upon which they pass is not the same. The rule, however, being well settled that they do pass, it is not important here to inquire as to its propriety. The judgment should be reversed, and a new trial ordered, with costs to abide the event. Judgment reversed. Sherman v. Willett, 42 N. Y. 146 ; Dennett v. Hopkinaon, 63 Me. 350. 12 178 ILLUSTRATIVE CASES INCOEPOEEAL HEEEDITAMENT8. "An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within the same :" 2 Blk. Ch. Ill, page 19. 1. Easements. 2. Franchises. 3. Rents. EASEMENTS. "An easement is an Incorporeal hereditament, susceptible of a permanent enjoyment by one man in anotlier's land, such as that of a way, or light, or air :" 1 'Wash. R. P. 661. Pierce v. Keator. Court of Appeals of New York, 1877. 70 N. Y. 419. Church, C. J. It is important to determine the nature of the right reserved in the deed of Pieree and wife to the New York & Oswego Midland Railroad Company. The reserva- tion is in the following words : " Said parties of the first part also to have the privilege of mowing and cultivating the sur- plus ground of said strip of land not required for railroad purposes." The appellant contends th4t this right of mowing and cultivating was an easement appurtenant to the remain- ing portion, of the farm, and would pass to the grantee of the remainder of the farm without description or specification. The term easement has sometimes been applied to rights in or ovfer land without strict regard to the recognized distinctions between the different kind or class of rights. These distinc- IN REALTY. 179 tions may be impaired and even obliterated by the circum- stances attending, and the manner of their creation. An easement is a liberty, privilege, or advantage in land without profit, existing distinct from the ownership of the soil. The essential qualities of easements are : First. They are incorporeal. Second. They are imposed upon corporeal property. Third. They confer no right to a participation in the profits arising from such property, and. Fourth. There must be two distinct tenements, the dominant, to which the Tight belongs, and the servient, upon which the obligation rests : Bouvier's Diet. Title, Easements ; Wash, on Easements, Ch. 1, § l,4Sandf. Chy. R. 89. The right to profits, denominated profit a prendre, consists of a right to take a part of the soil or produce of the land, in which there is a supposabl'e value. It is, in its nature, corporeal, and is capable of livery, while easements are not, and may exist independently without connection with or being appendant to other property : 2 Wash, on Real Property, 26 (3d ed.), 276 ; 22 Wend. 433. The right reserved in the deed of Pierce and wife was a right to profits in the land, and was not, therefore, in strictness, an easement. From the nature of the right, we can see no connection between it and the ownership of the farm. The right to mow and cultivate this strip was in no way necessary to, or even useful, to the remainder of the farm, and it was not, therefore, appurtenant. It might have been regarded in the nature of an easement if the reservation had been made to Pierce, as owner of the farm, or on account of being the owner, but the language reserves the right to the parties of the first part, not to their heirs and assigns, nor to the owners of the farm, nor for the benefit of the farm or such owners. As the terms of the reservation indicate a personal privilege, and as there is nothing in the nature of the right reserved connecting it in any manner with the ownership or use of the remainder of the farm, there seems no alternative but to apply the established rules and recognized legal distinc- tions to the transaction. Ch. Walworth, in 22 Wend., supra, said : " For a profit a prendre in the land of another, when not 180 ILLUSTRATIVE CASES granted in favor of some dominant tenement, cannot be said to be an easement, but an interest or estate in the land itself." The counsel for the appellant cited, also, from Washburn on Easements, a general rule, expressed as follows: "This right of profit a prendre, if enjoyed by reason of holding certain other estate, is regarded in the light of an easement appurtenant to an estate ; whereas, if it belongs to an individual, distinct from any ownership of other lands, it takes the character of an in- terest or estate in the land itself, rather than that of a proper easement in or out of the same." The qualifications mentioned in these citations do not apply to the case at bar, for the reason before stated, that neither from the nature of the right, nor the terms of the grant, can it be afiSrmed that the right was enjoyed by reason of holding the farm, or on account of the estate. It is not like the case of a grant of land, with the right to take wood from other land for the benefit of the estate granted : Wash, on Easements, p. 8. See, also, 48 Maine, 83 ; 4 T. R. 717. It may be inferred that the right reserved entered into the consideration for the conveyance of Pierce to the railroad com- pany, but the case is destitute of any circumstance tending to establish an intention to affix the right as appurtenant to the remainder of the farm. The contiguous rights secured by the deed do not change the character of this. They are, from their nature, appurtenant to the farm, and presumptively necessary to its enjoyment. This necessarily disposes of the defendant's claim of title to the wheat, through the title to this right obtained by the deed given upon the foreclosure. The strip of land conveyed by Pierce to the railroad com- pany was excepted and reserved from the referee's deed, and was not intended to be conveyed ; and if the words, " as conveyed," were intended as an adoption of the terms of the deed by Pierce to the railroad company, yet the defendant would take nothing by the reservation to mow and cultivate, because, as we have seen, it was a reservation in favor of Pierce and wife personally, and would terminate upon the death of either. The uncertain character of this right to mow IN REALTY. 181 and cultivate, as reserved in the deed of Pierce, is significant also of an intention not to fasten it, as an enduring ease- ment, to the remainder of the farm. The use of the strip for railroad purposes would operate to suspend or terminate the right at any time, and the railroad company would have the right at any time to determine the, necessity of its use for such purposes, and hence the right is practically revocable at pleasure, and scarcely rises above the dignity of a personal license. We concur with the views expressed at Special and General Term, and it is unnecessary to elaborate them. The judgment must be affirmed. How acquired. (a) By grant : Winston v. Johnson, 42 Minn. 398. (b) By prescription : Sargent v. Ballard, 9 Pick. 251. (c) By implication : Holmes v. Seely, 19 Wend. 507. Ancient lights : Taplin v. Jones, 3 Eng. Ruling Cases, 1 (11 H. L. Cas. 290) ; Gerberi). Grabel, 16 111. 217. Contra: Morrison v. Marquardt, 24 la. 35 ; Pierre v. Fernald, 26 Me! 436 ; Mullen V. Strieker, 19 Ohio St. 135 ; Haverstick v. Sipe, 33 Pa. St. 368 ; Pattee's "111. Cases on Personalty," 11. Easements in streets : Gustafson v. Hamm, 56 Minn. 334. See further as to easements : Soukup v. Topka, 54 Minn. 66 ; Long v. Fewer, 53 Minn. 156. Way of necessity : Kimball «. R. R. Co., 27 N. H. 448 ; Pettingill v. Porter, 8 Allen, 1; Kripp v. Curtis, 71 Cal. 62 (11 Pac. 879, note); Eogeraon v. Shepherd, 33 W. Va. 307 (10 S. E. 632). Lateral Support. Charless v. Rankin. Supreme Court of Missouri, 1856. 22 Mo. 567. An action to recover damages occasioned by excavations made in an improper manner by defendant on his land adjoining that of the plaintiff. Leonard, J. The right to support from the adjoining soil may be claimed either for the land in its natural state or for 182 ILLUSTKATIVE CASES it subjected to an artificial pressure by means of building or otherwise. The right in the former case would seem to be a natural servitude or easement belonging to contiguous lots, and accordingly it was recognized and protected in the Roman law by specified regulations, and similar provisions have been introduced into the civil code of France : Code Civil, art. 614. We are not aware of any express common-law decision upon this subject; but we find it said of old, in RoUe's Abr. 564, tit. Trespass : " It seems that a man who has land closely adjoin- ing my land cannot dig his land so near mine that mine would fall into his pit, and an action brought for such an act would lie ;" and in Wyatt v. Harman, 3 Barn. & Adol. 874, Lord Tenderden remarked, in delivering the judgment of the Court of King's Bench : " It may be true that, if my land adjoins that of another, and I have not, by building, in- creased the weight upon my soil, and my neighbor digs in his land, so as to occasion mine to fall in, he may be liable to an action." When, however, the lateral, pressure has been increased by the erection of buijdings, it seems to be well settled at common law by authorities that no man has a right to an increased support unless he has acquired such a servitude by grant or prescription. It is so laid down in the early case of Wilder u Minsterly, 2 RoUe's Abr. 564 : " If A. be seised in fee of copy- hold land, closely adjoining the land of B., and A. erect a new house upon his copy-hold land, and any part of his house is erected on the confines of his land, adjoining the land of B. ; if B. afterward dig his land so near to the foundation of the house of A., but not in the land of A., that by it the founda- tion of the messuage and the messuage itself fall into the pit, still no action lies by A. against B. ; inasmuch as it was the fault of A. himself, that he built his house so near the land of B. ; for he cannot, by his own act, prevent B. from making the best usage of his land that he can." And Lord Tendekden, in delivering the judgment of the Court in the case before cited, said : " The question reduces itself to this : If a person builds to the utmost extremity of his own land, and the owner of the IN REALTY. 183 adjoining land digs the ground there, so as to remove some part of the soil which formed the support of the building so erected, whether an action lies for the injury thereby occa- sioned. Whatever tlie law might be, if the damage com- plained of were in respect of an ancient messuage, possessed by the plaintiff, at the extremity of his own land, which circumstance of contiguity might imply the consent of the adjoining proprietor at a former time to the erection of the building in that situation, it is enough to say in this case that the building is not alleged to be ancient, but may, as far as appears from the declaration, have been recently erected, and if so, then, according to the authorities, the plaintiff is not entitled to recover." In the more recent case of Partridge v. Scott, 3 Mees. & Wels. 220, which involved the same question, it is said : " If a man builds his house at the extremity of his land, he does not thereby acquire any right of easement, for support or otherwise, over the land of his neighbor. He has no right to load his own soil so as to make it require the sup- port of that of his neighbor, unless he has some grant to that effect ;" and the American cases are, it is believed, to the same effect: Thurston v. Hancock, 12 Mass. 221. Although not altogether in good taste, I repeat, as appli- cable to the present case, what I had occasion to say in a former case. It is a logical consequence from legal principles that to the extent to which a person has a right to act others are bound to suffer ; and that any damage that may accrue to them, while a person thus exercises his own rights, affords no valid ground of complaint. The loss occasioned in such cases is damnum absque injuria. Every person, however, who is performing an act is bound to take some care in what he is doing. He cannot exercise his own indisputable rights with- out observing proper precaution not to cause others more damage than can be deemed fairly incident to such exercise. In Wallars v. Pfeil, Mood. & Malk. 364, the plaintiff had neglected to take any precaution by shoring up their own houses within, or in any other way against the effect of pull- ing down the defendant's adjoining house ; and it appeared 184 ILLUSTRATIVE CASES that this might have been so done that the accident would not have happened to the same extent. There was also evi- dence to show that the accident was owing to the bad founda- tion of the plaintiff's house ; but there was conflicting evidence as to whether, by due care on the part of the defendant's work- men, the mischief might have been entirely avoided. In sum- ming up, the Chief Justice of the Queen's Bench stated it to be now settled that the owner of premises adjoining those pulled down must shore up his own in the inside, and do everything proper to be done upon them for their preservation ; but, al- though that had not been done, still the omission did not necessarily defeat the action, and that if the pulling down were irregularly and improperly done, and an injury were produced thereby, the person so acting would be liable, not- withstanding the omission of the plaintiff ; and the jury were accordingly charged, that, if the defendant's house was pulled down in a wasteful, negligent, and improvident manner, so as to occasion greater risk to the plaintiff than in the ordinary course of doing the work he would have incurred, then the defendant was liable to make compensation for the conse- quences of his want of caution ; but that if they thought fair and proper caution had been exercised, then the defendant would be entitled to a verdict. The result of the cases, we think, is (and such would seem to be the reasonable doctrine) that if a man in the exercise of his own rights of property do damage to his neighbor he is liable, if it might have been avoided by the use of reasonable care ; and it seems to be usual in England for a party intending to make alterations that may affect his neighbor's premises to give notice of his intention ; but whether any such duty be imposed by law (Town V. Chadwick, 8 Scott, 1) need not be inquired into here, as the present plaintiff knew of the digging and took measures to protect himself against the consequences of it. These principles require us, we think, to reverse the judg- ment, and send the case back for a second trial. We do not think there is any error in the refusal of the defendant's first and fourth instructions. A party may subject himself to IN REALTY. 185 responsibility by the want of reasonable care, although his digging be confined to his own ground and do not exceed a reasonable depth ; nor is he protected by the fact that he used such care as his builder, who was a skillful and careful per- son, deemed necessary. The question is, as to the fact of neg- ligence, whether the work were done in a careless and improvi- dent manner, so as to occasion greater risk to the plaintiff than in the reasonable course of doing the work he would have in- curred, and not whether, in the opinion of the superintendent, no matter how skillful he may have been, everything was done that he deemed necessary. His opinion may be proper evi- dence to be considered by the jury, but it does not conclude the matter, constituting of itself a bar to the plaintiff's re- covery. But the error is in plaintiff's third instruction, where an attempt is made to define, with precision, the degree of care that must be used in a case like the present, in order to exempt a party from liability ; and the standard there adopted is sub- stantially that care that a prudent man, experienced in such work, would have exercised if he had been himself the owner of the injured building. Now it is quite evident, we think, that this is going beyond the care that the law exacts upon such occasions. It is to be observed that the defendant was upon his own ground, and in digging upon it exercised an un- doubted right of property, which the plaintiff had no right, either by express grant or prescription — by statute or local ordinance — in any way to interfere with or prevent ; and al- though, in exercising his rights, it was certainly his duty to his neighbor to use ordinary care in order to avoid doing him harm, he was not bound to observe the same care that he would have taken, as a wise and sensible man, if he had been the owner of both buildings — the one erected and the one about to be erected. He would, of course, in that event have shored up and would have submitted to many inconveniences, and, indeed, would have incurred considerable additional ex- pense in doing the new work rather than expose the building already erected to any risk. Every prudent person, in such a situation, would take precautions — subject himself to incon- 186 ILLUSTKATIVB CASES veniences and forego the exercise of every right that would endanger his present building if he found it for his interest to do so. In the present case, if the laying of the new founda- tion, in very short sections, would have been attended with in- creased expense and with danger to the sufficiency of the new wall, and the defendant had been the owner of the plaintiff's building, he might have found it for his interest to have sub- mitted, and most probably would have submitted, to this in- convenience and risk, and even increased expense, to avoid all hazard to his own property ; yet the law does not exact of him the same forbearance and care and expense for the security of his neighbor's property that he would have found it for his interest to have taken for his own. We do not know that the instruction was intended, or indeed understood, by the jury in the sense we impute to it. It may, however, have been so understood, and if so, could not but have misled them ; and we shall therefore reverse the judgment, that the case may be retried upon a fuller understanding of the facts and of the law applicable to them. The judgment is reversed and the cause remanded. Austin V. Hud. B. R. R. Co., 25 N. Y. 334 ; Richardson v. Vt. Cent. R. R., ■25 Vt. 465 ; Beard v. Murphy, 37 Vt. 101 ; McGuire v. Grant, 25 N. J. L. 356. Party-wall. Each of two owners of a party-wall has title in severalty to ■one-half thereof and an easement for the support of the other half : Warner V. Rogers, 23 Minn. 34 ; Brooks v. Curtis, 50 N. Y. 639 ; Bowling v. Hem- mings, 20 Md. 179 ; Fraute v. White, 19 Atl. 196. IN REALTY. 187 II FRANCHISES. A franchise Is a special privilege conferred by the government upon persons either natural or artificial, (a) Ferry. LipPENcoTT V. Allandek et al. Superior Court of Iowa, 1869. 27 la. 460. The plaintiff applied to the board of supervisors to vacate a ferry license on the ground, among other things, that Kerr, to whom it was granted, was dead. Beck, J. But one question is presented by the record for our determination ; it is this : Is a ferry license vacated or the franchise lost by the death of the party to whom it was granted ? The right acquired under a ferry license is called a fran- chise, and is conferred by grant from the government, and with an implied covenant, on the part of the government, not to invade the right vested, and, on the part of the grantee, to perform the duties and conditions prescribed by the grant : 3 Kent's Com. 458. This franchise is included in the general denomination of incorporeal hereditaments, a term used to distinguish one of the different kinds of things real. It par- takes of a double nature and character. So far as it affects or concerns the public it is publicijwis, and is subject to govern- mental control. The Legislature may prescribe the manner of granting it, to whom it may be granted, the conditions and terms upon which it may be held, and the duty of the grantee to the public in exercising it, and also provide for its forfeiture upon the failure of the grantee to perform that duty. But when granted it becomes the property of the grantee and is a private right subject only to the governmental control growing 188 ILLUSTRATIVE CASES out of its other nature of publici juris : Benson v. Mayor of New York, 10 Barb. (S. C.) 223. In this character and nature it is essentially iu all respects property, and is governed by the same rules as to its enjoyment and protection, and regarded by the law, preciselj'^, as other property : Conway v. Taylor's Ex'r, 1 Black. 632 ; Bowman's Devisee v. Wathan, 2 McLean, 376 ; Dundy v. Chambers, 23 111. 370 ; 3 Kent's Com. 458. The fact that it is conferred by grant from the government, and may be forfeited by mis-user or non-user, does not argue that it is not property, or that it may be lost in a way or man- ner which will not deprive the owner of other property of his rights therein. Under the provisions of our statute, ferry licenses a^e granted by the board of supervisors of the county for a limited time, and to such persons as, in the opinion of the board, will best serve the public interest, preference being given to the owner of the land or of a previous ferry. Conditions and terms may be imposed by the board as prescribed by the statute, and for the violation thereof the license may be revoked. No restric- tion is imposed upon the sale or transfer of the franchise, and there is no provision that, upon the death of the party to whom the license was issued, it shall be vacated and the franchise lost. It may be sold upon execution as real property, except that the purchaser may take immediate possession of all property ordinarily used in the exercise of the franchise, which, it is provided, is transferred by the sale. The purchaser at once enters upon the exercise of the franchise. It is exposed to sale differently from other property ; he who will take the franchise for the shortest time, within the period for which the license was issued, in satisfaction of the execution, shall be considered the highest bidder : Rev., chap. 54. Nothing is found in this chapter or in other statutes taking from this franchise the character of property possessed by all other things over which men exercise dominion and ownership. The peculiar provision regulating the manner of its sale upon exe- cution is designed to secure the continuance of the ferry for IN REALTY. 189 the public convenience, notwithstanding the transfer of the franchise thereby. No argument can be drawn from this pro- vision in support of the decision of the Court below. It is argued that the grant of the franchise is made in view of the fitness and qualifications of the grantee and involves a personal trust which cannot be assumed and exercised in case of his death by his representatives, because they may be unfit and unqualified therefor. Hence it is thought the death of the grantee terminates the franchise. The answer to this is that, if the person exercising the franchise fails to perform the dudes appertaining thereto, the license, by proper proceedings, may be revoked: Rev., § 1212. And that this position of ap- pellee is not in accordance with the policy of our statutes is made very plain, by the provisions permitting and regulating the sales of the franchise upon execution. In such case the purchaser, by substitution, assumes the duties of the original grantee, and acquires all his rights. No reason can be given why the law will permit this, and yet prohibit the exercise of the franchise, in case of the death of the grantee, by his repre- sentatives. The doctrine contended for leads to another in- consistency, namely : the franchise may be subjected to the payment of the debts of the grantee in his lifetime, but is not assets, for the payment of the same debts after his death. The grant of a ferry franchise is made for a specified time, not less than three nor more than ten years, with no reserva- tion that it shall terminate upon the death of the grantee. Being, as we liave seen, property it would not, upon every analogy of the law, be lost by the death of the grantee. At common law it was granted as other real property in estates for years, for life, or in perpetuity, and was so held. Under our statute it is granted in an estate for years only, and the death of tlie grantee can no more terminate it than the death of a tenant can terminate a like estate in lands. The above liardship and injustice of the rule contended for sufiport a powerful argument against it. These francliises often require great onlays for boats, improvement of roads, etc., in order to render them remunerative to the owners and 190 ILLUSTRATIVE CASES useful to the public. The property thus acquired is valuable only in connection with the franchises, and if they are for- feited by the death of the grantees, great loss and gross injus- tice would thus be wrought their estates. The doctrine contended for by defendant's counsel is not supported by the authorities they cite, viz., Munroe v. Thomas, 5 Gal. 470, and Thomas ■;;. Armstrong, 7 lb. 286. These cases hold that ferry franchises are not the subjects of levy and sale under execution. The decisions appear to be based upon the grounds that a ferry franchise "involves a personal trust granted by the sovereign, upon conditions imposed upon the grantee alone, and his liability cannot be removed by substi- tution." Such sales, as we have seen, are recognized by our statutes, and the ground of these decisions seem to be unsup- ported by reason and principles of law. The other authority cited (Bowman v. Wathin, 1 Howard, 189) does not appear ap- plicable to the question involved in this case. Reversed. Franchise defined : Bank v. Earle, 13 Peters, 519. Bridges : Chenango Br. v. Paige, 83 N. Y. 178. Turnpike : Turnpike Co. v. The State, 3 Wall. 210. Railroads : C. C. Ey. Co. v. The People, 73 III. 541. Insurance Co. : People v. Utica Ins. Co., 15 Johns. 358-87. Gas Companies : Brunswick Gaslight Co. v. United Gas, Fuel and Light Co., 85 Me. 532 (27 Atl. 525). A franchise is not necessarily incident or appendant to any estate in land : Day et al. v. Stetson, 8 Me. 368. See further as to franchises : Hudson v. Cuero L. & E. Co., 47 Tex. 56; McRoberts v. Washburne, 10 Minn. 28 J Rockport Water Co. v. Inhabitants of R., 161 Mass. 279. IN REALTY. 191 III RENT. " Rent is a right to the periodical receipt of money or money's woith in respect to lands 'which are held in possession, reversion,, or remainder by him from whom the payment is due :" 2 Wash. R. P. 284. Van Rensselaer v. Read. Court of Appeals of New York, 1863. 26 N. Y. 558. Van Rensselaer conveyed to Read land in fee, reserving a per- petual annual rent of 17 J bushels of wheat, among other things, and dying testate the question arises whether under his will such rents pass to a devisee under a clause relative to hereditaments. Selden, J. A brief statement of the principles which appear to be definitely settled, touching the rights and lia- bilities of parties under instruments of the nature of that which forms the foundation of the present action, by enabling us to see distinctly what remains undetermined, will be of service' in the examination of the questions now presented for decision. The following may be regarded as principles thus settled : 1. That, since the passing of the Act of 1787, " concerning tenures " (however it laAy have been before that time), it has not been possible to create any new tenures in this State upon conveyances in fee. Such conveyances operate as assignments and not as leases, whatever name may be given to them, and leave neither any reversion, nor possibility of reverter, in the grantor : De Peyster v. Michael, 6 N. Y. 467; Van Rensselaer v. Hays, 19 lb. 68. 2. That an annual rent, issuing out of the lands, reserved in such conveyance, to the grantor, his heirs and assigns for- ever, with a covenant on the part of the grantee for its pay- ment, together with a right of distress and re-entry in case of non-payment, although not a rent-service, for want of a rever- sion in the grantor, is a fee farm rent, or, if not strictly such (Bradby on Distress, 34 ; Harg., n. 5, on Co. Litt., 143, b ; 19 N. Y. 76), it is a rent-charge in fee, and equivalent to such rent-charge granted by the owner of lands in fee : Litt., 192 ILLUSTRATIVE CASES § 217 ; Co. Litt., 143, b ; Gilbert on Rents, 16, 17, 39 ; 2 John. Cas. 26 ; 2 Cow. 659 ; 13 N. Y. 369 ; lb. 77, 78, 100. 3. That such rent is a hereditament and descends, in the absence of other disposition, to the heirs of the party to whom it is reserved, and is devisable and assignable in all respects like other incorporeal hereditaments : 2 Sand, on Uses and Trusts, 32, 5th ed., Lond., 1844 ; Shep. Touch. 238 ; Lade ■;;. Baker, 2 Vent. 149, 260-266 ; Maund's Case, 7 Co. 286 ; 2 Johns. Cas. 17 ; lb. 24; 12 N. Y. 132 ; 19 lb. 68, 100. 4. The right to distrain, and the right to maintain actions of annuity, and assize of novel disseisin, at common law, fol- lowed the ownership of the rent, when it passed from the person to whom it was reserved, whether it passed by descent or assignment: Vechte v. Brownell, 8 Paige, 212; Bradby on Dist. 51, 52 ; Adams on Distresses, 36 ; Maund's Case, 7 Co. 28, b ; Co. Litt. 144, b, and Harg., note 1 ; Roscoe on Real Actions, 65 ; Gilbert on Rents, 83-100 ; Litt., §§ 233-235. Attornment by the tenant was necessary to entitle the assignee to distrain or to maintain annuity, and actual seisin of the 'rent by payment of a part, to authorize an action of assize ; but that necessity, at least so far as related to attornment, was removed in England by the Statute 4 Anne, ch. 16, § 9, which was early re-enacted in substance, and has since been kept in force in this State : 2 Sand, on Uses and Trusts, 40-46 ; But- ler's Note, 272, to Co. Litt., lib. 3, 309 b ; Gilbert on Rents, 32, 33-51, 52 ; Doug. 624 ; Strange, 108 ; Yelv. 135 ; 2 Greenl. Stat. 115 ; 1 R. L., p. 525, § 25 ; 1 R. S., p. 739, § 146. 5. That the covenants entered into by the grantee of the lands, in behalf of himself, his heirs and assigns, are cove- nants real which run with the land, and are binding upon the heirs and assigns of the covenantor, successively as to all breaches of such covenants which occur during their respective ownership of the lands: Van Rensselaer u Haj's, 19 N. Y. 68 ; Piatt on Covenants, 493, 494. 6. That a devise or assignment of the rent gives to the devisee or assignee at least the equitable interest in the rent, and the right to equitable remedies for its recovery, without any aid from the Act of 1805, partially repealed by the Act: Ch. 396, Laws of 1860 ; 19 N. Y. 85, 86. IN REALTY. 193 7. That the personal representatives of the original grantor, to ■whom the rent was reserved, can maintain no action on the cov- enant for the payment of rent, on account of any default in pay- ment occurring after the death of such grantor : The Executors of Van Rensselaer v. The Executors of Platner, 2 Johns. Cas. 17. 8. That a devisee or assignee of the rent can maintain no action against the personal representatives of the original cove- nantor, on account of any default in payment of rent, occurring after the death of such covenantor : The Devisees of Van Rens- selaer V. The Executors of Platner, 2 Johns. Cas. 24. 9. The terms of the devise to the plaintiff are sufficient to vest in him the right to the rent in question. Several cases have been decided by this Court in which the right of the present plaintiff, under the devise in question, to rents of the character of those here claimed, has been sus- tained, and although the subject of tlie sufficiency of the devise to vest the title to the rents in the devisee does not appear to have been specially noticed by the Court, it is hardly possible that it could have passed unobserved, and the deci- sions in those cases, if not conclusive, raise a strong presump- tion in the plaintiff's favor upon this point : Van Rensselaer v. Snyder, 13 N. Y. 299 ; The Same v. Hays, 19 lb. 68 ; The Same v. Ball, lb. 100. But regarding the question an open one, I entertain no doubt that the language of the devise is broad enough to embrace the rents. In the case of Hunter v. Hunter, 17 Barb. 28-86, such rents were held to pass by the words, " all my lands, in the county of Greene." Whether perpetual rent charges are properly denominated lands or not, they certainly come within the terms " lands, tenements, and hereditaments," used in the present devise. Lord Coke says (Co. Litt., 6 a): " Tenement is a large word to pass not only lands and other inheritances, which are holden, but also offices, rents, commons, profits apprender out of lands, and the like, wherein a man hath any frank tenement, and whereof he is seised ut de lihero tenemento. But hereditament is the largest word of all in that kind,for whatsoever maybe inherited is an hereditament, be it corporeal, incorporeal, real, personal, or mixed :" 2 Rolle's Ah. 67 ; Rich v. Sanders, Styles, 261-278. That rent charges in per- 13 194 ILLUSTRATIVE CASES petuity are hereditaments has never been questioned : 2 Johns. Cas. 21, 26 ; Jemmot v. Cooly, 1 Lev. 170 ; s. c, 1 Saund. 112. From the foregoing statement it will be seen that the reserva- tion of the rent in question is valid ; that the covenant for its payment is a covenant real, running with the land, binding the defendant personallj'^for its payment (his ownershipof the lands, when it accrued, being undisputed), and that the plaintiff, by virtue of the devise from his father, was the owner of the rent when it became due, having, at common law, the right to dis- train for it or to maintain an action of annuity for its collection. The further question is now presented, whether the devisee or assignee of the rent may, either at common law or by virtue of any statute now in force, maintain an action on the covenant for the rent against the grantee or assignee of the covenantor. The burden of the covenant, as we have seen, runs with the land against the person who is, in equity, bound to pay the rent. Does the benefit of such covenant run with the rent in favor of the person who is in equity entitled to receive it ? If 'the assignee of the rent cannot avail himself of the covenant for its payment, one object of the parties to the covenant will fail. They covenanted for acts to be performed by and to each other's heirs and assigns annually forever, in regard to this land. These acts were designed to be performed directly between such heirs and assigns without the necessity of main- taining the expensive and cumbrous machiner}' of perpetual personal representatives of the parties. The decisions which have been referred to show that, on the part of the person bound to pay the rent, no such machinery is necessary ; that the law deals directly with him, as holding the land charged with the rent, and, therefore, in law as well as in equity, bound to pay it ; that the legal and the equitable duties accompany- ing each other, both follow the title to the land, into whatever hands it may go, the assignee taking the place of the covenantor, and being bound by his covenants, so long as he remains such assignee, and no longer : Piatt on Gov. 494. The same deci- sions show, also, that on the other side the equitable right to receive the rent passes to the asssignee in the same manner as the equitable obligation to pay it follows the title to the land. It is claimed, on the part of the defendant, that the legal right of IN REALTY. 195 action on the covenant does not pass with the rent to the assignee, but is either extinguished by the assignment, or remains in the original covenantee, or his personal representatives. The case of Hays, above cited, shows that the covenant is not extinguished by the assignment ; and no adequate reason can be given for denying to the assignee of the rent the right to maintain an action upon it. The only reason which has been assigned in the authorities to which we have been re- ferred for such denial, is that upon which the common law prohibited the assignment of all choses in action — the preven- tion of maintenance. But the covenant for the payment of rent is not within this rule. It is not a covenant in gross or a mere chose in action (Stevenson v. Lombard, 2 East. 576), but is a part of the security for the payment of the rent. The rent itself being assignable, the covenant for its payment should, it would seem, be assignable to the same extent, for the reason given by Chief Baron Gilbert, why a nomine poense, when pro- vided for in the lease, passes to the assignee of the rent,viz., " be- cause whosoever has a right to the rent ought to have all that security for the payment of it which was taken on the original creation of it :" Gilbert on Rents, 143 ; Cro. EUz. 895 ; 7 Peters, 605, 606. Rent due is a mere chose in action and not assign- able, but it is otherwise of rent not due : Bradby on Distresses, 52 ; Adams on Distresses, 36. The covenant for its payment should, therefore, be assignable before breach, but not after. It was so held in Demarest v. Willard, 8 Cow. 211 ; T. Ray. 200. Even if the law was clearly settled in England, that such cov- enants were not assignable, I should be unwilling to follow that rule, unless it had been already recognized by our own Courts, especially since we have abrogated the doctrine of maintenance, upon which alone it rested. It is, however, far from being settled in England, and no precedents in its support in this State have been brought to the notice of the Court ; on the contrary, there are several decisions leading to the opposite conclusion. In the case of Hays, the right of the assignee to maintain an action on the covenant for the payment of rent in a lease or indenture, like the present, was sustained, but the decision was placed upon the etfect of the Act of 1805, which was held to ex- tend to the assignees of rents reserved in conveyances in fee, the 196 ILLUSTKATIVE CASES same remedies by action for the non-performance of covenants, against the grantees and their assigns, which were secured to the assignees of reversions, by chapter 7 of the Laws of 1788. Since that case was decided, and prior to the commence- ment of tlie present action, the Legislature, by chapter 396 of the Laws of 1860, has declared that the Act of 1805 and its re-enactments shall not apply to deeds of conveyance in fee made before the 9th day of April, 1805. The plaintiff's cause of action was complete under the Act of 1805, prior to the pass- ing of the Act of 1860, and the constitutionality of the latter Act, as applied to the present action, is therefore denied. The Act of 1805 has been held to affect the remedy onlj'-, and not the contract, and for that reason not liable to this objection, when urged by the assignee of the covenantor : 19 N. Y. 68. The objection to its repeal would, nevertheless, be effectual in favor of the plaintiff if such repeal would deprive him of all substantial remedy for the recovery of the rent, but not otherwise. As I am satisfied that his remedy was not affected by the repeal, this question becomes immaterial. It is insisted on the part of the plaintiff that the Act of 1788, as re-enacted in the Revised Statutes (Vol. 1, p. 747, §§ 23, 24), without the declaratory Act of 1805 (lb., § 25), is broad enough to embrace the present case, and to give the assignee of the rent a right of action on the covenant for its payment. I think the Act in its present form might fairly receive that construction; but its title as originally passed, viz., "An Act to enable grantees of reversions to take advantage of the condi- tions to be performed by lessees," would create a doubt whether the general expressions contained in the Act were not intended to be limited to grantees or assignees of rever- sions, though such limitation is not expressed. So far as the statute has received the attention of Judges, the opinion appears to have been entertained that its benefits were con- fined to parties having the reversion of the lands to which the conditions or covenants related, and such is the established construction of the Statute 32 Henry VIII, chapter 34, after which our statute was modeled. The solution of the present question, therefore, must depend upon the common law or upon, recent statutes relating to the prosecution of actions. IN REALTY. 197 The first ground upon which the judgment in this case is sought to be sustained without the aid of the Acts of 1788 and 1805 is, that the covenant for the payment of the rent is not a merely personal covenant, but a covenant real, the benefit of which passed to the plaintiff on the devise of the rent to him. This question has been much discussed by Judges and elemen- tary writers, and cannot be regarded as entirely at rest on either side of the Atlantic. I shall not attempt to review the cases, as very little could be added to what appears in the English and American notes to Spencer's Case, 1 Smith's Lead. Gas. 22, and in the recent treatise of Mr. Sugden on Vendors and Purchasers. Mr. Sugden says (Vol. 2, p. 482) : " The rent charge is an incorporeal hereditament, and issues out of the land, and the land is bound by it ; the covenant, therefore, may well run with the rent in the hands of an assignee ; the nature of the subject, which savors of the realty, altogether distinguishes the case from a matter merely personal." Again, at page 492, after reviewing the English cases bearing upon the question, he says : " Upon the whole it is submitted that covenants, like those in Brewster v. Kidgell" ^which was a case of a rent charge in fee with a covenant for its paj'ment, free from taxes], " ought to be held to run in both directions ; with the rent or interest carved out of or charged upon it" [the land], "in the hands of the assignee, so as to enable him to sue upon them ; with the land itself in the hands of the assignee, so as to render him liable to be sued upon it." This conclusion is confirmed by the decision of the Supreme Court of the United States, in the case of, Scott v. Lunt's Administrators, 7 Pet. 596, in which the assignee of §, rent charge in fee, created by an indenture in all material respects similar to that under which the plaintiff claims, was held entitled to maintain an action of covenant for the rent, against the administrator of the covenantor. The difference of opinion on this question among Judges and elementary writers has, I think, mainly arisen from a misunderstanding by some of them of the remarks of Lord Holt, in the case of Brewster v. Kidgell, as was shown in the opinion of Judge Denio, in the case of Van Eensselaer v. 198 ILLUSTRATIVE CASES Hays, supra. In that opinion the learned Judge, after referring to the passages above quoted, from the treatise of Mr. Sugden, saj's : " The great learning of the author, afterward as Lord St. Leonards, Lord Chancellor of England, would incline me to adopt his conclusion, were it not that we have a precedent the other way in this State," referring to the case of The Devisees of Van Rensselaer v. The Executors of Platuer, 2 Johns. Cas. 26. I do not understand the decision in that case as in conflict with the opinion of Mr. Sugden ; on the contrary, when considered in connection with the case of The Executors of Van Rensselaer v. The Executors of Platner, decided at the same term, it appears to me very strongly to confirm that opinion. Both these actions were brought to en- force covenants for the payment of rent, entered into by Platner, the defendant's testator, in an indenture executed in 1774, by which John Van Rensselaer conveyed to him in fee simple, reserving rent with rights of distress and re-entry, and with covenants for payment on the part of the grantee, in all respects similar to those contained in the indenture, on which the plaintiff relies in the present action. In the case in which the Executors of Van Rensselaer were plaintiffs, they had claimed in their declaration several 3^ears' rent, which accrued during the life of their testator, and for one year's rent, which became due after his death, and had obtained a verdict for the whole. ' All the rent had accrued after the death of Platner, the original covenantor. A motion was made in arrest of judgment, and two grounds were relied upon in support of the motion. First, that the executors of Platner were not liable for rent which accrued subsequent to the death of their testator. Second, that the executors of Van Rensselaer could not recover for rent which accrued subsequent to the death of their testator. It was held that the executors of Platner were liable on the express covenant of their testator, notwithstanding the descent of the land to his heirs, and that the recovery, so far as it embraced rent which became due during the life of the plaintiff's testator, was correct ; but that the plaintiffs had no right of action for the year's rent which became due after the death of their testator, and for that reason judgment was arrested. Kent, J., said : " It is clear IN REALTY. 199 that the executor can only go for rent due and payable at his testator's death, where the rent, as in the present case, goes on the testator's death to his Iieirs." In the other case, parties to whom John Van Rensselaer had devised the rent were plaintiffs, and had obtained a verdict against the executor of Platner for rents which became due subsequent to the death of both Platner and Van Rensselaer. The judgment was arrested, not on the ground that the devisees were not entitled to main- tain an action on the covenant, but on the ground that the defendants were not liable to the plaintiffs as devisees for the rent, " which," as the Court says, " is created by reason of tiie contract, and is by reason of the profits of the land, wherein none is longer chargeable with them than the privity of estate continues with them." It was held that the executors of the covenantor were liable only by force of the personal contract of their testator, without reference to the land, and in that respect were liable only to those " legally competent to repre- sent the mere personal rights " of the covenantee, which the plaintiffs clearly were not. Chief Justice Lansing, who delivered the opinion of the Court, said : " This rent is a fee farm rent (Harg. Co. Litt., 145, b. n. 5) or rent charge; it is perpetual. The rent is real estate, and so, certainly, is the estate out of which it issues ; the rent and the land granted are equally transmissible to the heirs of the person seised. ... If the covenant descends with the land, it must equally descend with the rent issuing out of the land ; and if so, the per- sonal representatives cannot, after the death of the parties and for rents accruing after the death of both, either maintain or be subject to an action. On the privity of contract, the defendants Cannot be liable to the plaintiffs, because they are not legally competent to represent the mere personal rights of the testator arising from the contract. They cannot otherwise represent him than as the rights of the testator devolve upon them ; but those being merely taken as devises, they are strictly confined to the real estate. If they claim against the defendants, deducing their title by the devise, they must claim on tlie principle that the common ligament, the estate charged, unites them in interest, as privies, with the defendants ; but it is not pretended that the executors hold the estate, or have any 200 ILLUSTRATIVE CASES interest in it, and on this ground the action is not attempted to be sustained." All which this case decides, therefore, is that the executors of a person who covenants to pay a per- petual rent charge are not liable on the covenant to any person except the covenantee and his personal representa- tives; and, in connection with the previous case, which decides that such personal representatives cannot recover for rent fall- ing due after the death of their testator or intestate, for the reason that the rents go. to the heir or devisee, it shows that the executor of the covenantor can never be made liable for any default which does not occur during the life of one of the original parties to the covenant. Possibly this limitation of the fSbility of covenantors may not be consistent with the common law rule as recognized in England (Piatt on Gov., 194, 195 ; lb. 493 ; 7 Pet. 604) ; but it is in substantial accord- ance with the manifest intention of the parties, as expressed in the contract, and is strongly recommended by its justice and convenience. These cases having been decided by a Court of great learning and ability more than fifty years since, and the correctness of the decisions, so far as I am informed, never having been questioned, I cannot do other- wise than to recognize them as expressing the proper limita- tion of the liability of parties on covenants for the payment of perpetual rents. In my opinion, however, the right of the plaintiff to re- cover in this case is entirely clear, upon the ground that the covenants at common law run, as was said by Mr. Sugden, with the rent, in the hands of the assignee, so as to enable him to sue upon them, and with the land itself in the hands of the assignee, so as to render him liable to be sued upon them ; and that for that reason the judgment should be affirmed. Judgment affirmed. Van Rensselaer v. Hays, 19 N. Y. 68 ; Wallace v. Harmstad, 44 Pa. St. 492 ; Minneapolis Mill Co. v. Tiffany, 22 Minn. 463. ILLUSTRATIYE CASES IN REALTY. ^ ^ ESTATES IN LAND. An estate in land is the quantum of interest which a person may hold merein. I FEEEHOLD ESTATES. A freehold estate is an estate of inheritance, or for life, in land, and at common lavr could be created only by livery of seisin. CuTTS V. Commonwealth, Supreme Judicial Court of Massachusetts, 1807. 2 Mass. 284. Sedgwick, J. This case is brought before the Court by a writ of error, which complains of a judgment of the Court founded on a suit in favor of the Commonwealth against the plaintiff in error, instituted by the solicitor-general, by the order of a special resolve of the Legislature, in pursuance of the Act passed June 18, 1791, "directing the manner in which inquests of office shall be taken to revest real estate in the Commonwealth, or to entitle the Commonwealth thereto." This writ is grounded on the second section of the statute, 201 202 ILLUSTRATIVE CASES which enacts " that in all other cases, where an inquest of office is necessary by law to entitle the Commonwealth to hold lands, tenements, or hereditaments, such inquest shall be taken by the Supreme Judicial Court, in the county where such es- tate lies, upon information of the attorney -general describing " (among other things) " the estate claimed, and the title set up thereto, by the Commonwealth." As this is a prosecution instituted by statute, in which, from the nature of the subject, the government, the party plaintiff, is the whole people, against an individual or individuals, the party defendant ; and against whom the Judges are inevitably interested, it becomes important that none of the guards, which the law has provided for the security of the defendant, should be dispensed with. The statute, as recited, has rendered it necessary that the information should describe, 1st, The estate claimed by the Commonwealth, and 2d, The title set up thereto by the Commonwealth. If the information on which the judgment was founded was deficient in describing the estate claimed by the Commonwealth, or its title thereto, the judgment must be reversed ; then — 1. Does the information describe the estate which the Com- monwealth claims in the demanded premises ? By " estate " in land, I understand, the kind and quantum of interest therein. This interest may be a freehold, or of an inferior degree. A freehold may be of inheritance or for life. If of inheritance, it may be pure or base, absolute or conditional, in fee simple or fee tail. If fee tail it may be general or special. If for life it may be for that of the tenant or of another person, with or without impeachment of waste, absolute or conditional. If the estate be less than freehold, the term may be of greater or less duration, and with duties to the superior, more or less burthensome. In short, an estate, in real property, is suscepti- ble of every possible variation in which man can be related to the soil. When the government claims, against an individual, lands in his possession, it is proper that the law should pro- vide, as this Act does, that the "estate claimed," the kind and quantum of interest therein, should be described. Indeed this IN REALTY. 203 is necessary, ordinarily, in controversies between private per- 8ons. Was this done by the information in this case ? I think not. After describing the land to which claim is laid, the information says, " which tract of land the Commonwealth are entitled to hold and possess." Here, certainly, the estate claimed by the Commonwealth is not described. Nothing could have been less precise and more indefinite than the words " hold and possess " as descriptive of an estate in lands ; they apply equally to many kinds of estates. The information gives no other description of the estate of the Commonwealth in the lands demanded than by describing that derived from Sir William Pepperell. And there is no other estate intended to be described as derived from him but what is expressed by the allegation that he " was seized and possessed, and entitled to be seized and possessed of the tract of land " demanded. Here again the words, descriptive of the estate of Sir William are altogether vague and indefinite. The information then does not " describe " the estate, the kind and quantum of interest claimed in the land demanded. 2. The remaining question is, whether the title set up, by the information, to the lands demanded, is such as would authorize a judgment for the possession, in favor of the Commonwealth? The title get up is an Act of the government, passed on the 30th of April, 1779, "to confiscate the estates of certain noto- rious conspirators," etc. In this Act, ampng others. Sir William Pepperell is named, and it enacts " that all the goods and chat- tels, rights and credits, lands, tenements, and hereditaments of every kind, of which any of the persons before named were seized or possessed, or entitled to possess, hold, enjoy, or de-_ mand, in their own right, or of which any other person stood, or doth stand seized or possessed, or are or were entitled to have or demand to and for their use, benefit, and behoof, shall escheat, inure, and accrue to the sole use and benefit of the government and people of this State, and are accordingly declared so to escheat, inure, and accrue ; and the said govern- ment and people shall be taken, deemed, and adjudged, and are hereby accordingly declared to be in the real and actual 204 ILLUSTRATIVE CASES possession of the goods, etc., lands, etc., without further in- quiry," etc. To this there is a proviso, in these words : "Pro- vided always, that the escheat shall not be construed to extend to, or operate upon any goods, chattels, rights, credits, lands, tenements, or hereditaments, of which the persons aforenamed and described, or some other in their right and to their use, have not been seized or possessed, or entitled to be seized or possessed, or to have or demand, as aforesaid, since the 19th day of April, in the year of our Lord 1775." From this recital it is manifest that to derive a title to any lands, from the seisin or possession of a conspirator, named in the Act, to the Commonwealth, it was necessary, 1st, that the person from whom the title was derived should have been seized or possessed, in his own right ; and 2d, that such seisin or possession should have been since the 19th day of April, 1775, and before or at the time 6f passing the Act. The Act, how- ever just or necessary, was certainly rigorous, and must therefore have a strict construction. Now the information does indeed say that Sir William Pepperell was seized and possessed of the land described, but it does not aver that it was in his own right. He might have been seized and pos- sessed, in trust or in the right of another, of the land de- manded, and yet no title derived, by the Act, to the Common- wealth. Again, to derive a title from Sir William to the Commonwealth, he must have been seized since the 19th day of April, 1775, and before the 30th day of April, 1779. But the allegation in the information is that prior to the 19th day of April, 1775, and since that time, he was seized and possessed. All this might be true, and yet the lands demanded not be confiscated by the Act. This allegation may be all true, and yet the whole time within which the Act required a seisin and possession, to give effect to the confiscation, excluded. The title set up, therefore, is wholly defective, and cannot be aided by the verdict. I have not incumbered my opinion with a recital of the errors assigned by the plaintiff, because it was found to be un- necessary, from the view taken of the case by the Court. We IN REALTY. 205 are all of opinion, for the reasons which I have stated, that the judgment must be reversed. Williams, R. P. 22 ; 2 Bl. Comm. 104 ; Van Rensselaer v. Poucher, 5 Denio, 35; Jackson v. Parker, 9 Cowen, 73; Moody «;. Parr's Lessee, 33 Miss. 192; Bridgewater v. Bolton, 6 Mod. 106 (note) ; Gage v. Scales, 100 111. 218 ; Wyatt V. Irrigation Co., 18 Col. 298. A FREEHOLD ESTATES OF INHERITANCE. 1 A Fee-Simple Estate. ' An estate in fee siinple is a freehold estate of inheritance without condition or limitation, and of indefinite duration. Jackson v. Van Zandt, Supreme Court of Judicature, New York, 1816. 12 Johnson, 169. ■^®- Thompson, C. J., delivered the opinion of the Court (Spencer, J., dissenting). The grounds upon which the plain- tiff's counsel rested their argument, to show that the Act of 1782 did not reach their case, were, 1st. That the Act did not operate prospectively. 2d. That it did not give to the tenant in tail, a fee simple absolute, but only operated as a repeal to the statute de donis, leaving the estate a conditional fee, as at common law. With respect to the first objection : it is true, that the Act is not drawn with skill and accuracy ; and, according to strict grammatical construction, may be liable to the criticism made by the plaintiff's counsel. But the sense and meaning of the Act, and the intention of the Legislature, cannot be mistaken. It is a well-established principle in the exposition of statutes that every part is to be considered, and the intention of the 206 ILLUSTRATIVE CASES Legislature to be extracted from the whole ; and when great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the Legis- lature be plain : 2 Cranch, 386. It is a first principle in legislation, that all laws are to op- erate prospectively. And it appears to me that it would be doing great violence to the intention of the Legislature, to limit this Act to estates tail then existing. This would be comparatively doing nothing. It would be obviously against the general scope and object of the statute, which was to abolish entails. It is a settled rule of construction, that when the words of a statute are obscure or doubtful, the intention of the Legislature is to be resorted to in order to find out the meaning of the words. This intention is sometimes to be col- lected from the cause or necessity of making the statute.' And whenever the intention can be discovered, it ought to be followed, with reason and discretion, in the construction although it seems contrary to the letter of the statute : 6 Bac. Ab. 384. If this be a sound rule of interpretation, and of which there can be no doubt, it must apply with great force to the case before us. And, indeed, the intention of the Legisla- ture is so obvious, that it was not pretended to be denied by the plaintiff's counsel in the argument. The Act of 1787, by which the premises in question are given to Richard Penn Hicks, is a strong legislative construction of the Act of 1782. For it was obviously made for the express purpose of carrying into efi'ect the will of Thomas Hicks, according to the inten- tion of the testator. It alleges, by way of recital, that, were it not for the late Acts abolishing entails, Richard Penn Hicks would have become seized in fee tail general of the premises in question. But by such law the estate in fee tail general, devised to Mary Hicks was converted into a fee simple, and she, having been born out of lawful wedlock, could have no heirs, by means whereof the lands escheated to the people. It is no answer to this argument that this is a private Act, and the suggestion made by the party. This is true where the suggestions are matters of fact, but that is not the case here. IN REALTY. 207 There was an alleged construction of a public Act, and which the Legislature were bound to look to and adopt or reject, as, in their judgment, the Act would warrant. And if the Act of 1782 did not extend to this case, most certainly the Act of 1787 ought not to have been passed. In my opinion, therefore, the Act of 1782 must have a prospective operation, and apply to the will in question. Nor is the other ground of argument, in my judgment, better founded. This seems to have been suggested by the difference in the phraseology between the Acts of 1782 and 1786. By the former, the estate in fee tail is converted into a fee simple, and by the latter into a fee simple absolute. This difference, however, does not extend throughout the Act, for, in the second section of the Act of 1786, the term, fee simple is used in the same sense with fee simple absolute in the first sec- tion. But if it were not so, it would make no difference in the construction of the two statutes. The terms fee simple and fee simple absolute have one and the same meaning. Littleton (sect. 1.) says, a tenant in fee simple is he who hath lands or tenements to hold to him and his heirs forever ; and it is called fee simple, or feodum simplex, because it signifies a lawful and pure inheritance. Coke, in his Commentary, adopts the same definition, and says, that simple is added to fee for the purpose of showing that it is descendable to the heirs generally, without restraint to the heirs of the body, or the like. And he uses the terms, simple and absolute, as synonymous, when subjoined to fee. Thus, says he, the more, apt division of a fee is into fee simple or absolute, conditional, and qualified or base. For the word simple properly excludeth both conditions and limita- tions that defeat or abridge the fee. It would be a very strained construction of the Act of 1782, to say it only converted fee tails into conditional fees, as at common law. The result of the opinion of the Court accordingly is, that the Act of 1782 operated prospectively, and of course extended to the will of Thomas Hicks ; that the fee tail general, devised to his sister, Mary Hicks, was by the statute converted into an estate in fee simple. And if so, it is not denied but that the defendant has 208 ILLUSTKATIVE CASES shown a good title to the premises in question, and is entitled to judgment. Judgment for the defendant. Williams, R. P. 50 ; Tiedeman, R. P. 36 ; Van Rensselaer v. Poucher, 5 Denio, 35. HOW CREATED BY DEED. As a general rule the vrord "heirs" '^as necessary in instruments at common laixr to create a fee-simple estate. BuPFUM V. Hutchinson, Supreme Judicial Court of Massachusetts, 1861. 1 Allen, 58. Merrick, J. This is a real action to recover possession of the tract of land described in the writ, being part of lot No. 6 in the third range which was laid out and assigned by the town of Lynn to Matthew Estes in 1706. The demandants derive their title by aregular series of conveyances from said Matthew Estes ; deducing their title, among other conveyances, from deeds from the heirs of John Ireson and from Amos Dorman. Their title in this manner being shown to be complete, they are entitled to recover unless the objections relied upon by the ten- ants are sufficient to prevent it. It is first objected that the demandants are estopped from set- ting up their title under the conveyance from the heirs of John Ireson, by reason of the covenants contained in a certain deed of partition made and executed by them and certain other per- sons, proprietors of certain parts of the tract of land known as the " Kocks Pasture." This deed bears date and was executed on the 22d day of November, A. D. 1813. By the terms of it, six acres and eighty poles in the sixth lot in the third range,, on the eastern side of said lot, were set off and assigned to Jacob Ingalls. By the same. deed, eight acres and one hun- dred poles were also set off and assigned to the heirs of John Ireson. Both of the lots thus assigned and set off to Jacob IN REALTY. 209 Ingalls and the heirs of John Ireson include the demanded premises. And the several proprietors, parties to the said deed, " do for themselves, their heirs, executors, and administrators covenant and grant to each other that he or they shall thence- forward peaceably and quietly have, hold, possess, and enjoy the same " lots set off and assigned to them severally in and by said deed, " free from all right and claim whatsoever of them or either of them, or any person claiming from or under them, for- ever." The tenants insist that as the six acres and eighty poles set off and assigned to Jacob Ingalls include the demanded premises, the demandants are estopped, by the covenants of the heirs of John Ireson, from claiming the same under deeds from them. But whatever may have been the right of Jacob Ingalls, derived under the deed of partition, the tenants do not show that they are entitled to the rights thereby acquired by him. The tenants are the heirs-at-law of Jesse Hutchinson, Jr., to whom the demanded premises were conveyed by the warranty deed of Sidney Ingalls. But it does not appear, nor is there anything in the facts reported to show, that there was any con- nection between him and Jacob Ingalls, or that the title of the latter, whatever it was, ever came to him. On the contrary, the demandants hold under deeds from the heirs of John Ireson, to whom the same demanded premises were, by the deed of par- tition, in direct and explicit terms assigned and set off. As against all persons, therefore, except Jacob Ingalls, they had a clear and complete title ; and as Sidney Ingalls shows none derived from Jacob Ingalls, neither he, nor the tenants claiming under him, can insist upon an estoppel by force of the cove- nants in the deed of partition. But the demandants, in tracing their title from Matthew Estes, hold under a deed from Amos Dorman, as one of the interme- diate conveyances. And the tenants claim that they derive title from the deed of Dorman dated January 4, 1847, written on the back of a deed of Sidney Ingalls to Jesse Hutchinson, Jr., of the same date. It does not appear from the facts reported whether this deed of Dorman was made before or after the con- veyance by him of the demanded premises under which the 14 210 ILLUSTRATIVE CASES demandants derive their title ; if it was afterward, it is very clear that Hutchinson could take nothing by it. But whether it was before or afterward is immaterial to the present issue ; because the deed which names no grantee, but which being writ- ten on the back of the deed to Jesse Hutchinson, Jr., it is con- tended must be construed to be a conveyance to him, contains no words of limitation, and therefore conveyed only a life-estate. The word " heirs " is essential in a deed of conveyance to create an estate in fee ; and if a man purchase lands to himself forever, or to him and his assigns forever, he takes only an estate for life : 4 Kent Com. 6. The grantee, Jesse Hutchinson, Jr., hav- ing deceased, the life-estate which he acquired by the deed of Dorman, if in fact he took anything by it, is at an end ; and the tenants therefore cannot avail themselves of the estate thus conveyed. The tenants, however, further rely upon a deed of Dorman to Albourne Oliver, conveying a certain undivided part of the land in " Rocks Pasture," in which he excepts, among other lots, " about two-thirds of the sixth lot in the third range of said ' Rocks Pasture,' sold to Jesse Hutchinson." This excep- tion has some tendency to show that he had made a convey- ance of some estate to Hutchinson ; but as the only convey- ance of that kind shown to have been made by him is by deed, and written on the back of the deed of Sidney Ingalls, and as that was the conveyance only of a life-estate, which has been terminated by the death of the grantee, the tenants obviously can derive no advantage from it. It follows from these considerations that the exceptions to the rulings of the presiding Judge cannot be sustained, and that the verdict for the demandants is to stand, and judgment is to be entered upon it. Exceptions overruled. in realty. 211 Arms v. Burt, Supreme Court of Vermont, 1827. 1 Vt. 303. Hutchinson, J., delivered the opinion of the Court: The plaintiff's title, being by virtue of a levy of an execution in his favor against one Erastus Burt, the great questions that arise are, whether Erastus had any title that could pass by levy ? and whether this levy is sufficient to vest that title in the plaintiff? The case allowed shows the title to the premises once in Jonathan Burt, the defendant, and also, that, whatever title Erastus Burt had at the time of the levy, he derived from said Jonathan, by virtue of the lease referred to in the case. Upon the trial at the County Court the counsel for the de- fendant rested their defense principally upon the writing signed by said Jonathan and Erastus in the margin of the record of said lease. This was relied upon as a surrender by Erastus of the lease, and all his interest derived from it, to said Jonathan. We are "now called to decide the legal effect of that writing. But the nature of the lease must be first understood. The lease is not a lease for years merely ; but conveys a present fee, determinable upon the non -performance, by Erastus, of the conditions and duties named in the lease on his part to be performed. It has the formalities of a deed, signed, sealed, witnessed, and recorded. It runs to him, his heirs, and assigns ; and continues so long as wood grows and water rwns. These terms extend as fully beyond the use of land as the term forever. But this title was to cease, and the land revest in Jonathan, upon the failure of Erastus to perform the stipulation on his part. Now, what should be the effect, upon this lease, of the writing in the margin of the record, signed by the parties to the lease ? It probably is not what was intended by the parties. It is not a conveyance back of the estate, for it has no seals nor ac- knowledgment. Nor can it be a discharge of the covenants of 212 ILLUSTRATIVE CASES Erastus, for it contains no consideration. None is pretended but mutuality, and that does not exist. Nothing passes, or is discharged, from Erastus to Jonathan, to stand as a con- sideration for the discharge of Jonathan's claim on the cove- nants of Erastus. This writing, as it now appears, must be wholly inoperative. It can neither be a surrender nor dis- charge of the title of Erastus, nor discharge of his covenants. Had it been so executed as to reconvey the estate to Jonathan, that would have formed a good consideration to support the same instrument, as a discharge from Jonathan to Erastus of his covenants. The case shows that the defendants, on trial, offered to prove a failure of Erastus to perform the conditions of said lease, on his part, before said writing in the margin was executed, and also that ever since that time, he has wholly abandoned the premises, and neglected every stipulation of the lease. This was rejected by the Court, and probably ought to have been admitted ; it certainly ought, if it had been offered in con- nection with evidence to show that said Jonathan had re- entered upon the premises for a breach of condition. The nature of the lease being as above described, Jonathan was not obliged to re-enter ; but might stand aloof and rely upon his remedy upon his covenants against Erastus. Or if he chose to re-enter upon breach of the condition, he might do so, and thereby the estate would revest in him ; and Erastus be no longer liable for that support he had covenanted in the lease. And the recovery of Jonathan upon his covenants in such case, would only be for the damage he sustained before his re- entry. But it seems Jonathan was in possession before this suit was brought. Probably, that might have been urged as a sufficient re-entry to revest the estate. Now, if such an estate as Erastus had in the premises be liable to levy of execution at all, the plaintiff, by his levy, could gain no better or greater estate than he found in Erastus. That is, a present estate in fee, to hold upon the performance of that multifarious condition ; and, on failure to perform, lose the estate wholly, by its reverting to said Jonathan. IN REALTY. 213 As the merits of this part of the case have not been tried at all, a new trial must be granted. An objection is now raised to the levy under which the plaintiff claims to have obtained the title of Erastus Burt. This passed sub silentio at the trial ; but as the case is drawn up, this question is now fairly presented. As a new trial is granted, we are disposed to inform the parties what views the Court entertain upon this point also. Upon recurrence to the levy, we find that the officer did not levy upon the land, but upon the right, title, and interest of Erastus Burt in and unto the land. The land itself is after- ward well described ; and the officer returns that the apprais- ers appraised the premises. Yet the word premises must mean what was levied upon, which we find to be Erastus Burt's in- terest in the land. The levy should have been upon the land itself, and the appraisal should have been of the land itself, subject to such an incumbrance, describing it particularly. As the levy is, we may ask, what interest had Erastus in the land? What did the sheriff suppose it to be? What did the appraisers suppose it to be? The learned counsel here in Court differ much about this interest ; and how can it be as- certained how the appraisers viewed it ? In the case of Elijah Paine -y. Lindley Webster ei al., decided at St. Albans, on the present circuit, a similar question was raised and fully considered, and the levy considered void. We consider this levy void also. A new trial is granted. Williams, R. P. 144 ; Jackson v. Myers, 3 Johns. 388 ; Society v. Sharon, 28 Vt. 603 ; Sisson v. Donnelly, 36 N". J. L. 432 ; Edwardsville Ry. Co. v. Sawyer, 92 111. 377 ; Foster v. Joice, 3 Wash. 0. 0. 498. Contra : Merritt v. Disney, 48 Md. 344 ; Cole v. Lake Co., 54 N. H. 242. 214 ILLUSTRATIVE CASES EXCEPTIONS. a When created by will the word " heira " is not necessary. Campbell v. Caeson, Supreme Court of Pennsylvania, 1825. 12S.&R.54. Duncan, J. The will of George McDowell gives rise to this controversy. The question raised by it is : Whether the testa- tor devised to his wife Frances, his lands in Westmoreland County, in fee, or she only took a life estate ? The devise is as follows: "As touching such worldly estate wherewith it hath pleased God to bless me in this life, I give and dispose of the same in the following manner and form : First, I give and bequeath to Frances McDowell, my dearly beloved wife, whom I likewise make my sole executrix of this, my last will and testament, all and singular my lands, messuages, and tene- ments in Westmoreland County, to be by her freely possessed and enjoyed." He then bequeaths to her certain specific legacies, and then proceeds : " I also bequeath to my niece, Martha Glyn, a certain tract or piece of land, situate in West- moreland County aforesaid, containing one hundred acres lying on the east side of the spring on the said land." The testator died without issue. The lands in Westmoreland County were held by settlement right. The testator had been driven from them by the Indians some years before he made his will, and the settlers had not returned. If one traveled out of the four corners of the will, in search of the intention of the testator, it would be inconceivable that he could intend a life estate in a small improvement, without other than cabin buildings, deserted for years, and the cleared land again grown up,, on which no purchase-money had been paid, and depending on the will of the Legislature, which might, by not extending the time of payment, cast the whole burden of it on the tenant for life, or make void the inceptive right. But the case does not require us to make a distinction between such an inceptive IN REALTY. 215 title and one consummated by patent. In every case, where a testator devises his land without more, his prima facie inten- tion is to give the whole interest. Judges have found them- selves constrained, however, to decide that the words, I devise my plantation, my farm, my house, my land, carry only an estate for life : 3 Cranch, 137. But where it appears from the whole will taken together, that the testator intended a fee, if there are any words equivalent to perpetuity, it will be held a fee, and the constant struggle of the Courts has been to seize hold of any word or any provision to effectuate the intention. Where anything is directed to be done, or any intention of the testator to be accomplished, where the words of the devise give only an estate for life, and where such estate would be insuflEi- cient to answer the end a fee passes. The implication must be necessary or manifest, and not dubious or merely probable. Where, from the whole context of the will, it appears the tes- tator intended a fee, and the conscience of a Judge so informs him, it is his duty to construe it a fee. I do not mean by this that the words land, plantation, farm, house, ex vi termini will do ; but any words in the will showing the testator did intend a larger estate than for life, or such larger estate is necessary to answer his declared purpose, to accomplish his views. Every case of this sort depends on its own particular circumstances, and is individual. In construing a will, though a fee is not given by the devising clause, yet, if there is anything on the face of the will to indicate an intention to give a fee, any words eqwivaUnt to words of perpetuity, anything in the four corners of the will from which a fair and demonstrable infer- ence can be drawn of an intention to give a fee, to the dis- herison of the heir, a fee will pass. Equivalent words do not depend on their technicality, but on their reasonable construc- tion, their plain, natural meaning. I will instance some cases in which the words have been construed as tantamount : I devise all I shall die possessed of: I devise my part; my share ; my interest. So, a devise of land wholly to A. : all my worldly substance, or effects, real and personal : all my landed property. It is always a question of construction. If the 216 ILLUSTRATIVE CASES ■words denote only a description of the specific lands devised, and if no words of limitation are added, the devisee has only an estate for life. But if they denote the quantum of interest or property the testator had in the lands devised, the whole extent of his interest passes to the devisee. These very words — " to be by her freely possessed and enjoyed," have received a judicial construction ; for in Mudge's Lessee v. Blight, Cowp. 352, a devise thus, " As touching my worldly estate, I devise the same as follows : to my two sons, T. M. and R. M., whom I make and ordain my sole executors, I give all my lands and tenements freely to be enjoyed and possessed alike," passed a tenancy in common, in fee, to T. M. and R. M. The free en- joyment must, as Lord Mansfield says, mean free from all limitations ; that is, the absolute property. Subsequent cases- in England may have put a different construction on the words, " freely to be enjoyed ;" as free from impeachment of waste, free from incumbrances ; but I am very free to declare that Lord Mansfield's construction is the most natural and reasonable, and that the other is but a remote probability ; a possibility that the testator might so have intended them ; but in my consideration they mean, the free enjoyment for all purposes against the heir. This is the fair meaning, the natural, common-sense construction ; the other is a forced con- struction, straining the words against their common use and understanding; not to effectuate, but to defeat the testator's intention. They have been construed by this Court according to their usual acceptation, and the understanding of all man- kind. In Willis V. Bucher, 2 Binn. 464, the Chief Justice puts this construction on them ; and again, words not so strong — " I give my plantation to my son John, for him to improve and enjoy the same," were held to pass a fee in Hoge V. Hoge, 1 Serg. & Rawle, 144. I have no disposition to recede from the liberal cast of cases which effectuate the in- tention of the testator ; far from it ; without a disposition to overturn any settled principle on the construction of limita- tions in wills, I feel a strong inclination to construe them by a rule of common sense, which is as strong as any case can be.. IN REALTY. 217 To give to words their natural sense, unless some obvious in- convenience or incongruity would result from such construc- tion, is the cardinal rule in the construction of wills. In addition to the words — " freely to be enjoyed," which I con- sider words of perpetuity, if the prefatory clause declaring the testator's intention to devise his whole worldly estate is taken in connection with the devising clause, which is always done where there is a clear intention for the purpose of explaining or enlarging the estate, here there is such an evident intention without anything to disconnect, without any interposing clause, that I must lay hold of it to effectuate the clear intention of the testator to give his wife a fee simple. On this branch of the case, Winchester's Lessee v. Tilghman, decided by the Provincial Court of Maryland, and affirmed in the Court of Appeals, 1 Harris & McHenry, 452, in which it was held, that " as to the worldly estate it has pleased God to bless me withal," and after several intervening devises, " I give unto my daughter Eliza three hundred acres of land, lying in Kent and Queen Anne's Counties, called Pharsalia," passed a fee, is very applicable. The conclusion of law is not, where there is a devise of land, a plantation, a house, without more, that because a fee was intended, therefore a fee is devised ; but it is quite certain that if the intention to devise a fee is evi- dent and manifest from the general scope of the will, taking into view all the circumstances and clauses in the whole will, and uniting them together, it will be construed a fee, and it is not material what words are used, whether technical or not, the meaning and intention being thus collected from the words or by necessary imjilication. Judgment affirmed. Godfrey v. Humphrey, 18 Pick. 537; Fox v. Phelps, 17 Wend. 393; Wood V. Hills, 19 Pa. St. 513 ; Morrison v. Semple, 6 Binn. 94. 218 ILLUSTRATIVE CASES b So in deed to trustee the word " heirs " is not necessary. North v. Philbrook, Supreme Judicial Court of Maine, 1852. 34 Me. 532. Rice, J. This is a petition for partition. The rights of the petitioner depend upon tlie provisions of a deed from Joseph North and Hannah North to Henry W. Fuller, dated January 7, 1814, and a deed from Gershom North to James P. Phil- brook, dated November 17, 1846. The original estate was in Joseph North and Hannah North, his wife, in right of the wife. Gershom North was a son of Joseph and Hannah, who also had other children and heirs, and the petitioner is a daughter of Gershom. Hannah North, one of the grantors to Fuller, died in Feb- ruary, 1819, and Joseph North, the other grantor to Fuller, ■died April 17, 1825. Ann North, wife of Gershom, deceased before her husband, but after the decease of both Hannah and Joseph. Subsequent to the death of Ann, Gershom married again, and died March 4, 1849, leaving the petitioner, a minor daughter by his second wife, his only heir. The deed of trust from Joseph and Hannah North to Fuller contain no words of inheritance. The first point raised at the ■argument was as to the character of the estate which passed to the trustee by that deed. The petitioner contended that it was an estate of inheritance, because nothing short of such an estate would enable the grantee in that deed to perform the trusts provided in the deed, and carry out the manifest intention of the grantors. As a general rule, such a quantity of estate will be held to be vested in trustees as is required for the performance of the trust ; and therefore if land be given to a man, without the word heirs, and a trust be disclosed which can be satisfied in no other way but by the trustee's taking an, inheritance, it Las been held that a fee passes ; so where there is a trust for IN REALTY. 219 sale, that is a purpose which it is impossible to serve unless the trustee have an inheritance, " for if they are to sell a fee, they must have a fee :" Crabb on Real Property, § 1831, p. 594. So a trust to sell, even on a contingency, confers a fee simple as indispensable to the execution of the trust : Lewin on Trust and Trustees, 235. Trustees must in all cases be presumed to take an estate commensurate with the charges imposed on them : 7 East, 99. Therefore, where lands are devised for a particular purpose, without words of inheritance, and the death of the devisee may defeat the object of the devise, he will take a fee. This doctrine is frequently applied to trusts created to support estates of inheritance : 8 Vin. Abr. 262, pi. 18. When lands are granted to a trustee without words of per- petuity, he will by implication of law take a fee, if such estate be necessary to fulfill the objects of the trust : Welch v. Allen, 21 Wend. 147. The grant to Fuller not only authorized him to go into the immediate possession of a portion of the estate, but also, to " sell so much of the above-granted premises and execute a good and sufl&cient deed thereof, as shall amount to the sum of $800," for the purpose of building a house, but further stipulate^ that, " provided the said land shall not have been sold nor the said building erected, during the lifetime of the said Joseph, the said Fuller is hereby authorized, after the decease of the said Joseph, to sell so much of the above-granted premises as shall amount to the above sum and for the pur- pose aforesaid, out of such part of the premises as he shall think proper." To comply with these provisions it would seem to be neces- sary that the trustee should have an estate in fee, and that such was the intention of the grantors is obvious when all the provisions of the deed are taken into consideration. The estate of the trustee being thus enlarged, by operation of law, its operation upon the rights of other parties must be considered. The grantors reserved to themselves, during their natural lives, the use of the principal part of the estate, re- 220 ILLUSTRATIVE CASES mainder over to Gershom and Ann North during their natural lives, and lastly, after the death of Gershom and Ann, so much of the estate as remained unsold " to descend to, and vest in, the heirs of Joseph North and Hannah North, his wife." At what point of time did the estate vest in the heirs of the grantors? This question was much discussed at the argu- ment. But from the view we take of the ease it is wholly immaterial, so far as the rights of the petitioner are involved, hov/ this question is determined, and it is therefore unneces- sary at this time to enter upon a discussion of the distinctions which exist between vested and contingent remainders. The rights of other parties, not now before the Court, may be found more involved in the consideration of that branch of the law. If, as is contended by the respondents, the heirs of Joseph North and Hannah North became known at the death of Joseph, and the remainder then vested in these heirs, with the right of possession of the estate after the decease of Gershom and Ann, then as a legal consequence, Gershom, being one of the heirs of Joseph and Hannah, became seized of a vested remainder in fee, which being a transferable in- terest, passed by his deed, dated November 17, 1846, to Phil- brook, leaving no interest to be inherited by his daughter, the petitioner. If, on the other hand, as is contended by the petitioner, the estate remained contingent until the death of Gershom, and then, according to the terms of the deed of trust, vested in the heirs of Joseph and Hannah, the petitioner is equally ex- cluded. She being the heir of Gershom and not the heir of Joseph and Hannah, and the interest of Gershom according to this construction of the deed being an equitable life estate only. But it is strenuously contended that the petitioner is the heir of her grandparents, Joseph and Hannah North, and therefore entitled to recover. In a recent case in Massachusetts, Brown et al. v. Lawrence et al, 3 Gushing, 396, which in all material points is strictly IN KEALTY. 221 analogous to "the case at bar, this question was distinctly before the Court, and directly decided. The action in that case was brought by grandchildren of the grantor, claiming as heirs of the grantor after the termination of an intervening life estate in their father, who during his life, had aliened his interest in the estate. In giving the opinion of the Court, Shaw, C. J., says : " They cannot make themselves heirs of the grandfather, because their father, through whom they must claim, was living at the time of their grandfather's decease ; and it is only when a son or daughter dies before the father, leaving children, that such children are heirs of a grandfather, or other more remote ancestor. These children were not born when the testator died ; their father was then his heir, and became a new stock of inheritance to these demandants. If the estate vested in him, he had a capacity to alienate it, and did alienate it, by his deed to the city ; if the estate did not vest in him, then nothing came to these demandants, as his heirs." The Court are unable to perceive any principle upon which the petitioner can recover, and according to the agreement of the parties a non-suit must be entered. Neilson v. Lagow, 12 How. 98 ; Stearns v. Palmer, 10 Met. 32 ; Fisher v. Fields, 10 Johns. 495 ; Welch v. Allen, 21 "Wend. 147 ; Newhall v. Wheeler, 7 Mass. 189 ; Gould v. Lamb, 11 Met. 84 ; Gates v. Cooke, 3 Burrows, 1684. So in the case of corporations. Wilcox v. Wheeler, Supreme Court of New Hampshire, 1867. 47 N. H. 488. Bellows, J. This cause is heard upon bill and answer. The defendants claim under William Simpson, alleging that by his deed to Mr. Britton only an estate for life was granted. The substance of that deed is, that, in consideration of 222 ILLUSTRATIVE CASES $100 paid by said Britton, agent for the Proprietors of Orford Bridge, Simpson conveys to him for the use of that corporation, and to his assigns, two parcels of land, one being described as a road four rods wide from the bridge to the main road, and the other apparently for a toll house ; to have and to hold the same to said Britton in trust, as aforesaid, and to his assigns. By his deed, by force of the statute of uses, the title vested at once in the corporation, as it had full capacity to take ; and nothing indicates any purpose that the legal estate should be kept on foot in Mr. Britton. The conveyance was made to him, probably, because conveyances directly to corporations had not then become quite familiar. Had it been conveyed to the corporation directly, then, as a corporation aggregate never dies, it would be a fee simple without words of succes- sion or inheritance. Had it been a sole corporation, words of succession would have been necessary. This general doctrine is well settled : 4 Greenl. Orim. Dig. 279 ; 4 Kent's Com. 7 ; where it is said that the reason, why, in deeds to corporations aggregate, the word heirs or successors is not necessary, is, " because in judgment of law a corpora- tion never dies, and is immortal by perpetual succession." So is Co. Lit. 9, 6. Such being the law where the grant is directly to a corpora- tion aggregate, it would seem not to be unreasonable to apply the same doctrine to a grant to a trustee for the use of such a corporation, when it is of such a character that the whole title at once vests in the corporation, making it substantially a grant to the corporation. Upon this point the law is well established, that if there be a conveyance to a trustee, and the nature of the trust is such as to require a fee, then by necessary implication the trustee will take an estate of inheritance, although there be no words of limitation. In the case of devises this has long been the law, and even where the purposes of the trust might probably be accom- plished without a fee ; or, in other words, if by possibility the IN REALTY. 223 purposes of the will might not be answered without the trustee had a fee, the will would be so construed : Shaw v. Weigh, 2 Str. 798 ; Willis v. Lucas, 1 P. Wms. 472 ; Collin's Case, 6 Co. 16 ; and Ackland v, Ackland, 2 Vern. 687 ; Gibson v. Mont- fort, 1 Ves. Sen. 485 ; Gates v. Cooke, 3 Burr, 1684. So the in- terest to give a fee would be inferred from the fact, that, by possibility, a fee might be necessary to effectuate the trusts, and the leaning of the Courts was very strong so to construe a devise. The same rules are applied to grants, and it was so distinctly laid down in Cleveland v. Hallet, 6 Cush. 403, by Shaw, C. J., as an exception to the rule requiring the use of the word heirs as well established as the rule itself, viz. : that when a convey- ance is in trust, and the trusts are of such nature that they do, or by possibility may, require a legal estate in the trustee be- yond that of his own life, then without words of limitation in the conveyance to the trustee, he shall take a fee. In Newhall v. Wheeler, 7 Mass. 189-198, it was held, Par- sons, C. J., that though no words of limitation are used, the estate of the trustee shall be commensurate with that of the cestui que trust. So is Stearns v. Palmer et al., 10 Met. 32, where the grant was in trust for the use of " the inhabitants of the first parish in Springfield, and their heirs, forever, for a burying yard." So is Gould et al. v. Lamb et al, 11 Met. 84, where the con- veyance is to A. B., to have, etc., as he is trustee under an in- denture tripartite, which showed the intention to be to give more than a life estate ; and so it was held that a fee passed without words of limitation. So in Brooks et al. v. Jones, 11 Met. 191, which was a mort- gage to W., treasurer of a corporation, to have and to hold, etc., to him, the said treasurer, and^ his successors in office, to his and their use and behoof forever, the condition was to pay a sum of money to the treasurer and his successors in office, and it was held that W. took a fee in trust for the corporation, al- though the word heirs was not used ; but the intention was plain, and no stress was put upon the term forever. 224 ILLUSTRATIVE CASES The same doctrine is laid down by Chancellor Kent, in Fisher ■;;. Fields 10 Johns. 494, 505. So is Villiers v. Villiers, 2 Atk. 72. In "Welch v. Allen et al., 21 Wend. 147, it is held that where lands are granted to a trustee without words of perpetuity, he will, by implication of law, take a fee, if such estate be neces- sary to fulfill the objects of the trust. So the doctrine of Cleveland v. Hallett, before cited, is con- firmed in Attorney-General v. Prop. Federal St. Meeting House, 3 Gray, 1. The conveyance to Glen, Hall, Shaw et al., for themselves, as a committee chosen and appointed by the congregation of the Presbyterian meeting house in Long Lane, etc., to have and to hold the land in their said capacitj', and to their suc- cessors forever, but to and for the only proper use, and benefit, and behoof of the said congregation, forever, and for no other use ; and it was held that the trustees took a fee upon the principle before mentioned, and no stress is put on the word forever, and the corporation was not incorporated. So in King ■;;. Parker et al, 9 Gush. 78, where the grant was to B., " in trust to and for the use of the Free Masons Lodge in Boston, known by the name, etc., to their only proper use, benefit, and behoof forever," it was held that this proved the fee. The question, then, is, whether this conveyance td Mr. Britton, agent of the bridge corporation, to be held in trust for the corporation, passed the fee without words of limitation ; that is, whether the intention to give the corporation the fee can be gathered from the grant. Had it been directly to the corporation, being a corporation aggregate, the fee would have passed ; and in all such cases where the conveyance is through a trustee to hold for the use of such corporation, the intention to make it perpetual is to be inferred, and so are the Massachu- setts cases already cited, we think. Here the grant was of two pieces of land, for a road and toll house, both essential to the use of the bridge as much so as the land upon which stands the Federal Street Churcfi ; and it IN REALTY. 225 is impossible to suppose that it was intended to grant an estate for the life of Mr. Britton only, which might have ended in one year. Such being the case, it must be considered that the fee passed, and at once vested in the corporation. In respect to some of the Massachusetts authorities, which hold that where the purposes of the trust cannot be answered without a greater estate than for life, then by implication a fee will pass, it is urged by defendants' counsel, that the intention to give a greater estate is manifested by the use of the term forever, which in this case is wanting. It is obvious, however, that this term is .not one of limita- tion, and only bears upon the question of intention, and if that is ascertained by the nature of the grant, or the language used, whatever it may be, the law will give effect to that intention, and in this case we think the intention to grant a fee is very clearly to be inferred from the nature of the grant itself At the argument upon the bill and answer, the defendants ■contend that the bill should be dismissed for want of equity, upon the ground that the plaintiffs have not established their title at law, and no case of irreparable injury is disclosed. The bill alleges that, for many years, something like fifty, four or five families upon the bridge road have been, and still are, supplied with water by the plaintiffs, and those under whom they claim, by means of the pipe laid in this road, for which the plaintiffs and their predecessors have received a yearly rent, and this is substantially admitted by the answer, at least as to some of these families. The bill also alleges that, during all this period of fifty years, the plaintiffs and their predecessors have so used this pipe in said road under a claim of. right, and in that way have acquired a valid title to the easement by prescription. The bill then alleges that the defendants threaten to cut off this pipe and so interrupt the supply of water to these famiUes, to the great and irreparable injury and damage of the plain- tiffs, and the occupants of the houses upon the said bridge road. The bill also alleges that the defendants pretend to have ac- 15 226 ILLUSTRATIVE CASES quired a right to do the acts so threatened by virtue of a quit- claim deed from one Simpson, of the land over which said road runs, but the bill alleges that said Simpson had no right or title to said land. The answer says that, whether the plaintiffs and their ances- tors claimed a right to lay and continue their said pipe in this road, against all persons, they do not know, but they allege they have no such knowledge or belief ; and they set up a title to the land by the deed of the heirs of Mr. Simpson, who were entitled to it on the death of Mr. Britton, upon the ground that only an estate for the life of Mr. Britton was conveyed. A copy of Simpson's deed is by agreement made part of the answer, and they allege that no right by prescription was, or could be, acquired against the heirs of said Simpson, or thes(i defendants, during the continuance of the life estate. And this is the defense set up, namely, a title to the road de- rived from the heirs of Mr. Simpson, claiming that his deed only gave to Mr. Britton a life estate, but not directly denying the jurisdiction of the Court, or the allegation in the bill that irreparable damage would be caused to the families on the bridge road, and to the plaintiffs by cutting off the pipes. It may be assumed, then, that, by cutting off the pipe, these families would be deprived of water for their houses, and that the plaintiffs would be injured as alleged in the bill, and it is apparent that the injury would be serious, and in respect to these families, at least, would, in its nature, be irreparable. On the other hand, the restraining of the defendants from cut- ting this pipe can cause them no injury whatever, and this may properly be considered in many cases in determining whether equity will exercise its summary power. It is true that the persons occupying these houses are not, formally, parties to this suit ; but we think the plaintiffs may fairly be regarded as represerAng them in this proceeding. They have undertaken to supply them with water ; the legal title to the aqueduct is in the plaintiffs ; and, although they may not be legally bound 'to continue the supply of water for any fixed period, still they are interested to do so, and have IN REALTY. 227 provided all the money to accomplish it. If, then, the defend- ants cut off this aqueduct, they not only deprive these families pf water for the time being, but may compel them to seek a supply from otheF sources, and thus cause a permanent injury to the plaintiffs by diminishing the value of their spring. Looking at it upon a larger scale, where a whole village or city is supplied with water in a similar manner, we should not hesi- tate to hold the injury caused by destroying the aqueduct used for such supply, as causing an injury which might well be deemed irreparable ; nor should we hesitate to decide that the proprietor of the aqueduct might well be regarded as entitled to represent the persons so supplied by him, so far as to main- tain a bill in equity to prevent such injury. Especially would it be so where, as in this case, there had been by such proprietor an uninterrupted use of the aqueduct for many years, and the claim of the other party was to be de- termined by the legal construction of a deed. We are of the opinion, therefore, that this objection cannot prevail, and that the plaintiffs are entitled to a decree. Perpetual injunction decreed. NicoU V. N. Y. & E. Ry., 12 N. Y. 121. In corporations aggregate the word "euccesBors" is not necessary to create a fee : Cong. Society v. Stark, 34 Vt. 243. Otherwise in corporations sole : Overseers v. Sears, 22 Pick. 122. So if created by legislatinre grant. Proprietors, etc., v. Permit, Supreme Court of New Hampshire, 1830. 5 N. H. 280. Richardson, C. J. The question is, whether the demand- ants have shown a title to the demanded premises ? These premises are not within the limits of the township of Enfield, as described in the charter, but are in a gore of land left be- 228 ILLUSTRATIVE CASES tween the territory described in the charter of Enfield and the township of Grantham. It can hardly admit a doubt that the gore was left out of the charter of Enfield by mistake. But this mistake cannot be corrected by a court of law. There is no ambiguity, either patent or latent, in the charter, in rela- tion to the southerly line of Enfield. There is nothing on the face of the charter that indicates, in the slightest degree, an intention that the gore should be included in the township of Enfield, and to admit extrinsic proof that sixty-eight degrees were inserted in the charter by mistake, instead of fifty-eight degrees, would be a violation of one of the soundest and best- established rules of evidence : Jackson v. Bowen, 1 Caine's Rep. 358 ; Jackson v. Sill, 11 Johns. 201 ; Jackson v. Stanley, 10 lb. 133 ; Jackson ■«. Hart, 12 lb. 77 ; Fitzhugh v. Runyon, 8 lb. 375 ; Jackson v. Wilkinson, 17 lb. 146 ; Jackson v. Marsh, 6 Cowen, 281. Whether a mistake in a charter can be corrected in this Court, in a suit between the State and the proprietors of the township, by virtue of our general jurisdiction, or under the statute of February 6, 1789, which empowers this Court to try all causes touching the validity of grants by the State, and the performance of the conditions in such grants, it is unnec- essary to consider in this case, because, however that may be, it is clear such a mistake cannot be corrected in a suit between individuals : Jackson v. Marsh, 6 Cowen, 281 ; Johnson v. Law- ton,, 10 Johns. 23. It then remains to inquire, whether the said Acts of the Legislature, passed March 28, 1781, and June 18, 1802, have vested in the proprietors of Enfield the gore in which the de- manded premises are situated ? On this question it seems to us there can be no doubt. Application was made to the Leg- islature to correct a mistake in the charter of Enfield. It seems not to have been disputed that there was a mistake, and a committee was appointed to correct it. The committee made a report, by which the mistake, with the assent of all con- cerned, was corrected, and the line of Enfield so established as to include the said gore in that township ; and that report is IN REALTY. 229 made by law conclusive between the parties. In those pro- ceedings the State and the proprietors of Enfield and Canaan were clearly parties. The said Acts of the Legislature show conclusively, that the intention was that the gore should be vested in the proprietors of Enfield. There are no particular terms necessary to constitute a grant by the Legislature : Ward V. Bartholomew, 6 Pick. 409. Individuals may establish a line between their lands by agreement: Rockwell v. Adams, 7 Co wen, 761 ; Doe v. Thompson, 5 lb, 371 ; Jackson v. Talmadge, 4 lb. 450 ; Jackson v. Smith, 9 Johns. 100. And when the Legislature have by statute established a par- ticular line, as the line of a township, the State is estopped to say that the title of the proprietors of the township does not extend to such line. It is clear that a State may be estopped by the Acts of its Legislature : 3 Pick. 224. But the township of Grantham is described in the charter as bounded on one side by a line running south fifty-eight de- grees east by the south line of Enfield ; and it is contended that by a well-known rule of construction the line of the town of Enfield, and not the point of compass, is to fix the north line of Grantham. If it appeared that the south line of En- field was, at the time when the charter of Grantham was made, a known marked line, which had been previously run out and monuments erected to designate it, it would certainly deserve very serious consideration whether the proprietors of Grantham could not hold to such line. But it does not appear that when the charter of Grantham was made the south line of Enfield had been actually located, and there was then nothing to designate it except the point of compass mentioned in the charter of Enfield. What rule of construction is to apply in such a case it will be time enough to consider when the proprietors of Grantham, or some person claiming under them, shall see fit to raise the question. We are of opinion that the actual location of the township of En- field by the Legislature is valid against all the rest of the world. It does not appear that the tenant sets up any title under the 230 ILLUSTRATIVE CASES proprietors of Grantham, and the non-suit in this case must be set aside. Rutherford v. Greene's Heirs, 2 Wheat. 196. Nearly all the States have made the word " heir " or " heirs " unnecessary in the creation of a fee- simple estate : 6 Am. & Eng. Encyc. Law, 876 ; Minn. Gen. Stata. 1878, ch. 40, ? 4. INCIDENTS OF A FEE-SIMPLE ESTATE. Among the inseparable incidents of a fee-simple estate are : The right of alienation ; descent according to law ; the tight of curtesy ; the right of dower ; and liability for the debts of the owner, a Right of alienation. Any condition in a deed restricting the grantee's power of aliena- tion of the fee is yoid as repugnant to the grant. Blackstone Bank v. Davis, Supreme Judicial Court of Massachusetts, 1838. 21 Pick. 42. The defendant claimed title under the following clause in his father's will : " I give to Erastus, my son, the use of the Bartlett farm in Millbury containing about 120 acres. Said farm is not to be subject or liable to con- veyance or attachment." Wilde, J. This is an action of trespass quare clausem fregit, and the only question submitted by the facts agreed is the question of title, the breaking and entering of the close by the defendant being admitted. It is not questioned that the devise respecting the Bartlett farm is a good devise to pass the farm to the devisee. By the devise of the profits, use or occupation of land, the land itself is devised. Whether the defendant took an estate in fee or for life only, is a question not material in the present case. The sole question is, whether the estate in his hands was liable to attachment and to be taken in ex- ecution as his property. The plaintiffs claim title under the levy of an execution against the defendant, and their title is valid if the estate was liable to be so taken. That it was so IN REALTY. 231 liable, notwithstanding the proviso or condition in the will, the Court cannot entertain a doubt. A condition in a grant or devise, that the grantee or devisee shall not alienate, is void because repugnant to the estate: Co. Lit. 223 a. And so it is as to a condition annexed to a gift or sale of a term for years, or any other chattel real or personal. A condition or proviso to restrain or prohibit the ■operation of an attachment and levy of an execution, is void for the same reason, and because it is contrary to law, which makes a man's property liable for the payment of his debts. A condition that the grantee or devisee shall not alienate for a particular time or to a particular person or persons, is good. So, in a devise to a minor provided he shall not come into possession, occupy, or have any advantage of the estate during his minority except through his guardian, who is to lease, occupy, and improve the estate, the proviso is good and valid in law : Smithwick v. Jordan, 15 Mass. B. 113. The clause in the devise under consideration is without any limitation, and declares that the property devised shall not be subject to conveyance or attachment perpetually. Such a declaration or provision the testator had no authority to make. It was an attempt to impose a restraint upon property which the law will not allow, and the provision is clearly void. Defendant defaulted. Kepple's Appeal, 53 Pa. St. 211 ; Lovett«. Gillender, 35 N. Y. 617 ; Gleason V. Fayerweather, 4 Gray, 348. A restriction of all power of alienation for even a single day is void : Mandlebaum v. McDonell, 29 Mich. 78. Restriction of alienation for a limited time has been upheld. Langdon v. Ingram's Guardian, Supreme Court of Indiana, 1867. 28 Ind. 360. Gregory, J. Fletcher Ingram's guardian filed a petition to sell the interest of the ward in a part of a lot in the city of Lafayette, for the reason that the property is situated in a part 232 ILLUSTRATIVE CASES of the city where there is great danger of the destruction of the buildings by fire ; that the property is considered a dan- gerous risk by the several insurance companies having agencies in the city ; so much so, that they refuse to insure a part thereof against loss or damage by fire, and insure the other part at high rates ; that in case of the destruction of the build- ings, there is no money belonging to the ward with which to rebuild. The only interest the ward has in the property is that derived by the will of his deceased father. That part of the will relating to this property is as follows ; "The residue of my estate, being that situated on said market space, I give and devise to my wife, in trust to manage the same in such way as she may deem most prudent, to rent the same, receive the rents thereof and dispose of them as- follows : "1. To pay all taxes, expenditures for insurance, repairs,^ rebuilding, or making any changes she may find advisable in said buildings on said realty, or any other outlays on account thereof. " 2. If the other means hereby provided for that purpose shall prove insufficient to pay my debts, as above provided, then said rents to be appropriated to that purpose, till the same shall pay any balance of said debts. " 3. To appropriate to her own use, absolutely, the one- fourth of the residue of said rents, during her natural life ; that is, one-fourth of the net income from said realty, after any debts chargeable thereon are paid. " 4. To appropriate to the use of my three children the re- maining three-fourths of said net income, one of said fourths to each of them, as follows : One of said fourths to be paid over to my daughter quarterly, or at such other times as re- ceived and ascertained ; such payment to be to her personally, and on her separate receipt, and neither she alone, or jointly with her husband, to have power to anticipate, charge, in- cumber, or transfer the same, or any right thereto, or to any part thereof. To use in her discretion the two of said fourths that are given to my two sons, one for the benefit of each, for IN REALTY. 233; the boarding, clothing, and schooling of each, or otherwise^ until my youngest son shall arrive at full age ; after which time my said wife, in her discretion, may convey to all or any one or two of my said children, by deed, the one-third of said realty, subject to her right to one-fourth of the net income arising therefrom, and said deed shall operate first, to vest a title free from any trust, or any one may convey his or her in- terest therein to a third party by deed, in which my wife, as such trustee, shall join ; but, except as above, my son shall have no power over the same, nor in any mode anticipate, in- cumber, or transfer the same, or any interest therein, or in said income, while said trust continues. But said trust shall ter- minate with the death of my wife, and one-third of said realty vest absolutely in each of my said children, unless by deed or will my wife shall direct said trust to be continued, as to the share of any or all of them, and name a trustee or trustees, in which event the same trust created shall continue as to the share of the one or more, as thus directed by my said wife. In the event of the death of any one of my children, not leaving^ a descendant alive, the share of such one shall continue part of the trust property, the net income therefrom to be equally di- vided between my wife and the survivors. If a second child die without descendant alive, the share of such one, both original and that taken as the survivor as aforesaid, shall continue part of the trust property, and the net income divided equally be- tween the last survivor and my wife — this to continue during the life of my wife ; but the absolute title to each share,, original or accruing in said events, to survive to the surviving children or child. If all my children shall die without de- scendants alive, then the whole property to vest absolutely, in fee simple, in my wife." The testator left surviving him, his wife and two children — Elizabeth, intermarried with Byron W. Langdon, and Fletcher Ingram, the youngest son, Robert J., having died intestate, without issue, before the death of the testator. The Court be- low decreed the sale of the ward's interest in the real estate described in the petition. Langdon and wife appeal to this 234 ILLUSTRATIVE CASES Court. It is claimed that the restriction on the power of alienation was removed by the death of the youngest son. We do not think so. As a general rule, a condition in a grant or devise that the grantee or devisee shall not alienate is void, because repugnant to the estate, but a condition that the grantee or devisee shall not alienate for a particular time, or to a particular person or persons, is good. So, in a devise to a minor, a proviso that he shall not come into possession, oc- cupy, or have any advantage of the estate during his minority, except through his guardian, who is to lease, occupy, and im- prove the estate, is good and valid in law : The Blackstone Bank v. Davis, 21 Pick. 42. It was the obvious intention of the testator that the property should remain in the hands of the trustee until the youngest son should arrive at full age, and that the portions of the rents and profits bequeathed to the two minor sons should be applied by the trustee to their support and education. The death of the younger still left a minor son to be supported and educated from the proceeds of the property. We think that, until the surviving minor son shall arrive at full age, the re- striction on the power of alienation is valid, and that it is not competent for the guardian to sell the ward's property, under a license from the Common Pleas Court, in violation of this restriction. The nature of the ward's interest in the property, under the will, is such that it cannot be severed without ter- minating the trust. The trustee must have the control of the entire property to carry out the provisions of the trust. What a Court of Equity would do on the application of the trustee, under the facts stated in the petition, is not involved in this form of proceeding, and we do not wish to be understood as deciding anything on that subject. The judgment is reversed, with costs, and the cause re- manded to said Court, with directions to dismiss the appli- cation. Simonds v. Simonds, 3 Met. 558 ; Mc Williams v. Nisly, 2 S. & R. 507 ; Stewart v. Brady, 3 Bush. (Ky.) 623 ; Hill v. Hill, 4 Barb. 419 ; In re Macleayl L. E., 20 Eq. 186. Cmitra : A restriction of all power of alienatiod for even a IN REALTY. 236 single ddy is void : Mandlebaum v. McDonell, 29 Mich. 77. See, also, DePeyster V. Michael, 6 N. Y. 467 ; Anderson v. Gary, 36 Ohio St. 506. Eestrictions as to person : Den v. Blackwell, 15 N. J. L. 386. To sell only to specific persons, Toid : McCuUough's Heirs v. Gilmore, 11 Pa. St. 370 ; 18 Am. Law Reg. 393. Restrictions as to use have also been upheld. CowELL V. Springs Co., Supreme Court of the United States, 1879. 100 U. S. 55. Ms. Justice Field. In May, 1873, the plaintiff in the Court below, the Colorado Springs Company, sold and conveyed to the defendant, Cowell, two parcels of land, situated in the town of Colorado Springs, in the then Territory of Colorado. The deed of conveyance stated that the consideration of its execution was $250, and an agreement between the parties that intoxicating liquors should never be manufactured, sold, or otherwise disposed of as a beverage in any place of public resort on the premises. And it was expressly declared that in case this condition was broken by the grantee, his assigns or legal representatives, the deed should become null and void, and the title to the premises conveyed should revert to the grantor ; and that the grantee in accepting the deed agreed to this condition. The defendant went into possession of the premises under the deed, and soon afterward opened a billiard saloon in a building thereon, which became a place of public resort, where he sold and disposed of intoxicating liquors as a beverage. The grantor thereupon brought the present action of ejectment for the possession of the premises, the title to which, it claimed, had reverted to it upon breach of the condi- tion contained in its deed ; and it recovered judgment. It does not appear that the company had made any previous entry upon the premises or any demand for their possession. The principal questions, therefore, for our determination are -the validity of the condition, and, on its breach, the right of 236 ILLUSTRATIVE CASES the plaintiff to maintain the action without previous entry or demand of possession. The validity of the condition is assailed by the defendant as repugnant to the estate conveyed. His contention is, that as the granting words of the deed purport to transfer the land, and the entire interest of the company therein, he took the property in absolute ownership, with liberty to use it in any lawful manner which he might choose. With such use the condition is inconsistent, and he therefore insists that it is repugnant to the estate granted. But the answer is, that the owner of property has a right to dispose of it with a limited restriction on its use, however much the restriction may affect the value or the nature of the estate. Repugnant conditions are those which tend to the utter subversion of the estate, such as prohibit entirely the alienation or use of the property. Con- ditions which prohibit its alienation to particular persons or for a limited period, or its subjection to particular uses, are not subversive of the estate : they do not destroy or limit its alienable or inheritable character : Sheppard's Touchstone, 129, 131. The reports are full of cases where conditions imposing restrictions upon the uses to which property con- veyed in fee may be subjected have been upheld. In this way slaughter-houses, soap-factories, distilleries, livery stables, tanneries, and machine-shops have, in a multitude of instances, been excluded from particular localities, which, thus freed from unpleasant sights, noxious vapors, or disturbing noises, have become desirable as places for residences of families. To hold that conditions for their exclusion from premises conveyed are inoperative would defeat numerous arrangements in our large cities for the health and comfort of whole neighborhoods. The condition in the deed of the plaintiff against the manu- facture or the sale of intoxicating liquors as a beverage at any place of public resort on the premises was not subversive of the estate conveyed. It left the estate alienable and inheritable, and free to be subjected to other uses. It was not unlawful nor against public policy, but, on the contrary, it was imposed in the interest of public health and morality. IN REALTY. 237 A condition in a deed, not materially different from that under consideration here, was held valid and not repugnant to the grant by the Court of Appeals of New York in Plumb V. Tubbs, 41 N. Y. 442. And a similar condition was held by the Supreme Court of Kansas to be a valid condition subsequent, upon the continued observance of which the estate conveyed depended : 14 Kan. 61. See, also, Doe v. Keeling, 1 Man. & Sel. 95, and Gray v. Blanchard, 8 Pick. (Mass.) 283. We have no doubt that the condition in the deed to the defendant here is valid and not repugnant to the estate con- veyed. It is a condition subsequent, and upon its breach the company had a right to treat the estate as having reverted to it, and bring ejectment for the premises. A previous entry upon the premises, or a demand for their possession, was not necessary. By statute in Colorado it is sufficient for the plaintiff in ejectment to show a right to the possession of the demanded premises at the commencement of the action as heir, devisee, purchaser, or otherwise. The commencement of the action there stands in lieu of entry and demand of pos- session. See, also, Austin ■;;. Cambridgeport Parish, 21 Pick. (Mass.) 216 ; Cornelius v. Ivins, 2 Dutch. (N. J.) 376 ; Ruch v. Rock Island, 97 U. S. 693. The other objections urged to the title of the plaintiff are equally untenable. It seems that its title is derived through mesne conveyances from one Lamborn, to whom, in Septem- ber, 1870, a patent of the United States was issued embracing the demanded premises. This patent adds to Lamborn's name the word " trustee," without mention of any trust upon which he is to hold the property. It is therefore contended that he must be considered as holding it for some undeclared use of the grantor, and that consequently he could not convey it without the consent or direction of the latter, in this case the government. But the answer to this position is given in the patent itself, by the recital that the land was purchased by the patentee of the government, thus negativing the inference that the latter retained any interest in the property or ad- 238 ILLUSTRATIVE CASES vanced the purchase-money. And besides, if any trust was in fact created, it was for the cestui que trust, and no one else, to complain of the action of the patentee and enforce the trust : itdid not prevent the legal title from passing by his convey- ance : Perry, Trusts, § 334. In March, 1872, the patentee conveyed the premises to the National Land Improvement Company of El Paso County, Colorado, a corporation created under the laws of Pennsyl- vania, with power to receive, hold, and grant real and personal property ; explore, locate, and improve lands ; transport emi- grants and merchandise ; construct houses and buildings ; manufacture, trade, and traffic ; colonize, organize, and form settlements ; operate mineral and other lands, and improve and work the same, provided such lands be located in Utah, Arizona, or adjoining States and Territories lying west of the Mississippi ; and to do such acts as should be necessary to pro- mote the success of the corporation and the public good. The defendant contends that this corporation, invested with these extensive powers to settle up the country and advance its own interests and the public welfare, had not the capacity to act in the Territory of Colorado and to hold and convey real property there. By the law of March 2, 1867, then in force, the Legis- latures of the several Territories of the country were prohibited from granting private charters, and were only authorized to create by general law corporations for mining, manufacturing, and other industrial pursuits : 14 Stat. 426. His position is that Congress intended to prevent the creation of corporations like this one of Pennsylvania, as the extensive powers granted to it tended to monopolize landed estates for purposes of specu- lation, and thereby injure the agricultural, mining, and manu- facturing interests of the country ; and if a domestic corporation could not be created with such powers for reason of public policy, a foreign corporation could not for like reasons be per- mitted to exercise them in the Territory. The answer to this position is found in the general comity which, in the absence of positive direction to the contrary, obtains through the States and Territories of the United States, by which corporations IN REALTY. 239 oreated in one State or Territory are permitted to carry on any lawful business in another State and Territory, and to acquire, hold, and transfer property there equally as indi- viduals. If the policy of the State or Territory does not per- mit the business of the foreign corporation in its limits, or allow the corporation to acquire or hold real property, it must be expressed in some affirmative way ; it cannot be inferred from the fact that its Legislature has made no provision for the formation of similar corporations, or allows corporations to be formed only by general law. Telegraph companies did business in several States before their Legislatures had created or authorized the creation of similar corporations ; and numerous corporations existing by special charter in one State are now engaged, without question, in business in States where the creation of corporations by special enactment is forbidden. The National Land and Improvement Company, the day following the receipt of the deed of Lombard, conveyed the premises to the plaintiff, the Colorado Springs Company. This company was incorporated in 1871 for the purpose of aiding, encouraging, and inviting immigration to the Territory, and to purchase, hold, and dispose of lands, town lots, mineral springs, and other property , also to construct and operate ditches, wagon-roads, and railroads, and mills for manufactur- ing lumber, and generally to do all things authorized by the laws of the Territory which might tend to accomplish the pur- poses stated. At that time the Legislature was restricted, as already mentioned, in its power to create by general law corporations. It was not empowered to authorize the forma- tion of companies to aid and encourage immigration, and for that purpose to take, possess, and convey real property in the Territory. Therefore the defendant contends that the com- pany could not acquire a right to the premises in controversy. But the answer to this position is, that, for some of the pur- poses designated in the articles of incorporation, the law in existence authorized the incorporation of companies ; there- fore the incorporation here was not wholly illegal : a corporate '240 ILLUSTRATIVE CASES body competent to exercise some of the powers mentioned was created, and under the statute of the Territory could acquire and hold or convey, by deed or otherwise, any real or personal estate whatever, necessary to enable it to carry on its business. Whether the particular premises in controversy are necessary for that business is not important ; that is a matter between the government of the State, succeeding that of the Territory, and the corporation, and is no concern of the defendant. It would create great inconveniences and embarrassments if, in actions by corporations to recover the possession of their real property, an investigation was permitted into the necessity of such property for the purposes of their incorporation, and the title made to rest upon the proof of that necessitj^ : Natoma Water and Mining Co. v. Clarkin, 14 Cal. 552. But there is another, and general answer to this objection. The defendant, as already stated, went into possession of the premises in controvery under the deed of the plaintiff. He took his title from the company, with a condition that if he manufactured or sold intoxicating liquors, to be used as a beverage, at any place of public resort on the premises, the title should revert to his grantor ; and he is therefore estopped, when sued by the grantor for the premises, upon breach of this condition, from denying the corporate existence of the plaintiff, or the validity of the title conveyed by its deed. Upon obvi- ous principles, he cannot be permitted to retain the property which he received upon condition that it should be restored to his grantor on a certain contingency, by denying, when the contingency has happened, that his grantor ever had any right to it : Gill V. Fauntleroy, 8 B. Mon. (Ky.) 185 ; Miller v. Shackleford, 4 Dana (Ky.), 287, 288 ; Fitch v. Baldwin, 17 Johns. (N. Y.) 161. Judgment affirmed. Plumb V. Tubbs, 41 N. Y. 442 ; O'Brien v. Wetherell, 14 Kan. 616 ; Gray t;. Blanchard, 8 Pick. 284 ; Stines v. Dorman, 25 Ohio St. 580 ; Linzee v. Mixer, 101 Mass. 512 ; Warner v. Bennett, 31 Conn. 468. IN REALTY. 241 The right of descent, of curtesy and of dower, and liability for debts, are likewise inseparable incidents of a fee simple. b Descent, Estate of Donahue, Supreme Court of California, 1868. 36 Cal. 329. Sawyer, C. J. James Donahue died .in Santa Clara County on the 17th of August, 1862, leaving a surviving wife, Mary A. Donahue, and four infant children, Peter Donahue, Mar- garet Donahue, Mary Jane Donahue, and William E. Dona- hue. He left a will, by which, after making sundry bequests, he devised one-third of all the residue of his estate, real and personal, to his said wife, and the remaining two-thirds to his said children. On the 6th of August, 1864, one of said chil- dren, then an infant, William E. Donahue, died in said county, in the sixth year of his age ; and on the 1st of April, 1865, another of said children, Mary Jane Donahue, died in the third year of her age. Letters of administration having been duly issued upon the estate of said infant, William E. Don- ahue, deceased, such proceedings were had that a final decree of distribution of said estate was made, whereby one undivided third part of said estate wa-s distributed to the surviving brother, Peter Donahue, another equal undivided third to the surviving sister, Margaret Donahue, and the remaining third to the heirs- at-law of the deceased sister, Mary Jane Donahue, to the entire exclusion of the said Mary Ann Donahue, mother of the de- ceased, who claimed to be entitled, as one of the heirs-at-law of the said William E. Donahue, deceased, to an equal distribu- tion or share of said estate with the surviving brother and sisters. The said Mary Ann Donahue excepted to the decree, and she now appeals therefrom. The only question is as to whether she is entitled to a share as one of the heirs of the deceased infant son, under our statute of descents and distributions. 16 242 ILLUSTRATIVE CASES Section 1 of said statute, as amended in 1862, provides that, where any person having any estate not otherwise lim- ited by marriage contract, shall die intestate, " it shall descend and be distributed, subject to the payment of his or her debts^ in the following manner : " First — . . . Second — . . . Third — If there be no issue, nor husband, nor wife, nor father, then in equal shares to the brothers and sisters of the intestate, and to the children of any deceased brother or sister, by right of representation ; pro- vided, that, if he or she shall leave a mother, also, she shall take an equal share with the brothers and sisters :" Stats. 1 862, p. 570. In this case, the intestate, William E. Donahue, was an infant under six years of age, and he left surviving no issue, wife, or father ; but he left a brother, two sisters, and a mother. The case, then, is clearly within the category provided for in this subdivision and its proviso, and by its express terms the estate should have been divided in equal shares between the brother, sisters, and mother, unless there is some other provision affect- ing the question. We find no other provision applicable to the facts or in any way affecting the question, unless it be the seventh subdivision of the same section, which reads as fol- lows: " Seventh — If any person shall die leaving several children, or leaving one child and the issue of one or more other chil- dren, and any such surviving child shall die under age, and not having been married, all the estate that caone to the deceased child by inheritance from such deceased parent shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died, b)^ right of representation :" Stats. 1862, p. 570. And this provision does not affect the question, unless " the estate came to the deceased child [in this instance the intestate, William E. Donahue] by inheritance from such de- ceased parent." Did the estate devised by the will of James Donahue, the father of the intestate, come to the latter by " inlieritance," within the meaning of the statute ? We tliink not. We have no doubt that the term " inheritance " is used IN REALTY. 243 in the statute in its ordinary, well-known signification. An estate acquired by inheritance is one that has descended to the heir, and been cast upon him by the single operation of law. " Descent or hereditary succession is the title whereby a man, on the death of his ancestor, acquires his estate by right of representation as his heir-at-law. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor ; and an estate so descending to the heir is in law called the inheritance :" 2 Black. Com. 201, and note 1 ; see, also, 2 Black. Com. 241, 294, 373, 374. The estate, in this instance, was not cast upon the deceased by operation of law, as the representative and heir of his father, but was conferred upon him by devise. The estate was acquired by purchase, in the technical sense of the term, and not by descent. It did not come to him by inheritance, and should not, therefore, have been distributed under the seventh subdivision of section 1, but under the third, which gives the mother an equal share with the brothers and sisters. The decree is reversed, and the cause remanded for further proceedings in accordance with the views expressed in this opinion. c Curtesy. Watson v. Watson, Supreme Court of Errors, Connecticut, 1839. 13 Conn. 83. Waite, J. The object of a disclaimer is to prevent an estate passing from the grantor to the grantee. It is a formal mode of expressing the grantee's dissent to the conveyance before the title has become vested in him. In some cases it may be highly proper, as where a deed is made conveying an estate to one for life, with a remainder to another in fee. Here, in the absence of all evidence to the contrary, the law would presume the assent of the grantee in remainder, upon delivery 244 ILLUSTRATIVE CASES of the deed to the grantee for life, for the benefit of both. But if the remainderman chooses not to take the estate, he may disclaim, and thereby remove all presumption of assent. So, where a deed is executed to several persons, and delivered to one for the benefit of all, if one dissents he may disclaim and furnish evidence that his share still remains in the grantor : Treadwell et al. v. Bulkley et al., 4 Day, 395. But if the grantee once assents, and the title thereby becomes vested in him, he cannot, by any disclaimer, revest the estate in the grantor. For if he could, the disclaimer would have the effect of a deed, which it cannot have ; the object of the latter being to transfer property — of the former to prevent a transfer. But in a case of dissent the heir cannot, by any disclaimer, prevent the estate from passing to him. It vests in him im- mediately upon the death of the ancestor ; and no act of his is required to perfect his title. He cannot, by any act, cause the estate to remain in the ancestor ; for the latter is incapable of holding it after his death. Nor can he, by a disclaimer, trans- fer the estate to any other person as the heir of the ancestor ; for, as has already been observed, the object of a disclaimer is not to convey but to prevent a conveyance. He is, therefore, in the same situation, upon the death of the ancestor, as a pur- chaser who has assented to the conveyance. In both cases a transfer can only be made by some instrument adapted to the conveyance of real estate. A devisee, however, stands in the same situation as a pur- chaser. If he dissents the estate passes to the heir in the same manner as if no will had been made. It is entirely optional with him to take or refuse the estate devised : Townson V. Tickell et al, 3 Barn. & Aid. 31. In the present case the disclaimer was made by one who was entitled to the property as tenant by the curtesy. Is he, in this respect, like a grantee or an heir ? This species of estate has sometimes been classed with those acquired by purchase. But it is rather an estate thrown upon the tenant by operation of law : Co. Litt. 18 b. It partakes more of the character of an estate acquired by descent than by purchase. Immediately IN REALTY. 245 upon the death of the wife the estate vests in him. Like the heir, he cannot, by refusing to take it, cause it to remain in the wife ; nor can he, by a disclaimer, transfer it to others. The estate thus vested in him becomes immediately liable for his debts ; and he cannot, by any refusal to take the property, defeat the claims of his creditors. The disclaimer offered in evidence could have no effect in showing a title in the plaintiffs ; and was properly rejected by the Court. We are, therefore, satisfied that no new trial should be granted. New trial not to be granted. d Dower. Beackett v. Leighton, Supreme Judicial Court of Maine, 1831. 7 Me. 383. Weston, J. If the witness rejected had no interest in the personal estate of the testator, her late husband, she was com- petent to testify. And this depends upon the true construction of the first clause in the will of the deceased, making pro- vision for her. It is in these words, " it is my will that my beloved wife, Teresa Brackett, shall have, hold, and enjoy her full and reasonable dower in all my estate, according to the laws of this State." Dower is a term well known to the law ; and has reference only to real estate. It is also a term of familiar and general use in the community ; and we are not aware that it has any popular acceptation, varying from its technical meaning. Indeed dower in an interest so generally known, and so well understood, that there are probably few persons competent to do business, who would be at any loss as to the construction of the term. And we do not feel at liberty to extend its meaning in the will in question. It is possible the 246 ILLUSTRATIVE CASES testator might have used it in a larger sense ; although Avhether he did so or not is altogether conjectural. He in- tended it is said to be generous to his wife ; but we have no other evidence of his intentions in this respect, than what appears in this clause in his will. He gives her dower in all his estate, but it was to be according to the laws of the State, which allow it only in lands, tenements, or hereditaments. After bequeathing $5 each to the two sons of his former wife, in the third clause of his will, the testator devises and bequeaths all the rest and residue of his estate, real and per- sonal, to his other children. Here the term, personal, is used that his meaning might not be misunderstood, although the word, estate, is a general term, embracing every species of property. Had he used the same terms in the clause provid- ing for his wife, viz., dower in all his real and personal estate, although dower, as applied to the personalty, would have been used in an improper sense, yet it might fairly have been understood to carry a third part of his personal estate. But we find him using it in the third clause, and omitting it in the first. He gives her dower in all his estate, according to the laws of the State. The law gives her dower in all his real estate ; and we find nothing in the will which warrants the construction that he intended to give her anything more. The exceptions are accordingly sustained ; and there must be a new trial at the bar of this Court. e A fee simple is liable for the debts of its OTvner. McCoRMiCK Harvesting Machine Co. v. Gates, Supreme Court of Iowa, 1888. 75 Iowa, 343. Sebvers, C. J. The plaintiff obtained a judgment against the defendant A. C. Gates, and in this action seeks to subject certain real estate, which said Gates has a title to, or interest IN REALTY. 247 in, to the payment of said judgment. Whatever right or in- terest A. 0. Gates may have in the real estate was derived under the will of E. M. Gates, and it is as follows : " I have placed my son Alvin C. Gates on a farm near Colfax, in said county, described as the southwest quarter and the north half of the southeast quarter of section eleven, township seventy-nine, range twenty-one, situated in said Jasper County, State of Iowa, which it is my will that he occupy and enjoy during his nat- ural life, but without the power or ability to convey or incum- ber the same, and that its productions and rents are intended by me to insure a support for himself and his family ; and it is not my will that he have the power to mortgage or incum- ber the rents, profits, or productions of said farm, either above or under ground, or that the same be subject to attachment or levy for the debts of said Alvin. It is my will that he have such an estate as will allow of his farming the same himself or renting to others, or as will allow him to mine the coal that is supposed to be under it, or contract with others to mine it, so that nothing is done which will allow the income from the same to escape from the said Alvin or his said family. And it is my will, that upon the decease of said Alvin, the title to said land descend to Glen Gates, daughter of said Alvin, if she is the only child of his then living, or jointly to said Glen and any other child or children that may be born to said Alvin, to share and share alike ; and it is my will that if no chil- dren of said Alvin are living at the time of his decease, that then and in that case the title in fee simple to vest in my sons, Sumner E. and Lorin A. Gates, and, if they are not living, in their legal representatives." The question to be determined is whether A. C. Gates has such an interest in the land as can be alienated or sold on execution for debts created by him. It is stated in the will that the testator had placed A. C. Gates on the land, and he was to " occupy and enjoy it during his nat- ural life." Conceding that there is no qualifying provision in the will, this is a devise of a life estate : 2 Jarm. Wills (5th Ed.) 404 ; 2 Washb. Real Prop. (3d Ed.) 450 ; Reed v. Reed, 9 Mass. 372 ; Bl^chard v. Brooks, 12 Pick. 63 ; Lewis v. 248 ILLUSTRATIVE CASES Palmer, 46 Conn. 460; Bowman v. Pinkham, 71 Me. 295. But such devise is coupled with conditions ; it being provided that A. C. Gates shall not convey, nor incumber the land or the rents and profits, nor shall the same be subject to attachment or levy for the debts of said A. C. Gates. Counsel for the appellee insist that, as a life estate is vested in A. C. Gates, the provision against the alienation by him or through judicial process is void, because it is inconsistent with the estate vested in him ; that is to say, the argument is, if a person is vested with an estate for life or in fee simple of real estate, he must necessarily be vested with the right to alienate such estate, and that such right cannot be in any respect controlled. If the power to alienate is restricted, the estate ceases to be an abso- lute one, whether it be for life or in fee simple. In this respect there is no difference in the two estates ; both are absolute, or neither exists. The authorities, without serious conflict, ex- cept as hereafter indicated, are in accord upon this subject, and sustain the views above expressed : 2 Jarm. Wills (5th Ed.) 538 ; 1 Perry, Trusts, § 386 ; Blackstone Bank v. Davis, 21 Pick. 42 ; Deering v. Tucker, 55 Me. 284 ; Keyser's Appeal, 67 Pa. St. 236 ; McCleary v. Ellis, 54 Iowa, 311. We have doubts whether any adjudged case can be found which holds otherwise, unless the legal title to the property has been vested in a trustee, for the use, under specified conditions, of the bene- ficiary. Many such cases have been cited by counsel for the appellants, but they are clearly distinguishable, unless it can be said that under the will in question a trust estate was created. But it is too clear for controversj'^, we think, that a life estate was vested in A. C. Gates. He could not hold such estate in trust for himself. The two estates are inconsistent, and cannot exist in the same person at the same time. In fact, the will does not create a trust estate, but vests an estate for life in A. C. Gates. The petition states that an execution was issued on the judgment and returned " No property found." This, being admitted by the demurrer, constitutes a sufficient basis for and warrants this proceeding in equity to determine the nature IN REALTY. 24& and extent of the estate of A. C. Gates in the property in con- troversy. The demurrer was properly overruled, and the judgment of the Court subjecting the life estate to the pay- ment of the judgment must be affirmed. Blackstone Bank v. Davis, 21 Pick. 42. 2 Determinable Fees. '■Determinable Fee" is a generic term, and includes fee-tail, fe» upon condition and fee upon limitation, all of ^7hich are freehold estates of inheritance, subject to termination upon the happening or not happening of some uncertain event. a Fee-Tail. An estate in fee-tail is a freehold estate of inheritance given to a donee and limited either generally or specially to the heirs of bia body. Buxton v. Inhabitants of Uxbridge, Supreme Judicial Court of Massachusetts, 1845. 10 Met. 87. Hubbard, J. The clause in the will of Benjamin Buxton, upon the construction of which the case principally depends, is as follows : "And the other half of my estate, both real and personal, I give and dispose of as followeth, viz. : the one-half of all my lands, except the eight acres given to James, to my son John Buxton and the heirs lawfully begotten of his body, and their heirs and assigns, and all the remainder of my mov- able estate." It is argued that the words " heirs and assigns " must be construed to have some meaning ; and that, by giving .them their appropriate signification, they enlarge the gift to a fee, and consequently the demandant has no estate in the de- manded premises. But we are of opinion that the words do not enlarge the devise. It is a common rule of construction 250 ILLUSTRATIVE CASES that general words are to be limited and restrained by the subject to which they immediately relate, and are not to be construed as conferring a larger or different grant or power than the distinct grant or power created by the specific words. In this case, to give the construction contended for, would be directly to change the nature of the estate specifically created, and to defeat the object of the grant. In cases where a sub- sequent clause is clearly repugnant to preceding clauses, the clause must be rejected as not expressing the intent of the donor or grantor, and as the only legal mode of carrying into effect imperfect instruments. But in the case now before us, we do not think the clause repugnant, nor that the words were intended to enlarge, or that they do enlarge, the estate previously created ; but that the clauses may stand together, and that they intend merely to express the nature of the estate, as one of inheritance beyond the immediate heirs of the first taker, and are but a repetition of the gift. The words " heirs and assigns " are qualified and i;estrained by the words " heirs of the body," which last show clearly the intention of the testator to create an estate tail ; and whether the restraining words succeed or precede the more general words, they op- erate, in either case, to limit the gift or grant, if the intention is clearly expressed by such restraining words ; as in Soulle V. Gerrard, Cro. Eliz. 525, where Richard Baker, being seized of land in fee, and having four sons, devised his land to his son Richard and his heirs forever, and if he should die within the age of twenty-one years, or without issue, then to his three other sons. The devisor died, and Richard, the devisee, had issue, a daughter, and died within age ; and it was adjudged that he took an estate tail, and that the daughter ■was entitled to the estate. So in Clache's Case, Dyer, 330 b, where a grant to A. and her heirs forever was restrained by the subsequent words, " having no issue." See, also, Corbin ■u.Healy, 20 Pick. 514, where one Marcy executed a deed to his daughter Rhoda. The words were, " unto the said Rhoda, and to her heirs born of her body, to be to her and them for- ever ;" and afterward, in the habendum, were the words " to IN REALTY. 251 have and to hold the same to her and her heirs forever." The grantor also covenanted with her, and her heirs as afore- said, that he would " warrant and defend the same to her and her heirs aforesaid." In that case the Court held that the words in the habendum did not enlarge the estate to a fee sim- ple, but that the generality of the word " heirs," in the haben- dum, was limited to those heirs who by law could take that estate, namely, heirs of her body. See, also, Co. Lit. 21 a; Perk., §§ 170, 171 ; Osborne u Shrieve, 3 Mason, 391. This disposes also of the second point raised, to wit, that if there was an estate tail in the first taker, the fee vested in the heirs of Timothy, and that his eldest son did not take the estate as tenant in tail, and so the demandant, though an heir and the eldest son of Timothy, would only be entitled to one- tenth part of the estate. Upon the authorities above cited it is clear that the estate was not enlarged in the heir of the ten- ant in tail, by the subsequent words, and consequently the eldest son of John took an estate tail, and not an estate in fee ; and under him the demandant claims as heir in tail. We are now called upon to consider the construction to be given to the deed of partition between the two brothers, John and James Buxton, made shortly after the death of their father. And the question is, whether the legal effect of this partition was to give John Buxton an estate tail in the whole of the lands set off to him in severalty, and to James Buxton an estate in fee in the portion set off to him ; or, admitting that it would not bind the heir of the tenant in tail, if he chose to avoid it after the death of the tenant in tail, yet if he now comes in and affirms the partition, whether he cannot establish it, and thereby entitle himself to claim the whole of the de- manded premises. This partition was not made under any legal process, but was the mere agreement of the parties ; and it is very clear, we think, that it could not bind nor affect the heir in tail, though it would be binding on the tenant in tail during his life : Co. Lit. 170 a, 173 b; Soule v. Soule, 5 Mass. 64. And although such a division of the estate might be a reasonable 252 ILLUSTRATIVE CASES and fair one, yet the legal power was wanting to carry into effect their intent in its full extent. The deed itself, however, was not a simple partition during the life of the tenant in tail, because James, who was seized in fee of an undivided half of the estate, by force of the partition deed, conveyed, an estate in fee to John and his heirs, in half the premises as- signed and transferred to John in said deed, while he, in re- turn, took an estate for life in half the premises released and conveyed to him by John, who had no right or power to pass a larger estate. We are therefore of opinion that, by the deed of John Buxton to Nicholas Batty, an estate in fee passed ta him in an undivided half of the premises conveyed to him,, and an estate of freehold, during the life of John, in the other undivided half. This deed was made so long ago as January^ 1789, but John Buxton not dying till 1839, the right of the heir in tail has not been affected by the lapse of time, although Batty's estate has passed to other persons, under whom the tenants claim. Whether the heir in tail could have affirmed the partition after the death of the tenant in tail, if he had made no con- veyance during his lifetime, we are not called upon to consider, because, after the transfer to Batty, other persons acquired rights in the lands, which could not be affected by any election of the heir in tail to affirm the partition. With these views, we are of opinion that the demandant has established his title to one-half of the demanded premises ; and his remedy, if he has any, for his further interests in the lands devised in tail, must be pursued against the other owners of the entailed estate. Judgment is to be entered on the verdict for an undivided moiety of the demanded premises. Williams, R. P. 35 ; 4 Kent Comm. 11. A " conditional fee " is the same as a fee-tail : Wight v. Thayer, 1 Gray, 284 ; Steel v. Cook, 1 Met. 281. To create a fee-tail the word " body " or other words of like import was necessary : Baker v. Scott, 62 111. 86. General and special fee-tail : Butler v. Huestis, 68 111. 594. Incidents to fee-tail : Boone, R. P. 31. See further : AUyn v. Mather, 9 Conn. 114 ; Jewell v. Warner, 35 N. H. 176 ; Eedstrake v. Townsend, 39 N. J. L.-379. Abolished in Minnesota : Minn. Gen. Stats. 1878, ch. 45, |? 3, 4. IN REALTY. 253 b Estates upon Condition. An estate upon condition is a freehold estate "which may ba created, enlarged or defeated upon the happening or not happening of some uncertain event." — 2 Washb. R. P. 2. Warner v. Bennett, Supreme Court of Errors, Connecticut, 1863. 31 Conn. 468. Sanford, J. In our opinion the conveyance from Tomlin- son to Bennett and others was of a fee-simple estate upon con- dition expressed in the deed. The instrument is a common deed of bargain and sale to the grantees, their heirs and assigns forever, for certain uses specified in the deed, which contains the following clause : " The conditions of the within deed are such that whenever the within-named premises shall be converted to any other use than those named within, and the within grantees shall knowingly persist in the use thereof for any purpose whatever except such as are described in said within deed, the said grantees forfeit the right herein con- veyed to the within-described premises, upon the grantor paying to the said Hatch and Bennett and other stockholders the appraised value of such buildings as may be thereon standing." Blackstone says, estates upon condition "are such whose existence depend upon the happening or not happening of some uncertain event whereby the estate may be originally created or enlarged, or finally defeated :" 2 Bla. Com. 151. Littleton says, " it is called an estate upon condition because that the estate of the feofee is defeasible if the condition be not performed:" § 325. "A condition is created by inserting the very word ' condition ' or ' on condition ' in the agreement :" 1 Bouvier's Inst. 285. Conditions are precedent or subsequent. "Precedent are such as must happen or be performed before the estate can vest or be enlarged. Subsequent are such by the failure or non-performance of which an estate already 254 ILLUSTRATIVE CASES vested may he defeated :" 2 Bla. Com. 154. In the case of a condition "the estate or thing is given absolutely without limitation, but the title is subject to be divested by the happening or not happening of an uncertain event. Where on the con- trary the thing or estate is granted or given until an event shall have arrived, and not generally with a liability to be de- feated by the happening of the event, the estate is said to be given or granted subject to a limitation :" 2 Bouvier's Inst. 275 ; 2 Bla. Com. 155. In the case before us the estate vested in the grantees upon the delivery of the deed, to have and to hold to them, their heirs and assigns, not until they should convert the property to other uses than those specified in the deed, nor so long as they should continue to use it for the purposes specified, but forever; with a proviso or condition expressed in the deed, that if they should convert the property to other uses they should forfeit their estate. The words employed are most appropriate and apt to make an express condition in deed. They are " the conditions of the within deed are such," etc. And in Mary Portington's Case, 10 Coke, 41 a, it is said that " express words of condition shall not be taken for a limitation." It has indeed been held that they may be so taken where the estate is limited over to a third person upon the breach or non-per- formance of the condition (Lady Anne Fry's Case, 1 Inst. 202), but there is no such limitation over in the case before us. So when it is said that " whenever the within-named premises shall be converted to any other use," etc., "the grantees /or/ei< the right herein conveyed," it is clearly indicated that the estate thus forfeited by the misappropriation is to be cut off before the time originally contemplated for its termination by the parties. But it is said that by the terms of the instrument the for- feiture depends not merely upon the misappropriation of the property by the grantees, but also upon the grantor's payment of the appraised value of the building. Suppose it is so, how can that affect the question whether this is a condition in deed or a limitation ? No matter how many events the forfeiture IN REALTY. 255 depends upon, nor how many individuals must act in produc- ing them, when all those events concur and co-exist the for- feiture is effected as completely as if it depended upon the occurrence of a single event, and the action or omission of a single individual. But the payment for the building was not an event upon which the forfeiture depended. It was merely a duty imposed upon the grantor by the contract in addition to that which the law imposed, to enable him to take advan- tage of the breach of condition and enforce the forfeiture. His legal obligation to enter for breach of thp condition was in no wise a^ected by it. The estate conveyed by the deed was not an easement, or any other right or interest in the property less than a fee simple. The fact that the instrument was signed by both of the parties to it is of no importance. They were neither more nor less bound by the stipulations and conditions contained therein by reason of such signature. The instrument contains no contract on the part of the grantor to pay for the building. The provision upon that subject operates as a qualification of the grantor's right to enfore the forfeiture and regain his property, but operates in no other way. But for that provision the estate granted could have been put an end to, and revested in the grantor, by an entry only ; under that provision an entry could be made available only by payment for the building also. We think it clear that the estate of the grantees was an estate on condition in deed, and that it was an estate upon, condition subsequent ; and hence, notwithstanding a breach of the condition by reason of which the estate might have been defeated, it must continue to exist in the grantees, with all its original qualities and incidents, until the grantor or his heirs by an entry (or its equivalent, a continual claim) have mani- fested in the way required by law, their determination to take advantage of the breach of condition, to avail themselves of their legal rights, and to reclaim the estate thus forfeited. The law upon this point is thus laid down by Professor Washburn, in the first volume of his treatise on real property, page 450, with accuracy and precision : " A condition, how- 256 ILLUSTRATIVE CASES ever, defeats the estate to which it is annexed only at the elec- tion of him who has a right to enforce it. Notwithstanding its breach, the estate, if a freehold, can only be defeated by an entry made, and until that is done it loses none of its original <3[ualities or incidents." See also lb. 452 ; 2 Bla. Com. 155 ; 2 Cruise Dig. 42. But there is in this bill no allegation that an entry for con- dition broken was ever made. No right to maintain this suit is disclosed, no title to the property is set up, nothing is <;laimed but a right of entry for condition broken. And for this reason, if for no other, the bill is insufficient, and the decree must be pronounced erroneous. The allegation in relation to an abandonment of the prop- erty is immaterial. It is hot averred that the grantees had abandoned the propertj', but only that they had abandoned it " so far as the uses named in said deed are concerned ;" that is, that they had ceased to use the property for the purposes for which the grant was made, not that they had ceased to use it altogether. What effect an absolute and entire abandon- ment of the property by the grantees would have had upon the legal or equitable rights of this petitioner, we are not now ■called upon to decide. Secondly. A right of entry for condition broken is not as- signable at common law, and we have no statute which makes it so : 2 Cruise Dig. 4 ; 4 lb. 113 ; 1 Spence Eq. 153 ; 1 Swift Dig. 93. The grantor or his heirs only can enter for breach of such condition : 1 Washb. on Real Prop. 451 ; 2 Cruise Dig. 44. The petitioner therefore could have obtained no right or title to make an entry for breach of the condition, and without «uch entry the estate of the grantees could not be terminated, and no suit at law or in equity could be maintained against the occupant of the property. Thirdly. If there was a breach of the condition and a for- feiture of the grantees' estate in consequence, and if a right of entry could be and was in fact assigned to the petitioner, still the petitioner could not obtain the relief for which he seeks in a Court of Equity, because that Court never lends its aid to IN REALTY. 257 enforce a forfeiture : 4 Kent Com. 130 ; 2 Story Eq. Jur., § 1319 ; Livingston v. Tompkins, 4 Johns. Ch. 415. Lastly. If the right, title, or interest, whatever it was, of the grantor or his heirs was assignable, and was assigned to and vested in the petitioner, as he claims, he had no occasion to come into a Court of Equity for relief. We do not see why he might not have entered for breach of the conditions, requested the respondent to unite with him in procuring an appraisal of the building, if he refused procured such appraisal without the respondent's co-operation, tendered the amount of the ap- praisal, and brought his action of ejectment. The petitioner's legal right, if he had it, to put an end to the grantee's estate and obtain possession of the property, we think could not have been defeated by the respondent's refusal to co-operate in the appraisal or accept the tender. See 1 Swift Dig. 295 ; Powell on Cont. 417 ; Whitney v. Brooklyn, 2 Conu. 406. We know of no power in a Court of Equity to compel the respondent to join the petitioner in procuring an appraisal, nor to make one, in such a case as this ; and we see no occasion for the exercise of such a power if it exists. We think the petitioner has an adequate remedy for the enforcement and protection of all his rights at law. There is manifest error in this record. 4 Kent Comm. 9 ; 2 Devlin on Deeds, 974 ; Osgood v. Abbott, 58 Maine, 73 ; Southard v. Central Ey. Co., 26 N. J. L. 1 ; Bowen v. Bowen, 18 Conn. 535 ; Hooper v. Cummings, 45 Maine, 859 ; Delhi School District v. Everett, 52 Mich. 314; State v. Brown, 27 N. J. L. 13, 20; Cook v. Bisbee, 18 Pick. 527; Arms V. Burt, 1 Vt. 303 ; McKelway v. Seymour, 29 N. J. L. 321, 329. Only the grantor or his heirs can take advantage of the condition broken: Southard v. Central Ey. Co., 26 N. J. L. 1. 17 258 ILLUSTRATIVE CASES c Estates upon Limitation. An estate upon limitation is a freehold estate of inheritance "liable to be terminated Ipso facto by the happening of the event by which the limitation is measured." — 1 Washb. R. F. 94. Henderson v. Hunter, Supreme Court of Pennsylvania, 1868. 59 Pa. St. 335. Where land is conveyed to the grantees for church purposes, " so long as they use it for that purpose and no longer, and then to revert to the original owner," an estate upon limitation is created in the grantees with a con- ditional limitation in the grantor. Agnew, J. This was an action of trespass by church trustees under a deed of trust made by Thomas Pillow in 1836, for taking down and removing the materials of a church building in 1867. The case turns on the limitation in the deed. The legal estate of the trustees clearly has no duration beyond the use it was intended to protect. The word " successors " is used to perpetuate the estate, but as the trustees are an unincor- porated body having no legal succession, there is nothing in the terms of the grant to carry the trust beyond its appropriate use. This brings us to the limitations of the use itself. It is for the erection of " a house or place of worship for the use of the members of the Methodist Episcopal Church of the United States of America (so long as they use it for that pur- pose, and no longer, and then to return buck to the original owner), according to the rules and discipline which, from time to time, may be agreed upon and adopted by the ministers and preachers of the said church at their General Conference in the United States of America." This is the main purpose of the trust, the other portions of the deed relating to the use being ancillary only to this principal object. The interjected words, " so long as they use it for that purpose and no longer, and then to return back to the original owner," are terms of undoubted limitation, and not of condition. Thej' accompany IN REALTY. 259 the creation of the estate, qualify it, and prescribe the bounds beyond which it shall not endure. The equitable estate is in the members of the church so long as they use the house as a place of worship in the man- ner prescribed, and no longer. This is the boundary set to their interest, and when this limit is transcended the estate expires by its own limitation, and returns to its author. The words thus used has^e not the slightest cast of a mere condition. No estate for any fixed or determinate period had been granted before these expressions were reached, and they were followed by no proviso or other indication of a condition to be annexed. " A special limitation," says Mr. Smith, in his work on Executory Interests, p. 12, " is a qualification serving to mark out the bounds of an estate, so as to determine it ipso facto in a given event without action, entry, or claim, before it would, or might, otherwise expire by force of, or according to, the general limitation." A special limitation may be created by the words " until," " so long," " if," " whilst " and " during," as when land is granted to one so long as he is parson of Dale, or while he continues unmarried, or until out of the rents he shall have made £500 : 2 Black. Com. 155 ; Smith on Exec. Int. 12 ; Thomas Coke, 2 vol., 120-21 ; Fearne on Rem. 12, 13 and note p. 10. " In such case," says Blackstone, " the estate determines as soon as the contingency happens (when he ceases to be parson, marries a wife, or has received the £500), and the subsequent estate which depends on such determina- tion becomes immediately vested, without any act to be done by him who is next in expectancy." The effect of the limitation in this case was that the estate of the trustees terminated the moment the house ceased to be used as a place of worship according to the rules and disci- pline of the church, by the members to whose use in that manner it had been granted ; and the reversion ipso facto re- turned to Thomas Pillow, the grantor. The abandonment of the house as a place of worship, therefore, became a chief question in the cause, because the title of the trustees to the property, and consequently their right to maintain this action, 260 ILLUSTRATIVE CASES hinged upon this event. Then, as the use of the members of this church was to be according to the rules and discipline from time to time adopted by the General Conference, it be- came a question whether the alleged abandonment of the house as a place of worship was by church authority, and according to the rules and discipline then existing ; for a mere temporary suspension of services there, or a discontinuance of the use without authority, would not, ipso facto, determine the use. Hence an inquiry both into the fact of abandonment and the authority of the church became essential. According to the constitution and discipline of the Metho- dist Episcopal Church of the United States, its preachers, de- nominated deacons and elders, are not called by the societies to which they preach, but are appointed to stations, and to travel in circuits, by the presiding bishop of the annual con- ference. The power is lodged in him, but from a practical necessity he acts with the advice of his council of presiding elders assembled at the annual conference. The government of the church is clerical and not lay. It has no admixture of the laity, excepting in the quarterly conference of the circuit or station, in which certain lay official members are admitted to seats ex necessitate rei. The annual conferences are composed of the deacons and elders in the traveling ministry within the respective conferences, presided over by a bishop or superin- tendent, as originally termed, assigned to hold the conference by the board of bishops. The general conference consists of delegates, elected by all the annual conferences from among the traveling preachers, presided over by the bishops in turn, and holding its sessions quadriennially. The annual conferences are divided into districts, composed of the circuits and stations within their respective boundaries. Over each district the bishop, at the annual conference, appoints an elder to preside, who travels his district four times a year, and presides at the quarterly conferences in each cir- cuit or station, composed of the traveling and local preachers, exhorters, stewards, class leaders, trustees, and first male super- intendent of Sunday-schools. A station has a single place of IN REALTY. 261 stated public service, while a circuit has several. It is to these circuits and stations the traveling preachers are assigned at every annual conference. In his circuit or station the preacher in charge arranges or " plans " the appointments of service' during the term of his own appointment. In planning the circuit he may take the advice of the stewards, if he choose to ask it ; and in arranging the appointments for service it is his duty to give the local preachers within his charge regular and systematic employment on the Sabbath. No specific directions are found in the discipline as to the arrangement of the appointments, and the whole subject seems in a great measure committed to the sound discretion of the traveling preacher in charge, subject only to the discipline duty of preaching where there is the greatest number of quiet, willing hearers, the most fruit, and where the Spirit most abounds; and subject to the superintending control of the pre- siding elder, whose duty it is to oversee the spiritual and tem- poral business of the church ; to take charge of all elders and deacons in his district, and to take care that the discipline shall be enforced in his district. As to the particular building or house in which services shall be statedly held, there is nothing definite in the disci- pline, and the authority over it seems to be only inferential, arising out of the power of the preacher in charge to arrange the appointments of service, which must include places as well as times of appointment. This vagueness probably flows from the fact that at just this point the boundary of church polity interlocks with the lines of popular support, for money and members must come from the laity. Still church polity re- serves a large share of control over church property, as will be seen in the chapter on this subject ; with a sorrowful recogni- tion, however, of its dependence, for plainness and economy in the building of churches is enjoined, lest the necessity of raising money make rich men necessary to the church, and if so (says the discipline), " we must be dependent on them, yea, governed by them, and then farewell to Methodist discipline, if not doctrine, too." 262 ILLUSTRATIVE CASES In order to preserve control, however, it is made the duty of the quarterly conferences to secure the ground on which churches are to be built according to the deed of settlement, and to admit no charter or deed that does not secure the rights of the preachers of the church in the ministration of its services according to the true meaning of the deed of settle- ment, the form of which is prescribed. Thus the effect of this active control of the clerical author- ities of the church over preachers, preaching, and church property, is to take from the society at large, or laity, the power of continuing any building as a place of worship accord- ing to the rules and discipline of this church, after the eccle- siastical authority has resolved to discontinue the services of its preachers there. The societj' might choose to worship there of their own head, and call a preacher of their choice who was willing to come without the authority of his church, but in doing so they would cut them thepaselves off from their church con- nection, and would be worshiping there no longer as members of this church under its rules and discipline ; for to worship as members and under the discipline they must accept the traveling preacher sent to them by the bishop. Consequently, the trust in this case ceased when the proper church authorities, acting under and according to the rules and discipline, totally abandoned the building as a place of worship for the members of this church. The fact of such an abandonment was submitted by the Judge and found by the jury. In his charge the learned Judge submitted the question on the testimony of the presid- ing elder and the book of discipline as to the authority for so doing ; and on his testimony and that of others as to the actual discontinuance of services there, and the causes there- of This was all he could do, as the question of fact belonged to the jury. The reverend gentleman had testified that the church had been abandoned by the conference in March, 1867, and that this action having been taken by the bishop and his council of presiding elders, and the preaching removed to the school- IN REALTY. 263 house in the village, any preaching in this building after the conference, was without the sanction or authority of the church. I must say I have not discovered in the discipline the pre- cise ground of the bishop's authority to do this ; yet it may be a proper understanding of his authority as gathered from the entire body of church law, and the rule in the civil Court is that the churches are left to speak for themselves in matters of discipline and doctrine : German Reformed Church v. Com- monwealth, 3 Barr, 282. But however the fact may be, where the precise power is lodged, certain it is in this case tbis proof was made, and with it the fact that the abandonment of the building had also the express sanction of the presiding elder, and inferentially the sanction of the preacher in charge. We cannot say, therefore, tbat the fact of abandonment was submitted without sufficient evidence. The fact being found by the jury, these plaintiffs — at the time of the removal of the building — were no longer trustees of the property by the very terms of the limitation in the deed, and had no ownership or estate to enable them to maintain this action. This is sufficient for the purposes of this case. But it is also insisted that these trustees were superseded by the election of new trustees by the quarterly conference under a new rule adopted by the General Conference of 1864. We shall express no opinion on this point, the interest depending on the form of the deeds made previous to 1864, being too important to be determined upon a meagre presentartion of the case to us. It is proper, however, to suggest to the church authorities that this is perhaps perilous ground to stand upon. The church may provide a new mode for the election of trustees, and make their deeds hereafter conform to this mode. But when it comes to the right to supplant trustees established by con- tract, or to fill vacancies in a mode differing from the terms of the contract, which are the laws of the trust, a new question arises. A deed is a contract inter partes, the grantor on one side and 264 ILLUSTRATIVE CASES the trustees on the other, and even the Legislature cannot im- pair the contract. If conflicts should arise between the trustees nominated or provided for in the deed and those appointed by the quarterly conferences, it may be found difficult to over- throw the will of the grantor or first party in the deed ex- pressed in this contract form. Judgment affirmed. When a condition subsequent is followed by a limitation over in case of a breach of the condition, it becomes a conditional limitation, Stearns v. Godfrey, Supreme Judicial Court of Maine, 1839. 16 Me. 158. Weston, C. J. Until March 25, 1786, the title to the land in controversy was in the Commonwealth of Massachusetts. On that day, it was included in a large tract granted and conveyed, by a committee in behalf of the Commonwealth, to John Brewer and Simeon Fowler, and certain settlers on the tract, mentioned by name as grantees in the deed, among whom are Hannah Ary, widow, and Solomon Sweat. The deed contained the fol- lowing clause in respect to these settlers, " on condition that each of the grantees aforesaid pay to John Brewer and Simeon Powler, five pounds in lawful money, within one year from this time, with interest till paid." Taking the deed together, we must regard it as conveying to each of the settlers named, one hundred acres of the land, subject to be defeated upon the non- performance of the foregoing condition, within the year. Gen- erally an entry of the grantor or his heirs is necessary to de- feat an estate thus granted, upon condition subsequent ; and the estate could not be divested by the entry of a stranger. But the deed contained a further clause, which is in these words, " provided nevertheless, if any settler, or other grantee aforesaid, shall neglect to pay his proportion of the sum or sums aforesaid, to be by him paid, in order to entitle him to IN REALTY. 265 one hundred acres as aforesaid, in that case the said John Brewer and Simeon Fowler shall be entitled to hold the same in fee, which such negligent person might have held, by com- plying with the condition aforesaid on his part." It is a rule of law, that if a condition subsequent is followed by a limitation over, in case the condition is not fulfilled, or there is a breach of it, that is termed a conditional limitation : 2 Black. 155 ; 4 Kent, 121 ; Pells v. Brown, Croke James, 590. This limitation takes effect without entrj^ or claim, and no act is necessarj'- to vest the estate in the party to whom it is lim- ited. The land then was conveyed to the settlers named, with a conditional limitation over to Brewer and Fowler, if they or either of them, failed to fulfill the condition, within the time appointed. There was a failure on the part of the settlers ;, whereupon at the end of the year, in March, 1787, the fee of the land in question vested in Brewer and Fowler. The set- tlers having petitioned the Legislature to interfere in their be- half, a resolve was passed on the 24th of February, 1791, proposing, that if Brewer and Fowler would quiet the settlers for a less sum than they were originally to receive, the differ- ence should be made up by the Commonwealth. The rights of Brewer and Fowler were recognized in that resolve which, having become vested, were out of the reach of legislative con- trol. The settlers were treated with indulgence, both by tht* Commonwealth and by .Brewer and Fowler, who discovered no unwillingness to accede to the proposition made to them. On the 20th of December, 1794, one Ames and his wife, the same who had been the widow Ary, conveyed their title to the Ary lot to Nathaniel Gould, the elder. Although the legal title to the land was in Brewer and Fowler ; yet as they were willing to release their right to the settlers, upon the payment of a small sum, the beneficial interest was regarded as in the latter. It does not appear that Gould resisted or denied the title of Brewer and Fowler, while it remained in them, and the jury have found, that they were not disseised by Gould. In consequence of the mistake of Nathaniel Dummer, who acted under the resolve of March 1, 1799, Gould's lot was as- 266 ILLUSTRATIVE CASES signed to Solomon Sweat, and Sweat's lot to Gould. In Feb- ruary, 1804, .they both accepted from Brewer and Fowler deeds of each other's lots, having paid to them the sums stipulated. Whether Dummer had authority thus to locate to each his lot, or whether what he did was binding upon them, if they had refused to acquiesce, it is not necessary to decide, as the parties concerned were satisfied to abide by the arrangement. Up to this period there is nothing in the case, except per- haps the mortgage to Neal, tending to show that Gould claimed adversely to Brewer and Fowler, but that he held in subordi- nation to their title. He witnessed the deed of his lot to Sweat, of the contents of which he could not be supposed to be ig- norant, as he himself received a deed of Sweat's lot. They must have been given at their instance, and upon payment of money. Gould set up no adverse seisin, and interposed no ob- jection, so that as far as he was concerned, there was nothing to prevent the operation of the deed to Sweat. As he still oc- cupied the land, he must be considered as holding as Sweat's tenant at will, and subject to the duties of that relation. It is true he violated those duties, by a conveyance of the land in fee to Neal, in July, 1806. This, at the election of Sweat, might have been treated as a disseisin. But Gould remained in as before, recognizing Sweat's title ; for in 1810, he requested him to convey to John Wilkins, he himself conveying the land, of which he had taken a deed to Sweat. From July, 1806, Gould, the elder, may have professed to Neal and his agent, that he held under him ; and as between them, Gould was Neal's tenant at will ; but he previously stood in the same re- lation to Sweat, who had prior claims to his fidelity as tenant. Unless Sweat elected to consider himself disseised, for the sake of his remedy, he had a right still to treat Gould as his tenant. In the conflict of duties, which Gould assumed, he was doubt- less playing a double gai&e for his own purposes ; and there is much reason to believe that his object was to defraud Neal. But there is no evidence that the tenant had any notice of it, or that it is in any degree imputable to him. He is entitled to'stand upon his rights ; and if by the rules of law, the title IN REALTY. 267 is in him, it must be so adjudged. If the title of Neal is not to be traced back to a period anterior to July, 1806, the seisin and th'e fee were then in Sweat. He could not be disseised by his own tenant, Gould, except at his election: Blunden v. Bangle, Cro. Charles, 302. If there was no disseisin, the ten- ant has connected himself with Sweat's title, and must prevail. It may be insisted, that Neal's title commenced when the mortgage deed was executed to him by Gould, in 1797, and that he then succeeded to Gould's seisin. If so, Gould could do nothing in 1804 or subsequently to impair Neal's right. It is not improbable, that the justice of the case, in some of its as- pects, might be best promoted by sustaining these positions, if they were in accordance with the facts. The fraudulent prac- tices of the elder Gould ■v^ould thereby be defeated, and the heirs and assigns of Neal would enjoy the fruits of his pur- chase. But the rights of other persons, not conusant of the fraud, if any existed, have intervened ; and if it has appeared that Neal has waived an advantage he might have retained, his heirs and assigns must abide the consequences. In July, 1806, he cancelled his mortgage, and took a new conveyance from Gould. The mortgage having been discharged, no rights can be predicated upon it, or deduced from it. Intervening incumbrances or attachments, if any had existed, would thereby have been let in. Neal could not have set up prior rights, arising from the cancelled mortgage. We cannot regard it as having any more effect upon the cause than if it had never existed. If Neal would have preserved his title under the mortgage, he should have refused to discharge it without pay- ment, and declined the arrangement proposed by Gould. As the lot in question vested in Brewer and Fowler, in March, 1787, the instruction first requested was properly withheld, as were also the second and third, the jury having negatived the facts upon which they were based. The jury were instructed that the title did not pass to the widow Ary by the deed to Brewer, Fowler, and others, but as it passed to Brewer and Fowler, at the end of a year, viz., in March, 1787, by a con- ditional limitation, the legal effect was the same as if it had 268 ILLUSTRATIVE CASES never vested in the widow Ary, so that the tenants were not unfavorably affected by this instruction. The other instruc- tions given to the jury were substantially correct. Judgment on the verdict. 4 Kent Comm. 9 ; Tiedeman, R. P. 281 ; Boone, E. P. 214 ; 2 Devlin on Deeds, 974 ; Fifty Associates v. Rowland, 11 Met. 99 ; Owen v. Field, 102 Mass. 90 ; Proprietors v. Grant, 3 Gray, 142 ; Miller v. Levi, 44 N. Y. 489. A stranger may take advantage of a limitation : Owen ». Field, supra. e Created by 'Will. Estates upon condition and limitation may be created by vriU. Wheeler v. Walker, Supreme Court of Errors, Connecticut, 1817. 2 Conn. 196. Hosmer, J. It is difficult to conceive a case more free from controversy than this, whether we regard the manifest inten- tion of the testator, or the uniformity of precedent. The devisor, after having made certain devises, gives to his sons, David and Nathan, " all the rest and residue of his estate, real and personal, they paying to his two daughters, Patience Wheeler and Ann Wheeler, each $300, within one year after his decease." The money was not paid. The plaintiffs enter for non-payment ; and bring ejectment to recover the possession. It was argued for the defendant that the sum bequeathed was a mere legacy, or trust, to be enforced in chancery only. To this the reply made is conclusive, that it is more than a legacy or trust ; it is a devise on condition, by the non-per- formance of which, the plaintiff Ann, one of the heirs of the devisor, has right of entry on the land devised. An estate on condition expressed in the grant or devise itself, is, where the estate granted has a qualification annexed, whereby the estate shall commence, be enlarged, or defeated, upon performance or breach of such qualification or condition ; 2 Black. Comm. 154 ; Co. Litt. 201. Estates on condition sub- IN REALTY. 269 sequent are defeasible, if the condition be not strictly performed : 2 Black. Comm. 154. The words which constitute a condition may be various. " In particular words there is no magic ;" their operation de- pends on the sense which they carry : 1 Ves. 147. What, in this case, was the intention of the devisor is the decisive question. Was it his purpose to invest his sons with an estate defeasible on a condition which would effectually coerce the pay- ment of the money bequeathed to his daughters ; or did he in- tend to leave them destitute of legal remedy to vindicate their un- doubted rights ? A construction of the devise, according to the usual signification of language, and duly regarding the subject- matter and the consequences will leave no doubt on the mind. Land granted to a person on condition, or provided always, or if it shall so happen, or so that he pay to another a specific sum, within a specified time, vests in him a conditional estate ; and if he does not punctually make payment of the money, his estate has become voidable by entry : Co. Litt. 203 a. From the case of Crickmere v. Paterson, adjudged in the 30th* of Elizabeth, Co. Litt. 236, b., Cro. Eliz. 146, it appears, that the words to pay, in a will have been considered as constituting a condition. That case was this : A man seised of certain lands, holden in socage, had issue two daughters A. and B., and de- vised all his lands to A. and her heirs, to pay unto B. a certain sum of money at a certain day and place. The money was not paid ; and it was adjudged that these words, " to pay," etc., did amount in a will to a condition ; and the reason was, for that the land was devised to A. for that purpose ; otherwise B., to whom the money was appointed to be pa,id' would be remediless ; and the lessee of B., upon an actual ejectment, recovered the moiety of the land against A. The words, to pay, in the preceding case, are precisely equivalent to the word paying in the one before the Court. In Boraston's Case, 3 Co. 21 ; Mary Portington's Case, 10 Co. 41 ; Wellock v. Hammond, Cro. Eliz. 204, and Fox v. Carlyne, Cro. Eliz. 454, the word paying, in a will, was con- sidered as creating a condition, or limitation, as should best effectuate the intent of the testator. In the case of Crickmere 270 ILLUSTRATIVE CASES V. Paterson, the words " to pay," etc., were decided to import a condition, and this construction gave a sufficient remedy. But, in Wellock v. Hammond, the expression, " pacing forty shiUings to each of his brothers and sisters " was adjudged a hmitation ; for if it were considered a condition, there was, in that case, no remedy for the money. And in Mary Porting- ton's Case, it is said, " this word paying, shall amount to a limi- tation in a will by construction, because in law it is not any word, either of condition, or limitation ; and, therefore, in a will, it shall serve, as well for the one, as for the other, to supply the intent of the devisor." The meaning of the expression, in Crickmere's Case, " other- wise B., to whom the money was appointed to be paid, would be remediless," has been quite misconceived. The idea com- municated, undoubtedly, is this, that under the devise there was no other leyal remedy. It is of no avail in this construction of the devise that chancery may give redress, or that the devisee has engaged to make payment. The Court neither refer to the remedy which a Court of Equity may impart, nor to any future possibilities: for the exposition given is a suflScient reason that the law gave no other redress by virtue of the de- vise, for the coercion of payment, than by construing the words to import a condition. This effectuated the intent of the tes- tator. The same observations are equally applicable to the case before the Court. To expound the devise, as bequeathing a legacy, or subjecting the devisees to a trust, deprives the daughters of all redress at law ; and this is a decisive reason for considering the words as importing a condition. To enter at greater length into a consideration of the ques- tion, whether the devise creates a condition or limitation can be of no importance. On either exposition, the remedy of the plaintiffs is the same. It is, however, very apparent that to consider the words as importing a condition is all that is re- quisite to secure the rights of the plaintiffs under the devise ; and this, decisively, settles the construction. Judgment to be given for the plaintiffs. 2 Devlin on Deeds, 974. IN REALTY. 271 B FREEHOLD ESTATES NOT OF INHERITANCE. A life estate is a freehold estate, not of inheritance, which is to continue for the life or lives of some particular person or persons, or until the happening or not happening of some uncertain event. 1 Conventional Life Estates. a Created by Deed. A life estate may be created by the express -words of the parties. Richardson v. York, Supreme Judicial Court of Maine, 1837. 14 Me. 216. Isaac York conveyed lands to his son Joseph with the following reserva- tion in the deed : " Reserving to myself the use and lK)ntlol of the above- described lands during my natural life." Joseph YorHBBkmjJ^ftrd sold the lands to the plaintiff, and Isaac York remaining in pJ^^Ron cut a large quantity of timber and was taking it to the banks of the,j|rco River, intend- ing to appropriate the proceeds to his own support, when the plaintiff replevied the timber on the ground that the life-tenant had no interest or title to the timber. Emery, J. The great question in this case is whether the logs replevied are the property of the plaintiff, so as to draw- to him the right of maintaining the action. For it is certain, he could not rightfully have entered to cut them himself with- out the assent of Isaac York, one of the defendants. In the language of Heath, J., in AttersoU v. Stevens, 1 Taunt. 183, at p. 198, it is stated, as common learning, that every lessee of land, whether for life or years, is liable in an action of waste to his lessor, for all waste done on the land in lease, by whomsoever it may be committed. If a general or a partial permission be given to the lessee in the instrument creating the estate, to commit waste, he is so far a tenant with- ■272 ILLUSTRATIVE CASES out impeachment of waste. Such a permission vests the prop- erty of what is the subject of waste, in the lessee, so that he avails himself of it during the continuance of his interest. It is so with respect to trees and minerals. From the statement of facts we learn that the land con- veyed by Isaac York to Joseph York, on which the trees were cut, consisted of about thirty-five acres, from fifteen to twenty acres of which is partially wooded, the residue consists of mowing and pasture, about five acres of that mowing is in- terval, and of a goo.d quality ; and the income of the land is insufficient for the support of said Isaac ; and that said Isaac has not sufficient income from every source for his comfortable support ; that he intended to apply the proceeds of the sale of the logs to his own support, and that if so applied, it would not have been more than a comfortable provision thereunto ; that the house occupied by said Isaac was, and is, greatly out of repair, as well as the fences ; that the said Isaac is very poor, nearly eighty years of age, and very decrepit. In no part of the statement of facts, or in the deeds, is it made known whether this was an arrangement made by father and son for the support and maintenance of the father, though it is strongly to be suspected. The deed of Isaac York, dated the 14th October, 1831, con- veys to Joseph York " the northwest half of the homestead farm, whereon I now live, reserving to myself the use and ■control of the above-described lands, during my natural life." The deed of Joseph York to the plaintiff", dated 24th Novem- ber, 1834, for $175, sells and conveys to him all the pine trees and hemlock trees standing, growing, and being on the north- west half of the homestead farm on which Isaac York, now of Standish, in the county of Cumberland, lives, with license to go on and cut and carry away the same ; the said northwest half, being the same land described in a deed of Isaac York to Joseph York, dated October 14, 1831, reserving so much of said trees and timber for the benefit of Isaac York, who has a life estate in the premises, as shall be necessary, convenient, and indispensable to the enjoyment of the premises aforesaid IN REALTY. 273 during his lifetime, the quantity reserved and to be left as aforesaid, to be ascertained and designated by Isaac Spring. In Paget's Case, 5 Coke's Kep. 77, it was resolved that when trees are cut down by tenant for life, the property thereof be- longeth to him in remainder in fee. Afterward, and contrary to the adjudication in Herlaken- den's Case, 4 Coke's Rep. 62, it was adjudged by all the Judges in the King's Bench, 11 Coke's Rep. 79, in Lewis Bowles' Case, which was trover and conversion, that the lessee without im- peachment of waste shall have trees which he cuts, for without impeachment of waste, is as much as without demand for waste done ; otherwise, it is, if it be without impeachment, etc., by writ of waste. It was also resolved, that if trees are blown down with the wind, the lessee, without impeachment of waste, shall have them. After this determination, it was a necessary consequence, that in general, unless on particular circumstances, the lessee for life, without impeachment of waste, was not to be restrained in equity. But it is said that the clause was never extended to allow the destruction of the estate itself, and would not give leave to fell or cut down trees ornamental or sheltering of a house, much less to destroy or demolish a house : Packington v. Pack- , ington, 3 Atk. 215. In that case the Lord Chancellor declared that the Courts of Equity had in this respect established rules much more restrictive than those of the common law, which gave tenant for life without impeachment of waste, as large a power over the timber, as tenant in fee simple, that timber might be had for public use : 7 Bac. Abr. "Waste, 289. It was malicious, extravagant, humorous waste which the Courts of Equity would restrain. The parties here have disregarded the provision of our own statute, passed February 28, 1821, ch. 34, which provides, " that any person seized of a freehold estate, or of a remainder or reversion in fee simple or fee tail in a lot of woodland or timber land in this State, whereon the trees shall have come to an age and growth fit to be cut, may petition to this Court to 18 274 ILLUSTRATIVE CASES have them felled and sold, and the proceeds invested for the use of those interested in such woodlands." It is not to be questioned, that conformably to the strict con- struction adopted in Massachusetts, that for a tenant in dower to cut timber for sale would be waste, and produce a forfeiture of the place wasted. And so in this State. But upon the deeds and facts agreed is the defendant, Isaac York, to be subjected to the unmitigated consequences of his acts, as if he was a mere tenant for life without any excuse. Almost the whole of the cases have arisen under leases, or devises, etc. Here he was original owner, conveying the land in fee, reserving to himself the use and control of the lands during his natural life. It may well be doubted whether this alone would protect him, though the terms are very broad. But though the second deed, under which the plaintiff claims, as purchaser of the trees, might seem to extend to defendant a greater latitude, yet the terms use and control of the land, do not necessarily include destruction of the timber. In Davis v. Uphill, 1 Swanston, 129, an estate had been limited to Ann Uphill for life, remainder to her children, by her deceased husband, as she should appoint ; in default of that appointment, to the children in common. They agreed with her, that on her joining in a recovery, the first use should be to her for life, without impeachment of waste. Some diffi- culty occurred in the conveyance. She commenced cutting, and an injunction was obtained. But the Court refused to continue it to restrain her from cutting timber, unless security was given to her for the full value of all she might cut in her lifetime. This was in 1818. The expressions in the deed of Joseph York to the plaintiff, reserving so much of said trees and timber for the benefit of Isaac York as shall be necessarj'^, convenient, and indispensa- ble to the enjoyment of the premises during his natural life, might possibly have misled the defendants to a supposition that they were equivalent to the expressions without impeach- ment of waste. But besides this, they may have supposed that the plaintiff has no exclusive property io the trees and IN REALTY. 275 timber, till what should be left was ascertained and designated by Isaac Spring. It does not appear but what the trees cut were of suitable growth, and fit to be cut. See 8 Term Rep. 145, Martin v. Knowlys. It is not stated that they were intended to be ap- plied to the repairs of the fences or buildings, but the poverty and age of the defendant shows that the supply would be con- venient, if not necessary for his enjoyment of the premises. In Virginia it is held by Roane, J., Findley v. Smith, 6 Munf. 134, that in considering waste in this country, the com- mon law, by which it is regulated, adapts itself in this, as in other cases, to the varied situations and circumstances of the country. That cannot be waste, for example, in an entire woodland country, which would be so in a cleared one. The contrary doctrine would starve a widow, for example, who could not subsist without cultivating her dower land, nor cul- tivate it without felling the timber. A clearing of the land in such circumstances, would not be a lasting damage to the in- heritance, nor a disherison of him in remainder, which is the true definition of waste. Here the widow is not dowable of wild lands, and so is not put in temptation to fell the trees. In the case under consideration, it is not among the facts agreed that what was done was to the prejudice of the plain- tiff's inheritance. The whole is left on the allegation of a cutting of pine and hemlock timber. We must gather the intention of the parties from their deeds, as well as we can on the words in the deed. And though we may conjecture that the grantor, Isaac, intended not to be limited by the terms use and control to anything but the employment of the property during his life as he did be- fore ; and though this conjecture is strengthened by Joseph's explanation or enlargement in the deed to the plaintiff, and though it does not appear, but there is sufficiency of such timber left for the remainderman, yet upon the facts agreed the plaintiff, according to the rules of law, upon the severance by the defendants of the pine and hemlock timber from the freehold, became the owner of it. We may lament the carelessness with 276 ILLUSTRATIVE CASES which parties have instruments drawn relating to the relative rights of tenant for life and persons in reversion or remainder. But in this case, in the opinion of the Court, the defendant, Isaac York, by his reservation, remained liable to impeachment of waste, and therefore the defendant must be defaulted. A deed of land for an indefinite period, as, " so long as the salt- works there intended to be erected shall continue to be nsed," con. veys a life estate to the grantee. HuRD V. Gushing, Supreme Judicial Court of Massachusetts, 1828. 7 Pick. 169. Wilde, J. The demandant's title, as appears by the facts agreed, is derived from one Thomas Cushing, and through him from David Thacher and Isaiah Smalley, three undivided fourth parts being derived from Thacher, and the remaining fourth part from Smalley. And as the titles of Thacher and Smalley depend on different principles, they will be con- sidered separately. It appears that on the 28th of December, 1807, an agree- ment was made between Thacher and Smalley respecting the erection and use of certain salt-works, then contemplated to be built, and which are now standing on the demanded premises. By the terms of this agreement Thacher was to furnish the materials for the salt-works, and Smalley was to furnish the land upon which they were to be erected. In pursuance of this agreement Smalley afterward procured a lease of a tract of land, including the demanded premises, from one Ricketson the owner, by which the same was granted and demised to him for an indefinite period of time, and so long as the salt-works then intended to be erected should continue to be used. By virtue of this lease the legal estate was vested in Smalley during his life, determinable by his ceasing to occupy the salt- works. On the 8th of April, 1817, Smalley conveyed an un- divided fourth part of the demanded premises to Thomas IN REALTY. 277 Gushing. This was intended as a mortgage or security, and a bond of defeasance was given by Gushing to Smalley, but as this bond was not registered, and as the demandant had no knowledge of it when he extended his execution on tlie prem- ises as the estate of Gushing, it is very clear, we think, that his title cannot be affected by that bond., The demandant there- fore acquired by the levy of his execution against Gushing all the original title of Smalley to an undivided fourth part of the premises ; and as to this part he would be clearly entitled to recover, but for the death of Smalley. By his death the estate of the demandant was determined, and his right of action de- stroyed. And this fact may be pleaded in bar of the action, or may be given in evidence on the general issue, if the par- ties so agree ; and it being thus agreed in this case, it is clear that the demandant's title derived from Smalley can no longer be maintained : Jackson on Real Actions, 168. The same objection would apply to the title derived from Thacher, if he and Smalley were seised in common, as the demandant contends they were, by virtue of their agreement, and by the erection of the salt-works. We are, however, of opinion that Thacher had no legal title to the land ; and that, therefore, it is immaterial whether the salt-works are fixtures or not. The legal estate was clearly in Smalley ; and if the works were fixtures, they passed with the land, and if they were personal property, the demandant acquired no title to them by the levy of his execution. All the right or interest which Thacher had in the land was a parol license to enter for the pur- pose of repairing and using the salt-works ; but this is not such a title as would enable him or his assigns to maintain a writ of entry. He was never seised, and therefore could not be disseised. Nor can the demandant recover on his title by disseisin, or by estoppel. True it is that Gushing, by virtue of the levy of his execu- tion against Thacher, becaMje actually seised by disseisin, and this title passed to the demandant under the levy of his exe- cution against Gushing. But this was a wrongful seisin, and was defeated or determined by the entry of Smalley. He entered in 1823, and since that time he and one Nathaniel 278 ILLUSTRATIVE CASES Gushing, and their representatives (the tenants being admin- istrators of Nathaniel Gushing), have occupied the premises ; so that it is clear that the demandant cannot now recover on a title by disseisin. Nor can he recover on a title by estoppel. Smalley and Ricketson were strangers and not parties to the proceedings between Thomas Gushing and David Thacher. They acted merely as appraisers, and had no right to object to the form of the proceedings. And besides, they might have been, and probably were, ignorant of their legal rights ; and they were not bound to inform themselves as to the irregularity of the proceedings. As to the deed from Smalley to Gushing, his right only passed by it, and not a fee by disseisin. The words of the grant are, " all my right, title, and interest, in and to one undivided fourth part," etc. It is true that the language of the covenants is more extensive ; but this will not enlarge the words of the grant so as to work a constructive disseisin of the land. Upon the whole, therefore, we are of opinion that the de- mandant is not entitled to recover, and according to the agree- ment of the parties he is to be non-suited. Judgment 'for tenants for costs. A conveyance to J. M. and his generation, to endure " so long as the waters of the Delaware shall run," creates in the grantee only a life estate : Foster V. Joice, 3 Wash. 0. 0. 498. b By Will. A life estate may also be created by will, as where a devise of land contains no words of perpetuity and no words appear in tbe will from which a fee can be raised by implication. Jackson v. Embler, Supreme Court of New York, 1817. 14 Johns. 198. Per Curiam. The lessors of the plaintiffs claim five-eighths of the premises as heirs-at-law of Henry Newkirk, deceased ; and the defendant claims under title derived from the will of IN REALTY. 279 Henry Newkirk, by which the premises are claimed as devised to his son James Newkirk. The words of the will are, " I give, devise, and bequeath, to my son James Newkirk, the two lots of land Nos. 5 and 6, in the last division of the five thousand acre tract, containing one hundred and forty acres." James New- kirk died before the commencement of this suit ; and the only question is, whether, under the above devise, he took a fee or only a life estate. A life estate only passed under this devise. There are no words of perpetuity, nor is there anything in the will from which a fee, by implication, may be inferred. We are accordingly of opinion that the plaintiff is entitled to judgment for five-eighths of the premises. c By Jointure. A jointare is a freehold estate in lands or tenements, secured to the ■vrife, ^nrbich is to begin upon the death of her husband and continue -during her life at least, unless terminated by her own act, and ia usually a provision for the \7ife in lieu of dower. Grogan V. Garrison, Supreme Court of Ohio, 1875. 27 Ohio St. 50. Johnson, J. The defendant in error, Emma G. Garrison, formerly Emma Grogan, filed her petition for dower, stating therein that she was the widow of one William Grogan, who, during coverture, was seized of certain lands, out of which she asks an assignment of her dower as provided by law. The property is described as being lot No. 9, etc., fronting on Fifth Street, Cincinnati, twenty-five feet, and also the south- west part of lot No. 10, etc., also fronting ten feet, on Fifth Street, each one hundred and sixteen feet deep, making thirty- five feet front by one hundred and sixteen feet in depth. William H. Grogan, a minor, and the only son of the de- ceased, by a former marriage, and John Parker, administrator' ■of William Grogan, are made defendants. 280 ILLUSTRATIVE CASES William H. Grogan, by his guardian, filed an amended an- swer, setting up as a bar to this action an antenuptial contract, a copy of which, by order of the Court, is made part of the answer. To this the petitioner demurs, on the ground that said amended answer does not state facts sufficient to constitute a defense. Upon .the issue thus made the case was reserved for hearing to the general term, where it was held that the matters set up as a bar were insufficient, and decreed that the petitioner waa entitled to dower. This action is brought to reverse that judgment. By the record it appears that the case came on for hearing at the general term, on the petition, amended answer, and demurrer thereto, upon the questions presented by the plead- ings. The Court, without directly passing on the demurrer, vir- tually does so by special findings of the truth of the facts- stated in the petition ; also that the defendant is in possession of the premises described in the petition, claiming the estate of the plaintiff therein, and that the plaintiff had notified him of her claim, and requested that her dower be assigned, which he refused to do. It is then adjudged that she be en- dowed of one equal third part of the lands in the petition described. The Court then proceeds to find that as, hy_ certain proceed- ings in the Probate Court of said county, the plaintiff's dower interest in said premises " has been set off in dollars and cents,, all proceedings therefore to set off the same by metes and bounds, by virtue of any order of this Court, is waived by the parties hereto." Upon this finding, it is ordered " that the plaintiff receive her dower in money, as set off to her in said Probate Court,, and that defendant pay the costs," etc. No mention is made of the demurrer ; but the findings and judgments that she was entitled to dower was, in effect, sustain- ing it. IN REALTY. 281 It is a little difficult to understand these two orders — the one that she is entitled to dower in one equal third part of the premises, and the other that the land had been sold in another Court, and dower in money already assigned ; in which last proceeding she had waived her right to the relief sought in this action. Assuming, however, that the record is defective upon this point, we proceed to an examination of the errors com- plained of. The errors assigned are : 1. The Court erred in holding that the amended answer did not constitute a statutory jointure in bar. 2. In holding said answer did not amount to an equitable bar. 3. In holding that the petitioner was not estopped by reason of the facts stated in said answer. 4. In holding that the burden of proof was on the defenda;at to show that said antenuptial contract was reasonable. As to this last assignment, it is sufficient to say that there is nothing of record to show that the Court did so hold. The de- murrer having been virtually sustained, though not formally,, there remained no defense to the action. The defendant being a minor, it became the duty of the Court to be satisfied of the truth of the petition before rendering a judgment. The record shows the facts specially found, but no. such holding as is complained of appears. The remaining errors assigned make it necessary to give a full synopsis of the defense. The amended answer, with the antenuptial contract which it sets up, states that previous to February 23, 1867, there was a treaty between the plaintiff and said William Grogan, concern- ing marriage between them ; that she was of full age, and under no restraint ; that he was many years her senior, and of feeble health, and was the owner of the premises described in the petition, and a small amount of personalty ; that he had one child, the defendant, by a former wife ; and that the terms of an adjustment of the rights of the plaintiff, in the event of 282 ILLUSTRATIVE CASES their marriage and her survivorship, were freely discussed and agreed on. He agreed to enter into said marriage only on the condition that she would bind herself to accept, in the event of his death — an event then anticipated as not, likely, very remote — & certain interest in his estate, in full satisfaction of her claims as his widow ; and on the 23d of February, 1867, she freely and voluntarily entered into a written agreement to that effect, which was duly executed and acknowledged by both parties, whereby it was stipulated that said Grogan, in consideration of said marriage about to take place with plaintiflf, whose name was then Emma Mitchell, did thereby grant, bargain, sell, and convey to her, during her natural life, real estate in Cincinnati, described as follows : "All that lot of land, situate in said city, and being the one undivided one-third part of the southwest part of lot No. ten [10], in Ewing's subdivision, fronting ten [10] feet on Fifth Street, and running back on Kilgour Street, on lines parallel with said street last named, one hundred and sixteen feet nine inches [11 6f feet], said lot hereby conveyed being part of ground purchased by said city for the purpose of extending Kil- gour Street." It is averred that this land so conveyed was in full satisfac- tion of her dower. The parties were married February 24, 1867, and he died in August thereafter. The answer concludes : " Wherefore, he denies that said petitioner is entitled to dower, as claimed in the petition, and asserts that adequate provision was made for her by the afore- said jointure, and prays that her claim may be restricted to the premises set forth in the contract." The prayer that her claim, which was to have dower in this ten feet as well as in the twenty-five feet in lot No. 9 adjoining, be restricted to the premises just described — that is, to the ten feet — would seem to imply that the pleader understood this contract as embracing a life estate in the undivided one-third of ten feet frpnt by one hundred and sixteen feet deep, though. IN REALTY. 283 in argument, it is insisted that this description embraced all of the ten feet front, and not an undivided one-third. We do not so understand it. The will of deceased is printed as part of the record. There is no statement of facts showing the extent and value of William Grogan's property at the date of the marriage, nor of the value of the part conveyed nor of that remaining, to enable the Court to say whether it was adequate or not. There is no averment that the deed was ever delivered to her, or that she, either during or after coverture, ever had possession ; on the contrary, the Court finds, as one of the rea- f^ons doubtless for sustaining the demurrer that the premises are in the possession of the defendant ; and still more, that, by proceedings in the Probate Court, instituted, as they must have been, by the defendants, or one of them, the property had been sold and converted into money. We mention this as accounting for the absence of such im- portant averments in this defense. Grogan died in August, 1867, and this petition was filed in 1870, and the presumption is that, during the interval, this real estate, now set up as a jointure, was held and con- trolled by the heir, and, for aught that appears, she declined to accept the provision thus made. Was she bound to ao- eept it? The petitioner declined to take under the will. The will refers to this antenuptial contract, and declares that " she shall not have any dower in my real estate described in the contract ; . . . that is to say, that said Emma Grogan shall have no dower in the real estate mentioned and described in said contract." Let us inquire : 1. Was this antenuptial contract a legal bar to an action for dower? If it was, then this action was improperly brought. The statute of Ohio, on this subject reads : " Sec. 2. If any estate shall be conveyed to a woman as jointure, in lieu of her dower, to take effect immediately after 284 ILLUSTRATIVE CASES the death of her husband, and to continue during her life, such conveyance shall bar her right of dower. " Sec. 4. That when any conveyance, intended to be in lieu of dower, shall, through any defect, fail to be a legal beer thereto, and the widow, availing herself of such defects, shall demand her dower, the estate and interest conveyed to such widow with intention to bar her dower shall thereupon cease and determine." What, then, is a jointure, under this statute ? It is a word having a fixed legal signification, long prior to the enactment of our Dower Act ? The section quoted is, in fact, but the adoption of a similar provision, found in Stat. 27 Henry VIII, c. 1056, which en- acted that where lands are settled to the use of the wife, "that then, in every such case, every woman having such jointure . . . shall not have title to any dower in the resi- due." This Act of Parliament was enacted to prevent a woman from having both dower and jointure. Before its passage, accepting a jointure was not a bar to her action for dower. Under this statute the word jointure had as definite and well-defined legal meaning as any other legal term. It was an estate made to the wife in satisfaction of dower. Sir Edward Coke says " that to the making of a perfect joint- ure, within that statute, six things are to be observed : "1. It is to take effect for her life in possession or profit, presently after the death of the husband. " 2. It must be for her own life or for a greater estate. " 3. It must be made to herself, and to no other for her. " 4. It must be made in satisfaction of her whole dower, and not of part of her dower. " 5. It must be expressed or averred to be in satisfaction of her dower. " 6. It may be made either before or after marriage." He adds : " So as to comprehend all in a few words : A jointure ... is a competent livelihood of freehold for the IN REALTY. 285 wife, of lands or tenements, to take effect presently in possession . or profit after decease of the husband ; now, as dower ad ostium, ecclesise, or ex assensu patris, is better for the wife, because, in respect to certainty, she may enter, than dower at common law where she is driven to her action, and therefore Britton call- «th dower ad ostium ecclesise and ex assensu patris, establishment of dower by the husband and assignment of dower after his decease (for nothing that is uncertain is established) ; so joint- ure (that hath the force of a bar of dower by said Act of 27 Henry VIII), is, hath been said, more secure and safe for the wife than dower ad ostium ecclesise or ex assensu patris, for be- sides it is as certain as these others, and she may enter into it, after the death of her husband, and not be driven to her ac- tion :" Coke on Lit., § 41, note 8. A jointure with all these qualities is binding on the widow, and a complete bar to her claim : 1 Cruise Digest, title 7, ch. 1, U9. But it had to be as certain as dower ad ostium ecclesise or ex assensu patris, and to be better than these ; and, as Coke says, more secure and safe for the wife than either of these, or than dower at common law. It had to be established, so the wife could enter, after the death of her husband, and not be driven to her action. It is said jointure is to be as certain as dower ad ostium ecclesise or ex assensu patris. How certain were they ? Coke says : " Dowment ad ostium ecclesise is where a man of full age, seized in fee simple, who shall be married to a woman, and when he cometh to the church-door to be married, then after affiance and troth plighted between them, he endoweth the woman of his whole land or the half or other lesser part thereof, and then openly doth declare the quantity and the certainty of the land which she shall have for her dower. Here be two things that the law doth delight in, viz. : To have this and the like openly done ; second, to have certainty, which is the mother of quiet and repose, and this word (moiety), above said to be intended of the half in certainty, and not of the moiety in common, which clearly appeareth in that here Little- 286 ILLUSTRATIVE CASES ton saith the quantity and certainty of the land :" Coke on Lit., title Dower, § 39. So dower ez assensu patris must Jiave the same quality of certainty. It must be " of parcels of his father's lands or tene- ments with the assent of his father, who after assigns the quantity and parcels. In this case, after death of the son, the wife shall enter into the same parcel, without the assignment of any :" Coke on Lit., title Dower, § 40. Jointure was as certain as dower ad ostium ecclesix or ez assensu patris. It was more secure and safe than either of these. It was, like them, an establishment of dower by the husband, and better than either of these, she might enter into it, after the death of her husband, and not be driven to her action. This was doubtless for the reason that it was evidenced by a conveyance in writing. In Vernon's Case, 4 Coke, 1, the leading one on the subject, it is said " that dower ad ostium ecclesise and ex assensu patris concluded the wife of her dower, if she entered into the land so assigned to her after the death of her husband, for these being in such form as the law requires to be dowers in law, an assignment of dower, when the husband was sole seized, can- not be made of the third or fourth part in common, but ought to be in severalty :" 1 Thomas's Coke, 597. At common law it was imperative as a requisite of dower that the husband should be sole seized. Upon estates held in joint tenancy no dower would attach: Lit., § 45 ; 1 Scribner on Dower, 257. So stringent was this rule, that where one joint tenant aliened his share, destroying the possibility of survivorship and severing the tenancy, the widow of the alienor could not claim dower : 4 Kent, 37 ; Coke Lit., § 31 b. The reason for this rule is obvious, and applies with equal force to a jointure. The sole seisin of the husband was indispensable, because only in such case could dower be assigned by metes and bounds, and as jointure was in lieu of dower, the same quali- ties as to the estate granted necessarily existed. IN REALTY. 287 It must be so assigned as to be held in severalty without an action at law. By the terms of our statute jointure must be an estate, con- veyed as jointure. If from any defect it fail to be a legal bar to dower, and the widow elects to take advantage of this defect, and de- mands her dower, the estate conveyed as jointure shall cease and determine. In what sense, then, is this word jointure used ? It was a term which, for more than two hundred years, had had a fixed legal signification. Long prior to the adoption of the Act of 27 Henry VIII, jointures were in common use, and their meaning well understood. That statute, from which ours is almost literally borrowed, has been carefully considered in many reported cases by the most profound jurists of England. The repeated discvissions, and the long line of decisions, growing out of this Act, and similar ones in most of the States of the Union, were doubtless familiar to our ancestors, who incorporated a like provision in the statutes of Ohio. They were men well versed in the common law, and especially that part relating to real estate. It is well established as a rule of interpretation that where particular words or phrases have in law an acquired, fixed legal signification, and are thus incorporated into a statute, the legal presumption is that the Legislature meant to use them in this legal sense : Turney v. Yeoman, 14 Ohio, 207. Where a statute speaks of a deed, it must be taken in its technical sense, as understood at common law — that is, a writ- ing sealed and 'delivered by the parties : Moore's Lessee v. Vance, 1 Ohio, 10. So, also, where the word mortgage is used, it will be assumed that it is used in its ordinary legal signification, as well under- stood at common law, and that the legal liabilities incident to it were understood to follow : Per Scott, J., Medical College v. Zeigler, 17 Ohio St. 52. Guided by this rule of interpretation, and by the light of the authorities and decisions referred to, we are led to conclude 288 ILLUSTRATIVE CASES that the estate to be conveyed as jointure must possess those prime requisites enumerated by Littleton and Coke, which we have quoted — that tliere must be such an estate as the widow can enjoy in severalty. It must declare the " quantity and certainty " of the lands she shall have — the " two things that the law doth delight in " — first, to have it done under our land statute, by a solemn deed of conveyance ; and, second, to have " in certainty, which is the mother of quiet and repose." And Lord Coke adds, speaking of certainty in dower at the church- door, and commenting on Littleton's text : " This word moiety means a half in certainty, not of moiety in common." In Winch's Cases, p. 33 (London, 1657), it is said, to be a good jointure, a wife must have a sole estate, after the death of her husband. In the case at bar the conveyance is fatally defective in this prime quality of certainty. It conveys an undivided one-third for life. The widow cannot enter and enjoy in severalty; she would be driven to her action at law to have it assigned and set apart to her. One of the prime reasons for making a jointure was to give the wife the right, without her action, to enter and be sole possessor. Again, to constitute a good conveyance of an estate, the deed must not only be duly executed, but it must be delivered. We therefore hold that this antenuptial contract, for the rea- sons stated, is not a good statutory bar. II. The next inquiry is, was it good as an equitable jointure? What constitutes an equitable bar is a question fruitful in decisions. Much learning and many conflicting decisions can be found in the books. The substance of all the decided cases is that any provision made before marriage, whether of lands and tenements, goods and chattels, or whatever description of property, that consti- tutes a valuable consideration, if fair, reasonable, and just, as between the parties, in view of all the circumstances of the IN REALTY. 289 •case, at the time the contract was made, will, in equity, be supported as a good equitable jointure : Miller's Ex'r v. Miller, 16 Ohio St. 532 ; 2 Scrib. on Dower, 385-401. Each case must be determined on its own particular facts and equities. Looking at all the facts disclosed by this answer, and the absence of averments, we have arrived at the conclusion that this contract is not, in equity, a bar. It conveys less than one-tenth of the real estate ; no value is stated ; it was only for life, in less than one-third of the whole ; nothing was ever done to put her in possession ; no acceptance by her, or part performance ; and no facts stated to show that it was fair, reasonable, or just to her. It has been an axiom, accepted for ages, that dower was to be favored ; that no widow should be barred of that ancient and cherished right, unless 1. There was settled upon her, in strict conformity to law, an estate, as jointure, possessing all those requisites already pointed out ; or 2. There were such adequate provisions made, in lieu of dower, as, under all the circumstances, was fair, reasonable, and just. III. As to estoppel. Neither do we think the petitioner es- topped. She has done no act during or since coverture that amounts to an estoppel. Her antenuptial covenant to accept this conveyance in lieu of dower cannot have the effect to release her dower. In the case of Hastings v. Dickinson, 7 Mass. 155, the Court says : " This leads us to the second ground, viz. : that the demandant's covenant ought to have the effect of a release of dower. But this effect cannot be admitted on any correct legal principle. It is true that a covenant never to prosecute an existing demand shall operate as a release to avoid circuity of action. But a release of a future demand not then in exist- ence is void. Now in this case, the settlement being executed before marriage, the demand of dower had no existence, the same being inchoate." 19 290 ILLUSTRATIVE CASES In the case of Vance v. Vance, 8 Shepley (Maine), 364, the Court says : " There can be no estoppel by executory cove- nants not to claim a right which is first to accrue afterward. The covenants of the wife with the husband before marriage, that she will not claim dower in his estate, cannot operate by way of release, estoppel, or rebutter to bar her of her dower." The judgment of the Superior Court is therefore affirmed. Williams, E. P. 235 ; 4 Kent Comm. 55, 56 ; Boone, E. P. 72 ; McCartee v. Teller, 2 Paige, 511 ; Vance v. Vance, 21 Maine, 364 ; Hastings v. Dickinson, 7 Mass. 153 ; Tevis v. McCreary, 3 Met. (Ky.) 151. Marriage settlements now usually take the place of jointures : Tiedeman, E. P. 148. d By Marriage Settlement. Parties in contemplation of marriage may by contract, equitable and fairly made, fix the rights Tvhich each shall have in the property of the other daring life, or which the survivor shall have in the prop- erty of the other after his decease, and thus exclude the operation of law in respect of fixing their rights. Desnoyer V. Jordan, Supreme Court of Minnesota, 1880. 27 Minn. 295. GiLPiLLAN, C. J. The appellant and Stephen Desnoyer were married in this State May 7, 1873, and- he died Decem- ber 3, 1877, she surviving him. His estate being in course of administration, she applied to the Probate Court in Ram- sey County, in which the administration was pending, asking that one-third of the real and personal property might be set off to her as the widow, and as her portion of the estate, pur- suant to the statute. The application was opposed by the heirs, and the Probate Court denied it. She appealed to the District Court, and that Court found as facts that " previous to their marriage, and just prior thereto, and in contemplation thereof, said parties (appellant and Stephen Desnoyer) en- IN REALTY. 291 tered into a mutual agreement in writing, executed by each of them under seal, and acknowledged before a notary public, and witnessed by two witnesses, whereby, in terms, Stephen Desnoyer, in contemplation of said marriage, and in considera- tion thereof, and in consideration of the sevices theretofore rendered to him by said Sally Johnson (appellant) as house- keeper, did grant and convey to said Sally Johnson, after his death, and for the term of her natural life, the real estate and appurtenances situate in the county of Ramsey, and State of Minnesota, described as follows (description), and did give and grant to her after his death, and during her life, the sum of |500 per year out of his estate, to be paid to her in equal semi-annual installments, and did make the same a charge upon all his estate, and did also give to her absolutely at his death a horse, a buggy, a harness, a sleigh, and a cow. In consideration thereof, said Sally Johnson did, by said agree- ment, in terms release said Desnoyer for past services, and did release all dower and right of dower in his lands, and all her interest or claim of any kind in and to the estate and property of said Desnoyer, which might arise by reason of said marriage, except as to the provision made for her in said agreement." The Court also found the agreement was not cancelled or abrogated. The agreement was not recorded. The land de- scribed in it was owned and occupied as a residence by Desnoyer at the time of making the agreement and of his death, and was parcel of a tract owned by him of about three hundred acres. The contract was not produced on the trial, but the evidence as to its execution and contents was fully suf- ficient to sustain the finding of the Court below. Indeed, it is difficult to see how the Court could have found otherwise. And there is little, if any, evidence tending to show that it was afterward cancelled. The question of appellant's homestead right (if it were to be conceded that it is not disposed of by this antenuptial agreement) cannot be considered ; for, in her petition on which this proceeding is based, she expressly disclaims any intention to claim such right, and the evidence is not such 292 ILLUSTRATIVE CASES as to identify any homestead beyond that described in the agreement. The agreement contemplated that, except as provided in the agreement itself, the appellant should be excluded from any right or interest in Desnoyer's estate that might otherwise accrue to her by reason of the marriage about to take place between the parties. In the absence of a valid agreement between the parties, the law fixes the rights which either the husband or the wife shall have in the property of the other, both during life and after the death of either. But it has always been permitted to the parties in contemplation of mar- riage to fix those rights by agreement, equitable and fairly made between them, and to exclude the operation of the law in respect to fixing such rights ; so that, so far as the agreement extends, it, and not the law, furnishes the measure of such rights. That such antenuptial agreements might be made was recognized in the statute in force when this agreement was made: Gen. St. (1866) c. 69, §§1,4; c. 48, §§ 14-17. The latter of these statutes did not limit (as appellant argues) antenuptial con- tracts to barring dower alone. It only prescribed what sort of provision for the wife, in any such contract, should have the effect to bar dower ; that it must be a jointure of a freehold estate in lands for her life, at least, to take effect in possession or profit immediately on the death of the husband, or a pecu- niary provision for her benefit in lieu of dower ; such jointure or pecuniary provision to be assented to by her before the mar- riage. But it did not disable the parties to make an ante- nuptial contract which should, in any other respect, fix the rights of the parties in the property of each other. The parties having made their contract, and it being one which they were competent to make, and there being nothing to impeach its fairness or equitable character, and it clearly providing that the wife shall have no right or interest in the estate of the husband other than that provided in the contract, this would seem to dispose of the case. But it is claimed that subsequent Acts of the Legislature confer on the wife, surviving her husband, rights in his estate which obtain, notwithstand- IN REALTY. 293 ing the antenuptial contract stipulates she shall have none other than it provides for. At the time this contract was made, a widow was entitled to dower in the real estate of her deceased husband (unless barred, as in the statute provided), and in case of intestacy to certain allowances out of, and to the same distributive share of, his personal estate as a child of the intestate would have. Afterward dower was abolished, and in 1876 the Legislature passed an Act (Laws 1876, c. 37 ; Gen. St. 1878, c. 46, §§ 2, 3) which entitles the surviving husband or wife to a life estate in the homestead of the deceased, free from all claims on account of debts of deceased, and also absolutely to one-third of the real estate of which the deceased was seized during coverture, subject in its just proportion with the other real estate to such debts of deceased as are not paid out of the personal estate. Unless the operation of this statute is prevented by the ante- nuptial contract, the appellant is entitled, as to the real estate at any rate, to what she claims. But, inasmuch as the contract excludes all such rights as the statute assumes to give, the latter can have no effect without overriding the former — that is, without impairing its obligation. Now, though the contract of marriage and its incidents, including rights of property depending on it, while such rights of property' remain inchoate and are mere expectancies, may be within the power of the Legislature to vary or affect by subsequent legislation, it is not so with an antenuptial contract. Such a contract is founded on a high consideration. Rights under it are contract rights as much as any can be, not merely resting upon or incident to the relation of husband and wife. They are independent of such incidents. Such a contract is under the constitutional protection as much as any contract. So, even if the Legisla- ture intended, by the statute last cited, or by that in 1876, regulating distribution of personal estate of a deceased person (Laws 1876, c. 42 ; Gen. St. 1878, c. 61, § 1) to give rights con- trary to the provisions of antenuptial contracts then existing, the statute would, to that extent, by reason of the constitu- tional inhibition against laws impairing the obligation of con- 294 ILLUSTRATIVE CASES tracts, be inoperative ; but we do not think the Legislature intended to affect such contracts in any way. Judgment affirmed. Hoeford v. Rowe, 41 Minn. 245. Antenuptial contracts may be made, which are not jointures or marriage settlements, but simply contracts fixing the rights of the parties in the property of each other : Naill v. Maurer, 25 Md. 532. The marriage alone may be a sufficient consideration : Gelzer v. Gelzer, 1 Bailey's Eq. 387 ; Wentworth v. Wentworth, 69 Me. 247 ; McNutt v. Mc- ?rutt, 19 N. E. R. 115. Cmlra: Curry v. Curry, 10 Hun, 368. But see Clark v. Clark, 28 Hun, 509 ; Young v. Hicks, 27 Hun, 57. Legal Life Estates. A life estate created by operation of law is called a legal life estate, and arises as foUcws : a Curtesy. An estate by the curtesy is a freehold estate, not of inheritance, created by act of lavir, -which the husband acquires at the death of his -wife in the lands of -which she was seized during their coverture, Ferguson v. Tweedy, Court of Appeals, New York, 1871. 43 N. Y. 543. FoLGER, J. This action cannot be sustained unless Harvey D. Ferguson, the testator, had in his lifetime an estate as tenant by the curtesy in the premises, or some part of them, which were recovered in the action of the respondents against Samuel G. Green, judgment wherein was rendered on the 1st of February, 1861. To establish such tenancy there were needed four things : Marriage, issue of the marriage, death of the wife, and her seisin, during marriage, of the premises in question. There is no dispute but that all of these existed, save the last. It is a general rule that to support a tenancy by the curtesy IN REALTY. 295 there must be an actual seisin of the wife : Mercer's Lessee V. Selden, 1 How. U. S. 37-54. The rule is not inflexible. There are exceptions to it. The possession of a lessee under a lease reserving rent, is an actual seisin, so as to entitle the husband to a life estate in the land as a tenant by the curtesy, though he has never received or demanded rent during the life of his wife: Ellsworth v. Cook, 8 Paige, 646. Wild, un- occupied or waste lands may be constructively in the actual possession of* the wife: 8 J. R. 271. A recovery in an eject- ment has been held equivalent to an actual entry : 8 Paige, ■supra. And it has been held that where the wife takes under u deed and there is no adverse holding at the time that actual •entry is not necessary : Jackson v. Johnson, 5 Cow. 74. But the facts of this case open not the door for any of these ex- •ceptions to come in. Before the marriage of the testator to his wife she did convey by quit-claim deed the premises in question for a term which was in its duration as long as her life. The grantee in that deed, thus acquiring an estate for her life in the lands, did enter, and he and his assign held the possession up to her death and afterward. It is true that this deed was one of two interchanged between the parties to effect an amicable partition of premises held by them at that time in common. But the execution of these deeds, if followed as it was, by possession in severalty, was valid and sufficient to sever the possession for the lifetime of the testator's wife : Baker v. Lorillard, 4 N. Y. 257 ; Carpenter v. Schermerhorn, 2 Barb. Ch. 314, 21. And from the time of the execution by her of that deed, until the day of her death, she had not, nor had her husband, actual possession of the premises ; she nor he made claim to the possession of them; she nor he received rent or other profit from them ; she nor he had right to ask possession or rent or profit. In short, there did not any fact exist which, for her lifetime, after the execution of the deed, gave her a constructive possession or right of possession. On the con- trary, there did exist in another, so far as she and her hus- band were concerned, exclusive possession and right of such 296 ILLUSTRATIVE CASES possession for a term which ran for her life. There was thea an outstanding estate for life in the premises which, beginning before her coverture began, did not end until her coverture ended. And it • is settled that if there be an outstanding es- tate for life the husband cannot be the tenant by the curtesy of the wife's estate in reversion or remainder, unless the par- ticular estate be ended during the coverture : Stoddard v. Gibbs, 1 Sumner, 263-70 ; In re Cregier, 1 Barb. Ch. R. 598. It is among the facts found by the learned Justice before- whom the action was tried that the possession of the grantee in that deed and of his assign was actual and exclusive. It is found, also, that neither the wife of the testator nor the tes- tator himself did at any time after the execution of that deed have actual possession of the premises or receive the rents and profits thereof And these findings are upheld by the proof. There is no escape from the conclusion that there was lack- ing one of the essentials in a tenancy by the curtesy in favor of the testator. This defect in the plaintiff's case being fatal, it is not neces- sary that we examine the other questions involved. The judgment of the Court below should be affirmed with costs to the respondent. Jackson v. Johnson, 5 Cowen, 74 ; Heath v. White, 5 Conn. 228 ; Pemberton V. Hicks, 1 Binn. 1. Curtesy attaches not only to estates in fee simple and fee tail, bat also to fees subject to a conditional limitation on failure of issue. Thornton's Executors v. Krepps, Supreme Court of Pennsylvania, 1860. 37 Pa. St. 391. A. devises land to B. and her heirs forever ; provided, however, that if B. should die without issue living, then the estate should revert to A. B. tnarriea and has a child, which dies, and then B. dies without issue living. The ex- ecutors of A. claim that the land then reverted to A.'s estate ; but B.'s hus- band claims curtesy therein. Does he have it ? ■. IN REALTY. 297 Hdd, that on the death of B. the land would revert to A.'s estate, subject to- the right of curtesy, which attached as an initiate right during coverture and became consummate on the death of the wife. LowRiE, C. J. The incidents of an estate do not depend upon the intention of the grantor of it ; but are 'engrafted on it by law, and, generally at least, without any regard to the intention of the grantor, and even in disregard of it. Our inquiry, therefore, is not after the intention of the testator rel- ative to the claim of curtesy, but for the character of the es- tate intended to be granted by him, and whether curtesy is an incident in law to such an estate. What, then, is the character of this estate as given by the will ? It is not an estate tail, because the devise does not pro- pose to limit the descent of it to the issue of the devisee. It is a fee simple subject to an executory devise — that is, a condi- tional limitation by will, which defeats it and substitutes an- other estate in its stead, if the devisee should die both under- age and without issue then living : Smith's Executory Interests,. §§ 148-151 ; 4 Casey, 108. Does the common law give the husband of the devisee cur- tesy of such an estate after it has been defeated by the hap- pening of the conditions ? We think it does. The case of Buchanan v. Shaffer, 2 Yeates, 374, decides this on the authority of Buckworth v. Thirkell, though possibly the case might have been decided in the same way on other grounds. The principle of this latter case has been very ably attacked and defended in the argument here, and we shall not repeat the discussion. In favor of the principle we have Kent (4 Com. 32, 8th ed.) ; Roper (1 Husband and Wife, 38- 43), and Preston (3 Abst. of Title, 372, 384) ; and against it, we- have Butler (note 170 to Coke on Littleton, 241 a.) ; and Park (Dower, 163-191). Roper on one side and Park on the other ga very fully into the discussion of the authorities and the prin- ciple. Its supporters go on the substance of the principal es- tate, and its assailants on the form of its creation ; and, owing to the innumerable variety of the forms of expression in which the same substantial estate may be created, we think it much 298 ILLUSTRATIVE CASES more certain to attach the incidents to its substance than to the form of its creation. On a subject that involves so many difficult questions we confine ourselves carefully to the case before us, and say that curtesy attaches to an estate in fee — that is, subject to a con- ditional limitation o£i the failure of issue. The case is not affected by the Married Woman's Act of 1848, for that expressly retains the curtesy estate as it existed before. Judgment affirmed. As to limitation over to a third person, aee Hatfield v. Sneden, 54 K. Y. 280. Curtesy does not attach to estates on condition : Washb. R. P. 174. The con- ditional limitation is equivalent to an executory devise : Buchannan v. Shef- fer, 2 Yeates, 374. Curtesy vests by operation of law, more in the nature of an estate by descent than by purchase, and cannot be divested by a mere disclaimer : Watson v. Watson, 13 Conn. 83. Curtesy generally attaches in this country to equitable estates : Houghton v. Hapgood, 13 Pick. 154 ; Night- ingale V. Hidden, 7 E. 1. 115 ; Tillinghast v. Coggeshall, 7 R. I. 383. Do'virer. An estate by do^er Is a freehold estate, not of inheritance, created l>y operation of lavr, -rc-hich the 'wife acquires in the realty of her hus- band upon his death. Gray v. McCune, Supreme Court of Pennsylvania, 1854. 23 Pa. St. 447. Lewis, J. In Leine weaver v. Stoever, 1 W. & Ser. 160, it was held that the acceptance by the wife of her distributive share of her husband's estate under the intestate law, did not bar her action of dower in lands which her husband had con- veyed to a stranger, and which formed no part of his estate at his death. In Borland v. Nichols, 2 Jones, 43, the same prin- ciple was applied to the acceptance by a wife of a devise under her husband's will. The first was a decision under the Act of IN REALTY. 299 1794, and the other under that of 1797. Both statutes had relation exclusively to the estates of which the husband died seised or possessed. They could operate on no other. And the last, which is the only one material to be considered here, is express in its direction that the acceptance of a devise of any portion of his estate " shall be deemed and taken to be in lieu and bar of her dower out of the estate of her deceased husband, in like manner as if the same were so expressed." It was held that the statute could not be carried beyond its letter, and that as its general provisions related to the estate which belonged to the husband at the time of his death, and the particular effect of acceptance was confined by the statute to that estate, the Courts could not, by construction, enlarge it. The decisions referred to were constructions of law, given to the single act of accepting a distributive share or a devise. But the case be- fore us demands a decision upon an instrument of writing, sealed and delivered by the party in whose right this action is brought. A release under seal is good without a consideration ; and where, as here, it inures by way of mitter le droit, words of inheritance are not necessary. It would be well to make use of the most appropriate words, such as remisisse, relaxasse, et quietam clamasse, but these are not indispensable. The words renunciare, acquietare, etc., will answer as well. If one ac- knowledge himself satisfied, and discharge a debt, this is a good release : Shepherd's Touchstone, 327. The paper in question is duly executed under the hand and seal of Mary Ann Mc- Cune, in the presence of two witnesses. It bears date the, 3d of July, 1835, when she was under no disability of coverture or otherwise. It is addressed, " To all to whom these presents shall come." It has come to the hands of the defendant be- low, and he gives it in evidence, and claims the benefit of it. He is not a stranger, but had possession of the property in dis- pute at the time of the execution of this instrument, and claimed to hold the land in fee simple under a conveyance from the first husband of Mary Ann McCune, dated the 11th of March, 1833. It would be a reproach to the law if this in- strument under seal, thus fairly executed by the present Mrs. 300 ILLUSTRATIVE CASES Gray, were held to be null and void. It cannot be pretended by any one that it should be so regarded. It must, therefore, have effect according to its true intent and meaning. It is Mrs. Gray's own language, and therefore, in case of ambiguity or doubt, it is to be construed most strongly against herself. It was her business to express herself so as to be understood. If she intended merely to accept the provisions of her husband's will " in lieu of her dower in the estate of her husband," under the statute of 1833, it was her duty to say so. If the object was merely to acknowledge satisfaction of all right of dower out of the estate which belonged to her husband at his death, it was easy to say so, and it was her duty to say so in such language as could be readily understood. William C. McCune, in addition to his title as vendee under his conveyance from his father, was a son and an heir, and had an interest in knowing the extent of the satisfaction acknowledged. If he had not understood it as extinguishing all claims upon the land in his possession, it may be that he would have resorted to other measures for his protection. He might have raised a question in regard to the large provision made by the will for the widow, and the meagre one provided by the same instru- ment for himself. But the paper distinctly declared that said Mary Ann McCune agrees to take under the provisions of the will, and accepts the bequests therein, to her, in lieu and full satisfaction of right of " dower at common law." What is right of dower at common law ? It is something more than right of dower out of the estate of which her husband died seised. Dower at common law is the one-third part of all the lands and tenements whereof her husband was seised, at any time during covertiire. This is precisely the right which she released, and she has thereby discharged the land in controversy from her present claim. After making the declaration that although she had not signed the deed to William C. McCune, she " had signed an agreement of release to the same effect ;" after re- ceiving for herself and her children plfl^erty more valuable than all the rest of the estate, including what was sold to William ; and after an acquiscence of nearly twenty years in IN REALTY. 301 the settlement thus made, she comes with a bad grace to ask a recovery contrary to the plain meaning of her own deed. The cause is put upon the effect and true meaning of that instru- xoent as expressed upon its face. In Pennsylvania it is not necessary that a release should be dressed up in legal and technical form. It is sufficient if it be in substance a release. The intention of the parties will be carried out in a Court of law, as fully as if they were before a Chancellor, and governed by the principles of equity. The instrument of writing signed by the demandant, in connection with the other facts in the case, sustains all that is material in the plea. It is true that a conveyance of her right of dower to a ^stranger, for a consideration moving from him to her, could not sustain the plea of a release to the defendant who had no privity with such stranger. The suit might, notwithstanding such conveyance to a stranger, be carried on for her use in the name of the demandant. This is all that was decided in Pixley V. Bennett, 11 Mass. 298. In Massachusetts, a convey- ance to a party ovi of possession passes no estate, and is there- fore not evidence under the general issue in a writ of entry : Wolcot et al. v. Knight et al., 6 Mass. 420. And in an action of dower the tenant who does not claim under such conveyance, and who is an entire stranger to the consideration, cannot set it up as a defense. If it passed no right, it was clearly no defense. If it did pass a right, the action might well be maintained for the benefit of the grantee ob his assigns. In either case the defendant, being a stranger to it, had nothing to do with it. This is all that has any relevancy to this case in Robinson r. Bates, 3 Metcalf, 40. It is clear that these decisions, although cited by the plaintiffs in error to invalidate the defense under the release relied on in the case before us, do not sustain their positions. William C. McCune was neither a stranger to the consideration nor to the instrument itself. It was not a trans- action between strangers. The provisions in tfie will, which the widow accepted ift satisfaction of her claim, were drawn from estates which, but for the will and the acceptance by the widow, would have descended or fallen upon "William McCune 302 ILLUSTRATIVE CASES iimself ; and the language of the instrument, as well as il* object, shows that it was intended to operate in favor of the party who relied upon it at the trial. This disposes of the whole case, and renders it unnecessary to discuss the other questions raised in the assignment of errors. Judgment affirmed. 4 Kent Conun. 36. To same point. Stevens et uz. v. Smith, Court of Appeals, Kentucky, 1830. 4 Marsh. J. J. 64. Underwood, J. In 1805, Joseph K. Glenn, then unmarried, executed an obligation to Smith, for the conveyance of sixty acres of land. Afterward, to wit, in November, 1807, Glenn conveyed the land to Smith. Previous to the date of the conveyance, and subsequent to the execution of the obligation, Glenn married Mary, the wife at present of Stevens, she having since the death of Glenn, married Stevens. Said Mary did not unite with her former husband Glenn, in the execution of the deed to Smith. Since Glenn's death, Steyens and wife have filed their bill against Smith, praying for an assignment of dower, in the sixty acres of land, and the only question presented by the record is the validity of Mrs. Stevens' claim to dower, in virtue of her former marriage with Glenn. By the common law, three things were necessary to vest in a woman a right to dower. 1st. That her husband, at some time, during the existence of the coverture should have been seized of the lands, in which dower is claimed, either in fee simple, or fee tail. 2d. Marriage. And 3d. The death of the husband, leaving the wife. There are, nevertheless, excep- tions to these general propositions. A woman, for example. IN REALTY. 303 shall not be endowed, both of the land given in exchange, and of the land taken in exchange, and yet tlie husband was seized of both : 1 Institute, 31, b. According to the facts in the present case, Glenn had an actual seisin of the land conveyed to Smith, prior to his mar- riage with Mrs. Stevens. The possession in fact, of the sixty acres was transferred to Smith before the marriage, and never, during the existence of the coverture, did Glenn have actual possession of the sixty acres. Before the conveyance executed in 1807, and subsequent to the execution of the bond for a title, in 1805, Glenn was legally seized in fee of the land, and while thus seized, the marriage took place, but notwithstanding such seisin it is manifest that he had no beneficial possession. By the contract with Smith, and the delivery of the possession to him, for his use and benefit, Glenn divested himself of the use and enjoyment of the land, and transferred it to Smith. According to Coke, 1 Institue, 31, a woman shall be endowed where the husband is seized in law, as well as where the seisin is in deed, or a natural seisin, or, in other words, where the husband is in actual possession, holding a fee-simple title. But a man cannot become tenant by the curtesy, unless the wife be seized in deed. It is not material to dwell on the rea- son for the difference. As then Glenn was seized in law of an estate in fee simple, in the sixty acres, when the marriage ex- isted, it conclusively follows that Mrs. Stevens is entitled to dower therein, unless the contract between Glenn and Smith, of 1805, and the delivery of the actual possession of the land to the latter, so operates as to destroy the right of Mrs. Stevens. In the case of Winn, etc., v. Elliot's Widow, etc., Hardin, 482, it is said, " that before the statute of 27 Henry VIII, com- monly called the statute of uses, the wife of the feoffee to uses was not to be endowed of the estate so held in confidence to the use of another, because the husband had no beneficial in- terest ; and the wife of the cestui que use was not to be endowed, because there was no trust or benefit declared for her in the original grant. " The effect of the statute of uses was to con- 304 ILLUSTRATIVE CASES vert the interest of the cestui que use into a legal instead of an •equitable ownership, and all the legal consequences of estates, dower amongst the rest, at once attached." Thus the marital rights of women, by the operation of this statute of Henry VIII were so enlarged as to entitle them to dower in estates conveyed for uses. How this statute was evaded by the scruples of the common-law Judges, notwithstanding the com- prehensive terms used, and how trusts followed uses, are matters explained by Blackstone in his 2d vol., 335. The doctrine in relation to dower in trust estates, at the com- mon law, is well settled by numerous adjudications. A woman could not be endowed of a trust estate. See the English au- thorities referred to in note 183, on 1 Institute. See, also, the case of Claibourn v. Henderson, 3 Hen. & Mun. 322, and likewise the case of Bailey and Wife v. Duncan's Representa- tives, etc., 4 Monroe, 261, as well as that of Winn, etc., v. El- liott's Widow, already referred to. To impart to trust estates a ■dowable quality was an object of the Virginia Legislature as •early as 1785. In 1796 our Legislature re-enacted the provisions of our parent State on this subject. See the 14th section of the Act, 1 Digest, 315. Thus the provisions of these statutes have changed the law •of dower in respect to trust estates. But it is important to no- tice that these statutes do not give the wife of the trustee a right of dower in the trust estate. It is the husband or wife of the cestui que use, or cestui que trust alone, who by virtue of the statute shall have, and hold, curtesy or dower in the use or trust estate. These Acts of Virginia and Kentucky place the wives of cestui que trust upon the same footing in respect to dower which the statute of the 27 Henry VIII effected in re- lation to uses. In the case of Winn, etc., v. Elliott's Widow, etc., the Court left the question open, whether a wife was en- titled to dower in an inchoate estate, not reduced to a legal one during the coverture. This question fairly presented itself in the case of Bailey and Wife v. Duncan's Representatives, and was settled in favor of the wife's right. IN REALTY. 305 The- Court use this language : " In deciding upon the question under consideration, the main and only inquiry for the Court is to ascertain whether or not it was intended by the makers of the Act (to wit, that of 1797) to authorize a wife to recover dower in lands to which the husband had, at his death, an indisputable right in equity to a conveyance of the fee-simple estate, though the right be •derived under an executory contract for the title, and not re- sulting from any use or trust expressly declared by deed. With respect t6 trusts of the latter sort, the pi'ovisions of the Act are too explicit in favor of the wife's right to admit of a difference of opinion ; and if we advert, as we should do, to the old law as it stood at the passage of the Act, the mischief which must have actuated the Legislature in making the change, and the remedy which the Act has provided, we apprehend but little doubt will be entertained as to the propriety of giving such a ■construction to the Act as will embrace all trusts, whether ex- pressly declared by deed, or resulting from executory contracts by construction of Courts of Equity." An application of this doctrine would give the wife of Smith, if he had one, and if he had died between the date of his title bond in 1805 and his deed in 1807 a right to dower in the sixtj' acres of land. Glenn's obligation was for an unconditional conveyance of the title. He was bound by the terms of his obligation to make the conveyance presently. In equity, therefore, he was the trustee, and the mere title-holder for Smith's use. Smith's wife was entitled to dower under the statute in this trust estate,, resulting from the executory contract. The same principles which convert this estate into a trust, so that the statute ope- rates upon it in favor of Smith's wife, brings the case within the influence of those doctrines of the law which exclude the right of the trustee's wife to demand dower. Here then, be- fore Mrs. Stevens' intermarriage with Glenn, he had, by a con- tract, entered into upon ample and valuable consideration, be- come in equity the trustee and legal title-holder for Smith's use, and thereby placed himself in a situation in which the prop- 20 306 ILLUSTRATIVE CASES erty, so held by him in trust, could not thereafter be incum- bered by the dower-claim of any woman he might marry. For, as already remarked, the law excluding the dower claims of the wives of mere trustees was not altered by the statute so as to better their condition. The wives of cestui que trust alone, were benefited by the change. It is worthy of remark that the equity of Smith, founded upon an executory contract originated before Mrs. Stevens mar- ried Glenn. From the face of Glenn's bond for a title he ought to have made the conveyance before his marriage. Equity often considers that as done which ought to have been done. Glenn could have had no pretext for withholding the title, unless it might have been to secure the payment of the purchase- money. It does not appear that any lien on the land for that purpose existed. If it did appear, such a lien could not be re- garded as a beneficial interest, coupled with the title, so as to give Mrs. Stevens a right of dower. It would be no more than the attitude of a mortgagee, who holds the title to secure his debt without conferring on his wife a right to dower. It is laid down by Coke, 1 Institute, 316, that " a woman shall not be endowed by a seisin for an instant." This Court, in the case of Tevis v. Steele, 4 Monroe, 340, considering this doctrine with great propriety, in our opinion, lay more stress upon the nature of the interest than upon the. duration of the seisin. Looking to the true nature of the interests of the respective parties in the present case, under all the circumstances, it seems to be in conformity to the principles of equity, and the adjudged cases, to regard the beneficial seisin, which once ex- isted in Glenn, as avoided by his executory contract with Smith, and the estate invested into a trust, of which Glenn's wife, now Mrs. Stevens, cannot be endowed ; but in which Smith's wife, imder the statute, might claim dower. Had Mrs. Stevens been the wife of Glenn at any time, when he IN REALTY. 307 was beneficially seized, the law and justice of the case would have been for her. As these facts are, the decree is affirmed with costs. The TvidoTi? has do'wer in fees-simple, fees-tail, in limitations, and in estates upoq condition. House v. Jackson, Court of Appeals, New York, 1872. 50 N. Y. 161. Peckham, J. The statute declaratSry of the common law enacts that a widow shall be endowed of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage : 1 R. S. 740, § 1. It is not necessary that the husband should have been seized of a fee simple absolute, to enable the wife to have dower. If he was seized of an estate in tail male, or of the heirs of his body, she shall have dower : Lit., § 53, 40, a ; Com. Dig., title Dower, A. 6. " Thus, generally, in every case where the issue which the husband may have by his wife by possibility may inherit, his wife shall be endowed :" Com. Dig., title Dower, A. 6 ; Park on Dow. 79 ; Perk., § 301 ; Lit., § 52. So, where the husband is seized of a base or conditional fee, or of a fee with a determinable quality attached to it, she has dower. The dower will attach subject only, when the determinable quality arisen from defect of title, to be defeated by the avoid- ance of the estate of the husband : Park on Dow. 49 ; Ib.,37. So, if the husband have a defeasible estate in fee tail, his wife shall be endowed till his estate be defeated : Com. Dig. Dower, A. 6, and cases cited. So, her dower terminates, if the conditional or base fee be ended, and the grantor enter for condition broken : Beardslee v. Beardslee, 5 Barb. 324. ILLUSTRATIVE CASES " The seisin must be of an estate of inheritance, conferring the right to the immediate freehold, as the result of one entire limitation, or several consolidated limitations :" Park, 47. Seisin of a vested remainder is not sufficient to give dower. So plain a point is decided in this Court : Durando v. Durando, 23 N. Y. 331. I see no objection to the merger of this life estate of John Jackson, the father, in the vested remainder of his son, the husband of Mary L. Jackson, under the decision of Moore v. Littel, 41 N. Y. 66. This is a part of the same estate there adjudged. If the son should die in the lifetime of the father, I think the better opinion is that the estates divide again, and the widow is then not entitled to dower. Moore v. Littel holds the estate of the son, prior to the death of the father, to be a vested remainder ; the son was also seized in fact and in law of his father's life estate, and then became seized of the inheritance, subject to being defeated by his own death, prior to the decease of his father. In such case I think the wife has dower, subject to being defeated by the same means. The plaintiff claims that the sale of the son's life estate upon execution cut off his title. It is a settled rule of the common law, laid down in the elementary books, that after dower has once attached, it can- not be extinguished or suspended by any act of the husband alone, in the nature of alienage or charge : Park, 191. The rule is adopted in much broader language in our statute : 1 R. S. 742, § 16. At common law there might have been an intermediate estate for years and yet the wife had dower — as estates for years were not highly regarded at common law. ,But cessit executio during the term : Com. Dig. Dower, A. 6 ; Perk., § 336. So, if there be a mesne remainder for life, who surrenders his estate to the tenant for life (lb.), though the surrender be upon condition, for the estate is gone until the condition be broken: lb. In this case there is no intervening estate. The husband is seized of the life estate in fact and in law, and he is also seized IN REALTY. 309 of a vested remainder as adjudged, subject to be defeated of the remainder by his death prior to that of his father. This is such a seisin as prevents the alienation of the estate or its incumbrance, to the prejudice of the wife's dower. In other words, dower attaches to such an estate, subject to be defeated as above stated, and as the husband survived the father, her dower becomes absolute. The decree must be modified according to these views, with costs to her — no costs to either of the others, and the cause remitted for further pro- ceedings. Judgment modified in accordance with opinion, and afiirmed as modified. Divorce a vinculo bars dower : Whitsell v. Mills, 6 Ind. 229 ; McCraney v. McCraney, 5 la. 231. By statute in some States dower is preserved if the divorce was granted on the ground of the husband's misconduct : Gould v. Crow, 57 Mo. 200 ; Schiffer v. Pruden, 64 N. Y. 47 ; Harding v. Alden, 9 Me. 140 ; Gen. St. Minn; 1878, c. 62, ? 24 ; Holmes v. Holmes, 54 Minn. 352 (56 N. W. R. 46). , Divorce a mensa does not bar dower : Clark v. Clark, 6 Watts & S. 85 ; Gee V. Thompson, 11 La. An. 657. No dower in partnership property till partnership debts are paid : Simp- son c. Leach, 86 111. 286 ; Young v. Thrasher, 21 S. W. K. 1104 ; Gen. St. Minn. 1878, c. 62, § 30. Usual method of barring dower is by deed : Elmendorf v. Lockwood, 57 N. Y. 322. C Curtesy and DoMirer as Modified by Statute. Some States have abolished and others have greatly modified the life estates of curtesy and do'wer. In re Rausch, Supreme Court of Minnesota, 1886. 35 Minn. 291. Mitchell, J. Assuming the instrument (Exhibit A) to be in terms sufiicient, if valid, to effect such a result, the question in this case is whether a married woman can, by contract with her husband, release and relinquish to him her incipient or in- 310 ILLUSTEATIVE CASES choate interest as wife in his real estate, so as to exclude her, as widow, from dower. We use the term " dower " because al- though " dower," strictly so-called, no longer exists in this State, yet the provisions of the present statute for the widow in the real estate of her deceased husband are rather in the nature of an enlargement than an abolishment of dower, and this in- choate right, under the statute, is of the same general nature as the inchoate right of dower at common law. It was a well- established rule of the common law that a wife could not re- linquish her dower in the real estate of her husband by exe- cuting a release to him : 2 Scrib. Dower, 309. It is true that in equity deeds of separation of husband and wife, made through the agency of a trustee for the wife, would be enforced if their object was actual and immediate, and not contingent or future separation, and, if so provided in them, might ex- clude her from dower and distribution in her husband's estate : Cord, Rights Marr. Worn., § 114 a, ef seq. But, whatever may have been the rule in equity, the power of the wife, even by a deed of separation, to release to her husband her inchoate stat- utory right in his real estate is excluded in express terms by the statute, which declares that " no contract between a hus- band and wife, the one with the other, relative to the real estate of either, or any interest therein, shall be valid :" Gen. St. 1878, c. 69, § 4. The inchoate interest of the wife in the real estate of the husband, while it is not an estate, or even a vested in- terest, yet is a valuable, although contingent, interest in real estate, and a release of it is " a contract relative to an interest therein," within the meaning of the statute. As the husband died testate as to all his property, his widow would not, in any event, be entitled to any allowance or dis- tributive share out of his personal property : Gen. St. 1878, c. 51, § 1 ; Johnson v. Johnson, 32 Minn. 513 (21 N. W. Rep. 725). Hence it becomes unnecessary to consider whether this release would have excluded respondent from distribution had her husband died intestate. The judgment of the Court below must therefore be aflBrmed wherein it adjudges respondent entitled to an assignment of IN REALTY. 311 her statutory rights in the real estate, but reversed wherein it adjudges her entitled to the statutory allowance out of the per- sonal property of her husband. Ordered accordingly. But see Scott v. Wells, 56 N. W. Eep. 828. Dower may be regulated by statute : Morrison v. Rice, 35 Minn. 436. The inchoate interests of curtesy and dower cannot be divested by a sale on execution issued against the hus- band's lands : Dayton v. Corser, 51 Minn. 406. " Dower " construed : Holmes V. Holmes, 54 Minn. 352. Homestead. A legal life estate is created in the homestead by statute in some States in behalf of the husband or wife, as the case may be. In Min- nesota it arises as follo'ws : " If there be a child or the issue of any deceased child living, and a surviving husband or 'wife (the home- stead shall descend), to such husband or wife during the term of his or her natural life, remainder to the child or children and the issue of any deceased child by right of representation " : Minn. Probate Code (1889), § 63. This life estate vests at the instant of the death of the husband or ■wife. Wilson v. Proctor, Supreme Court of Minnesota, 1881. 28 Minn. 13. Mitchell, J. This cause comes up on appeal from an order of the District Court, reversing, in part, an order of the Pro- bate Court, and allowing the two items in the administrator's, account hereinafter referred to. From this order, allowing these items, the heirs appeal to this Court. The facts were all stipulated upon the trial in the Court be- low, and are as follows : " That the house occupied by Mary Wilson, the widow of the deceased, was the homestead of the said deceased at the time of his death ; that the same, and the lots pertaining thereto, were occupied by his said widow con- tinuously, from and after his said decease, as such homestead, by virtue of being the widow of deceased, without objection 312 ILLUSTRATIVE CASES on the part of any one ; that the real estate pertaining to said house consisted of three lots of a certain block in the city of Stillwater, lying side by side, each lot being 50x150 feet, and forming a tract one hundred and fifty feet square ; that said house is situate in part upon each of these lots ; that no par- ticular part of said lots had been selected by said widow or set apart by the Probate Court as belonging or appertaining to said house, and as comprising with it said homestead. . . . The item of $30.55 was paid by the administrator for repairs of fence around said lots, made by him after the death of the deceased; that the item of $266.64 was for three years' taxes upon said house and lots, accruing after the death of the de- ceased." These items of $30.55 and $266.64 are those from the allowance of which this appeal is taken. From this state of facts it is clear that the widow had a homestead right in these premises, to the extent of the house- and a quantity of ground on which the same was situate, not exceeding in amount " one lot," the premises being situated in the laid-out or platted part of a city containing over five thou- sand inhabitants. The duty of paying taxes and making- repairs upon this homestead, during the continuance of the homestead right, devolved upon the widow, and not upon the estate of the decedent. This duty the law always imposes upon the person who has such present interest or estate in real property as entitles him to enjoy the use and occupation, and to receive the rents and profits of the estate. The case of a tenant of an estate for life is an illustration of the application of this doctrine almost too familiar to require the citation of authorities: 1 Washburn, Real Property, 97 ; Hilliard on Tax- ation, c. 6, § 24 a. But it was argued that, inasmuch as the widow had made no informal selection of a homestead, and no decree had been made by the Probate Court assigning a homestead to her, therefore she had no vested right or estate to or in any part of this tract, and that, until this was done, the whole remained assets of the estate in the hands of the admin- istrator ; therefore, it was his duty to pay taxes upon the whole property, and to keep it in repair. IN REALTY. 313 We think this is a mistaken view of the nature of the home- stead right, and of the method of dedicating land as a home- stead under our laws. We do not think that the homestead right of the widow or family of a decedent is dependent or contingent upon any formal act of selection on their part, or upon any order or decree of any Court assigning it to them. Whatever may be the law in some States, under different stat- utes, it seems to us that under our statute the method of dedi- cating land as a homestead is by visible occupancy and use : Barton v. Drake, 21 Minn. 299 ; Ferguson v. Kumler, 25 Minn. 183; Thompson on Homesteads and Exemptions, § 231. The date of the occupancy of the land is the date of homestead right. The purpose of a selection by the widow or family, or of an order of the Probate Court setting apart a homestead to them, is not to vest title in her or them, for that is already done by law. The only object of such selection or order is to determine whether there is any excess which may be the sub- ject of administration, and to ascertain the exact boundaries or limits of such excess. The homestead right of a widow or minor children is no new right or estate. They have no gene- ral right of selection out of the whole body of the decedent's property. Their right is simply a transmission to them, or continuance in them, of the same right previously vested in the decedent and his family at the time of his death. The right vested in the widow at the instant of the death of her husband, without any act of selection on her part, or order of the Court, although one or both of these might be necessarj'^ to determine the precise boundaries of the homestead, where it was a part of a tract larger than the quantity allowed bj'^ law. The homestead, therefore, never becomes, even for an instant, a part of the estate of a decedent for the purposes of administration, so long as the homestead right continues. In the present case there was vested in the widow, by virtue of the visible occupancy and use thereof by herself and hus- band before his death, and by herself after his death, a home- stead right or estate in this tract of land to the amount of one Jot, upon which it was her duty, and not that of the estate, to 314 ILLUSTRATIVE CASES pay taxes and make repairs. True, she was occupying, under the claim of a homestead right, more land than she was by law entitled to; for it appears that this property was situ- ated within the laid-out or platted portion of the city of Stillwater, which, it was admitted upon the argument, had more than five thousand inliabitants. The homestead in such case is limited to a quantity of land not exceeding in amount one " lot." The word " lot," as used in our statute, evidently is not to be understood as synonymous with the words " tract " or " parcel," but in the sense of a city, town, or village lot, according to the survey and plat of the city, town, or village in which the property is situated. This construction of the statute is not free from difficulty, but it is in accordance with the manifest intention of the Legislature, and seems to be the only construction that is prac- ticable or reasonable. But in such case it was the duty of the administrator, if he desired to assert his right to the remainder of the tract for the purposes of administration, to call on the widow to designate, by selection, the boundaries of her home- stead, or take some other steps to have the boundaries of her homestead determined and fixed, so as to ascertain what part of the tract he was entitled to the possession and control of as administrator. But, instead of so doing, he allows the widow to enjoy the use of the whole tract, and then applies the per- sonal assets in his hands to make repairs and pay taxes upon the entire property. The manifest injustice of this to the next of kin, to whom the personal estate of the decedent belonged, points pretty conclusively to the conclusion that the course adopted by the administrator in this case was not the correct one. Whether, under the circumstances, the administrator might not, with the consent of the next of kin or creditors, or under the direction of the Probate Court, be authorized to make repairs or pay taxes upon the homestead, when such becomes necessary, owing to the default of the occupants to save the reversionary interest of the estate from waste or forfeiture, we do not now determine. No such supposed state of facts is IN REALTY. 315 made to appear in this case. Neither is it necessary to con- sider whether, in the present case, the administrator might not, under a proper showing, be entitled to be allowed a cer- tain portion of the moneys thus expended by him, for the reason that the facts, as stipulated, furnish no basis for any s-uch apportionment. We are, therefore, of opinion that these two items contained in the administrator's account ought not to have been allowed. Ordered, therefore, that the cause be remanded to the District Court, with instructions to modify its order or judgment in accordance with this opinion. 3 Incidents op All Life Estates. a Estovers. Every tenant for life, or his personal representative, is entitled to reasonable estovers, such as 'ovood from the land for fuel, fencing, agricultural erections and other necessary improvements. White v. Cutler, Supreme Judicial Court of Massachusetts, 1835. 17 Pick. 248. Shaw, C. J., delivered the opinion of the Court. The ques- tion in the present case, is whether a tenant in dower or her lessee has a right to cut wood upon the dower estate, for sale, to be removed and not used or consumed upon, or in connec- tion with the estate. We think that a reference to a few principles, which have been adopted and acted upon in decided cases, in our own State, will lead to a satisfactory decision of this question. It was in effect decided in Sargent v. Towne, IT) Mass. R. 307, that a tenant for life has no right to cut growing trees, that such cutting would be waste, and that wild and unculti- 316 ILLUSTRATIVE CASES vated land cannot be deemed estate yielding annual rents or profits. In the case of Conner v. Shepherd, 15 Mass. R. 164, it was decided that in this Commonwealth a widow is not entitled to dower in wild and uncultivated lands, held separately and distinct from houses, cultivated lands and other improved estate, first, because they yield no annual profit, and secondly, because the widow could not make the only beneficial use of them, of which they are capable, without committing waste and forfeiting the estate. These reasons apply as well to the case of a wood lot situated in the midst of a cultivated country; as to forest lands in their original state. But the Chief Justice, in delivering the opinion of the Court in this case, takes care in terms to limit its operation to the case of wood- lands not used or connected with a cultivated farm, or other improved estate. In fhe case of Webb v. Townsend, 1 Pick. 21, the general rule, that a widow is not dowable of wild lands, is confirmed, and it was placed more distinctly upon the ground that as a widow is to be endowed, not according to the value of the land, but according to the value of the annual rents and profits, and as uncultivated lands yield no rents and profits, dower therein would be nugatory and of no value. But in a subsequent case. White u Willis, 7 Pick. 143, it was held that a lot of wild land, which had been used hy the husband in connection with his house and cultivated land, to supply wood for buildings, fences, and fuel, might be properly assigned to a widow as part of her dower, to enable her to take fuel and timber for repairs. It was also suggested, that a widow would have no right to take firebote, etc., from lands of her deceased husband, unless the land, from which it is taken, were included in those assigned as her dower. A distinction was urged in the argument, between wood- lands, kept by the owners to raise wood for sale, for purposes of profit, and wild lands, and that it would be hard to deprive a widow of her dower in such lands, of which the raising of wood for sale may be considered as the most profitable use. IN EEALTY. 317 But we think the answer results from the legal principles on which the foregoing cases are settled. Such estate yields no annual profit. The owner may make a profit of the land, but it is in the exercise of the rights of a tenent in fee, which a tenant for life, by law, does not enjoy, that of felling grow- ing trees. The result we think is that a widow is not to, be endowed of a lot of growing wood and timber, although kept purposely to raise wood and timber as objects of profit, pro- Tided that it is not assigned to her as part of her dower, in connection with buildings or cultivated lands. But when woodland is so connected and used, it may be included in the assignment of dower, to be used and enjoyed by the widow, or those holding under her. But the right of the widow thus acquired is that of reason- able estovers, under which may be included firebote or the necessary fuel for the supply of the dower estate. But this right of reasonable estovers is confined strictly to wood and timber sufficient for the supply of the estate, and it must be actually applied, used and consumed upon the estate, or for purposes connected with its proper use, occupation, and en- joyment. It has been recently decided that cutting growing trees, to be exchanged for other wood to be used as fuel or timber on the estate, was not within the right of a tenant in dower, but in law was deemed waste : Padelford v. Padel- ford, 7 Pick. 152. A fortiori, the cutting of wood for sale, the proceeds oi which are not to be used or appropriated upon the estate or iu connection with it, is not admissible, under the limited right or taking reasonable estovers. If the plaintiff", as lessee of the tenant in dower, had no right to cut the growing wood, the defendant, as having the next estate of inheritance, had a right to take the wood when severed : Blaker v. Anscombe, 4 Bos. & Pul. 25. Plaintiff" non-suit. Webster v. Webster, 33 N. H. 18. The life-tenant cannot commit waste eimply because his necessities require more than the regular rents and profits of the land : Eobertson v. Meadors, 73 Ind. 43. 318 ILLUSTRATIVE CASES b Emblements. Such tenant is entitled to the growing crops which he has planted, if his life estate terminates before the harvest and after sowing, un- expectedly and without his fault ; but it extends only to functus indus- tfiales, and extends to sub-leases. Reiff V. Reiff, Supreme Court of Pennsylvania, 1870. 64 Pa. St. 134. Read, J. The plaintiffs in error were the lessees of a farm of 152 acres, from their mother, a widow, who had a life estate in it under the will of her husband, their father. They were annual lessees from the 1st April, 1866, 1867, and 1868, the widow dying on the 15th June, 1868. At the time of her death, 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 deceased owner of the life estate. The vegetable chattels called emblements are the corn and other growth of the earth which are produced annually, not spontaneously but by labor and industry and thence are called fructus industriales. The growing crop of grass, even if grown from seed, and though ready to be cut for hay, cannot be taken as emble- ments : because as it is said the improvement is not distin- guishable from what is natural product, although it may be increased by cultivation : 1 Williams on Executors, 670, 672. The learnfed Judge in the Court below is a practical farmer, thoroughly acquainted with the established usages of our State, and we have no hesitation in agreeing with him that this crop of hay was not emblements, and belonged to the executors of the testator. Judgment affirmed. Stewart v. Doughty, 9 Johns. 108 ; Fobes v. Shattuck, 22 Barb. 568 ; Ches- ley V. Welch, 37 Maine, 106. The tenant has a right to enter and take his crops : Forsythe v. Price, 8 Watts, 282. IN REALTY. 31& Duties of Life-Tenants. Interest. The life-tenant is to keep down interest on incumbrances, but is not chargeable with the principal. Thomas v. Thomas, Court of Chancerj^ New Jersey, 1866. 17 N. J. Eq. 356. Beasley, C. J. The only controversy in this case is that which has arisen between the defendants, and it is one in which the complainant has no interest. It appears upon the answers wnich have been filed, and, although it is thus pre- sented in a form somewhat irregular, an opinion will be ex- pressed on the points which have been argued, as by this course the necessity of further litigation may be avoided. The^ object of the suit is to foreclose a mortgage. Luther S. Thomas, who was the mortgagor, by his will, devised the mort- gaged premises to the defendant, Lemuel Thomas, on condition that he would permit the other defendant, William H. Stan- ford, to carry on the business of a druggist, in a certain part of the premises then occupied by him, so long as he might de- sire to use it for that purpose, at an annual rent, not to ex- ceed $100, it being expressly provided that this privilege should be personal, and should not extend to his representatives or assigns. The testator then bequeathed to Mr. Stanford the stock and fixtures in the drug store above mentioned, and also all money standing to his credit in the Mechanics' Bank, at Newark, on condition that he should pay all the testator's debts, for which he was liable on account of said stock in the business of said store. By subsequent clauses, divers specific legacies are given to various persons, and the residue of the estate to one of the brothers of the testator. The questions discussed before me relate to the proper mode of marshaling the assets of the estate according to equitable rules, in view of these testamentary dispositions. 320 ILLUSTRATIVE CASES It was insisted by the counsel of Lemuel Thomas, who is the devisee of the fee in the mortgaged premises, that the residu- ary estate, in the first place, must be applied in payment of the mortgage debt ; and that, as that will not be sufficient, the specific legatees must contribute pro rata with the mortgaged property to discharge the residue of such debt. The argument urged in support of this position was that the bond and mort- gage in question had been given by the testator himself, and that consequently this represented a debt due from him by specialty , and that it was the well-settled rule that in such cases, upon exhaustion of the residuary fund and the pecuni- ary legacies, the specific legacies and the land devised, when there is neither land charged with debts nor laud descended, must bear the burden in the ratio of their respective values. In support of this proposition various authorities were cited which fully sustain it. But the rule thus contended for and established does not apply in the present instance. There is a circumstance in this case which did not exist in those recorded in the authorities referred to. They belonged to the class of cases in which the debt secured by specialty had not been imposed by the testa- tor himself on any part of his estate, and under such conditions undoubtedly the rule above propounded obtains. But when there is a specific lien on the real estate devised, as in the case now before me, a different principle .of distribution is intro- duced. If this debt of the testator existed in the shape of a bond, it would have been no lien on any part of the estate ; but if the holder of such specialty had proceeded to enforce his claim, after the exhaustion of the personal assets, which would, of course, be the primary fund, and had proceeded to raise the residue out of the real estate, in such case a clear right in equity would have supervened in the devisee to call upon the specific legatees for a ratable contribution. In such an attitude of rival interests, according to the estab- lished gradation of liability, the appropriation would be, first, the residuary fund ; next, general pecuniary legacies ; and then, pari passu, specific legacies and devised lands. This was IN REALTY. 321 the order of contribution recognized and acted upon in the case, of Shreve v. Shreve, decided in the Court of Appeals of this, State, in the Term of Jun^y 1864. But the distinction is be-' tweeu the mere general right of the holder of a specialty debt to levy it at his pleasure on the real or personal estate, and the lien growing out of such debt, imposed by the testator himself upon the land. In such event, the doctrine has been long «stablished that after the application of the general residue of the estate, the land thus incumbered must solely bear the bur- den. By force of such a testamentary disposition the devisee of the incumbered land cannot disappoint either the specific •or general legatees. The early decisions in which this rule is propounded and applied are those of Lutkins v. Leigh, cases tempore Talbot, 53, and Forrester v. Leigh, Ambler, 171. And in more modern times the rule has often been received as of unquestionable ob- ligation, both by text writers and in judicial opinions : 2 Roper on Leg. 957 ; 2 Williams on Ex'rs, 1453 ; 2 Jarman on "Wills, 428, and the cases cited. In the case in hand, therefore, in my opinion, that part of the estate of th« testator which. is comprehended in the residu- ary clause of the will, must be first taken and applied to the payment of the debts, including the claim of the complainant, and the residue of such claim must be paid out of the mort- gaged property. For the payment of this debt, the specific legatees cannot be called upon to contribute. The counsel of the defendant, Lemuel Thomas, further in- sisted on the argument that the interest of Mr. Stanford in the mortgaged land must be held liable, proportionately, for pay- ment of the complainant's demand. There appears to be no room for doubt on this point. The will gives this defendant the right to enjoy a part of the mortgaged property, paying a rent, the maximum of which is designated, as long as he may desire to use it as a drug store. This gives Mr. Stanford a freehold interest in the premises ; his estate is deemed, in law, one for life : 1 Washb. on Real Prop. 88. One of the incidents of such an estate is that the 21 322 ILLUSTBATIVE CASES tenant must keep down the interest of the incumbrances on the property enjoyed by him, but he is not forced, as between Jiimself and the reversioner or remainderman, to pay off the principal of any moneys charged upon it. And it is also equally clear that if he is obliged to take up, or his estate is taken to pay off the principal of such an incumbrance, he will become a creditor of the estate for the amount so paid, deducting the value of the interest he would have to pay dur- ing his life. See the rule as stated by Judge Storj'^, 1 Eq. Jur., §487. But this and the other question discussed are aside from the purpose of this suit. The proper parties are not before the Court to authorize the marshaling of the assets. The only decree, therefore, which can be rendered, is the ordinary one for the foreclosure and sale of the mortgaged property ; and I shall consequently advise the Chancellor to make that decree. The doweress is chargeable with only one-third of the interest : Swaine v. Ferine, 5 Johns. Ch. 482. Tazes. The life-tenant must pay the taxes. Varxey v. Stevens, Supreme Judicial Court of Maine, 1843. 22 Me. 331. Shepkey, J. The last will of Jonathan Varuey, deceased, contains this clause : " My will is that my said wife Dorothv Varney shall have the whole of my estate, real and personal, during her natural life." The general rule is that a devise of lands without words of inheritance gives only an estate for life. If the devise be accompanied by a personal charge upon the devisee, it is indicative of an intention to give a fee. And it has been decided that a devise of uncultivated lands, without Words of inheritance, gives a fee. In this case there was no IN KEALTY. 323 personal charge imposed upon the devisee, and there was an express limitation of the devise by the words " during h«r natural life." And the introductory words, " as touching my worldly estate," "I give, demise, and dispose of the same in the following manner and form," cannot be considered as ex- hibiting an intention to give a fee in contradiction of the ex- press limitation : Crutchfield v. Pearce, 1 Price, 353. The tenant offered certain deeds, showing a sale of the premises by a collector of taxes, and a release of that title to himself. If it had been admitted, he would have taken under such a release according to his title ; and the reversioners ac- cording to theirs. " A release of a right, made to a particular tenant for life, or in tail, shall aid and benefit him or them in the remainder:" Co. Lit., § 453 and 267, b. It was moreover the duty of the tenant for life to cause all taxes assessed upon the estate during his tenancy to be paid ; and by neglecting it, and thereby subjecting the estate to a sale, he committed a wrong against the reversioners. And when he received a release of the title, if any were acquired under that sale, he would be considered as intending to dis- charge his duty by relieving the estate from that incumbrance. To neglect to pay the taxes for the purpose of causing a sale of the estate to enable him to destroy the rights of the rever- sioners, would have been to commit a fraud upon their rights. This is not to be presumed. On the contrary he must be pre- sumed to have intended by procuring that release to extin- ' guish the title under that sale. Having a legal right to the possession of the estate during the life of his wife, he is to be considered as occupying accord- ing to his legal rights, and not as a wrongdoer. " His posses- sion is to be construed according to his rights :" Liscomb v. Root, 8 Pick. 376. He cannot therefore establish any title as a disseisor against the reversioner ; and for that purpose only could the deeds offered have been received as evidence. To have established a title under them superior to that of the reversioner's, it would have been necessary to make some proof of the preliminary proceedings so far at least, as they were 324 ILLUSTRATIVE CASES to be derived from recorded and documentary evidence, even, after such a lapse of time: Blossom v. Cannon, 14 Mass. R. 177. As the tenant is considered as having during the life of his wife, occupied the estate according to his legal title, his pos- session could not be adverse to the title of the reversioners ; and he cannot be entitled to claim " by virtue of a possession and improvement " under the statute, while he was thus occu- pying under a subsisting and valid title. Judgment on the default. Eeybum v. Wallace, 93 Mo. 326. But extraordinary assessments are to be borne ratably between the life-tenant and the remainderman : Peck v. Sher- wood, 56 N. Y. 615. The tenant for life and the remainderman each pay insurance for their respective interests : Kearney v. Kearney, 17 N. J. Eq. 59 ; Graham v. Roberts, 8 Ired. Eq. 99 ; Brough v. Higgins, 2 Gratt. 408. Waste. - The life-tenant must not commit waste. Keeler v. Eastman, Supreme Court of Vermont, 1839. 11 Vt. 293. Bennett, Chancellor. The great subject of complaint seems to be the destruction of the sugar orchard, which it is alleged has been cut down and destroyed since the orator became pos- sessed of the reversionary interest, in February, 1832. It is unnecessary to go into the particulars of the evidence, which is quite voluminous, and is evidently somewhat contradictory ; but suffice it to say that it seems to be pretty well established from the current of the testimony, that the principal part of the chopping in the sugar orchard was prior to the winter of 1832, and this too by Seba Eastman and Charles Eastman, while Seba had the reversionary interest. The whole evidence taken together satisfies the Court that the farm, on the whole, has been managed by the tenant for life in a prudent and husbandlike manner ; and that there have been no acts of IN REALTY. 325 .wantonness on the part of the defendant, or disregard to the ultimate value of the reversionary interest. Indeed, the value of the property seems to have been enhanced by the better- ments and good husbandry of the defendant. We are not aware of any decisions in the Courts of this State, laying down any precise rules establishing what acts shall constitute waste ; and, indeed, it is difficult there should be any. The general principle is that the law considers eveiything to be waste which does a permanent injury to the inheritance : Coke Litt. 53, 54 ; Jacob's Law Die. 6 Vol. 393, Tit. Waste; 6 Com. Dig. Tit. Waste. By the principles of the ancient common law, many acts were held to constitute waste — such as the conversion of wood, meadow, or pasture into arable land, and of woodland into meadow or pasture land — to which we might not, at the pres- ent day, be disposed to give that effect. These principles must have been introduced when agriculture was little understood, and they are not founded in reason, and many of them are inconsistent with the most important improvements in the cul- tivation of the soil. In England that species of wood which is designated as timber shall not be cut, because the destruction of it is considered an injury done to the inheritance; and, therefore, waste. From the different state of many parts of our country a different rule should attain in our Courts ; and timber may and must, in some cases, to a certain extent, be cut down, but not so as to cause damage to the inheritance. To what extent a tenant for life can be justified in cutting wood, before he shall be guilty of waste, must depend upon a sound discre- tion applied to the particular case. It is not in this State waste, , to cut down wood or timber, so as to fit the land for cultivation, provided this would not damage the inheritance, and would be according to the rules of good husbandry, taking into view the location and situation of the whole farm. So, to remove the dead and decaying trees, whether for the purpose of clearing the land, or giving the green timber a better opportunity to come to maturity, is not waste. We 'are satisfied that, when the wood or timber is cut with this intent, and is according to 326 ILLUSTRATIVE CASES a judicious course of husbandry, the tenant is not guilt;/ of waste, though the wood or timber so cut may have been sold, or consumed off of the farm. This farm, it is to be remembered, is comparatively in a state of nature, and the town in which it is situated comparatively new ; and what might constitute waste, as applied to one farm in one place, might not, when applied to another, in a different place. Though the evidence is somewhat contradictory, we are not satisfied that the defendant has gone beyond his rights. The orator's bill is therefore dismissed. But inasmuch as the defendant has made declarations claiming the right to cut off all the wood and timber from the farm if he chose to do it, and threatened the doing of it, the bill was not brought without some apparent cause, and the defendant in this particular is not without fault ; it is, therefore, dismissed without costs. Sackett v. Sackett, 8 Pick. 309. IN REALTY. 327 II ESTATES LESS THAN FREEHOLD. A. ESTATES FOR YEARS. An estate for years is an interest in lands or tenements created by contract, whereby the tenant is to have possession of the premises for a fixed and definite period. An estate for years is an interest in land, but this interest is treated for many purposes as a chattel. Brewster v. Hill, Supreme Court of New Hampshire, 1818. 1 N. H. 350. John Wheelock owned certain lands in 1776, and leased them to 0. for the term of 985 years. 0. entered the lands and died, leaving a will wherein ha bequeathed all his " personal^state " to A., who conveyed his interest to the plaintiff. ' Plaintiff now brings ejectment to recover possession of the prem- ises, and the question is : Did the term pass under the will as " personal «state " ? Woodbury, J., delivered the opinion of the Court. In this case the sole question is, whether the term men- tioned in the plaintiff's writ would pass under a devise of ■" personal estate." The boundaries between real and personal estate are, in certain instances, scarcely distinguishable ; and indeed some species of property exist, which have been deemed real or personal, according to the character of the claimants, and the purpose for which they claim : Vide autho. cited post Mills v. Pierce, Rock. February, 1819. But we are not aware of any established principles or prece- dents, which would make leases for years anything more than 328 ILLUSTRATIVE CASES "personal estate." The law in relation to them was settled before the land itself could be conveyed. They were then for short terms, and with an exclusive view to aid great land- holders in the cultivation of the soil. Hence the lease passed to the lessee no interest in the premises ; but was a mere con- tract, for a breach of which a recovery in damages against the- lessor was the only remedy. As the custom altered and leases for longer terms became- common, the remedy of the lessee was by statute extended,^ and he was enabled to protect himself in the occupation of the land itself. Yet all the incidents of a mere chattel were still attached to the term — whether its continuance was for one or for a' hun- dred years. Livery of seisin was not necessary to pass the interest as it was to pass real estate. The lessee could not sustain a real action ; but when ousted was obliged, as this plaintiff has been in this instance, to resort to trespass in eject- ment. Nor could a real action be maintained against him ; because he was not the owner of the realty and could plead non tenure. His interest could be devised, though at common law no real estate would pass by a will. It has always been held, too, that after the decease of the lessee, the term be- longed to his executors or administrators, and not to his heirs. Under statutes creating a lien upon the real estate of a debtor from the time of judgment rendered, leases for years have been decided not to be embraced. In wills, too, as in the present case, they have always passed under the expression " goods and chattels," and in some instances under that of "goods" alone. Nor is it necessary, that leases should be acknowledged and attested ; as deeds must be that convey " lands and tenements :" Stat. 191. But we are well aware of a common impression that long terms are " to all imaginable purposes a fee-simple estate ;" that a power " to sell land " has been held to be duly executed by leasing it for nine hundred and ninety-nine years ; that our statute of February 10, 1791, requires all leases for more than seven years to be recorded — and that according to Denn v. IN REALTY. ' 329 Barnard an adverse possession by the lessee, under a long term, might in time enable him to claim a fee. On principle, however, it is impossible to define at what number of years a lease shall become real estate. Its char- acter cannot be changed by the length of the term. Nor does our statute, or the decisions last cited, appear upon examina- tion to conflict with the idea that a lease for any number of years, is not, as to the lessee's heirs, anything more than " personal estate." Let'judgment be entered on the verdict. To same point. MURDOCK V. RaTCLIPP, Supreme Court of Ohio, 1835. 7 Ohio, 119. Lane, Judge, pronounced the opinion of the Court. The plaintiffs claiming to be the heirs of Andrew Murdock, inherit- ing his realty, pretend to be entitled, in that character, to an account and distribution of the personal estate; and while they ask the account against one defendant they pray to be quieted in their possession against the others. The bill is ob- jectionable for its multifariousness, as it attempts to combine in the same suit claims against different classes of defendants between whom subsists no privity. But passing over this objection their rights to the personal property have no existence upon this state of facts. The plaintiffs are the brothers and sisters of the decedent, and in the absence of legitimate issue inherit his real estate ; but as he died, without children, the law. Statutes of Ohio, c. 29, 236, s. 28, gives the whole of the personalty to the wife. What- ever then be the deficiencies of the administrator the plain- tiffs have no interest in calling him to an account. Their right to the college lot depends on the character of the estate which Andrew Murdock held in it; if it be not 330 ILLUSTRATIVE CASES inheritable their possession ought not to be protected. It was a lease upon an annual rent for ninety-nine years renewable forever. We know that such interests are usually treated as fees simple by the holders ; that, in case of death, they are ordinarily transmitted to the heirs as realty without being accounted for by the administrator; that the law requires them to be appraised as real estate in sales under execution, St. c. 29, 103, s. 10 ; that such interests are liable to dower, St. 29, 250, s. 1 ; and perhaps it might be expedient for the Legislature to make them inheritable ; but no proposition has been better settled, from the earliest days of the common law, than that a lease, of whatever duration, is but a chattel. In the absence of legislation it only remains for us to follow the current of authorities : Bisbee v. Hall, 3 Ohio R. 465 ; Butler V. Cowles, 4 lb. 207. The only statute we find upon this subject is contained in the " Act to establish the Ohio University :" Statute of Ohio, c. 6, 188, s. 10, which declares that the tenants or lessees shall enjoy and exercise all the rights and privileges which " they would be entitled to enjoy did they hold their lands in fee simple ;" a provision designed, in our opinion, to secure to the tenants civil and political privileges ; not to change the quality of their estates. Counsel have argued this case upon another hypothesis: taking the lease to be a chattel, as the testator gave it to his wife for her life only, what remains after her life is not dis- posed of by will, but reverts to the testator to be distributed by his representatives. This doctrine when applied to chat- tels real, seems countenanced hf the books : 6 Cruise, 287 ; Forth V. Chapman, 1 Peere Williams, 666 ; 1 Salk. 278. But our view of the case renders a decision unnecessary ; if the estate of the widow was for life only, and a reversion substi- tuted in the executors of the testator, subject to distribution, she was the executor and the distributee, and entitled to such reversion, and her rights became absolute, since the estate for life and the reversion met in the same person. Bill dismissed. IN REALTY. 331 1 Tesm. To create an estate for years the beginning and ending of the term must be certain or capable of being reduced to certainty. GooDRiGHT V. Richardson, Court of King's Bench, 1789. 3 T. R. 462. , A lease was made in 1785 for three, six, or nine years, determinable in 1788, 1791, or 1794, and it was held to be a lease for nine years, terminable in three Or six years by either of the parties by giving reasonable notice to quit. J Lord Kenyon, C. J. There is no doubt of what Lord Mansfield's opinion would have been in Ferguson -u. Cornish, as to the validity of the lease beyond the first seven years. In these cases the intention of the parties ought to prevail, if it be not contrary to law. It is true that there must be a cer- tainty in the lease as to the commencement and duration of the term, but that certainty need not be ascertained at the time, for if in the fluxion of time a day will arrive which will make it certain that is sufficient. As if a lease be granted for twenty-one years after three lives in being, though it is uncertain at first when that term will commence, because those lives are in being, yet when they die it is reduced to a cer- tainty, and id cerium est quod cerium reddi potest, and such terms are frequently created for rating portions for younger children. Now in this case it is impossible to form any doubt respecting the intention of these parties. It was intended that this lease should take effect for three years, at all events, and that it should be in the election of either of the parties to put an end to it at that time, or at the end of six years, giv- ing reasonable notice to the other. It is like a lease for a year, and so from year to year ; where, if- the lessee wish to determine it at the end of the year he must give reasonable notice to the other party. And though here either of the parties might have determined the lease at the expiration of ihe first three years, yet when the time elapsed, at which 332 ILLUSTRATIVE CASES notice ought to have been given for that purpose, the lease could not be determined till the end of the next three years. Consequently the lessor of the plaintiff is not entitled to recover. AsHHURST, J. All that is required is either that the term should be certain in itself or reducible to a certainty. Now that is the case here, for it is for three, six, or nine years, as the case may happen, the parties having agreed that it should be determinable in the years 1788, 1791, 1794. It is therefore a lease for three years certain, or for six or nine years, unless the parties determine it sooner. BuLLER, J. This is a lease for nine years, determinable by either of the parties at the end of the first three or six years,* for it is stated in the case that it is determinable in the years 1788, 1791, 1794. But if it were not determined at either of those periods the party first giving reasonable notice it was to continue for the nine years. Postea to the defendant. Murray v. Cherkington, Supreme Judicial Court of Massachusetts, 1868. 99 Mass. 229. The terms of the lease are contained in the following letter : " I hereby let you the whole of my house in Mercer Street, in South Bos- ton, when said house is suitable to be occupied by you, for a rent of four hundred and eighty dollars per annum to me, paid in monthly payments, or otherwise pro rath, and will give you the privilege of reletting to a good party such a portion of it as you may wish to ; but it is to be understood that, in case after two years subsequent to your moving into said house I should wish to live in the house myself, I can do so, and that then you may still re- tain, if you wish to do so, the second floor and front chamber and bedroom adjoining, for such a term as may be agreeable to us both." Foster, J. 1. Upon very familiar principles, parol evidence was inadmissible to g,id the construction of the letter from the plaintiff to the defendant, which was claimed to create a lease for years. IN REALTY. 333 2. We are also of opinion that the ruling of the Presiding Judge was correct, that the terms of this letter did not create an estate for years — namely, a lease for two years — between the parties. The duration of a lease for years must be cer- tain ; this includes both its commencement and termination. It may be conceded that a lease for years may begin " when a house is suitable to be occupied," according to the maxim, Id certum est quod cerium reddi potest. But the fatal objection remains that no period of termination is fixed by this letter. A leasehold interest for an uncertain and indefinite term is an estate at will only : Shaw, C. J., in Cheever v. Pearson, 16 Pick. 271 ; Bishop of Bath's Case, 6 Co. 35 ; Bac. Ab. Lease, L. 3. It is indisputable that an entry by the lessee under this instrument would not bind him to remain for any definite period. He could terminate his tenancy in the modes pro- vided by statute. As to him, there is no term of certain dura- tion. Consequently there can be none as to the landlord. The proviso, that after two years from the commencement of the occupancy the landlord may live in the house if he wishes to do so, and that then the tenant may still retain, if he wishes, certain rooms, cannot change the construction. This clause has no tendency to show that the tenant was bound to remain during the two years. Exceptions overruled. 1 Wood, L. & T. 74 ; Horner v. Leeds, 25 N. J. L. 106 ; Lemington v. Stevens, 48 Vt. 38 ; Doe v. Needs, 2 M. & W. 129. The word " term " designates, the estate the tenant has, and is often used also to designate the duration of the interest : Batchelder v. Dean, 16 N. H. 265 ; Doe v. Dixon, 9 East, 15 ; Wright »- Cartright, 1 Burr. 282. 334 ILLUSTRATIVE CASES a Ho'V7 created. An estate for years is created by express contract, technically called a lease, and may be for one or more years or for a shorter period ; as, for months or -vreeks or days. Brown's Administrators v. Bragg, Supreme Court of Indiana, 1864. 22 Ind. 122. WoRDEN, J. On the 1st of April, 1859, Brown let to Bragg certain real estate, to be held by the latter for the term of one year from that date ; for which Bragg was to pay, as rent, the sum of $450, to be paid quarterly, at times specified in the instrument of writing creating the tenancy executed be- tween the parties. On the 1st of December, 1859, a quarter's rent being due and unpaid, Brown served on Bragg a notice to quit the premises at the expiration of ten days, unless the, rent in arrear should be paid within that time. Bragg failing to pay the rent or quit the premises, this action was brought by the representatives of the lessor to re- cover possession. The suit was brought before the expiration of the term. The Court below held, on the facts above stated, that the plaintiffs were not entitled to recover, and we think the decis- ion was in accordance with the law of the case. We suppose that, independently of any statutory provisions, the proposition that the failure to pay the rent due, did not work a forfeiture of the estate of the tenant, is too clear to re- quire the citation of any authorities in its support. In order that a failure to pay rent should work a forfeiture, it should be so expressed in the lease or agreement of the parties, which was not done in the case before us. As well might a man who sells a horse to be paid for in the future, claim to recover him back on failure of the purchaser to pay according to- his stipulation, as the lessor of real estate to recover it from his. IN REALTY. 335 tenant because of his failure to pay rent, there being no stipu- lation that such failure should work a forfeiture. But we have the following statutory provision, which is claimed by the appellants to be applicable to the case before us. " If a tenant at will, or from year to year, or for a shorter period, neglect or refuse to pay rent when due, ten days' notice to quit shall determine the lease, unless such rent shall be paid at the expiration of said ten days :" 2 G. & H., p. 359, § 4. The case before us does not come within any of the clauses of the statute above set out. It is clearly not a tenancy at will, nor for a shorter period than a year ; and it seems to be equally clear that it is not a tenancy from year to year. The Legislature, in the second section of the Act above cited, have provided what shall be deemed tenancies from year to year, viz. : " all general tenancies, in which the premises are occu- pied by the consent, either express or constructive, of the landlord." By the words " all general tenancies," we think it clear that the Legislature meant such tenancies only as were not fixed and made certain in point of duration by the agree- ment of the parties. This is apparent from several consider- ations. Where lands are demised for a definite term, no notice to quit is necessary in order to terminate the tenancy. See cases in Perk. Dig., p. 350, § 5. Yet the Legislature have provided for terminating tenancies from year to year by three months' notice to quit : Section 3. It would be an absurdity to suppose the Legislature intended to change tenancies for a fixed period, whether for one year, or more, or less, into ten- ancies from year to year, and then enable the landlord to ter- minate them by three months' notice to quit. The statute seems to be nierely declaratory of the common law on the subject. Says Chancellor Kent, " estates at will, in the strict sense, have become almost extinguished, under the operation of judicial decisions. Lord Mansfield observed that an infi- nite quantity of land was holden in England without lease. They were all, therefore, in a technical sense, estates at will ; but such estates are said to exist only notionally, and where no certain term is agreed on, they are construed to be tenan- 336 ILLUSTRATIVE CASES cies from year to year, and each party is bound to give rea- sonable notice of an intention to terminate the estate. The language of the books now is that a tenancy at will arises from grant or contract, and that general tenancies are con- structively taken to be tenancies from year to year :" 4 Kent Com., § 10, p. 128. In the case before us, the tenancy, by the agreement of the parties, was for a year, neither more nor less. Hence it is wholly unnecessary to determine what is meant by the words " or for a shorter period," in the section of the statute above quoted ; but we doubt whether they should be construed to embrace a tenancy for a fixed and definite period. The inter- pretation that presents itself as the most reasonable is that they embrace a tenancy uncertain as to duration, but one which appears to have been intended by the parties as less than a year. But on this point nothing is decided. The lease in the case before us created an estate which the law defines to be an estate for years. Such would also have been its character had it been less than a year in duration. " Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years :" 2 Shars. Blackstone, p. 142. " Estates for years embrace such as are for a single year, or for a period still less, if defi- nite and ascertained, as a term for a fixed number of weeks or months, as well as for any definite number of years, how- ever great:" 1 Washburn on Real Estate, p. 291. The defendant being a tenant for years, and not at will, or from year to year, or for a shorter period, it was not compe- tent for the lessor to terminate the tenancy before the expi- ration of the term, on the ground of failure to pay the stipu- lated rent. Pee Curiam. The judgment below is afiirmed, with costs. Williams, R. P. 388, 393 ; 1 Washb. R. P. 476 ; 1 Taylor, L. & T. 54 ; 1 Wood, L. & T. 74. Agricultural lands in Minnesota cannot be leased for more than twenty-one years : Minn. Const., Art. I, ? 15. IN REALTY. 337 b Time computed. A lease foi a term of years " from the first day of July " begins on the second day of July. Atkins v. Sleeper, Supreme Judicial Court of Massachusetts, 1863. 7 Allen, 487. Plaintiflf made a lease of certain premises to defendant " for a term of three years from the first day of July, 1858," rent payable quarterly, and if the defendant held for a longer time he was to pay rent accordingly. On July 1, 1861, defendant gave written notice that he would vacate the store on or before October 1, 1861, and accordingly on that day the store was vacated and the keys offered to plaintiff, who said that he still regarded defendant aa his tenant and should expect another quarter's rent. The premises remained vacant for the full quarter, and on defendant's refusal to pay the rent for the time plaintiff brings this action to recover the same until January 1, 1862. There was judgment for the defendant. Chapman, J. The original lease from the plaintiff to the defendant was " for the term of three years from the first day of July, 1858." The plaintiff contends that the term com- menced on the 1st day of July, and the defendant contends that it commenced on the next day. The inclusion or exclu- sion of the day of the date of an instrument, in the computa- tion of time, has been a much vexed point ; but in a case like the present the authorities are in favor of the defendant. In 4 Cruise Dig. (Greenl. ed.) tit. xxxii, c. 5, § 16, the rule is stated to be, that if a lease be made to hold from the date, or the day of the date, that day is excluded ; but if it be to hold from the making, it includes the day. It is stated in still better phraseology in § 17, n. 2. Where time is computed from an act done, the general rule is to include the day. Where it is computed from the day of the act done, the day is excluded. The same rule is stated in 2 Parsons on Con. 179, n. It has been adopted by this Court, and must be regarded as settled in this Commonwealth : Bigelow v. Willson, 1 Pick, 494 ; Wiggin v. Peters, 1 Met. 127 ; Farwell v. Kogers, 4 Cush. 22 338 ILLUSTRATIVE CASES 460 ; Seekonk v. Rehoboth,. 8 Cush. 371 ; Buttrick v. Holden^ lb. 233. Exceptions overruled. As to the method of computing time, see : Deyo v. Bleakley, 24 Barb. 9 ; Bemis v. Leonard, 118 Mass. 502 ; Ordway v. Eemington, 12 E. I. 319 ; Ack- land V. Lutley, 9 Ad. & E. 879 (36 Eng. Com. Law, 312) ; Arnold v. United States, 9 Cranch. 104 ; Sheets v. Selden's Lessee, 2 Wall. 177 ; Seekonk v. Re- hoboth, 8 Cush. 371. C Perpetual renewaL In a lease creating an estate for years, a covenant for the perpetual renewal of such lease is valid if clearly expressed or if such appears to be the intention of the parties thereto. Blackmoee v. Boardman, Supreme Court of Missouri, 1859. 28 Mo. 420. The directors of the St. Louis public schools demised and leased to Black- more certain premises for ten years, with a covenant for a perpetual renewal. These premises so leased to Blackmore were sold on execution to one Lewis, who went into possession thereof and « liile in possession convejed his in- terest to Hagre, who in turn sold to Boardman. Prior to the expiration of the original lease Hagre made application to the directors for a renewal thereof, and Blackmore also made application for a renewal to him, to which Hagre filed a remonstrance. The directors reneuvd the lease to Blackmore. The two questions presented were whether the covenant for perpetual re- newal was legal and whether the right of renewal was acquired by Lewis under the sheriff's sale. Richardsox, J. The numerous authorities cited by the de- fendant's counsel establish in his favor the first two propositions presented in the statement. As the law discourages perpetui- ties, it does not favor covenants for continued renewals ; but, when they are clearly made, their binding obligation is recog- nized and will be enforced. The covenant for renewal is only an incident to the lease, and as it cannot be passed without the principal, the conveyance of the principal by a proper IN EflALTY. 339 description will necessarily carrj' the incident. They are inseparable, and a right of action cannot exist in favor of a person claiming the benefit of the covenant without any right to the possession of the leasehold ; but the covenant, being annexed to the estate, runs with it, and cannot be retained by itself or assigned or severed so as to give an independent cause of action. A sale of the land under execution will pass to the purchaser all the covenants that run with it as effectually as if he had received a conveyance from the lessee ; for as the purchaser, after he acquires possession, is bound to pay the rent and in that way assumes the burdens of the lease, he has the right to take advantage of the covenants that touch and concern the thing demised, which enhance the value of the estate. The parties agree that the application for renewal was in proper form, and, as the minutes of the board of directors show that the notice was before the board on the 11th of August, at the second meeting held after it had been left by Kurlbaum, we think his evidence was properly received. Notice left with a man about the office who had no authority to receive it of course would not bind the Public Schools, but, as the directors are not supposed to be all the time in session, it would seem that the secretary was the proper person with whom such applications should be left. It would be gross neglect in the defendant if he had left the notice with a chance man about the office, and had not returned again to inquire whether it had been received ; but the tigent was told by the secretary a few days afterward, and in ample time to have given another notice, that it had been received, and under such circumstances it would be a fraud on him to hold that he had lost his rights by his negligence. The parties have requested that the controversy between them shall be deter- mined in this Court in view of all the equities of the case, and, as the admission of the deceased secretary would certainly be competent in a proceeding by the defendant against the board of Public Schools to have specified performance of the cove- nant for renewal, we have less hesitation in deciding that the 340 ILLUSTRATIVE CASES evidence was admissible in this suit. The other Judges con* curring, the judgment will be affirmed. Effinger v. Lewis, 32 Pa. St. 367 ; Page v. Eaty, 54 Maine, 319 ; Boyle v. Pea- body, 46 Md. 623 ; Banks v. Haakie, 45 Md. 207 ; Hauie v. Burr, 24 Barb. 625 ; Brown v. Parsona, 22 Mich. 24 ; Holley v. Young, 66 Maine, 520 ; Sweetser v. McKenney, 65 Maine, 225. d Land let " On Shares." A contract to cultivate a faun on shares does not create an estate for years, bat by it the parties are o'wners in common of the crop. Caswell v. Districh, Supreme Court of New York, 1836. 15 Wend. 379. In this case a party agreed to till a certain farm, and for his work and care to take a certain specified quantity of the diflferent kinds of crops raised thereon during the year. Nelson, J. The agreement between the parties was a letting of the premises upon shares, and, technically speaking, was not a lease : 8 Johns. R. 151 ; 3 lb. 221 ; 2 lb. 421, n.; 8 Cowen, 220. There is nothing which indicates that the stipulation for a portion of the crops was by way of rent, but the contrary. The shares were of the specific crops raised upon the farm. It is very material to the landlord, and no injury to the tenant, that this view of the contract should be maintained, unless otherwise clearly expressed, for then the landlord has an in- terest to the extent of his share in the crops. If it is deemed rent, the whole interest belongs to the tenant until a division. Where a farm is let for a year upon shares, the landlord looks to his interest in the crop as his security, and thereby is en- abled to accommodate tenants, who otherwise would not be trusted for the rent. . This case is clearly distinguishable from that of Stewart v. Doughty, 9 Johns. R. 108. There the Court, from the cor- IN REALTY. 341 respondence between the phraseology of the instrument and the terms usual in leases in the reservation of rent, came to the conclusion that the proportion of the crops specified in the agreement was intended as payment of rent in kind, and that therefore the whole interest belonged to the tenant. If my conclusion be correct, then the parties were tenants in common in the crops, and as the plaintiff stood in the place of her tes- tator, she was not entitled to sustain her action, and the Com- mon Pleas did right to grant a non-suit. Judgment affirmed. Walls V. Preston, 25 Cal. 59; Guest v. Opdyke, 31 N. J. L. 552; Creel v. Kirkham, 47 111. 344 ; Hurd v. Darling, 14 Vt. 214. e Lease of building. A lease of a building, eo nomine, is a lease of the land on '^bich the building stands. Lanphbr v. Glenn, Supreme Court of Minnesota, 1887. 37 Minn. 4. GiLFiLLAN, C. J. At the common law the rule undoubtedly was that a lessee of real estate for a term, who had covenanted to pay the rent without excepting the case of destruction by fire or tempest of the buildings on the real estate, was not re- leased from his obligation to pay the rent by such destruction. This was because the lease created an interest in the land, by virtue of which the lessee might, notwithstanding the destruc- tion of the buildings, retain possession of the land to the end of his term. An exception to this, or, rather, a case to which, from the circumstances, the rule did not apply, was that of renting rooms or apartments in a building, in which case no interest in the real estate beyond that connected with and nec- essary to the enjoyment of the particular room or apartment 342 ILLUSTRATIVE CASES jjassed, and of necessity such interest ceased when the room or apartment ceased to exist ; for in such a case, especially where there are several tenants, some above and some below, they cannot all have the realty " usque ad ccelum." Such cases were, from the nature of the case, construed not to pass any interest in the land, independent of the particular room or apartment rented. The lease in this case having been executed prior to the Act of 1883 (Laws 1883, c. 100), comes under the rule of the com- mon law. Whether liability to pay rent continued, notwith- standing the building was destroyed by fire, must depend on whether the lease passed an interest in the land — that is, whether it was a lease of the land for the specified tern^. The description of the premises leased is this : " The real property situate in the county of Ramsey and State of Minnesota, and described as follows, that is to say : The two-story (and rear basement) frame stores and dwellings overhead, situated on the westerly side of Jackson Street, near what is designated on D. L. Curtice's 1880 map of the city of St. Paul as Winter Street, situated in the said city of St. Paul, being a portion of the east half of the northwest quarter of section thirtj'^-one," " together with the appurtenances thereof." It does not appear from the lease (nor otherwise) that any part of the building was excepted. The words " and rear base- ment " do not indicate it. They are to be taken as used to de- scribe the building as a two-story and rear-basement building. It appears, therefore, that the entire building is covered by the description. Land may be granted or leased by the description of a building on it. "And by the grant of a house, the ground whereon it doth stand doth pass :" Shep. Touch. 90. A garden may pass by conveyance of a house : Smith v. Martin, 2 Saund. 400. The demise of a mill carries the ground on which it stands : Bacon v. Bowdoin, 22 Pick. 401. See, also, Ammi- (lovvn V. Ball, 8 Allen, 293 ; Hooper v. Farnsworth, 128 Mass. 487 ; Winchester v. Hees, 35 N. H. 43 ; Wilson v. Hunter, 14 Wis. 683 (80 Am. Dec. 795) ; Rogers v. Snow, 118 Mass. 118. This lease was, then, a lease of the ground as well as the build- IN KEALTV. 343 ing, and it brings the case within the rule of the common law we have stated. Judgment affirmed. Minn. Gen Laws, 1883, ch. 100. Under the statute the lease is terminable at the option of the lessee : Boston Block Co. v. Butiington, 39 Minn. 385. f Assignment. The tenant may assign his estate for years, and the purchaser, -uponr entering the premises, becomes tenant of the original lessor. Sanders v. Partridge, Supreme Judicial Court of Massachusetts, 1871. 108 Mass. 556. Sanders executed a lease to Jackson & Muzzy of premises in Boston for the term of ten years, for the annual rent of $5,800, payable quarterly. Jackson & Muzzy afterward assigned " all their right, title, and interest in and to the within lease," to defendant Partridge, by a writing upon the original duly signed by them, but not under seal. Wells, J. To maintain an action for rent requires privity of contract or privity of estate. Either will suffice, if rent is due. • When a lease is assigned, and the assignee enters under it, he becomes tenant of the lessor ; he is bound by all the cov- ■enants of the lease which are not personal to the lessee, and he is liable to the lessor for all rents which accrue while he holds the estate. If there is no express covenant for the pay- ment of rent, contained in the lease, then the covenant im- plied from the reservation of rent binds the lessee, and " runs with the land " so as to bind the assignee also : Patten v. De- shon, 1 Gray, 325 ; Blake v. Sanderson, 1 Gray, 332 ; Croade V. Ingraham, 13 Pick. 33 ; Waldo v. Hall, 14 Mass. 486 ; Smith Landl. & Ten. 287; 1 Washb. Real Prop. 326; 4 Blytherwood's Conveyancing, 388. 344 ILLUSTRATIVE CASES In the present case, the defendant entered into the enjoy- ment and control of the leased premises, under what purported to be an assignment of the lease. If that transaction operated in any manner to transfer to the defendant the entire lease- hold estate, then he was in as assignee and may be held by the lessor for the rent which fell due while he so held the estate. The defendant insists that the lease, being under seal, could be assigned only by an instrument under seal. This rule, ap- plied to an assignment of the instrument itself, as a contract, is well settled at law : Wood v. Partridge, 11 Mass. 488 ; Brewer V. Dyer, 7 Gush. 337 ; Bridgham v. Tileston, 5 Allen, 371. If, therefore, a leasehold estate can be transferred only by an as- signment of the instrument by which it was created, this ob- jection must be held to be decisive. But we do not so understand the law. A lease, by whatever form of instrument it is made, convej^s to the lessee an estate or interest in the land. He may in turn convey to another an}- subordinate interest, or his entire estate, in any appropriate form, without regard to the form in which he acquired his own title. The leasehold estate may be transferred by devise ; by sale on execution as a chattel : Gen. Sts. c. 133, § 49 ; or sale by an administrator as personal assets. In all these cases the purchaser becomes bound to the lessor to pay the rent and per- form the covenants that run with the land, because the law imposes that obligation upon him by reason of his succession to the estate of the lessee. The same result follows from any transfer by the lessee of his entire estate. A seal is not essen- tial to such transfer, even of a lease for more than seven years. No written instrument is necessary, except to satisfy the statute of frauds : Gen. Sts. c. 89, § 2. Even if the provisions of § 3 are applicable to the assignment of a lease, as well as to the creation of an estate by lease, a seal is only required to give it effect against parties other than the assignor, his heirs and devisees, and persons having actual notice thereof. The de- fendant cannot set it aside for the want of a seal. The real question, then, is whether this instrument is suf- IN REALTY. 345 ficient to satisfy the statute of frauds, as an assignment of an estate or interest in land. It is indorsed upon and refers to the original lease ; and the lease was delivered with it to the assignee. The description of the premises, the terms upon which they are to be held, and the intent to conYey the estate are thus all made to appear by the writing. " All our right, title, and interest in and to the within lease " includes whatever leasehold estate the assignor might hold by virtue of that lease. If a seal had been at- tached, there would be no question of its operation to convey the estate of the assignor in the land described in the instru- ment referred to : Patten v. Deshon, 1 Gray, 325 ; Blake v. Sanderson, lb. 332. So far as it affects the sufficiency of the writing, under the statute of frauds, we do not see that it makes any difference that the instrument referred to is under seal, while the transfer is not. The reference is not merely to the instrument itself as the subject-matter of the assignment, but also to its contents as defining the subject-matter upon which the assignment is in- tended to operate. We are of opinion that the writing relied on as an assign- ment in this case was sufficient to satisfy the statute of frauds, and that between the parties a seal was not rendered neces- sary to its operation as an assignment, either by reason of the- length of the term or from the fact that the assignor acquired his title by a lease under seal: Taylor Landl. & Ten., § 427,^ and cases cited in notes. It was not necessary that the defendant should execute any writing, or make any express agreement. His obligation is implied by law from his acceptance of the assignment and his entering upon the enjoyment of the estate. The report states such an acceptance and entry by the de- fendant. His employment of the former agent of his assignor to collect the rents for him was a sufficient entry. He is liable, then, for the rent which fell due July 1, 1870, for the preced- ing quarter, unless he had before that time ceased to hold the relation of tenant or assignee of the lease. The liability of 346 ILLUSTRATIVE CASES an assignee, upon covenants running with the land, extends only to such as are required to be performed while he holds that relation : Patten v. Deshon, 1 Gray, 325. It is stated in the report that "on or about May 18, 1870, the defendant executed an assignment of said lease," by a writing not under seal, to one Newhall. If Newhall entered under that assignment, and the defendant ceased to collect the rents, control the premises or have any interest therein, before the end of the quarter, he would not be liable for any rent which should afterward fall due. But the case does not find that Newhall ever entered or collected the rents under his as- signment, nor that the defendant at any time ceased to collect and receive the rents through his agent, and any inference to that effect would be inconsistent with the distinct statement of the report that upon the entry of the defendant under his assignment from the lessees " the rents were thereafter collected by said agent and paid over to the defendant." Upon the report, we must assume that the defendant's evi- dence went no farther than to show a formal instrument of assignment without change of possession. That would not be suflBcient to relieve the defendant from his liability as assignee of the lessees. It is stated generally in the text-books, that an actual entry upon the demised premises, by an assignee of the lease, is not requisite in order to charge him with the performance of cove- nants running with the land. But we think this proposition will hold good only in respect of assignments by deed re- corded and delivered, which are usually regarded as effecting a transfer, not only of title, but also of the legal possession. An assignment without deed, as of a chattel interest only, re- quires some act of entry or change of actual possession, to complete its operation and divest the assignor of responsibility which arises from the holding of the estate : Taylor Landl. & Ten., §§449-451. It was not necessary for the plaintiff to assent to the assign- ment, or recognize the assignee as his tenant, otherwise than by his suit for the rent. IN REALTY. 347 It does not appear that the plaintiff had already received his rent from Jackson and Muzzy ; or that the defendant had any equitable defense as against them. The fact that Jackson and Muzzy remained liable for the rent upon their express cove- nants in the lease, notwithstanding their assignment, is suf- ficient explanation of the statement that the suit was brought with the plaintiff 's consent, and at the request of Jackson and Muzzy. The report shows that the defendant became responsible to the plaintiff as assignee of the lessees, and does not disclose any facts sufficient to defeat his action for the rent which thereafter became due upon the lease. According to the terms <^ the report, therefore, the plaintiff is to recover judgment for the full quarter's rent, $1,450, and interest. Judgment for the plaintiff accordingly. g Sublease Where the whole term is transferred the transaction amounts to an assignment, but ^here any part of the interest is retained the transaction is simply a sublease and the sublessee is not tenant of the original lessor. Dartmouth College v. Clough, Supreme Court of Judicature, New Hampshire, 1835. 8 N. H. 22. Richardson, C. J. We have attentively considered this case, and are of opinion that there must be judgment on the verdict. The case stated in the declaration is that the plaintiffs, in the year 1808, made a lease to the Cliffords of certain land in Warren for nine hundred and ninety-nine years, reserving a certain yearly rent, and that in the year 1825 all the interest of the Cliffords in the premises came to the defendant by as- signment ; and the plaintiffs claim to recover of the defendant, 348 ILLUSTRATIVE CASES as such assignee, all the rent reserved in the lease which be- came due between January 1, 1831, and January 1, 1834. It was supposed by the counsel «f the plaintiffs, at the trial, that the plea of nil debet was an admission of the lease from the plaintiffs to the Cliffords ; and no evidence on that point was produced. But no case has been cited, nor have we found any case that gives the slightest countenance to the supposi- tion that the plea was in law an admission of that lease. On the contrary, it is well settled that nil debet puts in issue the whole declaration. Even in cases where it is not a proper plea, if it be pleaded, and the plaintiff, instead of demurring, takes issue upon it, he will have to prove every allegation in his declaration : 1 Chitty's PL 478 ; 2 Starkie's Ev. 140, note (u) and 463. The plaintiffs then failed in this respect in a point essential to be proved in order to entitle them to a ver- dict. But there are other defects in the case of these plaintiffs. In order to maintain debt or covenant for rent there must be either privity of contract or privity of estate between the plaintiff and defendant : Walker's Case, 3 Coke, 23. Between the lessor and the lessee there is both privity of con- tract and privity of estate so long as the lessee retains the term. And the original lessee is liable to an action of covenant for the rent, although he may have assigned all his interest to some third person with the assent of the lessor. For even in that case the privity of contract continues between the lessor and the lessee: 1 Chitty's PI. 36. But if the lessee assign the term, with the assent of the lessor, after this, debt does not lie against the lessee : 1 Chitty's PI. 106 ; 1 Saunders, 241, note 5 ; Auriol v. Mills, 4 D. & E. 98. "When the lessee has assigned to a third person his whole term, both debt and covenant lie against the assignee on the privity of estate : 2 East, 580 ; Howland v. Coffin, 12 Pick, 125 ; 9 Pick. 52. And he who takes an assignment of the whole term, even by way of mortgage, is liable for the rent, although he may never IN REALTY. 349 have entered and taken possession : McMurphy v. Minot, 4 N. H. R. 251 ; 5 Com. Law R. 72 ; Turner v. Richardson, 7 East, 335. An assignee of the whole term is only liable for the rent while he continues in possession under the assignment. If he assigns over to another all his interest, he is not liable for the. rent, although he may continue in possession : Butler's N. P. 159 ; Tovey v. Pitcher, Carthew, 177 ; Taylor v. Shum, 1 B. & P. 21 ; Walker v. Reeves, Douglas, 461, note ; Chancel- ler V. Poole, lb. 735 ; Woodfall's Landlord and Tenant, 280, 281. There is a material difference between an assignee of a term and an under-tenant. He only is to be considered as an assignee of the term who takes the whole estate of the lessee in the land, or in some part of the land : 17 Johnson, 70 ; 3 Wilson, 234 ; Woodfall, 276- 280 ; 11 East, 52 ; Com. Dig. Debt, E. & F. ; Cro. James, 411 ; Cro. Eliz. 633 ; 2 Levintz, 231. When the lessee conveys to a third person the whole or a part of the land for a portion only of his term, such third per- son is not an assignee of the term, but an under-tenant : Wood- fall, 276 and 287, 288. There is no privity of contract or of estate between the orig- inal lessor and an under-tenant ; and the under-tenant is not liable to the original lessor in any form of action for rent : 1 Cbitty's PI. 36 ; Douglas, 183 ; Woodfall, 288. In this case it was proved on the part of the plaintiffs that the defendant had been in possession of a part of the land, and that he had paid a part of the rent reserved on the lease from the plaintiffs to the Cliffords, for two years. This was prima facie evidence that he was an assignee as to part of the land. But it was only prima facie evidence. And there was nothing in the case that could preclude him from showing that he was only an under-tenant. His possession under his lease was notice to all the world of the nature of his interest. It was enough to make it the dutj' of the plaintiffs to inquire into the nature of his title before they brought their action. 350 ILLUSTRATIVE CASES As it was clearly shown that the defendant was a mere un- der-tenant, it is very certain that this action cannot be main- tained. Judgment on the verdict. Craig V. Summers, 47 Minn. 189. Bat the sublessee may protect his possession by payment of the rent to the original lessor -who has the right of entry for non-payment under the original lease. Peck v. Ingeesoll, Court of Appeals, New York, 1852. 7 N. Y. 528. Gardiner, J. The original lease between Mrs. Dunscombe and the plaintiffs contained a covenant of re-entry on the non- payment of rent by the lessees for ten days after it fell due. The jury have found that the ground-rent due to Mrs. Duns- combe by the defendants, the lessees' tenants ; and the only question of any importance is whether they were justified in making such payment and entitled to have the amount applied in discharge of their rent due the plaintiffs. It has been frequently decided upon the most obvious prin- ciples of justice that if an under-tenant is compelled to pay rent to the head landlord he may deduct it from the rent due to his immediate lessor ; or if the sum paid exceeds that due the lessee the tenant may in an action of assumpsit for money paid to the use of the lessor, recover the excess : 1 Smith's Leading Cases, 4 Am. ed. 202, 3 and 4, marg. pp. 73, 4, 5, and cases there cited ; 4 Term, 511. This privilege upon the part of the under-tenant exists if there be in the head land- lord a legal right by the exercise of which the person who pays may be damnified unless he satisfies it : 1 Leading Cases, 203. It is not necessary that the head landlord should dis- train or even demand the money or commence or threaten a suit. The right to enforce his claim, in this way will make the IN REALTY. 35t payment by the under-tenant compulsory within the principle of the decisions. In this case the original lessor had, as we have seen, the right of re-entry. The under-tenant was authorized to protect his possession against the exercise of this right by paying the rent to the head landlord. Such a payment is not voluntary, and there is no question but that it was made by the defend- ants in good faith with an honest purpose to shield themselves from damage. I think the judgment of the Common Pleas should be affirmed. Judgment affirmed. Underletting is not a violation of the covenant not to assign : Den v. Post, 25 N. J. L. 285 ; Jackson v. Harrison, 17 Johns. 66 ; Copland v. Parker, 4 Mich. 660 ; Leduke v. Barnett, 47 Mich. 158. And an assignment is not a violation of the covenant not to sublet : Taylor, L. & T. 403 ; Lynde v. Hough, 27 Barb. 415. Contra : Den v. Post, 25 N. J. L. 285. But see : Field V. Mills, 33 N. J. L. 254. Lease. A lease is a contract for the possession and profits of land for a determinate period, iisually 'with a recompense of rent. Sawyer v. Hanson, Supreme Judicial Court of Maine, 1845. 24 Me. 542. Tenney, J. This complaint is to obtain possession of one- half of a dwelling-house standing upon land not claimed as the property of either party, erected thereon by the owner's consent. It is alleged that the defendant, on the first day of June, 1844, having before that time had lawful and peaceable entry into the lands and tenements of the complainant, etc., " and whose estate in the premises was determined on the 29th day of May, 1844, then did and still does unlawfully refuse to quit the same ; although the complainant avers that he gave notice in writing to said Hanson thirty days before the day of making this complaint to quit the premises." -352 ILLUSTRATIVE CASES The complainant relied upon a mortgage of the property de- scribed in the complaint from the defendant to one Smith, dated June 17, 1843, to secure a note of the same date payable in six months ; Smith, on March 29, 1844, made a written as- signment of said mortgage and note to one Forsaith, who, on May 28, 1844, assigned the same to the complainant. On June 1, 1844, the defendant was served with a notice in writing, signed by the complainant, to quit the premises immediately. A non-suit was directed by the District Court, to which excep- tions were taken. The statute referred to, under which this process is sought to be maintained, is applicable to three cases only : 1st. Where any unlawful and forcible entry has been made into any lands or tenements. 2d. Where there has been any unlawful and forcible detainer thereof. 3d. "Whenever a tenant, whose estate in the premises is determined, shall unlawfully refuse to quit the same, after thirty days' notice in writing, given by the lessor for that purpose:" Rev. St. c. 128, § 2 and 5. The evi- dence presents no such forcible entry or detainer as to sustain the complaint: Commonwealth v. Dudley, 10 Mass. R. 403; Saunders v. Robinson, 5 Mete. 343. And we are not satisfied that the complaint can be maintained upon the evidence by virtue of the other provision. To bring tlie case within the fifth section, the relation of landlord and tenant must be shown to have existed, and the lease to have terminated ; and a holding over by the lessee. The language clearly imports that the process, under this part of the statute, shall be in favor of a lessor or his assignee against a lessee or one holding under him. The determination of the estate referred to may be of a lease for years, or where a tenancy at will existed ; it was not intended for those cases, where the title could be contested ; but where the relation was such that the defendant was precluded from denying to the complainant the right of possession by his own contract. A lease is defined to be a contract for the possession and profits of lands and tenements on the one side, and a recom- pense of rent or other income on the other. Any words, which IN REALTY. 353 show the intention of the parties, that one ^all divest himself of the possession, and the other shall come into it, whether they run in the form of license, covenant, or agreement, are of themselves sufficient : 4 Cruise's Dig. 67. There is no allegation in the complaint, and no evidence shown by the exceptions, of any contract or agreement between the parties. The house having been the property of the de- fendant was mortgaged by him for security of his debt ; ac- cording to the facts in the case, this mortgage had been fore- closed, and he divested of all estate in the premises ; after which the interest of the mortgagee passed to the complainant by the assignment. The latter was the absolute owner of the house, it being personal property, and the defendant was in the occupation of the same ; the complainant's title accrued two days before the notice to quit, given to the defendant ; no rela- tion of landlord and tenant can be implied or inferred from the facts reported. Exceptions overruled. Thompson v. Sanborn, 52 Mich. 141; Harlan v. Emery, 46 Iowa, 538; Ackerman v. Lyman, 20 Wis. 454 ; Collyer v. Collyer, 21 N. E. Rep. 114. a Covenants. The covenants in a lease may be either expressed or implied, and those of a certain kind run with the land. Express. There are express covenants, as, one for a renevral of the lease. Renoud v. Daskam, Supreme Court of Errors, Connecticut, 1868. 34 Conn. 512. In this case there was an express covenant for a renewal of the lease, and not making his request therefor until the first one had expired, and the landlord then declining to renew, the lessee files his bill in equity to enforce its execution. 23 354 ILLUSTRATIVE CASES Pabk, J. This case depends upon the construction that shall be given to that part of the lease executed between these parties, which is as follows : " The said William Daskam also further covenanting and agreeing, that after the expiration of said term of five years, he will, if thereto desired by the said John W. Renoud, make and execute to the said Renoud a lease of the said premises for the further term of five years, upon the terms and conditions in this lease contained." The petitioner claims that this provision of the lease gave liim a reasonable time after the expiration of the five years in which to express his desire for another term ; while the respondents insist that it required that the optional right should be exercised, on or before the termination of the five years. The lease is silent as to the time when the right may be exercised, and the petitioner infers that it exists after the five j^ears expire, from the fact that the lessor covenants that he will execute another lease after that time, if thereto desired. But desired when ? The lease does not answer the question. This covenant, construed literally, has reference solely to the act of the lessor, and not to the time when the desire for another term may be communicated to him. The constructions given to it by both parties harmonize with the language used, and we must therefore consider other parts of the lease and tlie surrounding circumstances in order to ascer- tain the meaning intended by the parties. It can hardly be supposed that the lessor intended to grant an optional right to take the premises for another term, that might be exercised after the five years should expire, for the lessee might decide at the last moment to vacate the premises, and the lessor would then be left not only without a tenant, but at an unseasonable time to obtain one. He would thus run the hazard of losing the rent of his premises for a year, und that too when the right to this extent could be of no practical benefit to the lessee ; for it is hardly to be supposed that, with the right, he would delay till the close of his term before he fully determined whether he would stay longer or not. IN REALTY. 355 Again, if this right existed after the expiration of the five years, it existed during a reasonable time after that event ; for when a right is given, and no time is prescribed for its exercise, a reasonable time is allowed. It follows then that the lease extended not only during the period of five years, but during the reasonable time within which the right might be exercised, should the lessee delay his election till the last moment; for it can hardly be claimed that the parties in- tended that the premises should be vacated during such time, when the lessee might elect for another term. Now the lease is for a period of five years, with an annual rent at a fixed sum payable quarterly. This provision of the lease is at war with the construction that the petitioner gives to the covenant in question. Its proper meaning is that the respondent will give another lease of the premises for another term of five years, to commence from and after the expiration of the first term, if thereto desired. The phrase " after the expiration of said term of five years," must have reference to the com- mencement of the second term, and not to the time when the lease should be given ; for if it has reference to the giving of the lease, how long after shall it be given ? and in that case when will the second term commence ? No time is specified for either, and both would be left in doubt and uncertainty. The petitioner neglected to express his desire for another term on or before the expiration of the five years, and we think can- not now require that another lease should be given. There is nothing in the petitioner's claim of waiver. This is not a case of forfeiture for the jion-payment of rent, but a case where the petitioner has neglected to perform the condi- tion on which his right to another term depended. We advise the Superior Court to dismiss the petition. 356 ILLUSTKATIVE CASKS Implied. There are implied covenants, as, that for quiet enjoyment. DuNCKLEE V. Webber, Supreme Judicial Court of Massachusetts, 1890. 151 Mass. 408. In this case an action was brought for breach of an implied covenant for quiet enjoyment in a written lease. The defendant had given a mortgs^ prior to the lease, and the assignee of the mortgage made entry for fore- closure and sold the premises. C. Allen, J. The Court having ordered a verdict for the defendant, we have only to consider whether in any aspect of the case a verdict for the plaintiff would have been warranted. 1. There was suflBcient evidence that Lincoln & Son had authority to let the premises for three years. One of the firm testified that the defendant " told us to let the house for $800 a year, and the time was three years." Shortly after the let- ting (the time is not stated exactly, but the jury might have found it to be in the following month), the witness informed the defendant of the renting of the estate to the plaintiff, and of the collection of one month's 'rent. Afterward a settlement was had in which Lincoln & Son were allowed a commission on the stipulated rent for three years. Authority by parol was sufli- cient : Shaw v. Nudd, 8 Pick. 9 ; Heard v. Pilley, L. R. 4 Ch. 548. 2. The papers executed amounted to a present lease of the premises. No further or more formal lease was contemplated : Shaw V. Farnsworth, 108 Mass. 357 ; McGrath v. Boston, 103 Mass. 369. 3. The mode of signing the paper A was sufficient to bind the defendant. The contrary is not contended in the argu- ment: Goodenough v. Thayer, 132 Mass. 152 ; Amory v. Kan- noffsky, 117 Mass. 351 ; Gowen v. Klous, 101 Mass. 449, 454. 4. There was an implied covenant for quiet enjoyment dur- ing the term. The papers A and B constituted a lease for three years. The rent was to be paid during that time. The IN REALTY. 357 papers contain nothing to control the ordinary implication that the lessee shall have quiet enjoyment : Ellis v. Welch, 6 Mass. 246, 250 ; Dexter v. Manley, 4 Gush. 14, 24 ; Foster v. Peyser, 9 Gush. 242, 246 ; O'Gonnor v. Daily, 109 Mass. 235 ; Mack V. Patchin, 42 N. Y. 167 ; Mostyn v. West Mostyn Goal and Iron Co., 1 G. P. D. 145, 152 ; Bandy v. Cartwright, 8 Exch. 913 ; Hall v. London Brewery Go., 2 B. & S. 737. 5. There was evidence of a breach of this covenant. The defendant had given a prior mortgage, the assignee of which made an entry for foreclosure, and sold the premises under a power of sale contained in the mortgage, and the purchaser gave notice to the plaintiff to vacate the premises, with a threat of legal process to eject him. The plaintiff could not defend against this title and might properly yield to it with- out a suit: King v. Bird, 148 Mass. 572 ; Carpenter v. Parker, 3 G. B. N. S. 206. 6. The doctrine that an implied covenant of a life-tenant ceases with his life does not apply: Adams v. Gibney, 6 Bing. 656. 7. There was evidence of special damage. The plaintiff had to remove from the premises and to seek another place of resi- dence. And he testified that the fair rental value of the prem- ises was more than he was paying, and that property in that vicinity had recently risen in value. New trial granted. Covenants that run 'with the land. Some covenants run ixrith the land ; as, covenants in a lease to pay rent and taxes upon the demised premises. Teask v. Graham, Supreme Court of Minnesota, 1891. 47 Minn. 571. Vanderburgh, J. The record shows that the parties jointly entered into a lease with the St. Anthony Falls Water-Power Company, of the date of May 5, 1885, whereby they rented 358 ILLUSTRATIVE CASES from the company, by lease under seal, for the term of five years, frbm July 1, 1885, the premises in controversy. By the terms thereof the lessees, Trask & Graham, who were partners, agreed to pay as rent for the premises the sum of |300 per annum, in quarterly installments ; and also agreed to assume and pay all real-estate taxes levied on the leased premises during the term of the lease, beginning with the taxes for 1885. The lessees jointly, as partners, owned a saw-mill, situated upon the leased premises. On the 2d day of February, 1889, the defendant, Graham, in consideration of a contract for the sale of his interest and title in and to the leased premises and the saw-mill situated thereon, entered into between him and the plaintiflF, Trask, did, by an instrument in writing under seal, at his request, duly sell and convey all his right, title, and in- terest in and to the same to one Whitmore, who represented the plaintiff, for the sum of |5,500 consideration paid by the latter, and therein agreed to warrant and defend the title thereto against all lawful claims. For the purposes of this action it is understood that the sale and transfer is to be treated as an independent transaction, and wholly disconnected from other partnership business between the parties, or any account- ing therefor ; and plaintiff, it is admitted, stands in the shoes of Fairchild, as assignee, and succeeded to the sole possession of the premises under the lease as of the date of the transfer. The rent for the current quarter became due April 1 next after the date of the assignment ; and the taxes for the year 1888 became payable on the 1st Monday of January, 1889, but not delinquent until June 1, but became and were a separate and fixed liability of both lessees then in possession as to each other. The plaintiff subsequently paid the rent for the whole quarter, and also the taxes for 1889, and by this action he seeks to recover from the defendant the amount of one-half the taxes for 1888, so paid by him, and also one-half of the rent that had accrued between January 1 and Febru- ary 2, the date of the transfer and assignment to him, though not due till April 1 following. As respects the relations of the assignee of a lease, the rule IN REALTY. 359 is : " When a covenant relates to or is to operate upon a thing in being, parcel of the demise, the thing to be done by force of the covenant is, as it were, annexed to the thing demised, and goes with the land, binding the assignee to the perform- ance, though not named ; and the assignee, by accepting pos- session of the laud, subjects himself to all the covenants that run with the land." Tayl. Landl. and Teu., § 437 ; Spencer's Case, 5 Rep. 16 ; Blake v. Sanderson, 1 Gray, 332. The foundation of this liability of the assignee is the privity of estate that exists between him and the lessor. The covenant to pay the rent and taxes runs with the land, and the plaintiff, Trask, tinder the assignment, assumed the liability for the rent and taxes that accrued and became due during his possession as assignee : Van Rensselaer v. Bonesteel, 24 Barb. 365 ; Post v. Kearney, 2 N. Y. 394. The assignee, being liable solely in privity of estate, is liable only for obligations maturing or breaches occurring while he holds the estate as assignee, and not for those which occurred before he became assignee or after he ceased to be such : Patten v. Deshon, 1' Gray, 325. It follows from the application of these principles to this case that the assignee, Trask, was himself liable for the rent for the whole quarter within which he became assignee, the rent not hav- ing yet accrued, and which he must be held to have assumed. And the quarter's rent in such cases is not to be apportioned : Graves v. Porter, 11 Barb. 592. We are unable to see why the same rule does not apply as to the taxes. The covenant Ijo pay was general, and would be satisfied if paid Mdthin the year, and so as to save the lessor harmless. The lessees would not be in default, at least till the taxes became delinquent, which would not be till June 1st. There had been no brea<'h of the covenant to pay the taxes, and the assignee took tlv; leasehold estate cum onere as to them also. The plaintiff, as assignee, was liable directly to the lessor upon the covenant to pay the taxes. There had been no previous breach of the covenant, and the plaintiff, as assignee, took the place of the lessee in respect to liability upon covenants not yet matured : Mason v. Smith, 131 Mass. 510. It must be presumed that the 360 ILLUSTRATIVE CASES contract was made in contemplation of the legal relations of the parties, and that the consideration was adjusted accord- ingly. If the plaintiff, as between them, was not to stand in the place of the defendant, and the defendant was to remain liable for the unpaid rent and taxes not yet due, it should have been so expressed in the contract. Granting, then, that the lien of the taxes attached to the land January 1, the obligation to pay them under the lease had not yet matured, and there is no covenant against incum- brances or liens on the land. Defendant merely transfers his right, title, and interest in the mill and lease, and this is all the covenant of warranty applies to. He does not warrant the title to the land : Sweet v. Brown, 12 Met. 175. No breach of the covenant of warranty is shown or relied on : Rawle, Gov. (4th Ed.) 178, note. Order reversed. Tenant estopped to deny Landlord's Title. The tenant is estopped to deny his landlord's title, and the term may be forfeited by the lessee's disafQrmance of his landlord's rights therein. Newman v. Rutter, Supreme Court of Pennsylvania, 1839. 8 Watts, 51. Walter Newman conveyed certain lands to Moore in fee, reserving eight shillings rent on each lot, payable annually, and if the rent was not paid when due the grantor might distrain for rent, and the grantee also agreed to erect certain building-s thereon. Peter Newman, the plaintiff, by assign- ments became entitled to those rents. ^ Plaintiff brings action of ejectment against defendant to recover the lots on the ground that the rents were not paid nor the buildings erected according to the said deed of conveyance. Rogers, J. One of the objections to the judgment of the Court of Common Pleas, is their answer to the fourth point. The Court instructed the jury, in answer to that point, that to IN REALTY. 3(j1 entitle the plaintiff to enter agreeably to the terms of the deed,, it must appear not only that the rent was in arrear and unpaid, but that there was not sufficient personal property on the lot, liable to be distrained, to enable plaintiff effectually to compel payment of the rent by distress. By the terms of the deed it is stipulated that if the rent should be in arrear sixty days, the grantor might distrain ; and if a sufficient distress should not be on the premises, that the owner of the rent might enter on the lots and repossess them, as though the deed had not been made. The deed must be construed according to the intention of the parties ; and, to entitle the plaintiff to enter, it must appear not only that the rent was in arrear for the time speci- fied, but that upon a distress being made by him, it was found that there was not sufficient property on the premises to pay it. In this point of view, therefore, the defendant, rather than the plaintiff, has reason to complain of the charge, as the Court put the case upon the fact, whether there was enough of prop- erty on the premises to answer the plaintiff's claim. If the plaintiff had pursued his remedy by distress, there were, if the witnesses are to be believed, at all times goods more than suffi- cient for that purpose. But the plaintiff contends that the defendant denied his title, and that this denial amounts to a forfeiture, and that, therefore, he can maintain ejectment. A forfeiture may be incurred either by a breach of those conditions which are always implied and understood to be annexed to the estate ; or those which may be agreed upon between the parties, and expressed in the lease. The lessor, having the jiis disposendi, may annex whatever conditions he pleases, provided they be not illegal, unreasonable, or repugnant to the grant itself; and upon breach of these conditions may avoid the lease. Any act of the lessee, by which he disaffirms or impugns the title of his lessor, comes within the first class ; for, to every lease the law tacitly annexes a condition that if the lessee do any- thing which may affect the interest of the lessor, the lease shall be void, and the lessor may re-enter. Every such act necessarily determines the relation of landlord and tenant ; •362 ILLUSTRATIVE CASES since to claim under another, and at the same time to contro- vert his title ; to affect to hold under a lease, and at the same time to destroy the interest out of which the lease arises ; would be the most palpable inconsistency: Bar. on Leases, 119; Woodfal's Landlord and Tenant, 219. So where the tenant does an act which amounts to a disavowal of the title of the lessor, no notice to quit is necessary ; as where the ten- ant has attorned to some other person or answered an appli- cation for rent by saying that his connection as tenant with the party applying has ceased : Bui. N. P. 96 ; Esp. N. P. 463. In such cases, as the tenant sets his landlord at defiance, the landlord may consider him either as his tenant, or as a trespasser. But these principles only apply where there is no dispute as to the person entitled to the rent ; so where there was a refusal to pay rent to a devisee in a will which was contested, it is not such a disavowal of the title as will enable the devisee to treat the tenant as a trespasser, and to maintain ejectment without previous notice: Woodfal's Landlord and Tenant, 219, and the authorities there cited. These principles are usually applied to the relations which subsist between landlord and tenant on a demise for a term of years ; and whether they are applicable to a grant of land in fee with the reservation of a rent charged on the land may admit of doubt, although no case has been cited, and I know of none, where it has been so applied. But however this may be, the doctrine does not hold where there is no denial of the title under which the defendant claims, but it is denied that the plaintiff is the person entitled to receive the rent, although he is the representative or devisee of the original grantor, or where, as in this case, the proportion of the rent which he owns is disputed. The plaintiff claims the entire rent, and the Court and jury have decided that he is entitled to a moiety only. It would, therefore, be a harsh application of the prin- ciple to decide that a defense which certainly has some plausi- bility about it, should work a forfeiture of the estate. Courts of law always lean against a forfeiture, and it is the proviiico of a Court of Equity to relieve against it. Whenever a landlord IN REALTY. 363 means to take advantage of a breach of covenant, so as that it should operate as a forfeiture of the lease, he must take care not to do anything which may be deemed an acknowledgment of the tenancy, and so operate as a waiver of the forfeiture, as distraining for the rent, or bringing an action for the pay- ment of it, after the forfeiture has accrued, or accepting rent : Bui. N. P. 96 ; Woodfal, 227 ; Bar. on Leases, 226. For this reason the Court were right in admitting in evidence a receipt from the plaintiff to the defendant for ground-rent for the two lots for the year 1831. This evidence was pertinent, because the receipt of rent waives the forfeiture, if any such there was, for neglecting to erect the buildings on the lot, as provided for in the deed. In deducing title to the ground-rents, plaintiff proved that theground-rent in Newmanstown had been devised by the last will and testament of Walter ^Newman, to Henry Newman and David Newman, as joint devisees. This, of course, vested in Henry Newman, the plaintiff, a moiety only of the ground- rent reserved in the deeds. For the purpose of proving that he was entitled to the whole ground-rent charged on the locus in quo, he offered in evidence a deed from Magdalena Newman, administratrix of David Newman, deceased, one of the devisees of Walter Newman, to Christian Seibert, dated the 24th of August, 1786, for sixty-three acres of the tract of one hundred and twenty-eight acres, devised to Henry and David Newman, by Walter Newman, the said sixty-three acres including the one-half of Newmanstown ; also a deed from Christian Seibert to Francis Seibert, for same, dated the 19th of April, 1793 ; also the will of Francis Seibert, devising the same sixty-three acres, including one-half of Newmanstown, to Elizabeth, wife of Peter Shoch, dated February 9, 1811, with parol proof that the said Francis Seibert, in the year 1805, or thereabouts, until the time of his death, and those claiming under him since his death, held and exercised exclusive ownership and occupation of the said sixty-three acres, including the one-half of Newmans- town, and that Henry Newman, the other devisee of Walter Newman, and those claiming under him, in the same time, 364 ILLUSTRATIVE CASES viz., from the year 1805, or thereabouts, to the present time; have exercised exclusive ownership on the remainder of the tract of one hundred and twenty-eight acres, including the other half of Newmanstown, and that the two lots for which this ejectment is brought, are located in that part of the said tract last mentioned ; with further parol proof that search has been made in the recorder's office in Dauphin and Lebanon Counties, for deed or agreement of partition of the premises, and none such has been found. From the evidence here offered, it is plain that the ground- rent was not divided between the devisees by writ of partition ; so that the only question is, was such proof offered as will jus- tify the jury in presuming a deed, grant, or mutual conveyance ? The evidence would have proved that the plaintiff had been in the enjoyment and receipt of the entire rent, charged on the premises, for a period of thirty years and upwards, and that they who deduce their title from David Newman, had received the whole ground-rent charged on this portion of the estate. A jury is required, or at least may be advised by a Court, to infer a grant of an incorporeal hereditament, after an adverse enjoyment for the space of twenty-one years ; and in Hearn v. Lessee of Witman, 6 Bin. 41 G, it is held, that what circum- stance will justify the presumption of a deed is matter of law ; and that it is the duty of the Court to give an opinion whether the facts proved will justify the presumption. This presump- tion seems to have been adopted in analogy to the act of limi- tations, which makes an adverse enjoyment of twenty-one years a bar to an action of ejectment ; for as an adverse posses- sion of that duration will give a possessory title to the land itself, it seems, also, to be reasonable that it should afford a presumption of right to a minor interest arising out of the land. The ground of presumption, in such cases, is the diffi- culty of accounting for the possession or enjoyment, without presuming a grant or other lawful conveyance. This is not an absolute presumption, but one that may be rebutted by account- ing for the possession consistently with the titlfe existing in another. Here we cannot account for the enjoyment and IN KEALTY. 365 receipt of the entire rent, without presuming a grant or some lawful conveyance from the one tenant in common to the other ; and for this reason we think the Court erred in exclud- ing the evidence. The Court were right in admitting the evidence of Job Pearson. The objection goes to his credit rather than to his competency. Judgment reversed, and venire de nova awarded. Allen V. Chatfleld, 8 Minn. 435. A tenant is not estopped, as against a etranger, to deny his landlord's title : Cole v. Maxfleld, 13 Minn. 235 ; St. Anthony Falls Water Power Co. v. Morrison, 12 Minn. 249. The tenant can- not claim that the title was in himself prior to the lease : Morrison v. Bassett, 26 Minn. 235 ; Sharpe v. Kelley, 5 Denio, 431 ; Vernam v. Smith, 15 N. Y. 327. Rent. Rent is in effect the price to be paid for an estate for years or other leasehold interest, and must be certain or capable of being reduced to certainty, and must be paid though the buildings on the land Hessed be destroyed. FOWLEK V. BOTT, Supreme Judicial Court of Massachusetts, 1809. 6 Mass. 67. An action of covenant for $225, having accrued after the destruction by fire of the buildings leased. Sewall, J. [After stating the plaintiffs' demand, the sev- eral issues, and the verdict.] By a motion in arrest of judg- ment, this question, arising upon the defendants' third plea, is to be decided by the Court, viz. : Whether after a destruction by fire of the buildings demised, the lessors, without rebuilding, can recover their rent. The supposed hardship of the case has been urged upon the attention of the Court as an argument for the defendants. The answer to this argument is, that a lease for years is a sale of the demised premises for the term ; and unless in the case of an 366 ILLUSTRATIVE CASES express stipulation for the purpose, the lessor does not insure the premises against inevitable accidents or any other dete- rioration. . The rent is in effect the price, or purchase-money, to be paid for the ownership of the premises during the term ; and their destruction, or any depreciation of their value, happen- ing without the fault of the lessor, is no abatement of his price, but entirely the loss of the purchaser. Independently, however, of the general reasoning, which has been gone into upon this question, the law applicable to the case at bar has been long settled. In the case of Balfour r. Weston, cited for the plaintiffs, the same question was Tnade which arises in this case ; but the Court of King's Bench re- fused to hear an argument upon it, being of opinion that the point had clearly been determined by the authorities ; and on that occasion Justice Buller refers to the opinion of Lord Mansfield in the case of Pindar v. Ainsley & Rutter, where the question occurred in an action of ejectment brought by the tenant in a lease for years against the landlord for the posses- sion of some houses, which, having been burnt down, had been rebuilt by the landlord during the term ; but after acts by the tenant, from which his abandonment of the lease was to be presumed. Lord Mansfield stated, as an established prin- ciple of law, that the consequence of the house being burned down is, that the landlord is not obliged to rebuild, but the tenant is obliged to pay the rent during the whole of the term. Nor is it correct to say that in cases of this nature the Courts of Equity in England afford relief. The cases cited in the argu- ment for the defendants, as in point to that purpose, are noticed by Justice Buller in the case of Doe v. Sandham, and he speaks of them as decisions on particular circumstances, and not upon any general principle or rule of equity. Upon the whole, this established rule of law determines the construction and operation of the contract relied on by the plaintiffs in the case at bar. When words of the same import are used, as were employed in the contracts, upon which the decisions cited and referred to were made, the intentions of IN REALTY. 367 the parties must be understood in conformity to those decisions, even admitting the supposed hardship of the case or severity of the demand. But even this objection seems inapplicable when we consider the lease as a bargain and sale for the term at an agreed price. When there is no covenant on the part of the lessor to insure against fire, or any engagement to re- pair the premises in that event, or any other casualty, by which they may be impaired or destroyed, the accident be- comes the misfortune of the lessee, and he is not excused from his rent. Judgment is not arrested, but must be entered according to the verdict. Minn. Gen. Laws, 1833, ch. 100 ; supra, 37 Minn. 4. The rent of a quarry at a certain number of cents per perch for each and every perch quarried is a certain money rent : Cross v. Tome, 14 Md. 247. Exception. If apartments in the upper story of a building, being the subject of a lease, are destroyed by casualty, the lessee is discharged from his covenant to pay rent. Graves v. Berdan, Court of Appeals, New York, 1863. 26 N. Y. 498. Rooms in the second story of a building were leased to the defendant for five years. The building was destroyed by fire. There was no covenant by the landlord or tenant to rebuild. The action is for rent for a quarter subse- quent to the fire. RosEKRANs, J. The opinion delivered by Justice Emott in this case, in the Supreme Court, is a correct exposition of the law applicable to it, and for the reasons stated therein, the judgment should be affirmed. The case of Stockwell v. Hunter, 11 Mete. 448, may be added to the authorities cited by Justice Emott to show that a lease of basement rooms or chambers, in a building of several stories in height, without any stipula- tion, by the lessor or lessee, for rebuilding, in case of fire or 368 ILLUSTRATIVE CASES other casualties, gives the lessee no interest in the land upon which the building stands, and that if the whole building is destroyed by fire, the lessee's interest in the demised rooms is terminated, and the lessor may, after the destruction of the building, enter upon the soil and rebuild upon the ruins of the former edifice. It may be added that at common law, where the interest of the lessee in a part of the demised premises was destroyed by the act of God, so that it was incapable of any beneficial enjoy- ment, the rent might be appoi'tioned. In Rolle's Abridg- ment, 236, it is said that if the sea break in and overflow a part of the demised premises, the rent shall be apportioned for though the soil remains to the tenant, yet as the sea is open to «very one, he has no exclusive right to fish there. A distinc- tion is taken between an overflow of the land by the sea, and fresh water, because, though the land be covered with fresh water, the right of taking the fish is vested exclusively in the lessee, and in that case the rent will not be apportioned. In the latter case the tenant has a beneficial enjoyment, to some •extent, of the demised premises, but in the former he has none, «nd if the use be entirely destroyed and lost, it is reasonable that the rent should l>e abated, because the title to the rent is founded on the presumption that the tenant can enjoy the demised premises during the term : Com. Land, and Ten. 218 ; Gilh. on Rents, 182. Where the lessee takes an interest in the soil upon which a building stands, if the building is destroyed by fire, he may Tise the land upon which it stood, beneficially, to some extent, without the building, or he may rebuild the edifice ; but where he takes no interest in the soil, as in the case of a demise of a basement, or of upper rooms in the building, he cannot enjoy tlie premises in any manner after the destruction of the build- ing, nor can he rebuild the edifice. He cannot have the exclu- sive enjoyment of the vacant space formerly occupied by the ased upon what is called adverse possession. But as the 568 ILLUSTKATIVE CASES greater includes the less, the complaint suflBciently pleaded actual possession at the time of the defendant's alleged entry^ so that if upon the trial the plaintiflFs failed to make out ad- verse possession, such as would give them title as against the^ holder of the paper title, still, if they proved actual possession, they might properly insist that they were within the allega- tions of their complaint, and had made out a case as against a mere trespasser. For as against one showing no title in him- self, possession is title: Wilder u City of St. Paul, 12 Minn. 116 (192) ; Rau v. Minnesota Valley R. R. Co., 13 Minn. 407 (442); Sedg. & W. Tr. Title Land, §§ 717, 718. The evidence upon the trial below in the case at bar showed that plaintiffs were in possession of the strip of land in con- troversy at the time of defendant's entry upon it, and defend- ant gave no evidence of any right or title in himself. In this state of the evidence the plaintiffs were entitled to judgment, and hence the trial Court erred in dismissing the action at the- close of the plaintiffs' testimony. As this point is insisted upon by the plaintiff it cannot be disregarded, and so there must be a new trial. This disposes of the present appeal, but (as we surmise) not of the real merits of the controversy, and therefore, with refer- ence to a new trial, we deem it expedient to determine certain other questions raised upon the argument. And, first, though there are a few cases which hold that the- statutory period of adverse possession, which will bar an action for the recovery of land, may be made up by tacking together the periods of the adverse possession of several successive- holders between whom there is no privity (see Scales t'. Cockrill,. 3 Head, 432; Smith v. Chapin, 31 Conn. 530; Davis v. McArthur, 78 N. C. 357), the rule laid down by the great majority of Courts and by the text-writers, and supported by the weight of authority, and which must be regarded as the true rule, is that privity between successive adverse holders is indis- pensable. And this upon the principle that unless the suc- cessive adverse possessions are connected by privity, the dis- seisin of the real owner resulting from the adverse possession IN REALTY. 56& is interrupted, and during the interruption, though but for a moment, the title of the real owner draws to it the seisin or possession : Melvin v. Proprietors, etc., 5 Mete. 15 (38 Am. Dec. 384) ; Haynes v. Boardman, 119 Mass. 414; McEntire v. Brown, 28 Ind. 347 ; Jackson v. Leonard, 9 Cow. 653 ; Wood, Lira., § 271 ; San Francisco ■;;. Fulde, 37 Cal. 349 ; Crispen v. Hannavan, 50 Mo. 536 ; Shuflleton v. Nelson, 2 Sawy. 540 ; Ang. Lim., §§ 413, 414 ; Sedg. & W. Tr. Title Land, §§ 740, 745-747 ; Riggs v. Fuller, 54 Ala. 141. Second. The privity spoken of exists between two successive holders when the later takes under the earlier, as by descent (for instance, a widow under her husband, or a child under its parent), or by will or grant, or by a voluntary transfer of pos- session : Leonard v. Leonard, 7 Allen, 227 ; Hamilton v. Wright, 30 Iowa, 480 ; Jackson v. Moore, 13 John. 513 (7 Am. Dec. 398) ; McEntire v. Brown, supra ; Weber v. Anderson, 73 111. 439 ; Wood, Lim., § 271 ; Sedg. & W. Tr. Title Land, §§ 747, 748. Third. While to operate as a bar, adverse possession must be continuous, continuity will not be .interrupted by the posses- sion, during any part of its period, of one who occupies the- premises as a tenant of the alleged adverse possessor. In such cases the tenant's possession is that of his landlord : San Francisco v. Fulde, supra ; Rayner v. Lee, 20 Mich. 384 ; Sedg. & W. Tr. Title Land, § 747. Fourth. Possession, to be adverse, so as to bar an owner's right of action, must be actual, open, continuous, hostile, ex- clusive, and accompanied by an intention to claim adversely : Sedg. & W. Tr. Title Land, § 731 et seq. This is all which we deem it necessarj' to say in this case ; for, as there is to be a new trial, we forbear to comment upon the evidence. Order reversed, and new trial awarded. 570 ILLUSTRATIVE CASES But to acquire title to land as against the real owner, there must be an entry thereon by the claimant, with intent to claim title thereto, followed by an actual, open, continuous, exclusive, and hostile pos- session during the statutory period of limitation. Actual Entry with Hostile Intent. EwiNG V. Burnet. Supreme Court of the United States, 1837. 11 Pet. 41. Mr. Justice Baldwin. In the Court below, this was an action brought in November, 1824, by the lessor of the plaintiff, to recover possession of lot No. 209, in the city of Cincinnati, the legal title to which is admitted to have been in John Cleves Symmes, under whom both parties claimed : the plaintiff, bj"^ a deed dated 11th of June, 1798, to Samuel Foreman, who, on the next day, conveyed to Samuel Williams, whose right, after his death, became vested in the plaintiff : the defendant claimed by a deed to himself, dated 21st of May, 1803, and an adverse possession of twenty-one years before the bringing of the suit. It was in evidence that the lot in controversy is situated on the comer of Third and Vine Streets ; fronting on the former one hundred and ninety-eight, on the latter ninety-eight feet ; the part on Third Street is level for a short distance, but descends toward the south along a steep bank, from forty to fifty feet, to its south line ; the side of it was washed in gullies, over and around which the people of the place passed and repassed at pleasure. The bed of the lot was principally sand and gravel, with but little loam or soil ; the lot was not fenced, nor had any building or improvement been erected or made upon it, until within a few years before suit brought ; a fence could have been kept up on the level ground on top of the hill on Third Street, but not on its declivity, on account of the deep gullies washed in the bank ; and its principal use and value was in the convenience of digging sand and gravel for the in- habitants. Third Street separated this lot from the one on which the defendant resided from 1804, for many years, his IN REALTY. , 571 mansion fronting on the street ; he paid the taxes on this lot from 1810 until 1834, inclusive ; and from the date of the deed from Symmes, until the trial, claimed it as his own. During this time, he also claimed the exclusive right of digging and removing sand and gravel from the lot ; giving permission to some, refusing it to others ; he brought actions of trespass against those who had done it, and at different times made leases to different persons, for the purpose of taking sand and gravel therefrom, besides taking it for his own use, as he pleased. This had been done by others without his permission, but there was no evidence of his acquiescence in the claim of any person to take or remove the sand or gravel, or that he had ever intermitted his claim to the exclusive right of doing so ; on the contrary, several witnesses testified to his continued assertion of right to the lot ; their knowledge of his exclusive claim, and their ignorance of any adverse claim for more than twenty-one years before the present suit was brought. They further stated, as their conclusion from these facts, that the de- fendant had, from 1806, or 7, in the words of one witness, " had possession of the lot ;" of another, that since 1804, " he was as perfectly and exclusively in possession, as any person could possibly be of a lot not built on or inclosed ;" and of a third, " that since 1811, he had always been in the most rigid posses- sion of the lot in dispute ; a similar possession to other posses- sions on the hill lot." It was further in evidence that Samuel Williams, under whom the plaintiff claimed, lived in Cin- cinnati, from 1803, till his death in 1824 ; was informed of defendant having obtained a deed from Symmes, in 1803, soon after it was obtained, and knew of his claim to the lot ; but there was no evidence that he ever made an entry upon it, de- manded possession, or exercised or assumed any exercise of ownership over it ; though he declared to one witness, pro- duced by plaintiff, that the lot was his, and he intended to claim and prove it when he was able. This declaration was repeated often ; from 1803, till the time of his death, and on his death-bed ; and it appeared that he was, during all this time, very poor ; it also appeared in evidence, by the plaintiff's 572 ILLUSTRATIVE CASES witness, that the defendant was informed that Williams owned the lot before the deed from Symmes, in 1803, and after he had made the purchase. This is the substance of the evidence given at the trial, and returned with the record and a bill of exceptions, statmg that it contains all the evidence offered in the cause : whereupon the plaintiff's counsel moved the Court to instruct the jury that on this evidence the plaintiff was entitled to a verdict ; also that the evidence offered by the plaintiff and defendant waa not sufficient, in law, to establish an adverse possession by the defendant : which motions the Court overruled. This forms- the first ground of exception by the plaintiff to the overruling his motions : 1. The refusal of the Court to instruct the jury that he was entitled to recover : 2. That the defendant had made out an adverse possession. Before the Court could have granted the first motion, they must have been satisfied that there was nothing in evidence, or any fact which the jury could lawfully infer therefrom, which could in any way prevent the plaintiff's recovery ; if there was any evidence which conduced to prove any fact that could pro- duce such effect, the Court must assume .such fact to have been proved ; for it is the exclusive province of the jury to decide^ what facts are proved by competent evidence. It was also their province to judge of the credibility of the witnesses, and the weight of their testimony, as tending, in a greater or less degree, to prove the facts relied on ; as these were mattei^s with which the Court could not interfere, the plaintiff's right to the instructions asked must depend upon the opinion of the Court, on a finding by the jury in favor of the defendant, on every matter which the evidence conduced to prove ; giving fall credence to the witnesses produced by him, and discred- iting the witness for tlie plaintiff. Now as the jury might have refused credence to the only witness who testified to the notice given to the defendant of Williams' ownership of the lot in 1803, and of his subsequent assertion of claim, and. his intention to improve it ; the testimony of this witness must be thrown out of the case, in testing th& IN REALTY. 573 •correctness of the Court in overruling this motion ; otherwise we should hold the Court below to have erred, in not instruct- ing the jury on a matter exclusively for their consideration ; the credibility of a witness, or how far his evidence tended to prove a fact, if they deemed him credible. This view of the case, throws the plaintiff back to his deed, as the only evidence of title, on the legal effect of which, the Court were bound to instruct the jury as a matter of law, which is the only question to be considered on this exception. It is clear that the plaintiff had the elder legal title to the lot in dispute, and that it gave him a right of possession, as well as the legal seisin and possession thereof, co-extensively with his right ; which continued till he was ousted by an actual adverse possession : 6 Pet. 743 ; or his right of possession had been in some other way barred. It cannot be doubted that from the evidence adduced by the defendant, it was competent for the jury to infer these facts ; that he had claimed this lot under color and claim of title, from 1804, till 1834 ; had exer- cised acts of ownership on, and over it, during this whole period ; that his claim was known to Williams and to the plaintiff ; was visible ; of public notoriety for twenty years previous to the death of Williams. And if the jury did not credit the plaintiff's witness, they might also find that the de- fendant had no actual notice of Williams' claim ; that it was unknown to the inhabitants of the place, while that of the de- fendants was known ; and that Williams never did claim the lot, or assert a right to it from 1803, till his death in 1824. The jury might also draw the same conclusion from these facts, as the witnesses did } that the defendant was during the whole time in possession of the lot, as strictly, perfectly, and exclu- sively, as any person could be of a lot not inclosed or built upon ; or as the situation of the lot would admit of The plaintiff must therefore rely on a deed of which he had given no notice, and in opposition to all the evidence of the defend- ant, and every fact which a jury could find, that would show a right of possession in him, either by the presumption of a release or conveyance of the elder legal title, or by an adverse 574 ILLUSTRATIVE CASES possession. On ihj^ evidence in the cause the jury might have presumed a release, a conveyance, or abandonment of the claim or right of Williams, under a deed in virtue of which he had made no assertion of right from 1798, in favor of a possession, such as the defendant held from 1804 ; though it may not have been strictly such an adverse possession, as would have been a legal bar under the act of limitations. There may be circumstances which would justify such a presumption in less than twenty-one years : 6 Pet. 513 ; and we think that the evidence in this case was in law sufficient to authorize the jury to have made the presumption to protect a possession of the nature testified for thirty years ; and if the jury could so pre- sume, there is no error in overruling the first motion of the plaintiff. On the next motion, the only question presented is on the legal sufficiency of the evidence to make out an ouster of the legal seisin and possession of Williams by the defendant, and a continued adverse possession for twenty-one years before suit brought. An entry by one man on the land of another is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done ; if made under claim and color of right, it is an ouster ; otherwise it is a mere trespass, in legal language the iutention guides the entry, and fixes its character. That the evidence in this case justified the jury in finding an entry by the defendant on this lot, as early as 1804, cannot be doubted ; nor that he claimed the exclusive right to it under color of title, from that time until suit brought. There was abundant evidence of the intention with which the first entry was made, as well as of the subsequent acts related by the witnesses, to justify a finding that they were in assertion of a right in himself; so that the only inquiry is as to the nature of the possession kept up. It is well settled that to constitute an adverse possession, there need not be a fence, building, or other improvement made : 10 Pet. 442 ; it suffices for this pur- pose, that visible and notorious acts of ownership are exercised over the premises in controversy, for twenty-one years, after an IN REALTY. 575- entry under claim and color of title. So much depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it that it is difficult to lay down any pre- cise rule adapted to all cases. But it may with safety be said that where acts of ownership have been done upon land, which from their nature indicate a notorious claim of property in it, and are continued for twenty-one years, with the knowledge of an adverse claimant without interruption, or an adverse entry by him, for twenty-one years, such acts are evidence of an ouster of a former owner, and an actual adverse possession against him ; if the jury shall think that the property was not susceptible of a more strict or definite possession than had been so taken and held. Neither actual occupation, cultiva- tion, or residence are necessary to constitute actual possession : 6 Pet. 513 ; when the property is so situated as not to admit of any permanent useful improvement ; and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim. Whether this was the situation of the lot in question, or such was the nature of the acts done, was the peculiar province of the jury ; the evidence in our opinion was legally sufficient to draw the inference that such were the facts of the case ; and if found specially, would have entitled the defendant to the judgment of the Court in his favor ; they, of course, did not err in refusing to instruct the jury that the evidence was not sufficient to make out an adverse possession. The remaining exceptions are to the charge of the Court, in which we can perceive no departure from established prin- ciples. The learned Judge was very explicit in stating the re- quisites of an adverse possession ; the plaintiff had no cause of complaint of a charge, stating that exclusive appropriation by an actual occupancy, notice to the public, and all concerned of the claim, and enjoyment of profits by defendant, were all necessary. No adjudication of this Court has established stricter rules than these ; and if any doubts could arise, as to -576 ILLUSTRATIVE CASES their entire correctness, it would be on an exception by the de- fendant. In applying them in the subsequent part of the charge to the evidence, there seems to have been no relaxation of these rules. The case put by the Court, as one of adverse possession, is of a valuable sand bank exclusively possessed, and used by the defendant, for his own benefit, by using and selling the sand ; and this occupancy, notorious to the public and all concerned, which fully meets all the requisites before stated, to constitute adverse possession. If we take the residue •of the charge literally, it would seem to add other requisites ; as the payment of taxes, ejecting and prosecuting trespassers •on the lot ; its contiguity to the defendant's residence, etc.; but such is not the fair construction of the charge, or the apparent meaning of the Court. These circumstances would seem to have been alluded to, to show the intention with which the acts previously referred to were done ; in which view they were important, especiallj', the uninterrupted payment of taxes on the lot for twenty-four successive years ; which is a powerfiil evidence of claim of right to the whole lot. The plaintiff's counsel has considered these circumstances as making a dis- tinct case in the opinion of the Court, for the operation of the statute ; and has referred to the punctuation of the sentence, in support of this view of the charge. Its obvious meaning is, however, to state these as matters additional or cumulative to the preceding facts ; not as another distinct case made out by the evidence, on which alone the jury could find an adverse possession. Punctuation is a most fallible standard by which to interpret a writing ; it may be resorted to when all other means fail ; but the Court will first take the instrument by its four corners, in order to ascertain its true meaning ; if that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it. It has been urged, in argument, that as the defendant had notice of the claim of Williams, his possession was not fair and honest, and so not protected by the statute. This admits of two answers : 1. The jury was authorized to negative any notice ; 2. Though there was such notice of a prior deed, as IN REALTY. 577 ■would make a subsequent one inoperative to pass any title, yet an adverse possession for twenty-onp years, under claim and «olor of title, merely void, is a bar ; the statuory protection being necessary only where the defendant has no other title but possession, during the period prescribed. The judgment of the Circuit Court is therefore affirmed. Ellicott V. Pearl, 10 Pet. 441 ; Kerr v. Hitt, 75 111. 51 ; Clark v. Potter, 32 Ohio St. 49 ; Fleming v. Maddox, 30 Iowa, 241 ; Churchill v. Onderdonk, 59 N. Y. 136; Dean v. Goddard, 56 N. W. Rep. 1060. Actual Possession. Fleming v. Maddox. Supreme Court of Iowa, 1870. 30 Iowa, 239. Miller, J. The only error assigned is the ruling of the Circuit Court, sustaining appellee's motion to set aside the sheriff's sale and deed. The facts disclosed by the record are : 1. The appellees, Thomas A. Maddox and his wife, at the time of the issuance of the execution, levy, and sale resided in Polk County. 2. The land levied on and sold is situated in Boone County. 3. Thomas A. Maddox was the owner of the land levied on, upon which he had erected a saw-mill which he had been operating up to within four or five weeks of the levy, manu- facturing the timber on the premises into lumber ; at the time of the levy, however, the mill, for some temporary reason, was not running. There were a number of lumbermen and chop- pers, employees of defendant, residing and working on the land at the time of the levy, one of whom had the general manage- ment of defendant's business connected with the mill, etc. 4. Neither the defendant, nor his wife, nor his foreman on the premises were served with written notice of the levy and sale of the land, as contemplated -by section 3318 of the 37 578 ILLUSTRATIVE CASES Revision in cases where a defendant in execution is in the actual occupation and possession of the land levied on. 5. The execution was a special one issued upon a judgment and decree of foreclosure of a mortgage against the land levied and sold. Upon these facts the Court below held that the defendant, Thomas A. Maddox, was entitled to the notice prescribed in the section of the Revision above named. Was there error in this ruling ? The provisions of the section referred to are, : " If the defendant is in the actual occupation and possession of an}' part of the land levied on, the officer having the execu- tion shall, at least twenty days previous to such sale, serve the defendant with written notice, stating that the execution is levied on said land, and mentioning the time and place of sale ; and sales made without the notice required in this section may be set aside on motion made at the same or the next term thereafter." There are two kinds of possession of real property known to the law — actual and constructive. It is actual when in the immediate occupancy of the party. It is actual where the owner goes upon the land to take possession, and exercises acts of ownership over it. It is actual also where one having the title is in possession of lands by his tenant, agent, or steward : 2 Bouv. Law Die. 352, title " Possession ;" Lang- worthy V. Myers et al., 4 Iowa, 21, 39, 40; Wall v. Nelson, 3 Litt. 398 ; HumiDhrey v. Jones, 3 Mon. 261 ; Bell v. Long- worth, 6 lud. 274; Speed v. Buford, 3 Bibb. 75. Constructive possession is where one claims to hold by virtue of some title, without having the actual occupancy, as when the owner of a tract of land, regularly laid out, is in possession of a part, he is constructively in possession of the whole: 2 Bouv. Law. Die. 352, title "Possession." Under our statute, " all persons owning lands not held by an adverse possession shall be deemed to be seised and possessed of the same :" Rev., § 2207. Of what kind, then, was the possession of the appellee, actual or constructive ? His ownership is conceded. He had IN REALTY. 579 actually entered upon the land, erected a saw-mill thereon, was carrying on the business of manufacturing the timber thereon into lumber and fire-wood, some of his employees residing on the land, and he w^as exercising acts of ownership generally over the premises. Previous to his actual entry for these purposes, being the owner, he had constructive possession only, but after such entry, etc., his possession became actual. It became such because of his entry- for the purpose of taking actual posses- sion, and because he continued to exercise acts of ownership thereon, and employing and keeping persons residing upon the premises actually engaged in the business which he was there prosecuting. True, he did not himself reside thereon or make that his home, but a man may have actual possession of real property without residing upon it. He may have such possession, although there be no house thereon in which to reside : Langworthy v. Mj'ers, 4 Iowa, 21 ; Roberts v. Long, 12 B. Mon. 195 ; Campbell v. Thomas, lb. 83 ; Humphrey v. Jones, supra. In the case of Langworthy ■;;. Myers, supra, the plaintiff did not reside upon the premises, nor on land contiguous thereto, and this Court held that his entry and taking possession, and exercising acts of ownership from time to time, constituted " actual possession." In order, however, to entitle the appellee to written notice of the levy and sale as contemplated by the statute, he must have been in the " actual occupation " as well as " actual pos- session " of the premises : Rev. of 1860, § 3318. By the term " occupation " is meant use or tenure, as a house in the occupation of A. : 2 Bouv. Law Die. 254. An occupier is one who is in the use or enjoyment of a thing: lb. A mechanic is in the occupation of his shop where he carries on his business ; a merchant of his store ; a lawyer of his office ; a farmer of his farm. It is not necessary to make his occupation complete that the mechanic should reside in his shop or upon the same lot. He is in the occupation 580 ILlA'aTKATlVE CAS£:< because he uses and enjoys it in carrying on his legitimate calling. So with the merchant, the lawyer, the farmer. If the farmer leases his farm to a tenant, he would still have the possession, because the possession of the tenant is that of his landlord, but he would not be in the actual occupation ; he has parted with that to his tenant. The tenant, after entry under the lease, has the use and enjoj'ment of the premises, and paj's to his landlord the stipulated rent therefor. But, where the owner of land is in the actual use and enjoyment of it himself, although iii such use and enjoyment he employs others to perform all the labor connected therewith, he is in its actual occupation, within the meaning of that term. In the case before us the appellee owned the land ; he used and enjoyed it in a legitimate way for his own benefit ; he was prosecuting a regular business thereon ; he was in its " actual occupation and possession." It is insisted, however, on the part of appellant, that not- withstanding defendant was in " actual occupation and pos- session," yet this sale, having been made under a fecial execu- tion in conformity to a decree of foreclosure of a mortgage, the sale was in obedience to the order of the Court ; the officer and defendant had nothing left but obedience thereto, and that the defendant could not have been benefited by the notice in question. This precise question was made and decided in the case of Jenssn v. Woodbury, 16 Iowa, 516. It was there held that the provisions of section 3318 of the Revision were applicable to all sales on execution, including sales on special executions, in the foreclosure of mortgages. With that decision, and the reasons given in support of it, we are satisfied. The judgment of the Circuit Court is affirmed. IN REALTY. 581 Open. It must be open, visible or notorious possession, such that the real owner may be presumed to knovr that there is a possession of the land adverse to his title, otherwise one might be disseised without bis knoMvledge. Whitaker v. Erie Shooting Club. Supreme Court of Michigan, 1894. 60 N. W. Rep. 983. Grant, J. The complainant, Maria, is the widow, and the other complainants are the heirs-at-law of Harvey Whitaker, deceased, who died in June, 1890. Harvey Whitaker pur- chased the land in question in 1837. The object of the bill is to remove a cloud from their title, caused by a tax deed made by the State of Michigan , January 16, 1860, to Ehas W. Hodges and Andrew J. Keeney for the taxes of 1857, and a lease executed by Andrew J. Keeney to the Erie Shooting Club August 28, 1889. The defendant, Keeney, answered, claiming title by adverse possession, and asking affirmative relief, affirming his title. The Shooting Club answered, ad- mitting the execution of the lease and of its corporation, and leaves complainants to their proofs on their other allegations. The situation and character of the land : The land is a piece of marsh situated in the southeast comer of Monroe County, about 120 rods from the mainland, on the west, and a mile from the sea-wall of the shore of Lake Erie on the east. Between it and the mainland is mud, which is at times cov- ered with water. Upon it is a large sulphur spring. Around the spring the land is a little higher, and on a few acres grows hay fit for use. At low water the land around this spring is from a foot and a half to two feet above the water. When the wind blows from Lake Erie the land is entirely submerged. The only way to reclaim it, so as to render it fit for cultivation, would be the erection of a dike around it sev- eral feet high. The only use to which it can ever be put, aside from the cutting of the hay around the spring, is for 582 ILLUSTKATIVE CASES hunting birds, muskrats, and mink, but its principal use is for hunting birds. Abandonment by complainant's ancestor : From 1837 to 1892 neither the complainants nor their ancestor exercised any act of possession. For ten years prior to his death Har- vey Whitaker lived in Detroit, forty miles distant. Maria S. Whitaker testified on behalf of the complainants as follows : " Q. Do you know what became of his property ? A. Well, it was overflowed. We had nothing to do with it. Q. What did you do with this spring lot ? A. I don't know as any- thing. We all supposed it went. We considered it all lost. We thought it wasn't worth anything. Q. And you aban- doned it? A. Yes. Q. You never paid any taxes on it. A. No, sir, I think not. I never knew any being paid. Q. When did j^ou first know your husband left this property ? A. I knew he bought it at the time, but, as I say, we had given it up. It was overflowed, and we supposed it was worth noth- ing. I don't suppose he knew it was worth anything." Prior to 1860 the land was sold for taxes, to various parties, who took no steps to obtain possession. Defendants' connection with the land : Mr. Hodges and An- drew J. Keeney knew that Mr. Whitaker had abandoned the land at the time of the purchase of the tax title. Their tax deed was placed upon record January 30, 1860. From that time to the present the taxes were assessed to and paid by them. Hodges and Keeney leased the right to trap upon the premises to various parties every year, some years receiving four or five dollars ; some, twelve or fifteen ; and other years receiving nothing. They also caused some willows to be planted near the spring and occasionally cut hay. No other acts of actual possession are shown, except that they occasion- ally went to the land to look after it, as owners of land usually do. From 1860 to the commencement of this suit, it was un- derstood by all living in the neighborhood that this was the property of Hodges and Keeney. On May 8, 1879, Andrew J. Keeney executed to the Bay Point Shooting Club a lease of the undivided half interest of the land, which interest is now IN REALTY. 583 the sole subject of controversy here, for the purpose of hunt- ing and shooting snipe, wild fowls, and all other birds recog- nized as game by the laws of the State, and for all other pur- poses necessary and incident thereto, and for no other use or purpose. This lease was recorded November 15, 1880. This <;lub immediately caused signs to be painted, and posted at various places around this laud the following notice : " Lands of the Bay Point Sliooting Club. All Trespassers will be Prosecuted. [Signed] A. J. Keeney, President." At the termination of that lease, and on August 28, 1889, Mr. Keeney executed a similar lease to the Erie Shooting Club, which was recorded March 22, 1890. During the occupancy by these clubs these signs were placed in position every spring and taken up every fall, because the ice would carry them away. "Watchmen were also employed to keep off trespassers during the shooting season. These acts of possession continued from 1880 to the commencement of this suit in 1893. The requirements of an adverse possession necessary to establish title to real estate are well understood. The diffi- culty arises in applying these requirements in each case as it arises. Each case, as a rule, must be controlled by its own facts and circumstances. The established rule of this Court, is : " It is sufficient if the acts of ownership are of such a char- acter as to openly and publicly indicate an assumed control or use such as are consistent with the character of the premises in the question :" Murray v. Hudson, 65 Mich. 670, 32 N. W. 889. The occupation need not be such as to inform a passing .-stranger that some one is asserting title. If it be such as to notify and warn the owner, should he visit the premises, that a person is in possession under a hostile claim, it is sufficient. After long and intentional abandonment by the owner in this case, those under whom the defendants claim obtained a tax deed from the State of Michigan. They immediately placed this on record. This, of itself, was a sufficient disseisin to sup- port an action of ejectment by the original owner : Hoyt v. Southard, 58 Mich. 434, 25 N. W. 385. The defendant at once commenced to exercise such acts of possession and ownership 584 ILLUSTRATIVE CASES as were consistent with the character of the land. Evidence- of the general understanding in the neighborhood that they were the owners, and that it was called theirs, was held com- petent, as tending to establish tl;ie notoriety of defendant's poh~ session and claim of title : Sparrow v. Hovey, 44 Mich. Qi, t> N. W. 93. Pedis possessio is not indispensable. The laud need not be fenced. Buildings are not necessary. Where the possession claimed was by cutting grass and pasturing cattle each year during the season and planting trees, it was held U> be evidence of a practically continuous, exclusive, and hostilo possession: Sauers v. Giddings, 90 Mich. 50, 51 N. W. 2(>5. Openly and notoriously claiming and using land in the only way it could be used without fencing or cultivation was held to establish adverse possession : Curtis v. Campbell, 54 Mich. 340, 20 N. W. 69. Cropping land, though no one was actually upon it, and nothing done thereon between harvest and re- cropping, were held to establish adverse possession : Cook v.. Clinton, 64 Mich. 309, 31 N. W. 317. It may well be con- ceded that paying taxes, or assertion of title, or the common understanding in the neighborhood, or making surveys, or an occasional renting for trapping and shooting, is not sufficient to establish title by adverse possession. But they are all com- petent evidence to be considered in determining the question. The notices which were posted around this land from early in the spring till late in the fall, every year for twelve successive years, was notice of an adverse title and possession. The- owner, if he visited it, could not have failed to understand their meaning. They were inconsistent with the rights of the original owner of the fee. The land was then valuable for lit- tle else than shooting. Mr. Whitaker lived within forty miles of this land for ten years, with these open, notorious assertions of title and possession posted around the land from early in the spring till late in the fall. This substp,ntially covered all the time during which this land could be used for any purpose ex- cept for hunting muskrats. The notice denied all right to use unless authorized by the club. We need not discuss the ques- tion of possession prior to the lease of the Bay Point Shooting IN REALTY. 585 Club. Ten years of adverse possession under the tax deed is sufficient. The decree will be affirnaed. Costello V. Edson, 44 Minn. 135 ; Vandall v. St. Martin, 42 Minn. 163 ; Wood (. Springer, 45 Minn. 299 ; Watrous v. Morrison, 33 Fla. 261 ; 14 S. Rep. 805 ; Foulke V. Bond, 41 N. J. L. 545 ; Cornelius v. Giberson, 25 N. J. L. 33 ; Cobb V. Davenport, 32 N. J. L. 385. If the hostile entry is with the knowledge of the owner, notorious posses- eion is not necessary : Key o. Jennings, 66 Mo. 307 ; Cook v. Babcock, 11 Cush. 206; School District c. Lynch, 33 Conn. 330; Murphy i: Doyle, 37 Minn. 113; Scott V. Woodruff, 4 S. W. Eep. 908. Continuoiis. BowEN V. Guild. Supreme Judicial Court of Massachusetts, 1880. 130 Mass. 121. The plaintiff had owned certain lands, which defendant had possessed ad- versely for more than the statutory period of limitation, except that within that period the plaintiff had once entered and passed over the land to ascer- tain its condition, which entrance he claimed was an interruption of defend- ant's possession, and thereafter he brought an action of tort against the de- fendant for entering the close and erecting a fence thereon. Lord, J. We have deemed it necessar}'^ in this case to con- sider but one of the various questions raised by the defendant. Mr. Ellis Ames, a counsellor of this Court, testified " that in August, about the year 1870, he went upon the land with Mr. Bowen, one of the plaintiffs ; that they went all over the laud and saw no fence, either upon the road or any other side of the land ; that the land was rough and uncultivated ; that bushes were growing upon a part of it ; that he saw no indica- tion that the land had been cultivated that year ; that he saw no one else on the land ; and that they went upon the land for the purpose of discovering, if they could, any evidence of adverse occupation upon which he could bring a writ of entry against Charles L. Guild." The presiding Judge ruled that, if the facts thus testified to were true, they constituted, as matter of law, necessarily, an interruption of an adverse pos- 586 ILLUSTRATIVE CASES session of the defendant, commencing at the time of the insti- tution of the former suit, in August, 1857, and continuing, with such exception, to the commencement of the present action, in October, 1878, a period of more than twenty years. This ruling seems to have been based upon a misapprehen- sion of the decision in Brickett v. Spofford, 14 Gray, 514. In that case, it appears that the owner of the land went upon it in company with one who proposed to purchase it, for the pur- pose of ascertaining, in view of the proposed purchase and sale, the value of the land, the quantity and quality of the wood upon it, and such elements as were necessary to deter- mine its value ; and that after such entry the owner of the land gave a deed of it to the person who was at the time of their going upon the land negotiating for its purchase. The Court did not hold, as matter of law, that such entry upon the land was conclusive upon the question of adverse possession by the defendont ; but held that it was evidence to be sub- mitted to the jury, with all the other evidence in the case, in determining whether the party did make such a re-entry as t® enable him to convey his estate by deed ; the only question in that case being whether the plaintiff's grantor was so disseised at the time of the conveyance as that he could not effectually convey his title except by re-entry and delivery of the deed upon the land. The defendant had been in possession only two years, and his title was obtained through a levy upon the estate which had been previously made, and which was unre- corded, and therefore void as against the plaintiff, taking a deed under the judgment debtor's title without notice. If, in that case, the entry as thus made had not been followed by the assertion of title which the conveyance by warranty deed im- plies, and had been followed by no other act of possession during the subsequent eighteen years during which the de- fendant had continued to hold it, and the Court had decided that the adverse possession could not commence until after such possession, because such an entry was an interruption to the adverse possession, that decision would have been authority for the ruling. But the question there presented was an entirely IN REALTY. 587 different one. It had no relation to the question of the acquisi- tion of title by adverse possession, but only to the question whether the true owner was so disseised at the time of his grant that his deed passed no title ; and in that case the de- cision of the Court went only to the point that the evidence was proper to be submitted to the jury upon the question whether he had in fact so repossessed himself, under an entry claiming the highest right of ownership, that of selling the land, and actually selling it, after negotiations upon it, as to make his deed effectual. The entry in this case was followed by no act of ownership, and was simply a passing over the land for the purpose of ascertaining its condition, to see whether any use had been made of it, or whether any buildings or structures had been erected upon it, and to see whether there was any evidence of a disseisin. It did not appear that such passing over the land was in presence of the defendant, or that he ever in any mode had any knowledge of it. The circumstances under which it was made, and the time of day or night, do not appear, except as it may be inferred from the known character of the gentle- man under whose direction it appears to have been done. It is consistent with the actual use by the defendant of the land upon every other day of the twenty years. It was a question for the jury whether in fact it was an interruption of the defend- ant's possession. That fact must be determined by them upon all the evidence in the case ; and it was error in the presiding Judge to rule, as matter of law, that it was necessarily such a re-entry and reclamation of possession as to be an interruption in fact of the defendant's possession. What is an adverse and exclusive possession, and what is an interruption of such possession, depend very much upon the character of the land, and the purposes to which it is adapted and for which it is used. The adverse possession of an outlying lot of small value, remote from the dwellings of people, suitable for pasturing or for the growth of wood, or for some other purpose of husbandry, is to be proved by evidence very different from that which establishes 588 ILLUSTRATIVE CASES the exclusive occupation of a residence or a shop or storehouse within the limits of a thickly settled business population. The rule of law is the same in both cases ; but the evidence^ necessary to prove the fact is very different. In either case the question is : Has the adverse possession, considering the^ nature, situation, and uses of the land, been exclusive and continuous? The presiding Judge having ruled that thi.> single fact, though proper to be considered, Avas in itself, m matter of law, an interruption of the possession, it was error. Although there may be cases in which the occupation by the true owner may be of such a nature, and so continued, that it would be the dutj^ of the Court, upon the truth of such facts being apparent, to rule, as matter of law, that the advers**^ possession had been interrupted, still the general principle is that it is a question for the jury to determine whether in fact the adverse possession has been continuous or has been inter- rupted : Stevens v. Taft, 11 Gray, 33, 35 ; O'Hara v. Richard- son, 46 Pa. St. 385. See, also. Peaceable i;. Read, 1 East,. 568 ; Jackson v. Wood, 12 Johns. 242 ; Van Gorden v. Jack- son, 5 Johns. 440, 467 ; Mayor of Hull v. Horner, Cowp. 102 ; Fishar v. Prosser, Cowp. 217 ; Jackson v. Joy, 9 Johns. 102 ; Beverly v. Burke, 9 Ga. 440 ; De Haven v. Landell, 31 Pa. St. 120 ; Groft v. Weakland, 34 Pa. St. 304. Exceptions sustained. Continuity of possession is maintained by successive occupants, connected by privity of blood, grant, etc. Vandall r. St. JIartin. Supreme Court of Minnesota, 1890. 42 Minn. 163. Collins, J. This is an action to determine adverse claims The plaintiff alleged title to the land in question in fee simple, and that he had occupied and possessed it as a homestead for more than twenty -five years. Defendants denied plaintiff's IN REALTY. 589 alleged title, but admitted his possession for the period of six- teen years ; thus conceding the fact and character of the pos- session, but not for the period of time claimed by the plaintifll'. Much of the testimony received by the trial Court was objected to by appellant defendants, but we have discovered no preju- dicial error, especially in view of the finding .of fact upon pla'intiflf 's claim of adverse possession for more than twenty years prior to the commencement of the action. The testi- mony clearly justified the Court in finding that it was the in- tention of all parties to include in the deed of date of January 26, 1859, executed and delivered by Paul Bibeau, at plaintiff's request, to Bibeau's daughter, then plaintiff's wife, all of the land then used and occupied by plaintiffs as his farm, but held in secret trust by Bibeau. And this same intention ex- isted when, in the year 1880, the deeds were made which, as was supposed, placed the legal title to the farm in plaintiff. Under an arrangement for an exchange of lands made between plaintiff and Mardi, before purchasing from the general gov- ernment, the small tract in question was to be deeded by the latter to plaintiff. On plaintiff's solicitation Mardi deeded it to Bibeau. The testimony was ample, in connection with the facts and circumstances, to warrant the conclusion that this tract was omitted solely by mistake from the Bibeau deed, and that the same mistake followed in the deeds made in 1880. It is evident that all parties supposed, until about the year 1884, that the description in the deeds covered the land in contro- versy. Bibeau, although living in the neighborhood until his decease in 1865, asserted no claim to it as owner or otherwise, and, after his death, his heirs, the appellants, claimed no rights prior to the making of the final decree in Probate Court in the matter of his estate, May 27, 1887, so far as we can discover. The plaintiff has always paid the taxes. The land was fenced by him more than twenty-five years prior to the bringing of this action, and has been farmed annually for more than thirty years. In the year 1870 a dwelling-house was built thereon, into which plaintiff and his family moved from an older house upon another part of the farm. Plaintiff 590 ILLUSTRATIVE CASES has occupied this dwelling-house ever since. From the time of the Bibeau deed, in 1859, down to the deed to the daughter, in 1880, the possession of Mrs. Vandall, plaintiff living with her and carrying on the farm, was exclusive, open, notorious, adverse, and continuous, under an honest claim of ownership. Since the deed to the daughter and her deed to plaintiff (all one transaction), the possession of the plaintiff' has been of the same character. Laboring under a belief that the tract in controversy had been included in the description and conveyed by the Bibeau deed — as it should have been, undoubtedly — Mrs. Vandall in good faith commenced to assert an exclusive ownership in the year 1859, and thereafter, until 1880, for more than twenty years, maintained a continuous, exclusive, and adverse possession. Title by prescription could certainly. be acquired in this way : Smith v. Chapin, 31 Conn. 530 ; Bean v. Bachelder, 74 Me. 202. With this belief as to owner- ship in her mind, she transferred actual possession of the en- tire farm to her husband — who believed the same as to a per- fect and complete title — in the year 1880, under a deed in which existed the same defect in description, and this posses- sion he has since retained. The disseisin of Bibeau, resulting from the adverse possession of Mrs. Vandall, was not inter- rupted by the transfer of possession to her husband. The successive adverse possessions were connected by the privity which exists between two successive holdings when the later takes under the earlier, as by descent, will, grant, or bj- volun- tary transfer of possession : Sherin v. Brackett, 36 Minn. 152 (30 N. W. Rep. 551), and cases cited. The possession must be connected as well as continuous, so that the possession of the true owner shall not constructively intervene between them ; but such continuity and connection maj"^ be effected by any conveyance or understanding which has for its object a trans- fer of the rights of the possessor, or of his possession, and is accompanied by a transfer of his possession in fact : Smith v. Chapin, supra ; McCoy v. Trustees, 5 Serg. & R. 254. The plaintiff herein could tack his possession on to that of his wife. IN REALTY. 591 While the testimony in this case may not have justified the Court below in finding, as it did, that plaintiff held adversely as early as March 1, 1856, it was obvious that Bibeau was disseised in 1859, immediately upon the execution and deliv- ery of the defective conveyance. The testimony in support of the finding as to adverse possession for a period of at least twenty years immediately preceding the commencement of the action is abundant. It was competent to show that it was intended by the parties to include the land in question in the Bibeau deed, and that it was omitted by mistake, as tending to establish the claim that Bibeau's grantee had possession, from its date, in good faith, and with intent to hold adversely. And it was competent to show the same intention to convey, and a like omission in the deeds under which plaintiff took possession, for the purpose of presenting the relation of the possession taken by plaintiff to that relinquished by his wife. Order affirmed. Ramsey v. Glenny, 45 Minn. 401 ; Doe v. Campbell, 10 Johns. 477 ; Witt v. St. P. & N. P. By. Co., 38 Minn. 122. Exclusive. Smith v. Hitchcock. Supreme Court of Nebraska, 1893. 38 Neb. 104; 56 N. W. Rep. 791. E.AGAN, C. This is a suit in ejectment brought on November 9, 1889, in the District Court of Douglas County by Mrs. Charity Smith against Gilbert M. Hitchcock, for a part of lot 1, in Capitol Addition to the city of Omaha. This case was tried to a jury, who, under instructions of the Court, rendered a verdict for Hitchcock, and Mrs. Smith brings the case here for review. Mrs. Smith has no paper title of any kind for any part of the property. Her claim is based wholly on possession. The record shows that on and prior to 1869 this lot. No. 1, being '■'>92 ILLUSTRATIVE CASES 668 feet in leugth north and south, and 218 feet in width east and west, was owned by Mrs. Annie M. Hitchcock. She died in 1887, and the lot by her will passed to her husband, the late Senator Hitchcock. He died in 1881, and the lot de- scended to his son, the defendant in error. About 1870, by permission of Mrs. Hitchcock and her husband, Mrs. Smith moved a small cottage she owned upon this lot 1, near the east line thereof, and lived in this cottage at that place until 1880. Mrs. Smith did laundry work from time to time during these years for the Hitchcock family and others. She also planted part of the ground near her cottage to a garden. During all these years the Hitchcock family, consisting of Mrs. Hitchcock, her husband, and the defendant in error, and others, lived upon the lot ; had on it their barn, horses, cattle, and garden, and exercised exclusive ownership and control of the whole lot. During all this time it was all under one inclosure, built and maintained by the Hitchcocks ; and that part occupied by Mrs. Smith's cottage was in no other manner, than by the cottage itself, separated or severed from the remainder of the lot. Mrs. Smith, during this period, by the permission and consent of Mrs. Hitchcock and her hus- band, and as a kind of non-rent-paying tenant at will, or suf- ferance, also occupied her cottage on the lot. She paid no taxes. She exercised no act of ownership over the lot or any definite portion of it. Thus matters continued until 1880, when Mrs. Smith, by the permission of Senator Hitch- cock, who then owned the title to the lot as devisee of his de- ceased wife, and who still continued to occupj^ the lot with his family, removed her cottage to a point nearer the west line of said lot and some 250 feet southwest of its original location. This is the present location of the cottage. The usual occu- pation and control of the lot by the Hitchcocks continued as before this removal, and Mrs. Smith continued to live on un- interruptedly in her cottage. The senator died in 1881, and the defendant in error became the owner of the lot, and has since continued to reside upon it in the family homestead. In 1883 defendant in error erected three houses on a portion of IN REALTY. 593 the lot now claimed by Mrs. Smith, which houses have since been occupied by tenants of the defendant in error. In 1886 Douglas Street, 66 feet wide, was extended west across the entire lot, leaving the first location of Mrs. Smith's cottage north of said street. After the extension of Douglas Street, the defendant in error built fences on both the north and south lines of the street, thus dividing said . lot into two separate inclosed portions; one being that part of said lot lying north of said Douglas Street, and on which Mrs. Smith's cottage was first located, and on which the Hitchcock home- stead and the three tenant houses aforesaid are situate ; the other portion being all of said lot 1 south of Douglas Street, and on which portion is now Mrs. Smith's cottage. No claim for damages was made by Mrs. Smith at the time of the ex- tension 'of this Douglas Street, nor did she assert or claim any ownership over the land taken for such extension, though now she claims that the land used for such extension was her prop- erty. She asserted no claim of ownership or title to any of the property at the time of the building of the tenement houses by the defendant in error. Mrs. Smith, to recover here, must prove either a paper title or prove ten years' open, notorious, exclusive, and adverse pos- session. She has no paper title. She occupied, by living in her cottage, a part of this lot openly and notorious^ for ten years, but no specific or definite part of the lot other than the situs of the cottage itself. Her possession of the lot was also concurrent with that of the owner of the legal title. It was a mixed possession ; not an exclusive one. The defendant in error, the holder of the legal title, has never been out of pos- session of the property claimed by Mrs. Smith, and this nega- tives any legal presumption that her possession was adverse to his title or possession : Green v. Liter, 12 U. S. 229 ; Proprie- tors Kennebeck Purchase v. Springer, 4 Mass. 415. But as a matter of fact or law, was Mrs. Smith's possession of this property adverse ? She entered by permission of the owner, and in 1880, by his permission, moved her cottage to another part of the same premises, not involved in this case. 38 594 ILLUSTRATIVE CASES To constitute her possession or occupancy adverse, she must have actually held and occupied the property as her own, and in opposition and hostility to the concurrent and constructive possession of the owner of the legal title : French v. Pearce, 8 Conn. 439 ; Newell Ejectment, p. 697, § 1. There is no evi- dence in the record that establishes, or tends to establish, the fact that Mrs. Smith's possession was an adverse one ; nor that she entered into possession of these premises with the inten- tion of claiming them as her own, or that she ever held after her entry in hostility to the defendant in error. Mrs. Smith's entry on this lot was by permission of the owner of the legal title, and her possession thereafter was permissive and not adverse ; nor could it become so until such time as she began to occupy under a claim of right, with notice of such claim brought home to the owner: Harvey v. Tyler, 2 Wall, U. S, 328 ; Allen v. Allen, 58 Wis. 202-209 ; Perkins v. Nugent, 45 Mich. 156 ; Davenport v. Sebring, 52 la. 364 ; Pease v. Lawson, 33 Mo. 35 ; Smith v. Stevens, 82 111. 554 ; Angell, Limitations, § 354. The Court did not err in instruct- ing the jury to find for the defendant. Complaint is made because of the refusal of the trial Court to permit witnesses of the plaintiff in error to answer certain questions propounded to them on the trial. No tender or offer of the evidence sought to be elicited by these questions was made, and these assignments cannot now be considered : Masters v. Marsh, 19 Neb. 458 ; Connelly v. Edgerton, 22 Neb. 82 ; Yates v. Kinney, 25 Neb. 120 ; Burns v. City of Fairmont, 28 Neb. 866. Another error assigned is the overruling of the motion for a new trial on the ground of newly discovered evidence. To entitle the plaintiff to a new trial on account of newly discov- ered evidence, it is not enough that the evidence is material. It must further appear that the applicant for a new trial could not, by the exercise of reasonable diligence, have discovered and produced such evidence at the trial : Fitzgerald v. Brandt, 36 Neb. 683. The proof fails to disclose such diligence on the part of the plaintiff in error as entitled her to a new trial on IN REALTY. 595 the ground of newly discovered evidence ; but if it did, and the evidence now claimed to be newly discovered was put into the record, it would not change the result. A new trial should not be granted on account of newly discovered evidence when such evidence, if admitted, could not change the result of the first trial : Keiser v. Decker, 29 Neb. 92. The judgment of the District Court is affirmed. Thomas v. Inhabitants of Marshfield, 13 Pick. 240 ; Alexander v. Meyers, 61 N. W. Rep. 140; 33 Neb. 773; Kilburn v. Adams, 7 Met. 33. Hostile or Adverse. Dkan v. Goddakd. Supreme Court of Minnesota, 1893. ' 55 Minn. 290; 56 N. W. Rep. 1060. Buck, J. The question raised in this case is whether the plaintiff has acquired title by adverse possession to the premises described in the complaint, viz., the front half of lots 1 and 2 in block 67, in the city of Minneapolis. The action was commenced in August, 1891. In his complaint the plaintiff alleges that he is in possession, and is the owner in fee simple, of the premises above described, and that the defendants claim some estate or interest in the premises adverse to the plaintiff, and prays that the claims of the respective parties be adjudged and determined, and that title to said premises be decreed to be in the plaintiff. The defendant Goddard answered, and al- leged the title in fee to be in himself. The plaintiff replied, and such reply will be referred to hereafter. Plaintiff 's con- tention is that he acquired title by possession held adversely for such a length of time as to create a title in himself Under Gen. St. 1878, c. 66, § 4, the time limited for com- mencing actions for the recovery of real property was fixed at twenty years; but on April 24, 1889, the law was changed to fifteen years — not to take effect, however, until January 1, 1891. The law, as amended, would be applicable to actions com- 596 ILLUSTRATIVE CASES menced after January 1, 1891, and prior to the time of the com- mencement of this action, in August, 1891 ; but this would not render the law existing prior to the amendment inapplicable to causes of action, when there was twenty years' adverse possession before the time when the change took effect. The period, how- ever, relied upon, need not be the twenty years immediately pre- ceding the 1st day of January, 1891. It would be sufficient if the possession relied upon was continuous for twenty years up to any certain or definite time. Of course, the twenty years would have to be complete before the bringing of the action ; but such twenty years need not, necessarily, be those next before the time when the action is commenced. In this case, if the inception of the plaintiff's adverse possession was in the months of June or August, 1866, and became perfect by continued adverse pos- session until the month of June or August, 1886, then the title thereby created would not be lost or forfeited by any subsequent interruption of the possession, unless by some other adverse possession for such a length of time as would create title in the possessor. The Court below found the allegations in the plaintiff 's com- plaint to be true, and that he was, at the time of the commence- ment of this action, the sole owner, in fee, and in the lawful possession, of the premises described in the complaint, and that his grantors and predecessors in interest had been in the open, continuous, exclusive, and adverse possession of the premises, with color of title, and paying taxes thereon, for a period of twenty years, and that he was entitled to the decree and judg- ment of the Court declaring him to be the absolute owner of the premises. We think a title acquired by adverse possession is a title in fee simple, and is as perfect as a title by deed. The legal effect not only bars the remedy of the owner of the paper title, but diverts his estate, and vests it in the party holding adversely for the required period of time, and is conclusive evi- dence of such title. To say that the statutes upon this subject only bars the remedy, as some authorities do, is only to leave the fee in the owner of the paper title ; thus leaving the owner with a title, but without a remedy. We think the better and IN REALTY. 597 more logical rule is to hold that the occupier of the premises by adverse possession acquires title by that possession, predi- cated upon the presumption or proven fact that the prior owner has abandoned the premises. Adverse possession ripens into a perfect title. This title the adverse possessor can transfer by conveyance, and when he does so he is conveying his own title, and not a piece of land where the title is in some other person, who is simply barred of any remedy from recovering it. See Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. Rep. 209 ; Baker v. Oakwood, 123 N. Y. 16, 25 N. E. Rep. 312, and cases there cited. Now if there is any cloud resting upon such title he has a legal right to apply to the Court and have his rights adjudi- cated, and the title perfected by judgment record, if the evi- dence sustains his claim. Considerations of public policy de- mand that this should be so, for the claim of title to lands can thus be found of record, instead of resting in parol, with all of its incidental dangers and trouble is establishing title. Now, let us consider the question raised by the defendant, as to whether one of the plaintiff's predecessors, Washburn, en- tered into the adverse possession of the premises June 1, 1886, or August 28, 1866. The plaintiff claims such entry was on the 1st day of June, and the defendant insists that the true date, if there was any such adverse entry at all, is shown by plaintiff himself, in his reply, to be August 28, 1866. The importance of these dates arises from the fact that there is evidence tend- ing to show an adverse possession of the premises by the pre- decessors of plaintiff until the middle of July, 1886 ; and if the period of twenty years commenced June 1, 1866, of course, the expiration of that period would be June 1, 1886, and if the period commenced August 28, 1866, the twenty-year period would expire August 28, 1886. Thus, the true date becomes material. The plaintiff, in his amended reply, inserted the fol- lowing allegation, viz. : " That on or about the 1st day of June, 1886, and more than fifteen years prior to the commencement of this action, said William D. Washburn, under the deed here- inbefore recited, executed to him by said Lindley, and claim- ing thereby to be the owner of said premises, entered into pos- 598 ILLUSTRATIVE CASES session and actual occupation of the same." The d^ed referred to bears date August 28, 1866. It may be that there is suffi- cient undisputed evidence to show an adverse possession during this particular time ; but we think that, under the circum- stances, the parties are entitled to the opinion of this Court upon this phase of the case. The fault of the defendant's position is this : That he allowed the plaintiff to introduce and prove beyond dispute, by parol evidence, without objection, that Washburn entered upon these premises June 1, 1866. The rule, therefore, that the written allegations of the pleadings should control, does not apply. The defendant did not move to have the pleadings made certain and definite, nor to compel the plaintiff to elect upon which of the dates he would rely as the time of Washburn's entry upon the premises ; but remained silent, and allowed the date of June 1, 1866, to be undispUtably proven by the plaintiff. The allegations in the reply were re- pugnant as to the dates of Washburn's entry ; but the defendant, by his conduct, waived his right to insist now that the date of such entry should be determined as of August 28, 1866. He is estopped by the admitted parol evidence from insisting that the written pleadings should be construed in his favor, and against the plaintiff. There is no dispute, however, that Washburn did procure a deed of the premises from Lindley, dated August 28, 1886 ; and the defendant therefore contends that Washburn's entry, if adverse at all, should only be considered as having com- menced on the date of the deed. To support this contention he invokes the doctrine that one who enters upon land under a mere agreement to purchase does not hold adversely, as against his vendor, until his agreement has been fully per- formed, so that he has become entitled to a conveyance. This doctrine is not applicable to this case. Washburn's entry and holding was not under this defendant, nor any of his prede- cessors holding paper title. As we have already stated, it ap- pears that he was in possession on the 1st day of June, 1866 ; and whether by permission of Lindley, or by his own volun- tary entry, is immaterial as to his rights against parties other IN REALTY. 599 than Lindley, and Lindley is not complaining, or questioning his rights, or time of entry. Nor is defendant claiming title under Lindley. If permissive possession, with parol executory conditions attached, would not constitute adverse possession as between the parties, yet it might constitute adverse possession as against third persons or strangers. Washburn's entry was adverse as against those under whom defendant claims by paper title. If, therefore, "Washburn's entry of June 1, 1866, was his own adverse act, and he so continued in possession of the premises until long after August 28, 1866, there is no need of considering the doctrine of tacking, or the necessity of the continuity of possession. Obtaining a deed to the premises from Lindley would not destroy Washburn's previous adverse possession, nor break its continuity. He has a right to strengthen his adverse claim to the premises, if possible, by as many written conveyances from other parties claiming any interest therein as he saw fit, and thus giving him color of title, and perhaps define the boundaries of the premises claimed by him. The essential ingredients necessary to create title by adverse possession are now so well defined and understood that we shall not enter into any argument or discussion to show what they are. We merely state them in this connection that we may the more conveniently apply them to the-undisputed facts in this case. " To be adverse possession must be actual, open, con- tinuous, hostile, exclusive, and accompanied by an intention -to claim adversely :" Sherin v. Brackett, 36 Minn. 152, 30 N. W. Rep. 551. This leads us to the question raised by defend- ant — that the Court below did not find, specifically, that plain- tiff 's possession, or the possession of his predecessors, was hos- tile. But it did find that such possession was open, continuous, exclusive, and adverse during the requisite period. The greater includes the less. If it was adverse, it was hostile. In Sedg. & W. Tr. Title Land, § 749, it is said that " it is tautology to say that adverse possession must be ' hostile.' " Such hos- iility may be manifested by acts of possession and use of the premises, plainly visible, actual, open, and continuous, such as 600 ILLUSTRATIVE CASES appeared in this case, by using the premises for many years as a lumber-yard, building a barn and shed thereon in 1866 or 1867, and keeping the same on the premises until they burned down, in March, 1884, and keeping a large number of horses on the premises and in the stables for many years. Also, storing machinery, lamp-posts, castings, and other personal property, putting a large sign on the lot, with notice thereon that it was for rent, for a long term of years, were acts of hos- tility, as tending to show very strongly that some one was as- suming dominion over the premises, and had intended to or was usurping the possession. If, as was said by the Court in Stephens v. Leach, 19 Pa. St. 263, the adverse possessor " must keep his flag flying," yet it is. no less essential that the actual owner should reasonably keep his own banner unfurled. The law, which he is presumed to know, is a continual warning to him that if he shall allow his- lands to remain unoccupied, unused, or unimproved, and un- cultivated, by adverse possession for a long period of time, fixed by law, he may be disseised thereof, and deemed to have acquiesced in the possession of his adversary. In this case the actual owners by paper title have never occupied the premises since the first owner obtained his title from the government, in 1855 or 1856. Considerations of public policy demand that, our lands should not remain for long periods of time unused, unimproved, and unproductive. Taxes should be promptly paid. It nowhere appears that the owners by paper title have ever paid any taxes ; but they have allowed the adverse occu- pants, during a period of many years, to pay nearly $5,000 taxes upon the premises. Payment of taxes shows claim of title : Paine v. Hutchins, 49 Vt. 314. We can readily under- stand how these statutes are called " statutes of repose." The burdens of government must be met ; its educational in- terests provided for; its judicial, legislative, and executive functions maintained ; and to do this our real property must be made productive, to the end, among other things, that taxes maybe raised and, paid from land not subject to continual liti- gation, but the titles thereto quieted. If the selfish, the indo- IN REALTY. 601. lent, and the negligent will not do this, there is no more merit in their claim than that of the adverse possessor, who does so, whatever may be said of the harshness of the statute of limita- tion. The settlement and improvement of the country, with its consequent prosperity, should be superior and paramount to the speculative rights of the land-grabber, or selfish greed of those who seek large gains through the toil, labor, and improvements of others. The hostile possession of the ad- verse claimants in this case fully appears. The possession has been open, visible, hostile, and notorious, as appears from the evidence. It has been exclusive, for no one else has made any claim to it. Those who have been on the premises, other than plaintiff or his predecessors, have made no claim of right, but have paid rent to the adverse claimant, or were there simply as trespassers, which would not break the continuity of posses- sion. The intent to claim may be inferred from the nature of the occupancy. Oral declarations are not necessary. Pos- sessory acts, so as to constitute adverse possession, must neces- sarily depend upon the character of the property, its location,, and the purposes for which it is -ordinarily fit or adapted. If a person should take possession of farm land, build a barn and shed thereon, and allow them to remain there for years, plow and cultivate and harvest the crops, paying taxes on the pre- mises, and actually occupying them for such a period of time, as is usually done by the actual owners of such farm land, with such open, notorious, visible, hostile, and exclusive acts as would destroy the actual or constructive possession of the true owners, if continued long enough, it would ripen into a com- plete title, although there might not be actual residence upon the premises by the adverse claimant or possessor. The acts. necessary for such purpose might be different with a city lot. The question is as to what purpose it may be ordinarily fit and adapted and reasonably used. In a large jjaanufacturing city, with vast lumber interest, the use of a lot for piling lumber thereon, and there storing it or keeping it for sale, might be the best use to which such lot could possibly be adapted. And, as part of such business, the building of a barn «,nd shed thereon, 602 ILLUSTRATIVE CASES for keeping and stabling horses used in procuring logs, as a part of such lumber business, would constitute a very strong ingredient of adverse possession. The mere fact that time may intervene between successive •acts of occupancy, while a party is engaged in such lumber business, as by taking his teams from such stable and shed, and using them in procuring logs to be sawed into lumber to be by him piled and stored upon such premises, does not necessarily ■destroy the continuity of possession. During such time, the lumber left upon the lot, the barn and shed there remaining, and various implements connected with such lumber business used upon the premises, would indicate that some one was ex- ercising acts of domain over the lot, even though the party was occasionally and temporarily absent upon the business for which he was using such lot. We think the whole record herein presents such a state of facts that the Court below was justified in its finding and deci- sion. If there was error in the Court admitting testimony showing that sand was removed from the premises after the commencement of this action, it certainly could not have pre- judiced the defendant. We find no prejudicial error, and the order of the Court below, denying a motion for a new trial, is affirmed. Sherin v. Brackett, 36 Minn. 152 ; Ballard v. Hansen, 51 N. W. Eep. 295. Adverse possession may extinguish a public easement : Webber v. Ohap- iiian, 42 N. H. 326; St. P. & D. Ey. Co. o. Hinckley, 53 Minn. 398. Contra: Brooks v. Eiding, 46 Ind. 15. IN REALTY. 603 Entry under Color of Title. If one enter under color of title (being a title in appearance but not in reality), he has constructive possession of all the land, de- scribed in the conveyance and may acquire a title to the whole by adverse possession. Gatling v. Lane. Supreme Court of Nebraska, 1885. 17 Neb. 77 ; 22 N. W. Rep. 453. Maxwell, J. An opinion was filed in this case which is reported, 22 N.W. R. 227, the facts are therein stated. A motion for- a rehearing has been filed by the plaintiff", accompanied by an elaborate brief, and as some of the questions raised are not fully discussed in the former opinion we will state our reasons for denying a rehearing: 1. The plaintiff" alleges that the tax deed under which the defendants claim is void upon its face, and hence is not color of title. In McKeighan v. Hop- kins, 16 Neb. 316, s. c. 15 N. W. Rep. 711, it was held that a tax certificate was not sufficient to constitute color of title. The reason is, a tax certificate does not purport to convey title. At most, it is evidence that the holder or his assignor pur- chased the real estate described therein at tax sale, and that, after the time of redemption has expired, if the land is not redeemed, the holder will be entitled to a tax deed. An in- strument, to create color of title, must purport to convey the title to the grantee. It is not essential that it do so, however : Bride iJ. Watt, 23 111. 507 ; Beverly v. Burke, 9 Ga. 440-444. A tax deed which purports to convey the title to the grantee is sufficient color of title, under which open, notorious, exclu- sive, adverse possession for ten years will operate as a bar ; and this, too, although on its face it may fail to recite the place of sale : McGinnis v. Edgell, 39 Iowa, 419 ; Colvin v. McCune, lb. 502; Sutton v. Stone, 4 Neb. 319; Rivers v. Thompson, 43 Ala. 633 ; Elliott v. Pearce, 20 Ark. 508. And as the defendants have been in the open, continued, and ex- 604 ILLUSTRATIVE CASES elusive adverse possession of the premises in question for mor& than ten years, under claim and color of title, the action of the plaintiff is barred : Grant v. Fowler, 39 N. H. 101 ; Farrar ■;;. Fessenden, lb. 268 ; Elliott v. Pearce, 20 Ark. 508 ; Gofer v. Brooks, lb. 542 ; St. Louis v. Gorman, 29 Mo. 593. 2. But even if the defendants entered and retained posses- sion of the premises without color of title, still the action is barred. A person who enters upon the land of another with the intention of occupying the same as his own, and carries that intention into effect by open, notorious, exclusive, adverse possession of the premises for ten years, thereby disseises the owner ; and this is so, whether the entry and possession are contrary to the right of the owner or not, if the occupant denies the owner's title and claims the land as his own: Hamilton v. Wright, 30 Iowa, 480 ; Close v. Samm, 27 Iowa, 503 ; Solberg v. Decorah, 41 Iowa, 401 ; Yetzer v. Thoman, 17 Ohio St. 130 ; Towle v. Ayer, 8 N. H. 57 ; Melvin v. Proprietors, 5 Mete. 15; Brown v. King, lb. 173; Poignard v. Smith, 6 Pick. 172. No color of title is necessarj'^ to constitute an ad- verse holding : Campau v. Dubois, 39 Mich. 274. But one entering upon lands adversely, without any deed or color of title, is restricted to the land actually occupied by him, and is not entitled to go beyond the limits of his actual occupation '. Coburn v. Hollis, 3 Mete. 125 ; Jackson v. Schoonmaker, 2 Johns. 234 ; Hale v. Glidden, 10 N. H. 397 ; Ferguson v. Peden, 33 Ark. 150 ; Wilson v. McEwan, 7 Or. 87 ; Schneider v. Botsch, 90 111. 577 ; Foster v. Letz, 86 111. 412 ; Wells v. Jackson Manuf 'g Co., 48 N. H. 491 ; Wood, Lim., 514. It is impossi- ble to harmonize the eases relating to possession without color of title. Many of the older eases, where the statute of limita- tions was looked upon with disfavor, and regarded as a statute of presumptions, seem to hold that, to constitute a valid and eflfeetual adverse possession, the possession must have com- menced under color of title: Tjder, Adv. Poss. 859 et seq., and cases cited. The statute is now held to be a statute of repose, which is available against the enforcement of stale demands : Mayberry v. Willoughby, 5 Neb. 368. The effect of the statute IN REALTY. 605 is to quiet titles to real estate by fixing a time within which the actual owner must commence his action for the recovery of the estate. If no action is commenced within the statutory period, the occupier obtains an absolute right of exclusive pos- session of the premises, not only against the former owner, but all the world : Trim v. McPherson, 7 Coldw. 15 ; Abell v. Harris, 11 Gill & J. 367 ; Cooper v. Smith, 9 Serg. & R. 26. And this rule will apply as to the land actually occupied, if the possession was adverse, whether the party held under color of title or not. As the defendants in this case were in actual adverse occupation of the entire lot for more than ten years before the commencement of the action, the action to recover possession of the lot in question is barred. 3. In November, 1858, the Code of Civil Procedure became a law in this then Territory, to take effect on the firsfe day of April, 1859. The Act had a proper title, and the Code, as then adopted, is in substance our present Code. In 1866 the laws were revised, and all the general laws embodied in one bill, and passed by the Legislature as one Act, and is known as the "Revised Statutes of 1866." In this revision the Code is designated as the " Code of Civil Procedure." In Miller v. Hurford, 13 Neb. 17-19, s. c. 12 N. W. Rep. 832, the question of titles of amendatory Acts is considered, and it was held that the title of an Act was not obnoxious to the Consti- tution because it was to amend certain sections (naming them) of an Act (giving the title and date of approval by the Gov- ernor). This form of title is not as definite, perhaps, as could be desired, but so long as the amendments are germane to the Act amended, no Court would be justified in holding that the Act was void. Within the limits fixed by the Constitution, the Legislature has the right to select such title to an Act as may seem to it proper and right, and it is only when these limits are transcended that the Court will declare the Act un- congtitutional. The amendment in this case, although general in its terms as applicable to the Code, was not void. It reduced the time within which an action for the recovery of real estate may be brought to ten years, and this provision is valid and 606 ILLUSTRATIVE CASES of full effect. The plaintiff's cause of action is therefore barred. A rehearing must be denied. " Color of title " defined : Brooks v. Bruyn, 35 111. 392 ; Tyler on Ejectment ; Jackson v. Woodruff, 1 Cow. 276 ; Bristol v. Carrol, 95 111. 93 ; Swift?;. Mulkey, 17 Or. 532 ; Clark v. Potter, 32 Ohio St. 49 ; Humphries v. Huffman, 33 Ohio St. 403 ; Jackson v. Warford, 7 Wend. 62 ; Ellicott v. Pearl, 10 Pet. 412 ; Wright V. Mattison, 18 How. 50 ; Murphy v. Doyle, 37 Minn. 113. Entry as an Intruder. If one enter as an intruder, or under a parol gift, v7ithout color of title, he can acquire a title to only that quantity of land ivbich he actually occupies. • Allen v. Mansfield. Supreme Court of Missouri, 1892. 108 Mo. 343 ; IS S. W. Rep. 901. Black, J. This is an action of ejectment for a lot in the city of St. Joseph. Plaintiff appealed from a judgment for defendant. Both parties claim under Allen G. Mansfield, who died testate in the year 1867. In 1874 his widow, heirs, and devisees executed a partition deed conveying the lot in ques- tion to William Mansfield whose title the plaintiff acquired by a sheriff's deed, dated June 13, 1877. The defendant is a colored person, formerly the slave of Allen G. Mansfield. Her defense is an alleged parol gift of the lot to her by her former master, and the statute of limita- tions. The proof offered in support of this defense discloses these facts: In 1865, Mr. Mansfield built a small house or shanty on the east or allej' end of the lot and then moved the defendant and her two children into it. She continued to re- side there until the commencement of this suit in 1886. At the time he* built the shanty he had the lot surveyed and staked off. And in the year of 1865 or 1866 built a fence around the entire lot at his own expense. Three or four years there- after a large part of the fence was washed away. Thereafter IN REALTY. 607 some one, probably the defendant, reconstructed part of the fence from time to time so as to include the shanty and a part only of the lot in the inclosure. The evidence tends to show thalt she dug a well and planted some trees in the inclosed part, and that she, for a time at least, had a small pig-pen on the uuinclosed part. Four or five witnesses, some of them colored persons, testified to conversations with Mr. Mansfield in the year 1865, in which he is reported to have said that he was going to give the property to Malinda. Some of them on further examination say he said he gave Malinda the housu' and lot and a cow. One of these witnesses, a colored woman, testified that Malinda wanted to go to Iowa and Mr. Mansfield wanted her to remain at St. Joseph ; that Mr. Mansfield sent his daughter for Malinda, then at another house in the city ; that he then said, in the presence of his daughter, the witness, and Malinda, that he would give her the lot if she would re- main at St. Joseph. According to this witness the conversa- tion was quite a formal affair ; but the daughter testified that she knew of no such a conversation. The evidence of this daughter and that of another person is to the effect that Mr. Mansfield moved the defendant to the lot in question because she was not trustworthy about the house. Plaintiff paid all of the taxes on the lot since his purchase in 1877. He offered to show that the Mansfield estate paid the taxes during the time the estate was in process of settle- ment, but this evidence the Court excluded. The further evi- dence of plaintiff is, that he had the lot surveyed in 1878 ; that about that date he built a three-room house on the west one hundred feet and inclosed the whole lot with a new fence ; that the west one hundred feet was then uninclosed, and that the old fence around the shanty included only thirty-five or forty feet of the east end of the lot ; that he was at the prem- ises nearly every day during the construction of the house and fence, and that the defendant made no objection and set up no claim of ownership. This evidence is corroborated by persons who built the house and stands undenied. Plaintiff says he saw defendant just after his purchase, and she then asked per- €€8 ILLUSTRATIVE CASES mission to remain on the lot, and he told her she could remain there until he desired to build. At the request of the defendant the Court gave the follow- ing instructions: "If the jury believe from the evidence that about the year 1865 Allen G. Mansfield had the premises de- scribed in plaintiff's petition surveyed, built a house thereon, and verbally gave the same to defendant and put her in pos- session thereof, and that defendant has ever since said date been so in possession of the whole or any part thereof, claim- ing to own the whole of said lot, and that said possession has been open, notorious, and actual under claim of ownership, then the jury will find for defendant." This instruction, it will be seen, directs a finding for the de- fendant as to the whole lot,, though she may have had actual possession of only a part of it for the period of ten years. It proceeds upon the proposition that if Mansfield surveyed the lot, built a shanty upon it, verbally gave the lot to the defend- ant, and put her in possession, then such facts constitute color of title ; that under these circumstances possession of a part will draw to it constructive possession of the whole. It is to be observed in the first place that there is no evi- dence of improvements made by the alleged donee or other circumstances to take the alleged parol gift out of the statute of frauds. As stated by counsel for the defendant it is title by adverse possession, not by gift, which will defeat the plain- tiff. Continuous adverse possession under a parol gift for the statutory period will not only constitute a perfect defense, as against the donor and those claiming under him, but it will confer title upon the donee: Campbell v. Braden, 96 Pa. St. 388 ; Moore v. Webb, 2 B. Mon. (Ky.) 282 ; Outcalt v. Ludlow, 32 N. J. L. 239 ; Sumner v. Stevens, 6 Met. (Mass.) 337 ; Clark V. Gilbert, 39 Conn. 94. In all these cases there was actual pos- session of the entire property embraced in the parol gift, so that they do not dispose of the question in hand. To make possession of a part of a tract of land possession of the whole, there must be color of title to the whole, and the real question is whether the facts recited in the instruction constitute color of title. IN RExVLTY. 609 In a case like this, where there is a claim of constructive possession flowing from actual possession of a part, it is neces- sary to bear in mind that claim of title and color of title are different things. Claim of title does not necessarily include color of title. The definitions and descriptions of color of title given in the books are various and conflicting. It is, we think, safe to say that any writing which purports to convey land and describes the same is color of title, though the writing is in- valid, and conveys no title : Fugate v. Pierce, 49 Mo. 441 ; Hamilton v. Boggess, 63 Mo. 231 ; Hickman v. Link, 97 Mo. 482. In Fugate v. Pierce, it was said constructive possession is never based upon a claim merely ; " there must be a deed purporting to convey the whole, or some proceeding or instru- ment giving color and defining boundaries, as well as actual possession." This doctrine was approved in Long v. Higgin- botham, 56 Mo. 245. The claim must be " evidenced by some paper, or proceeding, or relation, that makes the claimant the apparent owner of the whole :" Crispen v. Hannavan, 50 Mo. 536. These cases all lead to the conclusion that to constitute color of title there must be some documentary evidence, and so it is generally held : Sedg. & Wait on Trial of Land Titles, (2d ed.), §§ 769, 772. There are some cases which appear to assert a ditferent rule. In Rannels v. Rannels, 52 Mo. 108, the plaintiff purchased the land for his sister, but took the deed to himself. He had the land surveyed, showed it to her, built a house upon it, and then made a verbal gift of it to her. He put her and her family in possession under the survey and description in his deed. She and her family occupied the house, " and exercised open and notorious acts of ownership over the remainder of the tract up to her death ; and the remainder of her family since her death." Notwithstanding these facts the question seems to have been made whether the verbal gift and delivery of possession thereunder constituted color of title "to that portion of the tract of land not inclosed nor in actual posses- sion ;" and it was held that they did. Says the Court : " It is not necessary that this color of title should be created by deed 39 610 ILLUSTRATIVE CASES or other instrument of writing. It may be created by an Act in pais without writing." Several cases are cited in support of the rule there stated. That of McCall v. Neeley, 3 Watts, 69, had been before and has since been noticed by this Court, and some of the observations there made held to be inappli- fable to our system of land titles : City of St. Louis v. Gorman, 29 Mo. 593 ; Mylar -;;. Hughes, 60 Mo. 105. In Sumner v. Stevens, supra, there was actual possession of the entire propert}', and the question of constructive possession from possession of a part under color of title to the whole does not appear to have been involved in the case. In Bell v. Longworth, 6 Ind. 274, Longworth claimed the land under a written assignment of a certificate of purchase from the United States, so that case, on its facts, does not appear to be an ex- ception to the general rule, though the language used in the opinion as to what will constitute color of title is very broad. The Rannels case was cited with approval in the subsequent cases of Cooper v. Ord, 60 Mo. 420, and Hughes v. Israel, 73 Mo. 538. Those cases were, however, in their facts, quite unlike the Rannels case. The doctrine of that case was also approved in the case of Davis v. Davis, 10 So. Rep. 70. The Rannels case is clearly exceptional in its character, so far as it defines color of title, though the conclusion reached is right on the facts given in the statement. According to the statement the donee and her heirs had actual possession of the entire tract as against the donor. As said in Clark v. Gilbert, s^ipra : " Much has been said about an open, notorious possession, but such expressions are not applicable to a case like this. Possession taken under a parol gift is adverse in the donee against the donor, and, if continued for fifteen years, perfects the title of the donee as against the donor. The donor in such cases not only knows that the possession is adverse, but intends it to be, and there is no occasion for any notoriety. Notoriety is only important where the adverse character of the possession is to be brought home to the owner by presumption. Of course, where it is shown that he had actual knowledge that the possession was IN REALTY. 611 under claim of title, and, therefore, adverse, openness and no- toriety are unimportant, for no other person has any legal in- terest in the question or right to be informed by notoriety or otherwise." See, also, Sedg. & Wait on Trial of Land Titles, (2d ed.), § 735. On these grounds the Rannels case can stand without question or doubt, for there was, as against the donor, sufBcient actual possession of the whole tract, and color of title was not necessary to a complete defense, and that case stands on no other grounds. But in this case the instruction allows a complete defense, though defendant may have had actual possession of a part only for the statutory period of time. Possession of a part to draw to it possession of the whole, under the statute of limitations, must be under color of title. The facts that Mansfield staked off the lot, built a house upon it, made a verbal gift of the lot to defendant and put her in possession are suflBcient to show adverse possession of the whole, as against Mansfield and his heirs; but such facts do not constitute color of title. The in- struction is, therefore, erroneous, and should not have been given. 2. The trial Court also erred in excluding the receipts ofifered in evidence by the plaintiff, showing payment of taxes by the Mansfield estate. The fact that Mansfield placed the defendant in possession under a parol gift is evidence that she held adversely to his estate. On the other hand, there was evidence tending to show that her possession was not hostile. The question whether the defendant's possession was adverse, that is to say, under a claim of ownership, was an important issue in the case. The defendant went into possession in 1865, and Mr. Mansfield died in 1867. Non-payment of taxes by the defendant and payment of them by the estate is additional evidence tending to show that the possession was not under claim of ownersliip, and should have been received : Gaines v. Saunders, 87 Mo. 557-564. 3. The Court admitted the evidence to the effect that plain- tiff built a house on the west end of the lot with the knowl- edge of the defendant, and that she made no objection and set 612 ILLUSTRATIVE CASES up no claim of title, but excluded evidence showing the value of these improvements. The more valuable the improvements, the more it became the duty of defendant to make known her claim, if any she had, and the greater the probability that she then made no claim of ownership. Evidence of the extent and of the value of the improvements should have been received. 4. Two instructions were asked by the plaintiff, but refused, concerning an estoppel as to the uninclosed part of the lot upon which the plaintiff erected the three-room house. There is evidence to the effect that, after the plaintiff purchased the lot, he saw the defendant and she obtained permission from him to remain in the shanty ; that he had no notice or knowl- edge of the alleged parol gift ; that he built the house and made the improvements believing that he was the real owner, and that defendant was present all the while, saw the improve- ments going on, but made no objection or claim of ownership to the lot. Under these facts, we think she should be held estopped from asserting title to the uninclosed part, and this is all the refused instructions claim. An instruction to the fore- going effect should be given. Proprietors, etc., v. Spring, 4 Mass. 416 ; Swift v. Mulkey, 17 Or. 532. Entry may be by agent or tenant : Fleming v. Maddox, 30 Iowa, 241 ; El- liott V. Dycke, 78 Ala. 150. Possession by wife : Morrell v. Ingle, 23 Kan. 32. Family burying-ground will constitute actual possession as to the part oc- cupied by the graves : Mooney v. Cooledge, 30 Ark. 655. Occasional trespasses, accompanied by avowals that the trespasser intends to hold possession, are not sufficient : Ewing v. Alcorn, 40 Pa. St. 492. Entry under color of title must be in good faith by the grantee, who actually believes he is getting a good title : Watts v. Owens, 62 "Wis. 512 ; 22 N. W. Eep. 720. Fraud on the part of the grantor will not affect the innocent grantee : Foulke V. Bond, 41 N. J. L. 527. IN REALTY. 613 Accretion. The owner of land bounded by a river is entitled to the accretions thereto made by imperceptible deposits of alluvion, whether such river is navigable or non-navigable. LoviNGSTON V. St. Claik County. Supreme Court of Illinois, 1872. 64 111. 56. This action of ejectment was commenced by the county of St. Clair against Lovingston and others to recover possession of certain lands on the Missis- sippi River. Plaintiff claimed title under an Act of Congress donating swamp lands to the county, and defendant claimed title to it by accretion. The land was bounded on one side by the river. Mr. Justice Thornton. If the land of the riparian pro- prietor was bounded by the Mississippi, his right to the posses- sion and enjoyment of the alluvion is not affected, whether the stream be navigable or not. By the common law, alluvion is the addition made to land by the washing of the sea, a navi- gable river or other stream, whenever the increase is so grad- ual that it cannot be perceived in any one moment of time. The navigability of the stream, as the term is used at com- mon law, has no applicability to this case. If commerce had been obstructed, or the public easement interrupted, or a ques- tion was to arise as to the ownership of the bed of the stream, then the inquiry as to whether the stream was navigable or not, in the sense of the common law, might be pertinent. No such question is presented. On this branch of the case the only question is, have the United States, or the State, or the riparian owner, the right to the accretion ? If the river is the boundarj', the alluvion, as fast as it forms, becomes the property of the owner of the adjacent land to which it is attached. On a great public highway, like the Mississippi, floating an immense commerce, and bearing it to every part of the globe, purchasers must have obtained lands for the beneficial use of the river as well as for the land. Can 614 ILLUSTRATIVE CASES it be presumed that the United States would make grants of lauds bordering upon this river, with its turbulent current, and subject to constant change in its banks by alluvion upon the one side and avulsion upon the other, and then claim all accretion formed by the gradual deposition of sand and soil, and deprive the grantee of his river front? If he should lose his entire grant by the washing of the river he must bear the loss, and he should be permitted to enjoy any gain which the ever-varying channel may bring to him. If a great government were to undertake, under such circum- stances, to dispossess its grantee of his river front, the attempt would be akin to fraud, and it would lose the respect to which beneficent' laws and the protection of the citizen would entitle it. We then assume that the Act of Congress of 1796 (1 Stat. 468, § 9), which declares all navigable rivers in a certain dis- trict, public highways, has no bearing upon the questions to be considered. The riparian owner has a right to the alluvion, whether the stream be navigable or unnavigable. Blackstone says (2d book, 262), as to lands gained from the sea by alluvion, where the gain is by little and little, by small and imperceptible degrees, it shall go to the owners of the land adjoining. " For de minimis non curai lex; and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a recip- rocal condition for such charges or loss." The same reasoning applies, with all its force, to the lands abutting upon the Mississippi River. In Middleton ■;;. Pritchard, 3 Scam. 510, this Court said : All alluvions belong to the riparian proprietor, both by the com- mon and civil law. In the case of The King v. Lord Yarborough, 3 Barn. & Cress, 91, land gained from the sea by alluvion or projection of extraneous matter, whereby the sea was excluded and pre- vented from overflowing it, was adjudged to be parcel of the demesne lands of the adjacent manor. The question has been discussed with profound research and IN REALTY. 615 great ability by the Courts in Louisiana, as to the accretions upon this same river, and the law clearly announced. In Municipality No. 2 v. Orleans Cotton Press, 18 Louisiana, 122, it was declared that the right to future alluvial formations ■was a right inherent in the property, an essential attribute of it, the result of natural law, in consequence of the local situ- ation of the land ; that cities as well as individuals had the right to acquire it, pere alluvionis, as riparian proprietor ; and that the right was founded in justice, both on account of the risks to which the laud was exposed and the burden of pro- tecting the estate. The Court further assimilated the right to the right of the owner of lands to the fruits of a tree growing thereon, and said : " Such an attempt to transfer from the owner of the land to the city the future increase by alluvion, would be as legally absurd as if the Legislature had declared that, after the incorporation of the city, the fruits of all the orange trees within its limits should belong thereafter to the city, and not to the owners of the orchards and gardens." The same principle was declared in Banks v. Ogden, 2 "Wall, U. S. 57, as applicable to Lake Michigan. See, also. The Mayor, etc., of New Orleans v. The United States, 10 Peters, 662 ; Jones v. Soulard, 24 Howe, U. S. 41. The same doctrine is fully declared in a recent case : War- ren V. Chambers, 25 Ark. 120. To determine the title to the accretion, we must ascertain the locality of the land of the adjacent owner. We need not enter upon a discussion of the laws of Congress and of the State, by virtue of which the county claims title, if the land previously granted by the United States was bounded by the river, and the accretion is attached to it. Hilgard, the surveyor, testified that the accretion was all west of the Condaire tract. The only portion of the field notes wo desire to call attention to is the following : " To a post on tlio westerly side of the river L'Abbe, or Cahokia Creek, thence down the said river or creek, with the different courses thereof," and, " thence N. 85 deg. W. 174 poles to a post on the bank of the Mississippi River, from which thence N. 5 deg. E. itp the 616 ILLUSTRATIVE CASES Mississippi River, and binding therewith (passing the south- westerly corner of Nicholas Jarrot's survey No. 579, claim No. 99, at 6 poles), 551 poles and 10 links, to a post northwesterly corner of Nicholas Jarrot's survey No. , claim No. 100." This survey was made in 1815. From the copy of the plat of it, from the custodian of the United States surveys, it will be seen that the line along Caliokia Creek meanders with the stream, which was sinuous, and hence the call in the notes, "down the said creek with the different courses thereof" A further examination of the plat will show that, though the line from " a post on the bank of the Mississippi River," " to a post northwesterly corner of Nicholas Jarrot's survey, claim No. 100," is a straight line, the river bank, as indicated by the plat, was also straight in 1815. The Condaire survey embraces three militia claims, which had been surveyed before, and which were confirmed to Jarrot. One of the Jarrot surveys begins on the bank of the Missis- sippi, and thence to a point in the river, etc. The defendants traced title from patent confirmatorj'^ of these several surveys, and they also proved title to " Bloody Island," which, when surveyed in 1824, was three-fourths of a mile north of the tract in controversy. In behalf of the county, it is assumed that the patent to survey 579 contains no indication that the river is the boun- darj'j that the west line of the Condaire claim, being the line next to the river, is identical with the west line of the militia claims ; that Condaire took no portion of the militia claims, but only the fractions east of them and between them and Ca- hokia Creek ; that the lands granted were bound by specific lines, and not by the river, and therefore the grants are limited grants, and the land in dispute is outside of their boundary lines. Concede that the Jarrot survey did not make the river the boundary, by specific call, yet its beginning was on the bank of the river, opposite St. Louis, and thence it followed the river to a point in it. Hilgard testified that this survey was on the old bank of the river. It is, then, evident that at this time. IX REALTY. 617 which was some years prior to the Condaire survey, there was no land between the western line of the Jarrot survey and the river. All the plats introduced in evidence show that the river bank was straight, and the point in the river roust have been made for the purpose of obtaining the bearing of the witness tree, a sycamore, 250 links from the point. It is manifest that the river was the boundary, and whether the grant was bounded hy the river, or on the river, can make no difference as to the question involved. The grant may be so limited as not to carry it to the middle of the river, and yet not exclude the right to the alluvion. A large number of cases have been cited by one of the counsel for the county, to establish that a grant is not carried to the centre of a stream, but stops at the bank, if the grantor describes the line as upon the margin, or at the edge or shore, and that these terms become monuments, and that they in- dicate an intention to stop at the edge or margin of the river. This may be good law, and not affect the right of the de- fendants. They do not claim the bed of the stream, and the proof shows that the river does not run over the land in dis- pute at ordinary stages of water. Their claim, if established, does not obstruct the river or interfere with its free navigation and use by the public. But the Condaire survey not only covers the Jarrot sur- veys, but extends beyond them. It not only takes any frac- tions between the Jarrot surveys and Cahokia Creek, but the land, if any, between their western line and the river. The Condaire survey run up the river and binding therewith, and passed the southwesterly corner of the Jarrot survey. No. 579, at 6 poles. Language could not make it more plain that the western line was bounded by the river, and the plats confirm this view. The only construction to be given to these grants is, that tho United States had conveyed the land to the bank of the Mis- sissippi. It follows that the grantees were riparian propri- etors, and are the owners of the alluvial formations attached to their lands. 618 ILLUSTRATIVE CASES Unless such construction be given and adhered to rigidly, almost endless litigation must ensue from the frequent changes in the current of the Mississippi, and the continual deposits upon one or the other of its banks ; the value of land upon its borders would depreciate, and the prosperity of its beautiful towns and cities would be seriously impaired. Counsel say at the time the locations were made there was no advantage of river front, no wharfage and no wood-yards. This may be true, but even at this early period the grantees itiust have realized the vast importance of the Mississippi to them, and to all the people of the States bordering upon it, in the grand future soon to be uiafolded. They must have seen the necessity and accepted the grants for the purpose of se- curing an approach to the river. From the proof, before 1819 a ferry was established across the river* near to the land in dispute, and has been since in constant operation. Before the grant of the swamp and over- flowed lands to the State, in 1850, a city had sprung up on the Missouri side of the river, and a prosperous village was growing on the Illinois shore. Before the survey by the county of the swamp lands, in 1852, a charter for a railroad had been granted by the State, which resulted in the construc- tion of the road from Terre Haute, in the State of Indiana, to Tllinoistown. Prior to the grant made by the United States in 1870, as shown by the plat offered in evidence, a number of railroad tracks had been constructed upon the ground formed by accretion, and an elevator erected and dykes for the use of wagons, and a large expenditure of money made by the ferry company for the preservation of the banks recently made. It needed no prophetic eye to foresee, prior to the year 1850, these grand improvements which bring the products of an em- pire to the father of waters. Their absolute necessity and con- sequent construction, as an outlet for our immense produce, had been known for more than a quarter of a century before their completion. Their usefulness will be greatly crippled, and the public thereby seriously suffer, if ready access to the river was denied. IN REALTY. 619 It would be a strained construction to hold that in making these grants the United States reserved all accretions, and thus to deprive these proprietors of ferry privileges and the bene- ficial enjoyment of the river. It is further contended that the lands are not accretions, as they were made by artificial, and not natural, means. It is not iit all certain from the proof, that the accretions were entirely the result of artificial structures, or that they would not have been formed without them. The construction of coal dykes facilitated the formation, and the soil was prevented from wash- ing away by the expenditure of money by the ferry company. Jonathan Moore, who had known the river since 1813, tes- tified that the accretions had commenced to form before the construction of the dykes, and McClintock and Jarrot testified to the same effect. Concede, however, that the dykes, to some extent, caused the accretions ; they were not constructed for such purpose, and ap- pellants had nothing to do with their erection. They were built for the accommodation of the public and to secure an approach to the ferry-boats, and the city of St. Louis did some work to preserve its harbor. Improvements were also made by the United States to throw the channel of the river toward the city. The fact that the labor of other persons changed the cur- rent of the river, and caused the deposit of alluvion upon the land of appellants, cannot deprive them of a right to the newly- made soil. Chancellor Kent, after declaring the common-law doctrine, that grants of land bounded on the margins of rivers, carry the exclusive right of the grantee to the centre of the stream, unless there is a clear intention to stop at the edge, says: " The proprietors of the adjoining banks have the right to use the land and water of the river, as regards the public, in any way not inconsistent with the easement ; and neither the State nor any other individual has the right to divert the stream and render it less useful to the owners of the soil :" 3 Vol. Com. 427. 620 ILLUSTRATIVE CASES If portions of soil were added to real estate already pos- sessed, by gradual deposition, through the operation of natu- ral causes, or by slow and imperceptible accretion, the owner of the land to which the addition has been made has a perfect title to the addition. Upon no principle of reason or justice should he be deprived of accretions forced upon him by the labor of another without his consent or connivance, and thus cut off from the benefits of his original proprietorship. If neither the State nor any other individual can divert the water from him, artificial structures, which cause deposits between the old and new bank should not divest him of the use of the water. Otherwise, ferry and wharf privileges might be utterly destroyed, and towns and cities, built with sole reference to the use and enjoyment of the river, might be entirely separated from it. In Godfrey v. The City of Alton, 12 111. 29, the public land- ing had been enlarged and extended into the river, both by natural and artificial means, and this Court held that th& ac- cretions attached to and formed a part of the landing. In New Orleans v. The United States, 10 Peters, 662, the quay had been enlarged by the levees constructed by the city to pre- vent the inundation of the water, and the Court held that this did not impair the rights of the city to the quay. In Jones v. Soulard, supra, the intervening channel between the island and the Missouri shore had been filled up, in con- sequence of dykes constructed by the city, and the riparian owner succeeded. In the case at bar the accretions have not been sudden, but gradual, as we gather from the testimony. The city of St. Louis, to preserve its harbor, and to prevent the channel from leaving the Missouri shore, threw rock into the river, and the coal dykes were made to afford access to boats engaged in car- rying across the river. The ferry company protected such ac- cretions by an expenditure of labor and money. The accretions, then, are partly the result of natural causes and structures and work erected and performed for the good of the public. Appellants should not thereby lose their frontage IN REALTY. 621 on the river and be debarred of valuable rights heretofore en- joyed. This would be a grievous wrong, for which there would be no adequate redress. The judgment of the Circuit Court is reversed and the cause remanded. State V. Buck, 15 S. Rep. 531 ; Griffin v. Kirk, 47 111. App. 258 ; Crandall v. Allen, 118 Mo. 403, 24 S. W. Eep. 172 ; Bouvier v. Stricklett, 59 N. W. Rep. 550, 40 Neb. 792 ; Oooley v. Golden, 117 Mo. 33, 23 S. W. Rep. 100 ; Gill v. Iiydick, 59 N. W. Eep. 104, 40 Neb. 508 ; Winnepesaukee Camp-Meeting Assn. V. Gordon, 29 Atl. Rep. 412 ; Coulthard v. Stevens, 50 N. W. Rep. 983, 84 Iowa, 241 ; Nebraska v. Iowa, 143 U. S. 359 ; Nebraska v. Iowa, 145 U. S. 519. Dereliction. 'Where the vrater of a river or lake, whether navigable or other- 'wise, recedes slowly and imperceptibly, and the land before covered by water is left dry, such land belongs to the riparian owner from "whose shore the 'water has so receded. Warren v. Chambers. Supreme Court of Arkansas, 1867. 25 Ark. 120. CoMPTON, J. This was a bill in chancery, exhibited by Samuel H. Warren against William E. Chambers, as adminis- trator of Stephen Bonnell, deceased, for an abatement in the price of certain lands which Bonnell sold to the complainant. At the final hearing the bill was dismissed, and the com- plainant appealed. The ground on which an abatement of the purchase-money is sought, is that Bonnell has no title to a portion of the land embraced in his deed to the appellant. The land sold was bounded on Tucker's Lake, according to the original survey of the meanders of the lake, made by authority of the United States. Shortly before the sale to the appellant, the meanders of the lake were again surveyed, when it appeared that there 622 ILLUSTRATIVE CASES was a strip of land lying between Bonnell's land, as originally run, and the lake, which had become dry by recession of the water. This strip was conveyed with the other land, and is described in Bonnell's deed as " the swamp land recently sur- veyed." The evidence showed that the water receded gradu- ally — continuing to do so through a series of j'ears. Waiving other questions that have been discussed, we will proceed to determine whether Bonnell had title to the strip of land above indicated ; for, if he had, then this controversy is ended, and the decree of the Circuit Court below must be affirmed. The question presented involves an examination, to some extent, of the doctrines of alluvion and dereliction. Alluvion, according to the English common law, is an ad- dition made to land by the washing of the sea, a navigable river, or other stream, where the increase is so gradual in its progress that it cannot be perceived how much is added in any moment of time. Land thus formed belongs to the proprietor of the adjacent land to which it is attached. Dereliction, ac- cording to the same authority, is a recession of the waters of the sea, a navigable river, or other stream, by which land that was before covered with water is left drj"^. In such case, if the alteration takes place suddenly and sensibly, the ownership re- mains according to former bounds ; but if it is made gradually and imperceptibly, the derelict or dry land belongs to the riparian owner from whose shore or bank the water has so re- ceded : Woolrych on "Water-Courses, marg. pp. 29, 34, 35, 46, 47, and authorities there cited. And the reason, as given by Blackstone, why alluvial and derelict land, gained by imper- ceptible degrees, belongs to the owner of the adjoining land, is that de minimis non curat lex, and because such owners, being often losers by the breaking in of the water, or at charges to keep it out, this possible gain is a reciprocal consideration for such possible charge or loss : Bl. Com., vol. 2, 262. In this country, these rules of the common law have been applied to lake as well as other waters. Thus, in Murry v. Sermon, 1 Hawks, 56, decided by the Supreme Court of North Carolina, the defendant in ejectment claimed title to the land IN REALTY. 623 in dispute, which was bounded by Mattamuskeet Lake, under a patent dated in 1761 ; and the plaintiff claimed under a grant of recent date, covering lands between the defendant's lines and the lake. Both parties introduced evidence as to what had been actually run for the lines of the defendant's land ; and the Court below instructed the jury to find for the defendant, no matter whether the lake had receded or not ; for, in either case, it remained his boundary. This was held to be erroneous, and a new trial was awarded, in order that the jury might find the fact whether the waters of the lake had receded gradually and imperceptibly, or suddenly and sensibl)^, from the land in controversy, because, on that ques- tion, the Court said, the rights of the parties depended. So, in Banks v. Ogden, 2 Wall. 57, recentlj'^ determined in the Supreme Court of the United States, it was held that accretion by alluvion from Lake Michigan belonged to the proprietor of the land bounded by the lake. It is true that, in both of these cases, lakes are navigable, and in the case before us, evidence was introduced in the Court below to prove that Tucker's Lake is navigable ; but in such cases, it is immaterial whether the water is navigable or not. In England, from whence we de- rive the doctrine of alluvion and dereliction, and where it is said to be applicable to streams generally (Woolrych on Waters, marg. p. 56) no river is navigable, in a common-law sense, above the point where the tide ebbs and flows, though it may be so, in fact ; and this rule has been adopted in most of the American States : Angell on Water-Courses, § 542, et seq., and cases there cited. Whether a river is navigable, in a technical common-law sense, or in the ordinary acceptation of the term, or whether it is navigable or not, may become an important inquir)'^ in cases touching the right of the public to use it as a highway, and for commercial purposes. So, a like inquiry would be pertinent in cases involving the ownership of the bed of the stream, as between the government, or those claiming under it, and the riparian proprietors; because, at common law, the bed of a river belongs to the government so high up only as it is navigable in a technical sense — that is, as '624 ILLUSTRATIVE CASES far as the tide ebbs aud flows ; and above that point it belongs to the riparian owners ; each — where their lands lie on opposite sides of the river — owning to the middle or thread of the stream. But whether a river or other water is or is not nav- igable can in no way affect the right of the riparian pro- prietor to such additions as may be made by alluvion or dereliction. His right rests altogether on another and dif- ferent foundation. The facts to be ascertained are the local situation of the land and the mode by which the increase has been added. If the land is contiguous to the water and the addition is made slowly and insensibly, his title to such ad- dition is complete. In Municipality No. 2 v. Orleans Cotton Press, 18 La. Rep. 122, it was decided that the right to future alluvial formation was a vested right inherent in the property, and an essential attribute of it, resulting from natural law, in consequence of the local situation of the land to which it at- taches ; and that it was an accessory to the principal estate or land, which cities as well as individuals might acquire, jure alluvicynis, as owner of the front or riparian proprietor; and that the right was founded in justice, arising from the risks to which the land was exposed, and from the burden of keeping up levees or embankments in front of the river to protect the estate. And in Banks v. Ogden, supra, the Supreme Court of the United States said : " The rule governing additions made to land, bounded by a river, lake, or sea, has been much dis- cussed and variously settled, by usage and by positive law. Almost all jurists and legislatures, however, both ancient and modem, have agreed that the owner of the land, thus bounded, is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the continguity of waters, ought to receive whatever benefits they may bring by accretion ; by others, it is derived from the principle of public policy, that it is the interest of the com- munity that all land should have an owner, and most con- venient that insensible additions to the shore should follow the title to the shore itself." IN REALTY. 625 The testimony in the record brings the case before us clearly within the rules of law to which we have referred. The con- clusion, therefore, is that the appellant acquire title to the derelict land, under the conveyance from Bonnell ; and that, consequently, the decree must be affirmed. Islands. A grant of lands ^rithout reservation, bounded by a non-navigable river, vests in the grantee the title to nnsurveyed islands bet'ween the mainland and the centre of the stream. Chandos v. Mack. Supreme Court of Wisconsin, 1890. 77 Wis. 573. Cole, C. J. There is no dispute about the facts in this case, but the counsel disagree as to the law arising upon those facts. The action is ejectment, brought by the plaintiff's intestate, who claimed to be the owner, as riparian proprietor, of an island in the Wisconsin River, a navigable stream. She held and owned under various mesne conveyances the title derived from the general government of lot 4 in section 17, township 22, range 6 east, which lots lie on the main west bank of the river, opposite to the island in controversy. She claimed that she was entitled to the possession of this island by virtue of the grant of the general government of lots 3 and 4 to those under whom she derived title, except as to certain rights which the defendants have under a deed that is mentioned in the evidence, but which does not affect any question in issue here. The island lies near the west bank of the river, as we have said, opposite lots 3 and 4 ; is west of the main channel and west of the thread of the stream, and also west of the main navigable portion thereof. It is separated from the west bank of the river by a narrow channel or slough, which varies in width from 95 to 100 feet, and is separated from the east bank 40 626 ILLUSTRATIVE CASES of the river by a channel which varies in width frona 320 to 700 feet. The channel between the island and the west bank of the river has not been used since the settlement of the country for purposes of navigation, except to run out lumber manu- factured at the mills on the main land on the west bank. The portion of the river used for the purpose of navigation is the main channel east .of the island. The island is about 1,250 feet in length, and varies in width from 70 to 300 feet ; it is a rocky formation, covered with a thin, sandy soil, and was originally covered with timber, which has been removed. It lies up and down the river, nearly parallel with the thread of the stream. It is not overflowed in ordinary freshets, but is substan- tfally submerged in extraordinary floods. The island contains between two and three acres of land. When the general govern- ment, by its agent, surveyed and platted lots 3 and 4, and the lauds on either side of the river opposite the island, it made no survey or plat of the island or of any part of it ; nor has the government ever surveyed and platted it, although the loca- tion of the island is marked upon the government plat of the survey of the lands opposite and adjacent thereto. The gov- ernment many years since disposed of all its lands on the river opposite and adjacent to the island, and there is nothing which tends to show that the government intended to reserve the island as a part of the public domain. The island is referred to in the field-notes of the meandered line, but it was not surveyed, though its location is marked upon a plat of surveys, so the fact of its existence was not overlooked by the agents of the government when such surveys were made. Now, the question in the case is. To whom does the island belong ? Did it pass to the purchasers of lots 3 and 4 on the banks of the river opposite to it? The island lies between these lots and the middle of the river, and there is nothing to show, as we have said, that the government intended to re- serve any right or interest in the island. As there was no such reservation, the presumption is that the government did include it and pass all title to it to the purchaser. On the part of the plaintiff, it is insisted that the title did IN REALTY. 627 pass to the purchaser of lots 3 and 4 on the west bank of the river. The position of the learned counsel is this : He says when the general government, by its agents, surveys a section of land lying partly in a navigable stream, which embraces islands of various sizes in such stream, subdivides the entire section into such lots and subdivisions as it sees fit, and leaves some such islands unsurveyed, and places the same in market, and disposes of all said lots and sub- divisions so surveyed and platted ; that then it has parted with its entire interest in the section to the pur- chasers, who, as riparian proprietors, take under their re- spective grants to the middle of the stream ; that, under such circumstances, the presumption is that the government in- tended to make no reservation, but intended that all its title should pass by its grant, as in case of a private conveyance. It seems to us there is great force of reason and much good sense in this view of the law. In this State the settled rule is that a grant by an individual of land which is bounded on a navigable stream vests in the grantee the title in the bed of the river to the thread of the stream, subject to the public right of navigation. The cases in this Court where this doc- trine has been laid down are numerous, but are so familiar to the profession that it is unnecessary to cite them. The pre- cise question, however, here presented — whether the title of an unsurveyed island between the shore and the middle of the stream would pass to the purchaser — ^las not been directly decided ; but we see no principle of law or good reason for holding that it would not so pass. The inference certainly is very strong, when the government leaves a small island in a navigable river, lying between the shore and the middle of the stream, unsurveyed, and sells all the surveyed islands and all the lands on both sides of the river, that it intends to abandon all right to such unsurveyed islaud and let it pass to the riparian owners of lands on the river as an incident to its grant. It seems formerly to have been the policy of the gov- ernment to survey islands omitted from the general survey, and sell them, but, from a letter of the acting commissioner 628 ILLUSTRATIVE CASES of the general land office, which was introduced on the trial, it appears that this practice has been abandoned because it was found disadvantageous to the public interest, and applica- tions for such surveys are no longer entertained. This item of evidence gives additional strength to the inference as to the effect of the grant itself from the government — ^that, where no right is reserved, the grant of lands on the bank of the river vests in the purchaser the title of any unsurveyed islands lying between the main land and the centre of the stream, since the government no longer desires to assert any interest to an island thus situated and omitted in the original survey. " In the case of Middleton v. Pritchard, 4 111. 510, the Supreme Court of Illinois held that, when a government grant is made which does not reserve a right or interest that would ordinarily pass by the rules of law, and the government does no act which indicates an intention to make such reserva- tion, the grant includes all that would pass by it if it were a private grant ; and that, as the United States had not imposed any limitation upon its grant of the land in question, which was an island in the Mississippi River, separated from the ad- joining land by a slough, the title of the riparian owners extended to the thread of the river and included the island :" Gould, Waters, § 69. So, " in Railroad Co. v. Schurmeir, 7 Wall. 272, the question was as to the title to an island in the Mississippi River, which, at the time of the survey, was a mere sand-bar, about 90 feet wide and 160 feet long, separated from the main land by a slough or channel 28 feet wide. The island was submerged at high water (of which no notice was taken in making the survey), and the slough was insignificant in comparison with the main river. At the time of the action, the sand-bar had been filled in and covered with valuable improvements, and the contest was between the owner of the adjoining fraction and a railroad company which claimed the bar under a new survey made by a United States surveyor and a Congressional grant of certain odd-numbered sections. It was held that the sand-bar was included in the first survey IN REALTY. 629 as a part of the main-land :" Gould, Waters, § 77. See same case, Schurmeir v. St. P. & P. R. R. Co., 10 Minn. 82. It seems to us that the decision in the last case is decisive of the one before us. It is true, as observed by plaintiff's counsel, there are facts in the case at bar much stronger in favor of the plaintiff than in the Schurmeir case. The gen- eral government had actually conveyed the island in contro- versy there, and attempted to grant it to the State of Min- nesota for certain purposes, and the defendant claimed under the State. But in the case before us, there is no pretense that the government has ever surveyed or attempted to convey this island as a lot separate from the survey and conveyance of lots 3 and 4 on the adjacent main shore, or that it has ever claimed, or now claims, to be the owner of the island, nor is there any pretense that the patent of the general government, issued on the sale of those lands, reserved any right or interest that would ordinarily pass, by the rules of law, to the patentee, or that it did any act indicating an intention to make a reservation. The quantity of land included in the island was never ascertained or attempted to be sold, and we think it must be deemed to have been included in lots 3 and 4, and to belong to the riparian owner of those lots. This view renders it unnecessary to consider the question whether the plaintiff acquired any title from the State by vir- tue of the patents offered in evidence. By the Court: The judgment of the Circuit Court is aflBrmed. Chandos v. Mack, 10 L. E. Ann. 207. See note. Eiparian rights of cities : Sweeney v. Shakespeare, Mayor, a al., 34 Am. and Eng. Corp. Cases, 139 ; note. The thread of the river is the middle line between the two shores : Trustees of Hopkins Academy v. Dickinson, 9 Cush. 652. 630 ILLUSTRATIVE CASES e Title by Abandonment. Incorporeal hereditaments may be lost by abandonment, but one can- not divest himself of the legal title to land by abandoning the same. School District v. Benson. Supreme Judicial Court of Maine, 1850. 31 Me. 381. The school district occupied certain land adversely to the owner for more than twenty years, by erecting upon it a woodshed. The former owner in- formed the school agent that the woodshed was on his land, and requested its removal, and the agent, supposing the district had no title to the land, removed it, and the district paid the necessary expenses thereby incurred. Afterward the district issues a writ of entry and contends that, having acquired title by adverse possession, it was unable to divest itself thereof by parol. Wells, J. The jury were instructed that if, in 1847, the agent of the school district, at the request of the defendants, removed said wood-house where it now is, intending to re- linquish and give up the land, and the district had subse- quently ratified his acts by their conduct or otherwise, of which they were the judges, then such abandonment, notwith- standing the district might before that time have had an open, adverse, exclusive, and notorious possession of the land, or some part of it, for more than twenty years, would operate an abandonment of their possession, and a surrender of their claim to the former owners thereof, and the plaintiffs could not recover the said land in this suit. It is true that a mere possession of land of itself does not necessarily imply a claim of right. The tenant may hold in subjection to the lawful owner, not intending to deny his right or to assert a dominion over the fee. But the terms open, notorious, adverse, and exclusive, when applied to the mode in which one holds lands, must be understood as indicating a claim of right. They constitute an appropriate definition of a disseisin, and the acts which they describe will have that IN REALTY. 631 effect if not controlled or explained by other testimony : Little ■e. Libby, 2 Greenl. 242 ; The Proprietors of Kennebec Pur- chase V. John Springer, 4 Mass. 416. An adverse possession entirely excludes the idea of a holding by consent. If the plaintiffs have held the premises by a continued dis- seisin for twenty years, the right of entry by the defendants is taken away, and any action by them to recover the same, is barred by limitaton : Stat., c. 147, § 1. A legal title is equally valid when once acquired, whether it be by a disseisin or by deed, it vests the fee simple although the modes of proof when adduced to establish it may differ. Nor is a judgment at law necessary to perfect a title by dis- seisin any more than one by deed. In either case, when the title is in controversy, it is to be shown by legal proof, and a continued disseisin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by the exhibition of them in evidence. An open, notorious, exclusive, and adverse possession for twenty years would operate to convey a complete title to the plaintiffs, as much so as any written conveyance. And such "title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the ap- propriate mode of conveying it is by deed. No doubt a disseisor may abandon the land, or surrender his possession by parol, to the disseisee, at any time before his disseisin has ripened into a title, and thus put an entire end to his claim. His declarations are admissible in evidence to show the character of his seisin, whether he holds adversely or in subordination to the legal title. But the title obtained by a disseisin so long continued as to take away the right of entry, and bar an action for the land by limitation, cannot bo conveyed by a parol abandonment or relinquishment, it mubS be transferred by deed. One having such title may go out of possession, declaring he abandons it to the former owner, and intending never again to make any claim to the land, and so may the person who holds an undisputed 'title by deed; 632 ILLUSTRATIVE CASES but the law does not preclude them from reclaiming what they have abandoned in a manner not legally binding upon them. A parol conveyance of lands creates nothing more than an estate or lease at will : Stat., c. 91, § 30. The exceptions are sustained and a new trial granted. 3 Wash. E. P. 67. Some Courts have held that abandonment of land acquired by possession is conclusive proof that the former holding was not adverse : Vickery t). Benson, 26 Ga. 589 ; Church v. Burghardt, 8 Pick. 327. Easements may be lost by abandonment : Dyer v. Sanford, 9 Met. 395-402 ; Hatch V. Dwight, 17 Mass. 289. Equitable estates may be so lost. See further : Bausman v. Kelley, 38 Minn. 204 ; Gregg r. Blackmore, 10 Watts, 192. f Estoppel. Title to land may be acquired : (1) By estoppel in deed ; (2) By estoppel in pais. Deed. Where a grantor conveys land, witli covenant of warranty, to which he has no title at the time, and afterward acquires title thereto, it vests eo instanti in the former grantee. Pike v. Galvin. Supreme Judicial Court of Maine, 1848. 29 Me. 183. Shepley, J. The title of both parties to the demanded premises is derived from Artemas Ward, who, by his agent Robbins, made a contract in writing, on October 26, 1820, to convey a tract of land including the premises to Theodore Jel- lison upon the performance of certain conditions therein stated. Jellison appears to have entered into possession, but does not appear to have performed the conditions. On July 7, 1823, Jellison assigned that contract to the demandant, and on the same day made a deed of release purporting to convey the same tract of. land to the demandant. Artemas Ward on IN REALTY. 633-- October 27, 1825, by a, deed containing covenants of warranty, conveyed a larger tract of land including the tract before named, to Jones Dyer, Jr., who, on July 11, 1829, conveyed to. Theodore Jellison the tract of laud described in his deed to the demandant. Jellison, on May 9, 1833, conveyed the prem-; ises demanded to Stephen Emerson. These conveyances were all duly recorded. The defendant is the tenant of Joseph Wyeth and Stephen G. Bass, who have exhibited a title de- rived from Stephen Emerson. The demandant has never been in possession of the land described in his deed from Jel- lison, but Jellison and those claiming title from Ward through Jellison have always been in possession. As Jellison had no title when he made his deed on July 7,. 1823, the demandant can have none, unless that acquired by, Jellison on July 11, 1829, inured to him. The deed from Jellison to the demandant contains no cove- nants but the following, " so that neither I, the said Jellison,, nor my heirs, or any other person or persons claiming from or under me or them, or in the name, right, or stead of me or. them, shall or will by any way or means have, claim, or de- mand any right or title to the aforesaid premises or to any part or parcel thereof forever." Without entering upon a discussion of the doctrine or the diflferent aspects of it presented in the very numerous cases, which have been decided respecting the effect of covenants contained in a conveyance of land, to transfer to the vendee by inurement, estoppel, or otherwise, a title subsequently ac- quired, it will be sufficient for the present purpose, to state a couple of positions, which appear to have been asserted or admitted in many of them. 1. When one has made a conveyance of land by a deed containing' a covenant of warranty, a title subsequently ac- quired will be transferred to the vendee, or the vendor and those claiming under him will be estopped to deny it. Such is the doctrine in this State : White v. Erskine, 1 Fairf. 306 ; Lawry v. Williams, 13 Maine R. 281 ; Baxter v. Bradbury, 20 Maine R. 260. 6-34 ILLUSTRATIVE CASES In New Hampshire : Kimball v. Blaisdell, 5 N. H. R. 533. In Vermont : Middlebury College v. Cheney, 1 Vermont R. 336. In Massachusetts : Somes v. Skinner, 3 Pick. 32 ; White v. Patten, 24 Pick. 324. In New York : Jackson v. Matsdorf, 11 Johns. R. 91 ; Jackson V. Bradford, 4 Wend. 619 ; Pelletreau v. Jackson, 11 Wend. 110. In Ohio : Hill v. West, 8 Ham. 222. In the Courts of the United States: Terrett v. Taylor, 9 Cranch, 23 ; Mason v. Muncaster, 9 Wheat. 455 ; Stoddard v. Cfibbs, 1 Sum. 263. Against these and other decisions to the same effect it has been contended, that " the old common-law warranty has no practical operation under the system of conveyancing em- ployed in this country, except in the single case of release T^ith warranty, to a party in adverse seisin of an estate, and of a subsequent descent of the right of entry or action to the warrantor." And that " the doctrine of estoppel in deeds can- not be based upon that of warranty :" Doe v. Oliver, Smith's L. C. 460, in note. If the question could be considered as open to discussion, it might be worthy of deliberate considera- tion. But it would seem to be too late to entertain it. 2. Where one has made a conveyance of land by deed con- taining no covenant of warranty, an after-acquired title will not inure or be transferred to the vendee ; nor will the vendor be estopped to set up his title subsequentlj'^ acquired, unless by dcfing so he be obliged to deny or contradict some fact alleged , in his former conveyance. There is an irreconcilable difference in the decided cases re- specting this proposition. It is believed, however, to be fully established by the better considered opinions ; and to be in accordance with well-established principles. It is sustained in this State by the cases of Allen v. Sayward, /J Greenl. 227, and Ham v. Ham, 14 Maine R. 351, and op- posed by the case of Fairbanks v. Williamson, 7 Greenl. 96. In New Hampshire it is sustained by the case of Kimball v. Blaisdell, 5 N. H. R. 533. IN KEALTY. 635 In Massachusetts it is sustained by the cases of Somes v. Skinner, 3 Pick. 61 ; Blanchard v. Brooks, 12 Pick. 47 ; Coin- stock V. Smith, 13 Pick. 116, and opposed by the case of Trull V. Eastman, 3 Mete. 121. In Connecticut it is sustained by the case of Dart v. Dart, 7 Conn. E. 250. In New York it is sustained by the cases of Jackson v. Wright, 14 Johns. R. 193 ; Jackson v. Bradford, 4 Wend. 619 ; Pelletreau v. Jackson, 11 Wend. 110 ; Jackson v. Waldron, 13 Wend. 178. And it may be considered as opposed by the cases of Jackson v. Bull, 1 John. Cas. 81, and Jackson v. Murray, 12 Johns. 201. If they be so considered, they were overruled by the case of Pelletreau v. Jackson. In Ohio it is sustained by the case of Kinsman v. Loomis, 11 Ohio, 475. The only suitable inquiry to be entertained in this State is, T^^hether our own case of Fairbanks v. Williamson, although the doctrine asserted in it may have been approved elsewhere, as well as in the case of White v. Erskine, can upon sound principles be sustained. The deed in that case contained no covenant but that of non-claim. The ground upon which it was decided, that a title subsequently acquired inured to the vendee, appears to have been, that the covenant of non-claim was " a covenant real, which runs with the land and estops the grantor and his heirs to make claim, or set up any title thereto." Covenants, which relate to the land, are said to run with the land : Sale v. Kitchingham, 10 Mod. 158 ; Norman v. Wells, 17 Wend. 136. But a covenant which may run with the land, can do so only when the land is conveyed. It can only run, ■when attached to the land, as its vehicle of conveyance : Spen- cer's Case, Coke, 17 b; Lucy v. Levingston, 2 Lev. 26 ; Lewes V. Ridge, Cro. Eliz. 863 ; Bickford v. Page, 2 Mass. 460 ; Slater V. Rawson, 1 Mete. 456 ; White v. Whitney, 3 Mete. 81 ; Clark v. Swift, 3 Mete. 390; Chase v. Weston, 12 N. H. 413; Garfield 'V. WiUiams, 2 Verm. 327 ; Beardsley v. Knight, 4 Verm. 471 ; Mitchell V. Warner, 5 Conn. 497 ; Kane v. Sanger, 14 Johns. 636 ILLUSTRATIVE CASES 89 ; Beddoe v. Wadsworth, 21 Wend. 120 ; Garrison v. Sand- ford, 7 Halst. 261 ; Randolph v. Kinney, 3 Rand. 394 ; Backus V. McCoy, 3 Ham. 211 ; Allen v. Wooley, 3 Blackf. 149. The cases of Kingdom v. Nottle, 1 M. & S. 353, and 4 M; & S. 53, are denied to have been correctly decided in Mitchell v. War- ner, 5 Conn. 497, and in Clark v. Swift, 3 Mete. 390. Kent, also in speaking of covenants, which run with the land says, " they cannot be separated from the land and transferred with- out it, but they go with the land, as being annexed to the. estate :" 4 Kent's Com. 472, note b. Admitting the covenant in the deed, alluded to in Fair- banks V. Williamson to be a covenant that might run with the land, it could not run or be transferred by law, to the assignee of the grantee, so as to enable him to derive any benefit from it. Nor could it operate in his favor by way of estoppel ta prevent circuity of action, for he could maintain no action on that covenant. Nor could it so operate in any other mode^, unless there had been found some allegation in the deed, by which the releasor had asserted some matter to be true, which he must necessarily contradict, and deny to have been true, if he would claim to be the owner of the land. In such case he would have been estopped, because the law will not permit one, who has in such a solemn manner admitted a matter to be true, to allege it to be false. " This, " says Kent, " is the reason and foundation of the doctrine of estoppels :" 4 Kent's Com. 261, note d ; where he also says, " a release or other deed, when the releasor or grantor has no right at the time, passes nothing, and will not carry a title subsequently acquired, unless it contains a clause of warranty ; and then it operates by way of estoppel, and not otherwise." The covenant of non- claim asserts nothing respecting the past or the present. It is only an engagement respecting future conduct. One, who acquires no title by a release without covenants respecting the title, cannot recover back the purchase-money which he paid for it : Emerson v. The County of Washington, 9 Greenl. 88. To permit him to acquire a title subsequently purchased by his releasor, would often enable him to obtain in IN REALTY. 637 another and less direct mode property of more value than the purchase-money. The conclusion is that the doctrine asserted in the case of Fairbanks v. Williamson cannot, upon sound principles be admitted, and that the decided cases in this and other States are opposed to it. - When Jellison made his deed of release to the demandant, he was in possession in submission to the title of Ward, and was but a tenant at will to him. Not being seised of a fee simple he could not convey it. The demandant must have known, when he received that deed, that Jellison had no title and could convey none, for he, at the same" time, took an as- signment of Jellison 's contract, to purchase that land of Ward. He subsequently acted as an appraiser to make a levy and to pass the title to a part of that land, from a grantee of Jellison to a creditor of that grantee. There is no allegation in the deed of Jellison to the demandant respecting the title, which it would be necessary for Jellison or his grantee to deny or contradict by setting up a title subsequently acquired. Demandant non-suit. Tefft V. Munson, 57 N. Y. 97; White v. Patten, 24 Pick. 324; Knight v. Thayer, 125 Mass. 25; Huzzey v. Heffernan, 143 Mass. 232; Gregory v. Peoples, 80 Va. 355 ; Eobinson v. Douthit, 64 Tex. 101 ; Carson v. New Belle- vue Cem. Co., 104 Pa. St. 575 ; Perkins v. Coleman, 90 Ky. 611 ; Edwards v. Hillier, 13 S. Eep. 692 ; 70 Miss. 803 ; Morris v. Janaen, 58 N. W. Rep. 365 ; Duchess of Kingston's Case, 3 Smith L. C. 2107. Such title vests in the grantee without his consent : Baxter v. Bradbury, 20 Me. 260-3. So Tvbere a deed imports to convey a fee, though it lack a covenant of warranty, the doctrine of estoppel permits the grantee to have the benefit of such titles as the grantor may subsequently acquire. Pendill v. Agricultukal Society. Supreme Court of Michigan, 1893. 95 Mich. 491. Hooker, C. J. Plaintiffs brought ejectment, claiming title in fee to the premises described in their declaration, and proved 638 ILLUSTRATIVE CASES a perfect title from the federal government. The defenses made are : 1. That plaintiffs are estopped from asserting their title against defendant. 2. That defendant has acquired title by adverse posses- sion. The ancestor of plaintiff Pendill, one James P. Pendill, was the owner of a tax title covering the land in controversy, upon which an auditor-general's deed had issued to him. After his death plaintiff Pendill and the other heirs and the widow of the decedent joined in a partition deed reading as follows, viz. : " This indenture, made . . . between Frank Pendill [and the other heirs], who are the sons and heirs-at-law of James P. Pendill, deceased, . . witnesseth : " That the said parties, as such heirs-at-law and widow^ have by amicable arrangement divided among thems'elves the property of said estate. . . . " Now, therefore, in order to carry into effect the said agree- ment and division, the said parties, in consideration of the sum of one dollar to each in hand paid, the receipt whereof is hereby confessed and acknowledged, have granted, sold, and conveyed all their right, title, and interest in and to the follow- ing described land (here follow descriptions of land conveyed to the several parties). " To have and to hold to each of said grantees the lands above described, as conveyed and set off to them in severalty, and to their heirs and assigns forever." It is defendant's theory that, under this partition deed, any title to the premises subsequently acquired by Frank P. Pen- dill inured to the benefit of the grantee named in that deed, James Pendill, and through him to defendant. In the case of Jackson v. Waldron, 13 Wend, 178, it is said that — " The principle of an estoppel, as applicable to deeds, is to 'prevent circuity of action, and to compel parties to perform their contracts.' Thus, a party asserting in a deed the exist- ence of a particular fact, and thereby inducing another to IN KEALTY. 639 contract with him, cannot by a denial of that fact compel the other party to seek redress against his bad faith by suit." This doctrine is well supported. So, where the deed im- ports to convey a fee, though it lack a covenant of warranty, the doctrine of estoppel permits the grantee to have the beneifit. of such titles as the grantor may subsequently acquire. In the case of Van Rensselaer v. Kearney, 11 How. 325, it it is said by Mr. Justice Nelson that — " The principle deducible from these authorities seems to be that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particular estate in the premises, and which estate the defid purports to convey, or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessai'y implication, the grantor, and all persons in privity with him, shall be estopped from ever afterward denying that he was so seised and possessed at the time he made the conveyance." We may then inquire whether the partition deed relied on carries on its face, by way of recital or averment, the state- ment that the grantors or their ancestor was seised of a title in fee in the premises, either in express terms or by necessary implication. After naming the parties, the deed recites the fact that they " have by amicable arrangement divided among themselves the property of the estate." The consideration is. " one dollar to each," for which they " have granted, sold, and conveyed all their right, title, and interest " in the land men- tioned. If there is an assertion of any particular interest or title, either express or by necessary implication, it is limited to that belonging to the estate, of which it may be presumed tha± all were equally cognizant. We see no opportunity for the application of the doctrine of estoppel to this case. The question of adverse possession remains. Defendant purchased the premises from James Pendill, to whom this tax title was conveyed by the partition deed. Defendant claimed that it and its grantors had been in possession, claiming under 640 ILLUSTRATIVE CASES this tax deed, for upwards of ten years before this action was brought. The Court instructed the jury that the evidence «stabHshed such claim, and directed a verdict for defendant. The question, then, is, was the Court justified in holding, as a matter of law, that the facts shown constituted adverse pos- session, instead of submitting the question to the jury ? In the case of Yelverton v. Steele, 40 Mich. 541, Mr. Justice Graves, in stating the law upon the subject of adverse pos- session, said : " The doctrine which sanctions the divestiture of the true owner by hostile occupancy is to be taken strictly, and the case is not to be made out by inference, but by clear «,nd cogent proof" — supporting his opinion by numerous authorities. He quotes with approval the language of Mr. Justice Duncan where he says that " it must be an actual, continued, visible, notorious, distinct, and hostile possession." While it would have been the duty of the Court to direct a verdict for the plaintiffs in case of the absence of clear and cogent proof upon any one of these six requisites, he could not properly direct a verdict for the defendant unless each and every one of them was established by such proof, uncontro- verted ; for, the moment that any evidence fairly tending to disprove one of them was given, a question of fact for the jury arose, whether it was shown by plaintiffs or appeared from the examination of defendant's witnesses. The partition deed was executed August 3, 1885, at which time James Pendill succeeded to the tax title of his ancestor. He was called upon rebuttal, and testified as follows : " Q. You made your contract with Maynard in the summer of 1886 — July or June, 1886. What do you say with respect to your drawing rent, or there being anybody in occupation of the property, up to that time ? "A. I am certain it ceased before that time." On cross-examination the same witness was questioned and answered as follows : "Q. The slaughter-house he [meaning the ancestor] had there was occupied by him, was it not, up to the time of his death? IN REALTY. 641 "A. Not all the time, sir. " Q. I mean he had something there, he kept something there, and looked after it. " A. I don't think — not at that time — he had anything there before it burned. " Q. I mean up as long as he lived. Didn't he have some tools ? " A. I don't believe anything was ever kept there for some time. We had no use for it. " Q. He still retained charge of it, and looked after the property, I suppose, did he not? "A. In what way? " Q. Well, looked after it to see there was no trespasses com- mitted on it. "A. I don't believe he had been there for some years. " Q. Don't you think he was out there the season before he died? " A. No, sir ; I don't think he had any occasion to go there. " Q. He had tenants living in the house ? " A. I don't think he did at that time. " Q. Do you know about it ? " A. Well, I can't state positively just when they came and went, but I know the house was vacant a large part of the time." Again, the witness Prentice, who went in 1881 to look at the old house with a view to using it as a pest-house, says that he found the house unoccupied, windows out, the doors down, and the floor about used up. All this was evidence bearing on the question of whether there was actual or visible or notorious or continued occu- pancy ; and though the Court may perhaps properly have felt that the great preponderance of evidence showed the possession claimed, in which opinion the jurors might have concurred, it was their province to deal with the question, which could not properly be taken from them. We see no 41 642 ILLUSTRATIVE CASES alternative but to reverse the judgment, with costs, and award a new trial. Ordered accordingly. Van Eensselaer v. Kearney, 11 How. 325 ; Bush v. Cooper's Add., 18 How. 82; Carver v. Astor, i Pet. 1-84. SheriS's Sale. After'acquired title does not inure to a purchaser at a sheriff 's sale, as the creditor in such case makes neither a -vrarranty nor its equiva- lent. Henderson v. Overton. Supreme Court of Tennessee, 1830. 2 Yerger, 394. Catron, J. In 1798, Overton caused an attachment to issue against the estate of David Allison, which was levied upon land. At this stage of the proceeding Allison died. A sci. fa. was run to bring in William Blount as executor of Allison. Blount made no defense, and judgment was rendered against him by default, and Overton recovered against him the sum claimed. At the next term an order was made by the Sumner County Court, where the proceedings were had, that a sci. fa. should issue against the heirs of David Allison, to show cause why judgment should not be entered up against them for the amount recovered by the judgment against the executor. No heirs were named in the writ. This, and a succeeding sci. fa., were returned " not found." A judgment was then rendered against the heirs of David Allison "according to sci. fa." Vari- ous executions issued upon this judgment ; the first in 1801, and levies and sales were made by virtue thereof. In the fall of 1819, Overton caused an execution to be deliv- ered to the sheriff of Stuart County, grounded upon this judg- ment, and caused it to be levied upon a tract of land of one thousand acres, lying within said county. The land was ad- vertised and sold to complainants for $240, and a deed was made to them in the usual form by the sheriff. IN REALTY. 643 In 1822 a compromise took place between Overton, Andrew Jackson, and others, in reference to claims Jackson and Over- ton had against the estate of David Allison, and the one thou- sand acre tract of land was by Jackson conveyed to Overton. Upon this title Overton brought ejectment against the com- plainants and obtained a verdict and judgment for the land. To enjoin this, the bill was filed and an injunction awarded to stay the execution of the writ of possession, which was made perpetual by decree on the final hearing before the chancellor, from which there was an appeal prosecuted to this Court. It is contended for complainants that Overton having in- duced them to purchase at the sheriff 's sale, is estopped to set up his subsequently acquired deed. Overton, neither by himself, or through his agent, made any representations to complainants as to the state of the title. The facts seem to be, that Samuel R. Overton, a relation of defendant, transacted the business, and that his object was to buy in the lands of Allison's heirs, at a great sacrifice, upon speculation ; that the complainants attended the sale, and bid from similar motives, each risking the title, acting in opposi- tion to each other, and being unacquainted. Where one man stands by and knowingly permits another to purchase and expend money on land, under an erroneous opinion of title, without making his claim known, he shall not afterward be permitted to exercise his legal right against such deceived purchaser : 2 Atk. 86 ; 1 Eq. Ca. Ab. 356 ; Prec. in Ch. 37 ; 2 Ver. 150 ; 3 Atk. 692 ; 5 Ves. 688 ; 7 Ves. 230 ; 1 Johns. Ch. R. 344, 354. Overton had no title at the time of the sheriff's sale, and was endeavoring to obtain it, for which purpose his agent bid up the land to nearly the price of complainant's bid. It is impossible to apply the principle to Overton. To a party situ- ated as Jackson was, alone can the doctrine be made to apply, and in reference to him even it would be inapplicable. Any man's title could be defeated if a purchaser at execution sale could say to the legal owner, ignorant or conusant of the pre- 644 ILLUSTRATIVE CASES , tended purchase, "You jpassively stood by and permitted me ito be deceived." Caveat emptor is the undoubted rule in rela- tion to titles in cases of execution sales of land ; there is no warranty of title, either express or implied, by any oner 1 Ten. R. 286 ; 4 Hayw. R. 179 ; 2 Bay's Rep. 171 ; 2 Murphy's N. C. Rep. 291 ; 1 Devereux & Badger's R. 39 ; 2 Bibb's R. 95 ; Martin's R. 575, 615. It is next contended the rule applies to Overton, " that where A. sells land to B., and executes a conveyance purporting to be in fee with warranty of title, when A. has no estate, but after- ward has conveyed to him the fee, the benefit of this convey- ance shall inure to B. the purchaser : 1 Inst., §§ 446, 265, a and b ; Litt., § 476 ; 10 Viner's Ab. 483 ; 1 Salk. 275, 6 ; 2 Salk. 685 ; 4 Com. D. Estoppel A. 2 ; 1 Johns. Ca. 90 ; 4 Johns. R. 194 ; 12 Johns. R. 201 ; 13 Johns. R. 316. The Courts of New York seem to treat this as an estoppel, proceeding upon the ground that the grantor is not permitted to gainsay his own deed by alleging he had no title at the time he conveyed. All estoppels proceed upon this, that in the nature of evidence, some is of too high a grade to be de- nied. A fact admitted by recital, or directly in a covenant or deed, concludes all the parties to it, and cannot be averred against : Com. D. Estoppel, A. 2. We doubt whether this be the true reason, however, why, if A. conveys to B., with warranty of title when he had none, and afterward by conveyance acquires the fee from C, the benefit of the latter deed shall inure to B. Coke gives the better reason in his commentary on the 265th section of Littleton. When speaking of the release, he says : " If there is a warranty of title in the deed from A. to B., by force of which were B. evicted, he could recover from A. in damages to the value of the land, then A. and his heirs would be rebutted and barred of any remedy by action upon the newly acquired deed. And this, to avoid circuity of action, which is not favored in law." But if there was no warranty of title to sustain the action of covenant upon eviction, the action of A. upon the newly IN REALTY. 645 acquired title would not be barred : Litt., § 265 ; 14 Johns. R. 194. We have seen a sheriff's deed is a conveyance of the debtor's legal title, without warranty express or implied on the part of the debtor, creditor, or sheriff; therefore this incident of express warranty does not apply to it in law : 4 Hay. 179 ; 2 Bay's R. 171 ; 2 Com. Rep. 188. Had Overton made a deed similar in effect, say a release void in law to complainants, he would not have been barred to set up and prosecute an eject- ment upon the deed subsequently obtained from Jackson. Neither could he have been restrained in equity. We take it to be a settled rule, unless there has been fraud in the trans- action, that where the grantee takes no covenant for title, he is without remedy at law or in equity. Mr. Sugden has brought together the authorities in his treatise on Vendors, 346, 7, 3d ed. ; as has Judge Kent: 2 Cain's R. 188 ; 3 Ves. R. 235. As an assurance of title, a sheriff 's deed stands lower than any other, and equity can afford no relief: 4 Hay. 179 ; 2 Bay, 170; 2 Murphy, N. C. R. 291. Equity follows the law. Where there is no legal liability, equity can create none : Head v. Stamford, 3 P. Wms. 409. It follows that a contract imposing no legal obligation can be enforced nowhere : Rutherford v. Wheaton, Nashville, 1830. No legal liability was imposed upon Overton by the sheriff 's deed to protect the title of complainants, express or implied. They purchased such title as Allison's heirs had, running all risks of its validity: 2 Bay's Rep. 171. The heirs had no title, the deed operated nothing, is void in law, and equity cannot help it ; to do so, would be affording protection to a mere nullity, which cannot be done at law or in equity : Litt. 265 a ; 2 Bibb's Rep. 95. This position is undeniable, and covers the whole case so far as protection is sought against the ejectment. To decree a perpetual injunction in this cause would, in sub- stance, be a decree of specific performance. The complainants paid something like one-tenth of the value of this land ; and to decree it to them, would in effect be, in that proportion, a 646 ILLUSTRATIVE CASES greater fraud upon the owner than he would commit upon them by retaining their money. Neither the one or the other can be tolerated in a Court of Equity ; the greater principle governing which is equality : Fran. Maxm. 3. It has been contended for the defendant, and admitted to be true by complainants' counsel, " that if the land cannot be obtained by perpetual injunction, the purchase-money cannot be decreed to complainants." This is certainly true, in refer- ence to the purchase of a defective title, because as to the title, the rule caveat emptor applies ; but it is just as untrue in reference to the void judgment of the execution creditor. Suppose Over- ton had obtained from the clerk of some Court, other than Sumner, an execution not authorized by any judgment, the writ had been fair on its face ; the sheriff had levied it, and obtained $240, by virtue thereof, from complainants, wliich sum he had paid over to Overton. Will any one doubt that it oould not have been recovered from him, because obtained by a false token ? How does the present case differ from the one supposed ? In no wise, other than there was an appearance of a judgment upon the records of the Sumner County Court, which exempted the clerk and the plaintiff in the action from the charge of fraud for issuing the execution. 1. No plea of fully administered was found for the executor. 2. The heirs were not named in the writ of scire facias, or their names re- turned by the sheriff. 3. They were not served or the fact of non-residence returned. For these and other reasons the pro- ceedings are void : Roberts v. Busby and Wife, 3 Hay. Rep. 299 ; Sewell and Jones v. Williams, 5 Hay. Rep. 280. Same case in this Court in manuscript : Boyd v. Armstrong, and Peck V. Wheaton. If A. obtains money from B., without consideration, either through fraud or mistake, B. can recover it back : Bui. N. P. 131 ; Esp. N. P. 2 to 6 ; 6 Term Rep. 606. In such cases the action of assumpsit was substituted for a bill in equity, as late as the days of Lord Mansfield. The defendant having an- swered and come to a hearing, cannot then object to the jurisdic- tion of a Court of Equity when the matter is doubtful : 2 Johns. IN REALTY. 647 €. C. 369 ; 4 Johns. C. C. 290. Courts of Equity in this State have assumed jurisdiction and afforded relief in similar cases : Robertson ■;;. England at Sparta, Ward and Others v. Souther- land and M'Campbell, Peck's Rep. Appendix. In these cases an execution on a void judgment had been put into the hands of the sheriff of White, and money obtained upon it ; the only question the Court laid stress upon was, is the judgment void? Judge Haywood thought where the judgment had been ob- tained in the lifetime of the ancester, the creditor could reach the lands descended, without any administrator being ap- pointed, but felt himself bound by the case of Boyd v. Arm- strong, decided otherwise by a majority of the Supreme Court. Overton will refund to complainants $240, with interest ■thereon from the 6th day of November, 1819. It is said defendant did not receive from the sheriff the whole amount. It is his misfortune ; had he let his void judg- ment rest, it would not have happened. The whole proceed- ing on the execution being void, the sheriff will be authorized to pay the overplus to the defendant ; and the decree will order that he may apply and receive it. The decree below is entirely reversed ; therefore, the com- plainants will pay the costs of the cause in this Court, and the defendant of the Court below. The bill, so far as it enjoins the action of ejectment, will be dismissed. Decree accordingly. WiHis V. Watson, 5 111. 64 ; King v. Gilson's Admx., 32 111. 353. In Pais. Sumner v. Seaton. Court of Chancery, New Jersey, 1890. 47 N. J. Eq. 103 ; 19 Atl. Rep. 884. One Mrs. Smith and defendant owned lands in severalty which met in the centre of a street. The city so changed the line of the street that a nar- row strip of defendant's land, formerly in the street, was left on the opposite 648 ILLUSTRATIVE CASES side and adjoining Mrs. Smith's lots. Afterward Mrs. Smith conveyed her land to the claimant in this suit, who erected a valuable dwelhng on the same, honestly supposing that she procured title to all the land as far as the street. She graded the grounds, including the strip, sodded the same, planted trees and shrubbery along the line of the street on the strip, and also erected thereon an iron fence, and otherwise beautified and adorned it. Defendant's deed was on record, and he stood by, seeing all these improvements, but did not assert his title until all the improvements were made, when he brought an action in ejectment, and this claimant commenced this suit in equity to enjoin him from proceeding further in that action. Pitney, V. C. Complainant rested her right to relief on three grounds: First, that the effect of the proceedings to change the location of the street was to vest in her the abso- lute legal title to the strip in question ; second, that if the effect was not to change the title at law, it did in equity ; and^ third, that the defendant is estopped by his silence and acqui- escence, while complainant was making her improvements, from setting up his title as against her. As to the first point. Should the complainant satisfy the- Court that it is well taken, the result would be simply to oust the jurisdiction of the Court, for the simple reason that the ground is available at law as a defense to an action of eject- ment. The proceeding here is and must be on the basis that the legal title is in the defendant ; and as there has been a. general verdict rendered by a Judge without a jury, in favor of the defendant herein, and judgment entered thereon, ij; must have been upon a finding that the legal title is in him. The second point presents a more serious question. Mrs. Smith owned a lot with 500 feet of frontage on a street in the city of Elizabeth. As so situated, it was admitted that it had great. value. The City Council changed the location of the street in front of it in such a manner as to cut off access from this lot to the street by interposing in front of it land belonging to a third party. That such a change must result in a serious injury to the value of the lot is obvious ; yet not only were no damages awarded to Mrs. Smith, but a commission actually assessed a large sum against her for benefits conferred upon her lot, and when the feature in question was called to the IN REALTY. 649 -attention of the municipal authorities they refused to abate it. Complainant urges, and I think rightly, that the action of the commission and the Common Council can be accounted for, con- sistently with the least intention on their part to act fairly and justly toward Mrs. Smith, only on the ground that they supposed that the effect of the proceeding was to vest in her the bene- ficial use of the intervening strip. It is impossible to suppose that five gentlemen, chosen on account of their intelligence, good judgment, and honesty, would make such an award on any other basis, or that an impartial city council would con- firm it. These ofiicials cannot be supposed to have been ignorant of the true situation of the property lines, for not only was their attention called to it by the written protest of Mr. Smith, but the map shows it most clearly. For these rea- sons I think it must be assumed that the whole proceedings, as well the ascertainment of damages as the assessment on account of benefits, must have proceeded on the basis or assumption that the strip in question would become the prop- erty of Mrs. Smith. The effect of this assumption is obvious. The sum total or aggregate of the cost of improvement was reduced by the amount which the city would have been obliged to paj', if anything, to Mrs. Smith for damages to her lot caused by cutting it off from the street ; and the amount to be assessed against the other lots, not situated in this respect the same as hers, was reduced by the amount actually assessed against her lot, and paid by her. Presumably, then, every other person liable to assessment derived a direct pecuniary benefit from the assumption in question ; and there is, to my mind, great force in the argument that all the land-owners who participated in the fruits of this assumption became parties, so to speak, to the arrangement, and are estopped from setting up the contrary of the assumption upon which it was based, and from which they received a direct benefit. But the defendant was not mentioned in the assessment on account of benefits, and it was not proved that he had any- thing to do with it, or that he made any individual arrange- ment with the Common Council on the assumption before 650 ILLUSTRATIVE CASES mentioned. It is not shown that he knew anything of it, op of the commissioners' last assessment. And I do not at this moment perceive how the Court can presume anything against him in this respect. But counsel for the complainant relies io this connection upon the release executed by the defendant, as above set forth. He argues that it must be read and con- strued in the light of the actual facts and features of the scheme of improvement, one of which, by the maps and assessments, appeared to be that whatever land the north-side owners might own south of the south line of the new street should go to the owners on that side, and that such features ckarly appeared by the inspection of the map on file in the proper department of the municipal government; and he argues that the land so, in effect, attempted to be transferred from the defendant to the complainant's grantor, is fairly in- cluded, in and covered by the language of the release, as " land and real estate taken and appropriated by the city for the straightening of Rahway Avenue." In this connection it is important to observe that the payment was made to defendant, and the release in question executed by him in July, 1875, long after the strip in question had been fenced in and inclosed by complainant's grantor, and her improvements in part made, so that defendant, when he executed the release and accepted the money, must have known by observation just what the effect of the improvement was, and that the complainant supposed that she owned this land, and was act- ing on that supposition. The power of a municipal corpora- tion, in the absence of objection, to acquire land and transfer it to a natural person as a part of a scheme of legitimate im- provement, is sustained by judicial decision : Embury v. Con- ner, 3 N. Y. 511 ; Sherman v. McKeon, 38 N. Y. 266. But I have not found it necessarj' to determine definitely whether, upon the second ground alone, complainant is entitled to succeed in this Court. This part of the case, how- ever, has, in my judgment, an important bearing on com- plainant's third position; since I think the circumstances referred to fully justified Mrs. Smith and her daughter, the IN REALTY. 651 complainant, in supposing and believing that the effect of the improvement was to give her the beneficial title to the strip in question, and that she and her assignee, the complainant, acted in good faith on that assumption. In answer to this inference, defendant contended that the protest of Mrs. Smith's bwsband, above set forth, shows that she had notice of the fact that defendant had the legal title to the land in dispute. But on that point it is to be observed — First, that the land here in dispute was marked 5n the map as belonging to Wetmore, who was a party, so to speak, to the assessment, and bound thereby ; second, that Mrs. Smith's son, who prepared the pro- test, swears that his mother knew nothing of it ; third, that he concluded, upon consideration, that the effect of the proceed- ing was to vest the beneficial title in the strip in his mother, and so paid the assessment without further question ; fourth, that the complainant is not chargeable with knowledge of the protest, and she and her husband deny all notice of any defect of title. This brings us to the third ground, namely, estoppel by acquiescence and silence. Here complainant relies upon the familiar maxim that where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent ; or, as it is otherwise expressed, qui tacet, consentire mdetur ; qui potest et debet vetare jubet si non vetat. In Wendell v. Van Rensselaer, 1 Johns. Ch. 344, Chancellor Kent, at page 354, says : " There is no principle better established in this Court, nor one founded on more solid foundations of equity and public utility, than that which declares that if one man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterward be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel." This doctrine was approved by Chancellor Pennington in Ross v. Railroad Co., 2 N. J. Eq. 422, at page 434 ; by the Court of 652 ILLUSTRATIVE CASES Appeals in Doughty v. Doughty, 7 N. J. Eq. 643, at page 650 ; and has since been recognized in many cases in this Court, and was acted upon by Chief Justice Beasley, sitting for the Chancellor, in Erie Ry. Co. v. Delaware, L. & W. R. R. Co., 21 N. J. Eq. 283, at page 288 et seq., and by Vice-Chancellor Bird in Swayze v. Carter, 41 N. J. Eq. 231, 3 Atl. Rep. 706. The only question that has ever been raised as to the value of the maxim is that its application to particular cases is sometimes difficult and embarrassing, apd requires great care and discrimination : see Philhower v. Todd, 11 N. J. Eq. 312j at page 315. But this may be said of all the fundamental maxims and principles of equity, and must not deter the equity Judge from applying them where properly applicable. Several canons have been suggested by the Judges as guides in this work, but, in construing them, we must not lose sight of the facts in the particular case in which they have been enunciated, and must interpret them accordingly. Lord Ckanworth, in the House of Lords, in Ramsden v. Dyson, L. R. 1 H. L. 129, at page 141, after stating the principle with great clearness, says that, in order that the maxim shall be applicable to a case of this sort, viz., the estoppel by expenditure of money on land, it must have three features — First, the person expending the money must honestly suppose himself to be the owner of the land ; and, secondly, the real owner, who encourages the expenditure by his silence, must know that the land belongs to him, and not to the other ; and, thirdly, that the other is acting on an erroneous belief as to its ownership. The canon was applied by Chancellor Runyon in Kirchner v. Miller, 39 N. J. Eq. 355. With regard to the first of these requisites, I have already shown that Mrs. Smith and her grantee, the complainant, were fully justified in supposing, and did actually suppose, that the land belonged to them. But counsel for the defendant insisted that both Mrs. Smith and complainant are chargeable with notice of the record title of defendant, and argued that they had no right in the face of it to suppose that they had title. I cannot accede to this argument. In the first place, I IN REALTY. 653 do not understand that the strength of coniplainant's proposi- tion depends at all upon her want of knowledge that defendant held the legal title to this land. If she be chargeable with full knowledge of all the record discloses in that respect, still the question remains, Were not she and her mother justified in supposing that this strip, reclaimed, so to speak, by the municipal action from an ancient highway, became, in some way, and as a result of those proceedings, her property ? But if the case were wanting in that element, still I do not think defendant's position tenable. Courts of Equity have in many cases given parties the benefit of an honest supposition as to title, where the slightest examination of the record or other equally available source of information would have disclosed their error. In fact, to exclude the application of the maxim from cases where the party has implied or constructive notice of title from the record, would confine its application to a very narrow field. Absence of notice, both actual and constructive, of the adverse title, would, in many cases, give the party the benefit of the plea of bona fide purchaser without notice, and dis- pense with the necessity of setting up estoppel in pais. Chan- cellor Zabeiskie in Dellett v. Kemble, 23 N. J. Eq. 58, held a party entitled to equitable aid against a judgment creditor of his grantor where the judgment creditor had stood by, and, without notice, permitted the former to build on the property in the honest belief that it was free from incumbrance, when he could have discovered the judgment by a search. In Town v. Need- ham, 3 Paige, 545, the title of Harvey, one of the defendants, to an undivided one-fourth of the premises at the death of his grandmother, clearly appeared by the will of the former owner, which was a part of complainant's chain of title ; but he was granted relief against Harvey, on the ground that he bought and made improvements in the honest supposition that the other tenants in common, through whom he derived title, had in some way acquired and were the owners of the whole title. So in Brown v. Bowen, 30 N. Y. 620, the title, which was barred by estoppel, was found on the public record. In Storrs V. Barker, 6 Johns. Ch. 166, the plaintiff claimed under 654 ILLUSTRATIVE CASES the devise of a married woman to her husband, and was chargeable with the knowledge that it was void ; and it was held that he was justified in supposing that the title had been validated by some action between the devisee and the heir-at- law, and the heir-alrlaw, having stood by and encouraged the purchase by plaintiff from the devisee, was held estopped. In Chapman v. Chapman, 59 Pa. St. 214, where the plaintiff held under a long lease, and the defendants held in severalty par- cels of the whole tract under subsequent conveyances from the same original owner, and plaintiff was held estopped from setting up his lease by his positive encouragement as to de- fendant Chapman, and by his mere silence as to defendant Gansamer, I infer that plaintiff's lease was a matter of record ; since, if not recorded, defendants could have pleaded that they were bona fide purchasers for value without notice, and need not have relied upon the estoppel. The position that, in general, record notice of the title is sufficient to defeat the eltoppel, where it rests on mere silence, receives qualified support from Prof Pomeroy in his treatise on Equity Jurisprudence, § 810 ; and also from Mr. Bigelow in his last edition of his treatise on Estoppel, 594. I have examined the cases cited by these authors in support of th& text, and they are all distinguishable from the case in hand. They each lack one of its important features, a4z., that the person sought to be estopped by his silence knew, or had rea- son to suppose, that the person asking the protection of the estoppel was acting in good faith, on an erroneous supposition as to the title. In Fisher v. Mossman, 11 Ohio St. 42, the contest was between a mortgagee and the purchaser of the equity of redemption at sheriff's sale under execution against the owner of the equity. The mortgagee was present at the sheriffs sale, and did not give notice of his mortgage, which was recorded, and it was held that he was not estopped by his silence, in the absence of any notice or reason to suppose that the purchaser was ignorant of the existence of his mortgage. In Knouff v. Thompson, 16 Pa. St. 357, it appeared affirma- tively that the defendant knew of plaintiff's claim, and that IN REALTY. 6&5 his own title was defective, and, moreover, the improvements, made were of very slight value. In Hill v. Epley, 31 Pa. St. 331, the contest was between one tenant in common and the par- chaser at sheriff 's sale of the interest of the other tenant in common, under judgment and execution against him. The matter relied upon in estoppel by the purchaser at sheriff's sale was that the grantor of the party now claiming against him had been present at the sheriff 's sale, and had failed to give notice of his title. When the case was first before the Court in 7 Watts, 163, the opinion and decision was favorable to the purchaser at sheriff 's sale, and the remarks of the Court and citation of authorities found on page 168 in support of the estoppel are valuable. On a retrial a verdict was ren- dered in accordance with this opinion in favor of the pur- chaser at sheriff's sale, and against the owner of the out- standing half interest, and judgment thereon was reversed by the Court in banc, in an opinion by Strong, J. On page 334,. 31 Pa. St., he says : "It seems also to be well settled that silence in some cases will estop a party against speaking after- ward. Thus, if one suffers another to purchase and expend money upon a tract of land, and knows that that other has a mistaken opinion respecting the title to it, and does not make known his claim, he shall not afterward be permitted to set up a claim to that land against the purchaser. His silence then becomes a fraud. But silence, without such knowledge, works no estoppel. It is only when silence becomes a fraud that it postpones." And again (page 335) : " Clearly, if David Witherow [the plaintiff's grantor and one of the tenants in common] had not attended the sheriffs sale, nothing would have been required of him, after he had his deed upon record. This is conceded. But, if it be admitted that his presence at the sale imposed upon him the duty of giving other notice than that which his recorded deed furnished, and which was consequently known to Epley, it must be because he saw that the purchaser was still acting under an erroneous belief that the whole title was somehow in Samuel [the other tenant in common, and defendant in the execution]. Nothing else 656 ILLUSTRATIVE CASES could make his silence work a fraud. But how could he see that? And how is such knowledge affirmatively brought home to him ? There is no evidence of any such erroneous belief The land was being sold as the property of Samuel Witherow, it is true. But Samuel had an interest in the land. Neither the execution nor the sheriff nor the crier asserted that* that interest amounted to the entire fee simple, or to an estate in severalty. The sheriff had no right to define what "the interest was. The writ was just such a one as it would have been if it had been known by every person present at the sale that Samuel Witherow owned but an undivided moiety. It is impossible, under such circumstances, to see how David's silence could be construed into an admission that Samuel owned the whole, because there was no assertion by the writ, by the sheriff, or by any one that he did. It is equally impossible to discover how David could have supposed that Epley was bidding under the impression, for there was nothing to warrant it, and a deed on record showing the contrary, of the contents of which not only the law pre- sumed, but he had a right' to presume, every bidder knew. If the sheriff had offered for sale a tract of land belonging to David in severalty, in which Samuel had no interest, the con- sequences of silence might have been different." I believe this to be a correct statement of the doctrine, and I conceive that it fully disposes of the attempt to avoid the effect of the silence in this case by an appeal to the record title. The question is not so much what the party setting up the estoppel might or ought to have known or supposed, as what he actually did know or suppose, to the knowledge of the other party. The New York case (Eubber Co. v. Rothery, 107 N. Y. 310, 14 N. E. Rep. 269), much relied upon by defendant, is clearly distinguishable. It lacks the feature of the one party acting on the mistaken sup- position that he owned the other party's land, and the other party knowing of the mistake. The case was this : Defendants owned both sides of a stream at a certain point. Further down they owned but one side, while the plaintiffs owned the IN REALTY. 657 other side. Defendants built a dam across the stream above on their own land, and dug a race-way from, it on their side of the stream, and built works, which, when put in use, resulted in diverting the whole stream, and carrying it down past the plaintiff 's land, before it was returned to its natural channel. Plaintiffs saw these works erected, and made no objection. Defendants set their works in motion, and diverted more than half the waters of the stream, and for that diversion plaintiff brought suit. Now, as defendants clearly had the right to divert one-half the water of the stream, and it did not •appear that a beneficial use of the work could not be made with the one-half, or that plaintiff had notice of anything of the sort, it is clear that there was nothing in all that plain- tiff saw defendants doing to lead plaintiff to suppose either that de^ndants supposed that they had a right to divert all the water, or that they intended to do so, or must necessarily do so in order to enjoy their works to their full extent ; and besides, it does not appear that the defendants supposed that they had a right to divert all the water, or that, as before remarked, the plaintiff knew or supposed that the defendants were acting on that supposition. The case is somewhat in line with Cooper v. Carlisle, 17 N. J. Eq. 525, at page 535. In Kirchner v. Miller, 39 N. J. Eq. 355, the complainant made a mistake of a few inches in surveying the line between his land and the defendant's, for which mistake the defendant was not responsible, and of which he was not aware until after complainant had built. The defendant could not be guilty of any acquiescence unless he knew that the complainant was building over on his land, which he did not. The case lacks the features mentioned by Lord Cranwoeth. Moreover, the complainant was able to restore himself at a trifling expense, as shown by the opinion. Brant v. Coal Co., 93 U. S. 326, is also clearly distinguishable. There a party, who held a life- estate only, conveyed and took back a purchase-money mort- gage which was assigned to the owner of the fee in remainder, who foreclosed. The deed of assignment recited the title truly. Defendant's grantor purchased at the foreclosure sale, 42 658 ILLUSTRATIVE CASEs" Plaintiff was the owner of the remainder, and at the death of the Kfe-tenant brought suit in equity to restrain mining, etc. Defendant set up estoppel arising out of the foreclosure, and the Court below dismissed the bill on that ground. This decree was reversed on appeal, by a divided Court. Justice Field, at page 335, says : " The purchaser was bound to take notice of the title. He was directed to its source by the plead- ings in the case. The doctrine of caveat emptor applies to all judicial sales of this character ; the purchaser takes only the title which the mortgagor possessed. And here, as a matter of fact, he knew that he was obtaining only a life-estate by his purchase. He so stated at the sale, and frequently afterward. There is no evidence that either the complainant or Hector Sin- clair ever made any representations to the defendant corpora- tion to induce it to buy the property from the purchaser at the sale, or that they made any representations to any one respect- ing the title inconsistent with the fact ; but, on the contrary, it is abundantly established by the evidence in the record that from the time they took from the widow the assignment of the bond and mortgage of the Union Potomac Company, in 1854, they always claimed to own seven-eighths of the reversion. The assignment itself recited that the widow had owned, and had sold to that company, a life-interest in the property, and that they had acquired the interest of the heirs." Brewer i\ Railroad Co., 5 Mete. 478, was an action of ejectment, where the party was precluded from setting up equitable estoppel. In Baldwin v. Richman, 9 N. J. Eq. 394, Baldwin claiihed title by conveyance from Benjamin Richman, and was defeated in an action of ejectment by the heirs of Jeremiah, brother of Benjamin. Jeremiah being the sole owner of the fee of the land in question and other lands, but supposing that he owned them as tenant in common with his brother Benjamin, applied to the Orphans' Court for and procured partition, in which the lot in controversy was set off to Benjamin, who entered, and, after the mistake was discovered, conveyed to Richman, who purchased with full notice of the true state of the title. The bill prayed relief against the ejectment. IN REALTY. 659 Chancellor Williamson dismissed it on two grounds : First (page 398), that the bill "does not allege that Benjamin took possession of the land and improved it under the impres- sion that the land was his own, nor is there, any allegation that it was the conduct of Jeremiah that induced him to take possession and make the improvements. From anything that appears in the bill to the contrary, he knew that Jeremiah was acting under a mistake, and took advantage of it." Second (page 399), that there was an allegation in the bill, but no admission or proof, that Benjamin had made improvements or expended moneys on the land, hence no injury was shown. The case is in all its aspects clearly distinguishable from the one in hand. From the numerous modern cases in other jurisdictions in which the maxim has been applied, I cite the following, which seem to have been well considered : Canal Co. V. King, 16 Beav. 630, 22 Law J. Ch. 604 ; Slocumb v. Railroad Co., 57 Iowa, 675, at page 682, 11 N. W. Eep. 641, 644 ; Ross v. Thompson, 78 Ind. 90, 96 ; Markham v. O'Con- nor, 52 Ga. 198 ; Chapman v. Pingree, 67 Me. 198 ; Stone v. Tyree, 30 W. Va. 687, 5 S. E. Rep. 878 ; Allen v. Shaw, 61 N. ff. 95 ; Morgan v. Railroad Co., 96 U. S. 716. In the case in hand I find it impossible to suppose that defendant did not understand that the complainant was mak- ing her improvements in the complete confidence that she had title to the whole of the lot. It would have been an act of the greatest folly, if not outright insanity, in her to have made the improvements if she had supposed any other person owned the strip in question. The transaction spoke for itself; and, as before remarked, there was no pretense at the hearing that defendant did not so understand. He does indeed swear that he thought " these parties " were better prepared to know how much land he had there than he was. But the context shows that he referred merely to the quantity of his land cut off by the change of street lines, and not to the state of the minds of the " parties " alluded to, as to their right to use and occupy it as their own. He did not swear that he did not suppose that Mrs. Sumner made her improvements in the 660 ILLUSTRATIVE CASES honest belief that she had fall right to the perpetual use and occupation of the strip in controversy. With regard to the knowledge by the defendant that a part of the land in the old street to which he had the legal title lay to the south of the southerly line of the new street, I find no difficulty. An inspection of the map shows that he must have known it, and, besides, he not only does not deny it on the stand, but dis- tinctly admits it. He swears that he did not know how^ much he had. In fact, defendant's counsel admitted in his brief that his client knew that he owned some land at the point in question, but did not know the quantity. But defendant's counsel further insists that no equitable estoppel arises in this case, because the dwelling erected by complainant was on her own land, and the actual improvements put on the land in dispute were so trifling in amount and cost as not to create a duty on his part to speak. I cannot accede to the proposition necessarily assumed in this position, viz., that it is necessary that there should be an actual use or occupation of the very land in question by some fixed and permanent structure in order to raise an estoppel. The true ground of equitable estoppel I conceive to be that the party, in reliance upon the existence of a certain state of facts, has so changed his posi- tion that he cannot be restored to his former position, and will sufier serious loss if the facts prove to be different from what he supposed them to be ; and the estoppel arises against the party who is responsible for his action on such mistaken belief, and it operates to prevent him from asserting the contrary. Now, it is palpable that actual occupation by building on land is not the only use a party may make of it, the deprivation of which would result in serious injury to him. For instance, suppose in this case complainant's lot had been but 100 feet deep and 25 feet wide, and defendant's legal title had extended across the whole front, and to a depth of 10 feet, and com- plainant had built upon the whole lot, except the 10 feet owned by defendant, leaving that as a front yard to his build- ings. It is at once apparent that the assertion of title by the defendant to the 10 feet would have been utterly destructive IN REALTY. 661 of the value of complainant's structure. Now, the difference between the case just supposed and the one in hand is one of degree merely. Counsel in this connection further relies on the fact that the strip claimed by defendant does not reach across the whole front of complainant's lot, but leaves a space of about 30 feet next to Mrs. Smith's line by which complainant can have access to the street. But that space is covered by the Wei^ more title, and it was admitted at the hearing that it had not been transferred to Mrs. Smith or to the complainant, unless such transfer resulted in equity from the proceedings before referred to. So that, if the Wetmore title is enforceable as well as defendant's, complainant is shut up to a mere right of way by necessity across her mother's lot. But admitting that complainant has, after deducting the lot claimed by defendant, a frontage on the street of 30 feet, or one-fifth of the width of her lot, it is palpable that the utility as well as the market value of her property will be very injuriously affected if defendant may take exclusive possession of the piece in dis- pute; and it is equally clear, as before remarked, that defendant must have perceived and known that complainant was acting on the assumption that she owned this piece, and that she would not have built her house if she had not so sup- posed. If ever there was a case in which the duty of the party to-speak was clear, it seems to me it was this case, and that the language of Lord Cranworth in Ramsden v. Dyson, supra, applies: "A Court of Equity considers that, when the one party saw the mistake into which the other party had fallen, it was his duty to be active and state his adverse title ; and that it would be dishonest for him to remain willfully pas- sive on such an occasion in order afterward to profit by the mistake which he might have prevented." For these reasons, I think the complainant is entitled to relief, and it only remains to determine its nature and extent. Courts of Equity do not, in all cases of this sort, push the estoppel to the extent of passing the equitable title, but in proper cases permit the owner of the legal title to hold posses- 662 ILLUSTRATIVE CASES sion upon terms of compensating the party who has innocently made improvements upon the erroneous supposition ; indem- nity to the party entitled to the estoppel being in all cases the end aimed at. It was not, however, suggested at the argument or in the briefs of counsel that remedy by compensation in money would be proper in this case ; and it is palpable that it could not. The value of the strip in question for use by itself must be quite insignificant, and the injury to complainant by reason of its exclusive occupation by another is not easily ascertained or measured in dollars and cents. The only mode in which complainant can be fully indemnified is to be protected in the perpetual enjoyment of the land in question^ and for that purpose the defendant should be perpetually enjoined from asserting his legal title, and such will be the decree. To establish a title by estoppel in pais the party relying upon it must show : 1. That the party estopped is chargeable with declarations or conduct amounting to admissions inconsistent with what he afterward offers to prove, and respecting facts not equally within the knowledge or reach of both parties : Western N. Y. & P. E. Co. v. Richards, 19 Atl. Rep. 931. 2. That he relied and acted upon such admissions, and was deceived thereby : Malloney v. Horan, 49 N. Y. Ill ; De Mill v. Moffat, 49 Mich. 125- 131 ; Whitacre v. Culver, 8 Minn. 133. 3. That such admissions were intentionally designed by the party charged therewith to influence and mislead him : Turner v. Coffin, 12 Allen, 401 ; Whitaker v. Williams, 20 Conn. 104 ; Copeland v. Copeland, 28 Me. 529 ; Henshaw v. Bissell, 18 Wall. 255-271. In 18 Wall. 271 it is said : " There must be some intended deception in the conduct or declarations of the part}' to be estopped, or such gross negligence as to amount to constructive fraud." One may be estopped by his acts done through honest mistake under cir- cumstances amounting to culpable or gross negligence : Pence v. Arbuckle, 22 Minn. 417; Coleman v. Pearce, 26 Minn. 123; Beebe D.Wilkinson, 30 Minn. 551 ; Anderson v. Hubble, 93 Ind. 576 ; Blair v. Wait, 69 N. Y. 113 ; Leather Mfrs. Bank r. Morgan, 117 U. S. 109. Other cases hold that in case of mistake of fact or of legal rights, under circumstances not amounting to negligence, the mistaken party is bound by his acts, on the ground that when one of two innocent parties must suffer, it should be the one who caused the injury : Maple v. Kussart, 53 Pa. St. 348 ; Peake v. Thomas, 39 Mich. 590 ; Rosenthal v. Mayhugh, 33 Ohio St. 155-168. In this last case a woman sold land, supposing her husband was dead. He afterward appeared, and conveyed his interest without her joining in the deed. After his death she petitioned for dower, and it was held that she was estopped. IN REALTY. 663 Only he whose conduct was intended to be influenced by the admissions can raise the estoppel : Morgan v. Spangler, 14 Ohio St. 102 ; Mayenborg v. Haynes, 50 N. Y. 675 ; Kinney v. Whiton, 44 Conn. 262. But compare Mit- chell V. Reed, 9 Cal. 204. But if the admissions are general, or made for the purpose of having them repeated to others, then any one knowing of and reasonably acting upon them may claim the estoppel : Middleton Bank v. Jerome, 18 Conn. 443. Silence alone will not estop, except where it amounts to a fraud ; but posi- tive acts of encouragement without a fraudulent intent will be a bar : Maple V. Kussart, 53 Pa. St. 353 ; Beaupland v. McKeen, 28 Pa. St. 124. Dedication. — A dedication of land to the public, after improvements have been made on the strength of it, cannot be rescinded : Livermore v. Maquo- keta, 35 Iowa, 360; Wilder v. City of St. Paul, 12 Minn. 192. Applicaiion. — ^The principle of estoppel in pais, as affecting legal title, will be applied in courts of both law and equity : Copeland v. Copeland, 28 Me. 629 ; Bell v. Goodnature, 50 Minn. 417. Contra. — As violating the Statute of Frauds, this principle as affecting legal title is not applied in some Courts of law : Hayes v. Livingston, 34 Mich. 383. Exhaustive note, 3 Smith's Leading Cases (9th ed.), 2060. Married 'Women and Infants. Estoppel in pais does not, as a general rule, apply to married 'V7omen and infants, not sui juris, on the ground that they cannot do by acts in pais what they cannot do by deed. Married Women. Lowell v. Daniels. Supreme Judicial Court of Massachusetts, 1854. 2 Gray, 161. One Mrs. Heffrein, while married, conveyed lund to one Hooton, her hus- band not joining, and at the time of the sale she did not disclose her mar- riage, but antedated her deed and executed it in her former name, as Eachel Smith, for the purpose of deceiving her grantee. Hooton mortgaged the land, and one of the heirs-at-law of Mrs. Heffrein was in possession of the premises when this action by writ of entry was commenced to recover the land by the owner of said mortgage interest. Thomas, J. The decision of one of the questions raised by the bill of exceptions seems to be conclusive of the rights of the parties, and to this we have confined our attention. That 664 ILLUSTRATIVE CASES question is, whether the tenant, whose wife is heir-at-law of Mrs. Heffrein, is estopped to deny the vaUdity of the deed under which, through the deeds of Hooton, the demandant claims. The deed of Mrs. Heffrein to Hooton, proprio vigwe, conveyed no estate. The separate deed of a married woman without the assent of the hushand, it was absolutely void : Fowler v. Shearer, 7 Mass. 21 ; Concord Bank v. Bellis, lo Gush. It has no force, because the grantor had no capacity to make it. The instrument has the form and semblance of a deed, and nothing more. Indeed, the demandant does not contend that this deed has of itself any validity ; but that, under the facts of the case, the tenant is estopped to deny its validity ; or, in other words, the title of the demandant is the result of estoppel, and not of grant ; or, to speak perhaps more precisely, of an estoppel that works a grant. The demandant, to show title in himself, offers the two deeds of mortgage from John B. Hooton. Deeds of warranty, they make prima facie evidence of the seisin of the premises in the demandant. The tenant then shows that the premises belonged to Mrs. Smith ; that she died intestate ; that his wife was her daughter and heir-in-law. The tenant thus makes an elder title. The demandant must now show that the estate that was in Mrs. Smith passed out of her and into his grantor. He undertakes to show it passed by deed. To do this, he must prove not merely the execution of the instrument, but its exe- cution by one having the requisite legal capacity to make a deed. He offers for this purpose a copy from the registry, of a deed, purporting to be from Mrs. Smith to his grantor, bear- ing date August 1, 1834. Assume that this is sufficient prima facie evidence of the execution and deliver}"- of the deed at the time of the date ; it is only prima fojde, and when the evi- dence is closed, the burden is still on the demandant to show its execution and delivery, by one competent in law for that purpose. When the evidence is in, it appears that this deed was made, delivered, acknowledged, and recorded, when the grantor was a married woman, and incapable of making it ; IN REALTY. 665 that is, that it was absolutely void. By force of the deed, then, the demandant wholly fails to show that the land had passed from the tenant's wife's mother to his grantor. Then the demandant says that the deed, upon its face, bears, date of the 1st of August, 1834, when the grantor was sole and capable of making a deed ; that it was signed with the name she bore before her marriage with Heffrein ; and was so signed and dated with a fraudulent purpose, on her part, of giving the deed an effect, which it would not have had in her true name, and under the true date ; knowing it would deceive and impose upon some person to be affected by it ; and when the agent of the demandant called upon Mrs. Heffrein, stating to her that he wished to examine Hooton's title, and informing her that the application was made with a view to a mortgage, she produced the deeds of the land to herself, but did not com- municate to the agent any defect in Hooton's title ; and that, therefore, whether the fraudulent purpose was to deprive her husband of his interest in the estate, or any other, the grantor and her heirs are estopped to deny that the date of the deed, which she executed and caused to be recorded, was the true date ; and as against her and her heirs the deed will be taken to be of the same effect as if it had been executed and deliv- ered at the time of its date, when she was unmarried and had capacity to execute it ; or, in other words, the tenant is, upon these facts, estopped from setting up any title in Mrs. Heffrein at the time Hooton conveyed to the demandant. This we understand to be the view of the case taken by the learned Judge, though perhaps in a critical examination of the lan- guage used by him, the silence of the grantor as to the defect of Hooton's title will not be found to be included as an ele- ment in the instruction given to the jury. This raises the material question at issue between the parties, whether a married woman and her heirs may be barred of her estate by an estoppel in pais. She can make no valid contract in relation to her estate. Her separate deed of it is absolutely void ; any covenants in such separate deed would be likewise void. If she were to €66 ILLUSTRATIVE CASES covenant that she was sole, was seised in her own right, and had full power to convey, such covenants would avail the grantee nothing. She could neither be sued upon them, nor estopped by them. The law has rendered her incapable of such contract, and she finds in her incapacity her protection ; her safety in her weakness. Her most solemn acts, done in good faith, and for full consideration, cannot affect her interest in the estate, or that of the husband and children. The strong- est possible example of this was presented in the case of the Concord Bank v. Bellis, above cited, in which it was held that where an estate was conveyed to a married woman, and she at the same time gave back a deed of mortgage to secure a part of the purchase-money, such deed of mortgage was wholly void. And we think a married woman cannot do indirectly what she cannot do directly ; cannot do by acts in pais what she cannot do by deed ; cannot do wrongfully what she cannot do right- fully. She cannot by her own act enlarge her legal capacity to convey an estate. This doctrine of estoppel in pais would seem to be stated broadly enough, when it is said that such estoppel is as effectual as the deed of the party. To say that one may, by acts in the country, by admission, by concealment, or by silence, in effect do what could not be done by deed, would be practically to dsspense with all the limitations the law has imposed upon the capacity of infants or married women to alienate their estates. But if Mrs. Heffrein was personally estopped to say this deed was executed by her while under coverture, we are not prepared to say that the daughter would be so estopped. The condition of the estate was this : The fee was in Mrs. Heffrein, with lim- ited power of alienation ; with no power indeed to convey, ex- cept by the joint deed of herself and husband : Rev. Sts., c. 59, § 2 ; and with no power to devise it. The law had given her no power by any act of hers to change the destination of the estate, or impair the title which at her decease would vest in her child. Upon her decease, the daughter enters into posses- sion of the estate. She is rightfully there ; the estate is in her. IN KEALTY. 667 unless there has been an alienation of the estate in the mode prescribed by law, in the lifetime of the mother. If it be said that the mother was guilty of misrepresentation and conceal- ment, for which coverture affords no protection ; the answer might well be, that whatever might be the effect upon her per- sonally, even if it estopped her to claim any interest in the estate, it could not do what the statute has not done, give her a power so to alienate the estate as to prevent the entry of her heirs-at-law upon her decease. Such seems to us the result of the application of well-settled principles of law to the case at bar. And upon a somewhat diligent examination of the authorities, we have found none to lead us to a different conclusion. The diligence of the counsel for the demandant has cited but two cases, having much ten- dency even to sustain the position that the estate of a married woman, incapable of making a deed, may pass by estoppel in pais. These are Hunsden ■;;. Cheyney, 2 Vern. 150, and Savage V Foster, 9 Mod. 35. In both these cases the husband and wife, who jointly were capable of levying a fine, were parties to the original frauds. They were both suits in equity against the parties to the fraud. They both rely, as matter of authority, upon the case of the estoppels of infants, who are not incapable of conveying, but whose deeds are voidable only and not void ; and neither of the cases, we think, entitled to the highest consideration. If they establish the point, for which they are cited, that the estate of a married woman may pass by her acts in pais, not only without the concurrence of the husband, but in fraud of his rights, we should question their application under our system, where the statute of frauds is equally binding in Courts of Equity as of law ; where the powers of married women, in the conveyance or devise of lands, are defined and limited by express statute ; and where the titles to real estate are matters of public record. No case at law has been cited, nor have we found one, in which it has been held that the estate of a party has been barred by estoppel in pais, who was incapable of conveying by 668 ILLUSTRATIVE CASES deed. And though Courts of law have Uberally applied the doctrine of estoppel in pais to cases of personal property, in the transfer of which no technical formahties intervene to pre- vent its application, we know of no case in which it has been applied to a party incapable in law of making a contract. The result of the views we have felt compelled to take of the case is, that the deed of Mrs. Heffreui to the demandant's grantor was absolutely void, and that this tenant is not estopped to deny its validit)^ New trial in this Court. Concord Bank v. Bellis, 10 Cash. 276; Morrison i;. Wilson, 13 Cal. 494; Glidden v. Strupler, 52 Pa. St. 400. Infants. WiELAND V. KOBICK. Supreme Court of Illinois, 1884. 110 ni. 16. Mr. Chief Justice Sheldon : This was an action of ejectment for the recovery of a certain lot of land in an addition to Chi- cago. There was recovery by the plaintiff, and the defendants appealed. On the trial in the Court below there was introduced in evidence, in defense, a deed from the plaintiflF to Emily C. Cummings, in which it is recited that " Margaretha David, (the plaintiff), unmarried, and of age," for $3,500 conveys and quit-claims to Emily C. Cummings the property in question, and a deed from Emily C. Cummings to Anna C. Haas, one of the defendants. The plaintiif then introduced evidence to prove that at the date of the deed to Emily C. Cummings the plaintiff was a minor, and under the age of eighteen years, and that after coming of age she filed her disaffirmance of the deed, and a demand for possession of the premises, in the re- corder's office of Cook County. It is objected that the evidence is not sufficient to justify a IN REALTY. 669 recovery against all of the defendants, as there is no evidence to connect the three other defendants with Anna C. Haas. Defendants having pleaded the general issue only, it was not necessary, under the statute, for plaintiff to prove that defend- ants were in possession of the premises, or claimed an interest or title therein : Rev. Stat. 1874, chap. 46, § 22. The only other question which appellants make upon the record is as to the effect of plaintiff 's deed to Emily C. Cum- mings, whether or not plaintiff was estopped from disaffirming such deed made while she was a minor, she having stated therein that she was of age. The authorities seem abundantly to establish that a defendant is not estopped from setting up infancy as a defense to a contract, by his fraudulent repre- sentations that he was of full age : Merriam v. Cunningham, 11 Gush. 40 ; Studwell v. Shapter, 54 N. Y. 249 ; Gilson v. Spear, 38 Vt. 311 ; Burley v. Russell, 10 N. H. 184; Conrad u Lane, 26 Minn. 389 ; Brown v. McCune, 5 Sandf. 288. In the latter case the Court said : " We are not aware that any case has gone the length of holding a party estopped by any- thing he has said or done while he was under age, and we think it would be repugnant to the principle upon which the law protects infants from civil liabilities in general." And further on : " We are clear that the doctrine of estoppel is in- applicable to infants." The conclusion, we think, from the authorities, must follow that the statement in the deed of plaintiff that she was of age is not an estoppel to the disaffirmance of it. The judgment will be affirmed. Judgment affirmed. The rule applies when the false statements are not contained in the deed itself: Conrad v. Lane, 26 Minn. 389; Burley v. Russell, 10 N. H. 184; Bu- chanan V. Hubbard, 96 Ind. 1. False statements as to ability to pay : Studwell v. Shapter, 54 N. Y. 249. Mere silence when the grantee is known to believe the grantor to be of age : Baker v. Stone, 136 Mass. 405 ; Eice v. Boyer, 9 N. E. 420; 108 Ind. 472. 670 ILLUSTRATIVE CASES Exception. But estoppel in pais does apply to married women, and infants of years of discretion, in cases where their declarations or conduct amount to a tort; as, where they are not parties to the contract or conveyance involved ; on the ground that, being liable for their torts, their lands might be subjected to the satisfaction of a judgment there- upon, and by estoppel circuity of action is prevented. Married Women. Gray v. Crockett. Supreme Court of Kansas, 1886. 35 Kan. 66, 686 ; 10 Pac. Eep. 452. One Long contracted to sell to Gray, this plaintiff, a certain tract of land, the title of which was in Mrs. Long, defendant's wife. When this contract was made and executed Mrs. Long was present ; she heard the contract stated, and knew its terms and conditions, and did not dissent therefrom. She did not disclose her own ownership, and the deed by which she acquired title was not of record. Gray supposed that Long was the owner, as he was living on the land. Long refusing to convey the land according to the con- tract, Gray sues for specific performance thereof. Mrs. Long then asserts her title, and the Court below held that she was not estopped. Hence this appeal. HoRTON, C. J. It is claimed by the plaintiff that the order directing the trial of this cause to be had in Douglas, instead of Wyandotte, County is void, and, if not void, is at least erroneous. The order was based upon the affidavit of H. C. Long, one of the defendants, setting forth " that he was ad- vised by his attorney that Hon. W. R. Wagstaep, the district Judge, was a material witness for the defendants upon the trial ; that he believed the advice to be true ; and that he desired the testimony of the Judge at the trial, and intended to procure the same if a change of venue was granted." Section 56 of the Civil Code reads : " In all cases in which it shall be made to appear to the Court that a fair and impartial trial cannot be had in the county where the suit is pending, or when the Judge is inter- ested, or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or is otherwise dis- qualified to sit, the Court may, on application of either party. IN REALTY. 671 change the place of trial to some county where such objection does not exist." The contention is that a district Judge is not " disqualified to sit," even if a material witness in a case, and that the affi- davit upon which the order changing the place of trial to Douglas County was made was insufficient, in that it did not set out what the defendants expected to show by the Judge, nor was it otherwise made to clearly appear that the Judge was a material witness. We do not think the order of the Court void. A Judge is not competent as a witness in a cause tried before him, for this, among other reasons : that he can hardly be deemed capable of impartially deciding upon the admissibility of his own testimony, or of weighing it against that of another. It is now well settled that the same person cannot be both wit ness and judge in a cause: 1 Greeul. Ev. (12th ed.), § 364; Ross V. Buhler, 2 La. (N. S.) 312; 2 Bouv. Law Diet. 12. Therefore we think that where a Judge is a material and necessary witness in a case he is " disqualified to sit." If the District Court had overruled the application to change thev place of trial upon the affidavit presented, we would unhesi- tatingly pronounce the ruling eminently correct, because it seems to us that the true rule in such a case is that such facts and circumstances must be proved by affidavits, or other ex- trinsic evidence, as clearly show that the Judge is a material and necessary witness, and unless this clearly appears, a review- ing Court will sustain an overruling of the application : City of Emporia v. Volmer, 12 Kan. 622. The affidavit in this case for the change of venue should have disclosed how the attorneys obtained knowledge of the fact that the district Judge was a material witness, and all the facts the defendants believed the Judge would prove. This was not done ; but, although the affidavit is deficient in this respect, we cannot wholly ignore the personal knowledge of the Judge who trans- ferred the case. A Judge ought not to transfer a case upon a mere suggestion, or even upon an affidavit stating conclusions only, and no change of venue should be granted except for ■672 ILLUSTRATIVE CASES cause, true in fact and sufficient in law, and all of this should be made to clearly appear to the Court ; but when an affidavit is presented in general terms for such a change, and the Judge has personal knowledge that he is disqualified to sit, a change of venue ordered by him upon the affidavit, and his own per- sonal knowledge that he is disqualified, cannot be declared erroneous : City of Emporia v. Volmer, supra ; Edwards v. Russell, 21 Wend. 68 ; Moses v. Julian, 45 N. H. 52. The contract set forth in the petition is as follows : " April 22, 1881. " Agreement between H. C. Long and B. Gray for sale of Ms farm of thirty-three acres, south fside of Tauraume Street, Wyandotte, for eight thousand dollars. Said Long agrees to sell the said farm for $8,000, payable as follows : $500 by the 28th of April inst. ; $1,500 in three months from date ; and balance, $6,000, in three years, with interest at eight per cent. Gray agrees to make payments as above, and pay Armstrong's commission, not exceeding $100. Gray to have possession when $2,000 is paid, and deed then to be given, and mortgage then given to Long for three years, at eight per cent, interest, Tvith the privilege of paying the whole or part sooner. " H. C. Long. " B. Gray." The principal and the important question involving the merits of this case arises upon the following finding of fact : "At the time of the making of the written agreement Martha M. Long, wife of H. C. Long, was present, heard the contract stated, knew the terms and conditions thereof, and did not dissent therefrom, excepting she expressed a desire that the deferred payments should draw ten per cent, interest in- stead of eight per cent., as provided in the contract." A further finding of the trial Court is to the effect that Mrs. Long was the owner in fee simple of the real estate in contro- versy ; and, as a conclusion of law, upon all the facts found., the Court decided that Mrs. Long was not estopped from asserting her ownership or title to the same by reason of any IN EEALTY. 673 act of hers suffered or done before, at the time, or since the making of the written contract of April 22. At the time of the execution of this contract Long and wife lived upon the land within the city of Wyandotte, and the deed from H. C. Long to Richard L. Vedder, of September 13, 1860, under which Mrs. Long claims title, was unrecorded. It had been delivered to the register of deeds of Wyandotte County for record in the year 1860, but was placed with other deeds in a package, where it remained until found by the register in the fall of 1883. It could only have been found by a person hav- ing such knowledge of the business management of the regis- ter's ofiBce as to induce an investigation of the package con- taining the same. The written contract shows upon its face that H. C. Long sold the land as his own. It is indisputable that the plaintiff supposed he was dealing with Long as the owner of the land ; and that both husband and wife were will- ing to sell is evident from the fact that they did shortly there- after sell at an advance. Mrs. Long asserted no title to the premises until after the decision of this Court, in June, 1883, that the land was within the limits of the city of Wyandotte, and therefore that only one acre thereof was exempt as a homestead : Gray v. Crockett, 30 Kan. 138 ; s. c. 1 Pac. Rep. 50. This was more than two years after the execution of the written contract. Upon the belief that Long was the owner of the land, the plaintiff commenced his suit for specific per- formance of his contract on March 3, 1882. This suit was prosecuted by him for over a year without Mrs. Long making her title known, and the money and time of the plaintiff was expended in his attempt to obtain the conveyance which H. C. Long had agreed to execute. When the case was tried at the July Term of the Court for 1882 it was admitted by all the parties, for the purposes of the trial, that on April 22, 1881, H. C. Long was the owner of the land described in the contract. Upon the findings of fact, we think Mrs. Long is estopped, in equity, from now asserting that at the time of the contract between the plaintiff and her husband she was the owner of the premises described therein. Questions relative to estoppel 43 674 ILLUSTRATIVE CASES are not, in general, controlled by technical rules, but are usu- ally determined upon principles of equity and good conscience. Mrs. Long stood by and allowed the contract to be executed ; to some extent she participated in the negotiations preliminary to the execution of the contract. Her silence as to her title, her acquiescence at the time of the contract, and her failure to disclose her title during the earlier stages of this litigation, in- voke against her the familiar rule of justice, that if one stands by and allows another to purchase his property -without giving him any notice of his title, a Court of Equity will treat it as fraudulent for the owner to afterward try to assert his title. " He who will not speak when he should will not be allowed to speak when he would:" Goodin v. Canal Co., 18 Ohio St. 169 ; Tilton V. Nelson, 27 Barb. 595 ; Foster v. Bigelow, 24 Iowa, 379 ; Anderson v. Armstead, 69 111. 452 ; Thompson v. San- born, 11 N. H. 201 ; Ford v. Loomis, 33 Mich. 121 ; Beatty v. Sweeney, 26 Mich. 217 ; Dougrey v. Topping, 4 Paige, 93. Judge Thompson, in an article concerning estoppels against married women, says : . " If a married woman owns real property, but her title is not of record, and her husband enters into a contract for the sale of it, of which she is informed at the time, and to which she makes no objection, she will be estopped from setting up her title to the land to defeat a suit brought against her hus- band for specific performance of his contract, and so would her grantee:" 8 South. Law Rev. (N. S.) 276-310; Smith v. Armstrong, 24 Wis. 446 ; Catherwood ■;;. Watson, 65 Ind. 576. We are of the opinion, therefore, that the conclusion of law of the trial Judge that Mrs. Long was not estopped from assert- ing her ownership or title to all the premises in dispute is erroneous, and cannot be sustained. It is again insisted that defendants are entitled to judgment, even though the homestead included only one acre, as the con- tract was for the entire tract at a price in gross, and not so much per acre ; and as the homestead acre was inalienable by the husband alone, and was in no manner identified in the contract or its price determined, that there is no way of appor- IN REALTY. 675 tioning the price of the thirty-two acres which the husband could sell. In addition to what is stated upon this point in the former opinion of this Court in Crockett v. Gray, 31 Kan. 346 ; s. c. 2 Pac. Rep. 809, it appears to us from the record that H. C. Long and wife have no real complaint to make. Upon the trial the plaintiff offered these defendants the privi- lege of selecting their own homestead ; therefore they will have the right to retain any acre of the land described in the contract which they may choose. The plaintiff only asks that his contract be enforced after these defendants select and re- tain one acre thereof. As was said by Mr. Justice Brewer, speaking for this Court when the case was last presented to us for our determination : " It is equitable that the contract of April 22, 1881, be enforced so far as is possible, and not that the contracting party be permitted to avoid his contract obli- gations." When Mrs. Crockett purchased she had notice of the prior sale of the premises to plaintiff, and therefore acted with full knowledge of all his rights : Meixell v. Kirkpatrick, 33 Kan. 282 ; s. c. 6 Pac. Rep. 241. L. H. Wood was the agent for Mrs. Crockett, and when she purchased, on December 24, 1881, she had no actual knowledge of the deed from Long to Vedder of September 30, 1860. This deed was found by Wood in a package in the register's office about September 10, 1883 ; therefore Mrs. Crockett bought the land with ignorance of the title of Mrs. Long, and, like the plaintiff, supposed she was dealing with Long as the owner. After the first trial of this case Mrs. Crockett became afraid of her title, and desired to sell the land. L. H. Wood then negotiated a sale of it from her to his father-in-law, the latter paying the same price that Mrs. Crockett did, with interest on her money. As all of these sales were made through L. H. Wood, and as he acted as agent both for Mrs. Crockett and his father-in-law, and had notice of all the rights of plaintiff, the latter parties are charged with his knowledge. Wood, and the principals for whom he acted, dealt with the land as that of Long, upon the belief that the contract of April 22, 1881, could be avoided solely because the land described therein was outside of the limits of the 676 ILLUSTRATIVE CASES city of Wyandotte, and therefore, being the homestead of H. C. Long and wife, could not be alienated without their joint consent. The attempt to set aside the contract of April 22, 1881, upon the ground that Mrs. Long was then the owner of the premises, is an after-thought, evidently not con- templated when the joint answer of the defendants was filed. The statute provides that in cases decided by this Court when the facts are found by the Court below, this Court will send a mandate to the Court below directing it to render such judgment in the premises as it should have rendered upon the facts found. Under the statute, therefore, in view of the conclusion obtained, as none of the findings are excepted to by the defendants, the cause must be remanded, with direc- tions to enter judgment for the plaintiff: § 559, Code. Of course the plaintiff is only entitled to the enforcement of the contract of H. C. Long. He did not bargain for or purchase the supposed inchoate interest of Mrs. Long. She did not sign the contract, and was not asked to sign the same. The plain- tiff is entitled to what his written contract calls for. The decree, however, for the specific performance of the contract, as well on the part of H. C. Long as of Mrs. Crockett, must be so framed as to fully protect such inchoate interest of Mrs. Long, as the wife of H. C. Long, whether owned by herself or, subsequent to the contract, transferred to her co-defendant, Mrs. Crockett. The rights of the plaintiff are the same as though the deed from H. C. Long to Richard L. Vedder, of September 13, 1860, had never been executed, and as though there had been no conveyance subsequent to the contract from H. C. Long to Elizabeth I. Crockett. The judgment of the District Court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. Other cases claim that even if she is not a party to the conveyance she cannot be estopped by matter in pais, holding that the only way she can transfer her title ia by deed : Untried v. Heberer, 63 Ind. 67 ; Behler el ux. V. Weyburn, 59 Ind. 143. As to when an infant is liable in tort for his fraud, see Gilson v. Spear, 38 Vt. 311. IN REALTY. 677 Infants. Blakeslee v. Sincepaugh. Supreme Court of New York, 1893. 71 Hun, 412. The plaintiff, a minor, owned certain lands, and defendant, thinking they ■were owned by the minor's grandfather, purchased them of him, being as- sured by the plaintiff at the time that he had no title or interest whatever in or to the same. Defendant, having paid for the land, went into posses- sion, and plaintiff brings an action of ejectment. Merwin, J. Upon the trial of this action it was shown on the part of the plaintiff that Havilla D. Blakeslee, by deeds dated September 25, 1834, and September 22, 1838, became the owner of a quantity of land, and thereafter, by deed dated December 3, 1880, and duly recorded December 4, 1880, he with his wife, conveyed the same to the plaintiff, excepting sixteen acres theretofore conveyed to the plaintiff. The prem- ises in dispute are a part of the lands described in these deeds. The consideration of the deed of December 3, 1880, as stated in the deed, is the sum of one dollar and the maintenance and support of the parties of the first part during their natural lives. It was then shown on the part of the defendant, that Havilla D. Blakeslee and wife, by warranty deed dated Decem- ber 1, 1882, and recorded December 5, 1882, conveyed the premises in dispute to the defendant for the consideration therein named of |680, which defendant at the time paid to the grantor or the person acting for him. Havilla D. Blakes- lee was the grandfather of plaintiff, and evidence was given tending to show that plaintiff at this time lived with his grand- parents, on the farm of which the premises in question were a part ; that he knew of the negotiations for the purchase by de- fendant of the grandfather ; that during these negotiations the defendant saw the plaintiff, told him he was talking about buy- ing a piece of land of his grandfather, and had heard that he, the plaintiff, had an interest in it, and asked him whether that was so, and whether he had any deed or mortgage against it ; 678 ILLUSTRATIVE CASES and he, the plaintiif, replied that he had no deed or mortgage against it, and had no interest in his grandfather's premises ; that the plaintiff at the time knew that he was the legal owner of the property, and made the statement to defendant with in- tent to deceive him and induce him to buy of the grandfather; that the defendant thereupon, in reliance upon the truth of plaintiff's statement, and in ignorance of the true state of the title, made the purchase of the grandfather. The plaintiff denied making the representations or that he knew that his deed covered the property conveyed to defend- ant. It was also shown that plaintiff was then a minor, hav- ing been born March 6, 1862. At the close of the evidence the counsel for plaintiff asked the Court to direct a verdict for the plaintiff upon several grounds, chiefly that the evidence upon the part of the defend- ant was not sufficient to constitute an estoppel ; that at the time of the alleged statements the plaintiff was an infant, and that if he made the statements he did not know at the time whether or not he owned the land, and that no fraud was shown upon his part, and that the defendant was guilty of negligence in not causing the records to be searched. The Court denied the motion, and stated that in its opinion the better way to dispose of the case was to submit it to the jury on four questions : "First, whether these statements were made by the plaintiff to the defendant ; secoiid, whether the plaintiff had knowledge at the time he made them that he was the legal owner of the land ; third, whether they were made by the plaintiff with the inten- tion that they should be acted upon by the defendant in the purfchase of the land ; fourth, whether they were acted upon and relied upon by the defendant when the land was pur- chased by him." The plaintiff's counsel duly excepted to such ruling and to the denial of the motion. The case was there- upon submitted to the jury upon the line suggested by the Court., and a general verdict rendered for the defendant. There was no exception to the charge and no request that any other question should be submitted to the jury. 1. The first proposition now presented by the plaintiff is that IN REALTY. 679 ihe plaintiff, being an infant at the time of making the alleged statements, was not estopped thereby. Assuming, as we must, that the facts, so far as warranted 'by the evidence, were found against the plaintiff, we have here a case of intentional fraud. In Spencer v. Carr, 45 N. Y. 406, where, as here, it was claimed that an infant was barred of her title by an equitable estoppel, it was held that in the absence of intentional fraud upon her part she would not be estopped, and that as that was not found she would not be deprived of her legal rights. The inference is that if there was intentional fraud the doctrine of equitable estoppel would apply notwith- standing infancy. The opinion of the Court in the case strongly supports this inference, in cases where the infants are of suf- ficient age to appreciate their rights and duties. "We are re- ferred to no case in this State where the views suggested in Spencer v. Carr are criticised. In Brumfield v. Boutall, 24 Hun, 457, the question of fraud on the part of the infant was not up, nor was it in Sherman u Wright, 49 N.Y. 231. The same may be said as to Ackley v. Dygert, 33 Barb. 176. In Brown ■V. McCune, 5 Sandf 224, decided in 1851, it was held that fraud- ulent representations as to his age did not bind an infant. This case was criticised, and the opposite rule held in Eckstein v. Frank, 1 Daly, 334. In Green v. Green, 69 N. Y. 553, a father had taken a deed from his minor son and paid him the con- sideration, and the question was whether the son, on becom- ing of age, could repudiate the deed without restoring the con- sideration. It was held that he could, it appearing that the money was spent and he had no other property with which to replace it. There was no (|uestion of fraud in the case. In 1 Story's Equity, § 385, it is said in reference to cases like the present that " cases of this sort are viewed with so much disfavor by Courts of Equity that neither infancy nor coverture will constitute any excuse for the party guilty of the conceal- ment or misrepresentation ; for neither infants nor femes covert are privileged to practice deception or cheats on other innocent persons." In 2 Sugden on Vendors, 8th Am. ed. 507, chap. 23, 1 1, pi. 17, it is said : " If a person having a right to an estate 680 ILLUSTRATIVE CASES permit or encourage a purchaser to buy it of another, the pur- chaser shall hold it against the person who has the right, al- though covert, or under age." In 2 Pomeroy's Equity, § 815, it is said : "An equitable estoppel arising from his (the infant's) conduct may be interposed, with the same effect as though he were adult, to prevent him from affirmatively asserting a right of property or of contract in contravention of his conduct upon which the other party has relied and been induced to act." Numerous cases are cited to each of the quoted propositions. The same rule is stated in Bigelow on Estoppel, 488. See, also, note in 44 Am. Dec. 386 ; Bispham's Eq., § 293. There is no doubt in the present case that the infant was of sufficient age to appreciate his rights and duties. He lacked only a few months of being of age. The rule to be inferred from the Spencer case, as to the application of the doctrine of equitable estoppel to infants, while it may not be entirely con- sistent with the supposed disability and need of protection of infants, has, I think, the weight of authority in its favor, and it should be followed by us in this case. The Court below, therefore, properly held that the fact that plaintiff was an infant did not of itself relieve him. 2. The plaintiff further claims that he should not be estopped because he had no knowledge that he owned the land in dis- pute. This, however, upon the evidence was a question of fact and was found adversely to plaintiff. 3. It is further claimed that the burden of proof is on the defendant, and that the testimony being evenly balanced de- fendant must fail. It is true that the burden of proof was on the defendant, and that statements testified to by the defendant were denied by the plaintiff. It was, however, for the jury to determine where the truth was, and there were many surround- ing circumstances that bore upon the question. 4. It is further claimed that the defendant was guilty of laches in neglecting to consult the records in the clerk's office, and the case of Trenton Banking Co. v. Duncan, 86 N. Y. 221, is cited in support of the proposition. In that case the plain- tiff, who sought the benefit of an estoppel, neither looked at the IN REALTY. 681, record nor made any inquiry of anybody as to the ownership of the property, and it was held that its failure to examine the record and make inquiry prevented its recovery. The present case is materially different. So in McCulloch v. Wellington, 21 Hun, 5, there were no representations by the owner, but, as said in the opinion at page 14, it was the case of a purchaser who, from his confidence in the vendor, or from other circum- stances, not imputable to the claimant, has purchased property and omitted to make the necessary and ordinary examination of title. In Lyon v. Morgan, 19 N. Y. Supp. 201, the effect of failure to examine the record was not determined, and the case was decided upon other grounds. If the present case was one where the owner was simply silent, it may be that the constructive notice from the record would prevent the defendant from receiving any benefit from the doctrine of estoppel. But assuming there were false rep- resentations and intentional fraud, the rule would be different r Brinckerhoff v. Lansing, 4 Johns. Ch. 65 ; Fisher v. Mossman, 11 Ohio St. 47. As said by Judge Strong in Hill v. Epley,, 31 Pa. St. 334 : " It should never be forgotten that there is- a wide difference between silence and encouragement." "A party setting up an equitable estoppel is himself bound to the exercise of good faith and due diligence to ascertain the truth:" 2 Story Eq., 12th ed., § 1553 b. Whether the defendant in that respect was negligent under the circumstances of the present case was a question of fact : Moore v. Bowman, 47 N. H. 494. The Court below was, therefore, correct in holding that it should not be said, as matter of law, that the defendant was guilty of negligence. 5. The appellant elaims that incompetent testimony was ad- mitted to his prejudice, but we find no ruling that supports this contention. No other question is presented. It follows that the judgment should be affirmed. 3 Washb. R. P. 77 ; Bigelow on Est. 602 ; Galbraith v. Lunsford, 9 S. W. Eep. 365 ; 87 Tenn. 89 ; Oglesby Coal Co. v. Pasco, 79 111. 164 ; Rice v. Boyer, 9 N. E. 420, 108 Ind. 472. 682 ILLUSTRATIVE CASES Modern Tendency. Many cases hold that estoppel in pais applies to married vj-omen and infants, whether the fraudulent conduct is in connection with their contracts or independent of them, on the ground that they shall not use the law protecting them as a shield for their frauds. Patterson v. Lawrence. Supreme Court of Illinois, 1878. 90 111. 174. Mr. Justice Walker. In the month of August, 1867, Melvina Brazee was married to one Robert Patterson. On the second day of the following September she obtained a conveyance of lot 9, in block 45, of the original plat of the <5ity of Galesburg. The conveyance was to her by the name of Melvina Brazee, which was her name by a former husband, from whom she was divorced. On the same day she executed, by the same name, a deed of trust to 0. F. Price, for the use of N. Brisco, on this lot, to secure the payment of $600, which sum she paid for the lot. On the 8th of September, 1868, she went to one McChesney, an insurance and loan agent, to pro- cure a loan of money, introducing herself as Mrs. Brazee, say- ing her property was advertised for sale under the trust deed, and she would lose it unless she could procure $600. Mc- 'Chesney stated the facts to R. A. Lawrence. Lawrence offered to loan the money to her if she would secure its payment. The title was examined, and found to be in her name as Brazee, and being asked by McChesney if she was a widow, she answered she was. Being satisfied with the title and security, Lawrence loaned the money, and took two notes, of $300 each, drawing ten per cent, interest, executed by her in the name of Melvina Brazee, and also a trust deed on the lot, in the same name. Failing to pay the interest at the expira- tion of a year, she requested the loan of $40, which Lawrence let her have, and took a note for $1 00 to cover the interest and this loan, securing the same by a second trust deed, exe- cuted in the same manner. Failing to make payment at the IN REALTY. 683 end of the second year, the property was advertised and sold under these trust deeds, and purchased by Lawrence for the amount of the debt, interest, and costs, and he received a con- veyance from the trustee. It also appears, that Mrs. Patterson took a lease in the name oi Brazee, and an agreement, that on the payment of $900 by the 1st of February, 1871, Lawrence would convey the prem- ises to her. On the termination of the lease she refused to surrender possession. Thereupon, Lawrence commenced an action of forcible detainer, to recover possession, and at the "trial she produced the certificate of her marriage to Patterson, ■which seems to have been the first information which came to Lawrence's knowledge that she was a married woman, or her name was not Brazee. That suit was dismissed, and a bill in chancery was filed, setting up the facts, charging fraud in pro- curing the money and in the execution of the trust deeds, and alleging that there was due $798 — that the property belonged to Mrs. Patterson, and her husband had no interest therein. The bill charges, that by reason of the fraudulent concealment of her marriage, and the husband not joining in executing the trust deeds, the fee to the lot did not pass by the sale to com- plainant, and prays that the title be decreed to be in com- plainant, and for other and further relief An answer was filed, admitting that she executed the trust deeds in the name of Brazee because the title was so conveyed to her, and she supposed it was necessary, to convey title ; sets up her coverture, and denies all fraud on her part, and the indebtedness is that of the husband, and not of the wife ; denies all right to relief. A replication was filed. On a hearing, the Court below, on bill, answer, replication, and proofs, found for complainant, found the amount due, and ordered that in default of its payment in thirty days the mas- ter sell the lot, on the usual notice, subject to redemption. Defendant, Melvina Patterson, brings the record to this Court on error, and asks a reversal. It is urged in affirmance, and as the Court below found, that this loan was obtained by fraud. On the other side it is 684 ILLUSTRATIVE CASES claimed, and set up in the answer, that plaintiff in error in- tended, at the time, to execute the trust deeds in such a man- ner as to be valid and binding — that no fraud was intended and none was perpetrated. McChesney swears postively that he asked her the question whether she was a widow, and she said she was, and that this was before the loan was made ; and defendant in error testified that she always represented her- self to him as a single woman. On the contrary, plaintiff in error denies that she ever made such statements to either of them. It is insisted that she is corroborated by Dr. McDowell, with whom she consulted at McChesney's office, on the day she says she obtained the money, in reference to the sickness of her husband ; but they state McChesney or defendant in error was not present. This evidence, we think, strongly preponderates in favor of defendant in error. He and McChesney seem to testify fairly. On the other hand, plaintiff in error seems to have, from the beginning, acted in bad faith. She introduced her- self to McChesney, and defendant in error says to his family, as Mrs. Brazee. We apprehend no one is so ignorant as not to know, in this country, that the name of the wife is, by the marriage, changed to that of the husband. She, then, must have known, when she passed herself by the name of her. former husband, that she was stating what was not true — that if believed, she was deceiving defendant in error — and that he was relying on such statement. She could not have been so ignorant as not to have known that she was not sign- ing her name to the notes and trust deeds. Why, if not for fraudulent purposes, did she thus give her name and so sign these papers ? She says she supposed it was necessary because the deed was in that name. She should have given her true name, and it was a fraud to conceal it. If an unmarried woman, a widow, using her former name, were to so act, would not all persons say that such person was guilty of fraud? That concealing their own name and the use of the name of another, or a fictitious name, is evidence of deliberate, inten- tional fraud ? Would any one credit the pretense that the • IN REALTY. 685 party supposed he was acting properly ? Then, why should this be distinguished from the supposed case ? We are clearly of opinion that plaintiff in error was guilty of fraud in misrepresenting her name, in using a fictitious name, and also, in concealing her name, when she must have known that defendant in error would not have loaned the money and taken the trust deeds, without her husband joining with her in their execution, if she had given her true name and disclosed the fact that she was married. Plaintiff in error testified her husband told her to come from Burlington to Galesburg and do the best she could ; that she transacted the business and got the loan before she re- turned. When she got back she told him she had transacted her business satisfactorily. Now, it is but a reasonable infer- ence to suppose she consulted with her husband in reference to this business, and it would not be a violent presumption to conclude it was planned and arranged between them that she should pass herself by the name of her former husband in procuring the loan, and this would be more easily done as she was known by that name by her neighbors. It is not prob- able she would take so important a step without consulting with her husband as to the manner in which it should be done. We are unable to find any feature in this case that com- mends it to our sense of right. To permit plaintiff in error to retain the money and property would be unjust in the ex- treme, and surely cannot comport with equity and good con- science. It is not denied that if plaintiff in error intentionally committed a fraud she would be estopped to deny the effect of the execution of the deeds of trust. That she, in fact, com- mitted a fraud, there would seem to be no doubt, and if per- mitted to escape liability on her deeds, she would have con- summated a palpable wrong. She purchases property, borrows money to pay for it by pledging it, and then refuses to pay, and insists that the instruments pledging it are void, although she says she then acted in good faith, and intended to bind the property for the payment of the money. 686 ILLUSTRATIVE CASES This Court, in the case of Oglesby Coal Company v. Pasco, 79 111. 164, reviewed the authorities, and announced the rule that a married woman may preclude herself from denying the truth of her representations in cases of torts, but where her conduct relates to contract, there can be no estoppel. So, in the cases of Schwartz v. Saunders, 46 111. 18, and Anderson v. Armstead, 69 lb. 452, it was held that where a wife fraudu- lently permitted her husbund to represent himself as the owner of her separate propertj', and procure mechanics to make valuable improvements thereon, without disclosing her ownership or repudiating his authority, she is estopped after- ward from denying his authority to cause the improvements to be made, when the mechanics seek to enforce their liens for payment of the amount due them for work done on the faith of the husband's authority. The true doctrine is, that contracts and agreements of mar-- ried women in reference to their real estate, when not joined therein by their husbands, where such agreements is free from, fraud, cannot be enforced at law or in equity. But where married women make such contracts or agreements by fraudu^ lent means, and thus obtain inequitable advantages, a Court, of Chancery will hold them estopped from setting up and re- lying on their coverture to retain the advantage. The Court will require them to execute and perform the contract, if exec- utory, or prevent them from avoiding it if executed, or will compel them to place the other party in statu quo before they will be allowed to rescind or repudiate such agreements or contracts. Whether the one or the other form of relief will be granted, must depend upon the equities of the case. Here, plaintiff in error, by fraudulently concealing her mar- riage, and by declaring she was a widow when asked the question by the agent of defendant in error, gained an inequi- table and unjust advantage of defendant in error, if she shall be permitted to retain the money she thus obtained and also to recover the land. She must be held to pay the money, or a lien for the same will be enforced against the premises she professed to mortgage to secure its payment. She must be IN KEALTY. 687 held estopped from relying on her coverture to escape its. payment. We perceive no error in the record, and the decree of the Court below must be affirmed. Decree affirmed. Rosenthal v. Mayhugh, 33 Ohio St. 155 ; Reis v. Lawrence, 63 Cal. 129 ; Nixon V. Halley, 78 111. 611. Disabilities Removed by Statute. But so far as the disabilities of married 'women and infants to con- tract are removed by statute, so far -will the doctrine of estoppel by deed or in pais apply. Sandwich Manufacturing Co. v. Zellmer. Supreme Court of Minnesota, 1892. 48 Minn. 408. J. and F. Zellmer mortgaged land to plaintiff to secure a debt, both join- ing in the covenants of warranty. There was a prior mortgage of $700 on the land, which was foreclosed after plaintiff's mortgage was given, and the land not being redeemed, the plaintiff's lien was lost. But F. Zellmer, the wife, afterward acquired title to the same land, and plaintiff now claima that this after-acquired title inures to its benefit, and that its mortgage is again a valid lien on the land. Vanderburgh, J. On the 11th day of September, 1882, the defendants Julius Zellmer and Fredericke Zellmer, his wife, executed and delivered to the plaintiff the three several notes or contracts in writing described in the complaint, whereby they agreed to pay the plaintiff, in the aggregate, the sum of $488.29. They were given in consideration of, and to secure, the individual indebtedness to plaintiff of Julius Zellmer to that amount. They also, at the same time, duly executed the mortgage deed set up in the complaint, which instrument con- tained a covenant against prior incumbrances " except a mort- gage of $700," and also a covenant for quiet enjoyment and possession, and " that the parties of the first part, Julius and Fredericke Zellmer, his wife, would warrant and defend the 688 ILLUSTRATIVE CASES title to the said premises against all lawful claims." At the time of the execution of the mortgage, which conveyed the northeast quarter (N. E. J) of section six (6), in township one hundred and one (101), range forty-five (45), including the homestead of the mortgagors, the defendant Julius was insol- vent. The title to the land stood in his name, and the mort- gage was given to secure his indebtedness above mentioned. There was a prior mortgage upon the premises, running to one Henry Zaun, for about $700, which is the incumbrance referred to in the mortgage to plaintiff. The last-named mortgage was foreclosed in 1885. The title passed under the foreclosure, and afterward the owner conveyed the same by deed to the defendant Fredericke Zellmer, subsequently recorded ; and thereafter, in the year 1887, she, by deed of conveyance, in which her husband duly joined, conveyed the same premises to Herman Zellmer. The question here presented is whether the defendant Fred- ericke, who expressly joined in the covenants in the mortgage to plaintiff, is bound thereby ; for if she is liable thereon, or is estopped thereby, as if she had not been under coverture, the conveyance to her inured to the benefit of the plaintiff by virtue of her covenant, and its mortgage is operative as a valid subsisting lien upon the land, as against her and her assignee, Herman Zellmer. It is hardly necessary to refer to the nature of a married woman's disability at the common law. She was not bound by her contracts or covenants, and was not estopped thereby from setting up an after-acquired title. It was com- petent for the Legislature to emancipate her from such disability, and enable her to obligate herself as if unmarried. The ques- tion here involved turns upon the construction of the statute of this State touching the rights and liabilities of married women. Prior to 'the Act of 1869, ch. 56, the statute had secured to them their separate estate, real and personal, with the rents, profits, and income thereof But she could not dispose thereof without the consent of her husband ; and her general, common-law disability to make contracts remained : 1858 Pub. St., ch. 61, § 106, p. 571 ; Revision 1866, G. S., ch. 69, and ch. 40, IN REALTY. 689 I 2 ; Carpenter v. Leonard, 5 Minn. 163 (Gil. 119); Tullis v. Fri(i- ley, 9 Minn. 81 (Gil. 68). But the provisions of Laws, 1869, ch. 56, were radical and sweeping, and were intended, in respect to her contracts, to invest a married woman, not merely with the right to contract in respect to her separate property, but with all the rights and liabilities of a feme sole, save only as ex- pressly excepted or reserved by the same statute. It was evidently the intention of the Legislature to define clearly the nature and extent of such rights and liabilities : Kingsley v. Oilman, 15 Minn. 59 (Gil. 40) ; Northwestern Mut. Life Ins. €o. 1). AUis, 23 Minn. 337. This statute does not, of course, have any reference to the domestic relations, or affect the rules of evidence, or the duty of the husband to provide for his family, though the wife might obligate herself for such pur- pose : Flynn v. Messenger, 28 Minn. 208 (9 N. W. Eep. 759). In Northwestern Mut. Life Ins. Co. v. Allis, supra, the wife had mortgaged her separate real property to secure a debt of her husband, which was evidenced by their joint note. The mort- gage was not only held valid, but she was held personally liable for the deficiency upon foreclosure by action. It was contended that she was not liable because of the provisions of section three (3), which exempted her from the debts of her husband : but the Court say (page 341) : "To give this effect to the section would be to allow inference and conjecture to qualify and restrict the meaning of the clear and precise lan- guage of the Act removing the wife's common-law disability to contract. Section 2 provides that ' any married woman shall be capable of making any contract, either by parol or under seal, which she might naake if unmarried, and shall be bound thereby.' I'hen follow clearly expressed exceptions to her power to contract without her husband, relating only to her real estate. Section 4 expressly retains the common-law disabilities of husband and wife to contract with each other relative to the real estate of either. . . . ' But in relation to all other subjects either may be constituted the agent of the other, or contract each with the other, as fully as if the rela- tion of husband and wife did not exist.' " No doubt the 44 690 ILLUSTRATIVE CASES defendant in that case would have been bound upon her cove- nants in the mortgage as well as her husband, and a covenant of warranty would have passed an after-acquired title : Knight V. Thayer, 125 Mass. 27 ; Bigelow, Estop. (5th ed.) 406, 407 ; Kenworthy v. S&wyer, 125 Mass. 28 ; Goodnow v. Hill, lb. 587. In the case at bar the defendant Fredericke, as to the payee, the plaintiff, made the debt her own by signing the note. She joined in the mortgage of the quarter section, containing the homestead, to secure this debt. She also joined in the cove- nants therein, including the covenant of warranty. It is con- tended, however, that she is not bound by covenants in the mortgage, because she must be presumed to have joined in the mortgage solely for the purpose of releasing the homestead or dower interest in the land : and it is claimed that the authori- ties in other States, particularly Illinois, support this conten- tion. But no consistent general rule can well be formulated under the varying statutes of the different States on the sub- ject, in connection with local statutes regulating the conveyance of real estate. It is true the wife's signature was necessary to pass a perfect title ; but she was under no disability whatever in the matter of the execution of a deed with covenants, or the acknowledgment thereof Though described as wife, her ac- knowledgment, under the statute, is that of a feme sole. Her husband was insolvent, and her covenants would afford addi- tional security to the plaintiff. She was legally competent to enter into such covenants, and upon the face of the deed appears to have done so. For all the puq^oses thereof it was her contract ; and it seems to us it would be a strained and unreasonable construction to give the deed the limited effect contended for it. When a deed on its face purports to convey a restricted or partial interest in land, the covenants, though general, will be limited to such interest : Sweet v. Brown, 12 Met. (Mass.) 177. But where a deed assumes to convey the land, and the covenants are unrestricted, it is difficult to see how the Court can limit or apportion its application, if it gives any effect to it at all. Here (to repeat), it will be observed, the covenant reads, " and the said Julius Zellmer and Riecke Zell- IN REALTY. 691 mer, his wife, parties to the first part, do covenant '. . . that the said parties to the first part will warrant and defend the title to the said premises against all lawful claims." Dower is in the nature of an incumbrance. Is the covenant of the wife operative to estop her as against a claim of dower subsequently arising, or does the deed simply release her present right, and is the covenant of both operative as to the legal title and estate of which the husband is seised, or does her covenant, if it is operative at all, relate merely to her statutory interests as wife ? In view of her capacity to bind herself by her covenants, if operative at all, we are of the opinion that the covenant referred to must be construed in its natural and broader, and not in the restricted, sense. In construing a similar statute in Massachusetts, the Court say : " The provision in the Act that nothing therein shall authorize her to convey property to, oi- make contracts with her husband, is evidently not intended to impose any new restriction on her capacity, but merely to affirm the common-law rule, so far as the husband is the other party to the contract or grant, but does not prevent both of them from binding themselves by a joint promise to a third person :" Major V. Holmes, 124 Mass. 108. The Acts of 1875 and 1876, superseding dower, and making provisions in lieu thereof, place the husband and wife .substan- tially on the same footing as respects rights in the real prop- erty of each other. Construed in connection with the home- stead law, and the Act concerning married women of 1869, the case stands thus : In whichever one the title of the homestead may be, neither can convey the same without the other. The wife's signature is necessary to the deed of other lands belong- ing to the husband, in order to pass a clear title ; and the husband must join in all conveyance of the wife's lands. In Iowa they have a statute (Code, § 1937) in respect to liability upon cove- nants in such deeds, which is as follows : "In cases where either the husband or wife joins in a conveyance of real prop- erty owned by the other, the husband or wife so joining shall not be bound by the covenants of such conveyance unless it is expressly so stated on the face thereof" M'^e have no such 692 ILLUSTRATIVE CASES saving clause in our statute. Whether there ought to be is a matter addressed to the Legislature rather than to the Courts. In the absence of it, to attempt to place a limited construction upon such deeds, contrary to the fair and natural signification of the language used, is not warranted by the statute, or sup- ported by sound reason. Mortgages frequently contain other express covenants than those relating to the title ; as, for ex- ample, in this instance, to pay the debt or to pay taxes. Shall a married woman be bound by such covenants, and exempt from liability for the others? If she joins in all, there can be no reason why she should not be personally liable in all alike, since she is capable of so binding herself; and, if she is so Uable they must operate by way of estoppel. The Courts are careful and conservative in the construction of statutes of this character, which are in derogation of the common law ; but they cannot make exceptions and limitations which the statute does not warrant. 2. The disposition made of the question of the liability of Fredericke Zellmer upon the covenants in her husband's deed renders it necessary to consider the effect of the exception of the prior mortgage from the covenant against incumbrances upon her liability upon the covenant of warranty in the plain- tiff 's mortgage. The covenant runs in this way : " That the same is free from all incumbrances except a mortgage of seven hundred dollars ;" but no other reference to that mortgage appears upon the face of the instrument. The question whether such an exception qualified or affected the covenant of warranty iu the same deed was considered, but not finally decided, in Merritt v. Byers, 46 Minn. 74 (48 N. W. Rep. 417). Jackson v. Hoffman, 9 Cow. 273, is not in point ; for there the grant was subject to the mortgage, so that all the covenants related to the estate as so incumbered. But in Bricker v. Bricker, 11 Ohio St. 240, the rule is laid down and approved that a preceding special covenant against incumbrances, which excludes the incumbrance complained of, is to be regarded as an exception of such incumbrance in the covenant of general warranty. This case is, however, not generally accepted as IN REALTY. 693 authority, and the better opinion, following the reasoning of Lord Ellenborough, in Howell v. Richards, 11 East. 633, is that the cove'nant of warranty is not limited by the preceding restricted covenant against incumbrances. The two covenants are not connected, and are not of the same nature or import : Estabrook v. Smith, 6 Gray, 570 ; Ogden v. Ball, 40 Minn. 94 (41 N. W. Rep. 453). In Howell v. Richards, supra, it was held that a limited covenant for good title and good right to convey did not restrain or qualify the succeeding covenant for quiet enjoyment. The covenant for title and good right to convey are " connected covenants, generally of the same import and effect, and directed to one and the same object ; and the quali- fying language of one may therefore properly enough be con- sidered as virtually transferred to and included in the other ; but the covenant for quiet enjoyment is of materially different import, and directed to a different end. . . . And it is per- fectly consistent with reason and good sense that a cautious grantor should stipulate in a more restrained and limited manner for the particular description of the title which he purports to convey than for quiet enjoyment." The exception in the deed is notice of the incumbrance, and exempts the grantor from an action upon the particular covenant ; and this is all the effect that can be given to it : Bennett v. Keehn, 67 Wis. 162 (29 N. W. Rep. 207, and 30 N. W. Rep. 112), and cases. A prudent grantor may desire that the deed shall state the truth — and he is obliged to give the grantee notice of an incumbrance (1878 G. S., eh. 40, § 34) ; and he may know or believe that the incumbrance will be removed before it ripens into a title which would be ground for an eviction, so that he might risk a warranty against an eviction, when he might be unwilling to take the risk of a present liability for a breach of the covenant against incumbrances. " The same prudence, therefore, which might require the qualification of one of these covenants, might not require the same qualification of the other, affected, as it is, by different considerations, and addressed to a different object :" Howell v. Richards, supra. If it is the wish or purpose of the grantor to make his con- 694 ILLUSTRATIVE CASES veyance subject to the mortgage, so as to affect and qualify all the covenants, or to accept an incumbrance from the covenant of warranty, it is very easy for him to do so ; and no careful conveyancer would fail to make the exemption from all, as well as one, of the covenants of the deed, if it was the grantor's purpose to exempt himself from all liability. In Gerdine v. Menage, 41 Minn. 417 (43 N. W. Rep. 91), it was assumed that the exemption was general. Upon the point under consider- ation, reference is made to the authorities cited in Merritt v. Byers, supra, and also to Ruggles v. Barton, 16 Gray, 152. Reversed and remanded. Dobbin v. Cordiner, 41 Minn. 165 ; Knight v. Thayer, 125 Mass. 25. But where by statute the husband must join the wife in her deed to make it valid, she will not be estopped by acts in pais to assert her title to realty : Behler et iix. v. Weyburn, 59 Ind. 143 ; Cook v. Walling, 117 Ind. 9, 2 L. E. A. Estoppel by Destruction of Deed. The redelivery of a deed of land to the grantor does not revest the title in him. But if the grantee, -with intent to revest the title, destroys or cancels the deed so that it cannot be used in evidence, such act operates, on the principle of estoppel, under the rules of evidence, as a reconveyance, so far as the grantee and his privies are concerned. Farear v. Farrar. Supreme Judicial Court of New Hampshire, 1827. 4 N. H. 191. In 1811 Isaac F. conveyed an undivided one-half of certain lands to one Pierce, who, to secure the purchase-price, reconveyed the same by mortgage to the grantor. In 1814, being unable to pay the notes, it was agreed by the parties that the notes should be surrendered and the bargain given up. In 1822 Isaac F. conveyed the whole land to Noah F., who, finding that the said mortgage was still in existence, brought this action against Isaac F. on the covenant of warranty. Richardson, C. J. It is well settled that the cancelling of a deed does not revest property which has once passed under it by transmutation of possession : Jackson v. Chase, 2 Johns. IN REALTY. 695 «4 ; Marshal v. Fisk, 6 Mass. Rep. 24 ; 4 Barnewell & A. 672 ; Doe V. Bingham, 3 D. & E. 156 ; 2 H. Black. 263 ; Woodward V. Aston, 1 Ventris, 296 ; Roe v. The Archbishop of York, 6 East, 86 ; Nelthorpe v. Dorrington, 2 Leviutz, 113 ; Shep. Touch. 69-70. And in all 6ases a mere agreement to cancel a deed without actually cancelling it is without effect. Thus Shepherd in his Touchstone, 70, says, " If an obligee deliver up an obligation to be cancelled and the obligor do not afterward cancel it, but the obligee happen to get it again into his hands and sue the obligor upon it, the obligor hath not any plea to avoid it, for the deed remains still in force." So in Dana v. Newhall, 13 Mass. Rep. 498, it was held that an agreement to cancel a deed, by which real estate had passed, did not revest the estate. In Cross v. Powell, Cro. Eliz. 483, it was held that " if a deed be delivered to be cancelled- to the party himself, yet if it be not cancelled and the other gets it again, it remains a good deed." There are, however, cases in which an actual cancelling of a deed by which land has passed will in effect revest the estate. Thus where A. being seised and possessed of land purchased by him of B., by a deed duly executed but not recorded, con- tracted to sell the land to C, and for that purpose cancelled B.'s deed, who, at A.'s request, made a new conveyance to C, it was holden that C.'s title was valid, notwithstanding A. con- tinued in the occupation of the land jointly with C. after the last conveyance : Commonwealth v. Dudley, 10 Mass. Rep. 403. So in Tomson v. Ward, 1 N. H. Rep. 9, it was held that an unrecorded deed of land, voluntarily given up and cancelled by the parties to it with intent to revest the estate in the grantor as between them and as to all subsequent claimantj under them, operates as a reconveyance and revests the estate in the grantor. It is apprehended that in these cases the cancelling of the deed operates like a reconveyance, but that it. is not in fact to 696 ILLUSTRATIVE CASES be considered as such. The true ground on which these de- cisions are to be supported is that the grantee having volun- tarily and without any misapprehension or mistake consented to the destruction of the deed with a view to revest the title, neither he nor any other person claiming by a title subse- quently derived from him is to be permitted to show the con- tents of the deed so destroyed by parol evidence. So that in fact there being no competent evidence that the land ever passed, the title is to be considered as having always remained in the grantor. Such being the law, the case now before us is easily settled. The deed from the defendant to Pierce not having been act- ually cancelled, remains in full force. The same is true of the mortgage from Pierce to the defendant. The notes given by Pierce for the land and secured by the mortgage having been given up and cancelled under a misapprehension that the title to the land was revested absolutely in the defendant,, they still remain due. It is then very clear that the defend- ant was seised of the land at the time he conveyed to the plaintiff. The right of Pierce's heirs to redeem may be an incum- brance, for which the plaintiff may have a remedy, if his deed contains a proper covenant for the purpose, whenever he shall have extinguished that right. But in this action we are of opinion that there must be judgment on the verdict. Parker v. Kane, 4 Wis. 12 ; Bank v. Eastman, 44 N. H. 438 ; Commonwealth V.Dudley, 10 Mass. 403; Howe v. Wilder, 11 Gray, 267; Speer v. Speer, 7 Ind. 178 ; Blake v. Fash, 44 111. 305 ; Rogers r. Rogers, 53 Wis. 36. While the grantee cannot prove his title, having destroyed his deed, his creditors may ; hence, as to them, the title is in the grantee : Wilke v. Wilke, 28 Wis. 296 ; Blaney v. Har)ks, 14 Iowa, 400. See further : Wilson v. Hill, 13 N. J. Eq. 143 ; Gilbert v. Bulkley, 5 Conn. 262 ; Hall v. McDuff, 24 Me. 312. IN REALTY. 697 g The State. The State may acquire title to realty under two distinct powers : (1) Eminent domain ; (2) Taxation. Eminent Domain. Private property may be taken by the State for public use, but not without just compensation to the owner. — U. S. Const., Fifth Amend- ment. — Minn. Const., Art. I, 'i IS. Boom Co. v. Patterson. Supreme Court of the United States, 1878. 98 U. S. 403. Mr. Justice Field. The plaintiff in error is a corporation, created under the laws of Minnesota to construct booms be- tween certain designated points on the Mississippi and Kum Rivers in that State. It is authorized to enter upon and oc- cupy any land necessary for properly conducting its business ; and, where such land is private property, to apply to the Dis- trict Court of the county in which it is situated for the ap- pointment of commissioners to appraise its value and take pro- ceedings for its condemnation. It is unnecessary to state in detail the various steps required to obtain the condemnation. It is sufficient to observe that the law is framed so as to give propernotice to the owners of the land, and secure a fair iappraise- ment of its value. If the award of the commissioners should not be satisfactory to the company, or to any one claiming an interest in the land, an appeal may be taken to the District Court, where it is to be entered by the clerk " as a case upon the docket " of the Court, the persons claiming an interest in the land being designated as plaintiffs, and the company seek- ing its condemnation as defendant. The Court is then re- quired to " proceed to hear and determine such case in the same manner that other cases are heard and determined in said Court." Issues of fact arising therein are to be tried by a jury, unless a jury be waived. The value of the land being assessed ^98 ILLUSTRATIVE CASES by the jury or the Court, as the case may be, the amount of the assessment is to be entered as a judgment against the company, which is subject to review by the Supreme Court of the State •on a writ of error. The defendant in error, Patterson, was the owner in fee of &n entire island and parts of two other islands in the Missis- sippi River, above the Falls of St. Anthony, in the county of Anoka, in Minnesota. These islands formed a line of shore, -with occasional breaks, for nearly a mile parallel with the west bank of the river, and distant from it about one-eighth of a mile. The land owned by him amounted to a little over thirty-four acres, and embraced the entire line of shore of the three islands, with the exception of about three rods. The position of the islands specially fitted them, in connection with the west bank of the river, to form a boom of extensive dimen- sions, capable of holding with safety from twenty to thirty mil- lions of feet of logs. All that was required to form a boom a jnile in length and one-eighth of a mile in width was to con- nect the islands with each other, and the lower end of the island farthest down the river with the west bank ; and this connection could be readily made by boom sticks and piers. The land on these islands owned by the defendant in error the company sought to condemn for its uses ; and upon its applica- tion commissioners were appointed by the District Court to ap- praise its value. They awarded to the owner the sum of $3,000. The company and the owner both appealed from this award. When the case was brought before the District Court, the owner, Patterson, who was a citizen of the State of Illinois, applied for and obtained its removal to the Circuit Court of the United States, where it was tried. The jury found a general verdict assessing the value of the land at $9,358.33 ; but accompanied it with a special verdict assessing its value aside from any con- sideration of its value for boom purposes at $300, and, in view of its adaptability for those purposes, a further and additional value of $9,058.33. The company moved for a new trial, and the Court granted the motion, unless the owner would .elect to reduce the verdict to $5,500. The owner made this election, IN REALTY. 699 and judgment was thereupon entered in his favor for the re- duced amount. To review this judgment the company has brought the case here on a writ of error. The only question on which there was any contention in the Circuit Court was as to the amount of compensation the owner of the land was entitled to receive, and the principle upon which the compensation was to be estimated. But the com- pany now raise a further question as to the jurisdiction of the Circuit Court. Objections to the jurisdiction of the Court below, when they go to the subject-matter of the controversy, and not to the form merely of its presentation or to the char- acter of th3 relief prayed, may be taken at any time. They are not waived because they were not made in the lower Court. The position of the company on this head of jurisdiction is this : That the proceeding to take private property for public use is an exercise by the State of its sovereign right of eminent domain, and with its exercise the United States, a separate sov- «reignty, has no right to interfere by any of its departments. This position is undoubtedly a sound one, so far as the act of appropriating the property is concerned. The right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires Bo constitutional recognition ; it is an attribute of sovereignty. The clause found in the Constitutions of the several States pro- viding for just compensation for property taken is a mere limi- tation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an Act of the Legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance. If that inquiry take the form of a proceeding before the Courts 700 ILLUSTRATIVE CASES between parties — ^the owners of the land on the one side, and the company seeking the appropriation on the other — there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the State. The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law in the ordinary sense of those terms. But when it was transferred to the Dis- trict Court by appeal from the award of the commissioners, it took, under the statute of the State, the form of a suit at law, and was thenceforth subject to its ordinary rules and inci- dents. The point in issue was the compensation to be made to the owner of the land ; in other words, the value of the prop- erty taken. No other question was open to contestation in the District Court : Turner v. Halloran, 11 Minn. 253. The case would have been in no essential particular different had the State authorized the company by statute to appropriate the par- ticular property in question, and the owners to bring suit against the company in the Courts of law for its value. That a suit of that kind could be transferred from the State to the Federal Court, if the controversy were between the company and a citizen of another State, cannot be doubted. And we perceive no reason against the transfer of the peiiding case that might not be offered against the transfer of the case supposed. The Act of March 3, 1875, provides that any suit of a civil nature, at law or in equity, pending or brought in a State Court, in which there is a controversy between citizens of different States, may be removed by either party into the Circuit Court of the United States for the proper district ; and it has long been settled that a corporation will be treated, where contracts or rights of property are to be enforced by or against it, as a citizen of the State under the laws of which it is created, within the clause of the Constitution extending the judicial power of the United States to controversies between citizens of different States: Paul v. Virginia, 8 Wall. 177. And in Gaines v. Fuentes, 92 U. S. 20, it was held that a controversy between IN REALTY. 701 citissens is involved in a suit whenever any property or claim of the parties, capable of pecuniary estimation, is the subject of litigation and is presented by the pleadings for judicial deter- mination. Within the meaning of these decisions, we think the case at bar was properly transferred to the Circuit Court, and that it had jurisdiction to determine the controversy. Upon the question litigated in the Court below, the compen- sation which the owner of the land condemned was entitled to receive, and the principle upon which the compensation should be estimated, there is less difficulty. In determining the value of land appropriated for public purposes, the same considera- tions are to be regarded as in a sale of property between pri- vate parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with refer- ence to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted ; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is un- able to put it to any use. Others may be able to use it, and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated. So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circum- stances will modify the most carefully guarded rule ; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. The position of the three islands in the Mississippi fitting them to form, in connection with the west bank of the river, a boom of immense dimensions, capable of holding in safety over twenty millions of feet of logs, added largely to the value of the 702 ILLUSTKATIVE CASES lands. The boom company would greatly prefer them to more valuable agricultural lands, or to lands situated elsewhere on the river ; as, by utilizing them in the manner proposed, they would save heavy expenditures of money in constructing a boom of equal capacit}'. Their adaptability for boom pur- poses was a circumstance, therefore, which the owner had a. right to insist upon as an element in estimating the value of his lands. We do not understand that all persons, except the plaiutiff in error, were precluded from availing themselves of these lands for the construction of a boom, either on their own account or for general use. The clause in its charter authorizing and re- quiring it to receive and take the entire control and manage- ment of all logs and timber to be conveyed to any point on the Mississippi River must be held to apply to the logs and timber of parties consenting to such control and management, not to logs and timber of parties choosmg to keep the control and management of them in their own hands. The Mis- sissippi is a navigable river above the Falls of St. Anthony, and the State could not confer an exclusive use of its waters, or exclusive control and management of logs floating on it, against the consent of their owners. Whilst in Atlee v. Packet. Company, 21 Wall. 389, we held that a pier obstructing navigation, erected in the river as part of a boom, without license or authority of any kind except such as arises from the ownership of the adjacent shore, was an unlawful structure, we did not mean to intimate that the owner of land on the Mis- sissippi could not have a boom adjoining it for the reception of logs of his own or of others, if he did not thereby impede the free navigation of the stream. Aside from this, we do not think that the State is precluded by anything in the charter of the company from giving a license to the defendant in error to construct a boom near his lands. Moreover, the United States, having paramount control over the river, may grant such license if the State should refase one. The adaptability of the lands for the purpose of a boom was, therefore, a proper ele- ment for consideration in estimating the value of the lands con- IN REALTY. 70.* demned. The contention on the part of the plaintiff in error is, that such adaptability should not be considered, assuming that this adaptability could never be made available by other persons, by reason of its supposed exclusive privileges ; in other words, that by the grant of exclusive privileges to the company the owner is deprived of the value which the lands, by their adaptability for boom purposes, previously possessed, and therefore shovild not now receive anything from the com- pany on account of such adaptability upon a condemnation of the lands. We do not think that the owner, by the charter of the company, lost this element of value in his property. The views we have expressed as to the justness of consider- ing the peculiar fitness of the lands for particular purposes as an element in estimating their value find support in the sev- eral cases cited by counsel. Thus, In the Matter of Furman Street, 17 Wend. 669, where a lot upon which the owner had his residence was injured by cutting down an embankment in opening a street in the city of Brooklyn, the Supreme Court of New York said that neither the purpose to which the property was applied, nor the intention of the owner in relation to its future enjoyment, was a matter of much importance in deter- mining the compensation to be made to him ; but that the proper inquiry was, "What is the value of the property for the most advantageous uses to which it may be applied?" In Goodwin v. Cincinnati & Whitewater Canal Co., 18 Ohio St. 169, where a railroad company sought to appropriate the bed of a canal for its track, the Supreme Court of Ohio held that the rule of valuation was what the interest of the canal com- pany was worth, not for canal purposes or any other particular use, but generally for any and all uses for which it might be suitable. And in Young v. Harrison, 17 Ga. 30, where land necessary for an abutment of a bridge was appropriated, the Supreme Court of Georgia held that its value was not to be re- stricted to its agricultural or productive capacities, but that inquiry might be made asi to all purposes to which it could be applied, having reference to existing and prospective wants of the community. Its value as a bridge site was, therefore, 704 ILLUSTRATIVE CASES allowed in the estimate of compensation to be awarded to the owner. These view^s dispose of the principle upon which the several exceptions by the plaintiff in error to the rulings of the Court below in giving and in refusing instructions to the jury were taken, and we do not deem it important, therefore, to comment upon them. Judgment affirmed. Fee Simple. The State may take the fee simple or a lessei inteiest. Sweet v. Buffalo etc. Co. Court of Appeals, New York, 1879. 79 N. Y. 293. The plaintiflF brings an action of ejectment to recover possession of certain lands. Andrews, J. The right of the plaintiff to recover in this action depends upon the question whether the city of Buffalo by the proceedings taken under chapter 547 of the Laws of 1864 became vested with the fee of the land in controversy. If the title of the plaintiff's grantor was divested by the proceedings under the Act the deed to the plaintiff conveyed no title or interest in the premises and he cannot maintain ejectment, and it is wholly immaterial whether the license from the Common Council of the city, under which the de- fendant entered upon and laid its track over the locus in quo was or was not valid. The plaintiff must recover on the strength of his own title, and if he has none, the question of the defendant's title is unimportant. The Act referred to is entitled " An Act authorizing the Common Council of the city of Buffalo to lay out a public ground for the purpose of maintaining and protecting a sea- wall or breakwater along the shore or margin of Lake Erie." IN REALTY. 705 The first section authorizes the Common Council to lay out, make and open a public ground one hundred and thirty feet wide along the shore or margin of Lake Erie for the purpose ■of maintaining thereon and protecting a sea-wall or breakwater And to take and appropriate for that purpose certain specified lands including the premises in controversy. It provides that the land shall be " taken and appropriated" in the same manner and that compensation therefor shall be ascertained and made as provided in the charter of the city in proceedings for "the taking of land for laying out streets and highways therein. Upon payment or tender of the compensation awarded to the ■owner or owners of the land taken, the section declares that "" the fee thereof shall vest in the city of Buffalo for the pur- pose aforesaid and thenceforth the said land shall be and remain a public ground for the purpose of maintaining and protecting thereon or any part thereof a sea-wall or break- water and protecting the harbor of said city and the lands adjacent from the encroachments of said lake," and that nothing in the Act contained shall prevent the city from acquiring title to the lands described therein, for the purpose, stated, by voluntary conveyance from the owner. The second section provides that when the city shall have obtained " title to the land," either by proceedings under the Act or by voluntary conveyance as therein authorized, " the said land shall be subject .to the control of the Common Council of said city as one of the public grounds thereof, ■except so far as said control may have been heretofore or may be hereafter ceded to the United States," and it authorizes the •Common Council to direct a deed or deeds of conveyance of such land, or any part thereof, to be made in the name of and under the corporate seal of the city to the United States, "for the purpose of erecting and maintaining thereon a sea-wall or breakwater," on condition, to be expressed therein, that the United States shall maintain and keep in repair on said land the said sea-wall or breakwater ; and the section declares that ■" the execution and delivery of the deed or deeds shall vest in the United States the title to the land for the purpose and 45 706 ILLUSTRATIVE CASES subject to the condition aforesaid." The third section pro- Jiibits the removal by any person from the premises of any earth, sand, or gravel after the lands shall have been conveyed to or taken by the city under the Act, without permission of the Common Council or the United States, as the case may be, or any excavation thereon so as to impair or injuriously affect the sea-wall or breakwater, and makes it a misdemeanor for any person willfully to tear down or remove any part thereof. The fourth section prohibits the erection of any building on the premises taken or conveyed under the Act, and makes it a misdemeanor for any person after the land shall have been appropriated by or conveyed to the city to erect upon or move on to said land any building. The fifth section authorizes the Common Council to pass ordinances to prevent the erection or placing of any building on the land, or the taking of any earth, sand, or gravel therefrom, and for the protection of the sea-wall or breakwater, and to impose penalties for a violation thereof. The sixth section requires the Common Council upon perfecting the proceedings for taking and appropriating the Jands, or upon conveyance thereof, to declare by resolution " the said land to be a public ground for the purpose of main- taining and protecting a sea-wall or breakwater." It is conceded that proceedings were' instituted under this Act to take the lands in question, and that by virtue of such proceedings all the interest in the premises in question which the city could acquire therebj' became vested in the city. There is therefore no question of regularity to be considered, and it is to be assumed that compensation has been made or tendered to the owner of the land to the full extent authorized by the Act. It is claimed, however, that under the Act and proceedings thereunder the city acquired an easement only in the premises for the purpose of maintaining a sea-wall or breakwater, and that the fee of the land remained in the owner subject to this servitude. This position, if it can be maintained, must rest upon the ground that it was not the intention of the Act that a fee should be acquired by the city in the premises taken, and IN REALTY. 707 not upon the ground that there was any lack of power in the Legislature to authorize the acquisition by the city by com- pulsory proceedings of the fee of the land for the use men- tioned in the Act. The use was unquestionably a public one, and it is well settled that it is within the competency of the Legislature in authorizing land to be condemned for a public use which may be permanent, to determine what estate shall be taken, and to authorize the taking of a fee or any lesser estate in its discretion, and that a fee may be taken although the pubhc use for which the land is to be taken is special and is not of necessity permanent or perpetual : Heyward v. The Mayor, etc., 7 N. Y. 214 ; Rexford v. Knight, 11 lb. 308 ; Brooklyn Park Comrs. ■;;. Armstrong, 45 lb. 234. It is true as claimed by the plaintiffs counsel that Acts authorizing the taking of private property for public use are to be strictly con- strued and will not be deemed to justify the taking of any greater estate or interest than such as is expressly, or by necessary implication authorized by the statute under which the appli- cation is made : The Washington Cemetery v. Prospect Park E. R. Co., 68 N. Y. 591 ; Sixth Avenue R. R. Co. v. Kerr, 72 lb. 530. But there is no other restraint upon the power of the Legislature to authorize land to be taken for public use, except that which imposes the condition of making compensation to the owners. When the statute authorizes the taking of a fee it cannot be held invalid, or that an easement only was acquired by proceedings thereunder, on the ground that in the judgment of the Court the taking of an easement only would accomplish the public purpose which the Legislature had in view. That is a legislative and not a judicial question. It seems very plain that the Legislature intended by the Act in question to authorize the city of Buffalo to acquire by proceedings under the Act the fee of the premises described therein. The lands are to be " taken and appropriated " for a use continuous and permanent in its character. The compen- sation is to be ascertained in the same manner as the compen- sation for lands taken by the city for streets and highways in which cases as the charter then was, the fee was taken, and 708 ILLUSTRATIVE CASES there can be no question that the commissioners under the Act of 1864 were authorized and required to award the full value of the land taken. The Act declares that upon the pay- ment or tender of the compensation award for the lands taken " the fee thereof shall vest in the city," and the city, " after title to the land shall have been acquired," is authorized to convey to the " United States the said land or any part thereof." It is impossible in view of the clear and unambiguous terms of the statute, which vests in the city a fee in the lands taken under the Act and the right to convey under the limitations mentioned, and provides for the payment to the owner of the full value of his property, to sustain the contention of the plaintiff that the city took an easement only, which is not a title or estate in land but a mere privilege therein distinct from any ownership of the soil. It is claimed that the interest taken by the city is for a special purpose, to wit : the main- taining and protecting of a sea-wall, and this purpose is re- peatedly declared in the Act. But we perceive no inconsistency in declaring the particular use for which the city is to take and hold the land, and at the same time providing that it should take a fee. The particular use declared is in the nature of a trust engrafted on the fee, and the people through its proper ofl&cers could compel the city to observe the trust, or restrain it from any use of the land inconsistent with it. The purpose expressed does not qualify the estate taken but simply regulates and defines the use for which it shall be held. The argument that the Act makes provision for the protection of the property and authorizes the Common Council to do certain things which it would be unnecessary to provide for if the city became the general owner is not, we think, entitled to much weight, in view of the explicit declaration of the Act that the fee of the land acquired under the Act should vest in the city. The principle of construction that authorizes the examination of an entire statute or instrument to ascertain the meaning of any part, when the meaning is ambiguous or obscure, is well settled, but in this case there is no need of construction. The word /ee has a clear, definite, and legal IN REALTY. 709 signification, and is wholly inconsistent with the claim that an easement in the land only was authorized to be taken. The objection that the Act is void under section 16 of article III of the Constitution is not well taken. The title, we think, sufficiently indicated the subject of the Act. It would be expected that in an Act authorizing a municipal corporation to lay out a public ground provisions would be found for con- demning land for that purpose. The conclusion is that the plaintiff failed to establish any right or title to the premises in question and the judgment must therefore be affirmed. Judgment affirmed. Cotton V. Miss. & Rum River Boom Co., 22 Minn. 372; Scott v. St. P. & C. Ry. Co., 21 Minn. 322. Taxation. The State may, under the power of taxation, sell and convey the title to land in fee simple or lesser interest in default of payment of taxes assessed thereon. Doe ex dem. Gledney v. Deavors. Supreme Court of Georgia, 1850. 8 Ga. 479. NiSBET, J. 1. This was an action of ejectment. The plain- tiff claimed under a tax collector's deed, and the defendant under a sheriff's deed. The sheriff's deed bears date in April, 1841, and the tax collector's deed in December of the same year. The sheriff sold the land under an execution in favor of a citizen, as the property of the defendant in execution The collector caused the same land to be sold for the taxes due by the same defendant, assessed for that year. The ques- tion of title being before the Circuit Court, the presiding Judge instructed the jury, " that the lien or security of the State, for the tax due from the defendant in execution for the year 1841, was destroyed by the sheriff's sale, and the subsequent sale conveyed no title, unless the jury believed that the 710 ILLUSTRATIVE CASES sheriff's sale was made for the purpose of avoiding the pay- ment of taxes due, and that the only preference that existed for said tax, was the right of the tax collector to claim out of the fund raised by the sheriff's sale." To this charge the plaintiff in error excepted, and the question is, whether the tax due by a citizen is a lien upon his property, which can be enforced by a re-sale, in a case like this, where the property has been sold under a general judgment before it is returned, yet after the tax upon it has been imposed by law. The pre-^ siding Judge does not seem to hold, that generally taxes are not a lien, but believes that the lien was destroyed by the sheriff's sale, and that after such sale, the only way in which the State can collect her taxes, is by putting in a claim upon the fund. Inasmuch as the land had been sold, the view of the Judge seems to be, that the State occupied the position of a favored or preferred claimant on it, and failing to assert her claim, lost it, unless the sale by the sheriff was intended to defeat the payment of the taxes. The question is an import- ant one, and it will be necessary to consider, generally, the question, to what extent assessed taxes are a lien upon the property of the citizen, and if they are a lien particularly, whether in this case it was, as held by the presiding Judge, destroyed by the sale by the sheriff. The right to tax the whole property of the citizen for the defense of the State and the support of the government, is not a questionable proposition. It is an incident of sovereignty. All property which vests in the citizen by grant from the estate, is liable to taxation, without a reservation of the right to tax. That right grows out of the right of the citizen to governmental protection and the corresponding obligation of the government to protect him. Revenue is indispensable to the maintenance of all the privileges and immunities of the people — it is also indispensable to national independence, without which indi- vidual immunities and privileges are valueless. Hence it is, that in the very nature of the social compact, as a basis upon which the foundations of government are laid, the property of the citizen is pledged for these purposes — pledged without any IN REALTY. 711 express declaration of a pledge. In the act of organizing a government, the pledge is implied. It is one of the elements of national being. The people who make a government, ipso facto, assent to it. This inherent right to lay and collect taxes, may be limited and regulated by the fundamental law, as it is by the Constitution of our Union. The amount and the mode of assessment, aud the manner of collecting it, lies within the legislative competency, to be arranged from time to time, by law, according to the public exigencies. In this country the* people impose the taxes which they pay, through their repre ' sentatives, and the taxing power is not, therefore, likely to bo abused. Upon these principles, it has been held, in a sister State, that the taxes due, in the absence of any legislative declaration upon that subject, are a mortgage to the exclusion of any other lien or incumbrance. The decision goes upon the idea, that the obligation to support the government pre- cedes and is paramount to every contract between citizens ; and without amplifying this general doctrine, I leave it with my concurrence : 2 Bay's Rep. 244 ; 4 Peter's R. 514 ; 4 Wheat. 428. However sufficient these principles may be to sustain the tax lien, we are not left to them alone. In our judgment, the laws of the State give to assessed taxes a lien which overrides every other security or incumbrance. By the 14th section of the Act of 1804, which is still of force, it is declared, that " the taxes imposed by this Act shall be preferred to all securi- ties and incumbrances whatever :" Prince, 847. This section creates a lien. It is argued that it only gives a preference or creates a grade of debt, in contemplation of a contest with other securities and incumbrances. Our opinion is, that it creates a general lien, which attaches at the time when the property is liable by law to taxation, upon all the property of the citizen. It is true that the phraseology of the Act might have been more plainly declaratory of a lien. But what is its effect? A legal preference, that is priority, is given to the taxes, not only over all incumbrances whatever — such as mortgages and judgments — but also over all securities — securi- 712 ILLUSTRATIVE CASES ties by title, as well as other securities. A deed, therefore, upon private sale will not defeat the preference. It inhibits a sale to the exclusion of the taxes. And it can only defeat the security of a deed, upon the idea of a lien on the property. If a title by deed, upon private sale, will not defeat the tax lien, a title by deed upon a judicial sale will not, a fortiori, ■ for, the lien of the judgment, under which the purchaser at the judicial sale gets his title, is unquestionably postponed by the Act. There is no particular form of words necessary to- create a lien. The plain import of this Act is a legal prefer- ence for satisfaction out of the property of the person taxed, over every security and every incumbrance, and that is a lien. The Legislature, no doubt, intended simply to declare the great fundamental principle, that the property of the citizen is pledged to the exclusion of all private contracts — to the sup- port of the government. That principle elucidates the enact- ment. If the lien exists without a legislative declaration — if it be an elementary principle of government, recognized by the ablest statesmen, it can hardly be presumed that the Legis- lature intended to innovate upon and weaken it. If the Act only creates a preference over other claims, it is available for the protection of the State, only when a citizen is dead and his estate is for distribution, or when he is insolvent, or when there is a fund in hand for distribution. Upon this idea, it looks to marshaling assets. And in case of the alienation, bona fide, of property by private sale, this construction would wholly defeat the security of the State. In this very case, as 1 shall show, it would defeat the collection of taxes altogether. I do not mean to say, that when the money of the citizen is in the hands of the Court, and the tax is in a situation to b& presented as a claim upon it, that that claim would not be good. If the Act creates a lien on property, the lien equally attaches upon its proceeds. But in such a case, I do not believe that the lien of the State would be lost by its agent failing to put in a claim upon the fund, upon the principle that no laches can be imputed to the State. It is not enough to say, that the collector and his security would be in that case liable^ IN REALTY. 713 for that liability is only cumulative security for the State. The lien is a general one. The whole property is bound for the taxes. That it is not confined to the specific property upon which each item of the tax arises, is manifest in this. The law re- quires the personal estate first to be sold to pay the tax, and if none, or not enough, then the real estate. Accordingly, taxes originating on lands may be paid out of the personal estate, and vice versa. It takes eff'ect when, by law, in each and every year the property is made taxable — that is to say, on the 1st of January. It is the imposition of the tax by law which appropriates, if needs be, the property of the citizen to the public use. The lien, therefore, does not commence only with the return of the property, or with the return of the digest by the receiver to the collector, or with the issuing of execution to enforce payment : Dudley, 15 ; 8 Watts & Searg. R. 449. It is argued that the taxes are not a lien, from certain pro- visions of the tax law — such as that which declares all sales,, made to prevent their payment, void — that which makes them first to be paid, in case of the death of the debtor, and charges the administrator, personally — and that which charges the mortgagee with the tax due upon the mortgaged prop- erty. These provisions of law do not set aside the lien created by the 14th section, nor are they incompatible with it. Some of them, it may be, are unnecessary — as for example, that which declares void all gifts and conveyances, etc., made to avoid the payment of taxes. If there is a lieu, this provision is useless. All these things, and others — for example, the summary process with which the collector is armed to collect, and the prohibition of all judicial interfer- ence between the State and the debtor, look to the same end, and that is the prompt and necessary payment of the taxes. The State must have her revenue, at all hazards. Hence these various stringent provisions of law to constrain payment. Prompt collection is as necessary as the lien. But if, in all^ cases of sale of the property, as here, the State is to rely upon the fund, she may be delayed by litigation, and is really made 714 ILLUSTRATIVE CASES dependent upon judicial interference. She must put in her notice, or file her injunction — await the regular time for a hearing — abide delays, continuances, and collateral issues". In short, she is no better off than any oth«r judgment creditor. No. To collect taxes, the State moves with uncontrollable power directly and instantaneously upon the property ; and if, in the exercise of this stern but necessary attribute of sovereignty, the citizen is injured, his only redress is by peti- tion to the Legislature. 2. In the case made in this record, if the doctrine of the €!ourt prevails, and in all like cases, the tax will be lost to the State. Here the sheriff sold in April. The land sold was taxable on the 1st of January preceding. At the time of sale, the land had not been returned to the receiver — the collector knew not that it was taxable as the property of the defendant — he had no power over it — he could put in no notice to retain — he could institute no process to hold up the fund. The sheriff, officially, could know nothing of the claim of the State for taxes. He was not restrained from paying over at once the proceeds of the sale to the judgment in his hands ; and if paid, then all means of security to the State is lost forever. The collector and his sureties would not be liable, for he could not be in default. So it would be in any case where there is a bona fide sale of property intervening the first of January and the return of the digest of taxes to the collector, whether that sale be private or judicial. The consequence of this doctrine would clearly be a loss to the State of no inconsiderable amount of her revenue, and a serious injustice to the tax pay- ing portion of the people. In the case before me, the collector has pursued the course which the law points out. "When the tax was collectible, and default in payment made, he issued his execution — the land is levied on and sold. The question put by one of the counsel for plaintiff in error (Col. Brown), is conclusive of the case. . If these proceedings are authorized by law (and that they are, no none questions), does not the purchaser get a title ? If he does not, then the State has devised an ingenious piece of IN REALTY. 715 statutory mechanism, for the purpose of entrapping her citi- zens. The previous purchaser has no right to complain, for the tax lien is by public law, and he is presumed to buy with notice. In the argument of this cause, the defendant in error relied upon the decision of the Supreme Court of the United States in Conrad v. The Atlantic Insurance Company of New York, 1 Peters, 386. That decision places a construction on the 65th section of the Act of Congress, passed in 1799, which is as follows : " In all cases of insolvency, or when any estate in the hands of executors, administrators, and assigns, shall be insuf- ficient to pay all the debts due from the deceased, the debt or debts due to the United States shall be first satisfied ; and any executor, administrator, or assignee^ or other person, who shall pay any debt due by the person or estate, for whom or for which they are acting, previous to the debt or debts due to the United States from such person or estate, being first duly satis- fied and paid, shall be answerable in their own person and estate, etc." The Supreme Court held, that the priority, thus limited in behalf of the United States, was not a right that superseded and overruled an assignment made by the debtor, and subjected the property so assigned to execution ; but was a right of prior payment out of the general funds of the debtor, in the hands of the assignee. This decision is inapplicable to the present case. A similar provision of law is made in this State when a debtor for taxes dies between the time of giving in his taxes and the payment. A priority is created in behalf of the State for the tax, and the administrator is bound to respect that priority, at the peril of personal liability : Prince, 847. If this were the only provision of our law on the sub- ject, the question would be very different. We should con- strue it as the Supreme Court did, a like law of Congress, as giving a right only of prior payment. But it is not. In the same section, the Legislature declares that the taxes shall be pre- ferred to all securities and incumbrances whatever. As before stated, the priority given in case of death, is cumulative, and intended to secure prompt payment of taxes. The law of 716 ILLUSTRATIVE CASES Congress does not pretend to give to the United States a lien — it only pretends to create a preference in the cases stated, of in- solvency, etc. It cannot be enlarged beyond its terms. Our law, in general terms, conveys a preference over all ineu/m- brances and securities, and, as we think, creates a lien. Let the judgment be reversed. Tax Deed. Wood v. Armour. Supreme Court of Wisconsin, 1894. 88 Wis. 488 ; 60 N. W. Rep. 791. In 1850 Mann owned certain land in fee, which he then conveyed t» Wood, of New York. Wood died in 1864, still owner of the land. The plaintiff in this action is his widow. In 1856 Mann went into possession of the land, either adversely or by permission, which fact is in dispute. Mann remained in possession until 1887. He paid taxes till 1877. The land was sold for taxes in 1883 and 1884, and tax deeds, fair on their face, were issued to one Parks. In 1887 Mann's wife bought these tax deeds with money of her own, and took the rents and profits of the land, made repairs, redeemed some unpaid taxes, and paid current taxes thereon, her husband acting aa her agent. In 1892 Mrs. Mann conveyed the title to one Morse, and he con- veyed it to Armour, the defendant. Mrs. Woods brings an action of eject- ment, claiming that Mrs. Mann acquired no title, either by adverse possession or by the tax deed. WiNSLOw, J. The record is quite voluminous. The fore- going statement does not state all of the facts which appear in evidence, but it is believed that it states all the facts which are material to the decision of the case. The question was much discussed, both in the briefs and in the argument, whether Curtis Mann's entry and subsequent possession were adverse. In the view we have taken of the case, we find it unnecessary to decide the question. When the tax deed was executed the title to the property was either in the plaintiffs or in Curtis Mann, and in either event it was entirely compe- tent for Nancy Maun, out of her separate estate, to purchase that tax title. The tax deeds were fair on their face. No ir- IN REALTY. 717 Tegularity is shown or claimed in the levy of the tax upon which they were based. Hence, they conveyed a title in fee simple, unless there was some legal reason why Nancy Mann could not purchase that title. It is suggested that Curtis Mann could not acquire the tax •title, because he was in possession of the land and it was assessed to him, so that he was under legal obligation to pay the taxes. However much force this argument might have against a title acquired by Curtis Mann, or by a third person collusively for Mann's benefit, it has no force against Mrs. Mann, who was not in possession and was under no obligation to protect the title. No duty rested on her to pay the taxes on these lands, whether they belonged to her husband or to the plaintiffs. She had a separate estate, and if she chose to use a part of it in purchasing a tax title on these lands in good faith and for her own benefit, we know of no rule, in the present state of the law as to the property rights of married women, which would prevent her from doing so. The evi- dence showed, and the Court rightly found, that after such purchase she went into possession of the lands in question, and held such possession until she conveyed the same to the de- fendant's grantor. The actual manual possession during this time was in tenants, but we think the possession of these ten- ants, under the facts, must be held to be the possession of Mrs. Mann. She received the rents and profits, built fences, repaired buildings, paid the taxes, and managed the property _ as her own. It is true that her husband acted as her agent in many of these matters, but it is entirely competent for the husband to so act in the transaction of his wife's separate business, and we do not see how this is to prejudice the wife's rights. Certainly, no one has had possession adverse to her since she acquired title. The plaintiffs have not, and her husband has not, nor have th§ tenants. She put her title on record at once, thus announcing to all the world, including the plaintiffs, that she claimed title to the premises. This constituted not only a " challenge of the right of the original owner and all opposing claimants, but it was notice to them 718 ILLUSTRATIVE CASES of its existence and presumed validity :" Knox v. Cleveland, 13 Wis. 245. In any view which we have been able to take of the case we have been unable to see why the tax title acquired by Xancy Mann did not vest in her a perfect title to the property, which is now vested in the defendant, her grantee. Judgment affirmed. The several States of the Union regulate the method of taking and deter- mine the interest that shall pass under a tax sale : 2 Blackwell on Tax Titlea, i 965 ; McFadden v. Goff, 32 Kan. 36 ; 4 Pac. Eep. 841 ; Parker v. Baxter, 2 Gray, 185 ; Sinclair v. Lamed, 51 Mich. 335 ; Jones r. Devore, 8 Ohio St. 430; Brown v. Austin, 41 Vt. 262 ; Turner v. Smith, 14 Wall. 553 ; Sumner v. Kan- awha Co., 26 W. Va. 159; Jackson v. Babcock, 16 N. Y. 246; Jarvis i: Peck, 19 Wis. 84. Forfeiture. Title to land may be lost to one and vest in another by virtue of statutes providing punishment for illegal acts. Wallach v. Van Riswick. Supreme Court of the United States, 1875. 92 U. S. 202. The complainants were the children of Charles S. Wallach, a Confederate oflftcer in the war of 1861. His estate in Washington, D. C, was seized under the Confiscation Act of July 17, 1862, condemned according to law, and sold to Van Eiswick. After the war, in 1866, Wallach conveyed to Van Riswick all of his supposed interest in the land, and afterward died. Wallach's chil- dren began a suit, claiming that after the seizure of the land by the govern- ment no interest remained in their father, and that they, as his heirs, were entitled to the land. Van Eiswick demurred, and his demurrer was sus- tained ; hence this appeal. Mr. Justice Strong. The formal objections to the bill deserve but a passing notice. It is not, we think, multifarious ; and all persons are made parties to it who can be concluded or affected by any decree that may be made — all persons who have an in- terest in the subject-matter of the controversy. The main ques- IN REALTY. 719' tion raised by the demurrer, and that which has been princi- pally argued, is, whether, after an adjudicated forfeiture and sale of an enemy's land under the Confiscation Act of Congress of July 17, 1862, and the joint resolution of even date there- with, there is left in him any interest which he can convey by deed. The Act of July 17, 1862, is an Act for the confiscation of enemies' property. Its purpose as well as its justification, was to strengthen the government, and to enfeeble the public enemy by taking from the adherents of that enemy the power to use their property in aid of the hostile cause: Miller v. United States, 11 Wall. 268. With such a purpose, it is in- credible that Congress, while providing for the confiscation of an enemy's land, intended to leave in. that enemy a vested interest therein, which he might sell, and with the proceeds of which he might aid in carrying on the war against the govern- ment. The statute indicates no such intention. The contrary is plainly manifested. The 5th section enacted that it should be the duty of the President of the United States to cause the seizure of "all the estate and property, moneys, stocks, credits, and effects," of the persons thereinafter described (of whom Charles S. Wallach was one), and to apply the same and the proceeds thereof to the support of the army of the United States ; and it declared that all sales, transfers, and conveyances of any such property should be null and void. The description of property thus made liable to seizure is as broad as possible. It covers the estate of the owner — all his estate or ownership. No authority is given to seize less than the whole. The 7th section of the Act enacted that to secure the condemnation and sale of any such property (viz. : the property seized), so that it might be made available for the purpose aforesaid, pro- ceedings should be instituted in the Court of the United States ; and if said property should be found to have belonged to a person engaged in the rebellion, or who had given aid or com- fort thereto, the same should be condemned as enemies' prop- erty, and become the property of the United States, and might be disposed of as the Court should decree, the proceeds thereof 720 ILLUSTRATIVE CASES to be paid into the treasury of the United States for the pur- pose aforesaid. Nothing can be plainer than that the condem- nation and sale of the identical property seized were intended by Congress ; and it was expressly declared that the seizure ordered should be of all the estate and property of the persons designated in the Act. If, therefore, the question before us were to be answered in view of the proper construction of the Act of July 17, 1862, alone, there could be no doubt that the seizure, condemnation, and sale of Charles S. Wallach's estate in the lot in controversy left in him no estate or interest of any description which he could convey by deed, and no power which he could exercise in favor of another. This we understand to be substantially conceded on behalf of the defendant. But the Act of 1862 is not to be construed exclusively by itself. Contemporaneously with its approval, a joint resolution was passed by Congress, and approved, explanatory of some of its provisions, and declaring that " no proceedings under said Act shall be so construed as to work a forfeiture of the real estate of the offender beyond his natural life." The Act and the joint resolution are doubtless to be construed as one Act, precisely as if the latter had been introduced into the former as a proviso. The reasons that induced the passage of the resolution are well known. It was doubted by some, even in high places, whether Congress had power to enact that any for- feiture of the land of a rebel should extend or operate beyond his life. The doubt was founded on the provision of the Constitution, in § 3, art. iii, that " no. attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted." It was not doubted that Con- gress might provide for forfeitures effective during the life of an offender. The doubt related to the possible duration of a forfeiture, not to the thing forfeited, or to the extent and eflficacy of the forfeiture while it continued. It was to meet the doubt which did exist that the resolution was adopted. What, then, is its effect? and what was intended by it? Plainly it should be so construed as to leave it in accord with the general and leading purpose of the Act of which it is substantially a IN REALTY. 721 part ; for its object was, not to defeat, but to qualify. That pur- pose, as we have said, was to take away from an adherent of a public enemy his property, and thus deprive him of the means by which he could aid that enemy. But that purpose was thwarted, partially at least, by the resolution, if it meant to leave a portion, and often much the larger portion, of the estate still vested in the enemy's adherent. If, notwithstanding an adjudicated forfeiture of his land and a sale thereof, he was still seized of an estate expectant on the determination of a life-estate M'hich he could sell and convey, his power to aid the public enemy thereby remained. It cannot be said that such was the intention of Congress. The residue, if there was any, was equally subject to seizure, condemnation, and sale with the particular estate that preceded it. It is to be observed that the joint resolution made no attempt to divide the estate con- fiscated into one for life, and another in fee. It did not say that the forfeiture shall be of a life-estate only, or of the possession and enjoyment of the property for life. Its language is, " No proceedings shall work a forfeiture beyond the life of the offender ;" not beyond the life estate of the offender. The ob- vious meaning is that the proceedings for condemnation and sale shall not affect the ownership of the property after the termination of the offender's natural life. After his death, the land shall pass or be owned as if it had not been forfeited. Nothing warrants the belief that it was intended that, while the forfeiture lasts, it should not be complete ; viz. : a devolu- tion upon the United States of the offender's entire right. The words of the resolution are not exactly those of the constitu- tional ordinance ; but both have the same meaning, and both seek to limit the extent of forfeitures. In adopting the reso- lution. Congress manifestly had the constitutional ordinance in view ; and there is no reason why one should receive a con- struction different from that given to the other. What was intended by the constitutional provision is free from doubt. In England, attainders of treason worked corruption of blood and perpetual forfeiture of the estate of the person attainted, to the disinherison of his heirs, or of those who would other- 46 722 ILLUSTRATIVE CASES wise be his heirs. Thus, innocent children were made to suffer because of the offense of their ancestor. When the Federal Constitution was framed, this was felt to be a great hardship, and even rank injustice. For this reason it was ordained that no attainder of treason should work corruption of blood or forfeiture, except during the life of the person attainted. No one ever doubted that it was a provision introduced for the benefit of the children and heirs alone ; a declaration that the children should not bear the iniquity of the fathers. Its pur- pose has never been thought to be a benefit to the traitor, by leaving in him a vested interest in the subject of forfeiture. There have been some Acts of Parliament, providing for lim- ited forfeitures, closely resembling those described in the Act of Congress as modified by the joint resolution. The statute of 5th Elizabeth, c. 11, "against the clipping, washing, round- ing, and filing of coins," declared those offenses to be treason, and enacted that the offender or offenders should suffer death, and lose and forfeit all his or their goods and chattels, and also " lose and forfeit all his and their lands and tenements during his or their natural life or lives only." The statute of 18th Elizabeth, c. 1, enacted the same provision " against diminish- ing and impairing of the queen's majesty's coin and other coins current within the realm," and declared that the offender or offenders should " lose and forfeit to the queen's highness, her heirs and successors, all their lands, tenements, and heredita- ments during his or their natural life or lives only." Each of these statutes provided that no attainder under it should work corruption of blood, or deprive the wife of an offender of her dower. The statute of 7 Anne, c. 21, is similar. They all provide for a limited forfeiture — limited in duration, not in quantity. Certainly no case has been found, none, we think, has ever existed, in which it has been held that either statute intended to leave in the offender an ulterior estate in fee after a forfeited life-estate, or any interest whatever subject to his disposing power. Indeed, forfeiture has frequently been spoken of in the English Courts as equivalent to conveyance. It was in Lord Level's Case, Plowd. 488, where it was said by Harper, IN REALTY. 723 Justice, " The Act (of attainder) is no more than an instrument of conveyance, when by it the possessions of one man are transferred over to another." And again : " The Act conveys it (the land forfeited) to the king, removes the estate out of Lovel, and vests it entirely in the king." In Burgess v. Wheate, 1 Eden, 201, in discussing the subject of forfeiture, the Master of the Rolls said, '' The forfeiture operated like a grant to the king. The crown takes an estate by forfeiture, subject to the engagements and incumbrances of the person forfeiting. The crown holds in this case as a royal trustee (for a forfeiture itself is sometimes called a royal escheat). ... If a forfeiture is regranted by the king, the grantee is a tenant m capite, and all mesne tenure is extinct." See, also, Brown v. "Waite, 2 Mod. 133. If a forfeiture is equivalent to a grant or conveyance to the government, how can anything remain in the person whose estate has been forfeited which he can convey to another? No conceivable reason exists why the construction applied to the English statutes referred to should not be ap- plied to our Act of 1862 and the joint resolution. If, in the British statutes, the sole object of the limitation of the dura- tion of forfeiture was a benefit to the heirs of the offender, it is. the same in our statutes ; and it is a perversion of the intent and meaning of the joint resolution to. read it as preserving rights and interests in those who under the Act had forfeited all their estate. What was seized, condemned as forfeited, and sold, in the proceedings against Charles S. Wallach's estate, was not, therefore, technically a life-estate. It is true, that in Bigelow v. Forrest, 9 Wall. 339, and Day v. Micou, 18 lb. 156, some expressions were used indicating an opinion that what was sold under the confiscation Acts was a life-estate carved out of a fee. The language was, perhaps, incautiously used. We certainly did not intend to hold that there was anything left in the person whose estate had been confiscated. The question was not before us. We were not called upon to decide anything respecting the quantity of the estate carved out ; and what we said upon the subject had reference solely to its duration. 724 ILLUSTRATIVE CASES It is argued on behalf of the defendant, that because under a confiscation sale of land, or of estate therein, the purchaser takes an interest terminable with the life of the person whose property has been confiscated, the fee must be somewhere ; for it is said that a fee can never be in abeyance ; and as the fee cannot be in the United States, they having sold all that was seized, nor in the purchaser, whose interest ceases with the life, it must remain in the person whose estate has been seized. The argument is more plausible than sound. It is a maxim of the common law that a fee cannot be in abeyance. It rests upon reasons that now have no existence, and it is not now of universal application. But if it were, being a common-law maxim, it must yield to statutory provisions inconsistent with it ; and it is, therefore, of no weight in the inquiry what was intended by the Confiscation Act and concurrent resolution. Undoubtedly there are some anomalies growing out of the congressional legislation, as there were growing out of the statutes of 5th and 18th Elizabeth ; but it is the duty of the Court to carry into effect what Congres intended, though it must be by denying the applicability of some common-law maxims, the reasons of which have long since disappeared. It has not been found necessary in England to hold that a re- version remained in a traitor after his attaint, though the stat- utes declared that the forfeiture shall be during his natural life only. We are not, therefore, called upon to determine where the fee dwells during the continuance of the interest of a purchaser at a confiscation sale, whether in the United States or in the purchaser, subject to be defeated by the death of the offender whose estate has been confiscated. That it cannot dwell in the ofiender, we have seen, is evident ; for, if it does, the plain pur- pose of the Confiscation Act is defeated, and the estate confis- cated is subject alike in the hands of the United States and of the purchaser to a paramount right remaining in the ofi'ender. If he is a tenant of the reversion, or of a remainder, he may con- trol the use of the particular estate ; at least, so far as to prevent waste. That Congress intended such a possibility is incredible. IN REALTY. 725 If it be contended that the heirs of Charles S. Wall^ch can- not take by descent unless their father, at his" death, was seised of an estate of inheritance — e. g., reversion or a remainder — it may be answered, that, even at common law, it was not always necessary that the ancestor should be seised to enable the heir to take by descent. Shelley's Case is, that, where the ancestor might have taken and been seised, the heir shall inherit: FoRTESCUE, J., in Thornby v. Fleetwood, 1 Str. 318. If it were true that, at common law, the heirs could not take in any case where their ancestor was not seised at his death, the present case must be determined by the statute. Charles S. "Wallach was seised of the entire fee of the land before its confiscation, and the Act of Congress interposed to take from him that seisin for a limited time. That it was competent to do, attaching the limitation for the benefit of the heirs. It wrought no corruption of blood. In Lord de la Warre's Case, 11 Coke, 1 a, it was resolved by the Justices " that there was a diSerence betwixt disability personal and temporary and a disability absolute and perpetual ; as, where one is attainted of treason or felony, that is an absolute and perpetual disability, by corruption of blood, for any of his posterity to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him ; but, when one is disabled by Parliament (without any attainder) to claim the dignity for his life, it is a personal disability for his life only, and his heir after his death may claim as heir to him, or to any ancestor above him." There is a close analogy between that case and the present. See, also, Wheatky v. Thomas, Lev. 74. Without pursuing this discussion farther, we repeat, that to hold that any estate or interest remained in Charles S. Wallach after the confiscation and. sale of the land in controversy would defeat the avowed purpose of the Confiscation Act, and the only justification for its enactment ; and to hold that the joint resolution was not intended for the benefit of his heirs exclu- sively, to enable them to take the inheritance after his death, would give preference to the guilty over the innocent. We 726 ILLUSTRATIVE CASES cannot so hold. In our judgment, such a holding would be an entire perversion of the meaning of Congress. It has been argued that the proclamations of amnesty aftei the close of the war restored to Charles S. Wallach his rights of property. The argument requires but a word in answer. Conceding that amnesty did restore what the United States held when the proclamation was issued, it could not restore what the United States had ceased to hold. It could not give back the property which had been sold, or any interest in it, either in possession or expectancy : Semmes v. United States, 91 U. S. 21. Besides, the proclamation of amnesty was not made until December 25, 1868. Decree reversed. Williams, R. P. 126 ; 2 Bl. Comm. 267 ; Brown v. White, 2 Mod. 133 ; Bige- low V. Forrest, 9 Wall. 339 ; Day v. Micou, 18 Wall. 156 ; Minn. Gen. Laws, 1889, ch. 129, ? 4; Const. Minn., Art. i, ? 11 ; Const. U. S., Art. in, g 3. Forfeiture, aa at common law, inflicted as punishment for crime, is un- known in any of the States of the Union : Williams, E. P. 126, note. Title by Marriage. Title by marriage is that 'g7hich a husband and vrife respectively acquire in the lands of each other under the law by virtue of their marriage. Randall v. Kreigek. Supreme Court of the United States, 1874. 23 Wall. 137. Mr. Justice Swayne. There is no controversy between the parties as to the facts. When the power of attorney was given there was no law of Minnesota authorizing such an instrument to be executed by husband or wife, or the attorney to convey under it. The validity of the deed as respects Randall, the husband, is not questioned, but its efficacy as to the widow, the appellant in this case, is denied. Her claim to dower is resm^M upon IN REALTY. 727 several grounds, and among them that the defect in the deed was remedied by the curative Act of 1857. We have found it necessary to consider only the point just stated. It is not objected that the Act of 1857, as regards its applica- tion to the present case, is in conflict with the Constitution of the State. We have carefully examined that instrument and have found nothing bearing upon the subject. Nor was the Act forbidden by the Constitution of the United States. There is nothing in that instrument which prohibits the Legislature of a State or Territory from exercising judicial functions, nor from passing an Act which divests rights vested by law, provided its effect be not to impair the obligation of a contract. Contracts are not impaired, but confirmed by cura- tive statutes. Marriage is an institution founded upon mutual consent. That consent is a contract, but it is one sui generis. Its pecu- liarities are very marked. It supersedes all other contracts between the parties, and with certain exceptions it is inconsis- tent with the power to make any new ones. It may be entered into by persons under the age of lawful majority. It can be neither cancelled nor altered at the will of the parties upon any new consideration. The public will and policy controls their will. An entire failure of the power to fulfill by one of the parties, as in cases of permanent insanity, does not release -the other from the pre-existing obligation. In view of the law it is still as binding as if the parties were as they were when the marriage was entered into. Perhaps the only element of a contract, in the ordinary acceptation of the term, that exists is that the consent of the parties is necessary to create the rela- tion. It is the most important transaction of life. The happi- ness of those who assume its ties usually depends upon it more than upon anything else. An eminent writer has said it is the basis of the entire fabric of all civilized society. By the common law, where there was no antenuptial con- tract, certain incidents belonged to the relation. 728 ILLUSTRATIVE CASES Among them were the estate of tenant by the curtesy on the part of the husband if issue were born alive and he sur- vived the wife, and on her part dower if she survived the hus- band. Dower by the common law was of three kinds : Ad ostium ecclesias, Ex assensu patris, and that which in the absence of the others the law prescribed. The two former were founded in contract. The latter was the creature of the law. Dower Ad ostium ecclesiae and Ex assensu patris were abolished in Eng- land by a statute of the 3d and 4th William IV, ch. 105. The dower given by law is the only kind which has since existed in England, and it is believed to be the only kind which ever obtained in this country. During the life of the husband the right is a mere expect- ancy or possibility. In that condition of things the law- making power may deal with it as may be deemed proper. It is not a natural right. It is whollj'' given by law, and the power that gave it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing with the expectancy of heirs, apparent or presumptive, before the- death of the ancestor. Until that event occurs the law of de- scent and distribution may be molded according to the will of the Legislature. Laws upon those subjects in such cases take effect at once, in all respects as if they had preceded the birth of such per- sons then living. Upon the death of the husband and the ancestor the rights of the widow and the heirs become fixed and vested. Thereafter their titles respectively rest upon the same foundation, and are protected by the same sanctions as other rights of property. The power of a Legislature under the circumstances of this case to pass laws giving validity to past deeds which were be- fore ineffectual is well settled. In Watson V. Mercer the title to the premises in controversy was originally in Margaret Mercer, the wife of James Mercer. For the purpose of transferring the title to her husband, they conveyed to a third person, who immediately conveyed to James Mercer. The deed of Mercer and wife bore date of the IN REALTY. 729^ 30th of May, 1785. It was fatally defective as to the wife iu not having been acknowledged by her in conformity with the provision of the statute of Pennsylvania of 1770, touching the conveyance of real estate by /ernes covert. She died without issue. James Mercer died, leaving children by a former mar- riage. After the death of both parties her heirs sued his heira in ejectment for the premises and recovered. The Supreme Court of the State affirmed the judgment. In 1826 the Legisla- ture passed an Act which cured the defective acknowledgment of Mary Mercer, and gave the same validity to the deed as if it had been well executed originally on her part. The heirs of James Mercer thereupon sued her heirs and recovered back the same premises. This judgment was also affirmed by the Su- preme Court of the State, and the judgment of affirmance was affirmed by this Court. This case is conclusive of the one before us. To the objection that such laws violate vested rights of property it has been forcibly answered that there can be no vested right to do wrong. Claims contrary to justice and equity cannot be regarded as of that character. Consent to remedy the wrong is to be presumed. The only right taken away is the right dishonestly to repudiate an honest contract or conveyance to the injury of the other party. Even where no remedy could be had in the Courts the vested right is usu- ally unattended with the slightest equity. There is nothing in the record persuasive to any relaxation in favor of the appellant of the legal principles which, as we have shown, apply with fatal effect to her case. The curative Act of 1857 has a strong natural equity at its root. It did for her what she attempted to do, intended to do, and doubtless believed she had done, and for doing which her husband was fully paid. The purchase-money for the lot became a part of his estate^ and the entire estate was given to her at his death. Not satis- fied with this she seeks to fasten her dower upon the property in question. The Act accomplished what a Court of Equity, if called 730 ILLUSTRATIVE CASES upon, would have decreed promptly as to the husband, and would have failed to decree as to the wife only from the want of power. The unbending rule of law as to /ernes covert in such cases would have prevented it. The Legislature thus did what right and justice demanded, and the Act strongly commends itself to the conscience and approbation of the judicial mind. Decree affirmed. TUle by curtesy. Title of the husband by curtesy vests upon the death of the wife -without any preliminary formality. "WiTHAM V. PeEKINS. Supreme Judicial Court of Maine, 1824. 2 Greenl. 400. One E. Perkins died in 1775, leaving six children inheriting his estate in common, of whom the tenanf was one and Lydia P. another. Lydia mar- ried David Thompson, to whom was born one child, this demandant. Eight days after the birth of this child the mother died, and David Thompson never went into possession of his wife's lands left by her father to her in common with the other children. The demandant, some forty years after her mother's death, but while her father was living, made an entry and claimed as reversioner her mother's share. Mellen, C. J. The demandant is the granddaughter of Eliphalet Perkins, and the tenant is his son, and has been in the open and actual possession of the lands and estate of which the demanded premises are a part, for mofe more than forty years before the commencement of this action. A short time before it was commenced the demandant made a formal entry, and then claimed her share of the estate — in this action she declares on her own seisin — and the questions are — whether she had a right of entry and a right of action when this suit was commenced — and whether she can have any such right during the life of David Thompson, her father. The jury have decided that the loiig-continued and actual possession of IN REALTY. 731 the tenant has been as tenant in common with the other heirs of Eliphalet Perkins, and so not an adverse possession, and a disseisin of those heirs. It follows that when Mrs. Thompson died in 1784, she died seised, as tenant in common with the other heirs of her father, the tenant's possession being con- structively the possession of all his co-tenants. David Thompson, on the death of his wife, became seised, as tenant hy the curtesy, of the share in dommon, of which his wife died seised, and for the same reason that the actual possession of the tenant has not been adverse to the right and title of the hdrs it has not been adverse to the right and title of Thompson as tenant by the curtesy — and hence also it follows that ever since the death of his wife he has been con- slruetively in possession as tenant in common with Perking, the tenant. This estate of Thompson still continues and his rights have not been impaired by any act on his part, though the tenant has been permitted to occupy and receive the profits of the estate. From this view of the facts of the case and the application of well-known principles to those facts, it plainly results that during the life of David Thompson the tenant by the curtesy, the heirs of his wife can have no right of entry upon the lands, whether in the actual or constructive pos- session of Thompson himself, or of any other person. The entry, then, of the demandant, made upon the lands previous to the commencement of this action, was without right, and proves no lawful seisin sufficient to maintain this action — and being merely a formal entry, she thereby gained no title by wrong, in virtue of which she might maintain a writ of entry against the person on whose possession such formal entry was nade. It is competent for the tenant to make this defense, and we are of opinion it is sufficient to bar the plaintiff. Let the verdict be set aside and a non-suit be entered. 1 Washburn, R. P., p. 191, I 56 ; Watson v. Watson, 13 Conn. 83. After birth of child the husband's right is initiate : Foster v. Marshall, 2 Poster (N. H.), 491. It becomes consummate on the wife's death : Oldham v. Henderson, 5 Dana, 254. Curtesy in equitable estate : Ogden v. Ogden, 28 S. W. 796. 732 ILLUSTRATIVE CASES Title in dower. Though consummate upon the husband's death, the -widcw cannot enter, nor is her legal title to the freehold perfect so that she can. transfer the same, until her dower has been duly assigned. Moore v. Harris. Supreme Court of Missouri, 1887. 91 Mo. 616 ; 4 S. W. Rep. 439. Sherwood, J. Ejectment for lot 63 in the town of Benton. Both parties claim under Elizabeth Crow, as the common source of title. To show title in himself, the plaintiff, after showing title in Albion Crow, the husband of Elizabeth Crow, by a commissioner's deed, dated October 28, 1845, next offered in evidence a deed from the collector of Scott County, Thomas S. Rhoades, to Elizabeth Crow, dated October 28, 1867, profess- ing to convey to the grantee therein the lot in controversy, as the property of Albion Crow, and as sold because of delinquent taxes. Plaintiff next offered in evidence a deed for the lot in ques- tion, from Elizabeth Crow to himself, dated March 25, 1868, which deed, so far as necessary to copy it here, is as follows : " Know all men by these presents, that I, Elizabeth Crow, of the county of Scott and State of Missouri, have this day, for and in consideration of the sum of seven hundred dollars, to me in hand paid by Joseph H. Moore, of the same county and State, granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said Joseph H. Moore the fol- lowing described real estate, situate in the county of Scott and State of Missouri ; that is to say, the southeast quarter of the northeast quarter of section 14, and the undivided half interest in the west half of the southwest quarter of section 12, in town- ship 28 north, range 13 east, it being forty and undivided half of eighty acres. Also, all the right, title, and interest, which I have of, in, and to lots 91 and 121, in the town of Commerce, in said county of Scott ; and also lot 63, in the town of Benton, in said county of Scott." IN REALTY. 733 The next Imk in the chain of plaintiff's title was a deed to Elizabeth Crow, acknowledged October 29, 1870, executed by- plaintiff as administrator of Albion Crow, and conveying the lot in question. The claim of the defendant Harris is based on a warranty deed for the lot aforesaid, executed November 30, 1877, by Elizabeth Crow to Mary J. Harris, wife of said defendant, Harris. 1. The deed of the collector of Scott County for the lot in dispute, executed to Elizabeth Crow in 1867, was worthless, and conveyed no title, and was void on its face, in consequence of its failing affirmatively to show that all the prerequisites which the law had prescribed, as to the fact of notice having been given of the delinquency of the land for taxes, had been complied with prior to judgment rendered by the County Court ; and in consequence of its failing affirmatively to show that adver- tisement had been made of the intended sale of the land for taxes in the precise method required by the statute. The statements made by the collector in his deed, that these things — these jurisdictional facts — had been done " according to law," OT "in manner and form as directed by law," go for nothing in the estimation of the Courts. The facts done must, in such cases, be set forth, in order that the Courts may determine whether the respective officers and Courts have acted "according to law:" Lagroue v. Rains, 48 Mo. 536; Spurlock u Allen, 49 Mo. 178 ; Large v. Fisher, lb. 307. The bill of exceptions shows that this deed was admitted in evidence despite the objections of the defendants. The judg- ment for plaintiff, however, recites that it was finally excluded from the consideration of the jury by order of the Court. This recital, if true, should have been preserved by the bill of excep- tions, the office of which is to preserve all matters of mere ex- ception. I judge, however, from the first instructions asked by, and refused, the defendants, that the Court did not regard the collector's deed as void on its face. It was thus void, as already seen from the authorities cited, and no title passed to Elizabeth Crow by reason thereof. 734 ILLUSTRATIVE CASES 2. I now come to consider the effect of the deed to plaintiff' of date March 25, 1868, whose recitals have already been in substance set forth; for on this deed plaintiff's paper title ex- clusively depends. I think it quite too plain for argument that the statutory covenants of " grant, bargain, and sell," do not extend to nor include the lot in question. If this be true, then the deed just mentioned, so far as concerns lot 63, is in effect a bare quit-claim deed, and no after-acquired title of Elizabeth Crow could inure to the benefit of plaintiff. Besides, it already appears that at the time the deed of March 25, 1868, was made, the onlj^ title Elizabeth Crow had in the premises was that of a dowress, whose dower remains unassigned. The authorities agree that in such case that the legal title of a dow- ress does not pass by her deed. The only right or interest thereby passing is one which may be enforced and effectuated in equity : 1 Washb. Real Prop. (4th ed.) 303 ; 2 Scrib. Dower, 40, 43. Of course, these remarks are not intended to apply ta the case of a dowress who releases her dower right to the terre- tenant, or one in possession of the lands, or to whom she stands in privity of estate : Washb. supra ; Scrib. Dower, 40. The only right or interest, therefore, which plaintiff acquired by reason of his deed, as aforesaid, was one vesting in action only, so far as the views of a Court of Law are concerned. What a Court of Equity would do in the premises does not matter, as in this action the plaintiff must recover on the legal title, and not on uneffectuated equities. 3. Nor did the plaintiff gain any title to the premises by reason of the operation of the statute of limitations, since his possession was not adverse and continuous for the requisite statutory period : Wilson v. Albert, 89 Mo. 537, 1 S. W. Eep. 209. As this cause was not tried in conformity to the views here announced, the judgment is reversed, and the cause remanded. 2 Scribner on Dower, 27-35 ; 1 Washburn, E. P., p. 283, ? 3. Dower is a freehold estate growing out of marriage, seisin, and the death of the husband : Yale et ux. v. Jay a al., 31 Ark. 576. After marriage and seisin by the husband, the wife's interest in the land is inchoate subject to legislative control ; but at the death of the husband IN EEALTY. 735 the widow's prior interest becomes a vested right, not subject to legislative modification : Guerin v. Moore, 25 Minn. 462. While inchoate it may be wholly abolished : Morrison v. Rice, 35 Minn. 436. While inchoate it is such an interest in the land that it cannot be the sub- ject of contract between husband and wife : In re Rausch, 35 Minn. 291. Until assignment of dower the widow has not title subject to alienation : Heisen v. Heisen, 145 III. 658 ; 34 N. E. 597. Statutory Modification. Curtesy and doMver have been abolished in some States, and en> larged or otherwise modified in others, so that husband and -wife take respectively a one-third or other proportional part of each other's lands in fee simple. RocKHiLL V. Nelson. Supreme Court of Indiana, 1865. 24 Ind. 422. Gregory, J. The plaintiff in this case is the widow, having been the third wife, of William Rockhill, who died seised in fee simple of the land in dispute. He had by the plaintiff one child, which died, in infancy, a short time before his death. The defendants are the children of the deceased hus- band by a former wife. The widow claims one-third of the land of which her husband died seised, in fee. The defend- ants insist that she is entitled to a life estate only. The rights of the parties depend upon the construction to- be given to our law of descent. By the 17th section of that law the surviving widow takes one-third, in fee, of all the lands of which the husband died seised. By the 27th section she takes, as the heir of her hus- band, one-third, in fee, of all the land owned by the husband at any time during coverture, in the conveyance of which she has not joined, and one-third, absolutely, of all equitable es- tates owned by him at his death. Under these sections the plaintiff would take one-third of the real estate of her deceased husband in fee. The only inquiry will be how and to what 736 ILLUSTRATIVE CASES extent does the proviso to § 24 (1 G. & H. 296) affect or modify §§ 17 and 27, the former preceding and the latter following § 24? The proviso is in these words : "Provided, that if a man marry a second or other subsequent wife, and has by her no children, but has children alive by a previous wife, the land which, at his death, descends to such wife, shall, at her death, descend to his children." In an able and well-considered brief, the learned counsel of the appellant argue thus : " The language of this proviso is, in some respects, unmistakably clear. Something descends to the wife. What is it? If anything, it is one-third of her hus- band's real estate, not a life interest in his real estate. The proviso does not intimate such a thing. If the one-third does not descend to the widow, to whom does it descend ? Not to the children or heirs, for by the clear and express words of the proviso they take whatever they may be entitled to, not at the death of the husband and father, but at the death of the widow. They take, not from the father, but from his "widow. They take from her, at her death, nothing but what she, as heir, of her deceased husband, took at his death. If she takes less than a fee, the children take nothing at all. Prior to the widow's death they can have no interest in the land which descends to her at her husband's death. " If it shall be said that the widow takes but a life estate, then this clause, which by a strained and unnatural construc- tion is made to reduce the widow's interest from a fee to a life estate, becomes absurd and nonsensical. For it is too clear to admit of doubt, unless words have lost all signifi- cance, that it was the purpose of this proviso to cast upon the husband's children, at the death of the widow, whatever she might then possess as the heir of the husband. To give effect to the plain and obvious meaning of this proviso it must be held, we think, that the whole interest in one-third of the de- ceased husband's lands descends, at his death, to his widow. That no part of this interest then descends to his children, for the simple reason that it is to descend to them, if at all, at the death of the widow. That it simply prescribes a rule of de- IN REALTY. 737 scent, making the husband's children, in the particular case, the special, substituted heirs of the second or subsequent wife." -This position, so forcibly put, addressed to this Court before the decision in the case of Martindale v. Martindale, 10 Ind. 666, would have been entitled to grave consideration ; and it is, indeed, difficult to see how it could have been met by legal argument. But there are some questions . in law, the final settlement of which is vastly more important than how they are settled; and among these are rules of property, long recognized and acted upon, and under which rights have vested. It must be admitted that our law of descents, among the most important on our statute book, is not remarkable for precision and clearness, and that vexatious questions are often occurring, requiring judicial interpretation of this statute. We cannotTjhange a decision without producing confusion in titles, as the ruling would necessarily relate back to the time the law came in force. But if the canon of descent, as settled by the determination of the Court of last resort is unjust, or even dis- tasteful, the Legislature can change the rule by a new statute, without interfering with vested rights. As now constituted, however much we may differ from the opinions of our prede- cessors, we shall not introduce doubt and confusion in questions of property by overruling the previous decisions of this Court. We have had occasion, in the last few months, to overrule a number of cases, but only in that class in which the rulings operate upon the future and not upon the past, and which, in our opinion, will be attended by unmixed good. The cases of Martindale ■;;. Martindale, supra, and Ogle et al. V. Stoops et al., 12 Ind. 380, were decided some six or seven years ago, and the rule therein established has been acquiesced in by the Legislature through three general and one special sessions, and ought not now, in our opinion, to be disturbed by this Court. The judgment is affirmed, with costs. In Indiana the eurviving spouse takes as an- heir, hence no assignment of the interest is necessary : Gay lord v. Dodge, 31 Ind.' 41 ; Fletcher v. Holmes, 32 Ind. 510. 47 738 ILLUSTRATIVE CASES Iowa— abolished : Mock v. Watson, 41 Iowa, 241. Illinois — Husband has dower, and until assignment his interest is not sub- ject to alienation : Heisen v. Heisen, 34 N. E. Bep. 597 ; 145 HI. 658. In some States dov7er and curtesy have been enlarged to a one- third interest in fee simple, retaining their other essential features. Holmes v. Holmes. Supreme Court of Minnesota, 1893. 54 Minn. 352. Vanderburgh, J. The plaintiff's cause of action is for a divorce on the ground of the adultery of the defendant. In her complaint she demands that she be adjudged to have her dower in defendant's lands as if he were dead, and under this relief she claims to be entitled to hold the homestead of defendant for life, and an equal undivided third of all other lands of which he was during coverture seised, and to be allowed alimony. The Court adjudged the plaintiff entitled to a divorce on the ground stated, and awarded ali- mony, but refused dower, or the provision in lieu of dower, provided for by the present statute. There is no doubt that 1878 G. S., ch. 62, § 24, secures to the wife, in the cases specified, an unqualified right to dower in the lands of her husband as if he were dead. By the statute in force when this section was enacted, the widow's right of dower, substantially as at common law, was pre- served to her : 1851 R. S., ch. 49, § 1. By Laws 1875, ch. 40, estates in dower eo nomine, as then existing, were abolished, and, in lieu thereof, provision was made for a life estate in the homestead of the husband and an undivided one-third of all other lands of which he might die seised. By Laws 1876, ch. 87, and again in the Probate Code, enacted in 1889, the sub- ject is revised, and, with some changes, the provisions of the Act of 1875 are retained, and incorporated under the head of "Title to Real Property by Descent." Now, under § 24, in question, is the rule to be applied as the term " dower " was IN REALTY. 739 ■used and understood when that section was enacted, or is it to be given an enlarged and 'extended application, so as to embrace the present liberal provisions for the wife made out of his estate on the death of her husband ? Estates in dower have been changed and enlarged in many of the States by legislative enactment (Noel ■;;. Ewing, 9 Ind. 46 ; Smith's Appeal, 23 Pa. St. 9 ; Beard v. Knox, 5 Cal. 252) ; so that it has come to be understood generally as the provision in the nature of dower which the law makes for the wife from the estate of her deceased husband, and it is contingent only upon the seisin of the husband and his death, and beyond his power to divest. The present provisions for the wife, above specified, were clearly intended to be in lieu of dower, and retain ' its essential features. The interest thereby created is inchoate upon the marriage and seisin, and becomes absolute at his death, and is thus distinguishable from other provisions made for her as heir in certain contingencies. Her estate extends to the homestead and one-third of other lands of which her husband is seised during coverture, and cannot be divested without her consent. Unless it be held that any material change in the law of dower as it stood when 1878 G. S., ch. 62, § 24, was enacted would operate as a repeal of that section, or make it inoperative, we are of the opinion that the term " dower " therein must be interpreted to extend to the present statutory provisions referred to. The estate under consid!eration, thus created for the benefit of the wife, has always since the Act of 1875 been treated by this Court as in the nature of dower, and governed by the same rules of legal construction : In re Gotzian, 34 Minn. 159 (24 N. W. Rep. 920) ; In re Rausch, 35 Minn. 293 (28 N. W. Rep. 920) ; McGowan V. Baldwin, 46 Minn. 479 (49 N. W. Rep. 251) ; Dayton ^. Corser, 51 Minn. 406 (53 N. W. Rep. 717). When, therefore, a divorce is ordered for the cause of adultery committed by the husband, the wife will be entitled to dower, as provided by the present statutes on the subject, as if he were dead The decree of divorce will establish her right to the estate, but we do not think the statute contemplates that it should be set 740 ILLUSTRATIVE CASES off or assigned to her in the divorce proceedings. Nor would such decree be the basis of a writ of assistance to put her in possession (2 Bish. Mar. & Div., ed. 1801, §§ 1522, 1639); but, if possession is denied her, she can recover it, and will be entitled to partition as in other cases. As she was not entitled to such relief in this action, the judgment must be affirmed. An undivided one-third of his lands " descends to " and becomes " vested in " the widow on the death of the husband : In re Gotzian, 34 Minn. 159. It would seem that the widow's title becomes perfect and alienable on the death of the husband, without a formal assignment, although a partition may be necessary : Holmes v. Holmes, mpra. See, also, In re Eausch, 35 Minn. 291 ; McGowan v. Baldwin, 46 Minn. 479 ; Dayton v. Corser, 51 Minn. 406. J Ezecation. Title may be transferred by sale on ezecution, but it does not pass to the purchaser, In some States, until the time to redeem expires. LiNDLEY V. CkOMBIE. Supreme Court of Minnesota, 1883. 31 Minn. 232. GiLFiLLAN, 0. J. Taylor, in 1876, caused real estate to be sold on execution in his favor, and became the purchaser. Before the time for redemption expired, he executed a deed to Baldwin, whereby he did "grant, bargain, sell, release, and quit-claim " to him " all right, title, interest, claim, or demand in or to " the real estate. There was no redemption, and the question is, in whom, in Taylor or in Baldwin, did the title vest at the end of the time for redemption? The statute provides (Gen. St. 1878, c. 66, § 322), that, at the end of the time for redemption, the certificate of sale shall operate as a conveyance " to the purchaser or his assigns " of all the right, title, and interest of the person whose property is sold, in and to the same, at the date of the lien upon which the same was sold. From this it is apparent — First, that the title of the IN REALTY. - 741 debtor does not pass until the time to redeem expires ; second, that, notwithstanding such title does not pass at once on the sale, yet the purchaser acquires by the incomplete sale a right which, by whatever name it may be called, is assignable ; and third, that if such right is assigned, the title, when it passes by lapse of time and non-redemption, vests, by virtue of the statute, in the assign of such right. The decisions of this Court are to the eifect that the title of the mortgagor or judgment debtor does not pass to the pur- chaser till the time to redeem expirest: Daniels v. Smith, 4 Minn. 117 (172) ; Donnelly v. Simonton, 7 Minn. 110 (167) ; Horton v. Maffitt, 14 Minn. 216 (289) ; Loy v. Home Ins. Co., 24 Minn. 315. In some of these cases, the language in the opinions used to express this goes further, and indicates that till then the purchaser acquires no rights or interests that he can convey. This language may have had, and probably has had, the effect to mislead as to what was really decided. But none of them holds that he does not acquire a right which he can assign. If, in this case, the description in the deed is sufficient to include such a right, it passed by the deed to Baldwin, and the title of the debtor passed to him when the time to redeem ex- pired. Is it a right, interest, claim, or demand in or to the land sold ? It certainly is not a claim against any person, nor right or interest to or in anything other than the land. The statute (Gen. St. 1878, c. 66, § 327), treats it as some sort of interest in land. " The interest acquired upon any sale is subject to the lien of any attachment or judgment duly made or docketed against the person holding the same, as in the case of real property, and may be attached or sold upon execu- tion in the same manner." The vendee in a recorded contract to convey real estate has, in law, no title or estate in the land ; he has only a right that the title shall be vested in him accord- ing to the terms of the contract. Could any one claim that the deed of such vendee, in the terms of this deed, would not show an intent to pass the vendee's right under the contract, especially if it were the only right he had with respect to the 742 ILLUSTRATIVE CASES land ? We think not. Nor do we see how it can be claimed that Taylor's deed does not show an intent to pass a somewhat similar right, a right to have the title vest in him by lapse of time, if not prevented by redemption. Judgment reversed, and let the Court below enter judgment for the defendant. Title passes on execution at the end of the time for redemption : Parke v. Hush, 29 Minn. 434. Formerly it passed on the day of sale : Dickinson v. Kinney, 5 Minn. 409. Title by Judicial Decree. Title to land may be transferred from one person to another by judicial action ; as, in foreclosure proceedings, bankruptcy, or by probate proceedings, as in case of executors, administrators, and guardians. Mortgage Foreclosure. The Court may, at the request of the purchaser at the foreclosure sale, or of his assigns, vest the title by final decree in any person the applicant may name. Dodge v. Allis. Supreme Court of Minnesota, 1880. 27 Minn. 376. GiLFiLLAN, C. J. Appeal from what the statute (Gen. St. 1866, c. 81, § 33 ; Gen. St. 1878, c. 81, § 36,) designates a final decree in an action to foreclose a mortgage. The objection is made by motion to dismiss, that an appeal will not lie from such a decree ; or, if one will lie, it must be taken as from an order — within thirty days. Whether it is to be deemed a judgment or order, inasmuch as legal rights are or may be determined by it, there is undoubtedly a right of appeal ; and, although it is not designated as a judgment but as a decree, as it has in its effect upon the matters determined by it, and in the mode of its entry, all the essentials of a judg- IN REALTY. 743 ment, it should be appealed from as such. The motion to dismiss is denied. An important question in the case is, can this Court, upon an appeal from the so-called " final decree," consider alleged errors in the judgment directing the sale, or must an appeal from that judgment be brought to secure a review of it ? This must depend on the question which is to be deemed the final judgment determining the action, and settling the rights of the parties to it. The question is not difficult to answer. The judgment directing the sale (Gen. Stat. 1866, c. 81, § 26 ; 'Gen. St. 1878, c. 81, § 29,) adjudges the amount due, with costs and disbursements, and the sale of the mortgaged prem- ises or some part thereof to satisfy said amount, and directs the sheriff to proceed and sell the same, etc. This judgment determines all the issues in the action, and provides just the relief to which the plaintiff is entitled. When it is entered, all controversy as to the respective rights between the plaintiff and the several defendants with respect to the mortgage and the right to enforce it is determined. All that follows it — the sale, report of sale, confirmation, etc. — are merely to carry into effect and enforce the determination of the rights of the parties which the judgment makes. The " final decree " does not determine any issue, nor any of the merits between the parties, nor adjudicate any of the rights between them as parties, nor contain any provision which affects the relief to which the plaintiff is entitled. Before it can be entered, plaintiff must have got all the relief he is entitled to in the action. The property has been sold, and the proceeds are presumed to have been applied as directed by the judgment. It is not a judgment upon the matters involved in the action. The application for the decree and the entering of it, though done in the action, is not a proceeding between the plaintiff and the defendants or any of them, or between any of tho parties to the action, as parties. It is a proceeding on behalf of the purchaser, whoever he may be, as purchaser. The decree is for his benefit, and not for the benefit of any party to the action. Any controversy which may arise on the appli- 744 ILLUSTRATIVE CASES cation must be between him and one or more of the parties.. No controversy between the parties to the action, in their char- acter of such parties, can then be determined. The provision for such a " final decree " may at first sight seem singular, yet it is undoubtedly a wise provision. It is intended to determine in the original action, as between the purchaser and all the parties to the judgment for the sale, that there has been no redemption, and to aSbrd to the purchaser record' evidence in the way of a decree or judgment, conclusive as to all the parties, that the title is in the purchaser free from any right to redeem. On an appeal from the " final decree " no error can be alleged against the judgment for a sale. To review that judgment an appeal must be taken from it. The judgment for the safe was entered November 6, 1876,, the sale under it made December 23, 1876, and the report of sale was confirmed January 6, 1877. As appears bj' the report, the plaintiffs in the action were the purchasers. Appli- cation by the plaintiffs for the final decree was noticed for October 28, 1879, long after all rights of redemption were barred by lapse of time. Tlie decree was entered the sama day. The decree is, of course, taken to be correct ; a party seeking to reverse it must show that it is erroneous, and* that the error prejudices him. The defendant AUis, appellant here, alleges it to be erro- neous, in that it adjudges the title to be in defendant Davidson,, who was not the purchaser ; and it does not appear that he was the assignee of the purchaser. The decree was entered on the motion of the plaintiffs, who were the purchasers. So far as appears, they were the only persons who then had any interest in the title which passed by the sale. If they con- sented that the title should, nevertheless, be vested by the decree in any other person, it was a matter between them and such person. It is not apparent how any other party to the action, whose right of redemption was then barred, could be prejudiced by it. Appellant claims that, to justify the decree in vesting the title in Davidson there must have been an assignment to him from the purchaser, and that such assign- IN REALTY. 745 ment to him, he being the debtor and mortgagor, would have operated as in favor of appellant, his grantee of an undivided half of the property subsequent to the mortgage, as a redemption from the sale ; and in that case a decree vesting the entire title in Davidson as against him could not be entered, and the entering it was therefore error prejudicial to> him. This argument rests, not on a state of facts shown by the record, but one which has only assumption and conjecture to sustain it. First, it does not appear that, prior to the actual entry of the decree, there was anything between plaintiffs and Davidson in the nature of an assignment. Further, if that had appeared, there was nothing to show it was made at such a time that it would take effect as a redemption, nor is there anything to show that Davidson owed Allis any duty to redeem. In the pleadings between plaintiffs and Allis in the action to foreclose, a conveyance of an undivided half of the property by Davidson to him, subsequent to the mortgage, is alleged by Allis in his answer, and admitted by plaintiffs in their motion for judgment. But that did not conclude Davidson, nor would the answer of Allis and the admission of plaintiffs be evidence of the fact as against him. In that action no issue of the kind was tendered to him, and no situation of the action prior to the judgment for sale occurs to us in which it could be, so that it could be litigated and determined between them. It is also objected that the notice of application for the decree was given by plaintiffs, and that under that notice only a decree vesting the title in them, and not one vesting it in some one else, could be entered. The purchaser or his assigns should make the application, and, of course, he must give the notice. A notice by one not holding, at the time of serving it, that position, would not do. Whether, upon his assigning after the notice, the proceeding would have to drop and be re- newed by the assignee, or the application could still be made by the party serving the notice, for the benefit of his assignee we did not find it necessary to determine. But we see no reason why, the notice and application being served and made 746 ILLUSTKATIVE CASES by the right person, he may not on the hearing request a decree vesting the title in any one he may name, and the decree be so entered — certainly, so far as the other parties in the action, in their character as such parties, are concerned. Decree affirmed. Minn. Gen. Stats. 1878, ch. 81, J 36. The District Court has power to pass title to real estate by judgment, without any other act to be done on the part of the defendant, when such a.ppears to be the proper mode to carry its judgments into effect ; and such judgment being recorded in the office of the register of deeds of the county where such real estate is situated, shall, while in force, be as effectual, to transfer the same as a deed of the defendant: Gen. Stats. Minn. 1878, :p. 818, § 32. Bankrnptcy. The rale caveat emptor applies at judicial sales, both as to the title and the condition of the property. BaKRON V. MULLIN. Supreme Court of Minnesota, 1875. 21 Minn. 374. GiLFiLLAN, C. J. Henry Chaffee, Charles L. Snyder, and this defendant were copartners, and in their copartnership business owned and used real and personal property. Snyder died, and after his death Chaffee brought suit against this de- fendant and Margaret Snyder, the widow and administratrix, and Harriet Snyder, the sole heir of the deceased partner, to close up the partnership affairs. By the judgment in that suit this plaintiff was appointed receiver, and directed to sell all the real and personal propertj' of the firm, and, pursuant to that direction, he ofl:ered for sale at auction, and sold, in one parcel, as the property of the firm. Lots 2, 3, 4, and 5, Block 75, in the town of Faribault, with the buildings, machinery, etc. This defendant purchased, at the price of $6,800, two-thirds to be paid down, and the other third to be paid in one year, with IN REALTY. 747 interest at the rate of seven per cent, per annum, and to be secured by mortgage on the property. The receiver made his report of sale, specifying the above as the property sold, and the price and terms, and, on the stipulation of all the parties to the suit, the report was confirmed. The receiver tendered a deed, and demanded performance by defendant, which he re- fused. Upon these facts the complaint is based, and demands judgment for $6,800, with interest from April 1, 1873, the date of the tender of the deed. The Court below directed a verdict for the $6,800, with interest from that date at seven per cent, per annum, and the jury found accordingly. On the trial the defendant asked leave to amend his answer and set up certain matters of defense not previously pleaded. The application was denied. It was addressed to the sound dis- cretion of the Court, and we see no reason to think that the dis- cretion was not properly exercised. The defendant insisted, at the trial, that the receiver was not authorized by the judgment to sell Lot 2. He did not claim that it was not the property of the firm ; the answer admits that it was. The judgment did not specifically describe the prop- erty to be sold, but directed a sale of all the real estate of the firm, which is sufficient authority to sell Lot 2, if, as is not denied, that lot belonged to the firm. And the fact that the com- plaint, in describing the property of the firm, does not mention Lot 2, does not control the judgment. He also insisted that, in the parcel offered for sale and sold by the receiver, and bought by him for the $6,800, there was a piece other than the four lots described, and that such other piece was not included in the deed tendered by the receiver. This might have been a good defense, as a man is not obliged to receive any other than the precise property which he pur- chased, had it not been for the confirmation of the report of sale. The report specifies, as sold to defendant, only Lots 2, 3, 4, and 5. The defendant might have opposed, and, if he claimed that it was incorrect, he ought to have opposed the con- firmation of the report. As he acquiesced in it, he is deemed to have adopted it, and is bound by the order of the Court con- 748 ILLUSTRATIVE CASES firming it : Smith v. Arnold, 5 Mason, 414, 420 ; and this is especially so after the report has been confirme,d, pursuant to his written consent that it shall be. The defendant objects to comply with the terms of his pur- chase on the further ground that the widow of Snyder has a vested right of dower in an undivided one-third of the prop- erty, and the wife of Chaffee an inchoate right of dower in an undivided third, and that the receiver did not procure any re- lease of those rights. The rule caveat emptor applies to pur- chasers at judicial sales : Bashore v. Whisler, 3 Watts, 490 ; Fojt V. Mensch, 3 "Watts & Serg. 444 ; King v. Gunnison, 4 Pa. St. 171 ; England v. Clark, 4 Scam. 486. The purchaser at such sales knows that nothing can be sold, except the interest of the parties to the suit, and it is for him to ascertain, before pur- chasing, what that interest is. This rule applies not only in respect to the title, but to the condition of the property. The defendant alleges in his answer, that, during the winter prior to the sale, the roof of the building had, by the action of frost, snow and ice thereon, become, and at the time of the sale and confirmation was, wholly ruined and destroyed, and that at the time of the sale he was ignorant of such condition, and that at such times, by reason of the snow and ice, it was impossible for him to ascer- tain such condition. No fraud or misrepresentations were alleged. Under the rule caveat emptor this is no defense, in whole or in part, to the suit for the price bid. Two-thirds of the price bid was to be paid at once. The other third was, by the terms of the sale, to be paid in one year. The suit was brought before the year expired, and it it insisted that plaintiff cannot, in this suit, recover that third. Where prop- erty is sold, to be paid for at a future time, no suit can, as a general thing, be brought on the promise to pay, till the time stipulated ; but where the purchaser agrees to give security for the deferred payment, and fails to do so, a suit may be main- tained for breach of the agreement to give the security ; and in such action the damages are the value of the security agreed upon — prima facie, the amount of the sum to be secured : IN REALTY. 749 Hinehart v. Olwine, 5 Watts & Serg. 157 ; Hanna v. Mills, 21 Wend. 90. In this case the plaintiff was entitled to recover two-thirds of the price bid, because it was payable at once, and a sum equal to the other third, because it is presumed that the security, if given as agreed upon, would have been worth that to plaintiff. ^ The order denying a new trial is affirmed. m Administrators and Executors. CUREAN V. KUBY. Supreme Court of Minnesota, 1887. 37 Minn. 330. Vandekbukgh, J. There seems to be no basis for this appeal. The action is brought to set aside an administrator's sale and subsequent conveyances, and all proceedings in the Probate Court upon which the sale was founded. The pro- ceedings are upon their face admitted to be regular, and in conformity with the statute. There is no question raised as to the regularity of the appointment of the administrator, or that he was in fact licensed to sell the property in controversy at private sale, in pursuance of the provisions of the General Statutes (as amended by Laws 1881, c. 43), by the Probate Court having jurisdiction ; and it does not appear that the order of license to sell required that notice of sale should be given. The administrator also gave the bond and took the oath required by law, and it is not alleged or pretended that the premises were not sold as required by law, or that the present holders did not purchase them in good faith. But two points are made. The first, in respect to the notice of sale, is already disposed of. No notice was required in the case of a private sale, unless expressly directed. 750 ILLUSTEATIVE CASES 2. The plaintiff claims that the demurrer admits that there were in fact no debts against the estate, though proved before the Court, and that the petition of the administrator for license to sell the real estate was false in that respect, also. that the order to show cause was never served upon the persons inter- ested in the estate, and that the record reciting and showing such service is also false. (a) These matters were, however, each adjudicated and de- termined by the Probate Court, on the return-day of the order, upon the allegations and proofs as shown by the record. As to these questions, the record imports verity : Davis v. Hud- son, 29 Minn. 27 (11 N. W. Rep. 136). (6) The Court had acquired jurisdiction of the estate, and the administration thereof, and still retained it. The sale could not, therefore, be attacked for irregularities, omissions, or errors, in the proceedings which culminated in the license : Eumrill v. First Nat. Bank, 28 Minn. 202 (9 N. W. Rep. 731). In the case cited the petition for license was defective in several particulars ; for instance, it showed no debts of the in- testate. But it was held that under the provisions of Gen. St. 1878, c. 57, § 51, the sale could not be avoided for such cause. The same rule is applicable to this case. Order affirmed. McGowan v. Baldwin, 46 Minn. 477 ; Streeter v. Wilkinson, 24 Minn. 288. U Guardian's Sale. West Duluth Land Co. v. Kurtz. Supreme Court of Minnesota, 1891. 45 Minn. 380. Mitchell, J. Action to determine adverse claim to real property situated in St. Louis County. The defendants claim title as heirs-at-law of one George Leidner, who died in I860, IN REALTY. 751 intestate, and seised of the property in controversy. Tlie plaintiff claims title from the same source, under a sale by the guardian of the defendants (then minors) under a license from the Probate Court of St. Louis County. The guardian who made this sale was the mother of the defendants, who was appointed by the Probate Court of that county March 2, 1872, the defendants being residents of Wisconsin, where they lived with their mother. The defendants assail the validity both of the appointment of the guardian and of the sale itself. The ground of attack upon the appointment of guardian is that the Probate Court in Minnesota had no jurisdiction to appoint a general guardian for non-resident minors. That the Court had no jurisdiction to appoint a guardian of the persons of non- resident minors is unquestionably true, but it is equally true that the statute authorizes a Probate Court to appoint a guar- dian of any estate which a non-resident minor may have iu this State, and the validity of such statutes is well settled. Jurisdiction to appoint a guardian exists as well when the infant has property in the State where the jurisdiction is sought to be exercised as when he is domiciled therein. It rests upon a like basis in both cases, viz., the right and duty of a government to take care of minors, as respects either person or property. The fact that the appointment in this case was too broad, to wit, over both person and estate, did not render it invalid in respect to the estate which the minors had within the jurisdiction of the Court : Davis v. Hudson, 29 Minn. 27 (11 N. W. Rep. 136). The contention of defendants, that a guardian of the estate of the minors within the State could only be appointed after a general guardianship in the State of the domicile, and as ancillary thereto, is wholly in- correct. The statute imposes no such condition, and it would be of doubtful constitutionality if it did. 2. This brings us to the grounds of attack against the sale itself. No defects or irregularities will invalidate the sale, un- less they go to one or more of the five essentials specified in Gen. St. 1878, c. 57, § 51. The record in this case shows that the guardian was licensed to make this sale by the Probate 752 ILLUSTRATIVE CASES Court by which she was appointed and in the county in which the land was situated ; consequently it was the Court " having jurisdiction." Also that the guardian gave a bond, which was approved by the Judge of Probate, and took the oath prescribed by statute. This oath having been found among the regular files of the Probate Court, the fact that the Judge had omitted or neglected to indorse upon it the fact and date of its filing was not material. There is no proof, and there is no presump- tion, that the oath was spurious or that it was surreptitiously placed in the files after the sale. It shows by its date that it was made before. We fail to discover any defects, or even irregularities, in the notice of the time and place of sale. All that the statute requires is that the notice be posted and pub- lished for three weeks next before the sale. The guardian's report of sale, which was verified, states in detail a compliance with every requirement both of statute and of the license to sell, and a sale according to the notice at public auction, and the sale was duly confirmed by the Court. These seem to cover "the whole ground, so as to leave no available objection to the sale in this collateral action. We have made no reference to the alleged insufficiency of the notice of the hearing of the application for license to sell, for, even if the sale could be avoided on any such ground, the objections to the notice seem to be based upon the misappre- hension of counsel that the statute required it to be published six weeks instead of only four, as the fact is. What we have said renders it unnecessary to consider the effect or applicability of the statute of limitations (Laws 1889, c. 46, § 204) invoked by plaintiff. Judgment affirmed. Dawson v. Holmes, 30 Minn. 107 ; Menage v. Jones, 40 Minn. 254 ; Eich- ardaon v. Folwell, 49 Minn. 210; Burrell v. Railway Co., 43 Minn. 363; White V. Iselin, 26 Minn. 487. IN KEALTY. 753 2 By Act of Parties. Title acquired by act of parties is of two kinds : (1) By grant, pub- lic or private ; (2) by devise. a Public Orant. Title by public grant is that derived from the government, either national or state. National. MOOEE V. ROBBINS. Supreme Court of the United States, 1877. 96 U. S. 530. Mr. Justice Miller. This case is brought before us by a "writ of error to the Supreme Court of the State of Illinois. In its inception, it was a bill in the Circuit Court for De Witt Count}', 'to foreclose a mortgage given by Thomas I. Bunn to his brother Lewis Bunn, on the south half of the southeast quarter and the south half of the southwest quarter of section 27, township 19, range 3 east, in said county. In the progress of the case, the bill was amended so as to allege that C. H. Moore and David Davis set up some claim to the land ; and they were made defendants, and answered. Moore said that he was the rightful owner of forty acres of the land mentioned in the bill and mortgage, to wit, the southwest quarter of the southwest quarter of said section, and had the patent of the United States giving him the title to it. Davis answered that he was the rightful owner of the south- east quarter of said southwest quarter of section 27. He al- leges that John P. Mitchell bought the land at the public sale of lands ordered by the President for that district, and paid for it, and had the receipt of the register and receiver, and that it was afterward sold under a valid judgment and 48 4 754 ILLUSTRATIVE CASES execution against Mitchell, and the title of said Mitchell came by due course -of conveyance to him, said Davis. It will thus be seen, that, while Moore and Davis each assert title to a different forty acres of the land covered by Bunn's mortgage to his brother, neither of them claim under or in privity with Bunn's title, but adversely to it. But as both parties assert a right to the land under pur- chases from the United States, and since their rights depend upon the laws of the United States concerning the sale of its public lands, there is a question of which this Court must take cognizance. As regards Moore's branch of the case, it seems to us free from difficulty. The evidence shows that the forty acres which he claims was struck off to him at a cent or two over $2.50 per acre, at a public land sale, by the officers of the land district at Dan- ville, 111., November 15, 1855 ; that his right to it was con- tested before the register and receiver by Bunn, who set up a prior pre-emption right. Those officers decided in favor of Bunn ; whereupon Moore appealed to the Commissioner of the General Land Office, who reversed the decision of the register and receiver, and on this decision a patent for the land was issued to Moore, who has it now in his possession. Some time after this patent was delivered to Moore, Bunn appealed from the decision of the Commissioner to the Secre- tary of the Interior, who reversed the Commissioner's decision and confirmed that of the register and receiver, and directed the pa,tent to Moore to be recalled, and one to issue to Bunn. But Moore refused to return his patent, and the Land Depart- ment did not venture to issue another for the same land ; and so thfere is no question but that Moore is vested now with the legal title to the land, and was long before this suit was com- menced. Nor is there, in looking at the testimony taken before the register and receiver, and that taken in the present suit, any just foundation for Bunn's pre-emption claim. We will consider this point more fully when we come to the Davis branch of the case. IN REALTY. 755 Taking this for granted, it follows that Moore, who has the legal title, is in a suit in chancery decreed to give it up in favor of one who has neither a legal nor an equitable title to the land. The Supreme Court of Illinois, before whom it was not pre- tended that Buun had proved his right to a pre-emption, in their opinion in this case place the decree by which they held Bunn's title paramount to that of Moore on the ground that to the officers of the Land Department, including the Secretary of the Interior, the Acts of Congress had confided the deter- mination of this class of cases ; and the decision of the secre- tary in favor of Bunn, being the latest and the final authori- tative decision of the tribunal having jurisdiction of the contest, the Courts are bound by it, and must give effect to it : Robbins v. Bunn, 54 111. 48. Without now inquiring into the nature and extent of the doctrine referred to by the Illinois Court, it is very clear to us that it has no application to Moore's case. While conced- ing for the present, to the fullest extent, that when there is a question of contested right between private parties to receive from the United States a patent for any part of the public land, it belongs to the head of the Land Dapartment to decide that question, it is equally clear that when the patent has been awarded to one of the contestants, and has been issued, deliv- ered, and accepted, all right to control the title or to decide on the right to the title has passed frora the land office. Not only has it passed from the land office, but it has passed from the Executive Department of the government. A moment's con- sideration will show that this must, in the nature of things, be so. We are speaking now of a case in which the officers of the department have acted within the scope of their authority. The offices of register and receiver and commissioner are created mainly for the purpose of supervising the sales of the public land ; and it is a part of their daily business to decide when a party has by purchase, by pre-emption, or by any other recog- nized mode, established a right to receive from the government a title to any part of the public domain. This decision is sub- 756 ILLUSTRATIVE CASES ject to an appeal to the secretary, if taken in time. But if no such appeal be taken, and the patent issued under the seal of the United States, and signed by the President, is delivered to and accepted by the party, the title of the government passes with this delivery. With the title passes away all authority or control of the Executive Department over the land, and over the title which it has conveyed. It would be as reasonable to hold that any private owner of land who has conveyed it to another can, of his own volition, recall, cancel, or annul the instrument which he has made and delivered. If fraud, mis- take, error, or wrong has been done, the Courts of Justice pre- sent the only remedy. These Courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals ; and if the government is the party injured, this is the proper course. "A patent," says the Court, in United States v. Stone, 2 Wall. 525, " is the highest evidence of title, and is conclusive as against the government and all claiming under junior patents or titles, until it is set aside or annulled by some judi- cial tribunal. In England, this was originally done by scire facias; but a bill in chancery is found a more convenient remedy." See, also, Hughes v. United States, 4 Wall. 232 ; s. c. 11 How. 552. If an individual setting, up claim to the land has been injured, he may, under circumstances presently to be consid- ered, have his remedy against the party who has wrongfully obtained the title which should have gone to him. But in all this there is no place for the further control of the Executive Department over the title. The functions of that department necessarily cease when the title has passed from the government. And the title does so pass in every instance where, under the decisions of the officers having authority in the matter, a conveyance, generally called a patent, has been signed by the President, and sealed, and delivered to and accepted by the grantee. It is a matter of course that, after this is done, neither the secretary nor any other executive officer can entertain an appeal. He is abso- IN REALTY. 757 lutely without authority. If this were not so, the titles derived from the United States, instead of being the safe and assured evidence of ownership which they are generally supposed to be, would be always subject to the fluctuating, and in many cases unreliable, action of the land office. No man could buy of the grantee with safety, because he could only convey subject to the right of the officers of the government to annul his title. If such a power exists, when does it cease ? There is no statute of limitations against the government; and if this right to reconsider and annul a patent after it has once become perfect exists in the Executive Department, it can be exercised at any time, however remote. It is needless to pur- sue the subject further. The existence of any such power in the Land Department is utterly inconsistent with the uni- versal principle on which the right of private property is founded. The order of the Secretary of the Interior, therefore, in Moore's case, was made without authority, and is utterly void, and he has a title perfect both at law and in equity. The question presented by the forty acres claimed by Davis is a very different one. Here, although the government has twice sold the land to different persons and received the money, it has issued no patent to either, and the legal title remains in the United States. It is not denied, however, that to one or the other of the parties now before the Court this title equitably belongs ; and it is the purpose of the present suit to decide that question. The evidence shows that on the same day that Moore bought at the public land sale the forty acres we have just been considering, Mitchell bought in Hke manner the forty acres now claimed by Davis; to wit, November 15, 1865. He paid the sum at which it was struck off to him at public outcry, and received the usual certificate of purchase from the register and receiver. On the 20th day of February, 1856, more than three months after Mitchell's purchase, Thomas I. Bunn appeared before the same register and receiver, and asserted a right, by reason of a pre-emption commenced on the 8th day 758 ILLUSTRATIVE CASES of November, 1855, to pay for the south half of the southwest quarter and the south half of the southeast quarter of section 27, which includes both the land of Moore and Davis in con- troversy in this suit, and to receive their certificates of pur- chase. They accepted his money and granted his certificate. A contest between Bunn on the one side, and Moore and Mitchell on the other, as to whether Bunn had made the necessary settlement, was decided by those officers in favor of Bunn ; and on appeal, as we have already shown, to the com- missioner, this was reversed, and finally the Secretary of the Interior, reversing the commissioner, decided in favor of Bunn. But no patent was issued to Mitchell after the com- missioner's decision, as there was to. Moore ; and the secretary, therefore, had the authority, undoubtedly, to decide finally for the Land Department who was entitled to the patent. And, though no patent has been issued, that decision remains the authoritative judgment of the department as to who has the equitable right to the land. The Supreme Court of Illinois, in their opinion in this case, come to the conclusion that this final decision of the secretarj' is not only conclusive on the department, but that it also ex- cludes all inquiry by Courts of Justice into the right of the matter between the parties. The whole question, however, has been since that time verj'' fiilly reviewed and considered by this Court in Johnson v. Towsley, 13 Wall. 72. The doctrine announced in that case, and repeated in several cases since, is this : That the decision of the officers of the Land Department, made within the scope of their authority on questions of this kind, is in general conclusive everywhere, except when recon- sidered by way of appeal within that department ; and that as to the facts on which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in Courts of Justice, when the title afterward comes in question. But that in this class of cases, as in all others, there exists in the Courts of Equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and in cases where it is clear that those IN REALTY. 759 officers have, by a mistake of the law, given to one man the land which on the undisputed facts belonged to another, to give appropriate relief. In the recent case of Shepley et al. v. Cowan et al, 91 U. S. 340, the doctrine is thus aptly stated by Mr. Justice Field : " The officers of the Land Department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands, with a view to secure rights of pre-emption. If they err in the construc- tion of the law applicable to any case, or if fraud is practiced upon them, or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the Courts when a controversy arises between private parties founded upon their decisions ; but, for mere errors of judg- ment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department." Applying to the case before us these principles, which are so well established and so well understood in this Court as to need no further argument, we are of opinion, if we take as proved the sufficiency of the occupation and improvement of Bunn as of the date which he alleged, his claim is fatally defective in another respect in which the officers of the Land Department were mistaken as to the law which governed the rights of the parties, or entirely overlooked it.. In the recent case of Atherton v. Fowler (supra, page 513), we had occasion to review the general policy and course of the government in disposing of the public lands, and we stated that it had formerly been, if it is not now, a rule of primary importance to secure to the government the highest price which the land would bring by offering it publicly at competi- tive sales, before a right to any part of it could be established by private sale or by pre-emption. In the enforcement of this policy, the Act of September 14, 1841, which for the first time established the general principle of pre-emption, and which has remained the basis of that right to this day, while it allowed persons to make settlements on the public lands as 760 ILLUSTEATIVE CASES soon as the surveys were completed and filed in the local ofiices, affixed to such a settlement two conditions as affecting the right to a pre-emption. One of these was that the settler should give notice to the land office of the district, within thirty days after settlement, of his intention to exercise the right of pre-emption, and the other we will give in the lan- guage of the fourteenth section of that Act : " This Act shall not delay the sale of any of the public lands of the United States beyond the time which has been or may be appointed by the proclamation of the President, nor shall any of the provisions of this Act be available to any person who shall fail to make the proof of payment and file the affidavit required, before the commencement of the sale aforesaid :" 5 Stat. 457. There can be no misconstruction of this provision, nor any doubt that it was the intention of Congress that none of the liberal provisions of that Act should stand in the way of a sale at auction of any of the public lands of a given district where the purchase had not been completed by the payment of the price before the commencement of the sales ordered by the President's proclamation. We do not decide, because we have not found it necessary to do so, whether this provision is applicable under all the pre-emption laws passed since the Act of 1841, though part of it is found in the Revised Statutes, § 2282, as part of the existing law. But we have so far exam- ined all those laws enacted prior to November, 1855, the date of Mitchell's purchase, as to feel sure it was in full operation at that time. The Act of March 3, 1853, extending the right of pre-emption to the alternate sections, which the govern- ment policy reserved in its numerous grants to railroads and other works of internal improvement, required the pre-emptor to pay for them at $2.50 per acre, before they should be offered for sale at public auction : 10 Stat. 244. This was only two years and a half before these lands were sold to Mitchell, and they were parts of an alternate section reserved in a railroad grant. That statute, in its terms, was limited to persons who had already settled on such alternate sections. IN REALTY. 761 and it may be doubted whether any right of pre-emption by a settlement made afterward existed under the law. But it is unnecessary to decide that point, as it is beyond dispute that it required in any event that the money should be paid before the land was offered for sale at public auction. The record of this case shows that, while Bunn's pre-emption claim comes directly within the provisions of both statutes^ they were utterly disregarded in the decision of the Secretary of the Interior, on which alone his case has any foundation. We have no evidence in this record at what time the Presi- dent's proclamation was issued, or when the sales under it began at which Mitchell purchased. These proclamations are not published in the statutes as public laws, and this one is not mentioned in the record. But we know that the public lands are never offered at public auction until after a procla- mation fixing the day when and the place where the sales begin. The record shows that both Moore and Mitchell bought and paid for the respective forty-acre pieces now in contest, at public auction. That they were struck off to them a few cents in price above the minimum of $2.50, below which these alternate sections could not be sold, and that this was on the 15th day of November, 1855. These public sales were going on then on that day, and how much longer is not known, but it might have been a week, or two weeks, as these sales often continue open longer than that. Bunn states in his application, made three months after this, that his settlement began on the 8th of November, 1855. It is not apparent from this record that he ever gave the notice of his intention to pre-empt the land, by filing what is called a declaration of that intention in the land ofl&ce. There is a copy of such a declaration in the record accompanying the affidavit of settlement, cultivation, and qualification required of a pre-emptor, which last paper was made and sworn to February 20, 1856, when he proved up his claim, and paid for and received his certificate. There is nothing to show when the declaration of intention was filed in the office. Waiving this, however, which is a little obscure in the 762 ILLUSTRATIVE CASES record, it is very clear that Bunn " failed to make proof of payment, and failed to file the affidavit of settlement required, before the commencement of the sale" at which Mitchell bought. The statute declares that none of the provisions of the Act shall be available to any person who fails to do this. The affidavit and payment of Bunn were made three months ^after the land sales had commenced, and after these lands had been sold. The section also declares that the Act shall not delay the sale of any public land beyond the time which has been or may be appointed by the proclamation of the President. To refuse Mitchell's bid on account of any supposed settlement, •even if it had been brought to the attention of the officers, would have been to delay the sale beyond the time appointed, and would, therefore, have been in Anolation of the very statute under which Bunn asserts his right. Whatever Bunn may have done on the 8th of November, and up to the 15th of that month, in the way of occupation, settlement, improvement, and even notice, could not withdraw the land from sale at public auction, unless he had also paid or offered to pay the price before the sales commenced. It seems quite probable that such attempt at settlement as he did make was made while the land sales were going on, or a, few days before they began, with the purpose of preventing the sale, in ignorance of the provision of the statute which made such attempt ineffectual. At all events, we are entirely satisfied that the lands in con- troversy were subject to sale at public auction at the time Moore and' Mitchell bid for and bought them ; that the sale so made was by law a valid one, vesting in them the equitable title, with right to receive the patents ; and that the subsequent proceedings of Bunn to enter the land as a pre-emptor were unlawful and void. It was the duty of the Court in Illinois, sitting as a Court of Equit}^, to have declared that the mortgage made by Bunn, so far as these lands are concerned, created no lien on them, "because he had no right, legal or equitable, to them. IN REALTY. 763 The decree of the Supreme Court of that State must be re- versed, and the cause remanded to that Court for further pro- ceedings in accordance with this opinion ; and it is so ordered. Smelting Co. v. Kemp, 104 U. S. 636. Patent takes eflfect from date of issuance, not from delivery : Innes v. Craw- ford, 2 Bibb. 412 ; Smelting Co. v. Kemp, supra. State. Title by private grant is that which a person acquires by voluntary transfer from another by means of a deed. Chiles v. Conley's Heirs. Court of Appeals of Kentucky, 1834. 2 Dana, 21. Chief Justice Robertson. On a joint and several demise in the name of Arthur Conley's heirs, two of the lessors (now appellees) obtained a verdict and judgment, in ejectment, against William Chiles and others claiming under him, for two undivided seventh parts of a tract of lajid. Chiles claimed the land in virtue of a conveyance to him, in 1816, by the heirs of William Hays, who was a patentee, and he also held a deed from some of the lessors, but not from either of those who obtained the judgment. The precise sources, character, and extent of the claim of the appellees, do not clearly appear ; but we may infer that they rely chiefly on a conveyance from William Hays, the patentee, to one Taylor, in 1793, for a part of the land in con- troversy, and a deed from Taylor to themselves, in 1825 ; a paper purporting to be a deed from one Bridges to their an- cestor, in 1806, for another portion of the land ; a sale by the same patentee (Hays) to Bridges, in 1704, and continuous occupancy, under those contracts, from their dates, for a period exceeding twenty, but less than thirty years. In revising the judgment, the following points only will be specially noticed : 1. On the trial, the Circuit Court refused to permit the 764 ILLUSTRATIVE CASES appellants to read the record of a suit in chancery which had been prosecuted by the lessors against the appellant, Chiles, and against the heirs of William Hays and of Bridges and others, for adjusting the title to the land for which this suit was brought ; and that decision by the Circuit Judge is now complained of as erroneous. This Court need not decide whether every part of the record was so totally irrelevant as, on that ground, to be inadmissible as evidence in this case. Whether there is anything in any part (j)f it, that could operate in any way in counteracting any presumption of a conveyance from William Hays to Bridges, or whether, in other respects, it should tend, in any degree, to affect the claim of the appellees, are questions which we shall not consider ; because, however the record, if any portion of it were admissible, might operate, there being much of it that would be illegal and irrelevant, the Circuit Court did not err in refusing to admit the record as offered, even had a portion of it been, by itself, admissible for any purpose, or, in any degree, had been proper evidence. Moreover, two of the appellants were not parties to the chancery suit ; and unless the record of that suit would be legal evidence against them, it would not be admissible for them. The record does not show certainly what privity exists between those two of the appellants and Chiles, the other appellant. 2. On the motion of the appellees, the Circuit Court gave the following instruction to the jury : " That the deed from Hays' heirs to Chiles passes no title so far as said deed covers the land of Taylor ;" that is, the land which Hays had pre- viously conveyed to Taylor. As the deed to Taylor had never been recorded, it M'^as inoperative so far as Chiles was con- cerned, if he was a bona fide purchaser, for a valuable consid- eration, without notice. Whether he was such a purchaser, and whether at the time of his purchase (that is, when he paid the consideration and obtained his deed), he had notice, ex- press or implied, were questions which the jury, and not the Court for them, had a right to decide. The instruction of the Court was, therefore, erroneous. IN REALTY. 765 3. The Court also gave to the jury the following instruc- tion : " That the instrument of writing from William Bridges to Arthur Conley, dated the 6th of February, 1806, was a deed of bargain and sale, and sufficient to transfer the title of Hays to Conley." The Writing here, alluded to is as follows : " For value received, I bargain and sell unto Arthur Conley, my whole right of improvement made by John Brown, and all the land as far as Thomas Miller's claim interferes with my claim. Given under my hand and seal this 7th day of February, 1806. " William Bridges, [seal] " Test : " Thomas Boyd, \ " John Robinson." i The literal import of this writing is that of an executed agreement, or a conveyance of the title which the vendor held. It contains all the essential requisites of a conveyance in fee simple^ It is informal and unusually summary, when com- pared with the redundant, quaint,' and prolix style of modern conveyances by deed. But it is not more laconic or less com- prehensive than the ancient Saxon deeds, and is almost as formal and elaborate as the antiquated charters of enfeoff- ment ; and, indeed, its form and style are, in some respects, preferable to the repletion and repetitions which unnecessarily characterize and greatly deform modern deeds of conveyance. It is sealed, and signed, and attested properly ; it shows a valuable consideration ; it identifies the parties ; describes the land, and acknowledges an absolute executed sale in fee of the vendor's right. These constitute a deed of conveyance ; and therefore, as this instrument contains no provision or inti- mation to the contrary, this Court cannot, by any allowable process of interpretation, give to it any other character or effect than those of a deed of bargain and sale : Co. Lit. 7, a ; 4 Kent's Com. 460-1. But, nevertheless, the Circuit Court erred in instructing the jury that this deed from Bridges to Conley, " was sufficient to 766 ILLUSTRATIVE CASES transfer the title of Hays to Conley." It transferred no other title than that which Bridges held ; and there is no proof that he had acquired the legal right, unless a conveyance from Hays to him should be presumed. But such a presumption, should the facts authorize it, is not, in this case, conclusiv& and incontrovertible, but is, at the utmost, only of that class denominated " presumptions of law and of fact ;" and which, therefore, may be repelled by facts to be weighed and con- sidered by a jury. Occupancy for twenty years under an executory agreement of purchase, in the absence of any other explanatory or inconsistent facts tending to a contrary con- clusion, will, as an artificial deduction of law, create a pre- sumption of a conveyance ; and a Court may so inform a jury. But though such a technical effect be given to such a state of fact, nevertheless, the presumption is not of that kind denomi- nated " presumptions of law " merely ; such as the legal pre- sumption of fraud, or the legal presumption (at common law)^ of a consideration for every deed, and which could not be resisted, contradicted, or explained, by extraneous facts. As the presumption in this case is not legal only, and therefore inflexible, but is a presumption of both law and fact, and con- sequently may be rebutted by facts, the Circuit Court ought not to have given the peremptory instruction to the jury, but should, after telling them what the law of the case was, have left the deduction to them. The possession was not adverse as long as the agreement, under which it was taken, continued to be executory ; for though Bridges had conveyed to Conley, the latter could have held, in contemplation of law, only as the former had. If Bridges held as quasi tenant, his vendee held in the same way under the first vendor. In consequence only of the two errors which have been, noticed, the judgment must be reversed, and the cause re- manded for a new trial. IN REALTY. 767 Office Grant. The method of transferring title through officers of the law, as ad- ministrators, executors, guardians, sheriffs, etc., hereinbefore consid- ered, is generally known as acquiring title " by oiHce grant." Menage v. Jones. Supreme Court of Minnesota, 1889. 40 Minn. 254. GiLFiLLAN, C. J. The Probate Court of Hennepin County- granted to Maria L. Gove, of Concord, N. H., as guardian of the estate of Charles Augustus and Jesse Ridgely Gove, of the same place, minors, a license to sell real estate of said minors situated in said county. Pursuant to such license the sale was made and confirmed, and the real estate accordingly conveyed^ to the purchaser, whose title plaintiff has, as also the title of Maria L. Gove. The defendant claims title under conveyances from Charles Augustus and Jesse Ridgely Gove. The only question is the validity of the guardian's sale. It appears from recitals in the order of license that it was made upon the peti- tion of said Maria L. as such guardian, praying for such license, and upon due proof of notice having been duly pub- lished as ordered, and after a full hearing, and a determination that the sale was necessary and for the benefit of the wards. The principal objection made to the sale is that the Probate Court of Hennepin County had no jurisdiction to grant the order of license. Of course, the sale and conveyance of real estate, whether the property of wards or others, must be made pursuant to the laws of the State in which it is situated. In this case the laws of New Hampshire had nothing to do with the sale. The Court in that State could not authorize it, nor de- termine wljether it ought to be made. That was solely and en- tirely within the jurisdiction of the Courts, and under the laws, of this State. In the case of a person under guardianship re- siding out of the State, and having no guardian appointed in it, the foreign guardian may file an authenticated copy of his appointment in the Probate Court for any county in which there is real estate of the ward, after which he may be licensed to 768 ILLUSTRATIVE CASES sell real estate of the ward in any county, in the same manner and upon the same terms and conditions as are prescribed in the case of a domestic guardian : Gen. St. 1878, c. 67, § 32. The Probate Court of Hennepin County (there being real estate of the ward situated in that county) was, then, the proper Probate Court to which to apply for license to sell the real'-estate. It was the " Probate Court having jurisdiction," as those words of the statute have been construed by this Court : Montour v. Purdj', 11 Minn. 278, 384 ; 88 Am. Dec. 88 ; Rumrill v. First Nat. Bank, 28 Minn. 202 ; 9 N. W. Rep. 731. This being so, the proposition in Davis i;. Hudson, 29 Minn. 27, 11 N. W. Rep. 136, that "where a Probate Court possesses gen- eral jurisdiction of a given class of subject-matters, the posses- sion of jurisdiction assumed to be exercised in a particular case falling within such class is, in collateral proceedings, pre- sumed," would seem to apply ; and the Court in that case held that the presumption could be rebutted only by the record. It is, however, unnecessary in this case to resort to that rule, for that the Probate Court of Hennepin County had jurisdic- tion to grant the license appears by the record. It appears that the person claiming to be guardian by the appointment in New Hampshire filed a petition, praying that license to sell the real estate be granted, in the Probate Court of Hen- nepin County, and that gave jurisdiction after notice, which the record shows, to hear and determine the matter, and grant or refuse such license according to its determination. Upon such hearing it was necessary for the petitioner to show, and for the Court to pass on it, that she was guardian by due ap- pointment of the Court in New Hampshire, and had complied with the law of this State by filing an authenticated copy of her appointment ; but a wrong decision, or a decision on in- competent or insufficient evidence, as to those facts, would be only error to be corrected by appeal, and would not affect the jurisdiction. The jurisdiction did not depend on the validity of the appointment in New Hampshire, for nothing done there could give or take away or affect the jurisdiction of the Court in this State. Whether the appointment in that State was vaUd IN REALTY. 7G9 •or invalid was to be tried and determined on the hearing of the petition for license. The Probate Court in Hennepin County had jurisdiction. All that was necessary to show au- thority to make the sale was the record in the Hennepin County Court. And had that record been impeachable in this col- lateral proceeding, the evidence introduced or offered by defend- ant would have been of no avail to impeach it. The only other objection to the purchaser's title so serious that we need mention it, is to the deed executed by the guar- dian. The objections to it are that it does not recite the au- thority under which it was made, to wit, the license of the Probate Court, and that it does not purport to convey the ward's estate in the land, but runs in the name of the guardian as grantor. The deed certainly is not in the best form. It is about as scant as would be safe to have it. It describes the grantor as the guardian of the two minors, and is executed by her as such ; states that the land descended to them from their father, deceased, subject to her (the guardian's) dower ; and the dower is expressly excluded from the grant. There is no reference to the proceedings in the Probate Court of Hennepin County authorizing the sale. Of course, the deed could be of no effect unless executed pursuant to the authority thus given. It is usual in a deed executed bj' a person not in his own right, but by virtue of authority conferred on him, to recite, or at least make reference to, the authority under which the deed is executed. But as in such case the authority must be shown independent of the deed, however full that may be, it is not absolutely essei\tial that there should be any reference to it in the body of the deed, provided it appears from the «ntire deed that it was executed pursuant to the authority. Thus in Tidd v. Rines, 26 Minn. 201, 2 N. W. Rep. 497, a deed exe- cuted by an attorney-in-fact was held good, though there was no reference to the authority, except in the signature of the attorney ; and in Berkey v. Judd, 22 Miim. 287, that the at- torney need not sign his own name — the deed appearing on its face to be the indenture of the principal, made by his attorney- in-fact, designated by name ; and in Bigelow v. Livingston, 28 49 770 ILLUSTKATIVE CASES Minn. 57, 9 N. W. Rep. 31, it was held good, though the seal might of itself be taken to be that of the attorney — the whole instrument showing it was intended as the seal of the prin- cipal. And so in this case, as it was necessary (without regard to the form of the deed) to introduce the record of the Probate Court, it appears beyond any question that the deed was ex- ecuted pursuant to the license. We hold the deed to be good, so far as concerns that objection. In making the other objection, to wit, that the deed runs in the name of the guardian as grantor, and not in the names of the wards, the appellant confounds deeds executed under au- thority of, and as agent for, the grantor, in which case the deed must be in the name of the principal, and those executed upon judicial sales, as sheriffs' deeds, executors' or administrators' deeds, or guardians' deeds, which are made by the person making them in an official character, and not by authority nor as agent for the owner. In regard to these deeds. Freeman, in his work on Void Judicial Sales, § 47, states the general rule (in the absence of any statute prescribing the requisites of such a deed) thus : " Of course, the deed must be executed with the formalities essential to other deeds, and must show that the person who signs it is acting in an official capacity, and not merely conveying" his own title to the property." That ap- pearing, and the power to make it being shown, it is as good as an official deed. We see nothing in any other assignment of error that needs special mention. Order affirmed. 3 Washburn R. P. 220. Title pa^es under deed by delivery. Hawkes v. Pike. Supreme Judicial Court of Massachusetts, 1870. 105 Mass. 562. One Fairchild executed a deed to his son Silas, and left it with the regis- ter of deeds for record. After recording it, the register returned it to the IN REALTY. 771 Igrantor. The deed was never given to Silas, and the day after executing this deed Fairchild executed and delivered a deed of the same land to one Hawkes. Pike held a mortgage on this land executed by Fairchild prior to the two aforesaid deeds. The mortgage was foreclosed, and Hawkes flies his bill in equity to redeem. Pike claims that he has no right to do so, as Silas has a deed prior to that of JIawkes, and that he is the only one having the right of redemption. Ames, J. A deed of real estate, in order to take effect as a conveyance of title, must be delivered by the grantor, and actually or by implication accepted as his own by the grantee ; 3 Washb. Real Prop. (3d ed.) 254. No definite or specific formality is prescribed by law, but it must be the concurrent act of two parties. It must appear that the grantor parts with the control and possession of the instrument with the intention that it shall operate immediately as a transfer of title, and that it passes into the hands or is placed at the disposal of the grantee, or of some other person in his behalf : Harrison v. Phillips Academy, 12 Mass. 456; Maynard u Maynard, 10 Mass. 456 ; Elmore i;. Marks, 39 Verm. 538 ; Jackson ■;;. Phipps, 12 Johns. 418. The register of deeds may have been the person agreed upon as the agent of the grantee, and in such a case a deed left with him for record is sufficiently delivered. But registration of itself does not operate as a delivery, nor does it supersede the necessity of proof of a delivery : Parker V. Hill, 8 Met. 447 ; Samson v. Thornton, 3 Met. 275. In this case there was no delivery directly to the grantee, who was in California at the date of the deed, and we see nothing in the report that shows a delivery to any person for him. The scrivener who drew up the deed at the grantor's request had no authority from the absent grantee, and did not undertake to act for or to represent him. He assumed no trust, and came under no responsibility to him. He was not requested to keep the deed for him, or send it to him. He was employed by the grantor only, and all that he was to do or un- dertook to do, was in his official capacity of register to record the deed, and the only reason which he gave for not giving it up when called upon, was that the record had been begun but not finished. It was then simply a delivery to the register for 772 ILLUSTKATIVE CASES the purpose of registration, which is wholly insufficient to pass any title to the grantee. There was no agent to accept the deed ; no delivery to give effect to the deed as a conveyance. On the contrary, it appears from the grantor's testimony, which seems to be uncontradicted, that the delivery which he had in his mind was to take the deed from the register and send it by mail to his son in California. The letters upon which the defendant relies to show that the grantor intended to convey the property to his son, are not at all inconsistent with a total change of mind before that in- tention was carried into effect. Decree reversed. Smith on Contkacts, 6 ; Heffron v. Flannigan, 37 Mich. 274 ; Scrugham I). Wood, 15 Wend. 545 ; Regan v. Howe, 121 Mass. 424 ; Fisher v. Hall, 41 N. Y. 416 ; Stevens v. Hatch, 6 Minn. 64 ; Lansing v. Gaiue, 2 Johns. 300 ; Thomp- son V. Easton, 31 Minn. 99. c TITLE BY DEVISE. 1 Will. Title to land by devise is that which a person takes under and by virtue of a will, eo instant/, at the death of the devisor. IvES V. Allyn. Supreme Court of Vermont, 1841. 13 Vt. 629. The plaintiff brought an action of ejectment to recover possession of cer- tain lands to which he had acquired title through a will, the evidences of the probate of which were not duly recorded until after the action was com- menced. Redfield, J. No questions are reserved in this case, except those which arise upon the face of the papers introduced by IN REALTY. 773 the plaintiff, for the purpose of showing title to the premises demanded. The only question, therefore, which the Court have deemed it necessary to decide is how far the devises upon which the plaintiff relies can avail him. They were never filed and recorded in any probate office in this State until since the bringing of this suit. At the last term of this Court, in the same case, it was decided that the probate of the wills in the State of Rhode Island could not avail the plaintiff in this State. Since that time the requisite probate has been made in this State. It is true that the plaintiff must recover upon his title as it existed at the time of bringing suit, but the recording of deeds, necessary to their being read, may be done at any time before the trial. When the deed is recorded it takes effect from the delivery. So in this case, it is the death of the devisor that vests the title. At common law no probate of a devise or will disposing of real estate was required or was of any avail. In this State such probate is indispensable, as the Probate Court have exclusive jurisdiction of the proof of wills, of real as well as personal estate. But this is mere matter of evidence, and if done at any time before the trial the devise takes effect from the death of the devisor. The question whether the land named in the devise is the same land sued for was one of fact for the jury, and not sub- ject to revision here. Judgment affirmed. 3 Washburn R. P. 566, ? 31 ; Ex parte Fuller, 2 Story, 327 ; Thieband v. Se- bastian, 10 Ind. 454. ' Lex lod rei sitx governs in the construction of wills of realty, but lex domi- cilii in wills of personalty : Lynes v. Townsand, 83 N. Y. 561 ; Potter v. Tit- comb, 22 Me. 300 ; Kerr v. Moon, 9 Wheat. 565 ; Swearingen v. Morris, 14 Ohio St. 424 ; Richards v. Miller, 62 111. 454 ; In re Swenson's Est., 55 Minn. 300 ; Hovey v. Walbank, 34 Pac. Eep. 650; 100 Cal. 192; Perkins v. McConnell, 36 N, E. Eep. 121. 774 ILLUSTRATIVE CASES The devisee, though presumed to assent to the devise if beneficial to him, may disclaim the estate, and the devise yvill then be inopera- tive as to him. Pbkey V. Hale. Supreme Judicial Court of New Hampshire, 1862. 44 N. H. 363. One Joseph Hale died testate, having devised certain land to his wife, and upon her death to his son, Edgar Hale, a minor, on condition that he should pay $700 to one of his sisters and $800 to the other. The wife died before Edgar was of age, and his guardian took possession of the land, refusing to pay the legacies until the minor should reach his majority. The plaintiff (one of the sisters, now married to Perry) files her bill in equity to have the legacy declared a charge on the land and payable therefrom. Bell, C. J. Where a legacy is charged on land, an action of assumpsit, or debt, will lie against the devisee to recover it in certain cases : Piper v. Bennett, 2 N. H. 439. To the main- tenance of such action it is necessary that the devisee should have accepted the devise, of which the most usual and satis- factory evidence is his entry upon it — his possession and occu- pation of the devised property : Beecker v. Beecker, 7 Johns. 99 ; Van Orden v. Van Orden, 10 Johns. 30 ; Pickering v. Picker- ing, 6 N. H. 120; Pickering v. Pickering, 15 N. H. 290; Kel- sey V. Western, 2 Comst. 501 ; Birdsall v. Hewlett, 1 Paige, 32 ; (flen V. Fisher, 6 Johns. Ch. 34. A devisee is presumed to assent to a devise which is appar- ently beneficial, unless he expressly renounces it ; but he may waive, or disclaim the estate, and the devise will then be in- operative as to him : Stebbins v. Lathrop, 4 Pick. 33 ; Touch. 319 ; Birdsall v. Hewlett, 1 Paige, 32. This presumption of assent is never conclusive ; neither are acts that indicate a de- sign or intention to accept : Wheeler v. Lester, 1 Bradf. 293. If the property devised is subject to a condition or burdened with a charge, the devisee or legatee is allowed a reasonable time and opportunity to judge of the value Of the bequest and of the burden of the condition before he decides to accept or IN REALTY. 775 reject it : lb. But by entering into possession of the prop- erty the devisee accepts the gift with the condition : Pickering v. Pickering, 6 N. H. 120; and evidence that a third person was in possession, to whom the devisee gave directions as to his remaining and quitting tlie possession, is sufficient evidence of entry and possession : Tole v. Hardy, 6 Cow. 340. If a legacy is charged on land the land will bo subject to the •charge, not only in the hands of the devisee, but in those of an assignee : Veazey v. Whitehouse, 10 N. H. 409 ; Leavitt v. Wooster, 14 N. H. 550; Pickering v. Pickering, 15 N. H. 290; Copp V. Hersey, 31 N. H. 317 ; Harris v. Fly, 7 Paige, 421 ; Nellows V. Truax, 6 Ohio N. S. 97. On every transfer of the whole estate, the grantee, who takes the estate charged with a duty which may arise upon a con- tingency, or with a continuing duty, which constitutes no debt, or a duty which arises from time to time, may be held by an implied promise to perform the duty or pay the charge which accrues in his time ; and perhaps be charged in an action at law. But the remedy against several assignees of different parts of the estate is by bill in equity : Pickering v. Pickering, 15 N. H. 290. In regard to legacies charged on land, Courts of Equity exer- •cise an extensive and in some cases an exclusive jurisdiction : 1 Story Eq. 602. In equity and at law the personal estate of a testator is held the primary fund for the payment of legacies : Harris v. Flj*-, 7 Paige, 427 ; Hoes v. Van Hoesen, 1 Barb. Ch. 379 ; Roper on Leg. 163 ; Leavitt v. Wooster, 14 N. H. 565, and cases <;ited ; and it is not relieved from liability in the first in- stance, where the legacy is made a charge on the real estate, unless such is indicated in the will as the intention of the tes- tator : Hanna's Ap., 31 Pa. St. 53 ; Glen v. Fisher, 6 Johns. Ch. 34; Adams' Eq. 263, n. 1; Patterson v. Scott, 2 D., M. & G. 531 ; Collins v. Robbins, 1 D., M. & G. 131 ; Buckley v. Buck- ley, 11 Barb. 77 ; Leavitt v. Wooster, 14 N. H. 550. The intention of a testator to first charge the realty with the payment of legacies must be express or clearly implied, not 776 ILLUSTRATIVE CASES only as an intention to charge realty but to exonerate person- alty : Whitehead v. Gibbon, 2 Stockt. 230 ; Kelsey v. Western,. 2 Comst. 506 ; Dodge v. Manning, 1 Comst. 298 ; Livingston v. Newkish, 3 Johns. Ch. 326 ; Tole v. Hardy, 6 Cow. 333. The old law is said to have been that the personal estate could not be exempted from the payment of debts and legacies without express words ; but it is held sufficient if there appears upon the will a plain intention or necessary implication : Hoes v.. Van Hosen, 1 Comst. 120. And it is said it is not material that the charge is imposed on the devisee in the terms of a condition, as where real estate is devised to A., he paying the- debts or legacies or the like : lb. ; Bridgeman v. Dove, 3 Atk. 202 ; 2 Vern. 120 ; 9 Ves. 444 ; Roper on Leg. 163. But this would seem to be one of the circumstances to be weighed with others in the will, as indicating the intention of the testator. An absolute and specific disposition of all the personal estate of the testator, not a mere residuary bequest, is sufficient to manifest the intent of the testator to charge the realty in ex- oneration of the personalty : Kelley v. Deys, 3 Cow. 133. From the principle that the personal estate is the fund first liable to- the payment of legacies, it results that where the personal es- tate is not intended to be exonerated the receipt by the executor of personal assets, sufficient to pay the legacies, discharges the real estate from further liability for the payment of them ; and where such assets are wasted or misapplied by the executor the loss falls upon the legatee, and he cannot resort to the real es- tate upon which the legacy is charged, either in the hands of the devisee or of any purchaser from him : Sims v. Sims, 2 Stockt. 168 ; Glen v. Fisher, 6 Johns. Ch. 34; Birdsall v. Hew- lett, 1 Paige, 32 ; Willard Eq. Jur. 488. And it has been held that the purchaser may insist that the legatee shall first exhaust his remedy against the devisee per- sonally, as well as against the personal estate of the testator, where that is the primary fund : Glen v. Fisher, 6 Johns. Ch. 34 ; Dodge v. Manning, 1 Comst. 298 ; though the equity of that rule is not evident. The rule as to the equitable charge upon the estate devised IN REALTY. 777 is the same, where the devise fails wholly at law, or is not capable of being enforced at law, as if the estate is devised to the heir-at-law, or to a stranger, upon condition that he pay the legacy. In the first case the devise to the heir is void at law, yet in equity it is good as an equitable charge upon the land of the heir, who is directed to pay it : Smith v. Atherley, 3 Rep. in Ch. 93 ; s. c, Freem. Ch. 36 ; and in the next case, if the stranger renounces the estate upon which the devise as. to him becomes inoperative, yet the equitable charge remains, so, though a stranger cannot enter upon the land on breach of the condition, the Court will consider the heir-at-law a trustee for the legatee, for the purpose of charging the land with the payment of the legacy : Harris v. Fly, 7 Paige, 427. Though a legatee may elect, or may be compelled to resort to the personal estate, as the fund first liable to the payment of a legacy, yet the legatees of the personal estate, thus ap- plied, will in equity be entitled to stand in the place of the legatees whose legacies were charged on the land as against the land itself: Adams Eq. 263, n. 1 ; Patterson v. Scott, 2 D., M. & G. 531 ; Lockwood v. Stockholm, 11 Paige, 87 ; Crider's Ap., 11 Pa. St. 72. Some decisions in this State seem in conflict with the prin- ciples before stated, that the legatee whose legacy is charged on land cannot charge the land if there is sufficient personal assets. In Leavitt v. Wooster, 14 N. H. 566, Gilchrist, J., says : " In the case of Gookin v. True, 3 N. H. 288, an action was brought on a probate bond to recover certain legacies charged on land, where the devisees of the land had entered upon it. It was held that the legacies could not be considered a charge upon the estate generally, which the executor was bound to pay ; that their non-payment was not a breach of the bond, and that the action could not be maintained." It is also to be inferred from the case of Veazey v. Whitehouse, 10 N. H. 410, that where the charge is upon the land the executor is not liable upon his bond. An action of assumpsit was brought in that case against the assignee of the land charged with the support of the testator's daughter, and maintained-; 778 ILLUSTRATIVE CASES and such was the case also in Pickering v. Pickering, 6 N. H. 120. The first of these cases, however, is reconciliable with the principle before stated. The testator devised to his executor so much of his personal estate as should be sufficient to pay his debts and incidental charges, and if any remained it should be the property of A. D. He gave his real estate to his son, and directed that he pay S. B. and H. D. fifty dollars each, and the action was brought on the probate bond to recover these legacies. The case falls within the rule before stated, that an absolute and specific disposition of all the personal «state shows an intent to charge the real and exonerate the ■personal property. In the second case no question was made upon the points, and the facts necessary to raise the question are not stated. The third case was against an assignee of the real estate, and it was not suggested that there were personal assets or that the assignor was responsible. If the Court adopt the rule that the personal estate is the fund first chargeable for the payment of legacies, as there is nothing stated in the bill as to the personal except the house- hold furniture, it may be necessary to amend the bill, so as to show that there was not sufficient personal estate to pay the legacies, or that it was specifically bequeathed to others. It is not necessary perhaps now to decide this point. The answers in this case present two points, which are re- lied on as matter of defense : First, that the defendant, the devisee, had never accepted the devise nor been in possession of the devised estate ; the other, that it was the intention of the testator to give his son till he should be twenty-one years of age to determine whether he would accept the estate. The minority of the devisee precludes his personally doing any valid act to bind himself to his prejudice, and it is not pretended that he has done anything to affect his right. The •estate remained in the hands of his mother during her life, and after her death the plaintiff, George S. Perry, as guardian of the devisee, entered into possession of the estate, and con- .tinued to occupy it till his resignation, in January, 1861, since which time it has been in possession of a trustee appointed by IN REALTY. 779 the Court of Probate, under the will, to fill the place of the executors. It cannot be supposed that this trustee has any such relation to the devisee as would make the possession of the trustee an acceptance of the devise to bind the devisee. We have found no decision that a guardian of a minor has authority to accept or reject a devise made to his ward, so as iio bind his estate. Ordinarily, a guardian has no right to purchase real estate for his ward, or to sell it, unless under the license of the Court of Probate ; and we think that the plain- tiff, being himself the guardian, cannot avail himself of his lOwn act as an assent to a devise, which might be most preju- dicial to his ward, where his own interest and that of his ward were opposed. . If this were an action at common law the point of accept- a,nce would be vital, since upon it the right of action depends ; but in this proceeding in equity nothing depends upon that, except the question whether the devisee shall be charged per- sonally, since the bill has for its object to charge the land as well as the person of the devisee ; and a decree may be made to charge the land itself by a sale, though no person appears ]to be personally chargeable. As to the other point, the intention to allow the devisee till twenty-one to make his election to accept the devise, it is of no importance as to the charge upon the land, except as it bears upon the question of the time when these legacies are to be paid. The land is liable to the payment in any event. If, by the fair construction of the will, these legacies were payable when this action was commenced, the legatees must have a right to commence proper proceedings to enforce payment of them, whether the devisee had made his election or not ; the true nature of the devise being that the testator gave to the legatees so much out of the real estate, and the balance to the devisee. But if the legacies, from the terms or fair con- struction of the will, were payable only after the devisee should arrive at twenty-one, the bill is prematurely brought. The question is one affecting the interest as well as the right of ac- tion since a legacy draws interest from the time it is payable. 780 ILLUSTRATIVE CASES The general rule is that legacies for which no other time of payment is fixed are payable in one year from the decease of the testator. There seems no color to contend that these legacies were so payable, inasmuch as the real estate is given to the widow during her widowhood, and after her death, or marriage, to the devisee on condition that he pay these legacies. This is one of the cases where the course of events has not' fallen out agreeably to the expectation of the devisor. He probably supposed that his wife would live much beyond th& full age of her son, as was the reasonable probability ; and as is shown by the provision that after the son should arrive at twenty-one he and his mother should have the management of the propertj"^. In that event the legacies might be payable when the estate should vest in possession of the son by the death of his mother, which might be an early or a very dis- tant day ; or when the devisee should arrive at twenty-one. It would seem unreasonable to impose on the son the payment of these legacies, when he should arrive at twenty-one, when the whole of the property was given to the widow for a term which the testator expected to continue after that time, and which might continue for so long a time that the payments and the interest might far exceed the value of the property. The natural construction would seem to be that the son should become liable to pay the legacies when he should come into possession of the property by the expiration of his mother's interest, as until that time he would have no means derived from the will to pay the legacies. If this is the just inference as to the testator's intention in the events which he anticipated, it seems equally just as the contingencies have occurred. By the death of the widow the son became entitled to the benefit of the property, and the means to pay the burdens upon it, and no reason is seen why his sisters should not at the same time become entitled to their shares of it ; that is, to their legacies, unless it may be found in the provision that the executors should manage and carry on the farm till the son, Edgar, became of age; but we think it cannot have that IN REALTY. 781 effect. The executors were to carry on the farm during the life of the widow, as well as after, and nothing in the will indicates that they were so to carry it on for the benefit of themselves, or any other person than the widow while her estate continued, and then of her son. Thesy must, therefore, be deemed trustees for her, and after her death equally trustees for Edgar, and their possession for all substantial purposes must be his possession, since they must be accountable to him for the income. There must be a decree in favor of the plaintiffs, charging the land, the form of which, unless the parties agree, will be directed by the Court. May a devisee disclaim to the disadvantage of his creditors ? Stebbins v. Lathrop, 4 Pick. 33. The devisee takes the land subject to all burdens : Wilkinson v, Leland, 2 Pet. 658. INDEX. Abandonment, 630., Accretions, 46, 613. Adaptation, 120. Administrator, 749. j^DVERSE Possession, 567, 595. Aerolite, 39. Agricultural Fixtures, 131. Alienation, restrictions on, 230. restrictions as to time, 231. restrictions as to use, 235. Annexation, 94, 100. Under Contract, 117. Assignment of Term, 843. Avulsion, 52. Bankruptcy, title by, 746. Barracks, 77. Bastard, cannot hold title, 562. Building, lease of, 341. destroyed by fire, 367. Contract of Purchase, 159. Corporations, deed to, 221. Covenants, 353. implied, 356. running with land, 357. 783 784 INDEX. Curtesy, 243, 298 note. attaches to what, 296. title by, 730, 735, 788. Deed, destruction of, 694. importing to convey fee, 647. tax, 716. delivery of, 770. Deposits by Forces and Processes of Nature, 89. Descent, 241. Devise, executory, 468. title by, 772, 774. Disannexation, 122. Domestic Fixtures, 141. Dower, 245, 298, 302. attaches to what, 307, 309 note, 311 note. Easements, 178. Emblements, 318. ' ^ Eminent Domain, 539, 697. Entry, 570. under color of title, 603. as an intruder, 606. Escheat, 553. Estates, defined, 201. at sufferance, 406, 413 note. at wiU, 393. at will, how created, 895. at will, termination of, 404. fee simple, 205. for years, 327, 329. freehold, 205. from year to year, 378, 384. from year to year, termination of, 386. in common, 510, 523 note. in entirety, 524. in expectancy, 414. in possession, 414. in severalty, 510. joint, 524. INDEX. 785 Estatb;s, upon condition, 253. upon condition, how created, 268. upon limitation, 258. upon limitation, how created, 268. Estoppel, hy deed, 632. equitable, 500. in pais, 647, 662 note. Estovers, 315. Execution, 740. Executor, 749. Fee Determinable, 249. Fee Simple, 704. defined, 205. how created, 208, 214, 218, 221, 227. incidents of, 230. right of alienation, 230, 231. liability for debts, 246. Fee Tail, 249. Fences, 59. Fixtures, 69. Test, 69, 77, 83, 85. Erected by tenants, 81, 125. Use, 93. Annexation, 94. _ Constructive annexation, 'iOQ. Trade, 125. Agricultural, 131. Domestic, 141. Time of removal, 143, 147. Pass to grantee, when, 150. Construction of rule as to, between, vendor and vendee, 150. vendor and owner in common, 153. mortgagor and mortgagee, 162. heir and executor, 172. devisee and executor, 175. Forfeiture, 718. Franchises, 187. Freehold, defined, 205. 50 786 INDEX. Grant of Buildings Carries Land, when, 161. Grant, public, 750. private, 763. office, 767. Guardian's Sale, 760. " Heirs," 214, 218, 221, 227, 230. Hereditaments, incorporeal, 178. Homestead, 311. House Erected on Land op Another, 65. Ice, 16. Incidents of Fee Simple, 230. Infant— estoppel, 668, 677, 682, 687. Intention, test of fixtures, 81, 88, 85, 98. Island, 625. Joint Tenancy, 515. Jointure, 279. Judicial Decree, title by, 742. Land, 1, 4. Things attached by nature, 25. Things attached by art, 57. Lateral Support, 181. Lease, 351. termination of, 370, 371, 374. Legislative Grant, 227. License, 479. revocation of, 482, 487, 491. oral or written, 488. when irrevocable, 499. equitable estoppel, 500. Life Estate, 271. conventional, 271, 276. created by deed, 271, 276. created by will, 278. Life Tenants, duties of, 319, 322, 324. Limitation, conditional, 264. INDEX. 787 Manure, 45. Marriage, title by, 726. Marriage Settlement, 290, 294 note, 296. Married Women, estoppel, 663, 670, 682, 687. Monster, 562 note. Office Found, 562 note. Partnership Estates, 527. Party-wall, 186. Possession, 577. actual, 577. open, 581. continuous, 585. exclusive, 591. hostile, 595. adverse, 567, 595. Possibility of Reverter, 471. Privity op Blood, 588. Railroad Rails, 63. Remainders, 420. vested, 420, 423. contingent, 430, 432, 435 note. Rent, 191, 365, 367, 369 note. Riparian Rights, 629 note. Sale of Building Carries Land, 161. Saws, 110. Shares, land let on, 340. Shelley's Case, rule in, 440. Sheriff's Sale, 642. Sic utere tuo ut aliexum non l^edas, 546. Soil, 1, 4. Things imbedded, 1, 4. Things attached by nature, 25. Things attached by art, 57. State Only Enforces Escheat, 563. Sublease, 347, 350, 351. Tax Deed, 716. 788 INDEX. Taxation, title by, 697, 709. Tenancy in Common, 510, 523 note. Tenant, cannot deny landlord's title, 360, 365 note. Tenure, 537. Term, 331, 332, 333 note. assignment of, 343. how created, 334. perpetual renewal of, 338. Thread of Stream, 629 note. Time, how computed, 337. Title, 537. how acquired, 551. by curtesy, 730, 735, 738. by descent, 551. by judicial decree, 742. by purchase, 553. by marriage, 726. by escheat, 553. by taxation, 697, 709. by prescription, 567. by abandonment, 630. by devise, 772, 774. by bankruptcy, 746. Trade Fixtures, 125. Trees, 30, 31, 33, 35. Waste, 324. Water, 4. Natural course, 10, 23. Ways, 181 note. of necessity, 181 note. KF 569 P31 °-l Author Vol. Pattee, William Sullivan Title Copy Illustrative cases in reality I Date Borrower's Name \ \