Sri,l.IVAN CASES REAL PROPERTY 3// Cornell University Law Libi^ary. THE GIFT OF gtSi . /^^/ ^^.^t^-U^ Cornell University Library KF 569.S94 Selected cases on real property, 3 1924 018 785 604 ■'(>'■ c\- .^' Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018785604 SELECTED CASES ON REAL PROPERTY BY JOSEPH D. SULLIVAN, A. B. LL.M. Professor o-e Real Property, . Georgetown, University. Chicago CALLAGHAN & COMPANY, 1921 Copyright, 1921 By CAlvLAGHAN & COMPANY PREFACE The object of this volume of cases is to include in a single volume; one case on each important principle of the law of real property, and in a few instances, where necessary to illustrate difficult doctrines, more than one case. Preference has been given to decisions of the Supreme Court of the United States, when such were' available and suitable for a book of this character. The cases are intended to be used in con- nection with a text book on real property. The volume is especially designed for use with Tiffany on Real Property, and practically all of the cases it contains are cited in the foot notes of Tiffany's work. A majority of them, however, will be found cited in any good text book. While many recent cases are included; old leading cases have been found in some instances better adapted for this work than more modern decisions, the author having in mind as largely applicable to the who^e law of real. estate, the idea expressed by Mr! Justice Holmes in the case of Gardiner v. Butler, 245 U. S. 603, "But the law as to leases is not a matter of logic in vacuo ; it is a matter of history that has not for- gotten Lord Coke." In order that the three hundred and odd cases might be included in one volume, portions of opinions not dealing with the point to be illustrated have generally been omitted. Washington, D. C. Joseph D. Suluvan. July, 1921. Ill TABLE OF CONTENTS CHAPTER I NATURB OP RH;aL PROPERTY Section i. Property , . i i 2. IMovables and Immovables 2 3. Lands, Tenements and Hereditaments '... 5 4. Incorporeal Property IS 5. Heirlooms 22 CHAPTER II TENURE AND SEISIN Section i. Common Law Tenure .' 24 2. Alienation and Subinfeudation 28 3. Tenures Abolished 29 4. Tenure in the United States 30 5- Seisin 35 CHAPTER III ESTATES I'N fee simple CHAPTER IV estates in eee tail Section i. At Common Law 61 2. Under Modifying Statute 64 3. By Implication 72 CHAPTER V estates EOR LIEE V VI Cases on Reai, Property Section I. 2. 3- 4- 5- 6. 7- 8. CHAPTER VI ESTATES FOR YEARS PAGE Nature of Estate 86 Implied Covenant of Enjoyment 89 Condition and Use of Premises 98 Assignment and Subletting 115 Covenants Running with the Land 125 Estoppel to Deny Landjord's Title 129 Termination of Estate 133 Destruction of Premises 135 CHAPTER VII TENANCIES AT WILI<, FROM YEAR TO YEAR^ AND AT SUFFERANCE Section i. Tenancy at Will 141 2. Tenancy from Year to Year 149 3. Tenancy at Sufferance 152 4. Landlord's Option as to Tenant's Holding Over 155 Section I. 2. 3- 4- 5- 6. 7- CHAPTER VIII ESTATES ON CONDITION Conditions in General . , 162 Construction Adverse to Conditions 167 Conditions Precedent or Subsequent 184 Impossible Conditions 190 Conditions Against Marriage 192 Repugnant Conditions 196 Waiver of Condition 198 Section i. 2. 3- CHAPTER IX EQUITABLE ESTATES Uses 204 Trusts 231 Equitable Conversion '. 302 Table of Contents vii CHAPTER X FUTURE ESTATES PAGE Section I. Reversions 312 2. Remainders 314 3. Failure of Contingent Remainders 341 4. Acceleration of Remainders 348 5. Transfer of Contingent Remainders 357 6. Rule in Shelley's Case 363 CHAPTER XI EXECUTORY INTERESTS, Section i. Springing Uses 382 2. Shifting Uses 385 3. Executory Devises 386 4. Failure of Executory Limitations 400 CHAPTER XII RULE AGAINST PERPETUITIES CHAPTER Xlil CONCURRENT OWNERSHIP CHAPTER XIV ESTATES ARISING FROM MARRIAGE Section i. Husband's Freehold During Coverture 443 2. Dower 446 3. Curtesy 473 4. Homestead Rights 483 CHAPTER XV RIGHTS OF ENJOYMENT Section i. Earth and Minerals 486 2. Vegetable Products 486 Vlll Cases on R]];al Property PAGE 3. Fixtures 491 4. Divided Ownership 518 5. -Waste .520 6. Land Under Water 525 7. Fish , 570 CHAPTER, XVI POWERS CHAPTER XVII NATURAI, RIGHTS Section i. General Nature 588 2. Light and Air 590 3. Natural Watercourses 596 4. Surface Water 601 5. Underground Water 610 6. Support of Land 613 Section CHAPTER XVIII BASEMENTS Nature of an Easement 623 Licenses ..;... 623 Easements in Gross 631 Watercourses 633 Creation of Easements 639 Interference with Easement 667 CHAPTER XIX ■ PROFITS A PRENDRE CHAPTER XX COVENANTS RUNNING WITH THE LAND CHAPTER XXI RESTRICTIONS ENFORCIBEE IN EQUITY Table; of Contents IX Section CHAPTER XXII RENTS PAGE Nature of Rent ., .■ 710 Transfer of Rights and Iviab'ilities 7^^ Covenants to Pay Rent in Fee 717 Eviction ; 721 Parol Surrender of Lease 723 Section i 2, 3 4 5 CHAPTER XXIII PUBLIC RIGHTS CHAPTER XXIV CONVEYANCES OF LAND Grants by the United States, ;.,.... 731 Conveyances by Individuals 741 Form and Essentials of Conveyances 748 Covenants of Title 786 Execution 805 CHAPTER XXV WILLS CHAPTER XXVI ' ADVERSE POSSESSION Section i. Nature of Title Acquired ' 848 2. Tacking Possession of Successive Claimants 853 3. Disabilities 856 4. Nature of Possession ; 860 CHAPTER XXVII PRESCRIPTION CHAPTER XXVIII ACCRETION CHAPTER XXIX ESTOPPEL Cases on Rb;ai< Property CHAPTER XXX EMINENT DOMAIN CHAPTER XXXI NOTICE, PRIORITY AND RECORDING PAGE Section i. Equitable Doctrine of Priority 922 2. Effect of. Recording 925 3. Sufficiency of Record 93^ 4. Notice from Possession 937 CHAPTER XXXn RESTRICTIONS ON TRANSFER Section i. Fraudulent Conveyances 951 2. Homestead Exemptions •- 962 3. Spendthrift Trusts 966 CHAPTER XXXIH PERSONAL DISABILITIES Section I . Infancy 995 2. Mental Incapacity 999 CHAPTER XXXIV MORTGAGES Section i. Legal and Equitable Theories 1013 2. Interest Subject to Mortgage 1016 3. Absolute Deed as a Mortgage 10J5 4. Sale with a Right to Repurchase 1032 5. Conveyance by Deed in Trust 1038 6. Obligations Secured 1042 7. Liability of Mortgagor 1044 8. Mortgagor as Surety 1048 9. Payment or Tender. 1055 10. Unauthorized Satisfaction of Mortgage 1063 1 1 . Foreclosure 1069 12. Sale Without Foreclosure 1075 CHAPTER XXXV Equitable wens CASES ON REAL PROPERTY CHAPTER I. NATURE OF REAL PROPERTY, Section i. Property. Section 2. Movables and Immovables. Section 3. Lands, Tenements and Hereditaments. Section 4. Incorporeal Property. Section 5. Heirlooms. SEC. 1. PROPERTY. McKEON V. BISBEE. p Cal. 137; 70 Am. Dec. 642. (1858) Tbrry, C. J. This was an action to recover possession of a mining claim, the plaintiff alleging title and prior possession. The defendant set up a title by purchase at a sale under execution. A demurrer to the answer, on the ground that the facts stated constituted no defense, was sustained by the court below, and a judgment rendered in favor of plaintiff. The question presented is, whether a mining claim is liable to seizure and sale under execution. By our statute, "all goods, chattels, moneys, and other property, real and personal, of the judgment debtor, not exempt by law," is liable to execution. Property is the exclusive right of possessing, enjoying, and disposing of a thing ; it is "the right and interest which a man has in lands and chattels, to the exclusion of others," and the term is sufficiently com- prehensive to include every species of estate, real or personal ; Jackson v. House!, 17 Johns. 283 ; Doe, Lessee v. Langlands, 14 East. 370. 2 Cases on Reaic Property The legislature have by a series of enactments recognized the right of the miner to take and occupy, for mining purposes, a portion of the public domain ; and have provided a remedy by action against all who trespass on his possession. "By this appropriation, he acquires a vested interest in the exclusive occupation and enjoyment of the land as against all the world, subject only to the right of the government by whose license and permission his possession was acquired; and his right to protect the property for the time being is as full and perfect as if he was the tenant of the superior proprietor for years, or for life." Merced Mining Company V. Fremont, 7 Cal. 130 (68 Am. Dec. 762). He has, in addition to the right of exclusive possession and enjoy- ment, the right of absolute disposition; and may sell, transfer, or hypothecate, without let or hindrance from any one. Contracts for the sale of such interests have been frequently recognized and enforced by the courts. We think the interest of a miner in his mining claim is property, and not having been exempted by law, may be taken in execution. Judgment reversed, and cause remanded for further proceedings. SEC. 2. MOVABLES AITD IMMOVABLES. PENNIMAN v. FRENCH. 17 Pick. (Mass.) 404; 28 Am. Dec. 310. (1835) * * * The word movable is derived from the civil law, and is one of the two great divisions into which property is divided ; bona mobilia and bona immobilia. Dr. Johnson defines movables, as "goods ; fur- niture ; distinguished from real or immovable possessions, as lands or houses." And by the Dictionaire de I'Academie Francaise, we learn that the word is usually understood to signify the utensils which are to furnish or ornament a house. The term movables, bona mobilia, would seem to comprehend per- sonal property; and, if used without any adjunct or explanation, would include mobilia quae se movent vel ab aliis moventur, movables which move themselves, as well as movables which are moved by other or foreign agency or power. In Termes de la Ley, the word catals, or Naturf, of Real Property 3 chattels, is said to comprehend goods, movable and immovable, except such as are in nature of freehold, and parcel of it. That is a book of great antiquity and accuracy, as is observed by Bayley, J., in 5 Barn. & Cress. 229. But the word bona, goods, in the civil law, includes chattels real as well as personal, and also lands. * * * HOLT V. HENLEY. 232 U. S. 637; ,58 L. Ed. 767; 34 Sup. a. 43p. (1913) Mr. Justice Holmes delivered the opinion of the court: * * * This is a petition to the district court, sitting in bankruptcy for leave to remove an automatic sprinkler system and equipment from the premises of the bankrupt, the Williamsburg Knitting Mill Company. It is opposed by the trustee of a mortgage of the plant of the compan}- and the holder of the mortgage notes, and by the trustees in bank- ruptcy, both of which parties claim the property. The referee, the district court, and the circuit court of appeals, decided in favor of the latter claims. 190 Fed. 871, 113 C. C. A. 87, 193 Fed. 1020. The petitioner. Holt, appeals. The facts are as follows: An agreement to install the sprinkler wa^ signed by Holt on August 28, 1909, and by the bankrupt on October 14, ^909. The installation was begun about December 6, 1909, and finished in the latter part of March, 1910, the equipment consisting of a 50,000 gallon tank on a steel tower, bolted to a concrete foundation, pipes connecting the tank with the mill. By the agreement the system was to remain Holt's property until paid for, and Holt was to have a right to enter and remove it upon a failure to pay as agreed. It also was to be personal property during the same time. A large part of the price lias not been paid. But by the Code of Virginia, 2462, unless registered as therein provided, which this was not, such sales are void as to cred- itors (construed by the Virginia courts to mean lien creditors only), and as to purchasers for value without notice from the vendee. On November 23, 1909, the mortgage deed was executed, covering the plant on the premises, and that "which may be acquired and placed upon the said premises during the continuance of this trust." The mortgagees claim the system by virtue of this clause and the fact thfit it h^d beeri attached to the soil. As bearing on this last it 4 Casbs on Real Property should be added that there now is a smaller tank on the same steel tower, that supplies the mill for domestic purposes, but this was not put there by Holt. * * * We turn now to the claftn of the mortgagees. This is based upon the clause extending the mortgage to plant that may be acquired and placed upon the premises while the mortgage is in force, coupled with the subsequent attachment of the system to the freehold. But the foundation upon which all their rights depend is the Virginia statute giving priority to purchasers for value without notice over Holt's unrecorded reservation of title; and as the mortgage deed was executed before the sprinkler system was put in, and the mort- gagees made no advance on the faith of it, they were not purchasers for value as against Holt. York Mfg. Co. v. Cassell, 201 U. S. 344, 351. 352, 50 L. ed. 782, 784, 785, 26 Sup. Ct. Rep. 481. There are no special facts to give them a better position in that regard. But that being so, what reason can be given for not respecting Holt's title as against them? The system was attached to the freehold, but it could be removed without any serious harm for which complaint could be made against Holt, other than the loss of the system itself. Removal would not affect the integrity of the structure on which the mortgagees advanced. To hold that the mere fact of annexing the system to the freehold overrode the agreement that it should remain personalty and still belong to Holt would be to give a mystic importance to attachment by bolts and screws. For, as we have said, the mortgagees have no equity and do not bring themselves within the statutory provision. We believe the better rule in a case like this, and the one consistent with the Virginia decisions so far as they have gone, is that "the mortgagees take just such an inter- est in the property as the mortgagor acquired; no more, no less." Fosdick V. Schall, 99 U. S. 235, 25 L. ed. 339; Myer v. Western Car Co., IQ2 U. S. i, 26 L. ed. 59; Monarch Laundry v. Westbrook, 109 Va. 382, 384, 385, 63 S. E. 1070; Hurxthal v. Hurxthal, 45 W. Va. 584, 32 S. E. 237; Campbell v. Roddy, 44 N. J. Eq. 244, 6 Am. St. Rep. 889, 14 Atl. 279; Davis v. BHss, 187 N. Y. yj, 10 L. R. A. (N. S.) 458, 79 N. E. 851; Hendy v. Dinkerhoff, 57 Cal. 3, 40 Am. Rep. 107; Binkley v. Forkner, 117 Ind. 176, 3 L,. R. A. 33, 19 N. E. 753; Cox v. New Bern Lighting & Fuel Co., 151 N. C. 62, 134 Am. St. Rep. 966, 65 S. E. 648, 18 Ami. Cas. 936; Baldwin v. Young, 47 La. Ann. 1466, 17 So. 883; Re Sunflower State Ref. Co., 115 C. C. A. 132, 139, 195 Fed. 180, 187. The case is not like those in which the addition was in its nature an essential indispensable part Nature of Real Property 5 of the completed structure contemplated by the mortgage, ^he sys- tem, although useful and valuable, can be removed and the works still go on. Decree reversed. SEC. 3. LAIJDS, TENEMENTS AND HEREDITAMENTS. ' Challis, Real Property (*36). The subjects in which estates may subsist are commonly subdivided into lands, tenements, and hereditaments; which is a cross division, of wi^hich the sub-classes are by no means mutually exclusive. Lands are treated as a separate class, by reason of their prominent, im- portance and peculiar physical characteristics. Tenements require special mention, because they alone are intailable. Hereditaments is a convenient class-name for uniting together everything which may be the subject of estates of inheritance. Land includes whatever is parcel of the terrestrial globe, or is permanently affixed to any such parcel. (Co. Litt. 4a-6a). This is the meaning of the word in ordinary legal speech, and in this sense propositions respecting lands are generally to be under- stood. (See Co. Litt. 4a.) Co. Litt. 4a. "Terre," Terra, Land, in the legall signification, comprehendeth any ground, soife, or earth whatsoever; as rneadowes, pastures, woods, moores, waters, marshes, furses, and heath. Terra est nomen generalissimum, et comprehendit omnes species terrae; but properly, terra disitur a terendo, quia vomere teritur; and anciently it was written with a single r; and in that sense it includeth whatsoever may be plowed; and is all one with arviim ab arando. It legally includeth also all castles, houses, and other buildings; for castle?, houses, &c. consist upon two things, viz. land or ground, as the foundation or structure thereupon; so as passing the land or ground, the structure or building thereupon passeth therewith. Land is anciently called Fleth; but land builded is more worthy than other land, because it is for the habitation of man, and in that respect hath the precedency to be demanded in the first place in a prcecie, as hereafter shall be 6 Cases on Real Property said. And therefore this element of the earth is preferred before the other elements: first and principally, because it is for the habi- tation and resting-place of man ; for man cannot rest in any of the other elements, neither in the water, ayre, or fire. For as the heavens are the habitation of Almightie God, so the earth hath he appointed as the suburbs of heaven to be the habitation of man ; Caelum coeli domino, terram autem dedit filiis hominum: All the whole heavens are the Lord's, the earth hath he given to the children of men. Besides, everything, as it serveth more immediately or more meerly for the food and use of man (as it shall be said here- after), hath the precedent dignity before any other. And this doth the earth; for out of the earth commeth man's food, and bread that sttengthens man's heart, confirmat cor hominis, and wine that gladdeth the heart of man, and oyle that makes him a cheerful countenance; and therefore, terra olim ops mater dicta est, quia omnia hac opus habent ad vivendum. And the divine agreeth herewith; for he saith, Patriam tibi et nutricem, et matrem, et mensam, et do- mum posuit terram Deus, set et sepulchrum tibi hanc eandem dedit. Also, the waters that yeeld fish for the food and sustenance of man are not by that name demandable in a prcecipe; but the land where- upon the water floweth or standeth is demandable; as for example, viginti acras terrae aqua coopertas: and besides, the earth doth fur- nish man with mapy other necessaries for his use, as it is replenished with hidden treasures ; namely, with gold, silver, brasse, iron, tynne, leade, and other metals, and also with a great varietie of precious stones, and many other things for profit, ornament, and pleasure. And lastly, the earth hath in law a great extent upwards, not only of water, as hath been said, but of ayre and all other things even up to heaven ; for cujus est solum ejus est usque, ad caelum, as is holden 14 H. 8. fo. 12, 22 Hen. 6. 59. 10 E. 4, 14. GODDARD V. WINCHELL. 86 Iowa, 71; 41 Am. St. Rep. 481; 52 N. W. 1124. (iSps) Granger, J. The district court found the following facts, with some others, not important on this hearing: "First. That the plain- tiff, John Goddard, is, and has been since about 1857, the owner in fee simple of the north half of section No. 3, in township No. 98, Naturb; of REAt Property 7 range No. 25, in Winnebago county, Iowa, arid was such owner at the time of the fall of thie meteorite hereinafter referred to. Second, That said land was prairie land, and that the grass privilege for the year 1890 was leased to one James Elickson. Third. That on the second day of May, 1890, an aerolite passed over northern and northwestern Iowa, and the aerolite, or fragment of the same, in question in this action, weighing, when replevied, and when pro- duced in court on the trial of this cause, about sixty-six pounds, fell onto the plaintiff's land, 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. Fourth. 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. Fifth. That on May 5, 1890, Hoagland sold the aerolite in suit to the defendant, H. V. Winchell, for one hundred and five dollars, and the same was at once taken possession of by the said defendant, and that the possession was held by him until same was taken und^r the writ of replevin herein; that the defend- ant knew at the time of his purchase that it was an aerolite, and that it fell on the prairie south of Hoagland's land. * * * Tenth. 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 darker gray color on the inside; that it is an aerolite, and fell from the heavens on the 2d of May, 1890; that a member of Hoagland's family saw the aerolite fall, and directed him to it." * * * The subject of the dispute 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 im- movable ; 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 8 Cases on Real Property character to be thought of as "unclaimed by any owner", and, be- cause unclaimed, '"supposed to be abandoned by the last proprietor," as should be the case under the rule invoked by the 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 the appel- lant. His argument deals with the rules of the common law for acquiring real property, as by escheat, occupancy, prescription, for- feiture, 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 acquisi- tion, 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 accre- tions, are quite familiar. These rules are not, however, of exclusive application to such owners. Through the action of the elements, wind and water, the soil of one man is taken and deposited in the field of another; and thus all over the country, 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 author- ity 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 scientist, resting in and upon the earth, are of meteoric ac- quisition, 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 Nature of Reai; Property 9 prairies by glacier action'; and who would contend that these de- posits from floating 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 and 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 the appellant is pleased to denominate 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 determining who should be its owner. We cannot say that the owner of the soil is not as inter- ested 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 one hundred and one dollars, and this fact, if no other, would remove it from uses where other and much less valuable 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 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 application 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 as such. It is said by the appellant that this case is unique, that no exact precedent can be found, and that the con- clusion must be based largely upon new considerations. No similar question has, to our knowledge, been determined in a court of last resort. In 15 American and English Encyclopedia of Law, page 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 Society, 16 Alb. L. J. 76, and 13 Ir. L. T. 381, each of which periodicals contains an editorial notice of such a case hav- ing been decided in Illinois, but no reported case is to be found. Anderson's Law Dictionary states the same rule of law, with the same references, under the subject of "Accretions." In 20 Alb. L. J. 10 Cases on Real Property 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 sHght, if any, consideration, the information as to them being too meager to indicate the trend of legal thought. * * * BROWN V. SPIIvMAN. IS5 U. S. 665; 39 L. Ed. 304; 15 Sup. Ct. 247. (1895) Mr. Justice Shiras: * * * The subject of the grant was not the land, certainly not the surface. All of that except the portions actually necessary for operat- ing purposes and the easement of ingress and egress was expressly re- served to Taylor. The real subject of the grant was the gas and oil contained in or obtainable through the land, or rather the right' to take possession of the gas and oil by mining and boring for the same. Petroleum gas and oil are substances of a peculiar character, and decisions in ordinary cases of mining, for coal and other minerals which have a fixed situs, cannot be applied to contracts concerning them without some qualifications. They belong to the owner of the land, and are part of it, so long as they are on it or in it or subject to his control; but when they escape and go into other land, or come under another's control, the title of the former owner is gone. If an adjoining owner drills his own land, and taps a deposit of oil or gas, extending under his neighbor's field, so that it comes into his well, it becomes his property. Brown v. Vandergrift, 80 Pa. St. 142, 147 ; Westmoreland Nat. Gas. Go's. Appeal, 18 Atl. 724. To operate the machinery used in boring an oil well, it is necessary to erect a derrick, which is a structure of considerable height, and occupies a large space of ground. This 'derrick is also used, if oil be found, in connection with the pumping machinery. A very strong odor proceeds from a gas or oil well, and the noise of a well in operation can be heard for a long distance. These are some of the reasons why it is usual for farmers, when they grant the right to Nature of RfiAt Propesty ll drill for oil and gas, to stipulate that wells shall not be drilled in close proximity to their dwelling houses. When oil or gas is found in paying quantities, it is not usual to consume it or reduce it to use at the wells, but it is conducted in iron pipes to large tanks or reservoirs, whence it is distributed by other pipes to the places of consumption, often many miles distant. These are matters within the common experience or knowledge of all men living in those portions of the country where oil and gas are produced, and courts will take notice of whatever ought to be gen- erally known within the limits of their jurisdiction, i Greenl. Ev. 6. Taking up the contract in the present case, we find that the grant is expressly "for the sole and only purpose of boring, mining, and excavating for petroleum or carbon oil and gas, and piping of oil and gas, over all of that certain tract of land situate in Grant town- ship, Pleasants county, and State of West Virginia, and bounded and described as follows (here follow the boundaries), containing forty acres, more or less, excepting reserved therefrom ten acres, beginning at the railroad (here follow boundaries), upon which no wells shall be drilled without consent of the party of the first part." Do these latter words import an exception of the lo acres, taking them wholly out of the grant, or a condition aflfecting the mode of enjoying the grant, and, as alleged in the cross bill, "for the personal benefit, comfort, and enjoyment of the said Taylor"? As the grant in terms was for the purpose of boring and mining for oil and gas, and piping of oil and gas over all of the 40 acre tract, it would be strange if an exception of 10 acres w^s to be immediately added. If 30 acres only were to be included in the lease, and to be affected by its terms, the obvious course to pursue was to grant those 30 acres only. But if we read the grant as giving all the gas and oil under the entire tract of 40 acres, and the subsequent clause as a provision that, in exercising the rights granted. Brown should not, without the consent of Taylor, drill wells on the 10 acre plat, we shall thus give effect to all the language used. There is given an express right to run pipes for gas and oil over the entire tract, and also a right of way to and from the place or places of mining. The so-called "exception" does not seek to reserve anything out of the grant to bore or mine for oil and gas, nor to restrict the rights of way to 30 acres. Its only purport is to forbid^ the drilling of wells upon the 10 acres. Whilst the lease, in some sense, may be said to cover the entire tract for gas and oil purposes, yet the operation of drilling wells, with its accompanying discom- 12 Cases on Rbal Property forts to those living on the tract, is restricted to the 30 acres. * * * NORWALK HEATING AND LIGHTING CO. v. VERNAM. 75 Conn. 662, 96 Am. St. Rep. 246, 55 Atl. 168. (1903) Baldwin, J. The plaintiff owns certain land, which is substan- tially covered by the waters of the Norwalk river. The defendants own adjoining land on the river bank, having a brick building upon it extending to the boundary line. To this building they have attached a wooden structure, supported by beams resting on its foundation walls, which is ten feet wide and nineteen feet deep, and projects over the plaintiff's land without touching it. The plain- tiff's title rests on a conveyance made after this structure was com- pleted. It has requested the defendants, who are occupying it by tenants as part of a store, to remove it, and they have refused. It desires to build on its premises, and this structure prevents it from doing so, and interferes with its use of its land. The complaint states substantially this case, and has been found true. It is contended that the conveyance to the plaintiff was void be- cause given when its grantor was ousted of possession : Gen. Stats. (Rev. 1902), sec. 4042. The Court of Common Pleas properly held that the possession of the projecting structure at that time by the defendants was no interference with the possession by the plaintiff's grantor of the premises over which it projected. The construction and maintenance of such a structure, like the construction and main- tenance upon a house of eaves overhanging another's land, is an invasion of right, but not an ouster of possession: Randall v. Sand- erson, III Mass. 114. The possession of the adjoining proprietor remains unaffected, except that it is rendered less beneficial. The possession and occupancy of the projecting structure has no effect on the ownership of the soil beneath, unless it be maintained, imder a claim of right for fifteen years, and so should ripen into a perpetual easement. It follows that equitable relief was properly claimed and granted. While the plaintiff might have itself removed the nuisance, without appealing to the courts, it \yas not restricted to reliance upon self- help. Nor had it only a right of action for damages. An injunction Nature of Real PROPElifY 13 might originally have been brought by the plaintiff's grantor to pre- vent the contraction of the projection. This not having been done, the plaintiff could ask for a mandatory injunction to prevent its wrong- ful continuance. It is found that the defendants made this addition to their building without knowing that they had a right to do so, and in order to provoke a determination of that question by legal proceedings. While this absence of a direct claim of right might be material, were the question one as to their having gained an easement by an adverse user for fifteen years, it does not affect the plaintiff's cause of action, in this proceeding. They cannot defend on the ground that they did not in fact make a claim which it would be naturally inferred from their acts that they were making. , There is no merit in the exceptions taken to the finding. There is no error. Challis, Real Property (*37). Tenement is properly defined to include whatever can be the sub- ject of common law tenure. ("Wherein a man hath any frank-tene- ment, and whereof he is seised ut de libera tenemento." Co. L,itt. 6a.) The meaning which the word actually bears is wider than that strictly contained in this definition. (Co. Litt. 19b. 20a.). The definition would strictly include only lands, such incorporeal here- ditaments (seignories, peerages and dignities held by grand serjeanty) iis are undoubtedly subjects of common law tenure, advowsons in },rross (Co. Litt. 8sa.), and perhaps chief rents. But the word "tenement" is in practice, with less obvious propriety, extended to include also rents-charge, commons in gross, estovers and other profits a prendre, owing to their close connection with the land; also offices annexed to or exerciseable within or over any lands or tenements, as the office of steward or bailiff of a manor, or ranger of a forest. Co. Litt. 6a. Tenementum, tenement, is a large word to passe not only lands and other inheritances which are holden, but also offices, rents, com- mons, profits apprender out of lands, and the like, wherein a man hath any frank-tenement, and whereof he is seised ut de libera tene- mento. But hereditamentum, hereditament, is the largest word of 14 Casus on Real Property all in that kind; for whatsoever may be inherited is an hereditament, be it corporeall or incorporeall, reall or personal!, or mixt. Challis, Real Property (*38). Hereditament includes whatever upon the death of the owner passes (apart from testamentary disposition) to the heir by hereditary suc- cession. (Co. Ivitt. 6a.) The word hereditary excludes special oc- cupancy. Land regarded as a hereditament stands in a peculiar position, because its existence is wholly independent of the manner in which estates in it are limited, while other hereditaments can only by a metaphor be said to have any existence apart from their limitation for estates of inheritance. The word hereditament, when used in relation to land, sometimes denotes the land itself as a physical object, and sometimes the estate in the land. The use of a single name to denote two such disparate ideas, is not without inconvenience; but the practice is now inveterate. Thus, with some degree o'f confusion, it is commonly said that land is both a tenement and a hereditament. Here it is evident that the word tenement is not used in exactly the same sense, as when a legal estate for life is styled a tenement ; and that the word here- ditament is not used in exactly the same sense, as when a rent-charge in fee simple is styled a hereditament. In the case of land, the estate contemplated is the legal fee simple; and since this exhausts the whole possible interests, by way of estate, in the land, and since, for most purposes, it matters little whether we speak of the land itself, or of the utmost possible interest in the land, some degree of obscur- ity is often permitted to exist as to which precisely of these two things is meant to be the subject of reference. The word has to some extent, a double meaning. In other cases, in which the thing has no real existence apart from the estate in the thing, the words used have only a single meaning. It will easily be perceived that some tenements are not heredita- ments, and that some hereditaments are not tenements. Nature of Real Property 15 sec. 4. incorporeal property. EWING V. RHEA. 5/ Or. 583,' 82 Am. St. Rep. 783; 62 Pac. 790. (1900) Suit by Ewing against Rhea to enjoin interference with an irriga- tion ditch. The plaintiff was in possession of certain arid lands, to which he had constructed a ditch, running across land belonging to the defendant's grantors. He used the -water for irrigating pur- poses. The defendant's grantors knew of, and acquiesced in, the construction of the ditch, and stood by and saw the plaintiff expend large sums of money in constructing the ditch and in improving his premises. The defendant, prior to securing a deed to a portion of his land, also knew of the situation, but he subsequently destroyed a portion of the plaintiff's ditch, thereby depriving him of the use of the water. The court sustained a demurrer to the complaint, the suit was dismissed, and the plaintiff appealed. Moore, J. The question to be considered is whether a complaint alleging a passive acquiescence by defendant's predecessors when they knew that plaintiff was expending lai-ge sums of money in mak- ing valuable improvements upon his land while relying upon the faith of the implied license to maintain said ditch, which, if revocable, would render such improvements valueless, states facts sufficient to constitute a cause of suit. Plaintiff's counsel contends that the com- plaint is sufficient in this respect, and that the court erred in sus- taining the dem.urrer, and relies upon the case of Curtis v. La Grande Water Co., 20 Or. 34, 23 Pac. 808, 25 Pac. 378, in which it appears that in 1865 the company's predecessor, with the consent and assist- ance of one Green Arnold, built a dam across a creek, and laid a pipe therefrom, by which water was diverted and conducted to the city of La Grande for the use of its inhabitants. • Mrs. Curtis, the plaintiff therein, in 1876 acquired by mesne conveyances from Arnold the title to a tract of land through which said creek flowed, and in 1887 the company, without her express consent, built a new dam across the creek about one thousand feet above the old one, and taking up the conduit, relaid it from the new dam, and resumed the supply of water thereby. Mrs. Curtis having instituted a suit to enjoin the diversion, it appeared at the trial that the company changed the point of diversion under a claim to the use of the water which it believed was well founded ; that Mrs. Curtis, with knowledge 1 6 Cases on Real Property of such claim, stood by without asserting any right to have the un- diminished flow of the stream continue in the natural channel until she had seen the company expend large sums of money in improving its property, which, without the use of the water at the new point of diversion, would be rendered valueless, whereupon it was held that by her passive acquiescence she was estopped from asserting any right to the uninterrupted flow of the water in the creek. In Garrett v. Bishop, 27 Or. 349, 41 Pac. 10, it was held that the evi- dence of an irrevocable license should be clear and convincing, and show a permission to do the particular acts performed, or some par- ticipation in its execution by the alleged licensor. In Lavery v. Arnold, 36 Or. 84, 57 Pac. 906, it was held that a passive acquies- cence was insufficient to create an estoppel, the court saying: "But such license must result from some consideration paid by the licensee, or some benefit accruing to the licensor; otherwise, a person entitled to the use of water might be deprived thereof by seeing a neighbor constructing a ditch, making no objection thereto until the water was diverted, under an honest belief that he intended to use only the surplus." So, too, in Hallock v. Suitor, 37 Or. 9, 60 Pac. 384, it was held that a riparian owner upon a stream who made no objection when informed by a lower riparian proprietor that he intended to build a dam on her land was not estopped by any failure to assert her right, and that such passive acquiescence was not equivalent to a license to construct the dam. A license of this character is an authority to do some act or series of acts on the land of another for the bene- fit of the licensee without passing any estate in the land: Christen- sen V. Pacific Coast Borax Co., 26 Or. 302, 38 Pac. 127; Stinson v. Hardy, 27 Or. 584, 41 Pac. 116. "A license," says Mr. Justice Lord, in Curtis v. La Grande Water Co., 20 Or. 34, 23 Pac. 808, 25 Pac. 378, "creates no interest in land. It is founded on personal confi- dence, and is not assignable; and its continuance depends on the pleasure of the party giving it, and is revocable unless executed under such circumstances as would authorize the interference of equity to prevent injustice." The rule is well settled in this state that if a party has paid a consideration therefor, or been encouraged by any participation in a common enterprise, or induced by a definite oral agreement to expend money in making permanent valuable im- provements, the parol license upon the faith of which he has acted in executing it cannot be revoked to his prejudice : Coffman v. Rob- bins, 8 Or. 279; Huston v. Bybee, 17 Or. 140, 20 Pac. 51; Combs Nature o? Real Property 17 -V. Slayton, 19 Or. 99, 26 Pac. 661 ; Curtis v. La Grande Water Co., 20 Or. 34,- 23 Pac. 808, 25 Pac. 378 ; Baldock v. Atwood, 21 Or. 73/ 26 Pac. 1058; McBroom v. Thompson, 25 Or. 559, 37 Pac. 57, 42 Am. St. Rep. 806; Garrett v. Bishop, 27 Or. 349, 41 Pac. 10; Bowman v. Bowman, 35 Or. 279, 57 Pac. 546; Lavery v. Arnold, 36 Or. 84, 57 Pac. 906; Hallock v. Suitor, 37 Or. 9, 60 Pac. 384; Miser v. O'Shea, 37 Or. 231, 62 Pac. 491. While frequent trespasses upon the track of a railroad company, of which it had no knowl- edge, does not create a license to use the track as a footpath (Ward V. Southern Pac. Co., 25 Or. 433, 36 Pac. 166), it must be conceded, we think, that a mere naked license by acquiescence may be created in favor of a person or the public by his or its use of real property or an easement therein without the owner's objection (Gederson v. Oregon R. R. & Nav. Co. (Or.), 62 Pac. 637) ; but a license of that character, unless enjoyed for such a time as to bar the statute of limitations, may be revoked at any time at the pleasure of the licensor: Carskaddon v. Mills, 5 Ind. App. 22, 31 N. E. 559; Parish v. Kaspare, 109 Ind. 586, 10 N. E. 109; Simp- son v. Wright, 21 III. App. 67; Pitzman v. Boyce, 11 1 Mo. 387, 33 Am. St. Rep. 536, 19 S. W. 1104. We do not think that upon principle a mere naked license, which is predicated upon an invasion of another's right, and is, in effect, a trespass upon his property, so encourages a party to act upon the faith of the implied permission as to render it irrevocable, even when money has been expended in improving property under a belief that the uninvited use relied upon will never be interrupted; and, in so far as the decision in Curtis v. La Grande Water Co., 20 Or. 34, 23 Pac. 808, 25 Pac. 378, is in conflict with the principle here announced, it is overruled. Upon this theory the complaint did not state facts sufficient to constitute a cause of suit, and, no error having been committed in sustaining the demurrer, the decree is affirmed. Note: When the license has been acted upon and expense in- curred in reliance thereon, it is held in Buck v. Foster, 147 Ind. 530; 62 Am. St. Rep. 427; 46 N. E. 920, it cannot be revoked without at least placing the licensee in statu quo. This is generally based upon estoppel in pais against the person who has allowed another to incur expense in a belief that the license granted will not be revoked. See cases in chapter XVIII, Sec. 2, Licenses. 1 8 Cases on Real Property BANK OF AUGUSTA v. EARLE. 13 Pet. (U. S.) 519; 10 L. Ed. 274. (1839) The Bank of Augusta, incorporated by the legislature of the state of Georgia, instituted in the Circuit Court for the southern district of Alabama, in March, 1837, an action against Joseph B. Earle, a citizen of the state of Alabama, on a bill of exchange, dated at Mobile, November 3, 1836, drawn at sixty days sight, by Fuller, Gardner and Co., on C. B. Borland and Co., of New York, in favour of Joseph B. Earle, and by him endorsed, for six thousand dollars. The bill was accepted by the drawees, but was afterwards protested for non- payment; and was returned with protest to the plaintiffs. The following facts were agreed upon by the counsel for the plain-, tiffs and the defendant ; and were submitted to the Circuit Court : — "The defendant defends this action upon the following facts that are admitted by the plaintiffs ; that plaintiffs are a corporation, incor- porated by an act of the legislature of the state of Georgia, and have power usually conferred upon banking institutions, such as to purchase bills of exchange, etc. That the bill sued on was made and. endorsed for the purpose of being discounted, by Thomas Mc- Gran, the agent of said bank, who had funds of the plaintiffs in his hands, for the purpose of purchasing bills, which funds were derived from bills and notes, discounted in Georgia by said plain- tiffs, and payable in Mobile, and the said McGran, agent as afore- said, did so discount and purchase the said bill sued on, in the City of Mobile, state aforesaid, for the benefit of said bank, and with their funds ; and to remit said funds to the said plaintiffs. "If the Court shall say that the facts constitute a defense to this action, judgment will be given for the defendant, otherwise for plain- tiffs, for the amount of the bill, damages, interest and costs; either party to have the right of appeal or writ of error to the Supreme Court, upon the statement of facts, and the judgment thereon." * * * (It was argued on behalf of the defendant in error that the State of Alabama had a sovereign right to make banking an affair of state, and contended that the State, by its legislation, had prohibited even its own citizens from dealing in banking, except in conformity to its peculiar laws, and the banking in that state must be regarded as a franchise. The court in that part of its opinion dealing with this subject, explains the character of a franchise). Taney, C. J. * * * It is true that in the case of The State v. Nature of Real Property 19 Stebbins, i Stewart's Alabama Reports, 312, the Court said that since the' adoption of their constitution, banking in that state was to be re- garded as a franchise. And this case has been much relied on by the defendant in error. Now we are satisfied, from a careful examination of the case, that the word franchise was not used, and could not have been used by the Court in the broad sense imputed to it in the argument. For if banking included the purchase of bills of exchange, and all bank- ing is to be regarded as the exercise of a franchise, the decision of that Court would amount to this — that no individual citizen of Ala- bama could purchase such a bill. For franchises are special privileges conferred by government upon individuals, and which do not belong to the citizens of the country, generally, of common right. It is essential to the character of a franchise that it should be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from a law of the state. But it cannot be supposed that the constitution of Alabama in- tended to prohibit its merchants and traders from purchasing or selling bills of exchange; and to make it a monopoly in the hands of their banks. And it is evident that the Court of Alabama, in the case of The State v. Stebbins, did not mean to assert such a prin- ciple. In the passage relied on they are speaking of a paper circulat- ing currency, and asserting the right of the state to regulate and to limit it. The institutions of Alabama, like those of the other states, are founded upon the great principles of the common law; and it is very clear that at common law, the right of banking in all of its ramifi- cations, belonged to individual citizens ; and might be exercised by them at their pleasure. And the correctness of this principle is not questioned in the case of The State v. Stebbins. Undoubtedly, the sovereign authority may regulate and restrain this right : but the con- stitution of Alabama purports to be nothing more than a restriction upon the power of the legislature, in relation to banking corpora- tions; and does not appear to have been intended as a restriction upon the rights of individuals. That part of the subject appears to have been left, as is usually done, for the action of the legislature, to be modified according to circumstances; and the prosecution against Stebbins was not founded on the provisions contained in the constitution, but was under the law of 1827 above mentioned, pro- hibiting the issuing of bank notes. We are fully satisfied that the state never intended by its constitution to interfere with the right 20 Cases on Real Property of purchasing or selling bills of exchange; and that the opinion of the court does not refer to transactions of that description, when it speaks of banking as a franchise. * * * GIBBS V. DREW. i6 Fla. 147; 26 Am. Rep. 700. (1877) This is a proceeding under the unlawful detainer statute, brought by appellants to recover possession of a portion of the Jacksonville, Pensacola and Mobile Railroad, described by them. The complaint was dismissed, and defendant appealed. Westcott, J. While the statute regulating this special proceed- ing provides, "that if it shall appear to the court at the return day of the summons that the defendant has been duly served with said summons, agreeable to the requirements of this act, it shall proceed, without further pleadings in writing, to empanel a jury for the trial of the cause," still, in the very nature of things, the defendant may, in case he wishes to raise pure questions of law, adopt some method so to do without the intervention of a jury: The method here adopted was a motion to dismiss. To this no objection has been taken, and we think it is proper. This motion must be treated as a demurrer. There is but one question which we think necessary to consider in the disposition of this case. That question is, what is the legal signification of the term "railroad" in this pleading, and do the terms "lands or tenements", as used in the statute regulating this proceed- ing, embrace railroads as defined? This complaint must be construed most strictly against the appellants. If the term "i-ailroad" em- braces something not included in the terms "land or tenements", and that something is not the subject of this proceeding, then that is an end of the matter. As the term "highway" imports in law a road, the use of which is in the public, so the legal signification of the term "railroad" is not only a road or way on which iron rails are laid, but a road as incident to the possession or ownership of which important fran- chises and rights affecting the public are attached. This is unques- tionably one of its significations. If it was the purpose of the appel- Nature of Real Property 21 lants to recover something other than this, or to recover a road to which no such incidents were attached, the description should be so framed as to bring the subject-matter of the action within the terms of the statute, that is, the metes and bounds should be stated accord- ing to the usual and well-recognized legal , methods of boundary. There is nothing here which would authorize us to conclude that this road has been the property of a corporation now dissolved, hav- ing lost its franchises by any of the various methods 1)y which this may happen. We therefore treat it as a railroad to which belong the franchises usually attached to such a public work. The franchises which usually appertain to such a public work are incorporeal here- ditaments as contra-distinguished from "land", which is a corporeal hereditament, and while the term "tenements" embraces some fran- chises, still this term as used in the statute must, from the nature of the proceeding, be restricted to tenements upon which an entry can be made, and of which there can be tangible possession. 6 L,itt. 184. . "Restitution ought only to be awarded for the possession of tenements visible and corporeal," says Baron Comyns in treating of this subject. Comyns' Dig., tit. Fore. Entry, Letter D 7. The term "tenements" is used in the English statutes upon this subject, and yet, says Sergeant Hawkins, i Hawk. P. C, gh. 28 sec. 31, page 502, "it seems clear that no one can come within the danger of these statutes by a violence offered to another in respect of a way or such like easement which is no possession,." The general rule under the English statutes is, that this proceeding is restricted to the recovery of the .possession of hereditaments for which a writ of entry would lie at common law or by statute. Coke Litt. 343 ; Lamb Ins. 153. If this be so, and that it is so, cannot be doubted, the remedy cannot exist for the recovery of the possession of a public work to which is attached important prerogative franchises, rights and duties resulting from a special grant by the sovereign, and which cannot be included in any proper definition of the term "tenements" as used in this statute. But even if it be admitted that the right to the possession of a railroad as thus defined can be made the sub- ject of this proceeding, it certainly must appear affirmatively, must be alleged in the complaint that the party is the owner of the fran- chises of a public character which exist in connection with it. These cannot be thus separated. There is no such allegation here. Again, the franchises which belong to the owners of the J., P. & M. Rail- road exist necessarily as appurtenant to the ownership or possession of the whole line of road, and not to the ownership or possession of 22 Cases on Real Property a part. In the very nature of things, therefore, the plaintiff cannot be entitled to these franchises, as he claims an unlawful detainer of only a part of this road. The claim is for a "portion of the Jackson- ville, Pensacola, and Mobile Railroad." Our conclusion is that a railroad is a public work, the possession of which is attended with the right and duty to use and employ the franchises granted by the sovereign in connection with and as appur- tenant to it, a,nd that the proceeding of unlawful detainer does not lie to recover the possession of a part of such public work, as this necessarily involves the right to these franchises, and generally, that franchises appertaining to a railway being incorporeal hereditaments, intangible in their character, are not embraced within the terms "lands or tenements" in the act regulating this proceeding. Judgment affirmed. Note: In Tuckahoe Canal Co. v. Tuckahoe R. R. Co., ii L,eigh (Va.) 42, 36 Am. Dec. 374, it was said: "Now I take a franchise to be i. An incorporeal hereditament and 2. A privilege or authority vested in certain persons by grant of the sovereign (with us, by special statute) to exercise powers, or to do and perform acts which without such grant they could noi do or perform. Thus it is a franchise to be a corporation, with power to sue and be sued and to hold property as a corporate body. So it is a franchise to be empowered to build a bridge or keep a ferry over a public stream, with a right to demand tolls or ferriage; or to build a mill upon a public river and receive tolls for grinding, etc. But the franchise consists in the incorporeal right; the property acquired is not the franchise." SEC. 5. HEIRLOOMS. Co. Litt. i8b. If a nobleman, knight, esquire, etc., be buried in a church, and have his coat armor and pennons with his armes, and stich other insignes of honour as belong to his degree or order, set up in the church, or if a gravestone or tombe be laid or made, etc., for a monu- ment of him, in this case albeit the freehold of the church be in the Nature op Real Property 23 parson, and that these be annexed to the freehold, yet cannot the parson or any take them or deface them, but he is subject to an action to the heire and his heires in the honour and memory of whose ancestor they were set up. And so it was holden Mich. 10 Ja. and herewith agree the lawes in other countries. Note this lergen, and that judg- ment was recovered after the decree in the original suit, and after the execution sale and the sheriff's deed to the complainant. The deed from Tunis to Mrs. Studdiford conveyed to her an estate 42 Cases on Real Property upon a simple trust, without' any discretionary powers or active duties to be performed by the trustee. Under such a conveyance the inci- dents of the trust-estate are a jus hahendi, or right of actual pos- session in the cestui, que trust; and also the jus dispdnendi or, right in the cestui que trust to require the trustee to convey the legal estate as the cestui que trust may direct. — Lewin on Trusts, i8. The trust in its nature and quality is such as would be executed by the statute. Revision, p. 165. The trust, as declared in the deed, is for the use of Clarence and Caroline, and their heirs and assigns, forever; words which, in a legal estate, would create a fee. In construing the limita- tion of trusts, courts of equity adopt the rules of law applicable to legal estates. Cushing v. Blake, 30 N. J. Eq. 689. On the assump- tion that the trustee took only a legal estate for life, Clarence and Caroline took an equitable estate in fee-simple. It is clear that the equitable estate vested in them did not , terminate at the death of Mrs. Studdiford even if she took by the deed only an estate for her life; for it is a maxim in equity that a trust once created shall not fail for want of a trustee, and the court will follow the estate into the hands of the legal owner, whoever he may be, and compel him to give effect to the trust by the execution of proper assurances, un- less the legal estate has gone to a bona fide purchaser for value. 2 Lewin, Trusts, 833. In Weller v. Rolason, 17 N. J. Eq. 13, the tes- tator directed his executor to invest the residue of his estate in the purchase of a house and lot to belong to his widow during her widow- hood, and on her death to be sold and the proceeds equally divided among his children. The executor made the purchase, and took a deed to himself, as executor, without words of inheritance. The executor and the widow having died, on a bill filed by the testator's children, 'to have the lands applied to the purposes of the trusts de- clared in the testator's will, a decree was made against a purchaser from the grantor's heirs, having knowledge of the trust, that a con- veyance be made in fee," and that the lands be sold, and the proceeds be applied to the trusts declared in the testator's will. If Mrs. Studdiford took only a life-estate by the deed, and the legal title reverted to the grantor on her death, the trust-estate in his children was not thereby destroyed. The lands would remain in the grantor's hands charged with the trust. Nor did the trust deed, upon a con- struction of all the limitations contained in it, grant to Mrs. Studdiford only an estate for life. It is undoubtedly the common-law rule that an estate of inheritance cannot be created by deed without the word "heirs." In a will, an es- Estates in Fee Simpiedestal which was fastened to the floor by screws and served as a pivot on which the bed was swung from the room into the closet or from the closet into the room. There was also an appliance for holding the bed in position which was fastened to the door casing by screws. These beds could be removed without material injury to 5o6 Cases on Reai, Property the building. Both the ranges and stoves and the beds were annexed to the building sufficiently to constitute them fixtures under some cir- cumstances. So far as annexation is concerned they are in about the same situation as the radiators and office desk held to be fixtures as between mortgagor- and mortgagee in Capehart v. Foster, 6i Minn. 132, 63 N. W. 257, 52 Am. St. Rep. 582. Falk took possession of the land as lessee for a term of one hundred years under a lease which required him to erect an apartment building, divide it into flats and fit them ready to rent. In completing the build- ing he placed a gas range and door bed in each flat for the use of those who should rent the flats. These articles were adapted to the purpose for which the building was constructed, and enhanced its rental value, and were intended to be rented with the flats as a part thereof. Under such circumstances Falk's position was different from that of an ordi- nary tetiant who rents a building and installs conveniences therein for his own use, and these articles would clearly be fixtures as between him and defendant if no rights of third parties were involved. But Falk purchased these articles under a conditional sale contract by which they were to remain chattels with the -title and right of removal ■in the vendors. They never became Falk's property and he never ac- quired the right to make them a part of the realty. He defaulted in the stipulated payments and when the vendors were about to retake their property, he made an agreement with the vendors and the plain- tiff by which the plaintiff was substituted in his stead as purchaser and was to become the owner of these articles on completing the payments as provided in the contracts. Plaintiff had no interest in the real estate either as tenant or otherwise; neither had Chesnut for whose benefit plaintiff seems to have taken over the contracts. Plaintiff dealt with these articles as chattels, and intended that they should remain chattels. This clearly appears from the fact that if they became a part of the realty in which he had no interest, he would acquire nothing by his pay- ments and would be unable to carry out his contract with Chesnut. He clearly had the right as against Falk to remove these articles from the building, and the question here is whether he also had that right as against defendant. The rule that articles so annexed to the freehold as to appear to be fixtures pass to a subsequent purchaser who buys the land, without no- tice of the rights of third parties in such articles, does not aid defend- ant, for she is not a subsequent purchaser, but acquired all her rights in the land before the articles in controversy were annexed to it. As against plaintiff, she is in substantially the same position as a subse- Rights oi? Enjovmbnt 567 quent purchaser with notice of his rights, and has no better claim to thesq articles than a prior mortgagee of the realty would have. Such a mortgagee cannot hold as a part of the realty articles annexed to it by the mortgagor but to which the mortgagor never acquired title. Belvin v. Raleigh Paper Co., 123 N. C. 138, 31 S. E. 655. In Medicke v. Sauer, 61 Minn. 15, 63 N. W. no, trade fixtures pur- chased under a conditional contract of sale were installed by the vendee in a leased building and were subsequently surrendered with the build- ing to the landlord who thereafter claimed them as part of the realty and leased the building with the fixtures therein to other parties. It was held that the landlord had no better title to the fixtures than the vendee in the conditional contract of sale, and that the vendor was en- titled to recover their value from him on his refusal to surrender them. In Northwestern Mutual Life Insurance Co. v. George, "]"] Minn. 319, 97 N. W. 1028, 1064, a refrigerating plant purchased under a con-' ditional contract of sale was installed in a cold storage warehouse owned and operated by the vendee. The action was between an as- signee of the vendor and the holder of a mortgage on the realty ex- ecuted and recorded prior to the installation of the refrigerating plant. It was held that the vendee had no conveyable title in the refrigerating plant which he could vest in another so as to defeat the rights of the vendor, and that the vendor was entitled to the property as against the mortgagee of the real estate. In Merchants' National Bank v. Stanton, 55 Minn. 211, 56 N. W. 821, 43 Am. St. Rep. 491, an oatmeal mill was erected and equipped with appropriate machinery by one Dobson on land belonging to Stan- ton and in which Dobson had no interest other than that of a mere licensee. The court said that in the absence of an agreement to the contrary the building and machinery would become a part of the realty ; that having been placed on the land with Stanton's permission they were personal property as between him and Dobson; and that the plaintiff, claiming under a mortgage of the real estate executed by Stanton prior to the erection of the mill, had "no better or greater right to these annexations than Stanton would have." In Pioneer Savings & Loan Co. v. Fuller, 57 Minn. 60, 58 N. W. 831, the owner of a lot with an uncompleted dwelling house thereon mortgaged it under a promise to complete the building and, among other things, agreed to complete the fireplace by putting in a mantel, grate and tiling. Instead of doing so, he leased the building under an agreement by which the tenant installed the mantel, grate and tiling with the right to remove them. It was held, following Merchant's 5o8 Cases on Reai, Property National Bank v. Stanton, supra, that, although the mortgagee was not a party to the agreement with the tenant and these articles would be a part of the realty except for that agreement, the tenant had the right to remove them. In Pabst V. Ferch, 126 Minn. 58, 147 N. W. 714, L. R. A. 1915E, 822, it was held in effect that a purchaser of real estate without notice of the rights of third parties in articles which appear to be fixtures is entitled to such articles as a part of the realty, but that a purchaser with notice of the rights of third parties is not entitled to them as against such third party. The question as to whether the holder of a chattel mortgage on an article annexed to the freehold is entitled to such article as against the owner of the real estate, or the holder of a mortgage or other lien thereon, has been answered in favor of the holder of the chattel mort- gage by several courts. Edwards &• Bradford Lumber Co. v. Rank, 57 Neb. 323, "]"] N. W. 765, 73 Am. St. Rep. 514; Ames v. Trenton Brew- ing Co., 56 N. J. Eq. 309, 38 Atl. 858; Sisson v. Hibbard, 75 N. Y. 542; Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899; Sword v. Low, 122 111. 487, 13 N. E. 826; Hewitt v. General Electric Co., 164 111. 420, 45 N. E.725 ; Belvin v. Raleigh Paper Co., 123 N. C. 138, 31 S. E. 655. The case of Best Mfg. Co. v. Cohn, 3 Cal. App. 657, 86 Pac. 829, is much like the present case in its facts. There the lessee under a lease which provided for the construction of a mining plant equipped with machinery, and that the land with all improvements thereon should revert to the lessor if the lease should be forfeited for breach of its covenants, purchased the machinery under a conditional contract of sale and annexed it to the realty. He forfeited his lease and failed to pay for the machinery. The lessor took possession of the land and also of the machinery claiming it as a part of the realty. It was held that the vendor of the machinery was entitled to it as against the lessor of the real estate. See, to the same effect, Wetherill v. Gallagher, 217 Pa. 63s, 66 Atl. 849. As already stated defendant occupied no better position in respect to the articles in controversy than a subsequent purchaser of the real estate with notice, or the holder of a prior mortgage on it, and we have reached the conclusion that she was not entitled to them as against plaintiff and that plaintiff had the right to remove them. The rule requiring a tenant to remove what are frequently termed removable fixtures at or before the end of his term does not apply where the duration of the term is uncertain, Ray v. Young, 160 Iowa, 613, 142 N. W. 393, 46 L, R-. A. (N, S,) 947, Aim, Cas. 1915D, Rights of Enjoyment 509 258, and note attached to the L. R. A. (N. S.) report; nor to a person in the position of the plaintiff herein, Medicke v. Saner, 61 Minn. 15, 63 N. W. 1 10. The order appealed from is reversed. WATRISS V. FIRST NATIONAL BANK OF CAMBRIDGE, 124 Mass. 571; 26 Am. Rep. 694. (1878) Contract for breach of covenant, in a written lease from the plaintiff to the defendant, to surrender the premises at the end of the term, "in as good order and condition as the same now are." The plaintiff and another, owning the premises, leased them to the Harvard Bank, on the 1st of January, 1861, for five years, at a fixed rent, wi^h a privilege of an additional term of five years on the same conditions. That lease covenanted for the surrender of the premises at the end of the term in as good order and condition as the same then were, against waste and alterations, and for right of entry by the lessor in case of failure to pay rent or in case of waste. The lessee constructed a fire-proof safe or vault, and a portable furnace; with pipes, flues and registers, and counters, to fit. the premises for use as its banking house. The lessee was afterward changed into a National Bank, under the name of the defendant and the plaintiff acquired the sole ownership of the premises. The defendant elected to extend the lease as above provided, and con- tinued in occupation, until on the 7th of October, 1870, a new lease was entered into between the parties, for five years from January i, 1871, at an increased rent, the new lease containing the same provisions as the old one in other respects, with an additional covenant that in case of destruction or damage of the premises by fire or other un- avoidable casualty, a proportionate deduction should be made from the rent until the injury should be repaired, or the lease should cease, as the lessor should elect. About November 5, 1875, the defendant, being about to remove its business to another plaCe, began removing the fixtures above mentioned. This action was brought for that in- jury. Plaintiff had a verdict by agreement for $75, as the damage to the building, if the removal was lawful, and the case was reserved for consideration by the full court, with the understanding that if the plaintiff was entitled to a greater sum and th^ removal of the fixtures 5IO Cases on Real, Properxy was unlawful, the case was to stand for trial, otherwise judgment was to be entered on the verdict. Endicott, J. It is stated in the report that the Harvard Bank soon after taking possession of the premises under the lease of January i, 1861, put in a counter, a portable furnace with its necessary connec- tions, and a fire-proof safe or vault, for the removal of which, in 1875, this action is brought. In 1864 the Harvard Bank was organized as the First National Bank of Cambridge. No question is made that all the proceedings were according to law. The right to the personal property of the old bank passed therefore to the defendant upon the execution of the necessary papers and the approval of the proper officers ; no other assignment was necessary. Atlantic National Bank v. Harris, 118 Mass. 147, 151. The right of the defendant to occupy the premises under the lease to the Harvard Bank for five years, and to exercise the option con- tained in the lease to hold the premises for five years more at the same rent, seems to have been conceded by the lessors ; for the defendant continued in possession, paying rent during the whole term of ten years contemplated by the lease, which expired January i, 1871. We must assume that the title, not merely to movable chattels upon the prem- ises, but also to trade fixtures put in by the Harvard Bank, passed to the defendant, as the plaintiff does not deny that the defendant could have removed such of the articles as are trade fixtures at any time be- fore the final expiration of the lease on January i, 1871." In October, 1870, abotit three months before the 'final expiration of the term of the old lease, the plaintiff, one of the original lessors, who had in the meantime acquired the whole title to the premises, executed a new lease to the defendant, then in occupation, for a much higher rent, containing different stipulations from those in the old lease, par- ticularly in regard to abatement of rent in case of fire. This lease was to take effect January i, 1871, but made no reference to the existing lease or to the removal of any trade fixtures then upon the premises. It was in no proper sense a renewal of the old lease. It contained the usual covenants on the part of the lessee to quit and deliver up the premises at the end of the term in as good order and condition "as the same now are." Although executed before the expiration of the earlier lease, it can have no other or different effect than if given on the day, it was t6 become operative, and its stipulations and conditions are to be considered as if made on that day. And the question arises whether the acceptance of the new lease and occupation under it on January i, 1871, was equivalent to a surrender of the premises to the Rights op Enjoyment 511 lessor at the expiration of the first term. If it did > amount to a sur- render, it is very clear that the defendant could not afterwards re- cover the articles alleged to be trade fixtures. The general rule is well settled that trade fixtures become annexed to the real estate; but the tenant may remove them during his term, and, if he fails to do so, he cannot afterward claim them against the owner of the land. Poole's case, i Salk, 368; Gaffield v. Hapgood, 17 Pick, 192; Winslow v. Merchants' Ins. Co., 4 Mete. 306, 311 ; Shepard V. Spaulding, id. 416; Bliss v. Whitley, 9 Allen, 114, 115, and cases cited; Talbot v. Whipple, 14 id. 177; Lyde v. Russell, i B. & Ad. 394; Baron Parke, in Minshall v. Lloyd, 2 M. & W. 450. This rule always applies when the term is of certain duration, as under a lease for a term of years, which contains no special provisions in regard to fix- tures. But where the term is uncertain, or depends upon a contin- gency, as where a party is in as tenant for life, or at will, fixtures may be removed within a reasonable time after the tenancy is determined. Ellis V. Paige, i Pick. 43, 49 ; Doty v. Gorham, 5 id. 487, 490 ; Martin V. Roe, 7 E. & B. 237. See, also. Whiting v. Brastow, 4 Pick. 310, 311, and note. There is another class of cases which forms an exception to the general rule. Where a lease was given by an agent without sufficient authority during the absence of the owner, and was terminated by the owner on his return from abroad, it was decided by this court that the lessees became tenants at sufferance, and could remove their fixtures, within a reasonable time after such termination. Antoni v. Belknap, 102 Mass. 193. In Penton v. Robart, 2 East, 88, it was held that a tenant, who had remained in possession after the expiration of the term, had the right to take away his fixtures, and Lord Kenyon said, "He was in fact still in possession of the premises at the time the things were taken away, and therefore there is no pretense to say that he had abandoned his right to them." In Weeton v. Woodcock, 7 M. & W. 14, a*term under the lease had been forfeited by the bankruptcy of the lessee, and the lessor entered upon the assignees to enforce the forfeiture, and it was held that they might have a reasonable time to remove fixtures ; and Baron Alderson said that "the tenant's right to remove fixtures continues during his original term, and during such further period of possession by him, as he holds the premises under a right still to consider himself as tenant." Mr. Justice Willes, com- menting on these two last cases, in Leader v. Homewood, 5 C. B. (N. S.) 546, said: "It is perhaps not easy to understand fully what is the exact meaning of this rule, and whether or not it justifies a tenant 512 Cases on Real Property who has remained in possession after the end of his term, and so be- come a tenant at sufferance, in severing the fixtures during the time he continues in possession as such tenant. But the rule, whatever its exact meaning may be, is plainly inconsistent with the argument relied on by the counsel for the plaintiff in the present case, viz., that the right of the tenant continues till he has evinced an intention to aban- don his right to the fixtures." In Mackintosh v. Trotter, 3 M. & W. 184, Baron Parke, after stating that whatever is planted in the soil belongs to the soil, remarked "that the tenant has the right to remove fixtures of this nature duringf his term, or during what may, for this purpose, be considered as an excrescence on the term." He also refers to Minshall v. Lloyd, 2 M. & W. 450, as. authority, wherein he stated in the most emphatic manner that "the right of a tenant is only to re- move during his term the fixtures he may have put up, and so to make them cease to be any longer fixtures." It is clear from these cases that the right of a tenant, in possession after the end of his term, to remove fixtures within a reasonable time, does not rest merely on the fact that he is in occupation, or has not evinced an intention to aban- don, but because he is still, in contemplation of law, in occupation as tenant under the original lease, and, as Baron Parke says, under what may be considered an excrescence on the term, that is, as tenant at sufferance. But a very different question is presented when the same tenant con- tinues in possession under a new lease containing different terms and conditions, making no reference to the old lease, reserving no rights to the lessee in fixtures annexed during the previous term and not re- moved before its expiration, and containing the covenant to deliver up the premises at the end of the term in the same condition. This is not the extension of or holding over under an existing lease ; it is the creation of a new tenancy. And it follows that whatever was a part of the freehold when the lessee accepted and began his occupation under the new lease must be delivered up at the end of the tferm, and cannot be severed on the ground that it was put in, as a trade fixture, under a previous lease which has expired. The failure of the lessee to exercise his right to remove during the former term, or to reserve it in his new contract, precludes him from denying the title of his landlord to the estate and the fixtures annexed which have become part of it. The occupation under the new lease is in effect a surrender of the premises to the landlord under the old. This view is supported by the authorities. The earliest case on the subject is Fitzherbert v. Shaw, i H. Bl. 258. A purchaser of lands RiCiHfS OP ENJOYMfiNf 513 having brought ejectment against a tenant from year to year, the parties entered into an agreement that judgment should be signed for the plaintiff, with a stay of execution for a given period; and it was held that the tenant could not, during the interval, remove the fixtures erected during the term and before action brought — on the ground that the tenant could do no act to alter the premises in the meantime, but they must be delivered up in the same situation they were in when the agreement was made and the judgmefit was signed. This case vvas followed in Heap v. Barton, 12 C. B. 274, where there was a similar agreement, and Jervis, C. J., said that, "if the tenants meant to avail themselves of their continuance in possession to remove the, fixtures, they should have said so." In Thresher v. East London Waterworks, 2 B. & C. 608, it was held that a lessee, who had erected fixtures for purposes of trade on the premises, and afterward took a new lease to commence at the expiration of the former one, which contained a cov- enant to repair, would be bound to repair the fixtures, unless strong circumstances were shown that they were not intended to pass under the general words of the second demise; and a doubt was expressed whether any circumstances, dehors the deed, can be alleged to show they were not intended to pass. The case of Shepherd v. Spaulding, 4 Mete. 416, touches the question. A lessee erected a building on the demised premises, which he had a right to remove, but surrendered his interest to the lessor without reservation; afterward he took an- other lease of the premises from the same lessor, but it was held that his right to remove did not revive. When the new lease was made, it was of the whole estate, including the building. This differs from the case at bar only in the fact that there was an interval between the surrender of the interest under the first lease and the granting of the second, when the lessor was in actual possession. But the acceptance of the new lease and occupation under it are equivalent to a surrender of the premises at the end of the term. In Loughran v. Ross, 45 N. Y. 792; 6 Am. Rep. 173, it was held that, if a tenant, having a right to rem.ove fixtures erected by him on the demised premises, accepts a new lease of such premises, including the buildings, without reservation or mention of any claim to the buildings, and enters upon a new term thereunder, the right to removal is lost, notwithstanding his occupa- tion has been continuous. See also Abell v. Williams, 3 Daly, 17; Merritt v. Judd, 14 Cal. 59; Jungerman v. Bovee, 19 Cal. 354; Elwes V. Maw, 3 East, 38; Taylor on Landlord and Tenant (5th ed.), par. 552; 2 Smith's Lead. Cas. (7th Am. ed.) 228, 245, 257. We are therefore of opinion that the defendant had no right during 514 Cases on Real Property the second term to remove any trade fixtures placed there during the first. If any of the articles named were movable chattels, as the de- fendant contends, the plaintiff cannot recover for them; but, if they were permanent or trade fixtures, the plaintiff may recover for their removal. Case to stand for trial. KERR v. KINGSBURY, jp Mich. 150; 33 Am. Rep. 362. (1878) Cooi,EY, J. The controversy in this case concerns certain build- ings which are claimed by complainant under a real estate mort- gage given March 13, 1874, by defendant Solomon O. Kingsbury, to their testator. The defendant Lyon, on the other hand claims them as tenant's fixtures under a lease of the lands mortgaged. The facts appear to be that the- defendant S. O. Kingsbury, on the 25th day of January, 1871, being then the owner of certain premises situated on Calder and Almy streets in the city of Grand Rapids, leased the Calder street lots for ten years from June i, 1871, to John S. Long and Samuel P. Bennett, constituting the copartnership of Long & Bennett, who took possession and occupied the same for the purpose of a coal and wood yard. The lease contained a provision allowing the lessee thirty days on its termination for the removal of the buildings they might erect. June i, 1872, a further lease of a portion of the Almy street lots was made by Kingsbury to Long & Bennett, to ter- minate at the same time with the other, and containing a similar pro- vision respecting the removal of buildings. In September, 1873, S. O. Kingsbury purchased of Long his interest in the copartnership of Long & Bennett, and assumed his place in the business, which was thereafter carried on in the name of Kingsbury & Bennett. In February, 1874, S. O. Kingsbury conveyed all the lots on the two streets to Gains P. Kingsbury. This conveyance does not seem to have been understood by the parties as a transfer to G. P. Kingsbury of anything more than the fee subject to the leases, and the business of Kingsbury & Bennett went on as before. In March, 1874, the deed to G. P. Kingsbury in the meantime not having been recorded, S. O. Kingsbury gave to Henry A. Kerr whom the com- plainants represent, the mortgage under which they claim. In Janu- Rights op Enjoyment 515 ary, 1876, G. P. Kingsbury gave to Kingsbury & Bennett a new lease of all the lots for five years and five months. This would make the lease terminate at the same time as the former leases, and upon the face of the transaction no reason appears for giving it, unless it was to obtain, for the purposes of the business the copartnership was engaged in, the lots on Almy street which were not covered by the second lease. The buildings the right to which is in dispute in this case had all been put up as tenants' erections previous to the giving of the Kerr mort- gage, and were occupied by the copartnership of Kingsbury & Bennett for the purposes of their business at that time. That firm subsequently became insolvent and made an assignment for the benefit of their creditors to the defendant Lyon, who undertook to remove the build- ings as personalty. It is not disputed that as between landlord and tenant the buildings would in general have been removable, but it is insisted that under the facts of this case they are covered by the lien of the real estate mortgage. I. In brief the claim on the part of the complainants that when Kingsbury & Bennett, in January, 1876, accepted from G. P. Kings- bury a new lease, they in contemplation of law surrendered the exist- ing leases, and not having asserted and exercised a right to remove the erections made previously, they thereby abandoned them to their landlord, and could not assert or transfer to any one else the right to remove them afterward. This is the principal question in the case. The right of a tenant to remove the erections made by him in fur- therance of the purpose for which the premises were leased is con- ceded. The principle which permits it is one of public policy, and has its foundation in the interest which society has that every person shall be encouraged to make the most beneficial use of his property the cir- cumstances will admit of On the other hand, the requirement that the tenant shall remove during his term whatever he proposes to claim a right to remove at all is based upon a corresponding rule of public policy, for the protection of the landlord, and which is, that the tenant shall not be suffered, after he has surrendered the premises, to enter upon the possession of the landlord or of a succeeding tenant, to re- move fixtures, which he might and ought to have taken away before. A regard for the succeeding interests is the only substantial reason for the rule which requires the tenant to remove his. fixtures during the term ; indeed, the law does not in strictness require of him that he shall remove them during the term, but only before he surrenders posses- sion, and during the time that he has a right to regard himself as oq- 5i6 Cases on Rbai, PropBrty cupying in the character of tenant. Penton v. Robart, 2 East, 88: Weeton v. Woodcock, 7 M. & W. 14. But why the right should be lost when the tenant, instead of sur- rendering possession, takes a renewal of his lease is not very apparent. There is certainly no reason of public policy to sustain such a doc- trine ; on the contrary, the reasons which saved to the tenant the right to the fixtures in the first place are equally influential to save to him on a renev/al what was unquestionably his before. What could pos- sibly be more absurd than a rule of law which should in effect say to the tenant who is about to obtain a renewal : "If you will be at the expense and trouble, and incur the loss, of removing your erections during the term, and of afterward bringing them back again, they shall be yours; otherwise you will be deemed to abandon them to your landlord." There are some authorities which lay down this doctrine. Merritt V. Judd, 14 Cal. 59, is directly in point. That case is decided in re- liance upon previous decisions which do not appear to us to warrant it. Fitzherbert v. Shaw, i H. Bl. 258, was a case in which ejectment having been brought against the tenant, he entered into an agreement that judgment should be signed at a certain time with stay of execu- tion for a period; and the decision that the tenant could not after- ward remove fixtures was based upon the agreement. Lyde v. Rus- sell, I B. & Ad. 394, only asserts the general rule that where the ten- ant surrenders possession without removing his fixtures he loses his right. Thresher v. East London, 2 B. & C. 608, was decided upon the construction of a covenant contained in the new lease, by which the tenant undertook to repair the erections and buildings, and at the end of the term the premises so repaired, etc., to leave and yield up, etc. Shepard v. Spaulding, 4 Mete. 416, has some apparent analogy to the present case, but it is only apparent, There the tenant surrendered to his landlord without removing the fixture in controversy, but under- took to assert the right under a lease made several years afterwards, and which he took when he was as much a stranger to the premises as if he had never occupied them. It is manifest that none of these cases affords any support to the conclusion in Merritt v. Judd. And we have been unable to discover in Landon v. Piatt, 34 Conn. 517; Davis v. Moss, 38 Penn. St. 346, or Haflick v. Stober, 11 Ohio (N. S.) 482, to which our attention is called in this case, anything important to this discussion. The case of Loughran v. Ross, 45 N. Y. 792 ; s. c, 6 Am. Rep. 173 is in accord with the case in California. In that case Mr. Justice Al- Rights oi^ Enjoyment 517 len speaking for the majority of the court says : "In reason and prin- ciple the acceptance of a lease of the premises, including the buildings, without any reservation of right, or mention of any claim to the buildings and fixtures, and occupation under the new letting, are equivalent to a surrender of the possession to the landlord at the ex- piration of the first term. The tenant is in under a new tenancy, and not under the old ; and the rights which existed under the former ten- ancy, and which were not claimed or exercised, are abandoned as ef- fectually as if the tenant had actually removed from the premises and after an interval of time, shorter or longer, had taken another lease and returned to the premises." This is perfectly true if the second lease includes the buildings ; but unless it does so in terms or by neces- sary implication, it is begging the whole question to assume that the lease included the buildings as a part of the realty. In our opinion it ought not to be held to include them unless from the lease itself as understanding to that effect is plainly inferable. In Davis v. Moss, 38 Penn. St. 346, 353, it is said by Mr. Justice Woodward that "If a tenant remain in possession after the £xpiration of his term, and perform all the conditions of the lease, it amounts to a renewal of the lease from year to year, and I take it he would be en- titled to remove fixtures during the year." This in our opinion is per- fectly reasonable, and it is as applicable to other tenancies as it is to those from year to year which are implied from mere permissive hold- ing over. II. It is further insisted on the part of complainants that the right of the assignee of Kingsbury & Bennett to claim the buildings as fix- tures cannot be asserted as against the mortgages given to Kerr, be- cause the mortgagee had a right to assume, when he took the mort- gage, that Kingsbury, the mortgagor, occupied the premises as owner of the fee merely, and was conveying to him by way of security" every- thing that as between mortgagor and mortgagee would pass as realty : in other words, that the possession of Kingsbury & Bennett was no notice to Kerr that rights in the buildings were claimed by them as tenants. It is true as a general rule that the possession of a grantor or mort- gagor is no notice to his grantee or mortgagee that he claims any' rights in the premises as against the conveyance he gives. Bloomer v. Henderson, 8 Mich. 395; Dawson v. Danbury Bank, 15 id. 489. But here Bennett as well as Kingsbury was in possession, and Bennett's rights could not be taken away by any act of Kingsbury's. As to Ben- nett the buildings remained chattels, and it was the duty of Kerr to 5i8.' Cases on Real Property take notice of his rights. If he had done so and made the necessary inquiries, he would have ascertained that the buildings were person- alty ; for they could not be realty as to one interest and personalty as to another. Adams v. Lee, 31 Mich. 440. We think the decree belaw was correct, and it must be affirmed with costs. Note : — In Sanitary District v. Cook, 169 Ills. 184, 61 Am. St. Rep. 161, and in Carlin v. Ritter, 68 Md. 478; 6 Am. St. Rep. 467, the court refused to follow this case. SEC. 4. DIVIDED OWNERSHIP. OTTUMWA LODGE v. LEWIS. 34 Iowa, 67; II Am. Rep. 135. (1871) This cause was submitted to the court below, for the purpose of determining the question of the defendant's liability, upon an agreed statement of facts of which the following is the substance, to wit: George C. Merrick was the owner of lot 286 in the city of Ottumwa, and commenced the erection of a brick building thereon. Afterward Merrick, agreed with plaintiff to complete the third story of said building in pursuance of a specified plan, and to deed the same, to- gether with the right of way thereto, to plaintiff, in consideration whereof the plaintiff agreed to pay the sum of $1,700. The said third story was finished in accordance with the terms of the contract, and plaintiff took possession thereof, and still retains the same. Merrick deeded the said third story to plaintiff in pursuance of this agreement, and afterward, by regular line of conveyance from Mer- rick, the defendant, Alvin Lewis, became seized of the lot and the re- mainder of the building. The building is three stories with a cellar. The roof is flat, rising two or three feet above the ceiling of the third story room at the front, and sloping back, having a fall of two or three feet, and is covered with tin. The roof does not rise above the walls of the building, and there is no garret or other room above the third story room. The roof became out of repair, and the rain coming through fell upon the ceiling of the rooms of plaintiff, and leaked upon the carpet, and furniture therein, to plaintiff's- damage. Plaintiff, in Rights op Enjoyment 519 writing, informed defendant that the roof was out of repair, and re- quested him to repair the same, which defendant neglected and re- fused to do. After waiting a reasonable time, plaintiff repaired the roof at a cost of $30.00. which sum was necessarily expended for that purpose. The court rendered judgment for plaintiff for thirty dollars. De- fendant appeals. Day, J. From the statement of facts it will Be seen that plaintiff is the owner of the third story of the building, and defendant owns the two remaining stories and the ground upon which the erection stands. Although this mode of ownership is not at all unusvial in large cities, yet the common law does not clearly define the relative rights and duties of persons so situated. 2 Washb. on Real Estate (2d. ed.), marg. p. 79. Yet enough has been decided to render easy the de- termination of the question here involved. In Tenant v. Goldwin, 2 Ld. Raym. 1091, it is said that if one man have the upper part of a house and the other the lower, each may com- pel the other to repair his part in preservation of the others. In an anonymous case in 11 Modern, page 7, it is held, that if a man has an upper room, an action lies against him by one who has an under room, to compel him to repair his roof. And so where a man has a ground room those over him may have an action to compel him to keep up and maintain his foundation. In Cheesborough v. Green, 10 Conn. 318, which was a case in which the plaintiff owned and occupied the foundation and first and second stories of a building, and the defendant owned the third story and roof of the same building, and suffered the roof to become leaky and ruin- ous, occasioning damage to the plaintiff's goods in the lower story, it was held that an action on the case would not lie, but that the plain- tiff's remedy must be sought in chancery. In Loring v. Bacon, 4 Mass. 575, the defendant was seized in fee simple of a room on the lower floor of a dwelling house and of the cellar under it, and the plaintiff was seized of a chamber over it, and of the remainder of the house. The roof became in such condition that unless repaired no part of the house could be comfortably occupied. The defendant refused to join in making the repairs. The plaintiff then made the necessary re- pairs and brought an action in assumpsit for labor and materials em- ployed and money expended. Parsons, C. J., announcing the opinion of the court, said : "Although in the case the parties consider them- selves as severally seized of different parts of one dwelling, yet in legal contemplation each of the parties has a distinct dwelling-house 520 Cases on Real Property adjoining together, the one being situated over the other. The lower room and the cellar are the dwelling-house of the defendant; the chamber, roof and other parts of the edifice are the plaintiff's dwelling- house. And in this action it appears that having repaired his own house, he calls upon her to contribute to the expenses, because his house is so situated that she derives a benefit from his repairs, and would have suffered a damage, if he had not repaired. Upon a very full research into the principles and maxims of the common law, we cannot find that any remedy is provided for the plaintiff." These are all the authorities we have been able to find bearing upon this subject. All of them except Cheesborough v. Green are adverse to the right of plaintiff to recover. The case of Cheesborough v. Green, lo Conn. 318, does not sanction the right of the owner of the upper story to recover for repairs, but holds that the remedy of the owner of the lower story is in equity and not at law. If each party, respectively is the owner of a distinct dwelling, as held in Loring v. Bacon, the solu- tion of the question becomes easy; for no legal principles can readily be discovered upon which a party can recover of another for repairs made upon his own property. And that, in legal contemplation, each party is the owner of a dis- tinct dwelling cannot, in our opinion, be successfully refuted. The court erred in finding for plaintiff the value of the repairs made, and its judgment is reversed. sue. 5. WASTE. Coke Litt. 5JO. An action of wast doth lie against tenant by the curtesie, tenant in dower, tenant for life, for yeares, or halfe a yeare, or guardian in chivalry by him that hath the immediate estate of inheritance, for wast or destruction in houses, gardens, woods, trees, or in lands, meadows, &c. or in exile of men to the disherison of him in the reversion or re- mainder. There are two kinds of waste, viz. voluntary or actuall, and permissive. Waste may be done in houses, by pulling or prostrating them down, or by suffering the same to be uncovered, whereby the spars or rafters, plaunchers, or other timber of the house are rotten. But if the house be uncovered when the tenant commeth in, it is no wast in the tenant to suffer the same to fall downe. But though the Rights of Enjoyment 521 house be ruinous at the tenant's coming in, yet if he pull it downe, it is wast unlesse he reedifie it againe. Also if glasse windowes (tlio' glased by the tenant himselfe) be broken downe, or carried away, it is wast for the glasse is part of his house. And so it is of wainscot, benches, doores, windowes, furnaces, and the like, annexed or fixed to the house, either by him in the reversion, or the tenant. Though there be no timber growing upon the ground, yet the tenant at his perill must keepe the houses from wasting. If the tenant doe or suffer wast to be done in houses, yet if he repaire them before any action brought, there lieth no action of wast against him, but he cannot plead, quod non fecit vastum, but the speciall matter. A wall uncovered when the tenant commeth in, is no wast if it be sui?ered to decay. If the tenant cut downe or destroy any fruit trees growing in the garden or orchard, it is waste; but if such trees grow upon any of the ground which the tenant holdeth out of the garden or orchard, it is no waste. If the tenant build a new house, it is waste, and if he suffer it to be wasted, it is a new waste. If the house fall downe by tempest, or be burnt by lightning, or prostrated by enemies, or the like, without a de- fault of the tenant, or was ruinous at his coming in, and fall downe, the tenant may build the same againe with such materialls as remaines, and with other timber which he may take growing on the ground for his habitation, but he must not make the house larger then it was. If the house be discovered by tempest, the tenant must in convenient time repaire it. PYNCHON V. STEARNS. II Met. 304; 45 Am. Dec. 207. (1846) Wilde, J. This is an action of waste, and the case comes before us on exceptions to the instructions to the jury at the trial. The prem- ises described in the writ were formerly the property of Edward Pyn- . chon, and were devised by him to Susan Pynchon, his wife, so long as she should remain his widow, remainder to the plaintiff. The defend- ant holds under an assignment from the said Susan. * * * As to the alleged acts of waste on the other part of the premises, the plain- tiff relied upon sundry facts which are not disputed; namely, that the defendant had opened a way through the premises from one public highway to another; and that the defendant had subverted the soil, 522 Cases on Real Property by digging out part of the soil for cellars of houses by him erected ; and that he had plowed the lands, dug drains, and had drawn in large quantities of earth, thereby raising the land and changing the surface thereof. The defendant introduced evidence to show that these acts of the defendant were beneficial and not prejudicial to the plaintiff, and did not constitute waste. On this evidence the jury were in- structed that the opening of the way was not waste, and that if break- ing up meadow land occasionally was a judicious and suitable mode of husbandry, the changing the surface by breaking up and cultivating it, was not waste; and that the removing the soil for the building of houses, and the erecting them, and digging drains, if the estate on the whole would be equally or more valuable to the owner of the inherit- ance, would not be waste. The general rule of law in respect to waste is, that the act must be prejudicial to the inheritance. It is defined by Blackstone, 3 Bl. Com. 223, to be "a spoil and destruction of the estate, either in houses, woods, or lands." It is true, however, that it has been held in Eng- land, that to change the nature of the property by the tenant, although the alteration may be for the greater profit of the lessor, was waste. So in England, if the tenant converts arable land into wood, or e con- verso or meadow into plow or pasture land, it is waste: Bac. Abr., Waste, C. I. The reasons given are, that it changes the course of husbandry, and the evidence of the estate. But these reasons are not applicable in this commonwealth, and consequently such changes here do not constitute waste, unless such changes are prejudicial to the in- heritance. So the doctrine is laid down by Mr. Dane, and it is, we think, supported on satisfactory reasons : 3 Dane's Abr. 219. When our ancestors emigrated to this country they brought with them, and were afterwards governed by, the common law of England ; excepting however, such parts as were inapplicable to their new condition : Com- monwealth V. Knowlton, 2 Mass. 534; Sackett v. Sackett, 8 Pick. 316. That the principle of the common law under consideration was then inapplicable to the condition of the country is obvious ; nor has it been , applicable at any time since ; for it has been the constant usage of our farmers to break up their grass lands for the purpose of raising crops by tillage, and laying them down again to grass, and 'otherwise to change the use and cultivation of their lands, as occasions have re- quired. A conformity, therefore, to this usage, cannot be deemed waste. Even in England, "if a meadow be sometimes arable, and sometimes meadow, and sometimes pasture, the plowing of it is not waste." Bac. Abr., Waste, C. i ; Com. Dig. Waste, D. 4. As to the Rights of Enjoyment 523 effect of such changes upon the evidence of title to lands, it is evident that it can have none in this state. Our conveyances are very simple. The land conveyed is described by metes and bounds, or by some gen- eral and certain description of its limits, without any designation of the kind of land conveyed, whether it be arable land or grass land, woodland or cleared land, pasture or meadow. As to the other acts complained of, we think they can not be deemed waste, unless they jnay be prejudicial to the plaintiff ; and that ihe instructions to the jury, in this respect were therefore correct. To erect a new house on the land where there was not any before, is not waste-; Bac. Abr., Waste, C. 5. So there seems no authority for hold- ing that the opening of a way by the defendant, for his convenience, and draining the land, are acts of waste. And as to raising the land, by carrying thereon quantities of earth, whatever may be the law of England, it is not in this commonwealth waste, unless it may be pre- judicial to the plaintiff. The ancient doctrine of waste, if universally adopted in this country, would greatly impede the progress of improve- ment, without any compensating benefit. To be beneficial therefore, the rules of law must be accommodated to the situation of the country, and the course of affairs here; as it has been frequently decided: Winship v. Pitts, 3 Paige, 259, and other cases cited by the defend- ants' counsel. In this country it is difficult to imagine any exception to the general rule of law, that no act of a tenant will amount to waste, unless it is or may be prejudicial to the inheritance, or to those entitled to the reversion or remainder. For these reasons, we are of opinion that the instructions to the jury were correct. OWEN v. HYDE. 6 Yerger (Tenn.) 334; 2/ Am. Dec. 467. (1834) Action for waste brought by one of the heirs of Henry Hyde, de- ceased, against his widow, for cutting timber on a part of the estate assigned to the latter for her dower, the reversion in that part of the dower estate having been set off to the plaintiff, on a division of the land between the heirs subsequent to the assignment of dower. The timbefr was cut for the purpose of clearing the land for cultivation, though not actually necessary for the defendant's support, the dower 524 Cases on Real Property estate including already about one hundred acres of cleared land, most of which, however, was much worn. Some of the timber cut was used in fencing on another part of the dower estate assigned to another of the heirs. The court charged the jury, among other things, that the defendant could cut timber for the purpose of clearing land for cul- tivation, though not necessary for her support, provided enough tim- ber was left for the permanent use of the dower estate. Verdict and judgment for the defendant, and the plaintiff brought error. Green, J. The question here is, whether the judge erred in his charge to the jury. In order to the formation of a correct opinion in this cause, it is proper to remark, that whatever may be said in. rela- tion to the defendant's rights and liabilities must be understood as re- lating to the whole dower estate. She was not bound to notice any division which may have been made of the reversionary interest among the heirs ; she took the dower estate as it was assigned to her with the rights and liabilities which attach to that as a whole; and al- though she may have destroyed all the timber which was on that part of one of the lots included in her dower, yet, if the dower estate was not injured, but benefited thereby, she would not be guilty of waste, for that is the great criterion by which to determine whether waste has been committed, as that only which does a lasting damage to the in- heritance, or depreciates its value, is waste. It is clear, that the cut- ting timber and clearing land instead of being waste would often greatly enhance the value of the inheritance. In this country, where so large a proportion of the lands are wild, and yet in forest, it is often of great advantage to the estate to destroy the timber and reduce the land to a state of cultivation: 3 Dane Abr. 214, 215; 4 Kent. 76, "]"]. It is not a question then, whether the dowager cut the timber from this fifteen acres as a necessary means of support, but it is, did she materially injure the dower estate thereby; if so, she would be liable to an action for waste, but if not, although the clearing was not neces- sary for her support, and although she may have done it for the pur- pose of profit, she is not liable. If the cleared land on the dower es- tate was old and worn, and if the proportion of woodland was such as that a prudent farmer would have considered it best to reduce a portion of it to cultivation, whereby to relieve the old land from excess of culture, and thus enhance the value of the whole dower estate, such clearing would not be waste, provided, "sufficient timber for the per- manent use of the dower estate" were left : 7 Johns. 227 ; 4 Kent, 76. In respect to the privilege of a tenant for life, in the destruction of timber, the law must necessarily be varied in this country from the Rights of ENjoYMfiNT 525 English doctrine. There, we could not well conceive of the destruction of timber without attaching to it the idea of an injury to the estate, as timber is scarce, and forest trees are planted and raised for fuel and for timber, it is of too much value to permit its unnecessary destruc- tion. That not being the state of things here, but on the contrary, as a benefit often results to the estate by clearing away the timber, it would be absurd to apply the rigid principles of the English law to a state of things wholly variant from theirs. We are therefore of opinion there was no error in the charge of the court, and order the judgment to be affirmed. Note: In Clemence v. Steere, i R. I. 272; 53 Am. Dec. 621, it was said: "The defendant is charged with having converted meadow land into pasture land. In England, this would be waste. But we are not to apply the English law too strictly. Our lands are, in many re- spects, cultivated differently from land in England ; and this difference is to be taken into account. Here it is necessary to show that the change is detrimental to the inheritance, and contrary to the ordinary course of good husbandry. If in this case the change injured the farm, or was such a change as no good farmer would make, it was waste.'' "It is said that the pastures had been permitted to become over- grown with brush. In England, that would be waste, but you would not expect so high a state of cultivation in Burrillville as in England, or as in the vicinity of a populous city. There must be such neglect in cutting the brush as a man of ordinary prudence would not permit; and if there was in this case such neglect, it was waste." SEC. 6. LAND UNDER WATER. BARNEY V. KEOKUK. 94 U. S. 324; 24 L. Ed. 224. (1876) This was an action of ejectment brought by the plaintiff against the city of Keokuk and several railroad companies and a steam-packet company, to recover the possession of certain premises occupied by them with railroad tracks, buildings, and sheds on the bank of the Mississippi River, in the city aforesaid. The plaintiff, in his petition, described the premises as follows : "All the land lying and being in 526 Cases on Reai, Property front of lots 5 and 6, in block 3, in the city of Keokuk, Lee County, Iowa, and extending from the front line of said lots to the Mississippi River the full width of said lots." The petitioner states that he is the owner in fee simple of the premises, subject only to the right of the public to use that part of them embraced within the limits of Water Street as a public highway, and is entitled to possession as against the defendants, that the city of Keokuk claims to be the proprietor, and the other defendants occupy as its tenants. The city, by its answer, admitting that the plaintiff is owner of lots 5 and 6, in block 3, states, in substance, that all the land in front of them down to the Mississippi River was in 1840 dedicated to public use as a street and levee, and, as such, has been used and improved ever since under the possession and control of the city, by virtue of its charter, and has, at its expense been extended out about two hundred and fifty feet by depositing earth and stone in the river, in order to make the wharf and levee more convenient, safe, and useful. Other defences were interposed, which it is not necessary to specify. The other defendants claim under authority of the city. The cause was tried by the court, and a special finding of the facts and the law was made. From these findings, it appears that the city of Keokuk is situated upon a tract of land lying between the Mississippi and the Des ]\Toines Rivers, in Lee County, Iowa, known as the "Half-breed Sac and Fox reservation," which, by treaty with the Sac and Fox tribes of Aug. 4, 1824, 7 Stat. 229, was granted to' the half-breeds of those tribes, to be by them held in the same manner as other Indian titles are held. ' The fee, with power of alienation, was subsequently vested in them. Nu- merous parties became interested in the tract by purchase, and a town was laid out and lots sold as early as 1837; but no regular town plat, having the requisites of the town-plat law of 1839, seems to have ' been filed or recorded in the recorder's office of the county. One Gal- land, who seems to have been a part owner, made out such a plat, and filed it; but there is no proof that he had authority for his acts from the other proprietors. In 1840, suit for a partition of the tract was commenced, and regular proceedings were had, resulting, in October, 1841, in a final decree of partition, made according to the report of commissioners, and embodying a plat or map of the town of Keokuk. Said lots 5 and 6, in block 3, are exhibited on this map, and were drawn by the parties under whom the plaintiff claims title. In its findings of fact, the court sets forth portions of the decree, and, amongst other things, the following: Rights of EnjoymBnt 527 "In describing each of said shares, the commissioners appointed by the court say, among other things : 'The lots upon Water Street in- clude all the land in front of them to the Mississippi River.' "And, after describing all the shares, they say : — " 'In describing the boundary of the town-lots situated on Water Street in the towns of Keokuk and Nashville, we have made them to include all the land in front of them to the Mississippi River, by which we mean in front of them, facing the river, parallel with the streets running from Fourteenth Street to Water Street.' "And in describing the plat of Keokuk, the commissioners' report, among other things, says : — " 'Plat of Keokuk, in the county of Lee, Territory of Iowa, upon the half-breed tract, the outlines of which were designated and marked by Jenefer T. Spring in his survey as town reservation, * * * Water Street is of unequal and irregular width at the point's where the dotted lines pass across the same. " 'The street is of the width in feet as is represented by the figures set on said lines. Water Street extends the whole front on river side of the town, or from the intersection of Orleans Street with the Mis- sissippi River, down the right bank of the river, with the meanders thereof, to the intersection of Cedar Street with the Mississippi River.' " The Galland map was produced on the trial, also a fragment of an- other map, which bears date August, 1840, found in the recorders' office. By these, as well as the map embodied in the decree, the space between the front of the lots and the river is designated as Water Street, and appears to have been, at that time about one hundred feet wide. As to the occupation of Water Street in front of the plaintiff's lots, and its extension on the river side, the court found : — "The city of Keokuk has, since the year 1865, caused the space originally covered by water on the river side of Water Street, in front of said lots, to be filled in with earth and stone for a space of over two hundred feet beyond the original water-line to ordinary high-water mark, and about three hundred and fifty-two feet to low water mark, said filling having been done by said city. That part of the space be- tween the front of said lots and the river at ordinary high-water mark is occupied as follows : — "i. By the freight-house or depot of the defendant, the Keokuk and Des Moines Railway Company, * * * a permanent and sub- stantial frame building. It has been standing a good many years, 528 Cases on Real Property * * * is used for storing freight by said railroad company, is two hundred and three feet long and twenty feet wide, and one story high, and covers the whole of the front of said lots 5 and 6, block 3. "2. By the railroad tracks used by the defendants, the Keokuk and Des Moines Railway Company, the Mississippi Valley and Western Railway Company (now St. Louis, Keokuk, and Northwestern Rail- way Company), the Toledo, Peoria, & Warsaw Railway Company, and the Toledo, Wabash, and Western Railway Company. Altogether there are ten railroad tracks between the front of said lots and high- water mark. "3. By the building known as the Keokuk Northern Line Packet depot, * * * a permanent and substantial building, one hundred feet long and fifty feet. wide, formed of substantial timbers, and about fourteen or fifteen feet high. It was built by said packet company for its own use in carrying on its business as a common carrier by steam- boats on the Mississippi River, and is used by it in connection with its transportation business for the temporary storage of freight carried or to be carried by said company, and also for the business offices of said company at Keokuk. Said building has five large doors through which teams are driven in delivering or receiving freight, and which doors are closed at night. The building is one and a half stories high, with office rooms on second floor, and the ground floor is of heavy two-inch lumber laid on sills about two feet apart." The map shows that this building stands on the newly made ground below originfil high water. The court further found: — "That none of the defendants so occupying said ground, nor the ■city, has caused any condemnation, nor asked or obtained the permis- sion of plaintiff, nor paid him any damages in compensation for the use of said ground. But they all and severally hold the same under the license or permission of the city of Keokuk only." * * * Mr. Justice Bradley, after stating the case, delivered the opinion of the court. We agree with the court below that the dedication of the streets of Keokuk was a dedication at common law, and not under the statute; and that, in making this dedication, the original proprietors of the tract reserved the title to the soil in the street, particularly in Water Street ; and that this title went with the several lots fronting on the street, and extended to the Mississippi River. Whether, under the laws of Iowa, it also attached to the new ground formed by filling in upon the bed of the river is not so clear. It appears to be the settled law of that Rights of Enjoymbnt 529 State that the title of the riparian proprietors on the banks of the Mississippi extends only to ordinary high-water mark, and that the shore between high and low water mark, as well as the bed of the river, belongs to the State. This is also the common law with regard to navigable waters ; although, in England, no waters are deemed nav- igable except those in which the tide ebbs and flows. In this country, as a general thing, all waters are deemed navigable which are really so; and especially it is true with regard to the Mississippi and its prin- cipal branches. The question as to the extent of the riparian title was elaborately discussed in the case of McManus v. Carmichael, 3 Iowa, i. The above conclusion was reached, and has always been adhered to, in that State. Haight v. The City of Keokuk, 4 Iowa, 199; Tomlin v. Dubuque, &<:. Railroad Co., 32 id. 106. The peculiar origin of the title to the "Half-breed Sac and Fox reservation," in the peninsula lying between the rivers Mississippi and Des Moines, did not take it out of the general rule. This was so held in Haight v. The City of Keokuk, supra. That case was nearly iden- tical with the present as respects the claim of the adjoining proprietor to the title of the land in Water Street and on the river bank. Haight contested the right of the city to control the wharf along said street, claiming by virtue of his fee-simple title, the right to erect a private wharf and to receive the emoluments thereof. His claim was over- ruled, and on the question of title the court said : — "According to the case of McManus v. Carmichael, then, Haight owns the soil to high water only. But here is interposed the argument, that this land is not held under the United States by the usual manner of grants, that is, by patent, after a survey, and described by section, town, and range. This is true; but yet it will not aflfect the extent of the complainant's right. The grant to the half-breeds was to them as persons and not as a political body. The political jurisdiction re- mained in the United States. Had the grant been to them as a politi- cal society, it would have been a question of boundary between nations or States, and then the line would have been the medium filum aquae, as it is now between Iowa and Illinois. * * * The grant was to them as individuals, — as tenants in common, — and is to be construed as any other grant or sale to individuals." The court then goes on to refer to various cases to show that the government cannot convey the land between high and low water on the public or navigable rivers, but that this space belongs to the State; citing Mayor of Mobile v. Eslava, 9 Port, 578 ; 16 Pet. 234 ; Pollard's Lessee v. Hagan, 3 How. 212. 530 Cases on Reai, Property It is generally conceded that the riparian title attaches to subsequent accretions to the land effected by the gradual and imperceptible op- eration of natural causes. But whether it attaches to land reclaimed by artificial means from the bed of the river, or to sudden accretions produced by unusual floods, is a question which each State decides for itself. By the common law, as before remarked, such additions to the land on navigable waters belong to the crown ; but as the only waters recognized in England as navigable were tide-waters, the rule was often expressed as applicable to tide-waters only, although the reason of the rule would equally apply to navigable waters above the flow of the tide; that reason being, that the public authorities ought to have entire control of the great passageways of commerce and navigation, to be exercised for the public advantage and convenience. The con- fusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas ; and under the like influence it laid the founda- tion in many States of doctrines with regard to the ownership of the soil in navigable waters above tide-water at variance with sound prin- ciples of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as be- fore remarked, is for the several States themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject the correct principles were laid down in Martin v. Waddell, i6 Pet. 367, Pollard's Lessee v. Hagan, 3 How. 212, and Goodtitle v. Kibbe, 9 id. 471. These cases related to tide-water, it is true; but they enunciate principles which are equally applicable to all navigable waters. And since this court in the case of The Genesee Chief, 12 id. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly be- longs to the States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases must Rights of Enjoyment 531 depend, on the local laws of the States in which the lands were situated. In Iowa, as before stated, the more correct rule seems to have been adopted after a most elaborate investigation of the subject. •The exhaustive examination of this question by the Supreme Court of Iowa in 1856, in the case of McManus v. Carmichael, 3 Iowa, i, really leaves nothing to be said. The precise point was directly before the court, — namely, whethtr the title of the riparian proprietor extends below high water, in the Mississippi River ; and it was decided that it does not. This decision has been followed by subsequent cases, es- pecially the cases of Haight v. The City of Keokuk, 4 id. 199; and Tomlin V. Dubuque Railroad Co., 32 id. 106. But whatever may be the true rule on this vexed question, and whether we rightly comprehend the Iowa decisions or not we have no doubt that the city authorities of Keokuk, representing the public, had the right to widen and improve Water Street to any extent on the river side, by filling in below high water, and building wharves and levees for the public accommodation. By the charter of the city, passed Dec. 13, 1848, it was provided, — "Sect. 14. That the city council shall have power * * * to es- tablish and constitute landing-places, wharves, docks, and basins in said city, at or on any of the city property, and fix the rate of landing, wharfage, and dockage of all steamboats, boats, rafts, and other water- crafts, and of all goods, wares, merchandise, produce, and other articles that may be moored at, landed on, or taken from any landing, wharf, dock, or basin belonging to said city." "Sect. 16. That the city council shall have power * * * to H- cense and establish ferries across the Mississippi River from said city to the opposite shore to fix the rates of the same." * * * "Sect. 22. The city council shall have exclusive power to establish and regulate the grade of wharves, streets, and banks along the Mis- sissippi River, within the corporate limits of said city." And by a supplement, passed Jan. 22, 1853, it was provided, — "Sect. 7. The said city of Keokuk shall have the power to estab- lish and regulate wharf or wharves in said city, and more particularly to use the whole of Water Street for said purpose." * * * Although it should be conceded that the title of the plaintiff attached to the ground reclaimed and filled in by the city outside of the original high water, it was a bare legal title, subject to the public easement and use, not only for street purposes, but for the purposes of wharves, landings, and levees. A street bordering on the river, as this did, ac- cording to the plan of the town adopted by the decree of partition, 532 CaSBS on REAI, pROPERXy must be regarded as intended to be used for the purposes of access to the river, and the usual accommodations of navigation in such a con- nection. This subject is discussed in Haight's case, where the court said, — "One further thought, presented .by the petitioner, should be no- ticed. It is, that if this ground is dedicated to the public, it is as a street only; and that if his rights are subject to the public uses, they are so subject to the use of it only as a street or highway, and not as a wharf, and that it is named and called a street and not a wharf. He claims that the object of a street is for passage, for traveling over, and not to land or deposit goods upon. This is taking a very narrow and close view. The streets of a town are fairly subject to many purposes to which a highway in the country would not be. More regard should be paid to the object and purpose than to the name. The ways of a town would be of comparatively little use if the citizens and traders could not deposit their goods in them temporarily, in their transit to the storehouse; and so of other things, and so it is of the wharf. If goods can*iOt be deposited upon it in preparation for shipping them, or unladen upon it from boats and vessels, why is a town located near the river upon land which, in other respects, is inconvenient, and is expensive to grade, to bring into form and order, and to keep in re- pair, instead of upon an even prairie, requiring no such trouble and outlay ?" On the general question as to the rights of the public in a city street, we cannot see any material difference in principle with regard to the extent of those rights, whether the fee is in the public or in the ad- jacent land-owner, or in some third person. In either case, the street is legally open and free for the public passage, and for such other public uses as are necessary in a city, and do not prevent its use as a thoroughfare, such as the laying of water-pipes, gas pipes, and the like; and, according to the laws of Iowa (which must be taken to govern the case), it may be occupied by those improved iron ways for public passage which modern skill has devised, and which the advance of general improvement requires. It cannot be denied that horse- railroads have contributed immensely to the ptrblic convenience in fur- nishing a rapid, cheap, and convenient means of communication be- tween different parts of large towns, and have greatly promoted their increase and growth in wealth and population. By the accommodation which they afford, the citizen can reside miles from his shop or place of business. Though attended with some inconveniences, they have' Rights of Enjoyment 533 greatly added to the efficiency of the public thoroughfares, and have more than doubled their capacity for travel and transportation. So other railways coming to cities add greatly to their population and wealth, and furnish greatly increased facilities of communication with other portions of the country. In Iowa, by the act called the "Right of Way Act," fourid in the Code of 1851, sect. 735, it is declared that, — "The county court may also grant licenses for the construction of any canal or railroad, or any macadamized or plank-road, or any other improvement of a similar character, or any telegraph lirte, to keep the same up for a period not exceeding fifty years, and to use for this purpose any portion of the public highway or other property, public or private, if necessary : Provided, such use shall not obstruct the high- way." Iowa Revision of i860, p. 206. By the construction given to this act by the Supreme Court of the State, railroads, especially when located and constructed under mu- nicipal regulation and control, are not regarded as obstructions to a highway in the legal sense, nor as creating, when laid thereon, any in- jury to the proprietors of the adjacent lands, for which they are en- titled to compensation. The cases referred to by the Cincuit Court (which are given below) abundantly demonstrate this conclusion, and no elaborate discussion of the subject is required from us. See Mil- burn V. Cedar Rapids, 12 Iowa, 249-260; Clinton v. Cedar Rapids & Mo. Railroad Co., 24 id. 455 ; Tomlin v. Dubuque Railroad Co., 32 id. 106 ; Chicago, Newton & S. W. Railroad Co., 36 id. 299 ; Cook v. City of Burlington, id. 357; Clinton v. Clinton & Lyon Railroad Co., 37 id. 61 ; Ingraham et al. v. Chicago, Dubuque, & Minn. Railroad Co., 38 id. 669. The cases cited, it is true, are generally those in which the fee of the streets was in the cities respectively, as is commonly the case in Iowa. But in Haight's case, in 4 Iowa, the very street now in question was under consideration, and the plaintiff had the same title as that of the plaintiff in the present case ; and the principles laid down in all the later cases apply as well where the title of the soil is in the adjacent proprietor as where it is in the city or a third party. And, as before remarked, we can perceive no well-founded difference in principle be- tween the one and the other as to the rights of the public. The Circuit Court is clearly correct, however, in holding that the construction of a permanent freight depot in Water Street was an un- authorized and improper occupation of that street. It was a total ol)- struction of the passage; and this, as we have said, cannot be created 534 Cases on Real Property or allowed. It is subversive of, and totally repugnant to, the dedica- tion of the street, as well as to the rights of the public. We also concur in the view taken by the Circuit Court as to the reasonableness of the erection of the packet depot in the place where it is located. It is a necessary adjunct to the steamboat landing, and the use of the wharf and levee for the purposes of navigation, and does not occupy any portion of the original street. It is a public use of the river bank, which is absolutely necessary to the use of the river as a navigable water. The erection of levees, wharves, and other accommodations on the very ground appropriated to such purposes by the original plot of the town, or, stronger still, on ground made and reclaimed from the bed of the river adjoining iht street thus appro- priaited, and in enlargement thereof, is clearly within the powers of the city authorities as laid down in the cases referred to. Judgment affirmed. SHIVELY V. BOWLBY et al. 132 U. S. i; 38 L. Ed: 331; 14 Sup. Ct. 548. (1894) The original suit was in the nature of a bill in equity brought June 8, 1891, by John Q. A. Bowlby and W. W. Parker against Charles W. Shively and wife, in the circuit court for the county of Clatsop and state of Oregon, to quiet the title to lands below high-water mark in the city of Astoria. The case, as appearing by the record, was as follows : On and before May 20, 1854, John M. Shively and wife were the owners of a donation land claim, as laid out and recorded by him un- der the act of congress of September 27, 1850, c. 76, (9 Stat. 496,) commonly known as the "Oregon Donation Act/' embracing the then town and much of the present city of Astoria, and bounded on, the north by the Columbia river. On May 20, 1854, John M. Shively laid out and caused to be re- corded a plat of that claim, not only of the land above high-water mark, but also of adjacent tide lands and a portion of the bed of the Columbia river, including the lands in controversy, and divided into blocks 300 feet square, and separated from each other by streets 30 or 60 feet wide, some running at right angles to, and the others nearly Rights of Enjoyment 535 parallel with, high-water mark, the ontermost of which streets were not within 800 feet of the ship channel. Blocks 4 and 9 were above ordinary high-water mark. Block 146 was in front of block 4, and between high and low water mark. In front of block 9 came blocks 141, 126, and 127, successively. A strip about 50 feet wide, being the southern part of block 141, was above high-water mark, and the whole of the rest of that block was below high-water mark and above low-water mark. The line of ordinary low tide was on September 18,-1876, at the north line of that block; but on December 15, 1890, and for some time before this date, was 100 feet north of the north line of block 127. On February 18, i860, John M. Shively and wife conveyed blocks 9, 126, 127, and 146, "in the town plat of Astoria, as laid out and re- corded by John M. Shively," to James Welch and Nancy Welch, whose title was afterwards conveyed to the plaintiffs. On June 2, 1864, John M. Shively laid out and caused to be re- corded an additional plat, covering all the space between blocks 127 and 146 and the channel. In 1865 the United States issued a patent to John M. Shively and wife for the donation land claim, bounded by the Columbia river. On September 18, 1876, the state of Oregon, by its governor, secre- tary, and treasurer, executed to the plaintiffs a deed of all the lands lying between high-water mark and low- water mark in front of block 9, including all the tide land in block 141, and also a deed of all the tide lands in block 146, but never executed to any one a deed of any tide lands north of block 146. The plaintiffs afterwards held possession of the lands so conveyed to them, and maintained a wharf in front of block 127, which extended several hundred feet into the Columbia river, and at which ocean and river craft were wont to receive and discharge freight. On December 15, 1890, John M. Shively, having acquired whatever title his wife still had in the lands in controversy, conveyed all his right, title, and interest therein to the defendant Charles W. Shively. On April 7, 1891, the defendants, pretending to act under the statute of Oregon of February 18, 1891, (Laws 1891, p. 594) executed and recorded an instrument dedicating to the public their interest in some of the streets adjacent to these lands. The plaintiffs claimed, under the deeds from the state of Oregon, the title in all the tide lands on the west half of bloclc 141, on all of blocks 126 and 127 and north thereof, and on the west half of block 146 and north thereof, between the lines of low and ordinary high tide 536 Cases on Reai< Property of the Columbia river; and also claimed all the wharfing rights and privileges in front thereof to the ship channel; and prayed that the cloud created by the defendants' instrument of dedication might be , removed, and the defendants be adjudged to have no title or right in the premises, and for further relief. The defendants denied any title or right in the plaintiffs, except in the west half of block 146; and, by counterclaim, in the nature of a cross bill, stating the facts above set forth, asserted that, under the patent from the United States to John M. Shively, and his deed to Charles W. Shively, the latter was the owner in fee simple of so much of the east half of block 141 as was above high-water mark, and of all the tide lands and riparian and wharfing rights in front thereof to the channel, excepting blocks 126 and 127, and was also the owner of all the riparian and wharfing rights in front of block 4 to the channel, excepting block 146; and contended that the first deed from the state of Oregon to the plaintiff's conveyed no title in that part of block 141 above high-water mark, or in any tide lands, and that Shive- ly's conveyance of specific blocks by reference to his plat passed no wharfing rights in front thereof ; and prayed that Chas. W. Shively might have possession of said premises, and damages against the plain- tiffs for withholding the same, and further relief. The court sustained a demurrer of the plaintiffs to the counterclaim, (except as to that part of block 141 above high-water mark,) and dismissed that claim; and then, on motion of the plaintiffs, dismissed their suit, without prejudice to their interest in the subject thereof. Mr. Justice Gray, after stating the facts, delivered the opinion of the court. This case concerns the title in certain lands below high-water mark in the Columbia river, in the state of Oregon, the defendant below, now plaintiff in error, claiming under the United States, and the plain- tiffs below, now defendants in error, claiming under the state of Ore- gon, and is in substance this : John M. Shively, being the owner, by title obtained by him from the United States under the act of congress of September 27, 1850, (chapter 76,) while Oregon was a territory, of a tract of land in Astoria, bounded north by the Columbia river, made a plat of it, laying it out into blocks and streets, and including the ad- joining lands below high-water mark, and conveyed four of the blocks, one above and three below that mark, to persons who conveyed to the plaintiffs. The plaintiffs afterwards obtained from the state of Oregon deeds of conveyance of the tide lands in front of these blocks, and built and maintained a wharf upon part of them. The defendant, by Rights op ^^njoym^nt 53;? counterclaim, asserted a title, under a subsequent conveyance from Shively, to some > of the tide lands, not included in his former deeds, but included in the deeds from the state. The counterclaim, therefore, depended upon the effect of the grant from the United States to Shively of land bounded by the Columbia river, and of the conveyance from Shively to the defendant, as against the deeds from the state to the plaintiffs. The suprerhe court of Ore- gon, affirming the judgment of a lower court of the state, held the counterclaim to be invalid, and thereupon, in accordance with the state practice, gave leave to the plaintiffs to dismiss their complaint, without prejudice. Hill's Code Or. sections 246, 393. I. By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high-water mark, within the jurisdiction of the crown of England, are in the king. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are in- capable of ordinary and private occupation, cultivation, and improve- ment ; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the king's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, be- longs to the king, as the sovereign ; and the dominion thereof, jus pub- licum, is vested in him, as the representative of the nation and for the public benefit. The great authority in the law of England upon this subject is Lord Chief Justice Hale, whose authorship of the treatise De Jure Maris, sometimes questioned, has been put beyond doubt by recent researches. Moore, Foreshore, (3d Ed.) 318, 370, 413. In that treatise. Lord Hale, speaking of "the king's right of pro- priety or ownership in the sea and soil thereof" within his jurisdiction, lays down the following propositions : "The right of fishing in this sea and the creeks and arms thereof is originally lodged in the crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or as the right of fishing belongs to him that is the owner of a private or inland river." "But though the king is the owner of this great waste, and, as a consequent of his propriety, hath the primary right of fishing in the sea and the creeks and arms thereof, yet the common people of England have regularly a liberty of fishing in the sea or creeks or arms thereof, as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks or navigable rivers, where either the king or some 538 Cases on Real Property particular subject hath gained a propriety exclusive of that common liberty." "The shore is that ground that is between the ordinary high- water and low-water mark. This doth prima facie and of common right belong to the king, both in the shore of the sea and the shore of the arms of the sea." Harg. Law Tracts, pp. ii, 12. And he after- wards explains : "Yet they may belong to the subject in point of pro- priety, not only by charter or grant whereof there can be but little doubt, but also by prescription or usage." "But, though the subject may thus have the propriety of a navigable river part of a port, yet these cautions are to be added, viz. : * * * (2) That the people have a public interest, a jus publicum, of passage and repassage with their goods by water, and must not be obstructed by nuisances;" "for the jus privatum of the owner or proprietor is charged with and sub- ject to that jus publicum which belongs to the king's subjects, as the soil of an highway is, which though in point of property it may be a private man's freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified." Id. pp. 25, 36. So in the second part, De Portibus Maris, Lord Hale says that "when a port is fixed or settled by" "the license or charter of the king, or that which presumes and supplies it, viz. custom and prescription," "though the soil and franchise or dominion thereof prima facie be in the king, or by derivation from him in a subject, yet that jus privatum is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested, by reason of common commerce, trade, and intercourse." "But the right that I am now speaking of is such a right that belongs to the king jure preroga- tivae, and it is a distinct right from that of propriety ; for, as before I have said, though the dominion either of franchise or propriety be lodged either by prescription or charter in a subject, yet it is charged or affected with that jus publicum that belongs to all men, and so it is charged or affected with that jus regium, or right of prerogative of the king, so far as the same is by law invested in the king." Id. pp. 84, 89. In England, from the time of Lord Hale, it has been treated as set- tled that the title in the soil of the sea, or of arms of the sea, below or- dinary high-water mark, is in the king, except so far as an individual or a corporation has acquired rights in it by express grant, or by pre- scription or usage, (Fitzwalter's Case, 3 Keb. 242, i Mod. 105 ; 3 Shep. Abr. 97; Com. Dig. "Navigation," A, B ; Bac. Abr. "Prerogative," B ; King V. Smith, 2 Doug. 441 ; Attorney General v. Parmeter, 10 Price, 378, 400, 401, 411, 412, 464; Attorney General v. Chambers, 4 De Gex, Rights of Enjoyment 539 M. & G. 206, 4 De Gex & J. 55 ; Malcomson v. O'Dea, 10 H. L. Cas. 591, 618, 623; Attorney General v. Emerson, [1891] App. Cas. 649:) and that this title, jus privatum, whether in the king or in a subject, is held subject to the public right, jus publicum, of navigation and fish- ing, (Attorney General v. Parmeter, above cited; Attorney General v. Johnson, 2 Wils. Ch. 87, 101-103; Gann v. Free Fishers, 11 H'. I,. Cas. 192.) The same law has been declared by the house of lords to pre- vail in Scotland. Smith v. Stair, 6 Bell, App. Cas. 487; Lord Advo- cate V. Hamilton, i Macq. 46, 49. It is equally well settled that a grant from the sovereign of land bounded by the sea, or by. any navigable tide water, does not pass any title below high- water mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention. Lord Hale, in Harg. Law Tracts, pp. 17, 18, 27; Somerset v. Fogwell, 5 Barn. & C. 875, 885, 8 Dowl. &• R. 747, 755 ; Smith v. Stair, 6 Bell, App. Cas. 487 ; U. S. v. Pacheco, 2 Wall. 587. By the law of England, also, every building or wharf erected, with- out license, below high-water mark, where the soil is the king's, is a purpresture, and may, at the suit of the king, either be demolished, or be seized and rented for his benefit, if it is not a nuisance to navigation. Lord Hale, in Harg. Law Tracts, p. 85; Mitf. Eq. PI. (4th Ed.) 145; Blundell v. Catterall, 5 Barn. & Aid. 268, 298, 305 ; Attorney General V. Richards, 2 Anstr. 603, 616; Attorney General v. Parmeter, 10 Price, 378, 411, 464; Attorney General v. Terry, 9 Ch. App. 425, 429, note; Weber v. Commissioners, 18 Wall. 57, 65; Barney v. Keokuk, 94 U. S. 324, 337. By recent judgments of the house of lords, after conflicting decisions in the courts below, it has been established in England that the owner of land fronting on a navigable river in which the tide ebbs and flows has a right of access from his land to the river, and may recover com- pensation for the cutting off of that access by the construction of pub- lic works authorized by an act of parliament which provides for com- pensation for "injuries affecting lands," "including easements, inter- ests, rights and privileges in, over or affecting lands." The right thus recognized, however, is not a title in the soil below high-water mark, nor a right to build thereon, but a right of access only, analogous to that of an abutter upon a highway. Buccleuch v. Board of Works, L. R. 5 H. L. 418; Lyon v. Fishmongers' Co., r App. Cas. 662. "That decision," said Lord Selborne, "must be applicable to every country in which the same general law of riparian rights prevails, unless excluded by some positive rule or binding authority of the lex loci," Railway 540 Casbs on Real Property Co. V. Pion, 14 App. Cas. 612, 620, affirming 14 Can. Sup. Ct. 677. 2. The common law of England upon this subject, at the time of the emigration of our ancestors, is the law of this country, except so far as it has been modified by the charters, constitutions, statutes, or usages of the several colonies and states, or by the constitution and laws of the United States.- The English possessions in America were claimed by right of dis- covery. Having been discovered by subjects of the king of England, and taken possession of in his name, by his authority or with his as- sent, they were held by the king as the representative of, and in trust for, the nation, and all vacant lands, and the exclusive power to grant them, were vested in him. The various charters granted by different monarchs of the Stuart dynasty for large tracts of territory on the At- lantic coast conveyed to the grantees both the territory described and the powers of government, including the property and the dominion of lands under tide waters; and, upon the American Revolution, all the rights of the crown and of parliament vested in the several states, sub- ject to the rights surrendered to the national government by the con- stitution of the United States. Johnson v. Mcintosh, 8 Wheat. 543, 595; Martin v. Waddell, 16 Pet. 367, 408-410, 414; Com. v. City of Roxbury, 9 Gray, 451, 478-481 ; Stevens v. Railroad Co., 34 N. J. Law, 532; People v. New York & S. I. Ferry Co., 68 N. Y. 71. The leading case in this court, as to the title and dominion of tide waters and of the lands under them, is Martin v. Waddell, (1842,) 16 Pet. 367, which arose in New Jersey, and was as follows : The char- ters granted by Charles II., in 1664 and 1674, to his brother, the Duke of York, (afterwards James II.,) included New York and New Jersey and the islands of Martha's. Vineyard and Nantucket, and conveyed to the duke the territories therein described, "together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings and fowling, and all other royalties, profits, commodities and hereditaments," thereto be- longing or appertaining, and all the "estate, right, title, interest, benefit, advantage, claim and demand" of the king of, in or to the same; as well as full powers of government: provided, however, that all stat- utes, ordinances and proceedings should not be contrary to, but, as near as conveniently might be, agreeable to the laws, statutes and government of England. All these rights, both of property and of government, in a part of those territories, were granted by the Duke of York to the Proprietors of East Jersey ; and they, in 1702, surren- dered to Queen Anne all "the powers, authorities and privileges of and Rights os Enjoyment 541 concerning the government of" the province, retaining their rights of private property. Learning & Spicer's New Jersey Grants, 4, 5, 42, 43, 148, 149, 614, 615. An action of ejectment was brought in the circuit court of the United States for the district of New Jersey for land under tide waters in Raritan bay and river, to which the plaintiff claimed title under specific conveyances of that land from the Proprie- tors of East Jersey, and of which the defendants were in possession, for the purpose of planting and growing oysters, under a statute passed by the legislature of the state of New Jersey in 1824. This court, following, though not resting wholly upon the decieion of the supreme court of New Jersey in Arnold v. Mundy, 6 N. J. Law, I, gave judgment for the defendants for reasons assigned in the opin- ion delivered by Chief Justice Taney, which cannot be better summfed up than in his own words : "The country mentioned in the letters pat- ent was held by the king in his public and regal character as the repre- sentative of the nation, and in trust for them." 16 Pet. 409. By those charters, in view of the principles stated by Lord Hale in the passage above quoted concerning the right of fishing, "the dominion and pro- priety in the navigable waters, and in the soils under them, passed as a part of the prerogative rights annexed to the political powers con- ferred on the duke;" and "in his hands they were intended to be a trust for the common use of the new community about to be estab- lished," — "a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, as well for shellfish as floating fish," — and not as "private property, to be parceled out and sold by the duke for his own individual emolument." "And, in the judgment of the court, the lands under the navigable waters passed to the grantee as one of the royalties incident to the powers of govern- ment, and were to "be held by him in the same manner, and for the same purposes, that the navigable waters of England, and the soils under them, are held by the crown." Id. pp. 411-413. The surrender by the proprietors in 1702 restored to the crown all "its ordinary and well- known prerogatives," including "the great right of dominion and own- ership in the rivers, bays, and arms of the sea, and the soils under them," "in the same plight and condition in which they originally came to the hands of the Duke of York." Id. p. 416. "When the Revolu- tion took place, the people of each state became themselves sovereign, and in that character . hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government." Id„ p. 41Q, 542 Cases on Reai, Property It was in giving the reasons for holding that the royal charters did not sever the soil under navigable waters, and the public right of fish- ing, from the powers of government, and in speaking of the effect which grants of the title in the seashore to others than the owner of the upland might have, not upon any peculiar rights supposed to be incident to his ownership, but upon the public and common rights in, and the benefits and advantages of, the navigable waters, which the colonists enjoyed "for the same purposes, and to the same extent, that they had been used and enjoyed for centuries in England," and which every owner of the upland therefore had in common with all other persons, that Chief Justice Taney, in the passage relied on by the plaintiff in error, observed : "Indeed, it could not well have been otherwise ; for the men who first formed the English settlements could not have been expected to encounter the many hardships that unavoid- ably attended their emigration to the new world, and to' people the banks of its bays and rivers, if the land under the water at their very doors was liable to immediate appropriation by another, as private property, and the settler upon the fast land thereby excluded from its enjoyment, and unable to take a shellfish from its bottom, or fasten there a stake, or even bathe in its waters, without becoming a tres- passer upon the rights of another." i6 Pet. 414. The full extent of that decision may be more clearly appreciated by referring to the dissenting opinion of Mr. Justice Thompson in that case, and to the unanimous judgment of the court in the subsequent case of Den v. Jersey Co., (1853,) ^5 How. 426. In Martin v. Waddell, Mr. Justice Thompson unavailingly contended that the title in the lands under the navigable tide water — ^the jus pri- vatum, as distinguished from the jus publicum — passed as private property from the king to the duke, and from hini to the Proprietors of East Jersey, and was unaffected by their surrender to Queen Anne, and therefore passed from them to -the plaintiff, subject, indeed, to the public rights of navigation, passing and repassing, and perhaps of fishery for floating fish, but not to the right of planting, growing, and dredging oysters; and also that, if the king held this land as trustee for the common benefit of all his subjects, and inalienable as private property, the state of New Jersey, on succeeding to his rights at the Revolution, could not hold it discharged of the trust, and dispose of it to the private and exclusive use of individuals. 16 Pet. 418-434. In Den v. Jersey Co., which was ejectment for land under tide water that had been reclaimed and occupied as building lots by a corporation, pursuant to an act of the legislature of the state of New Jersey, the Rights of ENjoYMgNf S43 plaintiff, claiming under a conveyance from the Proprietors of East Jersey, contended that the fee of the soil under the navigable waters of that part of the state was conveyed to the proprietors as private property, subject to the public use; that, the public use having ceased as to the land in question, they were entitled to the exclusive posses- sion ; and that nothing but the right of fishery was decided in Martin V. Waddell ; but the court, again speaking by Chief Jtistice Taney, held that the decision in Martin v. Waddell, being in ejectment, necessarily determined the title -to the soil, and governed this case, and therefore gave judgment for the grantee of the state, and against the claimant under the proprietors. 15 How. 432, 433. 3. The governments of the several colonies, with a view to induce persons to erect wharves for the benefit of navigation and commerce, early allowed to the owners of lands bounding on tide waters greater rights and privileges in the shore, below high-water mark, than they had in England ; but the nature and degree of such rights and privileges differed in the different colonies, and in some were created by statute, while in others they rested upon usage only. In Massachusetts, by virtue of an ancient colonial enactment, com- monly called the "Ordinance of 1641," but really passed in 1647, and remaining in force to this day, the title of the owner of land bounded by tide water extends from high-water mark, over the shore or flats, to low-water mark, if not beyond 100 rods. The private right, thus created in the flats is not a mere easement, but a title in fee, which will support a real action, or an action of trespass quare clansum fregit, and which may be conveyed by its owner with or without the upland, and which he may build upon or inclose, provided he does not impede the public right of way over it for boats and vessels. But his title is sub- ject to the public rights of navigation and fishery; and therefore, so long as the flats have not been built upon or inclosed, those public rights are not restricted or abridged, and the state in the exercise of its sovereign power of police for the protection of harbors and the promotion of commerce, may, without making compensation to the owners pf the flats, establish harbor lines over those flats, beyond which wharves shall not thereafter be built even when they would be no actual injury to navigation. Mass. Colony Laws, (Ed. 1660,) p. 50; Id. (Ed. 1672) pp. 90, 91 ; City of Boston v. Lecraw, 17 How. 426, 432, 433 ; Richardson v. City of Boston, 19 How. 263, and 24 How. t88; Com. v. Alger, 7 Cush. 53, 67-81. It is because of the ordinance vesting the title in fee of the flats in the owner of the upland that a conveyance of his land bounding on the tide water, by whatever name. 544 Cases on Real Prop^rtv whether "sea," "bay," "harbor," or "river," has been held to include the land below highwater mark, as fax as the grantor owns. City of Boston V. Richardson, 13 Allen, 146, 155, and 105 Mass. 351, 355, and cases cited. As declared by Chief Justice Shaw, grants by the colony of Massachusetts, before the ordinance, of lands bounded by tide water, did not include any land below high-water mark. Com. v. Al- ger, 7 Cush. 53, 66; Com. v. City of Roxbury, 9 Gray, 451, 491-493. See, also, Litchfield v. Scituate, 136 Mass. 39. The decision in Man- chester V. Massachusetts, 139 U. S. 240, 11 Sup. Ct. 559, affirming 152 Mass. 230, 25 N. E. 113, upheld the jurisdiction of the state, and its authority to regulate fisheries, within a marine league from the coast. The rule or principle of the Massachusetts ordinance has been adopted and practiced on in Plymouth, Maine, Nantucket, and Alar- tha's Vineyard, since their union with the Massachusetts colony under the Massachusetts province charter of 1692. Com. v. Alger, 7 Cush. 53, 76, and other authorities collected in Com. v. City of Roxbury, 9 Gray, 523. In New Hampshire, a right in the shore has been recognized to be- long to the owner of the adjoining upland, either by reason of its having once been under the jurisdiction of Massachusetts, or by early and continued usage. Nudd v. Hobbs, 17 N. H. 524, 526; Clement v. Burns, 43 N. H. 609, 621 ; Manufacturing Co. v. Robertson, 66 N. H. I, 26, 27, 25 Atl. 718. In Rhode Island, the owners of land on tide water have no title below high-water mark, but by long usage, apparently sanctioned by a colonial statute of 1707, they have been accorded the right to build wharves or other structures upon the flats in front of their lands, pro- vided they do not impede navigation, and have not been prohibited by the legislature ; and they may recover damages against one who, with- out authority from the legislature, fills up such flats so as to impair that right. Ang. Tide Waters, (2d. Ed.) 236, 237; Folsom v. Free- born, 13 R. I. 200, 204, 210. It would seem, however, that the owner of the upland has no right of action against any one filling up the flats by authority of the state for any public purpose. Gerhard v. Commis- sioners, 15 R. I. 334, 5 Atl. 199; Clark v. City of Providence, 16 R. I. 337, 15 Atl. 763. In Connecticut, also, the title in the land below high-water mark is in the state. But by ancient usage, without any early legislation, the proprietor of the upland has the sole right, in the nature of a fran- chise, to wharf out and occupy the flats, even below low-water mark, provided he does not interfere with navigation; and this right may be Rights of Enjoyment 545 conveyed separately from the upland, and the fee in flats so reclaimed vests in him. Society v. Halstead, 58 Conn. 144, 150-152, 19 Atl. 658; Prior V. Swartz, 62 Conn. 132, 136-138, 25 Atl. 398. The exercise of this right is subject to all regulations the state may see fit to impose, by authorizing commissioners to establish harbor lines or otherwise. State V. Sargent, 45 Conn. 358. But it has been intimated that it can- not be appropriated by the state to a different public use without com- pensation. Farist Steel Co. v. City of Bridgeport, 60 Conn. 278, 22 Atl. 561. In New York, it was long considered as settled law that the state succeeded to all the rights of the crown and parliament of England in lands under tide waters, and that the owner of land bounded by a navigable river within the ebb and flow of the tide had no private title or right in the shore below high-water mark, and was entitled to no compensation for the construction, under a grant from the legislature of the state, of a railroad along the shore between high and low water mark, cutting off all access from his land to the river, except across the railroad. Lansing v. Smith, 4 Wend. 9, 21 ; Gould v. Railroad Co., 6 N. Y. 522 ; People v. Tibbetts, 19 N. Y. 523, 528 ; People v. Canal Appraisers, 33 N. Y. 461, 467; Langdon v. Mayor, etc., of New York, 93 N. Y. 129, 144, 154-156; Mayor, etc., of New York v. Hart, 95 N. Y. 443, 450, 451, 457; In re Staten Island Rapid Transit Co,, 103 N. Y. 251, 260, 8 N. E. 548. The owner of the upland has no right to wharf out without legislative authority; and titles granted in lands under tide water are subject to the right of the state to establish harbor lines. People v. Vanderbilt, 26 N. Y. 287, and 28 N. Y. 396 ; People v. New York & S. I. Ferry Co., 68 N. Y. 71. The law of that state, as formerly understood, has been recently so far modified as to hold — in accordance with the decision in Buccleuch v. Board of Works, L. R. 5 H. L. 418, and contrary to the decisions in Gould v. Railroad Co., above cited, and in Stevens v. Railroad Co., 34 N. J. Law, 532 — ^that the owner of land bounded by tide water may maintain an action against a railroad corporation constructing its road, by authority of the legislature, so as to cut off his access to the water. Williams v. Mayor, etc., of New York, 105 N. Y. 419, 436, 11 N. E. 829; Kane v. Rail- road Co., 125 N. Y. 164, 184, 26 N E. 278; Rumsey v. Railroad Co., 133 N. Y. 79, 30 N. E. 654, and 136 N. Y. 543, 32 N. E. 979. The law of New Jersey upOn this subject was recognized and clearly stated in a recent judgment of this court, in which a grant by commissioners, under a statute of the state, to a railroad corporation, of a tract of land below high-water mark, was held to preclude a city 546 Cases on Rsai, Property from continuing, over the flats, a highway dedicated to the public by the owner of the upland. "In the examination of the effect to be given to the riparian laws of the state of New Jersey," said Mr. Justice Matthews, speaking for the court, "it is to be borne in mind that the lands below high-water mark, constituting the shores and submerged lands of the navigable waters of the state, were, according to its laws, the property of the state as sovereign. Over these lands it had abso- lute and exclusive dominion, including the right to appropriate them to such uses as might best serve its views of the public interest, subject to the power conferred by the coustitution upon congress to regulate foreign and interstate commerce. The object of the legislation in question was evidently to define the relative rights of the state, repre- senting the public sovereignty and interest, and of the owners of land bounded by high-water mark." "The nature of the title in the state to lands under tide water was thoroughly considered by the court of errors and appeals of New Jersey in the case of Stevens v. Railroad Co., 34 N. J. I,aw, 532. It was there declared (page 549) 'that all navigable waters within the territorial limits of the state, and the soil under such waters, belong, in actual propriety, to the public; that the riparian owner, by the common law, has no peculiar rights in this pub- lic domain as incidents of his estate; and that the privileges he pos- sesses by the local custom, or by force of the wharf act, to acquire such rights, can, before possession has been taken, be regulated 'or re^ voked at the will of the legislature. The result is that there is no legal obstacle to a grant by the legislature to the defendants of that part of the property of the public which lies in front of the lands of the plaintiff, and which is below high-water mark.' It was therefore held, in that case, that it was competent for the legislative power of the state to grant to a stranger lands constituting the shore of a nav- igable river under tide water, below high-water mark, to be occupied and used with structures and improvements in such a manner as to cut off the access of the riparian owner from his land to the water; and that, without making compensation to him for such loss." Ho- boken v. Railroad Co., (1887,) 124 tf. S. 656, 688, 690, 691, 8 Sup. Ct. 643. The arguments on both sides of that proposition, upon general prin- ciples, as well as under the law of New Jersey, are nowhere more strongly and fully stated than by Chiei Justice Beasley, delivering the opinion of the majority of the court, and by Chancellor Zabriskie, speaking for the dissenting judges, in Stevens v. Railroad Co., above cited, decided in 1870. Two years later. Chancellor Zabriskie recog- Rights op Enjoyment 547 nized it as settled by that case "that the lands under water, including the shore on the tide waters of New Jersey, belong absolutely to the state, which has the "power to grant them to any one, free from any right of the riparian owner in them." Pennsylvania R. Co. v. New York & L. B. R. Co., 23 N. J. Eq. 157, 159. See, also. Railroad Co. v. Yard, 43 N. J. Law, 632, 636; American Dock Co. v. Trustees of Public Schools, 39 N. J. Eq. 409, 445. In Pennsylvania, likewise, upon the Revolution, the state succeeded to the rights, both of the crown and of the proprietors, in the navigable waters and the soil under them. Rundle v. Canal Co., 14 How. 80, 90 ; Oilman v. Philadelphia, 3 Wall. 713, 726. But, by the established law of the state, the owner of lands bounded by navigable water has the title in the soil between high and low water mark, subject to the public right of navigation, and to the authority of the legislature to make public improvements upon itj and to regulate his use of it. Tinicum Fishing Co. v. Carter, 61 Pa. St. 21, 30, 31; Wainwright v. McCul- lough, 63 Pa. St. 66, 74; Zug v. Com., 70 Pa. St. 1 38 r Philadelphia v. Scott, 81 Pa. St. 80, 86; Wall v. Harbor Co., 152 Pa. St. 427, 25 Atl. 647. In Delaware, as has been declared by its supreme court, "all nav- igable rivers within the state belong to the state, not merely in right of eminent domain, but in actual propriety." Bailey v. Railroad Co., 4 Har. (Del.) 389, 395. And see WiUson v. Marsh Co., 2 Pet. 245, 251- In Maryland, the owner of land bounded by tide water is authorized, according to various statutes beginning in 1745, to build wharves or other improvements upon the flats in front of his land, and to acquire a right in the land so improved. Casey v. Inloes, i Gill, 430; Balti- more V. McKim, 3 Bland, 453; Goodsell v. Lawson, 42 Md. 348; Garitee v. Mayor, etc., of Baltimore, 53 Md. 422 ; Horner v. Pleasants, 66 Md. 475, 7 Atl. 691 ; Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U.S. 672, 675, 684, 3 Sup. Ct. 445, and 4 Sup. Ct. 15, in which the questiori was who was the riparian owner, and as such entitled to wharf out into the Potomac river, in the District of Columbia, undeir the authority to do so expressly conferred under the laws of Maryland in force in the District. This court, speaking by Mr. Justice Curtis, in affirming the right of the state of Maryland to protect the oyster fishery within its boundaries, said: "Whatever soil ■below low-water mark is the subject of exclusive propriety and owner- ship belongs to the state on whose maritime border, and within whose territory, it lJes> subject to any lawful grants of that soil by the state, 548 Cases on Real Property or the sovereign power which governed its territory before the declara- tion of independence; but this soil is held by the state, not only sub- ject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish, — as well shellfish as floating fish." Smith v. Maryland, i8 How. 71, 74. The state, of Virginia was held by this court, upon like grounds, to have the right to prohibit persons not citizens of the state from plant- ing oysters in the soil covered by tide waters within the state; Chief Justice Waite saying: "The principle has long been settled in this court that each state owns the beds of all tide waters within its juris- diction, unless they have been granted away. In like manner, the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the state represents its people, and the ownership is that of the people in their united sovereignty. The title thus held is subject to the para- mount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States." Mc- Cready v. Virginia, 94 U. S. 391, 394. In Virginia, by virtue of stat- utes beginning in 1679, the owner of land bounded by tide waters has the title to ordinary low-water mark, and the right to build wharves, provided they do not obstruct navigation. 5 Op. Attys. Gen. 412, 435- 440; French v. Bankhead, 11 Grat. 136, 159-161 ; Hardy v. McCul- lough, 23 Grat. 251, 262 ; Norfolk City v. Cooke, 27 Grat. 430, 434, 435 ; Garrison v. Hall, 75 Va. 150. In North Carolina, when not otherwise provided by statute, the pri- vate ownership of land bounded by navigable waters stops at high- water mark, and the land between high and low water mark belongs to the state, and may be granted by it. Hatfield v. Grimstead, 7 Ired. 139; Lewis V. Keeling, i Jones, (N. C.) 299, 306. The statutes of that state, at different periods, have either limited grants of land bounded on navigable waters to high-water mark, or have permitted owners of the shore to make entries of the land in front, as far as deep water, for the purpose of a wharf; and any owner of the shore appears to have the right to wharf' out, subject to such regulations as the legisla- ture may prescribe for the protection of the public rights of navigation and fishery. Wilson v. Forbes, 2 Dev. 30 ; Collins v. Benbury, 3 Ired. 277, and 5 Ired. 118; Gregory v. Forbes, 96 N. C. "j"], i S. E. 541; State V. Narrows Island Club, 100 N. C. 477, 5 S. E. 41 1 ; Bond v. Wool, 107 N. C. 139, 12 S. E. 281. In South Carolina, the rules of the common law, by which the title in the land under tide waters is in the state, and a grant of land Rights of Enjoyment 549 bounded by such waters passes no title below high-water mark, appear to be still in force. State v. Pacific Guano Co., 22 S. C. 50 ; State v. Pinckney, Id. 484. In Georgia, also, the rules of the common law would seem to be in force as to tide waters, except as affected by statutes of the state pro- viding that "the right of the owner of lands adjacent to navigable streams extends to low-water mark in the bed of the stream." Code Ga. 1882, sections 962, 2229, 2230; Howard v. Ingersoll, 13 How. 381, 411, 421 ; Alabama v. Georgia, 23 How. 505 ; Mayor, etc., of Savannah V. State, 4 Ga. 26, 39; Young v. Harrison, 6 Ga. 130, 141. The foregoing summary of the laws of the original states shows that there is no universal and uniform law upon the subject, but that each state has dealt with the lands under the tide waters within its borders according to its own views of justice and policy, reserving its own control over such lands, or granting rights therein to individuals 01' corijorations, whether owners of the adjoining upland or not, as it con- sidered for the best interests of the public. Great caution, therefore, is necessary in applying precedents in one state to cases arising in another. 4. The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands below the high-water mark, within their re- spective jurisdictions. The act of 1783, and the deed of 1784, by which the state of Vir- ginia, before the adoption of the constitution, ceded "unto the United States in congress assembled, for the benefit of the said states, all right, title and claim, as well of soil as jurisdiction," to the Northwe.st Ter- ritory, and the similar cession by the state of Georgia to the United States, in 1802, of territory including a great part of Alabama and of Mississippi, each provided that the territory so ceded should be formed into states, to be admitted, on attaining a certain population, into the Union, (in the words of the Virginia cession,) "having the same rights of sovereignty, freedom, and independence as the other states," or (in the words of the ordinance of congress of July 13, 1787, for the gov- ernment of the Northwest Territory, adopted in the Georgia cession) "on an equal footing with the original states in all respects whatever ;" and that "all the lands within" the territory so ceded to the United States, and not reserved or appropriated for other purposes, should he considered as a common fund for the use and benefit of the United States. Charters & Constitutions, pp. 427, 428, 432, 433; Clayton's Lavvs of Georgia, pp. 4.8-51 ; Acts Cong^ April "],. 1798, c. 28,. (i Stat. 550 Cases on Real, Property 549,) May lo, 1800, c. 50, and March 3, 1803, c. 27, (2 Stat. 69, 229;) Pollard's Lessee v. Hagan, 3 How. 212, 221, 222. * * * 5. That these decisions do not as contended by the learned counsel for the plaintiiF in error, rest solely upon the terms of the deed of cession from the state of Georgia to the United States, clearly appears from the constant recognition of the same doctrine as applicable to California, which was acquired from Mexico by the treaty of Guada- lupe Hidalgo of 1848, (9 Stat. 926;) U. S. v. Pacheco, (1864,) 2 Wall. 587; Mumford v. Wardwell, (1867,) 6 Wall. 423; Weber v. Commis- sioners, (1873,) 18 Wall. 57; Packer v. Bird, (1891,) 137 U. S. 661, 666, II Sup. Ct. 210; City and County of San Francisco v. Le Roy, (1891,) 138 U. S. 656, 671, II Sup. Ct. 364; Knight v. Association, (1891,) 142 U. S. 161, 12 Sup. Ct. 258. In U. S. V. Pacheco it was decided that a grant from the Mexican government, confirmed by a decree of a court of the United States under authority of congress, of land bounded "by the bay" of San Francisco, did not include land below ordinary high-water mark of the bay, because, as was said by Mr. Justice Field, in delivering judgment : "By the common law, the shore of the sea, and, of course, of arms of the sea, is the land between ordinary high and low water mark, — the land over which the daily tides ebb and flow. When, therefore, the sea or a bay is 'named as a boundary, the line of ordinary high-water mark is always intended where the common law prevails. And there is nothing in the language of the decree which requires the adoption of any other rule in the present case. If reference be had to the rule of the civil law, because the bay is given as a boundary in the grant from the Mexican government, the result will be equally against the position of the appellants." 2 Wall. 590. The state of California was admitted into the Union in 1850, and, within a year afterwards, passed statutes, declaring that a certain line designated upon a recorded plan should "be and remain a permanent water front" of the city of San Francisco ; reserving to the state "its right to regulate the construction of wharves or other improvements, so that they shall not interfere with the shipping and commercial in- terests of 'the bay and harbor," and providing that the city might con- struct wharves at the end of all the streets commencing with the bay, not exceeding 200 yards beyond that line, and that the spaces beyond, between the wharves, should remain free from obstructions, and be used as public slips. In Weber v. Commissioners it was held that a person afterwards acquiring the title of the city in a lot and wharf below high-water mark had no right to complain of works constructed Rights op Enjoyment 551 by commissioners of the state, under authority of the legislature, for the protection of the harbor and the convenience of shipping, in front of his wharf, and preventing the approach of vessels to it; and Mr. Justice Field, in delivering judgment, said: "Although the title to the soil under the tide waters of the bay was acquired by the United States by cession from Mexico, equally with the title to the upland, they held it only in trust for the future state. Upon the admission of California into the Union upon equal footing with the original states, absolute property in, and dominion and sovereignty over, all soils under the tide waters within her limits, passed to the state, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper,- subject only to the paramount right of naviga- tion over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several states, the regulation of which was vested in the general government." 18 Wall. 65, 66. 6. The decisions of this court, referred to at the bar, regarding the shores of waters where the ebb and flow of the tide from the sea are not felt, but which are really navigable, should be considered with reference to the facts upon which they were made, and keeping in mind the local laws of the different states, as well as the provisions of the acts of congress relating to such waters. By the law of England, Scotland, and Ireland, the owners of the banks prima facie own the beds of all fresh-water rivers above the ebb and flow of the tide, even if actually navigable, to the thread of the stream, usque ad filum aquae. Lord Hale, in Harg. Law Tracts, 5; Bickett V. Morris, L. R. i H. L. So. 47; Murphy v. Ryan, 2 Ir. Com. Law, 143 ; Ewing v. Colquhoun, 2 App. Cas. 839. The rule of the common law on this point appears to have been fol- lowed in all the original states, — except in Pennsylvania, Virginia, and North Carolina, and except as to great rivers, such as the Hudson, the Mohawk,' and the St. Lawrence in New York, — as well as in Ohio, Illi- nois, Michigan and Wisconsin. But it has been wholly rejected, as to rivers navigable in fact, in Pennsylvania, Virginia, and North Caro- lina, and in most of the new states. For a full collection and careful analysis of the cases, see Gould, Waters, (2d Ed.) sections 56-78. The earliest judicial statement of the now prevailing doctrine in this country as to the title in the soil of rivers really navigable, although above the ebb and flow of the tide, is to be found in a case involving the claim of a riparian proprietor to an exclusive fishery in the Susque- hanna river, in which Chief Justice Tilghman, in 1807, after observing 552 Cases on Real Property that the rule of the common law upon the subject had not been adopted in Pennsylvania, said: "The common-law principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now, the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert that by navigable rivers are meant rivers in which there is no flow or reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to nav- igation which has not a flow of the tide, but it would he highly un- reasonable when applied to our large rivers, such as the Ohio, Alle- gheny, Delaware, Schuylkill, or Susquehanna and its branches." Car- son V. Blazer, 2 Bin. 475, 477, 478. It was because of this difference in the law of Pennsylvania from that of England and of most of the older states, and because the de- cisions of the supreme court of Pennsylvania upon the subject were deemed binding precedents, that this court, speaking by Mr. Justice Crier, held that riparian owners, erecting dams on navigable rivers in Pennsylvania, did so only by license from the state, revocable at its pleasure, and could therefore claim no compensation for injuries caused to such dams by subsequent improvements under authority of the state for the convenience of navigation ; and, also, that by the law of Pennsylvania pre-emption rights to islands in such rivers could not be obtained by settlement. Rundle v. Canal Co., (1852,) 14 How. 80, 91, 93, 94; Fisher v. Haldeman, (1857,) 20 How. 186, 194. By the acts of congress for the sale of the public lands, those lands are to be divided into townships six miles square, unless the line of an Indian reservation, or of land previously surveyed and patented, or "the course of navigable rivers, may render it impracticable," and into sections and quarter sections, bounded by north and south and east and west lines, running to the corners, or, when the corners cannot be fixed, then "to the water course," "or other external boundary;" and it is provided "that all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public high- ways ; and that in all cases where the opposite banks of any stream not navigable shall belong to different persons, the stream and the bed thereof shall be common to both." Acts May 18, 1796, c. 29, sections 2, 9; I Stat. 464, May 10, 1800, c. 55, section 3; March 3, 1803, c. 27, section 17; March 26, 1804, c. 35, section 6; Feb. 11, 1805, c. 14; 2 Stat. 73, 235, 279, 313; Rev. St. sections 2395, 2396, 2476. Those acts also provide that when, in the opinion of the president, "a departure from the ordinary method of surveying land on any Rights of Enjoyment 553 river, lake, bayou or watercourse, would promote the public interest," the land may be surveyed, and sold in tracts of 2 acres in width, front- ing on any such water, and running back the depth of 40 acres. Act May 24, 1844, c. 141; 4 Stat. 34; Rev. St. section 2407. By the ordinance of 1787 for the government of the Northwest Territory, "the navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said ter- ritory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy." Charters and Con- stitutions, 432; Act Aug. 7, 1789, c. 8; I Stat. 50. And the acts re- lating to the territories of Louisiana and Missouri contained similar provisions. Acts March 3, 1811, c. 46, section 12; June 4, 1812, c. 95, section 15; 2 Stat. 666, 747. In the acts for the admission of the states of Louisiana and Missis- sippi into the Union it was likewise declared that "the river Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways, .and forever free, as well to the inhabitants of the said state, as to other citizens of the United States." Acts Feb. 20, 181 1, c. 21, section 3; April 8, 1812, c. 50, section i ; 2 Stat. 642, 703; March i, 1817, c. 23, section 4; 3 Stat. 349. In Withers v. Buckley, (1857,) 20 How. 84, this court, affirming the judgment of the highest court of Mississippi in 29 Miss. 21, held that this did not prevent the legislature of the state from improving by a canal the navigation of one of those navigable rivers, and thereby di- verting without compensation the flow of water by the plaintiff's land ; and Mr. Justice Daniel, in delivering judgment, said: "It cannot be imputed to congress that they ever designed to forbid, or to withhold from the state of Mississippi, the power of improving the interior of that state, by means either of roads or canals, or by regulating the rivers within its territorial limits, although a plan of improvement to be adopted might embrace or affect the course or the flow of rivers situated within the interior of the state. Could such an intention be ascribed to congress, the right to enforce it may be confidently denied. jUlearly, congress could exact of the new state the surrender of no at- tribute inherent in her character as a sovereign, independent state, or indispensable to her equality with her sister states, necessarily implied and guarantied by the very nature of the federal compact. Obviously, and it may be said primarily, among the incidents of that equality is the right to make improvements in the rivers, watercourses, and high- ways situated within the state." 20 How. 93. See, also. Bridge Co. 554 Cases on Real Property V. Hatch, 125 U. S. i, 9-12, 8 Sup. Ct. 811 ; Monongahela Navigation Co. V. U. S., 148 U. S. 312, 329-333, 13 Sup. Ct. 622. In The Genesee Chief, (1851,) 12 How. 443, in which this court, overruling its earlier decisions, held that the admiralty and maritime jurisdiction of the courts of the United States extended to all public navigable waters, although above the flow of the tide from the sea. Chief Justice Taney, taking the same line of argument as Chief Justice Tilghman in Carson v. Blazer^ above cited, said that in England, where there were no. navigable streams beyond the ebb and flow of the tide, the description of the admiralty jurisdiction as confined to tide waters was a reasonable and convenient one, and was equivalent to saying that it was confined to public navigable waters ; but that, when the same description was used in this country, "the description of a public navigable river was substituted in the place of the thing intended to be described, and, under the natural influence of precedents and estab- lished forms, a definition originally correct was adhered to and acted on after it had ceased, from a change in circumstances, to be the true description of public waters." 12 How. 454, 455. In Jones v. Soulard, (i860,) 24 How. 41, the decision was that a title acquired under the act of June 13, 1812, c. 99, (2 Stat. 748,) to land in St. Louis, bounded by the Mississippi river, included an island west of the middle of the river, then only a sand bar, covered at ordi- nary high water, and surrounded on all sides by navigable water, but which, after the admission of Missouri into the Union as a state, be- came, by the gradual filling up of the island and the intervening chan- nel, connected with the shore as fast land. Mr. Justice Catron, in- deed, in delivering the opinion, spoke of the rule of the common law that "all grants of land bounded by fresh-water rivers, where the ex- pressions designating the water line are general, confer the proprietor- ship on the grantee to the middle thread of the stream, and entitle him to the accretions," as a general and well-settled rule, and applicable to the Mississippi river. 24 How. 65. But, as stated in that opinion, the charter of the city of St. Louis- extended to the eastern boundary of the state of Missouri in the middle of the Mississippi river. By the law of Missouri, as theretofore declared by its supreme court, the title of lands bounded by the Mississippi river extended to low-water mark, and included accretions. O'Fallon v. Daggett, 4 Mo. 343 ; Shelton v. Maupin, 16 Mo. 124; Smith v. St. Louis Schools, 30 Mo. 29O. And the oniy question in Jones v. Soulard was of the title, not in the bed or shore of the river, but only in accretions which hc^4 become part of the fast land. Rights of Enjoyment 555 The rule, everywhere admitted, that, where the land encroaches upon the water by gradual and imperceptible degrees, the accretion or alluvion belongs to the owner of the. land, is equally applicable to lands bounding on tide waters or on fresh waters, and to the king or the state as to private persons, and is independent of the law governing the title in the soil covered by the water. Lord Hale, in Harg. Law Tracts, pp. s, 14, 28; Rex V. Yarborough, in the King's bench, 3 Barn. & C. 91, and 4 Dowl. & R. 790, and in the house of lords, i Dow. & C. 178, 2 Bligh, N. R. 147, and 5 Bing. 163; Doe v. East India Co., 10 Moore, P. C. 140; Foster v. Wright, 4 C. P. Div. 438; Handly v. Anthony, 5 Wheat. 374, 380; Jeflfetis v. Land Co., 134 U. S. 178, 189-193, 10 Sup. Ct. 518; Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396; Minto v. Delaney, 7 Or. 337. Again, in St. Clair Co. v. Lovingston, (1874,) 23 Wall. 46, the right of a riparian proprietor in St. Louis, which was upheld by this court, affirming the judgment of the supreme court of Illinois in 64 111. 56, and which Mr. Justice Swayne, in delivering the opinion, spoke of as resting in the law of nature, was the right to alluvion or increase of the upland by gradual and imperceptible degrees. And, as if to prevent any possible inference that the decision might affect the title in the soil under the water, the learned justice, after quoting the opinion in Jones V. Soulard, above cited, expressly reserved the expression of any opinion upon the question whether the limit of the land was low water or the middle thread of the river, and repeated the propositions established by the earlier decisions of this court, already referred to: "By the Ameican Revolution the people of each state, in their sov- ■ ereign character, acquired the -absolute right to all their navigable waters and the soil under them. The shores of navigable waters and the soil under them were not granted by the constitution to the United States, but were reserved to the states respectively; and new states have the same rights of sovereignty and jurisdiction over this subject as the original ones." 23 Wall. 64, 68. * * * In Yates v. Milwaukee, the material facts appear by the report to have been as follows : The owner of a lot fronting on a river in the city of Milwaukee and state of Wisconsin had built, upon land covered by water of no use for the purpose of navigation, a wharf extending to the ,navigable channel of the river. There was no evidence that the wharf was an obstruction to navigation, or was in any sense a nuisance. The city council afterwards, under a statute of the state, enacted before the wharf was built, authorizing the city council to establish dock and wharf lines upon the banks of the river, to restrain and prevent en- 555 CASfis ON RfiAt, Property croachments upon and obstructions to the river, and to Cause the river to be dredged, passed an ordinance declaring this wharf to be an ob- struction to navigation, and a nuisance, and ordering it to be abated. The point adjudged was that the mere declaration of the city council that the wharf already built and owned by the plaintiff was a nuisance did not make it such, or subject it to be removed by authority of the city. It was recognized in the opinion that by the law of Wisconsin, established by the decisions of its supreme court, the title of the owner of land bounded by a navigable river extended to the center of the stream, subject, of course, to the public right of navigation. Jones v. Pettibone, 2 Wis. 308; Walker v. Shepardson, Id. 384, 4 Wis. 486; Mariner v. Schulte, 13 Wis. 692; Arnold v. Elmore, 16 Wis. 536. See, also, Olson v. Merrill, 42 Wis. 203 ; Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606. And the only decision of that court which this court considered itself not bound to follow was Yates v. Judd, 18 Wis. 118, upon the question of fact whether certain evidence was sufficient to prove a dedication to the public. 10 Wall. 504-506. 7. The later judgments of this court clearly establish that the title and rights of riparian or littoral proprietors in the soil below high- ' water mark of navigable waters are governed by the local laws of the several states, subject, of course, to the rights granted to the United States by the constitution. In Weber v. Commissioners, above cited, Mr. Justice Field, in de- livering judgment, while recognizing the correctness of the doctrine "that a riparian proprietor, whose land is bounded by a navigable stream, has the right of access to the navigable part of the stream in front of his land, and to construct a wharf or pier projecting into the stream, for his own use, or the use of others, subject to such general rules and regulations as the legislature may prescribe for the protec- tion of the public," and admitting that in several of the states, by gen- eral legislation or immemorial usage, the proprietor of land bounded by the shore of the sea, or of an arm of the sea, has a right to wharf out to the point where the waters are navigable, said : "In the absence of such legislation or usage, however, the common-law rule would gov- ern the rights of the proprietor, at least in those states where the common law obtains. By that law, the title to the shore of the sea, and of the arms of the sea, and in the soils under tide waters is, in Eng- land, in the king, and, in this country, in the state. Any erection there- on without license is, therefore, deemed an encroachment upon the property of the sovereign, or as it is termed in the language of the law, Rights o? Enjoyment ' 557 a purpresture, which he may remove at pleasure, whether it tends to obstruct navigation or otherwise." 18 Wall. 64, 65. In Atlee v. Packet Co., (1874,) 21 Wall. 389, which arose in Iowa in 1871, Mr. Justice Miller, in delivering judgment, after referring to Button V. Strong, Railroad Co. v. Schurmeir, and Yates v. Milwaukee, above cited, disclaimed laying down any invariable rule as to the ex- tent to which wharves and landing places might be built out into nav- igable waters by private individuals or municipal corporations, and recognized that a state might, by its legislation, or by authority express- ly or impliedly delegated to municipal governments, control the con- struction, erection, and use of such wharves or landings, so as to secure their safety and usefulness, and to prevent their being obstructions to navigation. 21 Wall. 392, 393. And it was adjudged, following in this respect the opinion of the circuit court in 2 Dill. 479, Fed. Cas. No. 10,341, that a riparian proprietor had no right, without statutory authority, to build out piers into the Mississippi river as necessary parts of a boom to receive and retain logs until needed for sawing at his mill by the water side. In Railway Co. v. Renwick, (1880,) 102 U. S. 180, affirming the judgment of the supreme court of Iowa in 49 Iowa, 664, it was by virtue of an express statute, passed by the legislature of Iowa in 1874, that the owner of a similar pier and boom recovered compensation for the obstruction of access to it from the river by the construction of a railroad in front of it. In Barney v. Keokuk, (1876,) 94 U. S. 324, the owner, under a grant from the United States, of two lots of land in the city of Keokuk and state of Iowa, bounded by the Mississippi river, brought an action of ejectment against the city and several railroad companies and a steamboat company to recover possession of lands below high-water mark in front of his lots, which the city, pursuant to statutes of the state, had filled up as a wharf and levee, and had permitted to be occu- pied by the railroads and landing places of those companies. The plaintiff's counsel relied on Button v. Strong, Railroad Co. v. Schur- meir, and Yates v. Milwaukee, above cited. 94 U. S. 329, 331. But this court, affirming the judgment of the circuit court of the United States, held that the action could not be maintained, and Mr. Justice Bradley, in delivering judgment, summed up the law upon the subject with characteristic power and precision, saying: "It appears to be the settled law of that state that the title of the riparian proprietors on the banks of the Mississippi extends only to ordinary high-water mark, and that the shore between high and low water mark, as well as the 558 Cases on Real Propertv bed of the river, belongs to the state. This is also 'the common law with regard to navigable waters, although in England no waters are deemed navigable except those in which the tide ebbs and flows. In this country, as a general thing, all waters are deemed navigable which are really so, and especially it is true with regard to the Mississippi and its principal branches. The question as to the extent of the ri- parian title was elaborately discussed in the case of McManus v. Car- michael, 3 Iowa, i. The above conclusion was reached, and has al- ways been adhered to in that state. Haight v. Keokuk, 4 Iowa, 199; Tomlin v. Railroad Co., 32 Iowa, 106." "It is generally conceded that the riparian title attaches to subsequent accretions to the land effected by the gradual and imperceptible operation of natural causes. But whether it attaches to land reclaimed by artificial means from the bed of the river, or to sudden accretions produced by unusual floods, is a question which each state decides for itself. By the common law, as before remarked, such additions to the land on navigable waters be- long to the crown, but, as the only waters recognized in England as navigable were tide waters, the rule was often expressed as applicable to tide waters only, although the reason of the rule would equally ap- ply to navigable waters above the flow of the tide; that reason being that the public authorities ought to have entire control of the great passageways of commerce and navigation, to be exercised for the pub- lic advantage and convenience. The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British islands and those of the American continent. It had the influence for two generations of ex- cluding the admiralty jurisdiction from our great rivers and inland seas, and, under the like influence, it laid the foundation in many states of doctrines with regard to the ownership of the soil in navigable waters above tide water at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several states themselves to determine. If they choose to re- sign to th'e riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject, th^ correct principles were laid down in Martin v. Waddell's Lessee, 16 Pet. 367, Pollard's Lessee v. Hagan, 3 How. 212, and Goodtitle v. Kibbe, 9 How. 471. These cases related to tide water, it is true ; but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesee Rights oi^ Enjoyment 559 Chief, 12 How. 443, has declared that the Great Lakes and other nav- igable waters of the country, above as well as below- the flow of the tide, are, in the strictest sense, entitled to the denomination of nav- igable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietor- ship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases must depend, on the local laws of the states in which the lands were situated. In Iowa, as before stated, the more correct rule seems to have been adopted after a most elaborate investigation of the subject." 94 U. S. 336-338. In St. Louis V. Myers, (1885,) 113 U. S. 566, 5 Sup. Ct. 640, the court, speaking by Chief Justice Waite, held that the act of congress for the admission into the Union of the state of Missouri, bounded by the Mississippi river, which declared that the river should be "a com- mon highway and forever free," left the rights of riparian owners to be settled according to the principles of state law ; and that no federal question was involved in a judgment of the supreme court of the state of Missouri as to the right of a riparian proprietor in the city of St. Louis to maintain an action against the city for extending one of its streets into the river so as to divert the natural course of the water and thereby to injure his property. In Packer v. Bird, (1891,) 137 U. S. 661, 11 Sup. Ct. 210, the gen- eral rules governing this class of cases were clearly and succinctly laid down by the court, speaking by Mr. Justice Field, as follows : "The courts of the United States will construe the grants of the general gov- ernment without reference to the rules of construction adopted by the states for their grants ; but whatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants, or the use and enjoyment of the property by the grantee. As an incident of such ownership, the right of the riparian owner, where the waters are above the influence of the tide, will be limited according to the law of the state, either to low or high water mark, or will extend to the middle of the stream." 137 U. S. 669, 670, ti Sup. Ct. 210. And it was accordingly held, affirming the judgment of the supreme court of California in 71 Cal. 134, 11 Pac 873, and referring to the opinion in Barney v. Keqkuk, above cited, as specially 560 Cases on Reai, Property applicable to the case, that a person holding land under a patent from the United States, confirming a Mexican grant bounded by the Sacra- mento river, which was navigable in fact, took no title below the high- water mark, either under the acts of congress or by the local law. In St. Louis V. Rutz, (1891,) 138 U. S. 226, 11 Sup. Ct. 337, the court, speaking by Mr. Justice Blatchford, and referring to Barney V. Keokuk, St. Louis v. Myers, and Packer v. Bird, above cited, said : "The question as to whether the fee of the plaintiff, as a riparian pro- prietor on the Mississippi river, extends to the middle thread of the stream, or only to the water's edge, is a question in regard to a rule of property, which is governed by the local law of Illinois." And it was because "the supreme court of Illinois has established and steadily maintained, as a rule of property, that the fee of the riparian owner of lands in Illinois bordering on the Mississippi river extends to the middle line of the main channel of that river," that it was decided that a deed of land in Illinois, bounded by the Mississippi river, passed the title in fee in the bed of the river to the middle line of the main channel, and to all islands found in the bed of the river east of the middle of that channel ; and, "that being so, it is impossible for the owner of an island which is situated on the west side of the middle of the river, and in the state of Missouri, to extend his ownership, by mere accre- tion, to land situated in the state of Illinois, the title in fee to which is vested by the law of Illinois in the riparian owner of the land in that state." 138 U. S. 242, 250, 11 Sup. Ct. 337. In the recent case of Hardin v. Jordan, (1891,) 140 U. S. 371, 11 Sup. Ct. 808, 838, in which there was a difference of opinion upon the question whether a survey and patent of the United States, bounded by a lake which was not navigable, in the state of Illinois, was limited by the margin, or extended to the center of the lake, all the justices agreed that the question must be determined by the law of Illinois. Mr. Justice Bradley, speaking for the majority of the court, and re- ferring to many cases already cited above, said : "With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high-water mark, and that the title to the shore and lands under water in front of lands so granted inures to the state within which they are situated, if a state has been organized and established there. Such title to the shore and lands under water is regarded as incidental to the sovereignty of the state, — a portion of the royalties belonging thereto, and held in trust for the public purposes of navigation and fishery, — and cannot be retained or granted out to individuals by the United States. Such title being in Rights op Enjoyment 561 the state, the lands are subject to state regulation and control, under the condition, however, of not interfering with the regulations which may be made by congress with regard to public navigation and com- merce. The state may even dispose of the usufruct of such lands, as is frequently done by leasing oyster beds in them, and granting fish- eries in particular localities; also, by the reclamation of submerged flats, and the erection of wharves and piers, and other adventitious aids of commerce. Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses ; state control and ownership therein being supreme, subject only to the paramount au- thority of congress in making regulations of commerce, and in sub- jecting the lands to the necessities and uses of commerce. This right of the states to regulate and control the shores of tide waters, and the land under them, is the same. as that which is exercised by the crown in England. In this country the same rule has been extended to our great navigable lakes, which are treated as inland seas; and also, in some of the states, to navigable rivers, as the Mississippi, the Missouri, the Ohio, and, in Pennsylvania, to all the permanent rivers of the state ; but it depends on the law of each state to what waters and to what extent this prerogative of the state over the lands under water shall be exercised." 140 U. S. 381, 382, 11 Sup. Ct. 808, 838. And Mr. Justice Brewer, in beginning the dissenting opinion, said: "Beyond all dispute, the settled law of this court, established by re- peated decisions, is that the question how far the title of a riparian owner extends is one of local law. For a determination of that ques- tion, the statutes of the state and the decisions of its highest court fur- nish the best and the final authority." 140 U. S. 402, 11 Sup. Ct. 808, 838. In the yet more recent case of Illinois Cent. R. Co. v. Illinois, (1892,) which also arose in Illinois, it was recognized as the settled law of this country that the ownership- of, and dominion and sovereign- ty over, lands covered by tide waters, or navigable lakes, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impair- ment of the interest of the public in such waters, and subject to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce. 146 U. S. 387, 435-437, 465, 474, 13 Sup. Ct. no. 8. Notwithstanding the dicta contained in some of the opinions of this court, already quoted, to the effect that congress has no power to 562 Cases on "Real Property grant any land below high water mark of navigable waters in a terri- tory of the United States, it is evident that this is not strictly true. We cannot doubt, therefore, that congress has the power to make grants of lands below high-water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to eflfect the improve- ment of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States hold the territory. 9. But congress has never undertaken, by general laws, to dispose of such lands, and the reasons are not far to seek. As has been seen, by the law of England, the title in fee, or jus pri- vatum, of the king or his grantee, was, in the phrase of Lord Hale, "charged with and subject to that jus publicum which belongs to the kings subjects," or, as he elsewhere puts it, "is clothed and superin- duced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested by reason of common com- merce, trade, and intercourse." Harg. Law Tracts, 36, 84. In the words of Chief Justice Taney, "the country'' discovered and settled by Englishmen "was held by the king, in his public and regal character, as the representative of the nation, and in trust for them;" and the title and the dominion of the tide waters, and of the soil under them, in each colony, passed by the royal charter to the grantees as "a trust for the common use of the new community about to be established," and, upon the American Revolution, vested absolutely in the people of each state, "for their own common use, subject only to the rights since surrendered by the constitution to the general government." Martin v. Waddell's Lessee, 16 Pet. 367, 409-411.- .As observed by Mr. Justice Curtis, "This soil is held by the state, not only subject to, but in some sense in trust for, the enjoyment of certain public rights." Smith V. Maryland, 18 How. 71, 74. "The title to the shore and lands under tide water," said Mr. Justice Bradley, "is regarded as incidental to the sovereignty of the state, — a portion of the royalties belonging thereto, and held in trust for the public purposes of navigation and fishery." Hardin v. Jordan, 140 U. S. 371, 381, 11 Sup. Ct. 808, 838. And the territories acquired by congress, whether by deed of ces.sion from the original states, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify it, of being admitted into the Union as states, upon an equal footing with the original states in all respects; and the title and dominion of the Rights of Enjoyment 563 tide waters, and the lands under them, are held by the United States for the benefit of the y/hole people, and, as this court has often said, in cases above cited, "in trust for the future states." Pollard's Lessee V. Hagan, 3 How. 212, 221, 222; Weber v. Commissioners, 18 Wall. 57, 65; Knight V. Association, 142 U. S. 161, 183, 12 Sup. Ct. 258. The congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior or on the coast, above high-water mark, may be taken up by actual occupants, in order to encourage the settlement of the country, but that the navigable waters and the soils urider them, whether within or above the ebb and flow of the tide, shall be and remain public high- ways ; and, being chiefly valuable for the public purposes of commerce, navigation, and fishery, and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government, but, unless in case of some interna- tional duty or public exigency, shall be held by the United States in trust for the future states, and shall vest in the several states, when or- ganized and admitted into the Union, with all the powers and preroga- tives appertaining to the older states in regard to such waters and soils within their respective jurisdictions ; in short, shall not be dis- posed of piecemeal to individuals, as private property, but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the state, after it shall have become a completely organized community. 10. The title of the United States to Oregon was founded upon original discovery and actual settlement by citizens of the United States, authorized or approved by the government of the United States, as well as upon the cession of the Louisiana Territory by France in the treaty of 1803, and the renunciation of the claims of Spain in the treaty of 1819. Am. St. P., 6 Foreign Relations, 666; Barrow, Hist. Oregon, c. 22; 8 Stat. 202, 256. While the right to Oregon was in contest between the United States and Great Britain, the citizens of the one and the subjects of the other were permitted to occupy it under the conventions of 1818 and 1827, (8 Stat. 249, 360.) Its boundary on the north was defined by the treaty with Great Britain of June 15, 1846, (9 Stat. 869.) So far as the title of the United States was derived from France or Spain, it stood as in other territories acquired by treaty. The independent title based on discovery and settlement was equally absolute. Johnson v. Mcintosh, 8 Wheat. 543, 595 ; Mar- tin V. Waddell, 16 Pet. 367, 409; Jones v. U, S., 137 U. S. 202, 212, u Sup. Ct. 80. 564 Cases on Real Property By the act of 1848, establishing the territorial government of Ore- gon, "all laws heretofore passed in said territory making grants of land, or otherwise affecting or incumbering the title to lands." were declared to be void; and the laws of the United States were "extended over and declared to be in force in said territory, so far as the same, or any provision thereof, may be applicable." Act Aug. 14, 1848, c. 177, section 14, (9 Stat. 329.) The land laws adopted by the pro- visional government of Oregon, established by the people while the sovereignty was in dispute between the United States and Great Britain, regulated the occupation only. The settlers had no title in the soil. The United States, on assuming undisputed dominion over the territory, owned all the lands therein, and congress had the right to confine its bounties to settlers within just such limits as it chose. The provisions of the general land laws of the United States were not ap- plicable to the Oregon territory. And before 1850 there was no stat- ute under which any one could acquire a legal title from the United States to lands in Oregon. Lownsdale v. Parrish, 21 How. 290, 293; Stark V. Starrs, 6 Wall. 402; Davenport v. Lamb, 13 Wall. 418, 429, 430; Lamb V. Davenport, 18 Wall. 307, 314; Stafk v. Starr, 94 U. S. 477, 486; Barney v. Dolph, 97 .U. S. 652, 654; Hall v. Russell, loi U. S- 503, 507, 508 ; Society v. Dalles, 107 U. S. 336, 344, 2 Sup. Ct. 672. The first act of congress which granted to settlers titles in such lands was the Oregon donation act of September 27, 1850, c. 76. That act required the lands in Oregon to be surveyed as in the Northwest Territory; and it made grants or donations of land, measured by sec- tions, half sections, and quarter sections, to actual settlers and occu- pants. It contains nothing indicating any intention on the part of con- gress to depart from its settled policy of not granting to individuals lands under tide waters or navigable rivers. 9 Stat. 496; Rev. St. sections 2395, 2396, 2409. It is evident, therefore, that a donation claim under this act, bounded by the Columbia river, where the tide ebbs and flows, did not, of its own force, have the effect of passing any title in lands below high- water mark, nor is any such effect attributed to it by the law of the state of Oregon. The southern part of the territory of Oregon was admitted into the Union as the state of Oregon, "on an equal footing with the other states in all respects whatever," by the act of February 14, 1859, c. 33 ; and the act of admission provided that "the said state of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering on the said state of Oregon, so far as the same shall Rights of Enjoyment 565 form a common boundary to said state, and any other state or states now or hereafter to be formed or bounded by the same ; and said rivers and waters, and all the navigable waters of said state, shall be common highways and forever free, as well to the inhabitants of said state as to all other citizens of the United States." 11 Stat. 383. The settlers of Oregon, like the colonists of the Atlantic states, com- ing from a country in which the common law prevailed, to one that had no organized government, took with them, as their birthright, the principles of the common law, so far as suited to their condition in their new home. The jurisprudence of Oregon, therefore, is based on the common law. Van Ness v. Pacard, 2 Pet. 137, 144; Norris v. Harris, 15 Cal. 226, 252; Cressey v. Tatom, 9 Or. 541 ; Lamb v. Starr, Deady, 350, 358, Fed. Cas. No. 8,021. By the law of the state of Oregon, as declared and established by the decisions of its supreme court, the owner of upland bounding on navigable water has no title in the adjoining lands below high-water mark, and no right to build wharves thereon, except as expressly per- mitted by statutes of the state ; but the state has the title in those lands, and, unless they have been so built upon with its permission, the right to sell and convey them to any one, free of any right in the proprietor of the upland, and subject only to the paramount right of navigation inherent in the public. Hinman v. Warren, 6 Or. 408 ; Parker v. Tay- lor, 7 Or. 435 ; Parker v. Rogers, 8 Or. 183 ; Shively v. Parker, 9 Or. 300; McCann v. Navigation Co., 13 Or. 455, 11 Pac. 236; Bowlby v. Shively, 22 Or. 410, 30 Pac. 154. See, also, Shively v. Welch, 10 Sawy. 136, 140, 141, 20 Fed. 28. In the case at bar the lands in controversy are below high-water mark of the Columbia river, where the tide ebbs and flows ; and the plaintiff in error claims them by a deed from John M. Shively, who, while Oregon was a territory, obtained from the United States a dona- tion claim, bounded by the Columbia river, at the place in question. The defendants in error claim title to the lands in controversy by deeds executed in behalf of the state of Oregon, by a board of com- missioners, pursuant to a statute of the state of 1872, as amended by a statute of 1874, which recited that the annual encroachments of the sea upon the land, washing away the shores and shoaling harbors, could be prevented only at great expense by occupying and placing im- provements upon the tide and overflowed lands belonging to the state, and that it was desirable to offer facilities and encouragement to the owners of the soil abutting on such harbors to make such improve- ments, and therefore enacted that the owner of any land abutting or 566 Cases on Real Property fronting upon, or bounded by the shore of, any tide waters, should have the right to purchase the lands belonging to the state in front thereof ,and tiiat, if he should not do so within three years from the date of the act, they should be open to purchase by any other person who was a citizen and resident of Oregon, after giving notice and opportunity to the owner of the adjoining upland to purchase, and made provisions for securing to persons who had actually made im- provements upon tide lands a priority of right so to purchase them. Neither the plaintiff in error nor his grantor appears to have ever built a wharf or made any other improvement upon the lands in con- troversy, or to have applied to the state to purchase them. But the de- fendants in error, after their purchase from the state, built and main- tained a wharf upon the part of these lands nearest the chaiinel, v/hich extended several hundred feet into the Columbia river, and at which ocean and river craft were wont to receive and discharge freight. The theory and effect of these statutes were stated by the supreme court of the state, in this case, as follows : "Upon the admission of the state into the Union, the tide lands became the property of the state and subject to its jurisdiction and disposal. In pursuance of this power, the state provided for the sale and disposal of its tide lands by the act of 1872 and the amendments of 1874 and 1876. Laws 1872, p. 129; Laws 1874, p. "JT, Laws 1876, p. 70. By virtue of these acts, the owner or owners of any land abutting or fronting upon or bounded by the shore of the Pacific ocean, or of any bay, harbor, or inlet of the same, and rivers and their bays in which the tide ebbs and flows, within this state, were given the right to purchase all the tide lands be- longing to the state, in front of the lands so owned, within a certain time and upon conditions prescribed, and providing, further, that in case such owner or owners did not apply for the purchase of such tide lands, or, having applied, failed to prosecute the same as provided by law, then that such tide lands shall be open to purchase by any other person who is a resident and citizen of the state of Oregon ; but in consideration of the fact that prior to 1872, as it would seem, these lands had been dealt with as private property, and sometimes improved by expensive structures, the acts further provided, in such cases, that where the bank owners had actually sold the tide lands, then the pur- chaser of the tide land from the bank owner, or a previous bank owner, should have the right to purchase from the state. These stat- utes are based on the idea that the state is the owner of the tide lands, and has the right to dispose of them ; that there are no rights of upland ownership to interfere with this power to dispose of them and convey Rights of Enjoyment 567 private interests therein, except siich as the state saw fit to give the adjacent owners, and to acknowledge in them and their grantees when they had dealt with such tide lands as private property, subject, of course, to the paramount right of navigation secured to the public. These statutes have been largely acted upon, and many titles acquired under them to tide lands. In the various questions relating to tide lands which have come before the judiciar}', the vahdity of these stat- utes has been recognized and taken for granted, though not directly passed upon." 22 Or. 415, 416, 30 Pac. 154. The substance and scope of the earlier statute of Oregon of October 17, 1862, (Gen. Laws 1862, p. 96; Hill's Code Or. sections 4227, 4228,) were stated by that court as follows : "It is true the legislature of this state had made provision by which the upland owner within the cor- porate limits of any incorporated town niight build wharves, prior to the acts of 1872 and 1874, supra; but, within the purview of our ad- judications, it would, as a matter of power, have been equally com- petent to have given this privilege to others. But this act is not a grant. It simply authorizes upland owners on navigable rivers within the cor- porate limits of any incorporated town to construct wharves in front of their land. It does not vest any right until exercised. It is a license, revocable at the pleasure of the legislature until acted upon or availed of. Shively did. not avail himself of the license, nor is there any pre- tense to that effect. The plaintiffs have built a wharf upon and in front of their tide land. If the act is as applicable to tide lands as uplands on navigable waters, they have exercised the right." 22 Or. 420, 421, 30 Pac. 154. Upon a review of its prior decisions, the court was of opinion that by the law of Oregon, in accordance with the law as formerly held in New York in Gould v. Railroad Co., 6 N. Y. 522; with the law of New Jersey, as declared in Stevens v. Railroad Co., 34 N. J. Law, 532, and recognized in City of Hoboken v. Pennsylvania R. Co., 124 U. S. 656, 8 Sup. Ct. 643 ; and with the law of the state of Washington, on the other side of the Columbia river, as declared in Eisenbach v. Hat- field, 2 Wash. St. 236, 26 Pac. 539 ; and upon the principles affirmed in decisions of this court, above cited, and especially in Hardin v. Jor- dan, 140 U. S. 371, 382, II Sup. Ct. 808, 838; the authority conferred by the statutes of Oregon upon upland owners on navigable rivers, to construct wharves in front of their land, did not vest any right until exercised, but was a mere license revocable at the pleasure of the legislature until acted upon, and that the state had the right to dispose of its tide lands free from any easement of the. upland owner. 568 Cases on Real Property The court thus stated its final conclusion : "From all this it appears that, when the state of Oregon was admitted into the Union, the tide lands became its property, and subject to its jurisdiction and disposal; that, in the absence of legislation or usage, the common-law rule would govern the rights of the upland proprietor, and by that law the title to them is in the state ; that the state has the right to dispose of them in such manner as she might deem proper, as is frequently done in various ways, and whereby sometimes large areas are reclaimed and occupied by citieSj and are put to public and private uses ; state control and own- ership therein being supreme, subject only to the paramount right of navigation and commerce. The whole question is for the state to de- termine for itself. It can say to what extent it will preserve its rights of ownership in them, or confer them on others. Our state has done that by the legislation already referred to, and our courts have de- clared its absolute property in and dominion over the tide lands, and its right to dispose of its title in such manner as it might deem best, unaffected by any 'legal obligation to recognize the rights of either the riparian owners, or those who had occupied such tide lands,' other than it chose to resign to them, subject only to the paramount right of navigation and the uses of commerce. From these considerations it results — if we are to be bound by the previous adjudications of this court, which have become a rule of property, and upon the faith of which important rights and titles have become vested, and large ex- penditures have been made and incurred — that the defendants have no rights or interests in the lands in question. Upon this point there is no diversity of judgment among us. We all think that the law, as adjudicated, ought not to be disturbed, independent of other reasons and authorities suggested in its support." 22 Or. 427, 30 Pac. 154. By the law of the state of Oregon, therefore, as enacted by its legis- lature and declared by its highest court, the title in the lands in contro- versy is in the defendants in error ; and, upon the principles recognized and affirmed by a uniform series of recent decisions of this court, above referred to, the law of Oregon governs the case. The conclusions from the considerations and authorities above stated may be summed up as follows : Lands under tide waters are incapable of cultivation or improvement in the manner of lands above high-water mark. They are of great value to the public for the purposes of commerce, navigation, and fishery. Their improvement by individuals, when permitted, is inci- dental or subordinate to the public use and right. Therefore, the title Rights ov Enjoyment 569 and the control of them are vested in the sovereign, for the benefit of the whole people. At common law, the title and the dominion in lands flowed by the tide were in the kirtg for the benefit of the nation. Upon the settle- ment of the colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established. Upon the American Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders, subject to the rights surrendered by the constitution to the United States. Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory. The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdic- tions. The title and rights of riparian or littoraL proprietors in the soil below high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the constitution. The United States, while they hold the country as a territory, hav- ing all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high- water mark of tide waters. But they have never done so by general laws, and, unless in some case of international duty or public exigency, have acted upon the policy, as most in accordance with the interest of the people and with the object for which the territories were acquired, of leaving the administration and disposition of the sovereign rights in navigable waters, and in the soil under them, to the control of the states, respectively, when organized and admitted into the Union. Grants by congress of portions of the public lands within a territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high-water mark, and do not impair the title and dominion of the future state, when created, but leave the question of the use of the shores by the owners of uplands to the sovereign control of each state, subject only to the rights vested by the constitution in the United States. The donation land claim, bounded by the Columbia river, upon which the plaintiflE in error relies, includes no title or right in the land below high-water mark ; and the statutes of Oregon, under which the defend- 570 Cases on Reai, Property ants in error hold, are a constitutional and legal exercise by the state of Oregon of its dominion over the lands under navigable waters. Judgment affirmed. SEC. 7. FISH. PEOPLE V. PIATT. 17 Johns. (N. Y.), ips; 8 Am. Dec. 382. (1819) Indictment for a nuisance. The indictment contained three counts charging the defendants with having erected a dam near the mouth of the Saranac river, up which salmon had been accustomed to run, thereby preventing salmon from going up the stream ; that defendants had omitted to make the slopes in their dam, required by the statute, to enable the fish to pass. The defendants claimed under a patent to Zephaniah Piatt, dated October 26, 1784, for a tract of land seven miles square, bounded on Lake Champlain, into which the Saranac empties, and embracing that river for the distance of seven miles. This patent contained no other reservations than those of "all mines of gold and silver, salt lakes, springs and mines of salt, and carrying places upon am' water communications, which may be found or con- tained within the limits of the said land, and two small tracts for the use of a minister of the gospel and a public school." It was admitted that the defendants derived a regular title to the mill property and ap- purtenances, under this patent. The first dam was erected in 1785 or 1786, and was rebuilt in 1797. In 1801 a sluiceway or slope was erected, but the water was so shallow as to prevent the passing of the fish. The Saranac was not a navigable river for any kind of boats or crafts ; arid even timber could be floated down only in single pieces, and that with much difficulty. The- act of 1801, which was reenacted in 1813, and under which the indictment was framed, was entitled an act for the preservation of salmon in certain rivers running into lakes Ontario, Erie and Champlain. It provided that "the owners of mill- dams, or other dams, now erected or made across any of the said rivers or creeks, or across any river or creek running into lakes On- tario, Erie, or Champlain, so as to prevent the usual course of the salmon from going up the said rivers or creeks, shall, within eighteen months from the passing of this act, so alter such mill-dam, or other Rights of Enjoyment 571 dam, by making a slope thereto not exceeding forty-five degrees, and planked in such smooth manner that salmon may easily pass up over into the waters above the dam,'on penalty of two hundred dollars, etc., and in case such mill-dam, or other dam, shall not be so altered, as aforesaid, within the time above mentioned for that purpose, such mill-dam, or other dam, shall be deemed a public nuisance, and as such shall be removed in like manner as public nuisances are by law re- moved." Verdict for the defendants by consent, subject to the opinion of this court, on a case made, which either party rriight turn into a special verdict. SpbINCER, C. J. * * * From an examination of the authorities which I have been able to consult, I am satisfied that the defendant has a complete and exclusive ownership of the Saranac, from its con- fluence with the lake, so far as he has succeeded to the rights- of Z. Piatt. Lord Hale, in his treatise de jure maris et brachiomim ejus- dem, edited by Mr. Hargrave, pp. 8 and 9, says : "There be some streams or rivers that are private, not only in property and ownership, but also in use, as little streams or rivers, that are not a common pass- age for the king's people. Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters, and these, whether they are fresh or salt, whether they flow and reflow or not, are prima facie publici juris, common highways for a man or goods, or both, from one inland town to another. Thus," he observes, "the rivers of Wey, of Severn, of Thames, and divers others, as well above the bridges and ports as below, and as well above the flowings of the sea as below, and as well where they are become private property as in what parts they are of the king's property, are public rivers, juris publici, and therefore all nuisances and impedi- ments of passage of boats and vessels, though in the private soil of any person, may be punished by indictment and removed." Again, p. 5, he says : "Fresh rivers of what kind soever, do, of common right, belong to the owners of the soil adjacent, so that the owners of one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque ad filum aquae, and the owners of the other side the right of soil or ownership and fishing unto the filum aquae on their side. And if a man be owner of the. land on both sides in com- mon presumption he is owner of the whole river, and hath the right of fishing according to the extent of his land in length ; with this," he adds, "agrees the common experience," I have extracted fully and 572 Cases on Reai. Property freely from this valuable treatise, because it is universally considered as high authority of itself, and because it defines, with more precision than any other work, what constitutes ,a public river, and makes the distinction between such as are public and those which are private property. The adjudged cases will, however, bear out all the positions laid down by Lord Hale. In Lord Fitzwalter's case, i Mod. 105, the question was, whether the defendant had not the right of exclusive fishing in the river of Wall-fleet. Hale, chief justice, ruled that in the case of a private river, the lord having the soil, is good evidence to prove that he has the right of fishing, and it put the proof on them that claim liberam piscariam. But in case of a river that flows and reflows, and is an arm of the sea, there, prima facie, it is common to all. In the case of Carter v. Murcott, 4 Burr. 2162, Lord Mansfield hsid that the rules of law were uniform, in rivers not navigable the proprietors of the land have the right of fishing, on their respective sides, and it generally extended ad filum medium aquae; but in navigable rivers, the proprietors of the land on each side have it not ; the fishing is com- mon, it is prima facie in the king and is public. I cannot discover that these principles and distinctions have ever been denied or over- ruled, and I venture to say that they are of indisputable authority. We perceive, then, that some rivers and streams are wholly and ab- solutely private property, and that others are private property, subject, nevertheless, to the servitude of the public interest, and in that sense are to be regarded as common highways by water. The distinguishing test between those rivers which are entirely private property, subject to the public use and enjoyment, consists in the fact whether they are susceptible or not of use as a common passage for the public. In Palmer v. Mulligan, 3 Cal. 319 (2 Am. Dec. 270), this distinction was adopted hy Chief Justice Kent. No case or dictum has been cited, unless it be those of Stoughton v. Baker, 4 Mass. 522 (3 Am. Dec. 236), and Shaw v. Crawford, 10 Johns. 236, which considers the cir- cumstance that fish generally or salmon, which Lord Hale pronounces not to be royal fish, frequent a river at certain seasons, as having any controlling effect on the question whether the river is to be regarded as private property or liable to the public servitude; on the contrary, we have seen that this circumstance has no influence on the question. It is evident, on looking into the case of Shaw v. Crawford, that the court placed the decision on the fact that the Battenkill had been used for twenty-six years for rafting ; and we held that a usage for such a length of time woqld grow into a publiQ right, especially when the Rights of Enjoyment 573 public interest was so essentially promoted. The observation "that every owner of a mill-dam on a stream which fish from the ocean annually visit, is bound to provide a convenient passage-way for the fish to ascend," was an obiter dictum unnecessary to the decision of the cause, and founded entirely on the case of Stoughton v. Baker. In that case the supreme court of Massachusetts held that a legislative resolution appointing a committee who were authorized to require the proprietors of certain dams on Neponset river to alter them in such a way as would be sufficient for the passage of shad and alewives at the dams, was a legal proceeding not repugnant to the constitution. The opinion is founded on the ancient and long continued usage of the general court of Massachusetts, to appoint commissioners to locate and describe the site and dimensions of passage-ways for fish; and under the circumstances of the case it was held that the right of the pro- prietor of the dam was subject to the limitation that a reasonable and sufficient passage should be allowed for the fish. The court, however, expressly say, that any prostration, of the dam, not within the limita- tion, would be an injury to the owner, for which he might appeal to his country and have a remedy ; and that if the government in the grant of a mill privilege, expressly or by necessary implication waive this limitation, it would be bound. In the case then under consideration, the court said it would be an unreasonable construction of the grant to admit that by it, all the people were deprived of a free fishery in the river above the dam to which, until the grant, they were unques- tionably entitled. Whether in that case the Neponset river was nav- igable above the dam, is nowhere affirmed or denied ; but it is perfectly clear that the court proceeded on local usages and customs, and not upon the general and received doctrines of the common law; for not a single case is referred to, nor is it even asserted that the principles advanced are sanctioned by the English common law ; whereas it has been shown that by the common law the property in the river Saranac passed to Zephaniah Piatt, and had been transmitted through him to the defendants without any limitation or restriction, and that the fishery itself became vested in the proprietor of the river; it being a conceded fact that the river is unnavigable for boats of any kind; for there is no weight in the circumstance that for a few years past and since 1810, rafts have occasionally been brought down this river, when connected with the fact that the defendant has received a con- sideration for that privilege. * * * Zephaniah Piatt then, and his assigns gained a complete right to the 574 Cases on Reai, Property exclusive enjoyment of the river in the bounds of his jj.ilciil, 4° E. 127 chains — to wit, "the north boundary of the rancho Sal Si fuedes on the moun- tains,'' and "along said boundary the following courses" — were mis- takenly inserted, and should be rejected? Rejecting them, with the other particulars we have named, from the deed as false and incon- sistent with the other parts of the description which are true, and of themselves sufficient to make a complete instrument, we are able to give effect to this judicial sale, according to the plain and manifest meaning of the officer who had it in charge. It is rare, where so many field-notes of the survey of an irregularly shaped tract of land are incorporated in a deed, that there are so few mistakes. The courses and distances in this deed are numerous, and are all correct, except the last ; and there the only error is in the course, which is easily corrected, as the call is for the post where the survey begins. And these courses and distances enclose the identical land in dispute. -In such a case, it would be wrong to let two false boundarieis stand in order to defeat a conveyance. It is proper to remark that a map will accompany the report of this case, so as to make this opinion intelligible. Judgment affirmed. DOE ex dem. PHILLIPS' HEIRS v. PORTER. 5 Arkansas, 18; 36 Am. Dec. 448. (1840) * * * Lacy, J. The question now submitted for adjudication lies within a very narrow compass. It is, nevertheless, a question of considerable magnitude and interest, and one of no ordinary difficulty. Here we have given to the whole subject, and to every part of it, a most patient and full investigation. Both parties claim title to the land in controversy, under Sylvanus Phillips ; the lessors of the plain- tiff, as his legal heirs and representatives ; the defendant in the action, as a purchaser, for a valuable consideration, from his immediate grantees. The law was adjudged below in favor of the appellee upon an agreed case. That judgment is now brought before the court by appeal for revision and correction. CoNvBYANCB OF Land 779 The whole case turns upon the construction of the deed from Syl- vanus Phillips to Austin Kendrick and Arnold Fisher, bearing date the first day of October, 1830; and the question now to be decided is, what number of acres does that deed convey? The deed embraces a great variety of clauses, conveying different tracts of land, and it uses the same terms of description and limitation in regard to them all. It first states the number of acres contained in each tract, and it afterwards refers to and recites the particular patent and grant under which Phillips derived title. The words of the deed are : "The party of the first part have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the party of the second part, and to their heirs and assigns forever, the following described tract, containing three hundred and sixty-six acres of land, being part of a six hundred and, forty acre tract originally owned by Patrick Cassidy, and con- firmed to William Russell under Patrick Cassidy, and patented by the president of the United States to William Russell and his heirs on the twenty-sixth day of March, 1824, which said tract of land was con- veyed by William Russell to Sylvanus Phillips by deed bearing date the thirteenth day of July, 1825, situate in the county of Phillips and territory of Arkansas, adjacent the town of Helena." ■ It is conceded on all hands that the true construction of this deed will determine the rights of the parties to this suit. If the deed con- veys three hundred and sixty-six acres to the grantee, then the law arising upon the agreed case is unquestionably for the defendant. But on the contrary, if it only conveys three hundred and fifty-eight acres of land, the exact quantity or number of acres included in Russell's deed to Phillips of the thirteenth of July, A. D. 1825, then it is evident that the lessors of the plaintiff are entitled to a recovery of the prem- ises in question. The construction of the grant above quoted has been discussed with much ability and learning by the respective counsel en- gaged in the, cause, and we have derived no inconsiderable aid and assistance in the formation of our opinion from their logical and demonstrative arguments. In the construction of deeds, says Lord Mansfield, the rules applicable to such instruments are accurately laid down and defined by all the authorities, and they rest for their founda- tion and support upon reason, justice, law, and common sense. We shall, in the present instance, only state a few of them, and such as we deem to have a direct bearing on the case under consideration. I. All deeds shall be construed favorably and as near the intention of the parties as possible, consistent with the rules of law : 4 Cru. Dig. 202; Bridge v. Wellington, i Mass. 219; Worthington et al. v. Hylyer 780 Casbs on Real Property et al., 4 Id. 202; Ludlow v. Myers, 3 Johns, 388; Troop et al. v. Blod- gett, 16 Id. 172. 2. The construction ought to be put on the entire deed and every part of it. For the whole deed ought to stand to- gether, if practicable, and every sentence and word of it be made to operate and take effect : 4 Cru. Dig. 203, sec. 5, and authorities above cited ; P. Wms. 497 ; Vaugh. 167. 3. If two clauses in a deed stand in irreconcilable contradiction to each other, the first clause shall prevail, and the latter shall be regarded as inoperative : 4 Cow. 248 ; Mard. 94 ; 6 Wood. 107; 4 Com. Dig., tit. Fait. 4. The law will construe that part of a deed to precede which ought to take precedence, no matter in what part of the instrument it may be found : 6 Rep. 38b ; Cromwell V. Grumsden, i Ld. Raym. 335; 10 Rep. 8; Bulst. 282. 5. All deeds shall be taken most strongly against the grantor. For the prin- ciple of self-interest will make men sufficiently careful not to prejudice themselves, or their rights, by using words or terms of too general or extensive a signification: 4 Com. Dig., tit. Fait. 4 Cru., p. 203, sec. 13; 8 Johns. 394; 16 Id. 172; Adams v. Frothingham, 3 Mass. 352 (3 Am. Dec. 151) ; Watson et al. v. Boylston, 6 Id. 411. These rules are now regarded as maxims in the science of the law, and they are perfect!}' conclusive of the points to which they apply. In all conveyances the grantor must describe the thing granted with sufficient certainty to ascertain its identity. And if he fails to do so, the grantee takes nothing, by reason of the uncertainty of the grant; for there being nothing for the deed to operate upon, of course nothing passes by it. The most general and usual terms of description employed in deeds to ascertain the thing granted, are, first, quantity; second, course and distance ; and third, artificial or natural objects and monuments. And whenever a question arises in regard to description, the law selects those terms or objects which are most certain and material; and they are declared to govern in the construction of the deed. Upon this principle it is held that quantity must yield to course and distance, and that course and distance must give way to artificial and natural objects. These plain and salutary principles are fully sustained by all the au- thorities, as a reference to them will fully show : Williams v. Watts, 6 Cranch, 148; Shipp et al. v. Miller's Heirs, 2 Wheat. 316; Jackson V. Barringer, 15 Johns. 471 ; Powell v. Clark, 5 Mass. 355 (4 Am. Dec. 67) ; Jackson v. Hubble, i Cow. 617. In Jackson v. Moore, 6 Id. 717, it is declared that not only course and distance must yield to natural and artificial objects, but quantity, being the least part of de- scription, must yield to boundaries or numbers, if they do not agree. Conveyance of Land 78 [ And in Mann v. Pearson, 2 Johns. 40, and in Jackson v. Barringer, 15 Id. 472, it is laid down to be a well-settled rule, that where a piece of land is conveyed by metes and bounds, or any other certain description, that will control the quantity, although not correctly stated in the deed, be the same, more or less. And the example put by way of illustration is, that if a man lease to another all his meadows in D. and S., contain- ing ten acres, when, in truth, they contain twenty acres, all shall pass : Jackson v. Wilkinson, 17 Id. 147. In Powell v. Clark, 5 Mass. 356 (4 Am. Dec. 67), the rule is thus stated: "In a conveyance of land by deed, in which the land is certainly bounded, it is very immaterial whether any or what quantity is expressed; for the description by the boundaries is conclusive." "And when the quantity is mentioned, in addition to a description of the boundaries, without -any express cov- enant that the land contains that quantity, the whole must be consid- ered as description." It is a general rule, "if there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the ad- dition of a circumstance, false or mistaken, will not frustrate the grant." But when the description of the estate intended to be con- veyed includes several particulars, all of which are necessary to ascer- tain the estate to be -conveyed, no estate will pass except such as will agree to every part of the description." Thus, if a man grant all his estate in his own occupation, and in the town L., no estate will pass, but what is in his own occupation and in that particular town. The description of the tenements granted must, in such a case, comprehend all the several particulars and circumstances named, otherwise the grant will be void : 4 Com. Dig., Fait, R. 3 ; Doughty's case ; Jackson V. Clark, 7 Johns 223 ; Blange v. Gold, Cro. Car. 447, 473 ; Jackson v. Loomis, 18 Johns 84. But if the thing described is sufficiently ascer- tained, it shall pass, though all the particular descriptions be not true. For example, if a man convey his house in D., which was in the posses- sion of R. C, when in truth and in fact it was in the occupation of P. C, the grant nevertheless shall be good : Roe v. Vaumer, 5 East, 51. For it was suffilciently described by declaring that it was in the town of D. : Hob. 171 ; Bro. Abr., Grants, 92. Where there is error in the principal description of the thing intended to be granted, though there be. no error in the addition, nothing will pass. Thus, says L,ord Bacon, "if a person grants tenementum suum or omnia tenementa sua in the parish of St. B. without Oldgate, when, in truth, it is without Bishopgate, tenura GuHelmi, A., which is true, yet the grant will be void, because, that which sounds in denomination is false, which is 782 Casb;s on Rhjai. Property the more worthy, and that which sounds in addition is true, which is the less. And though the words in tenura Gulielmi A., which is true, had been first placed, yet it had been all one :" 3 Rep. 9 ; Stukeley v. Butler, Hob. 171 ; Doddington's case, Co. Lit. 2, 32, 33. Where lands are first described generally, and afterwards a par- ticular description added, that will restrain and limit the general de- scription. Thus, if a man grants all his lands in D., which he has by the gift and feoffment of J. S,, nothing will pass, but the lands of the gift and feoffment of J. S. : 4 Com. Dig. 287; 4 Cru. 325; i Johns. Ch. 210; 4 Cru. 225; Com. Dig., Parole, A, 23; Bott v. Burnell, 11 Mass. 167; Worthington v. Hylyer, 4 Id. 205. We will now proceed to construe the deed of Phillips to Kendrick and Fisher according to the principles here laid down and established. The deed does not create either an express or an implied covenant to convey an exact quantity of acres mentioned in the first clause of the sentence, unless the terms "one other tract of lg.nd containing three hundred and sixty-six acres," constitute such an agreement. Had the deed stopped here, there can be but little doubt that the grantor would have sold, and the grantees have taken the exact number of acres as designated by these general terms. This it has not done, but it proceeds to add other words of greater certainty, and of more particular de- scription, limiting and restricting their general meaning. The grant declares the premises sold to be the' "said tract of land which was con- veyed by William Russell to Sylvanus Phillips, by deed bearing date the thirteenth of July, 1825." Then the land sold and conveyed to Kendrick and Fisher is the same identical tract purchased by Phillips from Russell by deed bearing date thirteenth day of July, A. D. 1825. Here, then, the land is first described by quantity, and afterwards by boundary. That being the fact, the deed in question falls precisely within the rule — that the quantity must yield to the boundary — be- cause the latter description contains greater certainty and materiality. Again, a particular description cannot be limited by general expres- sions. In the present instance, there is a general description, and then follows a particular description of the thing conveyed ; and where that is the case, and the two descriptions contradict each other, the particu- lar description shall prevail. No one can doubt but that Russell's deed furnishes a more accurate and particular description of the land con- veyed than the simple affirmation that the tract contains three hundred and sixty-six acres. Both parties fixed and agreed upon the metes and bounds of Russell's deed for the purpose of ascertaining the exact number of acres conveyed. For if this was not the case, why did they Conveyance op Land 783 refer to that deed, and recite it in the grant? By incorporating it into their agreement, they made it a part of their covenant, and constituted it the governing consideration of their contract. It is no answer to this argument to say that Russell's deed to Phillips lacked certainty in description, and therefore its recital in Phillips' deed to Kendrick and Fisher cannot render that certain which is in itself vague and doubtful. It is true that the deed conveys three hundred and thirty-five town lots, a fraction of eighteen acres, and three hundred and forty acres. The deed recited contains sufficient certainty to ascertain the quantity con- veyed. The ■ town lots are specifically described, and so are the eighteen-acre tract and the three hundred and forty-acre tract. How then can the deed be said to want certainty in description? The two tracts of eighteen acres and three hundred and forty acres do not amount to the three hundred and sixty-six acres, but only to three hundred and fifty-eight acres. Russell's deed therefore only conveys three hundred and fifty-eight acres, and that being the case, the fraction of three and eighty^:wo hundredths acres cannot be included within the grant made by Phillips to Kendrick and Fisher of October i, 1830. HUMPHREYS v. McKISSOCK. 140 U. S. 304; 35 L. Bd. 473; II Sup. Ct. 77p. (i8pi) Field, J. The commissioner in his report committed a manifest error in holding that the Wabash Company possessed any interest in the property of the elevator company. The facts found by him as to the organization of the latter, the subscription to its stock, the construc- tion of the elevator, and its lease to others, show beyond controversy the independent existence of that corporation, and that the railway company had no specific interest in its elevator or other property which it could mortgage. It was a mere stockholder in the elevator company. If there had been any doubt on this point from the evidence before that officer, on which he found the facts stated, it must have been removed by the stipulation of the parties. The court below therefore erred in confirming the commissioner's report in that particular, and entering a decree that Humphreys and Tutt, as receivers of the Wabash Com- pany, execute and deliver to the petitioner, McKissock, an assignment of an interest supposed to be held by it, or by them as such receivers. 784 Cases on Reai, Property in the Union elevator. That railway company had no interest which it could assign. The building belonged to the Union Elevator Com- ' pany ; and the railway company was entitled, by its subscription, when paid, only to a certain proportion of its stock. Both the commissioner and the court in confirrriing his report and entering the decree men- tioned seem to have confounded the ownership of stock in a corpora- tion with ownership of its property. But nothing is more distinct than the two rights; the ownership of one confers no ownership of the other. The property of a corporation is not subject to the control of individual members, whether acting separately or jointly. They can neither incumber nor transfer that property, nor authorize others to do so. The corporation — ^the artificial being created — holds the prop- erty, and alone can mortgage or transfer it; and the corporation acts only through its officers, subject to the conditions prescribed by law. In Smith v. Hurd, 12 Mete. (Mass.) 385, the relations of stockholders to the rights and property of a banking corporation are stated with his usual clearness and precision by Chief Justice Shaw, speaking for the Supreme Court of Massachusetts, and the same doctrine applies to the relations of stockholders in all business corporations. Said the chief justice: "The individual members of a corporation, whether they should all join or each act severally, have no right or power to inter- meddle with the property or concerns of the bank, or call any officer, agent, ,or servant to account, or discharge them from any liability. Should all the stockholders join in a power of attorney to anyone, he could not take possession of any real or personal estate, any security or chose in action ; could not collect a debt, or discharge a claim, or release damage arising from any default; simply because they are not the legal owners of the property, and damage done to such property is not an injury to them. Their rights and their powers are limited and well defined." The commissioner also committed a manifest error in his report in holding that the elevator was a common appurtenance to the railroads of the several companies having the stock of the elevator, company, and that one-sixth interest therein was an appurtenance to the railroad of the Wabash Company. It is difficult to understand the course of reasoning by which a certificate of stock in an independent corporation can be an appurtenance to a railroad. If'stock in the company in ques- tion could be considered an appurtenance to a railroad, by the same rule stock in a bank, or in any other corporation, with which the rail- road did business, might be so considered. But were we to consider the Wabash Company as possessing a separable legal interest in the Conveyance op Land 785 elevator, it would not be appurtenant to its railroad. That building is situated at some distance from the railroad — more than half a mile, — and is erected on land not belonging to that company, but leased from the Union Pacific Railway Company, and can only be reached by crossing the tracks of another company. Had the elevator been con- structed upon property covered by the mortgage it might have been contended that it fell, to the extent of the one-sixth interest, under the mortgage, as one of the depots of the company. The term "depot" in the mortgage is not necessarily limited to a place provided for the convenience of passengers while waiting for the arrival or departure of trains. It applies also to buildings used for the receipt and storage of freight, which, when received, is to be safely kept until forwarded by the cars of the company, or delivered to the owner or consignee. Such' a building, whether existing at the time of the mortgage or con-- structed afterwards upon the property of the company covered by it, may pass under the mortgage as one of its depots, but will not pass as an appurtenance to the property previously existing. A thing is appurtenant to something else only when it stands in the relation of an incident to a principal, and is necessarily connected with the use and enjoyment of the latter. Harris v. Elliott, 10 Pet. 25, 54: Jackson v. Hathaway, 15 Johns, 447, 455 ; Linthicum v. Ray, 9 Wall. 241. Of two parcels of land one can never be appurtenant to the other, for, though the possession of the one may add greatly to the benefit de- rived from the other, it is not an incident of the other, or essential to the possession of its title or use; one can be enjoyed independently of the other. As said by the court of appeals of New York in WoodhuU V. Rosenthal, 61 N. Y. 390 : "A thing 'appurtenant' is defined to be a thing used with and related to or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing where- unto it is appendant or appurtenant. It results from this definition that land can never be appurtenant to other land, or pass with it as belong- ing to it. All that can be reasonably claimed is that the word 'ap- purtenances' will carry with it basements and servitudes used and enjoyed with the lands for whose benefit they were created. Even an easement will not pass unless it is necessary to the enjoyment of the thing granted." Under the term "appurtenances," as used in the mortgage in question, only such property passes as is indispensable to the use and enjoyment of the franchises of the company. It does not include property acquired simply because it may prove useful to the company, and facihtate the discharge of its business. A distinction is made in such cases between what is indispensable to the operation of 786 Cases on Real Property a railway and what would be only convenient. Bank v. Tennessee, 104 U. S. 493, 496. The elevator in question was at all times under an independent management, and was used in the same manner as any other warehouse not on the premises of the railway company to which it sent cars for freight. The court therefore erred in confirming the report of the commissioner in the particular mentioned, and in passing its decree upon the assumption that the Wabash Company had a legal separate interest in the elevator, and that the mortgage attached to such interest. That company, as already stated, possessed only stock in the elevator company ; and the ownership of stock in one company has never been adjudged to be an appurtenance to a line of railroad belonging to another company. * * * SEC. i. COVENANTS OF TITLE. WOODS v. NORTH AND JOHNSON. 6 Humphreys (Tenn.) 309; 44 Am. Dec. 312. (1845) Green, J. This bill is filed to rescind a contract for the purchase of a tract of land. Theoderick North, the defendant, is one of the ex- ecutors of the will of William North, his father, and at the sale of other property belonging to the estate, he offered for sale the tract of land in controversy representing that as executor, he had a right to sell and. convey the same. The complainant became the purchaser, and the defendant, as executor, executed to him a deed of conveyance, with a covenant that he was seised, and had a good right, as executor as aforesaid, to convey. The will of William North confers no power on his- executors to sell his land, and the deed of the defendant vests no title in the complainant. While this bill has been pending, a decree has been made for the sale of this land, in order for a division among the heirs of William North, and the defendant has become the pur- chaser at the sale, which has been made under that decree ; and he now offers in his individual character, to make a good title to the complain- ant. The chancellor decreed a rescission of the contract, from which decree the defendant appealed. We are of opinion there is no error in this decree There is nothing in the clattse of the will referred to in the pleadings from which the executor could possibly infer, that he had authority to sell the lands CoNV^YANCfi OF LaND 787 of his testator. The very proposition to sell the land as executor, was a species of fraud. Persons who go to a public sale of a deceased person's estate, are not in the habit of scrutinizing the provisions of the will, to judge of the extent of the executor's power. They take it for granted, that he has good right to sell all the property he ofler? to the bidders. Where he thus ofifers the property for sale, it is a representation that he has a right to sell, and by reason of his situa- tion he gains the confidence of bidders, who are deceived thereby, if he have no power to make the sale. Whether he intends corruptly to defraud the purchaser or not, the effect is the same; the bidder is deceived by the false representation, and ought to be relieved. In this deed there is a covenant of seisin, in which the defendant asserts that he has a right to sell and convey this land as executor. Here is an express misrepresentation. The complainant had a right to bring his bill before he was evicted because of the covenant of seisin, on which a right of action arose the moment it was made. There is no reason for denying the complainant relief, and turning him over to his action at law on the covenants in the deed. The circumstances of imposition and fraud in the sale, are such as to sustain the jurisdiction of a court of equity : Ingram v. Morgan, 4 Humph. 66. The offer by the defendant of his own individual deed, by which a title acquired by him, personally, since the pendency of this suit, presents no ground for refusing the relief prayed in this bill. If the complainant were com- pelled to take this title, the price he agreed to give for the land would inure to the individual benefit of the defendant. He has purchased the land, and he is bound to his co-heirs only for the price he bid at the sale under the decrees before mentioned, while he would get all the benefit of the exorbitant price, it may be, which the complainant was to give. But if a party fraudulently sell, and convey an estate to which he has no title, the vendee who comes into equity to rescind the contract will not be compelled to take an after-acquired title from the vendor. Note: In some states it is held that a covenant of seisin means seisin in its common law meaning and the fact that the possession is tortious does not involve a breach of the covenant. Backus' Admrs. v. McCoy, 3 Ohio 211 ; 17 Am. Dec. 585. 788 Cases on Real Property PETERS V. BOWMAN. 98 U. S. 56; 23 L. Bd. 91. (1878) Mr. Justice Swayne delivered the opinion of the court. This is a bill to enforce a lien upon real estate situate in Tunica County, in the State of Mississippi. Bowman owned the premises in fee-simple, and sold the undivided half to Bostick, and gave him a written contract, valid in equity, but not sufficient to pass the legal title. Bostick died in 1868, possessed of property in Mississippi and Ten- . nessee, and leaving a last will and testament. By one of the clauses he appointed Gwinn his executor in IMissis- sippi, and the appellee, Elliott, his executor in Tennessee. By another clause he authorized the Mississippi executor to lease or cultivate the premises in question with Bowman, and finally under the circurnstances named, "to join the said Bowman in making sale and title to the purchasers." By another clause, after the payment of all legacies, debts, and expenses of administration, he gave to three persons, whom he named, and their successors, as trustees, the entire residue of his estate, "to be invested by them in a suitable site and buildings for a female academy" in Tennessee, and to be otherwise devoted to that institution. Gwinn died in the lifetime of the testator. On the nth of January, 1869, the Probate Court of Tunica County granted "letters testamentary of the said last will and testament" to Elliott. On the 25th of January, 1869, Elliott, describing himself as "execu- tor of the last will and testament of J. Bostick, acting under the powers conferred by said will," and Bowman, united in a conveyance with full covenants to the four brothers, Jaquess, for the consideration of $4,000, paid in cash, and the further sum of $24,000, for which four notes were given by the vendees, each for the sum of $6,000, and pay- able respectively on the first day of January in the years 1870, 1871, 1872, and 1873, with interest at the rate of six per cent per annum. In reference to these notes the deed contains the following pro- vision: "And to secure the payment of each and all of which said notes and interest an express lien is hereby retained by the parties of the first part upon the real estate and premises" in question. The note maturing on the ist of January, 1870, was paid by the Jaquess Brothers. Conveyance of Land 789 On the 26th of January, 1870, they sold and conveyed the premises to the appellant, Peters, for the consideration expressed in the deed ot the sum of $11,920 cash in hand, "and the assumption by the said Peters of the payment of three promissory notes for $6,000, made by the first parties (Jaquess Brothers), and payable to Elliott and Bow- man, for the same land herein conveyed." The deed contains a covenant of the right to convey, of seisin, and of general warranty. . The covenant of good right to convey is synonymous with the cov- enant of seisin. The actual seisin of the grantor will support both, irrespective of his having an indefeasible title. These covenants, if broken at all, are broken when they are made. They are personal, and do not run with the land. Marston v. Hobbs, 2 Mass. 432; Breenby & Kellogg v. Wilcocks, i Johns, (N. Y.) 2; Hamilton v. Wilson, 4 id. 72. Peters put his co-defendants. General Chalmers and wife, in pos- session of the premises, under an arrangement whereby, when they should pay the balance of the purchase-money, he would convey to Mrs. Chalmers. Their possession has since continued, and has been undisturbed. On the 8th of November, 1869, the same Probate Court granted letters of administration "upon the estate of J. Bostick, deceased, with the will of said Bostick annexed," to Elliott, upon his giving a sufficient bond and taking the oath prescribed by law, both of which were then done. The original bill was filed on the 28th of February, 1873, to enforce the lien reserved in the deed of Elliott and Bowman to Jaquess Brothers, to secure the notes given for the purchase-money, the three last of which are wholly unpaid. On the 31st of July, 1874, Elliott, to obviate objections made to the prior deed, executed a second deed to the Jaquess Brothers for the same premises. In this deed he describes himself as "administrator with the will annexed of said Bostwick," &c. The deposition of Elliott shows that Bostick never had any title to the premises but what he derived from his contract with Bowman ; that Bowman, after Bostick's death, insisted upon selling, and hence the sale to the Jaquess Brothers. The court below decreed in favor of the complainants. Peters brought the case here for review. There is no controversy about the leading facts of this case. The questions presented are all questions of law. Bowman had the 790 Cases on Reai, Property legal title to the entire premises, and that title he conveyed to Jaquess Brothers, and they conveyed it to Peters. The deed of Elliott and Bowman contained all the usual covenants of title. The covenant of warranty ran with the land, and passed by assignment to Peters. The deed of the Jaquess Brothers produced that result. In the event of a failure of title, Peters can sue upon this covenant in either deed. King V. Kerr's Adm'r., 5 Ohio, 154. When broken, it becomes a chose in action, but a subsequent grantee may sue the warrantor in the name of the holder. There can be but one satisfaction. Id. A sheriff's or a quitclaim deed will carry the covenant before its breach to the grantee. White v. Whitney, 3 Mete. (Mass.) 81 ; Hunt v. Am- idon, 4 Hill (N. Y.), 345- Where at the time of the conveyance with warranty there is adverse possession under a paramount title, such possession is regarded as eviction, and involves a breach of this covenant. Where the para- mount title is in the warrantor, and the adverse possession is tortious, there is no eviction, actual or constructive, and no action will lie. Noonan v. Lee, 2 Black, 499; Duval v. Craig, 2 Wheat. 45. Here there is no adverse possession, and no -eviction, actual or constructive ; nor does it appear that suit has been threatened, or that an adverse claim has been set-up by anyone. The possession and enjoyment of the property by General Chalmers and his wife have been the same as if their title were indisputable. It is insisted that the first deed of Elliott was fatally defective, because the letters from the Probate Court, under which he acted in making it, were issued to him as ex- ecutor, and that both deeds were void, because under the will and the circumstances there was no authority to sell ; and, lastly, because the residuum of the estate of the testator, including proceeds of the prem-* ises in question, was disposed of in a way forbidden by a law of the State of Mississippi. We prefer to rest our judgment upon a ground independeftit of all these points, and which renders it unnecessary to examine them. It is the settled law of this court that upon a bill of foreclosure, or, as in this case, a bill to enforce a lien for the purchase-money, and where there has been no fraud and no eviction, actual or constructive, the vendee, or a party in possession under him, cannot controvert the title of the vendor; and that no one claiming an adverse title can be permitted to bring it forward, and have it settled in that suit. Such a' bill would be multifarious, and there would be a misjoinder of parties. Noonan v. Lee, supra; Dial v. Reynolds, 96 U. S. 340. In such cases, the vendee and those claiming under him must rely upon the covenants Conveyance opLand 791 of title in the deed of the vendor. They measure the rights and the remedy of the vendee; and if there are no such covenants, in the absence of fraud, he can have no redress. This doctrine was distinctly laid down in Patton v. Taylor, 7 How. 159, and was re-examined and affirmed in Noonan v. Lee. See also Abbott v. Allen, 2 Johns. (N. Y.) Ch. 519; Corning v. Smith, 6 N. Y. 82; Beebe v. Swartwbut, 8 111. 162. That the vendor is insolvent or absent from the State, or that an ad- verse suit is pending which involves the title, does not withdraw the case from the operation of this principle. Hill and Wife v. Butler, 6 Ohio St. 207; Piatt v. Gilchrist, 3 Sandf. (N. Y.) 118; Latham v. Morgan & Fitz, i Smed. & M. (MisS:) Ch. 611. The rule is founded in reason and justice. A different result would subvert the contract of the parties, and substitute for it one which they did not make. In such cases the vendor, by his covenants, if there are such, agrees upon them, and not otherwise, to be responsible for defects of title. If there are no covenants, he assumes no responsi- bility, and the other party takes the risk. The vendee agrees to pay according to his contract, and secures payment by giving a lien upon the property. Here it is neither expressed nor implied that he may re- fuse to pay and remain in possession- of the premises, nor that the vendor shall be liable otherwise than according to his contract. Where an adverse title is claimed, it cannot be litigated with binding effect, unless the claimant is before the court. We have shown that he cannot be made a party. One suit cannot thus be injected into another. Without his presence, the judgment or decree as to him would be a nullity. The law never does or permits a vain thing. A title which cannot be made good otherwise may be made so by the lapse of time or the Statute of Limitations. Is the vendor to wait until this shall occur? and, in the meantime, can the vendee, or those claiming under him, remain in possession and enjoy all the fruits of the contract, and pay neither principal nor interest to the vendor? Chancellor Kent well says, "It would lead to the greatest inconveni- ence, and perhaps abuse, if a purchaser in the actual possession of land, and when no third person asserts or takes any measures to assert a hostile claim, can be permitted, on a suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase-money, and of all proceedings at law to recover it." Ab- bott V. Allen, supra. Decree affirmed. 792 Cases on Real Property HUYCK V. ANDREWS. Tis N. y. 81; 10 Am. St. Rep. 4^2; 3 L. R. A. 789; 20 N. S. 581. (1889) Earl, J. In* March, 1880, the defendant conveyed to Maria W. Huyck, plaintiff's intestate, by what is commonly known as a full cov- enant deed, certain land situate in the town of Coeymans, in the county of Albany, which, as described in the deed, contained the whole of Hawneycroix Creek within its boui;idaries. Prior thereto, Amos Briggs had received a deed of adjoining land on the east side of the creek, which conveyed to him, with the land, an easement, as follows: "The right to the use of the whole of the water of the said Hawney- croix kill or creek, also the right to erect and maintain a dam across said creek, and to connect same to the opposite bank thereof, at such place as the dam now is, and to extend the same, by an embankment or otherwise, from the bank at the water's edge to the high bank or hill west thereof; and the right, also, from time to time, to go onto and upon the land on the opposite side of said creek, for the purpose of erecting and maintaining said dam or dams, and of using thereof the land for that purpose." Upon the land thus conveyed to Briggs there was a papermill, and there had been erected a dam across the creek to the westerly side thereof; and he and those under whom he held had used the waters of the creek for the purposes of that mill for many years. Subse- quently to the conveyance to Mrs. Huyck, Briggs entered upon the land, and built an embankment westerly from the edge of the creek to the high bank upon her land. Afterward she brought this action for the breach of the covenants contained in her deed by the existence and use of the easement which Briggs had in the land conveyed to her. She recovered, and the defendant has appealed to reverse her judg- ment. He claims that the easement owned by Briggs was open, visible, and well known to Mrs. Huyck at the time she took her deed, and that therefore the covenants in the deed do not protect her against it. It is true that she knew that the paper-mill and dam across the creek were there, and that the waters of the creek had been used for many years for the purposes of the mill. But it does not appear that she knew the full extent of Brigg's easement, or that she had any knowledge whatever that he had any paramount right to the exclusive use of the waters of the creek, or to maintain his dam where it was located as CoNvfiYANCB OF Land 793 high as he wished. But even if she had such knowledge, that fact furnished no defense to this action. The deed entitled her to a perfect title to all the land which it pur- ported to convey, free from any encumbrances thereon, and it is no defense to her action that at the time she took it she knew of some en- cumbrance or some defect in the title. Proof of such knowledge would be quite important in an action brought by her grantor to reform the deed, but as a defense to an action upon the covenants contained in the deed, it is of no importance whatever. That the covenant again.st encumbrances is broken by an outstanding easement of any kind is perfectly well established by the authorities in this state, and there is no hint in any of them that knowledge by the grantee of the existence of the easement at the time of the conveyance makes any difference. An easement is an interest in land created by grant or agreement, ex- press or implied, which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another. An encumbrance, within the terms of the covenant against encumbrances, is said to be "every right to or interest in the land, to the diminution of the value of the land, but consistent with the passage of the fee by the conveyance" : Prescott v. Trueman, 4 Mass. 627 ; 3 Am. Dec. 246; and the breach of such a covenant takes place at the instant the conveyance is made. There is in this state one exception to the rule that the existence of an easement constitutes a breach of the covenant, against encum- brances, and that is in the case of a highway. It was held in Whitbeck v. Cook, 15 Johns, 483, 8 Am. Dec. 272, that it is not a breach of the covenants that the grantor was lawful owner of the land, was well seised, and had full power to convey, that part of the land was a public highway, and was used as such; and that decision has ever since been regarded as the law in this state. It was based upon the peculiar nature of highway easements, and the general understanding with reference to them. Spencer, J., writing the opinion said : "It must strike the mind with surprise that a person who purchases a farm through v/hich a public road runs at the time of purchase, and had so run long before, who must be presumed to have known of the existence of the road, and who chooses to have it included in his purchase, shall turn around on his grantor and complain that the general covenants in the deed have been broken by the existence of what he saw when he purchased, and what must have enhanced the value of the farm. It is hazarding little to say that such an attempt is unjust and inequitable, and con- trary to the universal understanding of both vendors and purchasers. 794 Cases on Real Property If it could succeed, a flood-gate of litigation would be opened, and for many years to come this kind of action would abound. These are serious considerations, and this court ought, if it can consistently with law, to check the attempt in the bud." These reasons are not ap- plicable to other easements and the rule of that case has not been ap- plied to any other. While there was not in the deed there under consideration any covenant against encumbrances, yet the ratio de- cidendi is equally applicable to such a covenant; and since that de- cision it has always been understood in this state that such a covenant is not broken by the existence of a highway. In McMullin v. Wooley, 2 Lans. 394, it was held that the right to take water by means of a pipe laid beneath the ground from a spring on the premises conveyed constituted a breach of the covenant against encumbrances. In Roberts v. Levy, 3 Abb. Pr. N. S., 311, it was held that a covenant, entered into between owners of adjoining city lots, for themselves and all claiming under them, to the effect that all buildings erected upon the lots should be set back a specified distance from the street on which the lots fronted, constituted an encumbrance upon the lots to which it applied ; and if subsequently conveyed by deed containing the usual covenant against encumbrances, a breach of the latter covenant arises the instant the deed is executed. In Rea v. Minkler, 5 Lans. 196, it was held that the existence and use of a private right of way over the granted premises was a breach of warranty ; and Blake v. Everett, i Allen, 248, Russ v. Steel, 40 Vt. 310, and Wether- bee V. Bennett, 2 Allen, 428, are to the same effect. In Scriver v. Smith, 100 N. Y. 471, 53 Am. Rep. 224, where the owner of land upon a stream conveyed the same with a covenant of quiet enjoyment, and subsequently an owner below, under and by vir- tue, of a paramount right, raised the height of a dam upon his land and thereby flooded the land conveyed, it was held that there was substantially an eviction and a breach of the covenant. In Mitchell V. Warner, 5 Conn. 497, it was held that a pre-existing right in a third person to take water from the land conveyed is a breach of a covenant against encumbrances. In Morgan v. Smith, 11 111. 194, it was held that an easement authorizing one to dam up and use the water of a branch running over the land conveyed, and to use the water of a spring upon it, is a breach of the covenant against encum- brances. In Medler v. Hiatt, 8 Ind. 171, there was a conveyance of land, with covenants against encumbrances, through which there was a stream of water, and at the time of the conveyance there was across the creek, a short distance below the land conveyed, a dam which Conveyance of L,and 795 backed the stream up so as to overflow a large quantity thereof. The action was brought upon promissory notes given for the purchase price of the land. The defense set up was breach of covenant against en- cumbrances. To this defense the plaintiff replied, inter alia, that the defendant, when he purchased the land, knew of the existence of the dam and of the right to flow back the water ; and to this reply the de- fendant demurred. The demurrer was overruled, and upon appeal the judgment upon the demurrer was reversed. The court said : "It is conceded that the action of the court in overruling the demurrer raises the main question in the case, and in support of that ruling it is in- sisted that, as the appellant, received a deed for the lands with full no- tice of the dam, and the right to continue it, the law presumes that he took the conveyance subject to the encumbrance. The rule of de- cision on this subject, as evinced by various authorities, is to some ex- tent unsettled. None of the authorities, however, sustain the position that mere notice to the vendee, at the time he receives his deed, of an existing encumbrance excludes it from the operation of an express covenant against encumbrances. * * * The plaintiff's reply con- tains nothing from which a contract relative to the easement can be inferred. It is true, the defendant knew of the encumbrance, but mere notice of it does not indicate even an intent to relinquish any remedy he might have under the covenants in his deed," In Hovey v. Newton, 7 Pick. 29, the action was covenant upon a lease of water-works and buildings, with the whole control of the water in the pond, except the right which one Bangs had to take water in logs to his garden, and a similar right reserved to the lessor ; and the court held that parol evi- dence was not admissible to prove that, in the intention of the parties to the lease, there was likewise an exception of the right which the county of Worcester had exercised for more than twenty years, of occasionally diverting part of the water for the purpose of cleaning the county jail, and which diversion was well known to the parties at the time of making the lease. In Mohr v. Parmelee, 1 1 Jones & S. 320, a party-wall was wholly on one of two contiguous lots of land, yet subject to appropriation and use for all the purposes of a party-wall by the proprietor of the other by reason of a prior grant, and it was held that it constituted an encumbrance upon the land on which it stood; that when a title is encumbered by such an easement a right of action immediately accrues; and that whether the covenantee had or had not knowledge or notice of its existence is immaterial, both as re- gards his right of action and the question of damages. In 2 Greenleaf on Evidence, section 242, it is said : "A public highway over the land, 796 Cases on Reai, Property a claim of dower, a private right of way, a lien by judgment or by- mortgage, or any other outstanding, elder, and better title is an en- cumbrance, the existence of which is a breach of this covenant. In these and the like cases it is the existence of the encumbrance which constitutes the right of action, irrespective of any knowledge on the part of the grantee or of any eviction of him." In 2 Dart on Vendors and Purchasers, 6th ed. 886, the following language is used: "Al- though the fact of the purchaser having notice of the defect cannot prevent the covenants for title from extending to it, since extrinsic evidence is inadmissible for the purpose of construing a deed, yet in an action to rectify the covenant, that fact can be used as the basis of an inference that it could not have been the intention of the parties that the covenant should include a defect of which both parties were aware. * * * To support the contention of the appellant, his counsel has placed much reliance upon the cases of Kutz v. McCune, 22 Wis. 628, and Memmert v. McKeen, 112 Pa. St. 315. In Kutz v. McCune, supra, it was held that an easement obviously and notoriously affecting the physical" condition of the land at the time of its sale is not embraced in the general covenant against encumbrances. In Memmert v. Mc- Keen, .fif/'ra, it was held that encuiribrances are of two kinds : I. Such as affect the title; and 2. Such as affect only the physical condition of the property ; that where encumbrances of the former class exist, the covenant is broken the instant it is made, and it is of no importance that the grantee had notice of them when he took the title ; that where, however, there is a servitude, imposed upon the land which is visible to the eye, and which affects, not the title, but the physical condition of the property, it is presumed that the grantee took the property in contemplation of such condition, and with reference thereto. We do not yield assent to these authorities. They have no sanction in any of the cases decided in this state, and have no adequate foundation in principle or reason. They open to litigation, upon parol evidence, in every action for the breach of the covenant against encumbrances caused by the existence of an easement, the question whether the grantee knew of its existence ; and in every such case the protection of written covenants can be absolutely taken away by disputed oral evi- dence. We think the safer rule is to hold that the covenants in a deed protect the grantee against every adverse right, interest, or dominion over the land, and that he may rely upon them for his security. If open, visible, and notorious easements are to be excepted from the operation of covenants, it should be th^ duty of the grantor to except Conveyance o^ Land 797 them, and the burden should not be cast upon the grantee to show that he was not aware of them. The security of titles demands that a grant made without fraud or mutual mistake shall bind the grantor accord- ing to its written terms. It should not be incumbent upon the grantee to take special and particular covenants against visible and apparent defects in the title or encumbrances upon the land; but it should be incumbent upon the grantor, if he does not intend to covenant against such defects and encumbrances, to except them from the operation of his covenants. The distinction which is attempted to be made between encumbrances which affect the title and those which affect merely the physical condition of the land conveyed is quite illusory and unsatis- factory. Easements not only affect the physical condition of the land, but they affect and impair the title. The owners of them have an in- terest in and dominion over the servient tenement which frequently may largely impair its usefulness and value. The rule contended for would operate very unjustly, and would be quite difficult to administer , in many cases. In this case, while the grantee knew of the existence of the dam, and of some use of the water, she did not know of the right to extend the dam from the edge of the water to her high land on the west side of the creek ; nor did she know of the right Briggs had to use the entire water of the stream. We are therefore of opinion that Mrs. Huyck was entitled to the protection of the covenant against encumbrances. * * * KUTZ v. McCUNE. 22 Wise. 628; pp Am. Dec. 85. (1868) Paine, J. The defendant conveyed to the plaintiff a tract of land by a deed containing the usual covenants of seisin and against encum- brances, without any exceptions to those covenants. At the time of the purchase, between thirty and forty acres of the land were flowed by a mill-pond created by a dam on land not belonging to the defend- ant, which dam had been maintained long enough to create a pre- scriptive right in the owner of it to flow the land in question. This action was brought for a breach of the covenants of seisin and against encumbrances by reason of this existing right of flowing. The circuit court instructed the jury that it made no difference whether the purchaser was fully aware of the situation of the property 798 Cases on Reai, Property at the time of purchasing, or not ; and that the right of flowing consti- tuted an encumbrance that occasioned a breach of the covenant, for which the defendant was liable. This, I think, was error. That such a right does not constitute a breach of the covenant of seisin, see Rawle on Covenants, 83, 142. It may have been an encumbrance. But there is a principle recognized by adjudged cases, and resting upon sound reason aijd policy, which holds that purchasers of property obviously and notoriously subjected at the time to some right of easement or servitude affecting its physical condition, take it subject to such right .without any express exceptions in the conveyance, and that the vendors are not liable on their covenants by reason of its existence. This prin- ciple has been applied in the case of a highway opened and in use upon the land at the time of the conveyance: Rawle on Covenants, 141 et seq.; Scribner v. Holmes, 16 Ind. 142. This principle seems fully applicable to the present case. There is no material difference, so far as this question is concerned, between a public highway and a right of flowing the land by a mill-pond in actual existence upon it. In the case of the highway, the doctrine does not rest upon the fact that the right is in favor of the public, but that the easement is obvious and notorious in its character, and that therefore the purchaser must be presumed to have seen it, and to have fixed his price for the land with reference to its actual condition at the time. And certainly a mill-pond upon land is quite as notorious an object as a highway, and the reason for the presumption just suggested is quite as strong. The contrary doctrine has been held, in respect to highways, in Massachusetts and some of the other New England states ; though in Herrick v. Moore, 19 Me. 313, the court seem to imply that if the highway had been actually opened and in use,, and the t)laintiff knew of its existence at the time of his purchase, their conclusion would have been different. But however that might have been,, the weight of the argument is decidedly in favor of the rule held in Pennsylvania in Patterson v. Arthurs, 9 Watts, 152, and approved in Whitbeck v. Cooks, 15 Johns, 483 (8 Am. Dec. 272). And to hold that every high- way, in open notorious use as such, upon land at the time of its con- veyance, would constitute a ground of action for a breach of the cov- enant against encumbrances, unless specially excepted, would un- doubtedly, in the language of Chief Justice Spencer, "open a floodgate of litigation" in this state as well as in New York. There is another class of cases which strongly supports the same conclusion. The principle which they establish may be briefly stated in the language of the syllabus to Seymour v. Lewis, 13 N. J. Eq. 439 Conveyance of Land 799 (78 Am. Dec. 180), as follows: "Where the owner of two tenements sells one of them, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of the sale to belong to it, as between it and the property which the vendor retains." The case cites a great number of authorities illustrating the rule. It was also in accordance with the French law, as shown in Washburn on Easements, 16, 17. And a very strong instance of its enforcement is found in the recent case of Harwood v. Benton, 32 Vt. 724. That was a case where the owner of a mill-pond and the surrounding lands con- veyed a lot not bounded on the pond, but adjacent to it, and which was sometimes flowed, though not continuously. The deed contained the usual covenants, with no exceptions or reservations. Yet the court held that the vendor himself retained the right to flow the lot con- veyed as it had been theretofore flowed, and was not liable on his covenants by reason of the existence of such right. According to that case, if the defendant here had himself owned the mill and dam which created the mill-pond, he would have retained the right to flow the land as it was flowed, and would not have been liable on the covenants. Can there be any stronger reason for holding him liable novi^ ? If the law, without any exception in the deed, will, from the presumed under- standing of the parties, based upon the obvious condition of the prop- erty sold, imply a reservation in- favor of the vendor, should it not equally imply one upon the same grounds when the continued existence of the right is of no benefit to the vendor ? True, there is a technical difference, which is alluded to in the- case last cited. That is, that where both parcels of land are owned by the same person, the servitude imposed on a part in favor of the rest is not technically an easement, because no man can have an easement in his own land. But the implied reservation in his favor takes effect at the same instant with his covenants on the delivery of the deed, and then constitutes an easement ifa his favor, and consequently an encum- brance. And certainly there is no more ground for supposing that the purchaser in such case intends to take the property subject to such reserved right in favor of his vendor than there is, in the case where the property in whose favor the servitude is imposed is owned by a stranger, to suppose that he intended to take it subject to that. This class of decisions does net rest at all upon this technicality, but upon the broad, substantial grounds constituting the foundation of the for- mer class. And the court in Vermont quotes from Gale and Whateley on Easements the following passage, which puts the vendor only on the same footing in this respect with other adjoining owners : "There 8oo Cases on Reai, Property is no reason why a purchaser should not exercise the same degree of caution in ascertaining what easements his projected purchase is liable to in favor of his vendor as well as in favor of other adjoining own- .ers." The substantial foundation for both classes of decisions is the strong, natural presumption that the parties sell on the one hand, and buy on the other, the property in its actual physical condition, and subject to such rights, either in favor of the vendor or others, as that physical condition obviously indicates, without any exceptions or reser- vations concerning them in the deed. So that the decisions that an existing highway in favor of the public, and a right of flowing the land conveyed by the vendor, as it was done at the time of the conveyance, do not constitute breaches of the covenant against encumbrances for which the vendor is liable, really rest upon the same principle. The court below compared it to the case of a mortgage on the prop- erty sold known to the purchaser. But the two cases are essentially different. A mortgage does not affect the physical condition of the property at all. It is a mere incident to a debt of the vendor; and where the purchaser takes his covenant against encumbrances, there is no reasonable ground for supposing that he intended to have his land subsequently sold to pay the vendor's debt, or else to pay it him- self. It is so different from the question that has been considered that there is really no comparison between them. The judgment is reversed, and the cause remanded for a new trial. Note: This case is inserted so that it may be contrasted with the case of Huyck v. Andrews, supra, p. 792. BOSTWICK V. WILLIAMS. 36 III. 65; 85 Am. Dec. 385. (1864) BreESE, J. It is a strong presumption that the note was given for the land, and in the absence of any proof to rebut it, the presumption must prevail. The contract with the plaintiffs was, that on payment of the notes with the interest, they would execute and deliver to defendant a good and sufficient deed of general warranty for the premises, and the de- fendant was to take immediate possession of the same. It is in proof that before suit brought, on the very day of its com- Conveyance op Land 8oi mencement, plaintiffs presented the note to defendant for payment, and tendered him a warranty deed in the usual form, dated December 27, 1856, for the premises described in the contract, executed by them on the first day of July, 1862. The defendant replied to the demand and tender, that he had not the money, and was unable to pay the note. It is in proof that on the first day of July, 1862, the plaintiffs were married men, and had been for some time previous. The dower right of their wives was not released by this deed. The question then is, Did this furnish a sufficient excuse for the non-pay- ment of the note? We think not. The covenant was to make a general warranty deed, and nothing more. Such a deed was tendered, and the party was bound to accept it. Even if the covenant was to make such a deed free and clear of all encumbrances, it has been said by a respectable court that a possibility of dower is not, within the sense of such a covenant, an encumbrance, for that means a settled, fixed encumbrance : Per Story, J., in Powell v. Monson and Brimfield Manufacturing Co., 3 Mason, 3SS- As the plaintiffs undertook to make a deed with a covenant of gen- eral warranty only, it could not be broken until there was an actual eviction, or something equivalent to an. eviction: Beebe v. Swartwout, 3 Gilm. 179. Such a covenant is usually treated as synonymous with a covenant for quiet enjoyment, since the same concurrence of cir- cumstances is necessary to their breach; they equally possess the capacity of running with the land, and the rules as to the measure of damages are the same as to both : Rawle on Covenants, 196. The covenant, as expressed in the obligation of the plaintiffs, amounts to no more than an engagement that it should bar the cov- enantors and their heirs from ever claiming the land, and that they and their heirs should undertake to defend it when assailed by a paramount title. We cannot find in the books any authority for the suggestion that a covenant of general warranty, by itself, includes a covenant against encumbrances, admitting an inchoate right of dower to be an encumbrance. All the cases cited by appellant are cases in which the covenant against encumbrances was inserted in the deed, and can have no ap- plication to this case. When the deed was tendered to defendant he did not then object that it contained no release of dower. Had he made that the objection, it might have been removed at once by procuring such release. Making no objection to the deed on the ground now taken would 8o2 CAses ON Rbai, Property not perhaps preclude him, but being made we are of opinion the cov- enant of the plaintiffs was performed by^them, and the defendant should receive the deed and pay the note. If, hereafter, the wives of plaintiffs should become widows, and claim and recover their dower in a mode by which the defendant may be injured, he will be able to obtain recompense on the covenants in his deed. It would be unjust to allow him to defeat the payment of the note on this bare possibility, and at the same time retain the possession and enjoyment of the land. HQDGES V. LATHAM. p8 N. C. 239; 2 Am. St. Rep. 333; 3 S. B. 495. (1887) Action for breach of warranty. The plaintiff testified that he pur- chased the land in question from the defendant, and paid part of the purchase price; that he cultivated it for a time, and then rented it to one Mitchell; that he left the neighborhood for a few months, and upon his return found that Willis Cherry, who had married a daughter of C. C. Little, had got possession of the land. The court intimated that the jury should be instructed that the plaintiff could not recover, and thereupon the plaintiff submitted to a judgment of nonsuit, and appealed. Other facts appear from the opinion. Davis, J. It was under and by virtue of the judgment in the special proceeding of D. H. Latham, administrator, etc., of C. C. Little v. Willis Cherry et al., that the land in question was conveyed to W. A. Blount by the defendant Latham, and the proceeds of the sale, or so much thereof, as was applicable to that purpose, applied in discharge of the balance of the purchase-money due upon the sale of the land made to C. C. Little in i86i. The paramount title was in the heirs of Little, claiming under the sale made to their ancestor in 1861, by the defendant Latham. He cannot be heard to say that their title was not good and paramount to that acquired by the plaintiff from him. One of the heirs of Little had acquired possession in the manner stated in the case. Was that such an eviction, actual or constructive, as to entitle the plaintiff to recover upon the warranty in the deed from Latham to him? We think it was. "The existence of a better title, with an actual possession under it, is of itself a breach of the covenant." The purchaser is not required to bring an unnecessary action, in which he must fail to recover the Conveyance of' Land 803 possession: Grist v. Hodges, 3 Dev. 198; Herrin v. McEntyre, i Hawks. 410; Duvall v. Craig, 2- Wheat. 45. H there had been no eviction by legal process, the burden of showing that there was a better or paramount title is upon the purchaser ; and even then the mere existence of a superior title in another is not a breach of the covenant, but the purchaser need not be actually evicted by legal process. "It is enough that he has yielded possession to the rightful owner ; or, the premises being vacant, that the rightful owner has taken possession" : 3 Washburn on Real Property, 3d ed., 406. In Sprague v. Baker, 17 Mass. 586, there was a valid prior encum- brance by mortgage, which, upon demand, the purchaser discharged. This was held to be such an eviction constructively as entitled him to recover upon the warranty. So in Noonan v. L,ee, 2 Black, 507, it is said that an adverse possession by virtue of a paramount title is re- garded as an eviction, and involves a breach of the covenant of war- ranty. There was error, and the plaintiff is entitled to a new trial. SUYDAM v. JONES. 10 Wendell, (N. Y.) 180; 25 Am. Dec. 552. (1833) Actions for breach of covenants of warranty and quiet enjoyment. Plaintiff declared on the covenants in a certain deed from the defend- ant to one Sandford, who conveyed to the plaintiff; and alleged an eviction by one Rapelye, under a title derived neither from Sandford nor the defendant. Several special pleas were pleaded, setting forth, in substance, that Rapelye was the purchaser at a foreclosure sale under a mortgage given several years before the conveyance to Sandford; that the mortgage was recorded; that Sandford had actual notice of such mortgage, and agreed with the defendant to pay off the same as part of the consideration ; and also that the covenants of warranty and of quiet enjoyment should not be considered to extend to the mortgage. Demurrer to these pleas, and joinder. Sutherland, J. The doctrine that a covenant of warranty runs with the land, and inures to the benefit of the assignee of the cov- enantee, who may bring an action for the breach of it in his own name against the original covenantor, is not questioned or denied. The only doubt upon this point which was ever entertained in this court was, 8o4 ' Cases on Real Property whether, when a covenantee conveys with warranty, his grantee, upon eviction, could sue the original warrantor, or whether his remedy was confined to his immediate covenant of indemnity. The latter opinion was expressed in Kane v. Sanger, 14 Johns. 89. But the whole subject was fully reviewed and considered in Withy v. Mumford, 5 Cow. 137, where the broad doctrine that the assignee may maintain an action against the original covenantor, whether the immediate conveyance to him was with or without warranty, was, upon a consideration and- re- view of all the cases, fully established: Co. Lit. 384, b, 385, a; Cru. Dig. 452, 453; Cro. Eliz. 503; Shep. Touch. 198, tit. Warranty; 2 Mass. 460; Booth v. Starr, i Conn. 244 (6 Am. Dec. 233). If the covenant passes to the assignee with the land, it cannot be affected by the equities existing between the original parties any more than the legal title to the land itself. A covenant under seal cannot be discharged by a parol agreement before breach : Kaye v. Waghorn, I Taunt. 427. The discharge must be by matter of as high a nature as that which created the debt or duty : Preston v. Christmas, 2 Wils. 86. This is universally true where the action is founded upon, or grows exclusively out of the deed or covenant : Blake's case, 6 Co. 43 ; Alden V. Blague, Cro. Jac. 99. In covenant, therefore, award with satisfac- tion before breach is bad, because the plea goes to the covenant itself, though after breach it may be good, for then it goes only in discharge of the damages, and not of the deed : Snow v. Franklin, Lutw. 108, in my ed. of 1708, cited in others as i Lutw. 358. The principle that a written contract or instrument cannot be es- sentially varied by parol, seems also to be applicable to this case, and to exclude the defense. The covenant in the defendant's deed, it is conceded, embraces in its terms the mortgage, under and by virtue of which the plaintiff has been evicted. The defense is either that at the time of executing and delivering the deed, it was understood and agreed between the parties that the covenants should not extend to that mortgage, or that after the deed was executed and delivered the grantee agreed that it should not embrace the mortgage, and quoad hoc discharge the covenant. In the first point of view, the objection to the defense is, that it is attempting to show that the real contract between the parties was different from that expressed in the deed, which, upon well-settled principles, cannot be done; and in the second point of view, the ob- jection is equally fatal, as has already been shown, that a covenant be- fore breach cannot be discharged by parol. This view of the case would seem to show that if the action had been Conveyance op Land 805 brought by and for the benefit of the grantee himself, instead of his assignee, the defense could not be sustained at law ; though there are some peculiarities in the case to which I have not particularly adverted, which, as between the original parties, might affect or vary its charac- ter: Butler's note, 332, to Co. Lit. 385. Even a formal technical re- lease from the covenant by the covenantee, after the assignment, and a breach in the hand of the assignee, would not discharge it: Middle- more V. Goodale, Cro. Car. 503. The case must be brought within the principle of fraud, and the assignee must be affected with it, before a defense of the nature of this can be available, and perhaps even then it is not available at law. In the language of one of the plaintiff's points, to allow a secret agreement in opposition to the plain import of a covenant running with the land, to control and annul it in the hands of a bona fide assignee, would be a fraud upon such assignee which the law will not tolerate. The pleas do not charge the plaintiff with any notice whatever of the secret agreement between the defendant and vSandford, nor with any actual notice of the existence of this incum- brance at the time of his purchase; though if such actual knowledge had existed, I do not perceive that it can vary or affect the case. SEC. 5. EXECUTIOK. MACKAY V. EASTON. ip Wall. (U. S.) 6ip; 22 L. Ed. 211. (1873) * * * The execution of the contract and the second deed of Smith, with his mark, is a circumstance, but in the light of the facts following their execution, a slight one against the theory of identity of the grantors in the two deeds. The use of a mark for his name may have resulted from temporary causes, or difficulty in writing, and not inability to write. But whatever the cause, the use of the mark in the one case, and of the name in the other, before a public officer, was sanctioned by the acknowledgment of the grantor, whether made by his own ^^and or by another in his presence and by hjs direction. * * % 8o6 Cases on Reai< Property GRIDER V. AMERICAN FREEHOLD LAND MORTGAGE CO. pp Ala. 281; 42 Am. St. Rep. 58; 12 So. 775. (1892) Head, J. * * * An important question arising in this case is, What conclusiveness shall be accorded to the certificate of acknowledg- ment of the execution of a mortgage made in due form by an officer authorized by the laws of this state to take and certify such acknowl- edgments? The bill avers that Mrs. Grider, the wife, although she signed with her husband the mortgage to the American Freehold Land Mortgage Company of London (Limited), and although there is ap- pended to the mortgage the certificate, in due form, of a justice of the peace, certifying her due acknowledgment of its execution, yet, in fact, she never made the said acknowledgment before said justice, or any other acknowledgment before any officer ; that the justice of the peace was not present when she signed the mortgage, and never took any acknowledgment from her with "reference to the execution of the, same, and that said certificate of acknowledgment is wholly untrue. There is in the bill no charge of fraud or collusion on the part of anyone in procuring the certificate; and upon the averments, as we find them, it must be assumed that the mortgagee took the mortgage and parted with its money in reliance upon the truth of the certificate without any notice of its falsity. The complainants contend that they are entitled to show the fact alleged to avoid the mortgage of the homestead, even against a bona fide mortgagee without notice. The defendant contends that they are concluded by the certificate. .It must be regarded as settled by the great weight of authority that when the grantor or mortgagor appears before the officer, and makes an acknowledgment of the execution of the instrument, which is duly certified by the officer to have been made in conformity to law, the certificate is conclusive of the truth of all the facts therein certified, and which the officer was by law authorized to certify, until success- fully assailed for duress or fraud in which the grantee or mortgagee participated, or of which he had notice at the time of parting with the consideration. The taking and certifying of the acknowledgment are held in many of the cases to be of a judicial nature, and when the officer has jurisdiction, so to speak, by having the party acknowledging and the instrument to be acknowledged before him, and enters upon and exercises this jurisdiction, the parties will not be allowed to im- peach the truth of the facts which he is required by law to certify, and does certify, in th? absence of fraud or duress as above stated; Conveyance of Land 807 Louden v. Blythe, 16 P^. St. 532 ; 55 Am. Dec. 527 ; 27 Pa. St. 22 ; 67 Am. Dec. 442 ; * * *. In Halso v. Seawright, 65 Ala. 431, however, where the question was whether the clerk of a probate judge was authorized to take and cer- tify an acknowledgment, the act was held to be of a ministerial and not judicial nature, and that, therefore, the clerk was authorized; but in the later case of Griffith v. Ventress, 91 Ala. 366, 24 Am. St. Rep. 918, this court, without referring to Halso v. Seawright, 65 Ala. 431, declared it to be a judicial act, and this may now be regarded as the- settled doctrine of this court. In Shelton v. Aultman, 82 Ala. 315, it was contended by counsel, upon the authority of Halso v. Seawright, 65 Ala. 431, that the decisions sustaining the conclusive character of the certificate should be overruled ; arguing that as the officer acts in a ministerial capacity, as held in Halso v. Seawright, 65 Ala. 431, parol evidence should be admitted to falsify the certificate in any and every respect ; but the court, speaking by Justice Clopton, said that whatever may be the capacity in which the officer acts, the rule as estabhshed may now be regarded as a rule of property, which it would be unwise and unsafe to disturb. It must, therefore, as we have said, be considered as settled that where the grantor has appeared before the officer, and an acknowl- edgment of some kind has been taken, the certificate of the officer in due form', whether he acts ministerially or judicially, is conclusive of the facts certified, and which he is by law authorized to certify; but the same may be impeached for duress or fraud in which the grantee or mortgagee participated, or had notice of before parting with his money. We have examined a great many authorities, and find only the fol- lowing wherein the question we are now called upon to decide, viz.. What effect shall be accorded to the officer's certificate, when the allegation is that the party never in fact appeared before the officer, or made any acknowledgment at all, was raised or adjudicated. In Michener v. Cavender, 38 Pa. St. 334, 80 Am. Dec. 486, the officer certified to the wife's acknowledgment. She in fact never ap- peared before him, or acknowledged the mortgage in any manner. The mortgagee was innocent. The court, recognizing the general rule above stated, in cases where there was an actual acknowledgment, ruled that the wife was not bound by the certificate, and discussed at some length the rights in such a case of the mortgagee, as a bona fide purchaser without notice. The judge said, inter alia: "To call the mortgagee a bona fide purchaser, and put her to proof that he knew 3o8 Cases on Real Property she had been cheated, would be like making her right to reclaim stolen goods dependent on the receiver's knowledge of the felony. Suppose the mortgage was a forgery out and out, and Cavender chose to invest * his money in a purchase of it, must it be enforced because he did not know he was buying a forged instrument? An instrument known to be forged would not be purchased, and would therefore be worthless to the forger. Counterfeit notes would never be issued if a herald went before to proclaim their spuriousness. But, because they are taken without notice, do they become genuine? * * * fo carry the doctrine of notice to such extent would subvert all law and justice. A purchaser of real estate who finds the deeds in the channels of the title all duly acknowledged is certainly not required to go tip the stream, and inquire of every married woman if she executed her deed volun- tarily, and acknowledged it according to law; and, if he pay his money on the faith of such title deeds, he is to be protected ; and this probably is all that was meant by what judges have said about purchasing with- out notice." In Allen v. Lenoir, 53 Miss. 321, the wife signed, but never in fact acknowledged, the mortgage, or went before the officer, as his certifi- cate affirms she did. Judge Campbell said: "We cannot escape the conclusion, after an earnest effort to avoid it, that the mortgage was never acknowledged by Mrs. Lenoir, and that the certificate that she had acknowledged it is untrue. A proper acknowledgment is an essen- tial part of the execution of a conveyance of her land by a married woman. * * * T^g decree, being based on the mortgage, is er- roneous." And in Johnston v. Wallace, 53 Miss. 331, 24 Am. Rep. 699, the same judge adhered to this view, and upon a review of the authorities, distinguished such a case from the case where an acknowl- edgment of some kind was made, but assailed because not made, in respect of its details, in the manner required by law. In Burland v. Walrath, 33 Iowa, 130, the wife neither signed nor acknowledged the mortgage, and the court held the certificate, which as to her was in due form, open to attack. The case, however, is unsatis- factory as authority on the point we are considering, since no illusion is made to the question of bona fides or notice on the part of the mort- gagee; nor does it appear from the facts that he was a bona fide mortgagee without notice of the falsity of the certificate. In Smith v. Ward, 2 Root, 374, i Am. Dec. 80, it was held that parol evidence is admissible to prove that the grantor did not appear before the certifying officer and make acknowledgment; but, like the case last Conveyance of Land 809 cited, the discussion Is meager, and makes no reference to the rights of bona fide purchasers. In Meyer v. Gossett, 38 Ark. 377, the court held that where there is no appearance before the officer, and no acknowledgment in fact, the . officer's false certificate of acknowledgment is void in toto; but the distinction was closely drawn that, where there are an appearance and acknowledgment in some manner, the certificate is conclusive of every fact appearing on its face, and evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate, except in case of fraud or imposition brought home to the grantee. It appeared that the grantee was a purchaser for value without notice of the falsity of the certificate. That case was adhered to in Donahue V. Mills, 41 Ark. 421. In Williamson v. Carskadden, 36 Ohio St. 664, the general rule as to conclusiveness of the certificate is recognized, but the court says : "If it is true, as alleged by the defendants, * * * that they never appeared before the officer, or acknowledged the execution of such mortgage, the certificate of acknowledgment is, as to them, fraudulent ; and in availing themselves of that defense, it is not necessary to show tliat the mortgagee had notice of such fraud. In fact, the governing principle is very broad. Thus, it has been held that in an action on a recognizance, which is regarded as a record, a plea in bar that the defendant did not acknowledge the recognizance is sufficient ; and how- ever it may be as to the right to attack a judgment on the ground that there was no jurisdiction over the person it is not denied that, in a proper case, a judgment may be directly impeached on that ground." * * * From the foregoing review of the authorities, we must realize that the question we are called upon to decide is by no means free from difficulty. We know the absolute and implied faith and trust which, in practice, purchasers of real estate repose, and must necessarily re- pose, in the formal and regular certificates of authorized officers, au- thenticating the regular and legal execution of conveyances, and the disastrous consequences which may flow from a rule which would allow those certificates to be questioned and set aside against pur- chasers who have parted with valuable interests in reliance upon them ; yet, on the other hand, .we perceive the manifest injustice of a rule which would deprive one of his property, without his knowledge or consent, upon the mere baseless fabrication of another. Under the laws of this state the official examination and acknowledg- ment of the wife prescribed by the statute, and duly certified by the 8io Cases on Reai, Property officer, are essential and indispensable parts of the valid execution of a conveyance of the husband's homestead. Without them there is no execution of the conveyance. It matters not how formally signed or abundantly attested, if these statutory requisites are wanting, the con- veyance is a nullity. In Allen v. Lenoir, 53 Miss. 321, the court said : "A proper acknowledgment is an essential part of the execution of a conveyance of her land by a married woman" ; and this court in Grif- fith V. Ventress, 91 Ala. 366, 24 Am. St. Rep. 918, quoted approvingly a similar utterance of the same court in Harmon v. McGee, 57 Miss. 414. The objection to the mortgages, therefore, made by the present bill essentially is, that they were never executed, so far as they affect the homestead. Upon due consideration we are of opinion that the better rule, and the one sustained by the weight of authority, is that, when there has been no appearance before the officer, and no acknowledgment at all made, it may be shown in disproof of the officer's certificate, even against bona fide mortgagees and purchasers. We approve the rule as it is stated in i American and English Encyclopedia of Law, section 6, page 160: "When there is no appearance before an officer his false certificate of acknowledgment is void ; but when there is an appearance and acknowledgment of it in some manner, then the official certificate is conclusive of every fact appearing on its face ; and evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate, except in case of fraud or imposition, and where knowl- edge or notice of the fraud or imposition is brought home to the grantee." This must be taken with the qualification that the certificate is conclusive only of the facts the officer is by law authorized to certify. HITZ V. JENKS. 123 U. S. 29-j; 8 Sup. Ct. 143; 31 L. Ed. 156. (1887) * * * "That the magistrate's certificate, when made in the form required by the statute, and duly recorded, is conclusive evidence that he has performed his duty, has not been directly adjudged by this court ; but the course of its decisions has tended to this conclusion. In Drury v. Foster, Mr. Justice Nelson, in delivering judgment, observed : "There is authority for saying that, where a perfect deed has been signed and acknowledged before the proper officer, an inquiry into the Conveyance of Land 8ii examination of the feme covert, embracing the requisites of the statute as constituting the acknowledgment, with a view to contradict the writing, is inadmissible ; that the acts of the ofificer for this purpose are judicial and conclusive." 2 Wall. 24, 34. And in Young v. Duvall, the court said that if the officer's certificate "can be contradicted, to the injury of those who in good faith have acted upon it, the proof to that end must be such as will clearly and fully show the certificate to be false or fraudulent. The mischiefs that would ensue from a dif- ferent rule could not well be overstated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity of titles to real estate, which would inevitably flow from one less rigorous." 109 U. S. 573, 577, 3 Sup. Ct. Rep. 415. It would be inconsistent with the reasons above stated, as well as with a great weight of authority, to hold that, in the case of a deed actually executed by a married woman of full age and sound mind, a certificate of her separate examination and acknowledgment, in the form prescribed by the statute, and duly recorded with the deed, can afterwards, except for fraud, be controlled or avoided by extrinsic evi- dence of the manner in which the examination was conducted by the magistrate. Comegys v. Clarke, 44 Md. 108; Jamison v. Jamison, 3 Whart. 457; Williams v. Baker, 71 Pa. St. 476; Harkins v. Forsyth, II Leigh, 294; Greene v. Godfrey, 44 Me. 25; Baldwin v. Snowden, II Ohio St. 203; Graham v. Anderson, 42 111. 514; Dolph v. Barney, 5 Or. 191 ; Johnston v. Wallace, 53 Miss. 331 ; Hartley v. Frosh, 6 Tex. 208. See, also, Bancks v. Ollerton, 10 Exch. 168, 182." * * * YOUNG V. GUILBEAU. 3 Wall. (U. S.) 636; 18 L. Ed. 262. (1865) * * * With this statute in force, Mrs. Younge brought trespass against Guilbeau and eleven others in the Federal Court for the West- ern District of Texas, to try the title to a lot of ground in that district. She proved that the lot belonged originally to one Nixon, her ancestor, now deceased, and that she was his sole heir. Guilbeau and the others, defendants in the case, admitting the original ownership alleged, set up that Nixon had conveyed the lot, by deed, in his lifetime to a certain 8i2 Cases on Seal Prop^rTV Shelby ; from whom they, Guilbeau and the other defendants, derived title to themselves. The suit thus involved, in its merits, the existence of a deed from Nixon to Shelby. No original deed to Shelby was produced. A document, however, purporting to be a deed executed by Nixon to Shelby, embracing the premises in question, bearing date the loth day of October, 1838, and acknowledged the 29th of the same month, had been filed for record on the 7th of December, 1846, in the office of the clerk of the proper county, in Texas, and was afterwards in due form placed on the rec- ords of the office. A certified copy of this instrument was offered in evidence by the defendants and adrnitted against the objection of the plaintiffs. * * * Mr. Justice FiEir section 10, which provides that neither party shall be examined without the consent of the other. They are not thereby made incom- petent witnesses, nor are they to be classed as such, though their right to be examined is contingent upon the consent of that one for or against whom the witnesses may be offered. It does not follow that a married person is incompetent to attest a will because the husband or wife of such person is a beneficiary under the will. He can only be- come incompetent in a single contingency, and that is, in case such interested party shall become a contestant on the subsequent probate of the will. If the latter be not a contesting party he is in no position to raise the objection, and he may not choose to do it if he is ; and, if he be one of the proponents, he thereby consents to the testimony of the attesting witnesses. The contingency which would make him in- competent may never arise, and, if it does, it must be deemed to arise subsequent to the act of attestation. In the case at bar, then; what evidence is there that the witness is incompetent? The wife is pro- ponent, and offers to examine her husband as a witness. No question, therefore, in respect to his Competency is raised. Incompetency in a witness is not presumed, and the question is to be determined when the offer to examine the witness is made, and then the facts are to be ascertained by the court. The witness is not shown to be incompetent, in this case, and his evidence on the probate of the will was properly received. In Tillotson v. Prichard, 60 Vt. 107, 6 Am. St. Rep. 95, it is held that the wife of the grantor in a Minnesota deed was a com- petent attesting witness thereto, under the provisions of the statute we have been considering, and the court say "that she was a competent witness, and might be examined with the consent' of her husband." The court also held, as we do, that the plaintiff, by offering the deedin •;vidence, consented to her being a witness. 2. The appellant also contends that if the husband be a competent Wills 833 witness, then the legacy to his wife should be held void under the statute which anhuls beneficial devises, etc., to a subscribing witness on account of the marital relation. But there is nothing in this point. The husband has no direct or certain interest in the legacy to his wife. It is absolutely hers in her own right, and free from his control : Gen. Stats. 1878, c. 69 ; Wilson v. Wilson, 43 Minn. 400. The only devises or legacies which the statute annuls are those made to subscribing wit- nesses, which clearly does not apply .to the husband or wife of the legatee. In England, where husband and wife are competent witnesses (Tay- lor on Evidence, 1145, 1 147), the statute has gone further (i Vict., c. 26, sec. 15), and also avoids gifts, legacies, and devises to the hus- band or wife of an attesting witiiess. It could not be done without the statute. This legislation assumes both the competency of the witnesses and that they had no interest in the legacies which would have made the same void without the aid of legislation to that effect. The construction we have adopted is in conformity with the spirit of modern legislation on the general subject of the rights of husband and wife, and the practical results will no doubt be no more serious than in the case of parents or children, who may unquestionably attest deeds and wills for each other: i Alb. L. J. 246. GILLIS V. GILLIS. p(J Ga. i; 51 Am. St. Rep. 121; 30 L. R. A. 143; 23 S. B. 10/. (1895) Lumpkin, j. * * * The paper purporting to be the will was executed by the testatrix on the twelfth day of March, 1873. It bears the names of four witnesses, but it was conceded that the last of them signed his name some time after the execution of the paper by the testa- trix and its attestation by the other witnesses, and it does not appear that he signed in her presence. The appearance, therefore, of the name of this witness upon the paper counts for nothing in determining the question of the legality of. its execution. Accordingly, the fact that he signed will be ignored altogether, and it will be undefttood that, in speaking of the subscribing witnesses to the paper, reference to the other three only is intended. One of these signed by making her mark. An- other died before the testatrix. The usual and formal attestation clause 834 Cases on Reai. Property was used. The paper was offered for probate soon after the death of the testatrix, and about twenty years after its execution and attestation. At the time of probate, the two subscribing witnesses then in life were produced. The one who wrote his own name proved the due execution of the paper as a will. The signature of the deceased witness was shown to be in his handwriting. The illiterate witness testified that she had no recollection of attesting the will, and could not swear to the making of her mark. At the same time, however, she did not expressly swear that she did not attest by her mark the paper propounded. I. The first and leading question is : Was the paper legally attested as a will? The execution and attestation of written wills in this state, as to both real and personal property, is provided for in sections 2414 and 2415 of the code. Section 2414 reads as follows: "All wills (ex- cept nuncupative wills) disposing of realty or personalty must be in writing, signed by the party making the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the testator by three or more competent witnesses.'' Section 2415 declares that: "A witness may attest by his mark, provided he can swear to the same ; but one witness cannot sub- scribe the name of another, even in his presence and by his direction." Section 2414 was codified from section 5 of 29 Charles II, chapter 3, known as the "statute of frauds," in reference to devises of real prop- erty (Cobb's Digest, 1128; Huff v. Huff, 41 Ga. 701), and from an act of January 21, 1852 (Acts 1851-52, p. 104), which prescribes that wills bequeathing personal property shall be executed as are wills de- vising real property. The statute of frauds and our own act of 1852 each uses the word "credible," and section 2414 of the code uses the word "competent," as to the three or more witnesses required to attest a will. These two words are, as here used synonymous : Hall v. Hall, 18 Ga. 40. They mean, in this connection, witnesses who are com- petent at the time of attestation to testify in a court of justice. Thus, in one of the earlier English decisions, it was said : "The true time for his credibility is the time of attestation; otherwise, a subse- quent infamy, which the testator knows nothing of, would avoid his will": Holdfast on Demise of Anstey v. Dowsing, 2 Strange. 1253. In Sears v. Dillingham, 12 Mass. 358, the court, after stating that an executor was not a competent witness to prove the execution of a will, said : "But a will to which such an executor is a subscribing witness may be proved by the testimony of the other witnesses, he having been a credible witness within the statute at the time of his attestation, and having become incompetent only by accepting a trust." In Patten v. Wills 835 Tallman, 27 Me. 17, it was said: "The competency of an attesting witness to a will is not to be determined upon the state of facts ex- isting at the time when the wjll is presented for probate, but upon those existing at the time of the attestation." So very pertinent, in this connection, is the text of Schouler on Wills, that we make an extended extract: "Upon common-law principle the quaHfication or disqualification of a witness is usually raised with reference to the time wMen he is called upon to testify. Nor is competency at that date to be left unconsidered ; as where, for instance, a witness who subscribed while in sound mind has become insane by the time the probate of the will is at issue, in which case, of course, his testimony cannot be taken. But his incompetency at this latter date does not defeat the will, whose attestation and subscription was a sort of testifying, such as the pe- culiar transaction called for. To surround himself with a specified number of witnesses at that time competent was all that any testator could do in compliance with the statute requirements ; and what was then a proper execution in all respects taking place, a will was pro- duced whose validity could never be impeached for informality. Ilence the rule, which reason should now pronounce the universal one, so far as the question remains a material one at all, that the competency of witnesses, Hke that of the testator, is tested by one's status at the time when the will was executed. If, therefore, a sufficient number of wit- nesses attest and subscribe properly, who at that date are competent, the will remains valid, although death or supervening disability may render any or all of them incapable in fact of testifying by the time the will is offered for probafe. In other words, the inconvenience of this last situation is purely casual and incidental, and without direct prejudice to the will itself, which might, indeed, be established on mere proof of handwriting, where the instrument appeared on its face gen- uine and formal" : Schouler on Wills, sees. 350, 351 ; Jarman on Wills, Randolph and Talcott's ed., 225; Higgins v. Carlton, 28 Md. 115; 92 Am. Dec. 666, and note on 680 ; Hawes v. Humphrey, 9 Pick. 350 ; 20 Am. Dec. 481, and note on 488; Amory v. Fellows, 5 Mass. 219; Carl- ton v. Carlton, 40 N. H. 14; Holt's Will, 56 Minn. 33 ; 45 Am. St. Rep. 434- A witness who signs by his mark, if So capable of testifying, is just as competent a witness under the statute of fraud.s, our act of 1852 and section 2414 of the code, as one likewise capable of testifying who writes his own name. This is settled by an unbroken line of au- thorities: (Citing authorities). * * * 836 Cases on Real Property RIGGS V. RIGGS. 135 Mass. 238; 46 Am. Rep. 464. (1883) Morton, C. J. The only question presented by this report is as to the sufficiency of the attestation, by the witnesses to the will and codicil of the testator. The statutes provide, that in order to be valid, a will or codicil mHst be signed by the testator, or by some person in his presence and by his direction, "and attested and subscribed in his presence by three or more competent witnesses." Gen. Stats., chap. 92, 6; Pub. Stats., chap. 127, I. It appeared at the hearing that the testator had received a severe injury, and was lying upon his bed unable to move. His sight was un- impaired, but he could only look upward, as he was incapable of turn- ing his head so as to see what took place at his side. As to the codicil, it appears that it was attested and subscribed by the three witnesses in the same room with the testator, at a table by the side of the bed about four feet from his. head. The contestant contends that this attestation was insuffifeient, because the testator did not and could not see the witnesses subscribe their names. It has been held by some courts, upon the construction of similar statutes, that such an attesta- tion is not sufficient. See Aiken v. Weckerly, 19 Mich. 482, 505; Downie's Will, 42 Wis. 66; Tribe v. Tribe, 13 Jur. 793 ; Jones v. Tuck, 3 Jones (N. C.) 202; Graham v. Graham, 10 Ired. 219. But we are of opinion that so nice and narrow a construction is not required by the letter, and would defeat the spirit of our statute. It is true that it is stated, in many cases, that witnesses are not in the presence of a testator unless they are within his sight ; but these statements are made with reference to testators who can see. As most men can see, vision is the usual and safest test of presence but it is not the only test. A man may take note of the presence of another by the other senses, as hearing or touch. Certainly if two blind men are in the same room talking together they are in each other's pres- ence. If two men are in the same room conversing together and either or both bandage or close their eyes, they do not cease to be in each other's presence In England, where the, tendency of the courts has been to construe the statute with great strictness, it has always been held that a blind man can make a valid will, although of course he cannot see, if he is sensible of the presence of the witnesses through the other senses, Wii:,i,s 837 Piercy's Goods, i Rob. Ecc. 278; Fincham v. Edwards, 3 Curt. Ecc. 63. It would be against the spirit of our statutes to hold, that because a man is blind or because he is obliged to keep his eyes bandaged, or because by an injury he is prevented from using his sight, he is de- prived of the right to make a will. The statute does not make the test of the validity of a will to be that the testator must see the witnesses subscribe their names; they must subscribe "in his presence"; but in cases where he has lost or cannot use his sense of sight, if his mind and hearing are not affected, 'if he is sensible of what is being done, if the witnesses subscribe in the same room, or in such close proximity as to be within the line of vision of one in his position who could see, and within his hearing, they subscribe in his presence ; and the will, if otherwise duly executed, is valid. In a case like the one before us, there is much less liability to deception or imposition than there would be in the case of a blind man, because the testator, by holding the will before his eyes, could determine by sight that the will subscribed by the witnesses was the same will executed by him. We are of opinion therefore that the codicil was duly attested by the witnesses. The facts in regard to the attestation of the original will do not materially differ from those as to the codicil. The witnesses signed the will at a table nine feet distant from the testator, which was not in the same room, but near the door in an adjoining room. The door was open, and the table was within the line of vision of the testator, if he had been able to look, and the witnesses were within his hearing. The testator could hear all that was said, and knew and understood all that was done ; and after the witnesses had signed it, and as a part of the res gestae, it was handed to the testator, and he read their names as signed, and said he was glad it was done. For the reasons before stated, we are of opinion that this was an attestation in his presence, and was sufficient. The result is, that the decree of the justice who heard the case, ad- mitting the will and codicil to probate, tnust b? affirmed, -838 Cases on Real Property BEYER V. LE FEVRE. 186 U. S. 114; 46 L. Bd. 1080; 22 Sup. Ct. 765. (1902) Brewer, J. * * * One who is familiar with the volume of lit- igation which is now flooding the courts cannot fail to be attracted by the fact that actions to set aside wills are of frequent occurrence. In such actions the testator cannot be heard, and very trifling matters are often pressed upon the attention of the court or jury as evidence of want of mental capacity or of the existence of undue influence. What- ever rule may obtain elsewhere we wish it distinctly understood to be the rule of the Federal courts that the will of a person found to be possessed of sound mind and memory is not to be set aside on evidence tending to show only a possibility or suspicion of undue influence. The expressed intentions of. the testator should not be thwarted without clear reason therefor. * * * CREIGHTON et al. v. CREIGHTON e"t al. 261 Ped. 333. (1919) Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Suit in equity by Minnie B. Creighton and another against Margafet Creighton and others. Decree for complainants, and defendants ap- peal. Reversed. Before Sanborn, Circuit Judge, and Hunger and Youmans, Dis- trict Judges. Youmans, District Judge. James Creighton, of Washington county, Kan., died January 19, 1916, leaving surviving him his widow, Mar- garet Creighton, and three children by her, Cyrus Creighton, Margaret Barley, and Alexander Creighton, and two children by a former mar- riage, Minnie Creighton and Laura A. Owen. This suit was brought by the two children by the former marriage, residents of New Mexico, against the widow and her three children, to. annul an instrument pur- porting to be the last will and testament of James Creighton. It was alleged in the bill of complaint that, at the time of making the will in question, the testator was of unsound mind, and that he was induced to sign it through undue influence of his wife, Margaret Creighton. These two questions were submitted to a jury, who found, from the WlLI,S 839 testimony and under the instructions of the court, that James Creigh- ton was of sound mind at the time he made the will, but that the will was made through the undue influence of his wife. Upon that verdict a decree was entered setting aside the will. The appellants contend that the evidence is not sufficient to sustain the finding of the jury, nor the. decree based thereon. Beatrice, the mother of appellees, obtained a divorce from her hus- ban, James Creighton, April 9, 1884. There was decreed to her as alimony 160 acres of land and $1,500 in money. The custody and control of the 'children by that marriage were by the terms of the de- cree left to the father and mother as the children might choose. There were three children at that time. In November, 1884, James Creighton rnarried appellant, Margaret Creighton. Not long after this marriage, all three of the children by the first wife took up their permanent abode with their mother. Later the mother and the three children moved to New Mexico. James Creighton made a will on June 17, 1905, in which each of the appellees, Minnie B. Creighton and Laura A. Owen, were given $1 each, and the daughter, Lucy, by the former wife, was given $100. Later Lucy died. On the 12th of June, 1912, James Creighton, after a visit by him and Margaret Creighton to appellees in New Mexico, made a will in which he gave one-half of his property to his wife, and after making a bequest of $400 to one Beatrice Hamilton, gave the remainder of his property in equal parts to his five children then living. On September 3, 1912, he made the will now in controversy, which is the same as the will of June 17, 1905, except that it gives to each of the appellees the sum of $1,000 and leaves out the bequest of $100 to Lucy. There is no direct testimony that James Creighton was unduly in- fluenced. The jury must have based their findings on inference. It was clearly shown by the testimony that the wife did have an influence on her husband, that he had an irascible disposition, and that she could mollify him in his fits of temper. One of the witnesses for the con- testants testified as follows : "I considered Mrs. Creighton very kind to the old gentleman. Sometimes he was a little cranky, got a little off his base, as I called it, and .she would look up into his face and smile, and it was all over with the old man. It just seemed as if that smile and that hand on his shoulder just took the savage all out of the old gentleman." Another witness for contestants testified as follows : "Q. Describe her treatment of the old gentleman to the jury. A. She was very kind to the old gentleman ; treated him nice. 840 Casks ON 'Rbal Property "Q. How did she express her kindness? A. In a general, kindly way, being good to him and seeing nothing crossed the old gentleman and irritated him. "Q. If anything did cross him or irritate him, what did she do? How did she get him out of it? A. She would be nice to him., "Q. How would she be nice to him? What would she do? A. When they had the trouble out there, the lady came out and took him to the house. "Q. What do you mean by taking him to the house? A. She put her arm around him and said, 'Come on. Father; don't bother about this.' "Q. Put her arm around his neck? A. Yes, sir. "Q. Did you see her do that more than once? A. Did I see her do it more than once ? I did see her do it once." (i) "To constitute undue influence, the testator must be so influ- enced by persuasion, pressure, or fraudulent contrivance that he does not act intelligently or voluntarily, and is subject to the will and pur- pose of another. It may be exerted through threats, fraud, impor- tunity, or the silent, resistless power which the strong often exercise over the weak or infirm. It must be sufficient to destroy his free agency, and substitute the will of another for that of the testator. En- treaty, importunity, or persuasion may be employed, as may appeal to the memory of past kindnesses and calls of the distressed. Mere sug- gestions or advice addressed to the understanding or judgment of the testator never constitute undue influence; neither does solicitation, unless the testator is so worn out with importunities that his will gives way." In re Tyner, 97 Minn. 181, 106 N. W. 898. "The influence which the law condemns is not the legitimate in- fluence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property." McCul- loch v. Campbell, 49 Ark. 367, 5 S. W. 590 ; Sanger v. McDonald, 87 Ark. 148, 157, 112 S. W. 365. (2) "Influence gained by kindness and affection will not be re- garded as 'undue,' if no imposition or fraud be practiced, even though it induced the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made." Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. Ed. 84. (3) Testimony was introduced to the effect that James Creighton criticized his son Cyrus for building a barn that the father considered Wii,i,s 841 was unnecessarily expensive. It was shown, however, that the barn was afterwards completed, and that the expense of construction was paid by the father. This incident is taken by counsel for contestants as indicating^ an estrangement between the father and son. If this alleged difference had come about because the son was wayward, improvident^ indolent, or careless, there might be some ground for such an infer- ence; but the evidence is that the son was industrious, capable, in- telligent, and dependable. It appears from the testimony that the son, through the training he had received at the University of Kansas, had ideas that were somewhat different from those entertained by his fa- ther. Those ideas do not appear to discredit the son. On the other hand, they appear to have been to his credit, and that the father, under a grumbling and fault-finding exterior, was really proud of his son's initiative, industry, and efficiency. The testimony clearly shows that at the time of the inaldng of the will he was in good health and spirits. No inference of undue influence on the part of Margaret Creighton can be drawn, except by a strained and unnatural construction of the testimony. All the testimony tends to show that she was kind, consid- erate, dutiful, and patient. The substance of the contention of appel- lees is that this conduct on her part was due solely to craft and cunning. The testimony does not warrant such an inference, nor does it sustain the finding that the will of September 3, 1912, was made through undue influence on her part. This case will therefore be reversed, with directions to dismiss the bill. TRICE V. SHIPTON. J13 Ky. 102; loi Am. St. Rep. 351; 67 S. W. 377. (1902) Du RellE, J. A paper propounded as the last will of S. D. Trice, whereby he gave all his property to his wife, was duly probated in 1896. The widow subsequently remarried and died, and after her death, and some three years after the probate, an appeal was taken from the judgment of probate by Trice's heirs. The grounds of the contest were lack of mental capacity and undue influence, and the jury seems to have beert properly instructed on these questions. They found in favor of the will. Evidence was introduced that, a short time before the testator died, he said that he had made a will, and his wife said that that will was 842 Cases on Reai< Property destroyed; that he then stated that he wanted his property to go to his wife, with remainder to his family; that he had spoken of his will as having been destroyed. Another witness testified that, some three years before his death, she asked him if he had made a will, and he replied that' he had no will ; that he had made one, but it was de- stroyed; and his wife confirmed the statement that it was destroyed. Upon this testimony an instruction was asked as follows : "Even if the jury believe from the evidence that the paper in question was, freely executed by S. D. Trice, yet if they further believe from the evidence that he afterward wished and intended to destroy said paper, and that his wife, to prevent it, represented to him that said paper was de- stroyed, and, he relying upon that representation, was prevented from destroying said paper or making another as his will, this is such undue influence and fraud as renders said paper invalid, and the jury will find said paper not to be his will." It is argued with considerable force that this evidence tended to show a fraud upon the testator, and that by the direct fraud of his wife he was made to believe his will had been destroyed, and thereby prevented from revoking it by himself destroying it, as he desired and intended; that this fraud can^ in pro- bate proceedings, be shown as the basis for a verdict setting aside the will on the ground of fraud, on behalf of the heirs at law. On the other hand, it may be urged that such statements are sometimes falsely made by testators to avoid annoyance from their kindred, and that, even if the statements of which testimony has been given be admitted to show a desire for the destruction or revocation of his will, it does not at all follow that if he had known the will was still in existence he would have actually destroyed or revoked it. But we do not think there was any question to submit to the jury. The statute (Kentucky Stats., sec. 4833) seems directly to provide the mode whereby a will may be revoked, in whole or in part, and to peremptorily prohibit any other mode of accomplishing this purpose: "No will or codicil, or any part thereof, shall be revoked, unless under the preceding section, or by a subsequent will or codicil, or by some writing declaring an in- tention to revoke the same, and executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence, and by his direction, cutting, tearing, burning, obliterat- ing, canceling or destroying the same? or the signature thereto, with the intent to revoke." In Toebbe v. Williams, 80 Ky."665, 4 Ky. Law. Rep. 563, in an opinion by Chief Justice Hargis, it was said, referring to section 10, chapter 113 of the General Statutes, which is substantially re-enacted in the section we have quoted. "Evidence of verbal state- WiLtS 843 merits made by the testator, after making his will according to the forms of law, to the effect that he has not made a will do not constitute a revocation, and possess but little value, and when permitted to go to the jury they should be instructed that such statements do not tend to prove revocation, and furnish no light in construing the written acts of the testator." In Gains v. Gains, 2 A. K. Marsh, 190, 12 Am. Dec. 375, a case was unmistakably made out of the forcible prevention by the devisee of the destruction of a will by the testator. The devisee snatched it from his hand and forcibly retained it after the testator had sent for it with the announced desire to destroy it. It is true that, in that case the court held the testator's mind was at the time so impaired by disease as to render him incapable of acting efficiently for the purpose of revocation. But the court said, in an opinion by Chief Justice Boyle : "But, admitting the competency of the testator, at the time, to have revoked his will, and that he was prevented from doing so by the conduct of the defendant in 'error, we should still think that the will was not thereby revoked. The act concerning wills, after hav- ing prescribed the manner in which a will shall be made, provides 'that no devise, so made, or any clause thereof, shall be revocable but by the testator's or testatrix's destroying, canceling or obliterating the same, or causing it to be done in his or her presence, or by a subsequent will, codicil, or declaration in writing, made as aforesaid.' None of these acts were done, and we cannot, under any circumstances, substitute the intention to do the act for the act itself. Construction is admissible only where there is ambiguity; and there is no ambiguity in the pro- vision referred to. To substitute the intention to do the act, instead of the act itself, without which the statute expressly declares the will shall not be revocable, would be changing the law, not expounding it. A devisee who, by fraud or force, prevents the revocation of a will, may, in a court of equity, be considered a trustee for those who would be entitled to the estate, in case it were revoked ; but the question can- not with propriety be made in a case of this kind, where the application is to admit the will to record." In Runkle v. Gates, 11 Ind. 95, a similar question was presented, with the same result, the fraud in that case having been confessed by the devisee : See, also, Jarman on Wills, c. 7, sec. 2. The law has pointed out the mode in which wills may be revoked. It has, in effect, forbidden any mode of revocation save that permitted by the statute. The courts cannot substitute for the plain requirement of the statute the supposed desire, intention, or even the unaccom- plished attempt, of the testator to destroy his will. If a testator on his 844- Cases on Reai, Property deathbed should send fOr his will for the avowed purpose of Its de- struction, and should die before it reached him, or even with the in- strument in his hands for that purpose, it could hardly be maintained that a revocation had been accomplished, within the meaning of the statute. To hold that an expressed intention to destroy a will, or an expressed belief that it had been destroyed — and that such intention or belief can be proven by statements made, very possibly, for the purpose of misleading the kindred of the testator — could take the place of the formal and definite revocation provided for by the law, would violate the plain letter and spirit of the statute and create an open door for fraud. The testimony objected to does not seem to be such as could have operated prejudicially. For the reasons given, the judgment is aifirmed. WHITE v. CASTEN. T Jones' Law, ip7; 59 Am. Dec. 585. (1853) Nash, C. J. The question for our consideration arises under the act of the general assembly concerning the revocation of wills : R. S., c. 122, sec. 12. By that section, it is provided "that no devise in writ- ing, etc., or any clause thereof, shall be revocable, otherwise than bj some other will in writing, or by burning, canceling, tearing, or other- wise obliterating the same," etc. This provision is almost in the exact terms of the statute of frauds in England, passed 29 Charles II. It was stated at the bar, in the argument here, that the true construction of the 29 Charles, upon the question raised here, was in England still unsettled, and that there was no adjudication by this court which was a direct authority. This is so, and we must endeavor to extract from the conflicting English authorities, and our own cases which have a bearing upon the question, that rule which appears to us most con- sonant with the statute and to reason. Revocation is an act of the mind, demonstrated by some outward and visible sign or symbol of revocation. No act of spoliation or destruction of the instrument will, under the statute, revoke it, unless deliberately done, animo revocandi. Thus if a testator, intending to destroy papers of no value, ignorantly and without an intention to do so, throws his will into the fire, and it is consumed, or by accident tears off the seal, it is no revocation. The difficulty lies in ascertaining how far the symbol of revocation must Wills 845 extend. As to the burning, must the will by it be literally destroyed, in whole or in part? or must any portion of it be actually destroyed? It is upon this point that the English cases differ. The first case to which our attention was directed was that of Bibb. d. Mole v. Thomas, 2 W. Black. 1043. The case was : Palin, the deceased, being sick in bed, near the fire, ordered his attendant, Mary Wilson, to bring him his will, which she did. He opened it, looked at it, and tore a bit of it almost off, then crumpled it in his hand and threw it on the fire. It fell off, and Mary Wilson took it up and put it in her pocket. Palin did not see her take it up, but had some suspicion of the fact, as he asked her what she was at, to which she made little or no reply. The court ruled that it was not necessary that the will or the instrument should be literally destroyed or consumed, buried or torn to pieces. Throwing it on the fire with an intent to burn, though it is but very slightly singed, and falls off, is sufficient within the statute. The case does not inforrn us to what extent the fire had made an impression on the paper ; it must have been very slight. The authority of this case is said to be shaken by what fell from Chief Justice Den- man, in the case of Doe d. Reed v. Harris, 33 Eng. Com. L. 129. In commenting on the case of Bibb d. Mole v. Thomas, supra, he ob- serves: "Doubt might be entertained now whether the proof there given would be sufficient as to these" — meaning burning and tearing. High as this authority is, we are not inclined from the expression of a doubt to set aside the deliberate and united opinions of Chief Jtistice De Grey, Gould, Blackstone, and Nares. But in that very case, both Patteson and Coleridge stated there must be a partial burning of the instrument itself, and that any partial burning will destroy it entirely. But independently of this, the case of Bibb d. Mole v. Thomas, supra, is recognized by writers of the highest authority. Mr. Powell, at page 596 of his treatise of devises, says : "Upon this principle, it has been held that if any of these acts, viz., tearing, burning, etc., be per- formed in the slightest manner, this, joined with a declared intent, will be a good revocation, because the change of intent is the substantive act, the fact done is only the sigh or symbol by which that intent is rendered more obvious." He then cites the case of Bibb d. Mole v. Thomas, supra, as his authority. See also i Jarman on Wills, 11 5-1 19; Lovelace on Wills, 347. They both cite the case from Sir William Blackstone, and refer to the case of Doe d. Reed v. Harris, supra, as showing that the singeing of the cover of a will is not a burning of the will, but that there must be a partial burning of the will itself. Thus stand the cases in England on this question, and upon the authority of 846 Cases on Real Property Bibb d. Mole v. Thomas, supra, Judge Kent, in the fourth volume of his Commentaries, page 532, says : "Canceling in the slightest degree, with a declared intent, will be a sufificient revocation, and therefore throwing a will on the fire with an intent to burn it, though it be but slightly singed, is sufficient evidence of the intent to revoke;" and for this he cites Bibb d. Mole v. Thomas, supra. So Greenleaf, irt his first volume on evidence, page 349, states that when a testator crumpled his will and threw it on the fire with an intent to destroy it, though it was saved entire without his knowledge, it would be a revocation, and refers to the case of Bibb d. Mole v. Thomas, supra, to sustain them. See Card v. Grinman, 5 Conn. 168. By a large majority of these authorities, it appears that the case in Black.'^tone is sustained and approved. The intent with which the act is done by the testator must continue through the act; otherwise it will not be a revocation ; as where a testator, upon a sudden provoca- tion by oiie of the devisees, tore his will asunder, and after being ap- peased fitted the pieces together and expressed his satisfaction that it was no worse, it was held to be no revocation. Here the intent to re- voke was itself revoked before the act was complete : Doe v. Perkes, 3 Barn. & Aid. 489. The case of Hise v. Fincher, 10 Ired. L. 139 (51 Am. Dec. 383), which was referred to, does not govern this. There the testator, who was sick in bed, directed his son to throw his will into the fire; instead of doing so, he, without his father's knowledge, threw another paper in. This was adjudged, and certainly very cor- rectly, to be no revocation. The directions given were accompanied by no act or symbol on the part of the testator expressive of his in- tention to revoke : his intention rested only in words. The principle which we would extract from the cases cited is that where the revocation of a will is attempted by burning, there must be a present intent on the part of the testator to revoke, and this intent must appear by some act or symbol appearing on the script itself, so that it may not rest upon mere parol testimony, and if the script is in any part burned or singed it is sufficient to revoke the will. Let us now try this case by this principle or rule. The case states that the testator threw the will into the fire with the intent to revoke and destroy it; that after he had done so he turned away, when the plaintiff, his wife, took the paper from the fire secretly, and concealed it in her pocket, that the testator up to his death thought the will was destroyed, and so frequently expressed himself. The writing was upon a single sheet of paper, which was burned through in three places, one near either extremity, and in the crease formed by Wills 847 the folding of the paper. It was also singed at the outer edges, and scorched on the outside or back; this was done when the paper was thrown on the fire. No word or letter of the writing was in any man- ner destroyed or obliterated by the burning, and the paper itself but little disfigured, and in no wise injured, except as above stated. It will be at once seen that this is a stronger case than that of Bibb d. Mole V. Thomas, supra. There the script was barely singed; here it is burned through in three diflferent places, the outside scorched, and the edges of the paper singed. We are therefore clearly of opinion that the will was revoked ; there was the present intent to' revoke — the act of throwing on the fire with that view, and the symbol impressed upon the script itself. There was no halting in the intention of the testator between the commencement and the completion of the act; for, to the time of his death, he believed the will was destroyed. It is seen from the cases cited and the rule we have laid down, that the much or little of the burning of the script is not material, and when the reason of requiring the symbol to be impressed on the script is con- sidered, it. cannot be important. The symbol is nothing but the act showing tlie intention of the testator, and when that appears on the paper, the evidence from the act is complete, and the testator has completed his intention. It would be singular that if the slightest burn- ing of a house, on aii indictment for arson, should be sufficient to take the life of the incendiary, as it is, that a similar burning should not, in a civil case, be sufficient to revoke a will. The language upon this point in the act taking away the benefit of clergy for burning a jail or other public building is the same as in the act we are considering, R. S., c. 34, sec. 7: "If any person shall willfully and maliciously burn," etc. If any portion of the building is burned, it is sufficient to bring' the case within the statute. CHAPTER XXVI. ADVERSE POSSESSION. Section i. Nature of Title Acquired. Section 2. Tacking Possession of Successive Claimants. Section 3. Disabilities. Section 4. Nature of Possession. SEC. 1. NATUBE OF TITLE ACQUIRED. SHARON V. TUCKER. 144 U. S. 523; 36 L. Bd. 532;- 12 Sup. Ct. 120. (1892) This is a suit in equity to establish, as matter of record, the title of the complainants to certain real property in the city of Washington, constituting a part of square No. 151, and to enjoin the defendants from asserting title to the same premises as heirs of the former owner. The facts which give rise to it, briefly stated, are as follows : In 1828, Thomas Tudor Tucker died, seised of the premises in contro- versy. He had, at one time, held the office of treasurer of the United States and resided in Washington, but at the time of his death he was a resident of South Carolina. The property did not pass under his will, but descended to his heirs at law. It does not appear that after his death any of the heirs took possession of the property, or assumed to exercise any control over it. In 1837 the square was sold for de- linquent taxes assessed by the city against "the heirs of Thomas T. Tucker," and was purchased by Joseph Abbott, then a resident of the city. The taxes amounted to $38.76, and the sum bid by the pur- chaser was $250. In 1840 a tax-deed, in conformity with the sale, was made to Abbott, purporting to convey to him_ a complete title to the square. It is admitted that the deed was invalid for want of some of the essential preliminaries in assessing the property, and in advertising it for sale. It does not appear, however, that the purchaser had any knowledge of this invalidity. Early in the following year, 1841, he took possession of the square, and inclosed it with a board fence and 848 Adverse Possession 849 a ditch with a hedge planted on one side of it. It was a substantial in- closure, sufficient to tur^ stock and keep them away. He was a stable- keeper, and, in connection with this business, cultivated the ground and raised crops upon it in 1841. From the time he took possession until 1854 the square was inclosed, and each season it was cultivated. In 1854 he leased the square to one Becket for the period of 10 years at a yearly rent of $100. Becket took possession under his lease, and kept the ground substantially inclosed, and he. occupied and cultivated it from that time up to 1862. In the fall of that year, soldiers of the United States, returning from the campaign in Virginia, were en- camped upon the square ; and, as it appears, they committed such dep- redations upon the fence^ buildings, and crops that the lessee was obliged to abandon its cultivation. Abbott died in April, 1861, and by his will devised the square to his widow. In August, 1863, she sold and conveyed it to one Perry; and he kept a man in charge of the same, who lived in a small building which Becket had built and occu- pied during his lease of the premises under Abbott. In 1868 Perry sold the entire square to Henry A. Willard for the consideration of $17,600. He divided the square into small lots for buildings for resi- dences, and upon one side of the square, fronting on T street, erected 12 substantial dwelling-houses, which have been since occupied up to the commencement of this suit. In 1872 Willard sold and conveyed a portion of the square, the premises in controversy, to J. M. Latta, trustee, for a valuable consideration ; and from him the title has passed by regular conveyances to the complainants herein. From 1840 to 1863 the square was chiefly valuable for agricultural purposes ; but since then, and especially of late years, its only value has been for buildings as residences, and has been so regarded by its owners. From 1840 up to the present time the taxes upon the property" have been paid by Abbott and his successors in interest. None of the heirs of Mr. Tucker, nor anyone claiming under the heirs, has paid or offered to pay any taxes assessed on the property; nor since that date, up to the commencement of these suits, have any of the defendants therein, or their predecessors in interest, asserted any claim to the property or interest in it, or attempted in any way to interfere with its possession or control. Soon after the sale to Perry, in 1863, the tax-deed was passed upon by eminent , counsel in the District, — the late Richard S. Coxe and James M. Carlisle, — and the title by it was pronounced by them to be indisputable. It was only a short time before the institu- tion of this suit that the invalidity of the tax-deed as a source of title was ascertained. A desire to dispose of the property led the complain- 850 Cases on Reai, Property ants to have an investigation made, and an abstract of title obtained. It was then discovered that they could not obtain any abstract of title which purchasers would accept, in consequence of certain defects in the assessment of the taxes, under which the sale was made and the deed "to Abbott was executed. They were consequently embarrassed and defeated in their efforts to dispose of the property. To remove this embarrassment, this suit was accordingly brought by the complain- ants to obtain a judicial determination of the validity of their title, and an injunction against the defendants claiming under the previous owner. There was no substantial disagreement between the parties as to the facts, but the defendants insisted and relied solely upon the ground that a court of equity could afford no relief to the complainants, because they were not at the commencement of the suit in actual possession of the premises. The court below, at special term, sustained this view, and entered a decree dismissing the bill. At general term it affirmed that decree, and . to review this last decree the case is brought here by appeal. Mr. Justice- Field, after stating the case, delivered the opinion of the court. The title of the complainants is founded upon the adverse possession of themselves and parties through whom they derive their interests, under claim and color of title, for a period exceeding the statutory time which bars an action for the recovery of land within the District of Columbia. The statute of limitation to such cases in force in the District is that of 21 James I., c. 16. That statute passed "for quieting of men's estates and avoiding of suits," among other things, declared that no person or persons should at any time thereafter make any entry into any lands, tenements, or hereditaments but within 20 years next after his or their right or title shall thereafter have first descended or accrued to the same, and that in default thereof such persons not entering, and their heirs, should be utterly excluded and debarred from such entry thereafter to be made, any former law or statute to the contrary notwithstanding. Twenty years is therefore the period limited for entry upon any lands within this District after the claimant's title has accrued. After the lapse of that period, there is no right of entry upon lands against the party in possession, and all actions to enforce any such alleged right are barred. Complete possession, the character of which is here- after stated, of real property in the District for that period, with a claim of ownership, operates, therefore, to give the occupant title to Adverse Possession 851 the premises. No one else, with certain exceptions, — as infants, mar- ried women, lunatics, and persons imprisoned or beyond the seas, who may bring their action within 10 years after the expiration of their disability, — can call his title in question. He can stand on his adverse possession as fully as if he had always held the undisputed title of record. The decisions of the courts have determined the character of the possession which will thus bar the right of the former owner to re- cover real property. It must be an open, visible, continuous, and ex- clusive possession, with a claim of ownership, such as will notify par- ties seeking information upon the subject that the premises are not held in subordination to any title or claim of others ; but adversely to all titles and all claimants. In the present cases the adverse possession of the grantors of the complainants, sufficient to bar the right of pre- vious owners, is abundantly established, within the most strict defini- tion of that term. The objection of the defendants to the jurisdiction of a court of equity in this case arises from confounding it with a bill of peace and an ordinary bill quia timet, to neither of which classes does it belong, nor is it governed by the same principles. Bills of peace are of two kinds : First, Those which are brought to establish a right claimed by the plaintiff, but controverted by numerous parties having distinct in- terests originating in a common source. A right of fishery asserted by one party, and controverted by numerous riparian proprietors on the river, is an instance given by Story where such a bill will lie. In such cases a court of equity will interfere and bring all the claim- ants before it in oiie proceeding to avoid a multiplicity of suits. A separate action at law, with a single claimant, would determine nothing beyond the respective rights of the parties as against each other, and such a contest with each claimant might lead to interminable litigation. To put at, rest the controversy, and determine the extent of the rights of the claimants of distinct interests in a common subject, the bill lies, which is thus essentially one for peace. Second. Bills of peace of the other kind lie where the right of the plaintiff to real property has been unsuccessfully assailed in different actions, and is liable to further ac- tions of the same character, and are brought to put an end to the con- troversy. "The equity of the plaintiff in such cases arose," as we said in Holland v. Challen, no U. S. 15, 19, 3 Sup. Ct. Rep. 495, "from the protracted" litigation for the possession of the property which the action of ejectment at common law permitted. That action being founded upon a fictitious demise, between fictitious parties, a recovery 852 Cases on Reai, Property in one action constituted no bar to another similar action, or to any number of such actions. A change in the date of the alleged demise was sufficient to support a new action. Thus the party in possession, though successful in every instance, might be harassed and vexed, if not ruined, by a litigation constantly renewed. To put an end to such litigation, and give repose to the successful party, courts of equity in- terfered and closed the controversy. To entitle the plaintiff to relief in such cases the concurrence of three particulars was essential: He must have been in possession of the property ; he must have been dis- turbed in its possession by repeated actions at law ; and he must have established his right by successive judgments in his favor. Upon these facts appearing, the court would interpose and grant a perpetual in- junction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that adequate relief could be afforded against vexatious litigation, and the irreparable mischief which it entailed. Adams Eq. 202 ; Pom. Eq. Jur. 248 ; Stark V. Starr, 6 Wall. 402; Curtis v. Sutter, 15 Cal. 259; Shepley v. Rangely, 2 Ware, 242 ; Devonsher v. Newenham, 2 Sch. & L. 199." It is only where bills of peace of this kind — more commonly designated as bills to remove a cloud on title and quiet the possession to real property — are brought that proof of the complainant's actual possession is neces- sary to maintain the suit. Frost v. Spitley, 121 U. S. 552, 556, 7 Sup. Ct. Rep. 1 129. There is no controversy such as here stated in the present case. The title of the complainants is not controverted by the defendants, nor is it assailed by any actions for the possession of the property, and this is not a suit to put an end to any litigation of the kind. It is a suit to establish the title of the complainants as matter of record, — ^that is, by a judicial determination of its validity, — and to enjoin the assertion by the defendants df a title to the same property from the former owners, which has been lost, by the adverse possession of the parties through whom the complainants claim. The title by adverse possession, of course, rests on the recollection of witnesses ; and, by a judicial deter- mination of its validity against any claim under the former owners, record evidence will be substituted in its place. Embarrassments in the use of the property by the present owners will' be thus removed. Ac- tual possession of the property by the complainants is not essential to maintain a suit to obtain in this way record evidence of their title, to which they can refer in their efforts to dispose of the property. * * * Advursb Possession 853 sec. 2. taokim-g possession of successive claimants. wiSHART V. Mcknight. 1^8 Mass. 356; 5p N. B. 1028; 86 Am. St. Rep. 486. (1901) LoRiNG, J. It appears from the photograph and plan made a part of the bill of exceptions that the demanded premises consist of a strip of land ten feet, wide between the dwelling-houses of the demandant and of the tenant, running from Pond Court, on which those houses front, to the rear line of the lots ; that the rear of the locus is covered by a barn, used and occupied by the tenant, which is in part on the locus and in part on the land to which the tenant, without question, has a good title; and further, that the tenant's only access by wagon to the barn is over the locus, his dwelling-house being within three and a half feet of the other — ^that is, the westerly — side line of his lot. From the deeds put in evidence, it appeared that the record title to- the locus was in the demandant. The tenant introduced in evidence various deeds covering the land on which his dwelling-house stands, but not covering the ten foot strip in question, the first of these deeds being dated January, 1874; he offered to show that for twenty years prior to the date of the writ, July 20, 1897, each of the grantees in said deeds had Occupied the demanded premises, and had maintained a fence in- closing them as part and parcel of the premises and dwelling-house occupied by them. It was admitted that no one of these grantees had occupied the locus for a continuous period of twenty years, and that the locus was not covered by the description of the land contained in any of these deeds. This evidence was excluded, against the exception of the tenant, and the court found for the demandant. This evidence would have warranted the jury in finding that each of the grantees transferred to his successor his possession of the strip of land in ques- tion, and that thereby the demandant was continuously kept out of possession. The ruling in the court below evidently was made on the authority of Sawyer v. Kendall, 10 Cush. 241, following dicta in the previous cases of Ward v. Bartholomew, 6 Pick. 409, 415, Allen v. Holton, 20 Pick. 458, 465, Melvin v. Proprietors of Locks etc., 5 Met. 15, 32. 38 Am! Dec. 384, and Wade v. Lindsey, 6 Met. 407, 413, cited in that case. Where possession has been actually, and in each instance, transferred by the one in possession to his successors, the owner of the record title is barred from maintaining an action to recover the land. 854 Casbs on Real Property In some cases this conclusion has been reached on the ground that in such a case there is the necessary privity or continuity of possession between the successive trespassers within the doctrine on which Saw- yer V, Kendall, 10 Cush. 241, was decided; Weber v. Anderson, 73 111. 439; Faloon v. Simshauser, 130 111. 649, 22 N. E. 835 ; Smith v. Chapin, 31 Conn. 530; Schrack v. Zubler, 34 Pa. St. 38; Chilton v. Wilson, 9 Humph. 399, 405 ; Vandall v. St. Martin, 42 Minn. 163, 44 N. W. 525 ; Crispen v. Hannavan, 50 Mo. 536; Adkins v. TomHnson, 121 Mo. 487, 494, 26 S. W. 573 ; Coogler v. Rogers, 25 Fla. 853, 882, 7 South. 391 ; Rowland v. Williams, 23 Or. 515, 32 Pac. 402; Shuffleton v. Nelson, 2 Saw. 540, Fed. Cas. No. 12,822 ; Winn v. Wilhite, 5 J. J. Marsh, 521, 524- There are other cases which reach the same result by a different road. These cases go on the ground that the position of a tenant, who seeks to make out the defense of the statute of limitations by proving the possession of a succession of persons, is not like that of one who seeks to establish an easement by showing that a succession of persons had prescribed for it. These cases hold that in case of the defense of the statute of limitations the only question is, whether the demandant has been kept out of possession continuously for the legal time, not whether the persons who kept him out of possession held one under the other: Carter v. Barnard, 13 Q. B. 945, 952; Dixon v. Gayfere, 17 Beav. 421, 430; Willies v. Howe, (1893) 2 Ch. 545, 553; Fanning v. Willcox, 3 Day, 258 ; McNeely v. L,angan, 22 Ohio St. 32 ; Shannon v. Kinny, I A. K. Marsh, 3, 10 Am. Dec. 705 ; Scheetz v. Fitzwater, 5 Pa. St. 126. And see Chapin v. Freeland, 142 Mass. 383, 387, 56 Am. Rep. 701, 8 N. E. 128; Harrison v. Dolan, 172 Mass. 395, 397, 52 N. E. 513. Where possession of land has been held for the statutory period by successive disseisors or trespassers, the defense of the statute is not made out if the possession has not been continuous, because where a disseisor in fact abandons his possession, and leaves the land vacant, the seisin of the true owner reverts ; there is a new departure from that time, and the owner can rely on his new seisin by reverter as the ground of an action within the statutory period : Agency Co. v. Short, 13 App. Ca.",. 793; Soiling v. . Broughton, (1893) App. Cas. 556, 561; Cunningham v. Patton, 6 Pa. St. 355, 358, 359; Louisville etc. R. R. Co. V. Philyaw, 88 Ala. 264, 268, 6 South. 837 ; Tarrett v. Stevens, 36 W. Va. 445, 450, 15 S. E. 177. In Sawyer v. Kendall, 10 Cush. 241, the lot in controversy had been set off to the grantor of the demandant, and the lot next to it to the Adverse Possession 855 tenant, in the partition of their father's estate made by commissioners duly appointed. The premises in controversy and the parcel of land set to the tenant were then inclosed by one fence, and so remained until the lot in controversy was conveyed to the demandant. He put up a fence between the two lots and brought the writ of entry to recover possession of his lot in the same month in which it was con- veyed to him — namely, in March, 1848. Both lots "were mostly used as pasture land, and were approached in two ways, both of which led •across the latter (the demanded premises). The tenant proved that during the Hfe of her husband the premises in dispute, and the parcel set to her, had been used by him, and since his death by her, by turning cattle into the parcel set to the tenant ; and that they thence went into and depastured the tract in controversy. It also appeared that the tenant had gathered apples from the trees on the latter place, and driven cattle over and across the same. This use, as aforesaid, was exercised by the husband of the tenant from 1820 till 1832, and from that time till the date of the writ, by the tenant herself, more than thirty years in the whole." Sawyer v. Kendall, 10 Cush. 241, therefore, was a case where no continuity of possession had been made out by the tenant, and the de- cision was finally put upon that ground. After stating that during her coverture the tenant could commit no act of disseisin, and that until the death of her husband he was in possession by his own act of dis- seisin, the opinion is as follows : "She shows no deed or devise of the land to herself by her husband. Upon his death, therefore, the seisin was in his heir at law, or the seisin of the true owner revived, and the subsequent disseisin by her was her own separate act, unconnected with the previous disseisin of her husband." It would be going very far to hold that the possession of the husband and that of his wife after his decease were continuous, where the only act relied on to make out adverse possession consists in turning out on the tenant's land cows which stray thence on to the land in controversy — there being no fence between the two — supplemented by an occa- sional gathering of apples from the demandant's land. Sawyer v. Kendall, 10 Cush. 241, went no farther than that. We are of opinion that that case is to be confined to the point actually decided, and cannot be held to be an authority for all the statements in the opinions in that case and in the cases cited. Where a trespasser in possession of land actually transfers his pos- session to another, or where one disseisor is disseised by another, it is not true, as was held in Potts v. Gilbert, 3 Wash. C. C. 475, Fed. Cas. 856 Cases on Real Property No. 11,347, that there is in contemplation of law of necessity a mo- mentary reverter of seisin to the true owner, for the reason that a trespasser or a disseisor has nothing which he can transfer to another. Potts V. Gilbert, 3 Wash. C. C. 475, Fed. Cas. No. ii,347. was a de- cision of the circuit court of the United States sitting to try an action of ejectment to recover land in the state of Pennsylvania; the decision was promptly repudiated by the supreme court of that state in Over- field V. Christie, 7 Serg. & R. 173, and had ceased to be an author- ity when first cited in this commonwealth in Allen v. Holton, 20 Pick. 458. See, also, the subsequent cases of Scheetz v. Fitzwater, 5 Pa. St. 126, 131 ; Moore v. Small, 9 Pa. St. 194, 196. It is settled that one who has the possession of land is thereby invested with a right to that land which, in the absence of a better title, will be enforced by law : Slater v. Rawson, 6 Met. 439 ; Hubbard v. Little, 9 Cush. 475 ; Currier v. Gale, 9 Allen, 522; Pollock and Wright on Possession, 95- 98; and this possession and the right arising out of it may be trans- ferred in pais to another. SEC. 3. DISABILITrBS. HARRIS V. McGOVERN. pp U. S. 161; 25 L. Ed. 317. (1878) Mr. Justice Clifeord delivered the opinion of the court: Actual title to the lot in controversy is claimed by the plaintiff as devisees and heirs of Stephen Harris, deceased, by virtue of an ordinance of the f city, which, as they allege, was subsequently rati- fied by an act of Congress. Opposed to that, the theory of the de- fendants is that the city ordinance granted the lot to Stephen A. Harris, under whom they derive title, and that inasmuch as they have been in the open adverse possession of the same, claiming title, for more than five years, the title of the plaintiffs, if any they or their testator ever had, is barred by the Statute of Limitations. Possession being in the defendants, the plaintiffs brought ejectment, and the defendants appeared and pleaded as follows : i. The general issue. 2. That they were seised in fee simple of the premises. 3. That the title and right of possession of the plaintiffs were barred by the Statute of Limitations. Adverse Possession 857 Pursuant to the act of Congress, the parties waived, a jury and sub- mitted the evidence to the court. Special findings were filed by the judge presiding, with his conclusions of law, as exhibited in the record. Hearing was had, and the court rendered judgment in favor of the defendants, and the plaintiiifs sued out the present writ of error. Three errors are assigned, as follows: i. That the court erred in the conclusion of law that the Statute of Ivimitations began to run as early as July i, 1864, as found in their first conclusion of law. 2. That the court erred in the conclusion that the defendants were in possession of the premises for more than five years subsequent to the time when the Statute of Limitations commenced to run. '3. That the court erred in their fourth conclusion of law, that the defendants were entitled to judgment. Actions of the kind cannot be maintained in that State, unless it ap- pears that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the premises in question within five years before the commencement of such action. Stats'. Cal. 1863, 326; 2 Code, sect. 318. From the findings of the Circuit Court it appears that the lot in controversy is within the corporate limits of the city, and that it is situated west of Larkin Street and northwest of Johnson Street, as they existed prior to the passage of the ordinances, which were after- wards ratified by the act of the legislature of the State. Stats. Cal. 1858, 53. Said land is also within the boundaries designating the lands to which the right and title of the United States were relinquished and granted to the city and its successors. 13 Stat. 333, sect. 5. Prior to the incorporation of San Francisco the locality was known as the pueblo or town by that name; and the findings of the court show that on Sept. 25, 1848, the alcalde of the pueblo made a grant in due form of the land in controversy to a party designated in the in- strument by the name of Stephen A. Harris, which grant was duly recorded in the official book of records kept for that purpose ; that at that date there was a man residing in that pueblo by the name of Stephen A. Harris and another man by the name of Stephen Harris ; that the grant was intended for and delivered to the latter and not to Stephen A. Harris ; and that Stephen Harris, to whom the grant was delivered, acquired all the title that passed or was conveyed by the grant of the alcalde. It also appears that Stephen Harris, two years later, left California, and that he never returned to that State; that he went to New Jersey, where he remained for several years, and then removed to Illinois, where, on the 5th of November, 1867, he died. 858 Cases on Real Property leaving a will, by which he devised his property, including the land in controversy, to the plaintiffs, who are his children. By the fifth finding of the court it appears that there was no evidence introduced tending to show that the deceased, or the plaintiffs, or any. person claiming through or under them, ever improved the land, or was ever in the actual possession or occupation of the land or any part of the same. On the other hand, it appears that Stephen A. Harris, May I, 1854, conveyed the land to the person named in the sixth find- ing, by deed in due form, which was duly recorded, and that all the right, title, and interest thus acquired by the grantee by sundry mesne CQnveyances subsequently vested in the defendants for a valuable con- sideration, without notice of the claim of the plaintiffs or their testator. There was no evidence to show that any party was in actual occupa- tion of the land Jan. i, 1855, or any time between that date and the first day of July of the same year ; but the seventh finding of the court shows that one of the grantors of the defendants, in the spring of 1864, took actual possession of the land, claiming title under one of the said mesne conveyances, and that he fenced and occupied the lands, and that he and his several grantees, including the defendants, have since that time to the present been in the actual, peaceable, open, continuous, exclusive, and adverse possession of the land, claiming title thereto in good faith against all the world, under the said several mesne con- veyances. Sect. S of the act of Congress of July i, 1864, relinquished to the city all the right and title of the United States to the land's within the corporate limits of the city, as defined in the act of incorporation passed by the State legislature, and of course the title of the citv to those lands became absolute on that day. Lynch v. Bernal, 9 Wall. 31O; Montgomery v Bevans, i Sawyer, 653; 13 Stat. 333. Infancy is not set up in this case, and if it were, it could not avail the plaintiffs, as the ninth finding of the court shows that the minor plaintiffs arrived at full age more than a year before the suit was commenced. Lands lying west of Larkin Street and southwest of Johnson Street were relinquished to the possessors, subject to the right of the city to take possession of the same if wanted for public purposes, without compensation ; but the lot in controversy is not within that reservation, as the first finding of the court shows that it is situated northwest of Jolinson Street. Appended to the findings of fact are the conclusion of law pro- nounced by the Circuit Court. They are as follows: i. That the Adverse Possession 859 adverse possession of the grantors of the defendants commenced in the spring of 1864, and that the Statute of Limitations began to run as early at least as the first day of July of that year, when the title of the city to the municipal lands within its boundaries became perfect under the act of Congress, to which reference has already been made. Authorities to show that the facts stated in the seventh finding of the court amount to an adverse possession of the lot in controversy, within the meaning of the State statute, are quite unnecessary, as the propo- sition is too plain for argument. Angell, Limitations (6th ed.), sect. 394 ; Green v. Liter, 8 Cranch, 229. Cases frequently arise where the property is so situated as not to admit of use or residence, and in such cases neither actual occupation, cultivation, nor- residence are absolutely necessary to constitute legal possession, if the continued claim of the party is evidenced by such public acts of ownership as the owner would exercise over property which he claimed in his own right, and would not exercise over prop- erty which he did not claim. Ewing v. Burnet, 11 Pet. 41 ; Jackson v. Howe, 14 Johns. N. Y. 405 ; Arrington v. Liscom, 34 Cal. 365 ; Pro- prietors of the Kennebec Purchase v. Skinner, 4 Mass. 416. Apply the rule to the case which the foregoing authorities establish, and it is clear that the first conclusion of law adopted by the Circuit Court is correct, as the seventh finding of facts shows that the de- fendants, from the date of the act of Congress confirming the title of the city to her municipal land to the date of the judgment, were in the actual, peaceable, open, continuous, exclusive, and adverse possession of the land, claiming title thereto in good faith, against all the world, which is certainly a bar to the plaintiffs' right of action under the statute of the State. Nor is there any valid objection to the second conclusion of law adopted by the Circuit Court, which was that the cause of action hav- ing accrued and the Statute of Limitations having commenced to run during the lifetime of the devisor of the plaintiffs, the running of the statute was not interrupted by his subsequent decease and the descent of the right of action to the plaintiffs, though minors at the time and under disability to sue. Decided cases of a standard character support that proposition, and the court is of the opinion that it is correct. Jackson v. Moore, 13 Johns. (N. Y.) 513; Jackson v. Robins, 15 id. 169; s. c. 16 id. 537; Fleming v. Griswold, 3 Hill (N. Y.) 85; Becker v. Van Valkenburgh, 29 Barb. (N. Y.) 319. When the statute once begins to run, says Angell, it will continue to 86o Cas^s on Reai, Property run without being impeded by any subsequent disability. Smith v. Hill, I Wils. 134; Angell, Limitations (6th ed.), sect. 477; Currier v. Gale, 3 Allen (Mass.), 328; Durouse v. Jones, 4 T. R. 301; Jaclcson v. Wheat, 18 Johns. (N. Y.) 40; Welden v. Gratz, i Wheat, 292. Decisive support to the third conclusion of the Circuit Court is also derived from the authorities cited to sustain the second. Continuous adverse possession of the land, say the court in their third conclusion, having been held by the defendants and their grantors for a period of more than five years subsequent to the time when the statute began to run and before the action was commenced, the action is barred, as there was no disability to sue when the cause of action first accrued. Suppose that is so, then clearly the defendants were entitled to judg- ment, and there is no error in the record. SEC. 4. NATTJBE OF POSSESSIOIT. ALICE STATE BANK v. HOUSTON PASTURE CO. 247 U. S. 240; 60 L. Ed. 1231; 38 Sup. Ct. 496. (ipi8) Mr. Justice Holmes delivered the opinion of the court : This is a suit to recover 1,280 acres of land in San Patricio County, Texas. There was a trial by jury in which the Court directed a verdict for the plaintiff as to all but certain excepted portions not in contro- versy here. Exceptions were saved by the defendants, the petitioners, to their not being allowed to go to the jury on the question whether they had a good defense under the Texas statutes of limitation, but they were overruled and the judgment was afifirmed by the Circuit Court of Appeals. A petition for certiorari was allowed on the sug- gestion that there was a manifest conflict between the ruling and the decisions of the State Court. * * * The defendants alleged that if the deeds did not give them a good title, still they had held peaceable and adverse possession of the land, using and enjoying the same, paying taxes thereon, and claiming under deeds duly registered,_for more than five years, and therefore that this suit was too late under Rev. Stat. Texas, art. 5674. They contended that the fact appeared as matter of law, and also that at least the jury might find for them and sufficiently saved the question as against ^he yiew taken bv the Court below, v ' > Advbrsb Possession 86 i There was evidence that the land in question was part of a large pasture fenced on the. north along the Chiltipin Creek and on the east and west by fences running from the creek to deep water in Nueces Bay. There was evidence also that the defendants or their predecessors had paid the taxes, had pastured their cattle there, and excluded those of others, and that they claimed under duly registered deeds. The ground on which the Court ruled as it did and refused requests of the petitioners was stated by it to be that the water front on Nueces Bay was not "such a barrier as would put in motion the statutes of limitation." This ruling was in deference to Hyde v. Mc- Faddin, 140 Fed. 433, 72 C. C. A. 655. But that case was decided on ■peculiar circumstances, and we do not think an extensive citation from the Texas decisions necessary to show that when the other elements of adverse occupation are present, deep water upon one side of a parallel- ogram is as good a barrier as a fence. Evidently that is the law in Texas as well as elsewhere, and an enclosure by fences and the Nueces River has been said to sustain the defense of the statute as well as fences all around. Dunn v. Taylor (Tex. Civ. App.) 107 S. W. 952, 956; Id., 102 Tex. 80, 87, 113 S. W. 265. The argume;nts of the re- spondent on this point at the most do no more than offer considerations of fact that possibly it might be entitled to present to the jury when the case next is tried. Judgment reversed. EWING V. BURNET, II Pet. (U. S.) 41; 9 L. Ed. 624. (1837} Mr. Justice Baldwin delivered the opinion of the court. In the court below, this was an action of ejectment, , brought in November, 1834, 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, by a deed dated nth of June, 1798, to Samuel Foreman, who, on the next day, conveyed to Samuel Wil- liams, 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 862 Cases on Rsai, PropBrty corner 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 towards the south along a steep bank, from forty to fifty feet, to its south line ; the side of it was washed in gulHes, 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 the 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 inhabitants. Third street separated this lot from the one on which the defendant resided from 1804, for many years, his mansion fronting on that 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 defendant 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 enclosed;" and of a third, "that since 181 1, he had always been in the most rigid possession of the lot in dispute: a similar possession to other possessions on the hill lot." It was fur- ther in evidence, that Samuel Williams, under whom the plaintiff claimed, lived in Cincinnati, from 1803, till his death in 1824; was in- formed 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, demanded pos- Adverse Possession 863 session, or exercised or assumed any exercise of ownership over it; thoug-h he declared to one witness, produced by plaintiff, that the lot was his, and he intended to claim and improve 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 wit- ness, 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, stating 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, was 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 : I. 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 pre- vent the plaintiff's recovery ; if there was any evidence which conduced to prove any fact that could produce 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 corripetent 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 matters with which the court could not interfere, the plaintiff's right to the instruction asked, must depend upon the opinion of the court, on a finding by the jury in fa- vour of the defendant, on every matter which the evidence conduced to prove ; giving full credence to the witnesses produced by him, and dis- crediting the witness for the plaintiff. Now as the jury might have refused credence to the only witness who testified to the notice given to the defendant of Williams' own- ership of the lot in 1803, and of his subsequent assertion of claim, and intention to improve it ; the testimony of this witness must be thrown out of the case, in testing the correctness of the court in overruling this motion ; otherwise we should hold the court below to have erred, in not instructing the jury on a matter exclusively for their considera- 864 Cases on R^ai, Property tion; 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 plaintiflf 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 plaintiflf 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 defend- ant, it was competent for the jury to infer these facts; that he had claimed this lot under colour and claim of title, from 1804 till 1834; had exercised 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 defendant had no actual notice of Williams' claim ; that it was unknown to the inhabitants of the place, while that of the defendants 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 wit- nesses did ; that the defendant was during the whole time in possession of the lot, as strictly, perfectly, and exclusively, as any person could be of a lot not enclosed 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 defendant, 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 possession. On the 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 favour 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 circum- stances 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 presump- tion to protect a possession of the nature testified for thirty years ; and Adverse; Possession 865 le jury could so presume, there is no error in overruling the first ion of the plaintiff. in the next motion, the only question presented is on the legal suffi- cy of the evidence to make out an ouster of the legal seisin and lession of Williams by the defendant ; and a continued adverse pos- ion for twenty-one years before suit brought. n entry by one man on the land of another, is an ouster of the 1 possession arising from the title, or not; according to the inten- with which it is done; if made under claim and colour of right, it 1 ouster ; otherwise it is a mere trespass, in legal language the inten- guides the entry, and fixes its character. That the evidence in this ; justified the jury in finding an entry by the defendant on this lot, ;arly as 1804, cannot be doubted ; nor that he claimed the exclusive t to it under colour of title, from that time till suit brought. There abundant evidence of the intention with which the first entry was le, as well as of the subsequent acts related by the witnesses, to ify a finding that they were in assertion of a right in himself; so ; the only inquiry is, as to the nature of the possession kept up. It fell settled that to constitute an adverse possession, there need not I fence, building, or other improvement made : 10 Pet. 442 ; it suf- 3 for this purpose, that visible and notorious acts of ownership are rcised over the premises in controversy, for twenty-one years, after entry under claim and colour of title. So much depends on the are and situation of the property, the uses to which it can be ap- d, or to which the owner or claimant may choose to apply it ; that ; difficult to lay down any precise rule adapted to all cases. But it r with safety be said, that where acts of ownership have been done n land, which, from their nature indicate a notorious claim of perty in it, and are continued for twenty-one years, with the wledge of an adverse claimant without interruption, or an adverse ■y by him, for twenty-one years ; such acts are evidence of an ouster 1 former owner, and an actual adverse possession against him: if jury shall think, that the property was not susceptible of a more :t, or definite possession than had been so taken, and held. Neither lal occupation, cultivation, or residence, are necessary to constitute lal possession; 6 Pet. 513; when the property is so situated as not idmit of any permanent useful improvement; and the continued m of the party has been evidenced by public acts of ownership, h as he would exercise over property which he claimed in his own it, and would not exercise over property which he did not claim, lether this was the situation of the lot in question, or such was the 866 Casbs on Real Property nature of the acts done, was the peculiar province of the jury; the evidence in our opinion was legally suffitient to draw the inference that such were the facts of the case ; and if iound specially, would have entitled the defendant to the judgment of the court in his favour; they, of course, did not err in refusing to instruct the jury that the evidence was not sufficient to make out an adverse possession. * * * WARD V. COCHRAN. ISO U. S. 597; 37 L. Ed. 1195; 14 Sup. Ct. 230. (1893) * * * At this trial the record discloses that the plaintiff sus- tained his side of the issue by putting in evidence a chain of title from the United States to himself, consisting of a patent of the United States to Alexander R. McCandlers, dated March 13, 1861, for a tract of land, including the piece in dispute; a deed of Alexander R. Mc- Candlers to Michael Thompson, dated May 2, 1861, for the same tract;, a deed of Michael Thompson and wife to Edward B. Taylor, dated July 5, 1862, for said tract; a mortgage of Edward B. Taylor, to Ward, the plaintiff, dated July 28, 1871, on the 20-acre tract in controversy, to secure the payment of certain promissory notes ; the record of pro- ceedings in suit by Ward, the plaintiff, against the heirs and legal rep- resentatives of Edward B. Taylor, who had died in 1872, to foreclose said mortgage, and a sheriff's deed, under decree in said suit, to Ward, the plaintiff, dated July 11, 1877; a deed of Edward A. Taylor (son and one of the heirs of Edward B. Taylo'r, and the only heir who had not been made a party to the foreclosure suit) to Ward, the plaintiff, dated June 25, 1885, for the 20-acre tract in dispute. It was admitted that the value of the land was $20,000 at the time of the bringing of the suit. The defendant adduced evidence tending to show that one John Flanagan had entered on the tract in dispute in 1868, under a parol sale of said tract to him by Edward B. Taylor ; that Flanagan had con- tinued in possession of the tract until 1885, when, on November 25th of that year, Flanagan and wife conveyed the tract to the defendant by deed of that date, who entered into possession. On December 9, 1889, the jury rendered a special verdict, in the fol- lowing words and figures : "We, the jury impaneled and sworn to try the issues joined in the •Adverse Possession 867 above-entitled cause, do find and say that' one John Flanagan, in the year 1868, entered into the possession of the west one-half of the northeast quarter of the southwest quarter of section 4, in township 15 north, of range 13th east of the 6th principal meridian, in Douglas county, Nebraska, being the land in controversy in this case, under a claim of ownership thereto, and that he remained in the open, con- tinued, notorious, and adverse possession thereof for the period of sixteen (16) years thereafter, and until he sold and transferred the same to the defendant in this case. "We further find that said John Flanagan and Julia, his wife, by good and lawful deed of conveyance, conveyed said premises to the defendant in this suit in 1885, and surrendered his possession to this defendant, and that said defendant has remained in the open, continu- ous, notorious, and adverse possession of the same under claim of own- ership down to the present time. We therefore find that at the com- mencement of this suit the defendant was the owner of and entitled to the possession of the said premises, and upon the issues joined in this case we find for said defendant." * * * Mr. Justice Shiras, after stating the facts in the foregoing lan- guage, delivered the opinion of the court. * * * The action of the court below in rendering judgment on the special verdict in favor of the defendant forms the subject of the first assignment of error. The plaintiff's contention is that the special verdict did not warrant a judgment in favor of the defendant, because it did not find that the possession on which the defendant relied was actual and exclusive. No state statute has been referred to as regulating or defining title by adverse possession, and, indeed, it is stated in the brief of defendant in error that there is no such statute ; but there is a statutory provision that an action for the recovery of the title or possession of lands, tene- ments, or hereditaments can only be brought within 10 years after the cause of such an action shall have accrued. Our investigation, therefore, into the sufficiency of the special ver- dict, must be controlled by the principles established, in this branch of the law, by the decisions of the courts, particularly those of the su- preme court of the state of Nebraska, and of this court. In French v. Pearce, 8 Conn. 440, it was said that "it is the fact of exclusive occupancy, using and enjoying the land as his own, in hos- tility to the true owner, for the full statutory period, which enables the occupant to acquire an absolute right to the land." In Sparrow v. Hovey, 44 Mich. 63, 6 N. W. 93, a refusal of the 868 Casks on Reai, Property court to charge that, when the title is claimed by an adverse possession, it should appear that the possession had been "actual, continued, vis- ible, notorious, distinct, and hostile," but merely charging the jury that the possession "must be actual, continued, and visible," was held erro- neous. In Pennsylvania it has been repeatedly held that, to give a title under the statute of limitations, the possession must b^ "actual, visible, exclusive, notorious, and uninterrupted." Johnston v. Irwin, 3 Serg. & R. 291 ; Mercer v. Watson, i Watts, 338 ; Overfield v. Christie, 7 Serg. & R. 173. In Jackson v. Berner, 48 111. 128, it was held that an adverse pos- session sufficient to defeat the legal title, where there is no paper title, must be hostile in its inception, and is not to be made out by inference, but by clear and positive proof; and, further, that the pos- session must be such as to show clearly that the party claims the land as his own, openly and exclusively. In Foulke v. Bond, 41 N. J. Law, 527, it was said : "The principles on which the doctrine of title by adverse possession rests are well settled. The possession must be actual and exclusive, adverse and hostile, visible and notorious, continued and uninterrupted." It was held in Cook v. Babcock, 11 Cush. 208, that, "when a party claims by a disseisin ripened into a good title by the lapse of time as against the legal . owner, he must show actual, open, exclusive, and adverse possession of the land. All these elements are essential to be proved, and failure to establish any one of them is fatal to the validity of the claim." In Armstrong v. Morrill, {4 Wall, 120, this court, speaking through Mr. Justice Clifford, said: "It is well-settled law that the possession, in order that it may bar the recovery, must be continuous and unin- terrupted, as well as open, notorious, actual, exclusive, and adverse. Such a possession, it is conceded, if continued without interruption for the whole period which is prescribed by the statute for the enforce- ment of the right of entry, is evidence of a fee, and bars the right of recovery. Independently of positive statute law, such a possession aflfords a presumption that all the claimants to the land acquiesce in the claim so evidenced." Hogan v. Kurtz, 94 U. S. 773, is to the same effect The authorities in Nebraska are substantially to the same effect on questions of title by adverse possession. A leading case is Horbach v. Miller, 4 Neb. 31, in which it was said that "the elements of all title are possession, the right of possession, and the right of property; hence if the adverse occupant has main- Adverse Possession 869 :d an exclusive adverse possession for the -full extent of the statu- limit, the statute then vests him with the right of property, which ies with it the right of possession, and therefore the title becomes plete in him. * * * The submission of the case to the jury ectly was that if they believed from the evidence that the plaintiff rror, for ten years next before the commencement of the action, in the actual, continued, and notorious possession of the land in roversy, claiming the same as his own against all persons, they t find for the plaintiff in error." In Catling v. Lane, 17 Neb. J^, \T. W. 227, 453, the language used was: "A person who enters 1 the land of another with the intention of occupying the same as Dwn, and carries that intention into effect by open, notorious, ex- ive, adverse possession for ten years, thereby disseises the owner." 'arker v. Starr, 21 Neb. 680, 33 N. W. 424, a recovery was sus- ed where the testimony clearly showed that "the defendant and e under whom he claims have been in the open, notorious, and usive possession for ten years next before the suit was brought." 3allard v. Hansen, 33 Neb. 861, 51 N. W. 295, the following in- ctions, which had been given in the trial court, were approved by supreme court : "The jury are instructed that adverse possession, elied upon by the plaintiffs in this action, is the open, actual, ex- ive, notorious, and hostile occupancy of the land and claim qf t, with the intention to hold it as against the true owner and all T parties. Such occupancy, if continuous for ten years, ripens a perfect title, after which it is immaterial whether the posses- be continued or nOt." "If you find, and believe from a preponder- : of the testimony in this case, that the plaintiff was in the actual, 1, notorious, exclusive, continuous possession of any of the lots in Toversy for ten years, claiming to own and hold them as against all !rs, as to such lots he is entitled to recover." ested by these definitions, it is obvious that if the title relied on tiis case by the defendant below was fully described and character- by the special verdict, it was defective in two very essential par- lars in that it was not found to have been actual and exclusive. )ossession not actual, but constructive; not exclusive, but in par- )ation with the owner or others, — falls very far short of that kind idverse possession which deprives the true owner of his title, i/^here a special verdict is rendered, all the facts essential to entitle irty to a judgment must be found, and a judgment rendered on a :ial verdict failing to find all tb? essential facts is erronequs. f Hf ' 870 Casbs on Reai. Property GAFFORD V. STRAUSS. 8p Ala. 282; 18 Am. St. Rep. iii; 7 So. 248; 7 L. R. A. 568. (1889) * * * Clopton, J. Both parties concede that J. M. Gafford was formerly seised and possessed of the land in controversy. Ap- pellee, who was the plaintiff in the circuit court, derives title under a mortgage executed by him February 22, 1873. Defendants do not claim that title ever passed from Gafford to them, or either of them, by any legal conveyance. Their defense is, that Gafford, being in- debted to Mrs. Sallie Gafford, who was his wife, for money of her separate estate which he received and used, gave her, in February, 1872, by parol, the lands on which he then lived, including the lands in controversy, in payment thereof, putting her in possession, and that she has been in continuous possession, claiming the land as her own, for the length of time prescribed by the statute of limitations as a bar to the entry of plaintiff. The court having given the affirmative charge in favor of plaintiff, the main inquiry arises, whether, from the undisputed facts, the conclusion of law is, that Mrs. Gafford did not, and could not, have such adverse possession as, by its own mere force, could ripen into a title. The legal title in the lands, being vested in Gafford when the mort- gage was executed, thereby passed to plaintiff. There is no pretense that he had notice of Mrs. Gafford's claim. The possession of the mortgagor therafter was referable and in subordination to the mort- gagee's title, unless rendered adverse by an open and positive dis- claimer of his title brought to his knowledge: Coyle v. Wilkins, 57 Ala. 108. So long as the mortgagor holds in subserviency to the title of the mortgagee, the possession of his vendee, under a parol con- tract of sale, cannot become adverse to the mortgagee, unless there is a disclaimer of the title of the mortgagor, and a holding adversely to him. Counsel invoke the principle pronounced in Collins v. Johnson, 57 Ala. 304, and Vandiveer v. Stickney, 75 Ala. 227, that an uninter- rupted possession of a donee, under a parol gift, or by a vendee under a parol agreement to purchase, when the purchase-money is paid, ac- companied by a claim to the lands, is adverse to the donor or vendor, and will be protected by the statute of limitations, maturing into a perfect title, if continuous for the period prescribed by the statute. But to have such effect, the facts essential to constitute an adverse holding must enter into and characterize the possessioii. The mere Advbrse Possession 871 assertion of a hostile claim or right, and of possession unaccompanied by adverse actual occupancy, is insufficient. There is no dispute that Gafford entered into possession of the lands in 1862, and continued in possession, claiming them as his own, until February, 1872, the time of the alleged parol contract of sale. While Mrs. Gafford testified that she was put into possession at that time, and thereafter claimed the possession and ownership, she also states that there was no change of possession, but she and her husband continued to reside on and occupy the lands, and he controlled them until his death, which occurred in 1882. fTen years not having elapsed after his death before the institution of the action, the bar of the stat- ute can become complete only by tacking her possession, during the continuance of the marital relation, to her possession after the death of her husband. The direct question, then, is, whether the wife can hold premises adversely to her husband, which she claims to have de-, rived from him under a parol agreement of purchase, and on which they continued to reside and jointly occupy as husband and wife. The statement and application of a few elementary principles furnish an answer'. Possession, to be adverse, so as to vest title in the possessor after the lapse of the requisite time, must be not only open, notorious, and continuous, but also exclusive. It must operate to oust or disseise any other person who may claim title or right of possession. In order to fall within the operation of the statute of limitations, the possession must be sufficiently exclifsive to put the dispossessed claimant to his action or entry. This can never be the case where the party having the title is in possession, though it may be joint. Two contemporane- ous possessions of the same property, each adverse to the other, is a legal absurdity not conceivable. Hence when two persons are in pos- session, claiming under diflferent and hostile' rights, the law refers the possession to the party having the title: Pickett v. Pope, 74 Ala. 122; Bragg v. Massie, 38 Ala. 89 ; 79 Am. Dec. 82 ; Farmer v. Eslava, 1 1 Ala. 1028. It may be that, tmder the laws in force at the time of the transaction in question, a title would vest in a married woman by the mere force of an uninterrupted possession of real estate for the statutory period under a parol gift or purchase, where the husband never had nor claimed any title, nor interfered with her possession. There is a clear distinction between a possession of that nature, and a possession under a gift or purchase directly from the husband. There being no actual change of possession, the oral agreement between Gaiiford and his wife 872 Cases on Reai. pRofERTY was void ; it vested no right nor equity, and created no separate estate. It is material only to the extent it may constitute the origin and basis of an adverse possession. Had Gafford executed a conveyance di- rectly to his wife, it would have been inoperative as a transfer of the legal title. Their continuance in joint possession thereafter, for no length of time, could have availed to divest him of the title, and vest it in her. Certainly, a continuance of joint occupancy, without a con- veyance, merely under a parol gift, or agreement of purchase, can have no greater effect. The elements essential to an adverse possession, in that sense which can ripen into a title by its own force and the lapse of time, do not, and cannot, exist in such case. The husband is not ousted or disseised, actually or constructively; the possession of the wife does not exclude or encroach upon his possession. The posses- sion of Mrs. Gafford during coverture was the possession of her hus- band, and did not become antagonistic to his rights: Bell v. Bell, 37 Ala. 536 ; 79 Am. Dec. 73 ; Hendricks v. Rasson, 53 Mich. 575 ; i Am. & Eng. Ency. of Law, 250. It results that the statute of limitations did not commence to run until the death of her husband. Affirmed. This case is the subject of a monographic note in 18 Am. St. Rep. 113 on Title by Adverse Possession as between Husband and Wife. PAGE v. BRANCH. P7 N. C. p7; 2 Am. St. Rep. 281; i S. B. 625. (1887) Plaintiffs claimed to be tenants in common with defendants of the land in dispute, while defendants claimed to be sole seised. The jury found plaintiffs entitled to four-fifths of one-sixth of the property, and that defendants were not sole seised. Plaintiffs introduced a deed from one McClure and wife, dated March 19, 1847. The evidence showed that Dennis Branch entered under this deed, and died in 1847, leaving his widow in possession until 1866, when she conveyed to A. B. Branch, son of Dennis, and he conveyed to defendants, who were also sons of Dennis Branch. It was also shown that Dennis Branch's widow paid a debt against the land, and claimed it adversely until she conveyed it, and that no dower was assigned to her. It was also shown that A. B. Branch and defendants, his vendees, claimed the land adversely from 1866 until July, 1883. The plaintiffs produced Adverse Possession 873 to show that they had succeeded to the interest of heirs of Den- ranch to the extent of the interest claimed by them. iThe other appear from the opinion. VIS, J. The only question for our consideration is: Did the err in refusing to instruct the jury that seven years' adverse ssion under the deed of 1866 would be sufficient to bar the plain- title, even if Rebecca Branch had not claimed adversely to the at law or their grantees? e charge of his honor and the finding of the jury render it un- sary for us to consider the character of Rebecca Branch's pos- >n, — it was not adverse: Grandy v. Bailey, 13 Ired. 221. 1866, the plaintiffs and defendants were tenants in common, and continued so to be, unless the possession of the defendants under eed of Rebecca Branch barred the plaintiffs. "The possession of enant in common is, in law, the possession of all his co-tenants, ise they claim by one common right. When, however, that pos- )n has been continued for a great number of years, without any I from another who has a right and is under no disability to assert will be considered as evidence of title to such sole possession ; and e it has so continued for twenty years, the law raises a presump- that it is rightful and will protect it. * * * At any time, then, ig the twenty years, the tenant out of possession had a right, and t have enforced it by an action" : Black v. Lindsay, Busb. 468. le tenant in common cannot make his possession adverse to his nant. He is presumed to hold by his rightful title, and it will_ twenty years' adverse possession to bar the co-tenant, and a deed co-tenant to a stranger, though it purport to convey the entire e, has no other effect than to invest the vendee with the rights of rendor, and does not change the relation of co-tenant, which had isted between the vendor and the co-tenant. This rule extends to )urchaser of the interest of a tenant in common at execution sale, to the vendee of such purchaser, as was decided in Ward v. ner, 92 N. C. 93. In that case, the interest of W. W. Ward, one le co-tenants, had been purchased at execution sale by one Day, Day, by deed professing to convey the whole of the land, sold to defendants. Farmer and Southerland, who entered into possession he 1st of January, 1873, and occupied and used the same to No- ber, 1883, claiming it as their own, under their deed from Day, me else being in possession, clearing and otherwise, improving it, pyingi it by marked and visible lines publicly, and paying the taxes. be court below instructed the jury that no possession short of 8/4 Casbs on Rbai, Property twenty years, except after an actual ouster, would be adverse as against tenants in common, and this was sustained. Ashe, J., in th< opinion in Ward v. Farmer, 92 N. C. 93, in referring to Day v. How- ard, 73 Id. 4, in which the same principle is held, calls attention to th( fact that Chief Justice Pearson, who delivered the opinion in Day v Howard, supra; fixed the time at ten years, instead of twenty, anc says: "It will be observed that this was a mere obiter dictum, and the learned chief justice only says he is inclined to the opinion, and expresses none, because that state of facts is not presented." And Bynum, J., in Covington v. Stewart, 77 Id. 151, says: "It has nevei been held in North Carolina that a less period than twenty years' ad- verse possession by one tenant in common will raise the presumption of ouster and sole seisin; and this, whether the possession was held by the tenant in common himself, or by him a part of the time, and until his death, and then continued by his heirs for the residue of the twenty years" ; and referring to Day v. Howard, supra, adds that his honor who tried. the case of Covington v. Stewart, supra, in the su- perior court, "was probably thrown from his guard by a suggestion made by the chief justice in delivering the opinion, in the latter case, that where a tenant in common conveys to a third person, an adverse possession of ten years by the purchaser would probably give him a good title, by the presumption of an actual ouster. The point did not rise in that case * * * \y■^^^ ^^^e possession of twenty years, which raises a presumption of title, as the law has been heretofore administered, has now the force and effect of an actual title"; and refers to the statute. Assuming that the period of ten years, in the case of Day v. How- ard, 73 N. C. 4, was inadvertently fixed, as is indicated by Justice By- num and Justice Ashe, it may be stated as well settled in this state that no possession for a period less than twenty years will amount to an ouster of one co-tenant by another co-tenant, or by anyone deriv- ing title under another co-tenant. There must be something more than mere possession for a less period than twenty years to constitute an ouster. In Thomas v. Garvan, 4 Dev. 223, 25 Am. Dec. 708, Gas- ton, J., says : "When the law prescribes no specific bar from length of time, twenty years have been regarded in .this country as consti- tuting a legal presumption of such facts as will sanction the posses- sion and protect the possessor" ; and this has been followed uniformly, unless Day v. Howard, supra, constitutes an exception : Cloud v. Webb, 4 Dev. 290; 25 Am. Dec. 711 ; Meredith v. Andres, 7 Ired. 5; 45 Am. Dec. 504; Black v. Lindsay, Busb. 467; Hal ford v. Tetherow, Adverse Possession 875 2 Jones, 393; Linker v. Benson, 67 N. C. 150; Covington v. Stewart, "J"] Id. 151; Caldwell v. Neely, 81 Id. 114. The length of time necessary to raise the presumption of ouster was not the point in Day v. Howard, supra, and the principle enunci- ated, and the reasoning of the chief justice in that case, are in har- mony with these decisions. * * * LEVY V. YERGA. 55 Neb. 764; 13 Am. St. Rep. 525; 41 N. W. 773. (1889) Reese, C. J. This is an action in ejectment for the possession of a narrow strip of land within the inclosure of defendant, and which it is alleged is the property of plaintiff in error, the adjoining land-owner. The answer of defendant in error denied the plaintiff's ownership, averred ownership in defendant, and alleged that he had "been in the lawful, open, notoriou-s, peaceable, exclusive, and continuous posses- sion of said premises for the period of more than ten years prior to the commencement" of the suit. A trial was had to the court without the intervention of a jury, which resulted in a general finding and judgment in favor of the de- fendant in the action. It is conceded by plaintiflf that defendant has been in possession of the property for more than ten years prior to the commencement of the action, and that if such possession was notorious, and hostile to plaintiff and his grantors, that the statute has run. But it is insisted that such is not the possession of defendant, but that his inclosure was only intended to reach to the true line, and that his possession has been only with reference thereto; that his occupation of the land be- longing to plaintiff and his grantors has been solely by mistake, and that defendant's claim of ownership extended only to the land de- scribed in the deed, the property being described by metes, and bounds. We have carefully examined the evidence submitted to the trial court, and find that sufficient evidence was submitted to justify a find- ing that defendant's occupation has been with reference to fixed boundaries, existing at the time of his purchase, and which it was supposed was within the actual purchase made by him, and without reference to the particular land described in the deed. There is proof that, about the time of the purchase, the land was surveyed, and that. B76 CASfis ON Reai, Property by such survey, it was found that a ditch, which had been previously excavated by an occupant, was upon the Hne. And that, in the con- struction of defendant's fence, he built with reference to said ditch as the line, placing this fence immediately inside of it. And that the whole of his possession had been with reference to said ditch as his boundary line, and as a monument thereof. This ditch was con- structed, perhaps, prior to the year 1856, and, as stated by one of the witnesses, was originally intended as a "ditch fence," upon that bound- ary line. While it appears the property has not been occupied during all this time, yet it is shown that, during the time it was occupied, it was with reference to the ditch referred to as the boundary line; that the occupancy has been continuous, and with reference to it, for more than ten years prior to the commencement of the action. Under the rule stated in Tex v. Pflug, 24 Neb. 666, 8 Am. St. Rep. 231, and which we believe to be correct, the statute of limitation had run in favor of defendant at the time of the commencement of the action. It is shown that, during the occupation of defendant, he leased from plaintiff's grantor the tract of land adjoining upon the west, which, it is alleged, included the strip referred to, and that for a number of years he had it inclosed for the purpose of a pasture, and that thereby he recognized the ownership of plaintiff, and that the running statute was broken, his possession during that time not being adverse. It is clearly shown by the evidence that, at the time of the lease re- ferred to, and during the whole thereof, the land in question was in- closed by defendant as his own property; while it is true that he rented what was known as the Thompson tract, yet it is very evident that in the contract of lease, which was oral, and in which contract the particular strip referred to was not treated as a portion of the Thompson tract, nor was defendant's possession thereof in any man- ner changed from what it had been prior thereto. The rule stated in Tex v. Pflug, supra, on this part of the case must control, and the decision of the district court, that the tenancy was not inconsistent with defendant's possession as owner, was correct. Adversb; Possession 877 McMIIvLAN V. FULLER. 41 App. D. C. 384. (1914) Mr. Chie^ Justice Shepard delivered the opinion of the court : * * * Defendant selected his lot, had it surveyed, presumably by the District Surveyor, who urider the building regulations, is au- thorized to locate the lines for those intending to build, enclosed it, and erected a substantial house within those lines. For more than fifteen years he occupied the house in complete ignorance that the deed, received by his attorney, actually conveyed the adjoining lot. The mistake seems to have been in the preparation of his deed, and not in the occupation of the lot. We are of the opinion that the pos- session was adverse within the meaning of the statute. Johnson v. Thomas, 23 App. D. C, 141, 150. In that case it was said: "Cer- tainly it is well established law that if a man goes upon the land of an- other, whether he does so by honest mistake upon the supposition that it is his own, or with the deliberate purpose of appropriating to him- self that which is the property of another, and occupies it exclusively and adversely to all the world for a period of twenty (now fifteen) years or upwards, he may by such adverse occupation acquire a com- plete title in himself. This is elementary doctrine in the law of ad- verse possession; and most assuredly greater consideration is due to a title by adverse possession based upon an honest mistake than to one based upon deliberate and wilful wrong." See also Rudolph v. Peters, '35 App.D. C, 438, 447- * * * PROPRIETORS OF KENNEBEC PURCHASE v. SPRINGER. 4 Mass. 416; 3 Am. Dec. 227. (1808) Parson, C. J. The demandants sued the tenant in a writ of entry counting on their own seisin within thirty years, and demanding th( northerly half of lot numbered thirty- two in the second range of lots of which they had been disseised by the tenant. On the trial, upon th( general issue, the jury found a verdict for the demandants; and th( tenant moves -for a new trial, because, as he supposes, the verdict wa: against the evidence, which is reported by the judge. The tenant's title was under a release from James Springer, who 878 Casbs on Real Property as the tenant alleges, entered more than thirty years before, and dis- seised the demandants ; for no evidence was given that James entered claiming any title or right to the land. The statute of 1786, c. 13, limits the time of suing any real action by any corporation, declaring on its own seisin, to thirty years- next after such seisin. And the tenant insists that by virtue of this statute, the demandants are barred by the, disseisin done to them by his re- leasor in 177s, which is more than thirty years before the teste of their writ. The law upon this subject seems to be very well settled. When a man is once seised of land, his seisin is presumed to continue, until a disseisin is proved. When a man enters on land, claiming a right or title to the same, and acquires a seisin by his entry, his seisin shall extend to the whole parcel, to which he has a right; for, in this case, an entry on part is an entry on the whole. When a man, not claiming any right or title to the land, shall enter on it, he acquires no seisin, but by the ouster of him who was seised, and he is himself a dis- seisor. To constitute an ouster of him who was seised, the disseisor must have the actual exclusive occupation o"f the land, claiming to hold it against him .who was seised, or he must actually turn him out of possession. When a disseisor claims to be seised by his entry and occupation, his seisin cannot extend further than his actual exclusive occupation; for no further can the party seised be considered as ousted ; for the acts of a wrongdoer must be construed strictly, when he claims a benefit from his own wrong. Let us now consider the evidence, as applicable to these principles.' The demandants proved a title to the tenements demanded and a seisin in 1769. This seisin must be presumed to be continued until they were disseised, as they continued to claim title to the land. James Springer entered on the front lot, numbered thirty-two, in 1775. He continued in the occupation of that lot, improving and fencing a part, and living on it until he died; having in the year he entered, caused it to be run round by a surveyor, and trees marked on the lines. This -land is not demanded. But the northerly half of lot numbered thirty-two on the second range is demanded. And it appears that when he sur- veyed the front lot in 1775, he at the same time caused the demanded premises to be run round by the surveyor, and the lines marked. There is no evidence that he ever fenced any part of the land de- manded until 1792, which is within thirty years, or exercised any act of ownership on it, except that he sometimes cut the grass on a small meadow which was part of it. Having fenced a part in 1792, he con- Adverse Possession 879 veyed the premises to the tenant, who entered and has occupied the same under his deed ever since. On considering the evidence, we are satisfied that the demandants were not disseised until 1792, by the entry of the tenant; that the running round the land by a surveyor, and marking the lines by the direction of one who claims no title to the land, is not such an exclusive occupation of the land as can amount to an ouster or disseisin of the demandants. Neither can the occasional cutting of the grass on the meadow by Springer, who does not appear to have claimed the land, amount to a disseisin. To constitute a disseisin of the owner of uncultivated lands by the entry and occupation of a party not claiming title to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title, otherwise a man may be disseised without his knowledge, and the statute of limitations may run against him, while he has no ground to believe that his seisin has been interrupted. As the tenant set up no title prior to 1792, but relied entirely on the statute as a bar, and as it appears to us, from the facts reported, that the demandants were seised within thirty years next before the teste of their writ, we are of opinion that the conclusion made by the jury from the evidence in the cause was legal, and that their verdict must stand. Judgment according to verdict. LESSEE OF CLARKE et al. v. COURTNEY et al. 5 Pet. (U. S.) 319; 8 L. Ed. 140. (1831) Mr. Justice Story delivered the opinion of the Court. * * * In considering the points growing out of this exception, it may be proper to advert to the doctrine which has been already es- tablished in respect to the nature, and extent of the rights, growing out of adverse possession. Whether an entry upon land, to which the party has no title and claims no title, be a mere naked trespass, or be an ouster or disseisin of the true owner, previously in possession of the land, is a matter of fact depending upon the nature of the acts done, and the intent of the party so entering. The law will not pre- sume an ouster without some proof; and though a mere trespasser 88o Cases on Reai, Property cannot qualify his own wrong, and the owner may, for the sake of the remedy, elect to consider himself disseised, yet the latter is not bound to consider a mere act of trespass to be a disseisin. If a mere trespasser, without any claim or pretence of title enters into land, and holds the same adversely to the title of the true owner, it is an ouster or disseisin of the latter. But in such case the possession of the trespasser is bounded by his actual occupancy; and consequently the true owner is not disseised except as to the portion so occupied. But where a person enters into land under a deed or title, his posses- sion is construed to be co-extensive with his deed or title; and al- though the deed or title may turn out to be defective, or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title. This, however, is subject to some qualification. For, if the true owner be at the same time in possession of a part of the land, claiming title to the whole, then his seisin extends by con- struction of law to all the land which is not in the actual possession and occupancy, by enclosure or otherwise, of the party so claiming un- der a defective deed or title. The reason is plain; both parties cannot be seised at the same time of the same land under different titles, and the law therefore adjudges the seisin of all, which is not in the actual occupancy of the adverse party, to him who has the better title. This doctrine has been on sev- eral occasions recognized in this Court. In Green v. Liter, 8 Cranch, 229, 230, S. C. 3 Peter's Cond. Rep. 97, 107, the Court said; the gen- eral rule is, that if a man enters into lands, having title, his seisin is not bounded by his occupancy, but is held to be co-extensive with his title. But if a man enters without title, his seisin is confined to his possession by metes and bounds. Therefore, the Court said, that as between two patentees in possession claiming the same land under adverse titles, he who had the better legal title was to be deemed in seisin of all the land not included in the actual close of the other patentee. The same doctrine was held in Barr v. Gratz, 4 Wheat, Rep. 213, 223; where the Court said, that where two persons are in possession at the same time under different titles, the law adjudges him to have the seisin of the estate who has the better title. Both can- not be seised, and therefore the seisin follows the title. And that where there was an entry without title, the disseisin is limited to the actual occupancy of the party disseising; and in reference to the facts of that case, the Court held that in a conflict of title and pos- session, the constructive actual seisin of all the land not in the actual Adverse Possession 88 i adverse possession and occupancy of the other, was in the party hav- ing the better title. In The Society for Propagating the. Gospel v. The Town of Pawlet, 4 Peter's Rep. 480, 504, 506, which came before the Court upon a di- vision of opinion upon a state of facts agreed; the Court held, that where a party entered as a mere trespasser without title, no ouster could be presumed in favour of such a naked possession; but that where a party entered under a title adverse to the plaintiffs, it was an ouster of, or adverse possession to the true owner. It appears to us also that the doctrines, thus recognized by this Court, are in harmony with those established by the authority of other Courts; and especially of the Courts of Kentucky, in the cases cited at the bar. Johnson's Digest, Ejectment, V, b. Big's Dig. Seisin and Disseisin in A, B, C, D. * * * CHAPTER XXVn. PRESCRIPTION. KILBURN V. ADAMS. 7 Met. S3; 39 ^^- Dec. 754. (1843) Trespass on the case for stopping up a way claimed by the plaintiffs over land of the Groton Academy. The defense was, that the defend- ant closed the way by direction of the trustees of the academy. The plaintiffs claimed the right of way as appurtenant to a tract of land owned by them, adjoining the academy grounds. The plaintiffs de- rived title to their land through mesne conveyances from one James Brazer, who owned the same in May, 1805, and until his death in 1818. His son, William F. Brazer, then became owner, under the will of his fatber and occupied the land until 1822, when he conveyed to one Ammidon. There was evidence that prior to James Brazer's ownership, there was a house on his lot, built by a former owner, and that the said owner was accustomed to pass over the academy grounds to a highway. The house that formerly stood on the plaintiff's lot was burnt in 1801, and James Brazer built another house there in 1805, and both he and his successors continued to use the alleged way over the academy lot. There was, however, another passage-way to the highway, down a steep hill, which was more frequently used, except by heavily loaded teams. The academy lot was uninclosed, and re- mained so until it was fenced in 1841, which was the trespass com- plained of. It appeared that along the alleged way the grass was worn away by travel, and that the way was used not only by Brazer and his successoi^s, but also by the occupants of the academy building for the purpose of carting wood, and that the academy boys used the whole academy lot as a play-ground, and all persons passed freely over it in any direction. There was evidence that while Brazer was owner, he, on one occasion, carted gravel upon the path and repaired it at a point where it had been gullied by the rain. When Ammidon was owner he filled up a gully in the path and carted dirt along the path, so as to make better passing over it. On a subsequent occasion a surveyor 882 Prescription 883 of the highway dug a ditch along the side of the highway, which cut off the path, but upon the remonstrance of the party who then owned the plaintiffs' lot, he filled up the ditch. It was proved by the defend- ant that James Brazer, during all the time he owned the lot, until his death, in 1818, was one of the trustees of the academy, and that his son William F. was elected a trustee in 1820, and continued so to be until after his conveyance to Ammidon. A nonsuit was entered; the court below being of opinion that as Brazer was one of the trustees, his use of the way was to be deemed merely permissive, and that the possession of William F. Brazer, prior to being chosen trustee, could not be tacked to that of Ammidon and his successors to rnake out a right of way by adverse possession. The propriety of this opinion was submitted for the consideration of the whole court. Shaw, C. J. The question is, whether the plaintiffs, owners of an estate adjoining the academy lot, acquired a right of way over that lot, by the adverse and uninterrupted use of such way, by themselves and- the former owners and occupiers of the estate, under the circum- stances set forth in the report. The rule, we think, is, that where a tract of land, attached to a public building, such as a meeting-house, town-house, school-house, and the like, and occupied with such house, is designedly left open and uninclosed, for convenience or ornament, the passage of persons over it, in common with those for whose use it is appropriated, is, in general, to be regarded as permissive, and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to inclose it, such use is not adverse, and will not preclude them from inclosing it when other views of the interests of the proprietors render it proper to do so. And though an adjacent proprietor may make such use of the open land more fre- quently than another, yet the same rule will apply, unless there be some decisive act, indicating a separate and exclusive use, under a claim of right. A regularly formed and wrought way across the ground, paved, macadamized, or graveled and fitted for use as a way, from his own estate to the highway, indicating a use distinct from any use to be made of it by the proprietors, would, in our opinion, be evidence of such exclusive use and claim of right. So would be any plain, unequivocal act, indicating a peculiar and exclusive claim, open and ostensible, and distinguishable from that of others. But the fact that a particular track or line was a little more worn and marked by travel than the general surface of the lot, or that the adjacent pro- prietor had occasionally leveled a spot gullied by the rain, could scarce- 884 Cases on Real Property ly be regarded, independently of other proof as indicative of a claim of right: First Parish in Gloucester v. Beach, 2 Pick, 60, note. In the present case, the court are of opinion that there is no evidence of the use of this way, by any of the plaintiff's predecessors, until James Brazer built a house there in 1805 ; nor after that time, of any use so exclusive, peculiar, or different from that of all others having occasion to pass and repass, as to found a claim of right for a way over this open lot, attached to and occupied with the academy. The fact that James Brazer and his son were, for a greater part of the time, trustees of Groton Academy, and members of the corporation in which the estate was vested, is to be taken into consideration, we think, in weighing the evidence. For although the relation was not such as to preclude them from taking an easement by actual grant, or from ac- quiring one by such unequivocal acts of adverse and uninterrupted possession as to prove a grant ; yet doubtful or equivocal acts will not be so readily deemed adverse, as those of a stranger having no rights in the estate, and charged with no duty, growing out of his fiduciary relation, to protect and preserve it. Many of the same acts which, in a .stranger, having no right, and charged with no duty, ought to be deemed adverse, and attributed to a claim of right, would, in the case of a trustee and corporator, be regarded as permissive, and done under an implied license from himself and his associates. If the acts of Ammidon and others, who came in under William F. Brazer, in 1822, can be considered as indicating, more unequivocally, a claim of right, they would not avail the plaintiffs, because they do not prove an uninterrupted claim for twenty years ; the trustees of the academy having passed a vote in 1841, directing the land to be in- closed, and the way cut oft'. The court are therefore of opinion that the nonsuit must stand. PARKS v. BISHOP. 120 Mass. 340; 21 Am. Rep. 520. (i8y6) Bill in equity alleging that the plaintiff was the owner of the fee in the soil and of a right of way in a passage-way leading from Pur- chase street by land of the plaintiff and to a shop of the defendant which adjoined the rear of a store of the defendant on Atlantic av- enue ; and praying that the defendant might be restrained from using PRBSCRIPTION 885 the way as appurtenant to the land on which that store was built, or for the purpose of passing, or of carrying merchandise or other things, between that store and Purchase street. The answer alleged that the defendant had acquired a right to such use by adverse possession. Hearing before Wells, J., who ordered an injunction to issue, and reserved the case for the consideration of the full court, upon a report, the material part of which is stated in the opinion. Gray, C. J. The report of the judge before whom this case was heard in the first instance, states the facts proved at the hearing, and his decision that the use of the way in question by the deferidant, in the manner and for the purpose complained of, was not justified by any right acquired by Lakin (under whom the defendant claims) through the use of the way by him as stated in the report, and that an injunction should issue, subject to the revision and determination of the full court upon the question, among others, "whether Lakin, upon the facts stated, had acquired such a right of way as to constitute a good defense." The report, being on the equity side of the court, submits to our revision all inferences of fact, as well as conclusions of law. Wright v. Wright, 13 Allen, 207, 209; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45, 47. When a right of way to certain land exists by adverse use and enjoyment only, although evidence of the right for a single purpose will not prove a right of way for other purposes, yet proof that it was used for a variety of purposes covering every purpose required by the dominant estate, in its then condition, is evidence from which may be inferred a right to use the way for all purposes which may be reasonably required for the use of that estate while substantially in the same condition. Ballard v. Dyson, i Taunt. 279 ; Dowling v. Hig- ginson, 4 Mees. & W. 245 ; Dare v. Heathcote, 25 L. J. (N. S.) Exch. 245 ; Williams v. James, L. R., 2 C. P. 577; Sloan v. Holliday, 30 L. T. (N. S.) 757. But if the condition and character of the dominant es- tate are substantially altered — as in the case of a way to carry off wood from wild land, which ia afterward cultivated and built upon; or of a way for agricultural purposes, to a farm, which is afterward turned into a manufactory or divided into building lots — the right of way cannot be used for new purposes, required by the altered con- dition of the property, and imposing a greater burden upon the servient estate. Atwater v. Bodfish, 11 Gray, 150; Wiles J., in L. R., 2 C P. 582; Wimbledon Commons v. Dixon, i Ch. D. 362. In the present case the report states that for more than twenty years Lakin had, in the shop abutting upon the passage-way in question, a 886 Cases on Reai< Property steam engine, which was driven by boilers in the larger building on the lot behind, and was used for operating the machinery in that build- ing, the three stories of which were respectively occupied for a black- smith's shop, a carriage shop, and a paint shop ; that there was a door in the wall between the two buildings, which was constantly used for the purpose of passing between them through the engine room and .over the passage-way; that the space in the passage-way was occa- sionally used for the purpose .of setting tires upon wheels, in connec- tion with the work in the shop; that all the coal for use under the boilers was brought in through the passage-way, and deposited in the basement or cellar under the engine room, until used in the regular' course of business ; and that the way was used generally as a back en- trance or thoroughfare, as convenience required, in connection with the shops occupied by Lakin, without question or objection, for more than twenty years. These facts appear to the court to justify and require the conclu- sion that Lakin had acquired by prescription a right of way for all purposes reasonably necessary for a manufactory upon the two lots, and which, upon the buildings being destroyed by iire and rebuilt for a manufactory and store-house, he was entitled to use for the purpose of bringing goods into the smaller building abutting upon the passage- way, to be thence hoisted up into the larger building, for storage and use therein; that there has been no substantial alteration in the con- dition or character of the dominant estate, and no change, except In degree, in the exercise of the easement, and that for this reason the defendant has not exceeded his rights in the use of the passage-way. Bill dismissed. CHAPTER XXVIII. ACCRETION. STATE OF NEBRASKA v. STATE OF IOWA. 143 U. S. 359; 36 L. Ed. 186; 12 Sup. Ct. 396. (1892) This is an original suit, brought in this court by the state of Ne- braska against the state of Iowa, the object of which is to have the boundary line between the two states determined. Iowa was admitted into the Union in 1846, and its western boundary, as defined by the act of admission, was the middle of the main channel of the Missouri river. Nebraska was admitted in 1867, and its eastern boundary was likewise the middle of the channel of the Missouri river. Between 185 1 and 1877, in the vicinity of Omaha, there were marked changes in the course of this channel, so that in the latter year it occupied a very different bed from that through which it flowed in the former year. Out of these changes has come this litigation, the respective states claiming jurisdiction over the same tract of land. To the bill filed by the state of Nebraska the state of Iowa answered, alleging that this disputed ground was part of its territory; and also filed a cross-bill praying affirmative relief, establishing its jurisdiction thereof, to which cross-bill the state of Nebraska answered. Replications were duly filed and proofs taken. Brewer, J. It is settled law that when grants of land border on running water, and the banks are changed by that gradual process known as "accretion," the riparian owner's boundary line still re- mains the stream, although, during the years, by this accretion, the actual area of his possessions may vary. In New Orleans v. U. S. 10 Pet. 662, 717, this court said: "The question is well settled at com- mon law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. 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 887 888 Casks on Reai, Property cannot be held accountable for his gain." See also, Jones v. Soulard, 24 How. 41 ; Banks v. Ogden, 2 Wall. "57 ; Saulet v. Shepherd, 4 Wall. 502; St. Clair v. Lovingston, 23 Wall. 46; Jeffries v. Land Co., 134 U. S. 178, 10 Sup. Ct. Rep. 518. It is equally well settled that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the bound- ary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, "avulsion." In Gould, Waters, 159, it is said : "But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates." 2 Bl. Comm. 262 ; Aug. Water-Courses, 60; Trustees v. Dickinson, 9 Cush. 544; Buttenuth v. Bridge Co., 123 111. 535, 17 N. E. Rep. 439; Hagan v. Campbell, 8 Port. (Ala.) 9; Murry v. Sermon, i Hawks, 56. These propositions, which are universally recognized as correct where the boundaries of private property touch on streams, are in like manner recognized where the boundaries between states or nations are, by prescription or treaty, found in running water. Accretion, no matter to which side it adds ground, leaves the boundary still the center of the channel. Avulsion has no effect on boundary, but leaves it in the center of the old channel. * * * The result of these authorities puts it beyond doubt that accretion on an ordinary river would leave the boundary between two states the varying center of the channel, and that avulsion would establish a fixed boundary, to-wit, the center of the abandoned channel. It is contended, however, that the doctrine of accretion has no application to the Missouri river, on account of the rapid and great changes con- stantly going on in respect to its banks ; but the contrary has already been decided by this court in Jeffries v. Land Co., 134 U. S. 178, 189, 10 Sup. Ct. Rep. 518. * * * The case before us is presented on testimony, and not on allegation. But what are the facts apparent from that testimony? The Missouri river is a winding stream, coursing through a valley of varying width, the substratum of whose soil, a deposit of distant centuries, is largely of quicksand. In building the bridge of the Union Pacific Railway Company across the Missouri river in the vicinity of the tracts in con- troversy, the builders went down to the solid rock, 65 feet below the surface, and there found a pine log a foot and a half in diameter, — of Accretion 889 course, a deposit made in the long ago. The cixrrent is rapid, far above the average of ordinary rivers; and by reason of the snows in the mountains there are two well-known rises in the volume of its waters, known as the April and June rises. The large volume of water pouring down at the time of these rises, with the rapidity of its current, has great and rapid action upon the loose soil of its banks. Whenever it impinges with direct attack upon the bank at a bend of the stream, and that bank is of the loose sand obtaining in the valley of the Missouri, it is not strange that the abrasion and washing away is rapid and great. Frequently, where above the loose substratum of sand there is a deposit of comparatively solid soil, the washing out of the underlying sand causes an instantaneous fall of quite a length and breadth of the superstratum of soil into the river; so that it may, in one sense of the term, be said, that the diminution of the banks is not gradual and imperceptible, but sudden and visible. Notwithstanding this, two things must be borne in mind, familiar to all dwellers on the banks of the Missouri river, and disclosed by the testimony: that, while there may be, an instantaneous and obvious dropping into the river of quite a portion of its banks, such portion is not carried down •the stream as a solid and compact mass, but disintegrates and sep- arates into particles of earth borne onward by the flowing water, and giving to the stream that color, which, in the history of the country, has made it known as the "muddy" Missouri ; and also that, while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual, and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No en- gineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. There is, no matter how rapid the process of subtrac- tion or addition, no detachment of earth from the one side and deposit of the same upon the other. The only thing which distinguishes this river from other streams, in the matter of accretion, is in the rapidity 890 Cases on Real Property of the change, caused by the velocity of the current, and this in itself, in the very nature of things, works.no change in the principle under- lying the rule of law in respect thereto. Our conclusions are that, notwithstanding the rapidity of the changes in the course of the channel, and the washing from the one side and onto the other, the law of accretion controls on the Missouri river as elsewhere; and that not only in respect to the rights of in- dividual landowners, but also in respect to the boundary lines between states. The boundary, therefore, between Iowa and Nebraska is a varying line, so far as affected by these changes of diminution and accretion in the mere washing of the waters of the stream. Tt appears, however, from the testimony, that in 1877 the river above Omaha, which had pursued a course in the nature of an ox- bow, suddenly cut through the neck of the bow and made for itself a new channel. This ,does not come within the law of accretion, but of that of avulsion. By this selection of a new channel the boundary was not changed, and it remained, as it was prior to the avulsion, the center line of the old channel ; and that, unless the waters of the river returned to their former bed, became a fixed and unvarying boundary, no matter what might be the changes of the river in its new channel. We think we have, by these observations, indicated as clearly as is possible the boundary between the two states, and upon these prin- ciples the parties may agree to a designation of such boundary, and such designation will pass into a final decree. If no agreement is possible, then the court will appoint a commission to survey and re- port in accordance with the views herein expressed. PHILADELPHIA CO. v. STIMSON. 223 U. S. 605; 56 L. Bd. y^o; 32 Sup. Ct. 340. (1912) Mr. Justice Hughes delivered the opinion of the court: * * * It is the established rule that a riparian proprietor of land bounded by a stream, the banks of which are changed by the gradual and imperceptible process of accretion or erosion, continues to hold to the stream as his boundary; if his land is increased, he is not ac- countable for the gain, and if it is diminished he has no recourse for the loss. But where a stream suddenly and perceptibly abandons its old channel, the title is not affected, and the boundary remains at the Accretion 80 1 former line. Rex v. Yarborough, 3 Barn. & C. 91 ; S. C. 2 Bligh, N. R. 147, 4 Dowl. & R. 790, 27 Revised Rep. 292, i Dow. & C. 178, i Eng. Rul. Cas. 45S, sub. nom. Gifford v. Yarborough, 5 Bing. 163 ; New Orleans v. United States, 10 Pet. 662, 717, 9 L,. Ed. 573, 594; Banks V. Ogden, 2 Wall. 57, 17 L,. ed. 818; St. Clair County v. Lovingston, 23 Wall, 46, 67, 68, 23 L. ed. 59, 63, 64 ; Jefferis v. East Omaha Land Co., 134 U. S. 178, 190-193, 33 L. ed. 872, 876-878, 10 Sup. Ct. Rep. 518; St. Louis V. Rutz, 138 U. S. 226, 245, 34 L. ed. 941, 949, 11 Sup. Ct. Rep. 337 ; Nebraska v. Iowa, 143 U. S. 359, 36 L. ed. 186, 12 Sup. Ct. Rep. 396; Shively v. Bowlby, 152 U. S. i, 35, 38 L. ed. 331, 344, 14 Sup. Ct. Rep. 548; Hale, De Jure Maris, chaps, i, 4, 6; Hargrave's Law Tracts; Mulry v. Norton, 100 N. Y. 424, 53 Am. Rep. 206, 3 N. E. 581. The doctrine that the owner takes the risk of the increase or diminution of his land by the action of the water applies as well to rivers that are strong and swift, to those that overflow their banks, and whether or not dykes and other defenses are necessary to keep the water within its proper limits. It is when the change in the stream is sudden, or violent, and visible, that the title remains the same. It is not enough that the change may be discerned by comparison at two distinct points of time. It must be perceptible when it takes place. "The test as to what is gradual and imperceptible in the sense of the rule is, that though the witnesses may see from time to time that progress has been made, they could not pereceive it while the process was going on." St. Clair County v. Lovingston, 23 Wall. 46, 67, 68, 23 L. ed. 59, 63, 64. We are confined to the allegations of the bill. We have not the advantage of proof and findings, or even of a particularized descrip- tion in the bill itself, as to the precise character of the alterations in the banks of Brunot's island which took place during the long period to which the bill refers. It is alleged "that subsequent to the estab- Hshment in 1865 by said commissioners of the line of high-water mark, as aforesaid, a considerable amount of the soil of the shore of said Brunot's island on the so-called back channel, within the said high- water mark, was washed away from time to time by heavy floods and freshets, so that a large part of the upland of the island, that is, the land above high-water mark, became and was overflowed and slightly submerged by water, but said land was not submerged to an extent sufficient to permit of navigation of any kind thereover." There is no other statement on the point save that the bill asserts that the com- plainant was entitled to reclaim, "keeping at all times within the lines of the part thfit had bew torn away by the violence of the waters," 892 Cases on Rbai, Property It is manifest that these allegations are inadequate to support the complainant's contention. The determining words are that the land was "washed away from time to time by heavy floods and freshets," and the reference is to what occurred in many years. This is far from a statement that at any particular time there was such a sudden, vio- lent, and visible change as to justify a departure from the ordinary rule which governs accretion and diminution, albeit the stream suffer wide fluctuations in volume, the current be swift, and the banks afford slight resistance to encroachment. * * * CHAPTER XXIX. ESTOPPEL. VAN RENSSELAER v. KEARNEY et al. II Howard U. S. 297; 13 L. Bd. 703. (1850) Mr. Justice Nelson delivered the opinion of the court. * * * John Van Rensselaer, being seized in fee of a large tract of land in the county of Columbia, State of New York, made and published his last will and testament on the 25th of May, 1782, by which he devised the same to John J. Van Rensselaer, "his grandson, for and during his natural life ; and from and after his decease, to the first son of the body of the said John J. lawfully begotten, and to the heirs male of his body; and, in default of such issue, then to the sec- ond, third, and every other son of the said John J., successively, and, in remainder, the one after the other, as they shall be in seniority of birth, and the several and respective heirs male of the first, second, third, and other son or sons ; the eldest of such sons, and the heirs male of his body, being always preferred. The testator died in 1783, leaving John J., the grandson, surviving, who entered into the possession and enjoyment of the estate. John J. had five children, John, the first-born, whose birth was in 1791, Jere- miah, the present complainant, Cornelius, and Glen, and a daughter, Catherine G. By an act of the legislature of the State of New York, passed 23d of February, 1786, it was enacted as follows : "That all estates tail shall be, and hereby are, abolished; and that, in all cases where any person or persons now is, or, if the act hereinafter mentioned and repealed (referring to an act passed 12th July, 1782) had not been passed, would now be, seized in fee tail of any lands, tenements, or hereditaments, such person and persons shall be deemed to be seized of the same in fee simple absolute; and further, that, in all cases where any person "or persons would, if the said act and this present act hid not been passed, at any time hereafter become seized in fee tail of any lands, tenejnents, or hereditaments, by virtue of any devise, 893 894 Cases on Real Property gift, grant, or other conveyance heretofore made, or hereafter to be made, or by any other means whatsoever, such person or persons, in- stead of becoming seized thereof in fee tail, shall be deemed and adjudged to become seized thereof in fee simple absolute." 3 Rev. Stat. N. Y., 1st ed., App. 48; i Rev. Laws, 1813, p. 52. As we have already stated, John, the first-born son of John J., the grandson, was born in 1791, and he died without issue in 1813, while the life estate was running, his father having survived until 1828. On the birth of John, the first-born, his remainder as the first ten- ant in fee tail, which was before contingent, became vested in interest, and he w'as thereafter seized of an estate tail in remainder, the vesting in possession being dependent upon the termination of the life estate. The interest in the estate in remainder in which they vested im- mediately on his birth carried with it a fixed right of future enjoy- ment in possession, the instant the life estate terminated. The question up>on this branch of the case is, whether or not the estate in fee tail in remainder thus acquired under the will of John Van Rensselaer was converted into a fee simple absolute in John, the first-born son of John J., by the operation of the act of 1786, abolish- ing entails. The act provides that if any person shall thereafter "become seized in fee tail of any lands, tenements, or hereditaments, by virtue of any devise," &c., he shall be deemed to have become seized in fee simple absolute. * * * This being regarded as the true construction of the act of 1786, it follows that John, the first-born son of John J., took an estate in fee simple absolute in remainder in the premises ; and that on his death, in 1813, it descended, according to the law of New York, to his father, the life tenant; and the two estates being thus united in him, he became vested with the whole estate in fee simple absolute. The complainant, therefore, has failed to make out any estate in the premises under the will of John Van Rensselaer. And can claim title only through his father, John J., as one of the heirs of his estate. The tract of lahd in question embraces between thirty-three and thirty-four thousand acres, and on the ist of January, 1795, John J., the life tenant, sold and conveyed the same in fee to Daniel Penfield, for the consideration of $44,550. It is more than probable it was the opinion of the profession in. New York, at the date of this conveyance, that John J., the grandson, took an estate in fee tail under the will of his grandfather, within the rule in Shelley's cj^se, which the act of 1786 had turned into a fee Estoppel 895 simple absolute ; and that the purchase was made under the belief that he was competent to convey the fee. It is admitted, however, that this construction, which may have been given at the time, was a mistaken one ; and that he took only an estate for life, which terminated on his death, the 26th of September, 1828. At that time, we have seen, he was seized of the whole estate in fee in consequence of the death of his eldest son, the first-born tenant in fee tail in 181 3, and which descended to his four children, three sons and a daughter, as tenants in common, of whom the complainant is one, unless they are estopped from setting up the title by the deed of the 1st of January, 1795, to Penfield, under whom the defendants hold. * * * But independently of this view, and of any covenants of title, in the technical sense of the term, in the deed of ist January, 1705, we are of opinion that the complainant is estopped from denying that John J. Van Rensselaer, the grantor, was seized of an estate in fee simple at the date of that deed, the grounds of which opinion we will now proceed to state. The general principle is admitted, that a grantor, conveying by deed of bargain and sale, by way of release or quitclaim of all his right and title to a tract of land, if made in good faith, and without any fraud- ulent representations, is not responsible for the goodness of the title beyond the covenants in his deed. (7 How. 159; 2 Sugden on Vend- ors, ch. 12, 2, p. 421; 2 Kent's Comm. 473; 4 lb. 471, note; i Cow. 616; 9 Cow. i; 4 Wend. 622; 7 Conn. 256; 11 Wend, no; S. C. 13 Wend. 78; 12 Pick. 78; i Rev. Stat. N. Y. 739, 143, 145; 15 Pick. 23; 14 Johns. 193. A deed of this character purports to convey, and is understood to convey, nothing more than the interest or estate of which the grantor is seized or possessed at the time ; and does not operate to pass or bind an interest not then in existence. The bargain between the parties proceeds upon this view; and the consideration is regulated in con- formity with it. If otherwise, and the vendee has contracted for a particular estate, or for an estate in fee, he must take the precaution to secure himself by the proper covenants of title. But this principle- is applicable to a deed of bargain and sale by release or quitclaim, in the strict and proper sense of that species of conveyance. And therefore, if the deed bears on its face evidence that the grantors intended to convey, and the grantee expected to become invested with, an estate of a particular description or quality, and that the bargain had proceeded upon that footing between the parties, then. 896 Cases on Reai, Property although it may not contain any covenants of title in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upon the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted; at least, so far as to estop them from ever afterwards denying that he was seized of the particular estate at the time of the conveyance. The authorities are very full on this subject. Goodtitle v. Bailey, Cowp. 661; Bensley v. Burdon, 2 Sim. & Stu. 524 ;-S. C, 5 Russell, 330; 2 Barn. & Ad. 278, where this case is referred to; Doe ex dem. Marchant v. Ewington, 8 Scott, 210; Rees v. Lloyd, Wightwick, 129; Bowman v. Taylor, 2 Ad. & Ellis, 278; Lainson v. Tremere, i lb. 792; Stone V. Wise, 7 Conn. 214; Penrose v. GriflEth, 5 Binney, 231 ; Denn v. Cornell, 3 Johns. Cas. 174; 8 Cow. 586; Carver v. Jackson ex dem. Astor, 4 Peters, i ; 7 Greenl. 96; 4 Kent's Com. 271, note; i Smith's Leading Cases, p. 450, note to the Duchess of Kingston's case. In the case of Bensley v. Burdon, the party granting the estate re- cited that he was entitled to a remainder in fee, expectant upon the determination of the life estate of his father, in certain premises there- in described. In point of fact, he had no interest in the premises at the time; but became vested with an estate for life in a part of them some two years afterwards, under the will of his father, and soon after conveyed this interest to the defendant. The Vice-Chancellor held, that the grantor having averred in the deed that he was seized of a remainder in fee, expectant on the death of his father, he was estopped from setting up, that, at the time of the grant, he was not duly seized of the estate according to the averment ; that the estoppel run with the land, and bound not only the grantor, but all claiming under him; and that the defendant was, therefore, equally estopped from denying the title. There was an appeal in this case to the Lord Chancellor, and his decision is referred to as reported in 5 Russell, 330 ; but there is an error in the reference, and I have not been able to find it. But in Right ex dem. Jefferys v. Bucknell (2 Barn. & Ad. 281), Lord Tenterden refers to the case, and says that the judgment of the Vice-Chancellor was affirmed, and that the Chancellor put his decision on the ground, that the recital of the interest of the grantor in the premises was an averment of a particular fact, by which the defendant was concluded. And in the case of Doe ex dem. Marchant v. Ewington, which was an action of ejectment to recover possession of a set of chambers in ESTOPPEI, ' 897 Lincoln's Inn, it appeared that one Boileau, having been admitted *by the Benchers of the society, the owners of the fee, to the chambers for life, had granted the same to the lessor of the plaintiff in trust to secure an annuity, reciting in the deed that he was well entitled to an estate for life in the chambers. Afterwards Boileau, by an arrangement with the defendant, sur- rendered to him the possession of the chambers, who continued to occupy them at the time of the commencement of the suit, which was brought in consequence of the annuity being in arrear. By the regulations of society, it appeared that, in order to surrender possession, the person last admitted must present a petition to the Masters of the Bench for permission to surrender, first paying all his arrear of dues ; and the person who is to succeed must also present a petition to be admitted; and thereupon, if consent be given, then an order is entered that the person admitted may have leave to surrender, and the person who is to succeed may be admitted on paying the fine and fees. And that it is in the discretion of the masters, for the time being, to make such orders for the admission to or exclusion from chambers in the Inn as they may think fit. The lessor of the plaintiff sought to recover on the ground that Boileau was estopped from denying that he was seized of an estate for life in the chambers by the recital in his conveyance ; and that the defendant coming in under him was equally estopped. TiNDALi/, C. J., in giving judgment, observed, that the case had very properly been argued on the ground of estoppel; for if it were a queJstion of title, the lessor of the plaintiff would clearly be out of court. That he must claim under the estoppel created by the recital in the deed of conveyance. He admitted that Boileau w^s bound by the recital; and the defendant also, if in privity of estate; that, accord- ing to the old authorities, he must either come in the per or the post, that is, he must claim from, through, or under the party. That the defendant did not claim under Boileau, but under the trustees of the society of Lincoln's Inn, and therefore was not estopped from denying the title. CoLTMAN, J. observed, that, as between Boileau and the lessor of the plaintiff, the former might be estopped from denying that he had the estate he represented by his deed; but that, to enable the plaintiff to succeed, it was necessary for him to show that the defendant claimed through or under Boileau, so that the estoppel should affect him. In the case of Bowman v. Taylor, Lord Denman, C. J., observed, 898 Cases on Real Property that, "as to the doctrine laid down in Co. Litt. 352 b, that a recital doth not conclude, because it is no direct affirmation, the authority of Lord Coke is a very great one; but still, if a party has by his deed recited a specific fact, though introduced by a 'whereas,' it seems to me impossible to say that he shall not be bound by his own assertion so made under seal." And Taunton, J. remarked, in the same case, that the law of es- toppel is not so unjust or absurd as it has been too much the custom to represent. The principle is, that, where, a man has entered into a solemn engagement by deed under his hand and seal as to certain facts, he shall not be permitted to deny any matter which he has so asserted. In the case of Fairbanks v. Williamson, there was no covenant of title in the deed, which was in fee; but the grantor covenanted that neither himself, his heirs, or assigns, would ever make any claim to the premises. The court held that this operated as an estoppel, not only upon him, but upon all claiming under him, from setting up an after-acquired title to the land against the grantee or those in privity with him. In Jackson ex dem. Munroe v. Parkhurst et al., 9 Wend. 209, the recovery was placed altogether on the ground of estoppel, the defend- ant holding under the grantor of the deed in which the title was re- cited. And in Right ex dem. Jefferys v. Bucknell, where the recital in the deed was, that the grantor was legally or equitably entitled to an estate in fee in the premises, the court refused to bind the party coming in under him as a purchaser for a valuable consideration of the after-acquired title, solely on the ground that there was no certain and precise estate set forth in the recital. 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 seized or possessed of a par- ticular estate in the premises, and which estate the deed purports to convey; or, what is the same thing, if the seizin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as between parties and privies. The reason is, that the estate thus affirmed to be in the party at the ESTOPPEI, 899 time of ,the conveyance must necessarily have influenced the grantee in making the purchase, and hence the grantor and those in privity with him, in good faith and fair deaHng, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of everyone. And although it debars the truth in the par- ticular case, and therefore is not unfrequently characterized as odious, and not to be favored, still it should be remembered that it debars it only in the case where its utterance would convict the party of a pre- vious falsehood ; would be the denial of a previous affirmation upon the faith of which persons had dealt, and pledged their credit or ex- pended their money. It is a doctrine, therefore, when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when the conscience and honesty he should not be allowed to speak. Now, applying this doctrine to the case in hand, our next inquiry will be, whether or not John J. Van Rensselaer affirmed, in his deed of January i, 1795, to Penfield, that he was seized of an estate in fee in the premises, and whether the deed purports on its face to convey an estate of that description As to the question involved in the latter branch of the inquiry, we need only refer to the words of the grant to determine it. The deed is of all the right, title, and interest of the grantor in the tract of land to Penfield, his heirs and assigns forever, terms that would have passed an estate in fee, if John J. had been seized of it at the time of the conveyance. The most important question arises upon the other branch of the inquiry. Has the grantor affirmed on the face of the deed that he was seized of this particular estate in the premises at the time he made the grant? The argument on the part of the complainant is, that, although the granting words of the deed are broad and comprehensive,^ — such as, "have granted, bargained, sold, aliened, enfeoflfed, assured, released, and confirmed, and by these presents do grant, bargain, sell, alien, en- feoff, assure, release, and confirm unto the said Daniel Penfield," "and to' his heirs and assigns forever, all and singular the aforesaid tract of land," &c., "and also all leases of and concerning any part or parts of the said granted premises; and also all the estate, right, title, in- terest, property, possession, claim, and demand of them, the said 900 Cases on Reai, Property John J. Van Rensselaer and Catherine, his wife, in the same," — ^yet the grant is quahfied by the habendum clause, — "to have and to hold the said tract of land so described, and so butted and bounded as above recited, &c., unto the said Daniel Penfield, his heirs and assigns, to the only proper use and behoof of the said Da.niel Penfield, his heirs and assigns forever, in as full and ample a manner as the said John J. Van Rensselaer now hath and enjoyeth the same, and m as full and ample a manner as the same hath heretofore been had and enjoyed by the said John J. Van Rensselaer, or lawfully might, if these presents were not made, be had, used, occupied, or enjoyed by him, his heirs or assigns." This latter clause, it is supposed, restricts and qualifies the gen- eral words in the grant, and confines the effect and operation of the deed to the conveyance of such an estate as the grantor was seised and possessed of at the time; and, as this was an estate for life with re- mainder over, it operated, and was intended to operate, to convey only this estate. Were there nothing else in the case, there might be much difficulty in furnishing a satisfactory answer to this view, although no one, we think, can read the deed without being strongly impressed with the conviction, that both parties supposed they were dealing with the fee, and that the bargain was made upon that understanding. But, in order fully to comprehend and interpret this qualifying clause in the habendum, it is material to look into the nature and con- dition of the title at the time, and the mode of enjoying the estate, and also into the evidences of the title which were turned over to the purchaser at the execution of the contract, all of which appear in the deed and articles of agreement therein recited and referred to. As we have already said, in another branch of the case, a part of the tract had been previously conveyed in fee, and amongst others by the grantor himself, and which is excepted from the grant. Much the larger part was at the time in the occupation of tenants under leases in fee, or for the lives of the lessees, with rents reserved, made, amongst others, also by John J., which leases were transferred to Penfield as muniments of the title. The articles of agreement pro- vided for the transfer of these leases, and the deed itself in terms em- braces them in the granting clause. In the articles of agreement, also, Penfield is required to covenant that he will execute leases, according to the terms and conditions upon which they had been usually granted, of certain portions of the tract to several persons therein named; and which leases, as we have seen, Estoppel 901 according to the custom of granting, were to be made in fee, or for the lives of the lessees. The deed also contains the recital of a mort- gage in fee upon the estate, given by John J., the nth' August, 1791, to Schuyler, for securing the payment of $7,750, which Penfield was to discharge out of the purchase-money. Now all these instruments affecting the title, and showing the tenure and conditions by and under which the estate was held and enjoyed, are particularly referred to in the articles, and in the deed of convey- ance, and are thus virtually incorporated into the same; and were so for the purpose of describing with greater precision the nature and condition of the title, and of the rights and interests of the grantor in the tract conveyed. And looking at them, and at the right and title therein asserted and affirmed, and upon the faith of which the pur- chase was made and the deed taken, we shall be enabled to compre- hend and give proper application to the words in the habendum; namely, that the grantee, his heirs, and assigns, shall hold in as full and ample a manner as the same is possessed, occupied, and enjoyed by the grantor, or as might be possessed and enjoyed by him, his heirs and assigns, if these presents had not been made. Admit that the clause refers to the title and estate possessed by the grantor, as well as to the premises described, what title and estate? Manifestly that which is evidenced by the muniments of title before re'ferred to, and particularly identified and described in the granting clause of the deed, a title evidenced by leases in fee with rent reserved, made by John J. and his ancestors, and which passed to the grantee as securing the rents and profits issuing put of and belonging to the estate conveyed. These leases characterize the title to the tract sold, and aflford evi- dence that cannot be mistaken of the estate intended to be conveyed, and it was the enjoyment of this estate and interest in the premises, in the manner and way in which the grantor had used, occupied, and enjoyed the same, to which the habendum clause refers. This affords a full explanation of its object and meaning. The reference to these leases, and virtual incorporation of them^ into the deed, and transfer as muniments of the title, especially those made by John J. himself, together with the mortgage in fee to Schuyler which was to be raised out of the purchase-money and the covenants required of Penfield to grant similar leases to certain per- sons named, all clearly import, on the face of the instrument, an as- sertion, or affirmation on the part of the grantor that he was seized of a title that enabled him to make the leases and mortgage, and that 902 Cases on Real Property would also enable Penfield to grant similar leases, namely, leases in fee; and which brings the case directly within the principle of law already stated, -that estops him, and those coming in under him, from denying that he was so seized. The estoppel works upon the estate, and passes with it, and binds the title subsequently acquired by the 'death of his eldest son, the first-born tenant in tail. We are satisfied, therefore, after the fullest consideration of the case, that the decree of the court below is right, and should be affirmed. VEVE Y DIAZ V. SANCHEZ. 226 U. S. 234; 57 L. Bd. 201; jj Sup. Ct. 36. (1912) Mr. Justice Lamar delivered the opinion of the court. * * * Following the descriptive clause in the mortgage was a statement that Sanchez was the owner of the land. In addition to this recital, which, according to Van Rensselaer v. Kearney, 11 How. 322-326, 13 L. ed. 713-715, would be equivalent to a covenant of war- ranty and ownership, it was claimed that, under the laws of Porto Rico (P. R. Civ. Code, 1474), a warranty was implied in all convey- ances of real estate. Apparently, in accordance with this view, the judicial deed, made in pursuance of the foreclosure sale, contained a provision that "the debtor, Jose Avalo Sanchez, remains bound under the present sale to guarantee the title in accordance with law." These facts estopped Sanchez from denying that he had the right to dispose of all the property which the mortgage purported to convey. For, having received the money on the faith of the statement that he was the owner of the property, he was bound to repay that sum ; or, failing that, to perfect the title on which the money had been advanced. So that when he acquired what is now called Sauri, but which had been originally included in the land conveyed by the mortgage, the title inured to the benefit of his vendee. Aroonett v. Amis, 16 La. Ann. 225 ; Lee v. Ferguson, 5 La. Ann. 533 ; Stokes v. Shackleford, 12 La. 172; New Orleans v. Riddell, 113 La. 1051, 37 So. 966; Partida v. Tv. L. 51 ; lb. T. XIII, L. 50; Van Rensselaer v. Kearney, 11 How. 322- 326, 13 L. Ed. 713-715; Bush V. Person, 18 How. 85, 15 L. ed. 274; Moor^ y, Crawford, 130 U. S. 122, 32 L, ed. 878, 9 Sup. Ct. Rep. 447. Judgment f?y?rsed, EsT0PPEi< 903 RAUCH V. DECH. 116 Pa. St. 157; 2 Am. St. Rep. 598; p Atl. 180. (1887) * * * Gordon, J. This was a scire facias to revive the lien of a judgment obtained on a mortgage, and which lien had been dis- charged by a sale of the premises by a judicial sale on a previous mortgage. This sale seems to have been made by the sheriff "to C. A. Luckenbach, on the 15th of June, 1878; and subsequently, June i, 1882, the executors of Luckenbach, for a full consideration, conveyed the premises to James K. Rauch, the defendant in the present suit. The court below seemed to think that, because there had been a re- acquisition of the mortgaged property by the defendant, the lien of the discharged mortgage had been thereby revived; hence entered judgment on the demurrer for the plaintiff. This was a mistake ; a result such as this could only arise by way of estoppel. When a vendor or mortgagor either sells or mortgages land which he does not own, and afterwards obtains the title thereto, he will not be permitted to set up this after-acquired title to defeat his previous grant or mort- gage, for this would be to permit him to perpetrate a fraud on his grantee or creditor. But there is nothing of the kind in the case be- fore us; for it is not pretended that Rauch mortgaged to Dech land to which he had no title, or that he was guilty of any species of fraud whereby Dech was deceived. The plaintiff's lien was lost by force of legal process, and it is not even intiniated that Luckenbach's title was not taken clear of that lien. In the meantime, and before the date of the deed of the executors to the defendant, he had received his dis- charge in bankruptcy ; so that, at that time, he was not even the debtor of the plaintiff. It thus follows that, so far as Dech and his mortgage were concerned, Rauch, at the time of his purchase, occupied the po- sition of a stranger. To hold, therefore, that that purchase worked a revival of the extinguished debt and mortgage was a clear mistake, without the shadow of authority for its support. The judgment of the court below is now reversed, and it is ordered that judgment be entered on the demurrer for the defendant. DOE d. CHRISTMAS v. OLIVER, Supra, p. 357. 904 Cases on Real Property KIRK V. HAMII.TON. 102 U. S. 68; 26 L. Ed. 79. (1880) JVTr. Justice Harlan, after stating the case, delivered the opinion of the court. It appears from the first bill of exceptions that, upon the trial of the cause, the plaintifif, to maintain the issue joined, gave evi- dence to the jury tending to prove title in himself to the land in dis- pute, as well as his actual possession of the premises under that title; that he had fully discharged the indebtedness secured by the two deeds of trust executed, one to Lenox and Naylor, and the other to Clark and Smith; that Charles Stott, on the 14th of May, 1872, reconveyed to him all that portion of the premises which, on the 22d of March, 1856, he had conveyed to Stott; that he had never made nor author- ized any other conveyances than those just named. He also introduced a deed from Carrington, as the supposed trustee in the case of Moore & Co. V. Kirk, &c., at the same time, however, denying its validity, and avowing that it was introduced subject to his exceptions reserved, and to be thereafter presented, as to its sufficiency in law to prove title in the defendants or either of them. It was admitted by the court subject to those exceptions. The plaintiff further gave evidence to prove that defendants were in possession of the premises at the commencement of the action, and then rested. The bill of exceptions then shows that defendants, to sustain their defence, and to prove title out of the plaintiff, offered to read in evi- dence the record of the equity suit of Moore & Co. v. Kirk, &c. Plaintiff insisted that the record of that suit was insufficient in law to" maintain the issue on defendants' behalf, or to show title in them, and asked the court to inform the jury that it should not then be ad- mitted in evidence, except subject to his exceptions as to its sufficiency in law, to be thereafter presented to the court pending the further trial of the cause. The record was so admitted. The defendants, further to maintain their defence, and to prove title in themselves, offered to introduce testimony tending to prove that, at the time of the purchase of the premises at the sale made by Carrington, trustee, in the suit of Moore & Co. v. Kirk, &c., the only improvement thereon was a two-story four-room brick house, and that, about the year 1868, the defendants erected an extensive building on the property, at a cost of some $4,000; that when they began such building, and for some time thereafter, the plaintiff Kirk resided on the adjoining prem- Estoppel 905 ises; that during all that time he well knew of said improvements, made no objection thereto, and asserted no claim to the property, ex- cept the west three feet thereof, adjoining his ground, and which he claimed as an alley, and, even as to such portion, he subsequently in- formed the witness he was mistaken; and lastly, that the plaintiff, though residing in the city of Washington ever since about the year 1865, never, to defendants' knowledge, until the commencement of. this action, asserted any claim to the premises in dispute. At that stage of the trial the plaintiff interposed and asked the court to inform the jury that the testimony thus offered, in reference to defendants putting improvements on the premises, was inadmissible in law, and that such issue ought to be found for the plaintiff. The court ruled that the testimony was admissible, to which plaintiff ex- cepted. The defendants then gave the said testimony in evidence to the jury, who rendered a verdict against the plaintiff upon the issue set forth by the first bill of exceptions. The remaining bills of exceptions present, in different forms, the general question whether the sale by Carring^on, as trustee, on the 19th of April, 1864, was or was not, upon the face of the record of Moore & Co. v. Kirk, &c., a mere nullity. Its validity is assailed by the plaintiff on various grounds, the most important of which seem to be: I. That as Moore & Co., sued in their own behalf only, and not for the benefit of themselves and other creditors, the jurisdiction and power of the court was exhausted by the first sale (of lot No. 78), which raised an amount largely in excess of the claims for which Moore & Co., sued. 2. That the utmost which the court, upon the pleadings, ecould do, was to distribute such excess among the other' creditors of Kirk who should appear, in proper form, and establish their claims. 3. That the court was entirely without jurisdiction to make a second order of sale, and did not assume to exercise any such power. 4. That the second sale by Carrington, having been made without any previous order or direction of the court, its confirmation, and the deed subsequently made to Hamilton, were absolutely null and void. In the view we take of the case, it is unnecessary to pass upon these several objections. If it be assumed that the record of the suit of Moore & Co. v. Kirk, &c., was, of itself, insufficient in law to divest Kirk of title to the premises in dispute, or to invest Hamilton with title, the question still remains, whether the facts disclosed by the first bill of exceptions do not constitute a defence to the present action. After the confirmation of the sale of April 19, 1864, before any 9o6 Cases on Real Property deed, had been made, and while the cause was upon reference for a statement, as well of the trustee's accounts as for distribution of the fund realized by the sales, Kirk, it seems, appeared before the auditor, by an attorney, and made objection to the allowance of the simple- contract debts which had been proven against him in his absence. So far as the record discloses, no other objection to the proceedings was interposed by him. Undoubtedly he then knew, he must be conclu- sively presumed to have known, after he appeared before the auditor, all that had taken place in that suit during his absence from the Dis- trict, including the sale of the premises in dispute, which took place only a few months prior to his appearance before the auditor. If that sale was a nullity, the court, upon application by Kirk, after his appearance before the auditor, could have disregarded all that had been done subsequently to the first sale, discharged Hamilton's bond, returned the money he had paid, and, in addition, placed Kirk in the actual possession of the property. No such application was made. No such claim was asserted. No effort was made by him to prevent the execution of a deed to the purchaser at the second sale. , So far as the record shows, he seemed to have acquiesced in what had been done in his absence. In 1868, three years after his return to the city, and two years after Hamilton had secured a deed in pursuance of his purchase, he became aware that Hamilton was in actual possession of the premises, claiming and improving them as his property. He per- sonally knew of Hamilton's expenditures of money in their improve- ment, and remained silent as to any claim of his own. Indeed, his assertion while the improvements were being made, of claim to only three feet of ground next to the adjoining lot upon which he resided, was, in effect, a disclaimer that he had, or would assert, a claim to the remainder of the lots 7 and 9 which Hamilton had purchased at the sale in April, 1864. And his subsequent declaration that he was in error in claiming even that three feet of ground only added force to his former disclaimer of title in the premises. Hamilton was in possession under an apparent title acquired, as we must assume from the record, in entire good faith, by what he supposed to be a valid judicial sale, under the sanction of a court of general jurisdiction. The only serious question upon this branch of the case is whether, consistently with the authorities, the defence is available to Hamilton in this action of ejectment to recover the possession of the property. We are of opinion that the present case comes within the reasons upon which rest the established exceptions to the general rule that title to land cannot be extinguished or transferred by acts in pais or by oral Estoppel 907 declarations. "What I indace my neighbor to regard as true is the truth as between us, if he has been misled by my asseveration," be- came a settled rule of property at a very early period in courts of equity. The same principle is thus stated by Chancellor Kent in Wendell v. Van Rensselaer, i Johns. (N. Y.) Ch. 344: "There is no principle better established, in this court, nor one founded on more solid considerations of equity and public utility, than that which de- clares, 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 own claim, shall not afterwards 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." P. 354. While this doctrine originated in courts of equity, it has been ap- plied in cases arising in courts of law. In The King v. The Inhabitants of Butterton (6 Durnf. & E. 554), Mr. Justice Lawrence said : "I remember a case some years ago in which Lord Mansfield would not suffer a man to recover, even in ejectment, where he had stood by and seen the defendant* build on his land." In 2 Smith Lead. Cas., pp. 730-740 (7th Am. ed. with notes by Hare and Wallace), the authorities are carefully examined. It is there said that there has been an increasing disposition to apply the doctrine of equitable estoppel in courts of law. Again (pp. 733, 734) : "The question presented in these and other cases, which involve the operation of equitable estoppels on real estate, is both difficult and important. It is undoubtedly true that the title to land cannot be bound by an oral agreement, or passed by matter in pais, without an apparent violation of those provisions of the Statute of Frauds which require a writing when the realty is involved. But it is equally well settled that equity will not allow the statute to be used as a means of effecting the fraud which it was designed to prevent, and will withdraw every case not within its spirit from the rigor of its letter, if it be possible, to do so without violating the gen- eral policy of the act, and giving rise to the uncertainty which it was meant to obviate. It is well established that an estate in land may be virtually transferred from one man to another without a writing, by a verbal sale accompanied by actual possession, or by the failure of the owner to give notice of his title to the purchaser under circumstances where the omission operates as a fraud; and although the title does not pass under these circumstances, a conveyance will be decreed by 9o8 Cases on Reai, Property a court of equity. It would, therefore, seem too late to contend that the title to real estate cannot be passed by matter in pais, without dis- regarding the Statute of Frauds; and the only room for dispute is as to the forum in which relief must be sought. The remedy in such cases lay originally in an application to chancery, and no redress could be had in a merely legal tribunal, except under rare and exceptional circumstances. But the common law has been enlarged and enriched under the principles and maxims of equity, which are constantly ap- plied at the present day in this country, and even in England, for the relief of grantees, the protection of mortgagors, and the benefit of purchasers, by a wise adaptation of ancient forms to the more liberal spirit of modern times. The doctrino of equitable estoppel is, as its name indicates, chiefly, if not wholly, derived from courts of equity, and as these courts apply it to any species of property, there would seem no reason why its application should be restricted in courts of law. Protection against fraud is equally necessary, whatever may be the nature of the interest at stake; and there is nothing in the nature of real estate to exclude those wise and salutary principles, which are now adopted without scruple in both jurisdictions, in the case of personalty. And whatever may be the wisdom of the change, through which the law has encroached on the jurisdiction of chancery, it has now gone too far to be confined within any limits short of the whole field of jurisprudence. This view is maintained by the main current of decisions." This question in a different form was examined in Dickerson v. Colgrove, lOO U. S. 578. That was an action of ejectment, and the defence, based upon equitable estoppel, was adjudged to be sufficient. We there held that the 'action involved both the right of possession and the right of property, and that as the facts developed showed that the plaintiff was not in equity and conscience entitled to disturb the possession of the defendants, there was no reason why the latter might not, under the circumstances disclosed, rely upon the doctrine of equitable estoppel to protect their possession. Applying these principles to the case in hand, it is clear, upon the facts recited in the first bill of exceptions,' and which the jury found to have been established, that the plaintiff is estopped from disturbing the possession of the defendants. He knew, as we have seen, that the defendants claimed the property under a sale made in an equity suit to which he was an original party. The sale may have been a nullity, and it may be that he could have repudiated it as a valid transfer of his right of property. Instead of pursuing that course, he, with a Estoppel 909 knowledge of all the facts, appeared before the auditor and disputed the right of certain creditors to be paid out of the fund which had been raised by the sale of his property. He forbore to raise any question whatever as to the validity of the sale, and by his conduct indicated his purpose not to make any issue in reference to the pro- ceedings in the equity suit. Knowing that the defendants' claim to the premises rested upon that sale, he remained silent while the latter expended large sums in their improvement, and, in effect, disclaimed title in himself. He was silent when good faith required him to put the purchaser on guard. He should not now be heard to say that that is not true which his conduct unmistakably declared was true and upon the faith of which others acted. The evidence uf>on this point was properly admitted, and operated to defeat the action independently of the question whether the sale by Carrington, the trustee, and its confirmation by the court, was, itself, a valid, binding transfer of the title to the purchaser. What has been said renders it unnecessary to consider the questions of law presented in the remaining bills of exceptions. CHAPTER XXX. EMINENT DOMAIN. PUMPELLY V. GREEN BAY CO. 13 Wall. (U. S.) 166; 20 L. Bd. 557. (1871) Mr. Justice Miller delivered the opinion of the court. * * * The declaration states that, by reason of the dam, the water of the lake was so raised as to cause it to overflow all his land, and that the overflow remained continuously from the completion of the dam, in the year 1861, to the commencement of the suit in the year 1867, and the nature of the injuries set out in the declaration are such as show that it worked an almost complete destruction of the value of the land. The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation. It would be a very curious and unsatisfactory result, if in constru- ing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legis- lation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total de- struction without malcing any compensation, because, in the narrow- est sense of that word, it is not taken for the public use. Such a con- struction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practice of our ancestors. 910 Eminent Domain 911 In the case of Smnickson v. Johnson, the defendant had been au- thorized by an act of the legislature to shorten the navigation of Salem Creek by cutting a canal, and by building a dam across the stream. The canal was well built, but the dam caused the water to overflow the plaintiff's land, for which he brought suit. Although the State of New Jersey then had no such provision in her constitution as the one cited from Wisconsin, the Supreme Court held the statute to be no protection to the action for damages. Dayton, J., said "that this power to take private property reaches back of all constitutional pro- visions ; and it seems to have been a settled principle of universal law that the right to compensation is an incident to the exercise of that power ; that the one is inseparably connected with the other ; that they may be said to exist, not as separate and distinct principles, but as parts of one and the same principle." For this proposition he cites numerous authorities, but the case is mainly valuable here as showing that overflowing land by backing the water on it was considered as "taking" it within the meaning of the principle. In the case of Gardner v. Newburgh, Chancellor Kent granted an injunction to prevent the trustees of Newburg from diverting the water of a certain stream flowing over plaintiff's land from its usual course, because the act of the legislature which authorized it had made no provision for compensating the plaintiff for the injury thus done to his land. And he did this though there was no provision in the Constitution of New York such as we have mentioned, and though he recognized that the water was taken for a public use. After citing several continental jurists on this right of eminent domain, he says that while they admit that private property may be taken for public uses when public necessity or utility requires, they all lay it down as a clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified. And he adds that the prin- ciples and practice of the English government are equally explicit on this point. It will be seen in this case that it was the diversion of the water from the plaintiff's land, which was considered as taking private property for public use, but which, under the argument of the de- fendants' counsel, would, like overflowing the land, be called only a consequential injury. If these be correct statements of the limitations upon the exercise of the right of eminent domain, as the doctrine was understood before it had the benefit of constitutional sanction, by the construction now sought to be placed upon the Constitution it would become an instru- ment of oppression rather than protection to individual rights. 912 Cases on Real Property But there are numerous authorities to sustain the doctrine that a serious interruption to the common and necessary use of property may be, in the language of Mr. Angell, in his work on water-courses, equivalent to the taking of it, and that under the constitutional pro- visions it is not necessary that the land should be absolutely taken. And perhaps no State Court has given more frequent utterance to the doctrine that overflowing land by backing water on it from dams built below is within the constitutional provision, than that of Wisconsin. In numerous cases of this kind under the Mill and Mill-dam Act of that State this question has arisen, and the right of the mill-owner to flow back the water has been repeatedly placed on the ground that it was a taking of private property for public use. It is true that the court has often expressed its doubt whether the use under that act was a public one, within the meaning of the Constitution, but it has never been doubted in any of those cases that it was such a taking as required compensation under the Constitution. As it is the con- stitution of that State that we are called on to construe, these de- cisions of her Supreme Court, that overflowing land by m.eans of a dam across a stream is taking private property, within the meaning of that instrument, are of special weight if not conclusive on us. And in several of these cases the dams were across navigable streams. * * * PEABODY v. UNITED STATES. 231 U. S. 530; 38 L. Bd. 351; 34 Sup. Ct. 159. (1913) Mr. Justice Hughes delivered the opinion of the court. This is an appeal from a judgment of the court of claims, dis- missing petitions for compensation for land alleged to have been taken by the United States for public use. 46 Ct. CI. 39. Separate suits were brought by Samuel Ellery Jennison, the owner, at the time the taking is said to have occurred, by his mortgagees, Mary R. Pea- body and the Saco & Biddeford Savings Institution, and by his grantee, the Portsmouth Harbor, Land, & Hotel Company. These suits were consolidated and the merits were heard. The following facts are shown by the findings : The land in question, comprising about 200 acres, forms the southern corner of Gerrish island, the southernmost point on the coast of Maine. It lies about 3 miles from Portsmouth, bordering on Eminent Domain 913 the south and east the Atlantic ocean, and on the west the entrance to Portsmouth harbor. Its value consists almost entirely in its adapt- ability for use as a summer resort, and it had been improved for this purpose by the erection of a hotel, cottages, outbuildings, and pier, by the construction of roads, and by the provision of facilities for sum- mer recreations. In 1873, long before Jennison acquired title and improved the prop- erty, the United States began the construction of a twelve-gun battery upon a tract of 70 acres lying north and west of the land in suit and abutting upon it. This battery was to be one of the outer line of defenses of Portsmouth harbor, for which appropriation had been made by the act of February 21, 1873, 17 Stat, at L. 468, chap. 175. See also act of April 3, 1874, 18 Stat, at L. 25, chap. 74. By the year 1876, a large sum had been expended upon the work, which had reached an advanced stage of construction. Operations were closed in September of that year, however, for want of funds, and the fortifica- tion was not occupied by the United States thereafter until work was resumed in 1898. The government then constructed on the same site a battery consisting of three lo-inch guns and two 3-inch rapid fire guns. It was practically completed on June 30, 1901, and was trans- ferred to the artillery on December 16, 1901, being named Fort Foster. No part of the fort encroaches upon the land in suit; the fort is within 200 feet of its northwestern corner and about 1,000 feet from the hotel. The claimants' land lies between the fort and the open sea to the south and southeast ; and the guns have a range of fire over all the sea front of the property. As the government reservation on its western side borders the entrance to the harbor, the court found that there was an available portion of the shore belonging to the reserva- tion which permitted the firing of the guns in a southwesterly direc- tion "for practice and for all other necessary purposes in time of peace" without the projectiles passing over the land in question. This conclusion was reached by applying the local law governing the bound- ary lines of contiguous proprietors where there is a curvature of the shore. Emerson v. Taylor, 9 Me. 42, 23 Am. Dec. 531. It may be noticed here that the petitioners insist that the guns could not be fired over the narrow area thus found to be a part of the reservation with- out endangering life and property along the New Hampshire coast, and they present in their brief a map to support their assertion. The government urges that this map has not been identified and is wholly incompetent ; and that, a§ the question is one of fact, the finding must be deemed conclusive. But while thus finding that there was a line 914 Cases on Real Property of fire available to the government over its own shore property, the court also found that the most suitable field of fire for practice and other purposes in time of peace would be over the claimants' land. On or about June 22, 1902, two of the guns were fired for the pur- pose of testing them at a target off the coast, the missiles passing over the land in suit; and another gun was fired for the same purpose and to the same effect on September 25, 1902, the resulting damage to buildings and property amounting to $150. None of the guns has been fired since, but they have been kept in good condition by a detail from Fort Constitution, which is situated across ' the Piscataqua River. The court below further states- in its findings that ''it does not appear from the evidence that there is any intention on the part of the government to fire any of its guns now installed, or which may hereafter be installed, at said fort in time of peace over and across the lands of the claimants so as to deprive them of the use of the same or any part thereof, or to injure the same by concussion or otherwise, excepting as such intention can be drawn from the fact that the guns now installed in said fort are so fixed as to make it possible so to do, and the further fact that they were so fired upon the occasions as hereinbefore found." In the year 1903 and 1904, the hotel, which had previously been profitable, was conducted at a loss ; since 1904, it has been closed and the cottages have been rented only in part and at reduced rates. It is found that the erection of the fort and the installation of the guns have materially impaired the value of the property, and that this im- pairment will continue so long as the fort and artillery are maintained. This is found to be due to the apprehension that the guns will be fired over the property. The question is whether, upon this showing, the petitioners were entitled to recover. It may be assumed that if the governpent had installed its battery, not simply as a means of defense in war, but "with the purpose and eiifect of subordinating the strip of land between the battery and the sea to the right and privilege of the government to fire projectiles di- rectly across it, for the purpose of practice or otherwise, whenever it saw fit, in time of peace, with the result of depriving the owner of its profitable use, the imposition of such a servitude would constitute an appropriation of property for which compensation should be made. The subjection of the land to the burden of governmental use in this manner might well be considered to be a "taking" within the principle of the decisions (Pumpelly v. Green Bay & M. Canal Co., 13 Wall. Eminent Domain 9^5 i66, 177, 178, 20 L. ed. 557, 560; United States v. Lynah, 188 U. S. 445, 469, 47 L. ed. 539, 548, 23 Sup. Ct. Rep. 349; United States v. Welch, 217 U. S. 333, 339> 54 L- ed. 787, 789, 28 L. R. A. (N. S.) 385, 30 Sup. Ct. Rep. 527, 19 Ann. Cas. 680.), and not merely a con- sequential damage incident to a public undertaking, which must be borne without any right to compensation (Northern Transp. Co. v. Chicago, 99 U. S. 635, 642, 25 L. ed. 336, 338 ; Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578; Scranton v. Wheeler, 179 U. S. 141, 164, 45 L. ed. 126, 137, 21 Sup. Ct. Rep. 48; Bedford v. United States, 192 U. S. 217, 224, 48 L. ed. 4T4, 417, 24 Sup. Ct. Rep. 238; Jackson v. United States, 230 U. S. i, 23, 57 L. ed. 1363, 1374, 33 Sup. Ct. Rep. ion). But, in this view, the question remains whether it satisfactorily ap- pears that the servitude has been imposed; that is, whether enough is shown to establish an intention on the part of the government to im- pose it. The suit must rest upon contract, as the government- has not consented to be sued for torts, even though committed by its ofScers in the discharge of their official duties. (Gibbons v. United States, 8 Wall 269, 275, 19 L. ed. 453, 454; Langford v. United States, loi U. S. 341, 343, 25 L. ed. loio, ion ; Schillinger v. United States, 155 U. S. 163, 169, 39 L. ed. 108, no, 15 Sup. Ct. Rep. 85; Russell v. United States, 182 U. S. 516, 530, 45 L. ed. 1210, 1215, 21 Sup. Ct. Rep. 899 ; Harley v. United States, 198 U. S. 229, 234, 49 L. ed. 1029, 1030, 25 Sup. Ct. Rep. 634) ; and a contract to pay, in the present case, cannot be implied unless there has been an actual appropriation of property (United States v. Great Falls Mfg. Co., 112 U. S. 645, 656, 657, 28 L. ed. 846, 850, 5 Sup. Ct. Rep. .306). Tlie contention of the petitioners, therefore, is plainly without merit so far as it rests upon the mere fact that there is a suitable, or the most suitable, field of fire over their property. Land, or an interest in land, cannot be deemed to be taken by the government merely because it is suitable to be used in connection with an adjoining tract which the government has acquired or because of a depreciation in its value, due to the apprehension of such use. The mere location of a battery cer- tainly is not an appropriation of the property within the range of its guns. The petitioners' argument assumes that the guns, for proper practice, must be fired over the land in suit, and hence, that this burden ypon it was a necessary incident to the maintenance of the fort. The fact of the necessity of practice firing is said to be established by the finding with respect to the line of fire over the government's portion of the 9i6 Cases on Real Property shore, in which it is said that this would be sufficient "for purposes of practice and for all other necessary purposes in time of peace." But. in the light of other findings, this is far from affording a sufficient foundation for the conclusion upon which the petitioners insist. On the contrary, that no such necessity as is now asserted can be assumed from the mere fact that the fort is maintained is demonstrated by the facts of this case. This suit was tried in the latter part of the year 1910, and it appeared that none of the guns had been fired for over eight years. When the suit was brought in 1905, nearly two years and a half had elapsed since the firing of a shot. The guns have been fired only upon two occasions, or three times in all, and this firing took place in 1902, shortly after the installation of the guns, for the pur- pose of testing them. It may be that practice in firing the guns would be highly desirable, but it is too much to say upon this record that the fort would be useless without it. Nor are we at liberty to conclude that the government has taken property, which it denies that it has taken, by assuming a military necessity in the case of this fort which is absolutely contradicted by the facts proved. Reduced to the last analysis, the claim of the petitioners rests upon the fact that the guns were fired upon two occasions in 1902, as stated, and upon the apprehension that the firing will be repeated. That there is any intention to repeat it does not appear, but rather is negatived. There is no showing that the guns will ever be fired unless in neces- sary defense in time of war. We deem the facts found to be too slender a basis for a decision that the property of the claimants has been actually appropriated, and that the government has thus impliedly agreed to pay for it. BRAGG V. WEAVER. 2$i U. S. 57; 40 Sup. Ct. 63. (1919) Mr. Justice Van Devanter delivered the opinion of the Court. By this suit the owner of land adjoining a public road in Virginia seeks an injunction against the taking of earth from his land to be used in repairing the road. The taking is from the most convenient and nearest place, where it will be attended by the least expense, and has the express sanction of a statute of the state (Pollard's Code 1904, section 944a, clauses 21 and 22.) Whether the statute denies to the Emini;iJt Domain 917 owner the due process of law guaranteed by the Fourteenth Amend- ment is the federal question in the case. It was duly presented in the state court and, while no opinion was delivered, the record makes it plain that by the judgment rendered the court resolved the question in favor of the validity of the statute. It is conceded that the taking is under the direction of public officers and is for a public use ; also that adequate provision is made for the paymeiit of such compensation as may be awarded. Hence no dis- cussion of these matters is required. The objection urged against the statute is that it makes no provision for affording the owner an op- portunity to be heard respecting the necessity or expediency of the taking or the compensation to be paid. (i) Where the intended use is public, the necessity and expedi- ency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amend- ment. Boom Co. V. Patterson, 98 U. S. 403, 406, 25 L,. Ed. 206; Backus V. Fort Street Union Depot Co., 169 U. S. 557, 568, 18 Sup. Ct. 445, 42 L. Ed. 853 ; Adirondack Ry. Co. v. New York, 176 U. S. 335, 349, 20 Sup. Ct. 460, 44 L. Ed. 492 ; Sears v. City of Akron, 246 U. S. 242, 251, 38 Sup. Ct. 245, 62 L. Ed. 688. (2) But it is essential to due process that the mode of determining the compensation be such as to afford the owner an opportunity to be heard. Among several admissible modes is that of causing the amount to be assessed by viewers, subject to an appeal to a court carrying with it a right to have the matter determined upon a full trial. United States V. Jones, 109 U. S. 513, 519, 3 Sup. Ct. 346, 27 L. Ed. 1015; Backus V. Fort Street Union Depot Co., supra, 169 U. S. p. 569, 18 Sup. Ct. 445, 42 L. Ed. 853. And where this mode is adopted due process does not require that a hea;ring before the viewers be afforded, but is satisfied by the full hearing that may be obtained by exercising the right to appeal. Lent v. Tillson, 140 U. S. 316, 326, et seq. 11 Sup. Ct. 825, 35 L. Ed. 419; Winona & St. Peter Land Co. v. Min- nesota, 159 U. S. 526, 537, 16 Sup. Ct. 83, 40 L. Ed. 247; Wells Fargo & Co. v. Nevada, 248 U. S. 165, 168, 39 Sup. Ct. 62, 63 L. Ed. 190. And see Capital Traction Co. v. Hof, 174 U. S. i, 18-30, 45, 19 Sup. Ct. 580, 43 L. Ed. 873. (3.4) With these principles in mind we turn to the statute in question. By clause 21 it authorizes certain officers engaged in re- 9i8 Cases on Rh;ai, Property pairing public roads to take ea,rth for that purpose from adjacent lands, and by clause 22 it declares : "If the owner or tenant of any such land shall think himself injured thereby, and the superintendent of roads, or his deputy, can agree with such owner as to the amount of damage, they shall report the same to the board of supervisors, or, if they cannot agree, a justice, upon application to him, shall issue a warrant to three freeholders, re- quiring them to view the said land, and ascertain what is a just com- pensation to such owner or tenant for the damage to him by reason of anything done under the preceding section. The said freeholders, af- ter being sworn according to the provisions of section three of this act, shall accordingly ascertain such compensation and report the same to the board of supervisors. Said board may allow the full amount so agreed upon, or reported by said freeholders, or so much thereof as upon investigation they may deem reasonable, subject to such owner or tenant's right of appeal to the circuit court as in other cases.'' The same statute, in clause 5, deals with the compensation to be paid for lands taken for roadways, and in that connection provides that the proprietor or tenant, if dissatisfied with the amount allowed by the supervisors, "may of right appeal to the circuit court of said county, and the said court shall hear the matter de novo" and deter- mine' and certify the amount to be paid. And a general statute (section 838), which regulates the time and mode of taking appeals from decisions of the supervisors disallowing claims in whole or in part, provides that the claimant, if present when the decision is made, may appeal to the circuit court within thirty days thereafter, and if not present, shall be notified in writing by the clerk and may appeal within thirty days after service of the notice. Apart from what is implied by the decision under review, no con- struction of these statutory provisions by the state court of last resort has been brought to our attention ; so for the purposes of this case we must construe them. The task is not difficult. The words employed are direct and free from ambiguity, and the several provisions are in entirfe harmony. They show that, in the absence of an agreement, the compensation is to be assessed primarily by viewers, that their award is to be examined by the supervisors and approved or changed as to the latter may appear reasonable, and that from the decision of the supervisors an appeal lies as of right to the circuit court where the matter may be heard de novo. Thus, by exercising the right to appeal the owner may obtain a full hearing in a court of justice — one con- cededly possessing and exercising a general jurisdiction. An oppor- Eminent Domain 919 tunity to have such a hearing, before the compensation is finally de- termined, and when the right thereto can be effectively asserted and protected, satisfies the demand of due process. Under the statute the proceedings looking to an assessment may be initiated by the owner as well as by the road officers. Either may apply to a justice for the appointment of viewers. Thus the owner is free to act promptly and upon his own motion, if he chooses. But it is contended that where the road officers take the initiative—-^ as they do in many instances — the proceedings may be carried from inception to conclusion without any notice to the owner, and there- fore without his having an opportunity to take an appeal. We think the contention is not tenable. It takes into account some of the statu- tory provisions and rejects others equally important. It is true there is no express provision for notice at the inception or during the early stages of the proceedings ; and for present purposes it may be assumed that such a requirement is not even implied, although a different view might be admissible. See Paulsen v. Portland, 149 U. S. 30, 13 Sup. Ct. 750, 37 L. Ed. 637. But the provisions relating to the later stage — the decision by the supervisors — are not silent in respect of notice, but speak in terms easily understood. Clauses 5 and 22 taken together provide that the owner, if dissatisfied with the decision, shall have the right to appeal as in other cases. This presupposes that he will have some knowledge of the decision, and yet neither clause states how the knowledge is to be obtained, or when or how the right of appeal is to be exercised. All this is explained, however, when section 838 is ex- amined. It deals with these questions in a comprehensive way and evidently, is intended to be of general application. Of course, newly created rights of appeal of the same class fall within its operation un- less the Legislature provides otherwise. Here the Legislature has not provided otherwise, and so has indicated that it is content to have the general statute applied. As before stated, that statute provides that the clairhant, if not present when the supervisors' decision is made, shall ,be notified thereof in writing and shall have thirty days after such notice within which to appeal. If he be present when the decision is made, he is regarded as receiving notice at that time, and the thirty days for taking an appeal begins to run at once. It is apparent there- fore that special care is taken to afford him ample opportunity to ap- peal and thereby to obtain a full hearing in the circuit court. ( 5 ) The claim is made that this opportunity comes after the taking, and therefore is too late. But it is settled by the decisions of this court that where adequate provision is made for the certain payment 920 Cases on Real Property of the compensation without unreasonable delay the taking does not contravene due process of law in the sense of the Fourteenth Amend- ment merely because it precedes the ascertainment of what compensa- tion is just. Sweet v. Rechel, 159 U. S. 380, 402, 407, 16 Sup. Ct. 43, 40 L. Ed. 188 ; Backus v. Fort Street Union Depot Co., 169 U. S. S57, 568, 18 Sup. Ct. 445, 42 L. Ed. 853 ; Williams v. Parker, 188 U. S. 491, 23 Sup. Ct. 440, 47 L. Ed. 559; Crozi^r v. Krupp, 224 U. S. 290, 306, 32 Sup. Ct. 488, 56 L. Ed. 771. And see Branson v. Gee, 25 Or. 463, 36 Pac. 527, 24 L. R. A. 355. As before indicated, it is not questioned that such adequate provision for payment is made in this instance. Judgment affirmed. BOTHWELL et al. v. UNITED STATES. 254 U. S. 2^1; 41 Sup. Ct. 74. (1920) Suit by Albert J. Bothwell and another against the United States. From a judgment of the Court of Claims (54 Ct. CI. 203) for an in- sufficient amount, the claimants appeal. Affirmed. Mr. Justice McReynolds delivered the opinion of the Court. Appellants owned and utilized in their business of stock raising a large tract of land lying in Sweetwater Valley, Wyo. In June, 1909, much hay was stored upon the land and a thousand head of cattle; were there confined. Under the Reclamation Act of June 17, 1902 (32 Stat. 389, c. 1093, 7 Comp. St. 4706), the United States constructed the Pathfinder Dam. This arrested the flood waters and caused in- undation of appellant's lands. The hay was destroyed, and it became necessary to remove the animals and sell them at prices below their fair value. Proceedings to condemn the land were instituted by the appellee, in the United States Circuit Court for Wyoming before the overflow. It is said the right to enter was not acquired until thereafter. The value of the land was ascertained and paid, but the court denied ap- pellants' claim for the hay, and for loss consequent upon forced sale of the cattle and destruction of the business. No appeal was taken. The present suit was instituted to recover for the items so disallowed. The court below gave judgment for value of the hay only, and the cause is here upon claimants' appeal. Eminent Domain 921 Certainly appellants' position in respect of the items in question is no better than it would have been if no condemnation proceed- ings had been instituted. In the circumstances supposed there might have been a recovery "for what actually has been taken, upon the principle that the government by the very act of taking impliedly has promised to make compensation because the dictates of justice and the terms of the Fifth Amendment so require." United States v. Cress, 243 U. S. 316, 329, 37 Sup. Ct. 380, 385 (61 L. Ed. 746). But nothing could have been recovered for destruction of business or loss sustained through enforced sale of the cattle. There was no actual taking of these things by the United States, and consequently no basis for an implied promise to make compensation. We need not consider the effect of the judgment in the condemnation proceedings. * * * The judgment below is affirmed. CHAPTER XXXI. NOTICE, PRIORITY AND RECORDING. Section i. Equitable Doctrine of Priority. Section 2. Effect of Recording. Section 3. Sufficiency of Record. Section 4. Notice from Possession. SEC. 1. EQUITABLE DOCTEINE OF PEIOEITT. DUNCAN TOWNSITE CO. v. LANE. 245 U. S. 308; 62 L. Bd. sop; 38 Sup. Ct. pp. (ipi^) Mr. Justice Brandeis delivered the opinion of the Court. * * * The claim which the relator makes in this court rests wholly upon the fact that the relator was a bona fide purchaser for value. But the doctrine of bona fide purchaser for value applies only to purchasers of the legal estate. Hawley v. Diller, 178 U. S. 476, 484, 20 Sup. Ct. 986, 44 L. Ed. 1 157. It "is in no respect a rule of property, but a rule of inaction." Pomeroy, Equity Jurisprudence, 743. It is a shield by which the purchaser of a legal title may protect himself against the holder of an equity, not a sword by which the owner of an equity may overcome the holder of both the legal title and an equity. Boone v. Chiles, 10 Pet. 177, 210,. 9 L. Ed. 388. SAMPEYREAC AND STEWART v. THE UNITED STATES. 7 Pet. (U. S.) 222; 8 L. Ed. 665. (1833) Mr. Justice Thompson delivered the opinion of the court. This case comes up on appeal from the superior court in the ter- ritory of Arkansas. 922 Notice Priority and Recording 923 The decree of the court was founded upon proceedings instituted under an act of congress, entitled "an act for further extending the powers of the judges of the superior court of the territory of Ar- kansas, under the act of the 26th of May, 1824, and for other pur- poses," passed the 8th of May, 1830. Pamph. Laws, ch. 90. * * * Upon the proceedings on the bill of review instituted under this act, the court pronounced the following decree: "It is therefore adjudged, ordered and decreed that the former decree of this court, in favour of the defendant Bernardo Sampeyreac against the United States, for four hundred acres of land, pronounced and recorded at the December term of this court in the year 1827, be, and the same is hereby, re- versed, annulled and held for naught." From this decree the present appeal was taken. To a right understanding of the questions which have been made at the bar, it will be necessary briefly to state the proceedings which took place under the original bill. That bill or petition was filed on the 21st of November, 1827, under the provisions of the act of the 26th of May, 1824, (7 Laws U. S. 300), setting forth that the complainant, Bernardo Sampeyreac, on the 6th of October, 1789, he then being an inhabitant of Louisiana, presented a petition to the then governor of the province, asking a grant for a tract of land in full property, containing ten arpens in front, by the usual depth, on Strawberry river, &c. That afterwards, on the nth of October, 1789, the governor granted the petition. That at the time the grant was so made, an order of survey was issued to the surveyor general of the province. That by virtue of such grant and order of survey, the petitioner acquired a claim to the land; which claim is se- cured to him by the treaty between the United States and the French republic, of the 30th of April, 1803. The district attorney put in an answer, denying the several facts and allegations in the bill ; and alleging that grants could only be made, legally, to persons in existence and actually residing in Louisiana. That Sampeyreac, in whose name the bill is filed, is a fictitious person, never having had any actual existence; or, if such person ever had any existence, he was a foreigner, or is now dead, and made no transfer or assignment of the claim in his lifetime. That he has no legal repre- sentative in existence ; nor is there anyone now living who is authorized to file this bill, or prosecute this suit; and prayed that the bill might be dismissed. A witness by the name of Heberard was examined, and sworn to all the tnateri^l facts necessary to establish the claim ; and the court, there- 924 Cases on Real Property upon, ordered, adjudged and decreed that the said Bernardo Sampey- reac, recover of the United States the said four hundred arpens of land. The bill of review is founded upon the allegation that the original decree was obtained by fraud and surprise. That the original petition and order of survey, exhibited in the case, are forged. That Heberard and the other witnesses in the cause, committed the crime of perjury. That the order of survey was never signed by Mero, governor- of Louisiana, as the same purports to have been; and that this fact has come to the knowledge of the district attorney since the decree was entered. And the bill further charges that the said Sampeyreac is a fictitious person. At the October term, 1830, this bill was taken, pro confesso, against Sampeyreac ; at which term the appellant, Joseph Stewart, appeared in court, and prayed to be made a defendant, and have leave to file an answer to the bill. This was resisted by the district attorrley; but an order was made by the court permitting Stewart to be made a defend- ant, with leave to file an answer. To which the district, attorney ex- cepted. The answer of Stewart denies the frauds and forgeries alleged in the bill, but avers that if there was any fraud, corruption or forgery, he is ignorant of it; and that he was a bona fide purchaser of the claim for a valuable consideration from one John J. Bowie, who conveyed to him the claim of the said Bernardo Sampeyreac, by deed bearing date about the 22d of October, 1828. Upon the final hearing the court re- versed the original decree, as has been already stated. * * * 4. The next inquiry is, whether the appellant, Stewart, has acquired a right to the land, by reason of his standing in the character of a bona fide purchaser. The record contains an admission on the part of the United States, that he purchased the claims of John J. Bowie, by deed, for a valuable consideration, in good faith, some time in November or December, 1828. But this gave him no right to be let in as a party in the bill of review ; he was not a party to the original bill, nor could he connect himself with Sampeyreac, the only party to the bill, he being a fictitious person; and the interest of Stewart, whatever it might be, was acquired long after the original decree was entered. He was, therefore, a perfect stranger to that decree. The deed purporting to have been given by Sampeyreac to Bowie, is admitted to be a forgery. Bowie, of course, had no interest, legal or equitable, which he would convey to Stewart. But admitting Stewart to have been properly let in as a party in the bill of review, the only colourable equity which he Notice Priority and Recording ' 925 showed, was the certificate of entry given by the register of the land office, December 13th, 1828; and this certificate, founded on a decree in favour of Sampeyreac, a fictitious person, obtained by fraud, and upon forged evidence of title. This certificate is entirely, unavailable to Stewart. He can obtain no patent under it if the original decree should remain unreversed; for the act of 1830 forbids any patent thereafter to be issued, except in the name of the original party to the decree; and on proof to the satisfaction of the officers, that the party applying is such original party, or is duly authorized by such original party or his heirs to receive such patent. The original party to the decree being a fictitious person, no title would pass under the patent, if issued. It would still remain in the- United States. But Stewart ac- quired no right whatever under the deed from Bowie, the latter having no interest, that he could convey. In the case of Polk's Lessee v. Wen- dall, 5 Wheat. 308, it is said by this court, that on general principles, it is incontestable that a grantee can convey no more than he^possesses. Hence, those who come in under the holder of a void grant, can acquire nothing. Upon the whole, we think Stewart was improperly admitted to be- come a party; but considering him a proper party, he has shown no ground upon which he can sustain a right to the land in question. The decree of the court below is accordingly affirmed. with costs. SEC. 2. EFFECT OF BECOKDING. WARNOCK v. HARLOW. p6 Cal. 298; 31 Am. St. Rep. zog; 31 Pac. 166. (1892) Ha'ynES, C. On May 4, 1881, W. W. Brison was the owner of the lands described in the complaint, and on that day conveyed the same to his wife, Carrie M. Brison. On September 15, 1886, W. W. Brison commenced an action against his wife, the object of which was to ob- tain a decree declaring that she held the title to said lands in trust for himself, and to compel a reconveyance, and at the same time filed a lis pendens in the recorder's office. On November 22, 1888, a decree was entered in said cause, requiring Mrs. Brison to execute such conveyance within ten days, and in default thereof, directing the clerk of the court to execute such deed in her name, and such deed was niade and delivered by the clerk on Decem- ber 5, i888j and recorded on the same day. 926 ■ Cases on Rdal Property On November 29, 1888, after the entry of said decree, and before the execution of the deed by the clerk, W. W. Brison conveyed the land mentioned to the defendant Catlin, one of the respondents hei'ein. On September 15, 1886, some four or five hours before the suit of Brison v. Brison was commenced, and before the lis pendens was filed, Mrs. Brrson conveyed the same land to appellant, W. P. Harlow, but which deed was not recorded until August 15, 1887. The plaintiff in this action, W. E. Warnock, was the lessee of the same land from Mrs. Brison from October i, 1885, for one year, and again for a second year, ending October i, 1887, and paid the rent to her. From October i, 1887, up to October i, 1890, Warnock was tenant of the same land under a lease from Harlow, and for the first year paid the rent to Harlow. The rent for the second and third years is the subject of this controversy. The respondent, Catlin, after the said deed from W. W. Brison was executed to him, notified plaintiff thereof and demanded the rent; whereupon the plaintiff commenced this action against Harlow and Catlin, setting out the claim and source of title to each, that each of the defendants claimed to be entitled to the rent due from him, and paid the money into court, and required that they interplead^ and that the money be paid to whichever party the court should direct. Defendant Catlin answered, admitting the facts alleged in the com- plaint, denied that Harlow was entitled to receive the rents, and alleged that he, Catlin, was entitled thereto. Defendant Harlow, in his answer, among other allegations not necessary to be noticed at present, alleged that the title which he has, and had at the time he leased to the plaintifT,-was derived by him tmder a deed from said Carrie M. Brison, dated September 15, 1886, but which was executed and delivered to him before the action of Brison v. Brison was commenced, and before the filing of the lis pendens, "and that at the time of the commencement of said action of Brison v. Bri- son, and at the time of the filing and recording of the said notice of the pendency of the action, he was the owner, in the possession, and entitled to the possession, of said land." The cause was tried by the court, and findings and judgment passed in favor of defendant Catlin, and defendant Harlow appealed upon the judgment roll. * * * It is obvious, however, that the decisive point in the case lies beyond the question above considered, and must first be determined. The deed made in 1881 by W. W. Brison to his wife undoubtedly vested in her the legal title to the land; and as between those parties, NoTicB Priority and Recording 927 the judgment finally rendered in the case of Brison v. Brison, Novem- ber 22, 1888, is conclusive of the fact that said deed, though purporting to convey an unqualified ownership and title, vested in Mrs. Brison the title, in trust for her husband. It is contended by respondent Catlin that Harlow, the grantee of Mrs. Brison, though the deed under which he claims was executed and delivered to him before suit was commenced against her, and before the notice of the pendency of the action was filed, is, nevertheless, bound by that judgment, for the reason that his deed was not recorded until after the lis pendens was filed and recorded; in other words, that the holder of a prior unrecorded deed is to be regarded as a purchaser pendente lite, and therefore bound by the judgment. This question as thus presented is res nova in this state, and a full discussion of it would involve an examination of several provisions of the statutes and the construction heretofore given to each. Certainly, this contention of counsel for respondent cannot be sus- tained upon any reasonable construction of section 409 of the Code of Civil Procedure, which provides for filing^and recording a notice of the pendency of the action in the cases there mentioned. That section provides : "From the time of filing such notice for record only shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action, and only of its pendency against parties designated by their real names." The mere pendency of a suit does not, as at common law, charge the subsequent purchaser. A notice of lis pendens must appear of record : Head v. Fordyce, 17 Cal. 149. This statute does not give new rights to the plaintiflf, but limits rights which he had before, by requiring for the purpose of gfiving constructive notice, not only a suit, but the filing of a notice of it : Richardson v. White, 18 Cal. 102. If, therefore, the filing of the lis pendens is the only constructive notice which, can be given of the pendency of the suit, it is clear that the operation of the lis pendens as constructive notice cannot be made to depend upon the fact that the deed of a prior purchaser remained unrecorded, for that would be to import into the statute a term or condition not named in it. Several cases are cited by counsel for respondent Catlin from the reports of other states in support of their contention, and among them the case of Hoyt v. Jones, 31 Wis. 389, which seems to have been de- cided under a lis pendens statute essentially the same as ours. While this case supports respondent's contention, I cannot approve the con- clusion reached by the court, nor the reasoning upon which it is based, — reasoning which would be much more cogent if addressed to 928 Cases on Rh;ai< Property the question as to what the law should be. It is a significant fact, how- ever, that after the decision of Hoyt v. Jones, 31 Wis. 389, the Wis- consin statute under which that case was decided was amended so as to provide in terms that a party holding an unrecorded deed should be deemed a purchaser pendente lite. The other cases cited by counsel for respondent upon this point were decided under statute essentially different from ours, and upon pro- visions directly relating to the effect of a failure to record deeds. These cases, so far as appears necessary, will be noticed in another connection. Respondent further contends that as against W. W- Brison (under whom respondent claims, and whose lis pendens was first recorded) the unrecorded deed from Mrs. Brison to appellant was void, and cites section 1217 of the Civil Code in support. This section is as follows: "An unrecorded instrument is valid as between the parties thereto and those who have notice thereof." This section, counsel say, is the same as though it said : "An unrecorded instrument is invalid except as between the parties thereto," etc. If it were clear that section 1217 of the Civil Code means what counsel claims, it would not be necessary to make the paraphrase. If, however, counsel are right in their con- struction. Smith V. Hodsdon, 78 Me. 180, Collingwood v. Brown, 106 N. C. 362, and Utley v. Fee, 33 Kan. 683, cited by them, are in point ; otherwise they are not. The Maine section is: "No conveyance * * * is effectual against any person except the grantor, his heirs and devisees, and persons having actual notice thereof, unless the deed is recorded," etc. In North Carolina a deed only becomes effective by filing for record. And in neither of these states is notice of the pen- dency of an action required to be filed or recorded, and the Kansas statute is the same as that of Maine. Our code provisions touching the recording of deeds must be construed together. At common law, re- cording was not necessary to the validity of the deed, or to make it effective against all subsequent conveyances ; and such is the law now, except so far as our recording acts have expressly, or by necessary im- plication, limited their effect and operation. The object of these re- cording acts is to give "constructive notice of the contents thereof to subsequent purchasers and mortgagees" (Civ. Code, sec. 1213), and to declare the effect of the failure to record a prior conveyance as against a subsequent purchaser or mortgagee of the same property whose conveyance is first recorded (Civ. Code, sec. 1214) ; and if that section stood alone, a subsequent grantee whose deed was first recorded would have taken the title, even though he had actual notice of the Notice Priority and Recording 929 prior unrecorded deed. To prevent this, or at least to place the matter beyond question, section 1217 of the Civil Code declared that "an unrecorded instrument is valid as between the parties thereto and those who have notice thereof." It will be seen that this section, at least as to the last clause is a necessary qualification of section 12 14, and must therefore be taken in connection with it; and it should also be noticed that the only persons as to whom the failure to record a deed makes it void are subsequent purchasers and mortgagees in good faith and for a valuable consideration, while the construction contended for by counsel would make it void as to all persons (except the parties and those who had notice), including heirs and devisees, and purchasers or grantees in bad faith and without consideration. Nor could the filing of the lis pendens, as contended by cotmsel, operate as a prior recording of a subsequent conveyance, so as to make the deed executed by the clerk to Brison relate back to the commence- ment of the action, as against the deed to Harlow, which was executed before the suit was begun, and recorded before the deed made by the clerk to Brison was executed ; for Brison was not a subsequent pur- chaser within the meaning of the statute. If he acquired title either under the decree or deed, it must have been upon other grounds. Nor was the lis pendens such an "instrument" as the statute contemplates. The word "conveyance," as used in sections 1213 and 1214 of the Civil Code, is defined by section 121 5, and the word "instrument," as used in the recording acts, was construed in Hoag v. Howard, 55 Cal. 564, where it was held to mean "some written paper or instrument signed and delivered by one person to another, transferring the title to or creating a lien on property, or giving a right to a debt or duty," and that it did not include a writ of attachment. It is further contended on behalf of respondent Catlin, that as Mrs. Brison held the land in trust, the beneficial estate being in her husband, that Harlow acquired no larger estate than she held, and that if he took any title under her conveyance, it was as trustee for W. W. Bri- son. Assuming that Mrs. Brison was a trustee for the benefit of her husband, that trust not appearing upon the deed which conveyed to her the legal title, it does not follow that her grantee did not take the property discharged of the trust: Civ. Code, sees. 856, 2243. It is assumed and asserted by counsel for respondent Catlin, that Harlow must aver and prove that he was a purchaser in good faith and for a valuable consideration, and that unless he does so, he is a mere volunteer; and in support of this proposition section 2243 of the Civil Code is cited. That section provides : "Every one to whom property 930 Cases on ReAi, Property is transferred in violation of a trust holds the same as an involuntary trustee under such trust, unless he purchased it in good faith and for a valuable consideration." If the appellant were bound by the judgment against his grantor in the case of Brison v. Brison, the burden would be upon him to show that he "purchased in good faith and paid a valuable consideration." But appellant was not a party to that proceeding, and is not bound by the judgment. As to him, it has not been adjudged that his grantor was a trustee. That judgment is conclusive only "between the parties and their successors in interest by title subsequent to the commence- ment of the action." Code Civ. Proc, sec. 1908, subd. 2 ; Hall v. Boyd, 60 Cal. 443. There is therefore no ground to justify the assertion that appellant was a volunteer, or not a purchaser in good faith, unless it appears that that question was litigated and adjudicated in this case, and that does not appear. The complaint of Warnock, the tenant, re- cites the ground upon which appellant and respondent Catlin respec- tively claimed to be entitled to the rents, and in this recital disclosed that appellant claimed under a deed from Mrs. Brison, but did not disclose or allege that it was made prior to the commencement of the action of Brison v. Brison, and as to respondent's claim, alleged that it was under a deed from Brison, executed after the judgment in his favor. There was no allegation in the complaint that appellant pur- chased with notice of the trust, or that he was not a purchaser in good faith and for a valuable consideration. Respondent Catlin filed his answer first, and admitted "the several averments of fact in said com- plaint contained," and made no other allegations of fact. He there- fore stood directly upon the judgment, and the deed made in pursuance of it, and the argument of his counsel is directed almost wholly to the proposition that appellant was bound by that judgment, notwithstand- ing the finding of the court that appellant's deed was made and deliv- ered before the commencement of the action, as alleged in his answer. As we have seen, appellant claimed under a prior deed, and that it was first recorded. The presumption was, that appellant acquired thereby the estate which his deed purported to convey, and he was in possession by his tenant. If the deeds of the respective parties were put in evidence, without anything more, appellant's title must have prevailed, and hence the burden was upon respondent to allege and prove some fact that would qualify or invalidate appellant's title. For this purpose respondent re- lied upon the plaintiff's averment of the judgment, erroneously suppos- ing that appellant was bound thereby; whilst appellant could safely Notice Priority and Recording 931 stand upon his deed, unaffected by the judgment against his grantor, until the good faith of his purchase should be attacked by averment and proof. Inasmuch as the findings expressly show that appellant's deed was acknowledged and delivered between ten and eleven o'clock, A. M., on September 15, 1886, and that the suit of Brison v. Brison was commenced and the lis pendens filed about four o'clock P. M., of the same day, and no fact being alleged or found which would inval- idate appellants deed, or show that he held the property in trust for respondent Catlin, the judgment is not sustained by the findings. If anything were needed to confirm the correctness of this conclusion, it will be found in the conclusion of law drawn by the court from the findings of fact, viz., "that the defendant Harlow is concluded herein by said decree in the action of Brison v. Brison." Some other questions have been made in the very able and exhaust- ive briefs of counsel for each party, but which, in view of the conclu- sion reached, it is not necessary to consider. I advise that the judgment be reversed, and a new trial ordered, with leave to the parties to amend their pleadings, if so advised. SHIRK v. THOMAS. 121 Indiana, 147; 16 Am. St. Rep. 381; 22 N. E. 976. (i88p) EmoTT, C. J. The facts pleaded by the appellants as their cause of action, shortly stated, are these: The ancestor of the appellants ac- quired title to the land in controversy by warranty deed from James H. Tyner, executed on the sixth day of December, 1884, and recorded on the eighteenth day of February, 1885, and James H. Tyner acquired title from Albert H. Tyner, then the owner of the land, by a warranty deed, executed on the first day of August, 1884, but not recorded until May of the following year. On the twenty-eighth day of October, 1884, William S. Thomas caused a writ of attachment to issue against Albert H. Tyner, alleging as a cause for the issuing of the writ that he was not a resident of this state. On the eighth day of January, 1885, judgment was rendered in favor of Thomas in the attachment proceed- ings, but neither the appellants nor their ancestor's grantor were par- ties to the proceedings, nor did they have any notice of them. On the seventh day of July, 1886, an order of sale was issued, and on the thirty-first day of th? sfime month, the land was sold under the order 932 Cases on Real Property to Thomas. James H. Tyner paid a valuable consideration for the land, and purchased it in good faith. The appellants went into pos- session under their deed, and were in possession at the time of the sale The deed executed by Albert H. Tyner to James H. Tyner, on the first day of August, 1884, was effectual to vest title in the grantee with- out recording. The registry of a deed adds nothing to its effectiveness as a conveyance ; all that it accomplishes is to impart notice : Way v. Lyon, 3 Blackf. 76 (79). The law upon this subject is thus stated in Kirkpatrick v. Caldwell, 32 Ind. 299: "It is only subsequent pur- chasers and encumbrancers in good faith, and for value who are pro- tected against an unrecorded mortgage. As against all the world besides, the registry imparts no virtue or force whatever to the instru- ment. As against the mortgagor and the estate while it remains in his hands, the lien is as perfect without registry as it is with it. It is so, also, against his general creditors while he lives, and after his death." Note: The rights of creditors holding a judgment are generally fixed by statute. SEC. 3. SUrFICIENC?Y OF SECOBD. PRINGLE v. DUNN. 57 Wis. 44PJ ip Am. Rep. 772. (1875) Action to foreclose a mortgage executed by the defendant to the L. Crosse & Milwaukee Railroad Company, bearing date April 11, 1854, and recorded on that day in the office of the registry of deeds. The plaintiff claimed as a bona fide purchaser for value before due. The Milwaukee & St. Paul Railway was made defendant, and in its answer denied that the mortgage was, at or before the recording there- of, witnessed so as to entitle it to record, and alleged that the record showed no subscribing witnesses' names thereon, and also that the said company had since in good faith purchased a portion of the premises covered by the mortgage without any actual knowledge of the plain- tiff's mortgage. The evidence was conflicting as to whether the mortgage was duly witnessed when recorded, but it was shown that the record did not show any such attestation. The court found that the mortgage was not v/itnessed until aftar the Notice Priority and Recording 933 record, and that the record was not constructive notice, and that the defendants were entitled to judgment, dismissing the complaint. The plaintiff appeals. Cole, J. (After considering the evidence as to whether the mort- gage was attested when left for record.) Assuming, then, that the mortgage was witnessed when it was left ,at the office of the register to be recorded, the further important inquiry arises as to what effect must be given to the record as constructive notice to subsequent bona fide purchasers for value. This record was in this State. The entry of the mortgage was made in the general index book, but the full record of the instrument had no subscribing witnesses. Arid therefore the question is. Would such a record operate as constructive notice to subsequent purchasers for value, independent of any actual notice ? It is claimed by the counsel for the plaintiff that the record does ind should so operate, notwithstanding the mistake in the registration or recording of the instrument in extenso. This presents a question of no little difficulty, which must be solved by the application of general prin- ciples of law to the provisions of our statute. It is a familiar rule, that an instrument must be properly executed and acknowledged so as to entitle it to record, in order to make the registry thereof operate as constructive notice to a subsequent purp chaser. Says Mr. Justice Story : "The doctrine as to the registration of deeds being constructive notice to all subsequent purchasers, is not to be understood of all deeds and conveyances which may be de facto registered, but of such only as are authorized and required by law to be registered, and are duly registered in compliance with law. If they are not authorized or required to be registered, or the registry itself is not in compliance with the law, the act of registration is treated as a mere nullity; and then the subsequent purchaser is affected only by such actual notice as would amount to a fraud." i Eq. Jur., 404. See also Ely V. Wilcox, 20 Wis. 528; Fallass v. Pierce, 30 id. 444.; Lessee of Heister v. Fortner, 2 Binn. 40; Shove v. Larsen, 22 Wis. 142, and cases cited on p. 146. Under our statute, among other requisites, two witnesses are essential to a conveyance, to entitle it to record. The statute requires every register to keep a general index, each page of which shall be divided into eight columns, with heads to the respective columns as prescribed; and the duty is imposed upon the register to make correct entries in said iridex of every instrument received by him for record, under the respective and appropriate heads, and immedi- ately to enter in the appropriate column, and in the order of time in iivhich it was received, the day and hotir of reception; and it is de^ 934 Casss on Real Property clared that the instrument "shall be considered as recorded at the time so noted." R. S., ch. 13, 142, 143. In Shove v. Lorsen, supra, the effect of this index containing correct entries of matters required to be made therein was considered. And it was held that by force of the statute it operated as constructive notice to a subsequent purchaser. In that case the index contained an accurate description of the land mortgaged, but in transcribing the mortgage at large upon the records, a mistake was made in the description. And it was claimed in behalf of the subsequent purchaser, that it was the registration of the instru- ment at large which alone amounted to the constructive notice. But this construction of the statute was not adopted, the court holding that a subsequent purchaser was bound to take notice of the entries in the index, which the law required the register to make. This result seemed to follow necessarily from the language of the statute, which declared that the instrument should be considered as recorded at the time noted. Time might elapse before the instrument was transcribed at large on the record, or it might be lost and not transcribed at all, leaving the index the only record of its contents. And the manifest intention of the statute seemed to be to make the index notice of all proper entries from its date, and also of the instrument itself till it was registered in full. The further consequence would seem necessarily to result from this view of the statute, that the registration of the conveyance in ex- tenso relates back to the registration in the index, and from thence there is constructive notice of the contents of the instrument. The doc- trine of Shove V. Lorsen was approved in Hay v. Hill, 24 Wis. 235 ; but the court refused to make the entry in the index in that case operate as constructive notice, because upon its very face it bore conclusive evidence that it was not made at its date. In other words, the recti- tude and integrity of the index were successfully impeached by the index itself. See also International Life Ins. Co. v. Scales, 27 Wisi 640. Where there is nothing upon the face of the index to impeach or throw suspicion upon its accuracy, there it would affect a subsequent purchaser with' notice of those facts which the law required to appear therein. Doubtless a still further consequence follows from this con- struction of the statute, namely, that where by some mistake there is a discrepancy between the proper index entries and the instruments as registered, there each supplies the defects of the other in the construc- tive notice thereby given. That' is, it appears to be the intention of the statute to charge the subsequent purchaser constructively with such knowledge as the proper index entries afford, as well as with notice of those facts derived from the registration itself He is prgsupied to Notice Priority and Recording 935 have examined the whole record, and is affected with notice of what it contains. But When the instrument, as registered in full, appears de- fective in some material and essential parts which are not supplied by the index entries, what effect then must be given the record as con- structive notice ? This is really the difficult question in this case. From ■ the entries in the index it would not appear whether the mortgage was witnessed or not. The presumption from the mere entries themselves would be, that it was witnessed and acknowledged so as to entitle it to record. But when the mortgage as Registered in full was examined, il would be found that it had no witnesses and had no business on the rec- ords. As the record itself is only constructive notice of its contents, it is difficult to perceive how it can go beyond the facts appearing upon it, and charge a purchaser constructively with knowledge of a fact not in the record. One of the counsel for the defendants states the, argument on this point as follows: He insists and claims that the entries in the index book, so far as they indicated that the mortgage had been filed for rec- ord, indicated also that the mortgage was so executed as to entitle these entries of it to be made; but that when the full record was looked at for all the particulars of the mortgage, and perhaps for the express purpose of verifying the entries in the index, it is found that the ap- parent assertion by the index entries that the mortgage- was properly executed was wholly untrue, and that the mortgage in fact was no in- cumbrance. The fact, as truly shown to exist by the full record, over- comes and destroys the false assertion as to the fact in the index. And it appearing by the instrument registered that it was not entitled to record, both the registration and index itself cease to affect the pur- chaser with constructive notice. It is not readily perceived wherein this argument as to the effect of our various provisions upon the subject of registration is unsoimd. ,The question mainly depends upon the construction of our own stat- utes. So far as we are aware, this is the first time the point has been presented in this court for adjudication. We have derived but little aid from the decisions in other States, for the reason that few of them have similar statutory provisions. We have been referred by the coun- sel for the plaintiff to two cases in Michigan, Brown v. McCormick, 28 Mich. 215, and Starkweather v. Martin, id. 472. In Brown v. Mc- Cormick the effect of the registry, as notice to subsequent purchasers, was made to turn upon the curative act of 1861, mentioned in the opin- ion. In Starkweather v. Martin the question was, how, far the absence, on the registry of a deed, of any mark or device indicating a seal, or of 936 Cases on Rhai, Property any statement of the register that the original was sealed, affected the validity of the record entry as evidence of title? The record entry of the deed was made more than forty years before the cause was decided, by the proper officer, and in the appropriate place for the registry of deeds, under the law permitting the registry of only sealed instruments : and the instrument was in the form of a warranty deed, purporting to be acknowledged and dated at a time when it was the common and lawful course to seal conveyances, and contrary. to official duty to take the acknowledgment unless the conveyance was sealed, and where the conclusion, attestation clause, and certificate of acknowledgment of the instrument all spoke of it as under seal. The court said that these facts and incidents taken together afforded a very strong presumption that the original was sealed. The doctrine of this case does not seem to have a very strong bearing upon the question under consideration. It may be said that it was con- trary to the duty of the register to record the mortgage unless it was properly acknowledged and witnessed, and that a presumption arises that he would not have done so. But in answer to this it may also be said that the law made it the duty of the register to record, or cause to be recorded correctly, all instruments authorized by law to be recorded. 140 ch. 13, R. S. 1858. And the presumption that he performed his duty in recording the mortgage correctly, is as strong as the presump- tion that he would not have recorded it unless it was entitled to registry. In Shove v. Larsen, a number of cases are referred to which hold that a mistake in recording a deed, or recording it out of its order, renders the registration ineffectual as notice to subsequent incum- brancers and purchasers. The doctrine of those cases would seem to be applicable to the case before us. The registration and index entries being incomplete, because showing that the mortgage had no subscrib- ing witnesses, constructive notice could not be presumed of such a, record. For the principle "that the registry is notice of the tenor and effect of the instrument recorded, only as it appears upon that record," fully applies. Shepherd v. Barkhalter, 13 Ga. 443. See, in addition to the cases cited in Shove v. Larsen, Brown v. Kirkman, i Ohio St. 116; Stevens v. Hampton, 46 Mo. 404; Bishop v. Schneider, id. 472; S. C, 2 Am. Rep. 533 ; Terrell v. Andrew Co., 44 id. 309; Frost v. Beekman, I Johns., Ch. 288. * * * Cause remanded for further proceedings. Note: Some courts hold that the grantee by filing the instrument Notice Priority and Recording 937 with the proper officer has done all that is necessary and that the notice is given notwithstanding mistakes in the recording of the instrument or failure to index. Davis v. Whitaker, 114 N. C. 279; 41 Am. St. Rep. 793; Beebe v. Morrell, 76 Mich. 114; 15 Am. St. Rep. 288 and note. SEC. 4. NOTIC£ FROM FOSSESSIOK. KIRBY V. TALLMADGE. 160 U. S. 379; 40 L. Bd. 463; 16 Sup. Ct. 34p. (1896) Appeal from the Supreme Court of the District of Columbia. This was a bill in equity filed by Maria E. Tallmadge, against the appellants to set aside and remove, as a cloud upon her title, a deed Ella A. Goudy, claiming to be heirs at law of one John L. Miller, de- ceased, dated August 30^ 1888, and .purporting to convey to the ap- pellant Kirby the property therein described. The bill further prayed for the cancellation of a trust deed executed by the appellant Kirby and his wife to the defendants Willoughby and Williamson, and for an injunction against all the defendants except Kirby, restraining them from negotiating certain notes given by Kirby for the purchase of said lots, etc. The facts disclosed by the testimony show that in 1882 Mrs. Tall- madge, the appellee, purchased of one Bates, for a home, lots Nos. yj and 78, in square 239, in the city of Washington, with the improve- ments thereon, for the sum of $10,000, $5,000 of which were paid in cash, the residue to be paid in five installments of $1,000 each. In- stead of taking the title to the property in herself, she furnished the money to John L. Miller, a friend of the family, who paid the $5,000 cash with the money thus furnished, and at her request took the title in his own name, and executed notes for the deferred payments, which he secured by a deed of trust upon the property. Subsequently, and in June, 1883, Miller also purchased with the funds of Mrs. Tallmadge the adjoining lot. No. 76, taking title in his own name, and executing a deed of trust for the deferred payments, amounting to $1,266. Mrs. Tallmadge took immediate possession of the premises, and has occupied them as her own from that day to the time the bill was filed ; paying taxes, improvements, and interest on incumbrances, reducing 938 Casbs on Real Property the principal $2,266, and holding open and notorious possession under her claim of title. Mr. Miller, who claimed no title or right to the premises in hihiself, on December 27, 1883, by a deed signed by himself and wife, conveyed the legal title to Mrs. Tallmadge ; but this deed, through inadvertence or otherwise, was not recorded until October 4, 1888. Mr. Miller died in February, 1888, and by his will, which was dated December i, 1880, devised his estate to his widow. On Tune 16, 1888, defendants Miller, Houchens, and Goudy, col- lateral heirs of John L. Miller, who had made a contract with the de- fendants Willoughby and Williamson to give them one-quarter of whatever they could get for them out of the estate of Miller, filed a bill in the supreme court of the District against the widow and executor of Miller, the holders of the notes given by him, and the trustees in one of the deeds of trust; praying for a partition or sale of the prop- erty, the admeasurement of the widow's dower, and for a charge upon the personal estate of Miller for the unpaid purchase money of the property. To this bill the widow of John L. Miller made answer that her hus- band never had any interest in the property in question; that the title was taken in his name for Mrs. Tallmadge, and that long before his death he had, by deed, duly conveyed it to her; and that neither she nor his estate had or ever had any interest in the property. In August, 1888, the pendency of this suit coming to the knowledge of Mrs. Tall- made, she sent the original deed from Miller to her, then unrecorded, by Mr. Tallmadge, to Willoughby and Williamson, solicitors for Mill- er's heirs, who examined and made minutes from it. On August 30, 1888, Houchens, Goudy, and Miller, who had filed the bill for partition, executed a deed conveying the property to the appellant Kirby, subject to the dower rights of Mrs. Miller, for a con- sideration of $12,000, $3,000 of which was said to have been paid in cash, and $9,000 by notes secured by a mortgage or trust deed upon the property, to Willoughby and Williamson, as trustees. Kirby thereupon claimed the property as an innocent purchaser without notice of the prior deed. He at once gave notice to Mr. Tallmadge that he would demand rent for the property at the rate of $1,000 per annum. On receipt of this notice, Mrs. Tallmadge filed this bill to cancel and set aside the deed and deed of trust. Answers were filed by the de- fendants, and testimony taken by the plaintiff tending to show the facts alleged in her bill. Neither of the appellants took proof, nor did Notice Priority and , Recording 939 they, or either of them, offer themselves as witnesses, but stood upon their answers. Upon final hearing the court below, in special term, rendered a de- cree in accordance with the prayer of the bill, setting aside the deed and deed of trust as fraudulent and void, from which decree defend- ants appealed to the general term, which affirmed the decree of the court below, and further directed that Miller, on the demand of Kirby, return to him the $3,000 which Kirby claimed to have paid, and which Miller admitted to have received. From this decree, defendants appealed to this court. Mr. Justice Brown, after stating the facts in the foregoing lan- guage, delivered the opinion of the court. The controversy in this case arises from the fact that the deed from John L. :Miller to Mrs. Tallmadge, which was given December 27, 1883, was not put upon record until October 4, 1888. In the meantime, and in February, 1888, Miller, in whose name the property had been taken for the benefit of AJrs. Tallmadge, died ; and on August 30, 1888, Houchens, Goudy, and Richard Henry Miller, collateral heirs of John L. Miller, executed a deed of the property, subject to the dower rights of Miller's widow, to defendant Kirby, for an expressed consid- eration of $12,000, of which $3,000 are said to have been paid down in cash, and $9,000 in notes payable to Willoughby and Williamson. Kirby now claims to be an innocent purchaser of the property, without notice of the prior deed from John L,. Miller to Mrs. Tallmadge. There are several circumstances in this case which tend to arouse a suspicion that Kirby's purchase of the property was not made in good faith. Within three months after the probate of the will of John L. Miller, his collateral heirs, Houchens,' Goudy, and Richard H. Miller, who had made a contract with Willoughby and Williamson to give them one-quarter of whatever they could get for them out of the estate of Miller, filed a bill for the partition of real estate, and to set off the widow's dower. His widow, Lola, answered, admitted that her hus- band did not purchase the lands described in the bill, and alleged that he had conveyed them away in his lifetime. * * * But the decisive answer to the case of bona fide purchase made by the defendant Kirby is that Mrs. Tallmadge had, ever since the original purchase of the land by Miller, in 1.882, been in the open, notorious, and continued possession of the property, occupying it as a home. The law is perfectly well settled, both in England and in this country, — ex- cept, perhaps, in some of the' New England states, — that such posses- sion under apparent claim of ownership is notice to purchasers of 940 Cases on Real Property whatever interest the person actually in possession has in the fee, whether such interest be legal or equitable in its nature, and of all facts which the proposed purchaser might have learned by due inquiry. 2 Pom. Eq. Jur. 614; Wade, Notice, 273. The same principle was adopted by this court in Landes v. Brandt, 10 How. 348, 375, in which it was held that "open and notorious occupation and adverse holding by the first purchaser, when the second deed is taken, is in itself suffi- cient to warrant a jury or court in finding that the purchaser had evi- dence before him of a character to put him on inquiry as to what title the possession was held under, and that he (the subsequent purchaser) was bound by that title, aside from all other evidence of such posses- sion and holding." The principle has been steadily adhered to in sub- sequent decisions. Lea v. Copper Co., 21 How. 493, 498; Huges v. U. S., 4 Wall. 232, 236 ; Noyes v. Hall, 97 U. S. 34 ; McLean v. Clapp, 141 U. S. 429, 436, 12 Sup. Ct. 29; Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. 239. Defendants' reply to this proposition is that the occupancy in this case being that of a husband and wife, is by law referable to the hus- band alone, as the head of the family ; that the purchaser was not bound by any notice, except such as arose from the possession of the hus- band ; and that, as he had no title to the property, Kirby was not bound to ascertain whether other members of the family had title or not. There are undoubtedly cases holding that occupation by some other person than the one holding the unrecorded deed is no notice of title in such third person, and that the apparent possession of premises by the head of a family is no notice of a title in a mere boarder, lodger, or subordi- nate member of such family, or of a secret agreement between the head of a family and another person. As was said by this court in Townsend v. Little, 109 U. S. 504, 3 Sup. Ct. 357 : "Where possession is relied upon as giving constructive notice, it must be open and unam- biguous, and not liable to be misunderstood or misconstrued. It must be sufficiently distinct and unequivocal, so as to put the purchaser on his guard." In this case one James Townsend bought and took pos- session of a public house in Salt Lake City, and lived in it with his lawful wife and a plural or polygamous wife; the latter who was the appellant, taking an active part in conducting the business of the hotel. He subsequently ceased to maintain relations with the appellant, as his polygamous wife; but, being desirous of having the benefit of her services, both concealed this fact. He made a secret agreement with her that if she would thus remain she should have a half interest in the property. He afterwards acquired his legal title to the property, with- NoTicB Priority and Recording 941 out a disclosure of the secret agreement. His interest therein having subsequently passed into the hands of innocent third parties for value, without notice of appellant's claim under the secret agreement, it was held that the joint occupation of the premises by herself and Townsend, under the circumstances, was not a constructive notice of her claim, ■and that she had no rights in the premises, as against a bona fide pur- chaser without notice. There were evidently two substantial reasons why appellant's possession was not notice of her rights : First, James Townsend took the legal title to. himself in 1873, ^^'^ ^^^^ it until 1878, when the purchase was made; and, second, his agreement with the appellant was not one with his lawful, but his polygamous, wife, and - was also a secret one. The case is obviously not one of a joint occupa- tion by a husband and his lawful wife, neither of them having any title thereto. In the case of Thomas v. Kennedy, 24 Iowa, 397, it was held that, where real estate is ostensibly as much in the possession of the hus- band as the wife, there is no such actual possession by the wife as will impart notice of an equitable interest possessed by her in the land, to a purchaser at execution sale under a judgment against her husband, in whom the legal title apparently was at the time of the rendition of the judgment. This case is also a mere application of the rule that, if there be any title to the land in one who is in possession of it, the pos- session will be referred to that title, or, as said in 2 Pom. Eq. Jur. 616, "Where a title under which the occupant holds has been put upon rec- ord, and his possession is consistent with what thus appears of record, it shall not be a constructive notice of any additional or different title or interest to a purchaser who has relied upon the record, but has had no actual notice beyond what is thereby disclosed." That the court did not intend to hold that a joint occupation by a husband and wife is in no case notice of more than the occupation of the husband, is evident from the subsequent case of Trust Co. v. King, 58 Iowa, 598, 12 N. W. 595, in which the court said, "It cannot, we think, be doubted that pos- session of real property by a husband and wife together will impart notice of the wife's equities, as against all persons other than those claiming under the husband, their possession being regarded as joint by reason of the family relation." In this case the occupation was by a husband and wife, and it was held that such possession was notice of ?j. title in the wife to a life estate in the property, as against the holder of a mortgage given by a son, who was a member of the family as a boarder ; lodging a part of the time in his mother's house, and a part of the time elsewhere, — ^the legal title being in the son. 942 Cases on Rbai. Property - In the case of Lindley v. Martindale, 78 Iowa, 379, 43 N. W. 233, the title to the lands was in a son of the plaintiff, who resided on a portion of them, while plaintiff and her husband resided on another portion. The lands had for a long time been cared for either by the husband or the son, and it was held that one who, upon being told that the title was in the son, took a mortgage from him to secure a loan, which was used for the most part to pay off prior incumbrances placed on the land by the son, was not charged with the alleged equities of plaintiff by reason of her claimed possession of the land, the court holding that her possession was not such as the law reciuires to im- part notice. The case is not entirely reconcilable with the last. In Harris v. Mclntyre, 118 III. 275, 8 N. E. 182, a widow furnished her bachelor brother money with which to buy a farm for their joint use; the title to be taken to each in proportion to the sums advanced by them, respectively. He, however, took a conveyance of the entire estate to himself, and they both moved upon the place; he managing the land, and she attending to the household duties. The deed was recorded, and he borrowed money, mortgaged the land to secure the loan, and appeared to the world as the owner for a period of over 10 years, during which time the sister took no steps to have her equitable rights enforced or asserted. It was held that her possession, under such circumstances, was not such as would charge a subsequent pur- chaser from her brother with notice of her equitable rights. Here, too, the record title was strictly consistent with the possession. In Rankin v. Coar, 46 N. J. Eq. 566, 22 Atl. 177, a widow, who oc- cupied part of a house in which she was entitled to dower, while her son, the sole heir at law, occupied the rest of the house, released her dower therein to her son by deed duly recorded. It was held that her continued occupation thereafter would not give notice to one who took a mortgage from the son, of a title in her to a part of the house oc- cupied by her, acquired by an unrecorded deed to her from her son contemporaneous with her release of dower. "Possession," said the court, "to give notice, or to make inquiry a duty, must be open, notori- ous, and unequivocal. There must be such an occupation of the prem- ises as a man of ordinary prudence, treating for the acquisition of some interest therein, would observe, and, observing, would perceive to be inconsistent with the right of him with whom he was treating, and so be led to inquiry." So, in Atwood v. Bearss, 47 Mich. 72, 10 N. W. 112, the title to property, upon the record, appeared to be in the wife. Her husband's previous occupation had been under her ownership, and in right of the NoTicfi Priority and Recording 943 marital relation, and nothing had transpired to suggest that she had made the property over to him. She had, however, given him a deed, which was not put upon record. It was held that his continuance in possession was no notice of this deed, since it was obviously consistent with the previous title in herself. Indeed, there can be no doubt whatever of the proposition that where the land is occupied by two persons, as for instance, by husband and wife, and there is a recorded title in one of them, such joint occupation is not notice of an unrecorded title in the other. In such case the pur- chaser, finding title in one, would be thrown off his guard with respect to the title of the other. The rule is universal that, if the possession be consistent with the record title, it is no notice of an unrecorded title. But where the land is used for the purpose of a home, and is jointly occupied by husband and wife, neither of whom has title by record, we think that, in view of the frequency with which homestead property is taken in the name of the wife, the proposed purchaser is bound to make some inquiry as to their title. The case of Phelan v. Brady, 119 N. Y. 587, 23 N. E. 1109, is an instance of this. In this case a suit was brought to for-eclose a mort- gage upon certain premises, given by one Murphy, who held an ap- parently perfect record title to the property. It appeared, however, that, before the execution of the mortgage, Murphy had conveyed the premises to one Margaret Brady, who was in possession, and, with her husband, occupied two rooms in the building on the premises. She also kept a liquor store in a part thereof. The other rooms she leased to various tenants ; claiming to be the owner, and collecting the rents. Her deed was not recorded until after the giving of the mortgage. It was held that her actual possession under her deed, although unre- corded, and its existence imknown to plaintiff, was sufficient notice to him of her rights to defeat any claim under the mortgage. This case goes much further than is necessary to justify the court in holding that Mrs. Tallmadge's possession was notice in the case under consideration, as the actual occupation of the wife was only of 2 rooms in a tenement house containing 43 apartments. If there be any force at all in the general rule that the possession of another than the grantor puts the purchaser upon inquiry as to the na- ture of such possession, it applies with peculiar cogency to a case like the present, where the slightest inquiry, either of the husband or wife, would have revealed the actual facts. Instead of making such inquiry, Kirby turns his back upon every source of information, does not even enter the house, makes no examination as to whether the property was 944 Casds on RgAL Property in litigation, and buys it of collateral heirs of Miller, subject to his widow's dower if he had had the title, to an unpaid mortgage, and to the chances of the property being required for the payment of Miller's debts. It is clear that a purchase made under such circumstances does not clothe the vendee with the rights of a bona fide purchaser without notice. We see no reason for impeaching the original purchase of the land by Mrs. Tallmadge. Her account of the transaction is supported by the testimony of all the witnesses, as well as by the receipts and other documentary evidence. Her failure to cause the deed to be recorded is not an unusual piece of carelessness, nor is it an infrequent cause of litigation. Under the circumstances of the case, it raises no presump- tion of fraud. What motives she may have had for taking the title to the property in the name of Mr. Miller is entirely immaterial to the present controversy, although it appears from her testimony that she was possessed of money in her own right, and took this method of in- vesting it. The decree of the court below is therefore affirmed. SIMMONS CREEK COAL CO v. DORAN. 142 U. S. 417; 35 L. Ed. 1063.; 12 Sup. Ct. 23^. (i8p2) Mr. Chief Justice Fuller, after stating the facts in the foregoing language, delivered the opinion of the court. * * * Again, actual and unequivocal possession is notice, be- cause it is incumbent on one who is about to purchase real estate to ascertain by whom and in what right it is held or occupied; and the neglect of this duty is one of the defaults which, unexplained, is equiv- alent to notice. 2 White & T. Lead. Cas. 180; Landes v. Brant, 10 How. 348; McLean v. Clapp, 141 U. S. 429, 436, 12 Sup. Ct. Rep. 29; ' French v. Loyal Co., 5 Leigh, 641 ; Western M. & M. Co. v. Peytona Cannel Coal Co., 7 W. Va. 406, 441 ; Core v. Faupel, 24 W. Va. 238; Morrison v. Kelly, 22 111. 610. "Possession," said Walker, J., in the case last cited, "may be actual or constructive; actual, when there is an occupancy, such as the property is capable of, according to its adaptation to use ; constructive, as when a person has the paromount title, which, in contemplation of law, draws to and connects it with the possession. But to be adverse it must be a pedis possessio, or an Noticb; Priority and Recording 945 actual possession." In 'Ewing v. Burnet, 11 Pet. 53, it was held that neither actual occupancy nor cultivation nor residence v/as necessary to constitute actual possession that where the property is so situated as not to admit of any permanent useful improvements, 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 he did not claim, such posses- sion will create a bar under the statute of limitations; that what acts may or may not constitute a possession are necessarily varied, and de- pend to some extent upon the nature, locality, and use to which the . property may be applied, the situation of the parties, and a variety of circumstances which have necessarily to be taken into consideration in determining the question. And so possession of an improved portion of a tract of land, under a conveyance in fee of the whole, is construed to be co-extensive with the grant. And where a party purchases land adjoining a tract of which he is already in the occupancy, he will be considered as at once, in point of law, in the possession of the newly- acquired tract, when the latter is vacant, or at least not held under an adverse possession. Now, W. H. Witten, resided on 400 acres of land which adjoined the 1,100 acre tract, while the 200 acres bounded on the 1,100 acres, and neither of the latter tracts was in adverse possession when purchased by Witten; and the evidence of W. Scott Witten shows that W. H. Witten used the 200-acre tract as a range for his cattle, and paid the taxes on it, and that, after W. Scott Witten purchased it at the judicial sale he also used it in the same way. In other words, such possession as the land was susceptible of was taken and maintained, and, in addi- tion to that, it connected with the home tract on which W. H. Witten had lived for 50 years. The possession, such as it was, was notorious, and contributes its weight to the other proofs of notice. We repeat that we regard it as satisfactorily established that the de- fendants had such notice as put them on inquiry, and charged them with knowledge of the facts, and, under the circumstances, their silence is most significant. * * * 946 Casbs on R^Ar, Propsrty TATE V. PENSACOLA GULF ETC. CO. 37 Fla. 439; 53 Am. St. Rep. 251; 20 So. 542. (1896) LiDDON, J. * * * It is claimed by the complainant that the ac- tual possession and occupancy of the premises by his predecessors is, of itself, sufficient to charge the defendant with notice of his equitable title. The Pensacola, Gulf, Land and Development Company admits in its answer a knowledge that the occupation and use of the hospital, and grounds inclosed about the same, was held by the Hargises, but was informed and understood that such holding was by consent of Emma L Petterson and subject to her title. It denies all knowledge or notice of the possession or occupation of the remaining portion of the tract involved in the litigation. The case of McRae v. McMinn, 17 Fla. 876, was in some of its features like the present. There the vendee knew that another was in possession of the land, but believed she was in possession as a tenant, holding under another. This knowl- edge, coupled with the fact that the instrument which purported to pass title to his grantor, but which was ineffectual to pass such title, was of record, and contained a description of the topography of the land, was held to be sufficient to lead the vendee to inquiry by which be might have learned the nature of the title and claim of the party in possession, and that a court of equity would deem him connusant of it. In this case, the rule was laid down that a subsequent purchaser, although without actual notice, will be considered a purchaser of the seller's title subject to the equities of the tenant. It may be conceded that the facts of the case hardly required so broad an enunciation of the rule, as there was some actual notice of the possession. Therefore the court said : "The authorities go beyond the case at bar. We think the general rule is,, that where a person, other than the grantor, is in possession, it is the purchaser's duty to inquire into the title; and the presumption of law is, that upon such inquiry he ascertains the true state of the title." The broad general,rule has often been pro- claimed by the courts that, "the actual possession of land is notice to all the world of whatever rights the occupant really has in the prem- ises, and a vendor cannot convey to any other person without such per- son being affected with such notice" : Finch v. Beal, 68 Ga. 594 ; Sew- ell V. Holland, 61 Ga. 608. In such cases open, visible, actual pos- session is of itself notice of the rights of those in possession. Actual knowledge of such possession on the part of those sought to be charged with such notice is not necessary. Notice in such cases is a legal de- Notice Peiority and Recording 947 duction from the fact of possession: Allen v. Caldwell, 55 Mkh. 8; Woodward v. Clark, 15 Mich. 104; Hamilton v. Fowlkes, 16 Ark. 340, and many authorities' cited in text. * * * BILLINGTON'S LESSEE v. WELSH. 5 Binney, I2p; 6 Am. Dec. 406. (1812) TiLGHMAN, C. J. The plaintiff was a purchaser at the sheriff's sale, by virtue of an execution levied on a tract of land belonging to Daniel Turner. The defendant claims under Turner by a parol agreement accompanied with possession. - Although our act of assembly requires all contracts concerning land to be reduced to writing, yet under the decisions which have been made, there can be no doubt but that where the contract has been executed and carried into effect by payment of a valuable consideration and delivery of possession, the contract is binding between the parties. But where a third person is to be af- fected the case is more difficult. In order to bind him, something must be shown which makes it inequitable to break the parol contract. The defendant undertakes to show that the plaintiff purchased with notice of the contract ; and if so, it would certainly be against equity that he should recover in this suit. But it behooves a person who stands on a defense of this kind, to make out a clear case. No actual notice has been proved; but it is contended that the pos- session of the defendant was notice in law. These legal notices, being sometimes contrary to the fact, are confined to cases in which violeijt presumption of actual notice arises. The undisturbed possession of land has generally been considered as legal notice, because the fact of possession being notorious, it is sufficient to put the purchaser on his guard, and to induce him to inquire into the title of the possessor. But to entitle the bare possession to such weight it ought to be a clear, unequivocal possession. Let us examine what kind of possession has been proved in the present case. The defendant is the brother-in-law of Daniel Turner, and lived at the -time of the sheriff's sale, and for a considerable time before, on one corner of Turner's tract. Turner had erected a forge, grist-mill and saw-mill, with all those small buildings which are con- nected with works of that kind. It is well known that in such cases the workmen frequently occupy houses with small portions of land an- 948 Cases on Reai, Property nexed to them. And when a person throws his eye over a forge and mills, and the adjacent buildings and inclosures, it naturally occurs to him that they all belong to the proprietor of the works. The defendant has been guilty of extraordinary negligence ; for not only has he omit- ted to survey and mark the bounds of his claim, but he has given no decided evidence of boundary. His contract was to have fifty acres of land somewhere about his house; but whether he was to cross the stream and include the land on both sides, so as to have the command of the water, was not proved. Now this is a most important circum- stance. For if he has the command of the water, which it is said he claims, he may exercise it in such a manner as to do material injury to the iron-works erected by Turner. The defendant's claim is prin- cipally woodland, consequently the knowledge of his possession is so much the more difficult. Under all these circumstances it would be going too far to say that such a possession is notice to all the world. How could any man reasonably suppose that Turner's brother-in-law, occupying a small parcel of land at no great distance from the ironworks, had good title, not only to the land on which his house and fences stood, but also to the water, to such a degree as to deprive Turner of the right of using the stream to the full extent that his works might require? There is another circumstance unfavorable to the defendant. Connected as he was with Turner, it can hardly be imagined that he was ignorant of the judgment against him, and it became his duty to make known to the world this secret title to part of the land which passed for Turner's. It does not appear that he made any publication on this subject. Not having done so, it seems to me that he acted at his peril, and that he has no right, to complain if his title is impeached by persons who had no actual notice of it. Perhaps in another ejectment he may make a stronger case. But, on the evidence produced at this trial, I think the judge was right in advising the jury to find for the plaintiff. I am, therefore, against granting a new trial. Yeates, J. (after stating the case) : It was admitted that Welsh gave no notice of his equitable title to the sheriff at the time of the levy or at either of the sales ; though it was proved by four witnesses that the sales intended to be had were known in the neighborhood of the land. I thought it reasonable to presume, and so instructed the jury, that the defendant Welsh knew of what was going forward, and that he ought to have given notice of his claim to the sheriff and warned all persons against purchasing, if he really knew of the in- tended sales. Failing herein, a legal fraud would be imputed to him. Notice Priority and Recording 949 This presumption was founded on the notoriety of the premises being .taken in execution, and of the intended sales under the sheriff's ad- vertisements ; on the delay to sell till above two years after both judg- ments; on one sale being set aside; and on the defendant's living on good terms with his brother-in-law on the same tract of land, and who could not therefore be supposed ignorant of his embarrassments. But it was strenuously contended on the part of the defendant, that his actual possession of the lands, and carrying on a distillery, was constructive notice to a purchaser at the sheriff's sale, and that he was bound to examine into that fact before he bought. No law cases were produced on this point, and my mind was unsettled on the subject. I well recollected that a trustee in possession of the estate, conveying for a valuable consideration without notice, the purchaser would have the estate against the cestui que trust; but not so if the latter was in pos- session at the time: 2 Fonb. 170; 2 Bl. Com. 337. But how far the law obtained as to constructive notices in general cases, or whether it would extend to a case circumstanced like the present, I was not pre- pared to assert. I therefore advised that the point should be reserved for further consideration. This the plaintiff's counsel acquiesced in, but the defendant's counsel refused to agree thereto. The jury found a verdict for the plaintiff, subject to the court's opinion on the question of law, considered as a reserved point; and it was agreed by mutual consent, that the argument should be carried into banc, to be there proceeded in, as fully as it might be done in the circuit court on the notes of the trial. I have had sufficient time to consider the question, which is merely of a legal nature, whether upon the facts disclosed on the trial, there was implied notice to the sheriff's vendee of the de- fendant's equitable title. Constructive notice is no more than evidence of notice, the pre- sumptions of which are so violent that 1ROPBRTY the eighteenth day of March, 1886, and this suit was commenced in November, 1886, to disaffirm the deed made by her while a minor. Plaintiffs did not offer to refund the $350. The evidence offered to show a ratification is, in substance, this : As soon as the plaintiffs learned that their deed of trust was a second lien instead of the first, they demanded a first deed of trust according to their contract, but their demand was refused. They also demanded payment of the notes, which was refused. They executed a new deed after the wife became of age, and offered to deliver it provided the notes were paid or secured by a first deed of trust, but upon no other condition. The plaintiff, Daniel Craig, being asked if any suit had been brought for the collec- tion of the notes, said : "I think there has been ; at Linneus, I think." It does not appear when the suit was brought, or what became of it. The notes, it is agreed, are in the possession of plaintiffs. 1. Tl\e point made here, and by a refttsed instruction, that the plaintiffs should have in terms set out in their petition and pleaded disaffirmance of the deed, is not well taken. Where a minor executes a deed of conveyance of land, and after attaining majority conveys the same land to a third person, the second deed is a disaffirmance of the first: Peterson v. Laik, 24 Mo. 541; 69 Am. Dec. 441. So, too, the deed executed while a minor may be avoided by a suit in ejectment after majority: i Hare and Wallace's Am. Lead. Cas., 317; Tiede- man on Real Property, sec. 793. A petition which is in the ordinary form of an action of ejectment is sufficient. 2. Defendants asked, but the court refused to give, the following declaration of law : "The infancy of Ella Craig does not entitle plain- tiffs to recover, as no offer or tender was made by them to return to Sprankle funds or consideration received by Ella Craig, arising from the sale and conveyance of the land by her to Tabor." The theory of this instruction is, that plaintiffs were bound to make a tender to Sprankle of the $350 paid them by Henderson Tabor, the grantee in the deed which the plaintiffs seek to avoid. Where the contract has been executed by the infant, and has been in whole or in part executed by the adult, and the infant, upon coming of age, re- pudiates the transaction, he must return the property or consideration received. This general rule has often been stated without any qual- ification whatever. But the weight of authority is, that the rule can only apply where the infant has the property or consideration at the time he attains full age. If he has wasted or squandered the considera- tion or property during infancy, then he can repudiate the contract without making a tender : Tyler on Infancy, 2d ed., sec. 37 ; Green v, Personal Disabilities 997 Green, 69 N. Y. 553 ; 25 Am. Rep. 233 ; Chandler v. Simmons, 97 Mass. 508; 93 Am. Dec. 117; Reynolds v. McCurry, 100 111. 356; Brandon V. Brown, 106 III. 519; Price v. Furman, 27 Vt. 268; 65 Am. Dec. 194; Walsh V. Yonng, no Mass. 396. The privilege of repudiating a con- tract is accorded an infant, because of the indiscretion incident to his immaturity; and if he were required to restore an equivalent, where he has wasted or squandered the property or consideration received, the privilege would be of no avail when most needed. Kerr v. Bell, 44 Mo. 120, Highley v. Barron, 49 Mo. 103, and Baker v. Kennett, 54 Mo. 82, are cited as affirming the general rule before stated, without any ex- ception, and some expressions used would seem to lead to that result ; but a careful consideration of the facts of these cases will show that there was no occasion for considering the exception. " The remarks there made must be read and understood in the light of the facts be- fore the court. We entertain no doubt but the rule, with the qualifica- tion before stated, is the correct one. The instruction is, therefore, faulty, and especially so in view of the evidence that Mrs. Craig did not have any money or property save the land in que.stion. The notes are in the hands of the plaintiffs, and the fact of disaffirmance will discharge the maker; for the law is well settled that the infant, having repudiated his or her deed, cannot re- cover the unpaid purchase price. 3. The evidence fails to make out a prima facie case of ratification. There is no evidenc that either Mrs. Craig or her husban4 ever re- ceived any part of the purchase price after she attained her majority. She and he husband did offer to execute and deliver a confirmatory deed upon being paid the balance of the purchase price, namely, $1,113, or up>on receiving a first deed of trust upon the land securing that amount ; but it did not suit the purposes of Tabor, or any other of the interested parties, to comply with that condition. A mere acknowledgment that a debt exists or that a contract has been made will not constitute a ratification : Baker v. Kennett, 54 Mo. 82. There must be an intention to affirm the deed. A deed of con- firmation is not necessary, but the act relied upon must be of such a nature as to show a clear intention to confirm the deed. An offer to make a deed of ratification upon the condition that the unpaid purchase price is paid or secured is no evidence of a confirmation. It rather shows a disposition to disaffirm should the proposed condition not be performed.' 4. This suit was brought for the very purpose of disaffirming the deed made by Mrs. Craig, and she was a proper and a necessary party 998 Casbs on Real Property plaintiff. Her husband is but a nominal party to the suit. But it is insisted that the wife cannot recover, because the husband is entitled to the possession of her land, and that he cannot recover, because by joining her in the deed he parted with his possession and right of possession. Mrs. Craig held the land in question as her general property under section 3295 of the married woman's act. That section declares that a conveyance made by' the husband during coverture of any interest in such real estate shall be invalid, unless the deed is executed jointly by the wife and husband, and by her duly acknowledged. This statute, it has been held again and again, very materially modifies the common- law marital rights of the husband in the lands belonging to the wife. It is, so far as he is concerned, a disabling statute : so that he is utterly powerless to charge or convey the land, or the rents, issues, or products thereof, except by a deed jointly executed by himself and wife: Muel- ler V. Kaessmann, 84 Mo. 323; Gitchell v. Messmer, 87 Mo. 131 ; Gilli- land V. Gilliland, 96 Mo. 522 ; Wilson v. Albert, 89 AIo. 537. If the deed jointly executed by husband and wife is invalid as to the wife, because not properly acknowledged by her, or because her signa- ture has been procured by fraud, then it is ineffectual to convey the husband's limited marital interest : Goff v. Roberts, 72 Mo. 571 ; Bartlett v. O'Donoghue, 72 Mo. 563 ; Hoskinson v. Adkins, "JJ Mo. 538; Hord V. Taubman, 79 Mo. loi. These authorities show that a conveyance by husband and wife of the lands of the wife, to be valid as against the husband, must be valid as against the wife. Now, it is true that in the cases cited the deeds were v/orthless from the begin- ning, whilst here the deed is voidable only ; but we do not see that this makes any difference. When the deed is disaffirmed because of the minority of the wife, it becomes worthless as to the husband. As said in the case last cited, the title can only be transferred by an in- divisible integer, or not at all. So, too, if the deed be avoided as to the wife, it is avoided as to the husband. It must stand or fall as a whole. The law of this case is with, the plaintiffs, and the judgment is affirmed. Note : See note to this case, 18 Am. St. Rep. 569 for a citation of authorities upon many pojnts involved in deeds of infants. Personal Disabilities 999 IRVINE V. IRVINE, p Wall. U. S. 617; 19 L. Bd. 800. (1869) Mr. Justice Strong delivered the opinion of the court. * * * His second point was that the deed was void because made by the plaintiff during his minority. This the court refused to affirm. Whatever may have been the doubts once entertained, it has long been settled that the deed of an infant, being an executed contract, is only voidable at his election ; that it is not void. It operates to transmit the title. And there are some cases, of which the present, in one aspect of it, may possibly have been one, in which such a deed is held to be not even voidable. They are those in which the infant, by making the con- veyance, does only what the law would have compelled him to do. Whether this was such a deed need not be considered, for conceding that it was not, clearly it was not void. * * * SEC. 2. MENTAL INCAPACITY. LINDSEY V. LINDSEY. JO ///. 79; pp Am. Dec. 489. (i86p) Lawrence, J. On the 27th of January, 1862, Stephen Lindsey, Sen., then eighty-seven years old, conveyed to his youngest son, Hezekiah, his farm in Fulton County, containing 276 acres, and executed to him a bill of sale of three horses, two cows, some hogs, and his farming utensils At the same time, the son executed to his father seven notes for $150 each, secured by a mortgage on the farm, and also a bond in the penal sum of $1,000, conditioned for the support of his father during his life. His father died on the 2d of September, 1864, and a part of the heirs, brothers and sisters of Hezekiah, have filed this bill to set aside said deed and bill of sale, on the ground that Stephen Lindsey, Sen., was, at the time of their execution, mentally incapable of contracting, and that he had been subjected to undue influence on the part of Hezekiah. The defendant answered, denying these allegations in the bill ; and the case, having been heard on the bill, answer, replica- tion, and proofs, the circuit court dismissed the bill. The evidence is quite voluminous, and we cannot undertake to dis- lOOO CasBS on RBAL PROPfiRTY CUSS it in detail. An attentive examination of it, however, has satisfied us the court did not err in this decree. There is no proof whatever that anything was ever said or done by Hezekiah for the purpose of influencing his father to enter into this transaction. So far as appears, he was merely an assenting party, his father having, some eighteen months before this affair occurred, ex- ecuted two wills, drawn by the witness Bailey, with substantially the same purpose in view that was sought in this transaction, but finally preferring to give the matter this shape. So far as the case depends upon the exercise of improper influence, we must regard it as altogether unsustained by "proof. Was there, then, such mental imbecility on the part of the senior Lindsey, as to justify a court in setting aside the deed on tliat ground alone? Before a complainant can claim such a decree, in the absence of undue influence, he must show such a degree of mental weakness as renders a party incapable of understanding and protecting his own in- terests. The circumstance that the intellectual powers have been some- what impaired by age is not sufficient, if the contracting party still re- tains a full comprehension of the meaning, design, and effect of his acts : Story's Eq. Jwr., sees. 235 et seq. Tried by this rule, these in- struments must stand. As in most cases of this character, there is a good deal of contradiction in the evidence. It is a family feud, and as the witnesses were testifying to their opinions as to the mental capacity of the deceased, we must expect much contrariety in the testimony. All, however, that appellants can fairly claim to have established is, that Stephen Lindsey, Sen., during the latter years of his life, was subject to occasional attacks of epilepsy, and for several days after an attack he would be disqualified for business. But on the other hand, it is conclusively shown by Bailey, his neighbor and adviser, and by Frisbie, the justice of the peace, who drew the deed, that he was, at the time of this transaction, in the full possession of his faculties, and perfectly cognizant of the meaning and effect of his acts. Bailey, an intelligent witness, went with him from his farm to the village of Vermont, where the papers were executed, and during this drive, while by themselves, the son not being in the sleigh, he 'explained his views and objects in making the deed, and the witness testifies, "his mind was as clear as I ever knew it to be." Bailey remained until the transaction was consummated and his testimony, and that of Frisbie, the justice, are to the same effect, and of a very conclusive character. The testimony of his physician, as to his capacity to transact business when not under the influence of the epileptic attacks, is equally pos- PUESONAiv Disabilities iooi itive. It is, however, upon the testimony of Bailey and Frisbie that we more particularly rely, because the influence of the epileptic attacks is shown to have been only temporary, and their evidence proves that at the time of this transaction he was abundantly able to transact business. There are cases in which, some degree of mental weakness having- been shown, the courts have inferred the exercise of undue influence from the character of the transaction. In the case before us, no such inference is to be drawn. The defendant had come with his family from Missouri in 1856, at the request of his father, to live with him in his old age. He was the youngest child, and the other children had already been assisted by him to a greater extent than the defendant had been, and were in better circumstances. Under these circumstances, it is not evidence of either mental imbecility or undue influence that the deceased conveyed this property to his son for a fi^action of its value, taking from him notes secured by mortgage for such sum as he thought equitable, for the benefit of his other children, and a bond for his own maintenance during the remainder of his life. The decree must be affirmed. Decree affirmed. DEXTER V. HALL 15 Wall. (U. S.) 9; 21 L. Ed. 73. (1872) Mr. Justice Strong delivered the opinion of the court. ^ The prominent question in this case is, whether a power of at- torney executed by a lunatic is void, or whether it is only voidable. The Circuit Court instructed the jury that a lunatic, or insane person, being of unsound mind, was incapable of executing a contract, deed, power of attorney, or other instrument requiring volition and under- standing, and that a power of attorney executed by an insane person, or one of unsound mind, was absolutely void. To this instruction the defendant below excepted, and he has now assigned it for error. Looking at the subject in the light of reason, it is difficult to per- ceive how one incapable of understanding, and of acting in the ordinarv affairs of life, can make an instrument the efficacy of which consists in the fact that it expresses his intention, or, more properly, his mental conclusions. The fundamental idea of a contract is that it requires the assent of two minds. But a lunatic, or a person non compos mentis. I002 Cases on Reai< Property has nothing which the law recognizes as a mind, and it would seem, therefore, upon principle, that he cartnot make a contract which may have any efficacy as such. He is not amenable to the criminal laws, because he is incapable of discriminating between that which is right and that which is wrong. The government does not hold him re- sponsible for acts injurious to itself. Why, then, should one who has obtained from him that which purports to be a contract be permitted to hold him bound by its provisions, even until he may choose to avoid it? If this may be, efficacy is given to a form to which there has been no rnental assent. A contract is made without any agreement of minds. And as it plainly requires the possession and exercise of reason quite as much to avoid a contract as to make it, the contract of a person without mind has the same effect as it would have had he been in full possession of ordinary understcinding. While he continues insane he cannot avoid it; and if, therefore, it is operative until avoided, the law affords a lunatic no protection against himself. Yet a lunatic, equally with an infant, is confessedly under the protection of courts of law as well as courts of equity. The contracts of the latter, it is true, are generally held to be only voidable (his power of attorney being an ex- ception). Unlike a lunatic, he is not destitute of reason. He has mind, but it is immature, insufficient to justify his assuming a binding obliga- tion. And he may deny or avoid his contract at any time, either during his minority or after he comes of age. This is for him a sufficient protection. But as a lunatic cannot avoid a contract, for want of men- tal capacity, he has no protection if his contract is only voidable. It must be admitted, however, that there are decisions which have treated deeds and conveyances of idiots and lunatics as merely void- able, and not void. In Beverly's Case, which was a bill for relief against a bond made by Snow, a lunatic, it was resolved that every deed, feoffment, or grant, which any man non cvinpos mentis makes, is avoidable, and yet shall not be avoided by himself, because it is a maxim of law that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify himself and disable his own person. A second reason given for the rule was, "because when he recovers his memory he cannot know what he did when he was non compos mentis." Neither of these reasons are now accepted, and the maxim no longer exists. There were other things ruled in Bev- erly's case, among which were these : that the disability of a lunatic is personal, extending only to the party himself, except that it extends to privies in tenure, as lord by escheat, and privies in estate, as tenant in tail; but that privies in blood, as heirs, or privies in representatioDj as Personal Disabilities 1003 executors or administrators, might show the disabiHty of the ancestor, or testator, or intestate. It was also resolved that acts done in a court of record were not avoidable even in equity. Lord Coke, in com- menting on the case, remarked that "as to others there is a great dif- ference between an estate made in person and by attorney ; for if an idiot, or non compos mentis, makes a feoffment in fee in person, and dies, his heir within age, he shall not be in ward, or if he dies without heir the land shall not escheat ; * * * but if the feoffment is made by letter of attorney, although the feoffor shall never avoid it, yet after his death, as to all others, in judgment of law, the estate is void, and therefore in such case, if his heir is within age, he shall be in ward; or, if he dies without heir, the land shall escheat." Such also is the rule as stated in Fitz Herbert's Natura Brevium. This is plainly a recognition of the principle that the letter of attorney of an idiot or lunatic is void, though he may not be permitted himself to assert its nullity. His heir, and all others, may. The doctrine is also asserted that as against the heirs of a lunatic his deed is invalid, and this, we think, has been steadily maintained in England. In Thompson v. Leach, reported in Carthew, and in Comberbach, a clear distinction was taken between the feoffment of a lunatic taking effect by livery of seizin, and his deed of bargain and sale, his sur- render, or grant. The former was held to be voidable only because of the solemnity of the livery, while the latter were held to be void. The case was ejectment brought by a lunatic's heirs, and the controlling question was whether his deed was only voidable, or whether it was absolutely void. The grantor had a life estate upon which were de- pendent contingent remainders, and he made a deed of surrender. If his deed was at any time effective before the contingency happened, it merged the tenancy for life, and destroyed the contingent remainders, and though the deed might afterwards be avoided by any means in law, yet the contingent remainders, being once extinct, could not be revived by any matter ex post facto. It was necessary, therefore, to determine whether the deed was a nullity or whether it was good until avoided. The court resolved that the deed was void, ab initio, because of the grantor's lunacy. It was said that "there is a difference between a feoffment and livery made propriis manibus of an infant, and the bare execution of a deed by sealing and delivery thereof, as in cases of grants, surrenders, releases, &c., which have their strength only by executing them, and in which the formality of livery of seizin is not so much regarded in the law, and, therefore, the feoffment is not void, but voidable ; but surrenders, grants, &c., of an idiot are void ab initio." I004 Cases on Reai< Property The case is a leading one, and it is in some respects more fully re- ported in Salkeld. There it appears not only that the distinction men- tioned is recognized, but that Holt, C. J., declared the deed of a person non compos mentis to be void; that if he grants a rent, and the grantee distrains for arrears, he may bring trespass ; that his letter of attorney, or his bond, are void, because, as he stated, the law had appointed no act to be done for avoiding them. Thompson v. Leach has never been disturbed, and, so far as we know, has never been doubted. It was followed by the case of Yates v. Boen, in Strange, which was an action of debt upon articles. The defendant pleaded "non est factum" and offered to give lunacy in evidence. Upon the authority of Thompson V. Leach, and Smith v. Carr, decided in 1728, the evidence was received. The doctrine of Thompson v. Leach was asserted also in Ball v. Mannin, decided in the House of Lords in 1829. In that case the sole question presented was, by agreement of counsel, whether the deed of a person non compos mentis was invalid at law. In the inferior court the judge had charged the jury that "to constitute such unsoundness of mind as should avoid a deed at law, the i)erson executing such deed must be incapable of understanding and acting in the ordinary affairs of life," and refused to charge that the unsoundness of mind must amount to idiocy. The ruling was sustained by the Court of King's Bench in Ireland, and, on writ of error, by the Exchequer Chamber. The case was then removed to the House of Lords, and the judgment was affirmed. It is, therefore, the settled law of England; and it has been since the decision in Thompson v. Leach, that while the feoffment of an idiot, or lunatic, is only voidable, his deed, and especially his power of attorney, are wholly void. And now by act of Parliament, 7th and 8th Vict. ch. 76, 7, his conveyance by feoffment, or other as- surance, is placed on the same footing with his release or grant. Sir William Blackstone, it is true, appears to have overlooked the distinction made in Thompson v. Leach; and in his commentaries, while admitting that the law was otherwise prior to the reign of Henry VI, asserted the doctrine that the conveyances of idiots and per- sons of non sane memory, as well as of infants and persons under duress, are voidable, but not actually void. But Sir Edward Sugden ' notices this statement with disapproval. His remarks are as follows: "When Beverly's case was decided it was holden that deeds executed by lunatics were voidable only, but not actually void, and therefore they could only be set aside by special pleading, and by the rule of law the party could not stultify himself. And Mr. Justice Blackstone, fol- lowing the old rule, has laid down that deeds of lunatics are avoidable Personal Disabilities 1005 only, and not actually void. But in Thompson v. Leach the distinction was solemnly established that a feoffment with livery of seizin of a lunatic, because of the solemnity of the livery, was voidable only ; but that a bargain and sale, or surrender, &c., was actually void. This, therefore, was the ground of the decision in Yates v. Boen. When the Chief Justice remembered that an innocent conveyance, or a deed, by a lunatic, was merely void, he instantly said, that non est factum might be pleaded to it and the special matter be given in evidence." In this country there has been inconsistency of decision. . Some courts have followed Mr. Justice Blackstone, and Beverly's Case, with- out noticing the distinction made in Leach v. Thompson, Yates v. Boen, and other English cases. Such are the decisions cited from New York, beginning with Jackson v. Gumaer, and those relied upon made in other States. Nowhere, however, is it held that the power of attorney of a lunatic, or any deed of his which delegates authority but conveys no interest, is not wholly void. And in Pennsylvania, in the Estate of Sarah De Silver, it was directly ruled that a lunatic's deed of bargain and sale is absolutely null and void, and the distinction be- tween his feoffment and his deed was recognized. So also in Rogers V. Walker, which was an ejectment by a lunatic, it was held that a purchaser from her had no equity to be reimbursed his purchase- money, or the cost of improvements, and Chief Justice Gibson said : "Since the time of Thompson v. Leach, it has been held that a lunatic's conveyance executed by sealing and delivery only is absolutely void as to third parties, and why not void as to the grantor? It was said to be so for the very unphilosophical reason, that the law does not allow him to stultify himself, — an early absurdity of the common law, which was exploded with us by Bensell v. Chancellor." The doctrine that a lunatic's power of attorney is void finds con- firmation in the analogy there is between the situation and acts of infants and lunatics. Both such classes of persons are regarded as under the protection of the law. But, as already remarked, a lunatic needs more protection than a minor. The latter is presumed to lack sufficient discretion. Reason is wanting in degree. With a lunatic it is wanting altogether. Yet it is universally held, as laid down by Lord Mansfield, in Zouch v. Parsons, that deeds of an infant which do not take effect by delivery of his hand (in which class he places a letter of attorney), are void. We are not aware that any different rule ex- ists in England or in this country. It has repeatedly been determined that a power of attorney made by an infant is void. So it has been decided in Ohio, in Kentucky, in Massachusetts, and in New York. ioo6 Cases on Real pROPfiRTV In fact we know no case of authority in which the letter of attorney of either an infant or a lunatic has been held merely voidable. It must, therefore, be concluded that the Circuit Court was not in error in instructing the jury that a power of attorney executed by an insane person, or one of unsound mind, is absolutely void. * * * BLINN V. SCHWARZ. /77 N. Y. 252; loi Am. St. Rep. 806; 6p N. B. 542. (1904) * * * Vann, J. The deed in question and both powers of at- torney were executed by the plaintiff when he was of unsound mind and incapable of attending to his affairs, as the jury might have found. About two years and a half after he recovered his mind he sued his agent and trustee for a general accounting, and the allegations of his complaint would have permitted the recovery, among other moneys, of the sum of seventy-seven thousand seven hundred and fifty dollars paid by the defendant Julia Schwarz upon the purchase of the property in question. The plaintiff did not allege in his complaint in that action that his agent had received that sum, or any specific money, and it does not expressly appear that he knew when he brought the action what sums had been paid, or under what circumstances, or for what prop- erty. After that complaint had been put in evidence by the defendants, however, the burden was upon the plaintiff of explaining the same, or of showing what he could in answer thereto, but the record contains nothing upon the subject. As he had never been adjudged a lunatic, he could not proceed on the assumption that he was insane, as he al- leged, for that was a question for the jury. The lapse of time between his recovery and his act has an important bearing upon what he is pre- sumed to have known. While neither power of attorney specifically covered the receipt of money paid in consideration of property con- veyed by the plaintiff in person, still the general powers were broad enough to authorize the agent and trustee to collect the same. Although the plaintiff, in the action now before us, excepted to the direction of a verdict in favor of the defendants, he did not rest there but asked to have the question of his insanity at the time of the making of the deed to Mrs. Schwarz submitted to the jury. He did not ask to go to the jury on the whole case, or upon any other question, and by requesting that the question of insanity only should be submitted, he Personal Disabilitibs 1007 waived the right to have the question of ratification, so far as it was one of fact, sent to the jury. The evidence warrants the conclusion that the plaintiff ratified the act of his agent as well as his own with reference to the deed under consideration, provided the deed and. the powers of attorney were not absolutely void, but merely voidable. As we must assume that the plaintiff was insane when he executed those instruments we thus reach the principal question presented by the record, as to whether the contract of a person actually insane, but never so adjudged, is void, or merely voidable, at his election. Using the term in its exact sense and limiting it to the parties them- selves, a void contract is binding upon neither and cannot be ratified. Even if ratified in form by both, it would be a new contract and would take effect only from t'he date of the attempt at ratification. A voidable contract, on the other hand, binds one party but not the other, who may ratify or rescind at pleasure. The word "void" however, is used both in statutes and in decisions of the courts, with several meanings and seldom with the exact one. This is is Illustrated by an opinion of the court of errors, from which we extract the following: "A thing is void which is done against law, at the very time of doing it. and where n'o person is bound by the act; but a thing is voidable which is done by a person who ought not to have done it, but who, nevertheless, cannot avoid it himself, after it is done. Bacon classes under the head of acts which are absolutely void, to all purposes, the bond of a feme covert, an infant, and a person non compos mentis, after an office found and bonds given for the performance of illegal acts. He considers a fraudulent gift void, as to some persons only, and says it is good as to the donor, and void as to creditors. Whenever the act done takes effect as to some purposes, and is void as to persons who have an interest in impeaching it, the act is not a nullity, and, therefore, in a legal sense, is not utterly void but merely voidable. Another test of a void act or deed is that every stranger may take advantage of it, but not of a void- able one: 2 Leo. 218; Viner, tit. 'Void and Voidable,' A. pi. 11. Again, a thing may be void in several degrees : i. Void, so as if never done, to all purposes, so as all persons may take advantage thereof; 2. Void to some purposes only ; 3. So void by operation of law, that he who will have the benefit of it, may make it good" : Anderson v. Roberts, 18 Johns. 516, 527, 9 Am. Dec. 235. Contracts to defraud creditors, those made under duress or while one of the parties was intoxicated and the like are not void but voidable at the option of the injured party, while contracts to do acts forbidden by law, such as the commission of crimes, or not to do acts required by ioo8 Cases on Real Property law, such as refusing to obey a subpoena, are utterly void. So are contracts of insane persons, "made after an inquisition and confirma- tion thereof, but not when made before office found, even if within the period overreached by the finding of the jury, although they are pre- sumed to be so until capacity to contract is shown by satisfactory evi- dence:" Hughes V. Jones, ii6 N. Y. 67, 73, 15 Am. St. Rep. 386, 22 N. E. 446, 5 L- R- A. 637. In Van Deusen v. Sweet, 51 N. Y. 378, relied on by the plaintiff, the headnote is misleading, for the learned judge writing the opinion used the word "void" with a flexible emaning, as on page 384 he says that the deed then in question "was not merely voidable, but absolutely void," and in the third sentence following that "it would have been competent for the plaintiff to have shown that the deed was voidable, if that had been necessary to defeat the defendant's claim : See Phil- lips V. Gorham, 17 N. Y. 270 ; Lattin v. McCarty, 41 N. Y. 107." It is evident from reading the entire opinion that the court had in mind the remedy of the plaintiff at law when it used the former expression, and the rights of the parties in equity when it used the latter. This case has produced some confusion, because, owing to the syllabus, it has been misunderstood. In Goodyear v. Adams, 119 N. Y. 650, 23 N. E. 1149, 5 N. Y. Supp. 275, also relied on by the plaintiff, it was held that a deed executed by an insane person is absolutely void at law, but if taken in good faith and for a valuable consideration may be upheld in equity. The question before us is not whether the deed is void at law, but whether it is void in the extreme sense of the word, not only at law but in equity, so that there was nothing for ratification to act upon. One of the defenses pleaded by the defendant Schwarz is of an ec|uitable nature, as she alleged the payment of a consideration of seventy-eight thousand dollars and that fifty-four thotisand dollars of that amount was applied upon the mortgages on the property which were satisfied of record.- I think the true rule was suggested by the great English commenta- tor, when he said that "Idiots and persons of nonsane memory, infants and persons under duress, are not totally disabled either to convey or purchase, but sttb modo only, for their conveyances and purchases are voidable but not actually void": 2 Blac. Commentaries, 291. Chancellor Kent uses similar language (2 Kent's Commentaries, 451); and other writers lay down substantially the same rule. Mr. Wharton, after a full discussion of the subject, says that "the true rule is that a voidable deed is capable of ratification, and if a grantor, when Personal Disabilities 1009 insane, makes a deed, and should afterward in a lucid interval, well understanding the nature of the instrument, ratify and adopt it as his deed, as by receiving the purchase money due under it, this would give effect to it and render it valid in the hands of the grantee." The learned author cites many authorities in support of this position : i Wharton's Law of Contracts, sec. 107, p. 138. In Bishop on Contracts (sections 873 and 874) it is said: "Plainly, in justice, the same party ought ordinarily to be holden, whether he knew of the insanity or not, if the other or his representative so elects. The authorities on this point may be conflicting, but such is believed to be the better doctrine. This last would make the contract voidable, whatever the courts should hold its other consequences to be. * * * In general, this contract, like an infant's, may be ratified or disaffirmed by the insane party's guardian or committee, or by himself during a lucid interval or on becoming sane, or after his death by his proper legal representative." * * * We will close our quotations with the following from Pollock's Principles of Contract, page 81 : "The contract of a lunatic or drunken man who by reason of lunacy or drunkenness is not capable of under- standing its terms or forming a rational judgment of its effect on his interests is not void, but only voidable at his option; and this only if his state is known to the other party": See, also, Shelford on Lunacy, 419 ; Story's Equity Jurisprudence, 228, 28 Am. &. Eng. Ency. of Law, 1st ed., 478; 9 Am. & Eng. Ency. of Law, 2d ed., 119; Addison on Contracts, 6th ed., 1033 ; Smith on Contracts, 5th ed., 343, 344. Although the decisions of the courts upon the subject are not uni- form according to the weight of authority in this state, as well as else- where, the deed of a lunatic before office found is voidable only and not void. (Citing many cases). * * * We think the rule laid down by these cases is sound and in the in- terest of those afflicted with diseases of the mind. The deed of a lunatic is not void, in the sense of being a nullity, but has force and effect until the option to declare it void is exercised. The right of election implies the right to ratify, and it may be greatly to the advan- tage of the insane person to have that right. If the deed or contract is void, it binds neither party, and neither can derive any benefit there- from, but if voidable, the lunatic, upon recovering his reason, can hold on to the bargain if it is good and let go if it is bad. This option is valuable, for it gives him the power to do as he wishes, and to bind or loose the other party at will. Upon the record before us, therefore, loio Cases on Real Property even if the plaintiflf was insane at the date of the deed, there was no error in directing a verdict for the defendants. * * * HOVEY V. HOBSON. 5J Maine, 451; 8p Am. Dec. 703. (1866) Appleton, C. J. On July 27, 1835, Stephen Neal, then owning the land in controversy, conveyed the same to Samuel E. Crocker, from whom the tenant, by various mesne conveyances, derives his title. On December 28, 1836, Stephen Neal died, leaving Lydia Dennett, then wife of Oliver Dennett, his sole heiress at law. On December 18, 185 1, Oliver Dennett died. On July 15, 1858, Lydia Dennett conveyed the demanded premises to the plaintiff. The plaintiff introduced evidence tending to show that Stephen Neal at the date of his deed to Crocker was insane, and claimed to avoid said deed by reason of such insanity. After the testimony reported had been introduced, the presiding jus- tice ruled "that if Samuel E. Crocker, without fraud, for an adequate consideration, purchased the land of Stephen Neal, and afterwards said Crocker and those claiming under him conveyed said land in good faith until it came into the hands of the tenant for a valuable consid- eration, without any knowledge on his part of any defect in the title, or of any right or claim of any other person therein, then Mrs. Dennett, or those claiming under her, could not avoid her father's deed as against the defendant on the ground of his unsoundness of mind ; and that the tenant would be entitled to a verdict." If Crocker, "without fraud, for an adequate consideration, pur- chased the land of Stephen Neal," Neal being sane, his grantees would undoubtedly acquire a good title. The ruling is, that if insane the same result would follow, the grantees of Crocker being bona fide pur- chasers, and ignorant of the insanity of Neal. The questions there- fore arise: i. As to the rights of an insane man when restored to sanity, or of his heirs, to avoid, as against his immediate grantee, his deed executed and delivered when insane; and 2. As to the rights of those deriving a title in good faith without notice and for a valid con- sideration from such grantee. * * * 2. It is insisted, even if the deed of Neal might have been avoided Peesonai, DisabiliYieS lOtt as between the original grantor and grantee, that this right of avoid- ance ceases when the title has passed into the hands of third persons in good faith for an adequate consideration, and ignorant of any facts tending to impeach such title. It is apparent that the protection of the insane and the idiotic will be materially diminished if the heirs cannot follow the property con- veyed, but are limited in their right of avoidance to the immediate grantee of such insane or idiotic person. The acts of lunatics and infants are treated as analogous, and sub- ject to the same rules: Key v. Davis, i Md. 32; Hume v. Burton, i Ridg. PI. "]"]. "The grants of infants and persons non compos are parallel both in law and reason." Thompson v. Leach, 3 Mod 310. The law is well settled that a minor when of age may avoid his deed given when an infant. He may do this not merely against his grantee, but he may follow the title wherever it may be found, and recover his land. "It may be objected," observes Marshall, J., in Myers v. San- ders, 7 Dana, 524, "that these restrictions upon the right of an adult to avoid his deed obtained by fraud are inconsistent with the principle which allows an infant to avoid his deed into whose hands soever the bill may have passed, and without regard to time, except as a statutory bar running after he becomes of age. But, waiving the inquiry how far the mere acquiescence of an infant grantee, after he becomes of age, may determine his right of revoking his title from the hands of a pur- chaser for value, who has acquired it after such acquiescence, we think the analogy between the cases is too slight to have any decisive in- fluence upon the present question. The right of an infant to avoid his deed is an absolute uncontrollable privilege, founded upon an in- capacity conclusively fixed by the law to bind himself absolutely by deed, or to pass an indefeasible title. These principles are irreversibly fixed by the law, and it enforces them without inquiring into particular circumstances, and without regard to consequences. It must do so in order to maintain them. The right of an adult grantor to avoid his deed for fraud stands upon an entirely different basis. It grows out of the particular circumstances; it is founded in a regard to justice between man and man; it is given as a remedy for- the hardship of his case. In its very foundation and essence it is limited by the justice which is due to others, and therefore cannot be exercised without a regard to their rights and interests. "But again, infancy is not, like fraud, a circumstance wholly ex- traneous from the title. The deed shows who the grantee is ; the pur- chaser knows that an infant grantee cannot pass an indefeasible title; I0I2 Cases on Reai, Property he is bound to know the identity of the person who assumes to convey the title ; and it is not an unreasonable requisition that he shall know whether the grantee under whom he claims title is under incapacity or not. In this view of the subject, no purchaser under an infant's deed is innocent in the eye of the law until the title has been confirmed by the matured congent of the grantor." In Bool v. Mix, 17 Wend. 119 (131 Am. Dec. 258), the suit was against one claiming by a title derived from the grantee of the minor, but the ground was not taken that in consequence thereof the tenant had an indefeasible title. The prin- ciples applicable to deeds voidable for the infancy of the grantor are equally applicable where the grantor is insane. When a man is de- frauded, he may, as against his grantee, avoid his deed, but not against those deriving in good faith and for an adequate consideration a title from such grantee. He has the ability to convey an indefeasible title, — and he does convey such title to all bona fide purchasers from his grantee. The insane man has not the power to convey such indefeas- ible title. This incapacity inheres in all titles derived from him. The grantee whose title is thus derived must rely on the covenants of his deed. He risks the capacity to convey of all through whom his title has passed. The rights of infants and of the insane alike to avoid their contracts is an absolute and paramount right, superior to all equities of other persons, and may be exercised against bona fide purchasers, from the grantee ; i Am. Lead. Cas. 259. Note: There is an extended note on Contracts of Insane Persons, 71 Am. St. Rep. 425. CHAPTER XXXIV. MORTGAGES. Section i. Legal and Equitable Theories. Section 2. Interest Subject to Mortgage. Section 3. Absolute Deed as a Mortgage. Section 4. Sale with a Right to Repurchase. Section 5. Conveyance by Deed in Trust. Section 6. Obligations Secured. Section 7. Liability of Mortgagor. Section 8. Mortgagor as Surety. Section 9. Payment or Tender. Section 10. Unauthorized Satisfaction of Mortgage. Section 11. Foreclosure. Section 12. Sale Without Foreclosure. SEC. 1. LEGAIi AND EQUITABLE THEORIES. JAMIESON V. BRUCE. 6 Gill & Johnson, •J2; 26 Am. Dec. 557. (1834) Archer, J. The point in controversy in this cause involves the con- sideration of the relative rights of mortgagor and mortgagee, before forfeiture, and in a case where the mortgage contains no covenant or agreement that the mortgagor shall retain possession of the property ' mortgaged. The mortgagor seeks to make the mortgagee, obtaining peaceable possession of the mortgaged property before forfeiture, a trespasser. This is not a case in which there is any express covenant, that the mortgagor shall continue in possession until there is a default in pay- ment, nor is it a case in which, by fair inference, or necessary implica- tion from the instrument, the conclusion can be drawn, that the mort- gagor was quietly to enjoy the mortgaged property, but on the contrary, the instrument is wholly silent on the subject. The parties, therefore, must stand upon their legal rights, according to the terms used in the conveyance. 1013 I0I4 Cases on Reai, Property Courts of equity consider a mortgage as a mere security for money. But this is not the light in which it is viewed in courts of law, which, as Mr. Justice Bailey observes, in i Dowl. and Ry. 273, generally know nothing about mortgagor and mortgagee. They look solely to the estate conveyed by the instrument, and consider the mortgagor in possession, unless, under the circumstances above mentioned, as the mortgagee's tenant, and strictly within the definition of a tenant at will ; not, to be sure, entitled to all the privileges of a tenant at will, or answerable for the burdens of such an estate, but liable to have his possession defeated in the same manner. Upon the execution of the mortgage, tlie legal estate becomes immediately vested in the mortgagee, and the right of possession follows as a consequence, subject only to the occupancy of the mortgagor, which is only tacitly permitted until the will of the mortgagee is determined. It is said in I Pow. Mort. 171, that as soon as an estate in mortgage is created, the mortgagee may enter into possession, but as the payment of interest is the principal object of the mortgagee, he seldom avails himself of that "right, unless obliged so to do, to secure the payment of the interest, or with a view to compel the repayment of the money. This right of possession is always subject to any agreements which may be made in relation thereto, and mortgages do generally contain clauses giving the right of possession as against the mortgagee until forfeiture; but where the parties are entirely silent as regards the possession, the right thereto follows the legal estate, and vests in the mortgagee. The above doctrine appears also generally to correspond with the decisions in the different states, although there is certainly some con- flict of authority. It is said in 2 Mass. 43, that after the creation of the estate upon condition, the mortgagee has presently the same right to enter in pais and take the profits, or by judgment and execution in a writ of entry, that he would have if the estate were absolute, subject to account for the profits if the mortgagor perform the condition or redeem. In New Hampshire, Maine and Pennsylvania, the same doctrines appear to prevail, and in 4 Rand. 248, it is said that a mortgagee is entitled to an estate as tenant in fee, or for a term of years, as the case may be, or to an absolute estate in personal property; as regards the title, sub- ject to any agreement as to possession, and defeasible at law by the performance of the condition. In New York, a different doctrine prevails, and a mortgagor may there maintain trespass against a mortgagee. Even the action of eject- Mortgages • 1015 ment by a mortgagee is abolished, and the mortgagee is driven to rely upon a special contract for possession, if he wishes it, or to the remedy by foreclosure and sale. Upon the whole, although there may be cases in which a court of law, as well as a court of equity, would treat the mortgagor as the sub- stantial owner of the estate, yet we are satisfied that unless there be some agreement between the parties, the mortgagee is entitled to pos- session when he chooses to exercise the right. This privilege appears to be essential to the protection of the prop- erty mortgaged, and without such right the security would in many cases be entirely fruitless. RUNYAN V. MERSEREAU. II Johnson, §34; 6 Am. Dec. 393. (18 14) Trespass quare clausum fregit. The plaintiff was in possession of the locus in quo, and had purchased the equity of redemption thereof, under a judgment issued in his behalf against one Leonard. The latter had previously mortgaged the land to Mersereau, under whom the de- fendant entered and cut timber. The question was as to who had the freehold, the mortgagee or the plaintiff, the purchaser under the mortgagor. By Court. This was an action of trespass quare clausum fregit. The plaintiff proved himself in possession of the locus in quo, and showed a title derived under a judgment against one James Leonard, who, it appeared, had mortgaged the land to Joshua Mersereau. By the pleadings, the question presented to the court is, whether the free- hold was in the plaintiff who had purchased the equity of redemption under the judgment against the mortgagor, or in Joshua Mersereau, the mortgagee. Courts of law, both here and in England, have gone very far towards, if not the full length of, considering mortgages, at law as in equity, mere securities for money, and the mortgagee as hav- ing only a chattel interest. Lord Mansfield, Doug. 6.10, says a mort- gagee, notwithstanding the form, has but a chattel, and the mortgage is only a security; that it is an affront to common sense to say the mortgagor is not the real owner. Mortgages are not considered as conveyances of land within the statute of frauds, and the forgiving the debt, with the delivery of the security, is holden to be an extinguish- ioi6 Cases on Reai, Proeerty ment of the mortgage. Mortgages will pass by a will not made with the solemnities of the statute of frauds. The assignment of the debt, or forgiving it even by parol, draws the land after it as a consequence. The debt is considered the principal, and the land as an incident only. The interest of the mortgagee cannot be sold under execution. It is unnecessary to go into an examination of the ca.ses on this subject; they have been repeatedly reviewed by this court: 3 Johns. Cases, 429 ; I Id. 590 ; 4 Id. 42. The light in which mortgages have been considered, in order to be consistent, necessarily leads to the conclusion that the freehold must be considered in the plaintiff, and he, of course, is entitled to judgment. Judgment for the plaintiff. SEC. 2. INTEREST SUBJECT TO MORTGAGE. BUTT V. ELLETT. 19 Wall. (U. S.) 544; 22 L. Bd. 183. (1873) Sillers, the owner of a plantation in Mississippi, leased the same, on the 15th of January, 1867, to Graham, for one year, from January ist, of that year, Graham giving his own note, payable to Sillers, for $3,500, for the rent. And to secure payment of the note embodying in the lease by which the plantation was let to him a mortgage of all the crops raised on the plantation in the year 1867. The mortgage was immediately recorded in due form. The note was never paid. On the 3d of June, 1867, one Ellett, having recovered a judgment against Sillers, sold the plantation at a sheriff's sale under the judg- ment, and bought it; and Sillers transferred to him the note of Graham for $3500, due November ist, 1867, the rent to be paid. Notwithstanding this, Graham, in November of 1867, transferred the whole crop to certain correspondents of his, Butt & Co., who were heavily in advance for him on then existing transactions. They sold the crop and applied the proceeds in account to the payment of Graham's debt to them. Hereupon Ellett filed a bill in the court below against Butt & Co., to charge them, as trustees for hinj, with the proceeds of the crop. The evidence showed: — Mortgages 1017 On the one hand, that planting never begins in Mississippi earlier than March; and, On the other, That on the 6th of February, 1867, the defendants had seen the lease with the mortgage provision in it, but apparently that they re- garded the provision as void. It also showed that on learning that Graham had transferred the crop of 1867 to Butt & Co., EHett im- mediately wrote to them, informing them that the lease with the mort- gage in it had been at once duly recorded; that, besides, they had express notice of its Existence, and that he would hold them accountable as trustees for the proceeds of the crop if they sold it. The court below decreed in favor of the. complainant, and the de- fendant brought the case here. * * * Mr. Justice Swayne delivered the opinion of the court. The mortgage clause in the contract of lease of the 15th of January, 1867, executed by Sillers and Graham, could not operate as a mort- gage, because the crops to which it relates were not then in existence. When the crops grew, the lien attached and bound them effectually from that time. It is admitted that the cotton in question was one of those crops. Ellett having bought the premises became clothed with all the rights of Sillers, touching the rent stipulated to be paid by Graham. The sheriff's deed conveyed the reversion, and the rent followed it as an incident. The lease passed by assignment to the grantee, and all its provisions in favor of the lessor enured to the benefit of the assignee. The appellants had full notice of the rights of Sillers. They read the lease a few days after its execution. Ellett also notified them of his rights and claim. The cotton went impressed with his lien into their hands. When they sold it they took the proceeds in trust for his bene- fit, and became liable to him for the amount. Decree affirmed. PENNOCK et al. v. COE. 23 How. (U. S.J 117; 16 L. Ed. 436. (1859) Mr. Justice Nelson delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the northern district of Ohio. ioi8 Casbs on Reai< Property The bill was filed in the court below, by Coe, mortgagee of the road of the railroad company, in trust, for securing the payment of its bonds, to enjoin the execution of a judgment recovered at law against the company, by Pennock and Hart, two of the defendants. The facts of the case are these : The Cleveland, Zanesville, and Cin- cinnati Railroad Co., created a body politic and corporate by the laws of Ohio, to make a railroad between certain termini in that State, in pursuance of authority conferred by law, issued bonds to the am.ount of $500,000, payable ten years from date, with interest at the rate of seven per cent, payable semi-annually, on the first day of April and October, in each year, and, to secure the payment of the same, executed a mortgage of the railroad and its equipments to the complainant, in trust for the bondholders, the description of which is in the words fol- lowing: "All the present and future to be acquired property of the parties of the first part ; that is to say, their road, made or to be made, including the right of way, and the land occupied thereby, together with the superstructure and tracts thereon, and all rails and other materials used therein, or procured therefor, with the above-described bonds, or the money obtained therefor, bridges, viaducts, culverts, fences, de- pots, grounds and buildings thereon, engines, tenders, cars, tools, ma- chinery, materials, contracts, and all other personal property, right thereto, or interest therein, together with the tolls, rents, or income, to be had or levied therefrom, and all frartchises, rights and privileges, of the parties of the first part, in, to, or concerning the same." At the time of the issuing of these bonds, and the execution of the mortgage, the railroad was in the course of construction, but only a small portion of it finished. It was constructed and equipped almost entirely by means of the funds raised from these bonds, together with a second issue to the amount of $700,000. The road cost upwards of $1,500,000. The stock subscribed and paid in, amounted only to some $369,000. The mortgage securing the payment of the second issue bears date the first of November, 1854, and was made to one George Mvgatt, in trust for the bondholders, and the property described in and covered by it is the same as that described in the first mortgage. The road was finished to Millersburg, its present terminus south, in May, 1854, and the whole of the rolling stock was placed on it 'previous to the date of the second mortgage. This stock was purchased and placed on the road from time to time, as the locomotives and cars were needed in the progress of its construction. The mortgage to the complainant contained a covenant on the part of the company, that the money borrowed for the construction and Mortgages 1019 •equipment of the road should be faithfully applied to that object, and that the work should be carried on with due diligence until the same should be finished. In case of default in the payment of the principal or interest of the bonds, the trustee was empowered to enter upon and take possession of the road, or, at the election of a moiety of the bondholders, to sell the same at public auction, and apply the proceeds to the payment of the bonds. The defendants, Pennock and Hart, being the holders of sixteen of the bonds issued under the second mortgage, recovered a judgment on the same. May, 1856, against the railroad company, issued execu- tion, and levied on a portion of the rolling stock of the road, and caused the same to be advertised for sale. This bill was filed to enjoin the sale, and a decree was rendered per- petually enjoining it in the court below, which is now before us on appeal. The first two grounds of objection taken to this decree may be considered together. They are : i, that the mortgage to the trustee of the 1st April, 1852, is void or inoperative^ as respects the locomotives and cars which were levied on under the execution of the defendants, inasmuch as they were not in existence at the date of it, but were con- structed and placed on the road afterwards, being subsequently ac- quired property of the company. And, 2, that the mortgage is void, on the ground of uncertainty as to the property described or attempted to be described therein and conveyed to the mortgagee. The descrip- tion begins by conveying "all the following present and future acquired property of the said parties of the first part ;" and after specifying the road and the several parts of it, together with the rolling stock, there is added, "and all other personal property, right thereto, and interest therein." This clause, probably, from the connection in which it is found, was intended to refer to property appurtenant to the road, and employed in its operation, and which had not been enumerated; and, if so, the better opinion, perhaps is, that it would be bound by the mortgage even as against judgment creditors. But it is unimportant to express any opinion upon the question, as the property in this case (the locomotives and cars) levied on are ar- ticles specifically enumerated ; and the only uncertainty existing in re- spect to them arises out of their non-existence at the date of the mortgage. An uncertainty of this character need not be separately ex- amined, as it will be resolved by a consideration of the first question, which is, whether or not the ^fter-accjuir^d rolling stock of th? com- 1U20 Cases on Reai< Property pany placed upon the road attaches, in equity, to the mortgage, if with- in the description, from the time it is placed there, so as to protect it against the judgment creditors of the railroad company? If we are at liberty to determine this question by the terms and clear intent of the agreement of the parties, it will be found a very plain one. The company have agreed with the bondholders, (for the mortgagee represents them,) that if they will advance their money to build the road, and equip it, the road and equipments thus constructed, and as fast as constructed, shall be pledged as a security for the loan. This is the simple contract, when stripped of form and verbiage ; and, in or- der to carry out this intent most effectually, and with as little hazard as possible to the lender, the company especially stipulate that the money thus borrowed shall be faithfully applied in the construction and equipment of the road. And in further fulfilment of the intent, the company agrees, that in case of default in the payment of principal or interest, the bondholders may enter upon and take possession of the road, and run it themselves, by their agents, applying the net proceeds to the payment of the debt. The bondholders have fulfilled their part of the agreement, they have advanced the money on the faith of the security ; the company have also fulfilled theirs — they have made the road and equipped it ; it has been partially in operation since January, 1852, and in operation upon the whole line since May, 1854. The road, therefore, as de- scribed in the mortgage, from Hudson to Millersburg, and which was in the course of construction at the date of the instrument, has been finished, and the rolling stock, locomotives, tenders, and cars, also described in it, and which were to be afterwards acquired, have been brought into existence, and placed upon it — all in conformity with the agreement of the parties ; and the question is, whether there is any rule of law or principle of equity that denies effect to such an agree- ment. The main argument urged ag^ainst it is founded upon the maxim, that "a person cannot grant a thing which he has not :" ille non habct, non dat; and many authorities are referred to at law to prove the ]3rop- osition, and many more might have been added from cases in equity, for equity no more than law can deny it. The thing itself is an im- possibility. It may, at once, therefore, be admitted, whenever a party undertakes, by deed or tnortgage, to grant property, real or personal, in presenti, which does not belong to him or has no existence, the deed or mortgage, as the case may be, is inoperative and void, and this either ip a court of law or equity, Mortgages 1021 But the principle has no appHcation to the case before us. The mortgage here does not undertake to grant, in presenti, property of the company not belonging to them or not in existence at the date of it, but care full f distinguishes between present property and that to be afterwards acqnired. Portions of the road had been acquired and finished, and were in operation, when the mortgage was given, up^n which it is conceded it took effect ; other portions were acquired after- wards and especially the iron and other fixtures, besides the greater part of the rolling stock. The terms of the grant or conveyance are : "all present and future to be acquired property of the parties of the first part ;" that is to say, "their road, made or to be made, and all rails and other materials, &c., including iiron rails and equipments, procured or to be procured," &c. We have no occasion, therefore, of calling in question, much less denying, the soundness of the maxim, so strongly urged against the effect of the mortgage upon the property in question, as its force and operation depend upon a different state of facts, and to which different principles are applicable. The inquiry here is, not whether a person can grant in presenti property not belonging to him, and not in exist- ence, but whether the law will permit the grant or conveyance to take eft'ect upon the property when it is brought into existence, and belongs to the grantor, in fulfillment of an express agreement, founded on a good and valuable consideration; and this, when no rule of law is in- fringed or rights of a third party prejudiced? The locomotives and cars were all placed upon the road as early as February, 1854, when, at the furthest, the mortgage attached to those in question, according to its terms, if at all, and the judgment of the defendants was not recovered till May, 1856. We think it very clear, if the company, after having received the money upon the bonds and given the mortgage security, had under- taken to divert the fund from the purpose to which it was devoted, namely, the construction of the road and its equipment, and tipon which the security mainly depended, a court of equity would have interposed, and enforced a specific performance. One of the covenants was, that the money should be faithfully applied to the building and equipment of the road ; or if, after the road was put in operation, the company had undertaken to divert the rolling stock from the use of the road, a like interposition might have been invoked, and this in order to protect the security of the bondholders. And if a court of equity would thus have compelled a specific performance of the contract, we may certainly with cgrifidence conclude that it -yvould sanction th? YOl- 1022 Cases on RtAt, Property untary performance of it by the parties themselves, and give effect to the security as soon as the property is brought into existence. The case of Langton, v. Hasten ( i Hare's Ch. R., 549) supports this view. The mortgage security in that case was the assignment of the ship Foxhound, then on her voyage to the South seas, together with all and singular her masts, &c., "and all oil and head matter, and other cargo, which might be caught or brought home on the said ship, on and from her then present yoyage." The cargo was levied on by a judg- ment creditor on the arrival of the ship at home. A bill was filed to have the mortgage declared a good and valid security for the moneys advanced and that the complainants be entitled to the benefit of the security, in preference to the judgment creditor. The vice chancellor, in giving his opinion, observed : "Is it true that a subject to be acquired after the date of a contract cannot, in equity, be claimed by a purchaser for value under that contract?" And, in answer to the question, he said : "It is impossible to doubt, for some purposes at least, that by contract an interest in a thing not in existence at the time of the contract may, in equity, become the property of the purchaser for value." And, after reviewing the cases in the books, he concludes : "I cannot, without going in opposition to many authorities which have been cited, throw any doubt upon the point that Bixnie the contracting party, would be bound by the assign- ment to the plaintiffs." There are many cases in this country confirming this doctrine, and which have led to the practice extensively of giving this sort of secur- ity, especially in railroad and other similar great and important enter- prises of the day. (2 Selden R., 179; 3 Green Ch. R., 377; 32 N. H. Rep., 484; 25 Barb., 286; ib., 284; 18 B. Munro, 431; Redfield on Railways, 590, and note; 2 Story R., 630; 7 Jurist, 771; Tapfield v. Hillman.) In the case of Tapfield v. Hillman, Tindall, Ch. J., seems inclined to the opinion that, even at law, a mortgage security of future acquisi- tions might have effect given to it, if the terms indicated an intent to comprehend them. The counsel for the appellee referred to the case of Chapman v. Weimer & Steinbacker (4 Ohio R., 481), as denying effect to a mortgage upon after-acquired property. But that was a case at law ; and even there the court held that the mortgage attached after the property was acquired, from the time the right was asserted by the mortgagee. In conclusion upon this point, we are satisfied that the mortgage at- Mortgages 1023 tached to the future acquisitions, as described in it, from the time they came into existence. As to the claim of the judgment creditors, there are several answers to it. In the first place, the mortgage being a valid and effective security for the bondholders of prior date, they present the superior equity to have the property in question applied to the discharge of the bonds. It is true, if the property covered by the mortgage constituted a fund more than sufficient to pay their demands, the court might compel the prior encumbrancer to satisfy the execution, or, on a refusal, the mort- gage having become forfeited, compel a foreclosure arid satisfaction of the bond debt, so as to enable the judgment creditor to reach the sur- plus. Or the court might, upon any unreasonable resistance of the claim of the execution creditor, or inequitable interposition for delay, and to hinder and defeat the execution, permit a sale of the rolling stock sufficient to satisfy it. But no such ground has been presented, or could be sustained upon the facts before us. On the contrary, it cannot be denied but that the whole of the property mortgaged, is in- sufficient to satisfy the bondholders under the first mortgage, much less when those under the second are included. To permit any inter- ference, therefore, on the part of the judgment creditors, with a view to the satisfaction of their debt, consistent with the superior equity of the bondholders, would work only inconveniences and harm to the latter, without any benefit to the former. (3 Hare's Ch. R., 416; 9 Georgia R., 377; Redfield on Railw., 506; 5 Ohio R., 92.) In the second place, the judgment sought to be enforced by the de- fendants was recovered upon bonds of the second jssue, and secured, in common with all the bonds of that issue, upon this property, by virtue of the second mortgage. These bondholders have a common in- terest in this security, and are all equally entitled to the benefit of it ; and in case of a deficiency of the fund to satisfy the whole of the debt, in equity, a distribution is made arnong the holders pro rata. The payment of the bonds of the second issue are also postponed until satisfaction of the issue comprehended within the first mortgage, as the second was taken with a full knowledge of the first. To permit. therefore, one of the bondholders under the second mortgage to pro- ceed at law in the collection of his debt upon execution would not only disturb the pro rata distribution in case of a deficiency, and give him an inequitable preference over his associates, but also have the effect to prejudice the superior equity of the bondholders under the first mortgage, which possesses the prior lien. As the judgment creditors can have no interest in the management 1024 Cases on Reai, Property or disposition of the property, except as bondholders on account of tlie deficiency of the fund, it is unimportant to inquire whether or not the court was right in refusing a receiver, or to direct a sale of the road with a view to a distribution of the proceeds. For aught that appears, the road has been managed, under its present directors, with prudence and fidelity, and to the satisfaction of the bondholders, the parties ex- clusively interested. Another objection taken to the validity of the mortgage is the want of power under the charter to construct the road from Hudson to Millersburg, and consequently to borrow money and pledge the road for this purpose. There is certainly some obscurity in the statutes creating this corporation as to the extent of the line of its road ; but we agree with the court below, that, upon a reasonable interpretation of them, the power is to be found in their charter. They were author- ized to construct the road from some convenient point on the Cleveland and Pittsburgh road, in Hudson, Summit county, through Cuyahoga Falls, and Akron, to Wooster, or some point on the Ohio and Pennsyl- vania railroad, between Massillon and Wooster, and to connect with said Ohio and Pennsylvania road, and any other railroad running in the direction of Columbus. It was clearly not limited, in its southern terminus, to its connection with the Ohio and Pennsylvania road, for there is added, "and any other railroad running in the direction of Columbus." The extension of the road to the Ohio Central road at Zanesville, or at some other point on this road, comes fairly within the description. We have not referred particularly to the authority of the company, under the statute laws of Ohio, to borrow money and pledge the road for the security of the payment, as no such question is presented in the brief or was made on the argument. Indeed, the authority seems to be full and explicit. Decree below affirmed. Mortgages 1025 sec. s. absolute deed as a moetaage. WALLACE V. SMITH. 155 Pa. St., 78; 35 Am. St. Rep. 869; 25 Atl. 807. (1892) * * * SterrETT, J. This case originated in transactions between the plaintiff and John Rynd, one of the defendants, prior to June 3, 1 88 1, and hence it is not affected by provisions of the act approved on that day. ' Nothing was then better settled by a long hne of decisions than that a conveyance of land, intended to operate merely as a security for money, was, in effect, a mortgage, not only as between the parties themselves, but also as to those who had notice of the transaction : Guthrie v. Kahle, 46 Pa. St. 331 ; McClurkan v. Thompson, 69 Pa. St. 305. The reason why such a deed, absolute on its face, might be treated in equity as a mortgage, was because it would be a fraud on the part of the grantee, for example, to hold and use, as indefeasible, an instrument which was delivered to and accepted by him as a defeas- ible instrument or mortgage. The plaintiff in such cases, seeking to reform the instrument, must invoke the equity power of the court, and upon that he must stand or fall. The burden of proof is upon him, and it is only upon clear, precise, and indubitable evidence of the fact that the deed was intended by both parties thereto to operate only as a mortgage that he can succeed in having it so declared by a chancellor : Rowand v. Finney, 96 Pa. St. 192 ; Hartley's Appeal, 103 Pa. St. 23. If the party setting up the defeasance is able to prove the fact by evidence that is not only clear and precise, but at the same time carries with it a conviction of its truth, he is entitled to succeed, notwithstand- ing there may be rebutting testimony tending to prove the contrary. Full credence may be given to the testimony on one side, while that on the other may be rejected as unworthy of belief, or, at best, insufficient to create even a serious doubt : Hartley's Appeal, 103 Pa. St. 23. As Was said by our late brother Clerk : "Each case must, of course, to a great extent depend upon the circumstances peculiar to itself ; but there are certain indicia of intention which frequently occur, and, when they do exist, are always looked to. Among these are the sufficiency of the price paid; whether or not existing securities or evidences of indebted- ness were given up or canceled; whether there was any obligation to repay the purchase money, and whether the grantee entered into im- mediate possession," etc. : Huoncker v. Merkey, 102 Pa. St. 462, and authorities there cited. 1026 Cases on Real Property One of the tests by which to determine whether the conveyance of land in consideration of grantor's indebtedness to grantee is to be deemed an absolute sale or a mortgage is the effect which the parties intend the conveyance shall have on the indebtedness itself. In i Jones on Mortgages, section 267, the subject is discussed thus: "If the in- debtedness be not canceled equity will regard the conveyance as a mortgage, whether the grantee has so regarded it or not. He cannot at the same time hold the land absolutely and retain the right to enforce payment of the debt on account of which the conveyance was made. The test, therefore, in cases of this sort, * * * is to be foimd in the question whether the debt was discharged or not by the convey- ance." To the same effect is Null v. Fries, no Pa. St. 521, in which it was held that an absolute conveyance, in consideration of grantor's indebtedness, etc., may be shown to have been a mortgage if the debt survived. If, however (as in that case), the judgments and securities which constituted the. consideration for the conveyance are satisfied and canceled, the mere fact that the grantee executed articles of agree- ment giving the grantor an option to repurchase the property within a certain time will not make the transaction a mortgage. The substance of the bill and answer and the principal facts of the case sufficiently appear in the report and supplemental report of the learned master. It is therefore unnecessary to restate them here. His inferences of fact and conclusions of law being in favor of plaintiff, he accordingly recommended a decree substantially as prayed for. Six- teen exceptions to the report were filed by defendants. These were fully heard by the learned court, who, upon consideration thereof, sus- tained five of them, and dismissed the bill, with costs to be paid by plaintiff. The exceptions thus sustained are fully recited in the second to sixth specifications inclusive. In substance, they are to the effect that the case upon the pleadings and the proofs, was insufficient to warrant the master in finding that the deed in question was intended by the parties thereto to operate as a mortgage, and in so treating it in the decree he recommended. After an examination of the record, including the pleadings and the testimony, and due consideration of the same in the light of the principles applicable to such cases, es- pecially the character and degree of the proof required, we are con- strained to the same conclusion that was reached by the learned court below. While there are some indicia of an intention to consider the deed in question as merely security for the money advanced by Rynd, one of the defendants, to pay plaintiff's mortgage debt to the Dollar Savings Bank, the proof is not of that clear, precise, and convincing Mortgages 1027 character that is required to move the conscience of a chancellor to reform a deed, absolute on its face, and declare by his decree that the parties thereto intended that it should operate merely as a mortgage. Referring to Rynd's assumption and payment of said mortgage debt, amounting, with interest, to nearly four thousand four hundred dol- lars, plaintiff was asked whether he then or thereafter gave Rynd any obligation or written evidence of indebtedness for the amount thus advanced or for other money, and his reply was, "No, not that I remember.'' The substance of plaintiff's testimony as to his understanding at the tinje the land was conveyed to Rynd is, that the latter would reconvey the same "at any time I could see my way clear to give back his money"; "that was the only promise that was made." In slightly varied forms of expression he repeated this several times. His wife's testimony was to the same effect. In his affidavit of defense, filed in No. 141, October terrri, 1891, he stated the arrangement thus : "If said affiant should elect to redeem said realty at any time, that affiant would have the privilege or right so to do, by repaying the amount he, affiant, would owe the said John Rynd. That on the day of May, 1890, affiant elected to redeem said realty, and tendered a certain sum of money for that purpose to both Rynd and Smith." It is even more than doubtful whether ever such election would have been attempted or tender made if it had not been for the advance in prices of land in the neighborhood, stimulated by developments for oil purposes. It does not appear that, during the more than nine years preceding, plaintiff had ever seen his "way clear" to give back to Rynd the money he paid or advanced in consideration of the conveyance in April, 1880. Nor does it appear that he was ever under any obligation to repay the same, however clearly he might have seen his way to do so. On the theory of indebtedness, the amount which Rynd would have been entitled to receive when suit was brought, including money advanced to pay the mortgage, the judgment, etc., with interest would be nearly ten thousand dollars. When Mr. Smith accepted the trust under Mr. Rynd's deed of May 18, 1885, and assumed charge of the farm, plaintiff never sug- gested that he had any interest therein, or any right to redeem the same; nor did he ever intimate anything of the kind for nearly five years thereafter. On the contrary, after the death of his mother, in 1888, for whom the provision was made in the trust deed, plaintiff leased the farm from the trustee, and at one time spoke of buying it. It was not until shortly before this suit was brought, in 1890, that the 1028 Cases on Reai, Property trustee received any intimation of plaintiff's claim, either from him or from any other source. Plaintiff-'s equity, if he ever had any, is very stale. There are other facts and circumstances tending to cast doubt on plaintiff's claim, but it is unnecessary to specify them. It is sufficient to say that his contention is not sustained by that clear, precise, and indubitable proof which alone should move a chancellor to declare by his decree that the deed in question was intended by the parties thereto to operate .merely as security for the money advanced. We therefore think there was no error in sustaining the five exceptions referred to, and in dismissing the bill at plaintiff's costs. / • Decree affirmed, and appeal dismissed, with costs, including costs in the court below, to be paid by appellant. PEUGH V. DAVIS. p6 U. S. 335; 24 t. Ed. r75- (^S77) Mr. Justice Field delivered the opinion of the court. This is a suit in equity to redeem certain property, consisting of two squares of land in the city of Washington, from an alleged mortgage of the complainant. The facts, out of which it arises, are briefly these : In March, 1857, the complainant, Samuel A. Peugh, borrowed from the defendant, Henry S. Davis, the sum of $2,000, pay- able in sixty days, with interest at the rate of three and three-fourths per cent a month, and executed as security for its payment a deed of the two squares. This deed was absolute in form, purporting to be made upon a sale of the property for the consideration of the $2,000. and contained a special covenant against the acts of the grantor and parties claiming under him. This loan was paid at its maturity, and the deed returned to the grantor. In May following, the complainant borrowed another sum from the defendant, amounting to $1,500, payable in sixty days, with the same rate of interest, and as security for its payment redelivered to him the same deed. Upon this sum the interest was paid up to the 6th of September following.- The principal not being paid, the defendant placed the deed on record on the 7th of that month. In January, 1858. a party claiming the squares under a tax title brought two suits in ejectment for their recovery. The defendant thereupon demanded Mortgages 1029 payment of his loan, as he had previously done, but without success. On the 9th of February following, the complainant obtained from the defendant the further sum of $500, and thereupon executed to him an instrument under seal, which recited that he had previously sold and conveyed to the defendant the squares in question; that the sale and conveyance were made with the assurance and promise of a good and indefeasible title in fee-simple; and that the title was now dis- puted. It contained a general covertant warranting the title against all parties, and a special covenant to pay and refund to the defendant the costs and expenses, including the consideration of the deed, to which he might be subjected by reason of any claim or litigation on account of the premises. Accompanying this instrument, and bearing the same date, the complainant gave the defendant a receipt for $2,000, purporting to be in full for the purchase of the land. The question presented for determination is whether these instru- ments, taken in connection with the testimony of the parties, had the effect of releasing the complainant's equity of redemption. It is in- sisted by him that the $500 advanced at the time was an additional loan, and that the redelivered deed was security for the $2,000, as it had previously been for the $1,500. It is claimed by the defendant that this money was paid for a release of the equity of redemption which the complainant offered to sell for that sum, and at the same time to warrant the title of the property and indemnify the defendant against loss from the then pending litigation. It is an established doctrine that a court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as security for a loan of money. That court looks beyond the terms of the instrument to the real transaction ; and when that is shown to be one of security, and not of sale, it will give effect to the actual contract of the parties. As the equity, upon which the court acts in such cases, arises from the real character of the transaction, any evidence, written or oral, tending to show this is admissible. The rule which excludes parol testimony to contradict or vary a written instrument has reference to the lan- guage used by the parties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the object of the parties in executing and receiving the instrument. Thus, it may be shown that a deed was made to defraud creditors, or to give a preference, or to secure a loan, or for any other object not apparent on its face. The object of parties in such cases will ])e considered by a court of equity ; it constitutes a ground for the exercis^ of its jurisdiction, which will always be asserted to prevent i03«* CasBS on Real Property ' fraud or oppression, and to promote justice. Hughes v. Edwards, 9 Wheat. 489; Russell v. Southard, 12 How. 139; Taylor v. Luther, 2 Sumn. 228; Pierce v. Robinson, 13 Cal. 116. It is also an established doctrine that an, equity of redemption is in- separably connected with a mortgage; that is to say, so long as the instrument is one of security, the borrower has in a court of equity a right to redeem the property upon payment of the loan. This right cannot be waived or abandoned by any stipulation of the parties made at the time, even if embodied in the mortgage. This is a doctrine from which a court of equity never deviates. Its maintenance is deemed essential to the protection of the debtor, who,' under pressing neces- sities, will often submit to ruinous conditions, expecting or hoping to be able to repay the loan at its maturity, and thus prevent the con- ditions from being enforced and the property sacrificed. A subsequent release of the equity of redemption may undoubtedly be made to the mortgagee. There is nothing in the policy of the law which forbids the transfer to him of the debtor's interest. The trans- action will, however, be closely scrutinized, so as to prevent any op- pression of the debtor. Especially is this necessary, as was said on one occasion by this court, when the creditor has shown himself ready and skilful to take advantage of the necessities of the borrower. Rus- sell v. Southard, supra. Without citing the authorities, it may be stated as conclusions from them, that a release to the mortgagee will not be inferred, from equivocal circumstances and loose expressions. It must appear by a writing importing in terms a transfer of the mort- gagor's interest, or such facts must be shown as will operate to estop him from asserting any interest in the premises. The release must also be for an adequate consideration; that is to say, it must be for a con- sideration which would be deemed reasonable if the transaction were between other parties dealing in similar property in its vicinity. Any marked undervaluation of the property in the price paid will vitiate the proceeding. If, now, we apply these views to the question before us, it will not be difficult of solution. It is admitted that the deed of the complainant was executed as security for the loan obtained by him from the de- fendant. It is, therefore, to be treated as a mortgage, as much so as if it contained a condition that the estate should revert to the grantor upon payment of the loan. There is no satisfactory evidence that the equity of redemption was ever released. The testimony of the parties is directly in conflict, both being equally positive, — the one, that the advance of $500 in February, 1858, was an additional loan; and the Mortgages 103 i other, that it was made in purchase of the mortgagor's interest in the property. The testimony of the defendant with reference to othet matters connected with the loan is, in several essential particulars, suc- cessfully contradicted. His denial of having received the instalments of interest prior to September, 1857, ^""^ his hesitation when paid checks for the amounts with his indorsement were produced, show that his recollection cannot always be trusted. Aside from the defective recollection of the creditor, there are sev- eral circumstances tending to support the statement of the mortgagor. One of them is that the value of the property at the time of the alleged release was greatly in excess of the amount previously secured with the additional $500. Several witnesses resident at the time in Wash- ington, dealers in real property, and familiar with that in controversy and similar property in its vicinity, place its value at treble that amount. Some of them place a still higher estimate upon it. It is not in accordance with the usual course of parties, when no fraud is prac- ticed upon them, and they are free in their action, to surrender their interest in property at a price so manifestly inadequate. The tax title existed when the deed was executed, and it was not then considered of any validity. The experienced searcher who examined the records pronounced it worthless, and so it subsequently proved. Another circumstance corroborative of the statement of the mort- gagor is, that he retained possession of the property after the time of the alleged release, enclosed it, and either cultivated it or let it for cultivation, until the enclosure was destroyed by soldiers at the com- mencement of the war in 1861. Subsequently he leased one of the squares, and the tenant erected a building upon it. The defendant did not enter into possession until 1865. These acts of the mortgagor jus- tify the conclusion that he never supposed that his interest in the property was gone, whatever the mortgagee may have thought. Par- ties do not usually enclose. and cultivate property in which they have no interest. The instrument executed on the 9th of February, 1858, and the ac- companying receipt, upon which the defendant chiefly relies, do not change the original character of the transaction. That instrument con- tains only a general warranty of the title conveyed by the original deed, with a special covenant to indemnify the grantee against loss from the then pending litigation. It recites that the deed was executed upon a contract of sale contrary to the admitted fact that it was given as security for a loan. The receipt of the $2,000, purporting to be the purchase-money for the premises, is to be construed with the instru- 1032 Casbs on ReaIv Property ment, and taken as having reference to the consideration upon which tlie deed had been executed. That being absolute in terms, purporting on its face to be made upon a sale of the property, the other papers referring to it were drawn so as to conform with those terms. They are no more conclusive of any actual sale of the mortgagor's interest than the original deed. The absence in the instrument of a formal transfer of that interest leads to the conclusion that no such transfer was intended. We are of opinion that the complainant never conveyed his interest in the property in controversy except as security for the loan, and that his deed is a subsisting security. He has, therefore, a right to redeem the property from the mortgage. In estimating the amount due upon the loan, interest only at the rate of six per cent per annum will be allowed The extortionate interest stipulated was forbidden by statute, and would, in a short period, have devoured the whole estate. The defendant should be charged with a reasonable sum for the use and occupation of the premises from the time he took possession in 1865, and allowed for the taxes paid and other necessary expenses incurred by him. The decree of the Supreme Court of the District must be reversed, and the cause remanded for further proceedings, in accordance with this opinion, and it is So ordered. SEC. 4. SALE WITH A RIGHT TO REPURCHASE. CONWAY'S EXECUTORS AND DEVISEES v. ALEXANDER. 7 Cranch (U. S.) 218; 3 L. Ed. 321. (1812) Mr. Chief Justice Marshali, delivered the opinion of the Court. This suit was brought by Walter S. Alexander, as devisee of Rob- ert Alexander, to redeem certain lands lying in the neighborhood of Alexandria, which were conveyed by Robert Alexander, in trust, by deed dated the 20th of March, 1788, and which were afterwards conveyed to William L,yles, and by him to the testator of the plaintiffs in error. The deed of the 20th of March, 1788, is between Robert Alexander of the first part, William Lyles of the second part, and Robert T. Hooe, Mortgages 1033 Robert Muire, and John Allison, of the third part. Robert Alexander, after reciting that he was seised of an undivided moiety of four hun- dred acres of land, except forty acres thereof previously sold to Bald- win Dade, as tenant in common with Charles Alexander, in considera- tion of eight hundred pounds paid by William Lyles, and of the cove- nants therein mentioned, grants, bargains, and sells twenty acres, part of the said undivided moiety, to William Lyles, his heirs and assigns forever, and the residue thereof, except that which had been previously sold to Baldwin Dade, to the said Robert T. Hooe, Robert Muire, and John Allison, in trust, to convey the same to William Lyles at any reasonable time after the ist of July, 1790, unless Robert Alexander shall pay to the said William Lyles, on or before that day, the sum of seven hundred pounds, with interest from the said 20th of March, 1788. And if the said Robert Alexander shall pay the said William Lyles, on or before that day, the said sum of seven hundred pounds, with interest, then to reconvey the same to the said Robert Alexander. , Robert Alexander further covenants, that, in the event of a convey- ance to him the said twenty acres sold absolutely shall be laid off ad- joining the tract of land on which William Lyles then lived. The trustees covenant to convey to William Lyles, on the non-payment of the said sum of seven hundred pounds; and to reconvey to Robert Alexander in the event of payment. Robert Alexander covenants for further assurance as to the one hundred and forty acres, and warrants the twenty acres to William Lyles and his heirs. On the 19th of July, 1790, the trustees, by a deed in which the trust is recited, and that Robert Alexander has failed to pay the said sum of seven hundred pounds, conveyed the said land in fee to William Lyles. On the 23d of August, 1790, William Lyles, in consideration of nine hundred pounds, conveyed the said twenty acres of land, and one hundred and forty acres of land to Richard Conway, with special warranty against himself and his heirs. On the 9th of April, in the year 1791, a deed of partial partition was made between Richard Con- way and Charles Alexander. This deed shows that Charles Alexander asserted an exclusive title in himself to a considerable part of this land. Soon after this deed of partition was executed, Richard Conway en- tered upon a part of the lands assigned to him, and made on them per- manent improvements of great value and at considerable expense. In January or February, 1793, Robert Alexander departed this life, having first made his last will in writing, in which he devises the land sold to Baldwin Dade ; but does not mention the land sold to William Lyles. 1034 Cases on Real Property The plaintiff, who was then an infant, and who attained his age of twenty-one years in November, 1803, brought his bill to redeem in 1807. He claims under the residuary clause of Robert Alexander's will. The question to be decided is, whether Robert Alexander, by his deed of March, 1788, made a conditional sale of the property conveyed by that deed to trustees, which sale became absolute by the non- payment of seven hundred pounds, with interest, on the 1st of July, 1790, and by the conveyance of the 19th of that month; or is to be considered as having only mortgaged the property so conveyed. To deny the power of two individuals, capable of acting for them- selves, to make a contract for the purchase and sale of lands defeasible by the payment of money at a future day ; or, in other words, to make a sale with a reservation to the vendor of a right to repurchase the same land at a fixed price and at a specified time, would be to transfer to the court of chancery, in a considerable degree, the guardianship of adults as well as of infants. Such contracts are certainly not pro- hibited either by the letter or the policy of the law. But the policy of the law does prohibit the conversion of a real mortgage into a sale. And as lenders of money are less under the pressure of circumstances which control the perfect and free exercise of the judgment than bor- rowers, the effort is frequently made by persons of this description to avail themselves of the advantage of this superiority, in order to obtain inequitable advantages. For this reason the leaning of courts has been against them, and doubtful cases have generally been decided to be mortgages. But as a conditional sale, if really intended, is valid, the inquiry in every case must be, whether the contract in the specific case is a security for the repayment of money or an actual sale. In this case the form of the deed is not, in itself, conclusive either way. The want of a covenant to repay the money is not complete evidence that a conditional sale was intended ; but is a circumstance of no inconsiderable importance. If the vendee must be restrained to his principal and interest, that principal and interest ought to be secure. It is, therefore, a necessary ingredient in a mortgage, that the mortgagee should have a remedy against the person of the debtor. If this remedy really exists, its not being reserved in terms will not affect the case. But it must exist in order to justify a construction which overrules the express words of the instrument. Its existence, in this case, is cer- tainly not to be collected from the deed. There is no acknowledgment of a pre-existing debt, nor any covenant for repayment. An action at law, for the recovery of the money, certainly could not have been sus- MoR'^GAGtlg 1635 tained; and if, to a bill in chancery praying a sale of the premises, and a decree for so much money as might remain due, Robert Alex- ander had answered that this was a sale- and not a mortgage, clear proof to the contrary must have been produced to justify a decree against him. That the conveyance is made to trustees is not a circumstance of much weight. It manifests an intention in the drawer of the instru- ment to avoid the usual forms of a mortgage, and introduces third persons, who are perfect strangers to the transaction, for no other conceivable purpose than to entitle William Lyles to a conveyance sub- sequent to the non-payment of the seven hundred pounds, on the day fixed for its payment, which should be absolute in its form. This in- tention, however, would have no influence on the case, if the instrument was really a security for money advanced and to be repaid. It is also a circumstance which, though light, is not to be entirely disregarded, that the twenty acres, which were admitted to be pur- chased absolutely, were not divided and conveyed separately. It would seem as if the parties considered it as at least possible that a division might be useless. Having made these observations on the deed itself, the court will proceed to examine those extrinsic circumstances which are to deter- mine whether it is to be construed a sale or a mortgage. It is certain that this deed was not given to secure a pre-existing debt. The con- nection between the parties- commenced with this transaction. The proof is also complete that there was no negotiation between the parties respecting a loan of money; no proposition ever made respecting a mortgage. The testimony on this subject is from Mr. Lyles himself and from Mr. Charles Lee There is some contrariety in .their testimony, but they concur in this material point. Mr. Lyles represents Alexander as desirous of selling the whole land absolutely, and himself as wishing to decline an absolute purchase of more than twenty acres. Mr. Lee states Lyles as having represented to him that Alexander was un- willing to sell more than twenty acres absolutely, and offered to sell the residue conditionally. There is not, however, a syllable in the cause, intimating a proposition to borrow money or to mortgage property. No expression is proved to have ever fallen from Robert Alexander before or after the transaction, respecting a loan or mortgage. ,He does hot appear to have imagined that money was to be so obtained ; and when it became absolutely necessary to raise money, he seems to have considered the sale of property as his only resource. 1036 Cases on R£al Property To this circumstance the court attaches much importance. Had there been any treaty, any conversation respecting a loan or a mort- gage, the deed might have been, with more reason, considered as a cover intended to veil a transaction differing in reality from the ap- pearance it assumed; But there was no such conversation. The par- ties met and treated upon the ground of sale, and not of mortgage. It is not entirely unworthy of notice that William Lyles was not a lender of money, nor a man who was in the habit of placing his funds beyond his reach. This, however, has not been relied upon, because the evidence is admitted to be complete, that Lyles did not intend to take a mortgage. But it is insisted that he intended to take a security for money, and to avoid the equity of redemption ; an intention which a court of chancery will invariably defeat. His not being in the practice of lending money is certainly an argu- ment against his intending this transaction as a loan ; and the evidence in the cause furnished strong reason for the opinion that Robert Alex- ander himself did not so understand it. In this view of the case the proposition made to Lyles, being for a sale and not for a mortgage, is • entitled to great consideration. There are other circumstances, too, which bear strongly, upon this point. The case, in its own nature, furnishes intrinsic evidence of the im- probability that the trustee would have conveyed to William Lyles without some communication with Robert Alexander. They certainly ought to have known from himself, and it was easy to procure the in- formation, that the money had not been paid. If he had considered this deed as a mortgage, he would naturally have resisted the convey- ance, and it is probable that the trustees would have declined making it. This probability is very much strengthened by the facts which are stated by Mr. Lee. The declaration made to him by Lyles, after having carried the deed drawn by Mr. Lee to Mr. Hooe, that the trustees were unwilling to execute it until the assent of Alexander could be obtained, and the directions given to apply for that assent, furnish strong reasons for the opinion that this assent was given. It is also a very inaterial circumstance that, after a public sale from Lyles to Conway, and a partition between Conway and Charles Alex- ander, Conway took possession of the premises, and began those ex- pensive improvements which have added so much to the value of the property. These facts must be presumed to have been known to Robert Alexander. They passed within his view. Yet his most in- timate friends never heard him suggest that he retained any interest in the land. In this aspect of the case, too, the will of Robert Alexander Mortgages ^ 1037 is far from being unimportant. That he mentions forty acres, sold to Baldwin Dade, and does not mention one hundred and forty acres, the residue of the same tract, can be ascribed only to the opinion that the residue was no longer his. This, then, is a case in which there was no previous debt, no loan in contemplation, no stipulation for the repayment of the money ad- vanced, and no proposition for or conversation about a mortgage. It is a case in which one party certainly considered himself as making a purchase, and the other appears to have considered himself as making a conditional sale. Yet there are circumstances which nearly balance these, and have' induced much doubt and hesitation in the mind of some of the court. The sale, on the part of Alexander, was not completely voluntary. He was in jail and was much pressed for a sum of money. Though this circumstance does not deprive a man of the right to dispose of his property, it gives a complexion to his contracts, and must have some influence in a doubtful case. The very fact that the sale was con- ditional, implies an expectation to redeem. A conditional sale made in such a situation, at a pric^ bearing no proportion to the value of the property, would bring suspicion on the whole transaction. The excessive inadequacy of price would, in itself, in the opinion of some of the judges furnish irresistible proof that a sale could not have been intended. If lands were sold at five pounds per acre conditionally, which, in fact, were worth fifteen or twenty pounds, or fifty pounds per acre, the evidence furnished by this fact, that only a security for money could be intended, would be, in the opin- ion of three judges, so strong as to overrule all the opposing testimony in the cause. But the testimony on this point is too uncertain and conflicting to prevail against the strong proof of intending a sale and purchase, which was stated. The sales made by Mr. Dick and Mr. Hartshorne of lots for building, although of land more remote from the town of Alexan- dria than that sold to Lyles, may be more valuable as building lots, and may consequently sell at a much higher price than this ground would have commanded. The relative value of property in the neighbourhood of a town depends on so many other circumstances than mere distance, and is so different at different times, that these sales cannot be taken as a sure guide. That twenty acres, part of the tract, were sold absolutely for five pounds per acre ; that Lyles sold to Conway at a very small advance ; that he had previously offered the property to others unsuccessfully ; 1038 Cases on Reai, Property that it was valued by several persons at a price not much above what he gave ; that Robert Alexander, although rich in other property, made no effort to relieve this, are facts which render the real value, at the time of sale, too doubtful to make the inadequacy of price a circum- stance of sufficient weight to convert this deed into a mortgage. It is, therefore, the opinion of the court, that the decree of the circuit court is erroneous, and ought to be reversed and that the cause be remanded to that court with directions to dismiss the bill. Decree reversed. SEC. a CONVEYANCE BY DEED IN TRUST. SHILLABER v. ROBINSON. P7 U. S. 69; 34 L. Ed. P67. (1877) The original transaction, which gave rise to the present suit, was a sale by John Shillaber of about three thousand acres of land, in the State of Illinois, to John Robinson, the appellee. The contract was evidenced by a written agreement, by which it appears that Robinson, in part payment of the Illinois land, was to convey to Shillaber three different parcels of land, lying in the State of New York, — one in Kings, one in Sullivan and one in Essex Counties. On this contract, a suit, in the nature of a bill for specific perform- ance, was brought, in the Circuit Court of Ogle County, Illinois, by Robinson against Shillaber. The latter having subsequently died, his sole heir, Theodore Shillaber, was substituted as defendant. The suit resulted in a decree which, among other things, established an in- debtedness of Shillaber to Robinson, on final accounting, of $4,249.58 ; and ordered that, on the payment of this sum, Robinson should convey to Shillaber the lands in New York, already mentioned. In order that the whole matter should be finally disposed of, the decree then or- dered that Robinson and wife should rrtake and deposit with the clerk of the court a good and sufficient conveyance for said lands, as an escrow, to be delivered to Shillaber on his payment of the sum afore- said within ninety days. It further provided that, if the money was not paid by Shillaber within that time, Robinson should convey the lands, in trust, to Silas Noble, who "should proceed to sell the same, in such manner, and after giving such reasonable notice of the time Mortgages 1039 and place of such sale, as might be usual or provided by law in the -State of New York;" and out of the proceeds pay the expenses of the trust and the money due Robinson, with interest, and hold the re- mainder, if any, subject to the order of the court. Shillaber did not pay the money as ordered by the decree. Robinson then made the deed of trust to Noble, in strict accordance with the terms of the decree ; and Noble, after giving notice of sale, by publica- tion once a week for six weeks successively in the "Brooklyn Stand- ard," sold, at public auction, on the sixteenth day oi March, 1861, the lands to John A. Robinson, for the sum of $1,950, and made to him a conveyance of the same. Said John A. Robinson purchased the lands for the benefit of John Robinson. Neither the deed from John Robin- son to Noble, nor that from the latter to John A. Robinson was placed upon record. Since that time, and before the commencement of the present suit, John Robinson sold all these lands to divers and sundry individuals, for sums amounting in the aggregate to $9,628. * * * Mr: Justice Miller, after stating the case, delivered the opinion of the court. The principal, in fact the only, defence which merits ar^y considera- tion in this case, is that by the trust-deed which Robinson made to Noble under the decree of the court, and by the sale which Noble made in conformity to the terms of the decree, and of that deed, Shillaber's rights were completely divested in the land ; and since it did not bring, at that sale, as much money as was due to Robinson, which, by the terms of both the decree and the deed of trust, was to be paid to him out of the proceeds of that sale, nothing was left for Shillaber in the matter. The decree in the Illinois suit, in which Theodore Shillaber had appeared after his father's death, is binding and conclusive on both parties. The deed of trust made by Robinson to Noble is in accordance with the decree, and conferred an authority on him to sell the land. The purpose of this sale, as expressed in- the deed of trust and the decree, was to pay to Robinson the $4,249.58, which was a first lien on the land, and the balance into the court, for the use of Shillaber. Much discussion has been had in the case as to the nature of the conveyance to Noble, one party insisting that it is a simple mortgage with power of sale, and the other that it is, under the statutes of New York, the creation of a valid trust in lands. The point of this discussion is found in the question, whether the sale by Noble, under that instrument, was valid or was void. The counsel of defendant I040 Casbs on Real Property insists that Noble became vested with a perfect title to the land by the deed of Robinson, and that his sale and conveyance are valid whether he pursued the direction of the deed in regard to advertising or not; and that, if any such advertising were necessary, there was no usual notice, nor any provided by law, for such sales in the State of New York. It is shown by the evidence that Noble did publish a notice that the three pieces of land in the three different counties would be sold on a day mentioned, at Montague Hall, in the city of Brooklyn. This notice was published for six weeks preceding the day appointed for the sale, in the "Brooklyn Standard," a weekly paper printed in Kings County. But the statutes of New York, then in force, prescribed publication of such notice for twelve weeks successively before the sale. If the instruinent under which Noble acted is a mortgage with power of sale, it is beyond dispute that the sale is void, because it was not made in conformity with the terms on' which alone he was authorized to sell. That the sale, under such circumstances, is void, is too well established to admit of controversy. We refer specially to the recent case in this court of Bigler v. Waller, 14 Wall 302. The list of au- thorities cited by the appellant are to the same effect. Without entering into the argument of the question whether the instrument under which Noble acted is in all respects a mortgage, the case of Lawrence v. The Farmers' Loan & Trust Co. (13 N. Y. 200'), shows that it is an instrument which for the purposes of the sale under the power which it contains, comes under the provisions of the statute we have cited as regards publication of notice. It also decides that a sale made without such notice is void. It is the well-settled doctrine of courts of equity, that a conveyance of land, for the purpose of se- curing payment of a sum of money,' is a mortgage, if it leaves a right to redeem upon payment of the debt. If there is no power of sale, the equity of redemption remains until it is foreclosed by a suit in chan- cery, or by some other mode recognized by law. If there is a power of sale, whether in the creditor or in some third person to whom the conveyance is made for that purpose, it is still in effect a mortgage, though in form a deed of trust, and may be foreclosed by sale in pur- suance of the terms in which the power is conferred, or by suit in chancery. These instruments generally give specific directions regard- ing the notice to be given, and of the time, place, and terms of the sale. In some States, the statute prescribes the manner of giving this notice, and in such case it must be complied with. In either case, the validity Mortgages 1041 of the sale being wholly dependent on the power conferred by the instrument, a strict compliance with its terms is essential. If this is not a mortgage to which the notice of the New York statute is applicable, we do not see that the defendant's position is improved by that circumstance; for there is, then, no provision for a sale or foreclosure of the etjuity of Shillaber, but by a deciree of an equity court. This has never been had, and it still remains that there has been no valid execution of the trust reposed in Noble by the deed. If the matter had remained in this condition, Shillaber would, on payment to Robinson of the $4,249.58, with interest, have had a right, en- forceable in this suit, to have a conveyance of the New York land by Noble to him. But neither the conveyance by Robinson, which re- mained an escrow, nor that to Noble, was ever placed on record; and Robinson, in whom, according to the records of the proper counties in New York, the title still remained, sold all these lands to persons who, as innocent purchasers for a valuable consideration, now hold them by a good title. This title is equally beyond the reach of Robinson, of Shillaber, and of the court. Indeed, although Robinson alleges in his answer that the purchase of John A. Robinson v/as made for his bene- fit, he seems to have attached no importance to it ; for he does not aver that John A. Robinson ever conveyed to him, nor does he, while giving copies of all the deeds on which he relies, including the deed to John A. Robinson, show any evidence of a conveyance from John A. Robinson to him. The defendant, therefore, when he sold and conveyed this land to the parties who now hold it under him, did it in violation of the rights of Shillaber, as settled by Illinois decree. By that decree, Robinson had no right to sell. By the conveyance made to Noble under that decree, he had nothing left in the New York lands but a lien for his $4,249.58. The sale by Noble was void, and conferred no rights on Robinson whatever. His belief in its validity did not change the mat- ter. By availing himself of the title which was in him originally, and which appeared by the records to be there yet, he sold the lands for twice as much as his lien, and received the money. That he must account to .Shillaber in some way is too plain for argument. If Shilla- ber could, by paying his debt to Robinson, redeem the lands from their present holders, it is the relief which he would prefer, and to which as against Robinson he would, be entitled. But Robinson has jxit this out of his power by a wrongful sale and conveyance to innocent pur- chasers. There is no evidence to show that the lands are now worth any more I042 Cases on Reai, Property than Robinson sold them for; no evidence that they were worth more when he sold them. His answer gives the precise sum received by him for each parcel of land, and the date when ' he received it. He probably believed the land was his own when he sold it; but. as we have seen, he must be considered as holding such title as he had in trust, first for his own debt due from Shillaber, and the remainder for the use of Shillaber. Treating him, then, as trustee, he must account for the money received for the lands, according to the trusts on v/hich he held them. The decree of the Circuit Court dismissing Shillaber's bill must be reversed, and the case remanded to that court, with in- structions to render a decree on the basis of charging Robinson with the sums received by him for the lands, and interest thereon until the day of the decree, deducting therefrom the sum found due him from Shillaber by the Illinois decree, with interest to the same time, and rendering a decree for the difference in favor of Shillaber against Robinson, with costs; and it is So ordered. SEC. 6. OBLXGATIOirg SECUBED. SHIRRAS AND OTHERS v. CAIG AND MITCHEL. 7 Cranch U. S. 34; 3 L. Bd. 260. (1812) Mr. Chief Justice Maeshali. delivered the opinion of the Court. This is an appeal from a decree rendered by the circuit court for the district of Georgia. Shirras and others, the appellants, brought their bill to foreclose the equity of redemption on two lots lying in the town of Savannah, al- leged to have been mortgaged to them by Edwin Gairdner. The deed of mortgage is dated the 1st of December, 1801, and purports to be a conveyance from Edwin Gairdner and John Caig, by Edwin Gairdner, the attorney in fact. Edwin Gairdner not appearing to have possessed any power to act for John Caig, the conveyance, as to him, is void, and could only pass that interest which was possessed by Gairdner himself. The court will proceed to inquire what that interest was. It appears that, on the 17th of May, 1796, the premises were con- veyed to James Gairdner, Edwin Gairdner, and Robert Mitchel, mer- chants and copartners of the city of Savannah. In 1799, this partner- Mortgages 1043 ship was dissolved ; and, in December in the same year, James Gairdner made an entry on the books -of the company, charging this property to Edwin Gairdner & Co., of Charleston, at the price of twenty thousand dollars. This firm consisted of Edwin Gairdner alone. James Gaird- ner also executed a power of attorney authorizing Edwin Gairdner to sell and convey his interest in this and other real property. In March, 1801, a partnership was formed between Edwin Gairdner and John Caig, to carry on trade in Savannah, under the firm of Edwin Gairdner and Co. ; and in the same month Robert Mitchel conveyed his one-third of the lots in question to Edwin Gairdner and John Caig. About the same time it was agreed, between the house at Charleston and that in Savannah, to transfer the Savannah property to the firm trading at that place ; and entries to that effect Were made in the books of both companies ; and possession was delivered to Edwin Gairdner & Co., of Savannah. Such was the state of title in December, 1801, when the deed of mortgage bears date * * * The claim to foreclose is resisted by Caig and Mitchel, because, they say, 1st. The mortgage was not executed at the time it bears date, but long afterwards, and on the eve of bankruptcy. 2d. That the transac- tion is not bona fide, there being no real debt, nor any money actually advanced by the mortgagees. 3d. That the mortgage was kept secret, instead of being committed to record. 4th. That the whole transaction is totally variant from that stated in the deed. They therefore claim the property for the creditors of Gairdner, Caig and Mitchel. * * * 4th. It is true that the real transaction does not appear on the face of the mortgage The deed purports to secure a debt of thirty thou- sand pounds sterling, due to all the mortgagees. It was really in- tended to secure different sums, due at the time to particular mortga- gees, advances afterwards to be made, and liabilities to be incurred to an uncertain amount. It is not to be denied, that a deed which misrepresents the transaction it recites, and the consideration on which it is executed, is liable to suspicion. It must sustain a vigorous examination. It is, certainly, always advisable fairly and plainly to state the truth. But if, upon investigation, the real transaction shall appear to be fair, though sornewhat variant from that which is described, it would seem to be unjust and unprecedented to deprive the person claiming un- der the deed of his real equitable rights, unless it be in favour of a I044 Cases on Real Property person who has been, in fact, injured and deceived by the misrepre- sentation. That cannot have happened in the present case. There is the less reason for imputing blame to the mortgagees, in this case, because the deed was prepared by the mortgagor himself, and executed without being inspected by them, so far as appears in the case. It is, then, the opinion of the court that the plaintiffs, Shirras and others, have a just title, under their mortgage deed, to subject one moiety of the lot or parcel of ground, commonly known by the name of Gairdner's wharf, to the payment of the debts still remaining due to them, which were either due at the date of the mortgage, or were afterwards contracted upon its faith, either by advances actually made or incurred prior to the receipt of actual notice of the subsequent title of the defendants, Caig and Mitchel ; and that the decree of the circuit court of Georgia, so far as it is inconsistent with this opinion, ought to be reversed. * * * SEC. 7. LIABILITT OF MORTGAGOR. SHEPHERD v. MAY. 115 U. S. 505; 29 L. Bd. 456; 6 Sup. Ct. 120. (1885) This was an action at- law brought by John Frederick May, the de- fendant in error, against Alexander R. Shepherd, the plaintiff in error, to recover a balance due on a promissory note. The facts disclosed by the bill of exceptions were in substance as follows : On April 26, 1875, May lent Shepherd $10,000, whereupon Shepherd made and delivered to May a note of that date and amount, payable to his order two years after date, with interest at 10 per cent, per annum, payable quarter-yearly until paid. To secure the payment of the note Shepherd on the same day conveyed to two trustees, with power to sell in default of the payment of the note, a certain improved, lot in the city of Wash- ington, of which he was the owner, and which May at that time be- lieved to be good security for the money lent. This deed of trust pro- vided that if default was made in the payment of the note or the interest the trustee should sell the property thereby conveyed at public sale on the following terms : "The amount of indebtedness secured by said deed of trust unpaid, with the expenses of sale in cash, and the Mortgages 1045 balance at twelve and eighteen months, for which the notes of the purchaser, bearing interest from the day of sale, * , * * shall be taken." Before the maturity of the note Shepherd sold the lot to Gilbert C. Walker, and by deed, dated August i, 1876, for the con- sideration, as stated in the -deed, of $30,000, the receipt of which was acknowledged, conveyed the same to him. The deed to Walker was made "subject to a certain deed of trust dated the twenty-sixth day of April, A. D. 187s, * * * for the sum of ten thousand dollars," being the same deed of trust executed by Shepherd to secure his note to May. The deed contained a covenant by Shepherd to defend the premises conveyed against the claim of all pers6ns claiming under the grantor, "save and except the aforesaid deed of trust." Shepherd paid the interest on his note'to May as it accrued up to the time of his sale to Walker, and after that time Walker paid the interest until the matu- rity of the note. When the note fell due Walker came to May and told him that "he had the note to pay," and asked May to extend the time of payment for one year, and thereupon May extended the note for one year. Walker agreeing to pay interest thereon at the rate specified in the note. Walker paid the interest upon the note for the year, and at the end of that time asked a further extension fpr another year. May agreed to extend the time of payment for nine months at the same rate of interest which Walker agreed to pay, but he paid no interest for this period. There was no evidence that Shepherd consented to these extensions of time for the payment of his note. At the end of the nine months allowed by May to Walker for the payment of the note, upon default made, the property covered by the deed of trust was advertised and sold by the trustees. It was purchased by May for the sum of $8,500, to whom it was conveyed by the trustees by deed dated May 19, 1879. After crediting the note with the net proceeds of sale, May brought suit against Shepherd to recover the balance which he claimed to be due thereon. The jury returned a verdict for May for $3,163.28, on which the court rendered judgment. Shepherd, by the present writ of error, challenges the correctness of that judgment. Wood, J. The first contention of the plaintiff in error is, that by reason of the transaction stated in the bill of exceptions. Walker be- came the principal debtor of May, and Shepherd became his surety, and as May, upon a valid contract with Walker, extended the time for the payment of the note without the consent of Shepherd, the latter was thereby discharged. The plaintiflf in error sought upon the trial to give effect to this contention by asking the court to direct the jury 1046 Casss on Reai, Property to render a verdict in his favor. The court having refused to do this, the refusal is now assigned for error. We have under this assignment of error to decide whether, by the mere conveyance of the premises in question to Walker by Shepherd, subject to the incumbrance created by the deed of trust Walker be- came bound to May as principal debtor, and Shepherd became his surety. We are of opinion that the conveyance of the premises to Walker did not subject him to any liability to May whatever. To raise such a liability as is contended for by Shepherd, there must be words in the deed of conveyance from which, by fair import, an agreement to pay the debt can be inferred. This was expressly held in Elliott v. Sackett, 108 U. S. 132; S. C. 2 Sup. Ct. Rep.. 375, where Mr. Justice Blatchford, in delivering the judgment of this court, said : "An agree- ment merely to take land, subject to a specified incumbrance, is not an agreement to assume and pay the incumbrance. The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the payment, does not bind himself, personally, to pay the debt. There must be words importing that he will pay the debt to make him personally liable." To the same effect see Belmont V. Coman, 22 N. Y. 438; Fiske v. Tolman, 124 Mass. 254; Hoy v. Bramhall, 19 N. J. Eq. 78 ; Fowler v. Fay, 62 111. 375. There are no such words in the deed made by the plaintiff in error to Walker. Neither is there any other sufficient evidence of any agreement be- tween Walker and Shepherd, whereby the former undertook to pay the debt of the latter to May. The remark made by Walker to May, when he asked to have the time for the payment of the note extended, that "he had it to pay," falls far short of showing any such agreement. As he had bought the property, subject to the incumbrance of the deed of trust for the consideration of $30,000, which, as appears by the deed to him, he had paid to Shepherd, he might well say that he had the incumbrance to pay without admitting or meaning that he had become personally liable to Shepherd to pay it. His words may be fairly con- strued to mean that he had the incumbrance to pay or would have to lose the property on which he had already paid $30,000 of the purchase money. But, even if Walker had said to May that he was liable for the debt, his admission would not have been binding on May so as to establish the fact without other proof. And if Walker had expressly promised May to pay the debir, that would not, without the assent of May, have converted Shepherd from a principal debtor into a surety merely. Cucullu v. Hernandez, 103 U. S. 105 ; Rey v. Simpson, 22 How. 341. The only way in which Walker could become the principal Mortgages 1047 debtor of May, and Shepherd the surety, was by the mutual agreement of all three. There is no proof of any such agreement. It follows that, as the relation of principal and surety did not exist between Walker and Shepherd, the latter was not discharged from his liability to May by the contract of May with Walker to extend the time for the payment of the money due on Shepherd's note. But, even if it had been shown that Shepherd had become the surety of Walker, it was incumbent on the former to show as a part of his defense thjt the in- dulgence given by May to Walker was without his assent. Sprigg v. Bank of Mount Pleasant, 14 Pet. 201 ; Bangs v. Strong, 7 Hill, 250 ; S. C. 42 Amer. Dec. 64; Cox v. Mobile, etc., R. Co., 37 Ala. 323. There was no proof of want of assent. The defense therefore failed. It is next contended by the plaintiff in error that May is estopped to deny that the note sued on is not paid in full, because the deed of conveyance made to him by the trustees recites that the property was sold to him in accordance with the terms of the deed of trust, and the deed of trust declared that the terms of sale should be the amount due on the note of Shepherd, and the expenses of sale, in cash, and the balance on a credit of 12 and 18 months. This contention is based on the theory that the clause of the deed of trust executed by Shepherd prescribing the terms of sale, and which merely showed his expectation that the property would bring, at least, the amount of the note and expenses of sale, estopped May from depying that the property would, and actually did, bring that amount. There is no estoppel. The prop- osition amounts to this, that when a mortgagor represents to his mort- gagee that the property mortgaged is sufficient security for the debt, and the mortgagee, relying upon the representation, accepts the secur- ity, and it turns out that the proceeds of the mortgaged property are insufficient to pay the debt, he is estopped to deny that his debt is paid. The statement of the proposition is its answer. The authorities re- ferred to upon this contention by counsel for Shepherd are cited to sustain the proposition, that a person who accepts a deed of conveyance is estopped to deny recitals therein contained. But as there is no re- cital in the deed that May had agreed that the property should bring a sum sufficient to pay his note, he is not estopped to deny that the note is paid. 1048 Cases on Real Property SEC. 8. MOETGAGOR AS SUEETY. UNION MUT. LI?E INS. CO. v. HANFORD. 143 U. S. 187; 36 L. Ed. 118; 12 Sup. Ct. 437. (1892) This was a bill in equity, filed March 30, 1878, by the Union Mutual Life Insurance Company, a corporation of Maine, against Philander C. Hanford; Orrin P. Chase, Frederick L. Fake, and Lucy D. Fake, his wife, citizens of Illinois, to foreclose by sale a mortgage of land in Chicago, and to obtain a decree for any balance due the plaintiff above the proceeds of the sale. The case was heard upon a master's report, and the evidence taken before him, by which it appeared to be as follows : On September 9, 1870, Hanford and Chase mortgaged the land to one Schureman to secure the payment of three promissory notes of that date, signed by them, and payable to his order, one for $5,000.00, in one year, and the second for $5,000.00 in two years, each with in- terest at the rate of 8 per cent, annually, and the third for $6,000.00 in three years, with interest at the rate of 10 per cent, annually. On January 30, 1871 (the first note having been paid), the plaintiff, through one Boone, its financial agent, bought the mortgage, and Schureman indorsed the remaining notes, and assigned the mortgage to the plaintiff. On September 9, 1872, Hanford and Chase conveyed the land to Mrs. Fake, by deed of warranty, "with the exception of and subject to" the mortgage (describing it), "which said mortgage or trust-deed, and the notes for which the same is collateral security," (describing them,) "it is, hereby expressly agreed shall be assumed, and paid by the party of the second part, and, when paid, are to be delivered, fully canceled, to said Chase and Hanford." At or about the date of this conveyance. Chase called with Fake at Boone's office, and told him that Hanford and Chase had sold the property to Mrs. Fake, and that she was to pay the mortgage, and Boone, as Chase testified, said, "All right, or something of that sort." At the same interview, Boone, as the plaintiff's agent, in consideration of $150 paid him by Chase, extended the $5,000 note until September 9, 1874- Fake, as his wife's agent, afterwards paid interest on the notes to Boone, as the plaintiff's agent ; and on January 9, 1875, for the sum of $340 obtained from him, without the knowledge of Hanford or Chase, an extension of the notes until September 9, 1875. Mortgages 1049 The value of the mortgaged premises in September, 1874, was $18,000 to $19,000, and. at the date of the master's report, in April, 1879, was $10,000 to $15,000 only. The principal defense relied on by Hanford and Chase was that they were discharged from personal liability on the notes by this extension of the time of payment without their consent. The land was sold by the master, under order of the court for $12,000, which was insufficient to satisfy the sums due on the mort- gage ; and the plaintiff, after notice to Hanford and Chase, moved for a deficiency decree for a sum amounting, with interest, to more than $5,ocJo. The circuit court overruled the motion. 27 Fed. Rep. 588. The plaintiff appealed to this court. Mr. Justice Gray, after stating the case as above, delivered the opinion of the court. Few things have been the subject of more difference of opinion and conflict of decision than the nature and extent of the right of a mort- gagee of real estate against a subsequent grantee, who by the terms of the conveyance to him agrees to assume and pay the mortgage. All agree that the grantee is liable to the grantor, and that, as be- tween them, the grantee is the principal, and the grantor is the surety, for the payment of the mortgage debt. The chief diversity of opinion has been upon the question whether the grantee does or does not as- sume any direct liability to the mortgagee. By the settled law of this court, the grantee is not directly liable to the mortgagee at law or in equity; and the only remedy of the mort- gagee against the grantee is by bill in equity in the right of the mort- gagor and grantor, by virtue of the right in equity of a creditor to avail himself of any security which his debtor holds from a third per- son for the payment of the debt. Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. Rep. 494; Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. Rep. 831. In that view of the law there might be difficulties in the way of holding that a person who was under no direct liability to the mortga- gee was his principal debtor, and that the only person who was directly liable to him was chargeable as a surety only, and consequently that the mortgagee, by giving time to the person not directly and primarily liable to him, would discharge the only person who was thus liable. Shepherd v. May, 115 U. S. 505, 511, 6 Sup. Ct. Rep. 119; Keller v. Ashford, 133 U. S. 610, 625, 10 Sup. Ct. Rep. 494. But the case at bar does not present itself in that aspect. The question whether the remedy of the mortgagee against the grantee is at law and in his own right, or in equity and in the right of 1050 . Cases on Real Property the mortgagor only, is, as was adjudged in Willard v. Wood, above cited, to be determined by the law of the place where the suit is brought. By the law of Illinois, where the present action was brought, as by the law of New York, and of some other states, the mortgagee may sue at law a grantee who, by the terms of an absolute conveyance from the mortgagor, assumes the payment of the mortgage debt. Dean V. Walker, 107 111. 540, 545, 550 ; Thompson v. Dearborn, Id. 87, 92 ; Bay V. Williams, 112 111. 91 ; Burr v. Beers, 24 N. Y. 178; Thorp v. Coal Co., 48 N. Y. 253. According to that view, the grantee, as soon as the mortgagee knows of the arrangement, becomes directly and pri- marily liable to the mortgagee for the debt for which the mortgagor was already liable to the latter ; and the relation of the grantee and the grantor towards the mortgagee, as well as between themselves, is thenceforth that of principal and surety for the payment of the mort- gage debt. Where such is held to be the relations of the parties, the consequence must follow that any subsequent agreement of the mort- gagee with the grantee, without the assent of the grantor, extending the time of payment of the mortgage debt, discharges the grantor from all personal liability for that debt. Calvo v. Davies, 73 N. Y. 211; Bank v. Estate of Waterman, 134 111. 461, 467, 29 N.'E. Rep. 503. The case is thus brought within the well-settled and familiar rule that if a creditor, by positive contract with the principal debtor, and without the consent of the surety, extends the time of payment by the principal debtor, he thereby discharges the surety; because the creditor, by so giving time to the principal, puts it out of the power of the surety to consider whether he will have recourse to his remedy against the prin- cipal, and because the surety cannot have the same remedy against the principal as he would have had under the original contract; and it is for the surety alone to judge whether his position is altered for the worse. I Spence, Eq. Jur. 638; Samuell v. Howarth, 3 Mer. 272; Miller v. Stewart, 9 Wheat. 680, 703. The rule applies whenever the creditor gives time to the principal, knowing of the relation of principal and surety, although he did not know of that relation at the tim.e of the original contract, (Edwin v. Lancaster, 6 Best & S. 571 ; Financial Corp. V. Overend, L. R. 7 Ch. App. 142, and L. R. 7 H. L. 348 ; Wheat V. Kendall, 6 N. H. 504; Guild v. Butler, 127 Mass. 386;) or even if that relation has been created since that time. (Oakley v. Pasheller, 4 Clark & F. 207, 233, 10 Bligh, N. S. 548, 590 ; Colgrove v. Tallman, 67 N. Y. 95; Smith v. Shelden, 35 Mich. 42.) In the case at bar, the mortgagee, immediately after the absolute conveyance by the mortgagors, was informed of and assented to that Mortgages 1051 conveyance and the agreement of the grantee to pay the mortgage debt, and afterwards received interest on the debt from the grantee; and the subsequent agreement by which the mortgagee, in consideration of the payment of a sum of money by the grantee, extended the time of payment of the debt, was made without the knowledge or assent of the mortgagors. Under the law of Illinois, which governs this case, the mortgagors were thereby discharged from all personal liability on the notes, and the circuit court rightly refused to enter a deficiency decree against them. Decree affirmed. HICKS V. HAMILTON. 144 Missouri, 495; 66 Am. St. Rep. 432; 46 S. W. 432. (i8p8) Williams, J. Plaintiff held a note secured by a deed of trust upon a lot in Kansas City belonging to one Clark, the maker of the note. Clark conveyed the property subject to said deed of trust to Cowling, but without any assumption by the latter of the mortgage debt. Cowl- ing' subsequently transferred said real estate, by warranty deed, to defendant. This deed contains a clause stating that the grantee therein "assumes and agrees to pay" said debt. The property, after the con- veyance to defendant, was sold under the deed of trust. There was not enough realized to pay plaintiff's note, and, after crediting thereon the proceeds of the sale, he brought this suit to recover the deficiency from the defendant, on the ground that, by accepting the deed from 'Cowling, defendant assumed and agreed to pay said debt. * * * Can plaintiff recover upon defendant's implied promise raised by his acceptance of Cowling's deed, containing a clause binding defendant to assume and pay the mortgage debt? It is well settled that "a person for whose benefit an express promise is made in a valid contract be- tween others may, in this state, maintain an action thereon in his own name" : Ellis v. Harrison, 104 Mo. 270, and cases cited. The agreement between the promisor and promisee must possess the necessary elements to make it a binding obligation — in other words, it must be a valid contract between the parties to enable a third person, for whose benefit the promise is made, to sue upon it. A mere naked promise from one to another for the benefit of a third will not sustain an action. Cowling, defendant's grantor, did not owe the mortgage 1052 Cases on Reai, Property. debt and had never assumed to pay it. Defendant's promise was not therefore to indemnify him. As Judge Smith says: "It must be borne in mind that plaintiff's debt was no part of the consideration for the grant from Cowling to the defendant. Cowling conveyed to the defendant his equity of redemption. He had no other or greater in- terest in the property. The assumption was therefore without sem- blance of a consideration passing from Cowling to the defendant. It was an independent promise, unsupported by any consideration what- ever." It is said in the notes to King v. Paige, 4 N. Y. Ch. law ed., 1052 : "Unless the grantor is personally liable for the debt, the promise of the grantee, the purchaser, is held to be a mere nudum pactum, and, of course, without efficacy in favor of either the grantor or mortga- gee." The court in Norwood v. De Hart, 30 N. J. Eq. 412, held that "a mortgagee cannot avail himself of an assumption to pay his mort- gage contained in a deed to a subsequent purchaser unless the grantor was personally liable to pay the debt" : Jefferson v. Asch, 53 Minn. 446; 39 Am. St. Rep. 618; Morris v. Mix, 4 Kan. App. 654; Nelson v. Rogers, 47 Minn. 103 ; Vrooman v. Turner, 69 N. Y. 280 ; 25 Am. Rep. 195 ; Osborne v. Cabell, "7 Va. 462. The liability of a grantee of real estate, who has assumed the payment of a mortgage debt upon it, is sometimes placed upon the doctrines of subrogation. The mortgagee is declared to be entitled to enforce for his benefit "all collateral ob- ligations for the payment of the debt, which a person standing in the situation of a surety * * * has received for his benefit." As between the parties to the deed, the grantor becomes the surety, and the grantee the principal debtor. Of course, no such rule could obtain, where the grantor was not, and had never become, bound for the debt. If plaintiff is to rest his case upon the proposition that he can re- cover upon the promise of defendant to Cowling as made for his benefit, he is met by the objection that Cowling was in no manner in- debted to or connected with plaintiff, and bore no such relation to him as would give Cowling any interest in having the assumption clause inserted in the deed. Vrooman v. Turner, 69 N. Y. 280, 25 Am. Rep. 195, involved pre- cisely the same question that is presented in the case at bar. It was ruled that "a grantee of mortgaged premises whose conveyance recites that the land is conveyed subject to the mortgage, and that the grantee assumes and agrees to pay the same as part of the consideration, is not liable for the deficiency arising upon a foreclosure and sale, in tage the grantor yifas not personally liable, legally or equitably, for th^ Mortgages 1053 payment of the mortgage." This court has in several recent opinions cited and approved that case: Howsmon v. Trenton Water Co., 119 Mo. 304; 41 Am. St. Rep. 654; Kansas City Sewer Pipe Co. v. Thomp- son, 120 Mo. 2t8; also Insurance Co. v. Trenton Water Co., 42 Mo. App. 118. In Kansas City Sewer Pipe Co. v. Thompson, 120 Mo. 218, Gantt, C. J., indorsed the following quotation from said opinion : "To give a third party who may derive a benefit frorri the performance of the promise, an action, there must be: i. An intent of the promisee to secure some benefit to the third party; and, 2. Some privity be- tween the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally * * *, A mere stranger can- not intervene and claim by action the benefit of a contract between' other parties." There are decisions in some of the states which sustain plaintiff's position, but the cases which have heretofore been followed by this court, as well, we think, as the better reason and the weight of author- ity, are to the contrary. The judgment of the circuit court is therefore affirmed. FINLEY V. SIMPSON. 22 N. J. Law, 311; 53 Am. Dec. 252. (1850) The declaration alleged substantially that the plaintiff, being owner of a piece of land, conveyed the same by deed of bargain and sale to the defendant; that the conveyance was subject to a mortgage, which the defendant, by a covenant contained in the deed, agreed to pay ; that the defendant failed to pay the mortgage, and the plaintiff was com- pelled to pay it. This action was brought for the breach of that cove- nant. The plaintiff proved his seisin of the land; that the defendant accepted the deed and became seised and possessed of the said land under it. He also offered in evidence the record of the deed ; it con- tained the covenant alleged, and was signed and sealed by the plaintiff, but not by the defendant. The defendant moved for a nonsuit; the motion was overruled and a verdict directed for the plaintiff, subject to the opinion of the supreme court on the admisgibility of th? de^d in evidence. I054 Cases on Real Property. Green, C. J. The general principle that an action of covenant can only be sustained where the instrument upon which the action is brought has been actually signed and sealed by the party, or by his authority, is abundantly sustained by the authorities cited by the counsel of the defendant. There are, however, exceptions, of which actions upon the custom of London, actions against the king's lessee by patent, and against remaindermen, are admitted instances. The only inquiry is, whether an indenture of bargain and sale, pur- p>orting to be inter partes, by which an estate is conveyed to the grantee, if the grantee accept the deed, and the estate therein conveyed, though the indenture be not sealed and delivered by him, is not his deed, as well as the deed of the grantor. The affirmative of the proposition is sustained by the following authorities, cited with many others, in the brief of the plaintiff's counsel: Co. Lit. 231a, 230, C, note i ; Shep. Touch. 177; 4 Cru. Dig. 393, Deed, tit. 32, c. 25, sec. 4; 3 Com. Dig., Covenant, A, i. Fait, A, 2, C, 2; Vin. Abr., C, Condition, I, a, 2; Bur- nett V. Lynch, 5 Barn. & Cress. 589; Dyer, 13, C, pi. 66. A m_odern elementary writer of high reputation denies the doctrine deduced from these cases, and insists that the action of covenn.nt, un- less it be founded on the custom of London, or on a contract between the king and a subject, can only be supported against a person who, by himself or some other person acting on .his behalf, has executed a deed under seal; Piatt on Cov. 18. He admits, however, that the con- trary doctrine has been received without scruple by the profession, has been adopted by writers distinguished for their legal attainments, and that, fSerhaps, it has been too long established to be now reversed. There is in our judgment no reason why the doctrine should be re- versed. In the present case the verdict ought not to be disturbed, if it can be sustained consistently with legal principle. It is manifestly in accord- ance with the truth and justice of the case. The objection goes to the form of the remedy, rather than to the substantial right of the party or to the title of the plaintiff to redress. The nature of the covenant, moreover, is fully stated upon the face of the declaration. Whether the facts there stated did or did not constitute a covenant on the part of the defendant, was a question of law, which might well have been raised by demurrer. To give the defendant the benefit of the excep- tion now may operate utterly to defeat the claim of the plaintiff. It is consistent neither with law nor justice that the defendant should hold the title without paying the price. These considerations cannot affect the legal principle, but if the verdict be in accordance with a Mortgages 1055 doctrine long established, and often recognized, they afford strong reasons why that doctrine should not hghtly be disturbed. The rule to show cause must be discharged. JACKSON V. DELANCY, Supra, p. 279. SEC. 9. PAYMENT OB TENDER. SHIELDS V. LOZEAR. 24 N. I. 4p6; 3 Am. Rep. 260. (i86p) * * * In the United States, the prevailing doctrine in courts of law, as well as in courts of equity, is to consider the mortgage as merely ancillary to the debt, and to hold that the estate of the mortgage is annihilated by the extingfuishment of the debt secured by it, after the day of payment named in the condition. 2 Greenl. Cruise. 91, note I ; 4 Kent, 193. In fact, the latter conclusion will necessarily follow, whenever the mortgage is regarded not as a common-law con- veyance on condition, but as a security for the debt, the legal estate being considered as subsisting only for that purpose. In this State this is the generally received aspect in which a mortgage is regarded, as a mere security for the debt. Per Chief Justice Green, in Osborne V. Tunis, I Dutch, 651 ; per Justice Southard, in Montgomery v. Bruers, i South, 279, whose dissenting opinion in the supreme court was adopted in the court of errors in reversing the judgment of the supreme court. 2 South. 865. Consequently, payment after the day will convert the mortgagee into a trustee of the legal estate, for the benefit of the mortgagor. In Harrison v. Eldridge, 2 Halst. 407, Chief Justice Kinsey, speaking of payment after the law-day, says : "When the debt is discharged according to law, the mortgagee has the legal seisin in trust for the mortgagor, and the court will never permit the trustee or those claiming under him to set up this legal estate in him or them, to defeat the possession of the cestui que trust. This prin- ciple is settled in Armstrong v. Peirse, 3 Burr. 1898. The same doc- trine being applicable to all trustees, the court would not permit a re- covery upon a merely formal title, when the cestui que trust could have ios6 Cases on Reai, Property. compelled a reconveyance immediately, and thus have acquired the legal title." The seventh section of the act of June 7, 1799, Rev. Laws 463; Nix. Dig. (4th ed.) 611, 11, which authorizes satisfaction to be entered on the registry of the mortgage, in discharge of the mortgage, gives a legislative sanction to this effect of payment in the case of a mortgage which has been recorded. But a tender, though it is equivalent to performance, where the ques- tion is whether the party is in default, is not a satisfaction or extin- guishment of a debt. Tender of the mortgage debt on the day named is performance of the condition, and, by force of the terms of the condition, determines the estate of the mortgagee, and the condition being complied with, the land reverts to the mortgagor by the simple operation of the condition. The courts of the State of New York have given the same effect to a tender, without payment, after the day pre- scribed for payment. This doctrine was first asserted in Jackson v. Crafts, 18 Johns, no, on a misapprehension of a passage from Little- ton. Litt., 335, 338. It was denied by the chancellor in Merritt v. Lambert, 7 Paige, 344, and re-affirmed in the supreme court in Ed- wards V. The Farmers' Fire Insurance and Loan Company, 21 Wend. 467 ; and in the court of errors, in the same case on error, 26 id. 541 ; and by the supreme court in Arnot v. Post, 6 Hill, 65 ; and again de- nied by the court of errors in reversing the last-mentioned case. Post V. Arnot, 2 Denio, 344. Finally, in Kortright v. Cady, 21 N. Y. 343, the question was set at rest in the courts of that State by re-affirming the rule laid down in Jackson v. Crafts, and it seems now to be the settled law in that State that a tender of the money due upon a mort- gage at any time before foreclosure discharges the lien without pay- ment, though made after the law-day. I do not find that the rule, as finally established in the courts of New York, has been adopted by the courts of any other State. In Massachusetts the decisions have been to the contrary. Maynard v. Hunt, 5 Pick. 240; Currier v. Gale, 9 Allen, '522. In an early case in New Hampshire (Sweet v. Horn, i N. H. 332), the court held, under a statute declaring that all real estate pledged by mortgage might be redeemed by paying all costs, etc., pro- vided such payment or performance or tender thereof be made within one year after the entry of the mortgagee for condition broken, that tender more than a year after breach of condition, where no entry had been made by the mortgagee, discharged the lands. In a subsequent case, the same court qualified the ruling of this case by denying this eflfect of the tender unless the money was brought into court. Bailey V. Metcalf, 6 N. H. 156. It may with safety be said that the doctrine Mortgages 1057 of the New York courts, originating in error, and maintained against the opinion of some of the most eminent jurists that have occupied the bench of that State, is without the support of any judicial tribunal in this country; and it is impossible, to perceive upon what principle of law or equity it can be rested. As already observed, tender on the day named terminates the estate of the mortgagee, because it is perform- ance of the condition. Regarding the mortgage as remaining after default, only as a security for the debt, payment thereafter, by a neces- sary sequence, operates as extinguishment ; the debt being the principal and the security the accessory. Whatever discharges the debt extin- guishes the security. No reason, founded in principle, can be assigned for giving that effect to a tender after forfeiture. The appropriate office of a tender is to relieve the debtor from subsequently accruing interest, and the costs of enforcing, by a suit, the obligation which by the tender of payment he was willing to perform. The debt still re- mains. In the case of a common money bond, before the statute, 4 Anne, ch. 16, 12, re-enacted in this State, Nix. Dig. 631, 9, payment after the day would not be pleaded without an acquittance by deed. 2 Saund. 48, c, note i ; Rosencrantz v. Burling, 5 Dutch. 191. The statute only applies to payments actually made, and a tender after the day cannot be pleaded. 2 Saund. 48, b, note i. And if the tender is made on the day it can only be made available by plea, accompanied by payment into court. Co. Litt. 207, a. Where, as in this case, the mortgage is accompanied by a bond, to hold that a tender, after default, extinguished the mortgage, for the reason that after such default it remains only a security for the debt, will lead to the incongruity of giving to the tender an effect with re- spect to the security, which, by the rules of pleading and established principles of law, the court must deny in an action on the bond, which is the immediate evidence of the debt. If the form of the instrument which evidences the debt is overlooked, and the question is viewed in the aspect in which the indebtedness immediately arose, the tender does not pay or discharge the debt; and though it will avail to arrest the accruing of interest and to free the debtor from costs, it will be de- prived of that efficacy by a subsequent demand and refusal. If legal analogy is to be pursued, it could lead no further than to deprive the mortgage of operation beyond the amount due when the tender was made, leaving the question of subsequently accruing interest and costs to be varied by the subsequent demand and refusal. The instances in which a tender and refusal amount to payment, and will operate as an extinguishment, are those in which the obligation is ios8 Cases on Real Property. in the nature of a gratuity, without any precedent debt or duty, and the discharge is an accidental and not a necessary consequence of the tender and refusal, there being no debt or duty remaining whereon to .ground an action. 6 Bac. Abr. 456, title "Tender," etc., F. If there is a precedent debt, as a loan of money, which the debtor secures by a mortgage on his land, conditioned for payment, though by a tender made on the day the land is freed, and the feoffor may enter according to the condition, the debt is not thereby discharged, and may be re- covered by action of debt. Co. Litt. 209, a. The effect of a tender on the day in terminating the estate of the mortgagee cannot be denied, because it is a legal incident of his estate. Another legal incident of that estate is the extinguishment and discharge of the condition by a , failure to comply with its terms. Upon this, courts of equity raised an equitable estate in the mortgagor, called an equity of redemption, which consisted in his right to have the estate of the mortgagee continued as a security for the debt, notwithstan.ding the default. In equity, a tender will stop the accruing of interest, and will, in some cases, cast upon the mortgagee the costs of a suit for redemption. But until the mortgagee is actually paid off by his own consent, or by the decree of the court, he retains the character of the mortgagee with all the rights incident to it. Grugeon v. Gerrard, 4 Younge & Coll. Exch. 1 19-128. When a court of law undertakes to deal with this equitable estate it must do so upon principles of equity, and keep in view the relief which would be afforded in equity, and protect the rights of the parties ac- cordingly. The recognition of this equitable estate has been obtained in courts of law by the fiction of regarding the mortgagee, after his debt is satisfied, as a trustee of the legal estate for the mortgagor. Un- til the debt is paid, the legal seizin of the mortgagee is not a mere for- mal title, and no trust will be raised for the benefit of the mortgagor until the purpose for which the mortgage was made is answered. =K * * BOGERT v. BUSS. 148 N. Y. 194; 51 Am. St. Rep. 684; 42 N. B. 582. (1896) Andrews, C. J. The controversy relates to the disposition of sur- plus moneys arising on a foreclosure of a mortgage. One Robert claims a prior lien thereon as assignee of a mortgage made by the de- Mortgages 1059 fendant Striker to one Weil, dated May 15, 1891, payable June 18, 1891, for one thousand dollars, recorded May 18, 1891. The mortgage was paid at maturity by Striker, the mortgagor and owner of the' equity of redemption, to Weil, the mortgagee, who on the same day executed and delivered to Striker a satisfaction of the mortgage, together with the bond, but the mortgage was then in the register's office, and for that reason was not dehvered to Striker. The mortgage was paid in usual course, and at the time of the payment there was, so far as ap- pears, no intention on the part of Striker, and no understanding be- tween him and the mortgagee, that the mortgage should be kept alive. Subsequently, on July 2, 1891, Striker applied to Robert (a partner of Weil) for a loan of one thousand dollars, on the security of this ex- tinguished mortgage, and the loan was made. Striker delivering to Rob- ert at the time the bond and the satisfaction, and stating that V\''eil would assign the niortgage to him. The assignment was subsequently made, but not, as we infer, until after the mortgage executed to Bliss, the other claimant of the surplus. The Bliss mortgage was executed by Striker to Bliss August 28, 1891, and covered the same premises embraced in the Weil mortgage, and was given to secure a loan of fifteen hundred dollars made by Bliss to Striker, but in form was an absolute deed, and was recorded November 11, 1891, Bliss, when he took his mortgage, made no search of the title, and had constructive notice only of the Weil mortgage. The question is, whether Robert or Bliss is entitled to the surplus moneys. We think the conclusion of the general term that Bliss is entitled to them is correct. The Weil mortgage was exting;uished by payment before Striker ap- plied to Robert for a loan, and Robert had notice that the mortgage had been paid by Striker. Striker delivered to him the satisfaction ex- ecuted by Weil, and there is no pretense that it did not represent the actual fact that Striker had paid the mortgage. What Striker under- took to do was to reissue the mortgage and the bond to secure another loan equal to the amount of the mortgage. Robert assented to this proposition, and made' the loan on the faith of the proposed security. But there was no writing and no actual assignment of the mortgage until after Bliss had taken his mortgage. All that Robert had until the assignment was made was the possession of the bond and the satisfac- tion of the'mortgage and the verbal agreement of Striker that the mort- gage should be assigned. In this state, a mortgage is a lien simply, and the general principle is well settled that on payment the lien is ipso facto discharged and the mortgage extinguished. There are many cases where, for purposes £o6o Cases on Rkal Property. connected with the protection of the title or the enforcement of equi- ties, what is in form a payment of a mortgage will be treated as a purchase, so as to preserve rights which might be jeoparded if the transaction was treated as a payment. But we know of no principle which permits a mortgagor who has paid his mortgage and taken a satisfaction, there being at the time no equitable reason for keeping it afoot, subsequently to resuscitate and reissue it as security for a new loan or transaction, and especially where the rights of third parties are in question. It would make no difference in our view whether the reissue of the mortgage was before or after new rights and interests had intervened. We do not speak of the position of a subsequent grantee or mortgagee having actual notice of the reissue of a satisfied mortgage before'he takes his mortgag'e or deed. It is possible that the .circumstances of the reissue may be such as to furnish ground for a court of equity to intervene and compel the execution of a new mort- gage, to accomplish the real purpose of the parties, and notice of such circumstances to the subsequent grantee or mortgagee might, perhaps, under special conditions, subject his right to the prior equity. But the contention that a person, having at the time notice that a mortgage had been paid by the mortgagor in usual course, can, by a verbal arrange- ment between himself and the mortgagor, give the extinct mortgage vitality again as security for a new loan, so as to give it priority over a subsequent conveyance or mortgage is not justified by the authorities in this state. The statute of frauds does not permit mortgages on land to be cre- ated without writing. The reissue of a dead mortgage, if effect is given to the transaction, is in substance the creation of a new mortgage If this was permitted, it would furnish an easy way to evade the stat- ute. The law wisely requires that instruments by which land is con- veyed or mortgaged should be executed with solemn forms, and that their existence should be made known through a system of registry, so as to protect those subsequently dealing with the premises. Public policy requires that dealings with land should be certain and that trans- actions affecting the title should be open, and that secret agreements should not be permitted by which third persons may be misled or de- ceived. It would be a convenient cloak for fraud if a mortgagor, hav- ing paid a mortgage, could retain it in his possession uncanceled of record and reissue it at pleasure. A party taking from a mortgagor a reissued mortgage has notice which should put him upon inquiry, and he takes at the peril that it has in fact been paid. In the present c^ge, not only had the mortgage been paid before Rob- Mortgages io6i ert made his loan, but he knew the fact from inconiestable evidence. If he had received an actual assignment before Bliss had taken his mortgage, he v^fould not, we think, have been entitled to preference. Upon the facts actually existing, he had merely an agreement for an assignment, which at most created an equity enforceable by equitable action, and meanwhile Bliss had obtained a legal mortgage, having no notice of the agreement. Bliss had constructive notice of the mortgage to Weil. His mortgage was subject to that encumbrance, unless the mortgage had been paid. But he did not take subject to an arrange- ment between Striker and Robert to revive the mortgage, the lien of which had been extinguished by payment. The case of Mead v. York, 6 N. Y. 449, 57 Am. Dec. 467, is a direct authority upon the question here presented. It was there held that a mortgage, after being once paid by the mortgagor, cannot be kept alive by a parol agreement as security for a new liability incurred for the mortgagor as against the latter's subsequent judgment creditors : See, also, Cameron y. Irwin, 5 Hill, 272 ; Jones on Mortgages, sec. 943, and cases cited. The appellant refers to two cases upon which he particularly relies — Kellogg v. Ames, 41 N. Y. 259, and Coles v. Appleby, 87 N. Y. 114. Kellogg V. Ames, 41 N. Y. 259, was an action to foreclose a mortgage which the plaintiff before maturity purchased from one Douglass, who held an assignment thereof from the mortgagees, regular in form, the plaintiff paying therefor the full amount thereof. Douglass was not a party to the instrument, and he represented to the plaintiff, at the time of the purchase by the latter, that the mortgage was a valid and subsisting security, and the plaintiff purchased in reliance thereon, and took an assignment from Douglass, which he placed on record. Doug- lass subsequently conveyed the premises to the defendant Ames. It ap- peared that Douglass, after the mortgage was executed had taken a conveyance of the equity of redemption in the land from the mortga- gors, subject to the mortgage which in the deed to him he covenanted to pay. It also appeared that he thereafter, and before the assignment to the plaintiff, had delivered to the mortgagees f lom time to time hard- ware, which by agreement they accepted in full payment of the mort- gage. The case came up on findings of fact and law, and the court decided the case on the findings alone. There was no finding that ■»*^hen the plaintiff purchased the mortgage he knew of the payment, or that Douglass owned the land or had bound himself to pay the mort- gage. It was found that when the mortgage was paid it was the in- tention that the mortgage should be kept alive. In pursuance of this intention, the mortgagees assigned and delivered the mortgage to io62 Cases on Real Property. Douglass. The majority of the court held that the plaintiff could en- force the mortgage, but two of the six judges who concurred in the opinion stated that if it had been found that the plaintiff when he took the assignment had notice of the payment by Douglass, and of his rela- tion to the land, they would have been of the opinion that the plaintiff could not recover. So far as appears, all the judges who concurred in the judgment may have held the same view. It was held that the prin- ciple of estoppel applied upon the facts found. This case furnishes no precedent for the claim made in the present case. It will be observed that in that case the mortgage was assigned to the plaintiff before it became due according to its terms ; that it was apparently a valid secur- ity in the hands of Douglass ; that the payments thereon were not made by the mortgagor, but by Douglass, with the intention and understand- ing at the time that it was to be kept alive and not satisfied ; that the plaintiff took the assignment in good faith and without notice ; and placed his assignment on record before the conveyance by Douglass to Ames. In the present case, the dealing was between Striker, the mortgagor and owner of the premises, and Robert, in respect to a past due mortgage which Robert knew had been paid. Robert doubtless supposed it could be reissued by Striker, and made his loan in reliance on Striker's consent that Weil should assign the satisfied mortgage to him as security for the loan. It was not, in fact, assigned until after Bliss had taken his mortgage. In Coles v. Appleby, 87 N. Y. 114, the plaintiff claimed as assignee of a mortgage made by Benham, which one Beach procured to be assigned by the mortgagee to the plaintiff. Beach had purchased the equity of redemption in the land, and bound himself to pay the mortgage. He subsequently paid the amount to the mort- gagee, but under the arrangement that the mortgage was not to be satisfied, but that it should be assigned. The court sustained the right of the plaintiff to enforce the mortgage, saying: "The right of the plaintiff to enforce the bond and mortgage does not rest upon a parol agreement to restore the mortgage, but upon the intention at the time to preserve it as a lien, shown by the assignment thereof, and the cir- cumstances attending the transaction." We find no case which sustains the claim that a mortgage paid by the mortgagor, not intended to be kept alive at the time of the pay- ment, can be thereafter reissued by him to secure another loan, made by a party cognizant of the fact, so as to give it validity as against a subsequent purchaser or mortgagee, Mortgages 1063 sbc. 10. unauthorized satisfaction of moktgage. DAY V. BRENTON et al. 102 Iowa, 482; ji N. W. Rep. 538. (1897) Suit in equity to foreclose a deed of trust in the nature of a mortgage made and executed by Pat and Mary Kenney, to Peter A. Johnson, covering certain land in Dallas county. Defendants, who are the widow and heirs at law of W. H. Brenton, deceased, claim that de- cedent was a purchaser of the premises for value, and without notice, and that, at the time he purchased, the deed of trust was apparently satisfied and released of record by Peter A. Johnson, the trustee namea therein. The lower court gave plaintiff a judgment and decree, and defendants appeal. Deemer, J. The deed of trust in suit conveyed the property to Peter A. Johnson, of Polk county, subject to these conditions: "That if the said Patrick Kenney, his heirs, executors, or administrators, shall pay or cause to be paid to the Iowa Loan & Trust Company, their execu- tors, administrators, or assigns, the sum of one thousand dollars, on or before the first day of November, 1886, and to James Lamb three hundred eighty-six and 61/100 dollars on or before the 21st day of March, 1884, and sixty-three and 34/100 dollars accrued interest, and taxes for 1882, with interest thereon according to the tenor and effect of the promissory notes given to said Iowa Loan and Trust Company, given with the mortgage by James Lamb, and assumed by Johnson and Kenney, and to be paid by P. Kenney, as shown on said notes, then these presents to be void ; otherwise, to remain in full force." Ap- pellee claims to be the owner, by indorsement, of the note referred to in these conditions, as payable to James Lamb; and this suit is for judgment on that note, and to foreclose the deed of trust. After the execution of the deed of trust, and on or about the 13th day of Novem- ber, 1886, Peter A. Johnson, the grantee named therein, made a satis- faction piece, acknowledging that the same was "redeemed, paid off, satisfied, and discharged in full." This satisfaction was duly filed for record with the recorder of Dallas county. Johnson had no authority, express or implied, from appellee, who then held the Lamb note, to en- ttr this satisfaction of record. Thereafter W. H. Brenton purchased the property, relying upon the recorded satisfaction of the mortgage, and believing that the Lamb note had been paid. Appellee contends that the deceased was not justified in relying upon the satisfaction for 1064 Cases on Real Property. two reasons : ( i ) Because the authority of the trustee was expressly limited to an actual payment of the debts by Kenney to the person or persons who held the notes described in the instrument; and (2) be- cause of a decree entered of record in a suit wherein Peter A. Johnson, by his next friend, was plaintiff, and Pat Kenney was defendant, wherein it was determined that, as between them, Kenney was bound to pay the notes secured by the deed of trust, and further decree "that upon the release of said mortgage to the Iowa Loan and Trust Com- pany, and the payment of said note to James Lamb, or the release of the surety now on said note, that the clerk of this court enter satisfac- tion of the mortgage made by Pat Kenney and Mary Kenney to Peter A. Johnson, dated March 21, 1883." To properly solve the questions presented, a further statement of the facts is necessary. It appears from the record that Lamb sold the land covered by the mortgage to G. I. Johnson, the father of Peter A. Johnson, and the father-in-law of Pat Kenney. At the time of the sale, the Iowa Loan & Trust Company held an unsatisfied mortgage upon the property. Johnson, the father, agreed to pay Lamb $1,450, $1,000 of which was covered by an as- sumption and agreement to pay the Iowa Loan & Trust Company mort- gage, and the remainder to be paid to Lamb. He caused the land to be conveyed (by Lamb) to his son and son-in-law, and Kenney agreed to pay the consideration to Lamb. Kenney thereupon executed his note to Lamb for the amount stated in the deed of trust, and G. I. Johnson signed same as surety. He also assumed and agreed to pay the mort- gage to the Iowa Loan & Trust Company, and at or near the same time, and to indemnify G. I. Johnson and Peter A. Johnson, who owned one- half the property covered by the company mortgage, executed the deed of trust in suit. Afterwards some controversy arose between Peter A. Johnson and Kenney with reference to their rights in and to the prem- ises, and Johnson brought suit against Kenney for partition, and for an accounting between them. In this suit it was decreed that Peter A. Johnson and Pat Kenney were each the owners of an undivided one- half interest in the land; that Kenney was individually bound to pay the mortgage to the trust company and the note in favor of Lamb ; and that the mortgages, as between them, were liens upon the land set apart to Kenney, to be first paid therefrom; and further decreed that upon release of said mortgage to the trust company, and payment of the note to Lamb, or the release of the surety on the note, the clerk enter a satisfaction of the mortgage made by Kenney and wife to Peter A. Johnson, being the mortgage or deed of trust in suit. Shortly Mortgages 1065 after the execution of the note to L,anib, and before its maturity, he sold and indorsed it to plaintiff, and som« time thereafter executed a formal assignment, referring to the mortgage in suit. Thereafter the loan and trust company foreclosed its mortgage, and sold the land under execution to Jennie A. Rivers, Rivers sold to Collins, Collins to Hoff, and Hoff to Brenton. Neither Collins, Hoff, nor Brenton had any notice of the mortgage in suit, except such as the record imparted, and some of these grantees expressly say that they relied upon the satisfaction appearing of record at the time they purchased. There is some doubt about Lamb's knowledge of the mortgage to Peter A. Johnson until after it was satisfied of record, but, as the case turns upon another proposition, we will not attempt a solution of the doubt. As we view it, the case turns upon the authority or apparent au- thority of the trustee to satisfy the mortgage or deed of trust. In ad- dition to the conditions to which we have referred, this instrument pro- vided : "And it is further agreed that if default shall be made in the payment of said sum of money or any part thereof, principal or in- terest, or if the taxes assessed on the above-described real estate shall remain unpaid for the space of three months, and after the same are due and payable, then the whole indebtedness shall become due, and the said party of the second part, his heirs or assigns, may proceed by fore- closure or in any other lawful mode to make the amount of said note." It is no doubt true that Peter A. Johnson, the trustee, had no authoritv to release the deed of trust, except upon payment of the notes secured thereby; and it is conceded that, as between the parties or persons having notice, a release executed by a trustee without authority, of the cestui que trust, and without having received payment of the debt se- cured, does not discharge the Hen. See Jones, Mortg. section 957; In- surance Co. V. Eldredge, 102 U. S. 545 ; Williams v. Jackson, 107 U. S. 478, 2 Sup. Ct. 814. The trustee did not have authority in this case to release the deed of trust except upon payment of the notes secured thereby, but the question here presented is somewhat broader than that of the express power of the trustee. It relates more nearly to his apparent authority, or rather to the effect of the release upon subse- quent purchasers, who bought the land on the faith of the satisfaction piece appearing of record. Appellee concedes that the trustee had au- thority, upon payment of the notes secured by the deed of trust, Jo re- lease the same. Now, if he had this power, will it not be presumed, in the absence of notice to the contrary, that, when he enters satisfaction of the instrument upon the records after the notes secured thereby have matured, the notes are paid, and will not a good- faith purchaser of the io66 Cases on Rbal Property. land who buys relying upon this satisfaction be protected against the claims of assignees of the notes secured by the deed of trust? This is the vital question in the case, and the solution of it does not depend so much upon the authority of the trustee to receive payment as upon his power over the security and his right or apparent right to discharge the instrument. As it is conceded he had the power, without joining his cestui que trust, to release the mortgage upon payment of the debts secured thereby, it seems to us that, when he does do so, after the debts mature, subsequent purchasers are justified in assuming that the debts have been paid, and in relying upon the record showing the discharge of the mortgage. The satisfaction made by Johnson, the trustee, was entered of record after the debts matured, and expressly stated that the mortgage or deed of trust was "redeemed, paid off, satisfied, and discharged in full." This is a statement made by one having not only apparent, but real, authority, that the debts have been paid, and that the mortgage is satisfied and released. Must a purchaser go further, and see that the debts were in fact paid ? We are aware that the uniform tenor of authorities is to the effect that a trustee has no powers, except those conferred by the instrument creating the trust, and that those given are strictly construed; and we do not overlook the fact that persons dealing with the subject of the trust must take notice of the extent and limitations of the powers con- ferred; and we do not desire to intrench upon these well-established and salutary rules. But the question here presented cannot be solved by reference to these rules alone. Here is a case where the trustee ha's the undoubted authority to discharge the deed upon payment of the debt secured thereby. His appointment is accepted by the cestui que trust, and they say to the world that, upon compliance with certain conditions, he has authority to release the instrument. He does release it, and subsequent purchasers buy, relying upon this satisfaction. Who is to suffer under such circumstances, — the- one who puts it in the power of the trustee to make the discharge, or the one who buys on the faith of the deed of trust being satisfied? Application of certain well-known equitable principles will settle this question. Some of these rules have been thus stated : "Where one of two innocent parties must suffer, he through whose agency the loss occurred must bear it." Again.: "Where somebody must be a loser by reason of a deceit prac- ticed, he who employs and puts trust and confidence in the deceiver should be the loser, rather than a stranger." Again, it has been said : "Where loss is caused by ...e fraud of a third person, such loss should fall on the one whose act enabled such fraud to be committed." In Mortgages 1067 applying these maxims, v/e have said that where a mortgagee in a mortgage given to secure a certain promissory note negotiates the note to a third person, and then enters a satisfaction of record, such entry will protect a subsequent bona fide purchaser of the land from the mortgagor if he had no notice at the time of such purchase that the note was unpaid, or the entry of satisfaction unauthorized. Cornog v. Fuller, 30 Iowa, 212. In another case involving the same question (Bank v. Anderson, 14 Iowa, 544) we said that parties should not be permitted to leave their rights and interests in liens and real estate in such a condition as to injure those who are deceived by appearances without a record notice to guide them. The appellee in this case has no greater or other rights than Lamb, from whom he purchased the note, for he did nothing to indicate that he had any interest in the security. Appellee reHes upon the cases of Weldon v. Tollman, 15 C. C. A. 138, 67 Fed. 986, and Livermore v. Maxwell, 87 Iowa, 705, 55 N. W. 37. These cases are much alike in their facts, and differ from this in many important particulars. In the Weldon Case the re- lease was by quitclaim deed, and did not purport to be a satisfaction of the deed of trust in execution of the powers conferred upon the trustee. And in both cases it appeared that the release was given be- fore the maturity of the notes secured by the trust deed, and in neither were the notes surrendered to the makers. Moreover, it is expressly held in the. Livermore Case that a subsequent purchaser who in good faith rehed upon a satisfaction entered of record by the cestui que trust, as well as the trustee, would be protected, although at the time the satisfaction was entered the cestui que trust had disposed of the notes secured by the deed. The uniform course of decisions in this state has been to discourage secret liens, and to protect those who invest their money in reliance upon the integrity of the county records. See Jenks V. Shaw (Iowa) 68 N. W. 900, and cases cited. Some, conflict will be found in the authorities bearing upon the ques- tions here considered, but we think the case turns on the application of a few well-defined equitable principles, and that the result reached is in accord with these maxims. See, as sustaining our conclusions, Field V. Schieffelin, 7 Johns. Ch. 150; Ahern v. Freeman (Minn.) 48 N. W. 677; Kuen V. Upmier (Iowa) 67 N. W. 374; Merrill v. Luce (S. D.) 61 N. W. 43; Whipple v. Fowler (Neb.) 60 N. W. 19; Jones' Ex'rs v. Clark, 25 Grat. 656; Carter v. Bank, 36 Am. Rep. 341.' The decree upon which appellee reUes as notice to appellants' ances- tor, that Johnson had no authority to release the mortgage, being the, one entered in the partition and accounting case of Johnson against io68 Cases on Real Property. Kenney, did not take away from Peter A. Johnson his trusteeship ; nor did it in any manner abridge or destroy his right to release the trust deed. If it purported to do so, it would be ineffectual, for the reason that neither of the cestuis que trustent was made a party to the pro- ceeding, and the district court could not discharge their trustee, and place the clerk of the courts in his stead, without authority from the beneficiaries, or an adjudication in a case to which they were parties. If we treat the suit as lis pendens, it does not aid the appellee, for the reasons stated. Some question is made regarding certain taxes allowed to appellee, and included in the judgment. As these taxes were all recovered under stipulations contained in the deed of trust in suit and the provisions of the loan and trust company mortgage, we need only consider those paid by the trust company, claim for which was assigned to appellee, as the deed of trust to Johnson was satisfied in so far as these defendants are concerned. Appellee is not entitled to recover for taxes paid by the loan and trust company for two reasons : ( i ) They foreclosed their mortgage in an independent suit, and did not ask to recover for taxes paid. Having failed to do so, they cannot assign a claim therefor, and vest in their assignee a right to recover, for this would allow them to split their cause of action, and foreclose by piecemeal. (2) Appellee did not ask to recover these taxes under the loan and trust company mortgage, but under the one to Johnson, as trustee; and this, as we have seen, was satisfied of record. Appellants filed a cross petition, in which they asked that the deed of trust be decreed to be no lien upon their real estate, and that the same be declared fully canceled and satisfied of record. This relief should have been granted. The decree of the district court is reversed, and the cause remanded for further proceedings in harmony with this opinion. Reversed. Mortgages 1069 sec. 11. foreclosubb. CLARK V. REYBURN. 8 Wall. (U. S.) 318; 19 L. Bd. 3^4. (1868) Mr. Justice Swayne stated the case, and delivered the opinion of the court. The amended bill states the following case : That on the 30th of April, 1859, Jeremiah Clark executed to the complainant his promissory note for $5,250, payable twelve months from date, with interest after maturity at the rate of twenty-five per cent per annum. On the same day, Clark and wife executed to the complainant a mortgage upon the real estate therein described, condi- tioned to secure the payment of the note. The mortgage was acknowl- edged by the grantors, and duly recorded. Clark failed to pay the note at maturity. The complainant, on the 5th of October, 1861, filed his bill of foreclosure against the same parties who are defendants in this suit. Before the hearing, the bill was dismissed as to Mrs. Clark and Few. It was adjudged and decreed that there was due from Jeremiah Clark $8,565.77; that he should be forever barred and foreclosed of any interest in the mortgaged premises, and that they should be sold by the marshal, and the proceeds applied to the payment of the amount found due. On the 27th of December, 1861, the marshal sold the premises to the complainant for $7,000, and on the 23d of that month executed to him a deed for the property. That there was still due to the complainant upon the decree the sum of $1,884.25, for the payment of which, the interest of Florinda Clark, in the mortgaged premises is chargeable That the defendant, Few, under a deed from Clark and wife to him in trust, claims to have the interest of a trustee in the property, which interest accrued subsequently to that of the complain- ant, and is inferior and subject to his mortgage. The prayer of the bill is for a decree of foreclosure as to the interest of Florinda Clark and Few in the mortgaged premises, and for general relief. Few filed an answer which sets forth, that about the 12th of Janu- ary, i860, Clark and wife executed to him, in trust, a deed for the same premises described in the mortgage ; that the persons for whose benefit the deed was made were Florinda Clark, the wife of Jeremiah Clark, and their children, then born or thereafter to be born, and the lawful heirs of such children, with certain limitations as to the further dis- position of the property as set forth in the deed, a copy of which it 1070 Cases on Reai, Property. is stated is annexed to the answer of Mrs. Clark to the amended bill in this case. As to all the other matters set forth in the bill, he avers that he has no knowledge, and he disclaims all interest in the matter in controversy, except as such trustee. He prays that the court will ad- judge fairly between the parties in interest, and that he may be dis- missed with costs. Clark and wife failed to answer. The trust deed referred to in' the answer of Few, as made a part of the answer of Mrs. Clark, is not in the record. No replication was filed by the complainant, and no testi- mony was taken upon either side. The bill was taken fro confesso as to Clark and wife, and the case stood upon the bill and answer as to Few. The court decreed that all the defendants should be forever barred and foreclosed of their right of redemption in the mortgaged premises. The decree does not find either the fact or the amount of the alleged indebtedness. It is silent upon the subject. The record shows no proceeding in relation to it. No time was given either to Mrs. Clark or her trustee within which to pay and redeem. The foreclosure was un- conditional, and was made absolute at once. The appeal is prosecuted to reverse the decree. In our view of the case it will be sufficient to consider one of the numerous objections insisted upon by the counsel for the appellants. The sale and conveyance by the marshal transferred the entire in- terest of Jeremiah Clark in the mortgaged premises to Reyburn, but it did not in any wise affect the equity of redemption which had been vested in Few by the trust deed of Clark and wife to him. The equity of redemption would have been barred and extinguished by the decree wliich ordered the premises to be sold if the proper parties had been before the court when it was made. The bill in that case having been dismissed as to Mrs. Clark and Few, the proceedings left their rights in full force. They were before the court in the case now under con- sideration, and the trust estate was then for the first time liable to be affected by its action. If there was a balance of the -debt secured by the mortgage still unpaid, they were properly proceeded against, and the complainant was entitled to relief. The question to be considered re- lates to the character of the decree. Can a decree of strict foreclosure, which does not find the amount due, which allows no time for the payment of the debt and the re-' demption of the estate, and which is final and conclusive in the first instance, be sustained? The equity of redemption is a distinct estate from that which is Mortgages 1071 vested in the mortgagee before or after condition broken. It is de- scendible, devisable, and alienable like other interests in real property. As between the parties to the mortgage the law protects it with jealous vigilance. It not only applies the maxim "once a mortgage always a mortgage," but any limitation of the right to redeem, as to time or per- sons, by a stipulation entered into when the mortgage is executed, or afterwards, is held to be oppressive, contrary to public policy, and void. By the common law, when the condition of the mortgage was broken, the estate of the mortgagee became indefeasible. At an early period equity interposed and permitted the mortgagor, within a reasonable time, to redeem upon the payment of the amount found to be due. The debt was regarded by the chancellor, as it has been ever since, as the principal, and the mortgage as only an accessory and a security. The doctrine seems to have been borrowed from the civil. law. After the practice grew up of applying to the chancellor to foreclose the right to redeem upon default in the payment of the debt at maturity, it was al- ways an incident of the remedy that the mortgagor should be allowed a specified time for the payment of the debt. This was fixed by the primary decree, and it might be extended once or oftener, at the discretion of the chancellor, according to the circumstances of the Case. It was only in the event of final default that the foreclosure was made absolute. In this country the proceeding in most of the States, and perhaps in all of them, is regulated by statute. The remedy thus provided when the mortgage is executed enters into the convention of the parties, in so far that any change by legislative authority which affects it substan- tially, to the injury of the mortgagee, is held to be a law "impairing the obligation of the contract" within the meaning of the provision of the Constitution upon the subject. At the date of the execution of this mortgage the act of the territorial legislature of Kansas of 1855, "concerning mortgages," was in force. It directed that in suits upon mortgages the mortgagee should recover a judgment for the amount of his debt, "to be levied of the mortgaged property," and that the premises should be sold under a special fieri facias. But it also provided that nothing contained in the act should be so construed as to "prevent a mortgagee, or his assignee or the repre- sentative of either, from proceeding in a court of chancery to foreclose a mortgage according to the course of proceeding in chancery in such cases." This gave to the complainant iti the case before us the option to proceed in either way. He elected to file a bill in equity. No rule 1072 Cases on Real Property. of practice bearing upon the subject, established by the court below, has been brought to our attention. The 90th rule of equity practice adopted by the Supreme Court, di- rects that where no rule prescribed by this court, or by the Circuit Court, is applicable, the practice of the Circuit Court shall be regulated by the practice of the High Court of Chancery in England, so far as it can be applied consistently with the local circumstances and conveni- ence of the district where the court is held. The equity spoken of in the Process Act of 1792, is the equity of the English chancery system. Spence says : "At length, in the reign of Charles I, it was established that in all cases of mortgages, where the money was actually paid or tendered, though after the day, the mortgage should be considered as redeemed in equity as it would have been at law on payment before the day; and from that time bills began to be filed by mortgagees for the extinction or foreclosure of this equity, unless payment were made by a short day, to be named." The settled English practice is for the decree to order the amount due to be ascertained, and the costs to be taxed ; and that upon the payment of both within six months, the plaintiff shall reconvey to the defendant; but in default of payment within the time limited, "that the said defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of and in said mortgaged premises." We ■ have been able to find no English case where, in the absence of fraud, a time for redemption was not allowed by the decree. The subject was examined by Chancellor Kent, with his accustomed fullness of re- search. "He came to the conclusion that the time was in the discretion of the chancellor, and to be regulated by the circumstances of the par- ticular case ; but he nowhere intimates that such an allowance could be entirely withheld. The practice in Illinois is in conformity to these views. In the light of these authorities we are constrained to hold the decree in the case before us fatally defective. * * ♦ Mortgages 1073 BENDEY V. TOWNSEND. 109 U. S. 665; 27 h. Bd. 1065; 3 Sup. Ct. 482. (1883) Gray, J. This is an appeal by James Bendey and wife from a decree for the foreclosure of a mortgage of land in Michigan, executed by them at Houghton, in that state, on April 30, 1873, to Samuel S. Smith and William Harris ; expressed to be made in consideration of the in- dorsement by Smith and Harris of several promissory notes of Bendey therein described, payable to the order of Thomas W. Edwards, at the First National Bank of Houghton; conditioned that Bendey should pay the notes at maturity, and should save and keep harmless the mortgagees "of and frc«n all costs- and charges arising from or on ac- count of said indorsements," and empowering the mortgagees, in case of default by Bendey in the payment of the notes, or either of them, to sell the land by public auction and convey it to the purchasers, render- ing the surplus money, if any, arising from the sale, to the mortgagors, after deducting the costs and charges of the sale, "and also one hun- dred dollars as an attorney fee, should any proceedings be taken to foreclose this indenture under the statute, and the same sum as a solicitor's fee, should any proceedings be taken to foreclose the same in chancery." The other facts appearing by the record are as follows : Smith & Harris, who were partners, signed their partnership name upon the back of the notes before their delivery to Edwards. One of these notes for $5,000, became payable on May 4, 1876, and, not being paid by Bendey, was protested for non-payment, and an action was brought thereon by Edwards against Smith & Harris, who, before judgment in that action, paid the amount of the note, with interest. Edwards in- dorsed the amount as a full payment on the note, and delivered up the . note to Smith & Harris ; and they entered the amount paid by them upon their books in their general account against Bendey, and after- wards, on September 5, 1877, assigned the mortgage, and the land therein described, "together with the note or obligation therein also mentioned," to "William Brigham and Amos Townsend, trustees." The assignment was in fact made in part payment of debts due from Smith & Harris to firms of which Townsend and Brigham were re- spectively members. Townsend and Brigham, who were citizens of Ohio, filed a bill in equity against Bendey and wife, who were citizens of Michigan, in a court of this state, alleging the facts aforesaid, and praying for an account, for the foreclosure of the mortgage by sale of I074 Casbs on Reai< Property. the land, for the payment by Bendey of any balance remaining due to the plaintiff of the principal and interest of the note and mortgage,- and for general relief. After the filing of answers and replication, the case was removed, on petition of the defendants, into the circuit court of the United States for the western district of Michigan, and a hear- ing there had, upon which the facts above stated were proved, and a decree entered that the defendants pay to the plaintiffs the sum of $7,996.59, with interest, together with a solicitor's fee of $100, and that in default of such payment the land be sold by public -auction, and conveyed under the direction of a master in chancery, and the proceeds of the sale applied to the payment of these sums, and that if the pro- ceeds of the sale should be insufficient for such payment, the amount of the deficiency, with interest, should be paid by Bendey to the plaintiff. From this decree the defendants appealed to this court. The contract into which Smith &• Harris entered, by signing their names on the back of the note before its delivery to the payee, though styled in the mortgage an indorsement, was rather, as towards the payee or a subsequent indorsee of the note, that of joint makers with Bendey. Good v. Martin, 95 U. S. 90; Rothschild v. Grix, 31 Mich. 150. But, whether their liability in that aspect should be treated as that for promisors, or of guarantors, or of indorsers, it is clear that, having signed their names to the note for the accommodation of Bendey, their relation towards him was that of sureties, and they had the right, upon being obliged to pay the amount of the note on his failure to pay it at maturity, to recover from him the sum so paid. The mortgage, contain- ing a condition to indemnify them against all costs and charges arising from their contract, was security to them for the payment by the mort- gagors to them of that sum. The entry, in the regular course of their bookkeeping, of the amount so paid in general account against Bendey, did not merge or extinguish th« mortgage, or the personal liability of Bendey to them. The assignment by them to Townsend and Brigham of the mortgage, together with the obligation therein mentioned, was a valid assignment, in equity at least, of the mortgage, as well as of their claim against Bendey for the repayment of the sum paid by them on the note. The assignees were therefore rightly held to be entitled to a decree for the foreclosure of the mortgage, and also, under the ninety-second rule in equity, to a decree against Bendey himself for so much of the sum paid by Smith & Harris, with interest, as the money obtained by the sale of the land under the foreclosure should be insufficient to satisfy. The decree below is therefore right in all re- spects, except in allowing a solicitor's fee of $100. The land is in MoRTGAGlJS 1075 Michigan; the notes and mortgage were made and payable in Mich- igan ; and by the law of Michigan, as settled by repeated and uniform decisions of the supreme court of that state, a stipulation in a mort- gage to pay an attorney's or solicitor's fee of a fixed sum is unlawful and void, and cannot be enforced in a foreclosure, either imder the statutes of the state or by bill in equity. Bullock v. Taylor, 39 Mich. 137; Myer v. Hart, 40 Mich. 517; Vosbufgh v. Lay, 45 Mich. 455; (S. C. 8 N. W. Rep. 91) ;, Van Marter v. McMillan, 39 Mich. 304; Botsford V. Botsford, 49 Mich. 29; (S. C. 12 N. W. Rep. 897). Upon such a question, affecting the validity and effect of a contract made and to be performed in Michigan, concerning land in Michigan, the law of the state must govern in proceedings to enforce the contract in a federal court within the state. Brine v. Ins. Co., 96 U. S. 627 ; Con- necticut Ins. Co. V. Cushman, 108 U. S. 51; (S. C. 2 Sup. Ct. Rep. 236) ; Equator Co. v. Hall, 106 U. S. 86; (S. C. i Sup. Ct. Rep. 128). Decree reversed. . SEC. 12. SAI.E WITHOUT FOBECLOSTJBE. CARSON V. BLAKEY. 6 Mo. 2^3, 55 Am. Dec. 440. (1840) Tompkins, J. Carson, as administrator of Stephens, brought his action of ejectment against Anderson in his lifetime; the death of An- derson being suggested on the record, Blakey and Love were made parties as administrators. The judgment of the circuit court was given in favor of the defendants, and to reverse that judgment, Carson prose- cutes this writ of error in this court. The evidence in the case is, that in the lifetime of John Anderson, one George McDaniel became the security of said Anderson for the sum of one thousand dollars, and that Anderson wishing to secure said McDaniel from any loss on that account, executed to him a mortgage for the land here sued for, with a power to McDaniel himself, t;o sell the premises on certain conditions in the mortgaged dee^ .mentioned. McDaniel sold the land, and Joseph Stephens, the plaintiff's intestate, became the purchaser. It is not con- tended that the conditions prescribed in the mortgage deed have not been complied with. The only contested point is whether the mortga- gor can, consistently with law, constitute the mortgagee a trustee for 1076 Cases on Real Property. the purpose of selling this land, to raise money to pay the debt due to the mortgagee himself from the mortgagor. On the part of the de- fendants in error it is contended : i. That under our law, a mortgage with a power of sale in the mortgagee is void. 2. That the only meth- od of obtaining title to the mortgaged premises is, with us, by a sale under a petition for a foreclosure. The act concerning mortgages, of February 18, 1825, found in digest of 1825, p. 593, provides, that in all cases of mortgages of land, etc., where the mortgagee, his executors, administrators, or assigns, shall file a petition in the office of the clerk of the circuit court of the county where the mortgaged premises lie, against the mortgagor, or his heirs, executors, or administrators, etc., setting forth the instrument of writing containing the mortgage, and praying that the equity of redemption may be foreclosed, and the mort- gaged premises sold to satisfy the amount then due, the clerk shall is- sue a summons requiring the defendant to appear, etc. ; the cause then proceeds, as do other causes in the circuit court, with this exception, that no sale shall be made within nine months after filing the petition. Thence it is inferred that in every case of a mortgage the mortgagee must proceed by filing his petition in the circuit court to procure a sale of the mortgaged premises; this is, in my opinion, a mistaken view of the legislative will. No restrictions are imposed by law on the power of alienating lands in Missouri. On the contrary, as they are here easily obtained, every facility is afforded to the owner to alienate, in order that they may better serve his purposes, when he thinks he can better his condition by alienating, and our legislature have interposed to remove many of the obstacles which the courts of chancery in Eng- land, by their own authority, have created, to prevent a forfeiture of the mortgaged premises by a failure of the mortgagor to pay the money due on the mortgage at the appointed day. It is true, as con- tended in argument, that the law still deprives the borrower of money of the power to bind himself to pay a greater interest than ten per cent per year, and might, perhaps, with equal propriety, restrain the power of alienating lands; but the legislative power has not deemed it ex- pedient to do so, it has simply declared, that when the mortgagee, etc., shall file the petition, these proceedings to enable him to collect his money, shall take place, leaving individuals at liberty to settle their own business after their own way, when they choose so to do. For neither the sheriffs nor the clerks appear to be such favorites with the legislature, that mortgagor and mortgagee should be compelled to go into court in order to contribute to their emoluments, nor does the policy of our constitution and laws render the support of a landed Mortgages 1077 aristocracy so necessary, that courts of law here, should, like the courts of chancery in England, outstrip the legislature in zeal to restrain the alienation of real estate. It not appearing then that this mortgage deed was improperly obtained by McDaniel, from the deceased, John Ander- son, the intestate of the defendants in error, I see no reason why, in a court of law, it should not be held valid. The regularity of the pro- ceedings under the deed of mortgage has not been questioned- The judgment of the circuit court ought then, in my opinion, to be re- versed ; the president of the court concurring in that opinion. * * * Note : There is an extensive note upon the subject of "Sale under Powers in Mortgages and Trust Deeds" in 92 Am. St. Rep. 573. CHAPTER XXXV. EQUITABLE LIENS. LOVE V. SIERRA NEVADA LAKE WATER & MINING CO. 22 Cal. 63P; pi Am. Dec. 602. (186'/) Shatter, J. * * * It appears from these two sources con- jointly that the defendant corporation, on the i6th of April, i860, by Josiah Bates and Samuel S. Atchinson, its trustees, duly authorized for that purpose, made and delivered to the plaintiff and four others its promissory note for the sum of forty thousand pounds sterling, payable one day from the date thereof, with interest thereon from date until paid, at the rate of twenty per cent per annum; that the consideration of said note was forty thousand pounds, loaned and advanced by the payees and others to the corporation before the date of the note; that to secure the payment of the note, the corporation at the date thereof, by its said trustees, Bates and Atchitlson, executed, acknowledged, and delivered to the payees the ''mortgage" set out in the complaint. In the indenture referred to, the parties are described as "The Sierra Ne- vada Lake Water and Mining Company, a corporation, by their trus- tees, Josiah Bates and Samuel Atchinson, of the first part, and plaintiff (and the other payees in the note, naming them), parties of the second part." The conclusion of the indenture is as follows : — "In witness whereof, the said parties of the first part have hereunto set their several hands and seals, the day and year above written. "Josiah Bates. (Seal). "Samuel S. Atchinson. (Seal). The acknowledgment of the mortgage is to the effect that Bates and Atchinson were personally known to the notary as trustees of said corporation, and that they personally appeared and acknowledged each for himself that he executed the instrument for the uses and purposes therein mentioned, "as and for the free act and deed of Said Sierra Nevada Lake Water and Mining Company." At the execution of the note and mortgage. Bates was president of the company, and Bates and Atchinson were a majority of the trustees ; and at and before that 1078 Equitable Liens 1079 time they agreed for and on behalf of said corporation with the said mortgagees to subscribe the name of "The Sierra Nevada Lake Water and Mining Company" to the said mortgage, and intended so to do, but failed by accident or mistake. The plaintiff was personally inter- ested in the securities to the amount of £24,847, with interest from the date of the note ; and the other payees, Ridgway, F. and H. Wedgwood, and Robe, made defendants herein, refused to join as plaintiffs in this action. The remaining defendants are creditors of the Sierra Nevada Lake Water and Mining Company, having judgment liens on the prop- erty described in the mortgage, but subsequent thereto. It is a rule of conveyancing, long established, that deeds executed by an attorney or agent must be executed in the name of the constituent. It was so resolved in Coombe's Case, 5 Coke, 135, by Praser, and the rule was recognized and applied by us in Echols v. Chenery, 28 Cal. 159. Tested by this rule, the instrument in suit is not a legal mortgage of the Sierra Nevada Lake Water and Mining Company. The paper is signed and sealed, not by the corporation, but by Bates and Atchin- son, acting, so far as the signatures, seals and testatum clause throw any light upon the subject, for themselves and in their own right. Though the mortgage does not bind the company at law, it by no means fallows, however, that it may not be asserted against it in equity. We consider it as settled that an agreement under seal, made by an attorney .for his principal, though inoperative at law for want of a formal ex- ecution in the name of the principal, is binding in equity if the attorney had authority; and if the instrument so defectively executed be a con- veyance of real estate, it will be sustained in equity as an agreement to convey, and will be good against the principal, subsequent lien cred- itors, and subsequent purchasers with notice. Or, more precisely stated, an agrfeement in writing to create a mortgage, or a mortgage de- fectively executed, or any imperfect attempt to create a mortgage, or to appropriate specific property to the discharge of a particular debt, will create a mortgage in equity, or a specific lien, which will have precedence of subsequent judgment creditors. Am. Lead. Cas. 605 ; i Lead. Cas. Eq. 666, and cases there cited. The jurisdiction is some- times put upon the ground that equity will aid the defective execution of a power, — sometimes upon the jurisdiction to reform mistakes in written instruments, and sometimes upon the maJcim that equity con- siders that as done which ought to be done. These different modes of expression all amount to the same thing in substance. It was held by this court in Beatty v. Clark, 20 Cal. 12, that "though equity will not aid the non-execution of a power, still, where a party undertakes to io8o Cases on Real Property. execute a power, and by mistake does it imperfectly, equity will, in favor of creditors and others peculiarly within its protective favor, aid the defective execution." We held in Bodley v. Ferguson, 30 Id. 511, that a deed of land bad as a conveyance might be good in equity as a contract to convey; and that the equitable right to the legal title was as available for the purposes of defense in an action of ejectment, under our system, as the legal title. We held in Daggett v. Rankin, 31 Id. 322, "that an agreement in writing to give a mortgage, or a mortgage defectively executed, or an imperfect attempt to create a mortgage, or to appropriate particular property to the discharge of a particular debt, will create a mortgage in equity, or a specific lien upon the property so intended to be mortgaged." We considered further, that the maxim in equity upon which this doctrine rests is that equity "looks upon things agreed to be done as actually performed ; the true meaning of which is, that equity will treat the subject-matter, as to collateral consequences and incidents in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been:" See also Racouillat v. Sansevain, 32 Id. 376. The facts found or admitted in the case at bar bring it broadly within these principles. Bates and Atchinson were a majority of the board of trustees through which the corporate powers were to be executed. The corporation gave the note described in the complaint by Bates and Atchinson, ' they being duly authorized for that purpose; and they also- agreed, "for and on behalf of the corporation," to give a mortgage col- lateral to the note, to which mortgage the name of the company was to be signed; and the failure to do so was the result of accident or mis- take. The power being given, it is apparent on the face of the inden- ture that the trustees intended to act under the power in the matter of executing the mortgage. The corporation is named in the docu- ment as "party of the first part, by Josiah Bates and Samuel Atchinson, trustees." The note which the mortgage was given to secure is de- scribed as a note made by the company. Furthermore, the trustees state in their acknowledgment that they executed the mortgage "as and for the free act and deed of said Sierra Nevada Lake Water and Min- ing Company." It is urged -that the defective execution of the mortgage was caused by a mistake of law, -and that therefore the defective execution cannot be aided. The answer is, that where there is a defective execution of a power, it is a matter of no equitable moment whether the error came of a mistake of law or a mistake of fact. It is enough that the power existed, and that there was an attempt to act under it. The relief is Equitablk Liens io8i not so much by way of reforming* the instrument as by aiding its de- fective execution ; which aid is administered through or by the applica- tion of the maxims already quoted. Or as in the class of cases to which this belongs, the instrument defectively executed as a deed is considered as properly executed as a contract for a deed, and there- fore as requiring neither reformation nor aid, but as ripe for enforce- ment according to the methods peculiar to courts of equity. Under our laws, a contract for a mortgage need not be under seal; and when made through an attorney, his authority need not be evidenced by a sealed instrument : Wood's Digest, io6, sec. 6 ; Angell and Ames on Corporations, 193-266. Though the indenture in this case is under the seals of the trustees, yet when considered as an agreement for a mort- gage, it may be treated as a simple contract nevertheless: Lawrence V. Taylor, 5 Hill, 107; Worrall v. Munn, 5 N. Y. 239 (55 Am. Dec. 330) ; Wood V. Albany etc. R. R. Co., 8 Id. 167 ; and we consider it clear from the authorities that it is not indispensable, in order to bind the principal at law even, that such contract should be executed in the name and as the act of the principal. On the contrary, it will be suffi- cient, if upon the whole instrument it can be gathered from the terms thereof that the party described himself and acts as agent, and intends thereby to bind his principal, and not to bind himself: Haskell v. Cornish, 13 Cal. 45; McDonald v. Bear River and Auburn W. & M. Co., 13 Id. 221. The other objections taken by the appellants to the judgment, though not pressed in argument, have been fully considered by us, and they are all overruled. CORDOVA v. HOOD, 17 Wall. (U. S.) i; 21 L. Ed. 587. (1872) Mr. Justice Stronc delivered the opinion of the court. The appellees must be held to have had notice of whatever equities were revealed in the line of their title. They claim through a con- veyance, from Hood Sr., who had purchased from Shields in 1859, and the deed from Shields plainly exhibited the fact that the purchase- money remained to be paid. It contained not even a receipt for the consideration of the sale. In form it was a deed of bargain and sale, but there was not enough in it to show that the use. was executed in io82 Cases on Real Property. the vendee. On the contrary, it recites a consideration "to be paid" in instalments at subsequent dates, for which a draft and notes were given. That the vendor, by such a deed, had a lien for the unpaid purchase-money, as against the vendee and those holding under him with notice, unless the lien was waived, is the recognized doctrine of English chancery, and Texas is one of the States in which the doctrine has been adopted. It is a general principle that a vendor of land, though he has made an absolute conveyance by deed, and though the consideration is in the instrument expressed to be paid, has an equitable lien for the unpaid purchase-money, unless there has been an express or an implied waiver of it. And this lien will be enforced in equity against the vendee and all persons holding under him, except bona fide purchasers, without notice. With greater reason, it would seem, should such a lien exist and be enforced when, as in this case, the deed, in- stead of containing a receipt for the purchase-money, expressly states that it remains unpaid. The important question to be considered, therefore, is whether the lien has been waived. That there was no express waiver by Shields at the time when his deed to Hood was made and delivered, or at any subsequent time, is not only not proved, but is plainly disproved. Shields himself has testified that the lien was never released by him, and that when the note of his vendee for $5,015 was taken for the unpaid portion of the larger note given at the time of the sale, it was with the distinct understanding between him -and Hood that the pay- ment then made, and the execution of the note for the balance, made no difference whatever respecting the vendor's lien to secure the balance, but "that the land should continue just as liable to secure payment of said balance as before." It remains then to inquire whether there was any implied waiver of a lien. When the deed was made the vendor took for the purchase- money promissory notes signed not only by Hood, the vendee, but by Hood, Jr., his son. Had the notes been signed by the vendee alone no implication of an intent to waive a vendor's lien could have arisen. It is everywhere ruled that where such a lien is recognized at all it is not affected by the vendor's taking the bond or bill single of the vendee, or his negotiable promissory note, or his check, if not presented or if unpaid, or any instrument involving merely his personal liability. It is true that, taking a note or a bond from the vendee with a surety, has generally been held evidence of an intention to rely exclusively upon the personal security taken, and therefore, presumptively, to be an abandonment or waiver of a lien. But this raises only a presumption. Equitable Liens 1083 open to rebuttal by evidence that such was not the intention of the parties. And we think the evidence in this case clearly shows that neither party to the deed understood that the vendor intended to take the note of Hood, Sr., and Hood, Jr., as a substitute for the lien. The only evidence we have bearing directly upon the subject is in the testi- mony of Shields. To some extent he does undoubtedly confound his own impressions with what occurred when the notes were given. But we think it may fairly be deduced from his statements that there was no intention then to waive the lien, which the law implied from the terms of the deed. He is unable to state why the son's name was signed in conjunction with the father's, but he is positive that the additional signature was simply a gratuity not called for by the con- tract nor altering it. He states also there never was any question be- tween himself and his vendee respecting a vendor's lien, adding, it be- ing considered, of course, that his obligation of warranty in the de-ed would only be made perfect or complete upon the payment of the whole amount of the purchase-money. And that taking the notes as they were taken was not intended as a waiver of a vendor's lien, or at least that it was not understood by the vendee to be such a waiver, is placed beyond doubt by what took place afterwards, on the 1st of April, i860. There the renewed note was given for a part .of the orig- inal purchase-money, and it "was positively and unequivocally stipu- lated and agreed by' the vendor and vendee" that the original hen was retained, that the land should continue liable as before. How could this be, if the Hen had been waived? "Waiver is a thing of intention as well as of action, and it is impossible to believe, in view of this testi- mony, there was an intention to give up the security of the land. Were this a bill to enforce the lien against the lands in the hands of Hood, the purchaser, it would not be permitted to him to assert that the vendor had, from the first, relied only upon the personal security taken. And Scroggin and Hanna, the purchasers from Hood, are in no better position. They are not bona fide purchasers without notice. As we have seen, the lien for the purchase-money was apparent in the line of their title. The deed • from Shields to Hood informed them that the consideration was unpaid. It imposed upon them the duty of inquiring whether it remained unpaid when they were about to make their pur- chase. Wherever inquiry is a duty, the party bound to make it is affected with knowledge of all which he would have discovered had he performed the duty. Means of knowledge with the duty of using them are, in equity, equivalent to knowledge itself. Had inquiry been made Qi th? vendor, it would easily have been ascertained that a portion of 1(1*4 Cases on Reai, PKorERTY. the purchase-money remained unpaid. Inquiry of Hood, the debtor, if any such inquiry was made, was an idle ceremony. The deed pointed to the person from whom purchasers from Hood were bound to seek information. It has been suggested in the argument on behalf of the appellees, that taking up the original note, and giving another note for an unpaid balance of the first, may have terminated the lien if any existed. Un- doubtedly no agreement made in i860, when the new note was given, created a vendor's lien for its security. But the original lien was for all the purchase-money, and for every part of it so long as it remained unpaid. It was not merely security for the notes first given; it was for the debt of which the notes were evidence. Giving the new note was not payment of the debt, it was only a change of the evidence, and, therefore, the fact that it was given did not affect the lien. In Mims v. Lockett, it was held that if a vendor of land takes a note for the price, and subsequently renews it, adding in the new note a sum of money due him by the vendee on a different account, his vendor's lien will not be invalidated thereby. It has been further argued that even if Shields, the vendor, might have enforced a lien against the land had he continued to hold the note, Bartlett, his assignee, cannot. It is contended that a vendor's lien is a personal right of the vendor himself, not assignable. And hence that the assignee of a note given for the purchase-mortey cannot resort in equity to the land sold. It must be admitted that such is the doctrine of very many cases, perhaps of those which have been best considered, though there are many well-reasoned judgments to the contrary. But we think, for the purposes of the present case, the law, as held by the Supreme Court of Texas, must furnish the rule of decision. And the decisions of that court appear to be that an assignment of the notes given for purchase- money carries with it the lien to the assignee. It has been held that in order to enforce a vendor's lien, the bill must show that the complainant has exhausted his remedy at law against the personal estate of the vendee, or must show that he cannot have an adequate remedy at law. And this bill makes no such showing. But in Texas, as in some other States, the creditor may proceed in the first instance to enforce the lien in equity. Upon the whole, then, we think the Circuit Court erred in dismissing the complainant's bill. He was entitled to a decree. * * * Note: The courts of many states, in particular the New England States, except V^rrnont, hav? ney^r adopted the English doctrine of % Equitabi^e Liens 1085 vendor's lien. In Ahrend v. Odiorne, 118 Mass. 261, 19 Am. Rep. 449, it was held that this doctrine did not apply in Massachusetts, and that they wouH leave the original vendor to secure the payment of the debt due him Uw the purchase money by the usual attachment on lien process. See also Falbrook v. Delano, 29 Me. 410; Arland v. Brown, 44 N. H. 102 ; Perry v. Grant, 10 R. I. 334. OBER v. GALLAGHER. 93 U. S. 199; 23 L. Ed. 829. (1876) Thompson purchased from Fleming, Jan. 15, 1867, a plantation situ- ated partly in Prairie County and partly in Pulaski County, \rk., at the price of S6o,ooo, to be paid in ten equal instalments, the first March i, 1867, and the remainder annually thereafter. Notes, negoti- able in form, and expressing on their face that their consideration was the purchase of this plantation, were executed by Thompson to Flem- ing for the several instalments, payable at the times agreed upon. On the same day, the date of the purchase, Fleming and his wife conveyed the property to Thompson by a deed in which, after a recital of the notes for the purchase-money, was the following : "But it is expressly agreed by the parties of the first and second part, that the said parties of the first part shall, and do hereby, retain a lien upon all of said lands for the payment of said ten promissory notes given for the purchase- money, and, when the same are fully paid off, said lien is to stand re- leased and discharged." This deed was recorded in Pulaski County, Feb. 26, 1867. It was also duly recorded in Prairie County. * * * Mr. Chief Justice Waite delivered the opinion of the Court. * * * 3. Another objection urged is, that the assignment of the notes by Fleming did not transfer the lien he had reserved as security for their payment. It is undoubtedly true, that, in many of the States, the implied lien which equity raises in favor of the vendor of real property to secure the payment of the purchase-money does not pass by an assignment of the debt; but here the lien was not left to imphca- tion; it was expressly reserved. In fact, it is more than a lien. In equity, it is a mortgage, so made by express contract. The acceptance by Thompson of the deed containing the reservation amounts, to an express agreement on his part that the land should be held as security for the payment of -yvh^t he o-yved on account of the purchase-money. io86 Cases on Reai, Property. This created an equitable mortgage; and such a security passes by an assignment of the debt it secures. We so held in Batesville Institute V. Kauflfman, i8 Wall. 154, a case which also came from the Eastern District of Arkansas. It is claimed., however, that the law of Arkansas is different, and that the Supreme Court of that State has decided that a lien to secure the payment of purchase-money, expressly reserved by the vendor in his deed, does not pass by an assignment of the debt. If such was the settled rule of law in the State when the notes which are under consideration in this case were assigned, we should be compelled to recognize it as a rule of property there, and be governed accordingly. Suydam v. Williamson, 24 How. 434. But we' do not understand such to have been the fact. The first case in which this ruling was made was Sheppard v. Thomas, 26 Ark. 617, decided at the June Term, 1871, by a divided court, two out of the five judges dissenting. This case was followed also by a divided court in Jones v. Doss, 27 Ark. 518, decided at the December Term, 1872; but almost immediately there- after, April 24, 1873, the legislature provided by statute as follows : — "The lien or equity held or possessed by the vendor of any real es- tate, for the sale of the same, shall inure to the benefit of any assignee of the notes or obligations given for the purchase-money of such real estate, and such lien or equity shall be assignable, and payable by in- dorsement or otherwise in the hands of such assignee, and any such assignee may maintain an action or suit to enforce the same: Pro- vided, the said lien or equity is expressed upon or appears from the face of the deed of conveyance." Pamphlet Laws, 1873, p. 217, sect. 28. This legislation was followed, at the December Term, 1873, by the case of Campbell v. Rankin, 28 Ark. 401, in which it was strongly in- timated, that, if it were necessary, the previous cases in which this question was decided would be overruled. Under these circumstances, we are not satisfied that, when these notes were assigned, it was a settled rule of property in Arkansas that a lien for purchase-money expressly reserved would not pass by an assignment of the debt. Such being the case, the Circuit Court was right in following our decision in Batesville Institute v. Kauffman, especially as its decision was not made until after the doubts expressed in Campbell v. Rankin, as to the correctness of the rulings in the previous cases. 4. It is finally insisted that Gallagher must exhaust his remedies at law before he can come into a court of equity" to subject the land. This is not a creditor's bill to reach equitable assets. There is no attempt to EquitabivJJ Liens 1087 enforce the judgment as a judgment, but to reach securities held for the debt. The suit is in reality one to enforce a mortgage given to se- cure a note, but not commenced until after the note had gone into judgment at law. The note was merged in the judgment, but the lien which secured it was not ; that was simply transferred from the note to the judgprient. An election to sue at law upon a note secured by mortgage does not make it necessary for the holder to exhaust his remedies in that forum before he can go into equity to enforce his mortgage. He may proceed at law and in equity at the same time, and until ac- tual satisfaction of the debt has been obtained. * * * TABLE OF CASES [refebenoes asb to pages.] Alice Bank t. Houston, etc. Co., 860. Alt V. Banholzer, 483. Anderson v. Cincinnati So. Ry. Co., dS?. Attorney General v. Marlborough, 63. B. Bails V. Davis, 363. , Bakeman v. Talbot, 667. Bank of Augusta v. Barle, 18, Barber v. Pittsburgh, F. W. & C. Ry. Co., 408. Barney v. Keokuk, 525. Barrett v. Failing, 472. Beal V. Boston Car Co., 712. Beard v. Rowan, 386. Bendey v. Townsend, 1073. Berry v. Billings, .756. Beyer v. I^fevre, 838. Billingston's Lessee v. Welsh, 947. Blake v. Dick, 98. Blake v. Hawkins, 578. Blinn v. Schwarz, 1006. . Bogert V. Bliss, 1058. Bonelli Bros. v. Blakemore, 648. Bosquett v. Hall, 964. Bostick V. Blades, 195. Bostwick V. Williams, 800. Bothwell et al. v. U. S., 920. Bowen v. Chase, 218. Bragg v. Weaver, 916. Brattle Square Church v. Grant, 413, Brennan v. Brennan, 184. Britton v. Thornton, 391. Broadway Bank v. Adams, 966. Brown v. Macgill, 970. Bi'own V. Spilman, 10. Brown v. Westerfleld, 816. Burdis Yj Burdis, 187; Burleigh* v. Clough, 389, Putt v. Ellett, 1016. ' 1089 1 090 Cases on Real Property a Caldwell v. Center, 88. Carey v. Brown, 231. Carson v. Blakey, 1075. , Case V. Owen, 429. Chesapeake & Potomac Telephone Co. v. MacKenzie, 726. Christy v. Dyer, 962. Clark V. Reyburn, 1069. Clarke v. Courtney, 879. . Clayton v. Blakey, 149. Colton V. Colton, 250. Conway's Ex'rs. & Devisees v. Alexander, 1032. Conwell V. State, 313. Cordova v. Hood, 1081. Cowell V. Springs Co., 196. Craig V. Leslie, 302. '' Craig V. Rowland, 341. Craig V. Van Bebber, 995. Creighton v. Creighton, 838. Cribben v. Deal, 748. Croxall V. Shererd, 225. D. Davis V. Gray, 190. Davis V. Mason, 474. Davison v. Whittlesey, 471. Day V. Brenton, 1063. Deery v. Cray, 765. Deming v. Miles, 478. Dengel et al. v. Brown, 66. DeVaughn v. Hutchinson, 372. Deville v. Widoe, 965. Dexter v. Hall, 1001. Diaz v. Sanchez, 902. Doe d. Bloomfield v. Eyre, 403. Doe d. Christmas v. Oliver, 357. Doe d. Planner v. Scudamore, 323. Doe ex dem. Phillips' Heirs v. Porter, 778. Doe Ijessee of Foot v. Considine, 314. Doty V. Teller, 64. Doyle V. Union Pac. Ry. Co., 102. Dumpor's Case, 201. Duncan Townsite T. Lane, 922. Eaton V. Whitaker, 448. Edwards v, HammoBd. 186, Table of Casbs 1 09 1 Elliot T. Small, 758. Esty V. Baker, 147. Evenson v. "Webster, 753. Ewlng V. Burnet, 861. Ewing V. Rhea, 15. F. Field T. Seabury, 736. Finley v. Simpson, 1053. First Universalist Society v. Boland, 400. Fisher v. Strlckler, 741. Forbell V. New York, 610. Gafford v. Strauss, 870. Gannon v. Hargadon, 608. Garner v. Byard, 115. Geible v. Smith, 658. Gibbs V. Drew, 20. ''Giles V. Little, 192. Gillis V. Gillis, 833. Goddard v. Winchell, 6. Gray v. McWilliams, 601. Green v. Green, 377. Grider v. Amer. Freehold Land Co., 806. Grommes v. St. Paul Trs. Co., 714. Grove v. Todd, 461. Guest V. Reynolds, 590. H. Hagerman t. Buchanan, 958. Hanson v. Voss, 504. Harris v. McGovern, 856. Haynes v. Aldrich 155. Hayward v. Howe, 72. ^azlett V. Sinclair, 693. Herbert v. Wren, 467. Herter v. Mullen, 159. Hickey v. Lake Shore Mich. So. Ry; Co., 681. Hicks V. Hamilton, 1051. Hill V. Hill, 623. ^ Hitz V. Jenks, 810. Hodges V. Latham, 802. ; Holbrook v. Finney, 446. Hollis V. Burns, 158. Holt V. Henley, 3. -Hopewell Mills v. Taunton Sav. Bank, 496. 1092 Cases on Real Property Hopkins v. Grimshaw, 293. Hovey t. Hobson, 1010. Howard v. Carusi, 393. Howard v. North, 763. ^owe V. Bass, 773. Hughes V. Nicklas, 378. Humphreys v. McKissock, 783. Huntington v. Asher, 671. Hussman v. Durham, 737. Huyck V. Andrews, 792. In re Holt's Will, 830. ■ Irvine v. Irvine, 999. J. Jackson v. Delancy, 279. Jackson v. Jackson, 481. Jamieson v. Bruce, 1013. Jesson v. Wright, 366. Junction R. R. Co. v. Harris, 444. Kay V. Scates, 209. Keating v. Springer, 654. Kerr v. Kingsbury, 514. Key V. Weathersbee, 348. Kilburn v. Adams, 882. I^rby v. Tallmadge, 937. Kirk v. Hamilton, 904. Kutz V. McCune, 797. . Lamar v. McNamee, 723. Lamson v. Clarkson, 131. Lessee of Clarke v. Courtney, 879. Levy V. Yerga, 875. Lindsey v. Lindsey, 999. Linthlcum v. Ray, 631! Long V. Buchanan, 627. Love V. Sierra Nevada Co., 1078. Mackay v. Baston, 805. Maddox v. Goddard, 764. Malarin v. United States, 762. K, M. Table oi? Cases 1093 Malloney v. Horan, 464. Mandel v. McClave, 454. Martin v. Smith, 431. Mayor, etc. of N. Y. v. Mabie, 89. McArthur V. Scott, 326. "licCalJe V. Bellows, 453. McCaffrey v. Manogue, 51. McCarter v. Hudson Co. Water Co., 596. McGarralian v. Mining Co., 731. McKeon v. Bisbee, 1. McMillan v. Fuller, 877. McNeil V. Gary, 705. Mee V. Gordon, 76. Meeks v. Olpherts, 246. Melick V. Pidcock, 40. Miles V. Miles, 81. Mitchell V. Seipel, 660. Moore v. Crawford, 271. Moore v. Jordan, 760. Moore v. Mansfield, 721. Moses V. Loomis, 198. Mutton's Case, 385. N. Nebraska v. Iowa, 887. Nellis V. Rickard, 232. Neves v. Scott, 277. Nichols V. Eaton, 979. Norwalk H. & L. Co. T. Vernam, 12. Ober V. Gallagher, 1085. Ordway v. Remington, 710. Orndoff v. Turman, 67. Osborn-v. Cook, 823. Ottumwa Lodge v. Lewis, 518. Overton v. Lacy, 435. Owen V. Hyde, 523. P. Page V. Branch, 872. Parkhurst v. narrower, 73. Parks V. Bishop, 884. Parish v. Murphree, 951. Parrott v. Avery, 814. • Peabody v. U. S., 912. Peden v. Chicago, ,R. I. & P. Ry. Co., 167. 1094 Cases on Real Property Penniman v. French, 2. Pennock v. Coe, 1017. People V. Piatt, 570. Peter v. Beverly, 575. ^fiters v. Bowman, 788, Peugh V. Davis, 1028. Philadelphia v. Stimson, 890. Post V. Weil, 685. Powell V. Dayton, etc. R. R. Co., 312. Pringle v. Dunn, 932. Proprietors, etc. v. Springer, 877. Pumpelly v. Green Bay Co., 910. Pynchon v. Stearns, 521. R. Ranch t. Dech, 903. ■ Rawson v. School Dist. No. 5 in Uxbridge, 170. Reed v. Proprietors, etc., 770. Renz V. Stoll, 243. Reske v. Reske, 484. Rice V. Boston & W. R. Corp., 164. Rich V. Bolton, 141. Richardson v. Penicks, 334. Riggs V. Riggs, 836. Robison v. Female -Orphan Asylum, 352. Rudy V. Austin, 955. Runyan v. Mersereau, 1015. Russell V. Allen, 284. Russell V. Fabyan, 153. S. Sampeyreac v. U. S., 922. Scott V. Lunt's Admr., 717. Scriver v. Smith, 588. Scrugham v. Wood, 813. Seaver v. Fitzgerald, 406. Sharon v. Tucker, 848. Shelton v. King, 988. Shepherd v. May, 1044. Shields v. Lozear, 1055. Shillaber v. Robinson, 1038. Shirk V. Thomas, 931. Shirras v. Caig, 1042. Shively t. Bowlby, 534. Simmons v. Leonard, 826. Simmons Creek Coal Co. v. Doran, 944. Sims V. Jones, 488. Sinton v. Boyd, 336. Table of Cases 1095 Sir Edward Clere's Case, 382. Smith V. Leighton, 486. Smith V. McEnany, 133. Smithsonian Institution v. Meech, 262. ^Sjiedecker v. Waring, 491. Spencer's Case, 125. State of Ga. v. Trustees of Cincinnati So. Ry., 57. Stedman v. Mcintosh, 150. Stevens v. Smith, 449. Stewart v. Long Island RR. Co., 116. Stott V. Rutherford, 95. Stuart V. Easton, 174. Sullivan v. Chambers, 215. Suydam t. Jones, 803. Talamo v. Spitzmiller, 144. "Talty V. Talty, 459. Tate V. Pensacola Gulf, etc. Co., 946. Thomas v. Evans, 83. Thompson v. Gregory, 646. _Thompson v. Thompson, 821. Tillotson V. Smith, 599. Town of Corinth v. Emery, 440. Transportation Co. v. Chicago, 613. Trice v. Shipton, 841. ^Trustees v. Lynch, 698. Tyrrel's Case, 231. TT. Union Mut. Life v. Hanford, 1048. United States v. Bostwick, ll4. United States v. Calif., etc. Co., 745. Ure V. Ure, 216. Van Ness v. Pacard, 499. Van Rensselaer v. Ball, 162. Van Rensselaer v. Hays, 30. Van Rensselaer v.. Kearney, 893. Veve y Diaz v. Sanchez, 902. tillage of Dwight v. Hayes, 633. Wallace v. Smith, 1025. Wallis V. Wallis, 384. V. w. 1096 Cases on Real Property "Ward V. Cochran, 866. Ware v. Richardson, 237. Warner v. Conn. Mut. Life Co., 582. Warnock v. Harlow, 925. Warren v. Wagner, 137. Watkins v. Peck, 639. Watriss v. First Natl. Bank of Cambridge, 509. Watson y. Smith, 360. Webster v. Cooper, 204. Wenzel v. Powder, 973. "^estcott v. Cady, 439. White V. Casten, 844. White V. Luning, 775. Wliite V. White, 466. Wjiliams V. Gibson, 676, Wilms V. Jess, 619. Wilson V. Hunftr, 764. Winston v. Trustees of Franklin Academy, 129. Wlshard v. McKnight, 853. Womack v. McQuarry, 135. ^%ood V. Chapin, 742. Wood V. Grayson, 653. Woods V. North, 786. Wright V. Denn, 46. Yoiing V. Bradley, 299. Younge v. Guilbeau, 811. Zeust V. Staffan, 481. T. Z. KF 569 S9^ Author Vol. Sullivan, Joseph Daniel Title Copy Selected cases on real propertj Date Borrower's Name